Testimony: Reinvigorating the FOIA for the Digital Age

Full text is below. Watch the testimony here. Amy Bennett's full written testimony is available here

Statement of Amy Bennett, Assistant Director of OpenTheGovernment.org 

Before the United States Committee on the Judiciary on Open Government and Freedom of Information: Reinvigorating the Freedom of Information Act for the Digital Age

Thank you, Chairman Leahy, Ranking Member Grassley, and Members of the Committee, for the opportunity to speak today about reinvigorating the Freedom of Information Act and for your unwavering commitment to protecting and strengthening the public’s right to know. My name is Amy Bennett and I am the Assistant Director of OpenTheGovernment.org, a coalition of more than eighty organizations dedicated to openness and accountability.

Currently the FOIA is anything but an effective and efficient tool that the public can use to get timely access to government records. Members of the public must contend with delays, mind-boggling technical barriers, and a tradition of bureaucratic resistance to disclosure because some agency officials believe information in agency records belongs to the agency, not the people.

There is no doubt that technology has been extremely useful in speeding FOIA processing while also making it easier for the public to use and re-use government information. Technology is not the entire answer, however, and we hope that the Committee will approve amendments to the FOIA addressing the issues discussed below and in my written testimony.

Foremost among these, the open government community would like to see Congress put tighter boundaries around the government’s over-use of FOIA’s Exemption 5, or as many requesters refer to it, the “We don’t want to give it to you” exemption. Exemption 5 is intended to protect the government’s deliberative process, among other things, and was intended to have – as are all FOIA Exemptions –narrow application. Over time, federal agencies have expanded the scope of Exemption 5 to the point that it covers practically anything that is not a final version of a document. In one recent egregious example, the Central Intelligence Agency denied a request from the National Security Archive for a copy of the CIA's internal history of the 1961 Bay of Pigs disaster. The request was denied despite the fact that the draft is connected to no policy decision by CIA and related to events that occurred more than 50 years ago. Exemption 5 has also recently been invoked to flatly deny the public access to opinions by the Office of Legal Counsel. In recent years we have seen the government rely on these opinions to authorize a number of programs that go well-beyond the plain reading of the law. Secret interpretations of the law prevent the public from having fully informed debates about the government’s policy and erode the public’s trust in the executive branch and its decisions.

In terms of needed reforms to Exemption 5, we can draw two lessons from the above examples. One, Exemption 5 needs a public interest balancing test. If the government were not convinced that the requested documents would advance the public interest, a requester would still have the opportunity to ask a Court to independently weigh the government needs in invoking the privilege against the needs of the requester. Two, there needs to be a time limit. Currently, a President’s records are only protected from release for twelve years after he leaves office. We should not accord more secrecy to agency business than we accord the President of the United States.

The next critical issue relates to the Office of Government Information Services. The open government community strongly supports OGIS, and we appreciate this Committee’s leadership in creating the office. You will not be surprised, however, when I tell you OGIS continues to struggle to meet its dual roles as FOIA mediator and as the office charged with reviewing agency FOIA compliance and recommending changes to Congress and the President.

The first limitation faced by OGIS should be abundantly clear to this Committee thanks to Senator Grassley’s sharp questioning during last year’s FOIA oversight hearing. It should not take a threat by a Senator to drive down to the Office of Management and Budget to ensure that OGIS’s recommendations are delivered in a timely fashion. Giving OGIS direct reporting authority would allow the office to provide information more freely to you and the President about the problems OGIS consistently sees and how best to address these issues.

The second limitation is the age-old problem of resources. Right now the office consists of a staff of seven – seven people to deal with each agency’s FOIA offices and to help the hundreds of thousands of FOIA requesters. OGIS needs several more bodies, as well as new resources to help promote and support the office’s work. We believe that Congress should approve at least two new positions – a Director of Enforcement and a Director of Operations – to further strengthen OGIS’ ability to carry out its mission. The final limitation currently faced by OGIS that I will discuss today is its lack of authority to compel agencies to participate in the mediation process. Currently, OGIS and a requester that seeks OGIS’s assistance must rely on the good will of an agency involved in a dispute. For OGIS to serve all requesters who seek mediation services, Congress should require agencies to cooperate with OGIS and to provide information if requested.

OpenTheGovernment.org and our Partners are eager to work with you to craft a strong bill that makes FOIA work better for the public. In addition to the other issues discussed in my written testimony, I am submitting a longer list of possible reforms that the open government community would like to see enacted. We also think there are several good ideas the recently-passed House bill and included with my testimony is a letter signed by more than twenty-five organizations endorsing the bill and calling attention to particularly good provisions.

Thank you for the opportunity to speak about this critical issue, and I look forward to answering any of your questions.