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Ensuring Transparency Through the Freedom of Information Act (Foia)

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Ensuring Transparency Through the Freedom of Information Act (Foia) ENSURING TRANSPARENCY THROUGH THE FREEDOM OF INFORMATION ACT (FOIA) HEARING BEFORE THE COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM HOUSE OF REPRESENTATIVES ONE HUNDRED FOURTEENTH CONGRESS FIRST SESSION JUNE 2, 2015 Serial No. 114–80 Printed for the use of the Committee on Oversight and Government Reform ( Available via the World Wide Web: http://www.fdsys.gov http://www.house.gov/reform U.S. GOVERNMENT PUBLISHING OFFICE 22–315 PDF WASHINGTON : 2017 For sale by the Superintendent of Documents, U.S. Government Publishing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800 Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001 VerDate Sep 11 2014 09:59 Jan 09, 2017 Jkt 000000 PO 00000 Frm 00001 Fmt 5011 Sfmt 5011 F:\22315.TXT APRIL AKING-6430 with DISTILLER COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM JASON CHAFFETZ, Utah, Chairman JOHN L. MICA, Florida ELIJAH E. CUMMINGS, Maryland, Ranking MICHAEL R. TURNER, Ohio Minority Member JOHN J. DUNCAN, JR., Tennessee CAROLYN B. MALONEY, New York JIM JORDAN, Ohio ELEANOR HOLMES NORTON, District of TIM WALBERG, Michigan Columbia JUSTIN AMASH, Michigan WM. LACY CLAY, Missouri PAUL A. GOSAR, Arizona STEPHEN F. LYNCH, Massachusetts SCOTT DESJARLAIS, Tennessee JIM COOPER, Tennessee TREY GOWDY, South Carolina GERALD E. CONNOLLY, Virginia BLAKE FARENTHOLD, Texas MATT CARTWRIGHT, Pennsylvania CYNTHIA M. LUMMIS, Wyoming TAMMY DUCKWORTH, Illinois THOMAS MASSIE, Kentucky ROBIN L. KELLY, Illinois MARK MEADOWS, North Carolina BRENDA L. LAWRENCE, Michigan RON DESANTIS, Florida TED LIEU, California MICK MULVANEY, South Carolina BONNIE WATSON COLEMAN, New Jersey KEN BUCK, Colorado STACEY E. PLASKETT, Virgin Islands MARK WALKER, North Carolina MARK DESAULNIER, California ROD BLUM, Iowa BRENDAN F. BOYLE, Pennsylvania JODY B. HICE, Georgia PETER WELCH, Vermont STEVE RUSSELL, Oklahoma MICHELLE LUJAN GRISHAM, New Mexico EARL L. ‘‘BUDDY’’ CARTER, Georgia GLENN GROTHMAN, Wisconsin WILL HURD, Texas GARY J. PALMER, Alabama SEAN MCLAUGHLIN, Staff Director DAVID RAPALLO, Minority Staff Director KATY ROTHER, Counsel SHARON CASEY, Deputy Chief Clerk (II) VerDate Sep 11 2014 09:59 Jan 09, 2017 Jkt 000000 PO 00000 Frm 00002 Fmt 5904 Sfmt 5904 F:\22315.TXT APRIL AKING-6430 with DISTILLER C O N T E N T S Page Hearing held on June 2, 2015 ................................................................................. 1 WITNESSES Ms. Sharyl Attkisson, Investigative Reporter Oral Statement ................................................................................................. 6 Written Statement ............................................................................................ 8 Mr. Jason Leopold, Investigative Reporter, Vice News Oral Statement ................................................................................................. 10 Written Statement ............................................................................................ 12 Mr. David E. McCraw, Vice President and Assistant General Counsel, The New York Times Oral Statement ................................................................................................. 16 Written Statement ............................................................................................ 18 Ms. Leah Goodman, Investigative Reporter, Newsweek Oral Statement ................................................................................................. 20 Written Statement ............................................................................................ 23 Mr. Terry Anderson, Adjunct Professor, University of Florida Oral Statement ................................................................................................. 27 Written Statement ............................................................................................ 30 Mr. Tom Fitton, President, Judicial Watch Oral Statement ................................................................................................. 66 Written Statement ............................................................................................ 69 Ms. Cleta Mitchell, Partner, Foley & Lardner LLP Oral Statement ................................................................................................. 75 Written Statement ............................................................................................ 77 Mr. Nate Jones, Director of the Freedom of Information Act Project, National Security Archive Oral Statement ................................................................................................. 109 Written Statement ............................................................................................ 111 Ms. Lisette Garcia, FOIA Resource Center Oral Statement ................................................................................................. 121 Written Statement ............................................................................................ 123 Mr. Gabriel Rottman, Legislative Counsel/Policy Advisor, American Civil Lib- erties Union Oral Statement ................................................................................................. 131 Written Statement ............................................................................................ 133 Ms. Anne Weismann, Executive Director, Campaign for Accountability Oral Statement ................................................................................................. 143 Written Statement ............................................................................................ 145 APPENDIX Chaffetz Statement .................................................................................................. 168 2009–01–21 Presidential Documents White House Memo FOIA ........................ 172 2009–04–15 Craig-White House Memo re: Doc Requests ..................................... 174 1988–09–01 Markman DOJ MEMO re WH Records in Agency Files ................. 175 (III) VerDate Sep 11 2014 09:59 Jan 09, 2017 Jkt 000000 PO 00000 Frm 00003 Fmt 5904 Sfmt 5904 F:\22315.TXT APRIL AKING-6430 with DISTILLER VerDate Sep 11 2014 09:59 Jan 09, 2017 Jkt 000000 PO 00000 Frm 00004 Fmt 5904 Sfmt 5904 F:\22315.TXT APRIL AKING-6430 with DISTILLER ENSURING TRANSPARENCY THROUGH THE FREEDOM OF INFORMATION ACT Tuesday, June 2, 2015 HOUSE OF REPRESENTATIVES, COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM, WASHINGTON, D.C. The committee met, pursuant to call, at 2:10 p.m., in Room 2154, Rayburn House Office Building, Hon. Jason Chaffetz [chairman of the committee] presiding. Present: Representatives Chaffetz, Duncan, Jordan, Walberg, Amash, Gosar, Gowdy, Lummis, Meadows, DeSantis, Mulvaney, Blum, Hice, Russell, Carter, Grothman, Hurd, Palmer, Cummings, Norton, Clay, Lynch, Connolly, Duckworth, Lawrence, Lieu, Wat- son Coleman, Plaskett, DeSaulnier, Welch, and Lujan Grisham. Chairman CHAFFETZ. The Committee on Oversight and Govern- ment Reform will come to order. And, without objection, the chair is authorized to declare a recess at any time. I appreciate you all being here for our hearing, ‘‘Ensuring Trans- parency Through the Freedom of Information Act.’’ We have just completed votes on the floor, and I am sure we will have some members as they hustle back here to the hearing, but I wanted to get started. We have a very distinguished couple of panels. We appreciate those that are participating and sharing their perspectives with us. I would remind the committee that we are not only the Oversight Committee but we are also Oversight and Government Reform. The goal of these hearings is to come to a place where we can actually reform this process so that it works, no matter who is in the White House, no matter what administration is there, that we get this part of the equation right. My passion for this comes from the idea that government should be open and transparent. It is what separates the United States of America from everybody else. We are self-critical. We do take things and look back, and sometimes those things are a little bit embarrassing. But because it might be a little bit embarrassing is not enough to withhold information from the public and the public’s right to know. It is the heart of what we do as a com- mittee, it is what we are supposed to be doing as the United States Congress, and it is what we are supposed to be doing as a country. And nothing makes government more accountable than making its actions open and transparent to those that are paying the bills. The Freedom of Information Act, otherwise known as FOIA, gives the public a tool to gain insight into how their government func- (1) VerDate Sep 11 2014 09:59 Jan 09, 2017 Jkt 000000 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 F:\22315.TXT APRIL AKING-6430 with DISTILLER 2 tions—what it did well, what it didn’t do well, what it should have done, what it shouldn’t have done. And, clearly, in retrospect, look- ing back with 20/20 vision, you can go back with great clarity, but that is why it is important to do this and understand. A request for FOIA must simply be in writing and reasonably de- scribe the records being requested. That is it. That is the way, at least, it should be. But navigating the FOIA process is complicated and varies across government agencies. Something like 550,000 times in just the time since I have served in Congress, which is the same time that President Obama took office, 550,000 times FOIAs were rejected because there was some sort of exemption that took place. In responding to a FOIA request, each
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