On Tuesday June 2nd, the Committee on Oversight & Government Reform, led by its new chairman Congressman Jason Chaffetz, concluded 2 days of FOIA-related hearings. The House Committee on Oversight & Government Reform (HCOGR) stated the purpose of the hearing was “to examine the use of FOIA requests as a tool for government transparency and explore barriers to accessing public documents from the user’s perspective. The Committee will hear from witnesses that use FOIA in news reporting, academic research, and to conduct government oversight.” Monday’s government oversight committee hearing included two panels of witnesses representing journalists, academics, and 1st amendment rights advocates who spoke on their experiences with the FOIA process. Testimony came from the following list of distinguished witnesses:
- Sharyl Attkisson, Investigative Reporter
- Jason Leopold, Investigative Reporter, Vice News
- David E. McCraw, VP Assistant General Counsel, New York Times
- Leah Goodman, Investigative Reporter, Newsweek
- Terry Anderson, Adjunct Professor, University of Florida
- Tom Fitton, President, Judicial Watch
- Cleta Mitchell, Partner, Foley & Lardner LLP
- Nate Jones, Director of the Freedom of Information Act Project, National Security Archive
- Lisette Garcia, FOIA Resource Center
- Gabriel Rottman, Legislative Counsel/Policy Advisor, American Civil Liberties Union
- Anne Weismann, Executive Director, Campaign for Accountability
The recurring theme from witness testimony included two major complaints about the current FOIA system: delays in meeting the required response timeline and abuse of the B5 Exemption which allows the “[exemption of] those documents, and only those documents that are normally privileged in the civil discovery context.”
Testimony regarding delays in FOIA responsiveness was a recurring theme among the hearing’s witnesses. Many were talking about governments delay in FOIA response as not a matter of days, but on the magnitude of years. Reporter Sharyl Attkisson pointed to a FOIA request filed in 2003 which was finally responded to in 2013 – a full ten years too late to be used in the news story she was writing. Many of these delays can lead to lawsuits against the government agencies in question, which is both costly and timely for all parties involved.
Journalists at the hearing also cited government abuse of the B5 exemption as a major hindrance to FOIA process. Many claimed that when FOIA requests were fulfilled (sometimes the ones years past the 20 day response time limit), many of the documents received were redacted belong usefulness thanks to an over-zealous use of FOIA Exemption 5. There were claims that agencies used this exemption to withhold info where it was not warranted. These unnecessary redactions can also lead to costly court cases to get government records released to the public.
Anne Weismann, Executive Director of Campaign for Accountability and former DoJ FOIA supervisor, gave some perspective on the nature of Exemption 5 abuse. “Exemption 5 has become the catchall on which agencies rely to withhold virtually any records they fear may result in embarrassment or unwanted attention,” she said in her response to the committee. Weismann also stated that there has been a need to clean up the B5 FOIA law, but also said that these exemption abuses are an exception to the normal FOIA process and not the norm.
Wednesday June 3, 2015
The House Oversight Committee 2nd day hearing included testimony from the Director of the Office of Information Policy of the U.S. Department of Justice Melanie Pustay as well as from Chief FOIA officers from U.S State Department, Department of Homeland Security, Treasury Department, and Internal Revenue Service. The general message from these government officials was that there is a need for more FOIA technology, including eDiscovery software, to handle large doc requests and email correspondence. They also called for more resources to hire FOIA staff.
Nate Jones, Director of the Freedom of Information Act Project of the National Security Archive at George Washington University, claimed that one major barrier to the success of the FOIA process is “the inability of agencies to harness technology to improve the records management and FOIA processes, a problem that members of the Committee have long sought to improve.” Testimony at this week’s House Oversight Committee hearing pointed to the need for technology that could handle complex requests, voluminous requests, and requests that called on multiple document custodians as the causes behind FOIA response delays. A need for technology that can support records management and IT systems that are globally distributed such as at the State Department.
These challenges can be eliminated through automation solutions like AINS’ FOIAXpress and Advanced Document Review (ADR) which provide a complete FOIA solution by leveraging the best of eDiscovery and portal technology. AINS, as a leading FOIA vendor, brings leading edge FOIA tech to the government. Automated FOIA solutions when deployed provide a variety of capabilities that can speed FOIA processing and improve transparency. FOIAXpress ADR lets agencies address the email conundrum many testimonies touched upon wherein FOIA responses often did not include email correspondence. AINS’ document review software can be used to de-duplicate emails and review documents from multiple document custodians at once. These FOIA software solutions are created directly in support of open government and transparency. The FOIAXpress solution also offers the ability to produce FOIA annual reports as required by DoJ OIP as well as Chief FOIA Officer’s reports which tell the narrative in terms of what each agency is doing to improve FOIA administration.
In all, this week’s FOIA hearings called for improved FOIA response times, better employee training, and effective technology to manage the FOIA process.