▶ 0:15:54Chair Grassley: Morning, everybody. We are here today discussing the freedom of information act. Very important issue. The statute is a critical tool that americans used to keep our government transparent and accountable. Foia was recommended for passage by the senate judiciary committee october 4, 1965, and it became law 1966.
▶ 0:16:24Chair Grassley: This watershed legislation signaled a seachange. No longer would government information be assumed to be out of reach of the average american . Instead, the assumption became that americans would have access to their government and its working.
▶ 0:16:54Chair Grassley: The language from judiciary committee report october 1965, "the committee feels that this bill as amended would establish a much needed policy of disclosure while balancing the necessary interests of confidentiality. I government by secrecy benefits no one. It injures the people it seeks to serve. It injures its own integrity and operation.
▶ 0:17:25Chair Grassley: It breeds mistrust, dampens the fervor of its citizens, and mocks their loyalty." six years later, -- 60 years later, these words still ring true, and 60 years later, this committee still continues to be a champion and caretaker of this law, and that is why we are here today. The federal government has often been resistant to required disclosures.
▶ 0:17:54Chair Grassley: Foia's been attacked, circumvented, ignored, bypassed, and skirted. Foia's also been used as a shield against congressional oversight, specifically my oversight. I can't tell you how many times I've requested records from the executive branch under both republicans and democrats and in turn I get records with foia reactions.
▶ 0:18:24Chair Grassley: --foia redactions. Congress didn't create foia to be used against the people, it was graded to serve. It wasn't created to allow the federal government to hide information from congress and the american people. We have accordingly come back again and again to end the workarounds and loopholes bureaucrats used to avoid disclosure.
▶ 0:18:48Chair Grassley: This committee also keeps the law up-to-date in our rapidly changing world. When foia was signed into law in 1966, there was no internet, no electronic records, not even fax machines. In our digital era, the government must adapt to serve its citizens, especially when it comes to transparency.
▶ 0:19:15Chair Grassley: This is especially important given the volumes of requests we are starting to see. Let's consider where we are today. Foia's requests reached a record high in 2024, with more than 1.5 million requests. This is a 25% increase from the previous fiscal year.
▶ 0:19:39Chair Grassley: The number of requests processed by agencies almost all reached a record high, just under 1.5 million. This represents a 34% increase over previous years. Foia is therefore clearly had sewald that the american people --foia is therefore clearly a tool that the american people value menus. Problems remain. Backlogs continue to be a problem.
▶ 0:20:11Chair Grassley: The time it takes for agencies to fulfill requests varies greatly, from less than a day in some cases to over seven years and others. Access continues to be a problem . Too often the only remedy for foia denial is for the requester to file a lawsuit. This option is obviously expensive for individuals and even nonprofits.
▶ 0:20:41Chair Grassley: The quality of records received also continues to be a problem. We have this situation of a document full of blacked out lines. That is not a meaningful disclosure. And it happens too often. This administration must turn a new leaf and be more transparent than other administrations and so far, I commended their effort to this end.
▶ 0:21:14Chair Grassley: Many say sunshine is the best disinfectant. Foia is a vital law that shines bright sunlight on those who govern our nation and steward its resources. That is why we continue to amend and improve foia. That is why it is worth our time and oversight today. Now to senator durbin, and that I will introduce our guests.
▶ 0:21:37Sen. Durbin: Thanks, chairman grassley, for holding the hearing on foia. Compliance with foia has played agencies for years. They struggle to meet statutory deadlines and grapple with significant backlogs that have been driven by staffing shortages and lack of resources, complex foia requests come and outdated technology. This committee has approached foia in a bipartisan fashion and should continue to.
▶ 0:22:07Sen. Durbin: Taking the opportunities to strengthen the law. But this hearing comes at a time when many americans are angry and fearful. They are fighting for their jobs as the trump administration fighters thousands and thousands of government workers. They are alarmed by the state of their 401(k)s as the stock market threatens to plummet to historic lows with the president's new tariff package.
▶ 0:22:29Sen. Durbin: Many are fearful for their friends, family, and neighbors, as mast immigration agents grab families and students who pose no threat on the street and threw them into unmarked vehicles. In america there just in america they are afraid about affordable health care is republicans debate cuts in the budget for programs like medicare, medicaid, and social security the american people don't understand why the trump administration is arbitrarily erasing decades of
▶ 0:23:00Sen. Durbin: Knowledge, science, and data, while shutting down entire government agencies. In this moment of chaos and uncertainty, robust transparency laws like foia, which demand our government answer tough questions, are essential. Foia was established to ensure we have a window into the inner workings of federal agencies and a tool for rooting out waste, fraud, and abuse.
▶ 0:23:24Sen. Durbin: Federal agencies work for the american people and the american people deserve to know how their tax dollars are being spent. Under foia any person can demand answers. No matter how large or powerful and agency, when a person properly requests records through foia, the federal government must comply. Because foia exists come agencies are mindful of their responsibilities to the public.
▶ 0:23:52Sen. Durbin: Government officials know through foia information about their activities and decisions will not remain hidden forever. Some officials within the trump administration do not seem to care about america's right to know. Elon musk's so-called department of government efficiency, or do ge, has taken the position that he is not subjected to foia.
▶ 0:24:12Sen. Durbin: Musk makes bold statements that "all government information should be public," yet doge is far from transparent. Its website is barely usable and its false claims about how much money does savings have repeatedly needed corrections.
▶ 0:24:33Sen. Durbin: If doge does not comply with foia, it will be hard if not impossible to get the full story about trump's efforts to access the personal data of americans without their permission, redirect billions of dollars of congressional he authorized funds, and fire thousands of hard-working public servants.
▶ 0:24:51Sen. Durbin: Yesterday with the lady who was the pardon attorney in just a few weeks ago, her name is hoyer, at one time she went to a hearing and was told there was a message waiting for her in the hallway. She had found she had been terminated. Allegations made about her conduct have not been backed up with any evidence.
▶ 0:25:13Sen. Durbin: She has tried to foia the documents she created and she does exist which exonerate her for activity and prove that the statement made by the government against firing her were false. She cannot foia her own documents from the department of justice. Is this law working for her? Why, of course not.
▶ 0:25:37Sen. Durbin: The trump administration's weakening the ability of agencies to respond to requests for information. The office of personnel management has fired employees at its foia office. A career official heading up the department of justice information policy, charged with ensuring foia compliance, was fired. Hhs secretary kennedy just fired everyone responsible for handling requests at the cdc and food and drug administration.
▶ 0:26:07Sen. Durbin: These efforts are toxic to our democracy, because of functional, healthy democracy requires disclosure and transparency. The senate judiciary committee should resist this on a bipartisan basis. I think the witnesses for appearing today and senator grassley for chairing this important hearing. Thank you, chairman grassley. We are joined by margaret kwoka, professor of law at the ohio state university college of law.
▶ 0:26:43Sen. Durbin: She is the author of a book called "saving the freedom of information act" and is an expert on regulations. Thank you for being here.
▶ 0:26:51Chair Grassley: Our first witness is Dr. daniel epstein, an associate professor of law at st. Thomas university, miami, and vice president of america first legal. Dr. epstein has litigated foia matters for over a decade and his scholarship includes a focus on government transparency.
▶ 0:27:12Chair Grassley: His work has appeared in numerous publications and he is the author of the book entitled "the investigative state - regulatory oversight in the united states." we have Mr. mike howell, president of the oversight project. That's the name of it, the oversight project. He previously worked at the heritage foundation and the department of homeland security.
▶ 0:27:41Chair Grassley: Prior to the department of homeland security, conducted oversight investigations in both the house and senate. Would you folks rise so I can read the oath? Do you swear or affirm that the testimony you are about to give before this committee be the truth, the whole truth, and nothing but the truth, so help you god? They all said yes.
▶ 0:28:07Chair Grassley: We'll let -- we will start with Dr. epstein and then go with the next two in that order.
▶ 0:28:16Mr. Epstein: Thank you. Chairman grassley, ranking member durbin, members of the committee, thank you for the opportunity to testify on the freedom of information act, foia . The foia statute is an amendment to the original public records provisions of the administrative procedure act. As such it is part of a series of checks to the growing federal bureaucracy.
▶ 0:28:41Mr. Epstein: As the supreme court has explained, the basic purpose of foia is to ensure an informed citizenry vital to the functioning of a democratic society needed to check against corruption and to hold the governors accountable to the government. Transparency advocates often quote justice brandeis's dictum that sunlight is said to be the best disinfectant. But less quoted is brandeis's dictum that the electorate is the best policemen.
▶ 0:29:15Mr. Epstein: Modernize government is the modernized transparency. I will focus my testimony on three critical areas where reform is needed. First, per at active disclosure agreements under foia, and the effectiveness of the initiative process and reducing litigation costs. Proactive disclosure under the freedom of information act obligates agencies to publicize information notwithstanding the existence of a particular request.
▶ 0:29:44Mr. Epstein: Or when records are frequently requested. It is unclear, however, how to remedy agency failures to proactively disclosed. Does foia provide that remedy, or does the administrative procedure act? I believe administrative policy can go a long way in this area. For example, issued in 2019, executive order 13 89 two mandated public disclosure of a whole host of agency decisions.
▶ 0:30:13Mr. Epstein: It was rescinded on january 20, 2021, but would strongly serve the public interest if codified by congress. Agencies generally comply with proactive disclosure requirements including using searchable electronic reading rooms to post frequently requested records. But even greater transparency could be achieved by using technology to allow requesters to search for specific keywords within a set of documents, as relevant documents may be in the thousands if not hundreds of thousands of pages.
▶ 0:30:45Mr. Epstein: Pattern or practice claims for pattern or practice claim under foia is established when a plaintiff demonstrates the agency defendant has consistently failed to comply with foia's requirements, typically in the form of chronic delays and backlogs in responding to requests.
▶ 0:31:07Mr. Epstein: Pattern or practice claims alleging systematic delays or denials are difficult to win it violations of statutory deadlines can inform a pattern or practice cause of action, but past delays alone are insufficient unless they demonstrate a likelihood of future harm. In a world of increasing backlog with foia processing, agencies may strategically delay complex or politically salient requests to avoid political risk with disclosing documents.
▶ 0:31:35Mr. Epstein: It is hard to show that such agency delay was the result of an intention to unreasonably delay processing, first as a recognition that the foia workload takes time to process. Congress should clarify that when agencies engage in pattern of practice of withholding documents or delaying processing, they are acting in an arbitrary and capricious manner.
▶ 0:31:57Mr. Epstein: In addition to identifying intentional delays arbitrary and capricious, congress should clarify that any such practice is itself a sort of rule of general applicability that must be publicly noticed in the federal register. Agency noncompliance with public notice requirements should entail some form of sanction or penalty on the agency. Lastly, administrative fixes and costs.
▶ 0:32:25Mr. Epstein: Litigation remains a costly that freak fr costly yet frequently necessary tool for foia requesters. According to the department of justice's annual foia litigation reports, the number of foia lawsuits has steadily increased over the decade, largely due to agency delay or nonresponsiveness. Congress sought to respond to these problems by writing a plaintiff with attorney's fees whenever the plaintiff substantially prevailed in a case.
▶ 0:32:52Mr. Epstein: Yet such determinations give courts discretion to determine whether a plaintiff, typically in a summary judgment posture, won enough claims to have substantially prevailed. Due to such uncertainty, small organizations or individuals filing foia requests often in their process at the ministers of stage.
▶ 0:33:10Mr. Epstein: Congress should clarify the standard for substantially prevailing to mean whenever an agency's judicially compelled to take some action it refused to do during the administration of process.--administrative process. Congress has established the office of government information services in the national archives. This is a key resource for congress to directeds attention --direct its attention to, allowing it to do more than just notify agencies of wrongdoing.
▶ 0:33:42Mr. Epstein: Thank you.
▶ 0:33:45Ms. Kwoka: Chairman grassley, ranking member durbin, members of the committee, thank you for the opportunity to testify today. My name is margaret kwoka and I'm on the faculty of the ohio state university's morris college of law. I would like to thank this committee for its continued bipartisan tutorship in the freedom of information act and overseeing its implementation. Foia is essential to democracy.
▶ 0:34:10Ms. Kwoka: The public must know what the government is doing to hold elected officials accountable, engage with government entities fairly, and advocate for themselves and their communities. Nowhere is foia's importance more evident than in its used by the news media which acts as an intermediary capable of disseminating information obtained from government to the public at large.
▶ 0:34:30Ms. Kwoka: Journalists make particularly good use of foia in uncovering government waste, abuse, and misconduct, and understanding what kinds of outside influences impact government decision-making. Even a single request by the news media can have an outsized impact in improving public health and safety or helping citizens be fully informed in their exercise of democratic rights at the ballot box. Still, foia has suffered from long-standing challenges.
▶ 0:34:56Ms. Kwoka: Despite the dedicated work of hundreds of foia professionals across the government, foia requesters still face extreme delays in receiving responses from agencies for the moreover, recent reductions in the federal workforce have impacted foia offices, a development that is particularly concerning given that those offices were under resourced and unable to keep up with the pace of requests. Foia has suffered from-agencies over withholding records under the laws exemptions.
▶ 0:35:27Ms. Kwoka: They routinely failed to publish records foia requires to be made affirmatively available. There is reason to worry that the systemic challenges are becoming more serious. I believe there are clear opportunities for congress to amend foia to address these long-standing and ever-growing challenges. To begin, congress could strengthen foia's affirmative disclosure provisions, known as reading room requirements.
▶ 0:35:49Ms. Kwoka: It holds the promise to ease access to the very government documents that are of the most interesting to the public, all while creating efficiencies for agencies that no longer have to respond to repetitive individual requests one at a time for those types of records. While the frequently requested records provision of foia last updated in 2016 was an important advancement, it has not gone far enough. At many agencies requesters seek the same types of documents by the hundreds or even thousands.
▶ 0:36:19Ms. Kwoka: Even if each individual record requested is distinct, the category of record is the same, revealing opportunities for agencies to affirmatively publish the whole category and obviate the need for individual requests. Congress should require agencies to publish standardized versions of their foia logs so the public can see what records are most often requested and then mandate that agencies identify the top categories of most frequently requested records in their annual foia reports.
▶ 0:36:48Ms. Kwoka: They could then be required to detail how those records would be made affirmatively available going forward or justify why affirmative publication is not feasible. Measures such as these which would allow for agencies to design their own customized affirmative disclosure programs have the potential to radically reduce the number of requests the public must make, thereby improving both transparency and agency efficiency.
▶ 0:37:12Ms. Kwoka: To ensure that those new or any existing affirmative disclosure requirements are effective, congress should amend the statute to make clear that district courts have the power to enforce foia's, provisions including the reading room provision. Conflict in the courts on this issue threaten to undermine the promise of affirmative disclosure. Apart from affirmative disclosure requirements, congress could strengthen the presumption of disclosure agencies should exercise in the application of exceptions.
▶ 0:37:40Ms. Kwoka: In the 2016 amendments, recognizing unnecessary secrecy remains rampant and agency claims of exemption, congress enacted the foreseeable harm requirement that exemptions not be claimed because they could technically apply, but also only when the agency can articulate a foreseeable harm that will result from release. While this was a meaningful step in the right direction, the analysis has proven incomplete, because what is missing is the weighing of any potential harm against the public interest in disclosure.
▶ 0:38:09Ms. Kwoka: The result is that even a minimal harm articulated by the agency will justify secrecy, even in the face of overwhelming public interest -- for example, in public health or safety. Congress should amend foia to include a public interest balancing test to recognize foia 's goal of maximum disclosure.
▶ 0:38:28Ms. Kwoka: Beyond these areas, I detail other recommendations in my written testimony including strengthening the office of government information services, creating a universal foia portal, and improving technological solutions to search and processing. Thank you for your time, and I look forward to your questions.
▶ 0:38:46Mr. Howell: Chairman grassley, ranking member durbin, members of the committee, thank you for the opportunity to testify about our experiences as frequent foia requesters under the law. My name is mike howell, and I'm the president of the oversight project. In the age of efficient e-discovery, automation, and technological advancements, the american people's ability to obtain records from the government under foia should be easy, but it is not.
▶ 0:39:16Mr. Howell: As a result, the rights afforded to the american people under foia are largely enjoyed solely by transparency organizations, journalists, and academic researchers. The everyday american by and large has been cut out. We launched the oversight project in 2022 because we recognize that congressional oversight of the executive branch has become ineffective.
▶ 0:39:37Mr. Howell: The erosion of congress's ability to procure documents from the executive branch, the hold wrongdoers accountable, and to provide transparency to the american people about how their government works, has left a void. We are filling that void. In our short existence we have filed over 100,000 foia requests and sued the federal government almost 100 times. Through our work we have procured over one million pages of government documents on over 350 topics.
▶ 0:40:06Mr. Howell: We've recently launched our document repository that allows the public to search this huge database. Through foia requests and litigation's we have been able to successfully obtain documents that reveal important information to the american people. Our cases animated some of the most controversial scandals of the biden administration. The following are examples of our work.
▶ 0:40:28Mr. Howell: We filed multiple lawsuits surrounding the department of homeland security's response to allegations that border patrol agents whipped haitian illegal aliens and 2021. Our work proved they knew it was a false narrative before you push it from the white house podium. He was impeached in part for that. We sued whipping records on the U.S.
▶ 0:40:51Mr. Howell: Marshals service on the statute that is supposed to protect supreme court judges from threats outside their homes . This was in the wake of intimidation tactics after the dobbs leak. Additionally we sued the fbi and justice department on multiple topics concerning the weaponization of law enforcement for f we sued U.S. attorney david weiss for his lack of independence in conducting the hunter biden investigation prior to his appointment as special counsel.
▶ 0:41:20Mr. Howell: We procure documents from the fbi showing that agents that kneeled in solidarity with black lives matter rioters were later promoted. Additionally, we exposed the partisan application of president biden's executive order which mobilized the federal government to support voter registration. Our work was cited in multiple lawsuits by state ag's and three house committee investigations.
▶ 0:41:47Mr. Howell: Along with the traditional conglomerate of media entities, we have sued the department of justice for the audio recording of president biden's interview with special counsel hur. As you recall, special counsel hur decline prosecuting president biden for mishandling classified materials because he thought that a jury would see president biden as a well-meaning elderly man with a poor memory.
▶ 0:42:14Mr. Howell: In addition, we have undertaken many similar investigations related to president biden's lack of mental capacity. Recently we released an investigation that discovered that the biden white house made prolific use of an auto pen device design pardons and other presidential documents. Given president biden's lack of mental capacity and proof that he himself was not signing the documents, president trump has declined those pardons to be null and void. This applies to the last minute pardons of the january 6 committee.
▶ 0:42:44Mr. Howell: Senator schiff has stepped up for this replied to his pardon as well. These are just a few examples of the important foia and other important transparency work our organization conducts. Now, yes, we have been criticized by left wing media for the volume of foia requests we have sent, but we send that many requests because we have to. Agencies frequently deny or significantly delay requests that seek large of items of records that are overly complex.
▶ 0:43:12Mr. Howell: So we send a lot of targeted requests with specific date ranges from etc. Because that is what we have to do. Congress can take steps to make foia more accessible to the everyday american. A lot of my fellow witnesses have pointed out specific steps, and I agree with them in full. The statute needs updating and it should be accessible to the everyday american and not just professional transparency organizations and journalists.
▶ 0:43:39Mr. Howell: With that, I thank you all for the invitation to testify and I look forward to answering any questions.
▶ 0:43:43Chair Grassley: Thanks to the three of you for your work and time you put in for this testimony and answering our questions. We will have five-minute rounds. I will start with Dr. epstein and refer to the office of information policy at doj and the archives office of government information services.
▶ 0:44:06Chair Grassley: What steps could be these offices take to improve the requester experience and foia administration request the government? Are there any statutory reforms that want to be made?
▶ 0:44:20Mr. Epstein: Thank you, Mr. chairman. So I have had experience with both organizations, both as the executive director of the transparency group and during my time in the executive branch.
▶ 0:44:35Mr. Epstein: The national archives and records administration's office of government information services, my experience is when requesters look to avoid litigation, they often look to resolve the disputes can effectively to mediate those disputes.
▶ 0:44:56Mr. Epstein: My experience is that ogis often will notify the government agency that there is a requester that is looking for a solution, but ultimately takes the position that it is in the government agency's discretion whether to use the ogis process.
▶ 0:45:16Mr. Epstein: One legislative reform is to say that whether you go as far as saying that the agency must mediate certainly to exercise good faith in mediating the dispute, that of course reduced the amount of litigation. In terms of the office of information policy at the department of justice, one of the very effective things the office does is it provides an enormous amount of analysis on new case law developing for the courts.
▶ 0:45:44Mr. Epstein: As many of you know, as recently as when I was in the administration, about 20% of the workload of the U.S. district court for the district of columbia is foia cases. Being able to get that guidance the office of information policy is useful force of the thing I would say about the office of information policy is it is often misunderstood that it is simply just an entity within the department of justice.
▶ 0:46:11Mr. Epstein: The office of information policy is supposed to set foia policy for the entire executive branch. I often think that it is a resource were agencies often consult their own chief foia offices without organizing that the office of information policy has such experience that it can well advise the agencies for the anything congress to make -- anything congress can do to make the office more robust would be very helpful.
▶ 0:46:42Chair Grassley: Mr. howell, march -- last year, the U.S. government accountability office released a report showing that governmentwide the request backlog has continued to climb over the past decade. Long response times and backlogs are counted to the spirit of the law.
▶ 0:47:07Chair Grassley: In your experience, what impact have agency backlogs had on your use of foia?
▶ 0:47:16Mr. Howell: The general practice of the federal government to turn what should be an administrative process into a judicial one where you have to sue to get the information that you seek has made it so only the very organized and resourced individuals can go and sue to information. The net result is the american people are in the dark about a lot of their activity related to how the government is operating.
▶ 0:47:43Mr. Howell: That is why we have had to scale up not only our foia output to 100,000, but 100 lawsuits. I believe the proof is in the putting with the list of documents and in stories we have broken as a result of that. It shouldn't work that way. The federal government should adapt to the year 2025 and lead into technological advancements using potentially ai and automation to get these document out more quickly. It shouldn't be such a human-intensive process.
▶ 0:48:11Chair Grassley: He just brought up ai. Dr. epstein, from the past several years the chief of foia officers counsel has considered the impact of artificial intelligence. The requester community has debated the promises and perils of using ai for some interview, how could ai improve the -- promises and perils of using ai.
▶ 0:48:40Chair Grassley: In your view, how could ai improve the process?
▶ 0:48:44Mr. Epstein: It could be directly relevant to reading rooms. Often you get reading rooms -- I think of the fbi felt, where the ability to fight -- fbi vault, for the ability to find useful documents is difficult. It is not using the best document discovery software. There is at least two things. One is because so much -- virtually all agency records are now on the cloud.
▶ 0:49:11Mr. Epstein: Using ai as a tool for agencies to search for records would substantially reduce processing times. You can -- ai is effectively a predictive model that can locate -- if a number of search terms are in this location, there is likely going to be search terms in similar locations, or at least relevant search terms. The other thing is that in contemporary times a lot of transparency organizations are protech.
▶ 0:49:42Mr. Epstein: There's nothing that says you cannot have an api attached to government reading rooms that allows foia requesters to efficiently download documents and then upload them into their own gemological -- using ai in the federal government for transparency review.
▶ 0:49:59Chair Grassley: Senator durbin.
▶ 0:50:01Sen. Durbin: Thank you, chairman grassley. One could argue that the most ambitious and energetic and active agency of government is not an agency of government. Doge, department of government efficiency, which I don't because part of our cabinet.
▶ 0:50:20Sen. Durbin: But I believe the courts have concluded that despite their purchase stations to the contrary -- their proteste ations to the contrary, doge is required to comply with foia, at least under the status we currently look at. I worry about where this is headed even agency within the power to eliminate federal agencies is not subject to foia. What is motivating these people?
▶ 0:50:51Sen. Durbin: What activities are they engaged in? What disclosures should they make to the american public? Apparently them to believe there is anything they should disclose to the american public. Professor kwoka, what is your opinion?
▶ 0:51:02Ms. Kwoka: Thank you, senator durbin. As you noted, the question about whether doge is subjective foia is currently in the courts. It is a long-standing doctrine under foia that agencies that exercise their own independent authorities under the government is subject to foia, whereas Mr.
▶ 0:51:27Ms. Kwoka: Himself is not subject to foia, and instead subject to the presidential records act. I have no reason to believe that the courts are not perfectly capable of applying that test faithfully as they have in the past. The preliminary ruling you refer to was preliminary but indicates that the district court that has the case that spurred this along does view foia does view f doge is likely to be subject to foia's requirements.
▶ 0:51:55Ms. Kwoka: It looks like that case may be moving to a discovery phase, which will give us more information about what doge is doing and its role in order for the courts to make that determination. At this point I see no reason to believe that the courts are not capable of making that determination. As to why an agency, government entity would prefer to exempt itself from transparency, over the history of governments it has been shown that transparency is uncomfortable and that there are lots of reasons why
▶ 0:52:26Ms. Kwoka: Government entities try to avoid it. But I think it is important to remember that transparency with women's serve two functions dished transparency requirements are two functions. One is to let the public know what the government is doing and the other is to deter that abusive power and misconduct. When government officials know that what they are doing will come to light, they are less likely to act improperly. I think the faithful application of foia in this case like every other case is extremely important.
▶ 0:52:54Sen. Durbin: And of course there is another way to foil foia, and that would be what is happening at the department of health and human services with the newly minted secretary robert kennedy, just fired personnel charged with handling foia requests at the cdc and food and drug administration.
▶ 0:53:14Sen. Durbin: He did this after stating, "public health agencies should be transparent, and if we want americans to restore trust and public health agencies, we need transparency." reportedly foia staff at numerous other agencies have also been five. -- fired. What is the practical impact when the foia agency in the agency is virtually empty when they opened the door of the office? Dr. epstein?
▶ 0:53:42Mr. Epstein: Thank you, senator. While, I think one-- well, I think one thing is -- I don't know the specifics of those firings, but certainly those circumstances should increase the obligation to make proactive disclosures.
▶ 0:53:57Mr. Epstein: In my own experience one of the things that was most surprising to me both as a transparency advocate and in the executive branch is the number of agencies that use outside consultants or contractors for the purpose of managing their cloud and doing searches for the purpose of disclosure.
▶ 0:54:19Mr. Epstein: So it would seem to me that if you are removing staff and are still bound by compliance requirements, you are going to have to find some ability to conduct searches and productions of documents. That just may mean relying on contractors versus employees.
▶ 0:54:36Sen. Durbin: Unless the administration happens to believe that concealing this information is important enough to defy the law, correct?
▶ 0:54:46Mr. Epstein: You know, I don't know the specifics of that, but I can say in my own experience the amount of foia litigation and the processing requirements are a heavy burden for the agencies. And I worked in the executive branch for close to four years. I think every administration has the good-faith goal of complying with foia.
▶ 0:55:15Mr. Epstein: Often it is not the top priority for the white house. It is generally managed by career civil servants. But there certainly are challenges with fully responding to these requests. They are massive and they take time.
▶ 0:55:29Sen. Durbin: Thank you.
▶ 0:55:32Chair Grassley: I'm going to offer -- [indiscernible] from hhs this explanation we got from them about the department -- the department of health and human services has stated that its previous foia offices throughout the department were siloed and didn't communicate with one another which resulted in inefficient process.
▶ 0:56:03Chair Grassley: We look forward to a streamlined foia offices that can reduce backlogs and better provide transparency. On my side we have this order coming in. Kennedy, moody, and cornyn, and now the senator from missouri, so we will go to senator kennedy.
▶ 0:56:36Sen. Kennedy: [inaudible] let me start over, my mic was off. Thank you all for being here. I listened to you with great interest. Professor, do you believe that people respond to incentives?
▶ 0:56:58Ms. Kwoka: Thank you, senator. I do believe people respond to incentives.
▶ 0:57:02Sen. Kennedy: Do you believe that what you allow is what will continue?
▶ 0:57:10Ms. Kwoka: I suppose I do?
▶ 0:57:13Sen. Kennedy: I listened to all of you talk about enhancing affirmative disclosure requirements. I listened to you talk about consultants. I listened to you talk about the need for public interest balancing test.
▶ 0:57:46Sen. Kennedy: But those can be ignored just as easily as every other part of the statute. Why don't you just create personal liability for the person responsible for turning over the documents?
▶ 0:57:57Ms. Kwoka: Certainly, senator. There are systems, other jurisdictions around the world that you have personal penalties for government --
▶ 0:58:06Sen. Kennedy: Do you recommend it for us?
▶ 0:58:09Ms. Kwoka: I don't think we are necessarily at the point where we have to take such a step and change the incentives --
▶ 0:58:14Sen. Kennedy: Why not? All administrations stall and re install in turning over documents -- restall in turning over documents to the american people. It's not a democrat thing or republican thing. It's an executive branch think g.
▶ 0:58:36Ms. Kwoka: It absolutely is --
▶ 0:58:38Sen. Kennedy: So why don't we hold people responsible? I'm not saying not affording them due process. You may want to require bad faith with the reasonable, not impossible definition of bad faith. If you want to solve this problem, why don't you just create personal liability?
▶ 0:58:58Mr. Howell: I think that's a terrific idea. Right now the mechanisms is basically attorneys fees, and those are rarely given out. The government is never forced --
▶ 0:59:08Sen. Kennedy: The employees don't care if the government gets hit with attorneys fees, do they?
▶ 0:59:14Mr. Howell: That's
▶ 0:59:18Mr. Howell: Th correct, and that is why the department of justice is willing to tolerate us suing them 100 times because we pay for their lawyers.
▶ 0:59:23Sen. Kennedy: We can write and rewrite statutes all we want to. But it is clear that people in the government are not responding to freedom of information act requests, in bad faith. Sometimes they need more time. I'm talking about bad faith. That's clear. And it happens on both sides.
▶ 0:59:47Sen. Kennedy: So instead of just rewriting new laws and new rules that they are going to ignore, why don't you just hold. -- why don't you just hold people personally responsible?
▶ 1:00:03Mr. Epstein: I actually fully agree, and I would point out there is a mechanism in the foia statute currently where if it turns out that there is evidence of an agency or an agency employee intentionally withholding documents without a reasonable basis, a judge could in answering that order make that finding.
▶ 1:00:23Sen. Kennedy: And when is the last time that happened?
▶ 1:00:26Mr. Epstein: Almost never.
▶ 1:00:28Sen. Kennedy: Hasn't happened in the history of ever, has it? No. And until congress makes it very clear that we are serious about this, we are going to be equal opportunity pit bulls here is an say regardless of who is running the executive branch, you have an affirmative obligation to turn over documents, and if you don't do it, you will be personally liable. That's going to work.
▶ 1:00:58Sen. Kennedy: Isn't it?
▶ 1:01:00Mr. Epstein: Well, I would hope so. Of course as you know is a former law professor, there are issues with the executive branch claiming immunity --
▶ 1:01:09Sen. Kennedy: I'm not saying deny them due process. I'm not saying an ordinary negligence standard. I am saying that if some person is being an obstructionist, and you can prove it, they ought to be held personally liable. We wouldn't have to do it for long.
▶ 1:01:35Chair Grassley: Senator whitehouse.
▶ 1:01:38Sen. Kennedy: I still have nine seconds left.
▶ 1:01:41Chair Grassley: Proceed.
▶ 1:01:43Sen. Kennedy: No, I yield back. But I do want to say, professor white house has some interesting thoughts about enforcing orders that he and I have talked about, so I'm going to listen to him carefully.
▶ 1:02:01Sen. Whitehouse: Senator kennedy has predicted my line of questioning. I know we are here to talk about foia, but at least in theory, congressional oversight, the constitutional principle of congressional oversight, it allow us in this body -- should allow us in this body access to executive branch records ideally better than foia.
▶ 1:02:32Sen. Whitehouse: Because foia is open to the world. We have particular responsibilities in congress to engage in executive oversight. And yet we have seen situations in which requests for information under our congressional oversight responsibilities are responded to slower than foia requests.
▶ 1:03:00Sen. Whitehouse: And you know, there is always an instant cure to protect the administration in power when you are a part of that party. As we play that partisan game back and forth, what happens is the executive continually encroaches, encroaches, encroaches, until they have our congressional oversight power down to essentially nil.
▶ 1:03:28Sen. Whitehouse: In theory, the reagan memo controls this. In the reagan memo has a number of principles about congressional oversight. The first is that the president is the assert executive privilege to block congressional oversight. Otherwise it is open season for us to look. Our boundary is executive privilege.
▶ 1:03:58Sen. Whitehouse: One of the constraints on misguided, false, or self- protective positions of executive privilege is the president has to asserted. Some yoho five levels down is blowing off congressional requests because they screwed up somewhere and don't want us to know about it, that will come up to the white house as the request for executive privilege comes up and somebody will say, what, you want to make the
▶ 1:04:31Sen. Whitehouse: President assert executive privilege because you screwed up? That is not a defense of executive privilege. If there is a screwup, even if there is executive privilege we are entitled to, look into it. In theory depends and it is supposed U.S. of executive privilege. When was the last time --in theory a president is supposed to assert executive privilege. We are getting these non-assertion assertions from anybody who can type executive privilege into their computer no matter what position they hold in the executive branch.
▶ 1:04:59Sen. Whitehouse: That is wrong, and consistent our response abilities of oversight, and inconsistent with the reagan memo they purport to be enforcing. It also requires that the department of justice take intermediary role between the objecting department and congress and try to sort through to an agreement. Accommodation is the way the words work.
▶ 1:05:28Sen. Whitehouse: But the department of justice and its worst component, the office of legal counsel, are setting up guidelines that basically destroy congressional oversight. So that there is really no way to go forward through that process because doj is no longer a fair interlocutor between executive agencies and congress.
▶ 1:05:56Sen. Whitehouse: It would be great if they had not blown up that role for themselves, because we'd all be better. But when they blew up that role for themselves, we are left to try to find other means of getting our oversight effectuated because we can no longer trust doj. It will go whichever way the administration sends it and set basic parameters that are highly toxic to proper congressional oversight.
▶ 1:06:26Sen. Whitehouse: So I love all this conversation about foia. I have had to do foia requests, because congressional oversight has become so jammed up, because the reagan memo has become so constantly overlooked. And I'm hoping -- my things to senator kennedy for his attention to all of these issues -- this ought to be a bipartisan thing.
▶ 1:06:53Sen. Whitehouse: This is not right versus left, this is not democrat versus republican. This is executive versus legislative, and executive is thrashing us. And I'll just close with the observation that if you want to improve foia, the hhs secretary gutting foia offices at cdc, fda, and nih, trump firing doj's foia office had, trump administration terminating the entire foia staff at opm, and
▶ 1:07:25Sen. Whitehouse: Usaid having no foia capability because it is basically in the process of destruction, is highly conducive to improving transparency and access to american citizens to government information through foia. >> thank you.
▶ 1:07:48Sen. Whitehouse: It's astounding to me, and almost aghast that we are hearing brought up time and time again, senator from rhode island, senator from illinois, talking about filings talking about filfirings of peoe handling foia, especially those in the last administration, when that was undoubtedly the greatest government gas lighting in the history of our nation on some pretty catastrophic cover-ups. Specifically let's start with the covid pandemic.
▶ 1:08:17Sen. Whitehouse: The state of florida had to do a grand jury investigation to determine how much the people had been misled. And you know, correct me if I'm wrong, but the first three words in our constitution, "we the people," say who is in charge of this government.
▶ 1:08:39Sen. Whitehouse: The whole point of the freedom of information act is to make sure that we the people can assess the performance of our government. How in the world are we supposed to determine if government has run amok if it is done under the cover of darkness and we cannot get information? It is saddening that you had a state that had to do a grand jury investigation to get information.
▶ 1:09:08Sen. Whitehouse: And is it shocking to anyone that the new administration came in, having seen the damage and the carnage over the last four years related to covid and deaths and immigration and and overrun anna overrun anand a surge of inadmissible and dangerous people in our nation, is there any doubt was advised that the new administration would go, uh, those people in charge of being answerable to we the people have got to go?
▶ 1:09:39Sen. Whitehouse: That should shock no one. The fact that it is brought up one week get to the root of the purpose of foia -- in the last administration we saw people and policy unleashed like termites that weakened and destroyed the structure of this nation. And when we the people needed answers for that, we got nothing.
▶ 1:10:06Sen. Whitehouse: And I know a little bit about this because I was the attorney general of florida, and not only did I make requests myself when the biden administration started releasing criminals here illegally back into our communities rather than detaining them on serious felonies into putting them, when they started pushing and actually started saying we needed quotas to mass release into our interior people who were inadmissible or dangerous, when they started releasing people on the terrorist watch list into our nation, when they
▶ 1:10:39Sen. Whitehouse: Started hiding information on why they were pushing out things related to covid, I mean, these are serious, serious things that weakened our nation. And we the people needed to get on top of that, we the people needed to make sure our government was accountable to us. In 2023 the U.S.
▶ 1:11:01Sen. Whitehouse: Government agencies censored, withheld, or claimed records cannot be located two thirds of the time. I believe my office as the attorney general in the state of florida, we brought over half a dozen lawsuits against this administration when they wouldn't respond. And I concur wholeheartedly that it shouldn't take lawsuits to get our government to respond to us.
▶ 1:11:31Sen. Whitehouse: Thankfully I took it as a responsibility when it was the radicals unleashing on our nation, I took it as we will be fix it florida and do whatever we can do to get the information to the people. But the reality is we now have an administration that says, ok, we're going to try and deal with the career-embedded people that withheld from we the people. We now is congress need to say how did this happen.
▶ 1:11:59Sen. Whitehouse: How can you have that go on, that gaslighting go on and mayorkas, kamala harris, c repeatedly, repeatedly the border is secure, you cannot check us on it because we will withhold all the information from you. What is the biggest change we can make to the statutes right now, Mr. howell, that would prevent that from ever happening again?
▶ 1:12:23Mr. Howell: So the two things I point out in my testimony are penalties, as senator kennedy discussed in detail, and two's clarifications about the exemptions they routinely used to withhold information, whether it relates to personal privacy, law enforcement exceptions, very broad, or other exemptions, the are forcing us into court to fight for this document that belong to all of us.
▶ 1:12:46Sen. Moody: Thank you. Senator cornyn.
▶ 1:12:52Sen. Cornyn: Mr. chairman -- I guess he's not here right now, he is in finance, but I'm glad we are having the hearing today. I guess it was justice brandeis who said that sunlight is the best disinfectant. But it strikes me as has been noted here that in many instances the government has a conflict of interest relative to the interests of the american people that we are supposed to serve.
▶ 1:13:23Sen. Cornyn: Because if government officials have good news, boy, they are quick to tell you. If they've got bad news, then they are quick to hide that the best they can and to prevent them from becoming public. But the american people deserve to know the good, bad, and the ugly, which of course is the goal of foia. But as we know, and has been pointed out by Dr.
▶ 1:13:51Sen. Cornyn: Epstein and others, foia has become so bureaucratic, it's become a big game c1 it has become a big game, it has become a refuge for the passive-aggressive and basically the loser is the american public whose government this is after all. We've got to find a way to do much better than we are doing now.
▶ 1:14:19Sen. Cornyn: One of the ironies to me is that a veteran who wants to get his or her own service records has to foia the government to get them. I don't know whatever happened to the idea of customer service. In government it becomes standard operating procedure and it is in or mostly maddening.
▶ 1:14:54Sen. Cornyn: I noticed the question about dohe -- doge from the senator from illinois and I think doge is a great example of how we have no learned things about the government that were never before identified or highlighted or exposed.
▶ 1:15:19Sen. Cornyn: Maybe there needs to be some procedures put in place to figure out what their obligations are, but my impression is they are quick to put on their website what they are finding in a way that I think is shocking to most of the american people to see how their tax dollars have been wasted.
▶ 1:15:46Sen. Cornyn: One of the things they have pointed out in regards to treasury and how we pay the bills, the fact that we are dealing with archaic, just shocking to see how far the government has lagged when it comes to the kind of technology used on a daily basis in the private sector. Dr. epstein, can you speak to that?
▶ 1:16:15Sen. Cornyn: What do we need to do to make sure we can actually bring the government out of the dark ages when it comes to technology and using that? Senator grassley talked about ai, but it is not limited to things like ai.
▶ 1:16:32Dr. Epstein: Thank you, senator. One of the things implicit in this discussion is you don't get transparency of information without preserving that information. The federal records act works hand-in-hand with foia. It is not just technology that helps information gets disclosed but also preservation.
▶ 1:17:07Dr. Epstein: What types of discovery tools are used by agencies. Ironically having the best technology is not going to be a financial burden on these agencies. In many ways it makes the processes more efficient, you don't have to use dozens of deloitte analysts to process records and I think of congress can develop technological criteria that would go a long way.
▶ 1:17:36Sen. Cornyn: Professor, is it kwoka? I am a recovering judge. I sat on the trial bench for six years and seven years on the texas supreme court for -- texas supreme court after that.
▶ 1:18:11Sen. Cornyn: It seems like we are overlooking one aspect of that. When these cases end up in litigation, what sort of authorities if any do we need to give the judges that decide these cases to punish through sanctions frivolous allegations or defenses that may be made
▶ 1:18:42Sen. Cornyn: Against the government?
▶ 1:20:24Prof. Kwoka: I forgot to hit the button. And in addition to that, I think resources in that regard and also resources in terms of personnel. There will always have to be a human touch point to make these decisions. I wouldn't want to turn all of our national security information over to an ai tool to decide what would be released.
▶ 1:20:46Prof. Kwoka: Looking at the systemic problems is one way agencies can look to come into compliance and finding remedies outside of work that average requesters are able to access.
▶ 1:20:54Sen. Cornyn: While I still have the gavel I want to ask Mr. howell to respond to that. I think you are exactly right that it costs a lot of money and takes a lot of time and most citizens are not going to be able to get the government to do what it all to do in the first place.
▶ 1:21:26Sen. Cornyn: Do you have thoughts?
▶ 1:21:30Mr. Howell: I think it is an important question. There are tunicates is going through litigation. All of that drives toward cleaning that up and that should be explored. One thing professor epstein made reference to his we filed a pattern of practice claim for the tricks they use routinely to obstruct foia litigation.
▶ 1:22:00Mr. Howell: Should a good ruling come in one of those cases it would do a good job in clearing up those not been tolerated.
▶ 1:22:08Sen. Cornyn: I like the idea of professor epstein providing greater authority to the office of policy or somebody to basically resolve these complaints outside of litigation. That is what we have done alternatively with dispute resolution in the judicial process because it does take so much time and money for people to hire lawyers and litigate disputes where they might be able to resolve their disputes fairly through some sort of alternative dispute resolution.
▶ 1:22:39Sen. Cornyn: Thank you, Mr. chairman. >> Mr. chairman, I just want to add to the record that while you were gone there was a lot of discussion about the biden administration's record when it came to foia.
▶ 1:22:58Sen. Cornyn: I would like to make a matter of fact that in fiscal year 2023, agencies in the biden administration received and processed a record 1,119,699 foia's. The suggestion was made earlier that that was not true. I wanted to clarify that.
▶ 1:23:20Chair Grassley: I will conclude this hearing I thinking each of you. For taking the time to share your personal views, your expertise, and your perspective with us. Questions may be submitted in the record until tuesday, april 15 at 5:00 p.m. I will ask you as witnesses to answer and return the questions if you can buy tuesday, april 20 nine. Thank you all very much. The meeting is adjourned. [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy.
▶ 1:23:50Chair Grassley: Visit ncicap.org]