House
Subcommittee Holds Basic FOIA Oversight Hearing
The
new subcommittee holding jurisdiction over the subject area of the Freedom of
Information Act in the House of Representatives -- the Government Reform Committee's
Subcommittee on Government Management, Finance, and Accountability -- has held
a basic oversight hearing on the FOIA's governmentwide administration.
Entitled
"Information Policy in the 21st Century: A Review of the Freedom of Information
Act," this hearing was held on May 11 and was chaired by Representative Todd
Russell Platts (R-Pa.), who chaired this subcommittee in the 108th Congress
as well. In the 108th Congress, jurisdiction over the FOIA was held by another
Government Reform Committee subcommittee, the same one that oversaw FOIA matters
for many years in the past. Due to a change in subcommittee alignments in 109th
Congress, however, the FOIA was added to the jurisdiction of Chairman Platts's
subcommittee, which in the past has handled a variety of matters other than
those pertaining to information policy.
The
Administration was represented at this hearing by Carl Nichols, a political
appointee who serves as a Deputy Assistant Attorney General in the Department
of Justice's Civil Division, which handles some FOIA litigation within its Federal
Programs Branch, which he oversees. He very ably presented testimony
describing the FOIA's governmentwide administration from the federal agency
perspective, and he was assisted in responding to the subcommittee's questions
by the co-directors of OIP. SeeDepartment
of Justice Testimony (May
11, 2005). His testimony relied upon the most recent report of the Justice Department's
governmentwide FOIA policy activities, entitled "Description of Department of
Justice Efforts to Encourage Agency Compliance with the Act" (Apr. 1, 2005),
which is the major part of the Justice Department's annual FOIA report to Congress.
Also
testifying from the executive branch was the new Archivist of the United States,
Allen Weinstein, who oversees the National Archives and Records Administration
and is a former FOIA requester himself from his days as an author and university
professor. An additional perspective was provided by Linda D. Koontz, Director
of Information Management at the Government Accountability Office, who presented
statistics gleaned from agencies' annual FOIA reports and noted that in Fiscal
Year 2004, 92% of all FOIA requests were reported "granted in full," while "[o]nly
relatively small numbers were partially granted (3 percent), denied (1 percent),
or not [granted] for other reasons (5 percent)."
Government
Accountability Office Testimony (May 11, 2005),
at 15.
A second
group of witnesses, representing the FOIA-requester community, consisted of
Jay Smith, Chairman of the Newspaper Association of America and President of
Cox Newspapers, Inc.; Ari Schwartz, Associate Director of the Center for Democracy
and Technology; and Mark Tapscott, Director of the Center for Media and Public
Policy and the "Guardabassi Fellow" at the Heritage Foundation. The latter,
who has been a chronic critic of what he terms the FOIA's "subversion by entrenched
bureaucrats," testified in his own capacity, not as a representative of his
organization -- and despite broad statements made to the contrary, that likewise
is true of similar testimony that he earlier presented to the Senate. Generally
speaking, these witnesses were most critical of agency backlogs and delays in
dealing with FOIA requests.
This
hearing thus served as the Government Management, Finance, and Accountability
Subcommittee's first introduction to the subject matter area of the FOIA. Notwithstanding
the inclinations of some of its participants, it was not aimed at consideration
of any FOIA-related legislation, such as legislation introduced earlier this
year that became the subject of a Senate hearing that was held on March 15,
at which no Administration witness testified.
The
Department of Justice has not taken any position at all on such legislation.
It has addressed the "Klamath" issue under Exemption 5. See,
e.g., FOIA Post, "Supreme
Court Rules in Exemption 5 Case" (posted 4/4/01) (presaging the pursuit
of "a legislative remedy" for difficulties potentially posed by the Supreme
Court's Exemption 5 decision in Department of the Interior v. Klamath Water
Users Protective Ass'n, 532 U.S. 1 (2001)). This was mentioned, among other
things, in the Department of Justice's testimony at the House hearing, seeDepartment
of Justice Testimony at 12-13, 15 n.10, which also touched on pending legislative
matters only indirectly, see id. at 14-15. Further, Attorney General
Alberto R. Gonzales, at a recent media gathering, spoke of "working with [Congress]"
on such matters, inasmuch as "[t]he FOIA laws are very, very important." Alberto
Gonzales Delivers Remarks at the National Press Club, Transcript at 13 (May
20, 2005).
It
thus remains to be seen how any such legislative matters involving the FOIA
will continue to play out during the coming months and years. (posted
5/31/05)
