The Senate Judiciary Committee holds a hearing on the Freedom of Information Act.
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NewsTranscript
00:00:00Good morning everybody. We're
00:00:30glad you're here. This statute is a critical tool that Americans use to keep our government
00:00:35transparent and accountable. FOIA was recommended for passage by the Senate Judiciary Committee
00:00:43October 4, 1965, and it became law 1966. This watershed legislation signaled a sea change
00:00:58No longer would government information be assumed to be out of reach of the average
00:01:09American. Instead, the assumption became that Americans would have access to their government
00:01:16and it's working. The language from Judiciary Committee report October 1965, quote, the
00:01:26committee feels that this bill as amended would establish a much-needed policy of disclosure
00:01:33while balancing the necessary interests of confidentiality. A government by secrecy benefits
00:01:41no one. It injures the people it seeks to serve. It injures its own integrity and operation.
00:01:50It breeds mistrust, dampens the fervor of its citizens, and mocks their loyalty, end
00:01:58of quote. 60 years later, these words still ring true. And 60 years later, this committee
00:02:07continues to be a champion and caretaker of this law, and that's why we're here today.
00:02:14The federal government has often been resistant to required disclosures. FOIA has been attacked,
00:02:23circumvented, ignored, bypassed, and skirted. FOIA has also been used as a shield against
00:02:32congressional oversight, specifically my oversight. I can't tell you how many times that I've
00:02:38requested records from the executive branch under both Republicans and Democrats, and
00:02:45in turn, I get records with FOIA redactions. Congress didn't create FOIA for it to be used
00:02:53against the people it was intended to serve. It wasn't created to allow the federal government
00:03:00to hide information from Congress and the American people. We've accordingly come back
00:03:06again and again to end the workarounds and loopholes that bureaucrats use to avoid disclosure.
00:03:15This committee also keeps the law up to date in our rapidly changing world. When FOIA was
00:03:23signed into law in 1966, there was no Internet, no electronic records, not even fax machines.
00:03:32In our digital era, the government must adapt to serve its citizens, especially when it
00:03:38comes to transparency. This is especially important given the volumes of requests that
00:03:44we're starting to see. Let's consider where we are today. FOIA's requests reached a record
00:03:51high in 2024 with more than one and a half million requests. This is a 25 percent increase
00:04:01from the previous fiscal year. The number of requests processed by agencies also reached
00:04:08a record high at just under one and a half million. This represents a 34 percent increase
00:04:18over the previous year. FOIA is, therefore, clearly a tool that the American people value
00:04:27and use. Now, problems remain. Backlogs continue to be a problem. The time it takes for agencies
00:04:37to fulfill requests varies greatly from less than a day in some cases to over seven years
00:04:45in others. Access continues to be a problem too often. The only remedy for FOIA denial
00:04:55is for the requester to file a lawsuit. But this option is obviously expensive for individuals
00:05:05and even non-profits. The quality of records received also continues to be a problem. Now,
00:05:14we have this situation of a document full of blacked out lines. That is not a meaningful
00:05:22disclosure and it happens too often. This administration must turn a new leaf and be
00:05:30more transparent than other administrations. And so far, I commend their effort to this
00:05:37end. Many say that sunshine is the best disinfectant. FOIA is a vital law that shines bright sunlight
00:05:46on those who govern our nation and steward its resources. That's why we've continued
00:05:53to amend and improve FOIA. That's why it's worth our time and oversight today. Now, to
00:06:00Senator Durbin, and then I'll introduce our guests.
00:06:03Senator Durbin Thanks, Chairman Grassley, for holding this
00:06:05hearing on FOIA. Compliance with FOIA has plagued agencies for years. They've struggled
00:06:12to meet statutory deadlines. They've grappled with significant backlogs. They've been driven
00:06:17by staffing shortages, a lack of resources, complex FOIA requests, and outdated technology.
00:06:24This committee has approached FOIA in a bipartisan fashion and should continue to, working to
00:06:29ensure agencies comply with the law and taking opportunities to strengthen the law. But this
00:06:34hearing comes at a time when many Americans are angry and fearful. They are frightened
00:06:40for their jobs as the Trump administration fires thousands and thousands of government
00:06:44workers. They are alarmed by the state of their 401ks as the stock market threatens
00:06:50to plummet to historic lows with the President's new tariff package. Many are fearful for their
00:06:56friends, family, and neighbors as masked immigration agents grab parents and students who pose
00:07:02no threat off the street and throw them into unmarked vehicles. In America, they are concerned
00:07:08about affordable health care, their ability to retire, as Republican debate cuts in the
00:07:14budget for programs like Medicare, Medicaid, and Social Security. The American people don't
00:07:20understand why the Trump administration is arbitrarily erasing decades of knowledge,
00:07:26science, and data while shutting down entire government agencies. In this moment of chaos
00:07:32and uncertainty, robust transparency laws like FOIA, which demand our government answer
00:07:38tough questions, are essential. FOIA was established to ensure we have a window into
00:07:44the inner workings of federal agencies and a tool for rooting out waste, fraud, and abuse.
00:07:50Federal agencies work for the American people, and the American people deserve to know how
00:07:55their tax dollars are being spent. Under FOIA, any person can demand answers from the government.
00:08:02No matter how large or powerful an agency, when a person properly requests records through
00:08:07FOIA, the federal government must comply. And because FOIA exists, agencies are mindful of
00:08:14their responsibilities to the public. Government officials know through FOIA information about
00:08:19their activities and decisions will not remain hidden forever. Some officials within the Trump
00:08:25administration, however, do not seem to care about America's right to know. Elon Musk's so-called
00:08:31Department of Government Efficiency, or DOGE, has taken the position that he is not subject to
00:08:38FOIA. Musk makes bold statements that, quote, all government information should be public, he says,
00:08:44yet DOGE is far from transparent. Its website is barely usable, and its false claims about how
00:08:52much money it's saving have repeatedly needed corrections. If DOGE doesn't comply with FOIA,
00:08:57it will be far harder, if not impossible, to uncover the full story of Musk's efforts to
00:09:03access extensive personal data of Americans without their permission, redirect billions of dollars,
00:09:10congressionally authorized funds, and fire thousands of hard-working public servants.
00:09:15We had a gathering yesterday with a lady who is the pardon attorney. Just a few weeks ago,
00:09:21her name is Oyer. At one time, she went to a hearing and was told there was a message waiting
00:09:28for her in the hallway. She went outside to find that she had been terminated. The allegations that
00:09:35are made about her conduct have not been backed up with any evidence. She has tried to FOIA the
00:09:40documents she created and she knows exist, which exonerate her for her activity and prove that the
00:09:47statements made by the government in firing her were false. She can't FOIA her own documents from
00:09:53the Department of Justice. Is this law working for her? Why, of course not. The Trump administration
00:10:00is weakening the ability of agencies to respond to requests for information by eliminating employees
00:10:05responsible to respond to FOIA requests. The Office of Personnel Management has fired employees in
00:10:12its FOIA office. The career official heading up Department of Justice Office of Information
00:10:17Policy, which is charged with ensuring FOIA compliance, was fired. HHS Secretary Kennedy
00:10:25just fired everyone responsible for handling FOIA requests at the CDC and Food and Drug
00:10:31Administration. These efforts are toxic to our democracy because a functional, healthy democracy
00:10:38requires disclosure and transparency. The Senate Judiciary Committee should resist it on a
00:10:44bipartisan basis. I thank the witnesses for appearing today and Senator Grassley for chairing
00:10:49this important hearing. Thank you, Chairman Grassley. We're joined today by Margaret Koka,
00:10:57the Lawrence Hermann Professor in Law at The Ohio State University's Maritz College of Law.
00:11:04Professor Koka is the author of a book entitled Saving the Freedom of Information Act and is a
00:11:10distinguished expert in government transparency laws and regulations. Thank you, Professor Koka,
00:11:15for being here. Our first witness is Dr. Daniel Epstein. He's an Associate Professor of Law at
00:11:22St. Thomas University, Miami, and Vice President of American First Legal. Dr. Epstein has litigated
00:11:31FOIA matters for over a decade, and his scholarship includes a focus on government
00:11:36transparency. His work has appeared in numerous publications, and he's the author of the book
00:11:42that's entitled The Investigative State Regulatory Oversight in the United States. We have Mr. Mike
00:11:50Howell. Mr. Howell is President of the Oversight Project. That's the name of it, the Oversight
00:11:57Project. He previously worked at the Heritage Foundation and the Department of Homeland
00:12:03Security. Prior to Department of Homeland Security, he conducted oversight investigations in both the
00:12:10House and Senate. And would you folks arise so I can offer oath? Do you swear or affirm that the
00:12:22testimony you're about to give before this committee will be the truth, the whole truth,
00:12:26nothing but the truth, so help you God? They both, they all said yes, so we'll let,
00:12:34we'll start with Dr. Epstein and then go with the next two in that order. Go ahead. Thank you.
00:12:45Chairman Grassley, Ranking Member Durbin, and members of the committee, thank you for the
00:12:50opportunity to testify on the Freedom of Information Act FOIA. The FOIA statute is
00:12:56an amendment to the original public records provisions of the Administrative Procedure Act.
00:13:00As such, it is part of a series of checks to the growing federal bureaucracy. As the Supreme Court
00:13:07has explained, the basic purpose of FOIA is to ensure an informed citizenry vital to the
00:13:13functioning of a democratic society needed to check against corruption and to hold the governors
00:13:18accountable to the governed. Transparency advocates often quote Justice Brandeis' dictum
00:13:25that sunlight is said to be the best disinfectant. But less quoted is Brandeis' statement,
00:13:31electric light the most efficient policeman. In our cloud and AI-based world of public
00:13:37information, modernized government should mean modernized transparency. I will focus my testimony
00:13:44on three critical areas where reform is needed. First, proactive disclosure requirements under
00:13:49FOIA. Second, pattern or practice claim review. And third, the effectiveness of the administrative
00:13:55process in reducing litigation costs. Proactive disclosure under the Freedom of Information Act
00:14:02obligates agencies to publicize information notwithstanding the existence of a particular
00:14:07request or when records are frequently requested. It is unclear, however, how to remedy agency
00:14:16failures to proactively disclose. Does FOIA provide that remedy or does the Administrative
00:14:22Procedure Act? I believe administrative policy can go a long way in this area. For example,
00:14:30issued in 2019, Executive Order 13892 mandated public disclosure of a whole host of agency
00:14:37decisions. It was rescinded on January 20, 2021, but would strongly serve the public
00:14:43interest if codified by Congress. Agencies generally comply with proactive disclosure
00:14:49requirements, including using searchable electronic reading rooms to post frequently requested
00:14:55records. But even greater transparency could be achieved by using technology to allow requesters
00:15:01to search for specific keywords within a set of documents, as relevant documents may be
00:15:06in the thousands, if not hundreds of thousands, of pages.
00:15:11Pattern or practice claims. A pattern or practice claim under FOIA is established when a plaintiff
00:15:17demonstrates the agency defendant has consistently failed to comply with FOIA's requirements.
00:15:24Typically in the form of chronic delays and backlogs in responding to requests. Pattern
00:15:31or practice claims alleging systematic delays or denials are difficult to win. Violations
00:15:38of statutory deadlines can inform a pattern or practice cause of action, but past delays
00:15:43alone are insufficient unless they demonstrate a likelihood of future harm. In a world of
00:15:49increasing backlog with FOIA processing, agencies may strategically delay complex or
00:15:55politically salient requests to avoid political risk with disclosing documents. It is hard
00:16:01to show that such agency delay was the result of an intention to unreasonably delay processing
00:16:07versus a recognition that the FOIA workload takes time to process.
00:16:13Congress should clarify that when agencies engage in a pattern or practice of withholding
00:16:17documents or delaying processing, they are acting in an arbitrary and capricious manner.
00:16:24In addition to identifying intentional delay as arbitrary and capricious, Congress should
00:16:29also clarify that any such practice is itself the sort of rule of general applicability
00:16:36that must be publicly noticed in the Federal Register. Agency noncompliance with public
00:16:41notice requirements should entail some form of sanction or penalty on the agency.
00:16:47Lastly, administrative fixes and costs. Litigation remains a costly yet frequently necessary
00:16:55tool for FOIA requesters. According to the Department of Justice's annual FOIA litigation
00:17:00reports, the number of FOIA lawsuits has steadily increased over the past decade, largely due
00:17:06to agency delay or nonresponsiveness. Congress sought to respond to these problems by providing
00:17:12a plaintiff with attorney's fees whenever the plaintiff substantially prevailed in a
00:17:17case. Yet such determinations give courts discretion to determine whether a plaintiff,
00:17:22typically in a summary judgment posture, won enough claims to have substantially prevailed.
00:17:27Due to such uncertainty, small organizations or individuals filing FOIA requests often
00:17:32end their process at the administrative stage. Congress should clarify the standard for substantially
00:17:39prevailing to mean whenever an agency is judicially compelled to take some action it refused to
00:17:44do during the administrative process. Concerning the administrative process, Congress has established
00:17:51the Office of Government Information Services at the National Archives. This is a key resource
00:17:56for Congress to direct its attention to, allowing OGIS to do more than just simply notifying
00:18:02agencies of wrongdoing, and to actually mediate disputes. Thank you.
00:18:12Chairman Grassley, Ranking Member Durbin, and members of the committee, thank you for
00:18:16the opportunity to testify today. My name is Margaret Cuoca, and I'm on the faculty
00:18:20at Ohio State University's Moritz College of Law. I would like to begin by thanking
00:18:24this committee for its continued bipartisan leadership in strengthening the Freedom of
00:18:29Information Act and overseeing its implementation. FOIA is essential to democracy. The public
00:18:34must know what its government is doing to be able to hold elected officials accountable,
00:18:39engage with government entities fairly, and advocate for themselves and their communities.
00:18:45Nowhere is FOIA's importance more evident than in its use by the news media, which acts
00:18:49as an intermediary capable of disseminating information obtained from government to the
00:18:54public at large. Journalists make particularly good use of FOIA in uncovering government
00:18:59waste, abuse, and misconduct, and in understanding what kinds of outside influences impact government
00:19:05decision-making. Even a single request by the news media can have an outsized impact
00:19:10in improving public health and safety or helping citizens be fully informed in their exercise
00:19:15of democratic rights at the ballot box. Still, FOIA has suffered from longstanding challenges.
00:19:22Despite the dedicated work of hundreds of FOIA professionals across the government,
00:19:26FOIA requesters still face extreme delays in receiving responses from agencies. Moreover,
00:19:32recent reductions in the federal workforce have reportedly impacted FOIA offices, a development
00:19:36that's particularly concerning given that those offices were already under-resourced
00:19:40and unable to keep up with the pace of requests. FOIA has also suffered from agencies over-withholding
00:19:47records under the law's exemptions, and agency websites routinely fail to publish records
00:19:52that FOIA requires to be made affirmatively available. Again, there is reason to worry
00:19:57these systemic challenges are only becoming more serious. I believe there are clear opportunities
00:20:02for Congress to amend FOIA to address these longstanding and ever-growing challenges.
00:20:07To begin, Congress could strengthen FOIA's affirmative disclosure provisions, also known
00:20:11as reading room requirements. Increasing affirmative disclosure holds the promise to improve the
00:20:16ease of access to the very government documents that are of the most interest to the public,
00:20:21all while creating efficiencies for agencies that no longer have to respond to repetitive
00:20:26individual requests one at a time for those types of records. While the frequently requested
00:20:31records provision of FOIA, last updated in 2016, was an important advancement, it has
00:20:37not gone far enough. At many agencies, requesters routinely seek the same types of documents
00:20:43by the hundreds or even thousands. Even if each individual record requested is distinct,
00:20:49the category of record is the same, revealing opportunities for agencies to affirmatively
00:20:53publish the whole category and obviate the need for individual requests. Congress should
00:20:59require agencies to publish standardized versions of their FOIA logs so the public can see what
00:21:05records are most often requested, and then mandate that agencies identify the top categories
00:21:11of most frequently requested records in their annual FOIA reports. They could then be required
00:21:15to detail how those records will be made affirmatively available going forward or justify
00:21:20why affirmative publication is not feasible. Measures such as these, which would allow
00:21:26for agencies to design their own customized affirmative disclosure programs, have the
00:21:31potential to radically reduce the number of requests the public must make, thereby improving
00:21:35both transparency and agency efficiency. To ensure that those new or any existing affirmative
00:21:42disclosure requirements are effective, Congress should also amend the statute to make clear
00:21:46that district courts have the power to fully enforce FOIA's provisions, including the reading
00:21:50room provisions. Presently, conflicts in the courts on this issue threaten to undermine
00:21:55the promise of affirmative disclosure. Apart from affirmative disclosure requirements,
00:22:00Congress could also strengthen the presumption of disclosure agencies should exercise in
00:22:04the application of exemptions. In the 2016 amendments, recognizing that unnecessary secrecy
00:22:09remains rampant in agency claims of exemption, Congress enacted the foreseeable harm requirement,
00:22:15that exemptions not be claimed merely because they could technically apply, but also only
00:22:20when the agency can articulate a foreseeable harm that will result from release. While
00:22:25this was a meaningful step in the right direction, the analysis has proven incomplete, because
00:22:29what is missing is the weighing of any potential harm against the public interest in disclosure.
00:22:35The result is that even a minimal harm articulated by the agency will justify secrecy, even in
00:22:40the face of overwhelming public interest, for example, public health or safety. Congress
00:22:45should amend FOIA to include a public interest balancing test to realize FOIA's goal of maximum
00:22:50disclosure. Beyond these areas, I detail further recommendations in my written testimony, including
00:22:56methods for addressing first-person requesting, strengthening the Office of Government Information
00:23:00Services, creating a universal FOIA portal, and improving technological solutions to agency
00:23:05search and processing. Thank you again for your time, and I look forward to your questions.
00:23:13Chairman Grassley, Ranking Member Durbin, members of the committee, thank you for the
00:23:17opportunity to testify about our experiences as frequent FOIA requesters under the law.
00:23:24My name is Mike Howell, and I am the president of the Oversight Project. In the age of efficient
00:23:29e-discovery, automation, and technological advancements, the American people's ability
00:23:34to obtain records from their government under FOIA should be easy, but it is not. As a result,
00:23:41the rights afforded to the American people under FOIA are largely enjoyed solely by transparency
00:23:47organizations, journalists, and academic researchers. The everyday American, by and large, has been
00:23:53cut out. We launched the Oversight Project in 2022 because we recognize that congressional
00:23:59oversight of the executive branch has become ineffective. The erosion of Congress' ability
00:24:05to procure documents from the executive branch, to hold wrongdoers accountable, and to provide
00:24:10transparency to the American people about how their government works has left a void.
00:24:16We are filling that void. In our short existence, we have filed over 100,000 FOIA requests and
00:24:22sued the federal government almost 100 times. Through our work, we have procured over 1
00:24:27million pages of government documents on over 350 topics. We recently launched our
00:24:33document depository that allows the public to search this huge database. Through FOIA
00:24:38requests and litigations, we have been able to successfully obtain documents that reveal
00:24:43important information to the American people. Our cases animated some of the most controversial
00:24:48scandals of the Biden administration. The following are examples of our work. We filed
00:24:54multiple lawsuits surrounding the Department of Homeland Security's response to allegations
00:24:59that Border Patrol agents whipped Haitian illegal aliens in 2021. Our work proved that
00:25:04Secretary Mayorkas knew that was a false narrative before he pushed it from the White House podium.
00:25:10He was later impeached, in part, for that. We sued and obtained records concerning the
00:25:15U.S. Marshals Service interpretation of 18 U.S.C. 1507, the statute that is supposed
00:25:21to protect Supreme Court judges from threats outside their homes. This was in the wake
00:25:26of intimidation tactics after the Dobbs leak. Additionally, we sued the FBI and Justice
00:25:31Department on multiple topics concerning the weaponization of law enforcement. In one case,
00:25:37we sued U.S. Attorney David Weiss for his lack of independence in conducting the Hunter
00:25:42Biden investigation prior to his appointment as special counsel. We also procured documents
00:25:48from the FBI showing that agents that kneeled in solidarity with Black Lives Matter rioters
00:25:54were later promoted. Additionally, we exposed the partisan application of President Biden's
00:26:00Executive Order 14019, which mobilized the federal government to support voter registration.
00:26:06Our work was cited in multiple lawsuits by state AGs challenging the EO and three House
00:26:11committees' investigations into the same. Now, along with Judicial Watch and a conglomerate
00:26:16of media entities, we have sued the Department of Justice for the audio recording of President
00:26:21Biden's interview with special counsel Herr. As you all will recall, special counsel Herr
00:26:27declined prosecuting President Biden for mishandling classified materials because he thought that
00:26:33a jury would see President Biden as a well-meaning elderly man with a poor memory. In addition,
00:26:39we have undertaken many similar investigations related to President Biden's lack of mental
00:26:44capacity. Recently, we released an investigation that discovered that the Biden White House
00:26:50made prolific use of an auto pen device to sign pardons and other presidential documents.
00:26:56Given President Biden's lack of mental capacity and proof that he himself was not signing
00:27:01the documents, President Trump has declared those pardons to be null and void. Now this
00:27:06applies to the last-minute pardons of the January 6th committee, and Senator Schiff
00:27:10has stepped out, but this would apply to his pardon as well. These are just a few examples
00:27:16of the important FOIA and other transparency work our organization conducts. Now, yes,
00:27:22we've been criticized by left-wing media for the volume of FOIA requests that we have sent,
00:27:27but we send that many FOIA requests because we have to. Agencies frequently deny or significantly
00:27:32delay requests that seek large volumes of records that are overly complex, so we send
00:27:38a lot of targeted requests with specific custodians, search terms, date ranges, etc.,
00:27:43because that's what we have to do. Congress can take steps to make FOIA more accessible
00:27:48to the everyday American. A lot of my fellow witnesses have pointed out those specific
00:27:53steps and I agree with them in full. The statute needs updating and it should be accessible
00:27:58to the everyday American and not just professional transparency organizations and journalists.
00:28:04And with that, I thank you all for the invitation to testify and look forward to answering any
00:28:09questions.
00:28:11Thanks to the three of you for your work and time you put in for this testimony and
00:28:15answering our questions. We'll have five-minute rounds. I'm going to start out with Dr. Epstein
00:28:23and refer to the Office of Information Policy at DOJ and the Archives Office of Government
00:28:30Information Services. What steps could these offices take to improve the requester experience
00:28:37and FOIA administration across the government and are there any statutory reforms that ought
00:28:45to be made?
00:28:47Thank you, Mr. Chairman. So I've had experience with both organizations, both as the executive
00:28:56director of a transparency group and during my time in the executive branch. The National
00:29:02Archives and Records Administration's Office of Government Information Services, my experience
00:29:09is when requesters look to avoid litigation, they often look to OGIST to kind of resolve
00:29:18the disputes, effectively to mediate those disputes. My experience is that OGIST often
00:29:24will notify the government agency that there is a requester who is looking for a solution,
00:29:32but ultimately takes the position that it's in the government agency's discretion whether
00:29:37to use the OGIST process. And so I think one legislative reform is to say that, you know,
00:29:45whether you go as far as saying that the agency must mediate, certainly to exercise good faith
00:29:50in mediating a dispute. And that, of course, reduce the amount of litigation. In terms
00:29:56of the Office of Information Policy of the Department of Justice, I think one of the
00:30:00very effective things that office does is it provides an enormous amount of analysis
00:30:05on new case law developing through the courts. And of course, as many of you know, as recently
00:30:12as at least when I was in the administration, about 20 percent of the workload of the U.S.
00:30:18Supreme Court for the District of Columbia is FOIA cases. And so being able to get that
00:30:23guidance from the Office of Information Policy is useful. Now, the thing that I would say
00:30:27about the Office of Information Policy is it is often misunderstood that it is simply
00:30:34just an entity within the Department of Justice. The Office of Information Policy is supposed
00:30:39to set FOIA policy for the entire executive branch. And I often think that it is an ignored
00:30:45resource where agencies often consult their own chief FOIA officers without recognizing
00:30:52that the Office of Information Policy has such experience that it can well advise the
00:30:57agencies. And I think anything Congress can do to make that office more robust and to
00:31:03work with chief FOIA officers at agencies would be very helpful.
00:31:08Mr. Howell, March 20, last year, the U.S. Government Accountability Office released
00:31:19a report showing that in government-wide, the request backlog has continued to climb
00:31:24over the past decade. Long response times and backlogs violate the law and run counter
00:31:31to the spirit of the law. In your experience, what impact have agency backlogs had on your
00:31:39use of FOIA? So the general practice of the federal government to turn what should be
00:31:46an administrative process into a judicial one where you have to sue and enforce to get
00:31:51the information that you seek has made it so only that the very organized and resourced
00:31:58individuals can go and sue to get that information. So the net result is the American people are
00:32:03in the dark about a lot of their activities related to how their government is operating.
00:32:08That is why we've had to really scale up not only our FOIA outgoing to 100,000, but in
00:32:13100 lawsuits. And I believe the proof is in the pudding with the list of, you know, documents
00:32:19and stories we have broken as a result of that. But it shouldn't work that way. The
00:32:24federal government should adapt to the year 2025, lean into technological advancements
00:32:29using potentially AI and automation to get these documents out more quickly. It shouldn't
00:32:35be such a human-intensive process. He just brought up AI. So a question to you,
00:32:43Dr. Epstein, from the past several years, the chief of FOIA officers' council has considered
00:32:49impacts of artificial intelligence. The requested community, too, has debated the possible promises
00:32:56and perils of using AI. In your view, how could AI improve FOIA process?
00:33:02Yeah, thank you, Senator. So I think one thing is that AI can be directly relevant to reading
00:33:09rooms. Often you will get agency reading rooms that, I mean, I just think about the FBI vault
00:33:16where the ability to find useful documents is very difficult. It's not using the best
00:33:23kind of document discovery software. And I think there's at least two things. One is
00:33:29because so much of, I mean, virtually all agency records are now on the cloud, using
00:33:35AI as a tool for agencies to search for records would substantially reduce processing times,
00:33:43you can, AI is effectively a predictive model that can locate, well, if a number of search
00:33:50terms are in this location, there is likely going to be search terms in similar locations,
00:33:55or at least relevant search terms. I think the other thing is that in contemporary times,
00:34:01a lot of transparency organizations are very pro-tech, which is to say there's nothing
00:34:07that says that you can't have an API attached to government reading rooms that allows FOIA
00:34:14requesters to very efficiently download documents and then upload them into their own technological
00:34:19solutions. So that, I think, generally using AI in the federal government for transparency
00:34:25would be a good thing. Senator Durbin. Thank you, Chairman Grassley. One can argue that the
00:34:30most ambitious and energetic and active agency of government is not an agency of government. DOGE,
00:34:39Department of Government Efficiency, which I don't recall as part of our cabinet. But I believe that
00:34:45the courts have concluded that despite their protestations to the contrary, that DOGE is
00:34:53probably required to comply with FOIA. At least that's the status as we currently look at it. I
00:35:02worry about where this is headed if an agency with the power to eliminate federal agencies is not
00:35:09subject to FOIA. What is motivating these people? What activities are they engaged in? What
00:35:18disclosures should they make to the American public? Apparently they don't believe there's
00:35:22anything they should disclose to the American public. Professor Koko, what's your opinion?
00:35:27Thank you, Senator Durbin. There are, as you noted, you know, the question about whether DOGE is
00:35:36subject to FOIA is currently in the courts. It's a long-standing doctrine under FOIA that agencies
00:35:44that exercise their own independent authorities under the government are subject to FOIA,
00:35:48whereas the president's closest advisors are not. And the president, of course, himself is not
00:35:53subject to FOIA and instead subject to the Presidential Records Act. I have no reason to
00:35:58believe that the courts are not perfectly capable of applying that test faithfully in this instance
00:36:02as they have in the past. The preliminary ruling that you're referring to was preliminary but does
00:36:08indicate that the district court that currently has the case that's furthest along does view DOGE
00:36:13as likely to be subject to FOIA's requirements. It looks like that case may be moving into a
00:36:20discovery phase, which will give us more information about what DOGE is doing and its role in order for
00:36:26the courts to make that determination. And at this point, I see no reason to believe that the courts
00:36:31are not capable of making that determination. As to why an agency or a government entity would
00:36:38prefer to exempt itself from transparency, I think over the history of governments it has been
00:36:45shown that transparency is uncomfortable and that there are lots of reasons why government
00:36:52entities try to avoid it. But I think it's important to remember that transparency requirements serve
00:36:57two functions. One is to let the public know what the government is doing and to uncover any sort
00:37:03of misconduct or abuse of power. And the other is to deter that abuse of power and misconduct. When
00:37:09government officials know that what they will what they're doing will come to light, they are less
00:37:13likely to act improperly. And so I think the faithful application of FOIA in this case, like in
00:37:19every other case, is extremely important. And of course there's another way to foil FOIA, and that
00:37:26would be what's happening at the Department of Health and Human Services where the newly minted
00:37:31Secretary Robert Kennedy just fired personnel charged with handling FOIA requests at the CDC
00:37:37and the Food and Drug Administration. He did this after stating, and I quote, public health
00:37:43agencies should be transparent. And if we want Americans to restore trust in public health
00:37:48agencies, we need transparency. Reportedly FOIA staff at numerous other agencies have also been
00:37:55fired. So what is the practical impact when the FOIA agency within the agency is virtually empty
00:38:03when they open the door to the office? Dr. Epstein?
00:38:08Thank you, Senator. Well, I think one thing is, and I don't know the specifics of those firings, but I
00:38:15think certainly those circumstances should increase the obligation to make proactive disclosures. I
00:38:23would say in my own experience, one of the things that was most surprising to me, both as a
00:38:30transparency advocate and in the executive branch, is the number of agencies that use outside
00:38:36consultants or contractors for the purpose of managing their cloud and doing searches for the
00:38:42purpose of disclosure. So it would seem to me that if you're removing staff and still bound by
00:38:51compliance requirements, you're going to have to find some ability to conduct searches and
00:38:57productions of documents. And that just may mean relying on contractors versus employees.
00:39:03Unless the administration happens to believe that concealing this information is important enough to
00:39:08defy the law, correct?
00:39:11You know, I don't know the specifics of that. But often, you know, I can say in my own experience, the
00:39:19amount of FOIA litigation and the processing requirements are a heavy burden for the agencies. And, you
00:39:28know, I worked in the executive branch for close to four years. I think every administration has a good faith
00:39:37goal of complying with FOIA. Often, it's not the top priority for the White House, and it's generally managed
00:39:45by career civil servants. But there certainly are challenges with fully responding to these requests.
00:39:53They're massive, and they take time.
00:39:55Thank you, Senator Grassley. Thank you.
00:39:58I'm going to offer for what you follow up on with HHS, this explanation that we got from them about that,
00:40:08that the Department of Health and Human Services stated that its previous FOIA offices throughout the
00:40:19department were siloed and didn't communicate with one another, which resulted in an inefficient process. We
00:40:28look forward to a streamlined FOIA offices that can reduce backlogs and better provide transparency.
00:40:37On my side, we have this order of people coming in, Kennedy, Moody, and Cornyn, and now the senator from
00:40:45Missouri. So we'll go to Senator Kennedy.
00:41:07Let me start over. My mic was off. Thank you all for being here. I listened to all of you with great interest.
00:41:12Professor, do you believe that people respond to incentives?
00:41:24Thank you, Senator. I do believe that people respond to incentives.
00:41:28Do you believe that what you allow is what will continue?
00:41:37I suppose I do.
00:41:40I listened to all of you talk about enhancing affirmative disclosure requirements, strengthening the
00:41:51presumption of disclosure. I listened to you talk about consultants. I listened to you talking about the
00:42:02need for a public interest balancing test. But those can be ignored just as easily as every other part of the
00:42:16statute. Why don't you just create personal liability for the person responsible for turning over the
00:42:22documents?
00:42:25Certainly, Senator. There are systems, other jurisdictions around the world that do have, in fact, personal
00:42:31penalties for government officials.
00:42:32Do you recommend it for us?
00:42:34I don't think that we're at the point where we necessarily have to take such a step in order to drastically change the
00:42:39incentives.
00:42:40Why not? I mean, all administrations stall and restall in turning over documents to the American people, don't they?
00:42:52Does anybody disagree with that? It's not a Democrat thing or Republican thing. It's an executive branch thing, isn't it?
00:43:00It absolutely is. I do not disagree with that.
00:43:02Why don't we hold the people responsible personally responsible? I'm not saying not afford them due process. You may
00:43:10want to require bad faith with a reasonable, not an impossible, definition of bad faith. I mean, if you want to solve
00:43:19this problem, why don't you just create personal liability, Mr. Howell?
00:43:23I think that's a terrific idea. Right now, the mechanism to have liability is basically an attorney's fees, and those are
00:43:32rarely given out. So the government really is never forced to pony up.
00:43:35Well, the employees don't care if the government gets hit with attorney's fees, do they?
00:43:40Correct. And that's why the Department of Justice is willing to tolerate us suing them 100 times because we all pay for
00:43:45their lawyers.
00:43:46Look, we can write and rewrite statutes all we want to, but it is clear that people in the government are not responding to
00:43:57Freedom of Information Act requests in bad faith. Sometimes they need more time, but I'm talking about in bad faith. That's
00:44:06clear. And it happens on both sides. So instead of just rewriting new laws and new rules that they're going to ignore, why don't
00:44:21you just hold people personally responsible? What about it, Doctor?
00:44:28I actually fully agree. And I would point out that there's a mechanism in the FOIA statute currently where if it
00:44:36turns out that there's evidence of an agency or an agency employee intentionally withholding documents without a reasonable
00:44:44basis, a judge could, in issuing that order, make that finding.
00:44:50And when's the last time that happened?
00:44:52Almost never.
00:44:53Yeah, it hasn't happened in the history of ever, has it? No. And until Congress makes it very clear that we're serious about
00:45:02this, we're going to be equal opportunity pit bulls here and say, regardless of who is running the executive branch, you have an
00:45:14affirmative obligation to turn over documents. And if you don't do it, you're going to be personally liable. That's going to work, isn't it?
00:45:27Well, I would hope so. Of course, as you know, as a former law professor, there are issues with, you know, the executive branch claiming immunity for
00:45:36these employees.
00:45:36I'm not saying deny them due process. I'm not saying an ordinary negligent standard. I'm saying that if some person is being an obstructionist, and you
00:45:52can prove it, they'll be held personally liable. We wouldn't have to do it for long.
00:46:03Senator Whitehouse?
00:46:05I still had nine seconds left.
00:46:09Proceed.
00:46:09No, I yield my back. But I do want to say, Professor Whitehouse has some interesting thoughts about enforcing orders that he and I have
00:46:22talked about. So I'm going to listen to him carefully here.
00:46:26Senator Whitehouse.
00:46:27Senator Kennedy has predicted my line of questioning. I know that we're here to talk about FOIA. But at least in theory, congressional oversight, the
00:46:41constitutional principle of congressional oversight, should allow us in this body, access to executive branch records, ideally, better than FOIA.
00:46:57Because FOIA is open to the world. And we have particular responsibilities in Congress, to engage in executive oversight. And yet, we have seen situations in which
00:47:12requests for information, under our congressional oversight responsibilities, are responded to slower than FOIA requests. And, you know, there's always an instinct here to protect
00:47:29the administration in power when you're a part of that party. But as we play that partisan game back and forth, what happens is that the executive continually encroaches, encroaches, encroaches, until they have our
00:47:47congressional oversight power bucketed down to essentially nil. In theory, the Reagan memo controls this. And the Reagan memo has a number of principles about congressional oversight. The first is that the
00:48:10president is supposed to assert executive privilege to block congressional oversight. Otherwise, it's open season for us to look. Our boundary is executive privilege. And one of the constraints on misguided, false, or self-protective assertions of executive privilege is that the president has to assert it.
00:48:33So if some yo-ho five levels down in some organization is blowing off congressional requests because they screwed up somewhere and don't want us to know about it, well, that fact will come up to the White House as the request for an assertion of executive privilege comes up. And somebody's going to say, what? You want to make the president assert executive privilege because you screwed up? That is specifically not a defense of executive privilege.
00:49:01If there's a screw-up, even if there is executive privilege, we're entitled to look into it. So in theory, the president is supposed to assert executive privilege. When was the last time a president asserted executive privilege? We're just getting these assertions, non-assertion assertions, from anybody who can type executive privilege into their computer no matter what position they hold in the executive branch.
00:49:25And that's wrong, inconsistent with our responsibilities of oversight, and inconsistent with the Reagan memo that they purport to be enforcing.
00:49:34It also requires that the Department of Justice take an intermediary role between the objecting department and Congress and try to sort through to an agreement. An accommodation is the way the words work.
00:49:54But 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's really no way to go forward through that process because DOJ is no longer a fair interlocutor between executive agencies and Congress.
00:50:22It would be great if they had not blown up that role for themselves, because we'd all do better. But when they blew up that role for themselves, we're now left to try to find other means of getting our oversight effectuated because we can no longer trust DOJ.
00:50:41It will go basically whichever way the administration sends it, and OLC has set basic parameters that are highly toxic to proper congressional oversight.
00:50:52So 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.
00:51:09And I'm hoping, and again, my thanks to Senator Kennedy for his attention to all of these issues.
00:51:15This really ought to be a bipartisan thing. This is not right versus left. This is not Democrat versus Republican. This is executive versus legislative, and executive is thrashing us.
00:51:29And I'll just close with the observation that if we want to improve FOIA, then the HHS secretary gutting FOIA offices at CDC, FDA, and NIH, Trump firing DOJ's FOIA office head,
00:51:43the Trump administration terminating the entire FOIA and communications staff at OPM, and USAID having no FOIA capability because it is essentially in the process of destruction,
00:51:55is hardly conducive to improving transparency and access to America's citizens to government information through FOIA.
00:52:10You know, it's astounding to me. I'm almost aghast, actually, that we're hearing brought up time and time again,
00:52:18Senator from Rhode Island, Senator from Illinois, talking about firings of people that have handled FOIA, especially those that were handling it in the last administration,
00:52:27when that was undoubtedly the greatest government gaslighting in the history of our nation on some pretty catastrophic cover-ups.
00:52:37Specifically, let's start with the COVID pandemic. The state of Florida had to do a grand jury investigation to determine how much the people had been misled.
00:52:52And, 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.
00:53:02The whole point of the Freedom of Information Act is to make sure that we the people can assess the performance of our government.
00:53:14And how in the world are we supposed to determine if government has run amok, if it's done under the cover of darkness, and we can't get information?
00:53:23It's saddening that you had a state that had to do a grand jury investigation to get information.
00:53:32And 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 an overrun and a surge of inadmissible and dangerous people of our nation?
00:53:48Is it any doubt or surprise that this new administration would go, those people who were in charge of answering to we the people, I gotta go?
00:53:59That should shock no one. And the fact that it's brought up when we're going back to the root of the purpose of FOIA.
00:54:05I mean, in the last administration, we saw people and policy unleashed like termites that weakened and destroyed the structure of this nation.
00:54:24And when we the people needed answers for that,
00:54:29we got nothing. And I know a little bit about this because I was the Attorney General of Florida.
00:54:34And 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 and deporting them.
00:54:45When they started pushing and actually start saying that we needed quotas to mass release into our interior people that were inadmissible or dangerous.
00:54:57When they started releasing people on the terrorist watch list into our nation.
00:55:03When they started.
00:55:08Hiding information on why they were pushing out things related to COVID.
00:55:15I mean, these were serious, serious things that weakened our nation and we the people needed to get on top of that.
00:55:22We the people needed to make sure that our government was being accountable to us.
00:55:26And in 2023, the U.S. government agency censored, withheld or claimed records could not be located two thirds of the time.
00:55:38I believe my office as the Attorney General and the state of Florida, we brought over a half a dozen lawsuits against this administration when they wouldn't respond.
00:55:48And I concur wholeheartedly that it shouldn't take lawsuits to get our government to respond to us.
00:55:56I mean, thankfully, I took it as a responsibility when it was like the wreck it radicals unleashing on our nation.
00:56:02I took it as we'll be fix it, Florida, and do whatever we need to do to get the information to the people.
00:56:09But 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.
00:56:20But we now, as Congress, need to say, how did this happen?
00:56:24How could you have that go on, that gaslighting go on and have people in my Yorkis Kamala Harris say repeatedly, repeatedly, repeatedly, the border is secure.
00:56:36And you can't check us on it because we're going to withhold all the information from you.
00:56:41What is the biggest change we could make to the statutes right now, Mr.
00:56:45Howell, that would prevent that from ever happening again?
00:56:50So the two things I point out in my testimony are one penalties, as Senator Kennedy discussed in great detail, and two is clarifications about the exemptions that they routinely use to withhold information, whether it relates to personal privacy.
00:57:03Law enforcement exemptions are very broad or other sorts of exemptions they're using to force us into court to fight them for those documents that belong to all of us.
00:57:12Thank you, Senator Corn.
00:57:18Mr. Chairman, I guess he's not here right now, he's in finance, but I'm glad we're having this hearing today.
00:57:26I guess it was Justice Brandeis who said that sunlight is the best disinfectant.
00:57:34But 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're supposed to serve.
00:57:48Because if government officials have good news, boy, they're quick to tell you.
00:57:56If they've got bad news, then they're quick to hide that the best they can and to prevent that from becoming public.
00:58:03But the American people deserve to know the good, bad, and the ugly, which, of course, is the goal of FOIA.
00:58:14But as we know, and as has been pointed out by Dr. Epstein and others, FOIA has become so bureaucratic, it's become a big game, it's become a refuge for the passive-aggressive, and basically, the loser is the American public, whose government this is, after all.
00:58:39And we've got to find a way to do much better than we are doing now.
00:58:45One 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.
00:58:56I don't know whatever happened to the idea of customer service.
00:59:00You know, this never survived in the public domain.
00:59:04But in government, it becomes standard operating procedure.
00:59:08And it's enormously maddening to not just me, but I'm sure to many, many other people.
00:59:15But I noted with interest the question about Doge from the senator from Illinois.
00:59:26And actually, I think Doge is a great example of how we have now learned things about the government that were never before identified.
00:59:38Or highlighted.
00:59:39Or exposed.
00:59:41And maybe there needs to be some procedures put in place to figure out what their obligations are.
00:59:51But my impression is they are quick to put on their website what they are finding, and in a way that I think is shocking to most of the American people to see how their tax dollars have been wasted.
01:00:08But one of the things they pointed out, and I think in particular with regard to Treasury and how we pay the bills, the government's bills, the fact that we're dealing with archaic computer systems.
01:00:22And just shocking to see how far the government has lagged when it comes to the kind of technology that's used on a daily basis in the private sector.
01:00:38Dr. Epstein, can you speak to that?
01:00:40What do we need to do to make sure that we can actually bring the government out of the dark ages when it comes to technology and using that?
01:00:51Senator Grassley talked a little bit about AI, but it's not just limited to things like AI.
01:00:57Yeah, thank you, Senator.
01:01:00You know, I think one of the things that's implicit in this discussion is you don't get transparency of information without preserving that information.
01:01:08So the Federal Records Act works hand in hand with FOIA.
01:01:12And I think a lot of this is not simply technology that helps information get disclosed, but technology that helps with preservation of information.
01:01:22And so I think there needs to be a congressional focus on technological requirements, what types of e-discovery tools are used by agencies.
01:01:36And the kind of ironic thing is having the best technology is not going to be a financial burden on these agencies.
01:01:43In many ways, it makes employees more efficient.
01:01:46It makes the processes more efficient.
01:01:48You presumably don't have to use dozens of Deloitte analysts to process records.
01:01:54And I think if Congress can develop specific technological criteria, that would go a long way.
01:02:02Professor, is it Cuoco?
01:02:04Professor Cuoco and Mr.
01:02:06Howell, I am a recovering judge.
01:02:12I sat for six years on the trial bench and on the Supreme Court of Texas for seven years after that.
01:02:17I was attorney general when I had the responsibility for enforcing what we call the Open Records and Open Meetings Act in Texas.
01:02:25But I just wonder, Senator Kennedy's line of questions about things that we can do to incentivize people to do what they should do anyway.
01:02:37It seems like we're overlooking one aspect of that, and that is when these cases end up in litigation, as they do way too often.
01:02:48What sort of authorities, if any, do we need to give to the judges that decide these cases to punish, through sanctions, frivolous allegations or defenses that may be made by the government?
01:03:04Do you have any thoughts along that line?
01:03:07I do, Senator.
01:03:08The interesting thing about litigation is that although it is way too often in the sense that it takes up a lot of resources and it's very time-intensive work for agencies and for the public,
01:03:18it's actually quite rare in terms of how many FOIA requests that are denied actually make it to court.
01:03:23And that's because litigation is very difficult for the public.
01:03:26It requires time-intensive resources, experience, hiring a lawyer, things that most average members of the public cannot do.
01:03:34So having alternative remedies that are more available to the public, for example, strengthening the remedies at OGIS, resourcing that office better for mediation services,
01:03:45or perhaps even more binding decisions from that office, might give more oversight to agencies and more incentives for the agencies to perform better.
01:03:53The second thing I'll say about incentives is that although there are certainly egregious cases where there are bad-faith denials,
01:04:01and there might be political denials, and the examples that have been discussed about requests from Congress might fall into some of those examples,
01:04:09but the truth is that most requesters are seeking, are businesses seeking regulatory information, looking for information about how the agency that they're regulated by is acting in certain areas.
01:04:21It's individuals who are seeking their own files.
01:04:23The examples you gave about a veteran looking for his or her own files from the government, or people looking for their personnel files, or tax information.
01:04:31And when you look at these ordinary types of requesters, the reason that they are frustrated, that they are being denied, is a resource question.
01:04:38We don't have enough resources, both technology resources, which I absolutely agree should be invested, and I think resources from Congress would go a long way to doing that.
01:04:50I forgot to hit the button.
01:04:52And in addition to that, I think resources in that regard, and then also resources in terms of personnel, because there will always have to be a human touchpoint to make these decisions.
01:05:02I personally wouldn't want to turn over all of our national security information to an AI tool to decide what's going to be released.
01:05:08And so I think looking at the systemic problems is one way to ensure that agencies can come into compliance and finding remedies outside of court that average requesters are able to access.
01:05:20Well, while I still have the gavel, the chairman's come back, but I want to ask Mr. Howell to respond to that.
01:05:25I think you're exactly right, Professor.
01:05:28It costs a lot of money and takes a lot of time.
01:05:30Most citizens aren't going to be able to have the resources or spend the time and effort in order to get the government to do what it ought to do in the first place.
01:05:40And I wonder whether there, as I said, things like mandatory requirements for judges to order sanctions for frivolous defenses to FOIA litigation or the like.
01:05:52Mr. Howell, do you have thoughts?
01:05:55I think it's a very important question and one that the judiciary would quite appreciate, because it's terrible for judicial economy to have this many cases, particularly in D.C., going through litigation.
01:06:06And so all the menu of options you laid out drive towards cleaning that up, and I think all should be explored.
01:06:12One thing that we've done and Professor Epstein made reference to is we filed a pattern of practice claim against the Federal Bureau of Investigation for the tricks they use routinely to obstruct FOIA litigation.
01:06:24And should a good ruling come in in one of those cases, I think it would go a long way to clear up that this type of behavior is not to be tolerated.
01:06:32Well, I like the idea of Professor Epstein of maybe providing some greater authority to the Office of Information Policy or somebody to basically resolve these complaints outside of litigation.
01:06:46That's what we've done generally with alternative 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.
01:07:06Thank you, Mr. Chairman.
01:07:08Mr. Chairman, I just want to add or add to the record the fact while you were gone, there was a lot of discussion about the record of the Biden administration when it came to FOIA.
01:07:21And I just like to make a matter of fact that in fiscal year 2023, agencies under the Biden administration received and processed a record one million one hundred ninety nine thousand six hundred ninety nine FOIAs.
01:07:37That is a record. The suggestion was made earlier that the opposite was true.
01:07:42I just wanted to clarify that. Thank you, Mr. Chairman.
01:07:47Conclude this hearing by saying thank each of you taking the time to share your personal views, your expertise and your perspective with us.
01:07:58Written questions submitted for the record until Tuesday, April the 15th at 5 p.m.
01:08:04I'll ask you as witnesses to answer and return the questions if you can by Tuesday, April the 29th.
01:08:11Thank you all very much. Meeting adjourned.