Prepared Statement of Ranking Member Chuck Grassley of Iowa
Senate Committee on the Judiciary
Hearing on “We the People:
Fulfilling the Promise of Open Government
Five Years After The OPEN Government Act”
Wednesday, March 13, 2013
Thank you for holding this hearing during Sunshine Week. It’s always good to focus on the important topic of transparency. Fortunately, every March we have the opportunity to do so.
Today, we’re looking at the most recent amendments to the Freedom of Information Act. Five years ago, thanks to the work of the Chairman and Senator Cornyn, the OPEN Government Act of 2007 became law.
That law sought to strengthen the Freedom of Information Act in several ways. However, five years later problems remain. Agencies aren’t putting into practice what the law requires.
It’s frustrating that there are so many reports criticizing the Obama Administration’s implementation of the law. There should be just the opposite. I’d like nothing more than to see groups praising this Administration for being transparent.
Instead, there’s a December 2012 study from the National Security Archive which found that 56 federal agencies haven’t fully complied with the 2007 law. Things can move slowly within the government, but this seems a bit much.
As the report shows, the Department of Justice hasn’t even updated its own Freedom of Information Act regulations since 2003. Ironically, the Justice Department is charged with encouraging and monitoring government-wide Freedom of Information Act compliance.
Delays from the Justice Department aren’t just confined to private citizens. Last year I asked the Attorney General about the House Committee on Oversight and Government Reform’s 2011 Department of Homeland Security investigation.
The investigation found that political staff under Secretary Napolitano corrupted the agency’s Freedom of Information Act compliance procedures.
I discussed this investigation at last year’s hearing in this committee. I then asked the Attorney General about it as a follow-up question to his September 2012, committee testimony. However, to date, I’ve yet to receive a response from the Attorney General.
Additionally, I’ve yet to receive any proposals from the Department of Justice to address the Supreme Court’s decision in Milner v. Department of the Navy.
Recall that Milner has been characterized as leaving unprotected a great deal of information that could threaten public safety if disclosed.
At the hearing last year, Ms. Pustay told us legislation was needed. In fact, we were told that the Justice Department was “actively working” on a proposal and that she “look[ed] forward to continuing to work with this Committee on the issue.”
Here we are a year later and I’ve still not seen a legislative proposal.
So, there’s widespread frustration with this Administration, unrelated to the Freedom of Information Act process.
But problems with implementing the Freedom of Information Act are even more troubling because the law compels certain actions. And the Department of Justice has the responsibility to be a leader.
Unfortunately, the Department of Justice’s actions set a bad example for other agencies.
When the Department of Justice fails to update its own regulations, we shouldn’t be surprised when other agencies fail to update theirs as well. Such behavior undermines the President’s transparency pledge.
Another recent example highlighting this “culture of obfuscation” comes from the Environmental Protection Agency.
Last week, I joined a letter from Senator Vitter and Congressman Issa to the Attorney General. Senator Vitter’s staff recently discovered a troubling exchange between government officials.
The documents show advice from the Environmental Protection Agency’s Office of General Counsel to a regional official handling Freedom of Information requests.
The Office of General Counsel said first, that it is standard protocol in “such” cases to instruct the requestor to narrow their request because it is overbroad.
Second, the Office of General Counsel instructed the regional official to tell the requestor that it will probably cost more than the amount of money they’ve agreed to pay.
This exchange validates those who criticize bureaucrats for deterring citizen engagement. And, the advice regarding fees may be against the law.
Last month, Congressmen Issa and Cummings sent a letter to the Office of Information Policy. That letter covers a lot of ground regarding Freedom of Information Act compliance.
These are questions that the Justice Department needs to answer. I support the bipartisan effort. Hopefully we’ll get an update today as to the progress being made in responding to the letter.
Justice must lead by example.
Unfortunately, the evidence demonstrates that the Department has a lot of work to do.
I look forward to hearing from our witnesses.
We need to have a candid discussion about changing the culture within the agencies.
Thank you, Mr. Chairman.
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