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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. See Department 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, see Department 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)

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