The Freedom of Information Act: Perspectives from Public Requesters

Chairman Chuck Grassley (R-IA)SPEAKER_08

Good morning, everybody. We're here today discussing the Freedom of Information Act, very important issue. This statute is a critical tool that Americans use 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. This watershed legislation signaled a sea change. 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. The language from Judiciary Committee report, October 1965, quote, "The committee feels that this bill, as amended, would establish a much-needed policy of disclosure while balancing the necessary interests of confidentiality. A government by secrecy benefits no one. It injures the people it seeks to serve. It injures its own integrity and operation. It breeds mistrust, dampens the fervor of its citizens, and mocks their loyalty," end of quote. 60 years later, these words still ring true, and 60 years later, this committee continues to be a champion and caretaker of this law, and that's why we're here today. The federal government has often been resistant to required disclosures. FOIA has been attacked, circumvented, ignored, bypassed, and skirted. FOIA has also been used as a shield against congressional oversight, specifically my oversight. I can't tell you how many times that I've requested records from the executive branch under both Republicans and Democrats, and, in turn, I get records with FOIA redactions. Congress didn't create FOIA for it to be used against the people it was intended to serve. It wasn't created to allow the federal government to hide information from Congress or the American people. We've accordingly come back again and again to end the workarounds and loopholes that bureaucrats use to avoid disclosure. 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. This is especially important given the volumes of requests that we're starting to see. Let's consider where we are today. FOIA requests reached a record high in 2024, with more than a half a 1.5 million requests. This is a 25% increase from the previous fiscal year. The number of requests processed by agencies also reached a record high at just under 1.5 million. This represents a 34% increase over previous year. FOIA is, therefore, clearly a tool that the American people value and use. Now, problems remain. Backlogs continue to be a problem. The time it takes for agencies to fulfill requests varies greatly, from less than a day in some cases to over 7 years in others. Access continues to be a problem. Too often, the only remedy for a FOIA denial is for the requester to file a lawsuit, but this option is obviously expensive for individuals and even nonprofits. The quality of records received also continues to be a problem. Now 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 commend their effort to this end. Many say that 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's why we've continued to amend and improve FOIA. That's why it's worth our time and oversight today. Now to Senator Durbin, and then I'll introduce our guests.

Ranking Member Dick Durbin (D-IL)SPEAKER_05

Thanks, Chairman Grassley, for holding this hearing on FOIA. It's been— Compliance with FOIA has plagued agencies for years. They've struggled to meet statutory deadlines. They've grappled with significant backlogs. They've been driven by staffing shortages, a lack of resources, complex FOIA requests, and outdated technology. This committee has approached FOIA in a bipartisan fashion. It should continue to, working to ensure agencies comply with the law and taking opportunities to strengthen the law. But this hearing comes at a time when many Americans are angry and fearful. They are frightened for their jobs as the Trump administration fires 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. Many are fearful for their friends, family, and neighbors as masked immigration agents grab parents and students who pose no threat off the street and throw them into unmarked vehicles. In America, they are concerned about affordable healthcare, their ability to retire, as 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 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. Federal agencies work for the— 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 from the government, no matter how large or powerful an agency. When a person properly requests records through FOIA, the federal government must comply. And because FOIA exists, agencies are mindful of their responsibilities to the public.

Senator Sheldon Whitehouse (D-RI)SPEAKER_07

Thank

Ranking Member Dick Durbin (D-IL)SPEAKER_05

Government officials know through FOIA information about their activities and decisions will not remain hidden forever. Some officials within the Trump administration, however, do not seem to care about America's right to know. Elon Musk's so-called Department of Government Efficiency, or DOGE, has taken the position that he is not subject to FOIA. Musk makes bold statements that, quote, "all government information should be public," he says. Yet DOGE is far from transparent. Its website is barely usable, and its false claims about how much money it's saving have repeatedly needed corrections. If DOGE doesn't comply with FOIA, it will be far harder, if not impossible, to uncover the full story of Musk's efforts to access extensive, personal data of Americans without their permission, redirect billions of dollars, congressionally authorized funds, and fire thousands of hardworking public servants. We had a gathering yesterday with a lady who is the pardon attorney. Just a few weeks ago, her name is Oyer. At one time, she went to a hearing and was told there was a message waiting for her in the hallway. She went outside to find that she had been terminated. The allegations that are made about her conduct have not been backed up with any evidence. She has tried to FOIA the documents she created and she knows exist, which exonerate her for activity and prove that the statements made by the government in firing her were false. She can't FOIA her own documents from the Department of Justice. Is this law working for her? Why, of course not. The Trump administration is weakening the ability of agencies to respond to requests for information by eliminating employees responsible to respond to FOIA requests. The Office of Personnel Management has fired employees in its FOIA office. The career official heading up Department of Justice Office of Information Policy, which is charged with ensuring FOIA compliance, was fired. HHS Secretary Kennedy just fired everyone responsible for handling FOIA requests at the CDC and Food and Drug Administration. These efforts are toxic to our democracy because a functional, healthy democracy requires disclosure and transparency. The Senate Judiciary Committee should resist them on a bipartisan basis. I thank the witnesses for appearing today, and Senator Grassley for chairing this important hearing.

Chairman Chuck Grassley (R-IA)SPEAKER_08

Would you like to introduce your— Sure. Yes. Now,

Ranking Member Dick Durbin (D-IL)SPEAKER_05

Thank you, Chairman Grassley. We're joined today by Margaret Kwoka, the Lawrence Herman Professor in Law at the Ohio State University's Moritz College of Law. Professor Kwoka is the author of a book entitled "Saving the Freedom of Information Act" and is a distinguished expert in government transparency laws and regulations. Thank you, Professor Kwoka, for being here.

Chairman Chuck Grassley (R-IA)SPEAKER_08

Okay,

SPEAKER_UNKNOWN

uh,

Chairman Chuck Grassley (R-IA)SPEAKER_08

Our first witness is Dr. Daniel Epstein. He's 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. His work has appeared in numerous publications, and he's the author of the book that's entitled "The Investigative State: Regulatory Oversight in the United States." We have Mr. Mike Howell. Mr. Howell is 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. Prior to Department of Homeland Security, conducted oversight investigations in both the House and Senate. And would you folks arise so I can offer oath? Do you swear or affirm that the testimony you're about to give before this committee will be the truth, the whole truth, and nothing but the truth, so help you God? They both—they all said yes. So we'll let, we'll start with Dr. Epstein, and then Go with the next 2 in that order. Go ahead.

Daniel Z. EpsteinSPEAKER_04

Thank you, Chairman Grassley, Ranking Member Durbin, and 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. 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 governed. Transparency advocates often quote Justice Brandeis's dictum that sunlight is said to be the best disinfectant, but less quoted is Brandeis's statement, "Electric light, the most efficient policeman." In our cloud- and AI-based world of public information, modernized government should mean modernized transparency. I will focus my testimony on three critical areas where reform is needed. First, proactive disclosure requirements under FOIA. Second, pattern or practice claim review. And third, the effectiveness of the administrative process in reducing litigation costs. Proactive disclosure under the Freedom of Information Act obligates agencies to publicize information notwithstanding the existence of a particular request, or when records are frequently requested. It is unclear, however, how to remedy agency failures to proactively disclose. 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 13892 mandated public disclosure of a whole host of agency decisions. It was rescinded on January 20th, 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. Pattern or practice claims: A 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. Pattern or practice claims alleging systematic delays or denials are difficult to win. 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. It is hard to show that such agency delay was the result of an intention to unreasonably delay processing versus a recognition that the FOIA workload takes time to process. Congress should clarify that when agencies engage in a pattern or practice of withholding documents or delaying processing, they are acting in an arbitrary and capricious manner. In addition to identifying intentional delay as arbitrary and capricious, Congress should also clarify that any such practice is itself the 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: Litigation remains a 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 past decade, largely due to agency delay or non-responsiveness. Congress sought to respond to these problems by providing a plaintiff with attorney's fees whenever the plaintiff substantially prevailed in a case. 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 end their process at the administrative stage. Congress should clarify the standard for substantially prevailing to mean whenever an agency is judicially compelled to take some action it refused to do during the administrative process. Concerning the administrative process, Congress has established the Office of Government Information Services at the National Archives. This is a key resource for Congress to direct its attention to, allowing OGIS to do more than just simply notifying agencies of wrongdoing, and to actually mediate disputes. Thank you.

Margaret Benvignati KwokaSPEAKER_02

Chairman Grassley, Ranking Member Durbin, and members of the committee, thank you for the opportunity to testify today. My name is Margaret Kwoka, and I'm on the faculty at Ohio State University's Moritz College of Law. I would like to begin by thanking this committee for its continued bipartisan leadership in strengthening the Freedom of Information Act and overseeing its implementation. FOIA is essential to democracy. The public must know what its government is doing to be able 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 use by the news media, which acts as an intermediary capable of disseminating information obtained from government to the public at large. Journalists make particularly good use of FOIA in uncovering government waste, abuse, and misconduct, and in 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 longstanding challenges. Despite the dedicated work of hundreds of FOIA professionals across the government, FOIA requesters still face extreme delays in receiving responses from agencies. Moreover, recent reductions in the federal workforce have reportedly impacted FOIA offices, a development that's particularly concerning given that those offices were already under-resourced and unable to keep up with the pace of requests. FOIA has also suffered from agencies over-withholding records under the law's exemptions. And agency websites routinely fail to publish records that FOIA requires to be made affirmatively available. Again, there is reason to worry these systemic challenges are only becoming more serious. I believe there are clear opportunities for Congress to amend FOIA to address these longstanding and ever-growing challenges. To begin, Congress could strengthen FOIA's affirmative disclosure provisions, also known as reading room requirements. Increasing affirmative disclosure holds the promise to improve the ease of access to the very government documents that are of the most interest 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 routinely seek the same types of documents by the hundreds or even thousands. 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. They could then be required to detail how those records will 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. To ensure that those new or any existing affirmative disclosure requirements are effective, Congress should also amend the statute to make clear that district courts have the power to fully enforce FOIA's provisions, including the reading room provisions. Presently, conflicts in the courts on this issue threaten to undermine the promise of affirmative disclosure. Apart from affirmative disclosure requirements, Congress could also strengthen the presumption of disclosure agencies should exercise in the application of exemptions. In the 2016 amendments, recognizing that unnecessary secrecy remains rampant in agency claims of exemption, Congress enacted the foreseeable harm requirement: that exemptions not be claimed merely 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. 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, public health or safety. Congress should amend FOIA to include a public interest balancing test to realize FOIA's goal of maximum disclosure. Beyond these areas, I detail further recommendations in my written testimony, including methods for addressing first-person requesting, strengthening the Office of Government Information Services, creating a universal FOIA portal, and improving technological solutions to agency search and processing. Thank you again for your time, and I look forward to your questions.

Mike HowellSPEAKER_03

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 am 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 their government under FOIA should be easy, but it is not. 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. The erosion of Congress's ability to procure documents from the executive branch, to 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 1 million pages of government documents on over 350 topics. We recently launched our document depository that allows the public to search this huge database. Through FOIA requests and litigations, 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. We filed multiple lawsuits surrounding the Department of Homeland Security's response to allegations that Border Patrol agents whipped Haitian illegal aliens in 2021. Our work proved that Secretary Mayorkas knew that was a false narrative before he pushed it from the White House podium. He was later impeached in part for that. We sued and obtained records concerning the US Marshals Service interpretation of 18 U.S.C. 1507, 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. In one case, 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. We also procured 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 14019, which mobilized the federal government to support voter registration. Our work was cited in multiple lawsuits by state AGs challenging the EO and three House committees' investigations into the same. Now, along with Judicial Watch and a 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 all will recall, Special Counsel Hur declined 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. 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 autopen device to sign 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 declared those pardons to be null and void. Now, this applies to the last-minute pardons of the January 6th Committee, and Senator Schiff has stepped out, but this would apply to his pardon as well. These are just a few examples of the important FOIA and other transparency work our organization conducts. Now, yes, we've been criticized by left-wing media for the volume of FOIA requests that we have sent, but we send that many FOIA requests because we have to. Agencies frequently deny or significantly delay requests that seek large volumes of records that are overly complex, so we send a lot of targeted requests with specific custodians, search terms, date ranges, etc., because that's 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 those 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. And with that, I thank you all for the invitation to testify and look forward to answering any questions.

Chairman Chuck Grassley (R-IA)SPEAKER_08

Thanks to the three of you for your work and time you put in for this testimony and answering our questions. We'll have five-minute rounds. I'm going to start out with Dr. Epstein and refer to the Office of Information Policy at DOJ and the Archives' Office of Government Information Services. What steps could these offices take to improve the requester experience and FOIA administration across the government, and are there any statutory reforms that ought to be made?

Daniel Z. EpsteinSPEAKER_04

Thank you, Mr. Chairman. So I've had experience with both organizations, both as the executive director of a transparency group and during my time in the executive branch. 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 OGIS to kind of resolve the disputes, effectively to mediate those disputes. My experience is that OGIS often will notify the government agency that there is a requester who is looking for a solution, but ultimately takes the position that it's in the government agency's discretion whether to use the OGIS process. And so I think 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 a dispute. And that, of course, reduce the amount of litigation. In terms of the Office of Information Policy of the Department of Justice, I think one of the very effective things that office does is it provides an enormous amount of analysis on new case law developing through the courts. And of course, as many of you know, as recently as at least when I was in the administration, about 20% of the workload of the US District Court for the District of Columbia is FOIA cases. And so being able to get that guidance from the Office of Information Policy is useful. Now, the thing that 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. The Office of Information Policy is supposed to set FOIA policy for the entire executive branch. And I often think that it is an ignored resource, where agencies often consult their own chief FOIA officers without recognizing that the Office of Information Policy has such experience that it can well advise the agencies. And I think anything Congress can do to make that office more robust and to work with chief FOIA officers at agencies would be very helpful.

Chairman Chuck Grassley (R-IA)SPEAKER_08

Mr. Howell, March 20th of last year, the U.S. Government Accountability Office released a report showing that in government-wide, the request backlog has continued to climb over the past decade. Long response times and backlogs violate the law and run counter to the spirit of the law. In your experience, what impact have agency backlogs had on your use of FOIA?

Mike HowellSPEAKER_03

So the general practice of the federal government to turn what should be an administrative process into a judicial one where you have to sue and enforce, you know, to get the information that you seek, has made it so only that, you You know, the very organized and resourced individuals can go and sue to get that information. So the net result is the American people are in the dark about a lot of their activities related to how their government is operating. That is why we've had to really scale up not only our FOIA outgoing to 100,000, but in 100 lawsuits. And I believe the proof is in the pudding with the list of, you know, documents and stories we have broken as a result of that. But it shouldn't work that way. The federal government should adapt to the year 2025, lean into technological advancements, uh, using potentially AI and automation to get these documents out more quickly. It shouldn't be such a human-intensive process.

Chairman Chuck Grassley (R-IA)SPEAKER_08

He just brought up AI, so a question to you, Dr. Epstein. For the past several years, the Chief FOIA Officers Council has considered impacts of artificial intelligence. The requester community, too, has debated the possible promises and perils of using AI. In your view, how could AI improve FOIA process?

Daniel Z. EpsteinSPEAKER_04

Yeah, thank you, Senator. So, I think one thing is that AI can be directly relevant to reading rooms. Often you will get agency reading rooms that— I mean, I just think about the FBI Vault, where the ability to find useful documents is very difficult. It's not using the best kind of document discovery software. And I think there's at least two things: One is because so much of, I mean, virtually all agency records are now on the cloud, using AI as a tool for agencies to search for records would substantially reduce processing times, right? AI is effectively a predictive model that can locate, well, 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. I think the other thing is that, in contemporary times, a lot of transparency organizations are very pro-tech, which is to say there's nothing that says that you can't have an API attached to government reading rooms that allows FOIA requesters to very efficiently download documents and then upload them into their own technological solutions. I think generally using AI in the federal government for transparency would be a good thing.

Chairman Chuck Grassley (R-IA)SPEAKER_08

Senator Durbin.

Ranking Member Dick Durbin (D-IL)SPEAKER_05

Thank you, Chairman Grassley. One can 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 recall as part of our cabinet. But I believe that the courts have concluded that despite their protestations to the contrary, that DOGE is probably required to comply with FOIA. At least that's the status as we currently look at it. I worry about where this is headed if an agency with the power to eliminate federal agencies is not subject to FOIA. What is motivating these people? What activities are they engaged in? What disclosures should they make to the American public? Apparently, they don't believe there's anything they should disclose to the American public. Professor Kwoka, what's your opinion?

Margaret Benvignati KwokaSPEAKER_02

Thank you, Senator Durbin. There are— there's, as you noted, the question about whether DOGE is subject to FOIA is currently in the courts. It's a longstanding doctrine under FOIA that agencies that exercise their own independent authorities under the government are subject to FOIA, whereas the president's closest advisers are not. And the president, of course, 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 in this instance, as they have in the past. The preliminary ruling that you're referring to was preliminary, but does indicate that the district court that currently has the case that's furthest along does view DOGE as likely to be subject to FOIA's requirements. It looks like that case may be moving into 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. And at this point, I see no reason to believe that the courts are not capable of making that determination. As to why an agency or a government entity would prefer to exempt itself from transparency, I think over the history of of governments, it has been shown that transparency is uncomfortable and that there are lots of reasons why government entities try to avoid it. But I think it's important to remember that transparency requirements serve two functions. One is to let the public know what the government is doing and to uncover any sort of misconduct or abuse of power. And the other is to deter that abuse of power and misconduct. When government officials know that what they will— what they're doing will come to light, they are less likely to act improperly. And so I think the faithful application of FOIA in this case, like in every other case, is extremely important.

Ranking Member Dick Durbin (D-IL)SPEAKER_05

And of course, there's another way to foil FOIA, and that would be what's happening at the Department of Health and Human Services, where the newly minted Secretary Robert Kennedy just fired personnel charged with handling FOIA requests at the CDC and the Food and Drug Administration. He did this after stating, and I quote, "Public health agencies should be transparent, and if we want Americans to restore trust in public health agencies, we need transparency." Reportedly, FOIA staff at numerous other agencies have also been fired. So what is the practical impact when the FOIA agency within the agency is virtually empty when they open the door to the office, Dr. Epstein?

Daniel Z. EpsteinSPEAKER_04

Thank you, Senator. Um, well, I think one thing is, and I don't know the specifics of those firings, but I think Certainly, uh, those circumstances should increase the obligation to make proactive disclosures. Um, I would say in my own experience, one of the things that was most surprising to me, um, 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, um, searches for the purpose of disclosure. Um, so it would seem to me that if you're removing staff and still bound by compliance requirements, you're going to have to find some ability to conduct searches and productions of documents. And that just may mean relying on contractors versus employees,

Ranking Member Dick Durbin (D-IL)SPEAKER_05

unless the administration happens to believe that concealing this information is important enough to defy the law. Correct.

Daniel Z. EpsteinSPEAKER_04

I don't know the specifics of that, but often, 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 4 years. I think every administration has a good faith goal of complying with FOIA. Often, it's not the top priority for the White House, and it's generally managed by career civil servants. But there certainly are challenges with fully responding to these requests. They're massive and they take time.

Ranking Member Dick Durbin (D-IL)SPEAKER_05

Thank you, Senator Grassley. Thank you.

Chairman Chuck Grassley (R-IA)SPEAKER_08

See, I'm going to offer for what you follow up on with HHS this explanation that we got from them about that, that the Department of Health and your mic's not on — I'm sorry 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. We look forward to a streamlined FOIA offices that can reduce backlogs and better provide transparency. On my side, we have this order of people coming in: Kennedy, Moody, and Cornyn, and now the senator from Missouri. So we'll go to Senator Kennedy.

Senator John Kennedy (R-LA)SPEAKER_00

Let me start over. My mic was off. Thank you all for being here. I listened to all of you with great interest. Professor, do you believe that people respond to incentives?

Margaret Benvignati KwokaSPEAKER_02

Thank you, Senator. I do believe that people respond to incentives.

Senator John Kennedy (R-LA)SPEAKER_00

Do you believe that what you allow is what will continue?

Margaret Benvignati KwokaSPEAKER_02

I suppose I do.

Senator John Kennedy (R-LA)SPEAKER_00

Okay. I listened to all of you talk about enhancing affirmative disclosure requirements.

SPEAKER_UNKNOWN

Um,

Senator John Kennedy (R-LA)SPEAKER_00

strengthening the presumption of disclosure. I listened to you talk about consultants. Um, I, I listened to you talking about the need for a, a, a public interest balancing test. Um, 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?

Margaret Benvignati KwokaSPEAKER_02

Certainly, Senator. There are systems, other jurisdictions around the world that do have, in fact, personal penalties for government officials.

Senator John Kennedy (R-LA)SPEAKER_00

Do you recommend it for us?

Margaret Benvignati KwokaSPEAKER_02

I don't think that we're at the point where we necessarily have to take such a step in order to drastically change the incentives that

Senator John Kennedy (R-LA)SPEAKER_00

Why not? All administrations stall and restall in turning over documents to the American people, don't they? Does anybody disagree with that? It's not a Democrat thing or a Republican thing. It's an executive branch thing, isn't it?

Margaret Benvignati KwokaSPEAKER_02

It absolutely is. I do not disagree with that. It is.

Senator John Kennedy (R-LA)SPEAKER_00

So why don't we hold the people responsible personally responsible? I'm not saying not afford them due process. You may want to require bad faith with a with a reasonable, not an impossible definition of bad faith. If you want to solve this problem, why don't you just create personal liability, Mr. Howell?

Mike HowellSPEAKER_03

I think that's a terrific idea. Right now, the, the mechanism to have liability is basically in attorney's fees, and those are rarely given out. So the government really is never forced to pony

Senator John Kennedy (R-LA)SPEAKER_00

up. Well, the employees don't care if they, if the government gets hit with attorney's fees, do

Mike HowellSPEAKER_03

Correct. And that's why the Department of Justice is willing to tolerate us suing them 100 times, because we all pay for their lawyers.

Senator John Kennedy (R-LA)SPEAKER_00

Look, 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, but I'm talking about in bad faith. That's clear. And 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 you just hold people personally responsible? What about it, Doctor?

Daniel Z. EpsteinSPEAKER_04

I actually fully agree. And I would point out that there's a mechanism in the FOIA statute currently where, if it turns out that there's evidence of an agency or an agency employee intentionally withholding documents without a reasonable basis, a judge could, in issuing that order, make that finding.

Senator John Kennedy (R-LA)SPEAKER_00

Um, and when's the last time that happened?

Daniel Z. EpsteinSPEAKER_04

Almost never.

Senator John Kennedy (R-LA)SPEAKER_00

Yeah, it hasn't happened in the history of ever, has it?

Daniel Z. EpsteinSPEAKER_04

Yeah.

Senator John Kennedy (R-LA)SPEAKER_00

No. Yeah And until Congress makes it very clear that we're serious about this, we're going to be equal opportunity pit bulls here and 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're going to be personally liable. That's going to work, isn't it?

Daniel Z. EpsteinSPEAKER_04

Well, 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 these

Senator John Kennedy (R-LA)SPEAKER_00

employees, deny them due process,

Daniel Z. EpsteinSPEAKER_04

right?

Senator John Kennedy (R-LA)SPEAKER_00

I'm not, I'm not saying, uh, um, an ordinary negligence standard. I'm just, I'm 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.

Chairman Chuck Grassley (R-IA)SPEAKER_08

Senator Whitehouse.

Senator John Kennedy (R-LA)SPEAKER_00

I still had 9 seconds left.

Chairman Chuck Grassley (R-IA)SPEAKER_08

Proceed.

Senator John Kennedy (R-LA)SPEAKER_00

No, I yield mine back. But I do want to say, Professor Whitehouse has some interesting thoughts about, about enforcing orders that he and I have talked about, so I'm going to listen to him carefully here.

Senator Sheldon Whitehouse (D-RI)SPEAKER_07

Senator 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 constitutional principle of congressional oversight should allow us in this body access to executive branch records ideally better than FOIA, because FOIA's open to the world and 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. And, you know, there's always an instinct here to protect the 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 congressional 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 president 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. So 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. If 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. And that's wrong, inconsistent with our responsibilities of oversight, and inconsistent with the Reagan memo that they purport to be enforcing. It 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. 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's really no way to go forward through that process, because DOJ is no longer a fair interlocutor between executive agencies and Congress. It 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. It will go basically whichever way the administration sends it, and OLC has set basic parameters that are highly toxic to proper congressional oversight. 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—and again, my thanks to Senator Kennedy for his attention to all of these issues—this 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. And 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, the 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 is hardly conducive to improving transparency and access to America's citizens to government information through FOIA.

Senator Ashley Moody (R-FL)SPEAKER_01

Thank you. You know, it's astounding to me. I'm almost aghast, actually, that we're hearing brought up time and time again Senator 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, when that was undoubtedly the greatest government gaslighting in the history of our nation on some pretty catastrophic cover-ups. Specifically, 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. 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. The whole point of the Freedom of Information Act is to make sure that we the people can assess the performance of our government. And 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? It's saddening that you had a state that had to do a grand jury investigation to get information. And is it shocking to anyone that the new administration came in, having seen the damage and the carnage over the last 4 years related to COVID and deaths and immigration and an overrun and a surge of inadmissible and dangerous people of our nation, is it any doubt or surprise that this new administration would go, Those people who are in charge of answering to we the people have got to go? That 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— I mean, 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. 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 and deporting them, when they started pushing and actually start saying that we needed quotas to mass-release into our interior people that were inadmissible or dangerous, when they started releasing people on the terrorist watchlist into our nation, when they started hiding information on why they were pushing out things related to COVID. I mean, these were 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 that our government was being accountable to us. And in 2023, the U.S. government agencies censored, withheld, or claimed records could not 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. I mean, thankfully, I took it as a responsibility. When it was like the Wreck-It Radicals unleashing on our nation, I took it as we'll be Fix-It Florida and do whatever we need to do to get the information to the people. But the reality is we now have an administration that says, Okay, we're going to try and deal with the career-embedded people that withheld from we the people. But we now, as Congress, need to say, how did this happen? How could you have that go on, that gaslighting go on and have people in—Mayorkas, Kamala Harris say repeatedly, repeatedly, repeatedly, The border is secure, and you can't check us on it because we're going to withhold all the information from you? What is the biggest change we could make to the statutes right now, Mr. Howell, that would prevent that from ever happening again?

Mike HowellSPEAKER_03

So, 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, law 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.

Senator Ashley Moody (R-FL)SPEAKER_01

Thank you, Senator Cornyn.

Senator John Cornyn (R-TX)SPEAKER_06

Mr. Chairman, I guess he's not here right now. He's at Finance. But I'm glad we're having this hearing today. I guess it was Justice Brandeis who said that sunlight is the best disinfectant. But it strikes me, as we're 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. Because if if government officials have good news, boy, they're they're quick to tell you. If they got bad news, then they're quick to hide that the best they can and and to prevent that from becoming public. But the American people deserve to know the good, bad, and the ugly, which of course is the goal of of FOIA. But as we know, and has been pointed out by Dr. Epstein and others, FOIA has become so bureaucratic. It's become a big game. It's become a a refuge for the passive-aggressive, and basically the loser is is the American public, whose government this is after all. And we've got to find a way to do much better than we are doing now. 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. You know, the this would never survive in the in the public domain, but in government, it becomes standard operating procedure. And it's enormously maddening to not just me, but to I'm sure to many, many other people. But I I noted with interest the the question that about DOGE from from the senator from Illinois. And actually, I think DOGE is a great example of how we have now learned things about the government that were never before identified or highlighted or exposed. And, you know, maybe there needs to be some procedures put in place to figure out what what their obligations are. But my impression is the 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 have been wasted. But 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 and just it's just shocking to see how far the government has lagged when it comes to the kind of technology that's used on a on a daily basis in the private sector. Dr. Epstein, can you speak to that? What what do we need to do to make sure that we can actually bring the government into the out of the Dark Ages when it comes to technology and using that? We've Senator Grassley talked a little bit about AI, but it's not just limited to things like AI.

Daniel Z. EpsteinSPEAKER_04

Yeah, thank you, Senator. You 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. So, the Federal Records Act works hand in hand with FOIA. And I think a lot of this is not simply technology that helps information get disclosed, but technology that helps with preservation of information. And so I think, right, using— I think there needs to be a congressional focus on technological requirements, what types of e-discovery tools are used by agencies. And the kind of ironic thing is having the best technology is not going to be a financial burden on these agencies. In many ways, it makes employees more efficient, it makes the processes more efficient. You presumably don't have to use dozens of Deloitte analysts to process records. And I think if Congress can develop specific technological criteria, that would go a long way.

Senator John Cornyn (R-TX)SPEAKER_06

Professor—is it Kwoka? Professor Kwoka and Mr. Howell, I am a recovering judge. I sat for 6 years on the trial bench and on the Supreme Court of Texas for 7 years after that. I was Attorney General when I had the responsibility for enforcing what we call the Open Records and Open Meetings Act in Texas. But I just wonder, Senator Kennedy line of questions about things that we can do to incentivize people to do what they should do anyway, it 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, what 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? Do you have any thoughts along that line?

Margaret Benvignati KwokaSPEAKER_02

I do, Senator. The 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 both for agencies and for the public, it's actually quite rare in terms of how many FOIA requests that are denied actually make it into court. And that's because litigation is very difficult for the public. It requires time-intensive resources, experience, hiring a lawyer, things that most average members of the public cannot do. So having alternative remedies that are more available to the public, for example, strengthening the remedies at OGIS, resourcing that office better for mediation services, or perhaps even more binding decisions from that office, might give more oversight to agencies and more incentives for the agencies to perform better. The second thing I'll say about incentives is that although there are certainly egregious cases where there are bad faith denials, and there might be political denials, and the examples that have been discussed about requests from Congress might fall into some of those examples, but 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. It's individuals who are seeking their own files, the examples that 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. And when you look at these ordinary types of requesters, the reason that they are frustrated, that they are being denied is a resource question. We don't have enough resources, both technology resources, which I absolutely agree should be invested, and I think resources from Congress would would go a long way to doing that. I forgot to hit the button. And 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. I 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. And 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.

Senator John Cornyn (R-TX)SPEAKER_06

Well, while I still have the gavel—the chairman's gotten back, come back, but I want to ask Mr. Howell to respond to that. I think you're exactly right, Professor. It costs a lot of money and takes a lot of time. Most citizens aren't going to be able to have the resources or expend the time and effort in order to get the government to do what it ought to do in the first place. And I wonder whether there are, as I said, things like mandatory requirements for judges to order sanctions for frivolous defenses to FOIA litigation or the like. Mr. Howell, do you have thoughts?

Mike HowellSPEAKER_03

I think it's a very important question and one that the judiciary would quite appreciate because they don't— it's terrible for judicial economy to have this many cases, particularly in D.C., going through litigation. And so all of the menu of options you laid out drive towards cleaning that up, and I think all should should be explored. One thing that we've done, and Professor Epstein made reference to, is we've filed a pattern and practice claim against the Federal Bureau of Investigation for the tricks they use routinely to obstruct FOIA litigation. And should a good ruling come in in one of those cases, I think it would go a long way to to clear up that this type of behavior is not to be tolerated.

Senator John Cornyn (R-TX)SPEAKER_06

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. That'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. Thank you, Mr. Chairman.

Ranking Member Dick Durbin (D-IL)SPEAKER_05

Mr. Chairman, I just want to add, or add to the record, a fact. While you were gone, there was a lot of discussion about the record of the Biden administration when it came to FOIA. And I'd just like to make a matter of fact that in fiscal year 2023, agencies under the Biden administration received and processed a record 1,199,699 FOIAs. That is a record. The suggestion was made earlier that exact opposite was true. I just wanted to clarify that. Thank you, Mr.

Chairman Chuck Grassley (R-IA)SPEAKER_08

Chairman. I want to conclude this hearing by saying thank each of you for taking the time to share your personal views, your expertise, and your perspective with us. Written questions can be submitted for the record until Tuesday, April 15th at 5:00 p.m. I'll ask you as witnesses to answer and return the questions if you can by Tuesday, April 29th. Thank you all very much. Meeting adjourned.