This morning the Archive’s Executive Director, Tom Blanton, is testifying before the Senate Judiciary Committee for its hearing on “Ensuring an Informed Citizenry: Examining the Administration’s Efforts to Improve Open Government,” which can be viewed here. Below is a copy of Blanton’s “must read” testimony.
Statement of Thomas Blanton
Director, National Security Archive, George Washington University
Before the United States Senate Committee on the Judiciary
Hearing on “Ensuring an Informed Citizenry: Examining the Administration’s Efforts to Improve Open Government”
Dirksen Senate Office Building, Room 226, Washington D.C.
Wednesday, May 6, 2015
Mr. Chairman, distinguished members of the Committee: thank you very much for your invitation to testify today about open government and the Freedom of Information Act. My name is Tom Blanton and I am the director of the independent non-governmental National Security Archive, based at the George Washington University.
At the Archive, we are veterans of more than 50,000 Freedom of Information requests that have changed the way history is written and even how policy is decided. Our White House e-mail lawsuits against every President from Reagan to Obama saved hundreds of millions of messages, and set a standard for digital preservation that the rest of the government has never yet achieved, as we know from the State Department. The Archive has won prizes and recognition ranging from the James Madison Award that Senator Cornyn deservedly received this year from the American Library Association – joining Senator Leahy in excellent company – to the Emmy Award for news and documentary research, to the George Polk Award for “piercing self-serving veils of government secrecy.”
This year we completed our 14th government-wide audit of agency FOIA performance, with more recommendations like the ones this Committee included in the landmark Cornyn-Leahy amendments in 2007 and again last year with the excellent FOIA reform bill this Committee passed unanimously through the Senate. My statement today addresses each of these areas of open government performance, and the lack thereof.
But first, I want to say that it is an honor to be here today on this panel with the general counsel of the Associated Press. Not only was the AP one of the founders of the now-ten-year-old Sunshine Week, the AP consistently ranks among the most systematic and effective users of the Freedom of Information Act. I am especially grateful to the AP for taking on the number-crunching task of making sense of agency annual reports on FOIA, and providing a common-sense analysis that parts ways significantly from the official spin. The White House proudly repeats Justice Department talking points claiming a 91% release rate under FOIA. But the AP headline reads, “US sets new record for denying, censoring government files.” Who is right? The AP is.
The Justice Department number includes only final processed requests. This statistic leaves out nine of the 11 reasons that the government turns down requests so they never reach final processing. Those reasons include claiming “no records,” “fee-related reasons,” and referrals to another agency. Counting those real-world agency responses, the actual release rate across the government comes in at between 50 and 60%.
In the National Security Archive’s experience, most agency claims of “no records” are actually an agency error, deliberate or inadvertent. I say deliberate because the FBI, for example, for years kept a single index to search when a FOIA request came in, even though that index listed only a fraction of the FBI’s records. But the FBI could say with a straight face, we conducted a full search of our central index, and found no records, and the requesters would go away. Only when we called them on their abysmally high rate (65%!) of no-records responses (most agencies were averaging closer to 10%), did the FBI change their process.
I say inadvertent because FOIA officers may not know where the documents are, and most often the requester doesn’t either. This is why dialogue between the agency and the requester is vital, why a negotiating process where the agency explains its records and the requester in return narrows her request, makes the most sense. This is why the Office of Government Information Services is so important, to mediate that dialogue, to bring institutional memory to bear, and to report independently to Congress about what is going on. This is why the original Freedom of Information Act back in 1966 started with the requirement that agencies publish their rules, their manuals, their organization descriptions, their policies, and their released records for inspection and copying. This kind of pro-active disclosure is essential, and our most recent audit showed “most agencies are falling short on mandate for online records.”
I’ll come back to that point, but let me first give you some of the big picture, since you are examining this administration’s overall performance on open government. The tenth anniversary of Sunshine Week this spring prompted some tough questions: are we doing better than when we started that Week 10 years ago, or worse, or holding our own? As with so many multiple-choice questions, the answer is probably “all of the above,” but I would also argue, mostly better – partly cloudy. My daddy of course once shoveled four inches of partly cloudy off the front steps, so we have a ways to go.
UNREDACTED: The National Security Archive Blog 