House Oversight and Government Reform Committee Chairman Jason Chaffetz thinks there's a bad case of grade inflation when federal agencies assess their Freedom of Information Act programs.
Near the end of a marathon, two-day hearing on FOIA that included brutal reviews of federal agencies by journalists and activists, Chaffetz was scathing when describing a positive 2014 self-assessment by the Justice Department.
The department, in the government-wide assessment, credited itself for taking steps to apply the "presumption of openness," to ensure an effective system for responding to requests, to improve timeliness of response, and more.
"Are you kidding me? The Department of Justice gives themselves a five out of five on proactive disclosure? You really think anybody in the world believes the Department of Justice is ... at the top of their game?" Chaffetz asked Melanie Anne Pustay, who heads the Justice Department's Office of Information Policy.
When she defended Justice's performance, Chaffetz replied: "You live in la-la-land. You live in a fantasy land because it ain't working." He then broadened his criticism.
"We are at the heart of why I think there is a problem, because you all think you are doing a great job," he said, later noting: "Across the board, most every one of you got great scores, and I just don't buy that."
To be sure, the lawmaker and Justice Department official may have been talking past each other. The intricate scorecard in question explores a wide range of program attributes and processes, and Pustay bristled when Chaffetz said the scorecard shows that Justice believes it has no room for improvement.
"That is not true at all," she said. Still, the exchange exemplified the clear exasperation among critics of federal agencies' responses to FOIA requests.
The hearing also provided a forum for battles over Hillary Clinton's use of private emails. GOP Rep. Trey Gowdy got Joyce Barr, the State Department's chief FOIA officer, to repeatedly acknowledge that it was Clinton's team alone that decided which emails to deem personal and which ones to provide to the State Department last year.
"What assurance can you give the public that the State Department has everything [that should be public record]?" Gowdy asked. Gowdy is chairman of the Select Committee on Benghazi and also sits on the Oversight and Government Reform Committee.
"She has assured us that she gave us everything she had, and like we do with other federal employees, we have to depend on them to provide that information to us," Barr said. She also noted that Clinton "has told us that she erred on the side of inclusion."
But a number of Democrats sought to argue that GOP attention to Clinton's records represents a double standard. Several Democrats raised the email practices of Bush-era Secretaries of State Colin Powell and Condoleezza Rice. Ranking member Elijah Cummings said there are "significant questions" remaining.
Officials from five agencies appeared Wednesday before the Oversight panel, after Chaffetz on Tuesday accused the White House of imposing a years-long "chilling effect" on document releases.
"We are fully committed to achieving the president's and attorney general's vision of open government," said Pustay, citing 2009 open-government mandates. Her office works with other agencies on implementing FOIA.
Pustay's testimony acknowledged that the backlog of FOIA requests has grown overall, but she cited initiatives to tackle the problem and noted that this has happened against the backdrop of growing numbers of requests, from 557,825 in fiscal year 2010 across the federal government to 714,231 in fiscal year 2014.
Pustay pointed to a number of guidance memos that her office has sent to other agencies on improving responsiveness to FOIA requests. She also noted that, in fiscal 2014, the government "reported its lowest staffing levels dedicated to FOIA in the past six fiscal years."
On Tuesday a number of journalists and transparency advocates spent hours telling the committee about years-long delays in agencies' response to requests.
Critics said the blame doesn't lie with the volume of requests—instead they slammed the administration for problems, including a culture of unresponsiveness, excessive redactions, and overuse of exemptions from disclosure allowed in the statute.
On Wednesday, officials from the Departments of State, Homeland Security, Treasury, and Justice, as well as the Internal Revenue Service, appeared before the panel. Their prepared testimony is here.
"The agencies before the committee today need to bring sunshine to their FOIA programs. Agency leadership has failed to make FOIA a priority. And that makes the job of the witnesses before the committee today more difficult, if not impossible," Chaffetz said Wednesday.
Barr said the State Department has a backlog of more than 16,000 requests, which she acknowledged is "unacceptable."
She said State has made progress in attacking the backlog but acknowledged "we are struggling to keep up with a large increase in FOIA requests" that have grown 300 percent since 2008, and she also said many cases have grown "increasingly complex."
The hearing came a day after Chaffetz laid blame at the feet of the White House, citing a 2009 memo from then-White House counsel Greg Craig to agencies saying that they should consult with the White House counsel's office on document requests that "may involve White House equities."
"This is the heart of the backlog. The heart of the backlog lies in this memo," Chaffetz said Tuesday. "You want to see the bottleneck, look at the White House."
But Mary Howard, the top FOIA official at the IRS, said Wednesday under questioning from Chaffetz that she has not consulted with White House on document requests under the records law.
"We don't have interaction with the White House on FOIAs," said Howard, director of the agency's privacy, governmental liaison, and disclosure division, who said she "ignored" the memo.
Cummings, the committee's top Democrat, said on Wednesday that the Obama administration has been more transparent than its predecessor. "There is simply no comparison. None," Cummings said.
The White House is striking back against the attacks on its transparency record and took a shot of its own at lawmakers bashing its record, noting that Congress is not subject to FOIA.
"[T]hose who are interested in advocating for genuine transparency in government should advocate for Congress being subject to those kinds of transparency measures," White House press secretary Josh Earnest said.
In March, the committee approved bipartisan legislation to improve federal FOIA implementation, a measure sponsored by Cummings and Republican Darrell Issa, the panel's former chairman.
But Chaffetz and Cummings say they plan to strengthen the legislation. Chaffetz told National Journal that one goal is to help prevent agencies from overusing exemptions in the law.
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