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Friday, 14 March 2014 08:19

Prepared Statement of Senator Chuck Grassley of Iowa

Ranking Member, Senate Committee on the Judiciary

Hearing on “Open Government and Freedom of Information:

Reinvigorating the Freedom of Information Act for the Digital Age”

Tuesday, March 11, 2014

Thank you, Mr. Chairman.  I always enjoy this hearing.  It provides us an opportunity to focus on how the government handles the Freedom of Information Act.  As I’ve said before, it’s been my experience that every administration, whether Republican or Democratic, has challenges in providing the degree of transparency desired by so many.

Unfortunately, the current administration, as administrations before, continues to fail to provide the transparency that the President promised.  This is troubling, as we all were told this would be the most transparent administration ever.  We need to do better than the status quo.

I expect we’ll hear about some of the changes in technology that are taking place to make the Freedom of Information Act process better.  This is important and improvements are needed.  But we also must remain focused on improving the way the government thinks about transparency and Freedom of Information.  All of the changes to technology will be futile if there’s not a change in attitude.

On this point, at last year’s hearing I questioned what the Justice Department was doing to improve the way people think about transparency.   I hope to hear today what’s been done to change the so-called “culture of obfuscation among Freedom of Information officials.”

The Justice Department and its Office of Information Policy has a unique and special role with regard to the Freedom of Information Act.  The Office of Information Policy can have a profound impact on Freedom of Information Act policy.  It can tackle head-on the government-wide “culture of obfuscation” problems.  I’m concerned, though, that rather than lead in a positive way, the Justice Department has acted in a way that’s contrary to the President’s transparency promise.

I’m frustrated with the legal argument the Justice Department and the Federal Election Commission made in a recent Freedom of Information case.  In Citizens for Responsibility and Ethics in Washington v. Federal Election Commission, the Justice Department made an argument that, in the view of many, undermined the Freedom of Information Act. 

Fortunately, the D.C. Circuit Court of Appeals, in a unanimous decision, rejected the Obama Administration’s argument.  The D.C. Circuit said the government’s position would create a “Catch-22” situation, leaving requesters in limbo for months or years.  That result isn’t what Congress or the law envisions.  I’m glad the court got this one right, but it’s a shame that it even had to consider the question.

What message does the Justice Department’s argument send to other agencies?  I fear this “do as I say, not as I do” approach emboldens agencies to craft legal maneuvers that undermine Freedom of Information compliance.  That’s what the Federal Election Commission did and the Justice Department was right there to help them in court.

Given the Justice Department’s leadership role with respect to the Freedom of Information Act, this is disappointing, if not downright alarming.  If Justice makes these kinds of arguments, why should anyone be shocked about lack of transparency claims against the government?  As a Senator, I’ve had my own challenges in obtaining information from this administration.  If it’s this difficult for a senator, I can only imagine how much more difficult and frustrating it is for a private citizen.

So, this problem is something we need to address.  I know we’ll hear from the witnesses today about proposals to strengthen the Freedom of Information Act.  These may in fact be needed, but we must first ensure current law is followed, rather than undermined.

I’ll note that recently the House of Representatives unanimously passed bipartisan Freedom of Information legislation.  That’s a real accomplishment these days.  I understand, Mr. Chairman, our staffs are reviewing this legislation and hearing from those in the transparency community.  Overall, the reception seems to be positive, but there are some questions that have been raised regarding, for example, the technology used for handling requests.  We’ll continue to examine this issue and others, but here’s a bill that we should take serious and examine closely.

There’s a lot of room for improvement and I look forward to asking our witnesses about some of these concerns I’ve raised today.

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