Prepared Statement of Senator Chuck Grassley of Iowa
Ranking Member, Senate Committee on the Judiciary
Hearing on ‚ÄúOpen Government and Freedom of Information:
Reinvigorating the Freedom of Information Act for the Digital Age‚ÄĚ
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‚Äôve said before, it‚Äôs 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‚Äôll 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‚Äôs not a change in attitude.
On this point, at last year‚Äôs hearing I questioned what the Justice Department was doing to improve the way people think about transparency. I hope to hear today what‚Äôs been done to change the so-called ‚Äúculture of obfuscation among Freedom of Information officials.‚ÄĚ
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 ‚Äúculture of obfuscation‚ÄĚ problems. I‚Äôm concerned, though, that rather than lead in a positive way, the Justice Department has acted in a way that‚Äôs contrary to the President‚Äôs transparency promise.
I‚Äôm 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‚Äôs argument. The D.C. Circuit said the government‚Äôs position would create a ‚ÄúCatch-22‚ÄĚ situation, leaving requesters in limbo for months or years. That result isn‚Äôt what Congress or the law envisions. I‚Äôm glad the court got this one right, but it‚Äôs a shame that it even had to consider the question.
What message does the Justice Department‚Äôs argument send to other agencies? I fear this ‚Äúdo as I say, not as I do‚ÄĚ approach emboldens agencies to craft legal maneuvers that undermine Freedom of Information compliance. That‚Äôs what the Federal Election Commission did and the Justice Department was right there to help them in court.
Given the Justice Department‚Äôs 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‚Äôve had my own challenges in obtaining information from this administration. If it‚Äôs 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‚Äôll 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‚Äôll note that recently the House of Representatives unanimously passed bipartisan Freedom of Information legislation. That‚Äôs 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‚Äôll continue to examine this issue and others, but here‚Äôs a bill that we should take serious and examine closely.
There‚Äôs a lot of room for improvement and I look forward to asking our witnesses about some of these concerns I‚Äôve raised today.