STATEMENT
OF
ETHAN M. POSNER
DEPUTY ASSOCIATE ATTORNEY GENERAL
BEFORE THE
SUBCOMMITTEE ON GOVERNMENT MANAGEMENT, INFORMATION, AND TECHNOLOGY
COMMITTEE ON GOVERNMENT REFORM
U.S. HOUSE OF REPRESENTATIVES
CONCERNING
THE ELECTRONIC FREEDOM OF INFORMATION ACT AMENDMENTS OF 1996

PRESENTED ON
JUNE 14, 2000

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Mr. Chairman and Members of the Committee:

Good afternoon. I am Ethan Posner, Deputy Associate Attorney General at the United States Department of Justice. The Office of the Associate Attorney General oversees the Department's civil litigating components, including the Antitrust, Civil, and Civil Rights Divisions, as well as numerous other Department components and offices, including the Office of Information and Privacy ("OIP"). My particular oversight responsibilities include OIP, which manages the Department's responsibilities related to the Freedom of Information Act ("FOIA") and the Privacy Act.

On behalf of the Department, I am pleased to testify about the Electronic Freedom of Information Act Amendments of 1996 ("EFOIA"), 5 U.S.C. § 552 (1998). For more than thirty years, FOIA (as amended by EFOIA) has been used by our citizens to learn about their government's operations and activities. Today, FOIA is a vital part of our democratic system of government.

Attorney General Janet Reno has been strongly committed to FOIA, to its proper implementation, and to the principles of openness in government that it embodies. As the Attorney General told hundreds of FOIA agency personnel last year, "FOIA is at the heart of open government and democracy cannot be effective unless its people understand [FOIA's] processes." Through these and other statements, the Attorney General has fostered a personal and sustained commitment to FOIA throughout the Department of Justice. Under her leadership, we have placed a sustained priority on improving our FOIA service to the American people by making available to the public as much government information as possible.

I. The EFOIA Amendments

FOIA was strengthened greatly with the 1996 enactment of EFOIA, which brought FOIA into the electronic information age by promoting the use of advanced information technology, including the Internet, to disclose Federal agency information to the public. EFOIA requires federal agencies to perform three major tasks:

• make available in an agency reading room released information that has "become or [is] likely to become the subject of subsequent requests for substantially the same records" ("frequently requested records");

• make available the reading room records "created on or after November 1, 1996" in "electronic reading rooms," such as on the Internet; and

• use "reasonable efforts" to search for information in electronic form in response to a FOIA request and to produce information in the particular format preferred by the requester.

EFOIA also requires agencies to make a "general index" of the frequently requested records available on computer by December 31, 1999; and to maintain "a guide" (or reference material) that would assist the interested public in obtaining agency records. Finally, EFOIA established new reporting requirements for the contents of the annual FOIA reports that are prepared by all Federal agencies. Under EFOIA, these annual reports were shifted to a fiscal year timetable and were required to be made available to the public by the Department of Justice at "a single electronic access point."

Overall, we believe federal agencies are in substantial compliance with EFOIA. Indeed, just in the past few years, federal agencies have posted approximately 100,000 pages of important FOIA-related documents on the Internet. This accomplishment is a testament to the importance and success of EFOIA.

II. The Department of Justice FOIA Web Site

Since the enactment of EFOIA, agency FOIA web sites have proliferated and today have become the principal means by which agencies comply with EFOIA. Over the past few years, the Department of Justice has developed a comprehensive FOIA web site, which is easily accessed through a specific FOIA link on the Department's home web page, www.usdoj.gov. The Department's FOIA web site is organized by seven major categories -- "Making a Request," "Reading Rooms," "Reference Guide," "Department Components," "Other Agencies," "Annual Reports," and "Reference Materials." Taken together, these categories offer the public tens of thousands of pages of released records, FOIA reference materials, and other relevant and informative documents.

For example, under the section entitled "Making a Request," the Internet-using public can access DOJ's FOIA and Privacy Act regulations and the DOJ FOIA Reference Guide, which explains how to make a FOIA request to the Department and provides relevant addresses. In the "Reading Rooms" section, the public can browse through tens of thousands pages organized by Department components - e.g., policy statements of the Attorney General, Deputy Attorney General, and other Department components, the Department's health care fraud annual reports, the 660-page DOJ Guide to the FOIA, OIP's FOIA Updates, final opinions of the Board of Immigration Appeals, the Antitrust Division's Horizontal Merger Guidelines, and staff manuals such as the United States Attorneys' Manual and the Criminal Division's Federal Grand Jury Practice Manual. We have also made available such frequently requested records as the Office of the Inspector General's FBI Laboratory Investigation and more than 100 Office of Legal Counsel opinions. In addition, the Department electronically posts hundreds of documents, publications, and press releases that are of general public interest but are not specifically required to be made available under EFOIA. Similarly, although also not required by the statute, we have posted the records of dozens of closed FBI investigations, including those on such deceased public figures as Al Capone and Julius and Ethel Rosenberg.

Under "Department Components," interested parties are given a list of each Department component (e.g., Office of the Attorney General, Office of the Associate Attorney General, Civil Division) and a name, address, and phone number of the person to whom FOIA requests should be directed. Likewise, under "Other Agencies," our site links to the FOIA web sites of dozens of federal departments and agencies and provides the names, addresses, and phone numbers for the FOIA coordinators at these departments and agencies. Under "Annual Reports," we have made available, at "a single electronic access point" as EFOIA requires, the FOIA annual reports received from federal departments (starting with the FY 98 reports), as well as DOJ's Annual FOIA Reports and the Department's annual, calendar year EFOIA-required report to the Congress on pending litigation and our efforts to "encourage agency compliance" with FOIA. Finally, the Internet user can obtain an array of informative FOIA guides by accessing our "Reference Materials" section, including DOJ's FOIA Guide, DOJ's Privacy Act overview, and the very useful publication issued by this Committee entitled "A Citizen's Guide to FOIA."

III. Encouraging Agency Compliance With EFOIA

There is no central office in the government which processes FOIA requests for all federal agencies. Each agency is responsible for implementing FOIA and responding to requests for its own records. Likewise, under EFOIA, each individual Federal agency is responsible for implementing EFOIA. The Department of Justice "encourages agency compliance with" FOIA in accordance with the statute. Over the past several years, we have taken the following steps to encourage compliance with the EFOIA amendments.

First, the Department has educated other agencies about the provisions and requirements of EFOIA. Shortly after the enactment of EFOIA, the Department issued written guidance to all Federal departments and agencies and issued OIP Guidance on "Amendment Implementation Questions." More recently, we have disseminated numerous other EFOIA-related publications, such as "Electronic FOIA Amendments Implementation Guidance Outline," "Recommendations for FOIA Web Sites," and "Locating and Maintaining Accurate Information on FOIA Home Pages."

In our "Electronic FOIA Amendments Implementation Guidance Outline," we advised that, although not entirely required by EFOIA, each agency should:

• determine which records fall within EFOIA's new "previously processed records" reading room category based upon its familiarity with the records' subject matter, its knowledge of FOIA requests received in the past, and its best judgment of the types of requests likely to be received by the agency in the future;

• make newly created reading room records available electronically in "electronic reading rooms";

• maintain a record in its conventional "paper" reading room even if that record is placed in its "electronic reading room";

• maintain and make available a copy of a current subject-matter index of all reading room records, which should be updated at least quarterly and made available electronically; and

• explore the capability to receive FOIA requests electronically through agency FOIA sites on the World Wide Web.

In our "Recommendations for FOIA Web Sites," we advised that each agency should take the following steps, most of which again go beyond the requirements of the statute:

• maintain a main FOIA home page and Web site for purposes of FOIA administration;

• place on the agency's main home page (and those of major agency components) an item entry (or "button") that allows immediate access to the FOIA home page from that main home page;

• ensure that main home page item entries are clear and distinct (e.g., through use of the terms "Freedom of Information Act" or "FOIA") in identifying the subject and allowing the Web site user direct access to it;

• ensure that an agency's FOIA Web site includes:

  • the agency's FOIA Reference Guide (including a description of how a FOIA request can be made);

  • the agency's current FOIA/Privacy Act regulations (including any proposed regulations);

  • links to all main FOIA home pages of subsidiary agency components;

  • the agency's annual FOIA reports, listed by year; and,

  • the agency or agency component's electronic reading room;

• designate clearly electronic reading rooms as "reading rooms" and ensure that such reading rooms contain index listings of agency reading room contents (with direct links to reading room records that are electronically available);

• ensure that each main FOIA home page contains a return link to the agency's or component's main home page for ease of Web site navigation by users;

• check links regularly (at least quarterly) to ensure that they are still accurate and current; and

• check regularly the text content of all FOIA home pages, including descriptions of links, to ensure that everything remains up to date.

Second, under the leadership of OIP, we have held a wide variety of FOIA-training programs that range from introductory training sessions for new employees to advanced FOIA seminars conducted for the most experienced agency FOIA personnel. Each year, the Department provides FOIA training to more than a thousand agency FOIA personnel, and EFOIA's requirements have featured prominently in this training. For example, OIP held a conference for the principal FOIA officers of all Federal agencies in order to discuss the Department's FOIA Web site recommendations. This conference stressed the importance of agency Information Resource Management (IRM) personnel to FOIA, and we asked each agency to bring an IRM representative. Finally, OIP staff has addressed hundreds of questions about EFOIA and its implementation through the Department's FOIA Counselor service, in which we also respond to thousands of other agency questions each year by telephone.

Third, as required, the Department issued extensive, formal guidelines to all Federal agencies, in consultation with the Office of Management and Budget, on the preparation and submission of annual FOIA reports under the new procedures and timetable prescribed by EFOIA.

Fourth, Attorney General Reno recently sent a memorandum to the heads of all Federal departments and agencies that specifically addressed the importance of coordinating an agency's FOIA and technical staff. In her memorandum of September 3, 1999, the Attorney General stated that compliance with EFOIA and effective agency FOIA web sites "require[] that an agency's FOIA officers and its IRM personnel work together in a new partnership, with strong institutional ties[.]" For this reason, the Attorney General stated that "[i]t should be a primary mission of each agency's IRM staff [to] facilitate the prompt and accurate disclosure of information through [its] agency's FOIA sites." "This assistance is now vital to the full and proper administration of the Act[,]" the Attorney General added. In an effort to disseminate this message throughout all agency IRM (as well as FOIA) channels, Attorney General Reno asked the heads of all departments and agencies to pay "particular attention to [the memorandum's] distribution to all agency IRM personnel."

In our view, federal agencies generally have followed the Department's extensive guidance and training to develop effective FOIA web sites and otherwise comply with EFOIA. Although there is more work to be done and more progress to be made, we believe that the Department of Justice and other federal agencies have provided materially better service and more responsive government to the American people through our online access efforts. We will continue to encourage compliance with EFOIA and work with federal agencies to improve their FOIA web sites and the kinds of information and FOIA services that are made available to the public via the Internet. We also look forward to working with this Subcommittee on these important issues. I would be pleased to respond to your questions.