House Oversight Committee probes DHS FOIA practices

Despite claimed processing improvements, House Oversight and Government Reform committee members expressed concern today that the U.S. Department of Homeland Security's federal Freedom of Information Act procedures have not reflected the pro-transparency policies announced by the Obama administration.

Much of the hearing focused on a DHS Office of Inspector General report released yesterday documenting the department's FOIA implementation practices. The report noted that progress has been made, for example, in the greater proactive disclosure of documents and increasing the number of records released in full. However, examples of "statutory noncompliance and inefficiencies" caused when some "significant" requests were reviewed were noted in the report, which essentially noted that there were significant delays in the FOIA process due to the system in place.

Specifically, the Inspector General mentioned requests that went through different offices, including Office of the Secretary and Office of the General Counsel, for further review before release. "Significant" requests were defined as requests pertaining to ongoing litigation, sensitive topics, requests made by the media and information relating to presidential or agency priorities. An overuse of exemptions and redactions, specifically in requests made by the Associated Press, was also highlighted in the report.

Rep. Trey Gowdy, R-S.C., questioned why the fact that the media has made a request is important and why that information is included in the request in the first place. He asked: "Why does it matter whether or not someone's a private person or whether they're a reporter?" and "Why would that have been part of the calculus that was used [to determine disclosure]?"

Witness Mary Ellen Callahan, the chief FOIA officer and chief privacy officer for DHS, responded that publicly accessible FOIA request logs often document who is requesting the information. Although employment information is "not usually disclosed . . . sometimes the media affiliation may be part of the FOIA law," she said.

Committee Chairman Darrell Issa, R-Calif., accused DHS of "politicizing" the FOIA process, claiming political appointees at DHS were "inappropriately injecting partisan political considerations into the process." Witnesses denied this allegation, but acknowledged that there is a notification system.

Callahan said there has been an "FYI [for your information] review" since 2006 that alerts appointees that information pertaining to them or their work will be disclosed under an FOIA request. However, they do not prevent the disclosure of these requests, nor do they further alter documents before disclosure, Callahan said.

Not all committee members voiced DHS criticism. Rep. Peter Welch, D-Vt., allowed Callahan to further explain the efforts DHS has made thus far in FOIA compliance and transparency. In response, Callahan said there have been "Herculean efforts" to improve the DHS FOIA process. In these efforts, Callahan mentioned to utilization of technology to reduce processing delay inefficiencies. For instance, rather than the FYI review being conducted through e-mail, such announcements are now made through an online intranet system.

The amount of time DHS takes to process FOIA requests was also a concern of Issa's. He asked Callahan: "Is eventual [disclosure] good enough? Is a delay of 3 days, 30 days or 90 days OK and still compliant with FOIA in your opinion?"

Callahan said that these delays do not meet her "high standards."

"[D]espite my high standards, the average processing time for FOIA as a department is 95 days . . . The delays are not appropriate . . . and we are trying to mitigate that problem," she continued.

Gowdy also brought up the department's overuse of exemptions and redaction, which was noted in the Inspector General's report. "The Inspector General's report raises an issue that I have not previously identified, which is that the department has been using the exemption (b)(5) . . . increasingly throughout the past several years," Callahan agreed. Exemption (b)(5) applies to privileged "interagency or intra-agency memoranda or letters".

An example of the department's use of the exemption Gowdy presented was a redacted phrase from an e-mail which read: "This is bananas!" To this example, Callahan had no answer as she stated the specific FOIA request was not fulfilled by her office.

Ranking Member Elijah Cummings, D-Md., commended Callahan for her high standards and acknowledged the improvements that have been made thus far. He asked if there were any plans in place to reduce the use of (b)(5) exemptions in the future, but neither Callahan nor fellow witness Ivan Fong from the Office of the General Counsel with DHS had an answer.

During the second panel, Rep. Dennis Ross, R-Fla., asked witness John Verdi if his organization, the Electronic Privacy Information Center, had noticed improvements when making FOIA requests to DHS.

Verdi, senior counsel for the Electronic Privacy Information Center, said that they have not seen an improvement in the past year, noting "[w]e have maintained a 100 percent noncompliance rate" with respect to the 20-day deadline required by FOIA.