[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
ADDRESSING TRANSPARENCY IN THE FEDERAL BUREAUCRACY: MOVING TOWARD A
MORE OPEN GOVERNMENT
=======================================================================
HEARING
before the
COMMITTEE ON OVERSIGHT
AND GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
MARCH 13, 2013
__________
Serial No. 113-9
__________
Printed for the use of the Committee on Oversight and Government Reform
Available via the World Wide Web: http://www.fdsys.gov
http://www.house.gov/reform
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COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM
DARRELL E. ISSA, California, Chairman
JOHN L. MICA, Florida ELIJAH E. CUMMINGS, Maryland,
MICHAEL R. TURNER, Ohio Ranking Minority Member
JOHN J. DUNCAN, JR., Tennessee CAROLYN B. MALONEY, New York
PATRICK T. McHENRY, North Carolina ELEANOR HOLMES NORTON, District of
JIM JORDAN, Ohio Columbia
JASON CHAFFETZ, Utah JOHN F. TIERNEY, Massachusetts
TIM WALBERG, Michigan WM. LACY CLAY, Missouri
JAMES LANKFORD, Oklahoma STEPHEN F. LYNCH, Massachusetts
JUSTIN AMASH, Michigan JIM COOPER, Tennessee
PAUL A. GOSAR, Arizona GERALD E. CONNOLLY, Virginia
PATRICK MEEHAN, Pennsylvania JACKIE SPEIER, California
SCOTT DesJARLAIS, Tennessee MATTHEW A. CARTWRIGHT,
TREY GOWDY, South Carolina Pennsylvania
BLAKE FARENTHOLD, Texas MARK POCAN, Wisconsin
DOC HASTINGS, Washington TAMMY DUCKWORTH, Illinois
CYNTHIA M. LUMMIS, Wyoming DANNY K. DAVIS, Illinois
ROB WOODALL, Georgia PETER WELCH, Vermont
THOMAS MASSIE, Kentucky TONY CARDENAS, California
DOUG COLLINS, Georgia STEVEN A. HORSFORD, Nevada
MARK MEADOWS, North Carolina MICHELLE LUJAN GRISHAM, New Mexico
KERRY L. BENTIVOLIO, Michigan VACANCY
RON DeSANTIS, Florida
Lawrence J. Brady, Staff Director
John D. Cuaderes, Deputy Staff Director
Robert Borden, General Counsel
Linda A. Good, Chief Clerk
David Rapallo, Minority Staff Director
C O N T E N T S
----------
Page
Hearing held on March 13, 2013................................... 1
WITNESSES
Ms. Angela Canterbury, Director of Public Policy, Project on
Government Oversight
Oral Statement............................................... 5
Written Statement............................................ 8
Mr. Jim Harper, Director of Information Policy Studies, CATO
Institute
Oral Statement............................................... 20
Written Statement............................................ 22
Mr. Daniel Schuman, Policy Counsel, Director of the Advisory
Committee on Transparency, The Sunlight Foundation
Oral Statement............................................... 70
Written Statement............................................ 72
Ms. Celia Viggo Wexler, Senior Washington Representative, Center
for Science and Democracy, Union of Concerned Scientists
Oral Statement............................................... 81
Written Statement............................................ 83
APPENDIX
Delivering on Open Government: The Obama Administration's
Unfinished Legacy.............................................. 123
The Honorable Elijah E. Cummings, a Member of Congress from the
State of Maryland, Opening Statement........................... 154
Request to Supplement Angela Canterbury's Testimony in the March
13, 2013 Hearing Record........................................ 156
ADDRESSING TRANSPARENCY IN THE FEDERAL BUREAUCRACY: MOVING TOWARD A
MORE OPEN GOVERNMENT
----------
Wednesday, March 13, 2013,
House of Representatives,
Committee on Oversight, and Government Reform,
Washington, D.C.
The committee met, pursuant to call, at 10:02 a.m., in Room
2154, Rayburn House Office Building, Hon. Darrell E. Issa
[chairman of the committee] presiding.
Present: Representatives Issa, Mica, Turner, Duncan,
McHenry, Walberg, Amash, DesJarlais, Gowdy, Farenthold,
Woodall, Massie, Meadows, DeSantis, Cummings, Maloney, Clay,
Connolly, Speier, Duckworth, and Davis.
Staff Present: Ali Ahmad, Majority Communications Advisor;
Alexia Ardolina, Majority Assistant Clerk; Kurt Bardella,
Majority Senior Policy Advisor; Richard A. Beutel, Majority
Senior Counsel; Molly Boyl, Majority Parliamentarian; Caitlin
Carroll, Majority Deputy Press Secretary; Steve Castor,
Majority Chief Counsel, Investigations; Gwen D'Luzansky,
Majority Research Analyst; Adam P. Fromm, Majority Director of
Member Services and Committee Operations; Linda Good, Majority
Chief Clerk; Christopher Hixon, Majority Deputy Chief Counsel,
Oversight; Mark D. Marin, Majority Director of Oversight; Tegan
Millspaw, Majority Professional Staff Member; Laura L. Rush,
Majority Deputy Chief Clerk; Scott Schmidt, Majority Deputy
Director of Digital Strategy; Peter Warren, Majority
Legislative Policy Director; Rebecca Watkins, Majority Deputy
Director of Communications; Krista Boyd, Minority Deputy
Director of Legislation/Counsel; Jennifer Hoffman, Minority
Press Secretary; Carla Hultberg, Minority Chief Clerk; Elisa
LaNier, Minority Deputy Clerk; Dave Rapallo, Minority Staff
Director; Mark Stephenson, Minority Director of Legislation;
and Cecelia Thomas, Minority Counsel.
Chairman Issa. Good morning. The committee will come to
order.
The Oversight Committee exists to secure two fundamental
principles: first, Americans have a right to know that the
money Washington takes from them is well spent; and, second,
Americans deserve an efficient, effective Government that works
for them. Our duty on the Oversight and Government Reform
Committee is to protect these rights. Our solemn responsibility
is to hold Government accountable to taxpayers, because
taxpayers have a right to know what they get from their
Government. It is our job to work tirelessly in partnership
with citizen watchdogs to deliver the facts to the American
people and bring genuine reform to the Federal bureaucracy.
Before I begin this hearing today, as our staffs have
discussed, I am moving to add a majority and a minority seat to
the Subcommittee on Energy Policy, Health Care and
Entitlements. Dr. Gosar is to be added to the subcommittee on
the majority side and I would now yield to the ranking member
if he is prepared to designate a minority member.
Mr. Cummings. Mr. Chairman, by the end of the day we will
do that.
Chairman Issa. Without objection, so ordered.
I will now recognize myself for a short opening statement.
It is partisan to say that President Obama took office
guaranteeing us or assuring us of the most transparent
presidency in history. But it is not partisan to say we can do
better. We can do better in this day and age than we did in the
previous administration. Together, that is our challenge.
So four years later, am I going to be the person who says,
hurray, we are more transparent? No, just the opposite. With
the ranking member, our goal is to change transparency by
legislation and by oversight.
Today, as we discuss the Freedom of Information Act and our
intent to take it to the next step, I believe that we, this
committee, have an obligation and an opportunity to create more
transparency not with any one administration, not with a
president well intended and perhaps a cabinet, off and on,
different positions, well intended, but as a matter of the
people's right.
The truth is all administrations have a tendency to want to
keep private their failures and make public their
accomplishments. That is a natural state and it is one that we
will not change here by asking for it to change. The only way
that can happen is if rhetoric is also matched by law, if in
fact law is enforced and overseen.
The Sunlight Foundation has done extensive work on the
accuracy of data posted by not just this administration, but
administrations before. Their work shows that, in fact, we can
do better. This hearing today is not about one agency or about
one administration, but, in fact, the fact that administrations
have been struggling with posting records accurately.
Seventeen years after the legal requirement to do so was
signed into law, the system is still broken and it needs
immediate reform. The committee has worked on a bipartisan
basis to improve transparency by providing greater access to
information, but this isn't enough. In the last Congress, we
passed out of this committee and out of the Congress on a voice
vote the DATA Act, we passed the Grant Act and a draft FOIA
reform bill that was crafted by the ranking member. All of this
is high on our priority in this Congress.
The legacy of the ranking member and myself is, in fact,
not about what we do during our time, but in fact what happens
after we leave this office. Have we put in place systems and
laws and an oversight practice that, for generations to come,
can be meaningfully better than the generations before us? That
is our goal here today. It is the reason that I am thrilled at
this hearing and I am looking forward to a markup in just a few
days that is intended to begin that down payment on system
changes.
With that, I recognize the ranking member for his opening
statement.
Mr. Cummings. Thank you very much, Mr. Chairman, for
holding this hearing today. This is Sunshine Week, when we
celebrate the importance of transparency and openness in
government. Sunshine Week is also an appropriate time to
conduct oversight and evaluate the state of transparency in our
Government.
On his first day in office, President Obama made clear that
open government would be a priority in his administration. The
President issued a memo on transparency that formed the basis
for the open government initiative, a comprehensive set of
efforts to increase public access to government information.
Also on his first day in office the President issued a memo on
the Freedom of Information Act, reversing the Bush
administration's presumption against disclosure and instituting
a presumption in favor of disclosure and the attorney general
issued a memo informing agencies that the Justice Department
would not defend FOIA denials in court unless agencies have a
reasonable belief that there will be foreseeable harm from
disclosure.
I think it is fair to say that the President jump-started
transparency efforts in the executive branch. There have been
significant successes in the last four years; however, there
are still areas in need of improvement, and we can always do
better and I certainly agree with the chairman on that note.
I ask unanimous consent to place in the record a report
this week by the Center for Effective Government entitled
Delivering on Open Government: The Obama Administration's
Unfinished Legacy.
Chairman Issa. Without objection, so ordered.
Mr. Cummings. Thank you very much, Mr. Chairman.
This report finds as follows: ``To secure its legacy as a
champion of transparency, the Administration will need to do
more to ensure that agencies actually implement the
transparency policies it established, address gaps left in its
policy reforms, and improve its records on national security
related secrecy.''
In addition, one of the criticisms in the report is aimed
at Congress. The report finds that the ``slow pace of secrecy
reform within the executive branch has been aided and abetted
by lack of robust oversight from Congress.''
I agree that bipartisan oversight is critical to holding
agencies accountable. That is why Chairman Issa and I recently
worked together to send a letter to the Justice Department
asking for information about several issues regarding FOIA
implementation. In addition, Congress can make it easier for
the American people to obtain access to government records.
This week, the chairman and I are releasing a draft bill
called the FOIA Oversight and Implementation Act. In the spirit
of transparency and bipartisanship, we have made it available
on the committee's Web site and we welcome feedback before we
formally introduce it. This bill would codify in law what the
President has done administratively: it would establish a legal
presumption under FOIA in favor of disclosure. It would also
create a pilot project to give FOIA requesters a single place
to make requests and access records electronically.
I appreciate the chairman's bipartisan work on this bill
and I hope we will take swift action to get it on its way to
becoming law.
I am also pleased to be cosponsoring a bill with
Representative Clay. He is introducing it this week to improve
transparency and accountability of federal advisory committees.
I look forward to hearing from the witnesses here today
about these proposals and any other ideas you might have for
shining light on our government's observations.
With that, Mr. Chairman, I yield back.
Chairman Issa. I thank the gentleman.
I now recognize the gentleman from Florida for one minute.
Mr. Mica. Well, thank you.
Very briefly, and I hope our subcommittee can look further
at the lack of FOIA responsiveness from this administration,
but everyone heard the President when he said my administration
is committed to creating an unprecedented level of openness in
government. Openness will strengthen our democracy and promote
efficiency and effectiveness in government.
Then he went on with Attorney General Holder to issue
memorandums urging agencies to adopt a presumption of
disclosure when processing FOIA requests and not to withhold
any document simply because they may legally do so.
Now, the facts are, in fact, our staff report shows that,
only 37.5 percent of all FOIA requests received were actually
responded to. Another report found that 62 of 99 agencies
surveyed had not updated their regulations since the
President's and attorney general's edict. So those are the
facts.
Finally, not only is the public not getting information,
but I would like to submit requests from last year, 2011, that
I submitted from this committee and also from the
Transportation Committee of agencies that did not respond to
members of Congress.
Chairman Issa. Without objection, those will be placed in
the record.
Mr. Mica. So whether it is Fast and Furious we are still
trying to get information on or requests for legitimate full
committees of Congress, this Administration has been the least
transparent and least responsive to the public and to the
Congress, and I yield back.
Chairman Issa. I thank the gentleman.
We now go to our distinguished panel of witnesses.
All members will have seven days in which to submit opening
statements.
First up is Ms. Angela Canterbury. She is the Director of
Public Policy at the Project on Government Oversight. Welcome.
Mr. Jim Harper is Director of Information Policy Studies at
the Cato Institute.
Mr. Daniel Schuman is Policy Counsel of The Sunlight
Foundation, previously mentioned in my opening statement.
And Ms. Celia Wexler is the Senior Washington
Representative for the Union of Concerned Scientists.
Welcome, all.
Pursuant to the rules of the committee, would you please
rise and raise your right hand to take the oath?
Do you solemnly swear or affirm that the testimony you are
about to give will be the truth, the whole truth, and nothing
but the truth?
[Witnesses respond in the affirmative.]
Chairman Issa. Please have a seat.
Let the record reflect affirmative answers by all.
You are all skilled Washington experts, so your entire
statements will be placed in the record, and you know how the
clocks work in front of you. Please stay as close to five
minutes as possible to leave maximum opportunity for follow-up
questions.
Ms. Canterbury.
WITNESS STATEMENTS
STATEMENT OF ANGELA CANTERBURY
Ms. Canterbury. Chairman Issa, Ranking Member Cummings,
members of the committee, thank you for this honor and for your
attention to government transparency and accountability. It is
particularly a pleasure to be with you here again on Sunshine
Week, though it is, unfortunately, not as sunny as we would
like.
President Barack Obama recently said this is the most
transparent administration in history, and I can document how
that is the case. Really? Well, it depends on the
documentation. The President has made progress on his major
commitments to openness and, without question, there has been
more proactive disclosures than ever before. Last week we
issued a report with partners that highlight several of the
best examples, such as agency posting staff directories and
calendars online Ethics.Data.gov and Recovery.gov.
But in spite of this progress under Obama, there continues
to be two American governments. One looks like a democracy and
the other is a national security State where claims of national
security usually trump openness and accountability. An
illustration of this dichotomy is on whistleblowers. More than
any other president, Obama has advanced protections for federal
workers who blow the whistle on waste, fraud, and abuse. But at
the same time this Administration has created a national
security loophole that threatens the very reforms the President
supported.
Likewise, his recent signing statement asserts limits to
unclassified disclosures to Congress. You can't do oversight,
and there won't be checks and balances, if the President is
allowed to keep secrets from Congress. The Associated Press
just found that claims of national security for withholding
information under FOIA are at an all-time high for this
Administration.
In addition, we have objected to attempts to plug leaks of
classified information that actually threaten free speech. We
have raised concerns repeatedly about the aggressive
prosecutions of so-called leakers and the chilling effect on
whistleblowers. There continues to be far too much over-
classification of information, which undermines our legitimate
secrets and makes them harder to keep. Then there are the
secret legal opinions that, among other things, may justify the
targeted killings of American citizens suspected of terrorism.
What should be of critical concern to all of us is that the
national security state is growing. The more it grows, the more
illegitimate secrecy threatens our basic rights and our
democracy.
In the non-national security government, perhaps the
greatest challenge is the lack of a proper entity with
authority and an interest in making agencies improve their
practices. Openness is mostly voluntary and without any real
consequences for the agencies that fail. Generally, the Office
of Information Policy at DOJ is thought to be the entity
responsible for FOIA, since it issues guidance and plays a role
in compliance.
But as you have so aptly pointed out, there is a
significant disconnect between its actions and the President's
orders. We share your concerns about outdated FOIA regulations,
backlogs, outrageous fees, the overuse and abuse of exemptions.
However, in the end, we cannot reasonably expect OIP to lead on
FOIA because it has an inherent conflict of interest, a
conflict of mission, really. DOJ defends the agencies when they
withhold information under FOIA.
Clearly, it is time to consider a new model without such
conflicts. Providing the FOIA ombudsmen, OGIS, with more
independence and authority is one of several common sense next
steps to improve FOIA in the very thoughtful legislation that
Chairman Issa and Ranking Member Cummings have drafted.
Mandating performance responsibilities, the creation of a chief
FOIA officer's council, and the long overdue updates to FOIA
regulations all will improve the status quo. Codifying the
presumption of openness will ensure agencies run by future
presidents cannot withhold information unless harm to an
interest protected by the exemption can be identified.
The pilot for FOIA online you propose will help boost the
number of agencies participating and increase its potential for
success. FOIA online is envisioned as a one-stop shop so that
one day there might be only one Web site for all FOIA requests.
The extraordinary initiative of three agencies that created it
deserves applause, and your bipartisan bill deserves strong
support.
In addition, there are other bills from the last Congress
we support, such as the DATA Act, which would dramatically
improve the ability of the public to discover how their
taxpayer dollars are spent. We urge you to work with the Senate
to ensure the best reforms become law. We also like the grant
transparency reforms, and we hope you will similarly advance
transparency in contracting. Taken together, we outsource $1
trillion every year.
Additionally, we support the five sensible reforms,
including the ranking member's Transparency and Openness in
Government Act from the last Congress, including the FACA
reform bill that was mentioned. I am pleased to hear that will
be reintroduced by Representative Clay. Naturally, government
spending is of real concern in this economic environment, but
we hope you will work with appropriators to ensure the proper
implementation of the reforms you champion. OGIS needs
additional resources. Also, investing in government watchdogs,
such as the very effective Office of Special Counsel, pays
dividends to taxpayers.
I also urge you to conduct vigilant oversight of the
whistleblower and taxpayer protections you ushered into law,
and to legislate to preserve and strengthen these, including in
the intelligence and national security communities. It may be
necessary to explicitly clarify that there should be no
restrictions on executive branch disclosures to Congress.
We need your leadership now to remain in the frivolous
national security claims that are making huge swaths of our
Government hidden and unaccountable, and I thank you very much.
[Prepared statement of Ms. Canterbury follows:]
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Chairman Issa. And I thank you.
Mr. Harper.
STATEMENT OF JIM HARPER
Mr. Harper. Thank you, Chairman Issa, Mr. Cummings, members
of the committee. I am very pleased to be with you about this
issue in which I have invested a great deal of time over the
last few years, and I am glad that you are doing so as well.
I will start as you did, Mr. Chairman, with a note about
bipartisanship. It is a pleasure to work on transparency
precisely because it is a bipartisan issue; it is a
nonideological issue. I take pains, whenever I am working with
my liberal and progressive friends and with my conservative
friends, to tone it down and I do my best; they tolerate me
well, regardless of my ability to actually tone it down.
Chairman Issa. It is the one time they want a libertarian
in the room.
Mr. Harper. Yes. It doesn't happen very often, so that
makes this a true pleasure.
If I could characterize the work we have done at Cato, it
would be that we are trying to bring real methodology and
measurement to transparency issues. Of course, not all issues
are subject to that kind of methodology, but in the data are
areas we have worked to model what legislative process would
look like as data should look like as data; what budgeting,
appropriating, and spending would look like as data. And then
we proceeded to grade how well that data is published by the
Government. In terms of authority, completeness, machine
discoverability, and machine readability. These are the things
that would make the data amenable to use on the Internet.
The grades are relatively poor, and in my last, most
recent, report, I found that the Obama administration was
somewhat lagging the House in terms of transparency. Obama
controls a great deal of the Government, obviously, and has not
met the outsized promises that he made as a campaigner.
Meanwhile, the House has taken steps in the area that it
controls to move transparency forward, and we see more coming,
and that is exciting good news.
One of the things that really sticks out, though, in
analyzing the quality of data published by the Government is
that data reflecting the structure of the executive branch is
essentially not available data. Data, a machine readable
government organization chart does not exist. You would think
that in this day and age, in an administration that has touted
transparency, we would at least have, in computer readable
form, the basic layers: agency, bureau, program, and project.
If we had that, so many things we could hook to it. We
could figure out how appropriations bills actually affect
agencies before they are passed and the lower organizational
levels. So the lack of a machine readable government
organization chart is a point that I think is worth
emphasizing.
We are moving forward, regardless, to mark up legislation
with semantically rich XML, code that will make available to
computers more accurately, more completely, what is in the
bills that you write. So references to existing law are marked
up; budget authorities, both authorizations of appropriations
and appropriations, are marked up. Behind me here I have some
of the staff who have suffered through this project, and I
certainly appreciate the work that they do.
In addition, to the extent we can, we are marking up
federal organizational units, the agencies and bureaus where we
can. Lower organizational units we essentially can't. That is
why I think the DATA Act is so important, because it would
essentially require a data structure for all the spending in
the U.S. Government; not only agencies, bureaus, programs, and
projects, but obligations and outlays.
With this data you can tell stories, you can tell the story
about how a budget became an appropriation, which became an
obligation, which became an outlay, which resulted in
something, whether it be funding for the military in some
respect, whether it be funding for some program that aids
people in their health or well-being. The stories that could be
made available to the public are nearly endless given data that
reflect them well. So I think the DATA Act is an essential way
of getting that transparency that makes available to the public
what actually happens here in Washington, D.C.
Starting tomorrow and on Friday, we are going to be moving
ahead, having sessions on how to get legislative data on
Wikipedia. We are doing a Wikipedia editathon to train people
up. Everybody is welcome tomorrow afternoon at Cato. And then
on Friday we are going to roll our sleeves up and see if we can
make legislative data a tool for Wikipedians. I think Wikipedia
is one of the places where people most often go to look for
information, including information about public policy, and we
are going to try to get legislative data up there as quickly as
possible, and we will move to other areas as we proceed.
Most importantly, I think, we are having a happy hour
tomorrow night from 5:30 to 6:30. Everyone is also welcome to
that.
Chairman Issa. You could end on a high note, if you wanted,
there.
[Laughter.]
Mr. Harper. I will bore you with a couple more thoughts.
When I think about transparency and how to communicate
about transparency to the public, I think about the newspaper
and the number of facts per square inch that appear in the
newspaper. Go to the sports page, look at the charts, look at
the data for your baseball scores, hockey, whatever it may be;
go to the financial section. Data. Lots of data that people are
able to consume. The weather page is data, but when you go to
the national page you get things like Republicans are girding
for battle or Obama won't give in. That is essentially
meaningless to ordinary people, ordinary citizens out in the
land. They are able to consume data in other parts of the
newspaper; they are able to consume data about public policy.
So as soon as we can get it and give it out to them, we will
move forward quite a bit in government transparency and a
happier public, which is a thing that we all agree on.
Thank you very much.
[Prepared statement of Mr. Harper follows:]
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Chairman Issa. We now go to the other partner in this,
Sunlight, Mr. Schuman.
STATEMENT OF DANIEL SCHUMAN
Mr. Schuman. Thank you, Mr. Chairman, Ranking Member
Cummings, and distinguished members of the Oversight and
Government Reform Committee. I appreciate the honor and the
privilege of speaking with you here today.
At the heart of transparency is the idea that the public
has the right to know what Government is doing. In our modern
times, as Jim has alluded to, this means online and real-time
in a computer-friendly format.
While the Obama administration has made significant
rhetorical strides towards a 21st century vision of
transparency and has launched several innovative transparency
initiatives, Government must do more to address the fundamental
challenge of being transparent. It is my intention today to
encourage this committee to continue its good works, to adopt
the Administration's best initiatives, and to help encourage
the Administration to meet its pledge to be the most
transparent one ever.
Let's start with federal spending transparency. A Sunlight
Foundation analysis called Clear Spending found $1.55 trillion
in misreported federal grant spending. The numbers just don't
line up. This is the third year in a row we found a problem of
this magnitude. We believe the Government should publicly track
each federal dollar from the moment spending is proposed in the
budget until it reaches its final destination.
The Recovery Accountability and Transparency Board has
shown us the way. How have they done so? By using unique
identifiers to track who is spending, how much they are
spending, and who gets the money; by demonstrating the
necessity of an independent commission whose only job is fiscal
transparency. As Angela mentioned, the importance of having
independent commissions, independent bodies focused solely on
transparency is something I cannot help but underscore.
Finally, they have also released more information that allows
data to be cross-checked.
Now, the DATA Act will make all of this happen government-
wide, and I don't need to tell this committee that it should be
speedily enacted into law.
What the DATA Act does for federal spending transparency,
the access to Congressionally Mandated Reports Act does for
oversight of agency policymaking. Reports to Congress are a
means to find out what agencies are actually doing. These
reports should all be online in one central place.
We also believe that advisory committees shouldn't be a
stealthy way for special interests to influence the political
process, and that sunlight should be shined on donors to
presidential libraries who are snuggling up to future ex-
presidents. It is time for Congress to pass the Federal
Advisory Committee Act amendments and the Presidential Library
Donation Reform Act.
There are several Administration initiatives that the
committee should encourage and enhance. The White House's
landmark Open Government Directive, which requires agencies to
create and update open government plans, reduce FOIA backlogs,
and release new data sets has yielded mixed results. Some
agencies are still trying to wait out this transparency fad.
The OGD contains good ideas and, to make sure they are fully
implemented, they should be codified.
New federal transparency Web sites such as Data.gov,
USASpending.gov, and the IT Spending Dashboard are already
changing Government. They should be moved out from under the E-
Gov Fund, which is intended for startups, and given a statutory
basis and their own funding. For FOIA, we have seen smart
initiatives like FOIA Online, proactive disclosure, and a
presumption in favor of disclosure. These ideas should all be
codified, along with the strengthening of the federal FOIA
ombudsman and the incorporation of the Public Online
Information Act, which ensures publicly available materials are
online, and we applaud Chairman Issa and Ranking Member
Cummings' new released draft legislation.
The executive branch needs some encouragement from Congress
on the following three issues: the rules covering White House
visitor logs should be strengthened, codified, and stripped of
their loopholes; all of the Department of Justice's Office of
Legal Counsel opinions should be online, with only a few
exceptions, not the two-fifths that we found were missing. It
shouldn't require a 13-hour filibuster in the Senate to get an
answer on one particular question. And the Office of
Information and Regulatory Affairs at OMB isn't living up to
its obligation to fully disclose when and how it is being
lobbied on major rulemakings. This has gone on long enough.
More work is needed on money in politics. The Lobbying
Disclosure Enhancement Act, for example, would make sure that
our transparency regimes cover people who act like lobbyists,
but who don't meet the current law's arbitrary definition. And,
finally, Congressional Research Service regularly distributes
reports on matters of importance to national policymaking to
the thousands of staffers on Capitol Hill, but these reports
aren't systematically available to the public. They should be.
We ask that the committee publish on its Web site all reports
relevant to its jurisdiction.
Transparency doesn't just keep our political system working
properly; it gives people reason to have faith that our
political system can work for all of us. I know the committee
understands this and I thank you for the opportunity to speak
here today.
[Prepared statement of Mr. Schuman follows:]
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Mr. Mica. [Presiding.] Thank you, Mr. Schuman.
We will now hear from the last witness, Celia Wexler, the
Senior Washington Representative for the Union of Concerned
Scientists. Welcome, and you are recognized.
STATEMENT OF CELIA VIGGO WEXLER
Ms. Wexler. Representative Mica, Ranking Member Cummings,
and members of the committee, thank you for inviting me to
testify today and for holding this hearing during Sunshine
Week.
Our Union of Concerned Scientists has more than 400,000
members and supporters throughout the Country. This
nonpartisan, nonprofit puts rigorous independent science to
work to solve our planet's most pressing problems. Our new
Center for Science and Democracy is committed to promoting
science and fact-based evidence to inform public policy
decisions and enrich our democratic discourse. FACA reform
reflects our longstanding commitment to improve scientific
integrity at federal agencies.
The Federal Advisory Committee Act is a lesser known, but
valuable, tool in ensuring a transparent and accountable
Government. It requires that when federal policymakers seek
advice from outside experts and stakeholders, that the public
is informed and has the opportunity to participate.
Congress enacted FACA in 1972, after hearings exposed a
system where more than 2,000 advisory Groups were offering
guidance to federal officials in secret. In 1971, Senator Lee
Metcalf warned that this secret fifth arm of Government
threatened democracy. Information is the important commodity in
this capital, Metcalf said. He warned about the influence of
special interest groups who are not subject to rebuttal because
opposing interests do not know about the meetings and could not
get in the door if they did.
The point of FACA was to change this corrupt system to
restore to the public what Metcalf termed the two fundamentals
of a democracy: disclosure and counsel; the rights of people to
find out what is going on and, if they want, to do something
about it. FACA did open up the system and allow more scrutiny,
but the law needs to be updated and strengthened. It has been
weakened by judicial decisions that have created loopholes,
making it easy for agencies in executive branch to evade the
rules and meet with outside groups in secret. And my written
testimony goes into more detail about that.
Too many FACA panelists also are evading conflict of
interest groups. Experts with financial ties to the very
companies that will be affected by a panel's recommendations
often exert considerable influence on how agencies address
vital issues like the safety of our drugs or the quality of our
environment.
This committee has been a pioneer in bipartisan FACA
reform, and in the 112th Congress it unanimously approved H.R.
3124, the FACA Amendments Act of 2011. And, as you know, this
bill had substantive reforms that we heartily endorse and we
urge you to build on the reforms that that legislation
proposed.
And we would hope that this committee will approve an even
stronger FACA bill, one that will limit the number of
conflicted experts on scientific and technical panels. We also
urge you to begin the process to build a FACA for the 21st
century, requiring the General Services Administration to help
agencies use new technology to Webcast meetings; experiment
with virtual meetings, which could reduce travel expenses;
expand the pool of experts; and increase public participation.
Like whistleblower protection reform, FACA reform has been
discussed for years, but under your leadership, last Congress,
the strongly bipartisan Whistleblower Protection Enhancement
Act became law. We believe this committee can reach another
transparency and accountability milestone this Congress with
the enactment of a significant FACA reform law.
We look forward to working with you on this crucial reform
legislation and believe that under your leadership the
prospects for bicameral, bipartisan success are bright. Thank
you, and I look forward to your questions.
[Prepared statement of Ms. Wexler follows:]
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Chairman Issa. [Presiding.] Thank you.
I recognize myself for a first round of questioning, and I
will start with Ms. Wexler.
FACA reform is something that we intend on marking up in
the very short near future. One of the challenges I am facing,
and it is right in your testimony, is that historically you try
to limit conflicts, but as the pool of people in many of these
areas become smaller and smaller, and I don't want to use the
word revolving door because sometimes people misunderstand
that.
Getting people into government who have real world
experience in things that hopefully are not always just funded
by government in the way of science, and then getting them back
into the real world and then still being able to use their
expertise. Science is a good example, but so are our former top
officers, military experts and so on.
As we mark the bill up, should we have a bias toward
limiting conflicts or disclosing conflicts? Because I will tell
you I personally think that, in this day and age, it may be
more a matter of making sure there are no hidden agendas
possible as the better way to put together people who come in
with a life of experience, but undoubtedly do have economic
interests, or sometimes just pride of historic authorship? How
do you feel about that?
Ms. Wexler. Well, I think disclosure is the floor. We have
to have disclosure. We have to know about these ties. We also
feel that agencies have not basically done a very good job to
expand the pool.
Chairman Issa. The panel balance, if you will.
Ms. Wexler. Exactly, and to really go out of their way to
recruit non-conflicted experts. I can only tell you our
experience at the FDA. The FDA has claimed that it is very
difficult sometimes for them to fill panels with non-conflicted
experts. We sent an email to our scientists. We have about
20,000 scientists in our network.
And in the course of a couple of weeks we got 61 applicants
who were qualified to serve on FDA panels. They sent their
curriculum vitae. They were not people who walked off the
street; they had absolute essential qualifications. We screened
those folks; we sent them to FDA; we heard not a word since.
So I think there is this necessity to recruit from a larger
pool.
I also think that nothing in FACA would prevent
presentations by those with the kind of real world experience
you talk about. Presentations, answering questions, not
necessarily being around for the discussion and the debate if
the financial ties are significant. But I do think that we
shouldn't give up on either goal.
Chairman Issa. Let me go to Mr. Harper along that line. You
mentioned sort of Wikiing things in a greater way. As you know,
this committee used the Madison Project to try to do just that,
to open up a dialogue on legislation. Ms. Wexler's comments, do
those also resonate that when agencies, not just Web casts,
their actual and store their actual hearings and forums, should
we in fact view all these proposals and all of the science
presented as the starting point for comment by, if you will,
the professional world, people who Ms. Wexler just mentioned,
61 people who were not included but who had the CV necessary to
be meaningfully part of the markup?
Mr. Harper. Yes, I think the ability of the public to
contribute to discussion is probably unrecognized, or not well
recognized in Washington, and it is natural that a group of
agency officials who are trying to put something together, they
have a limited sphere of knowledge about who their experts
would be.
Chairman Issa. The usual list of suspects, if you will.
Mr. Harper. The usual suspects. So reaching out more
broadly for FACA, for Federal Advisory Committee membership is
a good thing to do, and then opening the activities of FACA is
quite welcome.
I served on one, the DHS privacy committee, and I was
surprised, I think many of the members were surprised when we
were doing email discussion that constituted a quorum, or would
have constituted a quorum, and the members of the committee
said let's just publish that. Because if you have a quorum you
need to publish, right?
And staff were essentially, well, no, we need to have less
than a quorum so we don't have to publish. The membership of
the committee was willing to put it out there for the public to
consume and observe, and the agency staff, maybe because that
was a whole new idea, weren't willing to do that. So sharing
more broadly I think is always a good thing.
Chairman Issa. Ms. Canterbury, you talked about the need
for a new model. I was just at South by Southwest last weekend.
Everybody there is a new model person. Almost everybody there
is under 30 and they all see the things that we are struggling
with, things like the DATA Act, as, my goodness, why isn't that
already a given? Why is it it is hard? Why would anyone think
of having data that is published in PDF so that it is
inherently unreadable by machines, as Mr. Harper said? Do you
see it the same way, that we shouldn't even any longer accept
the concept that this is hard?
Ms. Canterbury. Well, I think, unfortunately, it is because
of the way that the Government acquires technology, because of
in past investments and systems. So, for example,
USASpending.gov, we spent quite a lot of taxpayer dollars
trying to make that portal work for showing how the Government
spends money, and it doesn't, and it was premised on antiquated
systems.
So your idea in the DATA Act of starting fresh with a
better concept, I think we need to educate members and we need
to educate the Government that these things can be done now at
economies of scale.
Chairman Issa. My time has expired, but would it surprise
any of you to know that under the stimulus $800 billion or so
spending, some States made a determination to create, if you
will, a system in their accounting so that all of their
reporting was essentially simply opening up to the Federal
Government those portals necessary to see the tag metadata and
pull it up. In other words, they did nothing but set their
system up to be readable and, as a result, their reporting
requirement went to zero. Does that surprise any of you that
that kind of sunlight, if you will, was possible with those
States that chose to do it?
[No audible response.]
Chairman Issa. It doesn't me either, but we plan on having
some of those States in here so that we can begin thinking in
those terms.
I now recognize the ranking member for his questions.
Mr. Cummings. Thank you very much, Mr. Chairman. I want to
thank the witnesses for their testimony.
Ms. Canterbury, the FOIA Oversight Implementation Act that
Chairman Issa and I released yesterday would codify federal law
in two very important revisions: it would create a legal
presumption in favor of disclosure in response to FOIA
requests. So let me ask you this. That was the standard under
Clinton, is that right?
Ms. Canterbury. That is correct.
Mr. Cummings. And then it was reversed under Bush, is that
right?
Ms. Canterbury. Yes, sir.
Mr. Cummings. And so now we are going back to that. And I
guess you would prefer that, is that right?
Ms. Canterbury. President Obama, as you mentioned, ordered
a presumption of openness, and that was very welcome in our
community. We would very much like to see that a part of the
permanent law so that it is not a political decision or a
decision based on the presidency, but the Congress can decide.
Mr. Cummings. And how did that work under Clinton? I am
just curious. That standard.
Ms. Canterbury. I think it was a very good standard and I
think it was a good start to the kind of reform that we are
talking about today. But the bill that you propose takes some
next steps that are really necessary to modernize FOIA.
Mr. Cummings. Another thing that our bill does is to
require records to be disclosed under FOIA unless agencies can
demonstrate foreseeable harm. In 2009, Attorney General Holder
issued a memo that rescinded the Bush administration policy.
The Bush administration policy was for the Justice Department
to defend agency decisions to withhold records ``unless they
lack a sound legal basis or present an unwarranted risk of
adverse impact on the ability of other agencies to protect
other important records,'' is that right?
Ms. Canterbury. That is right, and as it should be, sir.
Mr. Cummings. And in 2009 Attorney General Holder raised
the bar, instructed agencies that the Department will defend
FOIA denials only if agencies reasonably foresee that
disclosure would harm an interest protected by one of the
statutory exemptions or disclosure is prohibited by law, is
that correct?
Ms. Canterbury. Yes, sir.
Mr. Cummings. Ms. Canterbury, you said in your testimony
that you agree with adding these provisions into the text of
the FOIA law. Let me ask you this. If agencies are already
required to do this under these administrative requirements,
why is it important for Congress to put these provisions in the
actual FOIA statute?
Ms. Canterbury. Well, I would say that there is
implementation and there is enforcement of the President's
directive, which we have discussed a bit, the challenges and
some of the drawbacks of not having an entity that actually
does the enforcement, that has independence to pursue the
agencies and ensure that they are promulgating a presumption of
openness and using the foreseeable harm standard.
So your bill will begin to strengthen the Office of
Government Information Services in a way that could provide
added independence, so we welcome that, of course. But also the
difference between our experience with FOIA when there was no
presumption of openness under the Bush administration, it was a
more secretive government. It was much more difficult to get
FOIA requests. So there has been a shift that is demonstrable,
that is important; it is just that it hasn't been a shift as
large as we might have liked.
Mr. Cummings. In other words, in the words of the chairman,
we can do better.
Ms. Canterbury. Yes. We should.
Mr. Cummings. Although I think he kind of took those words
from me.
[Laughter.]
Mr. Cummings. That just hit me. It sounds familiar.
In your opinion, will any of these provisions to the FOIA
law change the way the Department of Justice is currently
implementing these standards?
Ms. Canterbury. Would your bill do that?
Mr. Cummings. Yes.
Ms. Canterbury. I think so. I mean, I think certainly
mandating that the FOIA regulations be updated, finally, will
ensure that we finally see a change in that respect.
Mr. Cummings. Now, do any of the other witnesses have an
opinion about whether these standards should be put into the
FOIA law? Yes, Mr. Schuman.
Mr. Schuman. They certainly should. There was just an
Associated Press story yesterday which looked at
implementation, APS number of national security and other
related questions, and they simply weren't getting answers. And
what we have seen in other contexts is that oftentimes agencies
simply don't get the memo; they, for whatever reason, don't
hear what the administration is saying. And if you put it in
the law, well, they may not get the memo, but they certainly
can read the U.S. code.
Mr. Cummings. Ms. Wexler? I saw you shaking your head.
Ms. Wexler. Yes, I agree entirely, and it is the same
thing. Agency culture always kind of pushes back against
transparency. And as Chairman Issa talked about, regardless of
the administration that you are in, regardless of the political
party, this wanting to be secret is a systemic problem.
Mr. Cummings. Mr. Harper?
Mr. Harper. Being a non-FOIA expert, I will just adopt the
opinions of my colleagues.
Mr. Cummings. Thank you very much, Mr. Chairman.
Chairman Issa. Would the gentleman yield for a second?
Mr. Cummings. Of course.
Chairman Issa. Would all of you say that it is fair that
what we are really doing with the ranking member's bill is
making a situation in which we are codifying the assumption
that if you want to know, it is your right to know, rather
than, prior to this President, if you wanted to know, you had
to say why you wanted to know, that that would be the most
significant permanent change by codifying President Obama's
changes?
For those who are familiar, that is pretty much what we are
really doing with the bill, is making permanent that assumption
that it is yours unless you can demonstrate why not, rather
than, in the past, you had to sort of say why you wanted to
know something that you didn't yet know.
Ms. Canterbury. It shifts the burden to the agency to show
that there is an exemption and there is an interest in
withholding under that exemption.
Mr. Cummings. I want to thank you very much.
Chairman Issa. Thank you, Mr. Ranking Member.
We now go to the gentleman from Texas, who was here at the
very start, Mr. Farenthold.
Mr. Farenthold. Thank you very much, Mr. Chairman. I just
had a couple of quick questions.
And just because I am a little bit of a techno geek, I will
start with you, Mr. Harper. One of the Government's big success
stories, I guess was founding the Internet, and it was done
through a series of collaborations, RFC process where experts
got together and came up with the standard that created the
Internet today. Your push for machine readable data
transparency, are we going to be able to structure that in a
way people aren't going to be able to hide behind multiple
legal entities and embedded entities, and is the Internet model
of kind of going out and collaboratively coming up with a set
of standards, would that be the way to do it, or do you think
the Government or some outside organization could do those by
themselves?
Mr. Harper. Well, obviously, data structure is at a very
different level than TCPIP, the basic language of the Internet.
Mr. Farenthold. Right.
Mr. Harper. And there is actually just a lot of heavy
lifting. You identify corporate entities as being a challenge,
and it is a genuine challenge. Who are the recipients of
outlays? Well, many corporations have multiple subunits and
they use different identifiers and so on and so forth, but we
can at least get to where we use an open identifier system for
the recipients of outlays, and that is an important goal for
many of my transparency colleagues.
Where I talk about identifying the agencies, bureaus,
programs, and projects, they are as interested, more interested
in the entities that are receiving the outlays, so they can
tell stories about the recipients and how they affect the
political process that might enhance their transparency.
Mr. Farenthold. And you envision, perhaps, tying this into
FEC donor data and the whole nine yards?
Mr. Harper. Yes. I think of all the different sets of data
as essentially tiles, and you want the tiles to sit adjacent to
one another. So when you see that an agency or a particular
program or project is involved, you want to know where the
outlays went; you want to know who received the money; you also
want to know what kind of campaign donations they gave so that
there can be transparency in the relationship among spending
and campaign finance. That is an important goal.
Mr. Farenthold. And you think a lot of that can be
automated if we can get the data in a machine readable format?
Mr. Harper. I do.
Mr. Farenthold. All right, great.
Ms. Canterbury, let's go over to you a little bit and talk
about I am going to call it the culture of secretism that is in
the Government. I mean, several of our witnesses have spoke
about that. Is the DOJ part of the problem in that their
enforcement mechanism for it is different? I guess, from Texas,
I am used to something different. Our open records and open
meetings act, the attorney general is pretty aggressive about
enforcing that and we lean towards disclosure.
But when you get to the federal level, the amount of delays
that we are able to, the agencies and then through the whole
process, do you see any way we can change the culture?
Specifically, the DOJ, particularly under Mr. Holder, this
committee has struggled to get information out of him. I can
only imagine what the public is having to go through.
Ms. Canterbury. Yes, DOJ is a big part of the problem. I
don't think that it is specific to this administration in that,
as I mentioned in my testimony, there is a true conflict of
mission there when you have the agency defending in court the
other agency's right to withhold under FOIA, they will have a
defensive posture, and you can see that defensive posture in
their own rulemaking.
So while they haven't updated their regulations in a very
long time and, again, not leading in that respect on the
presumption of openness, but when they proposed rules, we were
really shocked because of the defensive posture in their own
rules, the ways in which they would make it harder for
requesters to get information and the way that they attempted
to even make official a policy to lie to requesters in
circumstances where they had investigative information that
could not be revealed. So I think that there are some real
problems with DOJ and, again, I think that one of the ways to
deal with that would be go give an independent entity more
authority to enforce FOIA.
Mr. Farenthold. I remain concerned of growing government,
so that is my issue, that we create another agency, another
agency, and pretty soon you are talking real money.
Finally, I am a supporter of the chairman and ranking
member, support of the DATA Act. I am with them on that, but I
want to ask you, as experts in the field, you all have looked
at that. Are we missing anything obvious in that? Is there
something, as it comes up, we need to be talking about? Are
there any gotchas or, wow, if we didn't spend any more money,
we could do this? Does anybody have any suggestion for
improving it? Mr. Schuman.
Mr. Schuman. If anything, the DATA Act solves some of the
problems that you were mentioning before. For example, it would
deal with the legal entity identifier problem, so you actually
know who you are talking with. The DATA Act doesn't just have
applicability for federal spending transparency, it has
applicability for federal transparency at large.
Mr. Farenthold. Okay.
Ms. Canterbury. I would say the House version of the DATA
Act is extremely comprehensive and I think hits the primary
reforms that we would like to see. There are a handful that I
cite in my written testimony, they are bulleted, and those are
the things that I hope will, at a minimum, emerge from whatever
compromise is necessary with the Senate.
Mr. Farenthold. All right. Well, thank you all very much. I
see I have gone a little bit over my time. I would like to
apologize and yield back.
Chairman Issa. No problem.
And just before I go to Ms. Duckworth, the good news is
that the Senate now is seeing the advantages of recipient
reporting, so it is likely that the final passage would be a
little closer to what went out of the House last time, or at
least that is what we are discussing.
Now we recognize the patient gentlelady from Illinois, Ms.
Duckworth.
Ms. Duckworth. Thank you, Mr. Chairman.
Ms. Canterbury, the Open Government Directive instructed
agencies with large backlogs of FOIA requests to reduce those
backlogs by 10 percent each year. Yet, only 3 out of the 11
agencies with more than 500 backlog requests met that goal in
2012 and nearly 60,000 backlog requests remain in these 11
agencies, again, falling short of the 10 percent goal. Why do
you think agencies are struggling to reduce their backlogs?
Ms. Canterbury. Well, I think some of the problems are
bureaucratic and systems oriented, so there are some agencies
that have really taken initiative, like at DHS, where they have
prioritized streamlining their practices so that they have a
system where they can prioritize requests coming in. So I think
that that can work when there is a focus by the agency, but it
takes leadership.
Ms. Duckworth. You also mentioned the importance of
watchdogs and for those offices within the Government that have
watchdog responsibilities to receive adequate funding. I would
be interested to hear your opinion about the expected impact of
the sequestration on government transparency, especially with
the capability of the watchdogs to do their jobs if they are
going to be cut.
Ms. Canterbury. I would like to say catastrophic, but I
hope not, because I hope this Congress is going to deal with
the need to address government spending in a different way. So
I hope that those aren't permanent impacts. But our inspectors
general, the Office of Special Counsel, both of those watchdog
entities have received a large mandate to do more oversight and
accountability work, in particular on whistleblower
protections.
So the very excellent legislation that the ranking member
and the chairman advanced last year to protect federal workers
means that the Office of Special Counsel has a lot more work
coming its way and no additional funding for that work, and yet
they have shown, under their new leadership with Special
Counsel Lerner, that they are doing extremely effective work
for the taxpayers.
Also, the inspectors general now have responsibilities for
the next four years to protect contractor and grantee
whistleblowers who come forward, and we think this is going to
do a huge amount to increase accountability in contracting and
for grants. But, again, they receive no additional funding for
that, although they did under the Recovery Act. It is important
to note that they had additional responsibilities there.
I think all of us would agree that under recovery there was
a relatively small amount of waste and fraud because of the
approach of having an accountability board and giving
inspectors general more authority to protect whistleblowers, so
working together, but they had additional funding to do so
under the Recovery Act, so we need to do that for them.
Ms. Duckworth. Thank you.
Do any other members of the panel have any comments on
adequate support or funding for whistleblower companies or
agencies?
Mr. Schuman. I would just add, and this is something that
the chairman and the ranking member testified about before, I
think it was the Committee on House Administration, the effects
of the sequester, of course, on Congress are also significant.
The legislative support agencies are having their funding cut
significantly, as are committee staff, and your ability to keep
and retain and pay the sufficient number and quality of people
to do the work that is necessary for this Congress to engage in
oversight is something that will be significantly affected by
the sequester.
Ms. Duckworth. Thank you.
Mr. Harper?
Mr. Harper. This is an example where I tone down my
libertarianism, but I don't necessarily agree with my
colleagues on the need for more funds. Thank you.
Ms. Duckworth. Well, Mr. Harper, if there is an increased
need through FOIA backlogs or there is an increased need for
greater oversight, how do we do that without funding and
providing the resources to do the oversight?
Mr. Harper. Well, seeking out the path of least
partisanship and ideology, hopefully the availability of data
going to the deliberations management and results of agencies
will reduce the need for FOIA inquiries. So I think FOIA will
never go away, but I would like to see more proactive
transparency on the part of agencies so that the FOIA requests
go down in number and the need for resources will drop as well.
Ms. Duckworth. Ms. Canterbury?
Ms. Canterbury. I agree with that, but I would also like to
disagree with my friend, Mr. Harper. We have friends who I
think consider themselves libertarians and conservatives who
agree that there are some parts of Government where it makes
sense to invest, because when you invest in those watchdog
entities, you return taxpayer dollars that would have been
misspent otherwise.
A great example of this is the huge success we have seen
under the False Claims Act. Last year, 4 billion taxpayer
dollars were returned because of the whistleblower incentives
and protections that we have under that law. So it has been
demonstrated and I think when you look at the budget of some of
our watchdogs, I mean, the Office of Special Council has such a
meager budget compared to so many others; they have 100 staff,
and it is just not adequate.
Ms. Duckworth. Thank you, Ms. Canterbury.
I apologize to the chairman for going over my time.
Chairman Issa. No, it was well spent. I might note that
every time the IRS does an audit, statistically it actually
gains us money, not loses us money. So to my friends, both
libertarian and otherwise, that is one of the great questions,
is do you cut something that has a net productivity; and the
IGS, as you know, and we saw in the hearing last week, they
have a net revenue gain through the work they do. I share your
concerns that if you cut the people that actually reduced
waste, you will get more waste and, thus, you will get less
effective spending.
Mr. Connolly. Would the chairman yield?
Chairman Issa. Well, it is the gentlelady's time.
Ms. Duckworth. I will certainly yield.
Mr. Connolly. I was just going to add to what you were
saying, Mr. Chairman. A subcommittee on this committee has
looked at this very question and I am very concerned about
money left on the table that is owed the U.S. Government but
for resources at IRS to collect it. So I echo what the chairman
has said; I think it is a smart investment.
Chairman Issa. I thank both the gentlelady and the
gentleman.
We now go to the gentleman from North Carolina, who has
been patiently waiting at the very bottom of the dais, for five
minutes.
Mr. Meadows. Thank you, Mr. Chairman.
I wanted to follow up on something that was just shared. I
think, Ms. Canterbury, you were sharing in terms of the
legislation that is put forth, and you said it is very
comprehensive in terms of what was put forth or recommended by
the House. As we look to reconcile those, what would be the top
three areas you would identify as areas of concern that we
ought to be looking for as we identify those?
Ms. Canterbury. Can I have six?
Mr. Meadows. Sure, go ahead and have six.
Ms. Canterbury. Okay, unique identifiers, data
standardization, Treasury outlay data, real and frequent data
quality assessments, and an independent board that will have
the necessary independence and motivation to implement the DATA
Act.
Mr. Meadows. All right. So out of those six, which would be
your very top priority?
Ms. Canterbury. I think that some things can't come without
others, so to sequence, there will need to be attention paid to
the unique identifiers and the data standardization I think to
lay the groundwork, and then the matching of the Treasury data
and other linkages will be far easier to do.
Mr. Meadows. All right. And you mentioned in your
testimony, you talked about routinely the 20-day rule and how
the responses are not adequate. I think there was only 8 out of
100 agencies that responded with the requested information, and
some of those, literally, it was a response that we have your
request, that they felt like qualified that 20-day fulfillment.
Can you characterize the problem over the last 10 or 15 years?
Has it gotten worse? Has it gotten better? You spoke to that a
little bit already, but, as we look at that, has it gotten
progressively worse in terms of that response rate?
Ms. Canterbury. I would say that it has gotten worse and
gotten better depending upon the administration, but it is a
continuing problem. There has never been a success under the
20-day limit for any administration, and part of the problem is
there really are no consequences for violating that. And as I
mentioned in my written testimony, the agencies, and as you
mentioned, like to send a letter and then that qualifies. If
they send a letter saying, thanks, we got your request, we are
working on it.
And we disagree with that and our friends at the Citizens
for Ethics and Responsibility in Washington do too; they
brought a lawsuit against the Federal Elections Commission and
the results of that will be very interesting. I think that
agencies might actually come to Congress and ask for more time
if they lose that suit. We would object and say that there is a
way to do that in most circumstances and there is a way to
extend under the law, as well. So I think moving away from the
time limit would be a mistake but, rather, addressing what are
your systems problems.
Mr. Meadows. All right. And you mentioned the one thing,
and I want to follow up on that, about penalties and
enforcement, because we can pass all kinds of regulation laws
and create agencies to do this, and without an enforcement
mechanism nothing really changes. So there is the defer and
delay kind of mentality that is pervasive within many agencies
in Government. So what kind of penalty and enforcement
mechanism, other than just strictly watchdog or overseeing,
would you recommend?
Ms. Canterbury. Well, I think that if the agency had to pay
for its appeals, that might be a disincentive to delay and to
deny in the firsthand, and then we have more than 50 percent of
our appeals, the information is actually disclosed, and it
should not require an appeal. It seems to for many agencies;
you know you are going to make a request and then you will have
to appeal to have a shot at getting the information. So if the
agencies had to pay out of their own budgets, that might be a
disincentive.
Mr. Meadows. And did I pick up in your earlier testimony or
response to the question that you believe that oversight of
this particular request would best not be under the Department
of Justice, just because of conflict of interest?
Ms. Canterbury. That is absolutely right, sir.
Mr. Meadows. Mr. Harper, you were saying earlier, in my
last remaining questions, in terms of not needing money and the
transparency of putting things on the Internet or where it is
focused there, what percentage of requests do you think it
might reduce if we had that kind of transparency? Or on a scale
of 1 to 10, and let me make it easier, with 10 being the best,
where would you rank that in terms of your recommendation
there?
Mr. Harper. It is a very hard question to answer seriously
or honestly because there are some different types of FOIA
requests. But I would guess that you might be able to cut FOIA
by 50 percent, something like that, if there was consistent
reporting of deliberations, management, results. There would be
much less need for FOIA requests. They would still definitely
be there, though.
Mr. Meadows. All right. Thank you.
I yield back.
Mr. Duncan. [Presiding.] Thank you very much.
Mr. Clay.
Mr. Clay. Thank you, Mr. Chairman.
Let me thank the witnesses for their testimony and I will
start with Ms. Wexler.
You mentioned in your testimony that the GAO has found that
agencies often improperly designate advisory committee members
to avoid conflict of interest requirements. Agencies complain
about the administrative burden imposed by these requirements.
These requirements, however, are in place for a reason.
Advisory committees provide recommendations on important issues
such as drug safety, children's health, and national security;
and if a committee member has a conflict, that member could
influence government policy for personal gain.
What is the danger of allowing a committee member to serve
without disclosing a conflict?
Ms. Wexler. Well, at the very least, the danger is that the
conflict becomes part of the media reports about the
deliberations, which we have seen happen repeatedly. So the
public trust is shaken. Certainly, there have been situations.
The world I know best is the world of FDA, where votes on drugs
like Yaz and Vioxx and Bextra, a difference was made because of
the conflicted members on those panels, particularly in the
case of Yaz, a contraceptive later found to be quite harmful.
So I think that there are real world problems with conflicted
experts.
There is also the larger problem when a vote is not
necessarily effected. But a conflicted expert because what
panels just generally strive for is consensus, so they operate
more like juries than anything else. If you have somebody with
a financial stake, with skin in the game, they are going to be
very influential when it comes to making a difference, making a
case for their point of view within these deliberations. Often,
other panelists may not feel that they are as knowledgeable;
they may look to this person, particularly if he has a lot of
expertise, and expertise is something that comes with financial
ties, we understand that.
So that there are real dangers, both the real world kind
and certainly in the terms of the loss of public trust.
Mr. Clay. And I am sure that raises the antennas of
stakeholders and other committee members who know what is going
on. The Federal Advisory Committee Act amendments, which I am
reintroducing today, would require that advisory committee
members who are appointed because of their individual expertise
comply with financial disclosure and other ethics requirements.
Do you believe this clarification will help ensure that
agencies don't allow members with conflicts of interest to
avoid disclosing their conflicts?
Ms. Wexler. Well, it will certainly help with the problem
of agencies mislabeling special Government employees who do
come under the Ethics in Government Act and representatives who
are considered stakeholders and, therefore, their financial
disclosure is not required. They are presumed, in a way, to
advocate for a specific agenda. So to the extent that it
clarifies that agencies must not use this kind of
classification system to evade those kind of disclosure
requirements, yes, it would be helpful.
Mr. Clay. The FACA amendments also include a provision
which was recommended in part by the Union of Concerned
Scientists. That provision would require that agencies provide
an opportunity for members of the public to suggest potential
committee members. How do you believe public participation in
the selection of advisory committees will reduce conflicts of
interests on these committees?
Ms. Wexler. Well, I think that it means that you are
essentially engaging the services of the public to enrich the
activities of agencies. Agencies often feel burdened about
filling these slots on advisory panels, and I think sometimes
justifiably so. So basically what you are saying is let's
consult the public about experts we may not know about. It
would diversify the pool; you would be much more likely to get
people without financial ties because you would just go to a
larger arena. It is a very good idea, I think.
Mr. Clay. Mr. Schuman, any comments?
Mr. Schuman. I agree with that. I also think that the
provision in there that covers the subcommittees, which is one
of the major loopholes, as you know, since, of course, it is
your legislation. For the subcommittees, of course, oftentimes
work is pushed down to that level so that there is no
disclosure that occurs for meeting minutes, for records. And,
relatedly, when we have looked at the federal advisory
committees, we found that many of them have simply never held a
public meeting. In the entire time that they have existed, they
have never had a single public meeting.
One thing that we spend a fair amount of time doing is
looking through the FACA database that contains a list of all
of the committees, all the meetings they have had, whether
public or private, and all the members, and we have integrated
that into a Web site that we have called Influence Explorer
that allows you to see how organizations and entities that are
lobbying on an issue, that are giving campaign donations on an
issue will also try to place people on advisory committees and
then, of course, those committees don't necessarily meet in
public. So this is tremendous legislation and I think it is
great.
Mr. Clay. Thank you so much, Mr. Chairman. My time is up.
Mr. Meadows. [Presiding.] Thank you.
The Chair recognizes the gentleman from Kentucky, Mr.
Massie, for five minutes.
Mr. Massie. Thank you, Mr. Chairman.
In 2008, Bloomberg News had to file a lawsuit to force the
Federal Reserve Responder Request to reveal the identities of
the firms for which it had provided guarantees during the late
2000s, during the financial crisis. Nearly three years later,
and after considerable expense to the taxpayer and use of our
court system, the Federal Reserve finally relented and
disclosed those names. Should the Freedom of Information Act be
updated to clarify unambiguously that the Federal Reserve is
subject to FOIA?
And anybody is welcome to respond to that.
Ms. Canterbury. Yes, I agree. And I think that there are
other loopholes. Of course, Congress is not subject to FOIA
either.
Mr. Massie. Mr. Harper?
Mr. Harper. Yes, the Fed should be subject to FOIA. I will
reserve whether Congress should be subject to FOIA because it
is so very different from the federal executive branch.
Mr. Massie. Mr. Schuman?
Mr. Schuman. I would just say that we also see, whether it
is the Fed generally or with specific aspects of legislation,
there are oftentimes riders that are put into bills that work
their way through Congress that create exemptions to FOIA, and
we see this with spending by entities like the Fed or we see
this with national security or with matters that are entirely
unrelated to sensitive issues whatsoever, and we believe, and I
think others do as well, that these attempts to create
loopholes in FOIA are often too large or not appropriately
vetted, and we think this is another issue that should go
through regular channels within Congress to make sure these
loopholes aren't put in a way that is either unintentionally
large or defeats the purpose of FOIA.
Mr. Massie. Ms. Wexler?
Ms. Wexler. Yes. And I think that there are enough
exemptions now in current FOIA law that I don't think we would
have to worry about inadvertently disclosing through the
Federal Reserve something that really legitimately should not
be disclosed.
Mr. Massie. So pursuing those sort of loopholes and
exemptions, I am concerned, is there enough visibility into
federal money after it gets, for instance, block granted to the
States or when Congress otherwise passes federal dollars to
municipalities or even private organizations to spend that
money, do we have enough track of how that money is being
spent, for instance, on agricultural subsidies or subsidies for
insurance? Mr. Schuman?
Mr. Schuman. The short answer is no. When you look at the
data that is reported to the public, as our Clear Spending
Report has found, it is unreliable. When you look at the new
reporting that was required under the Recovery Act, what we
found is it actually prompted States and localities to create
transparency measures that they never had before. They started
thinking about these issues in different kinds of ways and they
actually became more open and accountable.
But as things exist now, while some States do a good job,
some States do a bad job, as a general rule you really can't
follow the money all the way down. You can't see where it comes
from, which is what Jim was talking about before in terms of
how money goes through the legislative process in the
appropriations and the obligation process, and you can't see it
all the way to the end. That is why you need subrecipient and
subgrantee reporting, which is some of the provisions that the
DATA Act contains.
Mr. Massie. Mr. Harper?
Mr. Harper. I agree that there is not enough transparency
in ultimate recipient information.
Mr. Massie. Is or is not?
Mr. Harper. Is not enough transparency in ultimate
recipient information. You want to be able to see all the way
through the process; agency, bureau, program, project, the
obligation grant, the outlay, the recipient, the subrecipient.
Just to be clear, or head off a concern people may have, you
don't want to invade privacy. That is, if it is a benefits
program, we are not talking about publishing the names of
people who get Social Security checks or other public benefits.
But when it comes to corporate entities or organizational units
that receive outlays of Federal funds ultimately, we want that
data.
Mr. Massie. That is a good lead-in to my final question.
Without violating privacy concerns, is there a role for more
sunlight in disclosure for disclosing SSI and disability fraud,
which we all know exists but is hard to get our hands around?
Is there a role, is there a way to expose some of that fraud
without disclosing personal data? Mr. Harper?
Mr. Harper. I would say that you don't want to give
transparency to personal information of recipients of SSI
disability. The way you would probably want to do it is through
data mining. There are probably common forms of fraud on these
systems, and once you learn to recognize those frauds in your
data, you can look for them happening again. Credit cards do
this. When somebody spends $5 at a gas station and $5,000 at
the Best Buy, that is them testing a credit card to see if it
is still live so they can go buy electronics. That kind of
pattern is the thing you might be able to see in SSI data.
Mr. Massie. Thank you very much. My time has expired. I
yield back.
Chairman Issa. [Presiding.] I thank the gentleman.
We now go to the gentleman from Illinois.
Mr. Clay. Can I go again?
Chairman Issa. No, you may not go again, not unless you
want the gentleman from Illinois to chastise you.
Mr. Davis.
Mr. Davis. Thank you very much, Mr. Chairman. We often
accede to the request of the gentleman from Missouri, but we
will go right ahead.
Chairman Issa. If you have any time left over, you can give
it to him, right?
Mr. Davis. All right.
Let me thank our witnesses for being here. I think this is
a very important topic of discussion.
Ms. Canterbury, under FOIA, an agency must waive or reduce
the fees for responding to a FOIA request if a requester can
show that disclosure of the records being sought will
contribute to the public understanding of the operation of
activities of the Government.
The Associated Press published an article on Monday, ``U.S.
Citing National Security in Censoring Public Records More Than
Ever Since President Obama's Election.'' The article highlights
the fact that the CIA denied every request for fee waivers in
2012. According to the CIA's FOIA report, it received nine
requests for waivers. It seems kind of difficult to believe
that not one of those requests warranted a fee waiver. Does
this raise any concerns in your mind?
Ms. Canterbury. It certainly does. I think that you are
absolutely right that it couldn't possibly be that only at the
CIA there is no public interest in the disclosure. So it is
part of the larger pattern that I mentioned in this national
security state, where there is a real imbalance and
illegitimate secrecy that is growing. So I think that it is
important to look really carefully and I think for Congress to
stand up and to not allow claims of national security to just
blanketly cover what should be public, what Congress should
have a right to. So I think that there needs to be far more
oversight.
Mr. Davis. FOIA also allows requesters to obtain expedited
processing of a request if the requester can show a compelling
need for a quick response. The CIA failed to grant a single
request for an expedited FOIA response in 2012, although it
received 33 such requests. Do you believe that there should be
additional oversight into the CIA's denial of expedited urgent
FOIA requests and fee waivers?
Ms. Canterbury. Yes. I think they should be asked to show
their justifications. I think also we have seen a problem with
expedited requests. Now, these are requests when there is some
urgent need based on health and safety issues or other
concerns, so it is asking the agency to expedite that request,
and yet, at the State Department, they have an average of more
than 900 days in response to expedited requests.
Mr. Davis. It seems as though there are some people who
might think that the CIA should have a certain amount of
exemptions because of the nature of their work and the nature
of what they do. Do you still hold to your notion and your idea
that, yes, they should be responding a bit more because this is
information that the public should be aware of?
Ms. Canterbury. Congressman, it seems that there is a sense
of impunity. There certainly are legitimate secrets and there
is intelligence work at the CIA which should be withheld, and
there are adequate exemptions and exclusions under FOIA to
allow for them to classify and keep our national secrets that
are legitimate. However, fee waivers and delays in responding
to requests do not comport with their practical use and proper
use of the exclusions they have.
Mr. Davis. Well, let me just say I agree with your
assessment and I too recognize that there is information that
must be kept secret in the arena of national security, but they
also should be more forthcoming. My time has expired, so I
thank you very much.
And I yield back, Mr. Chairman.
Chairman Issa. And I thank the gentleman for making that
point about justice delayed is justice denied, as we all know.
We now go to the gentleman from Tennessee, Mr. Duncan.
Mr. Duncan. Thank you very much, Mr. Chairman, and thank
you for calling this hearing.
Ms. Canterbury, I appreciate and agree with your testimony
that secrecy has grown with the growth of the national security
state. This committee has done some great work through all the
various inspectors general, but I recall that a few months
after 9/11 The Wall Street Journal had an editorial in which
they noticed that every department and agency had sent up new
requests based on security or national security, and The Wall
Street Journal said a wise legislative policy from now on would
be to give twice the weight and four times the scrutiny to any
request that had the word security attached to it because we
seem to excuse things that perhaps we shouldn't excuse just
because they throw in the words national security.
Mr. Schuman, I appreciate your endorsement of my bill on
the Presidential Library Disclosure Act. I remember President
Clinton, on his last day in office, pardoned Mark Rich, who had
fled the Country to evade $40 million in taxes, and it turned
out that was done just after his ex-wife had given a $400,000
contribution to the Clinton presidential library. My bill would
not restrict contributions in any way.
I think there was some later information about a foreign
government giving a contribution also in return for some
favorable treatment, but it wouldn't restrict contributions,
but it would at least provide for disclosure of contributions,
and I think that is a very important thing and I think maybe we
are going to take that up again here in a few days. It was
passed by the House once, and passed overwhelmingly by a very
large bipartisan vote.
Ms. Wexler, let me ask you this. I heard what the chairman
said about not using the words revolving door, and I understand
his point that you don't want to limit these advisory
commissions and keep people off who maybe have some good
knowledge, but it seems to me that far too many federal
contracts, almost all of them, seem to be some sort of
sweetheart insider deal because all the Defense contractors
hire all these retired admirals and generals, the big giant
drug companies hire these former high level FDA officials, and
it seems to go on in every department and agency.
Do you think there should be, if not along with disclosure,
maybe a requirement that these departments and agencies should
be required to also include on these panels some people that
definitely do not have these conflicts of interest, or they
should be required to disclose if they give a contract to
somebody that is a former high level employee? It seems to me
there needs to be some sort of restrictions or limitations on
this in some way.
Ms. Wexler. Representative Duncan, I think the idea of
mandating a certain number of non-conflicted experts on
advisory panels is a wonderful idea. It runs the gamut, but too
often we do have advisory panels doing important and
substantive work, and too many members with financial ties to
the entities that they review are on those panels. So I think
the idea that you would sort of have a bar for including non-
conflicted experts makes a lot of sense.
Mr. Duncan. Does your group, have they done studies of
federal contracts and how many conflicts there are in all of
those federal contracts?
Ms. Wexler. No, we have not.
Ms. Canterbury. Sir?
Mr. Duncan. I think that would be something you should look
into, possibly.
Ms. Canterbury. We have done quite a bit of research on the
revolving door as an issue of too much coziness between the
regulated and the regulator, between those who are receiving
Government money and those who are in the Government, and most
recently we did a report on this issue at the Securities and
Exchange Commission, where there is some information that is
not easy to obtain but through FOIAs we were able to get more
information than is available at other agencies about who was
coming and going from the SEC. It is a particular problem with
contracts.
I think your suggestion is an excellent one. I think that
showing the leadership there, it would be really probably not
surprising to the American people to see how many people come
in and out of government, so I agree with the chairman that
transparency is a very good way to deal with that issue
initially, and we have a long way to have adequate disclosure,
but then also having some limits. It is reasonable. In many
other contexts we have a cooling off period for Government
employees, so I would suggest that we should have that in the
context of contracts and also regulated entities as well.
Mr. Duncan. Could I ask one last thing that would just
require a one-word answer?
Chairman Issa. The gentleman may have an additional 30
seconds.
Mr. Duncan. Is there anyone on the panel who thinks there
is less secrecy now than when FOIA was passed in 1966?
[Laughter.]
Ms. Canterbury. Absolutely yes, there is less secrecy than
in 1966, and part of that is a function of the technology that
is available today, so a lot of the proactive disclosure that
we are seeing is just something that was not possible in 1966,
yet the concern of the national security state growing.
Mr. Duncan. All right. Thank you.
Thank you, Mr. Chairman.
Chairman Issa. I never thought I would see so much silence
on a question like that.
We now go to the gentlelady from New York for five minutes,
Mrs. Maloney.
Mrs. Maloney. I thank all the panelists and I do want to
comment on the project, Ms. Canterbury, on government
oversight, which identified FOIA online as a best practice in
the report you released last week entitled, Best Practices for
Openness and Accountability. I was pleased to see that was a
bill that I authored many years ago and to see that you support
it, and also the work that we are doing with pilot projects on
it.
I wanted to follow up on Mr. Duncan's question. Members of
Congress and our staff, there is a two-year cooling off period.
I thought agencies had the same law, don't they? If you work in
a high position in an agency, don't you have a revolving door
requirement that you cannot go right back into that industry
within two years? That was my understanding.
Ms. Canterbury. There are various restrictions,
particularly with regard to lobbying and particularly with
regard to specific interests, so if it is something that you
worked on personally or substantially. So there are many
different ways in which people can evade having to have a real
cooling off period. There are also waivers that are given by
ethics officers on a regular basis, and those waivers are not
made public in many cases.
Mrs. Maloney. And following up on his other question about
contracts being ``rigged,'' couldn't you just require that
everything be competitively bid, and the low bidder who is
qualified get the contract? Why do you have to have these
negotiated contracts that have, shall we say, shadows on them?
Ms. Canterbury. It has been a particular problem in our
contingency programs, so our work in Afghanistan and Iraq there
has been, as you know, a real dearth of competitiveness in
contracts.
Mrs. Maloney. Well, I tell you, I began this week by going
to a company that was opening up in my district to combat
cybersecurity, and cybersecurity, in my opinion, is the biggest
threat to our homeland security, to our economic security, and
we have to do something about it, and, Mr. Ranking Member and
Mr. Chairman, we should have some hearings on cybersecurity and
what we can do about it.
But, in any event, there are stories that they are hacking
into major corporations, stealing our intellectual property,
hacking into the military, hacking into members of Congress.
Could you each comment on what you think we could do to protect
the privacy of our American firms and, really, American
citizens from this ongoing threat?
Ms. Canterbury. Just a word of caution on cybersecurity and
those initiatives and finding a good balance between the need
to have, obviously, more collaboration, more information
sharing, a better system to prevent cybersecurity threats that
are significant to our Country and to individuals. But that
must be balanced with a real concern for privacy, civil
liberties, whistleblower protections, and the people's right to
know.
So, like in other contexts that we have discussed today in
the national security sphere, there is a knee-jerk reaction to
then make secret anything that has to do with information
related to secrecy, and the cybersecurity bills that were
proposed in the last Congress, and the one that has just been
reintroduced in the House, have an unacceptable level of
secrecy and encroachments on rights.
Mrs. Maloney. Well, I just want to say we have to find the
balance. The real wealth of this Nation is the ideas of our
people, our research. We had a meeting with NASDAQ and they
were telling us that people are not only hacking into accounts
and trading people's accounts, totally falsifying. It is out of
control.
So this is an incredible challenge for our Country and I
think it should be something we can agree on, Mr. Chairman,
that we don't like this hacking and we have to stop it, and I
think this is one thing we could pass in this Congress if we
could figure it out. So I would like to hear your ideas on it,
on how we should go forward and what we should be doing.
Mr. Harper. For my part, I agree with Ms. Canterbury's
point about the privacy concerns that are evident in much of
the legislation we have seen last year. For me, cybersecurity
is really thousands of different problems that will be handled
by hundreds of thousands of different actors over decades. We
will never get to perfect security, just like we don't have
perfect physical security.
So what I think Congress could best do is really actually
assign responsibility to the entities that can handle
cybersecurity problems. So I don't think that the Federal
Government should actually provide security for the private
sector. When a business has failed to secure its own assets and
it loses those assets, that is an illustration of poor
management on the part of that business and that business
should pay the cost.
In general, with so much of our cyber infrastructure held
in the private sector, it should be the responsibility of the
private sector to secure those assets and it should pay the
costs when it fails. Obviously, the Government has a good deal
of information, being a large entity itself and a buyer of
technology, so it has a role and it can foster cybersecurity
and good cybersecurity practices, but I would place the onus on
the private sector to secure its assets.
Mrs. Maloney. Well, may I have an additional 30 seconds?
Chairman Issa. Of course.
Mrs. Maloney. And time for the other two to answer?
Private firms want to secure their assets, and I am not
saying that Government should. They should secure them; they
just don't know how to do it. We don't have the technology to
help our private sector or our Pentagon or our individual
citizens to secure their information.
Anyway, I would like to hear other ideas. Thank you so
much; it is very helpful.
Mr. Schuman. Just very briefly. So our colleague, Tom
Blanton, often talks about the idea of the way we try to
protect national security now is that we have a lot of secrets
and we try to build a wall around them. But with so many
things, it is very difficult to protect. What we need to do is
figure out what is critical and protect that, and the other
things that are less critical, it is not worth devoting the
resources to and it runs into these problems.
In terms of how to help the private sector, some of it is
the same way. We look at government and we have government
systems technologies that are 30 or 40 years old, where the
system infrastructure isn't capable; where we have inflexible
hiring practices, so it is difficult to bring in people who are
capable and competent to handle these issues.
Within Government we need to look at hiring, we need to
look at being able to retain the best and the brightest. When
it comes to the private sector we need to look at providing
models, providing examples, showing private sector folks part
of the way in which they need to protect themselves. It is not
something Government can do for them.
Mrs. Maloney. I have talked to some members of the
military. They tell me the private sector is way ahead of us,
meaning Government; that the private sector is doing a better
job than we are. That was at a meeting where they were learning
from the private sector how to better secure our situation and
our information.
Thank you.
And Ms. Wexler?
Ms. Wexler. You know, I agree with Mr. Harper and I agree
with all of the panelists. I think this is a very important
problem. It is going to take more than one way of solving it.
Certainly, the private sector does have a responsibility to
protect its own assets, but there is nothing wrong with the
Government learning from the private sector as they develop
innovative new ways to protect, nor is there anything wrong
with the Government developing technology that can then be used
by the private sector for the purposes of protection, but
always with the idea that civil liberties and privacy are also
respected.
Mrs. Maloney. Thank you. I yield back.
Chairman Issa. I thank the gentlelady.
We now go to the gentleman from Illinois, Mr. DeSantis.
Mr. DeSantis. Florida.
Chairman Issa. Oh, I am sorry.
Mr. DeSantis. Appreciate it, Mr. Chairman. We are enjoying
some better weather now.
Chairman Issa. We have been doing real well with Illinois
on this side, but, yes, the gentleman from Florida.
Mr. DeSantis. We have a better record with our teams in the
World Series than Chicago does.
Mr. Harper, from Cato's perspective, are you guys
interested in transparency for transparency's sake? Well, I
guess that is obviously good, but do you believe that more
transparency will help actually reduce the size and scope of
Government?
Mr. Harper. I do. It is my belief that it will. When people
see where the dollars are going, they will realize this can be
better handled in our States, it can be better handled in our
localities, or we can just handle it ourselves.
Now, I characterize the transparency issue as sort of a bet
between myself, libertarians, conservatives, and liberals and
progressives because if transparency causes government programs
to work better and it actually rings waste, fraud, and abuse
out of programs, that is fine. I will take a better running
government over a government that is large and failing.
So that is how I view transparency as a pan-ideological
issue. I do think that it will result in things that we want as
advocates of limited government. But if I am wrong, I think I
still win.
Mr. DeSantis. Absolutely. In terms of the CFPB with Dodd-
Frank, have you looked at how effective FOIA or some of these
other mechanisms will be? Because it seems like a lot of the
financial information can be exempt. And then this is an
institution that purports to not really be accountable to
Congress and they have a different source of funding. I am just
worried that this is an agency that is not going to be held
accountable.
Ms. Canterbury. We have done some work looking at the
Consumer Financial Protection Bureau, and they have actually
been a model for openness in different initiatives that they
have had. They made meetings that they were having with outside
interests, whether they were regulated interests or public
interest groups like ours, they made all of those meetings
public; they created a credit card complaints database that has
been lauded as very helpful to consumers. So we really
appreciated the amount of openness that they have there.
We also have been concerned that they were required,
essentially, to adopt the same confidentiality procedures and
rules that you mentioned that are used by the other financial
regulators in order to receive information, and this was
something that we were made aware of when they were standing up
the agency, and we have raised concerns about the extraordinary
claims of confidentiality that are in financial regulated
information. I think that it is an area of an overreach. There
is really another system that is outside of FOIA and outside of
classified information, so that if a company simply says I
would like for this to be confidential, they are granted it.
Mr. DeSantis. Great.
Mr. Harper, in your testimony you talked about the grant-
making reform, how there was, like, a counter-argument about
peer review, and you said that the transparency was more
important. When I read that, and I hadn't been that familiar
with this, to me, I didn't see that that was even a decent
argument, but I probably don't know enough about it. So what is
this argument about more transparency in the grant-making
process will have negative effects on independent peer review?
Mr. Harper. Well, the argument, and it is not my argument,
but it is one I will try to give credit to. The argument is
that peer review is often done anonymously, so colleagues who
have professional relationships will review each other's
papers, but do so anonymously so that they can speak their
minds about the quality of research without threatening the
professional relationship.
So I take it that the argument is that if there is
transparency as to who is doing reviews, then you are sort of
upsetting longstanding traditions with regard to peer review.
So that is a real issue; it is definitely something to think
through. There might be a solution. I don't know the field that
well, but there might be a solution where they use an
identifier so that we can know that the same person did 500
reviews in a year, to take an exaggerated case, but nobody
knows exactly who that was.
So I think there are probably ways of solving that problem.
So it is a genuine thing to talk through, the balance between
transparency and anonymity.
Mr. DeSantis. And then just, finally, you mentioned the
need for an organizational chart for the Federal Government. Do
we know how many actual offices and agencies exist within the
Federal Government? I guess where are we falling short? Why
hasn't this been done so far?
Mr. Harper. It is boggling to me that there isn't a machine
readable Federal Government organization chart. We should be
able to see what agencies exist, what bureaus exist, what
programs, and what projects so that we can tie legislation to
all those things when you in Congress are trying to effect
something; so that we can tie spending to those things so we
can know this happened because of a certain program in a
certain bureau in a certain agency. That doesn't exist.
There are at least four different representations of how
the Government is organized. Each is different; each is
published in PDF, so I can't use a computer on it. Now, the
best we have is from NST, which produced a pretty darn good
organization chart that just goes to the bureau level, just the
simplest stuff, agencies and bureaus. That is what we are using
for our legislative markup now, but there should be a complete
Federal Government organization chart.
Mr. DeSantis. Absolutely. Thank you.
Chairman Issa. Would the gentleman yield?
Mr. DeSantis. Yes.
Chairman Issa. There is a story that I think says a lot
from the private sector. Until a few years ago, taxi drivers
would hear on a radio that there was somebody who wanted to be
picked up at a certain address, and the most aggressive taxi
driver would get it by saying I am right around the corner. As
taxi companies began putting GPS systems in the taxis, they
could figure out who was actually the closest and it
dramatically changed the response to the consumer.
I think, to a certain extent, the Government's willingness
to have us actually be able to see what they are doing, versus
the printed org charts that say what they say they are going to
do, would probably be equally illustrative.
Ms. Canterbury. I hope that improves safety on the roads,
too.
Chairman Issa. I think it has. As a taxi town where you
just walk out and get one, we are not as aware of what it is
like when you have to call for a taxi, but some of us are.
With that, would the gentleman from Virginia seek to be
recognized?
Mr. Connolly. I would.
Chairman Issa. I recognize you.
Mr. Connolly. Thank you, Mr. Chairman. I knew you would.
Thank you so much and thanks for holding this hearing, because
I think it is a really important one.
Let me pick up on my colleague's comments, the last
questioner, on grants, because obviously the desire to have
more transparency in the award of grants and to make sure that
it is an open and competitive process is a legitimate concern.
This committee considered some legislation previously called
the Grant Act designed to do that, but I think it had some
unintended consequences.
Ms. Wexler, have you looked at that Act and does it, I
think unintentionally, raise some flags for the academic
community and for the competitive process itself?
Ms. Wexler. Yes, that is true, and we understand the goal
here, and the goal is commendable. Let me use the only analogy
I can. When I have written a book; I have submitted my book
proposal to the publisher, who has accepted the book. I do not
want my book proposal to be part of the public record because
it is the recipe I have for writing a book that is uniquely
mine, that was a product of my imagination and my work.
So I think what we want to make sure is that even for those
grant proposals that are accepted by the NSF, by the National
Science Foundation, that in the interest of transparency we
don't violate someone's rights to intellectual property. I
think that would discourage innovation and it would not work.
I think it is very important, and I think we can manage
this and work with this so that, I think you have suggested,
abstracts would be available. As you know, there is an abstract
database that the NSF has and it is pretty comprehensive. You
look at those abstracts and they tell you quite a bit. I don't
think we are ever going to get in a situation where the
American public looks at a bunch of abstracts or even full
proposals from the NSF and says, you know, this one is great
and you should really not do this one.
However, I do think that Congress has a legitimate
oversight role here, and we would welcome working with you on
ways to figure this out to ensure the intellectual property
rights of those who submit proposals, as well as make sure that
there is enough transparency for Congress to have the
legitimate oversight role that it should have. As for the same
thing of the identity of peer reviewers, that we be very
careful about ensuring that no one particular grant is linked
to any particular peer reviewer. Again, it is the whole notion
of that person thinking that that identity will be revealed,
may go easy on that applicant; may go hard, depending on their
personal relationship.
I think what we are most interested in is what Mr. Harper
mentioned, really, the patterns. Are particular institutions
being overly represented on peer review panels in general? Are
particular professions over-representative; particular regions?
Mr. Connolly. I am going to have to interrupt you because
my time is short.
Ms. Wexler. I am sorry.
Mr. Connolly. But thank you, Ms. Wexler. I share your
concern. I also hope we could work it out so that actually we
can get at the goal here, which is transparency, more openness
to ensure this fair competition without compromising
proprietary information, intellectual property, and, frankly,
without always showing some of our proprietary research to
other watching eyes with whom we may not want to share that
kind of scientific research.
The Supreme Court had a ruling last year, the Milner
decision, or in 2011, that significantly narrowed the scope of
Exemption 2 in FOIA. Some in the IG community, particularly,
have raised concerns that that decision may hinder certain
critical operations, for example, with respect to FISMA. And
the chairman has reintroduced a FISMA reauthorization I am
proud to support, along with the ranking member, Mr. Cummings,
and they have expressed some concerns that that would preclude
the sharing of vulnerabilities in the Federal IT system among
agencies.
Ms. Canterbury and Mr. Schuman, I wonder if you want to
comment real quickly.
Ms. Canterbury. We don't always disagree; we often agree
with the IG, but in this case we disagree. We think that they
have the exemptions that they need to withhold the information
that they must when they are doing the reports under FISMA. We
have had conversations with them about this.
Mr. Connolly. So you are not worried about Milner?
Ms. Canterbury. Not with respect to their FISMA reports.
There have been recent reports issued by inspectors general in
response to FISMA which they were able to make redactions and
also provide mostly public information.
Mr. Connolly. If the chairman would just indulge just one
brief, brief followup.
Anyone concerned about Milner?
[No audible response.]
Mr. Connolly. No one. All right.
Thank you, Mr. Chairman.
Chairman Issa. Thank you.
We now go to the gentleman from Michigan, Mr. Amash.
Mr. Amash. Thank you, Mr. Chairman, and thanks to our panel
for being here today.
Ms. Canterbury, you brought up the cybersecurity bills and
you mentioned CSPA. I don't know if you mentioned the name
CSPA, but CSPA is the cybersecurity bill that was recently
introduced. I view it as a tremendous threat to our Fourth
Amendment protections because it is the Government subsidizing
privacy violations, and it does this by providing immunity from
liability for businesses and other organizations to share your
personal data with the Government. And I wanted to ask you to
elaborate and give your perspective, and anyone else on the
panel as well.
Ms. Canterbury. So I am not as familiar with the immunity
aspects of the bill, that is not a particular area of expertise
for my organization or for me, but our concern has been that
there are overly broad and extensive statutory exemptions to
FOIA and that those were not necessary but were perhaps just
being provided to create assurances that really should be had
by these entities under the law in any case. We are also very
concerned that there be some sort of equity for the public's
right to know, for civil liberties, for whistleblower
protections so that there aren't encroachments on those rights
with these new proposals.
Mr. Harper. I have not read the new CSPA, though I read
every single cybersecurity bill in the last Congress. I tried
to swear off the reading of cybersecurity bills, but it looks
like I will have to get back into it.
What really, really stuck in my craw about nearly all of
those bills is that in the area of information sharing they
said, notwithstanding any other law, information sharing may
happen. Well, that means that the Privacy Act of 1974 is out
the window. That means that the E-Government Act is out the
window. That means that your contract law, your State contract
is out the window. That means tort law is out the window. The
health information law is out the window; financial privacy law
is out the window.
So if the phrase notwithstanding any other law appears in
the new CSPA, it is as bad as the old CSPA. And it is really
offensive to me that because there might be some regulatory
impediments to information sharing, Congress would come along
and sweep aside all the law that exists, including all the laws
that protect our privacy. So it stands out to me, CSPA does, as
a real offense to privacy and to, frankly, good law making.
Mr. Schuman. This isn't an area of focus for The Sunlight
Foundation.
Mr. Amash. Sticking to the topic of legislative
transparency, I served in the State legislature in Michigan
before I came to Congress and one of the things that I noticed
when I arrived here was how lousy the bills were in the way
they were written. Everything was cross-referenced as, you
know, on page 7, line 6 of whatever act, insert such and such.
So when I was in the State house, the way it worked was
when you have a bill that amends existing law, you actually put
the law in front of you and you cross things out and you insert
things. It is like a Track Changes in Word. So I introduced
recently the Readable Legislation Act, it is H.R. 760, and I
wanted to get your perspectives on this, whoever might have an
opinion on it, because I think it is very important that
legislators know what they are voting on, they can read the
bills and then the public can actually follow what we are
doing. I think it would make us a lot more efficient as a
Government.
Mr. Harper. I have read the bill, and I could read it
through and through and understand what it said, and that is
important, and I think that is the essential goal of your
legislation. And for the WashingtonWatch.com audience, a site
that I run in my spare time, I actually showed an example, I
took another piece of law, which is just a cut and paste law,
it says section such and such is amended so and so, and I did a
redline version of it and said this is what the law would look
like under Mr. Amash's bill. Read the bill is a stand-in for a
lot of demands of the public to understand what is going on in
Washington, but taking it literally and having Congress write
bills that are literally readable is an important and simple
amendment to your process, so I recommend it.
Ms. Canterbury. I agree with that; it is a very sensible
approach and we support it.
Mr. Schuman. The Sunlight Foundation actually wrote a
little article called The Read The Read The Bill Bill,
something like that. It was a terrible name but it emphasized
the point that it is important to understand the legislation.
And it is not just how bills would change the law, of course,
but it is how amendments would change bills and how amendments
would change other amendments, and starting to draw the
connections, because it is not just how a bill would change the
law, and it is very complex with the way that Congress engages
in this, but it is also what are the bills that are identical
or are virtually identical that existed in the same Congress or
in previous Congresses, what are the other ideas that are along
these lines that have happened.
The more that you can wrap these things together, if we can
say the axis to Congressionally Mandated Reports Act in the
113th Congress is identical or virtually identical to the one
from the 112th that had this hearing, all of a sudden you can
create contextual awareness in a way that is not possible. And
what you are trying to do with this legislation is spot on.
Ms. Wexler. And I too support and have the experience of
being a lobbyist in the New York State legislature and being
shocked to see that I couldn't figure out the bills that I was
reading here. I also believe that Congress is supposed to be
under the mandate of the plain writing law, so we are supposed
to be already reading bills that are a little bit easier to
understand.
Mr. Amash. Thanks.
Mr. Chairman, I will be very brief. Mr. Schuman?
Mr. Schuman. I will be very brief. There is also a related
rule in the House that already exists, and there is one in the
Senate, it is the Ramsey rule in the House, which is that
reports that come out of committees are supposed to have
basically Track Changes so you can see what has changed. This
rule isn't always followed, not because folks don't want to,
but because it is actually technologically difficult to do
this. What you are proposing is extending it broader to all
bills that are introduced and, again, it is an incredibly
helpful thing to do.
Mr. Amash. Thanks for your comments. I can say, again, from
my experience, it makes a big difference to have the context of
the bills. It makes us much more efficient as legislators and
it allows our people at home to really follow what we are doing
in a way that doesn't exist right now. So thank you so much and
I yield back.
Chairman Issa. I thank the gentleman.
We now recognize the patient gentleman from Georgia, Mr.
Woodall.
Mr. Woodall. I thank you for the courtesy, Mr. Chairman,
but I don't have any questions.
Chairman Issa. Okay, then I will recognize myself for a
closing quick round.
This has been very, very important to me to try to hear
some of the comments, particularly from questions including Mr.
Amash's just now.
Ms. Wexler, I want to make sure I understood in context.
Grant applicants, that is an industry; I mean, people pay a lot
of money to write good grants. You weren't suggesting that the
prevailing grant is proprietary intellectual property, were
you? I wanted to understand that.
Ms. Wexler. I was suggesting that there are certain types
of grants, proposals, for example, proposals submitted to the
National Science Foundation, that do reflect the intellectual
property of the applicant. I am not saying that that is the
universe of all grants by any means.
Chairman Issa. Because if I can put it in layman's terms,
if I ask for a job and I submit you my resume, other than my
Social Security number, wouldn't you say that my resume, if the
Government hires you, to a great extent should be available? In
other words, an honest review by those who would be critical of
what was in there or, if you will, the right of the public to
say, geez, how did this person get hired? Wow, they wrote a
clever resume, one that might get me hired the next time.
Wouldn't we be stepping up the game if we made at least the
prevailing applications with appropriate redactions, but
limited, always available?
Ms. Wexler. I think the redactions would be difficult to do
and would require on the part of something like the NSF to put
a lot more manpower into it. What we don't want is to in any
way violate people's own ideas and intellectual property before
they are hatched.
Chairman Issa. And I agree with you. You said before they
are hatched, and maybe for everyone there I am making the
assumption that we have granted the application, Federal
funding has flowed to that entity. At what point would any of
you believe that substantially all of that material belongs to
the public for purposes of honestly figuring out whether or not
we are spending that money properly? Ms. Canterbury? Because it
is an important balancing act. We can all see it if I am
applying, for example, to provide computers for the IRS, a
current investigation of our committee. But when you get into
science, often it becomes a little murkier. Do you see it as
that difficult?
Ms. Canterbury. No. I think we can solve this. I think that
we do it within the context of proprietary commercial
information that is not scientific. I think we can do it for
science too. I think that Ms. Wexler had some good
recommendations. I also think we should err and appreciate that
the chairman and ranking member err on the side of
transparency, but that you are also open to fixing areas where
privacy or competition might be used against the entity that
would be applying.
Chairman Issa. And the current redactions are initiated
first by the applicant, so I appreciate it is burdensome, but I
don't think it is particularly burdensome for the applicant to
know what they believe is most necessary to protect. So the
first argument does appear as though it is not burdensome on
the agency.
Mr. Harper?
Mr. Harper. Well, I guess I don't feel expert enough in
this area to comment on specifics, but what you are talking
about is striking a balance and a balance that deals with
values: privacy, intellectual property on the one hand and
transparency, the administration of taxpayer funds on the
other; and I guess there are delicate balances to be struck
here. I, like Ms. Canterbury, agree that, as you might expect
on this panel, we would favor the transparency side of things.
Basically, everything we are talking about in grant making,
this is taxpayer money, so to the extent anyone thinks that
there is a right to have taxpayer money, no. We can make it
part of the deal that you have to share this information if you
want to be a part of the grant.
Chairman Issa. And one of the reasons that I am so
concerned is that often what happens in IT development, in any
other part of Federal dollars being spent is people come with
proprietary information that was previously developed at the
taxpayers' expense. They then proceed to get a new grant or
contract at taxpayers' expense in which they then have yet
another proprietary group that they can go and do it again.
And the cycle of entities using taxpayer dollars to develop
the ability to get taxpayer dollars, at some point you look and
say, well, wait a second, the term crony capitalism is used all
over the place, but I am very concerned sometimes with the
pharmaceutical companies, sometimes with universities that we
can in fact find ourselves constantly creating barriers to
entry because you can only get through this barrier if you have
already gotten the Government's money. And that is part of my
concern.
I want to do a couple more quick questions.
Would you all agree that when it comes to, for example, an
attack or a mining activity from China, North Korea, Syria,
Iran, that in fact this is not the private sector's take care
of yourself responsibility, but a classic, fundamental,
constitutional responsibility of the Government to secure and
defend for both our private and our commercial activities?
In other words, in cybersecurity we all understand we have
certain responsibilities, but my understanding is some of the
most aggressive and most egregious piercing are done by some of
the most advanced techniques not available to the normal hacker
in a basement in Silicon Valley. Wouldn't you all agree that
that is uniquely the Federal Government's primary
responsibility, just as it would be if someone was coming with
muskets to our border?
Mr. Harper, let's go back to muskets and the border, if you
will.
Mr. Harper. Yes. So I think certainly when cyber attacks
originate from overseas there is a Government role, but it is
more along the lines of diplomacy. And I don't mean going and
being friendly; I mean leaning hard on governments that are
sponsoring or themselves committing cyber attacks or producing
cyber weapons. We will have more to say on this.
I have commissioned a paper from a guy who is younger and
smarter than me to really handle the cybersecurity issue, but
one of the unique problems or one of several unique problems in
the cybersecurity area is attribution; you don't necessarily
know where it came from. Once a form of attack originates, it
can be propagated across the globe very quickly, so you don't
know who is really responsible in the first instance.
The response, as it should be in so many areas, should be
phlegmatic. By that I mean measured, careful, calibrated,
equivalent to the form of attack. So the thing that I think we
should worry about most is the U.S. Government bringing all of
its force in response to cyber attack, because cyber attack is
relatively limited; it has limited ability to do physical
damage. It can do real economic damage.
There are definitely concerns here. Nothing I should say
would be to dismiss the concerns, but we shouldn't respond to
economic harms to our Country with physical harms to other
countries. Let's not escalate and talk of cyber war. That
phrase I don't like because it suggests escalating to physical
war from the cyber snooping, the cyber espionage that is
certainly going on.
Chairman Issa. Well, as somebody who has an opinion on
this, I will express it quickly. You don't go to kinetic war
over cyber war, but you do respond in like, potentially.
Ms. Canterbury, one question that I have for you, just as
with the FOIA wanting to have an ombudsman, when we are looking
at cybersecurity, do we need to have an ombudsman that is not
behind the cloak of the Director of National Intelligence or
the CIA when we are looking at balancing the commercial
protection in cyber and the government protection?
Do you, or any of you, see the inherent conflict of if we
essentially say cyber will be taken care of by the very people
who, quite frankly, probably are doing cyber attacks and spying
on our adversaries using some of the same techniques, or do we
need to have somebody who is not part of that game deciding
whether or not the Bank of America or Chase Manhattan is
protected by what we know or tipped off to what we know before
there is an economic loss to we, the consumer?
Ms. Canterbury. So I am not a cybersecurity expert.
Chairman Issa. You better get up to speed. It sounds like
it is the new issue.
Ms. Canterbury. Well, except to say that it might not
surprise you that my organization agrees that, in most cases,
having independent oversight is going to produce better
policies and a better public interest response.
Chairman Issa. Anyone else?
[No response.]
Chairman Issa. Okay.
Mr. Cummings?
Mr. Cummings. Mr. Chairman, I just want to thank the
witnesses for being here today. Your testimony has been
extremely helpful. Thank you for shedding light on our
legislation. We appreciate that.
With that, Mr. Chairman, I yield back.
Chairman Issa. Thank you.
I will allow five legislative days in which to have
additional comments made.
Ms. Canterbury, you get the last word.
Ms. Canterbury. Well, I just wanted to make a minor
clarification. Congressman Connolly has already departed, but I
wanted him to know that in our community, in response to Milner
and the Supreme Court, the case that he cited, we have talked a
lot about the impacts on FOIA, that court case, and we might
agree that there is very, very limited information,
specifically passwords to security systems, in the Government
that may be a gray area. But I just wanted to clarify that.
Chairman Issa. Okay.
Ms. Canterbury. For the record.
Chairman Issa. I appreciate that. You know, my Social
Security number is probably more gettable than my passwords,
and I am hoping it stays that way.
I want to thank all of our witnesses. You have been
excellent. Again, if you want to revise or extend, the record
will be held open for five days.
With that, we are adjourned.
[Whereupon, at 12:09 p.m., the committee was adjourned.]
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