12:22 PM EST In case I do not get around to posting a formal story on Ensminger’s remarks here is what Ensminger said that was of tremendous importance and had to do with extreme secrecy encountered in trying to expose the truth on water contamination at Camp Lejeune. He talked about watching his daughter die and how he wondered why she had died:

It wasn’t until August of 1997, three years after I had retired from the Marine Corps, that I heard of a report indicating that the drinking water at Camp Lejeune had been contaminated during the time that we had lived there with chemicals suspected of causing childhood cancers and birth defects. That was the beginning of my journey on a search for answers and the truth. Little did I realize how difficult it would be getting the truth out of an organization that supposedly prides itself on honor and integrity.

He added:

Throughout the history of this situation and to this very day, representatives of the Department of the Navy and Marine Corps have knowingly provided investigating or studying agencies with incorrect data, they have omitted data, they have obfuscated facts and told many half-truths and total lies. The Department of teh Navy and Marine Corps’ last attempt to block the truth and foil justice is being done by redefining key information being utilized by the agency for toxic substances and disease registry in their study reports concerning the basis contaminated water as critical infrastructure information or CII. They just recently slapped a label of “For Official Use Only” or FOUO on all documents related to the contamination. Most of these documents and information they are labeling as CIFI have been in the public domain for more than a decade and some for fifty years.

Ensminger says that as many as 1 million people were exposed to carcinogens in drinking water at Camp Lejeune. And so, he recommends that all exemptions be “narrowly defined.” He calls for an enforced public interest balancing test to ensure that any security interest doesn’t outweigh other public interest like health and safety concerns for the public. And he says that there must be oversight to ensure that the law on FOIA and its exemptions are followed.

He aptly stated: “The last thing we need is more secrecy disguised as a concern for critical infrastructure.”

12:19 PM EST Leahy concludes hearing. It is adjourned.

12:16 PM EST Whitehouse now addressing how bureaucracies dodge disclosure. He asks about strategic use of information sharing regime. Whitehouse wonders if they would send information in with cybersecurity threat to avoid disclosure of something.

Rosenzweig says point is well taken. There could be systematic effort to hide private malfeasance. He says that would be rare because there is no incentive to maintain vulnerabilities. It strikes him, at this juncture, given imminence of threat, the value judgment necessary is whether that small likelihood means you create an exemption that retard the value of information shared.

12:13 PM EST Grassley asks follow up questions, one of them why an open government should ever need copy of malicious code.

Rosenzweig sees interest in how government treats threats. He adds there is “black market” in sale of “malicious code exploits.” It would be contrary to sense of all public policy to make that available.

12:10 PM EST Grassley asks about information being shared between private companies and government and what threat is posed if information is shared.

Rosenzweig says information can be divided – malicious code/IP/websites specific to threat. That should not ever be shared through FOIA. The other bundle would be datastream in which threat resides. This could be an email attachment masquerading as Excel spreadsheet, etc.

Damage in disclosure to business is if they think info will be disclosed they will not provide.

12:09 PM EST Bunting says key thing in public’s right to know is write narrow definitions that makes sure public interest is considered and that it is reviewed regularly.

12:04 PM EST Leahy addresses Ensminger. Ensminger talks about whether public balancing tests in legislation are helpful. He says yes if they are used. He describes an instance where Marines got another government agency to redact heavily documents.

Ensminger clearly points out how they could not possibly be concerned about critical infrastructure and just want to protect information that would embarrass them.

12:03 PM EST Real danger in subjecting cybersecurity information to FOIA – this would mean drawing a roadmap of what threats were not known. It would draw a target around higher vulnerabilities. Complete transparency would defeat purpose of disclosures we are seeking from private sector and possibly make us less secure, Rosenzweig concludes.

12:01 PM EST Transparency of government functions is main purpose of FOIA. Here in cyber-context the FOIA exemption is related to protecting information shared by private sector companies to address cyber threats. Rosenzweig is suggesting exchanges of information between corporations and government be protected from disclosure.

Rosenzweig the exemption is critical to ensuring private companies share information to help government address cyber-security.

11:57 AM EST Rosenzweig is only testifying on cybersecurity legislation pending. He says threat is real and “enduring.” He speaks for people in private sector and says most effective way to get “running start” is enhanced sharing of information related to the threat. The government should share that information. He likens this to vaccination.

11:55 AM EST Kenneth Bunting testifies (see below for bio information). He talks about the Milner case and how requests for documents are still ongoing, even though Supreme Court decided in Milner’s favor. He cautions against broad exemptions. He too calls for a public interest balancing test and that information not be allowed to be withheld to prevent embarrassment.

He talks about how FOIA is important to be able to know how unsafe bridges and other infrastructure in the country might be.

11:47 AM EST Ret. Marine Sgt. Ensminger gets up to discuss efforts to uncover information on water contamination at Camp Lejeune. His daughter died of leukemia caused by the contamination. He says “little did I realize how difficult” it would be “to get the truth out of an organization that prides itself on honor and integrity.” He is referring to the US Marines and the larger Defense Department.

I will post more on his opening remarks but most critical was this statement: “The last thing we need is more secrecy disguised as a concern for critical infrastructure.” He wants a required public interest balancing test so that it is not so easy for agencies to keep information secret on contamination at sites like government-owned military bases.

11:43 AM EST Leahy now opening second panel. Ensminger being introduced. He is talking about the findings on Camp Lejeune.

11:40 AM EST Grassley now raises the Milner case. He says DoJ has not submitted legislative proposal. If there is in fact a threat to safety, isn’t it irresponsible to ignore problem?

11:36 AM EST Sen. Sheldon Whitehouse is talking about centralization of FOIA requests. He thinks there should be a central portal and FOIA requests not be agency-by-agency. He wants requests to be searchable. He asks for benchmarks.

Pusnay says FOIA.gov, designed to be one-stop shop. They can put a search term in across agency websites and everything posted would be captured in a search.

11:32 AM EST Pusnay says they get 5,000 requests a month so 3,000 requests in backlog is logical. Grassley then raises the fact that National Security Archives gave DoJ award for being the worst agency on FOIA. He asks for a response to this award for performance along with address a change to regulations.

Pusnay responds that this was done for streamlining purposes. She says she is proud of DoJ’s record and has a “stellar” list of accomplishments: reduced backlogs, released 97% of requests, release rate is 94.5%. Requesters are getting information. Proactive disclosures are happening. And, DoJ has worked to build a FOIA website and further implement AG guidelines.

11:31 AM EST Grassley asks about definitions and standards for backlogs, why each request might not be treated the same and why there might be discrepancies in numbers on DoJ progress on FOIA.

11:28 AM EST Pusnay says we have over 100 offices online that offer FOIA request capabilities. She notes AG Holder announced that requesters will now be able to set up a personal account and make requests online from top 3 Justice Department offices.

11:24 AM EST Grassley asks Nisbet if OMB is not following law pertaining to FOIA. Nisbet treads carefully. Leahy seeks recommendations on FOIA from OMB and is willing to go pick them up himself (he jokingly says). Leahy and Grassley want to hear from OMB. They need to “get off the pot” Grassley says.

11:21 AM EST The Justice Department seeks an amendment to address the issues created by the Milner decision. They issued guidance to help agencies traverse new landscape. They explained the new state of Exemption 2. Agencies now had ability to use other exemptions for safeguard.

If existing exemptions don’t cover information — She stops and, probably for PR purposes, make sure it is clear they always approach with a “presumption of openness.” So, if it needs to be withheld, they seek statutory relief.

11:18 AM EST Supreme Court overturned 30 years of rules under FOIA with Milner. The decision meant a “wide range” of sensitive information could now be released under FOIA.

11:16 AM EST Pustay now giving opening remarks. She notes she is here to address Milner v. Department of the Navy and goes on to list accomplishments of the DoJ, asserting it was more responsive to requests. They say they released in full 79% of the information requested (no excisions).

11:14 AM EST Many agencies are working on backlog issues, Nisbet says. She prefers to not get into detail on agencies not doing a good job. (Grassley says she is not elected and can answer that question.)

11:11 AM EST Nisbet of National Archives now giving opening remarks. She says original copy of FOIA is on display during Sunshine Week. She is hear to talk about what they are hearing from requesters and agency FOIA professionals.

Regularly they hold meetings between requesters and professionals to make improvements to FOIA implementation

Leahy interrupts and asks her to address what agencies are complying and not complying with FOIA.

11:08 AM EST Obama is responsible for conduct of political appointees, Grassley says. He contends open government is not about ideology or party. He mentions James Madison, who said “Popular government without popular information is but a prologue to a farce or a tragedy.” He goes on to talk about sponsoring legislation to address contamination at Camp Lejeune.

11:07 AM EST Grassley is sorry that Homeland Security Department is getting free pass from many open government and privacy groups on information under Lieberman-Collins Act in relation to cybersecurity.

11:03 AM EST Grassley quotes Washington-based lawyer Katherine Mayer who says she has been filing requests under FOIA since 1978 and “Obama is the sixth administration that’s been in office since I’ve been doing Freedom of Information Act work. … It’s kind of shocking to me to say this, but of the six, this administration is the worst on FOIA issues. The worst. There’s just no question about it.”

11:01 AM EST The hearing feed (webcast) just began but it looks like the hearing has been going. Leahy probably already gave his opening statement, as Sen. Chuck Grassley is giving opening remarks.

He is saying there is a grand disconnect between his actions on openness and the actions of his political appointees.

10:35 AM EST Hearing is beginning shortly with Sen. Leahy giving opening remarks.

Original Post

Patrick Leahy, US Senator of Vermont (official photo)

The Senate Judiciary Committee, chaired by Sen. Patrick Leahy, is holding a hearing on “safeguarding critical infrastructure” and protecting the “public’s right to know.” The Committee will be considering new exemptions to the Freedom of Information Act (FOIA) that were passed in the National Defense Authorization Act (NDAA).

The new exemptions, according to an op-ed written by Leahy, require government officials to “affirmatively determine that withholding information from the public outweighs other interests — such as ensuring that citizens have access to health and safety information — before keeping critical infrastructure information secret.” The law is intended to protect “truly sensitive government information” while “allowing public access to important information about potential health and safety threats.” It is also likely that new approaches to protecting information will be considered in the context of future cyber-security legislation.

The hearing was intentionally scheduled during Sunshine Week. Leahy has a history of backing legislation to reform or update FOIA. He authored the Electronic FOIA Amendments of 1996. He co-authored the OPEN Government Act of 2008 and the Faster FOIA Act of 2011. He also wrote the FOIA provisions in the NDAA.

That doesn’t mean this will necessarily be a strong hearing, though it has potential. This hearing could fall short if it does not highlight at all how FOIA can help the public uncover corruption among agencies tasked with national security, which the provisions might be used to prevent from seeing sunlight, the hearing will be ignoring the main tension over these new exemptions.

For the record, the Project for Government Oversight (POGO) supported Leahy’s amendment on FOIA exemptions. This suggests the NDAA would have made FOIA worse and Leahy successfully stepped in to lessen the negative impact to FOIA.

The hearing begins at 10:30 am ET. The hearing can be viewed here. I will be live blogging the hearing here. Updates will appear at the top of the post.

Witnesses scheduled to testify include: Melanie Pustay, Office of Information Policy Director for the Justice Department; Miriam Nisbet, Office of Government Information Services Director for the National Archives and Records Administration; Jerry Ensminger, a Retired Marine Sergeant from Camp Lejeune Marine Base; Kenneth Bunting, Executive Director of the Missouri School of Journalism (and member of the National Freedom of Information Coalition); and Paul Rosenzweig, Esq., a Heritage Foundation Visiting Fellow and Professional Lecturer in Law for George Washington University.

Ensminger was the subject of a recent documenter, “Semper Fi: Always Faithful,” that was about his effort to find out the truth about contaminated water at Camp Lejeune after his daughter died of leukemia at the age of 9. He used FOIA to uncover key details on contamination.

Rosenzweig is someone I was on a student-organized panel with last June at Northwestern University. He was invited to discuss Bradley Manning and WikiLeaks. I expect Rosenzweig’s views on freedom of information to be virtually non-existent. He will probably argue government should be more secretive. He thinks classified information laws need to be updated so the US can go after Julian Assange. And, he believes the US should have a “counterinsurgency strategy” to target organizations like WikiLeaks in cyberspace.

As for the other witnesses, I am unfamiliar with them but look forward to hearing their testimony. Now, FDL’s Sunshine Week coverage continues with live blogging of the hearing.