Rights of Civilian Employees to Individual DOJ Representation in FOIA Litigation Gone Bad
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RIGHTS OF CIVILIAN EMPLOYEES TO INDIVIDUAL DOJ REPRESENTATION IN FOIA
LITIGATION GONE BAD
FOIA ADVISORY COMMITTEE
MARCH 5, 2023 MEETING
HAMMOND ORAL AND
CHAT COMMENTS
Public Comment
March 22, 2023
By
Robert Hammond
FOIA.Advocate.USA@gmail.com
Robert Hammond
FOIA.Advocate.USA@gmail.com
Outline
Meeting Materials for March 5, 2024 3
JFK 1961 “Secrecy is repugnant” 4
Hammond Oral Comments 2024 03 04 5
Webex Chat Comments 2024 03 04 8
Archivist Honorable David Ferriero 24
Incredibly Talented Co-chairs & Leadership 25
Unity, God-Given Rights and Exceptionalism 26
The Uncommon Man 27
Commentary: ANAK MERDEKA of Malaysia Blog 29
Absent Oversight & $$, FOIA Dies in Darkness 30
We The People. Declaration of Independence 1776! 31
We The People. U.S. Constitution 1789! 33
Hammond Public Comments - Sample 35
Metadata for Search Engines 39
Meeting Materials for March 5, 2024
FOIA Advisory Committee Meeting
Agenda (html | pdf)
Federal Register Notice
Registration
Presentation Slides
• Resources Subcommittee Draft Final White paper re: Staffing - Feb 29,
2024
• Resources Subcommittee Draft Final White Paper re: Training - March 4,
2024
• Implementation Subcommittee Draft Interim Report - March 1, 2024
• Modernization Subcommittee Report Draft - March 2, 2024
Supplemental Materials
• OPM (Office of Personnel Management) Memo to Federal Human Resources
Directors - Dec 1, 2023
Minutes (posted after the meeting)
Transcript (posted after the meeting)
JFK 1961 “Secrecy is repugnant”
The very word "secrecy" is repugnant in a free and open society; and we are
as a people inherently and historically opposed to secret societies, to
secret oaths and to secret proceedings. We decided long ago that the dangers
of excessive and unwarranted concealment of pertinent facts far outweighed
the dangers which are cited to justify it. Even today, there is little value
in opposing the threat of a closed society by imitating its arbitrary
restrictions. Even today, there is little value in ensuring the survival of
our nation if our traditions do not survive with it. And there is very grave
danger that an announced need for increased security will be seized upon by
those anxious to expand its meaning to the very limits of official censorship
and concealment. That I do not intend to permit to the extent that it is in
my control. And no official of my Administration, whether his rank is high or
low, civilian, or military, should interpret my words here tonight as an
excuse to censor the news, to stifle dissent, to cover up our mistakes or to
withhold from the press and the public the facts they deserve to know.
Hammond Oral Comments 2024 03 04
Hello. This is Bob Hammond.
I have provided the FOIA Advisory Committee with 62 written public comments,
which I hope OGIS will promptly post.
I want to address three issues today:
1. Rights of civilian employees to individual DOJ representation in FOIA
litigation gone bad. 28 CFR § (ID201180111) - § 50.15.
2. Unauthorized Records Disposition Complaints to NARA.
3. DOJ OIP Sunshine Awards.
Civilian Employee Individual Legal Representation in FOIA.
“Whenever the court orders the production of any agency records improperly
withheld from the complainant and assesses against the United States
reasonable attorney fees and other litigation costs … the Special Counsel
shall promptly initiate a proceeding to determine whether disciplinary action
is warranted.” 5 USC 552 (F)(i). [This is true even if the government
ultimately produces records during litigation and then prevails on summary
judgement having produced ordered records during litigation].
So, if you were an agency employee involved in a messy FOIA litigation where
someone may have helped you with inaccurate sworn declarations or where
records were altered or where records were destroyed, you may seek immediate
individual DOJ legal representation in a closed case before a Plaintiff’s
fee petition. Your agency counsel may have already obtained separate DOJ
representation. You must protect your own interests.
Unauthorized Records Disposition Complaints to NARA.
NARA has an unauthorized records disposition unit to address unlawful
removal, destruction, or alteration of records. When an agency claims that it
does not have records it is required to have, you may submit a complaint to
NARA UD. I am currently working with NARA to re-evaluate past errant closures
to my FOIA UD complaints.
DOJ OIP Sunshine Awards. I asked Bobby Talebian to post the 2024 award
nomination packages so that the public could weigh in. Some 2023 awardee
citations appear inaccurate. Navy’s Nathan Bosiak, Head of the FOIA Branch,
General Litigation Division, Department of Navy JAG Office won an award. But
public reports show Navy reported “six open FOIA litigations challenging
application of redactions, processing delays, and adequacy of search… and
caused delays in responding to requesters.” Then, the average number of
days for Navy appeal response was 200 days, not 32 days cited in Nate’s
award citation. But then Navy’s FOIA reports are always materially
inaccurate as are most agency reports. I hope to resolve issues with DOD and
other agencies quietly.
Thank you.
Webex Chat Comments 2024 03 04
From Bob Hammond to all panelists: 10:09 AM
YouTube Chat Comments Turned Off. See ADA violation, and violations of Open
Government Plans and similar laws, regulations, and policies
from Bob Hammond to all panelists: 10:10 AM
YouTube Chat Comments Turned Off. ADA violation, and violations of Open
Government Plans and similar laws, regulations, and policies
from Bob Hammond to all panelists: 10:12 AM
Semo states: “Use Webex chat for housekeeping and procedural matters only.
"
from Bob Hammond to all panelists: 10:12 AM
This violates Federal Advisory Committee Act and other laws, regulations, and
policies.
from Bob Hammond to all panelists: 10:13 AM
Semo previously responded to an Americans with Disabilities Act request for
speech and hearing disabled persons
from Bob Hammond to all panelists: 10:13 AM
on behalf of the Archivist that the Webex chat is a substitute for turning on
the YouTube Chat.
from Bob Hammond to all panelists: 10:14 AM
comments in the Webex Chat, as they should be able to do so.
from Bob Hammond to all panelists: 10:14 AM
Semo is required to include the Webex chat comments in meeting minutes, but
she does not do so.
from Bob Hammond to all panelists: 10:18 AM
Semo must post the Webex video (which is materially different from the
YouTube video, including WEBEX chat comments in accordance with
from Bob Hammond to all panelists: 10:18 AM
with “NARA GENERAL RECORDS SCHEDULE 6.2: Federal Advisory Committee
Records”
from Bob Hammond to all panelists: 10:26 AM
Once selected as a direct hire - which has term limits - folks can apply for
permanent.
from Kirsten Mitchell to everyone: 10:29 AM
The subcommittee's draft final white paper on staffing is available here:
https://www.archives.gov/files/ogis/documents/resources-sucommittee-draft-final-white-paper-re-staffing-29-feb-2024.pdf
from Bob Hammond to all panelists: 10:30 AM
Direct hire can be used even without a cert. A qualified person can approach
independently.
from Bob Hammond to all panelists: 10:33 AM
Read the classification requirements yourself. Then ask for a desk audit of
current positions. Union will help.
from Bob Hammond to all panelists: 10:39 AM
Read the classification requirements yourself. Then ask for a desk audit of
current positions. Union will help.
from Kirsten Mitchell to everyone: 10:41 AM
White paper Alina referenced:
https://www.archives.gov/files/ogis/documents/resources-sucommittee-draft-final-white-paper-re-staffing-29-feb-2024.pdf
from Bob Hammond to all panelists: 10:42 AM
Read aloud. Please add MITRE to this recommendation. They are quasi gvt and
you already have contracts.
from Bob Hammond to all panelists: 10:42 AM
DOJ OIP used MITRE for FOIA Reference Model.
from Bob Hammond to all panelists: 10:45 AM
Agencies also need help with FOIA reporting. MITRE can help.
from Bob Hammond to all panelists: 10:48 AM
MITRE has FOIA experts already and can bring in others. Easy for you.
from Bob Hammond to all panelists: 10:50 AM
Defense Logistics Agency already does all this training via CBT, so do not
re-create the wheel.
from Kirsten Mitchell to everyone: 10:51 AM
The Resources Subcommittee's white paper on training is here:
https://www.archives.gov/files/ogis/documents/draft-training-resources-recommendation-white-paper-03-04-2024.pdf
from Bob Hammond to all panelists: 10:52 AM
OGIS is placing substantive comments into chat. Must preserve chat and
include substantive in minutes.
from Bob Hammond to all panelists: 11:05 AM
FOIA begins with good records management to preserve and enable discovery.
from Bob Hammond to all panelists: 11:10 AM
DOJ OIP can require reporting in Chief FOIA Officers Report, which gets to
the same end.
from Bob Hammond to all panelists: 11:24 AM
The training should focus on Records Management. If preserved and
discoverable, FOIA benefits. Talk to Defense Logistics Agency.
from Bob Hammond to all panelists: 11:25 AM
Lewis Oleinick
Director of Information Governance and Compliance Division and Chief Privacy
Officer at the DoD’s Defense Logistics Agency
from Bob Hammond to all panelists: 11:27 AM
AI only works if records are preserved and discoverable. Preservation is
essentially all electronic now.
from Bob Hammond to all panelists: 11:28 AM
DOJ OIP must post all training modules. Save me FOIA requests. Public review
will improve the training.
from Kirsten Mitchell to everyone: 11:36 AM
On break. Back at 11:50.
from Bob Hammond to all panelists: 11:45 AM
YouTube Live Stream says, “Subtitles/closed captions unavailable.” ADA
violation.
from Bob Hammond to all panelists: 11:45 AM
https://www.youtube.com/watch?v=Y2TZTOGfX0o .
from Bob Hammond to all panelists: 11:46 AM
“ 31 watching now. Started 108 minutes ago”
from Bob Hammond to all panelists: 11:46 AM
Without YouTube chat turned on, thousands who will watch later are deprived
of contemporaneous comments.
===/
YouTube Live Stream says, “Subtitles/closed captions unavailable.” ADA
violation.
https://www.youtube.com/watch?v=Y2TZTOGfX0o .
“ 31 watching now. Started 108 minutes ago”
Without YouTube chat turned on, thousands who will watch later are deprived
of contemporaneous comments.
==/
watching now
Started streaming 107 minutes ago
==/
from Bob Hammond to all panelists: 10:33 AM
Read the classification requirements yourself. Then ask for a desk audit of
current positions. Union will help.
from Bob Hammond to all panelists: 10:39 AM
Read the classification requirements yourself. Then ask for a desk audit of
current positions. Union will help.
from Kirsten Mitchell to everyone: 10:41 AM
White paper Alina referenced:
https://www.archives.gov/files/ogis/documents/resources-sucommittee-draft-final-white-paper-re-staffing-29-feb-2024.pdf
from Bob Hammond to all panelists: 10:42 AM
Read aloud. Please add MITRE to this recommendation. They are quasi gvt and
you already have contracts.
from Bob Hammond to all panelists: 10:42 AM
DOJ OIP used MITRE for FOIA Reference Model.
from Bob Hammond to all panelists: 10:45 AM
Agencies also need help with FOIA reporting. MITRE can help.
from Bob Hammond to all panelists: 10:48 AM
MITRE has FOIA experts already and can bring in others. Easy for you.
from Bob Hammond to all panelists: 10:50 AM
Defense Logistics Agency already does all this training via CBT, so do not
re-create the wheel.
from Kirsten Mitchell to everyone: 10:51 AM
The Resources Subcommittee's white paper on training is here:
https://www.archives.gov/files/ogis/documents/draft-training-resources-recommendation-white-paper-03-04-2024.pdf
from Bob Hammond to all panelists: 10:52 AM
OGIS is placing substantive comments into chat. Must preserve chat and
include substantive in minutes.
from Bob Hammond to all panelists: 11:05 AM
FOIA begins with good records management to preserve and enable discovery.
from Bob Hammond to all panelists: 11:10 AM
DOJ OIP can require reporting in Chief FOIA Officers Report, which gets to
the same end.
from Bob Hammond to all panelists: 11:24 AM
The training should focus on Records Management. If preserved and
discoverable, FOIA benefits. Talk to Defense Logistics Agency.
from Bob Hammond to all panelists: 11:25 AM
Lewis Oleinick
Director of Information Governance and Compliance Division and Chief Privacy
Officer at the DoD’s Defense Logistics Agency
from Bob Hammond to all panelists: 11:27 AM
AI only works if records are preserved and discoverable. Preservation is
essentially all electronic now.
from Bob Hammond to all panelists: 11:28 AM
DOJ OIP must post all training modules. Save me FOIA requests. Public review
will improve the training.
from Kirsten Mitchell to everyone: 11:36 AM
On break. Back at 11:50.
from Bob Hammond to all panelists: 11:45 AM
YouTube Live Stream says, “Subtitles/closed captions unavailable.” ADA
violation.
from Bob Hammond to all panelists: 11:45 AM
https://www.youtube.com/watch?v=Y2TZTOGfX0o .
from Bob Hammond to all panelists: 11:46 AM
“ 31 watching now. Started 108 minutes ago”
from Bob Hammond to all panelists: 11:46 AM
Without YouTube chat turned on, thousands who will watch later are deprived
of contemporaneous comments.
from Kirsten Mitchell to everyone: 11:49 AM
Modernization Subcommittee draft report here;
https://www.archives.gov/files/ogis/documents/modernization-subcommittee-report-draft-2-march-2024.pdf
from Bob Hammond to all panelists: 12:12 PM
Expanding public engagement begins by turning on closed captioning on
YouTube. And allowing chat comments.
from Bob Hammond to all panelists: 12:26 PM
Model determination letter must include requirement to clearly ARTICULATE
what the foreseeable harm is,
from Kirsten Mitchell to everyone: 12:26 PM
Letter that Adam is discussing is in this report:
https://www.archives.gov/files/ogis/documents/modernization-subcommittee-report-draft-2-march-2024.pdf
from Bob Hammond to all panelists: 12:26 PM
OIP guidance is deficient in not requiring articulation.
from Bob Hammond to all panelists: 12:27 PM
OGIS has not posted all my comments regarding model letter.
from Bob Hammond to all panelists: 12:28 PM
Suggest allowing public to review the final draft before a vote on the final
draft. Thx.
from Bob Hammond to all panelists: 12:36 PM
hand raised for oral comments.
from Bob Hammond to all panelists: 12:49 PM
OGIS, please immediately post the Webex contemporaneous transcript of this
meeting.
from Kirsten Mitchell to everyone: 12:49 PM
Regarding AI:
https://www.archives.gov/calendar/event/national-archives-to-host-sunshine-week-panel-on-artificial-intelligence-and-government-access
from Bob Hammond to all panelists: 12:50 PM
This is important since closed captioning is turned off on YouTube. Thx
from Bob Hammond to all panelists: 10:33 AM
Read the classification requirements yourself. Then ask for a desk audit of
current positions. Union will help.
from Bob Hammond to all panelists: 10:39 AM
Read the classification requirements yourself. Then ask for a desk audit of
current positions. Union will help.
from Kirsten Mitchell to everyone: 10:41 AM
White paper Alina referenced:
https://www.archives.gov/files/ogis/documents/resources-sucommittee-draft-final-white-paper-re-staffing-29-feb-2024.pdf
from Bob Hammond to all panelists: 10:42 AM
Read aloud. Please add MITRE to this recommendation. They are quasi gvt and
you already have contracts.
from Bob Hammond to all panelists: 10:42 AM
DOJ OIP used MITRE for FOIA Reference Model.
from Bob Hammond to all panelists: 10:45 AM
Agencies also need help with FOIA reporting. MITRE can help.
from Bob Hammond to all panelists: 10:48 AM
MITRE has FOIA experts already and can bring in others. Easy for you.
from Bob Hammond to all panelists: 10:50 AM
Defense Logistics Agency already does all this training via CBT, so do not
re-create the wheel.
from Kirsten Mitchell to everyone: 10:51 AM
The Resources Subcommittee's white paper on training is here:
https://www.archives.gov/files/ogis/documents/draft-training-resources-recommendation-white-paper-03-04-2024.pdf
from Bob Hammond to all panelists: 10:52 AM
OGIS is placing substantive comments into chat. Must preserve chat and
include substantive in minutes.
from Bob Hammond to all panelists: 11:05 AM
FOIA begins with good records management to preserve and enable discovery.
from Bob Hammond to all panelists: 11:10 AM
DOJ OIP can require reporting in Chief FOIA Officers Report, which gets to
the same end.
from Bob Hammond to all panelists: 11:24 AM
The training should focus on Records Management. If preserved and
discoverable, FOIA benefits. Talk to Defense Logistics Agency.
from Bob Hammond to all panelists: 11:25 AM
Lewis Oleinick
Director of Information Governance and Compliance Division and Chief Privacy
Officer at the DoD’s Defense Logistics Agency
from Bob Hammond to all panelists: 11:27 AM
AI only works if records are preserved and discoverable. Preservation is
essentially all electronic now.
from Bob Hammond to all panelists: 11:28 AM
DOJ OIP must post all training modules. Save me FOIA requests. Public review
will improve the training.
from Kirsten Mitchell to everyone: 11:36 AM
On break. Back at 11:50.
from Bob Hammond to all panelists: 11:45 AM
YouTube Live Stream says, “Subtitles/closed captions unavailable.” ADA
violation.
from Bob Hammond to all panelists: 11:45 AM
https://www.youtube.com/watch?v=Y2TZTOGfX0o .
from Bob Hammond to all panelists: 11:46 AM
“ 31 watching now. Started 108 minutes ago”
from Bob Hammond to all panelists: 11:46 AM
Without YouTube chat turned on, thousands who will watch later are deprived
of contemporaneous comments.
from Kirsten Mitchell to everyone: 11:49 AM
Modernization Subcommittee draft report here;
https://www.archives.gov/files/ogis/documents/modernization-subcommittee-report-draft-2-march-2024.pdf
from Bob Hammond to all panelists: 12:12 PM
Expanding public engagement begins by turning on closed captioning on
YouTube. And allowing chat comments.
from Bob Hammond to all panelists: 12:26 PM
Model determination letter must include requirement to clearly ARTICULATE
what the foreseeable harm is,
from Kirsten Mitchell to everyone: 12:26 PM
Letter that Adam is discussing is in this report:
https://www.archives.gov/files/ogis/documents/modernization-subcommittee-report-draft-2-march-2024.pdf
from Bob Hammond to all panelists: 12:26 PM
OIP guidance is deficient in not requiring articulation.
from Bob Hammond to all panelists: 12:27 PM
OGIS has not posted all my comments regarding model letter.
from Bob Hammond to all panelists: 12:28 PM
Suggest allowing public to review the final draft before a vote on the final
draft. Thx.
from Bob Hammond to all panelists: 12:36 PM
hand raised for oral comments.
from Bob Hammond to all panelists: 12:49 PM
OGIS, please immediately post the Webex contemporaneous transcript of this
meeting.
from Kirsten Mitchell to everyone: 12:49 PM
Regarding AI:
https://www.archives.gov/calendar/event/national-archives-to-host-sunshine-week-panel-on-artificial-intelligence-and-government-access
from Bob Hammond to all panelists: 12:50 PM
This is important since closed captioning is turned off on YouTube. Thx
from David Cuillier to everyone: 12:51 PM
Check out the resources and all the events coming up next week:
https://sunshineweek.org
from Bob Hammond to all panelists: 12:52 PM
Webex transcript automatically notes the speaker.
Archivist Honorable David Ferriero
Greetings!
Like The Honorable Mr. Ferriero, I am coming to you today from the ancestral
lands of proud, free, unified, inclusive American citizens. We The People of
the United States of America.
Please consider words of proud American citizens: Gouverneur Morris, Abraham
Lincoln, and Martin Luther King.
We The People, enshrined in our Constitution, will not again be a house
divided against ourselves no matter the rhetoric. In 1865, 165 years ago, we
fought and won a bloody war to advance equality of opportunity, not
guaranteed equity of outcomes as we are all unique in our pursuit of our
dreams. Messy as it sometimes is, that is Our history. The greatest nation in
the history of the world.
Let us all be judged by the content of our character.
God bless the United States of America!
Incredibly Talented Co-chairs & Leadership
First, I would like to say this Committee is co-chaired by two incredibly
talented people with equally impressive leadership.
• Alina Semo: Georgetown University Law Center, Phi Beta Kappa from the
University of Maryland, College Park graduated with high honors.
.
• Bobby Talebian: University of Tennessee College of Law where he served on
Law Review. Go Vols!
• The Honorable Davis S. Ferriero: Through perseverance and exceptionalism
worked his way up from a Navy Corpsman, saving lives (God bless you. Thank
you for your service.) to a Presidential appointment by Barack Obama as 10th
Archivist of the United States of America. Mr. Ferriero established this
Committee, and it reports to him.
Unity, God-Given Rights and Exceptionalism
The Honorable David S. Ferriero addressed in his opening comments to the June
10, 2021 FOIA Advisory Committee ancestral lands, historical contributions of
Black Americans, and his task force on racism, equity, inclusion, and
diversity.
In furtherance to his remarks, I suggest that:
• Unity,
• God-Given Rights cited in Our Declaration of Independence and Our
Constitution, and
• Exceptionalism
are our greatest strengths, no matter your circumstance at birth.
"Be yourself. Everyone else is already taken."
- Oscar Wilde
The Uncommon Man
THE UNCOMMON MAN
I do not choose to be a common man.
It is my right to be uncommon if I can.
I seek opportunity - not security.
I do not wish to be a kept citizen, humbled,
dulled,
by having the State look after me.
I want to take the calculated risk;
to dream and to build;
to fail or succeed.
I refuse to barter incentive to a dole.
I prefer the challenges of life
to the guaranteed existence;
the thrill of fulfillment to the calm state of Utopia.
I will not trade freedom for beneficence
nor my dignity for a handout.
I will never cower before any master
nor bend to any threat.
It is my heritage
to stand erect, proud and unafraid;
to think and act for myself;
to enjoy the benefits of my creation,
and to face the world boldly and say -
This I have done!
Commentary: ANAK MERDEKA of Malaysia Blog
This piece is dedicated to all the common men and women who have been misled
into believing that they are helplessly bound by the chains and crutches of
handouts disguised as rights and privileges necessary to overcome a purported
genetic defect to rise to the challenges and demands of the new millennium
and new world order.
Hopefully, in the very near future, they will realize that the state's
condescending attitude towards them is the ultimate reason for their undoing.
Hopefully too, they will realize that they need to urgently reclaim their
right to be treated with dignity and respect that befits their intelligence
and heritage, for their sake and that of future generations.
Then, and truly then, can they proudly claim to have achieved their agenda to
be a respected race and in control of their destiny in the borderless world.
(POSTED BY ARENA GREEN AT 11:18 AM ANAK MERDEKA: The Uncommon Man”
Absent Oversight & $$, FOIA Dies in Darkness
OGIS Budget. Not adjust for inflation or mandatory pay increases.
$ in Thousands Requested
FY 2022 $1,588 (Not funded.CR.)
FY 2021 $1,289
FY 2020 $1,212
FY 2019 $1,317
FY 2018 $1,012
FY 2017 $1,114
FY 2016 $1,094
FY 2015 $913
FY 2014 $1,074
FY 2013 $1,629
FY 2012 $1,529
• For OGIS, the situation is dire. OGIS is tasked with FOIA compliance and
mediation. OGIS had $1.629M In 2013 with a mediation caseload of 300