Transcript

FOIA Advisory Committee Meeting (Virtual Event)

Thursday, May 9, 2024

10:00 a.m. (ET)

Producer: Welcome and thank you for joining today's meeting of the Freedom of Information Act Advisory Committee. Please note this conference is being recorded and all audio connections are muted at this time. If you require technical assistance, please open chat with the associated icon at the bottom of your screen and send a message to the event producer. With that I'll turn the conference over to Alina Semo, Director of the Office of Government Information Services and Committee Chair.

Alina M. Semo: Thank you. Good morning and welcome everyone. As the Director of the Office of Government Information Services, OGIS and this committee's chairperson, it is my pleasure to welcome you all to the 10th meeting of the fifth term of the FOIA Advisory Committee. We are in the home stretch. We will wrap up this committee term with a final public meeting on Thursday, June 13th, beginning at 10 A.M.

I would like to welcome all of our colleagues and friends from the FOIA community and elsewhere, who are watching us either via WebEx or with a slight delay on the National Archives YouTube channel. This meeting is public, in accordance with the Federal Advisory Committee Act, FACA, which requires open access to committee meetings and operations. FACA requires us to post minutes and transcript of today's meeting and we will do so as soon as they are available.

We have posted the minutes and transcript from the March 5th meeting and we will post the minutes and transcript from the April 4th meeting as soon as they are ready. Please visit our website for today's agenda along with committee members names and biographies at archives.gov/OGIS.

Candice, next slide please and thanks for flipping to the first slide. So some housekeeping notes that I always go through. Please bear with me. Before we launch, I am advised that we're going to lose Luke Nickter at 12:30 Eastern time, but I'm hopeful that we will be able to wrap up our meeting by then and I'm going to now turn to our Designated Federal Officer [DFO], Kirsten Mitchell and ask Kirsten if she has taken a visual roll call and whether she can confirm that we have a quorum.

Kirsten B. Mitchell: I have indeed taken a visual roll call and we do indeed have a quorum.

Alina M. Semo: Okay, great, thank you. During today's meeting, I want to encourage committee members to use the raise hand icon at the bottom of your screen when you wish to speak or ask a question. Committee members may also use the all panelists option from the drop-down menu in the chat function when you want to speak or ask a question and/or please chat me or Kirsten directly. In order to comply with the spirit and intent of the Federal Advisory Committee Act, please use the Webex chat for housekeeping and procedural matters only. Please do not enter any substantive comments in the chat function as they will not be recorded in the transcript of the meeting. If any committee member needs to take a break during the course of the meeting, please do not disconnect from the web event. Instead, mute your microphone by using the microphone icon and turn off your camera by using the camera icon. Please send a quick chat to me and Kirsten to let us know if you'll be gone for more than a few minutes and join us again as soon as you can.

A reminder to all committee members, please remember to identify yourself by name and affiliation each time you speak today. It makes our lives a lot easier down the road when preparing the minutes. Members of the public who wish to submit written public comments to the committee may do so using our public comments form. We review all public comments and if they comply with our public comments posting policy, we post them as soon as we are able. In addition, we will have the opportunity for oral public comments at the end of today's meeting. We will be holding a public comment period once the committee has completed its business today. My goal is to end early. On the agenda, we have marked 12:15 as our end time and as we noted in our Federal Register Notice announcing this meeting, public comments will be limited to three minutes per individual.

I have one announcement I would like to make today. Our committee member Patricia Weth will be switching agencies later this month. She is leaving the EPA [Environmental Protection Agency] on May 17th and joining committee member Paul Chalmers at the Pension Benefit Guaranty Corporation, PBGC. The Archivist has reappointed Patricia to continue and complete her term as this does not conflict with the terms of the committee charter or bylaws. So this is the perfect time since I uttered the word bylaws. We are now going to turn to our DFO, Kirsten Mitchell, and she is going to take us through a discussion of some amendments to the bylaws that we have proposed and that we have received public comments on. So with that, Kirsten, I'm going to hand it over to you.

Kirsten B. Mitchell: Thank you Alina. And good day everyone. As Alina said, I'm Kirsten Mitchell. This committee's Designated Federal Officer. Before I go through the proposed bylaws amendments, I wanted to let everyone know that on April 26, Archivist of the United States Dr. Colleen Shogan signed a renewed charter for the 2024 to 2026 term of the FOIA Advisory committee. So there will be a sixth term of the committee. We will publish a Federal Register Notice seeking nominations for the sixth term and as we have done in the past, we will blog and X about it.

Before I go through the proposed changes to the bylaws, a bit of background. As we were preparing for the charter renewal, we learned that the bylaws and the charter were not harmonized with regard to the number of designated and non-designated seats for both government and non-government members. I'll go into more detail about this in a moment, but wanted to let you know what the spark was for amending the bylaws, which, as far as we know have not been amended since the committee was first established in 2014. Amendments to the bylaws require agreement by two thirds of the members or 13 of you. I'm going to very briefly walk you through the changes which have been shared with all committee members and posted on the FOIA Advisory Committee page on the OGIS website.

Next slide please. So Article 2 discusses authority. The language changes proposed here reflect OGIS's role that has changed in the FOIA statute since the National Archives established this committee in 2014. When the committee was born, the statutory language did indeed say that OGIS will "recommend policy changes to improve FOIA." Congress struck that language in 2016 and replaced it with "identify procedures and methods for improving compliance with FOIA." So this proposed language more accurately reflects OGIS's role and the statute.

Article 3. On its face, it may appear that we are trying to reduce the number of seats that is not the case. I'm going to pause here and ask our event producer, Candice, to share a graphic that illustrates the seats to help, I hope, clarify what we were talking about. Committee members received this graphic and it is posted on the FOIA Advisory Committee page of our website.

There are designated seats and non-designated seats and the charter and bylaws address only designated seats. Designated seats are for those for which a member represents the interests of a particular group. For example, one designated seat for non-government members represents the interest of FOIA requesters who fall into the news media FOIA fee category.

Non-designated seats have no parameters other than those who fill them must of course be FOIA experts. As I noted a few minutes ago, these edits would result in consistency between the bylaws and charter and there will be no reduction in seats.

I'll also note that the Federal Advisory Committee Act for FACA requires advisory committees to be balanced and to submit a membership balance plan to the General Services Administration [GSA]. So again, no reduction in seats. Candice, can we please go back to slide five? Thank you.

The next change simply has to do with failure or inability to participate regularly in committee work. In cases such as those, the Archivist shall appoint a replacement. Bottom line, there are participation expectations.

Article 4 about meetings. With regard to meetings, the bylaws state that the committee will meet up to four times a year. Beginning several terms ago, we started holding more frequent meetings in the last several months of the term as we are now doing. Regarding a quorum, the bylaws currently state that members will "state their presence." That sounded a bit like a roll call, which we may do at the beginning of a term, but we really don't think you need to hear from me calling roll at each meeting for forum or attendance purposes.

Next slide please. So Article 5 pertains to voting. These changes reflect how we have conducted business in the virtual world. As you all know, I try to avoid roll call votes, but I want to make sure that I am accurate in my vote tallies.

So Article 6, you'll see in the proposed amendments that there is this big block of text regarding the chairperson and vice chairperson, which up until now we have not had. This language might look completely new, but it is actually lifted from the original charter and the subsequent charter renewal. This is language that the General Services Administration in the charter renewal process this year noted would have a better home in the bylaws than in the charter.

Regarding the language about a designated federal officer and an alternate, it is not correct to say that FACA requires both a DFO and an alternate. FACA does require a DFO, Designated Federal Officer and there have been times since 2018 when I operated without one. On a related aside, I am very happy to have alternate DFOs and I want to send a shout-out to my two alternate DFOs, Dan Levenson and Kimberlee Ried.

So Article 7, this is a technical amendment that has to do with how the bylaws quoted the FOIA statute and its implementing regulation. How technical is it? It involved moving quotation marks. So it's very technical. So that is it for the proposed amendments. But before I move on, I just want to note that the General Services Administration on April 18th published in the Federal Register an update to its final rule implementing the Federal Advisory Committee Act. That rule goes into effect on May 20th. It's the first time since 2001 that the rule has been amended and we closely read the new rule as we were working on these proposed bylaw changes. Next slide please.

Alina M. Semo: Kirsten, can I just-

Kirsten B. Mitchell: So article 9-

Alina M. Semo: Kirsten, I'm sorry, I just want to interrupt you. Do we want to just take a beat and pause for a second? I just want to make sure there are no questions from committee members on everything you've said so far because there was a lot of information.

Kirsten B. Mitchell: That was a lot.

Alina M. Semo: Anyone have any questions so far? No. Okay, carry on. Thank you.

Kirsten B. Mitchell: Great. Thank you. So Article 9 deals with amendment of charter and bylaws. There are no proposed changes to this particular article. Regarding confirmation of receipt by members, I emailed these proposed changes to each member and have obtained confirmation of receipt from all but a couple of you, and I will be following up to make sure I have email confirmation receipt from everyone. The amendments, as I said earlier, require agreement by 2/3 of the committee members. That's 13 of you. So we have 18 here today, so that's good.

So before I turn the floor back to Alina, I also want to note that we received some public comments on these amendments that I have alerted committee members to and that are posted on the FOIA Advisory Committee page on the OGIS website. I will go through the comments very briefly. The commenter, Mr. Robert Hammond, notes that the new bylaws reduce the number of seats on the committee. As I explained earlier, the amendments do not reduce the number of seats on the committee. I'm hopeful that the graphic we created, that Candice showed you a few minutes ago and that is posted on our website, will help folks visualize this issue.

Mr. Hammond suggests adding that 10 days prior to a meeting, the agenda, slides, and meeting materials be posted on the committee web page. In response I note that there is no such requirement in the Federal Advisory Committee Act or its implementing regulation. We post materials as soon as they are available for posting. For example, we posted the Implementation Subcommittee report earlier this week when it was finalized and the graphic that I just mentioned we posted yesterday.

Mr. Hammond also would like the bylaws to reflect that NARA YouTube chat comments be turned on and that more than three minutes per individual be allowed for public comments. I note, again, that we hold these meetings in accordance with the Federal Advisory Committee Act and Government in the Sunshine Act. He suggests that we certify minutes within 45 days of a meeting rather than 90 days. FACA's implementing regulation clearly states that the designated federal officer must ensure that minutes are certified for accuracy within 90 days of the meeting, and that's 90 calendar days.

Finally, he suggests that the DFO keep an accurate time card of time spent on DFO duties, which should be provided to the General Services Administration and made available for public inspection. This is a great time to talk about the FACA database. The General Services Administration requires annual reporting, including on pay and full-time staff equivalency of federal support staff for all advisory committees.

And by the way, there are at least a thousand federal advisory committees across the government according to GSA's website. I invite anyone who is listening to visit FACAdatabase.gov and learn more. Again, that's FACAdatabase.gov.

So with that, does any committee member have any questions or comments about these suggested by-law changes or the public comments that we have posted on the OGIS website and that I briefly just went through?

Alina M. Semo: I see Eira has her hand up and Alex has his hand up. I'm not sure who had their hand up first.

Kirsten B. Mitchell: Okay. Well since you said Eira first, I will turn to her first. Eira?

Eira Tansey: Hi, this is Eira Tansey from Memory Rising LLC. This is a quick point of clarification I have about the membership and the different categories that members may be representing. So although I am not an official representative of the Society of American Archivists, I did learn about the FOIA Advisory Committee from SAA and had sought some of the support from SAA leadership when I applied for this committee.

So I know that I am in the non-designated part. But that prompts the question from me, which is if in the future there were like an official representative from the Society of American Archivists applying for membership in this, would they be considered an individual representing the interests of a non-governmental organization advocating on FOIA matters? Would they represent an individual representing historians and history-related organizations or would they continue to be in that non-government non-designated category? That's just my question for clarification. Thanks.

Kirsten B. Mitchell: Yeah, that's a great question, Eira. And I wanted to say two things and the first is that when we go out and publish the notice in the Federal Register seeking nominations, I mentioned that we blog about it, we X about it, we'd get the word out. We also do go to organizations and ask them to help get the word out about that we are seeking nominations. With regard to the non-government slots, there's a little more leeway there in terms of people being placed in different seats just because of the way the charter is written on the government side.

One either works for a cabinet level department or a non-cabinet level agency. It's one or the other. But on the non-government side, people can fit into different slots. I'm thinking of some of the professors on this committee could fit into several slots. And then I mentioned earlier the news media FOIA C category. I believe Adam Marshall is in that slot. He could very easily fit into a slot of representing an NGO, a non-governmental organization that advocates on FOIA matters. So I hope that answers your question. Okay. I think-

Eira Tansey: Think so. It sounds kind of like where a person might be able to justifiably fill one of those slots is where they are designated.

Kirsten B. Mitchell: Yeah, exactly.

Eira Tansey: Thank you.

Kirsten B. Mitchell: And a lot of it just depends on how many nominations we get and fitting people into various slots. So Alina, I believe you said Alex had his hand up. Alex?

Alina M. Semo: That's correct.

Alex Howard: So first of all, I really appreciate you creating that graphic, Kirsten. I had the same confusion. I think the yellow line, not a red line of the bylaw changes suggested that there was a reduction in headcount and just the way that it was communicated, that's a reasonable takeaway. So the creation of this graphic and narration of it, I think hopefully clarifies that. It certainly answers my concern and makes it very clear that there will be proportional half-and-half, NGO civil society representation alongside US government representation. And that's, I think, one of the most important symbolic aspects of this committee as an open government commitment, that this fulfills an open government commitment. As you've mentioned, this is a Freedom of Information Act Committee, not an open government one. I of course think that FOIA is a canonical open government pillar alongside participation and collaboration.

And on that count, the charter specifically says that we're supposed to foster dialogue, both within us, which represents the requester community and to solicit public comment. As people know, if they've been around this committee for a while, I showed up at McGowan Theater for many years in my role as either a journalist or as an advocate at the Sunlight Foundation where we're very concerned about the FOIA and its administration. And had, I would say, a robust dialogue with committee members including past representatives of the Department of Justice, unfortunately, Bobby isn't with us today, and one of the things I'd like to suggest is that we try to replicate, if we're continuing to have this only virtually some of the conditions that exist at McGowan, which include the ability for someone who's asking a question or making a public comment to ask another one. So for this particular concern that's been expressed about having one person being able to only speak for three minutes and then not come back, I would suggest that we try to replicate the offline condition that pertained before.

If there are no other people there to ask questions and you have someone there to ask one, then I think it's both common sense and in the spirit of the charter to continue taking questions. And I ask this as an advocate myself, having just participated in a public meeting of the [Chief] FOIA Officers Council, which was a mandatory meeting, I believe, under the FOIA for a body that was created by the FOIA Improvement Act of 2016. I would ask that we not limit people to just three minutes. I would say that looking forward, if this is being chartered again, which is tremendous, that we think about how to bring people back in person using hybrid technology. I know that right now the considerations around technology have hindered us coming to do that and that it is still a challenge for volunteer members to travel to Washington.

So we need to think about how to mitigate this concern. But as we think about a post-pandemic future, I hope that we create conditions for more robust comment and that if there's not more than one or two commenters that they have the opportunity to continue asking questions. So I just wanted to say that as someone who cares a great deal about comment, as someone who has asked many questions before, and as someone who would not like to be limited to just three minutes, if there's no one else to ask questions, I suggest that we consider that.

Kirsten B. Mitchell: Okay, great. So thank you Alex for that. There's a lot that you said there, so I'll just quickly try to address and respond to what you said. First of all, thank you so much for raising the issue about the membership because really, I realized that there was some confusion out there. You were not alone. And so that was what really sparked me to create that graphic. So I just have to thank you for bringing that up.

With regard to the "three minutes rule," I'm using air quotes here. That is not something that we will put in the bylaws, it doesn't belong in there. The FACA pretty much states that we can allow public comment as long as the rules of the agency allow it. So we will not stop public comment in any way, and certainly, we will look at this issue for the upcoming term as we will the meetings. It has not yet been decided, virtual, in person. We've got a lot to talk about there.

So I'm going to stop and see if Alina has anything to add to what I just said. No she-

Alina M. Semo: No, I don't think so-

Kirsten B. Mitchell: Head no-

Alina M. Semo: No.

Kirsten B. Mitchell: Okay. So any other questions from committee members?

Alina M. Semo: I'm seeing Tom shaking his head no. And I don't see any hands up.

Kirsten B. Mitchell: Alina, could-

Alina M. Semo: No Catrina's hand is up. Catrina, go ahead, please.

Catrina Pavlik-Keenan: No, I just wanted to say thank you for doing that graphic like Alex said, that really made it very clear. I was a little bit confused, too, Alex, when I first started reading that, so I do appreciate the graphic. I think that that makes it very clear cut, what's going on, and I appreciate that.

Kirsten B. Mitchell: Thank you, Catrina. So if there are no other questions, I think, Alina, I can turn the mic over to you. 

Alina M. Semo: Yeah, I would like to see whether the committee's ready to vote on the bylaw amendment changes that we have proposed. And if that's the case, we can commence with a vote. Is everyone ready to vote? Okay. Can I get a motion, please?

Catrina Pavlik-Keenan: I'll make a motion, Alina, to amend the bylaws as stated by Kirsten.

Alina M. Semo: Okay, and do I have a second?

Tom Susman: Second.

Alina M. Semo: Thank you, Tom. All those in favor please say, "Aye."

Group: Aye. 

Alina M. Semo: Those opposed? Please say, "Nay." I don't hear any nays. Anyone abstaining? I don't hear any abstentions, Kirsten. Did you get all of that?

Kirsten B. Mitchell: I did. Are you abstaining Alina?

Alina M. Semo: No, I said, "Yea."

Kirsten B. Mitchell: Okay, sorry.

Alina M. Semo: I said, "Aye."

Kirsten B. Mitchell: There were a lot of ayes floating around. So it appears the vote is 18 to zero to approve the bylaws amendment. So thank you all very much and we can move on to the next slide please.

Alina M. Semo: Yeah. I think we are on the next slide.

Kirsten B. Mitchell: Cue Alina.

Alina M. Semo: Yep. Thanks again, Kirsten. Great job. So onto our agenda for today. We're going to hear from one subcommittee today, the Implementation Subcommittee. They've been very hard at work. They have proposed three recommendations to the committee and we will be voting on those today. I know we have a break scheduled on our agenda at a logical point. If we're doing really well and we're just swimming right through, we may just skip the break if everyone is okay with that. Because maybe that'll help us end even earlier, but we'll see how everyone is feeling. If there's meeting fatigue, we can certainly take a short break. Then also going to get an update from the working group for the final committee report and we will close the meeting with the public comment period. So with that I would like to turn things over to Dave Cuillier and Michael Heise. I don't know who's speaking. David, over to you.

Dave Cuillier: Okay, thank you Alina. Yeah, this is Dave Cuillier from the University of Florida Brechner FOI Project and we bring to you fellow committee members three recommendations, which you've seen for a couple meetings now. So probably have had a chance to look at them as well as the background information that we put together, including a lot of explanations that I think Jason Baron will flesh out for everybody. But we have the three recommendations and feel free to advance the slides. I think the next three slides show what they are and I think we could probably take one vote on all three. I don't think we have to vote individually, but we could certainly go through individually and start that way. So either way I'm fine. So the first recommendation is that various entities follow up with some certain recommendations from the past that we think need a little more attention, continued attention and maybe this, Jason, it would be a good opportunity for you to explain that and what those are. Jason, would you like to go ahead?

Jason R. Baron: Well, David, I was counting on you to do the explanations this morning.

Dave Cuillier: Oh, I'm sorry. I must have misunderstood. That's okay. Would you like to chime in Jason? Or I could take care of it totally.

Jason R. Baron: Why don't you start? And I will give commentary if I think there's something to add.

Dave Cuillier: Okay, great. All right, well we'll do that. So as you see in the report, there's several sections, it breaks down in. And in fact, I've got to pull it up. I don't think I need to share the screen, probably. Everybody probably has a copy of it. But the first section kind of lays out the methodology that we took. A lot of work over the past nearly two years now. And then some of the successes, things that have been accomplished through the years, often like a recommendation might say OGIS should send a letter to entity X urging X, Y or Z, or look into this issue and report back. And by all accounts that's what happened.

Now whether or not that issue actually sees improvement, may or may not happen because oh just may not be able to control that, but they certainly follow through on the recommendations. So we list quite a few of those recommendations and some did lead to direct changes or implementation of certain committees or whatnot. So we wanted to highlight those and make it clear that there's been some good things that have happened over the past terms and that was part of our charge.

The next section talks about some of the recommendations from the past that we feel more work needs to be done and we've identified 17 of them to be exact I think, and kind of ordered and ranked them in importance as well as a committee based on our findings and our research and different folks' expertise. And so you can see the various details of what we think needs more work on and that's what recommendation one addresses. That's what we're saying, is tackle those things folks, we really need to bear down and keep working on those.

And then the rest of the appendices are basically the research findings, the survey, a summary of the interviews we had with officials and a summary of the Chief FOIA Officer reports that we looked at. And all of that kind of comes together and hopefully our future committee, which glad to hear that it's in the works, we'll take a look at these and maybe come back and help work on these, perhaps OGIS, OIP [Office of Information Policy], other entities can continue working on this. And that's pretty much what we wanted to set out and do this term. And I think we were successful. Really looking at what's happened, 51 recommendations over... What? Eight years or so and a lot of good that's happened, but a lot of work yet to be done. So that's recommendation one more or less. And if there are any questions, we're happy to take them... All right. Oh, I do see a hand. Allyson?

Allyson Deitrick: Thanks, David. I guess I was just curious why you guys focused on whether or not agencies followed the guidance or the recommendations and not, what caused them not to be followed. I found that much more interesting, reading the report, honestly. Like, okay, the recommendations seemed like they were too pie in the sky or the agency felt that the recommendations were geared more towards larger agencies or they didn't apply to the situation. I think that would be much more helpful than just saying, "Why didn't an agency follow all of our recommendations?" Especially when a lot of them are best practices and not requirements.

Dave Cuillier: Well that's a really good point, Allyson. Yeah, and I could certainly see it from an agency's perspective. It feels like the report's a little heavy on beating up on agencies saying, "Boy, they're just not doing squat," and that's not our intention here. You're absolutely right. In the report, and this was particularly noticeable in the interviews, we could really see there are a lot of reasons why progress is difficult on a lot of issues. Primarily, resources, right?

Allyson Deitrick: Right.

Dave Cuillier: If agencies had all the resources in the world, this would probably all be done. We'd be disbanding and the world would be all unicorns and rainbows. And so I hope we noted that. And we certainly believe that there are a lot of impediments that are outside of agencies’ controls. That said, that's why I think we really encourage solutions toward overcoming those roadblocks.

And that may be what future committees and work can be done is, okay, if resources are an issue in getting X, Y, or Z done, well let's continue talking about how to get those resources. And fortunately in this term, I think some of those will be addressed, but obviously more work's to be done. And we also did appreciate the feedback we got from chief FOIA officers saying, "Look, some of these recommendations are a little naive or they don't apply to our agency." So I think that's a really important finding that future committees should consider as they're working up recommendations. Because well, I think primarily we all have had a broad sweep, "agencies should do X” without really considering the nuances of different agencies. So we hear you, I hear you. And hopefully future committees will take a look at this and all of the report, including the observations with the interviews and take all that into consideration. Now did I hit that okay, Jason? Allyson, anybody else want to chime in?

Allyson Deitrick: The only thing that I would add is just under FAC, it's up to the agency to determine if they want to accept recommendations. So I would just say, "We do our job, we provide the best recommendations we can, and then if the agencies decide to accept them, great. If not, we did our best and you try to provide as good recommendations as we can." Thanks.

Dave Cuillier: Absolutely. We're advisory, so we can't force anybody to do anything. Let's see, Alex, I see your hand up? Nope. Okay.

Alex Howard: Two quick things in response to what you said and Allyson's comment. It is true that the report does not intend to beat up on agencies, so to speak. It is also true that there is widespread dissatisfaction with the FOIA process in the requester community, which we represent in terms of people here. And that on the one hand, the comment that resources are an issue is spot on. One of the things that we pulled out in this report is that there's a consensus around certain recommendations that we all collectively voted [for] that they think will make a big difference. Improving agency FOIA websites and online interactivity, aiding search and redaction through better technology, which could involve AI, but there's lots of other options, removing first person requests from the FOIA process, the A-files USCIS are the things. And then the last one, nurturing a culture of transparency through government, which is not about resources.

And one of the things that has come up in the recommendations that we've made across our committees is the need for senior leadership across government. Now I can understand why there is significant reticence from the government members of this committee from speaking up and criticizing the leadership of the current administration or past administrations. But I think it's fair to say that the Freedom Information Act has not been a political priority for an administration in quite some time. The last time we had a president really talking about the FOIA was President Obama when he directed the Department of Justice to explore release to one, release to all FOIA policy, which I and other people still believe would be in the best interest of not just the requester community but of agencies. At a recent NARA forum, we had a wonderful FOIA officer from the State Department talk about how adopting that policy has had an impact not just in the requester community, but also agency operations.

And to this point around implementation, one of the things that came away from our work was that many agencies, when you get down below the senior official level, don't know about the committee or its recommendations and that there's a gap. And my view as a person in the advocacy seat is that the culture of transparency we're recommending is something that has to be led from the top down so that people from the bottom up can feel like they're protected if they do what the FOIA is intended, which is to disclose information when people request it, even if it causes embarrassment.

And one of the things that I hope to see, is if our recommendations are in fact heeded, that that cultural transparency, culture of transparency rather, will ensure that agencies across the government are aware that this work exists and then evaluate how their recommendations can improve their work, including the dialogue with requesters that I think might change a real cost to taxpayers, which is the lawsuits that we see, the stance that the agencies take with respect to requesters and then to litigation is something that we should evaluate in terms of the impact of our recommendations and whether or not we're carrying out one of the important parts of the charter, which is improving dialogue and fostering comment in a way that will, I hope, create with more virtuous outcomes.

So I just wanted to pull that in because I feel like it might get lost. This is not just about resources, but it's also about our government at every level, making it clear that upholding the FOIA and ensuring that people have access to information is something that's not just the job of people in one part, but of everyone.

Dave Cuillier: Thank you. Thank you Alex. By the way, Alina, do you want to be the moderator here? I don't want to...

Alina M. Semo: No, you're doing a great job. I'm just going to let you drive.

Dave Cuillier: All right, thank you. Looks like Ben, you have your hand up?

Ben Tingo: Yes. Thank you, Ben Tingo from OPEXUS. I just wanted to mention, I think that everything Alex just mentioned is very important and for us to recognize. But one thing in particular that we found very interesting going through this exercise was exactly what he said. That in many situations we found, especially during the interviews that we conducted, that many agencies and many agency personnel just simply weren't aware of a lot of the recommendations and a lot of the activities that the advisory committee had conducted and had engaged in over the past many terms. And so even when you see, when we identify something has been complied with, very often, that was sort of an endeavor that was taken in parallel with our own activities if they happen to be doing what we may have recommended they do and maybe have arrived at that conclusion by themselves. That this is a best practice and something they should do or learned that from another source.

And so we've talked a lot about that over the course of the term, of ways to get the committee to engage more with the public, ways to increase a lot of that engagement so that agencies do look at the committee as a key resource in establishing and disseminating best practices. And we think that that would be something very valuable to continue efforts in order to make sure that we are a resource for FOIA across the federal government and that we are making recommendations that are likely to be adopted, will be appreciated and will actually have an impact moving forward on the administration of FOIA.

Dave Cuillier: Thank you, Ben. Yeah. Any other thoughts or questions on this recommendation? Anybody want to make a motion?

Catrina Pavlik-Keenan: I'll make a motion.

Dave Cuillier: And what would you like to motion?

Catrina Pavlik-Keenan: I would like to motion that we carry this recommendation forward as it's stated.

Dave Cuillier: Okay. Great.

Alex Howard: Seconded.

Alina M. Semo: We have a second.

Patricia Weth: Second the motion.

Alina M. Semo: Thank you. Okay, let's take a vote, David, if that's okay? All those in favor, please say, "Aye."

Group: Aye. 

Alina M. Semo: And you want to opposed? Please say, "Nay."

Allyson Deitrick: Nay.

Alina M. Semo: Who was that, that said, "Nay?" I heard one person.

Allyson Deitrick: Me.

Alina M. Semo: Allyson said, "Nay." Okay, thank you. Any abstentions? Alina is going to abstain.

Dave Cuillier: Okay.

Alina M. Semo: Let me just check in with Kirsten for a second, David.

Dave Cuillier: Yeah.

Alina M. Semo: Kirsten, are we good? Did you get that tally count for the vote?

Kirsten B. Mitchell: We are good. I tally the vote, this proposed recommendation I-1 passes 16 to one, one nay vote, which is Allyson and one abstention, which is you Alina.

Alina M. Semo: Great. Thank you so much, David, back over to you.

Kirsten B. Mitchell: Of course.

Dave Cuillier: All right, thank you. Let's see on recommendation two, go ahead and advance to the next slide. As we did our research, we noticed it was difficult to sometimes ascertain from the Chief FOIA Officer reports, consistent information relative to previous recommendations. So we thought we might recommend that in future Chief FOIA Officer reports, some of the questions really get at some of the more critical recommendations from the past. And that's not to say that the reports don't already have a lot of that because they do. That's what helped us get a sense of some of them. But I think we might be able to use that reporting system to help track some of these more critical issues. So that's what we're recommending here and we're giving OIP a lot of leeway on how they want to do that. We understand you can't add 51 extra questions to the report form. It's already a lot of work for them I suppose, but a few that might be helpful for future committees and folks. So that's kind of what recommendation two is about. Any questions on that? Anybody want to move to approve recommendation I-2?

Patricia Weth: Motion to approve recommendation I-2.

Alex Howard: Seconded.

Tom Susman: Yeah, just a second. Let me get off the screen here. Okay. Yeah.

Dave Cuillier: And we can go to discussion now that we have a motion and second on the table. I think Patricia moved and Alex seconded.

Tom Susman: Okay, ready.

Alina M. Semo: Tom?

Kirsten B. Mitchell: Hey Tom, this is Kirsten...

Tom Susman: That's for four o'clock this afternoon. We talked about that.

Dave Cuillier: Tom. Tom, you're not muted there, sir.

Alina M. Semo: Yeah. Candice, could you be able to mute Mr. Susman?

Dave Cuillier: Glad it's a business meeting.

Alina M. Semo: Yes.

Dave Cuillier: Any discussion on this motion? Anybody?

Alina M. Semo: Yeah, I'm was going to ask the same question, David. I didn't see any raised hands and Michael Heise is raising his hand. Michael, go ahead please.

Michael Heise: Just because you said so, said a raised hand, Alina. I'm just kidding. Well, I'm just thinking about what Allyson had commented on the first recommendation. So where she was saying, if I remember correctly, even though it was just a few minutes ago, that there might be certain agencies that there might be certain reasons that are attendant to that agency not necessarily meeting whatever guidance is provided by this committee or future committees. And Allyson, I don't know what you think about this of course, but I'm just thinking that this recommendation about asking agencies to report activities they have implemented. I don't know how many agencies would actually do this, but when you prepare these reports, most of the time there's a narrative section. And so it'd be like, okay, I don't know how this would look, but let's say it says, "Out of the 50 recommendations..." Or, "Which one did you do?" Or maybe the question selects the top three particular recommendations or something, "Did you do this?"

So the way I think the CFO report would look based on how it looks now is that there'll be a question presented, "Agency, did you do this?" Then the next question is, "If you didn't do this, why?" And so I think that's where I kind of bridged this one with the last one, Allyson, to your point, because I think it's a really good point, that depending on where a particular agency is with respect to their candor, I'm putting things out there, on the Chief FOIA Officer report in terms of exactly what they're saying and how much they want to really get into it and what the value add is on that, that that could be an opportunity for that particular agency.

And by agency, I mean in no way the [Equal Employment Opportunity] Commission, I just mean agency with just one of the federal agencies. What they could do is provide whatever reasons they have about it, about why they maybe have not yet met that recommendation. That could also help future committees in understanding the practicalities of implementation if those kind of questions are asked in that way. So anyway, I just thought Allyson, that that might maybe assuage a little bit of what you were talking about, but maybe it doesn't. Anyway, that's it. Thank you.

Dave Cuillier: Looks like Alex was next then Allyson... Alex, I think you're muted.

Alex Howard: Sorry about that. It's 2024, I'm still finding the mute button. I just wanted to follow up on Ben's point about making recommendations that we think are likely to be implemented. I think this is a good example of one that's likely to be implemented. My only concern with it is how much impact it will have. There are lots of questions that get asked in these reports that the agencies do note, which provide information to us and others interested in how administration of the FOIA is going on, like outreach to the requester community asking whether they're doing it or not creates a useful data collection point. Does it create pressure for them to actually carry through with it? I'm not so sure about that, but I certainly support the recommendation as written and drafted and think that it's a useful point for agencies to be thinking about whether they've actually reviewed the recommendations and then implemented any of them. And for that reason, I support.

Dave Cuillier: Okay. Thanks, Alex. Allyson, you have your hand up.

Allyson Deitrick: I just wanted to get back to Michael. I have much less concern with this recommendation. I think it's open-ended enough. I know OIP has some discretion in how they phrase it. If they ask about certain recommendations that the committee has made over the last however many number of terms, or if they just say, "Here are the last couple of reports, recommendations, has your agency implemented any of these? Yes or no? Which ones? Why? Why not?" I think that would be a helpful data point. So I'm okay with this one. Thanks.

Dave Cuillier: Thanks, Allyson. Any other discussion or questions? Okay.

Alina M. Semo: I know we went out of order. Let's just be clear, we've got a motion to vote on this particular recommendation from Patricia Weth, I believe.

Dave Cuillier: Yup.

Alina M. Semo: And we had a second from Alex Howard. Is that correct?

Dave Cuillier: Mm-hmm.

Alina M. Semo: Okay. Are we ready to vote?

Dave Cuillier: I think so.

Alina M. Semo: Yes. Okay. Please let us know. All those in favor, please say, "Aye."

Group: Aye. 

Alina M. Semo: Anyone opposed? Please say, "Nay." Any abstentions? Kirsten, over to you. I want to make sure you got all of that tallied.

Kirsten B. Mitchell: Yeah, so I think I heard everyone, but I wanted to see if Tom was available and what his vote is or might be.

Tom Susman: We'll discuss it at four o'clock.

Kirsten B. Mitchell: Yes, sounds good. Okay, so it appears that the vote is 17 to 0 for Recommendation I-2. Thank you.

Alina M. Semo: I have a question. 17 to 0?

Kirsten B. Mitchell: Oh yes.

Alina M. Semo: Not 18 to 0?

Kirsten B. Mitchell: Sorry?

Alina M. Semo: It's 17 to 0, not 18 to 0?

Kirsten B. Mitchell: Well, Bobby is absent and I didn't see Tom raise-

Alina M. Semo: Okay, so-

Kirsten B. Mitchell: If you've got Tom, then we're good. Then it's 18.

Alina M. Semo: Yes. I think he just raised his hand.

Kirsten B. Mitchell: Okay, then it's 18 to 0. Thank you, Alina.

Alina M. Semo: Yeah, I just wanted to clarify. Thank you. All right, David, back over to you.

Dave Cuillier: Okay, great. And just to clarify, Alina, do you usually abstain or no?

Alina M. Semo: I abstain sometimes. I voted in favor of this recommendation-

Dave Cuillier: Okay, cool.

Alina M. Semo: Just now. I abstained from I-1, though.

Dave Cuillier: Oh, okay. All right, gotcha. Yeah, moving on to I-3, the last one and I think an important one. One thing that we got out of this was the value of looking back and seeing what's advanced and what needs more work on.

So we're recommending, and of course they don't have to follow this, but the next term and beyond, perhaps create a working group, a small group. It could be three people, it doesn't have to be huge, whatever, that can continue on this exercise that we found valuable, including educating at the beginning of a term, everybody on there, on what's happened in the past and priorities to consider for the future. Since it's a lot of work when you start on this committee to go through all the previous terms reports and recommendations.

And frankly, I suspect a lot of committee members just don't have the time to do that. So we're recommending a small group to help them get started quickly and provide that background and context. Also, to help coordinate and help the subcommittees on future terms navigate through the issues they may want to address. I mean, why reinvent the wheel? Sometimes, we know, hey, a couple terms back, they tackled this issue, here was some information they gathered and their conclusions. That might help them.

I think it definitely... We didn't get everything done that we wanted. I thought two years would be sufficient, but it is not, and there's a lot more research we could have done to really get at some of these recommendations and progress made. And so I think we'd like to see that work continue, to flesh things out. And to continue highlighting things that still need to be worked on because a lot of these recommendations are ongoing. A lot of these are works-in-progress and should be monitored.

So that's our recommendation here for future committees. And we think it's an important one, especially as these number of recommendations keep growing every term, it could get out of hand. So that's our recommendation. And it looks like, Alina, you have your hand up.

Alina M. Semo: Inadvertently.

Dave Cuillier: Oh, okay.

Alina M. Semo: I pulled it back down.

Dave Cuillier: So if anybody would like to make a motion and second we can go to discussion.

Alina M. Semo: Well, let's reverse David. I usually like to have discussion first and then motion.

Dave Cuillier: Is that what you'd like? Okay.

Alina M. Semo: Yes. So, if we could open up the floor to any questions or comments. I see Catrina's hand is up and then I also see Michael.

Catrina Pavlik-Keenan: I just wanted to say that one of the things that we noticed when we first, and this is a lot of work, I reiterate that with David, that there was a lot of things that when we found was repetitive. And we felt people might have... Because there's so many committees and people change in the committee. And things are looked at and that there were things that were not exactly looked at the same way but very similarly looked at or addressed.

And so we combined some of that together. And so the purpose of this, and I really feel this is important, is so that future committees don't do duplicate work or similar duplicate work of things that have already been looked at and made recommendations to. And so since we all are very busy doing our regular jobs, to look at something that doesn't need to be looked at because it had already been looked at one time before or something similarly had been looked at. And a recommendation had been made and we just didn't know if anybody even knew about the recommendation or was even trying to fulfill the recommendation.

I just feel like this was important because of the fact that we don't... And next time... I agree with David, as big of a committee as we had this time looking at this, this was a huge project to tackle. A lot of people might not have realized that because there were so many to look at and find out about and summarize.

And so now that we've got it at a manageable place where it can be kept up, I think that it now allows people to focus on things that are really problems or issues and not going back over things that have already possibly been looked at or discussed or even that recommendations that previously have been made. And so we're trying to make sure that duplicative work wasn't been being done by this committee over and over and over again.

Dave Cuillier: Thanks Catrina. Alina, I'll hand you the talking stick.

Alina M. Semo: Oh, thanks. I think in this order I see Michael's hand was up then Eira, then Tom, then Luke. So Eira, go ahead please.

Eira Tansey: Oh, I thought... Wasn't Michael ahead of me?

Alina M. Semo: Oh, maybe he was.

Eira Tansey: Yeah.

Alina M. Semo: Michael?

Eira Tansey: And then I can go after him.

Michael Heise: Thank you. Okay, so there's four points on this and I just have some questions. And I get it, Catrina, it was a lot of work to do this stuff. So for this first one, providing the summary, that seems like something that can be done. It was done, but I also wonder... And there is a dashboard on the website that has things spelled out. I know that wasn't sufficient for the reasons we all talked about in the subcommittee, but there's that. And then the third one, I think the folks on the subcommittee did a lot. That's the conducting research about these recommendations. That was all the things that we did. So I get number three and then I get number four. I'm just a little worried about number two, and this is mostly now that I've learned more than I ever thought I wanted to know about when we have to have things public and not public and all that stuff.

So Alina and Kirsten, this says the word that triggers me is the word coordinating. So coordinating with subcommittees throughout the term to provide research and context from previous terms related to their work.

I just want to make sure, I mean what I wouldn't want to do, and this is what I just don't know... So Alina and Kirsten, the future implementation subcommittee or working group would need to be careful not to coordinate with everybody enmasse because then that's going to trigger one of these meetings. And so I just think that's common sense, but I just think that when you have... We've had the benefit of some folks here that have been around for a long time and veterans. I mean veterans in terms of veterans in the committee. And we've had the benefit of their institutional knowledge, but what happens if or when there is an entire slate of a hundred percent newbies? They've never done this before at all. Okay, maybe it'll never happen.

I just worry that with that number two... And I know someone standing in Kirsten or Alina's shoes will be able to prevent this, I guess. But with that coordinating, they just have to be careful that it's not everybody all at once, because that then causes problems.

I also think that I wouldn't want number two... Let's say I'm on one of the committees that isn't the implementation, maybe because when I saw this I said I'm not going to do that. And so I went and did some other subcommittee. Now I'm thinking, okay, so the implementation, they're our research guys. So, they'll conduct research for us when we ask them. So I'm a little nervous about number two for the reasons I said, but mostly, like I say, Kirsten and Alina, maybe you have comments on this, maybe you don't. The whole issue with coordinating and drawing the line with that. Thanks.

Alina M. Semo: Yeah, thank you. Michael. I see Kirsten's hand is up and maybe she's thinking the same thing I am. My only comment is going to be that one of the roles that I believe that the DFO and the chairperson provide is that continuity from committee term to committee term.

We may not have perfect memories, but we really do try to remember what's happening. We also try to coordinate and liaison with the chief officer's council and making sure that there's coordination and no extra work or duplication of work that occurs. So we definitely try to fulfill that role as best as we can. Kirsten, you want to add something to that, please?

Kirsten B. Mitchell: Sure. I was going to say exactly what you just said, but I'll also add that really the threshold for a public meeting is a quorum, which is 13 members. And subcommittees and working groups are generally smaller than that. If the DFO or the chairperson were to see that it was veering beyond that and it would be a quorum, then we would have to take appropriate measures announcing a public meeting and so forth. But I really appreciate, Michael, you looking at this and thinking that through, because it is very important. Thanks.

Alina M. Semo: Okay, Eira, I believe you're next.

Eira Tansey: Hi, this is Eira Tansey of Memory Rising. I definitely share some of Michael's concerns. And I'm a little concerned that there's a lot going on here that might put too much work on a future working group. But there's one thing that I really find very compelling here, and it's item number one, which is providing a summary of previous recommendations to committees early in the term.

I do think this gets at what I view as one of the biggest challenges for me. Not having worked in the federal government and not being as much of a FOIA expert as most of the other people on this committee, it has been very difficult to figure out as a new person how to get a foothold and how to contribute to this committee. And I do think that there is a... Perhaps some of that can be addressed with when next term comes forward, almost making a job description or preferred experiences for what you want people on the term to have.

Because it felt like being thrown in the deep end of an olympic sized swimming pool and my competition was Michael Phelps. And so I think that there's a lot to be said for developing onboarding for new members. Particularly for those who do not have the institutional knowledge that many people on this committee have. And so I do want to lift up that first item, which is that providing that summary of previous recommendations to committees early in the term would be enormously helpful for those of us who are new. And particularly for those of us who don't have both the committee institutional knowledge, but also perhaps not the depth of subject matter knowledge that many of the other continuing members have. So thanks for including that.

Alina M. Semo: Okay, thanks Eira, I really appreciate that. I believe Luke was next and then Alex and then Tom and then back to Catrina. I think that's the order I see it in. If anyone disagrees, let me know.

Luke Nichter: Thanks everybody. Luke Nichter, Chapman University. I'll try to be quick because I know we've had a lot of comments, in particular in response to this recommendation. My comment is going to sound a bit like Eira's and I said something similar at our last public meeting.

As someone who's a non-fed, non-FOIA professional, first time on the committee this term, when I signed up for this subcommittee, I had no idea what I was getting into. And I think it's been the most interesting education I've had so far in the two years. I realized this subcommittee contains an awful lot of institutional knowledge about everyone who's come before us. And I did all the things I was told to do when we started these two years. I looked at the OGIS dashboard, I read all the resources on the website that were available, but really until you do the deep dive to figure out what the origin is behind a lot of these, and you also don't realize a lot of the new ideas that we have might've been tried in some way before.

However this recommendation goes forward, I just think it would be an opportunity lost if we don't take advantage of all that we've learned up until this point. Now here I sound like the historian that I am and that's the seat that I represent on this committee. But I think it is really important and it will save us more work than it will create I think going forward, having the benefit of this knowledge. Thanks!

Alina M. Semo: Thanks, Luke. I appreciate that. Let's see, Alex is next.

Alex Howard: Luke, I think that was a missed opportunity to quote [George] Santayana, right? "If we don't learn from the past, we are doomed to keep repeating it." Alex Howard here. Happy to just share that for me one of the most positive parts of my participation on the committee by far was getting the opportunity for this subcommittee to speak with Bobby from OIP, who's not here today unfortunately, and Alina about these past recommendations.

And to go through them all and hear from them how it was going, what happened, what kind of impact did it have, why didn't that happen? That process created knowledge which went into a spreadsheet and then informed our subcommittee's report out. And I would just say in response to this idea, that coordination, tipping off a point where we then have a quorum and have to report it out, I think that's a good thing.

I think that our conversation is becoming open by default, where we create knowledge, even co-create knowledge, in a collaborative open dialogue between people who are on the NGO side and on the government side about the past recommendations that the committee is in fact exactly what this committee is supposed to do.

And that moving those conversations into the public domain, having them be documented, having the insights from them then being summarized and put into a narrative form and then discussed at these public meetings is a really useful way of informing the public about what's happening with the administration of the FOIA and how our work connects with past work.

And I would say that if we had maybe gotten to a point where we understood that there's a consensus, that we all think that there should be a much better central way to make FOIA requests. To see which requests had been made already, to see where those records have been disclosed, maybe it would've put us in a different place as a committee.

So that when we heard from people talking about sunsetting FOIAonline, we could have come together and had a vote on whether we thought that was a good idea or not in the moment. And taken a stance as a committee in saying, "This isn't in the best interest of the country and the decision that the office EB government at OMB and EPA made without consulting the FOIA community might not be the best thing."

"Maybe we shouldn't support FOIAonline going away, or if it is going away, we should have a more robust discussion about what exactly is going to replace it and what that will look like. And how it will affect the administration of the FOIA and the requester experience."

Now, I think the immense credit of OGIS and the committee, we got an opportunity to talk with officials from the EPA. We have an extraordinary resource in Patricia and in other people within the committee who've given us a very rich, I think, and useful set of resources. But I would just say that the extent to which we can have these discussions in the open, and try to create that default, and the extent to which we can create knowledge going forward... And I say we as a committee, not necessarily as members right now, that that's a really public good. And it's a profoundly public good and a valuable one.

And that's why, I certainly, am very supportive of this recommendation as it stands. And I hope that future iterations of the committee are able to pull out excellent work from the past, like OGIS 2.0, this wonderful report that came from the past term.

And then use that as a way to advocate for increasing the resources and capacity of institutions like OGIS, which are conflicted out from requesting resources for themselves that are clearly needed if our country's going to see the impact from having an Ombuds office that other countries do. Which would look like 50 or a hundred full-time employees or even more.

I think that's a really important practice. And that's why I was so supportive of this recommendation coming forward and so grateful to everyone on this committee for taking the time to work through all of these recommendations and to understand what did or didn't happen as a result of them. And then by doing that, hopefully increasing the impact, which I think is what we care about, for our future committees.

Alina M. Semo: Okay. Thank you, Alex. Appreciate all of that. I believe Tom Susman's hand was up next. Tom, go ahead please.

Tom Susman: Yeah, Tom Susman. Thank you. This is my third term on the committee, so obviously I'm very dedicated towards the subject of implementation, because I've been involved in voting for and working on a number of the recommendations through the last six years.

And I want to start by thanking David for a lot of the grunt work to pull all of the things together, surveys, spreadsheets, et cetera. A few comments. Firstly, I agree with Catrina entirely about the preventing duplication, overlap and so on. And I'm not really concerned about the coordination aspect. I think that burdens can be minimized. I want to focus on really the last issue, which hadn't been discussed, at number four, which is proposing ways to achieve greater implementation.

We've got all these terrific recommendations. The entire first advisory committee came up with a single recommendation that has not yet been fully implemented, that could be very easily. And so while my inclination would be to go further than that in terms of the advisory committee. The advisory committee's charter won't let us put together a SWAT team to go into the agencies and lobby and advocate and go up to the Hill and send additional letters and persuade the Archivist to do more.

But I do think that having a group within the Advisory Committee looking for how to get those earlier, not just summarize, not just educate, not just coordinate, not just research, but actually advocate for implementation. And think of ways to, for example, bring the OMB [Office of Management and Budget] director or OIRA [Office of Information and Regulatory Affairs] director before the full committee to explain why they haven't implemented some of the recommendations to them.

So that's my view. I think this is a terrific recommendation, and I'd like to register my vote in favor because unfortunately I'm going to be offline for a few minutes starting in 10 minutes.

Alina M. Semo: All right. Thanks, Tom. I want to correct the record. This is your fourth term on the committee?

Tom Susman: It is!

Alina M. Semo: Yes. Sorry about that, but we'd love to have you. It's a great number. Catrina, you're next.

Catrina Pavlik-Keenan: Okay. Sorry about that. So I just wanted to say...so Luke and Eira, I totally 100% agree with you. This was my first term on here. And even though... And I don't think it has anything to do with knowing FOIA because I know FOIA pretty good, but I think it's...And I will say, with Tom, when I got on this committee, I did not realize how much work this was going to be. And I'm really busy, but I didn't realize how much work and how in-depth we were going to be on all this stuff and go through all the things that we looked at. But I do agree with you. I 100%, wholeheartedly agree with you. And I don't think it has anything to do with how much FOIA you know when you get on these committees and you've never been on before. Because this was my first time, I really didn't know what to expect and what was going to happen and how to dig into all this stuff.

So I just want to say, because Eira was saying how you have to have all this experience, I don't really think that that's true. I think that it's a learning curve for everybody, FOIA experience or non-FOIA experience.

And I do agree. I think some of this stuff would've been really, really helpful because like I said, even I didn't know what I was doing in the beginning and what I was taking on and what all that meant. So I agree with you. I just wanted to put that out there for the record.

Alina M. Semo: Okay. Thanks, Catrina. Certainly Kirsten and I are very open to feedback, if you want to give us at any point in time about what we can do better to improve onboarding new committee members. So we're definitely hoping that we've been doing our best trying to introduce everyone, but if there's anything we can do to improve, we're always open to that. Right, Kirsten? Yes, she's nodding. Thank you. Okay. Michael, you're the last hand up, I believe. Go ahead, please.

Michael Heise: Yeah, thanks. In an abundance of caution, I just want to make sure that no one's comments with respect to this issue thus far have in any way mischaracterized what I was saying about number two on the coordination. So let me just make sure that I'm clear here. By having reservations about the coordination with subcommittees, I am not in any way articulating that somehow I think that we shouldn't have public meetings or something like that. We're having a public meeting right now. There's several meetings that we have.

I'm assuming that the purpose of the subcommittees, maybe it's in the bylaws themselves or in the law, the purpose of the subcommittees and the reason why there isn't a forum necessary for that to trigger the public meeting is so that there's some space for the subcommittees to do their work. And so all I was saying is, so I hope everyone on YouTube and everything hears me, that I'm very interested in the public meetings. That's why I'm here right now. But I'm also interested in making sure that folks in future terms have the space to do their work.

I think that's what the structure wants too, because otherwise there wouldn't be this thing called subcommittees. The reason why coordination triggered me in terms of the word is because I think this will be the first time that there's a recommendation that's self-directed, inwardly looking, first.

Okay, so this isn't a nothing burger, it's an inward looking thing, a recommendation that the FACA makes for itself. And I don't know if there's any in the past that talked about... There is no formal coordination with subcommittees that I can think of. Alina, you've mentioned certain things where the tops talk to each other, but not about the actual subcommittee as a group.

Why do I know that's true? Because when we first started out of the blocks two years ago, Alina encouraged folks to be on more than one subcommittee. Well, why the heck would that be? It's because there isn't the coordination in the way that we're thinking.

So folks on YouTube, out in the world and on this transcript understand that I and the Equal Employment Opportunity Commission are all about having things in a public forum. But I do think subcommittees are a fact of life. It's how a lot of work gets done because there's a space to do it. And so I don't know if anyone would think it's a good idea to have a hundred percent purest take that each and every word ever uttered out of anyone in the future FOIA Advisory Committee is somehow made public to the entire planet. I just don't know how any work gets done that way. So with that, I hope the record is cleared and I didn't muddy it even more, and that's it. Thanks.

Alina M. Semo: Okay, thank you. I don't know whose hand went up first, Kirsten or Allyson? You guys help me out here.

Kirsten B. Mitchell: I'm not sure either. This is Kirsten Mitchell, the designated federal officer, and I just wanted to respond real quickly to what Michael just said. Subcommittees are indeed how the work gets done on this committee, and I also wanted to note, Michael, that you were extremely helpful. Because you are, I think, the only member of this committee who is on all three subcommittees. And it is super important for all the subcommittees to know what is going on, so that there isn't duplication. So I just wanted to say that, and I will lower my hand. And, sorry to jump ahead of you, Allyson.

Allyson Deitrick: Oh, no worries, Kirsten. One question: Is working group in the recommendation, is that synonymous with subcommittee? Or were you guys seeing this as something different from the regular subcommittees? And then the second question is, what if the next slate of members don't want one? That's just a hypothetical question.

Dave Cuillier: Yeah, Allyson, I could probably chip in. Yeah, the working group was kind of intentional. We thought we wanted to make a nimble little task force, little group, but nothing as formal as a subcommittee. Working behind the scenes and helping, not necessarily coming up with additional recommendations, although I suppose I could. Anybody could recommend something, I suppose, to the full committee. So, that was the idea, I think, and someone can correct me if I have that off a little. And then to your second question, which was again, remind me, what was it again?

Allyson Deitrick: Oh, sorry. The second part was hypothetically, what if…

Dave Cuillier: Oh, yeah, what if people don't-

Allyson Deitrick: ... people don't want this, don't want to work on it?

Dave Cuillier: Well, then they don't have to have it. It's just a recommendation. We're recommending that future committees do this. We think it would be valuable, but if they choose not to, that's okay. And again, I think we're recommending a small group, let's say three people. Maybe a couple folks who have been around a while, maybe a new person. Which I don't think would trigger any FACA issues if they're chatting with another subcommittee. I can't imagine. Even this Implementation Subcommittee was huge, it was like 10 or 11 or something. But in the future, this wouldn't trigger that. So, I think that was the idea. And again, it's just a recommendation. If folks don't want to do it, that's their choice.

Alina M. Semo: Okay, thank you.

Dave Cuillier: And by the way, I'd like to add, I really did enjoy this process. And Jason Baron did a ton of the work the past month or two pulling it all together. Kudos to him, as well as a lot of the subcommittee members chiming in, providing thoughts, suggestions, making it better.

So, I really did think this was a great effort. And I want to thank everybody who put time in on it because I was frankly a lot more thrilled with the end product than I expected at the beginning. It exceeded expectations, I think.

Alina M. Semo: Okay. Any other comments, or are we ready to vote? David, good news. I don't see any other hands up. Do I have a motion? Or...

Patricia Weth: Patricia Weth from EPA, I motion.

Alina M. Semo: To?

Patricia Weth: To vote on proposed recommendation I-3.

Alina M. Semo: Okay, thank you. Do I have a second?

Catrina Pavlik-Keenan: Second.

Alina M. Semo: All right. I heard two seconds. That's great. All those in favor, please say aye.

Group: Aye.

Alina M. Semo: Anyone opposed? Please say nay.

Allyson Deitrick: Nay.

Alina M. Semo: Allyson, was that a nay?

Allyson Deitrick: Correct.

Alina M. Semo: Okay. Anyone abstaining?

Eira Tansey: Abstaining.

Alina M. Semo: Eira's abstaining. Okay. Kirsten, turning over to you.

Kirsten B. Mitchell: Yes, Alina, this is Kirsten. How do you vote on this?

Alina M. Semo: Aye.

Kirsten B. Mitchell: Okay, so the vote is 17 to one. There was one no vote. I believe it's Allyson and there was one abstention and that was Eira.

Alina M. Semo: Okay, great. No, that doesn't add up. Hold on a second. Shouldn't it be 16 to one? Okay.

Kirsten B. Mitchell: Indeed, it should. Thank you.

Alina M. Semo: 16 to one with one...

Kirsten B. Mitchell: Advisory committee, not the math advisory committee. So let me correct the record. The vote is 16 to one, the one no vote, Allyson, with one abstention, Eira. And I did note that Tom is still in the meeting.

Alina M. Semo: Okay.

Kirsten B. Mitchell: Thank you.

Alina M. Semo: So we're right about the time we were going to take a break. I was going to ask committee members what they would prefer. Do we want to power through without a break or do we want to take a 10-minute comfort break, let's say. Just to give ourselves a little bit of... I'm seeing nods on a comfort break. Okay. How about 10 minutes? Can we come back at 11:44? That would be great. Thank you everyone. 

Alina M. Semo: Welcome back, everyone. We are back from our break and we are now ready to go on to our next agenda item, which is an update from the final report working group. And that working group is Jason Baron, Paul Chalmers, David Cuillier, and Patricia Weth. I believe Jason has agreed to just give a brief update. Jason, over to you please.

Jason R. Baron: Thanks, Alina. Can you hear me?

Alina M. Semo: Loud and clear, thank you.

Jason R. Baron: Okay. Well, it's been a privilege to serve this term on the committee and to be part of this final working group with Paul, with David, with Patricia.

I want to say that the subcommittees this term have produced rather extensive subcommittee reports that I think are worth reading independently of any final report that comes out of this committee. By my tally, they're the three subcommittee reports... Resources, Modernization and Implementation, have produced something on the order of 120 pages of substantive material, counting their reports and their appendices. Now obviously the final report is going to be a more refined and abridged product, but I can assure that the final report will have links to the subcommittee reports that are independently worth checking out because of the recommendations that went forward that have all been approved by the full committee. So consistent with past practice, there will be a final report that's divided into subcategories of topics that the various recommendations fall into.

And with the help of Kirsten, there are a set of these categories that the final working group has put forward and basically inserted recommendations into provisionally as we draft the final report. And those subcategories are: best practices, and there are four of our recommendations for that. Training, there's one on that. Staffing for technology, there are two recommendations. One on public engagement, one on open government, and three that were passed this morning on implementation. That's 16 recommendations.

So we have a schedule and we will be presenting this final report to the full committee and making it publicly available before the next June meeting. I want to say that in addition to just reporting out recommendations, it's my hope, and I think I can speak for other members, that in the final report we want to emphasize or highlight some of the comments that have been made here today by members of the committee as a whole as to where this committee should be going in future terms, assuming it's chartered to do so. And in the subcommittee report, there's been rather extensive material that's really in the nature of observations that stand apart from recommendations. In the Resource Committee report, there's a section on backlogs, which is of paramount importance and does amount to something that needs to be considered when agencies are thinking about implementing recommendations.

What I want to read here from the Implementation Subcommittee report one passage which I think is important. And I think, I would hope, that would be in the final report. I'd like to hear other people comment on it, which is that we have been in the recommendations business for all these terms. And we have this term 16 recommendations that adds to the 51. And so there's 67 now to consider.

The passage that I want to read says this: “Given the reality of these 67 recommendations, the foundational question otherwise left unaddressed in this report, we're talking about the implementation subcommittee report, is whether the FOIA Advisory committee in future terms should continue to be in the business of crafting numerous new recommendations to add to the accumulated corpus of existing ones. At the present rate of crafting on the order of 20 new recommendations per term, by the year 2030, this committee will have produced well over a hundred recommendations for agencies and other government agencies to implement. The prospect of continuing down this path and expecting that interested parties, that is OGIS, OIP, FOIA staff, future members of this committee will be able to continue to reasonably keep track of and absorb this cumulative number of best practice recommendations, is unrealistic.”

And so I would hope that when this committee comes up with its final report... I'll be on the drafting of that, but that we consider strategically what the committee can do beyond simply making recommendations to the world and perhaps engaging not only with the civic community but to a greater extent, but also to the powers that be. Tom mentioned OMB and OIRA, the director of the Office of Information Regulatory Affairs. But why not think big and have another presidential memo go out like President Obama did in his first days of office and afterwards?

So we should be thinking about that. And I would hope that the final report will say something about that as well. In any event, I really appreciate, Alina, the opportunity to give this interim report, and I'm happy to take questions. And I'm sure other members of the final report committee will take and comment as well.

Alina M. Semo: Jason, thanks for that. Thanks for all the hard work you've been putting in. Anyone have any questions or comments? No, not seeing any.

Okay. Anyone have any other comments about today's meeting, anything that we've talked about? Any other thoughts that they wanted to throw in before we wrap up our committee meeting and before we move over to public comments.

Okay. So we have now reached the public comments part of our committee meeting. As always, we look forward to hearing from non-committee participants who have ideas or comments to share, particularly about the topics discussed today. All oral comments are captured in the transcript of the meeting, which we will post as soon as it is available.

Oral comments are also captured in the NARA YouTube recording and are available on the NARA YouTube channel. And as a reminder, public comments are limited to three minutes per person. So at this time, Candice, I would like to turn over to you to open up our telephone lines and please provide instructions to any of our listeners on Webex for how to make a comment via telephone.

Producer: Absolutely. As we begin the public comment period, please click the raise hand icon located at the bottom of your screen to join the queue. You'll be given three minutes to make your remarks. When you hear a tone, your line will be unmuted at which time please state your name and affiliation, then make your comments.

If you're not using Webex audio, you may press pound two on your telephone keypad to join the queue to assist you. There is a timer on the right side of your screen. It'll begin counting down as soon as you start your remarks and you'll hear a five-second warning when your time is up.

Alina M. Semo: Thank you Candice. So do we have any callers waiting to chime in?

Producer: We have one person in queue so far.

Alina M. Semo: Okay. Caller, go ahead please.

Jackson: Hello, this is Jackson. I would've liked to have participated contemporaneously in today's discussion through the YouTube chat where my unfiltered and timestamped comments would be preserved for the thousands who will view the YouTube video of this meeting live and later.

I cannot imagine how hearing and speech impaired citizens may participate at all. I would like to see more participation from FOIA requesters who qualify for that, all other FOIA requester fee category, and more opportunities for meetings devoted specifically to private citizen FOIA requesters.

This committee is doing an awesome job at great investment of your personal time. I hope that most of you will return for the 2024 to 2026 term. I'm confused as to why OGIS has not conducted an Annual Open Meeting to discuss OGIS's 2023 Freedom of Information Act ombudsman report for Fiscal Year 2022, published in June 2023. The Freedom of Information Act 5 USC 552h6 requires this.

I am wondering if I missed that meeting. I have concerns about the dispute resolution figures reported each year, which appear absurdly overstated and do not align with statute. Such an accurate overstatements work against efforts to obtain urgently needed funding for OGIS. If OGIS mediation were properly funded, countless disputes could be resolved without appeal or litigation.

Global unrelated matters may also be resolved through mediation with professionally credentialed mediators having grade levels commensurate with their contacts and responsibilities. I have been reading some things about top-level line item budgets for FOIA and records management for all agencies to elevate the service to our nation that our leaders contemplate, and to hold senior leaders accountable for properly funding FOIA personnel career path development, retention and professional certifications, and for technology enhancements.

I have been reading about an America First Legal FOIA case concerning unauthorized records disposition cases involving the Archivist of the United States and Centers for Disease Control and Prevention Case No. 1:24-cv-1092 in the District Court of Columbia. It is very interesting. It would be great if cases like this one could be resolved through mediation. Once again, this committee is doing an awesome job. Thank you.

Alina M. Semo: Okay, thank you caller Jackson. I do want to say that we did have our annual open meeting last year. It is available on the NARA YouTube channel. It's been recorded. We do plan to have our annual public meeting this year in July, July 24th. We will be announcing that in the Federal Register soon, and that meeting will cover the report of 2024's fiscal year 2023 OGIS events and activities for that fiscal year. Candice, do we have anything, anyone else on the line waiting to be heard?

Producer: There are no further people in queue.

Alina M. Semo: Okay. Please let us know if that changes. And I'm now going to turn over to my colleague Dan Levenson, who's been monitoring chat despite the fact that we have managed no substantive comments. We have one commenter who has been very active in chat and we do want to make sure that we capture that in the transcript to the extent that we can at least in summary form. And I'm going to turn over to Dan to ask whether he could summarize what has occurred.

Dan Levenson: Absolutely, yes. So these are the comments that ended up in chat even they shouldn't have, to Alina's point. So first, the OGIS annual open public meeting will be July 24th of this year if all goes as scheduled. And we have a public comment or we have actually a non-public comment that asks to be able to download the transcript and provide one of this meeting. And I would like to say that we will post the transcript on the website with the meeting materials for this meeting and all the meetings. FACA does not provide a timeframe for when we must post the transcript. It does however, provide a timeframe for when we must post the minutes. All will be posted within 90 days of each public meeting and the transcript we posted hopefully as soon as possible, which we do and will continue to do.

So the commenter asks why members of the public cannot have their questions addressed during the discussion while the subcommittee is reporting or the full committee is deliberating. He requests that... He does not agree with reducing from two to three individuals representing the interests of different constituencies for the change of the bylaws. But I believe we spoke to that earlier about that we weren't reducing it, we were simply reallocating the designated seats.

He requests that the draft agenda, draft briefing slides, and any draft committee recommendations be posted 10 days prior to the public meeting. We of course post them as soon as we can, but they're not finalized 10 days before the public meeting. I know that the subcommittees and the full committee work very, very hard to produce the slides and meeting materials as soon as possible, but that is frequently only finalized several days before the meeting. It does not allow for 10 days beforehand.

He had further comments about the bylaws and he does not agree with the limitation of 25,000 characters for written public comments and wishes that he could circulate his comments in PDF form. He is further unhappy with the bylaw changes and notes that as a public citizen, he would be willing to do further work to promote the activities of this committee and advocate for the FOIA process.

He notes that not allowing YouTube chat is potentially detrimental to people who might want to look at YouTube chat later on. However, not allowing YouTube chat... Having YouTube chat turned off is completely in line with all of NARA's policies regarding the use of chat in social media. Having spoken with our counsel about that as well as our social media team, we determined that it was acceptable.

Finally, he comments that agencies are not exporting all FOIAonline data and he considers that an unauthorized destruction of records, but that is merely his view as he himself notes. And he reiterates that as a private citizen, he can push implementation in part by asking... if there's no response for FOIA, whether he can take action in high priority cases such as FOIA logs, which he says he has sought from agencies and has not gotten. So he volunteers his time and he ends by saying he hopes that all the committee members return for the next term. So those were the comments that ended up erroneously in the Webex chat.

Alina M. Semo: Okay, thank you. Does any committee member have any comment or reaction to any of these public comments? Okay, I don't see anyone jumping up and down or raising their hand. Double checking.

I think we're ready to wrap up our meeting. I want to thank all committee members today for your very hard work throughout this whole term. We are definitely in the home stretch. This is definitely...all the hard work you've been putting in is finally coming to fruition. So it's just nice to see that work product. And we will be circulating a draft of the final report prior to our next meeting on Thursday, June 13th, which will be held virtually.

I want to thank all of you for joining us today. I hope everyone in their families remain safe, healthy, and resilient. And if there are no objections or any questions or comments, we stand adjourned. Thank you, everyone.

Producer: That concludes our conference. Thank you for using Inteller events. You may now disconnect.