Office of Government Information Services (OGIS)

March 5 - Minutes (Certified)

The Freedom of Information Act (FOIA) Advisory Committee convened virtually at 10 a.m. ET on March 5, 2024.

In accordance with the provisions of the Federal Advisory Committee Act (FACA), 5 U.S.C. §§ 1001-1014, the meeting was open to the public from 10 a.m. to 12:58 p.m. and livestreamed on NARA’s YouTube Channel.

Meeting materials are available on the Committee’s website at https://www.archives.gov/ogis/foia-advisory-committee/2022-2024-term/meetings/foiaac-03-05-2024.

Committee members present at the virtual meeting:

Alina M. Semo, Director, Office of Government Information Services (OGIS), National Archives and Records Administration (NARA) (Committee Chairperson)
Jason R. Baron, University of Maryland
Paul Chalmers, Pension Benefit Guaranty Corporation
Carmen A. Collins, U.S. Department of Defense
David Cuillier, University of Florida
Allyson Deitrick, U.S. Department of Commerce
Gorka Garcia-Malene, U.S. Department of Health and Human Services
Lauren Harper, National Security Archive
Michael Heise, U.S. Equal Employment Opportunity Commission
Alexander Howard, Digital Democracy Project
Stefanie Jewett, U.S. Department of Health and Human Services Office of Inspector General
Gbemende Johnson, University of Georgia
Adam Marshall, Reporters Committee for Freedom of the Press
Luke Nichter, Chapman University
Catrina Pavlik-Keenan, U.S. Department of Homeland Security
Thomas Susman, American Bar Association
Bobak Talebian, U.S. Department of Justice, Office of Information Policy
Eira Tansey, Memory Rising
Benjamin Tingo, OPEXUS
Patricia Weth, U.S. Environmental Protection Agency

Others present or participating in the virtual meeting:

William J. Bosanko , Deputy Archivist of the United States, NARA
Kirsten Mitchell, Committee’s Designated Federal Officer, NARA
Charles Melton, public commenter
Robert Hammond, public commenter
Katherin Sibley, public commenter
Frida Qi, public commenter
Webex Event Producers, Intellor

Welcome from Deputy Archivist of the United States

Deputy Archivist William J. Bosanko, noting that he has both filed FOIA requests and, during his career at the National Archives, processed FOIA requests, welcomed everyone to the eighth meeting of the fifth term of the FOIA Advisory Committee. He observed that this meeting falls almost exactly 50 years after the U.S. House of Representatives passed the 1974 amendments to FOIA. President Gerald Ford vetoed the amendment to the FOIA; however, Congress overrode Ford's veto. The significant consensus-building in Congress produced veto-proof legislation. Mr. Bosanko noted that the FOIA Advisory Committee’s work mirrored this process of consensus.

Mr. Bosanko acknowledged that one young Senate staffer who worked on the 1974 FOIA amendments, Tom Susman, is serving his fourth term on this Committee. Mr. Bosanko thanked Mr. Susman for his service, and invited everyone to NARA’s Sunshine Week panel discussion on artificial intelligence and government access on March 14 and mentioned that historical documents would be on display outside the McGowan Theater for viewing.

Welcome and Updates from the Chairperson

Chairperson Alina Semo welcomed attendees to the eighth meeting of the fifth term of the FOIA Advisory Committee.

Ms. Semo reminded attendees that the Committee operates under the Federal Advisory Committee Act (FACA), which requires open access to meetings and operations. She noted housekeeping items: the certified minutes from the December 7, 2023 meeting had been posted online; the slide deck included an updated housekeeping slide; and that Dr. Nichter would have to leave at 12:30 ET.

Ms. Semo welcomed back Designated Federal Officer (DFO) Ms. Mitchell after a four-month detail at the National Archives.

Ms. Mitchell confirmed a quorum, noting full Committee attendance.

Ms. Semo reminded participants to use the raise-hand feature and that no substantive comments should be made in the Webex chat because they would not be recorded in the official record. Committee members should identify themselves each time they speak. Members of the public may submit written comments that will be posted if they meet the public comment posting guidelines. Members of the public will have three minutes each for oral comments.

Ms. Mitchell thanked the alternate DFOs for filling in during her detail and for the logistical work for this meeting.

Ms. Mitchell reminded the Committee members on rules-of-order and protocols. Members must copy the DFO on all emails for record keeping. According to NARA’s General Records Schedule, all Committee and Subcommittee emails are permanent records that should be captured.

Ms. Mitchell also reviewed voting procedures: any member may move for a vote, no second is needed but would be accepted. There are three types of passing votes: unanimous, general consensus with two-thirds of total votes cast, and general majority, with a simple majority.

Ms. Semo announced that today’s meeting would be devoted to hearing reports from the three Subcommittees, and that the order would be: Resources Subcommittee, Implementation Subcommittee, and Modernization Subcommittee. The co-chairs of each Subcommittee would provide updates on their work.

Resources Subcommittee Report

Paul Chalmers and Gbemende Johnson, co-chairs

Dr. Johnson reminded the Committee that part of the Resources Subcommittee's mission is to investigate areas where existing resources can be used more economically, and the Subcommittee would discuss recommendations regarding personnel, staff, and training. Before discussing the draft recommendations, she mentioned a topic that did not become a recommendation: an explicit call for more funding. Dr. Johnson stated that the Subcommittee members are aware that FOIA requires more fiscal support; however, in exploring recommendations about FOIA funding as a line item, they determined it would not be suitable for a recommendation. However, increased funding will be emphasized in the Subcommittee’s final report.

Mr. Chalmers stated that the Resources Subcommittee has written a number of proposed recommendations, three of which have been discussed in prior public meetings. The recommendations are based on surveys and interviews of FOIA officials.

Mr. Chalmers announced that Draft Recommendation R-1 would be discussed last, and he presented Draft Recommendation R-2: “We recommend the Office of Personnel Management (OPM) add the 0306 Government Information Specialist (GIS) job series to the direct hiring authority list.” Mr. Chalmers explained that direct hiring authority allows agencies to avoid the normal, multi-step federal hiring process, noting that attorneys, for example, are hired under direct hiring authority. OPM has the authority to designate direct hiring authority for job series in areas where the government has difficulty in hiring. Most recently, OPM added IT jobs, such as cybersecurity and IT experts to the direct hiring authority. Based on the evidence the Subcommittee gathered, the Government Information Specialist (GIS) job series fits within those parameters. The Subcommittee believes that adding GIS to the direct hire list would help agencies in hiring.

Mr. Garcia-Malene stated that he is aware of applicants at his agency who were fully and even over qualified for positions who did not make it through the normal hiring process resulting in wasted time. He noted that he supports this draft recommendation.

Ms. Pavlik-Keenan echoed Mr. Garcia-Malene's statement noting that she too has lost qualified people, and doesn't always end up with the best qualified person.

Mr. Garcia-Malene added an anecdote. When vacancies open, they're flooded with applicants. In a recent case, it took HR around five months to get through all the initial steps before contacting candidates. When they started contacting applicants after those five months, the most interesting applicants had already found other jobs. He noted that the process can result in a waste of time.

Ms. Collins thanked the Subcommittee for the recommendation. She noted that the recommendation would make it easier to get qualified applicants. Direct hiring authority makes the hiring process much faster than the regular process, which takes a long time. Other opportunities come, and applicants may take other employment. This draft recommendation would be a great advancement for the field.

Mr. Chalmers noted that the Subcommittee discussed Draft Recommendation R-3 with OPM and the Chief FOIA Officers Council.

Dr. Johnson presented Draft Recommendation R-3: “We recommend that the Chief FOIA Officers Council, through its Committee on Cross-Agency Collaboration and Innovation (COCACI), organize agencies to participate in a ‘talent pool’ posting through the Office of Personnel Management (OPM).” She explained that “talent pools” allow agencies to share job postings. They reduce the burden on applicants from having to apply for multiple positions. The recommendation is for COCACI to organize several agencies to participate in OPM’s talent pool posting. In the commentary, the Subcommittee notes that COCACI should track the efficacy of using talent pools.

Mr. Garcia-Malene asked about the mechanics of this approach: if the talent pool would be an ever expanding list of talent or if it would periodically expire and start from scratch.

Dr. Johnson stated that it would depend on the requirements of the positions in each pool.

Mr. Chalmers noted that the “cert” lists of eligible applicants forwarded to hiring managers tend to expire after a certain period of time, and this is a question for OPM.

Dr. Johnson noted that OPM had cited the example of a talent pool for hiring data scientists.

Mr. Chalmers added that OPM requires at least four or five agencies to collaborate in a talent pool.

Mr. Chalmers presented Draft Recommendation R-4: “We recommend that the Chief FOIA Officers Council, through its Committee on Cross-Agency Collaboration and Innovation (COCACI), create and maintain a database on its website of position descriptions in the Government Information Specialist (GIS) job series at various grades.” He noted that it is something COCACI is working on and explained that federal pay structures at most agencies worked on the general scale (GS), which goes up to GS-15. The grade for a position is determined via a classification process that examines a position description which lays out the essential functions and qualifications for the position. HR departments are reluctant to classify new positions at the higher end of the scale: GS-13, GS-14, GS-15. Certain agencies have FOIA positions that max out at a GS-12, while other agencies have FOIA positions at a GS-13 and 14. Talented people often go elsewhere in search of more money/higher graded positions. HR departments at each agency act independently, and OPM does not tell them what GS level to classify each position. This draft recommendation is a tool to help agencies share their position descriptions. This would strengthen a FOIA Office’s argument to its HR department that a position should be classified at the GS-13 level or higher. This recommendation would be a helpful tool, especially in light of COCACI’s other work, Mr. Chalmers noted.

Ms. Weth stated that she liked all the Subcommittee's recommendations. She noted that this recommendation could be helpful in having standardized or model position descriptions as a “one-stop shop” rather than reaching out to friends and colleagues at other agencies on an ad hoc basis to create position descriptions. It would save agencies much time, she said, as well as helping FOIA offices make the argument to the HR department to get a GIS at a higher grade.

Ms. Pavlik-Keenan noted that model position descriptions would also be beneficial to the employees when they compare positions. It should be standardized across the board.

Mr. Garcia-Malene asked if this would in any way hamper FOIA offices: if HR could use the tool to argue for a lower GS level.

Mr. Chalmers answered that those are two separate issues: having the higher-graded position versus if an employee is ready for the higher grade.

Ms. Semo noted that the Subcommittee's draft report had been circulated publicly. Feedback from other Committee members, as well as the public, is welcome. The plan is to vote on the recommendations at the next meeting in April.

Mr. Chalmers presented Draft Recommendation R-5: “We recommend that the General Services Administration (GSA) create a labor category on the GSA schedule specifically for FOIA contractors to facilitate efficient procurement if an agency determines it needs contractor support.” Mr. Chalmers noted that it can take a year to enter into a contracting agreement and that GSA schedules expedite the contracting timeframe. Adding a labor category specifically for FOIA contractors to a GSA schedule would allow agencies to get additional contractor help when needed.

Dr. Johnson stressed that the Subcommittee does not urge agencies to turn to contractor support, but seeks to expedite the process when they need to do so.

Ms. Pavlik-Keenan noted that because of the volume of FOIA requests the Department of Homeland Security receives, she must use contractors. This recommendation would be very helpful in finding contractors who are already specifically familiar with FOIA rather than with general government administration. It would reduce the need for training contractors.

Ms. Deitrick asked if the proposed description for contractors should also include applying redactions.

Mr. Chalmers responded that the Subcommittee could add that.

Ms. Weth noted that her experience was similar to Ms. Pavlik-Keenan's experience. Oftentimes contractors don't know FOIA, and agencies must train the contractors on FOIA. This recommendation would go a long way in helping procure contractors already familiar with the FOIA administrative process.

Dr. Johnson introduced the working group to discuss Draft Recommendation R-1.

Ms. Jewett presented Draft Recommendation R-1: “We recommend that the Department of Justice (DOJ) Office of Information Policy (OIP) issue guidance to all Chief FOIA Officers outlining minimum requirements for training to agency staff, including non-FOIA professionals, outlining the requirements of section (j)(2)(F) of the FOIA which states the Chief FOIA Officer shall offer training to agency staff regarding their responsibilities under the section. Particular suggested guidance should include:

Mandatory annual FOIA training for non-FOIA professionals in the Federal Government; and
Mandatory FOIA training for all new employees, including non-FOIA professionals within 60 days of onboarding.”

Ms. Jewett noted that past terms of the FOIA Advisory Committee have made recommendations on education and training of government employees to ensure compliance with requirements of the FOIA. Past recommendations have used the word “suggest” for annual training. This current recommendation uses stronger language than Recommendation 2020-05, attempting to make such training mandatory. The Subcommittee’s research shows that most agencies do not train non-FOIA professionals on FOIA and the interview responses throughout the government that the Subcommittee obtained have shown there's almost no FOIA training provided to new staff at onboarding. Almost every single agency relies in some part on the DOJ OIP resources to provide the FOIA training for their staff.

She cited the example of the Department of Interior (DOI) having implemented a mandatory biannual FOIA training for all employees, not just their FOIA employees. DOI uses the training that DOJ OIP has already created, which targets FOIA training for FOIA personnel, executives, and all other federal employees who are not FOIA professionals. It is helpful that agencies can upload the OIP training directly into their learning management systems. DOI highlighted that the failure of all employees to understand and properly execute their duties under the FOIA presents significant potential liability for an agency in terms of FOIA litigation. Ms. Jewett reported that DOI decided it was critical to ensure that everyone in the federal workforce -- which includes federal employees, contractors, senior executives, political appointees, volunteers and others who create, receive and use federal records on behalf of their agency -- are well educated about FOIA and their role in administering the statute.

Mr. Heise noted that the Resources Subcommittee had reviewed the Chief FOIA Officer reports from 2023 and 2022, and noticed agencies had a variety of different responses with respect to training of non-FOIA staff, depending on what the question was, and how the question was worded. In 2022, a lot of agencies reported training non-FOIA staff; however, in 2023, the question of training non-FOIA personnel appeared elsewhere in the CFO Report, and the answers were different. It would be helpful if OIP asked the same question the same way every year, without moving it from section to section. Standardizing the phrasing and placement of the question would make the responses more useful.

Mr. Heise noted that all federal employees are required to do records management training and ethics training. Similarly, FOIA training should be mandatory. It is a statute that applies to virtually all administrative agencies. Because every agency is so different, FOIA’s impact and applicability can be different from agency to agency. That’s why the Subcommittee proposes this recommendation: to emphasize the Attorney General’s message that FOIA is everyone’s responsibility. OIP modules already exist and set a baseline for the FOIA training for Senior Executive Service, leadership, and non-FOIA professionals. Mr. Heise noted that it is important to create an understanding across all government employees that they have a role in FOIA.

Ms. Collins stated that this recommendation is a result of the work that was previously done -- a direct result of the previous recommendation. She noted that in her experience fewer new hires know what FOIA is. Since FOIA is everyone’s responsibility it is a problem that people are unaware of FOIA. FOIA professionals seek information from other people when making search requests, because FOIA professionals cannot possibly be the subject matter expert on every topic within an agency. All employees should know what FOIA is before a request comes in. She stated that existing OIP training was incredible: not technical, very direct. Raising awareness of existing resources would be another tool for FOIA programs to really improve response and review time. Ms. Collins noted that FOIA professionals spend time conducting training, which is a beneficial investment and enjoyable for the trainers. However, that time could be spent processing records if the training is done via the computer based systems. This recommendation could really have a very powerful effect on the every day, day-to-day practices within FOIA programs.

Mr. Talebian thanked everyone for their recommendations. He noted that OIP is committed to having quality training available to agencies, both for federal FOIA professionals and non-FOIA professionals. That is why OIP developed learning modules to take the burden of developing training off agencies. Mr. Talebian noted that OIP cannot mandate training to other agencies, especially training for non-FOIA professionals. He explained that mandatory training is established either through statute or OPM regulations. OIP is supportive of the ultimate goal, but it cannot be accomplished through OIP guidance.

Ms. Collins noted that the Subcommittee would like to figure out which individual or agency would have authority to implement this recommendation and asked what agency would be responsible to introduce the idea of training for FOIA.

Mr. Talebian offered to look into the question. He reiterated that the recommendation for OIP to issue guidance making FOIA training mandatory goes much further than what OIP is authorized to do. OIP has issued guidance on training, added best practice workshops on training, and shared best practices. OIP could issue additional guidance to Chief FOIA Officers on fulfilling their statutory obligation to provide training, but a government-wide mandate on FOIA training for all non-FOIA personnel is outside of OIP’s authority.

Ms. Collins noted that his answer bolstered this recommendation and that he and OIP have been great at providing the Subcommittee visibility into the tools and resources for FOIA professionals. She summarized that OIP has created good FOIA courses. However, the courses are optional, and it’s possible that certain agencies aren’t aware of OIP’s tools. OIP even does the technical work to make it easy for agencies to upload training into their individual learning management systems. The Subcommittee wanted to make FOIA training mandatory.

Mr. Talebian stated that OIP can look at other avenues to make sure agencies were aware of the training. He noted that at the launch of the learning modules the Associate Attorney General sent a letter to all department and agency general counsels and Chief FOIA Officers emphasizing the importance of training and pointing them to these resources. There has already been a lot of work into this. He noted that while there are many things OIP can do, the phrasing of the recommendation is a little bit problematic.

Ms. Jewett noted that the Subcommittee considered OIP’s statutory limitations. She emphasized that the recommendation was for DOJ OIP to outline the minimum requirements to CFOs from FOIA’s requirement that CFOs “offer training to agency staff regarding their [FOIA]responsibilities,” (5 USC § 552(j)(2)(F)) and the language of the recommendation does not have any phrasing about mandatory training. The phrase “mandatory training” was in the Subcommittee's draft commentary.

Mr. Talebian noted that framed that way, the recommendation is reasonable and that OIP can definitely write guidance on minimum training requirements to Chief FOIA Officers.

Mr. Susman stated he is a fan of training. However, he questioned mandating annual training for everyone. He noted that taking training annually could be a heavy burden and that certain federal employees, such as forest rangers, may not create many records.

Ms. Jewett agreed with Mr. Susman’s comment, and noted that the recommendation was very ambitious with the “could include” language at the end. The subcommittee’s survey found that a majority in the FOIA community wanted training to be mandatory to increase the visibility of FOIA. When a FOIA office asks other employees to search for responsive records, it’s helpful if the other employees know the FOIA Office is working on very tight time frames: 20 working days. Also, even employees who don’t even deal with paper are likely to have a cell phone and text messages. FOIA professionals have been consistent that all federal employees should know what FOIA is, and have some knowledge on why federal employees have to provide their records, their obligations under the FOIA. That way a FOIA request would not be the first time they learn about their obligations.

Mr. Baron stated he liked the recommendation if it included the caveat that Mr. Talebian added. This recommendation is in the spirit of the Implementation Subcommittee’s work because it points to prior recommendations. He emphasized that it is the phrasing of recommendation itself that is most important, not the commentary supporting the recommendation. The draft recommendation needed some rephrasing, he said.

Mr. Heise stated that they could rephrase the recommendation. The FOIA statute applies to all government employees and the training modules are not a significant time-commitment. Even a forest ranger has a lot of technology, which may create records. The recommendation is targeted to a hypothetical FOIA professional and a hypothetical agency, so it doesn’t feel that it is fighting a war on two fronts: having to deal with a queue of requests where the clock is ticking but also FOIA training on-the-fly to employees. Annual training is important, because repetition is key. Such training could be targeted to employees that an agency considers most likely to be custodians of records that would be subject to FOIA request. It would be interesting to train non-FOIA professionals on what the substantial harm analysis is. Because FOIA offices are not subject matter experts (SMEs), there is value in being able to have a conversation with the SME in a language both sides can speak. The SME should know that “substantial harm analysis” does not mean “it doesn't go out because I didn't want it to go out.”

Mr. Howard thanked the subcommittee for sharing the recommendations, noting they reflect deep research. He asked if it would make sense for the Subcommittee to ask for more investment.

Ms. Jewett noted that direct investment wasn’t something that came up with FOIA officers. They have a lack of resources. They thought if there’s training across the board it would make it easier for them to get the documents and process FOIAs quicker. FOIA needs to be made a priority. What would really help is for everyone across the government to know their FOIA obligations, and that the FOIA officer, the Government Information Specialist, or the attorney cannot do everything. And to get some type of minimum requirement for everyone across government to understand, so when a FOIA office comes to them it is not the first time they’re hearing the letters F-O-I-A. Everyone in interviews asked over and over for there to be some type of training, so they don’t have to keep doing that over and over.

Dr. Cuillier noted several studies: one that looked at 10 states that have training of all public employees on records access laws, including four that were mandatory. The research indicates that it makes things better in those states. Two other studies looked at mandatory training abroad: one in Chile that found mandatory training led to more proactive posting online of information, and another in Brazil, where training lotteries that selected agencies randomly and conducted mandatory training did much better in complying with the law. Dr. Cuillier noted that those studies could help the Subcommittee with the final wording of the recommendations.

Dr. Johnson expressed support for the recommendation, especially the mandatory part, stressing it might be even more imperative in post-COVID because there are now more remote positions. Remote positions have many advantages, but may impede employees learning from each other in the same way as they would in the office.

Ms. Pavlik-Keenan noted that she had created DHS boot camp for training. One of the areas where there has been significant return on investment is with the new political appointees and new senior leadership. When they are hired, they get training about FOIA. It is beneficial when the FOIA office has to ask them for records. DOJ guidance would be helpful if a new administration comes in, so new appointees can receive the training when they first start. DHS receives 50 percent of all federal FOIA requests and does a lot of training. People who have a better understanding of the FOIA process work quicker and easier, because they know what it is they are doing. FOIA jobs can burn out processors, and having training helps rejuvenate employees. It is important for the well-being of the FOIA professionals to have these training opportunities.

Ms. Semo noted that the white paper is posted on the website for everyone to review before the next meeting. She announced a 10-minute break until 11:50 a.m.

Ms. Semo welcomed everyone back from break. She noted that the order of subcommittees would deviate from what had been planned: that Modernization would present first followed by Implementation. She introduced Mr. Baron.

Modernization Subcommittee Report

Jason R. Baron and Gorka Garcia-Malene, co-chairs

Mr. Baron thanked Mr. Garcia-Malene and all members of the Subcommittee for their work. He reminded everyone that the full Committee approved a recommendation last year about FOIA Exemption 5 privileges (Recommendation 2023-01).

Mr. Baron presented Draft Recommendation M-1: “We recommend that OIP issue guidance to federal agencies stating that agencies should proactively offer requesters the opportunity to discuss their request with an agency representative.”

Mr. Baron noted that OIP does a great job issuing guidance. This recommendation seeks to make a modest change. It recognizes that increasing backlogs are having a negative impact on conversations with requesters about the substance of their request. He stated that many FOIA requesters file requests that are not as clear as they could be, so this recommendation calls for an early heads-up to requesters, explicitly informing them of the possibility and benefit of discussing their FOIA request with an agency representative. He noted that not all requesters would take up the invitation to this discussion and that it would be very helpful to a small set of requesters to have an early dialogue with the agency. The Subcommittee doesn’t believe this will be a significant burden.

Mr. Chalmers noted his agency already tries to do this, it is a helpful process, and he likes this recommendation.

Mr. Garcia-Malene noted that he supported the recommendation and stated he had spoken with several requesters that explicitly told him they didn’t know how to phrase the request. Those requesters had filed a very broad request, hoping to get some interaction with the agency, and the interaction has proven very successful with most requesters.

Mr. Heise echoed his support for the recommendation. He noted that the word “should” is important. He observed that his office already does this for appropriate cases and finds it helpful; however, the vast majority of requests at the Equal Employment Opportunity Commission are for a specific, standardized type of record where there is no ambiguity. The word “should” allows agencies to skip this process when a request is clear.

Mr. Baron presented Draft Recommendation M-2: “We recommend OIP issue guidance to federal agencies encouraging the option of providing requesters an interim response, consisting of a small sample of documents found as a result of searches conducted and subsequently reviewed for partial or full withholding.”

Mr. Baron noted that the volume of records and complexity of some requests drove this recommendation. Giving requesters an option of looking at a sample of processed records may obviate processing the remainder of the request.

Mr. Baron observed that based on his experience as a frequent FOIA requester, those agencies that engaged in this have been very successful in giving him an understanding of how the agency will redact, and he stopped the process after receiving a sample. That may not happen in every case, but the agency needs to work with the requester, which will reduce the burden in very large, complex productions. The commentary in the Subcommittee’s draft report shows how this recommendation could be implemented and makes clear that FOIA processors can use FOIA’s tolling provision. Also, if an agency doesn’t hear back from a requester, the agency has the opportunity to close the request. Nothing in this protocol is designed to have FOIA staff engage in an active, iterative, or on-going process. It is a single sample and an initial dialogue that tries to set the parameters of the request. It would be very helpful in complex requests, to reduce the overall burden.

Ms. Harper noted that she supported this recommendation. The National Security Archive routinely asks for documents to be released on a rolling basis with the same result as the draft recommendation seeks. Expanding this practice would be enormously helpful, she said.

Mr. Heise noted that the commentary provides agencies with a potential work-flow. The goal from the agency perspective is to ensure that the finite resources can be used as efficiently as possible. When the processor has a very large volume of potentially responsive records, the requester may agree to a sample. Having received the sample, the requester may not need additional records. The benefits are that the agency can process the next request and the requester does not have to wait until the agency processes the full response.

Mr. Talebian noted that OIP guidance already addresses interim responses. He asked to meet with the Subcommittee before the next Committee meeting to discuss any gap they believe exists in OIP’s guidance and refine the recommendation.

Mr. Baron noted that the specific point here is to spell out the expectation and protocol for agencies to release a sample.

Mr. Talebian noted he supports the concept of this recommendation and that a discussion would be helpful.

Dr. Nichter noted that some agencies do a great job already, but there are examples of agencies that need improvement in communication with requesters.

Ms. Harper noted that having a sample would be helpful to requesters in understanding how to narrow the scope of the request.

Mr. Garcia-Malene presented Draft Recommendation M-3: “We recommend that Federal agencies expand public engagement activities focused on improving all aspects of their FOIA process.”

He noted that DOJ policy acknowledged the importance of requester engagement through the FOIA Self-Assessment Tool Kit, which emphasizes facilitating open communication and feedback. Many agencies already undertake engagement activities; the 2023 Chief FOIA Officer summary reports referenced several examples. The recommendation seeks to prompt agencies to consider, for example, asking requesters if they were satisfied with the FOIA process and with the responses they received. The commentary contains suggestions for engagement: agencies could develop frequently asked questions on their website, adopt new channels of communication to educate requesters on how they process FOIA requests, or periodically reach out to the requester community and civil society organizations to have a conversation about the agency’s FOIA process. Any additional work agencies do to enhance public engagements will not only fulfill the DOJ’s benchmarks for a healthy FOIA program but also advance the FOIA’s goals of providing greater government accountability and transparency.

Ms. Semo confirmed the draft report is posted on the website and encouraged people to read it.

Dr. Johnson asked about incarcerated requesters and if there were mechanisms to enhance engagement with incarcerated requesters.

Ms. Pavlik-Keenan noted that DHS has incarcerated individuals who request records, and it has been difficult for the DHS FOIA Office to engage with them. There is an issue that people who are incarcerated get moved between facilities and the FOIA office can have a hard time tracking those requesters down.

Mr. Howard stated the Committee should suggest to improve the interaction between the requester community and federal government through FOIA.gov and enhancements to the portal.

Mr. Howard presented Draft Recommendation M-4 “We recommend that the Archivist propose to OMB, OIP, and other agency participants taking a leading role in future U.S. National Action Plans for Open Government that they include new and continuing commitments to improving FOIA administration.”

He noted that this Committee is a fulfilled commitment from the second U.S. Open Government National Action Plan. There have been improvements to FOIA over time; however, there’s an opportunity to use transparency and accountability to strengthen the government.

Mr. Baron presented Draft Recommendation M-5: “We recommend that the Chief FOIA Officers Council Technology Committee and interested agencies publish requests for information (RFIs) on the subject of artificial intelligence (AI) tools and techniques as an aid to FOIA processing.”

He noted that there have already been several forums on AI in FOIA, including a presentation to this Committee from Eric Stein, Deputy Assistant Secretary of the Office of Global Administration Services at the Department of State. Machine learning methods are used for discovery in litigation, and there is a major opportunity for federal agencies to use it in FOIA processing. This recommendation is similar to prior recommendations from 2020 about greater use of discovery tools and further AI research.

Mr. Baron announced the Subcommittee would propose a vote on Draft Recommendation M-6 and handed the floor to Mr. Marshall.

Mr. Marshall presented the proposed recommendation on determination letters: “The Department of Justice (DOJ) Office of Information Policy (OIP) should issue a draft model determination letter written and endorsed by the FOIA Advisory Committee as a best practice reference for agencies.” He explained that a determination letter is the substantive response from the agency about a request. It is an important part of the FOIA process, but there's very little standardization across agencies. The draft recommendation seeks more standardization, as well as revisions to address changing legal requirements and best practices. The model letter is the result of significant discussion and input from government and public stakeholders. It will be attached as appendix A to the Subcommittee report.

Mr. Baron thanked Mr. Talebian for his participation in reaching a consensus on the Subcommittee.

Mr. Talebian noted that he would abstain on the vote, but that he supports the draft recommendation.

Action Item: Ms. Deitrick moved to vote on Draft Recommendation M-6. Ms. Pavlik-Keenan seconded the motion. The motion carried by a unanimous vote of 18-0 with Mr. Talebian abstaining and Dr. Nichter absent.

Mr. Baron noted that the Subcommittee would work on the draft recommendations and the Subcommittee report before the next meeting. He thanked Mr. Howard and Dr. Nichter for their work on AI in FOIA.

Implementation Subcommittee Report

David Cuillier and Michael Heise, co-chairs

Ms. Semo noted that Ms. Pavlik-Keenan had stepped back as co-chair of the Implementation Subcommittee and Mr. Heise would take over for the remainder of the term. Ms. Semo thanked Ms. Pavlik-Keenan for her work and handed the floor to Implementation.

Dr. Cuillier thanked Mr. Baron for all the work he’s put into the Subcommittee’s draft report. He noted that the Subcommittee has two draft recommendations so far. The first one is to recommend that OGIS and OIP follow up to raise awareness on some of the recommendations that have been approved in the past terms. The Subcommittee is putting work-to-be-done in buckets and may rate the importance of each recommendation to aid in prioritization. This recommendation will be presented at the April meeting. Dr. Cuillier presented the second recommendation that progress on implementation of particular recommendations be included in the CFO Reports. It may be additional work for the CFOs, but it would be helpful to track over the long term.

Mr. Talebian noted that the language of the first recommendation should avoid the word “compliance,” instead using a phrase such as “efforts to implement.” Such avoidance would make it consistent with the second recommendation and avoid the implication that the recommendations were a requirement.

Ms. Semo called for additional questions or comments, hearing none she opened the public comments part of the meeting.

Public Comments

Ms. Semo invited comments from non-committee members or participants who have ideas to share about the topics. She noted that all oral comments would be captured in the minutes and transcript, which would be posted on the OGIS website, as well as on the National Archives YouTube recording of the meeting. Public comments would be limited to three minutes per person. Before the phone line opened, Ms. Mitchell read outloud questions and comments that errantly came via the Webex chat during the course of the meeting (despite admonition by Ms. Semo that no substantive comments should be placed in the Webex chat).

Ms. Mitchell noted that Mr Hammond had made several comments in Webex chat, which she briefly summarized. Mr. Hammond disliked that the chat comments on NARA YouTube are turned off; he was interested in the Resource Subcommittee’s hiring recommendation and suggested that MITRE — a not-for-profit corporation that operates federally funded research and development on behalf of U.S. government sponsors — be involved in recommendations. He affirmed that FOIA begins with good records management.

Ms. Mitchell pointed everyone to the FOIA Advisory Committee Recommendations Dashboard, specifically Recommendation No. 2020-04, which linked to the three e-learning FOIA training modules that the Department of Justice put together.

The event producer noted that each individual would be limited to three minutes for oral public comments and opened the phone line.

Mr. Melton introduced himself as working at the National Geospatial Intelligence Agency. He commented that mandatory FOIA training would be very important within the Intelligence Community (IC). The IC’s mission is mainly to keep things from the public, so it would be helpful to educate IC analysts on their obligations under FOIA. The FOIA offices in the IC encounter delays when asking analysts to conduct searches because analysts are trained to not release or share information even internally. If they have education that a FOIA Office has a need-to-know beforehand, it is much easier to conduct the search and faster to process those records according to FOIA policies. It is very important to educate the Intelligence Community on the FOIA process.

Mr. Hammond noted he has provided written comments, and that he would offer oral comments on various issues. Mr. Hammond stated that an agency employee involved in a messy FOIA litigation may seek immediate individual DOJ legal representation, in a closed case before the plaintiff’s petition. He noted that NARA has an unauthorized disposition unit to address unlawful removal, destruction or alteration of records. When an agency claims it does not have records it is required to have, you may submit a complaint to NARA. He would like NARA to evaluate disclosures of complaints. He noted DOJ’s Sunshine Awards, and he hoped to resolve issues amicably with DOD and other agencies.

Ms. Sibley introduced herself as serving on the Society for Historians of American Foreign Relations (SHAFR) Committee on Historical Documentation. She asked about FOIA’s expedited processing provision and processing delays at presidential libraries. In response to a FOIA request, a presidential library had initially estimated it would take 20 years. After limiting her request, the estimate was reduced to three years. That is not a feasible time frame for the book Ms. Sibley intends to publish. She asked if anybody had any comment.

Ms. Harper noted that her organization, the National Security Archive, often makes requests to presidential libraries and invited Ms. Sibley to reach out for tips and tricks.

Ms. Qi asked if the Committee recommended the use of generative AI in processing FOIA.

Mr. Baron answered that there have been ongoing Subcommittee discussions on the emerging trend of generative AI and how they can aid FOIA review. The Subcommittee is discussing the question of transparency, in light of this administration's Executive Order on AI, to make sure the public understands the AI processes agencies use for FOIA. The subcommittee report may include a discussion about that topic.

Closing Remarks and Adjournment

Ms. Semo thanked all the Committee members for their work. She reminded attendees that there would be three meetings coming up back-to-back: April 4, May 9, and June 13, and that all remaining meetings this term would be virtual. The possibility of certain meetings for the next term — should there be a next term — being in-person/hybrid will be re-evaluated.

Mr. Talebian stated that the Department of Justice’s Sunshine Week observation will include an event on March 11, 2024, in the Great Hall in the Department of Justice building at 10:00 a.m. The event will also be live streamed and will feature keynote remarks from the Acting Associate Attorney General, and recognizing FOIA professionals with Sunshine Week awards.

Ms. Semo noted that Dr. Cuillier posted a link to the Sunshine Week website, https://sunshineweek.org. Dr. Cuillier noted that the Brechner Center for Freedom of Information at the University of Florida now coordinates Sunshine Week and that there would be dozens of events around the country. The Center continues to post content including editorial cartoons and a Washington Post graphic that clearly demonstrates how to submit a FOIA request.

Ms. Semo asked if anyone had additional Sunshine Week announcements or other questions.

Dr. Johnson asked about getting the December 1, 2023, Office of Personnel Management Memo to Federal Human Resources Directors posed on the OGIS website.

Ms. Mitchell noted that the memo was already posted.

Ms. Semo adjourned the meeting at 12:58 p.m. ET.

I certify that, to the best of my knowledge, the foregoing minutes are accurate and complete on March 27, 2024.

/s/ Kirsten B. Mitchell

Kirsten B. Mitchell

Designated Federal Officer,

2022-2024 Term

/s/ Alina M. Semo

Alina M. Semo

Chairperson,

2022-2024 Term

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