Office of Government Information Services (OGIS)

January 19, 2016 Meeting Transcript

National Archives and Records Administration (NARA)
Freedom of Information Act (FOIA) Advisory Committee Meeting

Committee members present in the Archivist’s Reception Room:

Dr. James V. M. L. Holzer, Chair, Office of Government Information Services (OGIS), National Archives and Records Administration (NARA)
Delores Barber, U. S. Department of Homeland Security (DHS)
Andrew Becker, The Center for Investigative Reporting
Larry Gottesman, Environmental Protection Agency (EPA)
James "Jim" Hogan, U. S. Department of Defense (DOD)
Nate Jones, National Security Archive
Martin Michalosky, Consumer Financial Protection Bureau (CFPB)
Sean Moulton, Project On Government Oversight (POGO)
David Pritzker, Administrative Conference of the United States (ACUS)
Melanie A. Pustay, Department of Justice (DOJ)
Ramona Branch Oliver, Department of Labor (DOL)
Lee White, National Coalition for History (NCH)
Mark S. Zaid:, Law Office of Mark S. Zaid, P. C.

Committee Members on the Phone

Dave Bahr, Bahr Law Offices, P. C.
Anne Weismann, Campaign for Accountability

Committee members absent from the meeting:

Brentin V. Evitt, Defense Intelligence Agency (DIA)
Karen Finnegan, Department of State
Eric Gillespie, Govini
Clay Johnson, Department of Better Technology
Maggie Mulvihill, Boston University

Others present at or participating in the meeting included:

David S. Ferriero, Archivist of the United States, NARA
Amy Bennett, OGIS, NARA
Christa Lemelin, OGIS, NARA
Alina Semo, Office of General Counsel, NARA

HOLZER: Christa, do we have people on the phone?

LEMELIN: (inaudible) on the phone.

FERRIERO: OK. (inaudible). So good morning.

FEMALE: Good morning.

MALE: Good morning.

FERRIERO: And welcome to our first meeting of 2016, Happy New Year. This is a very special year for FOIA, so let me be the first to wish you all a Happy Birthday. It's our 50th birthday. Lyndon Johnson signed the bill into law on the 4th of July in 1966. So, you can be sure that there'll be several more opportunities throughout the year to recognize and celebrate in the coming months, most of that action taking place during Sunshine Week.

OGIS is planning a special event during Sunshine Week here in the McGowan Theater on the 14th of [00:01:00] March, and more details will come. So 2016 is already shaping up to be a notable year for FOIA. In the last few weeks, reports from OGIS and from agency inspector-generals, inspectors-general, and from our own Oversight Committee of the House, point to areas for improvement. These reports shine new light on the importance of FOIA, and the need for the attention that you are devoting to improving the administration of FOIA across the government.

Clearly, your work is not done, I am, in fact, extending the charter of this Committee for another two years. I understand that the subcommittees are continuing their work on their recommendations, and I know I speak for all of us in the FOIA community in saying that we look forward to seeing the results of your work. I also want to acknowledge the work of the OGIS Compliance and Mediation teams.

I am extremely proud of the hard work that they do every day [00:02:00] to get FOIA right. Finally, I want to take a moment to thank Delores Barber for her service to the Committee. As some of you may be aware, Delores recently accepted a position as Director of Information Technology and Human Resource Management at the EPA Office of Pesticides Programs. And I have a letter for you. On behalf of the National Archives and Records Administration, I thank you for your invaluable contributions to NARA's Federal Freedom of Information Act Advisory Committee. As an inaugural member of the Committee, you are especially -- we are especially appreciative of your investment of time and expertise to help launch the group. Your service on the Oversight and Accountability [sub]Committee and your participation in discussions of the full Advisory Committee have provided insight for the improvement of FOIA throughout the Executive Branch. Thank you for sharing your expertise with the Committee, and the public. Committee members [00:03:00] from both inside and outside government, along with NARA, share your belief in the importance of technology in promoting access to Federal records and enhancing the productivity and accuracy of the professionals who work to make Federal records publicly available. We greatly appreciate the FOIA expertise, information technology expertise, strategic thinking, and leadership you've brought to the Committee. On behalf of NARA, thank you again for your service to the Committee, and best of luck in your new position at the EPA. (applause) (inaudible).

HOLZER: All right, thank you, sir.

FERRIERO: Have a good meeting.

HOLZER: Good morning. Looks like we have a lot of folks out with the cold.

(laughter) [00:04:00]

So, I'm James Holzer, I'm the Director of the Office of Government Information Services here at the National Archives and Records Administration, and the chair of this Committee. Thank you for joining us today, and for the first FOIA Advisory Committee meeting of 2016. I would like to begin by offering my thanks to the National Archives for serving as a home to the FOIA Advisory Committee since its establishment in May 2014. I also want to thank the Archivist of the United States for extending the Committee's charter for another two years, and reaffirming the Administration's and the agency's commitment to open government.

This Committee brings together government and non-government FOIA experts with vast and diverse experience to advise on and make recommendations to improve FOIA administration throughout the Executive Branch. The Committee also provides a forum for public discussion of FOIA issues and offers members of the public [00:05:00] the opportunity to weigh in on the administration of FOIA, and their ideas for improving the FOIA process.

We encourage the public to share their comments and suggestions for the Committee in writing. To learn more about submitting comments for the Committee, please visit our website at www.ogis.achives.gov. As a reminder, information about the Committee, including members' biographies, Committee documents, and public comments, are available on the OGIS website. The Advisory Committee videos that we post on YouTube need to comply with the Americans with Disabilities Act of 1990 and the amendment to the Rehabilitation Act of 1973. So before we post a video to YouTube, we must have the meeting transcribed, review the transcript for accuracy, and provide video and transcript to NARA's social media team.

As we are videotaping this meeting, we will make the video, transcript, and meeting material available on the Committee's webpage as soon as possible. [00:06:00] We expect to have all of this material available on our website within 30 days. Thank you in advance for your patience and understanding.

So, as you heard from the Archivist, this will be Delores Barber's last meeting as a Committee member. As already mentioned, Delores accepted a position as the director of information technology and human resources at the EPA. So, as Delores' new position is a non-FOIA position, Delores will be stepping down from the Committee. Again, Delores, I congratulate you on this opportunity, and the EPA will definitely benefit from your leadership and IT experience. Please join me again in congratulating Delores, and thanking her for her service to the Committee.

(applause)

OK, so next we would like to spend a few minutes introducing the Committee members who are around the table and on the telephone. [00:07:00] We do have some Committee members that are unable to join us today, due to previous commitments. We will look forward to seeing them at our next meeting in April. So please, during the course of this meeting, for the record, identify yourself by name and affiliation when you speak. We will begin with the members we expect to have on the telephone. I'll ask each of you to introduce yourself, and remind the group of your profession and affiliation. David Bahr.

BAHR: Good morning. Yes. I am an attorney of 25 years, 26 years. I represent the requester community, generally, in cases all across the country.

HOLZER: Great, thank you. Bret Evitt? OK. Karen Finnegan? Ann Weissman?

MALE: (inaudible)

WEISSMAN: Good morning. I'm Ann Weissman, I'm the Executive Director of the Campaign for Accountability. [00:08:00]

HOLZER: Thank you, Ann wonderful to hear your voice.

WEISSMAN: Yeah, it's great to be back, thanks.

HOLZER: Is there anyone else on the phone that I missed? OK. And now, let's hear from those of you in the room, starting with the end of the table at my left. Please introduce yourself to remind the group about your profession.

PRITZKER: I'm David Pritzker, I'm the Deputy General Counsel of the Administrative Conference of the United States, a Federal agency.

ZAID: Mark Zaid, I'm an attorney here in the District and the Executive Director of the James Madison Project.

GOTTESMAN: Larry Gottesman, I'm with the EPA, I'm the Chief of the FOIA (inaudible).

JONES: Nate Jones, Director of the FOIA program at the National Security Archive. (inaudible).

HOGAN: Jim Hogan, chief of DOD FOIA policy, and director for oversight and compliance, Department of Defense.

PUSTAY: Melanie Pustay, Director of Office of Information Policy at [00:09:00] DOJ.

BARBER: Delores Barber, Deputy Chief FOIA Officer, DHS.

MOULTON: Sean Moulton, Open Government Program Manager at the Project on Government Oversight.

OLIVER: Ramona Branch Oliver, Director of the Office of Information Services, within the Office of the Solicitor, at the U. S. Department of Labor.

BECKER: Andrew Becker, journalist with the Center for Investigative Reporting in the San Francisco Bay area.

WHITE: Lee White, Executive Director of the National Coalition for History.

MICHALOSKY: Martin Michalosky, the Deputy Chief Administrative Officer for the Consumer Financial Protection Bureau.

LEMELIN: I'm Christa Lemelin. I am the Designated Federal Officer for this Committee.

HOLZER: Thank you. OK, so before we dive in, I want to review our general agenda. Cover some basic expectations for our meeting, and provide you with information concerning the renewal of the Committee's charter.

So, under the terms of our [00:10:00] charter, our last meeting for the end of this Committee is scheduled for Tuesday, April 19th, 2016. Once the Archivist has formally approved and signed the charter for renewal, as required by the GSA final rule for Federal Advisory Committees, we will publish a notice of renewal in the Federal Register, announcing the Committee's renewal.

As those of you serving on the Committee are aware, the Archivist appointed each one of you to serve a two-year term. For those of you who have been Committee members since the Committee's establishment, your appointment expires on May 20th, 2016. So, in April we will publish notices in the Federal Register, and on the OGIS blog, to solicit and accept nominations for Committee membership.

Anyone wishing to serve on the Committee, including any current members who wish to serve a second term, may nominate him or herself. We will ask each nominee to provide [00:11:00] a resume, or a CV, and a brief personal statement describing the contributions the nominee would make to the Committee. Potential nominees will be responsible for complying with any procedures, and/or receiving necessary approvals from their agencies or organization prior to submitting their name and information for consideration.

The Committee's charter, bylaws, and membership [balance] plan, all of which are available on our website, spell out the qualifications for membership. The Archivist of the United States will make the final selection of the members he appoints to serve on the Committee, and will make his decision based on these requirements, and the potential members' backgrounds and qualifications.

So, I'm going to stop right there. Does anyone have any questions specifically about the renewal of the charter? This was one issue that you guys had asked me to raise with the Archivist, which I did. And we have an answer. Are there any questions about the next steps with that process? [00:12:00] No? Seems pretty easy. So most of the work is going to be -- I don't want to say it seems pretty easy, but most of the work is going to be handled by my office, and by Christa specifically, as we renew the charter, and start putting out these notices.

If you do want to continue to serve, I would encourage each one of you to apply, put your nomination forward, OK? With your resume. And then how you expect to continue to contribute to the Committee. All right? OK. So as a reminder, the DFO, Christa, must attend any subcommittee meetings or teleconferences you plan to have before our next meeting in April. For record-keeping purposes, members should copy her on all communications concerning Committee and subcommittee activities.

To promote openness, transparency, and public engagement, we post Committee updates and information to our website at www.ogis.archives.gov. We also blog about it at FOIA. Blogs. Archives. gov. [00:13:00] And also, on our Twitter account, @FOIA_ombuds. So please, to stay up to date on the latest OGIS and FOIA Advisory Committee news, activities, and events, follow us on Twitter. We are pleased to see so many of you with an interest in FOIA here in the Archivist's reception room. And we welcome your feedback.

We will take one 15 minute break halfway through this meeting, at approximately 11:30, and during the break, you may wish to purchase food or drink from the Charter's Café, which is located two levels down, on the ground floor, which is also where the restrooms are located. At the end of the meeting, we have set aside time for public comment. We look forward to hearing from any non-Committee members who wish to comment at that time. We also welcome anyone to submit written comments to the Committee at any time. So, with all of the administrative matters discussed, I would like to turn our attention to the approval [00:14:00] of our October 20th meeting minutes. The Committee members have had a chance to review a copy of the October 20th meeting minutes. Are there any corrections to the minutes? OK, if there are no corrections, I will entertain a motion to approve the minutes. Do I have a motion?

MALE: So moved.

HOLZER: Thank you. A second?

MALE: Second.

HOLZER: OK, thank you. Do -- all in favor?

GROUP: Aye.

FEMALE: Aye.

MALE: Aye.

HOLZER: Right. The minutes will be approved. We will now spend the majority of today's meeting hearing status reports from our subcommittees. We will spend 30 minutes on each report, including where the subcommittee's work stands, and any recommendations for the full Committee's consideration, and any discussion the Committee wishes to have regarding each subcommittee's update and work products. We want to ensure we have a clear path forward for the coming months as we adopt [00:15:00] any reports by the full Committee and those issues that we may identify for a continuance for the new Advisory Committee. Let's hear from the Fees Subcommittee, Nate Jones and Jim Hogan, who are the co-chairs of that subcommittee. I will ask them to report on their subcommittee activity and recommendations.

HOGAN: Thank you, Dr. Holzer. This is Jim Hogan, Department of Defense. We decided in this subcommittee, after reviewing the data that we received, the comments from government professionals processing the FOIA, that there still seems to be some confusion out there, even though the assessing of fees and fee waivers, and fee determination categories is a very subjective call. And I believe it's very difficult to make it as subjective as possible. However, we believe there's some confusion that could possibly be [00:16:00] rectified and improved if the Office of Management Budget, OMB, revised its FOIA fees [guidance] that it published back in, what was it, 1987, which is, we're going on 30 years, 29 years now.

There have been a lot of changes to, I'm going to say to the world, not quite the best way to put it, but a lot of times, fee waiver determinations and also, fee category determinations are made based upon the requester. What can they do with the information? How do they get it out there? And when Congress initially backed -- when it put fee provisions into the FOIA, and OMB 29 years ago, it did not envision the type of environment we have today, whereas, you know, the -- your typical news media outlets that you had 30 years ago, [00:17:00] even 20 years ago, 10 years ago, still exist, but there are so many other ways to disseminate information that it may be a bit more difficult for a FOIA officer to make an objective call on this. So, we know that there is, you know, some Congressional intent, I think different now than it was 30 or 40 years ago, on who would qualify, what we call the favored media, favored fee category, members of the news media. So, we like -- we proposed a draft memo, coming from the Chair of the Committee, to the Archivist, and so that -- to tell the Archivist, this is our position, we recommend a memo, you know, from the Archivist to -- or whatever format, a memo or letter, whatever format (inaudible) to the Director of OMB, asking for them to review and revise, update the rules.

Also, things have just changed [00:18:00] so much in the past 30 years, the environment, there's been a lot of case law, very significant case law, especially recently, on this, that should change the way FOIA officers look at it. It's a difficult problem because it creates adversity between FOIA requesters and FOIA officers. It's an administrative burden, adjudicating terminations. But also, there's a perception of FOIA officers out there, we can see from the data we have in the poll, that it could be the case that, and this is a perception, whether it's valid or not, that the requesters could be asking for more and more stuff. And that's a concern they have. Whether it's something that really would happen, it's hard to say. But it's a concern about them, because it is true that agencies are handling greater volumes, maybe not greater numbers of requests, but greater volumes of responsive documents. [00:19:00]

And so, those are some of the tension that is in the FOIA right now, that sort of bring -- comes to a head in the fee issues. So, we don’t think, you know, even though it would be guidelines, it may not necessarily solve the whole thing. It won't. And we can't predict what the next 30 years is going to happen, any more than 30 years ago we could predict what would happen in the past 30 years. However, we'd like to at least, you know, have some kind of guidelines to get us up to date with what's going on today. So we have that draft memowe're presenting to the Committee. And if anybody wants to comment on it now, or however the Committee wants to go forward on it.

HOLZER: So, thank you, Nate and Jim, for your hard work.

HOGAN: Oh, excuse me. Nate, you did have something else. I'm sorry. Sorry about that.

JONES: Sure. So, two things. First, just a little bit more on what Jim had said. All of -- to me at least, the 1987 [00:20:00] guidance is in bad need of an update. It was written before the internet came to be widely used, written before the ability to disseminate records electronically, and as Jim pointed out last meeting, it's missing words. So, I think it's bad for time -- it's -- an update is much needed. And I thank everyone on the Fee Subcommittee for their work on this.

And I would also say that, as we put in the memo, it needs to be updated in a way that follows the President's Instruction [Presidential Memorandum for Heads of Executive Departments and Agencies Concerning the Freedom of Information Act, 74 Fed. Reg. 4683 (Jan. 21, 2009)]for presumption of disclosure that should be applied to all decisions involving the FOIA, and that includes fees. So I'll leave that at that on the memo, I think Jim did a good job explaining how this could help, and why it's needed.

The second point I'd like to make, kind of in response to some points that Dave made in our last meeting, [00:21:00] Dave Bahr, was that due to limitations, the subcommittee had only solicited -- well, they solicited opinions from everyone, but only did a poll, or a survey.

BAHR: Survey.

JONES: A survey.

HOLZER: No, a poll. One of those two. Which did we do, Christa? OK.

LEMELIN: I'll check (jokingly)

(inaudible).

JONES: We only did what we were legally allowed to do, asking questions of people from government workers. So, on that note, although it's unofficial, a very good resource for all of us, and I think the Fees Committee already looked at it, was a poll that POGO and the National Security Archive, specifically Lauren Harper, put out to the general public. And about 100 FOIA requesters wrote in with their opinions on fees. So I would recommend to everyone to look at the good data that Maggie [Mulvihill] analyzedfrom the government side, and then also, if you want to supplement that from the public side, to see both sides [00:22:00] and get a balanced opinion, look at the survey that POGO and the National Security Archive have recently published the results

HOGAN: And I just want to add something, the irony should not escape the Committee that the first significant case law was between the National Security Archive and the DOD, concerning fee status. Way before we were involved.

HOLZER: Thank you both for your hard work, and for drafting the recommendation memo for the full Committee's consideration. At this time, I would like to ask if there's a motion for the Committee to consider the recommendation made by the fee subcommittee.

FEMALE: Move. (inaudible) move.

HOLZER: Do we have a second?

MALE: Sure.

HOLZER: All right. So I would like to open -- I'd like to open up the discussion to the rest of the Committee, to hear exactly your thoughts on how or what this recommendation would look like, or if we're going to just simply take exactly what the subcommittee has recommended to the Committee as a whole, (inaudible). [00:23:00]

BARBER: This is Delores Barber from DHS. And I agree with Nate and I agree with Jim that guidelines and recommendations that were published back in 1987 have no relevancy in the twenty-first century. That, on its face alone, makes me want to strongly support the recommendation to ask the Archivist to have OMB look at updating that guidance.

HOLZER: [Jim? ]

ZAID: This is Mark Zaid. Guys, is there any reason why we cannot recommend both option one and option two? That in the letter that the Archivist sends to OMB, that it also includes an alternative legislative proposal? I'm certainly not completely -- I'm trying to think what word do I want -- [00:24:00] enthused that OMB, having sat on its duff for the last 30 years, and not looking to revise any of its guidance, is going to necessarily take anything else serious in that the -- I guess from what it says, I'm just reading from what you wrote, I do not know how the process works, that if the Archivist makes a legislative proposal, does it have to go through OMB? Well then, at the very least, if the Archivist did make both, there's nothing to stop those of us who are not part of the Executive Branch system, from taking that legislative proposal to the members of Congress we want and introducing it independently without going through OMB. So, I would say we have an opportunity to do exactly what you guys have soundly recommended, and is desperately needed, but I don't want to wait for OMB [00:25:00] to necessarily sit on it just as they have for the last 29 years.

HOGAN: All right, just a -- the way we look at, when -- we should only be giving the Archivist, I think, just one option, here's -- we're telling you, here's what we want to do. And if he rejects it, then we can say OK, we'll fall back to two or three. That's really the purpose of the memo is to say here's where we want you to go, and however, I think my own personal experience with legislation, you know, example, you know, we have a National Defense Authorization Act, which for years and years, we used to propose exemption three statutes. It could be, it could be time-consuming. And -- because you have to have the -- go through OMB. It could be. If -- I don't know the mechanism or vehicle for public to -- itself to [00:26:00] go through legislation, I'm sure there's ways to do it, a lot more efficiently -- possibly more efficient, maybe not, than we can do it. So, you know, I -- that's fine if members of the public do it independently. Exactly how it turns out, what happens, you know, that would be outside, I think right now, outside of the purview. And if we do decide, you know if the Committee says this goes to option two, I mean that still can say, then we have to work -- I think we should give the proposed legislation to the Archivist. I even think the Archivist may come back and say, OK, this is fine, give me option one. Give me the memo, which would be a little bit easier than doing the proposed legislation. But, and we discussed that, (inaudible) subcommittee, and if that isn't the best route to go right now for the Committee. It would take a period of time for us to, you know, to craft legislation. And it's possible. If we had another year, you know, it'd be possible to do it, yeah.

JONES: Well, I would just quickly add, [00:27:00] (inaudible) to take, but within the subcommittee, we decided that ultimately, option one had the most likelihood of success, despite, as you say, OMB taking -- still using fee guidance from 1987. And I think even if -- I think it's unlikely that even if a new bill passed with good fee stuff, I think OMB still would ultimately have to update their guidance. I'm not sure just how (inaudible) that works. But we did have this conversation within the subcommittee, and our take at the time, which we're happy to change with more evidence, was that the easier path, the path of least resistance and most likelihood of success would be the Archivist finally getting some weight to tell OMB to do it, rather than trying to get Congress to pass a FOIA bill with the language that we wanted.

GOTTESMAN: This is Larry Gottesman. Option three, to me, is not an option. My concern about going forth with option one and option two, [00:28:00] (inaudible) OMB would do this, but if you give them an option -- if you give any (inaudible) an option to say, well let's just pass the buck down the road to somewhere else, they may not update the fee guide until Congress passes a legislation, which may never happen, as we know. So, clearly having 1987 fee guidance updated, I think four years ago I mentioned it, one of the meetings that you had, Melanie [Pustay], and OMB, and it was like, oh it's on the plate. So that, to me, is really the most, I think the most bang for the buck. But if we can get them to update that fee guidance, legislation takes a long time to get through. And I just don't know. I mean we've got a bill right now past the House, and will it ever pass the Senate? And so, (inaudible). So, I'm just much more positive on updating the fee guidance than anything else.

PUSTAY: Melanie Pustay. One thing that is, I think, attractive in particular about updating the OMB guidance, besides the obvious fact in the passage of time, is that the process itself [00:29:00] is kind of, to echo what you're saying Larry, within control of -- it's not in control of the outside actors. And then, but what I particularly think would be good about it, and beneficial about it, is that it's a rulemaking process so that it means that all interested parties, the requester community, and government agencies, will have a chance to weigh in on updating the provisions. So it does seem, in some ways, like really fortuitous that there is a path there on this area that's actually pretty reasonable. Reasonable to do, and yet could be really, really effective. So, to me that seems like a really good way to go, to actually make a concrete change and improvement of FOIA.

BARBER: This is Delores Barber from DHS. I have a question and a possible comment, depending on the answer to the question. Does the Archivist have the authority [00:30:00] to tell OMB to update this guidance?

HOGAN: OGIS does. OGIS does.

BARBER: OGIS does. Well --

HOGAN: It make -- make (overlapping dialogue; inaudible). Make recommendations.

BARBER: Not to tell.

HOLZER: Not to tell. It would have to be more of a recommendation.

BARBER: To ask, to make a recommendation.

FEMALE: You have to say ask.

HOLZER: Right. And so, it'd be more along the lines of the Archivist would direct (inaudible) some type of action.

BARBER: Oh, the Archivist would tell OGIS to tell OMB?

FEMALE: To recommend to OMB.

BARBER: Oh, to recommend to OMB.

FEMALE: To recommend to OMB.

BARBER: Well if that's the case, if it's a recommendation, then I have a suggestion. Even though I won't be here to help, that part of the recommendation include some assistance from this Committee in actually drafting the new guidance, or providing some input, and at least, you know, if they realize that we're in partnership with them on this, that something could be done. Like I said, I won't be here, but I will -- I'll keep track by YouTube. [00:31:00]

ZAID: Yeah, this is Mark Zaid. I mean, my experience in being in D. C. for now over 20 years, and handling these things, is never to put all your eggs into one basket. Push as many options as we can. And especially when working with the government, give whichever agency or branch you're working with as much of the information and work product as you can, so that they can do as little as possible and just take what you give them. So, I don't have any problems with, whether it's option one or option two, and I totally agree with the Committee, the subcommittee that we need to go forward with this. I suppose, with option one, just asking OMB to revise the guidance, that alone, again, I have a little bit of concerns too, you know, how seriously they're going to take it, how quickly they're going to work on it, rather than maybe taking, if I understood what Delores is saying, we kind of, we give them more of [00:32:00] the work product, and say this is what we -- here's some suggestions what we'd like to see you do with revising the guidance. I don't know if OIP can play a role in that if OGIS can play a role in that, NARA, we as an entity, or all of those entities above to do so. And the same thing with the legislation, and you're all right. I mean, Congress is so dysfunctional, the last particularly 15 years, I don't necessarily have any optimism that it can work, but you know, with the 50th anniversary, there's going to be a little bit more impetus on the Hill to do something in honor, I hope, other than just have a conference or a press statement by some of the Committee members who have oversight of FOIA. So we do have, at least a better opportunity possibly, in pushing forward with one or both of these things. And I suppose the other thing, does OIP, [00:33:00] OGIS, or the National Archives have any type of independent authority to issue its own type of fee guidance? No, I'm getting head shakes from the government.

PUSTAY: Well yeah, this is Melanie. There's the distinction between fee waiver and fee guidance. So, by the FOIA statute itself, the fee guidance, which is the categories and the charging of fees, has to be -- agencies have to be in compliance with the OMB fee guidelines. So that's right in the FOIA itself.

For fee waivers, though, that's really been an area that's been guidance, that's not impacted directly by that provision in the statute. So, an area where there's more room for flexibility is fee waiver guidance. Which is something I've been thinking about, say that as a little teaser.

ZAID: And that resides in OIP, [00:34:00] Melanie?

PUSTAY: Yeah, yeah.

WHITE: Hi, this is Lee White. Mark, to answer your question, while Congress may not pass legislation, there's nothing to keep them from holding a hearing on this topic. If we could get someone interested on the relevant oversight Committee to hold a hearing, it's going to bring -- shine the big bright spotlight on it, OMB will be called up there, you know, there's ways of doing it that way without -- short of getting legislation introduced. So you'd get some visibility, plus we have the anniversary, so there's a bully pulpit there to keep mentioning oh, and by the way, on the 50th anniversary, we're coming up on the 30th anniversary of the guidance. There's public ways of pressuring them, and hopefully, I don't want to use the word shaming them, but --

PUSTAY: No, you know, I can't help but think [00:35:00] we haven't even asked yet. You know, so we don't need to go --

WHITE: No I know, but I'm just saying --

PUSTAY: -- so we don't need to go -- I mean, yeah, and I know you're saying that there's a continuum, but we haven't even done the ask yet, the first part of it. So it might be that they're very -- like obviously, I can't speak for them, but it would be interesting to see if the anniversary might be a nice impetus.

WHITE: I'm just saying if they're reticent, there's pressure points that you can put on them, short of getting a bill introduced.

ZAID: This is Mark Zaid. I cannot fathom that one or more of the oversight Committees in both the House and the Senate are not going to have at least a hearing on the 50th anniversary of FOIA. I mean, I just can't fathom they're not going to do that. So, there definitely will be an opportunity to at least get some information out there, I mean, Jim, I imagine you may be probably one of the witnesses at one or both of the hearings that will probably take place. Does anyone -- now, has anyone had experience through the Archives [00:36:00] or your own agencies, of requesting something from OMB? You know, how much -- again, if it just asks OMB to revise this '87 guidance, well that's just a sentence or two, and whatever formality of information you need to put in there. So maybe the discussion should be, should it be more than that? Should we try and give them substantive information? But what is typically done if anyone has any experience in asking OMB to revise anything? I mean, you know, it doesn't have to be FOIA. Does anybody have any experience?

PUSTAY: I think in some ways it's sort of an unusual setup right now with the FOIA having the requirement that OMB have fee guidelines. You know the rest of FOIA is -- and other things too, I don't know all the parallel, you know, sort of scenario.

MALE: Yeah normally, it's OMB, (inaudible) it will be something back.

PUSTAY: Yeah, it's usually the opposite direction, [00:37:00] yeah, yeah.

MALE: Exactly.

HOLZER: Do we have any other comments or discussion points on this? All right. So, the sense that I --

PRITZKER: (inaudible). And two comments. This is David Pritzker, administrative comments. Two comments. First, I'm a little concerned that the options as written make the case that something is needed, either by way of improving or updating the guidance, or the legislation, or both. But, there's very little (inaudible) that says what to do, any kind of recommendations.

So for example, I'm not clear from what I read here whether it's proposed that the Committee's recommendation incorporate any part of the conclusions from the survey [00:38:00] or not. I -- it seems to me so general that I'm not sure what's likely to happen that would really get to the point that we want Congress or OMB to get to. But the other thing is in response to this last question, that experience with OMB, I can tell you that over the course of the years, my agency [ACUS], whose major output is reports and recommendations to the various parts of the government on improving procedures, over the years, several of our recommendations have been addressed to OMB, and sometimes they pay attention, sometimes they don't. Having support from elsewhere, and not just coming from one source, is probably the best way of getting OMB interested enough to begin to move on this. So, it would be good to [00:39:00] circulate any recommendations coming from us for informational purposes, but with the hope that there would be interest in other quarters to support eventual interest by OMB.

MOULTON: This is Sean Moulton with Project Government Oversight. Generally, I would normally agree with Mark and say that I'd want both A and B in there as well, but I am struck by Larry's [Larry Gottesman's] point that -- I've definitely heard, and not just OMB, I don't want to lay it all at their feet, but OMB and other agencies, when they feel that there's this opportunity to say well, we're waiting for something, Congress is currently -- we're not going to do it now, then have to do it again, they have this excuse to avoid the issue, and kick the can down the road. [00:40:00]

And I'm also struck that I think if we can get a strong, and as David's saying, substantive recommendation from the Committee, not just that it has to be updated, but some sense of where we want the bar to be set in the new guidance. If Congress starts moving with any kind of legislation, that memo can easily be shared with, you know, and will be known by the Committees that are drafting this. And they'll say, "Well listen, here's a proposal out there that says OMB should do X, Y, and Z. We might as well put that into the legislation we're working on." So I think even if we do just option one, we get option two, in a lot of ways. But only if Congress then decides that they're going to start moving. So, I'm in favor of sticking with, you know, a very direct and specific recommendation to OMB, or to the Archivist, that OMB be contacted. [00:41:00]

HOLZER: Any other comments or discussion points on this?

HOGAN: I just want to comment over here on, as a general memo, I think as a follow-up, if the Archivist does agree, then it would be our subcommittee's responsibility, especially if the Committee's renewed, and that might take a while, to then create the memo from the Archivist to OMB, with all the data and specifics, you know? Because it's a higher level memo, you can't get too much (inaudible). But, somewhat detailed to say here's the importance of it. And also, remember, this Committee was created as part of the Open Government Plan if I'm not mistaken. Or a national action planToo many plans. Part of the national action plan, so this is, I think what the Committee does should carry some weight because of that. So, I think this, if something came from the Archivist on behalf of the Committee, which is created by the national action plan, then OMB, being part of the [00:42:00] executive office of the president, would put appropriate weight on it.

GOTTESMAN: Yeah, just one -- this is Larry Gotteman, just one thing (inaudible) mentioned, this is rulemaking. This is (inaudible) January.

HOGAN: Oh yes.

GOTTESMAN: Not a whole lot happens after like, May or June in the regulatory process, traditionally. So, time is of the essence, because if we don't move quickly, you're talking the next administration.

HOGAN: Oh, absolutely, I don't expect this to go quickly. And especially if that FOIA reform bill is passed, they'll be dealing with all the regulations too, first of all.

GOTTESMAN: Just a thought.

HOGAN: I understand.

HOLZER: So, I think that you bring up a really important point though, as far as the timing of this. If we consider the recommendation today, the general recommendation, we might be able to move forward a little bit more expeditiously. If we kind of pause, draft something more specific, it'll take us time to circulate it amongst the whole Committee. Editing and all of those things, [00:43:00] we can probably come up with something by the April meeting for everyone to vote on. Which means that we would probably be past our timeframe.

ZAID: What do you -- this is Mark Zaid. What do you envision? Let's say -- let's say we pass it as-is. And the Advisory Committee recommends to OGIS to recommend to the Archivist to revise the '87 guidance. I would imagine the Archivist is going to come back and either say, "All right, so you just want me to say OMB, will you revise the '87 guidance? That's it?" You know, no instructions, no guidance given to them, just say, 'Hey guys, this is really outdated, you need to revise it." Or he could potentially come back, or his staff to us, and say, "I'd be happy to ask them to revise it, but why don't you guys give me something to tell them how to revise it? How do you want to revise it?" [00:44:00] Make it easier that way. So, I'm all for pushing forward in a timely manner, but I want to make sure that we do something that's going to have -- that's actually going to catch and do it.

There are those here who deal through their position with the Archivist, and the process, and those in the archives, whoever would make the decision, other than the Archivist, to recommend to the Archivist on how to proceed. So, you know, I sort of defer to you guys, and those in the government as to what you think is going to be the most productive way to proceed so we can achieve what I'm sure I have a feeling every one of us here wants to achieve.

JONES: I would just reiterate, I think, what Jim said, that I think the first step is recommending to the Archivist, saying will you ask OMB or recommend to OMB to do this? The second step is, when he says yes or no, if he says yes, saying here's what we want you to ask to do. So I think the specifics that we're talking about, I think first if I'm wrong, first we have to have the Archivist, I guess, as you say, come back to us and say I'll do it, what do you recommend that I ask to OMB?

HOLZER: I think from a process standpoint, that what we -- the Committee has to decide is whether or not we want to make a recommendation. the Archivist himself will make a decision on how to proceed after that. I mean, I don't really think this is going to be a negotiation between the Committee and the Archivist on what he feels comfortable or not comfortable doing. We're going to make a recommendation, and he's either going to act upon it or not. And then if he doesn't, then the Committee will be faced with having to take another vote or, you know, proceed another -- take another course of action.

HOGAN: I think that should -- I think some of what Nate's getting at, should that recommendation include the proposed memo [00:46:00] to -- should this --

HOLZER: To OMB?

HOGAN: To OMB. Should we do it now, all together, or would it be two steps?

HOLZER I think it would be one step.

HOGAN: OK.

HOLZER: I mean, and I think what we're trying to --

HOGAN: Good.

HOLZER: -- and that's what we're trying to decide here is one, if we want to make a recommendation, and two, what exactly are we recommending to the Archivist so that he can make a decision? And it, you know, it would be like a decision (inaudible) yes or no.

HOGAN: We can start that.

HOLZER: Yeah. And I mean, I think -- so what you provided, I think, is a really good kind of starting point for the discussion, for the whole Committee (inaudible) to consider. And what we can do today, we can kind of do this in a two-step process. I think kind of (inaudible) thinking is, does the Committee have a preference on one of these options, or all of these options? If so, is it what we want to do, and then we can take a vote on that, on how to proceed? And then, if the Committee's will is that we make a recommendation for, [00:47:00] let's say option one, then the Committee will go back, and we will draft the specific language to submit it to the Archivist, and we will have to take a vote on that language. Now, that doesn't -- I believe that doesn't mean we will have to have another meeting, right? We'd have to put out a notice (inaudible). We'd have to set up another meeting (inaudible).

LEMELIN: Well this (inaudible).

HOLZER: If we wanted to?

LEMELIN: Yeah, I mean yes. I mean, there's nothing that precludes us from having more than four meetings a year, so we could definitely, you know, convene before April, (inaudible).

HOLZER: But in order for us to vote on that specific language, we'd have to convene another meeting and publish a notice. I believe that's true.

LEMELIN: Yeah.

HOLZER: The process is a little bit still learning, OK, I told you guys I was going to become an expert on it, I'm still learning. But I believe, if we're going to take a vote, we would have to have a meeting, we'd have to publish a notice, it'd be 30 days out, and all of those things. So, that's where we'd be on that.

HOLZER: So, [00:48:00] (inaudible). So.

BECKER: OK, this is Andrew Becker. One other question. We've kind of established that going the Congressional route, it might take a very long time, even though there is some legislation, I think, that's being considered now, and some interest. There's already been at least one hearing recently. But on the other side, for the Archivist to make a decision, how long would that typically take?

HOLZER: So, you know, you guys asked me to find out about the extension of the charter, we thought it was going to take us a long time, I think we had an answer from a Deputy, Nikki [Gramian], how long did it take us, about a month? About a month to get an answer on the extension of the charter? It wasn't really all that hard. It was just a conversation. So, you know, this might take a little bit longer, because he's going to probably want the background information like you were mentioning and, you know, what is it specifically we're trying to get updated, and why, and all those things? So I would imagine that it would take a little bit longer. But, you know, I'm new at this, [00:49:00] so I couldn't give you a good time frame, but 30 to 60 days at the most.

JONES: My unsolicited answer is quicker than Congress.

(laughter)

MALE: (inaudible) make a recommendation for the (inaudible). If that's appropriate at this point.

HOLZER: So, we have a motion I'm assuming that's what we're saying? A motion to accept recommendation one.

MALE: Option one.

HOLZER: Option one. OK. So at this time, we're going to -- we have a motion, and we have a second, do we have a second to accept -- we have a second. Do you have those Christa, on the motions? [00:50:00] First, and the second was Lee. OK, so all -- if you're in favor, please raise your hand so we can do a hand count. Yeah?

MALE: (inaudible).

HOLZER: I was suspending that, but we can, before we vote, do you have further?

PRITZKER: I'd like to ask a question. Has the subcommittee, or anyone else concluded that there are problems caused by the legislation, or are the problems principally the result of not having good up to date guidance? Just trying to isolate whether the problem is in one place, or the other, or both.

JONES: I'll speak for myself, and I (inaudible) this is, I think what has come out of our conversations in the subcommittee, I think that there certainly are problems with both, but I think the -- definitely what I think is the most contentious is fee [00:51:00] categories, which comes out of the OMB guidance, or one of the most contentious things. So I think that fixing, updating the OMB fee guidance, would go a long way to a lot of amelioration of the problem of fees. That's my opinion.

MALE: Well, if we know where the chief problems are, I would suggest at least, the very least, alluding to that as being in need of revision in the text of, number one, if that's where we're going.

PUSTAY: This is Melanie. I hear what you're saying, like and I'm assuming it's already what you guys are thinking of, like that one of them, the most sort of obvious problem areas, is the change in the ability to disseminate information now, versus in 1987, and what that means, what that, in terms of deciding whether someone's a rep of the [00:52:00] news media. So, it's the change in technology, and the ability to disseminate by posting online that's drastically changed sort of the dynamic between figuring out whether someone's a rep of the news media, and that's the one category where there's probably the most interest all the way around. So I think that would be a very powerful example to put in the memo, I agree.

PRITZKER: (inaudible).

PUSTAY: Or that's how I would spin that out.

PRITZKER: I was suggesting not just in the memo, but in the recommendation that’s coming from this Committee to at least give some indication of what it is that needs revision in the guidance.

HOGAN: So I mean, it does seem to make sense to -- at some level, for the subcommittee to look at the OMB guidance, review the sections, and to decide what sections should be updated, and what the specific language -- I mean, I think that that seems [00:53:00] -- I mean my own personal opinion, a reasonable approach. But, I'm also not opposed to a general recommendation to OMB to update their guidance, which seems to be out of date.

PRITZKER: And saying just that much seems to me to be awfully weak and more likely to me, that put on the back burner at OMB.

HOGAN: I think what you're saying is, you do want something a little bit more specific, what are the problems? And I wrote this, and we revised it, at least to my mind, it's purposely to be more general, and we can be more specific, but with their -- I know in our department, in our agency, when we do memos, there's always supporting material. You know, so tabs and appendices, and tabs to appendices, and like that. So, you know, that might be the place for more details, and then decide whether -- how much detail's appropriate between an Archivist and a Director, you know, whether it be supporting [00:54:00] material, and that's something I would leave to Dr. Holzer and Christa to determine, you know, how does NARA, in a word, do you put the details, you know, not necessarily -- some agencies leave it very general in one place, and detailed in another. But I definitely want to make sure OMB, I agree with you, understands the details, you know? Fee categories, exactly. There are major issues with fee categories, and pretty much most -- an overall majority of case law dealing with fees is fee categories. That's -- the National Security Archives, again, it's the DOD that started that way. And I've even said this publicly before.

JONES: (inaudible) denied.

[laughter]

HOGAN: Thank you. But even -- and some people will look at, I mean some of the case law, you can say the National Football League is a member of the news media. They have a cable -- they have a cable TV. They have press briefings, they disseminate like crazy. And they can ask for government information. Do we want, you know, is that where we're [00:55:00] -- sometimes I ask, is that where we're going in the fee categories? Is that where the requesters want to go? I don't know. So, I think also, by putting us on the table, we'll be giving them the appropriate details, going for -- it's room making, public comment, we can get some very good comments out there on that. So, we can go to option one, I can put more detail in there, we'll share, you know, more drafts with the Committee, and however the Chair sees the package forming, you know, just general guidance to us on how the package should be formed, we can fill in the details on that.

GOTTESMAN: And that was my thought, (inaudible) was just a general, let's see which option we want to go with, and try to put together some more detail on how we think that should be updated. Sort of like a two-part process. Because again, we're running out of time in a lot of ways. But, you know, let's -- there's -- as Jim said, let's get the ball rolling, [00:56:00] you know, so it takes time to get things to the Archivist. So if we come up with a plan, be it option one, be it option two, or be it any option, I agree there needs to be more details, but I think just having the conceptual decision to how we want to go forward is worth a lot today. And that's all I was trying to get at.

PRITZKER: I think we may have different concepts of what details involves. Obviously, real details belong in supplementary material. All I'm trying to suggest that we put into our recommendation is some brief identification of problem areas, not what to do about them, not how to formulate new guidance, but a couple of -- but, and I have no problem with saying, for example, or such as, but at least give some indication of where the problems are. [00:57:00] That’s the extent of the detail I'm trying to inject into this.

HOGAN: OK, good. OK, that helps. That helps a lot. And I think, as (inaudible) present this memo, if I'm mistaken, please let me know, we could still be -- we give it to the Committee in the next few months, we can look at revising the memo and edit it as it sees fit. Is that appropriate?

OLIVER: (inaudible) this is Ramona Oliver, from the Department of Labor. When we are advancing the recommendation to the (inaudible) and the assumption that he understands the construct of fees in the statute, and the OMB fee guidance, I think that (inaudible) has a statutorily-based fee schedule for its historical records. And then, you know, there's the smaller group of operational records where they are considering the fee categories and that sort of thing. So, even in the recommendation out of this Committee, I think it would be fair to provide the Archivist with enough information for him to make an informed decision on whether or not to move forward. And so, I think that going back to what David has said, and what others have said around the room, I think the recommendation [00:58:00] should at least provide the Archivist with enough information to determine whether or not he supports this approach, and wants to advance the recommendation to OMB.

ZAID: I want -- this is Mark Zaid, and I want to -- I was going to jump in and say something similar, but let me add a little bit to it. I suppose it depends on what we're voting on, I think I find it interesting what Larry was talking about, or referencing, that one of the first things we were deciding is "OK, as a Committee, what do we want to recommend as the strategy option?" Either asking OMB for guidance, or asking for legislation, and it seems that there is an unvoted-on consensus that going the OMB guidance route is the way we would like to go.

All right, so let's say that's what we're going to formally vote on and approve, well then, going to what Ramona's talking about, well then what's the next step? So, [00:59:00] is that just what's going to the Archivist? That's all we've recommended is that. But obviously not, and I see some heads shaking. And it can't be that, because that's not going to be effective in any way for a multitude of reasons. So then, the next step is "OK, so how are we then going to package this?" Does -- is the Committee, either the subcommittee going to work something further to provide to the Committee that we then vote on, I guess, or do so informally, or will OGIS put together a substantive package, maybe with assistance on the side from select members, or all members of the Committee? So I guess it's -- and then I think that's going to somewhat, what David's talking about too, what do we see as how that next step would be?

I mean, we can just vote on it and say OK, this is the method we want to do, we want to go for guidance. Then, are we going to -- somebody going to make a motion to how we want to go about implementing [01:00:00] that? Or we just discuss amongst ourselves how we want to implement that?

HOLZER: So, I'm not sure if this is our first like, real vote taking, but I think what happens, we have a motion on the floor right now to accept one of these three recommendations.

Depending on how the Committee members feel, we'll vote yay or nay. If it fails, then the motion obviously fails, if we all vote yes, then it carries. I think that, you know, there's other ways to get around this, to address kind of the concerns that I'm hearing, which I think would be that the will of the Committee is that we send it back to the subcommittee, that they would address some of these areas that we've spoken about.

Specifically, in regard to recommendation one. You know, the will of the Committees that were not interested in two or three. And that you would present us a more baked version of a memo with supplemental material working with the DFO to figure out [01:01:00] exactly, you know, how it should be solved. That kind of seems to be what I'm hearing. Like that would be kind of how the process would work. Or we could just simply vote no, and ask the subcommittee to investigate this further, and then come back and present at the next Committee meeting. Is that right? Does that sound about right?

PUSTAY: Yeah, that does sound right.

WHITE: Might I assume, if we pass this, that the Archivist is not going to sit in the office and make this decision for himself? He's going to bring in [NARA General Counsel] Gary Stern's -- you know, the Counsel's Office and everything to advise him on what to do, right?

HOLZER: I would assume, but I couldn't speak to that. I mean, to NGC's [NARA Office of General Counsel] role in this, NGC's here. But I -- I mean, the Archivist is a pretty smart guy, he's probably going to consult not only with NGC, but I would imagine that he would consult with other government agencies that would have activity in this topic.

WHITE: OK.

HOLZER: All right, so how would we like to proceed? [01:02:00]

BARBER: I suggest we take a vote.

MALE: Yeah.

HOLZER: All right, so --

MALE: We're voting on the principle, not -- not the assumption, right?

FEMALE: Yeah.

HOLZER: Yes. So we have a point of clarification, Delores, is that correct that you're motioning for a vote on --that the Committee would consider recommendation one as the option to go forward?

BARBER: Yes, sir.

HOLZER: And would we like the Committee-- subcommittee to make any kind of changes to the memo?

BARBER: Yes, sir.

HOLZER: And those changes would be to review the OMB guidance?

(laughter)

HOLZER: And to set a line by line suggested edits?

BARBER: This seems like old times, James. Yes, sir.

(laughter)

HOLZER: Thank you very much, Delores. We have a motion, do we have a second?

FEMALE: (inaudible).

HOLZER: Thank you. OK, we're going to do this again, as I said, please raise your hand if you're in favor of the motion [01:03:00] as outlined by Delores Barber. All in favor? On the phone.

MALE: Aye.

FEMALE: Aye.

HOLZER: OK, so this seems to be unanimous. Thank you very much to the subcommittee for their hard work on this. I know that that kind of seemed like a very tedious kind of process that we just went through, but it's actually very important, it really goes to the heart of why we're together, we get everybody's input, not only from the government side but also from the public side. And so I think we'll get a really good product from that, so thank you for bearing with me as we went through that exercise. I believe we will now hear from Marty and Mark, who are the co-chairs of the Oversight and Accountability Subcommittee.

MICHALOSKY: Good morning. This is Marty Michalosky. Forgive me if I'm coughing a little bit, I'm trying to get over my [01:04:00] lingering cough for about two months now. I want to update you on two tasks that the subcommittee on oversight and accountability has taken on over the last 18 months. There is a copy in front of the Committee members of our minutes from last week's meeting. And I'll go ahead and basically just give you an overview of those in my update. The first item is the assessment of the FOIA Public Liaison role, and to determine opportunities for improvement. This is a task that I've updated the Committee many times in the past. Just as a reminder, I want to kind of go back to the white paper and the raw results of the subcommittee's poll on Federal agencies, FOIA public liaisons that we collected over the last, I believe, two quarters. That's on the OGIS website, and we shared that at the last meeting as well. [01:05:00]

As briefly discussed in our October meeting, the subcommittee was considering to ask the public for their experiences, suggestions, and comments, regarding this role. So, in essence, we've asked for the Federal agencies to give input, now we'd like to balance that with asking the public for comments on these things, as well. Last week, the subcommittee approved a draft request for comments from the public, a copy of this is in your package as well. It was drafted on Friday, and thank you, David, for updating it based on the subcommittee's discussion last week. And you can take a look at that, basically, the comments were kind of looking for in three areas, those are outlined in availability and responsiveness, assistance with the FOIA process, and timeliness and effectiveness.

As far as next steps, [01:06:00] what the subcommittee kind of intends to move forward with this effort, is (inaudible) just to post this on the website and begin collecting those comments. We don't have necessarily -- we haven't really established a timeline like 30 days, or 45 days, or something like that. But just generally speaking, 30 days may be a general thought behind that.

Once those comments are collected, the subcommittee would consider at that point to do -- to write a white paper, much like we did with the Federal agencies, FOIA Public Liaisons that we gathered in the past, as well. So again, given a balanced outlook, this is what the Federal agencies have seen, and their experiences, and then also on the public side, what their experiences are as well as suggestions and ideas for improvement around those -- that area. [01:07:00] And then basically we would share that with the Committee, and then ultimately, hopefully, get that out in the public domain. The exact same process that we took with the Federal agencies. So that was what the subcommittee is considering right now, and that's what's in front of you to kind of review and certainly, we welcome your comments.

The other item that I wanted to update everyone on, this goes along with identifying current authorities for oversight and actions, is follow the audits, inspector-general reports, and so forth, that have been completed over the past 10 years. So, Nate has lead this effort, and I want to just remind everybody, we have over 80 reports that Nate and his team have collected. We've posted them on the OGIS website, they're broken out, I've read maybe a handful, I think Nate has looked at [01:08:00] all of them. But it is a tedious effort, but they've been reviewed, and they've been looked at.

Nate has also drafted a white paper on his analysis that the subcommittee is going to review here shortly. And then, again, the same kind of thought process behind that is after we go through with the subcommittee, we're going to share with the full Committee, hopefully in our April meeting, and then possibly get that into the public domain as well, as a deliverable from the subcommittee. Those are really the two items that we have to update the Committee on right now. I welcome Mark to provide any input that he is willing to share.

ZAID: I'm going to just thank Marty and Nate in particular for taking the lead (inaudible).

JONES: As I just said, I had help from my colleague Lauren Harper.

ZAID: We thank her, too. [01:09:00] Nope, I'm good.

HOLZER: All right. Well, thank you, everyone, for your hard work on these efforts. I guess the first thing I'd like to do is just discuss this draft poll. I just want to make sure that it's clear to me on this document that the subcommittee is asking the Committee as a whole to consider polling the public through using the OGIS website. Is that correct?

PRITZKER: Yes. Except for one word. I don’t think we had in mind "polling." "Request for comments."

HOLZER: Request for comments.

MICHALOSKY: Yes.

PRITZKER: That's the way it's styled on the website.

HOLZER: And I'm assuming we're being very -- using precise wording because of the challenge that we face when we go for public comment using these government resources.

I [01:10:00] will tell you, my instinct says that this is still problematic to even do it this way. For us, for OGIS to post on behalf of the Committee, seeking comments from the public, would still be viewed, I might have to consult with NGC on this for clar-- you know, to confirm it, but I would believe that this would still count as a survey or a poll of the public. Which would put us in the same predicament that we faced the last time. I mean, an alternative is to do exactly what Nate and his team [the National Security Archive] and POGO did, I guess and ask them to actually go out and survey the public, as opposed to OGIS doing it.

GOTTESMAN: (inaudible) Is it a problem asking the public just to give us their feedback, versus asking specific questions? See my understanding is you can ask the public to just give you their feedback on something, like here's a topic, give us [01:11:00] what you think about it. It doesn't get into the ICR [information collection request] issue, the concerns I think you're having. That's my understanding of the distinction between asking them, saying, you know, "what's been your experience with A?" versus asking to answer specific questions.

HOLZER: And again, I'm going to have with counsel on this issue, but I think the fact -- I think the distinction here would be what was your experience with OGIS, versus what was your experience with the entire Federal government's FOIA Public Liaison?

GOTTESMAN: I don't think that's a problem. (inaudible). Historically, I don't think (overlapping dialogue; inaudible).

HOLZER: I would have to --

PUSTAY: I mean, it seems like it's a legal question.

HOLZER: And that's what it would come down to. I'd have to consult.

GOTTESMAN: Right. No doubt.

PRITZKER: And I would suggest you get a quick reading on this, as quickly as you can, from the General Counsel's Office. Because the distinction between asking for comments on one agency, or on the government generally, I think that's totally immaterial, that it's a question, that the rules under the [01:12:00] Paperwork Reduction Act, have to do -- which is just a source of potential sticking point, have to do with whether it's a structured survey or poll, or whether you're asking for comments. And that's why this is intentionally worded as a request for comments, with suggested areas that are based on your experience.

HOLZER: Right. I hear what you're saying.

PRITZKER: And suggested that you (inaudible) as quick a reading as you can from your counsel's office.

HOLZER: Having been at NARA now for four months, I can almost guarantee you that when I submit this through the process for review, that it will actually end up going to the COO [NARA's Chief Operating Officer, William J. Bosanko], who's going to look at this as well. And they're going to view do this as a survey. Now, I mean, that -- I'm more than willing to do that, I don't have a problem doing that. I'm not trying to persuade you to not go that route. But again, [01:13:00] having done this previously with you guys, (laughter) the easiest and probably the fastest way to get what you're seeking is through other organizations taking this on. But --

PRITZKER: (inaudible) input. And what our subcommittee, I think I can speak for the subcommittee, had in mind, was that this is as mild a way of doing this as possible, and if we can't even go this far, then it's kind of hopeless to get public input.

JONES: You just reminded me, I think that when we did the fee survey, OGIS, or we did some type of asking for public comment. Unfortunately, we didn’t get very many. What was that, compared to this, and what's the difference? And why -- and how, what did we do? I think, either last minute, I guess we said please give us comments on the OGIS website public about fees, and [01:14:00] what's the difference, and is there a way to make this that, that's easy to do?

MICHALOSKY: OK, that was like --

JONES: You guys know what I'm -- you guys know what I'm talking about?

MICHALOSKY: This is Marty here. That was the basis of us going in this direction, was understanding that there was a fee public comment mechanism and that this was feasible in the same way. So maybe that was some of the confusion that we had on the subcommittee.

JONES: Right, because last -- remember last meeting, with the fees, we said we feel bad that we couldn't ask everyone, give them the exact same questions, but the best we can do is give your comments to OGIS, right? Is there a way to replicate that with --

LEMELIN: Right, so we didn't formally post anything on the OGIS blog or anything, we've just, as we've always said, we welcome public comments, and I mean, we haven't received any comments specifically regarding the fees issue, but we, you know, this -- part of the beauty of a Federal Advisory Committee is, [01:15:00] it is an opportunity for the public to weigh in, and if nothing, I hope people are taking note that the Committee really wants public feedback, and I think -- I mean, the opportunity is always --

JONES: (overlapping dialogue; inaudible) to a member of the public it might not look that way, but -- and it's no fault of the Committee, but I think me and Sean could put our heads again, and we can independently do something.

LEMELIN: Yeah, I mean I --

JONES: But I'm not allowed to say it that way.

HOLZER: No, I mean -- and of course, I mean I get the frustration, and I understand it. These are the bureaucratic hurdles.

JONES: Got you, understood. I was just trying to figure out for my own sake what the difference was before -- what our solution was.

HOLZER: But -- but again, what we can do is we can do just kind of a two-pronged approach. We can take -- if the Committee wants us to poll the public, and this is the language that you want us to use, I can certainly staff this through NGC, and through NARA leadership to figure out how we can do that, or if it can be done.

GOTTESMAN: (inaudible) I'm just concerned about trying to [01:16:00] I guess, I'm looking for the right word, I can't think of it right now, but avoid the issues by saying to a private group, do what we can't do as a group. I think we need to try to do it as a group formally, and if someone wants to on their own, that's out of the purview of the Committee. Because I don't think the Committee should be recommending to any outside organization, oh go ahead and do this, because we can't do this. I just think that's not good for ...

HOLZER: That's a fair point.

MICHALOSKY: This is Marty again. I would ask for your General Counsel to provide input and say that this is not feasible under this way. This is a survey, and therefore we can't do it unless you get a [Paper Reduction ] Act and therefore ... So I'd rather have that guidance, and then, if somebody on the requester side does that, then that would be fantastic as well, but I think I'd like that guidance, personally.

PUSTAY: This is Melanie. Could we have [01:17:00] -- I mean, obviously it's cold today so I'm just looking at all these empty chairs for the public. Because part of me thinks, like could we designate like, say our next meeting, or hold a meeting specifically advertised as one in which we're hoping to hear from the public on these issues? And then just as part of our meeting, we have people who want to come and give us their verbal comment? You know, and we could get feedback that way.

MALE: And you could also say that (inaudible) comment in writing.

PUSTAY: You could -- yeah, something like that. Like so that it's part of our meeting.

MALE: That's a great approach.

PUSTAY: Do it that way.

MALE: Any issues at all. The public meeting -- if you can't come to the public, submit your comments in writing, you'll get exactly what you're --

PUSTAY: Yeah, maybe that's a way to do it. And if it's not so cold, we will get more people.

MALE: (inaudible).

(laughter)

MALE: Whichever way we go, I strongly urge you to avoid using [01:18:00] words like survey and poll.

PUSTAY: Right.

MALE: It's neither, and one approach for trying to combat the potential problem, perceived problem, is use our lingo, not the lingo that's going to point at how we wished not to characterize this. But just drop the words poll and survey. It's a request for comments. They may disapprove it for the reasons that James suggested, but let's frame the request for review in the way that points the direction that we prefer.

ZAID: I guess -- this is Mark Zaid, the difference that we're looking at, and I don’t -- it's fine to do it the way Melanie's suggesting, too. Again, more than one -- one way to skin a cat. The difference would be whether or not we can just put it on the website, and solicit comments at the same -- I mean that's the issue [01:19:00] we're looking at, right? From our suggestion.

MALE: Maybe I'm just going to repeat what Melanie suggested, but I'm going to put it in my words and hope that it's helpful. If we do want to have what amounts to a public hearing, or a broadened opportunity for oral presentations at our next meeting, I would suggest the announcement that we would like to do that at the next meeting, and invite comments be put pretty much in terms as drafted here, and then follow it up with the statement, if you can't attend, please submit your comments in writing. It doesn't make a lot of sense to say that we can't do, in writing, what we can do orally.

MALE: Exactly.

ZAID: Yeah. This is Mark again. And that's where my mind was going, I'm not quite sure why we can do one, and not do the other. [01:20:00] I mean, in some ways, if someone thinks that that's a way to do an end-run around what we're concerned about, then sure, OK, hey, good, go do it. But it seems like that's doing exactly what we're suggesting but through a different mechanism. So hey, it works for me then. It doesn't make any sense to me, but it works.

FEMALE: Hopefully it'll work.

MALE: Right. And I mean, I think it's something, you know, as a point of clarification, I don't see this as an end-run around any of the bureaucratic hurdles that we face. I see this as simply following the rules that we are constrained by, as a government entity. And again, I would consult with NGC to make sure that what we're suggesting as far as collecting comments based on a proposed public hearing would not be the same thing as a survey. In my mind, and it may be totally wrong from a legal standpoint, but in my mind, if we're posting [01:21:00] a request for information, and then advertising public -- you know, proactively posting, or seeking comments on something, that -- from the public, there seems to be some kind of distinction between simply advertising a hearing and asking for comments or agenda.

And I think if we -- again, you know, I think we need to speak to NGC to figure out what the distinctions are, and what our requirements are. But if I can get a motion for -- if that's what we'd like to do, if I can get a motion on having a hearing, I guess in April, or I don't know if we'd call it a hearing, having -- inviting the public to come and speak on this topic, and seeking any comments that they may have.

JONES: I'm not -- before we do that, I'm not opposed to that, but it seems like that's what we're doing every time. So I don't know if we need to have a motion to that. I agree more with Marty saying, at the very least saying hey, we're trying to have the public comment on these questions, I would like to have NARA say [01:22:00] "Nope, we can't do that" for whatever reason, but I would like it, like I think Marty said, that our subcommittee at least tried. So, I guess I'm not opposed to having a motion to do both things, but I would like to see if we can get the comments that David and -- we drafted on the web, and go through the formal process.

HOLZER: So I'm going to take that as a motion.

JONES: Yeah.

HOLZER: Do I have a second?

MALE: Second.

HOLZER: All right, so everybody's clear on what the motion is?

FEMALE: No, I'm -- is the motion to have it reviewed to see whether it's legally feasible to put it on the web?

MALE: If it's legally sufficient to put on the web (overlapping dialogue; inaudible).

JONES: Or request (overlapping dialogue; inaudible).

FEMALE: Or a request to be --

JONES: -- I would say request to put it on the web until someone blocks it, is what I would like to -- I would like to propose.

HOLZER: Wait, wait, wait, wait, so that's two things. You're proposing that we post it unless somebody blocks it?

JONES: I would -- I'll leave the second part out. I propose that we post the comments on the website.

HOLZER: OK, so we have a proposal to post the comments on the OGIS website as-is. [01:23:00] Do I have a second?

MALE: Second.

HOLZER: OK.

MALE: (inaudible).

HOLZER: OK, we have an amendment.

MALE: (inaudible) is provable or something, to make sure it's --

PUSTAY: See, I was just going to do a second option altogether, that we -- a motion to have NARA's general counsel review the feasibility of posting this on the website.

HOLZER: But, so we've -- we now have (overlapping dialogue; inaudible) so we have two motions. The first motion has been seconded, and then we have Melanie's motion, which is that we need to seek approval through NGC. And I just want to caveat this, that in my view, that it's probably highly unlikely that NARA would post something that's inconsistent or incompatible with the law or the statute. So I just throw that out there to say, we can vote however you want. But on the first one, we have, on Nate's motion, [01:24:00] can I get a hand count on all in favor of posting this document as-is, seeking public comment? Do you have them count it?

LEMELIN: Can we just go around and do an aye? (overlapping dialogue; inaudible).

WEISSMAN: This is Ann, I vote yes.

BAHR: This is Dave, I vote yes as well.

HOLZER: We'll start with Mark.

ZAID: Aye.

WHITE: Lee White, aye.

BECKER: Andrew, aye.

OLIVER: Ramona Oliver, nay.

MOULTON: Sean Moulton, aye.

BARBER: Delores Barber, nay.

PUSTAY: Melanie Pustay, nay.

HOLZER: James Holzer, nay.

HOGAN: James Hogan, nay.

JONES: Nate Jones, aye.

GOTTESMAN: Larry Gottesman, nay.

ZAID: Mark Zaid, aye.

PRITZKER: [01:25:00] David Pritzker, aye.

(overlapping dialogue; inaudible).

FEMALE: Yeah, the two on the phone were (overlapping dialogue; inaudible).

MALE: Can I just explain why (inaudible)?

(overlapping dialogue; inaudible)

PUSTAY: -- my motion?

HOLZER: Melanie, if you want to --

PUSTAY: Yeah, my motion is that they -- we send the proposal for seeking public comment to NARA general counsel to get their views on how to do it.

FEMALE: I second that.

HOLZER: (inaudible).

MALE: That (inaudible) I'm not sure exactly how to word it, but my purpose is to indicate my request so that if they [01:26:00] think some revised wording would improve this, then (inaudible).

PUSTAY: Sure, sure.

MALE: (inaudible) improves it, then post it, so it can be (inaudible). If NARA approves the post, and no, there's no vote that needs to be taken. That's my only concern, is if we say -- if it goes to NARA, and NARA says yes, you can do it, you need to still have it go -- some vote to post it. So I'd like to sort of know if NARA approves it, then it should be posted.

BARBER: What if they come back with -- this is Delores. What if they come back with edits? Or --

FEMALE: Yeah, like David's?

BARBER: -- (inaudible) suggested language?

MALE: I'm just concerned about timing.

MICHALOSKY: I mean, so just to add something, this is Marty here, the idea, to get this speeded up, and Dave had heard from me on Friday about this. And the idea to get this in front of you was to [01:27:00] speed up, so we could get comments and get up to deliverable. So that was the overarching goal.

ZAID: This is Mark. I almost think we're making this too complicated here. I mean, one, I'm not sure we need any of these motions, frankly, to do everything we're talking about. We're certainly not going to do anything inconsistent with the law, or the policies and regulations of NARA.

So, and we've asked, in other meetings, for the General Counsel's office to weigh in on things we were thinking about. So, I mean it -- the subcommittee wants to try and do this, we've talked about it for quite a number of meetings, it's not anything novel, or taken by surprise. So, I mean without even going through the motions, I'd say whoever's appropriate within OGIS, talk to Gary Stern and his shop to find out OK, [01:28:00] what exactly can we do on this? And once we know that, we've got something already set in writing, and you can use that as the impetus to say OK, it -- can we do this? And if not, Gary's office comes back and says "No, you can't do this, but you can do that." Then, we can just do that.

HOLZER: Right, and I -- yeah, that makes sense. But so, let me back up a little bit. This is just (inaudible). So like, I understand that we're not used to motions and, you know, seconds and all of that stuff. But I really do think that's important, that we kind of follow some of the normal structures within a Committee. Because otherwise, it's really simple for me to simply say that it's the will of the Committee to do whatever it is I want to do. And that's not how this Committee should be set up.

Although I'm the Chairman, it really is your guys' will, whatever it is that you decide is the majority for us to move forward. But, just because on this side we may say we want to just post it, and on this side [01:29:00] over here we may say we want to post it after consulting, the only way that we can really do this in a fair manner is if there's a vote. And I need to know where the majority lies, and so we can move forward.

So, my goal is to move us forward. Every meeting, that's my goal, I want to move the football down the field, OK? We're running out of time to do this as this Committee's term expires. I think that we made great progress on the recommendation regarding the OMB guide, and based off of these kinds of discussions. I don't really think we're that far off on this one, either. But I also want to make sure that each member understands that their voice is heard.

So if Nate wants me to go forward and post this on the website, and then seek approval, and that's the Committee's will, even though I voted no, I will do that. Because that's the Committee's will. What I would urge everybody to consider is the constraints of this system, which is let me go to NGC, let me ask them if it's a survey or a poll, how can we change it, and then let's post [01:30:00] -- if we're able to, post that document and seek approval that way. That frees up my hands. And it moves the football down. And I can do this expeditiously. You know, I think I've proven that, you asked for the charter to be extended, the charter was extended.

JONES: I just -- just let me just ask one question. When we say vote to post something, does it get up automatically, like that? OGIS's procedures, it automatically goes through some review. So, the reason that I say this is let's not, in my opinion, let's not give away two strikes -- two chances to strike something down. That's --

HOLZER: To some degree, like so now we're getting to process and semantics, OK? But the FOIA Advisory Committee webpage is maintained by Christa. So, if you tell her to post something, she more than likely is going to post it. To be honest, right? And I just mean as a procedural issue, you tell her that it's a document for the Committee, it's going to go up on the website for consideration. If you go to the website, you will see all the documents [01:31:00] that you have in your folder are on the website.

JONES: Beautiful website, (inaudible).

HOLZER: And we're making changes to that. I don't have to go to NARA to make changes to the website, or to post things. But this is a procedural question that we're asking, we're seeking official guidance from NGC, and that's a different question in my mind.

JONES: OK.

HOLZER: Does that make sense to everybody?

JONES: I think so, yeah.

HOLZER: So, yes?

PRITZKER: This is David again. Not every issue that comes before the Office of General Counsel is a Constitutional issue. You know, I know one of the benefits of working in a small agency as I do is that you can get a quick response on anything that doesn't require a lot of research. You know, if a NARA employee comes to OGC, seeking advice on an ethics issues, typically I would expect you get a fairly quick answer. And I am hoping that if you can [01:32:00] approach either Gary directly, or some appropriate person on his staff and say, "We're looking -- the Committee is looking for a quick reading on whether there's a problem here, do we need to change the wording at all? "And I would suggest that the Committee authorize our Committee chairman to, if necessary, to change -- make minor changes in the wording, as long as it's consistent with what we've done. But there is -- I'd like to think that the office of general counsel here has some flexibility to give a quick reading on relatively small issues.

HOLZER: Well I will tell you, you know, I've had some really great counsel at DHS, but the NGC -- here, we have two of them are here in the room, are phenomenal, they're always responsive, and they give us exactly the kind of guidance that we're seeking. [01:33:00] And they do it in an expeditious fashion. So, I don't think this is going to be that hard of a lift for us to get a reading on this.

PRITZKER: And as I said, I would urge that (inaudible) sense of the Committee to authorize (inaudible) to accept any minor edits, as long as it's consistent with what our draft says.

MALE: Is that possible? Or are we going to have to do another vote in a month?

HOLZER: Well, so I would like to modify, I'd like to seek an amendment to the vote that you -- that we just talked, I mean I think it was pretty much overwhelming, and will do a good job of tallying up who voted where. But I think that the majority of the Committee wanted us to just simply post this document. If I could make a motion, I would like to post this document contingent on NGC's approval, and any edits that they may have. Or, [01:34:00] if it falls outside of -- if I'm not allowed to, or able to do that, but then I would then come back and seek the Committee's will.

BARBER: Hear, hear.

HOLZER: Can I get a second?

FEMALE: Yeah, second.

HOLZER: All right. Just voice vote. Voice vote, is that OK? All right. All in favor?

GROUP: Aye.

HOLZER: All right. So I think --

PRITZKER: (inaudible) from time to time, very frequently, I think, sends, to this (inaudible) notices of what's on the site. I'd suggest we do that, if and when (inaudible) posted, and maybe that will get the interest of (inaudible) and the attention, and actually submit comments.

HOLZER: And we will note that and see if we can do that. All right. [01:35:00] I appreciate all of that conversation. I think that that (inaudible) was a lot. So, we're going to take a short break, I believe, is that correct? Ten minutes. About 15 minutes. If you could be back in here about 11:15. Thank you very much.

(break in audio)

(overlapping dialogue; inaudible)

[01:36:00]

HOLZER: All right, (inaudible).

(overlapping dialogue; inaudible)

[01:37:00]

HOLZER: All right, thank you, guys. We will start back up. We're looking for the -- we were going to discuss the final subcommittee report on product and disclosures from the subcommittee. However, Mr. [Eric] Gillespie and Mr. [Brent] Evitt are unable to participate in the meeting. So for this reason, I'd like to ask the Committee members for their thoughts on the topic of proactive disclosures. We discussed in previous Advisory Committee meetings the Department of Justice's OIPs, and they're currently piloting a release to one, release to all program. So we could start there. Melanie, if you will.

PUSTAY: Oh, sure. Well, it's our -- we're in [01:38:00] the last month of the pilot. So, we're actually really looking forward to compiling our report, what we've been doing is asking the participants to measure as best they can the time it's been taking to post, any challenges with posting, and one of the really important metrics is whether or not the time it takes to post is diverting folks away from processing requests, because we sort of don't want to rob Peter to pay Paul. So we're -- so it's this -- we've, you know, we have a series of metrics that are being collected by us from the participants, and then after this month, so just a few weeks, we'll get our final report on January from the participants, and then we'll work -- we'll start kind of looking at it all to see what conclusions we can draw with the idea that we'll then issue [01:39:00] like a final report, and like our conclusion, where we think we can go from there, we're certainly wanting to do that in advance of Sunshine Week.

HOLZER: Wonderful.

PUSTAY: Yeah. It ought to be interesting.

HOLZER: Does anyone have any questions or comments on this?

(overlapping dialogue; inaudible)

PUSTAY: Yeah.

JONES: (inaudible) we're looking forward to the results.

PUSTAY: Yeah, thanks.

HOLZER: Does anyone have any questions, or comments, or thoughts on the next steps for the subcommittee?

JONES: Well, a question and comment, and they aren't necessarily next steps, but one question about general, how we go (inaudible) one general idea if you guys want to share with you guys (inaudible) project disclosure. The first is, I really do appreciate the comment at the beginning, explaining (inaudible) 508 [Section 508 Amendment to the Rehabilitation Act of 1973] compliance, and how come it takes a little bit of time to get [01:40:00] the videos posted.

But I also want to reiterate my concern that for the general public, I think that this still is a concern, and I want to ask, especially now that we have two more years of meetings, just (inaudible) questions of one, how come when agencies livestream or other people live stream things, that this is a requirement, and how do -- I don't want to use the words get around, but just some basics on that.

And two, look into if it's feasible, or if not, why not, to have NARA live stream this. And I know it costs money, I realize, but it would be good to get a dollar amount, and why that's not (inaudible). And the reason I say this is because FOIA requesters don't just live in DC, and it's hard to come to meetings, especially when it's cold out, and I think I've heard today an inkling from more public participation and from where I sit, one of the reasons is [01:41:00] because in my opinion, it's -- maybe it's a little bit behind the industry, or real-life standards that it's not shown on real-time, so people can't live tweet it, watch it live or watch it later. So, going forward, especially in the next two years, especially as we're part of the Open Government Partnership, I think there's a lot of that, I sense modernized FOIA using technology, I'd like to somehow look into if we can use the (inaudible) meetings.

HOLZER: (inaudible) so this issue will be addressed and resolved after next term. So, I don't think that -- you know, I've had discussions with staff, so I think that this is something that we could -- that we can probably make happen. OK.

FEMALE: Great.

JONES: Great. And then, the next broader question, just on proactive disclosure. Something that we talked about last time, and again it's related to 508, but something that I kind of -- I think [01:42:00] how -- I just want to say that I think a possible solution moving forward that I want to share with you guys (inaudible) think about it in the future of how to incorporate it, I think that it's a tricky challenge, but I think the solution is pushing this challenge onto the FOIA vendors, and making it so that the people that sell the software that processes the FOIA requests should include something that's up to industry standard, that agencies can use, and not waste their resources after already using, I'm not going to name names of companies, that process the FOIAs. But, we should make -- either find one company that has this, then buy it from them, because they make our job so much easier, and not process the FOIA using program, and then before you post online, as well as any type of (inaudible) then re-OCRing it, and PDF, I think the solution is, [01:43:00] and I hope some of these people are making it, to make it as close as you can to a one-click solution where they process the FOIA, and then one click to get it 508 compliant to whatever standard is needed, and another click to post it online fairly easier. So I think we should look towards shifting the burden from us to software. I just wanted to get that on the record.

PUSTAY: Hear, hear.

HOGAN: And I've been learning -- Jim Hogan here, excuse me, Department of Defense, about what exactly (inaudible) compliance, and if I'm not mistaken, maybe there's not exactly a hard standard exactly what it is. And so, that's part of the vendor's problem. They say oh, we're 508 complaint, but what's the standard? OK. And I also, another thing is it still may be the case, no matter how good software can be, there still has to be some kind of manual, you know, manual review in some documents, handwritten notes, blacked out areas, charts and graphs, and some of that. I don't think (inaudible) [01:44:00] some kind of software product that's reasonable cost. But yeah, I agree with you there, that sort of frustration, and I think -- and I'm looking forward to the results of the pilot that the Department of Justice is doing, we've been participating at the Department of Defense, and see exactly, you know, some hard numbers on what it does for resources, and what we're having -- we're all having issues with resources, the government, DOD, some parts of DOD it's 20% reduction in resources. And trying to keep the resources on processing for you is going away because I think it's -- I think we finally realized that pro-active disclosures does not necessarily reduce (inaudible). It could, in some ways, some places it does. Some agencies it does, some agencies it doesn't. It's different across the board, maybe we can see what it does, and at least in our department, we very much appreciate the pilot project, (inaudible) I think, you know, we [01:45:00] -- we -- we, I understand, the Department of Defense understands the importance of proactive disclosure, just like to do it, and if we get some kind of process going back is proactive from the beginning, you know. Looking at documents as they're created, not at the end.

JONES: And just one really quick add-on is that the national action plan number three, there's a 508 compliance aspect of it. And I (inaudible) hope that that will make it easier to post documents, (inaudible) and I don't know if that's started yet, but hopefully, that can be a tool that we can use to get some (inaudible) and make it easier (inaudible).

HOLZER: Any other comments or questions for the subcommittee? So, I would like to suggest that the Committee invite Professor Margaret Kwoka (inaudible) I don't know if you're familiar with her work, [01:46:00] she just published an article [Kwoka, Margaret B., FOIA, Inc. (November 2, 2015). Duke Law Journal, Forthcoming; U Denver Legal Studies Research Paper No. 15-57. Available on the Social Science Research Network (SSRN): http://ssrn.com/abstract=2685402] recently regarding the commercialization of FOIA.

I've had a chance to talk with her about her work, I found it kind of actually novel and interesting, to be honest. She has several recommendations at the end of her paper, but I think it'd be really useful as a starting point for a conversation for the subcommittee to kind of discuss.

Basically, she took the work of six Federal agencies that have a high number of commercial requests, and then she did some case studies on it. And what she came, her conclusion was that we should look for a target set of records to proactively release. And so, she comes with already some sort of recommendations, you know, in her pocket. But, Christa, I don't -- I believe in your package, I (inaudible) we're going to send out the link?

LEMELIN: I will send out the link.

HOLZER: OK, we're going to send out a link to her paper, it's quite long. But I would recommend or urge [01:47:00] you guys to read it, and then if it's OK, I'd like to invite her to present at the next meeting. Can I get a consensus on that?

FEMALE: Yeah, sounds good.

HOLZER: Yeah? It's really, I mean it's one of the very few educational or scholarly type works that I've seen around this issue of commercial requesters. And I mean, I found it kind of fascinating, but I'm a FOIA nerd, so thank you. All right, so we have just a few more minutes to wrap up this discussion if we don't have any other questions or comments for the subcommittee. No? All right.

So, all of you have been hard at work, and you've made, I think, great strides since October. Hard to believe this is only the second one. I thank you for your efforts. So as discussed earlier, the Archivist has recognized and reaffirmed the importance of this Committee and its efforts by renewing the Committee's charter. And today, having reviewed the work that we've [01:48:00] done, and considered the road ahead, I just want to open up the floor to any comments that the Committee members may wish to offer.

ZAID: This is Mark Zaid. So we had talked a number of times, in fact, I think since the first meeting, about trying or desiring to have a work product that we would have at the end of our town. Obviously, with the extension into second term, although some members may not still be members at that time, I'm not sure if that's needed, but something I would suggest, probably should have talked about it earlier, given March being Sunshine Week. Since this is the 50th anniversary of FOIA, I want to say, and I think we talked about this at one point, somebody probably knows, it's like September, October was technically the anniversary, I think if anybody remembers when the law actually passed. Was it July 4th?

FEMALE: It was signed July 4th.

ZAID: And then [01:49:00] -- but then it wasn't implemented, technically, until six months, 180 days, something like that?

FEMALE: A year.

ZAID: A year? So we have a couple opportunities for 50th anniversaries, but you know, since we have one more meeting before this body disbands in May, might I suggest, and I'm happy to be one of the people to take the lead on this, with hopefully some other people that would be willing, because maybe we can issue a sort of resolution from the Committee, in anniversary of FOIA with a sense of what we've either looked at, done, and what we sort of see as a vision going forward for the next Advisory Committee, and FOIA in general. I mean, it doesn't have to be anything hard, it could be, you know, a page proclamation or something like that, a page or two. And if somebody -- if anyone else is willing to kind of work [01:50:00] on that one, two, three, four, everybody, doesn't matter.

PUSTAY: Yeah no, I'll do it with you. I think it's a nice idea.

ZAID: Now we can vote on it for the April meeting, and issue it.

PUSTAY: Sure. Issue it some -- yeah, we have lots of times to do it. I think it's a nice idea, I think it's going to be the type of thing we're going to have a lot of focus on the 50th, you know, people will be using the 50th anniversary all throughout the year as a way to do different things, and certainly Sunshine Week, I think, will be very much taken up by the sort of celebration of the 50 year anniversary. So, I'm happy to work with you on a proclamation, a letter, whatever else we want to call it. I don't know, somehow proclamation's not that nice from the Advisory Committee.

ZAID: Right. So if anybody else is interested, they'll just say hopefully right now, just email Melanie and I, and we'll start drafting.

HOLZER: Please remember to CC Christa. (inaudible).

LEMELIN: That's right.

HOLZER: Any other comments? All right, great. All right, so please remember that Christa -- Nate? Sorry.

JONES: (inaudible).
HOLZER: OK, yeah.
JONES: Well, we've been talking a lot about FOIA in general, but right now, I'd actually like to talk about FOIA in one specific actual document. And the records (inaudible) requester community, and I'm doing in this capacity right now. And that document that I think is troubling to I think the majority of outside the government suppresser community is the (inaudible) Committees report on torture, that was sent to Federal agencies. And there was a report in The New York Times that recently had a letter, I think from November 5th, from Senators Feinstein and Lahey, and Senator Lahey knows more about FOIA than pretty much anyone, in my opinion. But he said he was very troubled [01:52:00] that, because of a potential FOIA lawsuit, the National Archives would not comment whether or not this was a Federal document, even though it had been sent to agencies in their possession, and there's a lot of case law that I won't go into. And that the Department of Justice is arguing that it's not a Federal document so that this FOIA lawsuit shouldn't go forward. And people can't use FOIA to see this potentially important document. And I wanted to say that that's troubling. I realize that it might be classified, there's a FOIA exemption for that, and if the document is classified and should be exempted, it would be one until the secrets no longer harm US national security. Shouldn't be put into a FOIA runaround and arguing that it's not a Federal document, just because it may give them a better chance to win the lawsuit. The last thing I want to add on this is that there was a specific law passed in 2014, the Federal and Presidential records Act amendment, that gives the Archivist of the United States the specific authority to end this runaround by saying what's a document, and what isn't. So, on behalf of the request community, and I would strongly urge that to make sure that the work we're doing in the Federal FOIA Advisory Committee, based on the (inaudible) partnership, and the National Government Action Plan, that we make sure that we do with deeds as well as words, and that I would like to say to the Archivist, formally for the record, call this a Federal record, and go through the FOIA process and withhold it through that if it needs to be withheld, but I feel that it's -- that I had to say something.

MALE: And pardon me, I'm going to say one more thing, I'll follow Nate's lead on the request for community, because from a specific issue, but more general point, as I'm sure everybody knows, there's a slew of lawsuits involving the State Department, and the former Secretary and her senior staff's [01:54:00] emails. And, of which, from a disclosure standpoint, I think I have three or four of them that I'm handling. But in one indication, there was a release the other day of some emails that talked about how the State Department senior officials were aware that the Secretary and her senior staff were using a private server and had recommended that they switch to a government Blackberry, and a dot-gov address. I'm not asking, nor even going to comment on the merits of the withholdings or anything like that, but there was a comment made by one of the senior staff because I don't remember specifically which one, I won't say a particular name and guess. But there was a comment that, in switching to a dot gov, that that might then -- that would require them to be subject to FOIA. The sentiment in the email, the way it can be interpreted, was that they were deliberately trying to avoid having their communications [01:55:00] subject to FOIA as a senior government official. I think everybody would probably agree that that's not the way to go with any agency, that may be something that we can address in a non-controversial way in this proclamation, of something that we would issue, government business is obviously subject to FOIA, and exemptions, clearly not -- you know, that was something that is obviously still ongoing, not only at the State Department, but also a Justice Department investigation into certain aspects of it. But, the sentiment is really what I'm raising as this notion of what appears to be a potential deliberate effort to circumvent FOIA in engaging in the business of the public, and the people. So, I'm just going to throw that out there too, as a member of the requester community, and the representative, one of the representatives here.

HOLZER: Thank you. Any other [01:56:00] comments, questions? OK. And please remember that Christa, the DFO, and I are here to support you. Yeah, so please just let us know the best way, how we can do that. At this time, I'd like to turn to members of the audience that have braved the weather to be here. We have 20 minutes, and we will take comments and questions from the folks in attendance. I invite those of you with questions or comments to approach the microphone, and for the record, please state your name and organization, if appropriate. Do we have any comments? Wonderful, OK. And OK. So, the Committee has already been actively engaged in efforts to improve FOIA through the work of the three subcommittees that are underway. [01:57:00] I look forward to continuing the work in the coming years. At our next meeting, we can expect to formalize what has been discussed, make it -- take any more recommendations, and then we'll vote on, for the full Committee as well, like we did today. I invite everyone to visit our website at ogis.archives.gov, and follow us on social media for more information about activities, and how you can participate. Finally, please mark your calendar for March 14th, 2016, both OGIS and the Department of Justice office of information policy are celebrating Sunshine Week with events. We will post and tweet about the OGIS event, and hope to see you all there. Before exiting this room, please note that all of you must undergo the National Archives exit screening procedures to leave the building. For security purposes, security staff will check your bags to ensure that no archival holdings are removed from the building. Thank you again for your interest in FOIA, and for your participation in today's meeting. [01:58:00] We look forward to seeing you at our next meeting, April 19th, 2016. Thank you. We stand adjourned.

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