Office of Government Information Services (OGIS)

April 19, 2016 Meeting Transcript

National Archives and Records Administration (NARA)

Freedom of Information Act (FOIA) Advisory Committee Meeting
April 19, 2016

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)
Larry Gottesman, Environmental Protection Agency (EPA)
James "Jim" Hogan, U.S. Department of Defense (DOD)
Nate Jones, National Security Archive
Karen Finnegan Meyers, Department of Defense (DOD)
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)
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:

Eric Gillespie, Govini
Ramona Oliver Branch, Department of Labor (DOL)

Others present at or participating in the meeting included:

David S. Ferriero, Archivist of the United States, NARA
Amy Bennett, OGIS, NARA
Cindy Cafaro, Department of Interior
Margaret B. Kwoka, University of Denver Sturm College of Law
Christa Lemelin, OGIS, NARA
Ginger McCall, former non-Government Committee member, now with DOL
Michael Ravnitzky
Alina Semo, Office of General Counsel, NARA

HOLZER: Thank you. Good morning. I am James Holzer, the Chair of this Committee, and Director of the National Archives and Records Administration's Office of Government [00:04:00] Information Services. It's my pleasure this morning to welcome you to the National Archives, and to introduce the 10th Archivist of the United States, David S. Ferriero.

FERRIERO: Good morning, and welcome back. For those of you who have been with us before. So, the National Archives established this Committee in May of 2014, and while the creation of the Committee was a result of a commitment in the Second United States Open Government National Action Plan, the overreaching goal of this committee, to increase access to our nation's vital records, mirror those of the National Archives, as an agency dedicated to driving openness, cultivating public participation and strengthening open government by promoting access to federal records.

The National Archives is proud to have provided a home for this committee. I know you have a full agenda for this meeting, but before you begin [00:05:00], I wanted to thank the staff of the Office of Government Information Services for their hard work in administering this committee over the last two years. And at this point, I'd like to hand the program over to James Holzer, the Director.

HOLZER: As part of the open government partnership, the United States issued its second Open Government National Action Plan on December 5th, 2013, setting forth ambitious commitments to advance open government in the subsequent years. These commitments included this Committee, which the National Archives established in May, 2014, to improve FOIA administration through the collaborative efforts of both requesters and federal agencies.

As an agency dedicated to driving openness, cultivating public participation, and strengthening open government by promoting access to federal records, the Archives is a natural home for this Committee. I want to thank the Archivist of the United States for his leadership and commitment to open government, [00:06:00] and working to extend the Committee's charter for another two years. As the Committee's 2014-2016 term ends, I want to thank our Committee members for their time and service and their commitment to improving FOIA administration across the executive branch. I would also like to thank the members of the public who attended and participated in our open meetings and submitted comments.

Next, we will spend a few minutes introducing the Committee members who are around the table and participating in the meeting via telephone. During the course of this meeting, for the record, please 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 yourselves, and remind the group of your profession. Dave Bahr.

BAHR: Good morning. My name is Dave Bahr, and I'm an attorney in private practice, and I represent requesters, mainly in matters of [00:07:00] public records, and that is all around the country.

HOLZER: Thank you. Andrew Becker? Eric Gillespie? [Note: Mr. Becker and Mr. Gillespie were unable to call into the meeting.] Anne Weismann: ?

WEISMANN: Good morning, this is Anne Weismann , I'm the Executive Director of Campaign for Accountability, and also a FOIA requester.

HOLZER: Thank you. Now let's hear from those of you in the room. Please introduce yourselves and remind the group where you work. We'll start -- actually we're going to start with the table, with Mark.

ZAID: Mark Zaid, private practitioner (inaudible) FOIA user, and litigator, and the Executive Director of the James Madison Project.

PUSTAY: Melanie Pustay, the Director of the Office of Information Policy [00:08:00] at the Department of Justice.

JONES: Nate Jones, Director of the Freedom of Information Act project at the National Security Archive.

EVITT: And I'm Brent Evitt, I'm the Deputy General Counsel for Mission Services, Science and Technology, at the Defense Intelligence Agency.

MULVIHILL: Hi, I'm Maggie Mulvihill and I teach data journalism at Boston University, and I'm an attorney, and frequent requester.

GOTTESMAN: And I'm Larry Gottesman with the Environmental Protection Agency, I'm the Chief of the FOIA and Privacy Branch.

HOLZER: Thank you. Can I start with Karen Finnegan [Meyers]?

MEYERS: Hi, I'm Karen Finnegan Meyers, formerly with the State Department, now I'm with the Department of Defense, the Director of Executive Services Directorate.

HOGAN: I'm Jim Hogan, I'm with the Directorate for Oversight and Compliance, Department of Defense.

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

MICHALOSKY: Good morning, Martin Michalosky, I'm the Deputy Chief administrator Officer for the Consumer Financial Protection Bureau.

WHITE: [00:09:00] Lee White, Executive Director of the National Coalition for History.

PRITZKER: I'm David Pritzker, Deputy General counsel of the administrative conference of the United States, we're a small federal agency that's structured by statute as a public/private partnership for good government.

JOHNSON: I'm Clay Johnson, I'm the founder of the Department of Better Technology, which is not a small federal agency.

HOLZER: Wonderful, thank you. All right. Let me also introduce OGIS Facilitator, Christa Lemelin, who serves as the Committee's Designated Federal Officer [DFO].

So before we hear from our subcommittees, I want to review our general agenda, set out the basic expectations for our meeting, and provide you with information concerning the Committee's 2016-2018 term.

Under the terms of our current charter, this is our last meeting. We anticipate the Charter's renewal though in May. We recently published a Federal Register Notice, [00:10:00] and an OGIS blog post announcing that NARA seeks nominations for individuals interested in serving a two-year appointment on the FOIA Advisory Committee. NARA seeks committee members who represent a wide range of views and interests, including large and small federal agencies, requesters from different categories, including historians, journalists, academics, and non-profit organizations that advocate on FOIA issues.

Self-nominations are welcome, and current Committee members are not only -- not only may they, they are encouraged to reapply. So, to reapply, review the instructions in the Federal Register, or the OGIS blog post, and by April 30th 2016, please provide the following information: The nominee's name, title, and relevant contact information; a short paragraph about the nominee, summarizing the nominee's background and experience, or otherwise highlighting the contributions the individual would bring to the Committee. And also, a resume. [00:11:00]

The 2016-2018 Committee will have four meetings per year, once we schedule meeting dates for the Committee's next term, we will make that information publically available on our website and through our blog. At the new Committee's first meeting, Committee members will discuss and create subcommittees to address FOIA topics of interest to the Committee. The Committee Designated Federal Officer, Christa Lemelin, will be passing the DFO torch to Kate Gastner as the new DFO for the Committee's 2016-2018 term. So stay up to date on the late OGIS and FOIA Advisory Committee news, activities, and events by visiting our website at www.ogis.archives.gov, our blog at foia.blogs.archives.gov, and on Twitter at FOIA_Ombuds.

So, we will take a 10 minute break around 11:15, and during the break you may wish to purchase food or drink from the [00:12:00] Charters Café, which is located two levels down on the ground floor, which is also where the restrooms are located.

So, we have allotted time at the end of each subcommittee presentation for public comments. So that's a slight departure, it will be after each report. At these times, we look forward to hearing from non-committee members who wish to comment. We also welcome anyone to submit written comments to the Committee at any time. So, I would like now to turn our attention to the approval of our January 19, 2016 meeting minutes. The Committee Members have had a chance to review a copy of the January 2016 meeting minutes, and I believe there's a copy in your folders as well. Melanie Pustay submitted minor edits to the meeting minutes, and I would like to know if there are any additional revisions to the minutes. OK, if there are no additional revisions, I will now entertain a motion to approve the minutes.

Do we have a motion? [00:13:00] Thank you.

Do we have a second? Thank you.

All in favor?

Aye.

All opposed?

All right. The minutes are approved.

So next, for the proactive disclosure portion of today's meeting, I'd like to turn the floor over to our guest speaker, Margaret B. Kwoka, Assistant Professor at the University of Denver Sturm College of Law. Professor Kwoka will present her study of the commercial use of FOIA and proactive disclosures as a public benefit and potential cost saving measure for agencies.

Professor Kwoka is a graduate of Brown University, and Northeastern University School of Law, and a former education volunteer with the Peace Corps. Her research and teaching interests, center on civil procedure and procedural justice, administrative law, and judicial review of agency actions, federal court litigation, and government transparency. Her articles have appeared or will appear in the [00:14:00] Duke Law Journal, the Boston University Law Review, UC Davis Law Review, Boston College Law Review, Maryland Law Review, American University Law Review, and Harvard Journal on Legislation, among others. The Society of American Law Teachers selected Professor Kwoka as the inaugural winner of a Junior Faculty Teaching Award, and the New York Times recently featured her work.

On a personal level, I've had an opportunity to hear the presentation, we had her come speak at OGIS and I'm very excited to have her come and give her presentation to you guys. Professor Kwoka, the floor is yours.

(applause)

KWOKA: I want to thank OGIS Director James Holzer, and Assistant Director Amy Bennett [Note: Ms. Bennett is a Management and Program Analyst on OGIS's Compliance Team] for inviting me to present my recent research findings to you today, and [00:15:00] particularly in this 50th anniversary year of FOIA's original enactment, I know there's a palpable excitement about the possible FOIA reforms and so, it's an especially great honor to be able to join you to talk about my work.

So in my remarks, I'm going to try to highlight some of the key findings in my study. The final version of which just became available in the Duke Law Journal, and I'll also detail some recommendations that I have based on those findings. And I'm really looking forward to our discussion, but I welcome questions or comments at any point in my presentation.

So, what prompted my work in this project was a combination of two observations that will sound familiar to you. One, is that journalists and the news media sort of have a constant low-level complaint about how FOIA simply isn't very useful in many instances in reporting the news. Even though journalists were the prime intended users of the law, [00:16:00] and then the other was that, despite the kind of loud, you know, complaints about FOIA's failings, as we all know, the federal government's now receiving over 700,000 requests a year. And so, it must be serving someone's interests, at least well enough to keep them coming back for more. And so, in this paper, I'm looking at one set, only one, but one set of FOIA users, and those are commercial requesters who use FOIA as part of their profit-making enterprise. And particularly in this anniversary year for FOIA, I think it can be helpful to contextualize some of my findings by examining the impetus for the law as originally conceived

When I say that the news media was the intended beneficiary of FOIA, it may even be more fair to say that they were intimately involved in drafting the law. In 1953, Harold Cross wrote a book called The People's Right to Know, in his capacity as an advisor to the American Society of Newspaper Editors, [00:17:00] a prominent journalism organization at the time, and after documenting the patchwork of existing access laws at that time, most of which fell woefully short of journalists' needs, Cross called on Congress to legislate a right to access public records at the federal level. And the book garnered interest in Congress, Cross himself subsequently became the legal advisor to the special subcommittee in the House of Representatives tasked with drafting the law which, of course, Representative [John] Moss chaired. And journalists in fact mostly staffed the subcommittee. So, journalists were crafting the very contours of the law, not just its vision. But the vision was equally important to Congress. So, this is a vision of course with which we are all very familiar.

The whole idea of public records access designed for journalists was that the news media could use the law to inform the public about government activities and thereby enhance the public's ability to participate in democratic governance and hold [00:18:00] elected officials accountable. And the legislative history of FOIA is replete with references for the need to have an informed electorate as vital to a democratic society.

The reality today though is that news media make up a tiny fraction of requesters. In the single digit percentages at most agencies. Journalists find the law slow in operation, and the fight for access to be resource intensive. They simply don't have the time or legal budgets to take full advantage. But we do have some requesters who do have the time and the budget, and those include the requesters that I studied, which are commercial requesters. And I think prior to, you know, my work, I think there's been kind of only anecdotal or sometimes, you know, numerical but not much more understanding of commercial requesters, and how they're operating. And so, I'm -- I really sought to do an in-depth study of what types of commercial interests are served under the law. [00:19:00]

And so, to that end, I'm sorry, it [the PowerPoint slide on the projection screen] seems to be slightly cut off, but to that end, I conducted case studies of particular agencies with significant numbers of commercial requesters whose data on FOIA I obtained by filing my own FOIA requests. And the agencies that I ended up studying, for various reasons, were the SEC, the FDA, EPA, the Defense Logistics Agency, the FTC, and the NIH.

And at each of these agencies, the amount of commercial requesting is very significant. So, that's represented in green on this slide. And in fact, at four of the six agencies, commercial requesters are a majority of requesters, and at some an overwhelming majority.

So these agencies, starting on the left, are the SEC, with 69% commercial requesting, FDA with 75%, EPA at 79, and the Defense Logistics Agency at 96.

But more than just the numbers, [00:20:00] my study of agency data was designed to reveal exactly how businesses are using FOIA, and as I describe in the paper, there's a large range of uses. And let me be clear from the outset that none of these uses are in any way illegitimate, much less unlawful. In fact, it's entirely likely that some fraction of commercial requests do advance FOIA's underlying democratic goals. But, my study does show that commercial interests, you know, largely, by and large, are also advancing pretty strong private interests, rather than promoting the public's knowledge about governance.

So for example, businesses use FOIA [00:21:00] to get information about their competitors, lawyers use FOIA both to get information useful to their current clients, but also in potentially recruiting clients for case development. So think about, you know, drug or medical device claims, and FDA requesting. Businesses use FOIA to get information that they then feed into various other services that they provide, such as consulting, or advising, or publishing ventures. Companies that provide due diligence services are another big group of frequent commercial requesters.

So for example, at EPA, almost all of the most frequent commercial requesters are companies that evaluate environmental risks for business clients prior to real estate transactions. Likewise at SEC, many of the most frequent requesters are due diligence firms that provide reports prior to certain types of business deals, like initial public offerings, mergers and acquisitions, and things such as that. And they're seeking information that might suggest a regulatory risk, or an investigation of the target company.

And then finally, there is a group of frequent commercial requesters that most interested, and in some ways surprised me. And that was the proliferation of a category of businesses that I classify as information resellers. [00:22:00] So these are businesses who request large volumes of records from the federal government, and resell them, sometimes at considerable profit, to private parties.

So let me provide a few examples. At FDA, the single highest volume requester is a company called FOI Services, Inc., which submitted 571 requests in 2013. In turn its sole business model is to request under FOIA FDA records and resell them. It maintains a database, individual records within which can be purchased. It also offers services of making custom FOIA requests. Another company that does the same thing, somewhat misleadingly named, is called FDA News. It maintains a library of FDA form 483s, which are facilities inspection reports. And it sells access to that database for an annual subscription of nearly $1,000, or individual reports for more than $100 each. [00:23:00] And it obtains those reports, those facility inspection reports, by submitting hundreds of FOIA requests a year. Washington Information Source essentially does the same, it has an access of inspection records that includes those reports and other documents, which it requests en masse under FOIA.

And these three information resellers at FDA are not alone. Resellers are present amongst top requesters at five of the six agencies that I studied. And at two agencies, FDA being one of them and SEC being the other, multiple resellers compete against one another. So here are some other examples.

The biggest commercial requester at NIH is the FOIA Group, which is an information reseller that makes custom requests on behalf of clients. One of the biggest commercial requesters at the Defense Logistics Agency is a company called [Daye and Daye?], which is an information reseller that maintains various databases of defense contracts and bids for those contracts. Access to which costs $1,800 [00:24:00] a year.

And at the SEC, one of the biggest requesters is Bioscience Advisors, which maintains a database of licensing and development contracts that have been filed with the SEC. An annual subscription to which is nearly $10,000. Another is Royalty Stat, which competes for largely the same market with Bioscience Advisors, markets various database products, including a licensing agreement database, which it advertises comes from the SEC filings it requests under FOIA. Even SEC's biggest requester, SEC Probes, which at the time was classified as a news media requester, should probably be considered a commercial reseller, as it maintains a database of SEC investigation materials that its founder has been collecting and reselling under other business auspices for years. At the time of the study, access to the materials they had on this version of his website was free, and so I think it was classified [00:25:00] as news media. Now, access is charged at thousands of dollars a year. But as an aside, if this one requester was reclassified, it would put the SEC at 89% commercial requesting, rather than 79, and only 3% news media.

And the EPA, there's also a reseller amongst the top requesters. EDR Inc. is a company that offers, in its words, a "comprehensive look at current government environmental filings." And its database collection is evident in its FOIA requests, it requests entire categories of records rather than records about say, a specific property like the other commercial requesters do at EPA.

So resellers have cropped up at nearly all of these agencies to fill various -- kind of a wide variety of niches of information needs amongst the private market. And, you know, based on the kind of [00:26:00] various commercial requesting practices that the study has documented, I want to talk a little bit about the implications of commercial requesting for FOIA more broadly in my view. So, one implication is that I think we can look at my data and infer that government is in some way implicitly or sometimes explicitly subsidizing corporate requesting. So my data suggests that agencies are often recouping only between about 1 and 5% of the cost that they incur processing commercial requests by charging those commercial requesters fees. And the numbers are not that small, right?

So, at FDA for example, they spent about $33 million in one year on FOIA processing, we can't disaggregate that cost by request, but if we know that about three quarters of their requests come from commercial requesters, then we would assume about three quarters of those costs, about [00:27:00] $26 million, would be attributable to commercial requesters.

By contrast, in that fiscal year it recouped only $327,000 in fees from commercial requesters in particular. And as we saw, some of these commercial requesters are making significant profits off of the government's giveaway of essentially free or low-cost federal records, which I think makes it a sort of unintended corporate subsidy. Now we have subsidies all over the private marketplace, many of them are justified because we have kind of a public good attached to it. You know, familiar subsidies that create urban renewal, or jobs, or something like that. But in the case of commercial use of FOIA, I think that my study demonstrates the overwhelming objective of commercial users is fueling private profits and not in particular the public interest that Congress had in mind. And in particular, companies often profit from these records specifically because the requester closely guards the information obtained. [00:28:00] It's not a vehicle for dissemination to the public about what government is doing.

So for example, commercial requesters using FOIA for due diligence services are only able to profit from that information precisely because it's not widely available. Even more so, right, resellers can only profit from federal records because they guard those records closely and charge high access fees. And so, in this way I think the free and low-cost provision of federal records is subsidizing essentially corporate secret keeping, and not the democracy enhancing mission of FOIA to a large degree.

Second, I think the volume of commercial requesting suggests that at least at some agencies, news media and other requesters may be crowded out due to resource constraints. At bigger agencies that I studied, some individual commercial requesters, like a single requester, are filing hundreds and even sometimes thousands of requests a year. There's one requester at the SEC [00:29:00] that averages a request an hour for every business day of the calendar year. And so, given that delay and administrative burden are frequently cited reasons that the news media doesn't use FOIA more, and given that some agencies we know their average response times are well exceeding our 20-day statutory limit, business day statutory deadline for responses, it seems entirely likely that resources used to fill commercial requesters' requests are taking away from those resources available to be used for requests that might better serve FOIA's core mission.

And then third, information resellers end up, in some industries, becoming the actual locus for access to federal records for whole sectors in the private market. Which I think risks privatizing sort of a de facto privatizing of some of the transparency function itself. [00:30:00]

And there's two main reasons why companies often prefer to go to resellers rather than make their own FOIA requests at a fraction of the price.

The first is that it protects their identity. So, if a business files a FOIA request, their identity and the records they request will become part of the agency's FOIA logs, which themselves are generally available under FOIA. So a company may not want that information to become public.

A second reason is that these resellers warehouse information and can make it immediately available for a fee. And so, the delay and administrative burden of using FOIA is itself a reason that businesses use resellers instead. But as the reseller becomes the actual locus of access to federal records, I think we risk giving that reseller the power to decide, for example, that certain records aren't worth pursuing, and those records may end up hidden [00:31:00] in government files from all of the truly interested parties who use the reseller, rather than the agency as a source of government information.

I don't want, however, my conclusions about these various potential problems to suggest that I don't think businesses have legitimate information needs, or that they shouldn't be entitled to access government information. On the contrary, I simply think that FOIA wasn't designed for this purpose, and in fact is poorly suited to serve it. And one of the most interesting findings in the FOIA logs that I studied, for me at least, was that as it turns out, commercial requesters tend to request the same types of records over and over and over again. This is true both of sort of regular commercial requesters, and also the subset that I identified as information resellers.

So, for example, at FDA, at FDA, this is a snapshot of requests from a typical commercial requester, INC Research. [00:32:00] And you can see the subject matter of its requests in the last column on the right. So over and over and over again, INC Research requests form 483s and other inspection-related records. Obviously each particular request concerns a different facility, an inspection that took place, but the type of record that it requests is routine. Here's another great example, at FDA, there's actually a group of commercial requesters who do nothing but request the FOIA logs themselves, or portions of them. So J.H. Barr is one such requester, and you can see that all of its requests are simply for different time chunks of the FOIA logs.

And incidentally, there's some evidence suggesting that requesting the FOIA logs is a way of seeing what other people are requesting about you, or your client. So, this is -- these kinds of repetitive requests are typical of commercial requesters. In contrast to commercial requesters, if we look at news media requests, they vary widely in subject matter. [00:33:00] So, also at FDA, this is an example of Bloomberg News, a snapshot of their requests, you can see the subject matter of their requests varies from cybersecurity threats to correspondence between senior FDA officials, to results of a survey. So, the subject matter is all over the map. And this same pattern holds true at other agencies.

So, here's a list of the -- sorry. Here's a list of the requests made by a top requester at the DLA. The SP numbers you see on the right are solicitation numbers for bids for particular defense contracts. Essentially all of the commercial requesters are asking for bid information regarding those contracts. This is a list of requests from Bioscience Advisors, one of SEC's resellers, where you can see that all of the requests are for exhibits to required SEC filings.

So, given that commercial [00:34:00] FOIA users have information needs that are very routine, one by one FOIA requesting, in my view, is a highly inefficient way of meeting those needs. And by contrast, the varied news media requests may demonstrate the value of the one by one FOIA requesting model as the best way to serve journalist interests in reporting the news.

So, to address the fact that FOIA is, in my view, poorly suited to meet these commercial information needs, and in line with many of our recent transparency initiatives, I propose a relatively targeted but aggressive affirmative disclosure regime. And under this regime, agencies would be incentivized to, or perhaps even required to, identify routinely requested categories of records in their FOIA logs, and disclose those whole categories by publishing searchable, downloadable index databases of those records.

So, [00:35:00] this differs from the current regime, I'm using this example up here from FDA, it differs from the current regime under which agencies only have to affirmatively disclose frequently requested records once they are actually requested, you know, and only when the particular record requested is likely to be subject to subsequent requests. So under my proposal, for example, FDA would identify not a particular inspection record that is going to be the subject of frequent requests, but rather that inspection records generally are the subject of repeated requests, and would make that a target of affirmative disclosure. And publish those records proactively without waiting for requests to be received.

So, as to some of the examples that I cite in my paper, the data also supports the notion that routine disclosure is likely to be possible, so these very inspection-related records made up almost 2,000 of FDA's 10,000 requests in this year. And [00:36:00] of those 2,000 that were fully processed, it was actually 1,978 requests processed, a full 93% of them were released in full.

An even easier example is found with the hundreds of requests made at FDA for the FDA's own FOIA logs. All of which are released in full. So, this type of affirmative disclosure should certainly be paired with other affirmative disclosure efforts already ongoing, such as FOIA online.

And I think any important component of an affirmative disclosure regime is focusing on appropriate technology, including application program interface, to make data compatible with private parties' need to reasonably access and use it. I also think it would be particularly helpful to have the Office of E-Government and Information Technology assist in the creation of online databases to make them most useful and efficient in publication. [00:37:00] Certainly, there's nothing stopping agencies from taking this approach on their own under the current system. But, I also think there are several mechanisms through which agencies might be encouraged or required to take these kinds of steps.

So, the strongest form of implementation, of course, would have to come, I think, from some sort of mandate, either from Congress, through legislation, or a presidential mandate through an executive order. Either one could require agencies to undertake say, an annual review of their FOIA logs to look for opportunities in this regard to publish whole categories of frequently requested records. The requirement could also be enforced, potentially, through some sort of OMB review process for approval of the agency's decisions in that regard. And/or even through a private cause of action for agencies in noncompliance. Short of a mandate though, I think agencies can also be [00:38:00] encouraged and incentivized to take these sorts of steps, so the Department of Justice's Office of Information Policy, for example, which could of course issue an important -- which issues all sorts of important policy guidance on FOIA, but could issue guidance to this regard and advise agencies to undertake these sorts of steps. Maybe even more relevant here and to this audience, OGIS, of course, could also issue advice and best practices to agencies and make this part of its agenda. I think agencies could also be further incentivized by having to report affirmative disclosure initiatives like this as part of their annual FOIA reports to the Department of Justice.

So, in my view there's also -- there's a variety of potential benefits of an affirmative disclosure regime of the type that I am proposing. So for the agencies, I certainly don't want to minimize the fact that this kind of initiative would cost money. It would also save them on the back end from having to respond to [00:39:00] thousands of one by one individual requests in their current FOIA operations. And I think to the tune of potentially millions of dollars at some agencies. It would also have the secondary effect of freeing up the FOIA personnel at those agencies to potentially serve the requests that go more to the heart of FOIA more quickly, and might make FOIA faster and more useful for journalists and watchdog groups.

It would also kind of take back this public function and eliminate a private subsidy. Once these records are published for the world to see, information resellers who do nothing more than warehouse free or low-cost federal records and sell them at a profit would no longer be able to trade in what should be public commodities.

And I have up here, and it's a telling statement made by one of the information of the information resellers to the New York Times in response to my research proposal, the Day and Day vice president that says, "A good part of our business would go away," and thus he thinks this is a bad idea. [00:40:00]

But I'm actually not even convinced that this is a bad move for the business community, writ large. Maybe this particular business model, but, you know, in many ways I think it would level the playing field for private enterprise, potentially promote more fair competition, possibly help small businesses that otherwise don't have the resources to afford to purchase public information from private companies.

I think it would also force resellers like Day and Day and others to add more value to their services by bringing to bear their expertise, it might push innovation in those areas. So, publishing databases of these kinds of records I think lays the groundwork for all sorts of unanticipated benefits, including from researchers or news media who might find uses for the data in the production of knowledge or citizen engagement. And of course, once the agency has gone to the trouble, as they're currently doing, of searching for and reviewing, and making ready to [00:41:00] distribute these records, I think, you know, we should all hope that the public can reap the maximum possible benefit from the agency's efforts. So with that, I will stop and look forward to your questions and discussion.

(pause)

HOLZER: All right. OK. Thank you for joining us to present your fascinating research and findings. And now I'd like to open the floor to the Committee, and does anyone have any questions or feedback?

PUSTAY: I just want to thank you, it was really interesting, and of course we're -- at OIP, we issued guidance, about a month -- about a year ago, specifically on proactive disclosures and the whole idea of not just releasing frequently requested, not waiting for three requests for the exact same thing, but to look for opportunities, exactly the things you're talking about, [00:42:00] the type of thing, the type of document that's routinely requested, are perfect candidates for agencies to just change their whole dynamic from the get-go, and make them available proactively.

I think that one thing that was really striking was the sense I always have gotten from agencies is that the reason they don't do that, or the difficulties, or one of the challenges in doing that, is the idea of processing the records for release. So that if you spend all this time processing records, especially records that have exemption four considerations, you have to give notice to the submitter, there's a whole process, and that delays you from responding to other requests. But what struck me was that you had that statistic from the FDA where a lot of the reports were released in full. Now I don't know if they were released in full after submitter notice. That would be my one, I don't -- that's my one question, I don’t know if you know that.

KWOKA: My guess is yes, though I'm not 100% sure. And one other thing [00:43:00] that actually the New York Times reporter who wrote that story spoke to someone at the FDA about that very question, it didn't make it into the article, but about whether the forms that are being requested could even be designed at the front end to be checked when they're created, right? So then the check would happen at the front end as part of the same process, and then upload to the database would be --

PUSTAY: Immediately.

KWOKA: -- one immediate subsequent step. And so for whatever small percentage of forms have those concerns, that that could be dealt with at the front end, that suggestion was made, I think the FOIA officer that the reporter talked to said, you know, something like yeah, that's a great idea, I'm not quite sure why we don't do that. But I understand that there's, you know, a lot of bureaucracy between here and that kind of stuff. So, I think -- but I think that's the kind of, the way that we could think about solving those problems. Yeah.

PUSTAY: Move forward. I agree. I agree.

JOHNSON: That was really good. [00:44:00] So, yeah, I would like to nominate Margaret Kwoka to serve on this Committee.

(laughter)

Immediately. The one thing, just a piece of feedback, is I was the director of Sunlight Labs for a long time, at the Sunlight Foundation, and now I find myself a technology vendor to government, in part because I came to the conclusion that government can only be as transparent as its technology vendors will allow for it to be. Which is sad and depressing. But, you know, I brought forward to this Committee at the beginning of, at its inception, a "Hey, why don't we take a look at the technology behind FOIA?" The Committee decided to go in different directions, which is fine, and expected. But I wonder if the ideas of proactive disclosure [00:45:00] are being held back in some way by government's failure to acknowledge the existence of the Internet, which it invented.

KWOKA: I think you're absolutely right that technology constraints play a big role. And even when agencies are contracting with vendors, say to run their FOIA operations and things like that, sometimes the agencies have handed off enough that they don't have as much access or knowledge about how to use the systems that are in place as you might hope. That's actually been one of the complaints that I've heard about what I think of as a very successful first step, right, FOIA Online, is that the tech -- and I only, I don't do technology, but I had -- I actually was trying to get data from FOIA Online, and had to [00:46:00] hire someone to write code to scrape the website, because you can't download it en masse, right? So, you know, that's just a tiny example of the kinds of technology barriers, everything's up there, but it's still not actually reasonably accessible from a technology perspective. And so, I think that's a really critical component. And to the extent that, you know, we now have I think some more government resources going into technology, I think that's a really important point moving forward. I'm not sure what the best mechanism for improving that is, but I share your concern.

MULVIHILL: Also, this was -- you did a public service, I think, by doing this study. And as a journalist, I'm ashamed that we made up such a small fraction of federal requesters. So this will inflame the journalism community, as it should. [00:47:00]

I had two questions. One is, do you have an aggregate number of the profit margin for these companies? And are they private companies? So that we can get that information from their filings? And number two, we at the local level are scraping a lot of local government websites. So is that something you foresee these companies doing? It doesn't sound like they're doing a lot of scraping now, but is that on the horizon?

KWOKA: On the -- so three things. I certainly don't mean to shame journalists. While they might be using FOIA in smaller numbers, I think they've still had some amazing successes under FOIA, and we've seen a lot of really truly amazing reporting that's coming out of FOIA. And so I think we may be getting a lot of bang for our buck on each individual request on the journalist side, even if the numbers are smaller than we wish.

On the profits question, but obviously I wish it were working better for them, right? On the profits question, [00:48:00] the short answer is no, I don't have -- I don't have -- I don't believe -- I haven't found a way to access any profits numbers off of these companies. Many of them have, you know, one small niche, and if you look at their kind of websites, they look, you know, relatively rudimentary. They're serving a very, you know, specialized information need, regarding that agency. I'm actually not sure if any of them are public, I think that they are, by and large, private companies, so I'm not sure that there would be relevant public filings to figure that out. But it's a great question, and something that is definitely worth looking at.

And on the local level, you know, the short answer is you may know much more than I do, I really didn't focus on, you know, state and local records access, or the kind of role that private enterprise might be playing in, you know, kind of gathering or mediating access to government information [00:49:00] at that level. I suspect for all of the, you know, same reasons that there are companies that have cropped up to do those various services, but it was not something that I reached out into in this particular work. So, I think it's certainly a component of what's going on. I think to the extent that we have technology problems at the federal level, right?

(laughter)

Right, I think when we're looking at state and local governments, it's only magnified, and so, you know, and the uneven application of state and local access laws I think is -- probably contributes to a gap that I imagine private enterprise would be able to serve.

MULVIHILL: Thanks.

JONES: Thank you very much. So, a question and a larger point. The question is, during your research, did you come across any discussion or discussion about this issue of 508 compliance, which is part of the Rehabilitation Act, [00:50:00] which means that there's a law that anything posted online needs to be -- needs to be readable in a text format. So often, as our subcommittee and others have said, "FOIA guys, you do all this great work finding the documents, reviewing the documents, sending the documents out in the mail, do one more last step and post all of them online automatically," it'd be great if a vendor could do that. Often, we hear, "No, 508 compliance means this is too difficult, we're not going to tackle that."

So that's my question, my comment is, despite this, the good news is, is that we have seen some sites online like FOIAOnline, like the State Department's excellent Reading Room that posts not even the subsets, but I think all releases online. And I agree with you very much that it would be very beneficial to find a way to get these subsets online, but I would say that we maybe use that as a pilot program, and the next step is working with the way, quarterly is fine, [00:51:00] there can be a delay to take the next step and post all docs online. Because it doesn't make sense to spend all this money and not do the one more step of putting it on the internet. So my question is on, is do you have a solution to tackle this 508 issue?

KWOKA: No. (laughter)

JONES: That's our job.

KWOKA: Yes, I have -- I run across that same pushback in various venues. I don't want to minimize that issue as an issue. Certainly we appear in some -- there are some examples where we're getting past it. So, you know, I'm hoping that those will encourage agencies to see how to more efficiently meet those requirements. And I think, you know, FOIAOnline and the State Department, those are great examples of -- and just, you know, I think you're absolutely right, we should take that very last step and publish everything, but even more so, right, in some of these instances, [00:52:00] we should take these out of the FOIA queue entirely, right? And I think if we meet these information needs more head-on, we'll be better off both in the business community and in the requester community.

GOTTESMAN: (inaudible) same way. As you said, the EPA, about 80% of the requests are site-specific, we come up with a little slightly different numbers, but we find the same thing. Most of our requests are site-specific. We're about to launch work on My Property 2.0, which will eliminate those requests totally. So we're about to make these databases available to people where they can actually not only search, but also get certificates of conformity or nonconformity. So, we're sort of looking toward that. We're not quite there yet, we're close, but stay tuned, over the next couple of months, it'll be there.

KWOKA: That's exciting to hear.

GOTTESMAN: (inaudible) 80% of -- 40 or 50%, 80% of my requests, it makes life really easy for us all, so we're looking for technology. And what is scraping a website? No, (overlapping dialogue; inaudible).

(laughter)

It sounds scary.

KWOKA: [00:53:00] Someone did it for me.

ZAID: (inaudible). So very helpful information for sure, and thank you for that.

I think the next step we'll need to have, this is going to have to come from the government agencies, we're really going to dive down deeper into what you were able to glean as a private citizen, getting access from the government. So, while I think most of us are probably annoyed and incensed, whatever range of feelings you want to do when you see private companies coming in and making profits off of what FOIA was not intended to be used for, at the same time, the fact of the matter is, they're exploiting the way the law is written. And (inaudible) to some extent, or maybe to a full extent, I mean our job, or any of us who want to reform FOIA, our mission's not to punish or influence how the [00:54:00] private companies are doing their business, it's to make sure that the law itself is in such a way that it's doing what we thought and hoped it was intended to do.

And on some level, I'll play a little devil's advocate against our own requester community, and show the shortsightedness of not being able to see the forest through the trees. Because one of the things that benefited these companies by doing this was how the fee provisions were changed, so that if an agency couldn't respond within a certain amount of time, the agencies can't charge them fees. And it sounded great from the requester community, because it would help us do what we wanted to do. Well, this is what happened as a result. So these guys are just doing what the law permits them to do, sort of the same way the CIA Information Act fired on the ACLU's lobbying back in the 1980s. It hasn't worked out well at all.

But the next level that we need to get at for the data, so for example, the 483 reports, I -- and I have no idea, because I don't usually deal with [00:55:00] these particular agencies. I'd love to see the same type of data at DOD, State, the intelligence communities, and those of you from those agencies, maybe you have some raw data to understand that, because the agencies that I deal with all the time have incredibly lengthy delays of time. Years, I mean I still get responses from the CIA from 17 years ago that I put in requests. I'd love to know if commercial requesters are in any way delaying that. I don't know, because I haven't done that type of research. But, 483 reports, are there -- and I don't expect you to know this, because it probably has to come from the [eighties?], but so all -- clearly you look at all those, the data that you have, they're asking for site-specifics, and we're talking about proactive disclosure, which we talked about our first meeting, that this is something that we're very interested in. How many, if they did proactively disclose all 483 reports, how many is that?

I'll make up numbers, because I have no idea. If there were [00:56:00] 500 requested, but there's actually 22,000 of them, that might not be a good thing for them -- for us to force the agency to proactively disclose that. Same thing with those requests that were released in full. What we need to know, because they are released in full, I assume the FOIA officers get a sense of what they can and cannot release, and it becomes very pro forma, OK, this is going to be released in full, we can just push it to the side. So there's not a lot of time spent on that document. So is that really taking time away? We just don't know, so we'd have to look. And DLA at 96%, I mean that seems pathetic on the surface, that a private company is dominating, but I guess nobody really is interested in what the heck DLA is doing, if the reporters aren't submitting requests, or anybody else.

So what would be interesting to see for that is, is that a relatively new phenomenon? What was it 10 years ago? [00:57:00] It was 50%, and all -- there were a lot of journalists requesting, or academics, and as the law changed and the commercial requesters started dominating it, they gave up. You know, maybe go back to some requesters from back in that day and say, "You know, you used to request a lot, ABC News, now you don't, why is that?" "Well, because we never got our requests processed in time." And they didn't know why, but now we would because of your research. So that would be really helpful. But it's one of those things that I think we need to look in tandem with the government, because we've got to get the data behind the scenes to see what really makes sense.

Because I get concerned every time when we in the community, and I obviously want openness as much as possible, are pushing for things without understanding the full facts of the consequences. Because there's been too many amendments over the years where the consequences, I think, ended up biting us in the rear, whereas we thought it would be very helpful and it wasn't. I mean, maybe we create a separate part of a [00:58:00] FOIA office to only deal with commercial requests, where there's significant fees assessed on those commercial requesters. And that way, it's not taking away from those of us who are trying to get nonprofit records, and journalistic records, and etc.

KWOKA: So I guess I'll -- I share many of your intuitions about the unanswered questions, many of which I tried to find answers to and came up somewhat short in terms of what I can access. I do -- I suspect that the delays -- I suspect, I have no, I'm not reporting something, but I suspect that the delays at intelligence agencies that you're describing are due to other -- are mostly due to other problems in terms of the review process. And exempt information. That's my gut intuition, and I think the delays at other agencies may be due to [00:59:00] other things going on.

I'm working on a subsequent study right now about individuals who use FOIA kind of in lieu of administrative discoveries, so think actually like DHS and immigrants and removal proceedings, etc. And so, which I think is, you know, information that they should have, is FOIA the way we should be doing it, is really the question. And so, I think there may be different kind of topical problems going on at different agencies, and so I really did try to focus on agencies where -- and I think this is largely true at these kind of big regulatory agencies, right?

Where commercial requests and commercial interests have kind of elevated this level where we might be worried about the crowding out, and resource constraints. You know, the question about, you know, if we say well, you have to release all 483s, how many are there? I tried to figure out and failed. And, you know, I got the sense from trying to talk to some of the resellers that they were trying to be pretty comprehensive about it, so my gut tells me that they're getting a lot of it, [01:00:00] but I couldn't get confirmation from the agency, at least not in the timeframe that I was looking for an answer.

And then on your last point, on fees, you know, could we kind of divert commercial requesters to a separate office or a separate track that involved kind of a separate fee structure? I certainly think it's worth thinking about all those proposals. I fear that to the extent that we burden commercial requesters too much that it becomes a true burden, that that will invite some sort of gamesmanship about whose name is on the request, etc. And agencies will spend more time trying to adjudicate who the real interested party is in a particular request, and will add to the administrative burden. I'm thinking of, you know, we have, you know, even the Supreme Court in Taylor v. Sturgell, right, it couldn't decide that these two requesters were actually working, you know, as an agent for one another, and that's the [01:01:00] kind of thing that if the courts can't figure it out, are the agencies going to be able to do that for thousands of requests? So, I worry about making it too burdensome, only because I think there might be consequences on that side, too. But I think it's definitely worth thinking about.

MOULTON: So thank you for (inaudible). It was a true presentation. I did want to say, I think what we touched on earlier is the real challenge, is not just trying to get these things back, or review them so that they can be released, and -- but going back to the document creation. Which is unfortunately outside of the FOIA office's real control, this is -- these are program offices, these are procurement officers, maybe multiple offices that are creating these.

And so, it becomes a big challenge, and I don't mean to [01:02:00] dismiss that. But I do think that if we start to identify the records where we're going to get the most benefit for, like Larry [Gottesman] has at EPA, and he's been working on the property records, he released the 1.0 of the My Property and saw a drop in your FOIA requests, and now being able to get the certifications, you're definitely going to see a huge drop again.

And I think, you know, Nate's point about 508 compliance, again, if we go back and we, you know, give birth to these records in a different way, so they are automatically 508 compliant, that's a much easier hurdle to get over than to make a document that was not made that way suddenly 508 compliant, and releasing it to everyone. And so, you know, this raises some big issues, but I think it also underscores how we and FOIA offices themselves have to [01:03:00] become advocates inside a broader process, inside agencies.

KWOKA: I couldn't agree more. Yeah. And I think, you know, one component of that, that I think is worth mentioning is that the way that we report FOIA office performance right now, right, is really about how many requests are processed, how quickly they were processed, how they get through them, right, what the dispositions are, and so, without assigning any sort of, you know, motive, the natural bureaucratic tendency, right, is to simply try to do that as well as possible, because that's what you're being measured on. Right, whereas if somehow we were able to incorporate into, you know, annual FOIA reports, or our accountability mechanisms for FOIA offices, these kinds of initiatives I think, and reward them accordingly, right, that would kind of create a structure where FOIA officers might, you know, feel more invested in that process, rather than trying to meet the metrics they're currently being judged on.

HOLZER: [01:04:00] Any more comments from the Committee?

MICHALOSKY: Can I make a comment?

HOLZER: Yes sir, of course.

MICHALOSKY: Based on your comment. And this is just talking off the top of my head, but as the person responsible for the records creation process, it's interesting for me to think about, at the creation point, as we're scheduling records, creating record schedules, we identify in advance those records that we anticipate are going to fall into this category. And we plan for that from the very beginning. So, this is something I'm going to take to our records folks.

GOTTESMAN: (inaudible) who are developing these software tools that really need to build it into the systems. I mean, you can -- we can do whatever we want, and we can do whatever we can do, but if the tools don't have the functionality, the [01:05:00] capability built in, it makes it much more difficult.

MALE: Exactly.

MOULTON: Which was the earlier technology point. It can only be as transparent as the technology allows you to be.

HOLZER: So I mean, I think that it's evident why I love this presentation so much. It really kind of changed my mindset coming from a larger agency to OGIS. And I'd always seen commercial requesters as not being a problem, really, like we just process them like all other requests. So I really found it fascinating. And it changed my thinking completely. And I think that it's a natural extension of the subcommittee on proactive disclosure's work, right?

Because one of the things that we looked at, if everyone has a copy of the report, was this idea of personas that I think is what we identified them as, is could we identify that throughout the government? And here, I think you kind of laid the groundwork, or a map, on how we could do this work, and actually affect and incentivize the FOIA offices. Because with commercial requesters, if you're processing 90% of the FOIA requests, if you can get it [01:06:00] out of your lane, it is in your interest to identify those records as -- for proactive releases. Now obviously the work's going to have to be done at least one time, and I think EPA might be a really good model to look at, to see what you're doing for this -- for the next Committee. So I want to really thank you for your work, and hopefully you guys enjoyed it as well.

At this time, I would like to turn to the members of the audience, I know we had some hands going up. So for the next five minutes, we'll take comments and questions from the folks in attendance. You may address your comments or questions to the Committee, as well as to Professor Kwoka. I invite those of you with questions or comments to approach the microphone, and for the record, please state your name and your organization.

KOTLER: I'm Sarah Kotler, I'm the Director of the FOIA program at the Food and Drug Administration. So you've got questions, and I've got answers.

First I want to thank Professor Kwoka, I remember speaking with you when you were making your FOI request, and I really enjoyed your presentation and your article, although with respect to FDA, [01:07:00] (inaudible) anything that was surprising to me, it was still very interesting just to read an article about the workload at federal agencies and not just talking about how what a bad job we're doing. So, I did appreciate that part of it, and just for you, for the future, I would love for you to do some research on commercial requesters who are using FOIA for civil discovery. That is a very big part of what we do at the FDA, in addition to corporate espionage and the resellers.

I just wanted to cover two points, and one is about the logs, and one is about the 483s.

So to your point, Mr. Zaid, FDA issues about 10 to 12,000 483s every year. For inspections, foreign and domestic. At most, I would say we get requests for 25 to 30% of those. So, any effort to say, "Let's just redact them all before anyone -- and post them for anyone asks for them," is probably not the best use of our resources, we are very strict about posting [01:08:00] any 483s when we do get three or more requests on ORA's website, that's the office of regulatory administration. And also, when we even expect that we will get a lot of requests, we have published, on our website, every single pharmacy compounding 483 since the meningitis outbreak in 2012. This is hundreds and hundreds and hundreds, if not thousands, of 483s that have been proactively posted before we've gotten a single FOIA request. So, I really do think that considering these are relatively simple requests, that pretty much always get answered in 20 days or less anyway, we're doing about as good a job as we can on the 483s, without doing more affirmative posting.

With respect to the log, as much as it is a good common sense argument, "Well if the FDA wasn't spending so much time handing out copies of its log, they could be handling these complicated requests from Bloomberg." Unfortunately in practice it doesn't really work that way. Because the one person who's a grade eight in my office and spends four hours a month responding to these requests [01:09:00] for the log isn't really in a position to make a contribution to that request from Bloomberg, the output of actual time is extremely minimal.

And we are actually looking into posting it, we've looked for a while, there are some pros and cons to doing it. One of the cons being that, as you know, about 12 of our requests come from consumers, and because of the way they write the requests, we do sometimes have to protect their identity, and once you're going to start putting that kind of information on the website, the safest thing, and what most agencies like NIH have done, is they've taken the requester name off. They just really post the date that the agency got it, and what the request was for. But the requesters we get, they won't be happy with that. And they're going to come in and make their requests anyway. So, I think we would be spending time to post some version of the log that would be the safest to post, and not potentially put us in a privacy situation with accidentally releasing someone's identity, and it wouldn't really make these requesters who come in and ask for our log all that satisfied. And I think we'd then be posting it [01:10:00] and answering FOIA requests for it. So, that's the analysis that we've done at the FDA.

PUSTAY: (inaudible) helpful. Because I thought Mark's comments were really -- his questions were great, it was fabulous to have you right here to give the answers, it really helps fill out the picture.

RAVNITSKY: Hi. Hello? My name is Michael Ravnitsky, I'm speaking as a private individual. I thought the presentation was very interesting, I haven't read the paper, so my comments should be interpreted in that light, and I thought the FDA representative's comments were also very interesting, because it shows that government is sometimes smarter than we give it credit for, that where there are situations where it can be efficiently transferred to a non-FOIA function and a proactive release, often that's done, and what we're seeing is some of the -- sometimes the borderline cases, or the cases where it might not quite pay to do it, although it might advance transparency to move past that barricade. So, I think we have to beware of the fallacy that assuming these phenomenon that you've [01:11:00] identified in your paper are somehow new, many of them have been going on for years.

For example, FDA has -- was in the forefront, they were among the first to publish FOIA case logs on microfiche, because the demand was there, and from there, the interest in FOIA case logs as a tool spread to other agencies. But they were doing this for decades, and I agree with the overall conclusions, but there -- as you acknowledged to some degree, there is value in these commercial requests. I think your -- I don't agree with the characterization of the cost of these things, and I think the public value was understated in some of your conclusions.

The tendency is to bash commercial requests, but commercial requesters perform valuable ancillary functions. They break free valuable data that's underutilized, they -- it results in more public/private use, often, it encourages more accurate user friendly data sets in the agency, if the agency keeps getting asked for the same thing over and over again. It improves government efficiency internally when these data sets are requested, and these data [01:12:00] are individually requested. This wouldn't happen unless the commercial marketplace did identify value there, and so commercial requesters often use this technique as a way of overcoming the lack of practical alternatives in access to these data. So in some sense, the commercial requesters might be perceived to some degree as creating public value and the public good is articulable and measureable, and this dollar value of improving the public marketplace of information, I think that shouldn't be overlooked.

Commercial requests may lack -- may require less referrals, for example, so they may be less expensive to process in some sense than other types of requests. There may be consultation needed with the original supplier of data to the agency, but I think the process is rather streamlined. The profile of requests [01:13:00] by an agency is a little more nuanced, I think, than you gave credence in your presentation. The agencies are very different, some have enormous amounts of commercial requests, others have very few, and to say commercial requesters are sort of taking over the FOIA process is, I think, misleading, because the vast majority of requests are things like immigration records and customs records, and citizenship, and things like that. Where they've been placed into that category artificially by the government agencies, but they're not really FOIA requests in the sense that they originally were intended. Whereas the commercial requesters were built into the process from the very get-go. They pay full fees, they may not cover all the costs, of course, but they do, it is envisioned that there will be commercial requesters and those are anticipated in the statute. And look at -- where's the shortfall that you identify in this? Where exactly is that coming about? Should the agencies look more carefully at the costs of processing requests and try to better capture that? [01:14:00] Because they are supposed to capture the full review, search, duplication costs that are being assessed. And if they're not, for some reason, if there's a massive shortfall, then that -- those locations might be identified and helped. Wouldn't agencies have expended some of those resources anyway, even without the commercial requesters coming to them? And could release to one, release to all help address this problem? This was discussed a little bit, but further release could help defuse the concentration of information in particular locations. These businesses that do this are only doing it because the agencies themselves are keeping the information to themselves. That could be defeated very easily just by making it more available. And not randomly available by searching, by putting in keyword searches, but actually curating the information in a well-established way. These agencies provide a lot of added value by indexing, and metadata, and making it possible to browse data, what is this company doing, for example? Whereas a lot of the information provided such as on FOIAOnline, you can only do by random searches, [01:15:00] which may or may not capture what you're looking for. So, I would say, aren't agencies -- could agencies be considered complicit in the alleged commercial requester problem?

And I have a couple of further comments. Dumping records online without a structure or browsing is not really very useful. The agencies have done some things with their reading rooms, but some agencies have put stuff online without any random rhyme or reason to it, and it makes it very hard to find anything. I was going to name names, but I won't. I think it requires a librarianship function, a curatorial function online which is sorely missing in a lot of places. Having things arranged so that you can browse, as well as search randomly.

Overall the commercial request portfolio is valuable to the agencies also, because it tells the agencies which record sets are of the greatest interest and value to the public marketplace. One of the functions of government is to reduce hurdles, unnecessary hurdles and encourage development of the commercial marketplace, [01:16:00] an important goal of this committee should be to encourage the movement of routinizable requests out of the FOIA into proactive release as the presenter discussed.

And finally, perhaps the chief way -- there was some discussion that the FOIA officers themselves and the FOIA units do not necessarily tell what -- the agencies what to do at the outset of the records development, which would be the most useful place to put this kind of thing. Perhaps the Chief FOIA officer which takes a broader role in the agency could be a productive channel for establishing changes in the front end handling and pre-processing of frequently requested routinizable records.

HOLZER: Thank you.

KWOKA: It was Mr. Ravnitzky? Was that it? Yeah, so I think actually, you know, we may differ on some marginal questions but we largely agree fundamentally. I actually think that, you know, commercial requesting is in fact adding various kinds of [01:17:00] value to the system, and one of the values that I think we should get from it is that the marketplace is determining what information would be best to prioritize in terms of affirmative disclosure regimes. I think to that end, we could even decide, as, you know, Ms. Kotler said, you know, only 25 or 30% of 483s are requested. We could make a decision, in some of these instances, to say well, even if that's true, we're going to go for it and try to publish them all for a while and see what starts to happen, right, to do some experimentation and say, you know, would various other unanticipated benefits come, even if we spend a little bit more on the front end than we would by doing these one by one. If it's not just like a purely cost benefit analysis, I think that would be worth thinking about. And I think commercial enterprises are doing exactly what you suggest, right, so are identifying where records hold value in the private marketplace. And so, I don't actually mean to malign them, I mean to say that [01:18:00] to the extent that we can easily identify what those information needs are, we should meet them in a way that makes more sense than the one by one requesting, at least in my mind, that is currently going on. And that I think that that would have other kinds of benefits as well, both for the requesting process, and for the public at large.

Now, some of your points I think are entirely valid and don't have good empirical answers right now, right? So, are commercial requests simply so routine that we're, you know, we can kind of fly through them? And so, they actually cost very little for us to do? You know, agencies don't account, as far as I know, I couldn't find any agency that accounts for the cost, the kind of total cost that they incur for each request. The fees charged, yes, but not the cost side.

Right, so I couldn't really disaggregate like costs attributed to commercial enterprise versus other types of requesters. Where does that shortfall come from? Again, I'm not 100% sure, right. [01:19:00] Some of it may be the fact that the law provides that if it's more costly to recoup the fees than the amount of fees charged, then you shouldn't charge anything at all.

Lots of agencies have kind of a dollar cutoff, 20 or sometimes even higher dollars, right, that they just won't charge any fee below that. If you have hundreds of requests but each is for a few page record, right, then you may end up in that kind of situation where each individual request simply just doesn't meet the threshold. Through no fault of the commercial requesters, I don't suggest that they're gaming the process, they're doing exactly what the law prescribes. I just, I mean only to suggest that, you know, to the extent that we can identify this as not the best way of handling this kind of information need, and as you suggest, if we were to do affirmative disclosure, then we wouldn't have kind of this reselling industry as to some of these records, because it would simply be available for everyone. And all of the technology issues that you mention, including [01:20:00] kind of searchability and usability of the data that's posted, I think are absolutely central to any initiative to that end. So I appreciate your comments.

RAVNITSKY: Thank you.

HOLZER: So it's my hope that during the next Committee term, that we will address some of these questions that have been brought up. I think this is a good point, a good stopping point for that, the proactive (inaudible). Thank you again.

KWOKA: Thank you all so much for having me.

(applause)

HOLZER: OK, so we'll now pause for a short break, and then we'll resume in about 10 minutes. So, we have 11:20, so at 11:30. Please feel free to visit the Charters Café, and the restrooms on the ground floor, which is two levels down. Thank you.

END OF AUDIO FILE

HOLZER: All right, thank you very much. [00:01:00] I actually forgot to ask the folks on the phone if they would like to weigh in on the presentation. So, I would like to do that at this time. Are there any comments from the phone?

BAHR: This is Dave Bahr, I was just very impressed, lots of food for thought. I don't really have anything to add to what was said by the folks in the room. Just very appreciative to be exposed to the professor's presentation and her paper. Looking forward to reading it.

HOLZER: Anne, are you there?

WEISMANN: : Yeah, I don't have anything to add as well. I was very impressed with (inaudible) and a lot of food for thought.

HOLZER: Wonderful, thank you. I will make a conscious effort to remember the folks on the phone, and if I forget, Christa is going to jump in and remind me. [00:02:00] I believe there's a technical issue where we actually have to mute the phones while the microphones are active, and so there's kind of this imbalance of conversation. But I will try to remember to periodically check in. OK.

So, welcome back. Next, we will hear from the Oversight and Accountability Subcommittee. As you may recall, at our January meeting, the Oversight and Accountability [Sub]committee requested public comments concerning the role of the FOIA public liaisons in the FOIA process. To date, we have received one comment concerning the role of the FOIA public liaisons, which we posted to the public comments portion of the FOIA Advisory Committee section of the OGIS website. Please visit www.ogis.archives.gov for information on how to submit comments, and that one comment is in your folder as well, if you'd like to refer to it. So, we will now hear from the Oversight and Accountability Subcommittee co-chair, [00:03:00] Marty. You’re up.

MICHALOSKY: Thank you, James.

HOLZER: Thank you.

MICHALOSKY: I just want to touch upon some of the things that we've been able to accomplish, or what we planned to accomplish, and then what we actually did over the last two years, and then turn it over to Nate Jones and Mark Zaid, if they have things to add.

I just wanted to go back to read kind of what we had focused on, some two years ago, or close to two years ago. We're going to look at current authorities for oversight and past actions, this is a program we've used audits, reports, inspections, and so forth, that were completed by open government groups over the last 10 years, to determine opportunities for additional oversight. We were going to assess the FOIA public liaison role, in determining if there were opportunities to improve there as well, and then we're going to look at past litigation review efforts, and additional [00:04:00] matters for oversight.

So as you know, we've talked quite a bit in the past about the FOIA public liaison role. And what we did is, we created a survey, we went out to all 100 agencies that are responsible for FOIA in the federal government, and we received feedback from 90 people in those agencies. The raw data's already on the OGIS website, we created and drafted a report that was shared earlier in the year with this group. And that's also on the website. Some of the things that we had talked about, and surveyed the public liaisons throughout all these agencies, and also wrote about and shared the data about, was about the specific positions. So, grade, series, things like that. Their training, resources, who do they interact with, how often, on what subjects? [00:05:00] Mainly with the requester community, and then of course, any comments and suggestions.

And it's great to hear that there was at least one comment from the public, because we did go out after our effort with the agencies, and we wanted some balanced feedback, so we did go out for some comment, and at the last meeting, I believe we talked about that. So it's great to get feedback from at least one person, and we would encourage for the public to continue offering that feedback, so we can have a balanced approach. And then going into the program reviews, Nate Jones, and his colleague Lauren over at the National Security Archive, has done a fantastic job identifying over 80 reports, and inspector general reports and audits, and so forth, throughout the government. And actually, it went beyond the last 10 years, I think there were some that go back probably over 20 years from what I recall. [00:06:00]

And over the last couple months, Nate and his colleagues had reviewed these, and also this has been shared with the subcommittee. But we did draft and were sharing with the Committee the report that was put together. And within that, we looked at those 80 or so reports, and basically what could we pull out of there. There were definitely some common themes. There were definitely some challenges throughout the government that agencies face. And some constructive feedback on maybe things that need to be improved, and move forward in the government. So, that's really what I have to share, and touch upon. I'm going to ask if Mark has anything he wants to talk about, and then Nate can provide a little bit more detail on the report that we're sharing with the group today. Thank you.

ZAID: I'll just add a couple of points. One of the things that Marty had indicated we were initially looking at [00:07:00] was dealing with litigation issues, and I think after we were looking at it, and the lawyers on the subcommittee were obviously the ones who were sort of focusing on it, it became apparent in the first initial meetings that that was going to be a little bit more daunting and probably beyond the scope of how this Committee functions to figure out the litigation aspects and whether significant reform can be done, and Anne who's on the phone can weigh in if she wants to add anything on that particular point.

What I do, I want to thank the members of my subcommittee, and especially Marty and Nate, who have done a yeoman's work, I think that's the saying, right? An amazing amount of work, and I think what we've done at least in the tenure of our -- the full Committee and through this subcommittee can now be used by the next Committee to look into ways to implement it more.

And the work, in particular, that Nate did, [00:08:00] and his colleague, in compiling this information, I mean that, if you want to look at what the heart of FOIA is all about, of getting this information and making it available to everybody, and through the OGIS website, having all of these reports now out there, which you never would have been able to find, it would have been absurdly difficult. I remember having a case 15 years ago, as the internet was just starting, to get the FOIA -- we're talking about the FOIA annual reports, and I finally had a client who had the resources where I could put time to get every agency's FOIA annual report, and analyze it, because nobody else had that information. Now obviously, anybody can have the information because it's online. But the difference that time has created, but even with that, what Nate and the NSA [National Security Archive], the other NSA has pulled together, is phenomenal, and I think will go a long way in really helping reform FOIA, so I wanted to thank you guys both in particular.

JONES: [00:09:00] Thanks for the kind words. So, I guess I'd like to start with three anecdotes that were released via FOIA. "This news agency didn't get this through FOIA, did they? If so, maybe it's time to hire some new redactors, they got a bit too much of an inside view." About the same subject, while it was going on. "This controversial subject," the email says, "the risk is that this gets FOIAed later. FOIA will take six months, I say yes, we should just go through the process for the next week and six months from now, when the FOIA comes out, this will all be over." So banking on internal delays. In another case, talking about a FOIA request on the risk of concussions, rather than promptly replying to the request, an email said that they were trying to get another agency to report, "With a more favorable review on the issue [00:10:00] than the person that had written the document, leaked the document, and the agency then promptly replied."

So, these are some anecdotes about the Freedom of Information Act not working. And I think everyone around the table, either as a requester or as a processor, saying "Hey, program office, give me the document to redact" and waiting years on the inside and the outside, have lots of anecdotes about FOIA not working. But what the FOIA subcommittee on Overaccount -- accountability and oversight has done is attempt to compile the data. And like you guys said, we now have every report we can find, and if we missed any, send them our way and we'll put them up on the OGIS website on the National Security Archives website. And these reports again are from disparate IG [Inspector General] reports, Government Office of Accountability reports, from many good reports from OGIS. Non-government institutions also. [00:11:00]

So finally, the last thing I'll say is, we have the reports up there, and what we did is we went through and pulled some reoccurring themes of the challenges that need more oversight. And I'll just give you some bullet points, you can read the full report, and give the final conclusion then, and we can have a discussion.

So, it wasn't good, especially the new set of oversight self-compliant reviews that OGIS has been conducting. Of all the things to me personally, this was most optimistic. The bad side is, is that it would, at the current rate, it would take decades, and agencies have to volunteer for OGIS's insight. And as you may not be surprised, often agencies that volunteer for a scrub are already the agencies that are doing a pretty good job on FOIA. But, they show lots of some positive steps that need to be magnified, [00:12:00] such as communicating with requesters, instituting technology, identifying large blocks of requests, and getting those out proactively rather than waiting for FOIA. And there are positives, and they're in the report. There are also negatives, and the bullet points are not posting enough documents online, in accordance with the 1996 E-FOIA amendments. The only way that we're going to get out of our resource dilemma, if we can, is to stop making it so that people cannot get information on the internet. Not making discretionary releases, in accordance with the 2009 presidential memorandum. Backlogs, and inadequate searches for documents, not reporting FOIA abuses. Unclear fee waiver requirements. Not using technology to improve the FOIA training process. Not properly reviewing FOIA releases for segregability. That means [00:13:00] essentially de facto denying all requests without doing a word for word review as is required. And others.

But, the basic conclusion that we reached, and again I thank Lauren Harper for helping to draft this, and also all of the members on the [Oversight and Accountability] subcommittee, government and non-government also, pitched in a great deal. So Mark must have been too kind, saying that it was our creation, everyone had an impact. But the conclusion that we found was that the current oversight approaches are insufficient and not improving the Freedom Of Information Act programs throughout the federal government.

The first step to improving FOIA oversight and compliance is acknowledging that the current oversight methods are not sufficient. After this acknowledgement, we can begin to endeavor to create a regime that efficiently and comprehensively ensures oversight of the Freedom Of Information Act is being correctly administered with the presumption of disclosure, as instructed by President Obama and Attorney General Holder, and holds accountable those who fail to do this. [00:14:00]

So, the first step is to say that the current regime is insufficient and we have a problem, and hopefully the next subcommittee I sincerely hope will be able to go further than we have in tackling this problem. Thanks.

HOLZER: OK, I'd like to turn to the phones first (inaudible) see if they have any comments. Anne?

LEMELIN: Our A/V technician just went out of the room, so we might not have them yet.

HOLZER: He's back.

WEISMANN: : Can you hear me?

HOLZER: We can.

WEISMANN: Ah. I want to thank the subcommittee for the incredibly hard work its done, and I definitely agree with Marty, I think that this is a -- lays down a good foundation that hopefully the next (inaudible) committee will pick up. [00:15:00] That's it. (overlapping dialogue; inaudible).

BAHR: This is Dave. This is Dave Bahr. And I echo Anne's comments, this is an excellent foundation, a lot of hard work went into this. And hopefully the next committee can take the baton and move forward with it.

HOLZER: Thank you. OK. I'll just echo that a little bit, if I could start. Just thank you for the hard work. This is something that if I switch hats and just talk about OGIS briefly, these reports have guided our assessment program, and it is something that we do review, not only prior to going into an agency, but the entire program itself to see if we can identify themes and trends as well. And so, you guys have done a phenomenal amount of work, and created really a public service for us as well. OK. Anybody else on the Committee? [00:16:00] Yes, sir?

MOULTON: Yeah, so this is Sean Moulton. So I'm just curious, in the reports that you guys reviewed, was -- maybe it wasn't a common theme, I don't even know if it really came up, but I was curious as whether or not there was much discussion about best practices in terms of internal management in the FOIA offices? The use of multi-track and proper use of that to keep, you know, the simple requests circulating, and getting out quickly, or, you know, internal metrics, in terms of evaluating how long it's taking, or performance of individual FOIA reviewers, things like that. Whether or not that was a topic or, you know, not.

JONES: It was, but it was so incredibly varied that I would have to go back and read all 80 reports and write another report to say here's what this agency suggested, here's what that agency suggested, here's what this agency found out works, here's what OGIS -- [00:17:00] actually OGIS may know better than I, but it was an incredible variance, there are FOIA shops with one person, and FOIA shops with 10,000 people.

HOLZER: (inaudible) I think that's what was striking is that it did vary. Even some of the best management practices they -- that just would be standard anywhere else, they don't seem to apply to FOIA. And there's really no good cross-comparison to say that what works at the State Department, which is a large organization, would work at a small organization where there's one or two people. And that's something that we're endeavoring to try to understand ourselves. You know, we do have best practices published. But we haven't differentiated ourselves to say that it would only -- it works really well in DHS, but it would not work at, you know, TSA, which is a much, you know, smaller component of DHS. But I think that's kind of like the first step is to actually say what are good management practices that can be applied to a FOIA organization?

MOULTON: I mean, there are [00:18:00] characteristics or particular profiles where we'd have three or four different types of agencies, and what normally would work best if your agency is small, or high-volume, or different characteristics where you might fall in.

PUSTAY: And one of the things that we've done (inaudible) with the -- it's reminding me of our -- the best practices series, which is also part of the NAP [U.S. Government Open Government National Action Plan] 2.0 commitments, the whole idea there is to find practices that are working and are successful, and to have those agencies share those practices with everybody else. And we have had one specifically for small agencies, for example. So that -- and it was very remarkable to me that the small agencies were doing very much the same sort of things that the big agencies were doing, in terms of, you know, using technology and working on proactive disclosures. Like they -- for a very small office with very small amounts, [00:19:00] the small agencies had a lot of really good practices, too. But my comments sort of to echo what you're starting to raise, Sean, was when looking at this report, was that there were still -- we still have so many other mechanisms, in addition to -- obviously IG and GAO reports, we've got Chief FOIA officer reports, we've got annual reports, we've got assessments that are done by civil society groups, (inaudible) assessment. We've got the assessment that OIP does. We have mediation services, which we have -- which is not factored in. How has that impacted? And then we also have the role of the Chief FOIA officer, something that the Archivist mentioned earlier, we've had a mention of the chief FOIA officer, that to me is a real -- obviously it's a pivotal position within an agency, and has tremendous capacity to help improve any agency's [00:20:00] FOIA operations. So, one of the things that struck me was that we have many additional quote unquote "oversight mechanisms" that we could add to this discussion, and see how all of those collectively are impacting FOIA administration.

HOLZER: And I think Melanie brings up a good point, that there are a lot of mechanisms out there. But one of the striking things from the reports to me is that there's also, you can have management practices that work well too, but they're -- most of these reports are not done by subject matter experts. And that is also a very important component, and I think that's the piece that OGIS brings a little bit of as well, right? Because we understand the FOIA process. A lot of times the IGs are brought in, they're doing a very particular type of review, right? They may be focused on a certain subject. GAO may be focused on maybe some broader management issues or budgetary issues. But even when we give our comments back to the agencies, [00:21:00] what we find is like, well thank you very much for these comments, now can you help us? Because we really don't know what the next steps are. You've given us five recommendations, so I think that whatever oversight piece there is, you have to have that next piece that will also enable them to accomplish whatever it is you're asking them to do. Because they just don't have the resources, and sometimes the knowledge to implement what you're saying. Karen?

MEYERS: Hi, this is Karen Finnegan Meyers. The one thing to keep in mind too with all the reports is that they seem to focus just on the FOIA program. The FOIA program is providing a service, and it's part of a team that makes the FOIA work in any department. So if there's no focus on the other parts of the team in conducting timely searches, providing the documents, providing input on sensitive issues, then whatever oversight or change you make in the FOIA program will only be partially successful. So maybe that's something for the next subcommittee to keep in mind, that [00:22:00] the focus can't just be on the FOIA programs management, it has to be a team effort by the entire department or agency.

JONES: Thanks. Just a couple comments. I guess I'll have three just main, general points.

The first is, I think that what the report showed me at least, collecting them, is that reporting is important, but it cannot be the end-all be-all of FOIA compliance. And there are all sorts of reports and the IG reports may at times miss the mark and that goes to the point that reporting is not necessarily compliance. Which leads me to the second point, that I take very well, Karen.

In all of the best FOIA agencies, there's strong leadership from the top, from the top down, support for the program, and the programs are well funded. That's something that came very through from the reports.

And the last point [00:23:00] is kind of my suggestion, well what should we do? And in the report, I say that there are problems of funding, there are problems of jurisdiction, there are problems, but the solution, I'm more and more convinced, is that we need to move away from oversight as reporting numbers and having good statistics, and we need to have a FOIA watchdog and a FOIA beat cop that gets in the agencies, asks us the tough questions officially or unofficially knows the process, and when someone has a problem, someone else in the agency won't respond to the request for documents, or a requester thinks that something's over-redacted, there's someone to go to that will say, show me the documents again, you have to have an agreement to do this, I know it won't be easy. Here's what should -- we think should have been done. And again, be the watchdog, be the beat cop. I think that's the direction that we need to go to improve FOIA oversight and accountability. Thank you.

ZAID Yeah, I mean my hope is [00:24:00] for the next committee, that they can take a lot of what we did which were more sort of pie in the sky and now they start focusing narrowly on oversight issues, and practical aspects. And I think, even as we heard from today, where identification of legitimate issues on proactive disclosure, but then hearing from an agency, then saying well, wait a minute, there's some practical things you don't know, because you couldn't have known, that things would be different.

And I'm not sure how Federal Advisory Committee rules work, I know we had some issues in dealing with it of seeing how the Committee can deal more interactively with the agency representatives, not just the reps on the Committee, but the day to day people, to figure out some of the more practical aspects to be more efficient, to see what would be more helpful at different times. Like for one example, I can't remember which agency, I'm still getting response letters that say yeah, we've received your request dated whatever, it's assigned this number. [00:25:00] I don't have a clue what request they're talking about that I sent them. Because I'm not tracking it by date. I know the subject. I know the client. And that's not helpful, you know, that's a nice little practical point that we haven't gotten down into the weeds with this. And sometimes, I miss responding to it, because I don't know what request they're talking about, and I have to -- I sue them, and then they tell me oh, we never received your administrative response, I'm like, well what were you talking about in the first place? And so, it's on both sides with something like that.

But, you know, this I think is a great framework to then take the next step, and maybe the Committee can get access to these other internal reports of the agencies feel. That would be good proactive disclosure. Some of these internal agency reports. And then I think finally, and we talked about this in the very beginning of our tenure, and it's probably a little bit awkward for OGIS, since you are running the Committee for the most part, [00:26:00] of looking what to do to strengthen OGIS. If that's in fact what is needed.

But in many instances, our best advocate can be obviously internally that one agency, or one component is talking to another component. Now sometimes it's internally, if I can call Jim and say Jim, I'm having a problem with the Army and, you know, Jim will fix it. And address it, or state -- I used to call the State Department all the time, when they would mischaracterize my law firm as a commercial requester on behalf of a client who was a journalist. I'm like guys, you're missing who the requester is. It's not just my letterhead.

And that goes to what Nate's talking about, the leadership and the strength from it. Rather than some of the anecdotal examples that you gave that unfortunately, we come across and are probably, and I probably would say are not reflective of the FOIA community within the government. But I think we need to root those out a lot more and [00:27:00] hopefully the next committee can go down further into the weeds to really improve on FOIA, taking into account what we've done to -- as a much broader sort of up in the sky recommendations.

HOLZER: Thank you. OK, I want to go to the phones real quick, and just make sure, do we have any comments from the phones?

WEISMANN: : No, I agree with a lot of the sentiments that have been expressed. This is Anne Weismann. Especially Mark's point, I mean as I said, I think that this is the foundation, but I do recognize that there's a lot of work to be done.

BAHR: This is Dave Bahr. And I think this subcommittee, you know, really was grappling with a very broad scope of issues. And I think what was accomplished in the two years is foundational, and my hope is that the next Committee can take what's started here and maybe pick a manageable [00:28:00] subset of issues and try and drill down and make some real progress on them. I think this, you know, basically this Committee was asked, "What's wrong with FOIA?"

(laughter)

The subcommittee. And they did a great amount of work by identifying some threads that can be followed here. And so, my encouragement would be for whatever manifestation of the next committee following us, that they take this and move with it.

HOLZER: Thank you. David?

PRITZKER: This is David Pritzker. I just wanted to ask Nate a question about your concept of what you called the “beat cop.” Do you see this as a redefinition of the public liaison or do you see it as a different function? Should it be a replacement of the public liaison? What, if anything, is the connection?

JONES: I don’t think it’s -- I don’t know. I’m speaking theoretically here. I think that the FOIA public liaisons -- I don’t think are situated in a spot to be the beat cop. I see the beat cop as another agency outside of the agencies that knows FOIA A to Z, whose primary function is listening for complaints or problems with that agency, knowing problems, walking around, knowing the FOIA people, and having -- able to be access to see what’s happening at any agency, so I primarily see it as an -- some -- an ombudsman office, or someone outside of the agency to enforce compliance, so no, not -- probably not someone within the agency looking at it. I think the IGs [Inspectors General] do that already, somewhat.

PRITZKER: Before you used the term, I was thinking, sounds like an ombudsman, so an obvious question to ask is, is this a function that could be put upon OGIS?

JONES: Well, I think the first step is for OGIS to have more legislative authority. I won’t get into the weeds too much but to be truly an omsbuds, an agency has to be independent.

PRITZKER: Well, that’s kind of what I’m getting at. If it takes legislation to do it, is that something that we ought to be recommending or considering?

JONES: I’ve been shouting it from the rooftops, personally. (laughter) Yup. I’ll let OGIS talk more about it if they want.

M: I make a motion that OGIS has full authority to do anything it wants (laughter) in the FOIA world and tell every agency to disclose.

M: Second. (laughter)

HOLZER: Well, (laughs) we thank you for that. (inaudible) Exactly. (laughs) So do we have any other comments? I do want to thank -- I think that it is foundational work that you guys have done, and it really sets us up for the next -- in the next term, so I look forward to a robust conversation regarding these very important issues that you’ve raised.

I want to invite the members of the audience to come up if they have any comments or questions. Please just remember to state your name and your organization. Do we have any comments? No? OK.

So at this time, we’re going to move to the Fee Subcommittee report. At our meeting in January, the Fee Subcommittee co-chairs Jim Hogan and Nate Jones presented on the subcommittee’s proposed memo from the Committee chair to the Archivist. The memo recommends that the Director of the Office of Management and Budget review and revise OMB’s FOIA Fee Guidance.

The draft memo presented the Archivist with three options.

Option one: the Archivist asks OMB to revise its 1987 Guidance.

Option two: the Archivist make a legislative proposal to Congress to amend the fee provisions of the FOIA by revising the various fee standards, thereby enabling agencies to standardize fee determinations.

And then option three was to keep the status quo and not make any changes to the fee provisions.

At our January meeting, the Committee unanimously voted to consider option one as the recommendation going forward, with the Fee Subcommittee reviewing OMB’s Fee Guidance and updating the draft memo based on the Subcommittee’s review of the guidance. And as you may recall, Mr. David Pritzker expressed concerns that the options as drafted stated that OMB should update its guidance and/or a legislative proposal should address fees; however, neither option described what to do or what changes are needed to the guidance. Mr. Sean Moulton concurred, and I said that the Fee Subcommittee could draft something more specific to circulate among the Committee with the goal of having a product for the Committee to vote on at its April 2016 meeting.

And since our meeting in January, the Fee Subcommittee updated its draft memorandum and drafted recommendations concerning OMB’s Fee guidance. And I will now ask the Fees Subcommittee co-chairs to report on their activities since our January meeting. Gentlemen, who wants to begin?

HOGAN: Hey, this is Jim Hogan from the Department of Defense. We don’t have a copy of the memo; I don’t think it was handed out but you do have a copy of the proposed recommendations. Oh, there it is. OK, sorry, I missed it. But anyway, what we did with the memo -- and it was circulated, was basically took out the two options. We originally had given the Archivist a choice and said, “OK,” and as James pointed out, it was to (inaudible) the Committee we should say, “Here’s where we want to go forward,” and so that is the memo basically just changed to take the one option, and we’re asking the Archivist have a memo sent to the Director of OMB saying basically it’s been almost 40 years now since the fee guidelines have -- a lot has changed in those 40 years. Given that there’s even a further change in the FOIA Improvement Act, and whatever version, if a version, is passed, there might be even a more change necessary from (inaudible).

But anyway, we had circulated that, and then we also circulated our proposed recommendations. And we have a list of six recommendations that the Subcommittee thought, these were things that we could recommend to OMB to look at. Now, again, these are recommendations understanding the bureaucratic process to get things through at any time, you know, and if the Archivist does prepare a memo, his staff will look at it, and attorneys, and those things may be changed, we understand that. And OMB may look at a few of them and also, so you know, I don’t think we should have the view that this is definitely what OMB’s going to look at. There’s a lot of if’s in there. But this is basically what we looked at as the thoughts of the Subcommittee going forward, and what we looked at -- some things would be -- we discuss and debated them, so I’m not going to go read them all through, I think if everybody read them -- unless, Dr. Holzer, what --

HOLZER: Please read them out loud to give --

HOGAN: Oh, OK.

HOLZER: -- opportunity as well, if they want to comment.

HOGAN: OK. The FOIA Advisory Committee recommends that the updated Office of Management and Budget fee guidance should:

Item one, provide clarity by clearly differentiating between two separate yet related issues: fee waivers and requester fee category status. Agencies need unambiguous, uniform guidelines on the criteria that must be met through each fee category. These guidelines should reflect the president’s and attorney general’s guidance on FOIA, and relevant case law including embracing members of the media who publish primarily through electronic means.

Two, provide agencies with additional guidance on what constitutes a representative of the news media that takes into account the changes in the journalism profession over the past 30 years due to technological advancements. These guidelines should be fair, balanced, and better enable agencies to make accurate fee category determinations. They should also clarify that fee categories are determined by the identity requester, not the particular request.

Three, incorporate statutory changes to the FOIA relating to when FOIA fees can be charged. This includes 5 U.S.C. § 552 4(A)(viii), which states that certain fee ca-- certain fees cannot be charged when an agency fails to comply with any time limit if no unusual or exceptional circumstances apply to the request. Clarification is also needed as to which fees may be charged if the 20 working day statutory time limit is not met because "unusual or exceptional circumstances" exist.

And just aside here, as we mentioned before, there’s consequence for commercial requesters in this too because we would not be charging -- or agencies would not be charging fees -- search fees to commercial requesters if the time limit’s not met.

Four, provide guidance on fees associated with reproduction costs, including providing electronic copies via email, CD, or DVD. The guidance should also clarify the cost that may be charged for reproducing documents that are transferred from classified to unclassified systems so that they may be released electronically, and just a little explanation of that. Some agencies have to process on classified systems, they’re not connected to unclassified systems for obvious reasons. The -- right now, the most secure way is to -- is once you’ve done the redacting, print them out and rescanning. As you can tell -- that’s resource time and money intensive, it could be. There are systems that -- and I’m not all that familiar with them, you might know some people in the tele-community are more (inaudible) -- where you can take it and there’s a process, there’s a software pro-- I don’t know what it is but to take something off -- say, your top-secret secret system and put it on your secret system, but it’s an intensive process, it’s a resource intensive process also, so that’s just a consideration here. That’s so it can be provided to request electronically posted, etc. Five, explain that agencies may use their administrative discretion rather than a formal fee waiver to decide not to charge for a fee when the interest of the United States government would be served, and six, recognize that FOIA fees cover a very small percentage of FOIA cost. In fiscal year 2014, agency processed 647,172 FOIA requests at a cost of $462 million and recouped just $4.2 million from FOIA fees, less than one percent of the reported cost. Moreover, these fees are paid to the general fund of the treasury, not to the agencies of FOIA offices. The current OMB guidelines appear to be missing a word in Section 8 which adds ambiguity to this expectation. Let’s just put that in because we kept reading it, we could not find any source that missed -- is missing that word from Section 8. So that’s what we propose, and I’d like to open it up to discussion on those six -- six recommendations. (inaudible) Yes, Lee.

GOTTESMAN: Sure. Well let me start, number one is, these recommendations are great and I really appreciate all the hard work. I’m a little concerned about following the policies of the attorney general or the president in light of the fact that last time we issued fee guidance was 40 years ago, and we’ve had a few presidents and attorney generals, so if you build fee guidance based on the current administration or the next administration, whoever that may be, they’re going to lose their value 10 years or 20 years or 30 years down the road, so it may be just a more prudent way to make it based on case law, statutory guidelines and other things versus the desires of the president and attorney general, whoever he or she may be. Just -- I’m just going to go through -- we have a couple issues. On the second one, one of the challenges a lot of us are having, at least we’re having, is you have a more and more, in essence, commercial organizations -- law firms and other commercial groups -- creating either media outlets through their organizations, so it’s like you -- they’ll create a 50(c)3 -- we have a law firm that does it and has a 50(c)3, so when he sues the agency over X, all of a sudden his media component makes FOIA requests for the exact documents he’d get in discovery, or try to get in discovery, so it’d be nice to have some kind of guidance to that kind of type of situation to say if you’re media because you publish a newsletter that you sell to 20 people for $100,000 a piece, is it really media? It’s a real gray area that sort of bothers me. And the last one I’ve got --

HOGAN: Excuse me, that would be -- (inaudible) I might have said, it’s like a commercial newsletter.

GOTTESMAN: My other question is that it’s a comm-- let’s -- I’ll give you, a law firm, and I’m not -- not necessarily a law firm that’s a public interest law firm but a law firm is out there representing commercial entities. Let’s just pick on General Motors, or Tesla this day, so they represent Tesla, and Tesla’s in litigation with the agenc-- let’s say, they represent Volkswagen, and therefore they’re suing the EPA or they’re defending EPA’s allegations about pollution of diesel cars. So they’ll then create a 50(c)3 organization as part of that law firm to make their FOIA requests or try to avoid fees, and they’re saying, “We also are media because we publish a newsletter.” It’s just a difficult area for -- in a lot of ways because legitimate 50(c)3s, legitimate media are being put at a disadvantage I think, as a result of these.

HOGAN: Yeah, I’ve seen that from another commercial entity.

GOTTESMAN: OK. And the last one in number five is, whenever you have discretion in waiving something, it’s -- to me, it’s problematic. My argument is you treat everybody fairly or unfairly, we treat everybody alike. So if we’re creating some type of “In the best interest of the United States,” there needs to be some real concrete place to ground it. I don’t know what that is. You know, it’s because the government’s being attacked, so they say it was a result of being attacked, we want our released records. The government has a right to release any records it wants proactively. My concern is if you’re treating people differently under FOIA, and FOIA should treat everybody fairly, you don’t have to ask why they’re asking for the request. According, in my world, we probably should-- I don’t think we should be just saying, “Oh, because it’s in the best interest of the government, we’re going to waive fees in this case, but in this case, we’re not.” If the agency wants to release records proactively, they can outside the FOIA arena. And that’s just a real concern of mine, that we’d have this ambiguous standard that we’re treating people differently based upon what we think is right, so. Sorry about a few comments but --

HOGAN: No, it’s good.

GOTTESMAN: I think it’s a great piece, I just think those are -- we have some -- (inaudible) need to be raised.

PUSTAY: This is Melanie. My one concern, I was fine with all of them. My main concern was with number five as well because I don’t -- I worry about just having unbridled discretion, that the concern with a lot of the other things that we’re -- that I think everybody collectively is mindful of, that we want the guidelines to be more up to date and to take into account the new ways that members of the media disseminate information, all those sort of -- that the technology-driven changes from -- that have happened over the intervening years but part of the concern is the lack of guidance, a lack of consistency, and so then it seems to me like we’re undercutting the message that we want greater clarity if we then say, oh but here’s -- we want a totally open-ended, not bounded -- or bounded in only the very smallest way, a provision -- I would be very nervous that somebody would say, “Well, this -- when I go over to this agency, they always give me a fee waiver but this other agency never gives me a fee waiver.” I feel like we’re just setting ourselves up to have requesters be very frustrated that they’re treated differently and not even knowing why.

GOTTESMAN: And my thought -- and I definitely understand what you’re saying. The earlier things, we were trying to eliminate ambiguities and issues that are subject to judicial review, was I don’t know whether -- would that administrative discretion become subject to judicial review? I don’t know. (inaudible) Could it? (inaudible) would sue saying, “You’re treating me unfairly because you’re treating me differently.”

PUSTAY: Yeah. You’re treating me differently.

HOLZER: But it also seems to be setting up that discretion outside of the normal fee waiver process, which seems somewhat problematic, that you basically -- you’re just giving discretion to an agency to wholesale waive fees without it maybe even being asked or denied.

PUSTAY: Whereas the statute gives a standard, so the benefits of a standard is everyone understands, here’s the standard, here’s what I have to show in order to get a fee waiver. The agency, in turn, knows what it has to determine to give a fee waiver, so we -- everyone has both sides of the equation, know what the standards are.

JONES: And I will tell you that -- the idea of actually giving that discretion, in my experience and from our oversight function, you know, that OGIS does, agencies appear to already believe that they have this just because they’re not charging fees for whatever reason, and that is problematic because then when a FOIA office is able to charge fees, they reduce the backlog, and now they’re like, “OK, now we’re going to start charging fees,” everybody for the past 10 years comes back when they know there’s been a FOIA request and they say, “Well why are you charging me fees today? You didn’t last week.”

BAHR: Well this is Dave Bahr.

M: Yes.

M: (inaudible)

BAHR: My response was -- those are valid comments, I understand that but for instance, FOIA already h-- forwards to agency’s discretion as far as the withholding exemption, and that doesn’t seem to be extremely problematic. The president’s and the attorney general’s memo both emphasize that agencies should be mindful of the fact that they have the authority when -- to release information under the discretionary release authority, which goes right to the heart of the FOIA, and that does not seem to be problematic. Also, I will point out, until very recently, my understanding is that this policy was OGIS’s best practices guideline, that it was -- I believe it was until last fall, OGIS, on its website, said, “Hey, agencies, don’t forget you have the authority to waive fees on your administrative discretion,” and there was no floodgate opening up as far as litigation that I’m aware of that’s found this to be extremely problematic. You know, it’s -- agencies have discretion. You know, the concern about litigation would be if the agencies abuse that discretion, and you know, at a certain level, we have an expectation of good faith and best practices, and agency personnel, when they apply their discretion. And my personal preference would be just to get rid of fees. (laughs) Because they’re a source of contention, they don’t go back to the agency, and whatever amount of fees are recouped are infinitesimally small fraction of the costs incurred, and it would just seem like all of this would go away if fees went away but I understand that I’m probably going to lose that argument, at least with this audience. But I don’t see -- I see this as a relative innocuous provision that could help the agencies deal with this process, particularly when the costs are low, and the hassle of arguing over fees is high. So that’s my opinion.

HOLZER: All right, thank you. So this is James, and I just want to address the point about OGIS best practices. So there was this 212 -- 2012 best practices for FOIA regu-- for FOIA regulations, that I think everyone’s pointing to. So I want to point out that those best practices for the FOIA regulations document were removed in 2014 prior to my arrival. That doesn’t mean that I don’t disagree with the removal. And that removal did include the language regarding exercising administrative discretion to waive fees but I think that there are some important distinctuan-- distinctions between what OGIS presented as a best practice for FOIA regulations in 2012 and the recommendation that’s currently before the Committee. For one thing, the 2012 best practices speak to agencies using discretion within the statutory framework, and I think that’s very important. The subcommittee’s recommendation on the other hand specifically states that the agency should have discretion to waive fees outside of this framework. So while OGIS’s recommendations was made with the regulatory context, which allows agencies to consider whether the proposal would work for the agency and either accept or reject the recommendation, a recommendation to OMB to update its fee guidelines, which are binding to all agencies, is a very different matter. So that’s the point of the best practices, which, by the way, we did have this conversation previously, and I was unaware of the 2012 best practices that were issued, and I was also not aware that we removed them in 2014. But I do think that it’s important to just have that out there. Yes, sir.

WEISMANN: Jim, this is Anne Weismann, and I’d like to address some of the concerns that have been raised. I wanted to note at the outset that in putting together this recommendation, the subcommittee did reach out to OIT on this very issue to get its views, so they were given that. So some of the concerns we’re hearing voiced today are new to the Committee -- to the subcommittee, but more substantively, in my experience both -- on both sides of the FOIA, I have -- have been that there is a lot of confusion and concern about whether an agency has the ability to waive fees in the circumstance where if they have to litigate the issue, the cost is so much higher than anything that they would recover, and there has also been confusion, in my experience in the past, about the legal authority of an agency to waive fees. I think there was this new whole (inaudible) predecessor that not charging the fees would be a violation of the Antideficiency Act. That’s not in US Court, it’s just to say that we’re not writing on a blank slate, and so at least from my perspective as a member of the subcommittee, I thought it was important to have something in there that makes it clear, there is no, as far as I’m concerned, statutory prohibition on an agency waiving fees, and I very much agree with Dave Bahr that a waiver of fees, whether or not it involves the (inaudible) discretion is entirely consistent with the underlying (inaudible) act, and there are plenty of other parts of the statute that require an agency to acquire a certain amount of discretion, and that’s never been offered as a reason to get rid of those provisions all together, and I think this is the same. If we have experience from this, it’s serves that there is this unbridled (inaudible) is being abused, we can revisit it. Or maybe if the role for OGIS, for example, can write some guidelines on factors that an agency should consider in exercising discretion. But I think it’s an important point, and it’s an area that has been one of great confusion, and I think the goal of the fee subcommittee was to identify areas of confusion where having a guide (inaudible) would be especially helpful. Thanks.

HOLZER: Thank you, Anne. And I -- I don’t think anyone in this room is not appreciative of the work that was done. I mean, we can all see it in the recommendations, and based on the conversation that we had in January, there’s been a tremendous amount of work to get these -- to get us to this point. The one thing that I would point out is it does seem that some agencies have used this kind of discretion already, and it has increased the tension between the requester community and the agency. Your -- our own report, the subcommittee’s report identifies an agency that allegedly used their discretion to make releases to requesters that were favorably to the government’s position. I mean, that’s an allegation that was investigated. And so when is it in the interest of the government to release a record, I think we may not end up where we want to be on this issue, to be honest. Yes, sir.

JONES: I guess I’d just like to first of all echo what Dave said earlier, that I don’t think that this point, if it’s so contentious, is a reason to blow everything up but I would like to speak on behalf of using administrative discretion, and I hope that whatever happens, that this isn’t a sign that the Subcommittee, that agencies stopped doing it because from my perspective, the best agencies already are doing it, and probably will continue doing it.

I’ll also note that there are, at least in our search, four agencies, some of which are around the table, in their FOIA regulations do say, “Use this administrative discretion,” so the reason for it is that the status quo is already that it’s contentious and confusing with formal fee waivers.

OGIS did a blog post essentially saying it’s a much higher threshold for consideration for a formal fee waiver than a fee category, so essentially telling requesters, “If you can, please, please, please just try and say you’re news media because this formal fee waiver is very subjective.” In fact, in the latest stats that I’ve found, it’s granted for only one percent of all FOIA requests, so it’s not like -- so I would just say that the current situation is also confusing. That said, I take the concerns and hope that we can move forward.

BAHR: This is Dave Bahr, and I wanted to point out that one of the FOIA agencies that were identified as employing discretionary administrative fee -- waiver of fees, as opposed to fee waiver, is the National Archives, I believe. The entity which has chartered the Committee that is meeting today, so I find it ironic that if the National Archives finds that workable that we’re stumbling over this provision at this time.

HOLZER: Melanie?

PUSTAY: This is (inaudible), so. First of all, I definitely am -- and I feel very confident, I certainly am not hope-- do not in any way want to blow up this recommendation, I really think it’s a great recommendation, so I want to be very clear that I support the idea of going to OMB and asking them to update their -- update their fee guidelines. So my only concern is really with this particular piece of the recommendation. I also want to say, OIP was not consulted. I just, again, for the record, we were not consulted on this, I would have told anybody who asked me then the same things I’m telling people now. The third thing is, is that the fee waiver standard is in the statute so that gives us the basis to operate. And lastly, the difference between using discretion with exemptions -- because this is something I’ve thought about -- is that you’re not treating requesters differently, so when an agency decides as a matter of discretion to release a draft report, it’s now releasable to everyone, to all requesters, but if you have just -- just have unbridled discretion for a fee waiver, that goes requester by requester, so you’re treating it -- and that’s my big concern is that you’d be treating -- we would be asking agencies -- putting agencies in a position of treating requesters differently, and I just find -- I just feel like that’s -- could be very problematic.

HOLZER: OK.

GOTTESMAN: (inaudible) treating the same requester differently at different requests?

PUSTAY: You have to (inaudible).

GOTTESMAN: I mean, you know, so clearly if it’s something that somebody thinks is strong, at least get them to put some guidance together on how to -- when you can dis-- when you can actually discretionally waive their fees. Just saying to an agency what’s in the government’s best interest to waive their fees, that’s just -- it’s just such an amorphous standard that’s really difficult for an agency to apply and for the courts to address, so.

HOLZER: (inaudible)

HOGAN: We’re talking about fairness -- there’s a lot of unfairness, some people would think, built into the FOIA. If you’re just a requester asking for information that have no organizational connections, it doesn’t seem fair to you that someone, because they work for a news media outlet, can jump in the queue ahead of you. You know, it doesn’t seem fair to them out there. Or that they might have to pay an (inaudible) -- so there’s sort of, in some ways, unfairness built but there’s reasons for that. Some -- you know, whenever some people say unfair, some people say it’s fair, other people say it’s unfair. Talk about taxation, that’s one thing, OK? You get five different ways to tax people, it’s all going to be unfair to someone. The -- in the Department of Defense, the only time I’m aware of this happening and just say, “To me, it was fair,” it would be next of kin. If a soldier dies in battle, there’s an investigation, and normally the primary next of kin will get a copy of that outside the FOIA. It’s a FOIA-like release. We give it to them without having to go through the FOIA process, we have instructions that say how to do that, and so they get it. But they could actually ask for other information, other documents outside of FOIA. I know components of DOD just say “We’re not even going to charge the next of kin fees,” and to me, that’s good, we don’t want to -- usually the fees aren’t involved in anyway because the search is easy, and you give them electronically, you’re not going to involve fees but I do know some people have done that, and they said, “We just don’t feel right to do that,” I understand that. That, in a way, if we could have it bri-- when you say unbridled, I agree with you, we don’t want unbridled, but then we’ll be getting too much into agencies determining categories, fees, etc., you know, type, etc. Would agencies become unbridled? That’s conceivable because with everything, it’s those unintended consequences. You know, and we look at the FOIA Improvement Act, what are the unintended consequences from that potentially, and both sides of the issues, you know, we look at it and say, OK, what could happen? And those things are unpredictable. If the unintended consequences are that we may conceive being Exemption 5 -- or excuse me, from recommendation five be something that we cannot -- we don’t think we sh-- we want to happen, then that’s fine. That’s fine. We can’t predict the future but we have to look at what the risk is.

HOLZER: So the only thing I just kind of want to address is this kind of process question. So this is normal and encouraged for the Subcommittee to bring their product forward to the Committee, I mean this is how it has to happen, and then that there would be a vigorous discussion, which is something that I really wanted, (laughs) and so I’m excited to have this today, OK?

And you know, there’s been talk of blowing up the recommendation. It is -- it’s the will of the Committee, I mean, this is the way these things work, OK? So I -- because of the time constraints, I think we’ve all basically have said our piece on where we stand on it. What I’d like to do is right now to invite comments and questions from the folks in attendance because I think that this is an important issue, so if you have a comment, please approach the microphone, and if you have any questions, please just state your name for the record, please.

CAFARO: Sure. Hi, I’m Cindy Cafaro, I’m from the Department of the Interior, and at the risk of outing my agency a bit, in our FOIA regulations, which I implemented, we do have certain circumstances where we will grant a fee waiver, particularly in instances, for example, if it is someone asking for a single copy of records concerning themselves, and we have a list, and I think that that is a situation where I can look at my people and say, “Here it is,” and if a requester is ever wondering, “Wait a minute, why am I not getting a discretionary fee waiver?” You could say, “Oh, well these are the situations, and here it is, and this is why this person qualified and this person didn’t,” but I have to say, I’d be really, really concerned about a situation where it just said, “The government’s best interest.”

I have, you know, hundreds of people working on FOIA all over the country, and what one person’s idea of best interest is is not the same as another’s, and we have some requesters that are particularly aggressive, frankly, and that would be, you know, sort of screaming on doors, and all they have to do is meet one person who’s more amenable or just is tired of getting yelled at, so it’s fine, fine, it’s in the best interest of the government, and then they’ll be going down the door, “Well, this person in your very own bureau,” I mean, as we were sort of hearing people say, “Well, OGIS said this,” and, “2012, OGIS said this,” you know, we’ll be getting that same kind of thing, and so I think that it makes a lot of sense, obviously, we’re doing it ourselves, to have a situation where there can be these discretionary -- kind of, you know, where there are these areas that go a little further than the statute itself but I think they need to be very clearly delineated, and any guidance that OMB could offer about that clear delineation I think would be very helpful, so maybe ask them to provide us more guidance rather than to provide us something that open-ended might be the way to keep that in.

HOLZER: Thank you.

CAFARO: Sure.

RAVNITZKY: Michael Ravnitzky. Private individual. I think the big picture is the importance of the Committee moving forward some recommendation to OMB to look at this issue because of the age of the existing document, and I would hope, as a member of the public, that a small disagreement over the exact wording and nature of one element of that would not hold up the process given the fact that this is the last meeting with this particular group, and reformulation of the group would tend to slow down that process. So I would like to suggest that there be consideration of a more generic reference to that particular concept in that element. In other words, suggest to OMB that they examine the question of discretionary fees, or suggest that agencies should be given -- should be informed of their opportunity to build in discretionary fees into the system because most agencies use that routinely, and they do it based on things like undue delay or problems encountered or the nature of the request, as Jim was saying, you know, next of kin, there’s specific things in each agency where it may arise, where the circumstances are such it would be the kind of the thing they wouldn’t want to do was to charge fees in that particular request, and it’s not unbridled, I think it’s important. But maybe leave it to the agencies to determine exactly what their criteria are but encourage them to establish some sort of mention or criteria in their regulations, but in that way, maybe OMB -- this could be brought forward and not be hindered in that respect. Thank you.

HOLZER: Thank you very much. OK. So now that we’ve heard from our subcommittees, I will -- I’m going to --

HOGAN: I just -- what -- if I may, just real quick, two points that Larry brought up, and we really did not discuss, I just want to give my comments on that and see what we think. On recommendation one, and I don’t know where this falls in properly, take out the President’s and Attorney General’s Guidance on FOIA and reword that. Now, whether we should discuss exact rewording now since this is the last meeting or if we get back to you on that, and then the second point, I think that gets a little bit too specific, and there’s a lot of issues like that, and if we get too specific in here, understand -- because I’ve seen it --

GOTTESMAN: (inaudible) one of those issues, you know.

HOGAN: Yeah. So that’s all I had. Sorry, Dr. Holzer.

HOLZER: Yep, thank you, sir. OK. So now, we’ve heard all sides of the discussion. I will request a motion, and I’m going to go onto some of the general guidelines of how this is going to work. I know this is pretty much our second real big vote, so -- and there was some confusion last time, so I’m going to go through the rules before I actually entertain the motion, OK?

As a reminder, any Committee member may move that a Committee take a vote. Motions do not need to be seconded, although I encourage them, OK? I request that members raise their hands to obtain the floor. Before we take any voting, as Chair, I will restate the motion before voting. We will do a voice vote. If you are in favor of a recommendation, say “aye,” if you’re against a recommendation, say “nah,” and if you do not wish to vote, say “abstain.” Christa, our DFO, will record the votes, and we will announce the results of the vote.

OK. So as you are aware, at our January meeting as a Committee, we unanimously agreed to make a main recommendation that the Archivist ask OMB to review its 1987 guidance. The Fee Subcommittee has submitted an additional six sub-recommendations suggested for inclusion in the main recommendation. I would like to read each of the six sub-recommendations, and seek your vote before the Committee votes on the main recommendation, OK? So you’re going to -- just to be clear, you’re going to have an opportunity to vote on all six sub-recommendations, and then we’ll vote on the main recommendations. Individually.

GOTTESMAN: And a point of clarification (inaudible), will you offer amendments to these six? Because if we’re going to vote on the way they’re written, I would have more concern than if we were able to quote-unquote “edit” as we go along.

HOLZER: You know, I would leave it to the will of the Committee whether or not they’ll entertain, I guess, amendments to the vote. I would, without presupposing an outcome, think that -- I first would like to entertain the Subcommittee’s recommendation as written, and then if there’s clarification, there’s points of amendments, then you can do so at that time, and we’ll vote on them.

I will tell you, I’m not an expert at Robert’s rules but we will do our best to make sure that this flows through and makes sense, and that we’re following the procedures. OK. So once I finish reading each recommendation, I will seek a motion from the Committee members. I will then call out your names one by one to get your vote so that Christa can record them. Are there any additional questions?

PRITZKER: Yeah, so are you saying there will be an appropriate point to introduce an amendment to each of these?

HOLZER: I think I will make -- I will ask for a motion, and if there is a motion and the vote either carries or doesn’t, I mean, you can -- I guess you can intercede at -- prior to the motion being made. We have dueling motions apparently as well.

GOTTESMAN: Robert’s Rules, I mean, you can have a motion, then you usually have discussion on the motion, and that’s when you can make amendments to that, and then you can vote on the amendments, then you vote on the underlying -- I mean, I used to do this stuff so.

HOLZER: That is not in my script but that is --

GOTTESMAN: Sorry. (laughs)

HOLZER: That’s fine. I mean, we can do that.

GOTTESMAN: And whatever works for everybody, it’s just -- I mean, I --

PRITZKER: That’s a very appropriate way to handle this.

HOLZER: It is. I think it is but I do want to -- I think that -- yeah, that’s an appropriate way of handling it.

M: So it sounds to me based on the discussion we had that there’s probably only two that we are even -- maybe three at the outside -- that we’re even considering changing the wording on, one of which might not be about wording, but so -- I’d rather see if there were any real quick, if there’s rewording, and then go through and vote, I don’t know if that has any weight, but.

GOTTESMAN: Or I can make a motion with deleting of four words, would that work?

M: Very possibly.

HOLZER: Why don’t we -- let’s go through it. We’re -- obviously, I’m sorry guys, but we are on a timeline, the meeting is going to end, the Archivist does have other places to be. We can always -- and this was an option at the very beginning, we can table these recommendations and have the next Committee pick them up.

M: No, I think we don’t like that.

HOLZER: I will also point out, just so nobody thinks I’m being heavy-handed, these were submitted by the Subcommittee well-over a month ago, the entire Committee had an opportunity to comment and to present any comments to the Subcommittee, so obviously at any point, you can make a motion. There was plenty of an opportunity for that to occur prior to today, so I’m not trying to just cut short that conversation, OK?
All right, so, here we go. The FOIA Advisory Committee recommends that the updated Office of Management and Budget Fee Guidance should provide clarity by clearly differentiating between two separate yet related issues -- fee waivers and requester fee category status. Agencies need unambiguous, uniform guidelines on the criteria that must be met for each fee category. These guidelines should reflect the President’s and Attorney General’s Guidance on FOIA and relevant case law, including embracing members of the media who publish primarily through electronic means.

Do we have a motion that the FOIA Advisory Committee adopt recommendation one?

M: Second.

M: I second.

PRITZKER: I’d like to move an amendment to number one. In view of things that have already been said, the sentence beginning “these guidelines should reflect,” and my proposed amendment is, “should reflect relevant case law and address members of the media” -- and specifically address members of the media who publish primarily through electronic means, so the point of the amendment is to delete the reference to the president and attorney general’s guidance, and to replace the word “embracing.”

HOLZER: I’m going to do a simple voice vote on this.

GOTTESMAN: Can I make a friendly amendment to that? Sorry about this.

HOLZER: OK.

GOTTESMAN: I think we should put -- incorporate the FOIA statute itself, I think you dropped out that piece of it. Because it really should address both the statute itself as well as relevant case laws.

HOLZER: Should reflect the FOIA and relevant case law?

M: Right, correct.

LEMELIN: Can I just say, for the record, I mean, we need to handle one motion at a time, and it seems like --

HOLZER: They’re creating --

GOTTESMAN: This is Robert’s Rule, allows for --

HOLZER: Yes, this is...

GOTTESMAN: This is Robert’s. (laughs)

HOLZER: It’s confusing but this is the way it works. So we have a vote, and I -- [Kate?], you’re capturing these for me? OK, so.

PRITZKER: I accept (inaudible).

HOLZER: So I just need to do a simple vote from the Committee that this is going to be the new recommendation, the new motion on the floor is going to be, to provide clarity by clearly differentiating between two separate yet related issues, fee waivers and requester fee category status. Agencies need unambiguous, uniform guidelines on the criteria that must be met for each fee category. These guidelines should reflect the FOIA and relevant case law, including embracing members of the media who publish primarily through electronic means? Did I capture the changes? OK. So I have that motion on the floor. We have the motion. We have a second?

PUSTAY: Second.

HOLZER: Nate?

PUSTAY: Second. Or I’ll second.

HOLZER: You’re going to second it? OK. Now we’re going to a roll call on this one. I’m going to go to the phone, I believe, Dave Bahr?

BAHR: Aye.

HOLZER: Andrew Becker’s not here. All right. Brent? Not here. Brent, I’m sorry.

EVITT: I’m over here.

HOLZER: Yes, I’m sorry. (laughter) Aye?

EVITT: Aye.

HOLZER: Thank you. Karen?

MEYERS: Aye.

HOLZER: Eric?

LEMELIN: Eric did not call in.

HOLZER: Thank you. Larry?

GOTTESMAN: Aye.

HOLZER: James? Jim?

HOGAN: Aye.

HOLZER: Thank you. Clay?

JOHNSON: Aye.

HOLZER: Nate?

JONES: Aye with concern. Aye. (laughter)

HOLZER: Thank you, sir. Marty?

MICHALOSKY: Aye.

HOLZER: Sean?

MOULTON: Aye.

HOLZER: Maggie?

LEMELIN: Maggie had to leave. It doesn’t --

HOLZER: All right, so Maggie had to leave earlier, and you guys might have saw the discussion. She was trying to determine whether or not she could give me her vote so I could vote in proxy. We’re unsure about how that works, so we’re going to table her vote. David?

PRITZKER: Aye.

HOLZER: Melanie?

PUSTAY: Aye.

HOLZER: Ramona’s not here. Lee?

WHITE: Aye.

HOLZER: Anne?

WEISMANN: Aye.

HOLZER: Mark?

ZAID: Aye.

HOLZER: Wonderful. And I’m an “aye” as well. OK. Thank you. We’re going to go to recommendation two.

Oh, just for the record, that looks like that was a unanimous decision. OK.

So recommendation two. The FOIA Advisory Committee recommends that the updated Office of Management and Budget fee guidance should provide agencies with additional guidance on what constitutes a representative of the news media that takes into account and changes -- takes into account the changes in the journalism profession over the past 30 years due to technological advancements. These guidelines should be fair, balanced, and better enable agencies to make accurate fee category determinations. They should also clarify that fee categories are determined by the identity of the requester, not the particular request. Do we have a motion that the FOIA Advisory Committee adopt recommendation two?

M: Second.

HOLZER: OK. Dave?

BAHR: Aye.

HOLZER: Brentin?

EVITT: Aye.

HOLZER: Karen?

MEYERS: Aye.

HOLZER: Larry?

GOTTESMAN: Aye.

HOLZER: Jim?

HOGAN: Aye.

HOLZER: Clay?

JOHNSON: Aye.

HOLZER: Nate?

JONES: Aye.

HOLZER: OK. Marty.

MICHALOSKY: Aye.

HOLZER: Sean?

MOULTON: Aye.

HOLZER: Maggie is gone. David?

PRITZKER: Aye.

HOLZER: Melanie?

PUSTAY: Aye.

HOLZER: Lee?

WHITE: Aye.

HOLZER: Anne?

WEISMANN: Aye.

HOLZER: Mark?

ZAID: Aye.

HOLZER: I’m an “aye” as well. OK.

Recommendation three. The FOIA Advisory Committee recommendations that the updated Office of Management and Budget fee guidance should incorporate statutory changes to the FOIA relating to when FOIA fees can be charged. This includes 5 U.S.C. § 552 4(A)(viii) which states that certain fees cannot be charged when an agency fails to comply with any time limit if no unusual or exceptional circumstances apply to the request. Clarification is also needed as to what fees may be charged if the 20 working day statutory time limit is not met because unusual or exceptional circumstances exist.

Do we have a motion that the FOIA Advisory Committee adopt recommendation three?

M: Second.

HOLZER: OK.

GOTTESMAN: Can I have a clarification or a -- if it’s -- sorry about this, it’s just -- if it’s unu-- if it’s a complex request, you actually get a longer period of time to process, or unusual circumstance -- the 30 days versus the 20 days? This only addresses the 20-day piece of it, not the 30-day piece of it. Just, it sort of dawned on me as I was reading it again. And
I don’t know how to address that.

HOLZER: Would it be easier to just --

BAHR: This is Dave, and I --

GOTTESMAN: Yeah, the working limit, whatever.

BAHR: -- don’t know that that’s automatic.

M: The appropriate working limit.

M: I’ll accept that amendment.

HOLZER: Well, did we have someone --

JOHNSON: To (inaudible) it would read, clarifications also needed as to which fees may be charged if the statutory time limit is not met.

M: Mm-hmm, yup. Thank you.
ZAID: Just one point more on it. I mean, I don’t read this -- the main -- the first sentence is the main one, “incorporates statutory changes.” The next sentence, “this includes,” but you guys didn’t put the words “but is not limited to,” but it implies “not limited,” so I mean, I don’t care if we amend it or not but I don’t know if it’s necessary because it’s not --

MEYERS: It says it includes --

ZAID: Yeah, it’s not only isolated -- it’s not minimizing it or restricting it to this, it’s just highlighting that one point.

GOTTESMAN: Right, but I’m concerned that people would look at this and say, “Oh, they only care about ones where,” it’s the simple request, the 20-day request versus the 30-day request -- I’m just trying to bring more clarity to it and I think it’s not a major change, but it addresses, potentially, an issue.

M: Maybe change “if the statutory time limit is not met” (inaudible).

HOLZER: OK, so we have a motion, and we do have a second on that as well.

HOGAN: I have another motion for another amendment that may (inaudible) in that, combine it with that one possibly. There is a -- I know cypo-- typographical error, 552, it’s section A(4) -- A --

HOLZER: A(4).

HOGAN: A -- there’s a -- I’m pretty sure it’s A, so there’s a paragraph, subparagraph, whatever we call it, that’s missing.

HOLZER: OK, we caught that typo.

HOGAN: After 52 should be little a in parentheses before the 4. Good catch.

HOLZER: Thank you. OK. So we have a motion, and we have a second on that. OK. Dave?

BAHR: Aye.

HOLZER: Andrew is still not here. Brentin?

EVITT: Aye.
HOLZER: Karen.

MEYERS: Aye.

HOLZER: Larry?

GOTTESMAN: Aye.

HOLZER: Jim?

HOGAN: Aye.

HOLZER: Clay?

JOHNSON: Aye.

HOLZER: Nate?

JONES: Aye.

HOLZER: OK, Marty?

MICHALOSKY: Aye.

HOLZER: Sean?

MOULTON: Aye.

HOLZER: David?

PRITZKER: Aye.

HOLZER: Melanie?

PUSTAY: Aye.

HOLZER: Lee?

WHITE: Aye.

HOLZER: Anne?

WEISMANN: Aye.

HOLZER: Mark?

ZAID: Aye.

HOLZER: Wonderful. And I’m an “aye” as well.

OK, recommendation four. The FOIA Advisory Committee recommends that the updated Office of Management and Budget fee guidance should provide guidance on fees associated with the reproduction cost, including providing electronic copies via email, CD, or DVD. The guidance should also clarify the cost that may be charged for reproducing documents that are transferred from classified to unclassified systems so that they may be released electronically.

Do we have a motion that the FOIA Advisory Committee adopt recommendation four?

M: (inaudible) so moved.

M: Second.

HOLZER: I’m waiting. OK, we’re good. (laughter) Right, Dave.

F: It’s all right.

HOLZER: Dave? On the phone? Dave?

BAHR: Oh, yes, hi, sorry.

HOLZER: OK, thank you.

HOLZER: Brentin?

EVITT: Aye.

HOLZER: OK, Karen.

MEYERS: Aye.

HOLZER: Larry?

GOTTESMAN: Aye.

HOLZER: Jim?

HOGAN: Aye.

HOLZER: Clay?

JOHNSON: Aye.

HOLZER: Nate?

JONES: Aye.

HOLZER: OK, Marty?

MICHALOSKY: Aye.

HOLZER: Sean?

MOULTON: Aye.

HOLZER: David?

PRITZKER: Aye.

HOLZER: Melanie?

PUSTAY: Aye.

HOLZER: Lee?

WHITE: Aye.

HOLZER: Anne?

WEISMANN: Aye.

HOLZER: Mark?

ZAID: Aye.

HOLZER: I’m an “aye” as well.

OK. Recommendation five. The FOIA Advisory Committee recommends that the updated Office of Management and Budget fee guidance should explain that agencies may use their administrative discretion rather than a formal fee waiver to decide not to charge FOIA fees when the interest of the United States government would be served. Do we have a motion that the FOIA Advisory Committee adopt recommendation five?

M: So moved.

M: Second.

HOLZER: OK. I’m going to vote --

M: I’d like to make --

HOLZER: -- first.

GOTTESMAN: Before you vote, can I have a friendly -- can I suggest an amendment?

HOLZER: Yup.

GOTTESMAN: Sorry about that. The end -- you know, explain the agencies may use administrative discretion rather than -- to decide not to charge FOIA fees when the interest of the United States government as defined -- is defined by -- or some type of parameters to where this can be -- where the agency should codify this in their regulations or something. I’m just really concerned about having this open-ended -- I mean, as Jim mentioned earlier, you know, someone gets injured in the job -- someone gets injured in war, and you give the records -- it’s not a release through FOIA, it’s released outside of FOIA, and I have no problem with that, I wish they did the same thing when I was at Labor. But I am concerned about having this open-ended, unbounded box without -- I mean, if it was in regulations that some organizations did, I’m fine with it, but there’s some way to sort of balance it, so. Maybe (inaudible) --

WEISMANN: Hi, this is Anne. I think this is a very valid point, and I’d like -- is there a way to amend it to say, “Pursuant to guidelines that each agency shall develop,” something along those lines?

GOTTESMAN: Or some guide-- yeah, I could live with that, or even “guidelines developed by OGIS or OIP,” just something to -- so I have something --

WEISMANN: Yeah, no, I take your point. I think it’s a fair one. I mean, obviously the last thing we intended was to inject any unfairness in the system.

PRITZKER: As an alternative to put it on agencies to go through a process of adopting guidelines, would it be helpful to add at the end of what it currently says, “When the interest of the United States government would be served and is clearly articulated”?

PUSTAY: This is Melanie. I think that part of the problem is the phrasing at the beginning where it’s assuming the premise because it says “explain that,” so perhaps the way to capture sort of the consensus that we have, I think that we’re sort of developing here is, the beginning could be something like “consider whether and how, and if so how agencies could use” -- something like that.

MEYERS: This is Karen Finnegan Meyers. I was thinking we could say “provide guidance on how agencies” --

HOGAN: Yeah. (overlapping dialogue; inaudible)

MEYERS: -- “OMB could provide guidance on how” --

M: (inaudible) as well.

BAHR: Yeah, this is Dave, and I think since we’re asking OMB to promulgate this guideline, we just put the onus on OMB rather than on the agencies and say, “interest would be served -- comma -- as established by standards promulgated by OMB” or something like that.

M: That would work for me.

JOHNSON: So the new motion would be provide guidance to agencies on how they may use their administrative discretion to decide not to charge FOIA fees when the interest of the United States government would be served -- what’s the next part?

PRITZKER: And is clearly articulated.

PUSTAY: I do -- this is Melanie -- I do think we’re going to have to say something like “consider whether” because we do have a statutory standard -- you know, there is a fee waiver standard in the statute so I don’t want to -- I wouldn’t want the Archivist going to OMB as if we don’t realize that there’s what the statute says, so just having “consider whether, and if so, how,” or -- I just think we need --

JOHNSON: Consider whether agencies may use their --

PUSTAY: Yeah.

WEISMANN: Hi, this is -- this is Anne. To Melanie’s point, I think it gets to a much more substantive issue because I think it was the consensus, and Committee -- Subcommittee members, please correct me if I’m wrong. It was the consensus of the Subcommittee after a fair amount of research that in fact, the discretion exists, so if we’re going to get -- I mean, to me, that’s a much more substantive change than what we had been talking about.

JONES: I agree with that. I think the Subcommittee believes that agencies can and do and four agency’s regulations say that they do. But again, let’s work towards a consensus.

PUSTAY: Yeah, I was going to say -- well now we’re just -- let’s think of a way to say it so that we’ll all feel comfortable because we really are just talking about a couple words, so I feel like we’re so close on that. How about “address,” “address the” – “address the use of administrative discretion”?

M: Or “develop guidance on the use of administrative” --

PUSTAY: How about that?

GOTTESMAN: Yeah, because that’s back to where you said originally.

JOHNSON: (inaudible) to, and you know, it -- I feel like “provide guidance” at least --

PUSTAY: It maybe takes --

JOHNSON: -- as the motion maker, it reflects the purpose of the document well here, I mean everywhere else almost is --

PUSTAY: Is saying --

JOHNSON: -- about providing guidance and providing clarity, and right now, we’re --

PUSTAY: Yes, could you read it again, what it would say?

JOHNSON: So right now, my motion is to provide guidance to agencies -- I’m sorry, I’m reading from yours and not mine.

PRITZKER: Well I’m suggesting -- what I’m suggesting is, we’ve already got guidance up in the introductory sentence, so “OMB fee guidance should address how agencies may use their administrative discretion.”

JOHNSON: Got it.

F: (inaudible)

PUSTAY: Yeah, I’m trying to think. How agencies could -- could you say it one more time? I’m sorry.

PRITZKER: With the introductory sentence at the top. “The FOIA Advisory Committee recommends that the updated OMB fee guidance should” -- number five -- “address how agencies may use their administrative discretion rather than a formal fee waiver to decide not to charge FOIA fees when the interest of the U.S. government would be served, and is clearly articulated.”

JOHNSON: I’ll accept that, in the interest of time. Is that good with the Subcommittee?

JONES: I’ll second that.

HOLZER: OK, so we have a motion and a second.

BAHR: Dave says aye. (laughter)

HOLZER: Thank you. Brentin?

EVITT: Aye.

HOLZER: Karen.

MEYERS: Aye.

GOTTESMAN: Aye. Larry.

HOLZER: Eric -- (inaudible) Larry. OK.

HOLZER: Jim?

HOGAN: Aye.

HOLZER: Clay?

JOHNSON: Aye.

HOLZER: Nate?

JONES: Aye.

HOLZER: Marty?

MICHALOSKY: Aye.

HOLZER: Sean?

MOULTON: Aye.

HOLZER: He’s gone. David?

PRITZKER: Aye.

HOLZER: Melanie?

PUSTAY: Aye.

HOLZER: OK. Lee?

WHITE: Aye.

HOLZER: Anne?

WEISMANN: Aye.

HOLZER: Mark?

ZAID: Aye.

HOLZER: OK. I’m an “aye” as well.

OK. Recommendation six. The FOIA Advisory Committee recommends that the updated Office of Management and Budget fee guidance should recognize that FOIA fees cover a very small percentage of FOIA cost. In fiscal year 2014, agencies processed 647,142 FOIA requests at a cost of $462 million and recouped just $4.2 million from FOIA fees, less than one percent of the reported cost. Moreover, these fees are paid to the General Fund of the Treasury, not to the agency’s FOIA offices. The current OMB guidelines appear to be missing a word in section 8, which adds ambiguity to this expectation. So do we have a motion that the FOIA Advisory Committee adopt recommendation number six?

M: I second.

HOLZER: We got a second.

JONES: Second.

HOLZER: OK. Dave?

BAHR: Dave says aye.

HOLZER: OK. Brentin?

EVITT: Aye.

HOLZER: OK, Karen?

MEYERS: Aye.

HOLZER: Larry?

GOTTESMAN: Aye.

HOLZER: Jim?

HOGAN: Aye.

HOLZER: Clay?

JOHNSON: Aye.

HOLZER: Nate?

JONES: Aye.

HOLZER: OK, Marty?

MICHALOSKY: Aye.

HOLZER: Sean?

MOULTON: Aye.

HOLZER: OK, David?

PRITZKER: Aye.

HOLZER: Melanie?

PUSTAY: Aye.

HOLZER: Lee?

WHITE: Aye.

HOLZER: OK, Anne?

WEISMANN: Aye.

HOLZER: Mark?

ZAID: Aye.

HOLZER: OK. I’m an “aye” as well.

OK, so. Now, we’ve gone through all the hard work. Now I’d like to vote on the main recommendation that the Committee considered back in January. As a Committee, we unanimously agreed to recommend that the Archivist ask OMB to revise its 1987 guidance. In light of the motions that we have approved today on the six sub-recommendations, do we have a motion that the FOIA Advisory Committee recommend that the Archivist ask OMB to revise its 1987 guidance to include the six sub-recommendations?

M: (inaudible).

M: Second.

HOLZER: OK. We’ll just do -- I think a voice vote will be OK here. OK. All in favor?

ALL: Aye.

HOLZER: All opposed? Abstain? Wonderful. Awesome. All right. So it appears that the number of votes was higher, it passes, we’re now going to finalize the memorandum and submit it to the Archivist of the United States. I’ll invite the Committee members in attendance to approach the table over here, and I’ll ask -- I’ll then ask the members calling into the Committee whether I may sign the memo on their behalf. All right. Yes.

PRITZKER: So have we -- what we’ve just did --

BAHR: Yes. Dave Bahr says that you may sign.

WEISMANN: Yes.

BAHR: Yes.

WEISMANN: Yes. Anne Weismann says you may sign.

HOLZER: Thank you. I’m sorry, Anne, what?

WEISMANN: You may sign on my behalf.

HOLZER: Thank you.

WEISMANN: Thank you.

PRITZKER: Have we, by virtue of what we’ve just done, amended page 10?

HOLZER: Amended page 10 -- of the final report?

PRITZKER: Yes.

HOLZER: I’m not sure that we amended it because what was included in the report was an actual copy of what was submitted by the subcommittee, so that’s an --

PRITZKER: Well, is there any reason why we can’t amend this?

HOLZER: Yeah, I’m not going to re-open that portal because it’s --

PRITZKER: Well there’s no issue because we’ve changed the recommendation.

HOLZER: But I don’t have the resources on my staff to go back and start playing with the report. That -- everything up until that point was reported on as being past tense because it was submitted by the subcommittee to the Committee, it was incorporated, and then everything from this meeting was presented as present tense, so we would then have to go back and say, OK, now we’ve had the Committee, and open up the report.

PRITZKER: Can you add a footnote somewhere that says this was subsequently mentioned?

HOLZER: When we blog about -- I mean, this is going to go live after this meeting, once we report it to the Archivist because that’s also part of the problem. I’m handing the report to the Archivist, the signed copy of our report. It will go live on the website, and we will be able to address -- I mean, we’re going to be blogging about this, we have the actual pen and ink changes to the memo with your signatures on it which will also go up as well. So all of the changes, and whatever transpired including the minutes from this meeting, will go up on the website and capture what transpired during this meeting.

PUSTAY: Could we have the -- this is Melanie -- could we just do an addendum that goes -- addendum to the report that could go be posted along with the minutes, that way you don’t have to change anything you have now but it would officially be something that gets attached?

HOLZER: Well, the only issue -- and I think you actually brought it up, and you made a really good point which we incorporated into the report -- is that this was the work of the Subcommittee at the time that they Submitted it to the full Committee, and that’s how we treated each --

PUSTAY: Section.

HOLZER: -- report, you know, each section in the report, and I think that it makes sense, for consistency sake, that we continue along those lines.

M: That’s a record.

PUSTAY: It’s a record --

HOLZER: Right.

PUSTAY: There we go. (laughs)

MEYERS: James, I have to leave, so you have my approval to sign
on my behalf.

HOLZER: Thank you very much.

MEYERS: Thank you.

HOLZER: I really appreciate your attendance today.

MEYERS: Sure.

GOTTESMAN: I think as long as this final version is posted on the website, that this is what was approved by the commission -- Committee, I think you’re probably fine.

HOLZER: OK. So we are a little bit behind so we’re going to kind of move these things along. Let me see where I’m at. All right, so I’m going to call you up real quickly. Actually, why don’t we just start on this side of the room, and I have the memo. If you will sign your name, proof of date. OK, so we’re going to have each Committee member come up, we’ll just start on this side. If you’ll sign the memo. We have made the pen and ink changes which will be reflected when we submit it to the Archivist. (overlapping dialogue; inaudible)

F: Thank you.

HOLZER: And while they’re doing that, I’m going to begin introducing the Archivist, and he has a few prepared remarks as well.

So as we alluded to earlier this morning, the Archivist of the United States, David Ferriero, has recognized and reaffirmed the importance of this committee and its efforts by working to renew the Committee’s charter until 2018.

As a champion of open government, the Archivist values the importance of a Committee that brings together government and non-government FOIA experts to make recommendations to improve FOIA throughout the executive branch. He joins us today to observe and offer his thoughts on open government and this Committee’s efforts, to accept the Committee’s recommendation, and offer his thanks to the Committee members who are completing their two-year terms.

After the Archivist’s remarks, we will present him with the Committee’s recommendation. He in turn will present the Committee members who have served two-year terms with a letter of appreciation before turning the floor back over to me for closing comments.

Ladies and gentlemen, the 10th Archivist of the United States, David S. Ferriero. (applause)

FERRIERO: So, just a quick observation. Those folks up on the Hill don’t hold a candle to what you just did. (laughter)

It’s my privilege to take this time to thank each of you for your service to the FOIA Advisory Committee and your respective subcommittees. As you are aware, the Committee was established as a -- one of our commitments in the U.S. Open Government National Action Plan. Specifically, that commission called for the formation of a formal FOIA Advisory Committee comprised of government and non-governmental members of the FOIA community to foster dialogue between the administration and the requester community, solicit of the comments, and develop consensus recommendations for improving FOIA administration and proactive disclosure, and we just saw a wonderful demonstration of consensus carried out right here in this room.

Since you first met in June 2014, the Fees, Oversight and Accountability and Proactive Disclosures Subcommittees have considered some of the most pressing issues facing the Freedom of Information Act. This work has been challenging, but I applaud your commitment to soliciting and receiving input from FOIA requesters and agencies as you examine these issues. This process reflects the Open Government Partnership’s vision of genuine dialogue and collaboration between governments and civil society to improve the quality of governance.

Your work and recommendations to improve the FOIA process also serve the National Archive’s mission, to make access happen. While your terms as members of this Committee end today, I know that you will join me and the rest of the FOIA community in watching the continuing work of this Committee with interest. I expect to renew the Committee’s charter as part of our National Archives’ ongoing commitment to open government. As we think about other commitments that the National Archives can include in the next Open Government National Action Plan to make government more open, transparent, and participatory, I encourage you all to share your ideas and feedback with us.

At this time, I’d like to present each of you with a letter expressing my appreciation and that of the National Archives and Records Administration.

LEMELIN: (inaudible) Apologies, sir. I’ll start reading now, correct?

M: (inaudible)

FERRIERO: So this is also a photo-op for when you get your letter. (inaudible).

LEMELIN: Larry Gottesman. Jim Hogan.

M: (inaudible). (laughter)

LEMELIN: Jim’s a hard worker.

HOGAN: Oh another one, of course. (inaudible) Thank you.

LEMELIN: Nate Jones. Clay Johnson. Marty Michalosky. Melanie Pustay. Lee White.

FERRIERO: Boston Red Sox fans (inaudible).

LEMELIN: Mark Zaid. And we have former Committee member Ginger McCall joining us. Some of you gentlemen on the Committee still have more work to do, but if you would like your picture taken with the Archivist - David Pritzker. Sean Moulton. Brent Evitt.

M: Here is the signed actual report. (laughter) You will get a copy. (applause)

HOLZER: All right, so we have gone long. So before adjourning the meeting, I just want to take a moment to say thank you to all the Committee members, present and past.

I’m very proud of the work this Committee has been able to accomplish over their last two years, and I hope that you are also proud of your accomplishments to improving the FOIA process.

In addition to working together to develop and deliver a strong consensus recommendation to the Archivist on how to improve the FOIA process, the Committee’s work over the last two years has greatly improved our understanding of some of the biggest issues in the administration of FOIA. And so as you reflect on your work, remember that the final report of this committee’s work is not an end product, it is simply a starting point for the Committee’s 2016-2018 term. As you know, we began this Committee to meet a commitment in the administration’s second Open Government National Action Plan, and I believe this Committee’s accomplishments are proof of the benefits of an open and participatory and collaborative government.

I invite everyone to visit our website at ogis.archives.gov, and also follow us on social media for more information about our activities and how you can participate. We will keep you posted as to when the Committee will hold its first meeting of the 2016-2018 term. I look forward to seeing you then.

Before exiting this room, please note that all of you must undergo the National Archives’ exit screen procedures to leave this building, so for security purposes, security staff will inspect your bags. Thank you guys, I really appreciate it. (applause) (inaudible). We stand adjourned.

END OF AUDIO FILE

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