June 24, 2014 Meeting Minutes

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

Meeting Minutes - June 24, 2014

In accordance with the provisions of Public Law 92-463, the meeting was open to the public from 10 a.m. to 1 p.m.

A transcript and videos of the meeting are available on the Committee’s website at https://ogis.archives.gov/foia-advisory-committee/documents.htm.
Committee members present in the Archivist’s Reception Room:

• Miriam Nisbet, Chair, Office of Government Information Services (OGIS), NARA
• Karen Finnegan, U.S. Department of State
• Larry Gottesman, Environmental Protection Agency (EPA)
• Jim Hogan, U.S. Department of Defense (DOD)
• Martin Michalosky, Consumer Financial Protection Bureau (CFPB)
• Melanie A. Pustay, U.S. Department of Justice (DOJ)
• David S. Reed, Federal Communications Commission (FCC)
• Eric Gillespie, Govini
• Nate Jones, National Security Archive
• Ginger McCall, Electronic Privacy Information Center (EPIC)
• Anne Weismann, Citizens for Responsibility and Ethics in Washington (CREW)
• 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.
• Andrew Becker, The Center for Investigative Reporting
• Clay Johnson, The Department of Better Technology
• Maggie Mulvihill, Boston University

Committee members absent from the meeting:

• Dolores Barber, U.S. Department of Homeland Security (DHS)
• Michele Meeks, Central Intelligence Agency (CIA)
• Ramona Branch Oliver, U.S. Department of Labor (DOL)

Others present at or participating in the meeting:

• Ali Ahmad, U.S. House of Representatives
• Scott Amey, Project on Government Oversight (POGO)
• Gavin Baker, Center for Effective Government
• Michael Bell, U.S. Department of Health and Human Services (HHS)
• Amy Bennett, OpenTheGovernment.org
• Cheryl Bolen, Bloomberg BNA
• William J. Bosanko, NARA
• Ashley Burch
• Cindy Cafaro, U.S. Department of the Interior
• Jim Clemmens, U.S. Department of Education
• Pat Engel
• Kimberly Epstein, HHS
• Kendra Fields, HHS
• Wendy Ginsburg, Library of Congress
• Nikki Gramian, NARA
• Emily Grannis, Reporters Committee for Freedom of the Press (RCFP)
• Barbara Hines, U.S. Department of Transportation (DOT)
• James Holzer, DHS
• Janet Ingersoll, HHS
• Amy Jones, U.S. Department of Treasury (TREAS)
• Elizabeth Koh
• Sarah Kotler, Food and Drug Administration (FDA)
• Ryan Law, TREAS
• Marj Leaming, DHS
• Christa Lemelin, NARA
• Rina Li, NARA
• Kel McClanahan, National Security Counselors
• Don McIlwain, NARA
• Amy McNulty, HHS
• Jean McPherson, HHS
• Allen Mikaelian, American Historical Association (AHA)
• Kirsten B. Mitchell, NARA
• Kevin Mullinix
• Patrice Murray, NARA
• Mackenzie Nunez, Library of Congress
• Lynn Overmann, White House Office of Science and Technology Policy (OSTP)
• Cawana Pearson, TREAS
• David Pritzker, Administrative Conference of the United States (ACUS)
• Robin Ross, NARA
• Michael B. Sarich, Bureau of Land Management (BLM)
• Wendy Schumacher, National Oceanic and Atmospheric Administration (NOAA)
• Alina Semo, NARA
• Angel Simmons, DOT
• Vianca Simpson
• Bobak Talebian, DOJ
• Robin Tucker
• Michelle Turner, Bureau of Engraving and Printing (BEP)
• Katherine Uhl, HHS
• Nichole Washington, BEP
• Sheila Wright, FDA
• Corinna Zarek, OSTP

Introductions and Announcements

William “Jay” Bosanko, NARA Chief Operating Officer opened the inaugural meeting at approximately 10 a.m. He spoke about NARA’s unique role in government and the importance of government records in “preserving the past to protect the future.”

He also noted that FOIA administration and process is not something that is or should be entirely government run; it’s a partnership between the government and requesters.

Committee Chair Miriam Nisbet gave brief opening remarks, noting that the Advisory Committee is one of the five commitments in the U.S. Government’s Second National Action Plan for the Open Government Partnership and that the missions of NARA and OGIS dovetail nicely with the mission of the committee. The Committee is tasked with coming up with recommendations for improving FOIA legislation, policy and oversight.  

Committee members briefly introduced themselves.

Ms. Nisbet reviewed ground rules and housekeeping matters, noting that materials for meeting will be available on the FOIA Advisory Committee website; the committee will meet up to four times a year; and that OGIS will draft committee by-laws with an eye toward operating as transparently as possible.
Brainstorming

Lynn Overmann, Senior Advisor at OSTP , led a brainstorming session which entailed each member writing on Post-It notes his or her top legislative, policy and process suggestions for improving the FOIA process; members then posted their ideas on a display board and briefly spoke about them. 

• Larry Gottesman suggested reducing “fee animosity” by establishing uniform FOIA fees; uniform FOIA regulations; a change in the 20-day statutory response time for requests deemed not to be simple; and a consolidated FOIA portal.
  
• Anne Weismann suggested a FOIA backlog study; harnessing technology to improve FOIA; reforming fees; cross-training for FOIA professionals and FOIA requesters; and building in a role for FOIA requesters in the legislative process.
  
• Martin Michalosky suggested harnessing technology to improve FOIA; cross-training all agency employees on FOIA; and providing greater oversight.
  
• Mark Zaid suggested restoring/fostering communications between agencies and requesters; creating an independent oversight authority to adjudicate/giving more teeth of OGIS; and enhancing online capability.
  
• Karen Finnegan suggested developing an avenue to access immigration records outside the FOIA process; building a strong bridge between FOIA and records management; and adding FOIA to performance criteria for federal employees.
  
• Nate Jones suggested implementing a one-year maximum processing time for all requests; improving the FOIA referral process; increasing discretionary releases; reducing fee animosity; reviewing FOIA litigation; requiring the Department of Justice Civil Division to think more about defending FOIA withholding; and posting online more FOIA releases.
  
• Miriam Nisbet suggested reforming fees and fee waivers; revising the FOIA statute in plain language; building accessibility into the IT procurement process; reducing and clarifying Exemption 3 statutes; establishing a triage system for agencies so records are not destroyed; and standardizing FOIA websites.
  
• Eric Gillespie suggesting creating a searchable single point of access; creating architectural standards for data and documents; and creating metrics and benchmarks that track transparency.
  
• Melanie Pustay suggested modifying Section 508 of the Americans with Disabilities Act to make online posting easier; improving the ability of the public to access by metadata tagging; and improving the quality and quantity of proactive access by moving beyond the FOIA office.  
  
• Lee White suggested aggregating FOIA requests by topic using metadata to prioritize FOIA requests by subject areas; requiring FOIA Offices to collaborate with agency history offices for advice and collaboration; and working toward streamlining the declassification process at the National Declassification Center.
  
• David Reed suggested designing records systems for easier access; improving the accuracy of FOIA reports; auditing a sample of FOIA requests to ensure that responses are proper; and providing individuals non-FOIA access to records the government holds about them.
  
• Ginger McCall suggested proactively disclosing document sets; funding FOIA at higher levels; requiring a balancing test when Exemption 5 is being considered; requiring a unique identifying phrase to track Exemption 3 bills as they move through Congress; requiring agencies to work with requesters to narrow requests; and categorizing all IRS-designated 501(c)(3) organizations as educational for favored fee status.
  
• James Hogan suggested revising or eliminating fees for non-commercial requesters; promoting more collaboration between FOIA and open government offices on proactive disclosures; and establishing a process for dealing with commercial confidential information that can facilitate contracts release.
• Dave Bahr suggested providing more power to OGIS and reforming fees to reduce fee animosity.
• Andrew Becker suggested providing documents that are machine-readable; establishing a better mechanism for communication with FOIA officers; increasing oversight of FOIA; and shedding more light on searches as a method of accountability.
• Clay Johnson suggested establishing a three-year window to post FOIA documents that are not 508 compliant; using technology to streamline the removal of personally identifiable information (PII) from documents; and creating vendor protocols and Application Programming Interfaces (APIs) to create central searchable repositories of records. 
• Maggie Mulvihill suggested more student representation or input into FOIA process; using universities and secondary schools to promote open government; quantifying the cost of denying records.

Ms. Overmann suggested setting aside the online portal and a common FOIA regulation since those are part of the National Action Plan. Ms Pustay pointed out that training also is in the National Action Plan and is underway by the Department of Justice.   

From 11:12 a.m. to 11:35 a.m., committee members voted for their favorite ideas using red stickers; those on the phone voted via email.

Review of priorities identified during brainstorming.

Corinna Zarek, Senior Advisor for Open Government at OSTP tallied the votes and the top three votes getters emerged as top priorities for the committee:

• expanding oversight of the FOIA process;
• increased proactive disclosure; and
• reforming or perhaps eliminating fees.

Ms. Nisbet facilitated a discussion in which 15 minutes was spent on each of the three areas. She also asked for volunteers, one government and one-non-government member, to be project co-leads.
Mark Zaid and Martin Michalosky are the non-government and government co-chairs, respectively, for expanding oversight of the FOIA process. Based on the discussion, they are tasked with identifying what current oversight exists and identify gaps.

Eric Gillespie and David S. Reed are the non-government and government co-chairs, respectively, for proactive disclosure. Based on the discussion, they are tasked with creating a roadmap that would increase the number of records proactively disclosed and include an acknowledgment of barriers.

The discussion included making proactive disclosure part of the culture by bringing FOIA professionals together with open government and IT professionals and identifying records that are disclosable in their entirety;

Ginger McCall and James Hogan are the non-government and government co-chairs, respectively, for fees and fee waivers. They will take the lead on figuring out how and whether to reform fees, including revising or eliminating fees for non-commercial requesters and looking at any previous efforts on FOIA fee reform. The discussion also included a suggestion to conduct a FOIA fees cost-benefit analysis.

Ms. Nisbet noted that every committee member will have to volunteer to work with at least one of the three committees.

Several questions arose regarding disclosure requirements of individual committee members, managing work papers, and how to handle Facebook and Twitter. The OGIS staff undertook to research the issues and provide answers.
Public Comments

Kel McClanahan from National Security Counselors asked that the Committee keep best practices in mind. He said that that the issues addressed during the meeting boil down in some part to legislation, oversight, and accountability. He asked that the Committee have a single email address to which the public can submit comments for dissemination to the Committee.

Cindy Cafaro from the Department of the Interior noted that some agencies/departments need help. She said we need to think about the roadblocks that agencies face and noted that 508 compliance is a road block in the area of proactive disclosures. With regard to oversight, Ms. Cafaro requested that the Committee not set up new hurdles for agencies that don’t add value. With regard to fees, Ms. Cafaro said if the Committee could examine ways to reduce fee costs for everyone, that would be great.

Gavin Baker from Center for Effective Government made two suggestions to the committee. His first point was that the issues of oversight and fees need to be better defined. With regard to oversight, he said the key question is what is it that needs more oversight? He said if we can look at the existing oversight and the gaps, we can we build something better. With regard to fees, he said the key question is about simplification and streamlining of the fee process. Mr. Baker’s second point related to subcommittees. He said that he hoped the subcommittees would make use of people outside of the Committee, inside and outside of the government, to bring their expertise and share their ideas.

Sarah Kotler from the Food and Drug Administration said that that taking a one size all approach to the FOIA issues that agencies and departments face would not be the best approach. She said that she hoped that any recommendations in terms of proactive posting would allow agencies to make a determination of what people want from them and not just say what people may want from other agencies that tend to be popular. Each agency has unique requester communities. With regard to fees, Ms. Kotler said that she supported getting rid of fees for non-commercial requesters. She noted that unlike many other agencies, the vast majority of FDA FOIA requesters are commercial. She said to say we don’t want fees at all would have a very different impact on the Food and Drug Administration than it might have on some other agencies that primarily deal with media or nonprofit or consumer requesters. She said that consistency is great but we want to make sure we take account of our differences as well.

David Prtizker from the Administrative Conference of the United States (ACUS) asked the Committee to accept into its record the recent ACUS Study and Recommendation on FOIA and reducing litigation. The study, Reducing FOIA Litigation Through Targeted ADR Strategies Report, is available at http://www.acus.gov/sites/default/files/documents/FINAL ACUS Final FOIA Report - Grunewald - 4-28-14.pdf. The recommendations, Administrative Conference Recommendation 2014-1, Resolving FOIA Disputes Through Targeted ADR Strategies, Adopted June 5, 2014, are available at http://www.acus.gov/sites/default/files/documents/Recommendation 2014-1 (Resolving FOIA Disputes).pdf.

Closing and Adjournment

Ms. Nisbet noted that OGIS would keep everyone updated on the Committee and would look into the capability to do live streaming at future meetings.

The meeting adjourned at 12:57 P.M.

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

Christa Lemelin
Designated Federal Officer

Miriam Nisbet
Chair

The Committee will formally consider these minutes at its October 21, 2014 meeting, and incorporate any corrections or notations in the minutes of that meeting.

Date Posted: Sep 17, 2014 | Date Updated: Sep 17, 2014  | Last Reviewed: Sep 17, 2014