March 10 - Meeting Minutes (Certified)
The (Freedom of Information Act) FOIA Advisory Committee convened at 10 a.m. ET on March 10, 2022, virtually.
In accordance with the provisions of the Federal Advisory Committee Act, Public Law 92-463, 5 U.S.C. App. §§ 1-16, the meeting was open to the public from 10 a.m. to 1 p.m. and livestreamed on NARA’s YouTube Channel.
Meeting materials are available on the Committee’s website at https://www.archives.gov/ogis/foia-advisory-Committee/2020-2022-term.
Committee members present at the virtual meeting:
- Roger Andoh, U.S. Department of Health and Human Services, Centers for Disease Control and Prevention
- Allan Blutstein, America Rising
- David Cuillier, University of Arizona
- Allyson Deitrick, U.S. Department of Commerce
- Kristin Ellis, U.S. Department of Justice, Federal Bureau of Investigation
- Linda Frye, Social Security Administration
- Jason Gart, History Associates Incorporated
- Alexis Graves, U.S. Department of Agriculture
- Kel McClanahan, National Security Counselors
- Michael Morisy, MuckRock
- Alexandra Perloff-Giles, Gibson, Dunn & Crutcher
- Matthew Schwarz, U.S. Environmental Protection Agency
- Dione J. Stearns, Federal Trade Commission
- James R. Stocker, Trinity Washington University
- Thomas Susman, American Bar Association
- Bobak Talebian, U.S. Department of Justice, Office of Information Policy
- A. Jay Wagner, Marquette University
- Patricia Weth, U.S. Environmental Protection Agency
Committee members absent from the meeting:
- Alina M. Semo, Committee Chairperson and Director of the Office of Government Information Services, NARA
- Tuan N. Samahon, Villanova University
Others present or participating in the virtual meeting:
- Kirsten B. Mitchell, Committee’s Designated Federal Officer, NARA, serving as Committee Chairperson in Ms. Semo’s absence
- David S. Ferriero, Archivist of the United States, NARA
- Martha W. Murphy, Deputy Director, OGIS, NARA
- Sheela Portonovo, Attorney Advisor, OGIS, NARA
- Amy Bennett, Department of Homeland Security, public commenter
- Alexander Howard, Demand Progress Educational Fund, public commenter
- Freddy Martinez, Open the Government, public commenter
- Robert Hammond, public commenter
- Michelle Ridley, Webex event producer
Welcome and Administrative Updates
Archivist of the United States David S. Ferriero welcomed those in attendance to the seventh meeting of the fourth term of the Freedom of Information Act (FOIA) Advisory Committee and noted that he was joining the meeting from the National Archives flagship building in Washington DC.
Mr. Ferriero noted that it was two years since the Committee last met in person and the pandemic first began. He reported that the National Archives is beginning to welcome back researchers and the National Archives Museum is no longer requiring tickets or face coverings. He encouraged members to watch the National Archives’ March 14th event in celebration of Sunshine Week, a national initiative to educate the public on open government and the dangers of excessive government secrecy.
He then turned the meeting over to Kirsten Mitchell.
Designated Federal Officer for the FOIA Advisory Committee Kirsten Mitchell stated that Committee Chairperson Alina M. Semo was absent due to an unforeseen circumstance, and she would be chairing the Committee meeting in Ms. Semo’s absence. She welcomed the Committee members and thanked her fellow National Archives colleagues for assisting with the meeting. Ms. Mitchell noted that Committee member Tuan Samahon was unable to attend the meeting, and Committee members Kristin Ellis and Kel McClanahan, and Bobby Talebian were expected to miss portions of the meeting.
Ms. Mitchell stated that OGIS had received several written comments prior to the meeting which were being evaluated in accordance with the Committee’s policy for public comments and Section 508 of the Rehabilitation Act prior to posting. She asked for patience as OGIS worked to review comments. She invited Committee members to review the public comments.
Ms. Mitchell invited the public to email comments to foia-advisory-committee@nara.gov rather than submit them via the chat function in Webex or the NARA YouTube channel. Ms. Mitchell noted that the meeting minutes, agenda, draft recommendations, and information about Committee members are all available on the Committee’s webpage. She asked that Committee members use the All-Panelists option in the chat to request to speak or ask a question. She encouraged Committee members to stay connected to the meeting if they must take a break.
Ms. Mitchell stated that the meeting minutes from the Committee’s December 9, 2021, meeting were certified to be true and correct, and were posted to the Committee’s webpage. She thanked the Committee’s part-time detailee, Sean Heyliger, for assisting with Committee’s meeting minutes.
Ms. Mitchell noted that the meeting’s agenda will continue with the recommendations from the Classification Subcommittee regarding so-called Glomar responses in which an agency neither confirms nor denies existence of records. The Committee will then discuss the draft recommendations of the Technology Subcommittee. She stated that she reserved the right to adjust agenda times as necessary.
Discussion of Classification Subcommittee Draft Recommendations - Kristin Ellis and James R. Stocker, co-chairs
Mr. Stocker thanked fellow Committee members for their feedback during the December 9 meeting and the federal agencies that responded to the Glomar survey questionnaire. He also thanked Bobby Talebian and Lindsay Steel of the Office of Information Policy (OIP), Lauren Harper of the National Security Archive, and members of the FOIA community who offered additional feedback.
Mr. Stocker stated that the Subcommittee compiled a list of concerns raised over the past three months and that the Subcommittee’s recommendation changes addressed many of the concerns.
Mr. Stocker reminded the Committee that they were addressing an issue not anticipated by the FOIA. He noted that Glomar responses were vexing for the requester community but viewed by federal agencies as a necessary tool to fulfill their obligation to protect information.
Mr. Stocker stated the Subcommittee’s first recommendation is OIP issue guidance to agencies to use the nomenclature “Neither confirm nor deny/NCND” to refer to Glomar responses.
Mr. Stocker stated that the Subcommittee’s second recommendation is to require government agencies to track and report the number of “Neither confirm nor deny” (NCND) responses annually to OIP. He further stated that the Subcommittee recommends the DOJ collect aggregate data on NCND responses across the whole of government in an annual report.
Mr. Stocker stated that the Subcommittee’s third recommendation is for government agencies to post information on their websites describing the types of requests that will likely result in an NCND response and possible recommendations on how to avoid NCND responses. He noted that during the Committee’s last meeting, there was a concern that Recommendation 3 would provide or urge agencies to circumvent their obligations under the law. Mr. Stocker stated that the Subcommittee anticipated that agencies would be able to protect sensitive information and that Recommendation 3 was designed to help requesters and FOIA officials avoid fruitless responses.
Mr. Stocker stated that the Subcommittee’s fourth recommendation was that a relevant organization review the use and practice of NCND responses across government and devise a set of recommendations that ensure that these responses are issued consistent with the goals of FOIA. The Subcommittee recommended that OGIS or the Information Security Oversight Office (ISOO) oversee this task, or the Inspector General of the Intelligence Community or the Government Accountability Office.
Ms. Mitchell pointed out that ISOO is part of the National Archives. She also noted that Bobby Talebian had to momentarily step away from the meeting and Dione Stearns had joined the meeting by phone.
Mr. Blutstein asked if the Subcommittee was able to share more information regarding its meeting with the Department of Justice and whether they had endorsed the recommendations.
Mr. Stocker confirmed their meeting with Bobby Talebian and Lindsay Steel from OIP and compiled a list of their comments but stated he did not want to speak for them.
Mr. McClanahan stated he was not part of the discussion with the DOJ OIP and did not want to speak for Mr. Talebian, but stated that Mr. Talebian’s comments at a Subcommittee meeting indicated that he was not opposed but thought the recommendations’ language needed parsing.
Ms. Mitchell noted that Mr. Talebian was still unavailable but agreed with Mr. McClanahan’s recollection of events from the previous Subcommittee meeting.
Mr. Stocker asked if there were any comments.
Ms. Weth reiterated her comments from the previous discussion regarding Recommendation 3 that agencies usually have a FOIA homepage where they explain Glomar responses.
Mr. Stocker asked Ms. Weth if she did not believe that government agencies should have to track and report their use of Glomar exemptions.
Ms. Weth stated that the DOJ’s FOIA annual report already tracks all of the exemptions and she does not see a need to track Glomar responses. She also noted that she often cites the Glomar case in response letters and it will be difficult to not use the term Glomar.
Mr. Stocker thanked her for her response and noted her underestimating the skepticism that exists towards Glomar responses. He stressed that there is a perception among requesters that the government does not want to respond to requests. He stated that the FOIA Annual Report does not report Glomar responses and that the Subcommittee does not believe that this reporting will pose a burden to agencies. He further stated that their preference for the term NCND is clearer than Glomar and would consider changing the recommendation instead to a best practice.
Ms. Ellis stated that she initially did not think the reporting requirement was a great idea but agrees that there is not any data to support the assertion that Glomar is overused. She also noted that collecting Glomar data will not necessarily show that Glomar is used inappropriately.
Mr. Gart thanked both Mr. Stocker and Ms. Ellis for their work drafting the recommendation and agreed that there was a perception that Glomar is overused and supported any steps that would improve transparency.
Mr. McClanahan agreed with Ms. Ellis that assembling more data on Glomar responses is important in determining whether Glomar responses are overused and will help build consensus between agencies and requesters.
Ms. Mitchell noted that Mr. Talebian had indicated that if there were a vote on the recommendations he would abstain, and she noted that the Committee does not have proxy voting.
Mr. Stocker stated that Mr. Talebian did not raise any substantive concerns during their meeting and asked if Mr. Blutstein still had concerns.
Mr. Blutstein stated that he was not in favor of banning a word that had been in use for 40 years and did not prefer acronyms. He further stated that he was only skeptical about the final two bullet points in Recommendation 2 regarding appellate and court decisions involving agencies neither confirming nor denying the existence of records. Requiring reporting of public court decisions would be burdensome, he said, when OIP already summarizes them and makes those summaries available. He was also unsure about insights one could gain into situations of reversal upon appeal.
Mr. McClanahan commented that he supported the collection of additional data similar to how OIP provides a FOIA litigation summary even though that information is available in non-aggregate form in PACER [federal Public Access to Electronic Court Records].
Mr. Wagner stated that Glomar responses are dispiriting for requesters and are difficult to challenge unless you are a lawyer. He noted that additional data will help determine whether they are used legitimately and are needed.
Ms. Mitchell called on Mr. Susman and welcomed Mr. Talebian back to the meeting.
Mr. Susman asked about the difference between the terms best practice and guidance.
Ms. Mitchell stated that best practices are suggested but not required and that OIP guidance carries more weight.
Mr. McClanahan stated that the Subcommittee settled on OIP guidance in favor of OGIS best practice because in the current FOIA environment it carries more importance.
Mr. Talebian apologized for arriving late and asked if the guidance was only in reference to neither confirm nor deny. He thanked Mr. Stocker and Ms. Ellis for their work on the recommendations and stated that while they did not agree completely on the first recommendation he believed that the recommendations were something they could work with.
Mr. Stocker thanked Mr. Talebian and the Committee’s comments and stated that there were ongoing concerns about Recommendation 1.
Ms. Mitchell stated that a motion was needed for a vote and asked if they would like to vote on each recommendation separately.
Action Item: James R. Stocker moved to consider the recommendations individually. Jason Gart seconded. Motion carried unanimously.
Action Item: Kristin Ellis moved to vote on Classification Subcommittee draft Recommendation 1. Jason Gart seconded. Motion carried by majority vote of 13-4 with Committee members Mr. Blutstein, Ms. Deitrick, Ms. Graves and Ms. Weth voting No, and Mr. Talebian abstaining.
Action Item: Kristin Ellis moved to vote on Classification Subcommittee draft Recommendation 2. Kel McClanahan seconded. Motion carried by majority vote of 15-2 with Committee members Mr. Schwarz and Ms. Weth voting No and Mr. Talebian abstaining.
Mr. Stocker moved to vote on Classification Subcommittee Recommendation 3.
Ms. Weth asked the Committee to consider an edit to Recommendation 3 to remove the language on how to avoid an NCND response.
Ms. Mitchell asked if Ms. Weth was making a motion to pass the recommendation with her edit.
Ms. Weth confirmed the motion.
Ms. Mitchell opened the table for discussion of Ms. Weth’s proposed edit.
Mr. Talebian stated he was going to abstain on the vote but agreed with Ms. Weth’s proposal.
Mr. Stocker stated that he believed the recommendation provided agencies with enough leeway to implement the recommendation and preferred that the clause remain in the recommendation.
Mr. McClanahan stated that he did not believe that the recommendation would encourage agencies to release exempt information and that the recommendation as written would better inform requesters on how to avoid Glomar responses.
Mr. Talebian stated that the recommendation without the clause would still accomplish the items suggested by Mr. McClanahan.
Ms. Ellis noted that the language in the recommendation was the result of the Subcommittee’s discussions and was a compromise to encourage agencies to help requesters draft FOIA requests.
Ms. Mitchell suggested that the Committee proceed with a vote on the full recommendation and if it fails vote on Ms. Weth’s amendment.
Mr. Stocker agreed with Ms. Mitchell’s recommendation.
Action Item: Ms. Mitchell called for a vote on Mr. Stocker’s motion to pass Classification Subcommittee draft Recommendation 3. Motion carried by a 14-3 vote with Committee members Ms. Graves, Mr. Schwarz, and Ms. Weth voting No and Mr. Talebian abstaining.
Action Item: Kristin Ellis moved to vote on Classification Subcommittee draft Recommendation 4. Jason Gart seconded. Motion carried by a 17-0 vote with Mr. Talebian abstaining.
Ms. Mitchell asked if the Committee would prefer to begin the Technology Subcommittee’s presentation or take a break.
The Committee took a 15-minute break.
Discussion of Technology Subcommittee Work - Allyson Deitrick and Jason Gart, co-chairs
Ms. Mitchell again stated that public comments are still being reviewed and evaluated prior to posting and asked for patience as OGIS staff members review. Ms. Mitchell turned the meeting over to Technology Subcommittee co-chairs Ms. Deitrick and Mr. Gart.
Ms. Deitrick stated that the Technology Subcommittee drafted three recommendations for consideration and discussion by the Committee. She stated that Mr. Andoh would discuss Recommendation 1, Mr. Cuillier would discuss Recommendation 2, and Mr. Wagner Recommendation 3.
Mr. Andoh stated that the Subcommittee’s first recommendation was for OIP to encourage agencies to post standardized elements to their FOIA webpages. He stated that each website should include a link to FOIA regulations, an FAQ section, examples of how to write a FOIA request, accessible contact information for individuals with disabilities that they can use if they encounter inaccessible documents, and average processing time for requests. He noted that the goal of the recommendation was to have standardized information rather than all FOIA websites look the same.
Mr. Gart asked if there were any questions regarding Recommendation 1.
Mr. Stocker asked if there were already guidelines regarding FOIA websites.
Mr. Talebian stated that there was guidance on DOJ and foia.gov websites.
Ms. Perloff-Giles asked what was meant by contact information and if this included phone numbers and email addresses.
Mr. Andoh confirmed that by contact information they meant phone numbers and email addresses.
Mr. Susman asked about the argument against standardization of FOIA web sites.
Ms. Deitrick replied that the argument against standardization is that each agency has different needs and information to convey to the requester community.
Mr. Wagner noted that there are a lot of unique situations and approaches to FOIA across different government agencies.
Mr. Gart stated that the Subcommittee discussed this issue at length and the consensus was to require standardized information but not a standardized design for each website as websites vary greatly from agency to agency.
Mr. Blutstein asked for a couple of examples from the list that were not included in the DOJ’s guidance.
Mr. Gart stated that average processing times, descriptions of types of records that would be burdensome, and email Capstone policy were a few examples.
Ms. Graves asked if they could discuss their findings after reviewing agency websites.
Ms. Mitchell stated that the OGIS Compliance Team conducted a thorough review of agency FOIA websites last year and are planning on analyzing the data and sharing it with OIP.
Mr. Gart noted that the recommendation encourages agencies to keep the user experience in mind when designing FOIA web pages similar to non-governmental websites.
Ms. Weth stated she really liked this recommendation and noted that there are several suggestions such as including the Capstone email policy that would have been helpful when the EPA redesigned their FOIA website.
Mr. Morisy asked about the differences between this recommendation and prior recommendations to include more information on FOIA websites. He suggested revisiting this issue in a couple of years to determine which parts of the recommendation were difficult to implement.
Mr. McClanahan stated he supported the recommendation and was in favor of providing additional information to assist requesters make better FOIA requests. He suggested the Committee split number 11 into two parts. [11. Description of the types of requests that would be considered overly burdensome by the agency or not sufficiently specific.] The split would result in 11 — Description of the types of records that would be unduly burdensome by the agency, and 12 — Description of the types of requests that are not reasonably described. [https://www.archives.gov/files/ogis/assets/22-03-04-draft-technology-subcommittee-recommendations.pdf]
Mr. McClanahan asked if the recommendation was split into two parts or as originally written.
Ms. Deitrick stated that the proposal would be split into two parts, part 11 and new part 12, and the subsequent numbers renumbered sequentially. [Part 11 is a description of records that would be considered unduly burdensome by the agency and part 12 is a description of types of requests that are not reasonably described.
Mr. McClanahan stated that number 12 would become part 13 and part 11 split into two parts.
Ms. Deitrick asked if the language was correct.
Mr. McClanahan asked that the second line be changed to match the structure of the first line.
Mr. Blutstein asked if the Committee would consider changing “would” to another term that would not require the agency to reject a particular worded request.
Mr. McClanahan suggested the term be changed to “may” or “would likely be.”
Mr. Gart suggested the phrase “would likely.”
Mr. Blutstein agreed with the change to “would likely.”
Ms. Weth asked for clarification on the changes to item 11.
Ms. Deitrick stated that the original recommendation sub bullet 11 was separated into two separate sub bullets 11, “Description of the types of requests that would likely be considered on unduly burdensome to the agency," and sub bullet 12, “Description of the type of request that would likely be considered not reasonably described” and the remaining sub recommendations renumbered.
Mr. McClanahan added “by the agency” to the end of sub bullet 12.
Action Item: Jason Gart moved to vote on Technology Subcommittee draft recommendation one with edits suggested by Committee members Mr. McClanahan and Mr. Blutstein. Motion seconded by Mr. Blutstein. Motion carried 17-0 with Mr. Talebian abstaining.
Mr. Cuillier stated that the Technology Subcommittee’s second recommendation is that the Archivist of the United States designate an executive branch working group to make recommendations for best practices on releasing metadata along with FOIA requests. He further noted that the Subcommittee understands that agencies have concerns about releasing metadata, specifically metadata related to national security matters. He stated that these concerns are part of the task of the suggested working group.
Ms. Weth suggested that the Technology Committee of the Chief FOIA Officers Council oversee the working group which could eventually develop into a full committee.
Ms. Mitchell asked if Mr. Talebian had any thoughts about the issue as a co-chair of the Chief FOIA Officers Council.
Mr. Talebian stated he supported the idea and noted that the Chief FOIA Officers Council had built relationships across government including with the Chief Data Officers Council and that the CFO Council should consider the issue.
Ms. Perloff-Giles stated her support for the recommendation but expressed concern that the requirement that some file elements should be released to all requesters may cause delays and that the recommendation be changed to optional.
Mr. Gart agreed with Ms. Perloff-Giles suggested edit of the recommendation to release upon request.
Ms. Perloff-Giles agreed with the term “upon request.”
Mr. McClanahan stated he supported the recommendation and added that the recommendation included more than just the release of file metadata. He noted additional examples of information in native file formats that would be included in the recommendation. He also suggested a federal advisory committee rather than an executive branch working group because it should include technical experts from outside government.
Ms. Mitchell asked if Mr. McClanahan was suggesting a separate federal advisory committee or a subcommittee of the FOIA Advisory Committee.
Mr. McClanahan stated he was suggesting a separate advisory committee that would have technical expertise on the issues.
Ms. Mitchell noted that the idea would need study and that creating a separate advisory committee is an enormous undertaking.
Mr. Cuillier agreed with Mr. McClanahan that a committee look at the native file issue since E-FOIA does not require agencies to provide access to records in their native format and many agencies are dependent on their existing FOIA software. Mr. Cuillier asked Mr. McClanahan if he was suggesting the FOIA Advisory Committee be tasked with the issue instead of an executive working group.
Mr. McClanahan stated he was not recommending the FOIA Advisory Committee work on the issue. He suggested that the Subcommittee recommend either an executive branch working group or a new federal advisory committee.
Mr. Cuillier asked if Mr. McClanahan was suggesting an amendment.
Mr. McClanahan confirmed he was suggesting an amendment.
Mr. Gart stated he disagreed with Mr. McClanahan that the federal government would not have the technical expertise to make the recommendations and stated that the National Archives has expertise working with metadata and electronic records.
Mr. McClanahan agreed with Mr. Gart and noted that he recommended that an amendment allow the Archivist to choose between an executive working group and a federal advisory committee.
Mr. Cuillier asked Mr. McClanahan if he wanted to change the language in the recommendation.
Mr. McClanahan stated he was requesting the Subcommittee to voluntarily change the recommendation.
Mr. Morisy stated that he supported the recommendation setting a high bar for agencies. He stated that the NSA created a guide for safely redacting and sanitizing records in 2005 that has not been widely implemented and that agencies would not adopt best practices without an aggressive recommendation.
Mr. Cuillier stated that Mr. McClanahan add suggested language for his amendment in the chat and asked if there was any further discussion on the additional language.
Mr. Weth noted that she reviewed last year’s recommendation and suggested that Mr. Morisy speak to the recommendation that the Chief FOIA Officers Council create a committee on cross-agency collaboration.
Mr. Cuillier asked Ms. Weth if she supported Mr. McClanahan’s additional phrasing.
Ms. Weth stated she was unsure about it and asked Ms. Mitchell if the recommendation was for a study to be conducted by an advisory committee.
Ms. Mitchell stated that setting up, staffing and managing a federal advisory committee is an enormous amount of work under the Federal Advisory Committee Act.
Mr. Cuillier stated that the amendment gave the Archivist leeway in deciding and recommended a vote on the amendment.
Ms. Weth stated she was unsure on what language the Committee was voting on and the inclusion of the advisory committee option.
Ms. Deitrick stated that she thought the advisory committee would include subject matter experts and recommended deleting subject matter or comparable group of subject matter experts.
Ms. Weth suggested the Committee vote on the spirit of the recommendation and allow the Subcommittee to rework the language of the recommendation.
Action Item: Allyson Deitrick moved to table the recommendation to the April meeting. Motion carried 17-1 with Mr. McClanahan voting No.
Ms. Mitchell asked how quickly the Subcommittee could get through the third recommendation.
Ms. Deitrick suggested that it may make more sense to table the third recommendation to the April 7, 2022, meeting.
Discussion of Legislation Subcommittee Work - Kel McClanahan and Patricia Weth, co-chairs
Mr. Cuillier stated that the Subcommittee met the prior week with the open records offices of Pennsylvania and New Jersey, and were hoping to finish recommendations to improve the process through OGIS to present to the Committee soon. The recommendations will include giving OGIS the authority to make binding decisions.
Ms. Mitchell asked if there were any additional questions and stated she was looking forward to the recommendations at the April 7th meeting.
Discussion of Process Subcommittee Draft Recommendations - Alexis Graves and Michael Morisy, co-chairs
Mr. Morisy stated that the Subcommittee was discussing ways to make it easier for requesters and agencies to request and fulfill first-party requests. The Subcommittee also has discussed ‘sharp’ FOIA practices that create tension between requesters and agencies, particularly when agencies feel overwhelmed or monopolized by single requesters that do not engage over the substance of their request. He mentioned the example of requesters feeling compelled to file multiple requests across agencies because agencies interpret requests differently. He noted that the Subcommittee is studying the root causes of vexatious requests and possible solutions such as better guidance to requesters on writing requests and more resources on educating the public on the FOIA process.
Ms. Mitchell asked if there were any additional questions or comments and announced the Committee’s upcoming meetings on April 7, May 5, and June 9, 2022. She thanked Mr. Blutstein, Mr. Cuillier, Ms. Stearns, and Ms. Weth for volunteering to work on the Committee’s final report.
Ms. Mitchell read a comment submitted by Alexander Howard regarding Congress mandating the proactive disclosure of public records in machine-readable format.
Mr. Morisy thanked Mr. Howard for raising the issue and stated that previous hindrances are useful to keep in mind when discussing open data efforts.
Ms. Mitchell read an additional question submitted by Mr. Howard regarding why OIP did not record the Chief FOIA Officers Council’s public meeting with requesters [on February 2, 2022].
Mr. Talebian stated that the CFO uses a variety of ways to reach out and receive feedback from the public and they encourage candid feedback. He stated that some people do not feel comfortable providing feedback when they know the meeting is recorded.
Ms. Mitchell stated that Mr. Howard had submitted an additional question regarding FOIAonline that they would follow up via email.
Public Comments
Ms. Ridley opened the meeting to public comments and asked that comments be limited to three minutes.
Mr. Hammond stated that the meeting minutes from the December 9th meeting were inaccurate and asked the committee to consider posting the minutes within 30 days for review. He further stated 12 issues concerning FOIA including false DOD FOIA annual reports, investigation of destruction of FOIA records, conduct of FOIA meetings, excessive delays processing FOIA requests, misclassification of FOIA requests as complex, transferring FOIA requests to other agencies, and misapplication of FOIA/Privacy Act statutes.
Ms. Ridley stated that Mr. Hammond’s time had expired.
Mr. Susman stated that with regard to inaccurate meeting minutes, OGIS posts videos and transcripts of meetings, the latter in accordance with the Federal Advisory Committee Act. He suggested OGIS staff should spend more time on mediation and investigation than on meeting minutes.
Ms. Mitchell thanked Mr. Susman for his comment and noted that Committee members have an opportunity to review minutes and submit corrections.
Ms. Murphy read a question submitted via chat, “How would agencies show undue burden for data collection on Glomar? Is it based on limitations in technology, staff or the size of the backlog, or annual number of requests, appeals, and et cetera?”
Ms. Murphy read a comment submitted via chat, "A federal court in New York City ruled in February that some metadata is presumed releasable under the Federal Freedom of Information Act. The first time a court has ruled that a federal government must provide metadata with associated electronic records requested under FOIA." She asked Mr. Talebian if he would like to comment.
Mr. Talebian stated he would have to look into it further.
Ms. Murphy stated that there was discussion of the “if possible” language of the act in the court case. She stated that Mr. Hammond said that he requests records to be sent in any digital format in which they exist, such as PDF or Excel. And under the terms of the E-FOIA amendments of 1996, section five, "If a document exists in electronic format, it must be released in the format upon request."
Ms. Ellis noted that Ms. Murphy’s summary omitted the provision that allows agencies to determine if something is not readily reproducible in the format requested.
Mr. McClanahan agreed with Ms. Ellis that the issue is whether the content is readily reproducible and disagreements over this issue have led to litigation.
Mr. Talebian noted that the spirit of the law is to give the requester records in the most useful format and recommended the group look into the issue further.
Ms. Murphy read a comment submitted via chat by Mr. Howard, “Why didn't the committee discuss FOIAonline in public when I asked about it? Would it consider a motion on whether to draft out a recommendation on replacing it?"
Ms. Ridley re-opened the phone lines and Mr. Hammond asked to have his comments included in the meeting minutes. He said he filed a FOIA request for records regarding the February Chief FOIA Officers Council meeting with requesters. He also asked what OGIS and DOJ were doing in regard to the DOD not releasing its Fiscal Year 2016 raw data. He stated he sued for Walter Reed National Military Medical Center’s FY 2013 FOIA raw data and that OGIS and DOJ have a responsibility for FOIA compliance. He said OGIS refuses to offer mediation to him. He asked Mr. Talebian why his presentation on DOD’s reporting was not posted.
Ms. Ridley noted that Mr. Hammond’s time had expired.
Ms. Mitchell thanked the Committee members noting that their commitment to FOIA is apparent, and that it was gratifying to see their commitment to transparency which can go a long way toward building trust and shared understanding. She also thanked her NARA colleagues and announced the next Committee meeting will be on April 7th at 10:00 am ET. She indicated the meeting will be virtual.
Mr. Andoh stated that Ms. Mitchell asked that specific FOIA questions not be discussed at the meeting and asked that it be reread at the next meeting.
Ms. Mitchell adjourned the meeting.
I certify that, to the best of my knowledge, the foregoing minutes are accurate and complete on June 6 , 2022.
/s/ Kirsten B. Mitchell
Kirsten B. Mitchell
Designated Federal Officer,
2020-2022 Term
/s/ Alina M. Semo
Alina M. Semo
Chairperson,
2020-2022 Term