Transcript

FOIA Advisory Committee Meeting (Virtual Event)
Wednesday, March 3, 2021
10:00 a.m.-1:00 p.m. (EST)

MICHELLE [OPERATOR]:  Ladies and gentlemen, welcome. And thank you for joining today's [2020-2022] FOIA Advisory Committee meeting. Before we begin, please ensure that you have opened the WebEx participant and chat panel by using the associated icons located at the bottom of your screen. Please know all audio connections are muted, and this conference is being recorded. You are welcome to submit written questions throughout the session, which will be addressed at the Q&A part of the meeting. To submit a written question, select All Panelists from the drop down menu in the chat panel, then enter your question in the message box provided and send. If you require technical assistance, please send a chat to the event producer. With that, I'll turn the meeting over to David Ferriero, Archivist of the United States. Sir please go ahead.

DAVID S. FERRIERO:  Good morning and greetings from the National Archives building on Pennsylvania Avenue in Washington, DC. This Friday marks one year since the Freedom of Information Act Advisory Committee last met in person in this majestic building. Elbow-to-elbow bumps and toe-to-toe taps replaced handshakes, hinting at what would occur just one week later, sudden physical distancing that forced us to work from home - or as some say - live at work. These are interesting and difficult times for all of us.

March 3rd marks the 150th anniversary of Congress passing legislation to reform civil service, creating a system in which civil servants are hired based on merit rather than politics. Today, there are roughly 5,000 full-time FOIA professionals across the government, civil servants and contractors, who work to administer and respond to FOIA requests without regard to politics. Their work is more challenging than ever in these times of misinformation, political division, and public health challenges.

I want to thank the committee for working so diligently and thoughtfully to strive toward a FOIA process that works better for all – FOIA processors and requesters alike. The committee today is exploring an idea that several committee members began discussing near the end of the third committee term, whether the FOIA should apply to legislative and judicial branch records. There's no easy answer. Committee members, I appreciate your curiosity and thoughtful deliberation about this and other important FOIA matters.

Finally, I'd like to invite all of you committee members and the public to the National Archives' first virtual Sunshine Week event from 1:00 to 3:00 PM on Monday, March 15th. Please sign up via Eventbrite or tune into our NARA YouTube channel. Senior U.S. District Court Judge Royce Lamberth, and friend of the National Archives, will headline the program. Judge Lamberth is no stranger to FOIA, having ruled in hundreds of cases related to FOIA over the years. And we're delighted that he's joining us to observe Sunshine Week, an annual nationwide celebration of access to public information. Our event also will feature a panel titled “U.S. Transparency Landscape: Where Do We Go From Here?” FOIA Advisory Committee [member] Alexandra Perloff-Giles is one of the panelists. Details are at archives.gov/ogis. I hope to see you there.

Please continue to take care and stay safe. I now turn the meeting over to [the] committee's chairperson, Alina Semo. Thank you.

ALINA M. SEMO:  Great, David. Thank you so much. We really appreciate you being here and if you can stay around for a little bit, that would be great. If not.. [inaudible].

DAVID S. FERRIERO:  I will be in and out.

ALINA M. SEMO:  Okay. Terrific. Good morning everyone, as the Director of the Office of Government Information Services, OGIS, and this committee's chairperson, it is my pleasure to welcome you all to the third meeting of the fourth term of the FOIA Advisory Committee. I hope everyone who is joining us today has been staying safe, healthy, and well. I would like to re-introduce to everyone the committee’s Designated Federal Officer DFO, Kirsten Mitchell. Kirsten, are you waving? Thank you. She's going to help me stay on track today, as she always does and I look forward to a great meeting today. I want to welcome all of our committee members [and] express my gratitude for your continued commitment to study the current FOIA landscape and developing consensus recommendations for improving administration of FOIA across the federal government.

We are all here today, except for Linda Frye from Social Security Administration. She cannot be here today, but hopefully she will be joining us next time. And Kirsten has advised me that we can dispense with a roll call. So I'm just saying hello to everyone. We definitely have a quorum, so that's all good. I also want to welcome our colleagues and friends from the FOIA community and elsewhere, who are watching us today, either via WebEx or in a bit delayed fashion at NARA's YouTube channel.

We have a busy agenda today, as we always do, so I will do my best to make sure we stay on track so we can end on time. And despite today's ambitious agenda, we will leave time at the end for public comments. And we look forward to hearing from any non-committee participants who have ideas or comments to share. We will open up our telephone lines for the last 15 minutes of our meeting today. OGIS staff is monitoring WebEx and YouTube chats. So feel free to chat at any time if you have questions or comments. You may also submit public comments, suggestions, and feedback at any time by emailing FOIA-advisory-committee@NARA.gov. And we will post them on the OGIS website.

[Also some] housekeeping rules for today, meeting materials for this term, along with member’s names, affiliations and biographies are available on the committee's webpage click on the link for the 2020-2022 FOIA Advisory Committee on the OGIS website. Please also visit our website for today's agenda. We will upload a transcript and video of this meeting as soon as they become available. All submitted comments will also be posted on our website. A reminder that the FOIA Advisory Committee is not the appropriate venue for concerns about individual FOIA requests. If you need OGIS's assistance, you may request it by sending us an email at OGIS@NARA.gov. We’ll be asking you to not do so through our committee's email. Since March of 2020, this committee has met virtually a few times now, so we're getting better and better at it. The virtual environment has many advantages as we're all learning, including what I keep referring to as business on top and a little party on the bottom.

The disadvantage, however, for me and Kirsten is that we're not always able to see committee members raising their hands or eagerly leaning forward to ask a question or make a comment as we would normally, if we were all in the McGowan Theater. So I will be doing my best to monitor committee members non-verbal cues during the webcast, but don't be shy. Send us a chat or just violently express yourselves with hands or standing up or down if you want to ask a question or make a comment, but please be respectful of one another. Try not to speak over one another. Although I realize that sometimes [it] is inevitable. I do want to encourage committee members to use the All Panelists option from the drop-down menu and the chat function. If you want to be recognized or you can chat me and Kirsten directly, but please in order to comply with the Federal Advisory Committee Act, please keep any communications in the chat function to only housekeeping and procedural matters. No substantive comments should be made in the chat function as they will not be recorded in the transcript of this meeting.

If you do need to take a break, which is understandable, please do not disconnect from either audio or video of the web event. Instead, put your phone on mute and just simply close your camera. Send a quick chat to me and Kirsten to let us know if you'll be gone for more than a few minutes and join us again as soon as you can. We have noted a 15 minute break at 11:00 AM on our agenda. We may break a bit earlier or a bit later, depending on our pace today, but we'll definitely give everyone a break. And an important reminder please identify yourself by name and affiliation each time you speak. I know it's hard to remember that. I often forget that as well, so I'm equally guilty, but it does help us down the road with both the transcript and the minutes and Kimberlee Ried, who is helping us out, our National Archives colleague is going to express gratitude for that, I'm sure.

All of the formats and transcript and minutes that I mentioned will be posted on the website are all required by the Federal Advisory Committee Act. So the first thing I want to turn to is to approve our meeting minutes from December 10th, 2020, our last meeting. But let me just pause for a second before I go on to the minutes. Does anyone have any questions so far? Is everyone okay?

Okay. I don't see anyone violently raising their hands. Okay. So let's turn to the minutes. I did email them to everyone earlier this week. I pretended to be Kirsten. I failed miserably. I did not change the subject line of my email to Wednesday, instead of Thursday. So I probably confused some people, but in any event, I did circulate them. I hope everyone had a chance to look at them. Kirsten and I will certify the minutes later today to be accurate and complete, which we're required to do under the Federal Advisory Committee Act within 90 days of our last meeting. Does anyone have any concerns, comments, questions about the minutes?

JAMES R. STOCKER:  Yes, right here. Sorry, let me just say that on page eight, I think under the summary, there may be a possible mistake where it says...sorry, excuse me, the top of page nine says the second item is how agencies can proactively classify documents to better meet the needs of the community. I think that should be declassify documents.

ALINA M. SEMO:  Okay.

JAMES R. STOCKER:  That's one. And I could check with Kirsten about that. That was the item that we were considering looking at at the time.

ALINA M. SEMO:  Okay. Duly noted here. Kirsten, we got that, right? Yes, we have made that change. Thank you, James. Is there anything else that we missed? Okay. All right. Great. This is exactly why we asked everyone to look. So we want to make sure they're accurate. So other than that change, which we are now making, that James just suggested, do I have a motion to approve the minutes in their form with the change that James just asked for?

TUAN SAMAHON:  This is Tuan, I so move.

ALINA M. SEMO:  Thank you, Tuan. Do I have a second?

JAMES R. STOCKER:  Second.

ALINA M. SEMO:  James, thank you for the second. All present in person virtually [that] are in favor of the minutes, please say aye. [Crosstalk] All right. Is anyone opposed? No opposition heard. The minutes are approved. We'll make that change James suggested, and we will post those online as soon as we can. So before we turn to the next agenda item on our agenda today, the subcommittee reports, I have just a quick update or two. Since we last met on December 10th, we have advanced several prior FOIA Advisory Committee recommendations and updated our committee recommendations tracker accordingly. So hopefully Mr. Ferriero is hearing this and is excited about the fact that we're making some progress.

Earlier this calendar year, my OGIS team launched five cross-training programs in which professionals from other National Archives offices are assigned to OGIS on a part-time basis to work on completing past FOIA Advisory Committee recommendations. So we're very excited about that. The projects include compiling briefing materials for you, senior leaders, working with the Office of Information Policy and NARA's records management experts on updated training material, reviewing information agencies make available on their websites about the FOIA filing process and reviewing agency performance plans to see if FOIA is included in the criteria. In the interest of time, I won't mention other updates, but I do want to encourage everyone to check our dashboard on our website. We're very excited to have previewed our dashboard and keep it up and running and we're going to be updating it as needed. So please stay tuned for updates and just a quick thank you to all of our cross-trainees. I'm very grateful for all of their help.

So we are right now at almost 10:20 AM, two minutes early, but I am now ready to turn to our subcommittee reports for today. We will hear from each of our four subcommittees, I do want to point out that we have recently posted mission statements for all four of our subcommittees, Classification, Legislation, Technology, and Process. They're all available on our main OGIS webpage. If you scroll down to What's New, you will see them all there. So thank you very much to all four subcommittees for getting your mission statements finalized and approved by your subcommittees. I am very grateful for that. So any questions before we proceed to hear from our subcommittees? No questions. Okay. Everyone looks excited. Great. Okay. So first on the agenda is the Process Subcommittee. Michael, unfortunately, you don't have Linda with you today, but I know you're going to do a great job of giving us an update on the work of your subcommittee. So Michael, over to you.

MICHAEL MORISY:  Yeah. Thanks so much. I'm very excited because [it is] perfect time and I just finished my breakfast, but we've had a really, really wonderful group of folks from both the requester and the processing community on the FOIA Advisory Process Subcommittee. What we're really investigating is the implementation and impact of prior recommendations to kind of start things off. The FOIA Advisory Committee has been going on for a number of sessions now and so what we wanted to do was sort of see how previous recommendations had the impact that we hoped they would and sort of where can we steer our efforts to maximize impact and positive reforms within the FOIA process for all the constituencies. I do recommend checking out the OGIS dashboard, which has been tracking the implementation of prior recommendations. And it's a really wonderful resource and it's been really helpful for us as a Process Subcommittee. It's been really great seeing all the ways that prior work has slowed through the creation of new processes, improved acknowledgement letters, and much, much more within the FOIA process.

As part of our information gathering, one of the things we're doing is we're coordinating with groups on a requester community survey that we hope to go out during Sunshine Week to help get insights into what's the perception of these changes and what areas the requester community feels has not seen improvements. We're also working on bringing in guest speakers to our subcommittees to hear about how other jurisdictions, including state and local jurisdictions within the United States, as well as the other international FOIA experience and right to know experience in other countries.

We're also going to be inviting in some agencies that process requests, so that as the Process Subcommittee, we can really understand sort of the internal life cycle of [a] request and identifying challenges that they have. We really want to make sure we include both large and small agencies because each agency has its own unique challenges and opportunities for improving FOIA processes. We've also been really excited to coordinate with other subcommittees on a variety of key areas, such as the use of technology, ways to think about litigation, and other areas where our process kind of intersects with lots of different other subcommittee work.

Some things that we could use your help on, whether you're another member of the Advisory Committee or an attendee at today's session from either of the requester or the processor community - what questions do you think we should ask the FOIA requester community? We are trying to get the survey together in the next couple of weeks so that we can send it out and promote it during Sunshine Week and we're really interested in what are some questions we can ask that can help highlight frustrations, challenges, and opportunities within the FOIA process. Our hope is that we can use these survey results to kind of guide us to make sure that we're processing on the most important, most impactful areas of the FOIA process, as well as helping focus future reform efforts.

One other thing we'd love is examples of who gets the FOIA process right. We'd love to hear examples, both within agencies that you maybe you have interacted with in the past, or maybe you've worked at in the past that had a really great FOIA process that left everybody's satisfied and built a healthy culture of transparency, but we're also kind of interested in sort of the international experience. So in other countries, what can we learn from their other laws? What can we learn from other processes and set-ups? And so if you say, you know of other places that are doing public records and transparency really right, we'd love to hear those examples.

And then we're also interested in sort of folks who have been kind of pushing for these reforms. Maybe you were involved in pitching or helping get a prior recommendation implemented. And we'd love to hear reflections. I think one of the things is in the requester community, I feel like there's not enough discussion about what has positively changed the last few years. Maybe that's because FOIA requesters are just a pessimistic bunch that always wants more, but also I'd love to hear if you pushed for a change or you pushed for a prior recommendation and it was implemented, and maybe it didn't kind of work out as you had hoped or you expected - that kind of feedback is something that we're really interested in and working on. Because we want to make sure that as we do implement these changes, and there've been a ton of changes implemented over the last six years in the FOIA processes, are we actually addressing some of the root challenges within the FOIA process? And if other changes need to be made, we want to be making sure our recommendations are attuned to those.

It's been fantastic working with the rest of the Process Committee. Those are three areas we'd love to hear back more on either during the open comment section or feel free to reach out to us as subcommittee members.

ALINA M. SEMO:  Okay, great. Michael, thank you. Anyone else from the Process Subcommittee want to add anything? I just want to give everyone that opportunity. I'm seeing some no’s. Okay. Any questions from other committee members for the Process Subcommittee. Any ideas for questions that the Process Subcommittee should be including on their survey? You're thinking about them. You can chat them later. Okay. I'm hearing some silence. All right, Michael, thank you so much for that report. We really appreciate it. And thank you for all the hard work.

Next on the agenda is the Technology Subcommittee. Co-chairs Allyson Deitrick and Jason Gart. I don't know who's presenting Allyson or Jason or both, but I'm going to turn it over to you now.

ALLYSON DEITRICK:  Jason, did you want to start?

JASON GART:  Yes, I can start. Thank you. This is Jason Gart. So we're in the information gathering stage right now. We're exploring the applicability of technical standards and best practice recommendations for federal agencies with the end goal of ensuring that federal agencies have the up-to-date access and impartial information on various technology solutions. Right now we're in the process of speaking with points of contacts at other agencies that have experience in technology selection process, and also thinking through our final deliverable. So Allyson or other members, I'm not sure if I missed anything or if that covers it.

ALLYSON DEITRICK:  I think this does a pretty good job. We're also just trying to make sure that we maybe have some end goals in what the technology for FOIA would look like, but still trying to keep in mind the needs of the various size agencies. Smaller agencies have different needs than larger agencies. That's it.

ALINA M. SEMO:  Okay. That was really short. I was waiting for you guys to stretch it out to 10 minutes. I am going to ask anyone else on the Technology Subcommittee if they want to jump in and add anything. David Cuillier you always have something to say. Okay, anyone else on the committee have questions for the Technology Subcommittee?

PATRICIA WETH:  Oh, hi, this is Patricia Weth from NLRB. I was just curious for the Technology Subcommittee, are you all working with the Chief FOIA Officers Technology [Council], or I guess they're actually their own technology council. I was just wondering if you all were communicating with them?

ALLYSON DEITRICK:  Patricia, this is Allison from Commerce. Yes, we have the Process Subcommittee and the Technology Subcommittee wound up having a conversation with one of the members of the CFO Technology Committee a few weeks ago. So we're trying to use them as a resource and not duplicate. Figure out what they've been working on and what we can work on separately to not duplicate resources, but also learn from each other as well.

PATRICIA WETH:  Thank you.

ALLYSON DEITRICK:  You're welcome.

ALINA M. SEMO:  Okay. Patricia, thanks for asking that question. I know I cued you up for it, so I'll take them again later. Anyone else want to ask any other questions? I actually had a question from Michael. In terms of your survey, are there other subcommittees that you were partnering with? Is Technology Subcommittee one of them or are you looking to other subcommittees to pair with?

MICHAEL MORISY:  Yeah. I've gotten good feedback from other subcommittee members or other subcommittees, rather. And yeah, I think our timeline is a little rushed cause I put together a survey in the next week or so to get out ready for Sunshine Week, but I would love to hear from other folks who've got ideas and feedback, so please do reach out to me.

ALINA M. SEMO:  Okay, great. Thank you. Okay. Well thanks very much for that Allyson and Jason. Sorry, go ahead.

TUAN SAMAHON:  This is Tuan. I was just from the Process Subcommittee. I was going to add that one thing that we've been talking about is the possibility of more affirmative disclosure outside of FOIA and a technological solution would be necessary for some of that trying to port databases and other things. And so I think we'll be having discussions with 18F and other technology specialists and perhaps the technology subcommittee and process subcommittee will be putting our heads together in the coming months.

ALINA M. SEMO:  Great. Thank you so much, Tuan. That's that's great idea. Okay. I don't know why I'm not seeing Jason or Allyson on my screen, maybe they've [inaudible] today. They're hiding, but I'm sure you guys are there. Okay. Thank you very much for that report. Let me turn to the classification subcommittee next. Co-chairs James Stocker and Kristin Ellis, I don't know which one of you guys is going to go?

JAMES R. STOCKER:  This is James. It's me.

ALINA M. SEMO:  Okay. Hi James.

JAMES R. STOCKER:  Good morning, everyone. The Classification Subcommittee has been very busy as we are a small subcommittee. We're only meeting monthly, but our meetings have been very productive as we endeavor to address a very thorny set of problems. We have a mission statement like the other subcommittees, it's posted on the web and I won't read it all here, but there was [one] important sentence. This one: the subcommittee will study the impact of classification on the FOIA process, the use of particular exemptions to justify the withholding of national security information, and ways to improve communication between agencies and the public regarding classification.

So it's a pretty broad mission in regards to the Classification, we've had to make some choices about how we're going to proceed. Our current area of focus is the use of Glomar responses to FOIA requests. Glomar, as you will recall, is a form of response to FOIA requests that basically notes that the agency cannot confirm or deny the existence of records responsive to the request as this would reveal a fact that should not be revealed for whatever reason. From the perspective of a requester community, Glomar responses are particularly unsatisfactory because, not only did they fail to provide transparency, but they don't really provide any useful information whatsoever.

So oftentimes these responses, from the requester perspective, feel like a waste of time and resources. And [yet] from the perspective of agencies, the nature of their mission and operations means that Glomar responses are often necessary. There are many challenges associated with these. Glomar responses are often considered to be a sort of loophole in the FOIA, as they were not mentioned in the Freedom of Information Act itself, but rather developed over time as a matter of practice. They are also a black hole in the administration of the FOIA. As far as we can tell, no agency systematically tracks statistics regarding Glomar responses. There was a general perception that over time, the use of Glomar has expanded, but this is not backed up by statistical evidence. There also is a lack of understanding and communication between requesters and agencies over the best ways to avoid Glomar responses.

And so our subcommittee aims to do two things. Firstly, we want to collect publicly available documentation on Glomar responses, and then second to create a survey or questionnaire for certain agencies about their practices in using Glomar. Our focus will be on Glomar requests that are used in response to security concerns, even though Glomar responses are used in a variety of other circumstances as well.

So in regards to collecting documents that I can say thanks to Bobby Talebian of the Justice Department. He kindly pointed us towards the documents on their website, as well as to Michael Morisy who helped us to find some information on the MuckRock website as well. We are still looking for other forms of documentation, including agency level guides that might explain how Glomar is used and some of those we may get in response to our questionnaire.

We're still in the process of drafting our questionnaire, but thus far it asks agencies to compile statistics on their use of Glomar, to share any procedures or guides for FOIA officers regarding Glomar informed templates that they use, and for examples of ways in which requesters can pierce Glomar responses. Basically, we're trying to elicit best practices for requesters to avoid getting any Glomar response, to the extent possible.

Other than the Glomar issue, we are looking at some other issues associated with classification. We've discussed the idea of examining a drop dead date for classified documents. Drop dead dates refer to a specific deadline at which documents will automatically become declassified. This is an idea with a very long history that it seems to emerge over and over as a possible solution to the problem of over classification, but then encounters, again and again, objections on grounds that it may not be appropriate for all kinds of documents. However, for the moment, I think we're going to concentrate primarily on Glomar because it's a pretty big issue and we still have quite a few things to work out. Once we get a questionnaire developed and sent off to particular agencies, and we need to choose which agency that's going to be, we will turn our attention to other issues. Thanks. And I'll take any questions you might have about that.

TOM SUSMAN:  This is Tom Susman, I have a question. I know it's difficult enough to get information just about the cases where Glomar was invoked. My early experience was that the few courts willing to reject a Glomar defense nonetheless find plenty of reasons not to provide any of the underlying documents to the requester and I think that would be an interesting element if you could dig slightly deeper. I don't think there are a lot of courts that have rejected a Glomar defense, but when they do, if there's no release following that, that would be an important fact for requesters and litigators to know.

JAMES R. STOCKER:  This is James again. Tom, I think that's a very good idea. So you're suggesting, looking into court records for cases where Glomar has been cleared. That could be a really useful source of information. So I'll make a note of that and we'll discuss them in our next meeting.

TOM SUSMAN:  I had the first case actually.

JAMES R. STOCKER:  Huh? Okay. Well, I'd love it if you can share that for me and save me a search.

TOM SUSMAN:  I will.

JAMES R. STOCKER:  Thank you. Thank you.

ALINA M. SEMO:  Okay, Kristin, I just want to check in with you as the co-chair here. Anything else you wanted to add to James's excellent presentation.

KRISTIN ELLIS:  I do not have anything to add to James's excellent presentation. Thank you, James.

ALINA M. SEMO:  All right. Anyone else on the Classification Subcommittee want to add anything? Usually Kel has something to say, but he might be in the process of logging back in.

KEL MCCLANAHAN:  I'm still here, but I don't have anything to add.

ALINA M. SEMO:  Okay. Thank you. I appreciate it. Just wanted to give you that opportunity since I can't see you. Any other committee members have any other thoughts for the Classification Subcommittee? All right [inaudible] Oh, thanks. Thanks very much. Tom. Do you know the cite to your first case that you litigated?

TOM SUSMAN:  I'm just turning around to look it up. I think I've got it here.

ALINA M. SEMO:  All right, awesome. Every little bit helps. Thank you. Okay, so we're actually a little bit ahead of schedule. Everyone's going much faster than we anticipated. I don't have a really good standup act, but I'll try to have a little bit of filler. If everyone is okay, we'll move on to the fourth subcommittee's report, Legislation Subcommittee. Patricia Weth and Kel McClanahan are up as our co-chairs. Patricia and Kel, I don't know who's going to be presenting.

PATRICIA WETH:  I can start and maybe Kel can bat cleanup for me.

KEL MCCLANAHAN:  That works.

PATRICIA WETH:  Okay, great. The Legislation Subcommittee, we have four working groups. One is expanding the scope of FOIA. The second is exploring ways to strengthen OGIS. The third is to look at funding for FOIA and the fourth is FOIA fees. So we have these four working groups. Each group has a team lead. The folks in each working group have been conducting research and beginning to line up interviews.

One thing that Kel is instrumental in, he's organizing meetings for the members of the Legislation Subcommittee with folks on the Hill to discuss various legislative issues surrounding FOIA. For the first working group, which is expanding the scope of FOIA, Tom Susman is our team lead. He's just done a great job. Today he's organized two phenomenal speakers for us, to give us an education on the pros and cons of expanding the scope of FOIA. Because one of our goals for the Legislation Subcommittee is to, we hope, have a recommendation for this full committee at the June meeting regarding expanding the scope, but Tom thought it best to lay the foundation and really get some wonderful speakers in to, as I said, lay the foundation for this.

Yeah, that's pretty much what we've been doing in a nutshell. I'll turn it over to Kel to fill in anything that I've left off and then welcome any of our Legislation Subcommittee members to share anything that they wish.

KEL MCCLANAHAN:  Thanks for that. I apologize to everybody listening. My computer is just not cooperating today, but I'm here. I'm not a cat. Yeah. That hit the high point of everything we're doing. The one thing that I would add is that some of our work is particularly timely right now because we're not just looking at ways to reform FOIA through, say, passing a law that changes the law, but we're also looking at appropriations and options and it is appropriation season. And a lot of people are engaged in working with Congress to get whatever they want into the various appropriations bills.

With that, I would reemphasize the call that other people have made of if anyone has particular ideas for ways that you think that you can improve FOIA by reallocating money, whether it be just give more money to X office or something more creative, like setting up a pilot program or something, or one of the ideas that should be low cost around creating a dedicated FOIA fund, stuff like that. We have the capacity to investigate things and to ask questions that would allow us to maybe do more than people in [the] private sector could. If anybody has ideas for things, for targeted appropriations requests that would be related to FOIA that would be not just, give more money to FOIA offices, by all means, send them to us. We're open to ideas. We're trying to find creative solutions to problems where just throwing more money at an office hasn't worked in the past.

That's all. Sorry, I'm not on video so you can't see that I was done, but I'm done, unless anyone has any questions for either me or Patricia.

PATRICIA WETH:  This is Patricia Weth with NLRB. The other invitation that I'd like to send out to the full committee is if you feel that the Legislation Subcommittee can help your subcommittee in any ways, please reach out to us and we'd love to work together.

KEL MCCLANAHAN:  Yeah. One of the things that's in our mission statement actually is the fact that we expect to overlap with everybody. If this works as designed, there will be cooperative efforts between us and pretty much every other subcommittee in the group.

ALINA M. SEMO:  Okay. Patricia, were you going to cover the other three areas, or you just touched on them and you wanted to focus on the first area first, since that's the topic for today, really?

PATRICIA WETH:  Yeah. I just wanted to really highlight the first working group because that's where a lot of energy and effort has been. As I said, our goal is to get a recommendation to the full committee by the next meeting in June and so the other working groups are doing what they need to do to get their recommendations together. Because of the last term….and Tom can definitely speak to this, but because last term, we visited this issue about expanding the scope of FOIA, but really, it came up at the end of the term and we weren't really able to give it as much attention as it deserved. That was one of the first tasks that we decided to look at and start to study and see if this is a possibility for a recommendation from this term’s committee.

ALINA M. SEMO:  Okay. Got it. All right, Tom, anything you want to add? No.

KEL MCCLANAHAN:  Not at this point, no. I'm saving my questions for our speakers who are excellent.

ALINA M. SEMO:  Okay. Okay. Thanks. Actually, that's Kel. Just so you know, I said Tom, but Kel, thank you for letting us know.

KEL MCCLANAHAN:  Oh, sorry about that.

ALINA M. SEMO:  That's okay. Tom shook his head no, so we're all good. Any other questions from our committee members about any of the four subcommittee? Anything else that you want to ask each other? This is a great opportunity to do so.

ROGER ANDOH:  This is Roger Andoh from CDC. I have a question.

ALINA M. SEMO:  Please.

ROGER ANDOH:  I'm curious about whether we've got to FOIA fees, is there any thoughts about getting rid of fees altogether for all requesters instead of having a cap on [the] number of pages if your request exceeds that cap, you pay a fee?

KEL MCCLANAHAN:  This is Kel McClanahan. I can say that while our legislative focus on FOIA fees is in its infancy, that is something that we would be looking at, at least the first half. I don't know that anyone has mentioned to us the idea of capping requests, but there has been in the requester community, at least, for a while an idea of, how bad would it be if we just completely abolished FOIA fees altogether since they only raise 1% of the expenses? That is one of the things that we expect to look into, between that and more gradated responses. That's definitely something that I haven't heard before and I hate to give you homework, but if you have a plan for that, definitely send it to us. We'll look at it. I don't recall, Patricia, who's heading up our working group on fees. Is that ...

PATRICIA WETH:  Allan. Allan is ...

KEL MCCLANAHAN:  Allan Blutstein, yeah. Send him whatever you have and I'm sure we'll get it into the hopper.

ROGER ANDOH:  Thank you. This is Roger again from CDC, another question with regard to legislation. The bulk of our requests that are received by federal agencies are received by DHS. I would say the vast majority of them are probably first party requests. Is there any thoughts about specifically looking at the available first party requests with regard to agencies like USCIS, IRS that have specific, either when it comes to the benefits side of the house or with removal proceedings having, basically mandating agencies provide access to documents to first party requesters outside of the FOIA process? For example, if somebody is in a removal proceeding, that agency, there should be a discovery process that they can take advantage of so they can get their documents without making a FOIA request. If that's mandated by law, that agencies would not, there will be no delays. There will be no need for people in these proceedings of the attendees to make requests for these documents.

PATRICIA WETH:  Roger, this is Patricia Weth from NLRB. You make an excellent point and as a matter of fact, at the previous committee's term, we touched upon that issue. One of the recommendations was for agencies to try and find another vehicle for first party requesters to obtain the records. In the report, I believe we give two examples of agencies that do that very thing so that first party requesters don't have to file FOIA requests for their own records.

For example, I believe we referenced the IRS. If you need a copy of your tax return, there's a different route that you can take instead of having to file a FOIA request to obtain those records. Another agency that has a vehicle for that is the Veteran's Administration. They have a means by which veterans can obtain their own records, again, without having to file a FOIA request. We did reference those in the recommendation last term. I do think it's really an important issue. I know from my agency, a good chunk of our FOIA requests are first party requesters. If agencies can come up with another way that folks can obtain their records without having to go through the FOIA process, I think it's a win-win.

KEL MCCLANAHAN:  This is Kel McClanahan. The idea of even limiting it to people who are in some sort of proceeding, like, as you say, immigration proceedings, is also not without precedent. This is something that happens in security clearance cases all the time where, because, if when you appeal a security clearance decision, you have a right under the executive order to the investigator file, to the file that was filed to support the allegations against you. Many agencies will just process that completely separately from FOIA, which is why you get records in a month instead of three years. There are ample possibilities of things that we could model such a thing off of. The sticking point might be though the idea of resources. This is something that we would have to get into, basically and the funding issue as well, where if an agency is basically giving faster access to this class of person, that's going to be a human being working in that agency processing that requests instead of somebody else's request. I expect there'll probably be a lot of pushback from someone like a USCIS or ICE saying, "Well, we did all that work and now you're telling us to go do these other things." We'll never get to the FOIA request. That's something we're going to have to address as well. But I like the idea a lot. It's just going to be a thorny problem to solve.

ALINA M. SEMO:  Okay. Thanks for a great discussion, everyone. Roger, you're good? Any other thoughts or questions?

ROGER ANDOH:  Just one more thought. With regards to probably how [inaudible] those resources, probably use a technology to properly assemble the documents so you don't have somebody's alien file displayed among multiple agencies, have a central repository where all the records are located and we could use it to pull them. I think part of the problem is you have records dispersed, which is probably why it makes it difficult for them to collect them. If they start making sure we have technology in place where an alien file, which is supposed to contain all the records of a particular subject and all the encounters with the government in one central location and it's electronic, at least that'll be a step in the right direction.

LOUBNA HADDAD:  This is Loubna from DIA, I just wonder, the idea that, Roger, you just mentioned, which from a practical perspective, would be great. I wonder, does that raise any kind of Privacy Act issues for the idea that each agency collects information under different SORNs  [System of Records Notices] and Privacy Act requirements? I don't know if [inaudible 00:49:41].

ALINA M. SEMO:  I heard him.

TOM SUSMAN:  You did hear him? [inaudible 00:49:48].

LOUBNA HADDAD:  Not an area I'm intimately familiar with, but I just wonder whether that would be something to consider because each agency has different authorities and reasons for pulling certain information based on their SORN. I wonder what issue, if any, that might create, whether you're trying to do a centralized repository of all that information. Over.

ALINA M. SEMO:  Loubna, thanks. Great point. Roger, maybe this is something you guys are already talking about in your first party requests group, working group, but definitely a very important consideration. Any other lawyers want to chime in about SORNs, feel free? It's definitely not my favorite area to talk about. It's always sticky, but very important. Thank you for pointing that out, Linda. Very helpful.

PATRICIA WETH:  This is [inaudible].

ALINA M. SEMO:  Okay. Yeah, please.

PATRICIA WETH:  Patricia Weth, NLRB. I didn't realize that there was a first party working group that you're on Roger, but one good resource for you might be Margaret Kwoka.

ROGER ANDOH:  We actually spoke with her.

PATRICIA WETH:  Oh, did you? Oh, fantastic.

ROGER ANDOH:  Yes, we did.

PATRICIA WETH:  Okay.

ROGER ANDOH:  We did. We're going to have a conversation with Emily Creighton from American Immigration Counsel.

PATRICIA WETH:  Fantastic.

ROGER ANDOH:  Yeah.

PATRICIA WETH:  Okay.

ROGER ANDOH:  We have spoken with her. She's great.

PATRICIA WETH:  Okay. Okay.

BOBBY TALEBIAN:  Excuse me, Roger. This is Bobby from OIP.

ROGER ANDOH:  Sure.

BOBBY TALEBIAN:  Another resource, this year's Chief FOIA Officer reports specifically asked agencies to report on an estimate of the first party requests that they have. Any alternative means that they're providing or plans to provide, so that could give you some examples of how agencies [are] handling it.

ROGER ANDOH:  Bobby, do you commit to giving us first access to the document ahead of time so we can see it before you [inaudible].

BOBBY TALEBIAN:  All the CFO reports should be posted by Sunshine Week.

ROGER ANDOH:  Okay.

BOBBY TALEBIAN:  We'll have them all centrally linked. Sometimes we have stragglers, but we'll have them all centrally linked on our website.

ROGER ANDOH:  Awesome. Thank you.

BOBBY TALEBIAN:  Of course, we'll look at it ourselves too, when we do our summary and assessment, but all the information will be publicly available as agencies clear our reports, but I wanted to make sure you knew that there was a specific question on this topic. There's already a good amount of resources that you can look to.

ROGER ANDOH:  Thank you. Appreciate it.

ALINA M. SEMO:  Great. Thank you, Bobby. I appreciate that. Okay. Just want to wrap up  the Legislation Subcommittee, any other issues or questions for Kel or Patricia? All right. I'm hearing quiet, actually, great segue. Before we take a quick break at 11:00 AM, so we're actually back on schedule, which I really appreciate. Great segue about Sunshine Week. We have been featuring in our FOIA Ombudsman blog individual members of our committee. I really want to encourage everyone to take a look. This week's feature is our very own Tom Susman. I actually enjoy reading his responses this week. It was actually very interesting to learn some things about him that I did not know.

We have previously featured Roger, David, Alexandra, Kristin, and in the last committee we featured Michael Morisy and Patricia Weth. I think we're not going to feature them again if that's okay with them. Hopefully they're not insulted by that, but we recommend everyone to look back to our blog posts from the last committee and you will learn more about Michael and Patricia. I just want to quickly ask about Sunshine Week. Are there any events that anyone wants to share that we should all be tuning into that are public in nature?

BOBBY TALEBIAN:  Alina, this is Bobby. Our department, the DOJ is planning to do its annual Sunshine Week kickoff event on Monday. We posted about that on our blog post. Michael had mentioned providing good examples of agencies. One thing we try to do is highlight some of the positive and great examples of agencies at this event and showing them as an example to other agencies. We've had in the past, one of my favorite nominations from the requester community. We just extended the deadline for nominations for the department sunshine award. If there is an agency that does it right in your view, or there's a FOIA professional that you'd like to recognize and highlight, I encourage you to submit that nomination to us.

ALINA M. SEMO:  Okay, great. Thanks so much, Bobby.

PATRICIA WETH:  Bobby, this is Patricia Weth from NLRB. I'm just curious. Does DOJ get many nominations from the requester community?

BOBBY TALEBIAN:  We get them primarily from the agencies. We've had, from the requester community, we've had a couple. Of course, those are my favorite because we get it from the other perspective, of course, and we don't get as many from the requester community.

PATRICIA WETH:  Very interesting. Thank you.

ALINA M. SEMO:  Great. Anyone else want to highlight any Sunshine Week events that we should all be tuning into? Tom, you're speaking, but you're on mute.

TOM SUSMAN:  Okay. Tom Susman. For those of you who are in the District of Columbia or surrounding, maybe interested in a program on the 18th at 1:00 PM on Zoom that will focus on schools and policing and COVID in the District of Columbia. It's about an hour and a half program with two local council members and other community activists and DC's very own OGIS, the director of the office of open government, will participate. It's open to the public. There's a link for registering on dcogc.org and I'd love to have a large audience.

ALINA M. SEMO:  Great. Thank you so much.

PATRICIA WETH:  Alina, this is Patricia once again. I just wanted to mention to the folks who are with agencies who are listening, one of the recommendations from last term was a suggestion about issuing an agency-wide memo to educate the employees on the importance of FOIA. I think Sunshine Week is really a great time to do it. I know in the past, OGIS has suggested that as a recommendation themselves, and by way of example, they did that very thing at Sunshine Week as did several other cabinet level agencies. I'm just going to throw it out there as a suggestion that folks may want to have their Chief FOIA Officer or General Counsel or the secretary of the agency to send out such a memo agency-wide during Sunshine Week.

ALINA M. SEMO:  Okay. Great idea. Bobby and I will talk about this. It's on our to-do list, so thank you. We really appreciate that suggestion.

Well, I think we're at 11:03 AM. Not hearing anyone else jumping up and down wanting to say anything. I suggest we take a 15-minute break. Let's come back at 11:18 AM and get ready with lots of questions for our two guest speakers. We can now take a break. Thanks everyone.

[BREAK]

Okay. Welcome back, everyone. I hope everyone had a great break and got some coffee. We're ready to get started on the second part of our meeting today, and I am very pleased to welcome Daniel Schuman, the policy director for Demand Progress and Michael, who goes by Mike, I understand, Lissner, the executive director of the Free Law Project to our committee meeting today. I think we're all very much looking forward to their presentation.

I just want to give just a quick background on each of our speakers today. As policy director, Daniel leads Demand Progress and Demand Progress Education Fund’s efforts on issues that concern government transparency, accountability, ethics, and reform, protecting civil liberties, and strengthening the legislative branch. He is a nationally recognized expert on federal transparency, accountability, and congressional capacity. Daniel was instrumental in drafting and enacting legislation, including the DATA Act, FOIA modernization, public access to CRS reports, publication of legislated information as data, obtaining a study on restarting the Office of Technology Assessment and dozens of House rule changes, including the creation of the Office of Whistleblower Ombudsman. I did not know that, Daniel. Daniel previously worked as a policy director at CREW [Citizens for Responsibility and Ethics in Washington], policy counsel at the Sunlight Foundation, and as a legislative attorney within Congressional Research Service. Daniel graduated cum laude from Emory University School of Law. Welcome Daniel.

Mike Lissner is executive director and CTO of the Free Law Project, which he co-founded in 2013 as a nonprofit dedicated to making the legal system more competitive and fair. His mission is to provide free access to primary legal materials, developing legal research tools, and supporting academic research on legal corpora. In this role Mike works with researchers, journalists, individuals and organizations to improve and interpret the legal system. Prior to starting the Free Law Project, Mike was a student at the School of Information at University of California-Berkeley, where he created the first version of courtlistener.com as his capstone project and where he focused on technology, law and policy. Welcome to Mike.

We have agreed that Daniel will go first. Mike will present second and committee members, please hold your questions until both Daniel and Mike have presented at which time you'll have plenty of opportunity to ask questions, make comments, everything you want. With that, over to you first, Daniel. Thanks.

DANIEL SCHUMAN:  Wonderful. Thank you so much. Thank you for having me. Good morning to everyone. It's good to see so many familiar faces, or mostly familiar. It's been a while since I've seen most of you in person. The thing that I want to test immediately is just to make sure, is it possible to advance to the next slide? Excellent. See everything is working now. First promise that I will make to all of you is that I will not be reading my slides. These are intended largely as footnotes and reference materials. The presentation that I'm going to give, I'm going to keep it as short as humanly possible because your questions will always be much more interesting than what is that I would have to say, but what I'll be covering in the presentation is the following. Some of these are things that you know, but it's useful to have a foundation for it. One is, what is the legislative branch? How does disclosure and transparency work inside the legislative branch? What exactly is disclosed inside the legislative branch and then various mechanisms to improve it? Can we go to the next slide, please?

As promised, we're moving quickly through the slides and there's not that many and I promise I will not read this to you. The legislative branch has more than Congress. I do have to read the title, right? The legislative branch is about $5 billion annual appropriation, has somewhere in the vicinity of 20,000 employees. It's much more than the House and the Senate, and people don't usually think about it that way. When I think about it, I try to break it down into a couple of categories. There's the political parts of the House and the Senate. This is what most people usually think of - this is the personal offices and the committees and the leadership. It's the party, to some extent. This is the political side of the House, but there's also support offices inside the House and the Senate, as well. I've listed a bunch of them. There's even more.

These are the folks who keep the lights on. These are the folks who move the legislation. These are the folks who keep the IT operating. This is places like the Whistleblower Ombuds, where the people who update the law and the Office of Law Revision Counsel. They can be political, but they're not necessarily political and they're much less political than the elected officials. In addition to the support offices, there are a bunch of support agencies. There's about a half dozen of them. This is where most of the money actually goes. These, you're probably familiar with to some extent. Some of these you've heard of, some of you may have not, places like the Library of Congress, GPO, the Congressional Budget Office, the Architect of the Capitol and so on and so forth. Then there's a bunch of miscellaneous other stuff. They're not the way that you would think of as an agency. They're something else. These can be commissions or joint committees. There's a foreign relations component. There's the Office of Attending Physician.... So there's a bunch of weird other stuff, these weird commissions that also exist and are situated inside the legislative branch. Next slide, please.

So Congress in the legislative branch is very different from the executive branch in a number of interesting ways. One is that Congress is inherently political. It is concerned about its reputation and it writes its own rules. This is very different from much of the way the executive branch functions. There's nobody in charge inside the legislative branch. There's no central authority, there's no rulemaking entity, there's nobody at the top. There are people who are relevant, but there isn't an entity that comes together where you can make a decision about things in a certain type of way.

The components inside, particularly the political components have independence as their hallmark. You largely can't tell the personal committee in leadership offices what to do. They can do largely what they want within a series of constraints. They view themselves as sort of being 535 individual offices, not as being the House and being the Senate, so they can largely set their own processes and procedures.

Much of Congress’s work is proactively disclosed. They proactively disclose a lot more than you would think. And their work that they're disclosing oftentimes is both pre-decisional and it's deliberative. If you think about the FOIA carve outs, this is kind of the inverse of what you see elsewhere. Again, the decision would be the enactment of the law. So pre-decisional, all the conversation around the bills and the amendments and about who's doing what, that is inherently deliberative and that's inherently pre-decisional. We don't think about it that way, but that really is what it is.

And finally, while there's a number of laws, many of these laws do not apply to Congress or they don't apply to Congress in the same way that they might apply elsewhere. Next slide, please.

So I'm not going to read this to you, but there's many sources of rules and ways for Congress or its components to change how it operates. Many of these things don't require passing a law, some of it can be just as simple as you change the way you operate, some of it could be a rule change, it could be appropriation language. There's a lot of vehicles, there's a lot of points of entry into the legislative branch to change the way that it or its components function. Next slide, please.

So it's important to think about the different types of Congressional disclosure that takes place, and the emphasis on the kind of disclosure that happens is different than exists elsewhere.

So I have made up basically six categories. Other people probably have a more appropriate hierarchy, but this is the way that I think about it. There's the mandatory proactive disclosure. So you get to see all the bill tax. You get to see the committee reports for the most part. You get to see all the enacted laws. There's laws around lobbies but there's all these things that they have to disclose and they do it without being asked to do so. They require themselves to do it.

There are a number of things that are voluntary disclosure; press statements, unintroduced bills, personal office websites. When you write them a letter and they write to you back, this is voluntary practice. They don't have to do it, but they choose to do it.

There is a very small category of mandatory response itself. So FOIA is to the Copyright Office, FOIAs for older records at the National Archives. There's a handful of things that are mandatory responses that are imposed by third parties like the courts, but there's not very many.

There's a lot of voluntary responsive stuff though. So these are...a member of the press calls and you get an answer then introduce draft bill types, there's members schedules. All the tweeting, and all the letters, some of their scheduling, this is all things they don't have to do but they do as a matter of course.

Now there's some other weird categories of things. One is what I call quasi-mandatory responsive. I'm sure there's a much better way to describe it, but basically inside some of the support offices and some of the support agencies, they have instituted a FOIA-like or FOIA Light, depending on how you like to say it process.

So for example, you can make a FOIA-like request of the GAO. They promulgate regulations, they will consider your request, they follow a series of rules and regulations, and they'll put it up. Now, you can't vindicate it in court but they have that. The Library of Congress has this. There was a requirement that we got in last year's appropriations bill from the Capitol police to sort of consider applying FOIA to itself. This is being imposed on them. This would be a FOIA Light process because again, you can't go to court. If you're appealing it, you're appealing to their general counsel so it's not really a review from a blank slate, but that does kind of exist.

And then there's involuntary disclosures. There's probably a better way to describe this, but this is how I think of it. So these are things that can be disclosures by third parties. So let's say that I'm a member of Congress and I send a letter to all other members of Congress, and one of the other members of Congress discloses that to the public. That's disclosure by a third party. That's involuntary disclosure of the letter that was sent by the original members.

Press coverage of course is involuntary disclosure, every time you see a scoop with something that's not public, maybe it was being involuntarily disclosed or maybe they found it out.

You can do an involuntary disclosure around the legislative branch by deploying the executive branch for communications that they received from Congress. And this is really big headed where people don't think about it a lot - are paid services. If you want CRS [Congressional Research Service] reports, well then now they're required to be disclosed generally speaking, but until recently they weren't. But you could go to Lexis or Westlaw and you could pay for it.

You can get all the committee reports from the 1790s forward online in a digital format that is... Some of it were non-published documents, that's involuntary disclosure.

Information about contact information for the members it's a voluntary disclosure. They don't really disclose this or at least not in the way that you would think so. There are services that go and will basically build giant databases to disclose a lot of the information about Congress. And of course, this is the way that I think about it, there may be other categories, but hopefully this makes sense. Next slide, please.

I'm not going too fast, right? This is good. Excellent. Okay. So when you want to think about enhancing legislative branch transparency, assuming that's something that you want to think about, here's some of the lessons that I've learned, or some rules of thumb for thinking about this...

One is that the further an entity is away from playing a deliberative role that is politically sensitive, the more appropriate it probably is to apply FOIA or a FOIA-like remedy. So the Capitol police is a security force. They're like most other law enforcement. They're like the FBI or the ATF. They're security, they're not police, although we call them police. FOIA makes sense to apply to them in some fashion.

The Congressional Budget Office or the Government Publishing Office, the Government Accountability Office some of their stuff is deliberative and eternal though all other stuff you can employ a FOIA or FOIA-like process because it's further away.

But if you want to get the emails of a member of Congress to another member of Congress, you want to get a confidential report from the Congressional Research Service to an office, that's really close to the deliberative role and that becomes a very different question than how many traffic stops did you do in the last year? Or how much money did you spend on producing budget explanations or whatever it might be.

In Congress, bright lines are bad. They do really well with... All of these things need to be disclosed or none of these things need to be disclosed. And you can deal with voluntary for some of them or for the other but proactive disclosure works better for them.

So requiring them to disclose a category of stuff works much better than having some weighing or a balancing test. So all CRS reports, all letters from agencies to Congress that are required by law that is clean. As it gets murkier, it becomes harder to make [lists], because who is going to adjudicate the determination of what congressional information should be publicly available?

The idea of having someone rooting through their files is not something that will be politically sustainable. And it's probably not a great idea in certain circumstances. And they also are significantly woefully understaffed, so they probably couldn't do it even if they wanted to.

I always say that if you can buy the information from a third party, then the legislative branch should be proactive with disclosing it instead. Why are we making people rich who are basically repackaging legislative information and reselling it?

It's great if you want to go and provide analytics on top, that is a value add, that is a great business model but faster assets to a bill everybody should have equal access to legislation at the same time and Congress should be in that business.

Second, if it is being disclosed, they should probably be disclosing it as much as possible as data. There are huge industries built around transforming PDFs into useful information. If they're going to create their own information, they might as well make it as valuable and as data enriched as humanly possible. Two other points here and I'm going to skip one.

One is that archiving an access to records is inconsistent in the legislative branch. For example, committee records go to NARA, personal office records you can burn in the backyard barbecue. That's just what it is.

There are historians, there are some archivists but they don't think about archiving as a general rule. Certainly inside the House and Senate itself, they don't think about it that way. They don't set up record systems, there's not systems of records and management and all of the stuff that we do. That doesn't really exist for them, so it's really haphazard.

And Congress is very bad at dealing with classified information. Of course, Congress can't classify information itself, it's all derivative, it's secondary stuff that comes from the executive branch. But they don't have a process to release it generally speaking unless they go and pass the bespoke law.

The ISOO [Information Security Oversight Office] has a great report from maybe 16 years ago that talks about when Congress has decided to direct records that have to be disclosed, that are classified, but they really don't have a way of dealing with this that's very good. Next slide.

So it was suggested that it might be helpful to have some recommendations for legislative branch transparency and to help you think about what's easier, what's kind of hard, and what's hard to do. So I put a couple examples in here just as ways of helping you to think it through.

Some easier and nothing is ever easy... But easier things that make more conceptual sense are things like releasing legislative branch inspector general reports. We do this for the executive branch for the 74 IGs they're on oversight.gov.

As a general rule most of these things could probably be... There are six IG’s inside the legislative branch, most of them could have proactive disclosure requirements. You've released the report, you can't release the report, you release a summary. And if it's classified you follow the GAO model, which works really well.

We have current CRS reports publicly available. Well, there's no reason not to publish the historic ones. There's no reason not to publish the current ones as data as HTML [inaudible] to make available internally, but not externally. This is just foot-dragging on the part of certain folks over there.

There are things like the serial sets. This is the volumes of committee hearings and proceedings and laws that were enacted. There are basically, until very recently, only available as print now they are available as PDF but they're these giant PDFs. We should be retyping and make them available as data. Those are easier to do.

For intermediate, [inaudible] is creating the FOIA-like processes for the legislative branch agencies. We just had that happen with the Capitol Police, they're supposed to do this, how they do it, how well they do it, what looks like what's the appeal who knows? And that is doable. That has happened previously, it is possible to push that.

Things around witness demographic, disclosing conflicts of interests that information is gathered but it's gathered poorly. So having it as data, not as paper, having it all in one place, these are things that are possible to aggregate and disclose so it becomes useful.

Also, for intermediate but not too hard historians and archivists to support the committee process. This is the money question. Congress underfunds itself so money is hard, but setting up appropriate systems of record, central databases and all this stuff is totally doable but they have to have the political role.

Harder to do, examples just very quickly; alleged range declassification office, right? We've heard Lyndon Johnson, when he was in the Senate [he] had set up a process where hearings that you were having that were classified, they were immediately declassified, reviewed, and published the same day. We can do this, but it's harder to do because the executive branch freaks out about classified material. No, no, you can't do it, even though they certainly could.

Centralizing reports and letters to and from Congress is hard. Treating things that facilitate these processes are hard, so things like creating a data coordination office inside the legislative branch because it spans so many things, worth doing, essential to do, very hard to do.

And the final thing that is really hard to do is to add context. Because when you help people understand what's actually happening, it has political consequences and ramifications.

So summarizing the bill. All that, well, there's lots of different ways to summarize it that can cause interesting reactions. Explaining appropriation, it was like all of these things the more that you have real-time information about what's going on connecting the pieces, those are the types of things that are really hard to do because who decides what it means? And that can create political angst. So final slide. That's it.

So that is Congress in a nutshell. Happy to go more into it. We talk about this every week in our newsletter The First Branch Forecast, which focuses on the legislative branch of government transparency if you're interested. And I'm happy to stop talking so that Mike can talk and we can learn more about the courts. Well, thank you so much.

ALINA M. SEMO:  Thanks Daniel. Mike, over to you.

MIKE LISSNER:  Great. Let's just see if we can get the next slide and make sure that's working. Perfect. So my name is Michael Lissner and Alina, thank you so much for that great introduction. And I'm really thrilled to be here to present to everyone and see some faces that I know.

I'm from the Free Law Project, we've been working for many years now as a nonprofit to try and get content out of the judicial branch.

Typically, that takes the shape of legal data in particular - motions, opinions, things that are happening inside the courts. But along our path, we've also frequently tried to get some document[s] from the administrative side of the judicial branch.

And it's been interesting to have those experiences, and I'm happy today to be here to share those. I think my presentation might have a little bit more of a push than Daniel's, although I think maybe mine is less subtle.

But my title here is Open The Judicial Branch. And I'm hopeful that by the end you'll see why I think that's important. As it is currently, it's pretty hard to get almost anything aside from the legal documents and even those are pretty challenging and there's a lot of content that we should be getting so that we can understand it better. If we can go to the next slide, please.

Like Daniel, I think a good place to start here is to understand what is in the judicial branch. And there's a little bit more here than I think most people might realize, although it's a pretty sophisticated group here. But it's about 200 courts, and that's including the district courts, bankruptcy courts, appellate courts, supreme courts. And it's also worth remembering that we have courts around the world. We have courts practically in Asia with the Northern Mariana islands. And so there's a huge variety of how these courts work and where they are, and it's an extremely distributed system.

The next part is the Administrative Office of the U.S. Courts. This is the administrative org and there's a lot of these on the state level as well. They often have the same name and these are the folks that are making the show work, all of the administrative folks.

At the top, there's the Judicial Conference of the U.S. This is the policymaking, they meet the policy-making body. It has members of The Supreme Court, it has a number of judges that are on there. They meet twice per year. The meetings are closed to the public and they do release notes about what they talk about, but they have sub-committees of course that report during their bi-annual meetings. And those subcommittees minutes... And actually, even learning the membership of those meetings, they treat that as a secret. And so you can't even find out who's on the sub-committees.

The next part of the judicial branch is the FJC, the Federal Judicial Center. They're a neat organization. They do trainings for judges. That's one of their biggest things. So when you become a new federal judge, somebody's got to tell you how to do the job. And that's a big part of what they do. They also do research and statistical work for the judicial branch. So they actually have an incredible amount of data, and they are one of the bright spots in terms of access to information in the judicial branch.

They have a database of all of the cases that are happening. In every quarter they put it out and it has metadata about cases. It's a pretty incredible source but in keeping with the slightly secretive nature of the branch, although they have the information about the judge that's in each case and there's a column for it in the data, that column has been blanked out.

It's a policy that The Judicial Conference itself created, and they said, "You know what? No judge information in bulk. We're not going to do that." Although the FJC gets that data, they blank it out before giving it to the public so you can't learn about what individual judges are doing in bulk, I should say.

They also do statistical work. And so there are annual reports and those typically come out of the Federal Judicial Center.

There's 81 federal public defender organizations. These are an interesting public-private collaboration where in some cases there's an administrative element to this, to providing public defenders to individuals and organizations, and their public defenders, and their private public defenders. So it's interesting from that perspective that a lot of the work gets shipped out. I think maybe about 70% or 80% of it there. And that's another 4,000 employees right there.

There's the U.S. Sentencing Commission. These are the ones people who figure out what are the sentences for various things that you get found guilty of.

And then there's The Supreme Court police, who guard The Supreme Court. These are also the folks that do the call-out, the oh-yez, oh-yez at the beginning of cases and things like that. I don't know if we can go to the next slide, please.

So the status quo right now is that it's a secretive culture. Judges think that this is important and they believe that by keeping some degree of distance, they are able to make more independent decisions and have better adjudication.

And that culture coming from the judges in my experience has transferred over to the administrative side. And I guess I should say since I haven't said it already that, I think most people are agreed that we're not going to start asking for judges' personal papers.

We're not going to start asking for a lot of things that are actually happening in the cases that you can't get already. But on the administrative side and from the Supreme Court police, there's a lot of other from FJC, there's a lot of other stuff that would probably make sense to have in some public access law.

So right now, if you want any of that stuff, the way to do it is with the common law right of access. And I have done a bunch of research on this, and it's just this old approach that says that, yes, going back to before, the United States was even a country we've had this right of access that people should be able to ask for stuff. And, looking at the history it is used for court records pretty frequently. And this is your way to get content, but it is not used on administrative records, at least in any visible way that I was able to find. It could result in court cases if you're asking for administrative records this way. But it seems like to the extent it's happening, it's not resulting in court cases or public commentary of any kind.

So [its] my observation it seems like there is this common law right of access, but people are not using it to gain an understanding of what's happening in the judicial branch.

The big things, if you're looking at a common law request is, is it a public document and is the public's need for that information greater than the government's need for privacy? And you'll see, when people are requesting court information these sorts of discussions happen a lot. And there is actually a fair amount of case law around that. And there's actually a guide that's put out by the RCFP [Reporters Committee for Freedom of the Press] and it explains in great detail where the common law landed in each different jurisdiction across the country, long, long guide.

But the problem of course with the common law right of access, we had this before there was FOIA. This was the system before FOIA. And it's ultimately not good enough. There are no timelines, there's no statutes. It doesn't provide any [sort of] support to the organization. There's no guidelines for it. And it's just a loose system. It's more of a principle than a system. So that's where things are at now. If we can go to the next slide, please.

So I wanted to highlight a couple of things that are not well understood currently that should be in a functional democracy. And the first one I think is a huge ordeal and a big scandal that we don't know more about it - is the SolarWinds hack. We know from other sources that Russia has hacked into a lot of organizations, many of them government via SolarWinds. And we also know from the Administrative Office of the U.S. Courts that field content was involved in this.

And that's all we know. We know that field content was probably accessed, we don't know what content. And there's not much of a way to ask. I was able to talk to somebody inside the court system that told me a lot about how bad it was in their particular court, and I tried to get some reporters to follow up on it, and I tried to get some people to talk to reporters but that's as far as we can go. We should be able to ask the judicial branch what's going on with that.

The next one here...and I'm going to get into this a little bit more on my next slide. But there have been various allegations with various judges of sexual impropriety. And what's happening inside the judicial branch about this? Are there any disciplinary events? Are there any whistleblowers? Are there anything of that sort related to these? We just don't know. We don't know how the courts are handling these sorts of events.

And then the third one that's been in the news if you follow this kind of thing, it's an area where we've been working a lot is PACER fee skimming. And if you don't know the PACER system, it's how the public accesses court documents. It's a big, complicated system I won't get into but basically everything costs a little bit of money. It's a dime per page. And that money is supposed to go to supporting the PACER system itself but recently in court, after a pretty long lawsuit it was found that some of that money was going into other things where it wasn't supposed to go. And they're still figuring out what to do about that extra money.

It's about $40 million a year that was going to places it shouldn't have gone. And it was happening for about 10 years and people had a feeling it was happening for about 10 years, but it took a really long time to figure that out for real and to really get that into the public via a court case. Partly because there's no way to look at the financial documents inside the judicial branch.

The next slide, please. So this slide, I just want it to include... Because when researching this topic, I wanted to see, do we need more transparency into the activities of individual judges? And I think even for myself having worked in this area a long time, I didn't realize how many judicial impeachments there are then.

The grand total I think is around 30 or 40 impeachments that I was able to find. And the reasons go all the way back to drunkenness that tended to happen in the 1800s more, to graft, kickbacks, judges doing espionage. It would be nice to have some information about that and see what sorts of documents are being written about that topic inside the judicial branch. And there's even worth mentioning that we've had judges with really bad histories and they're not getting impeached. What's going on there? And these are pretty problematic people in some instances. So onto the next slide, please.

On to the next slide please. So the next two slides are the top 10. I've talked to a lot of people in preparation for this meeting and to gather more understanding about what a judicial FOIA might look like. And I think there's about 50 things people have suggested. And I'm just going to go through these a little bit quickly, but we talked about disciplinary actions for judges, same thing goes for attorneys, whistleblower reports. This is all stuff related to personnel and directly to individuals that there's been some allegation of some kind. It's important stuff.

Financial records, I think that's a pretty obvious one. People know that one, contracts as well. The judicial branch, like many branches, it has contracts with the various defense providers and defense contractors. And it would be great to get those contracts and understand them.

The next one, fines and fees levied. What are you actually levying on people in an organization. AO Court guidance letters, when the administrative office wants to encourage the courts to do something because they can't necessarily tell them to do something, they will send a guidance letter. We had one of these related to PACER recently, and I'm still trying to get my hands on that to see exactly what it says, but it sure would be nice to know how the administrative office is guiding the courts.

Next one, security audits, recovery plans, incident reports. We know about SolarWinds because they accessed the sealed content. What else is going on related to security? And that also, I should mention, covers both physical security as well as digital security.

So although a lot of the field content is online, if we're thinking about it a lot of it is actually just in the courthouses. And what sort of security is happening there? Some of this content has huge national security implications, so it's worth thinking about that.

Next slide, please. The next one is the SCOTUS public calendar. We have this for the president. Would it be reasonable to ask for a public calendar for Supreme Court justices? Next one is a simple one I sort of touched on earlier, is the Judicial Conference committee membership and minutes. I should say the subcommittee membership, actually. The committee itself you know, but it's wild that we do not know and it's treated as a secret who these people are. List of judges past and present. This is something that I've spent a lot of time trying to get an access to: who are all the judges that we have ever had, and can we build up a nice database of that for research and for investigations and for public knowledge in general? This is the kind of thing that the FJC provides in part, but they do not provide magistrate judges. Magistrate judges do a ton of the work, but it's just not something that's provided, even though it's information that they clearly have and there's no reason not to share it with the public.

FJC, the integrated database I talked about earlier that has the blank column with judges, it's just a good example of the kind of thing that you can say, "Hey, you know what? I know you have this document. Please give it to me." And then the last one that I think is worth mentioning here, this is something that a reporter I talked to suggested, is we know some of the stuff that we want, but once you get access with FOIA, you can start asking for the next thing, you can start learning what you don't have. And so this is sort of a "you don't know what you don't know" problem. And so it's worth mentioning that as well. And then, next slide, please.

And so the last couple of slides here sort of talk about...maybe provoke some questions from folks here. What do we include or exclude if we do write some sort of public access law? Field documents, probably we know the answer there, but I bet you there's some corner cases that are worth thinking about. Court documents themselves, a lot of those are in PACER and accessible to the public. Some of them are not. Trial exhibits, for example, are not in PACER. If you want those currently, you can ask for them, you might be able to get them, but it'd be nice if we had something better than just Common Law Right of Access. Judicial papers, under what circumstances would you consider those a reasonable thing to ask for? Clerk selection criteria, that's something a lot of law students school students would kill for. When judges retire, they send a letter to the president typically, can we get our eyes on that? And then of course, there's the FISA [Foreign Intelligence Surveillance Act] court that deserves a mention here.

How does all of this play out in one of the most secretive parts of the entire government? That's worth thinking about, because any rule that you apply to other courts probably is going to end up applying there as well. And then next slide, please.

And then the last couple things are just some problems that you might run into. I think Daniel hinted at this also, how do you appeal rejected requests? Are you going to have a panel of judges? If you request something from the Administrative Office, it goes to a judge or does it go to a panel? Does it go to an administrative group somewhere? How do you solve that sort of problem? And how close do you get to judicial proceedings and papers? Would you want your law to go? What effect would FOIA and the judicial branch have on FOIA oversight that we haven't currently?

Currently an executive branch FOIA, if denied, it goes to a judge. Are those judges' perspectives going to change if they're also subject to something similar? And then finally, what do you do when someone makes a huge request? If somebody asks for a million documents, what are you going to do? Is the judicial branch ready for that kind of request and does it know how to respond? And with that sort of opening up the questions, I go to the last slide and I'll just say thank you. I'm happy to be here and happy to open things up to conversation.

ALINA M. SEMO:  Great, Mike, thank you so much. That was really informative. I took a lot of notes. So I just want to open it up to anyone who wants to start asking questions, engage Daniel and Mike in conversation. So who wants to go first? Tom is raising his hand very respectfully and so is Tuan. Okay. Tom first, Tuan second, Kel third.

TOM SUSMAN:  Okay. I think it is really useful to have that last slide on problems to overcome. And so I have sort of two related questions. One is you both mentioned the enforcement issue and I think the history of Congress enforcing against itself is not a very encouraging one. And yet I think the likelihood of Congress allowing the courts a role in enforcement is zero. But maybe Daniel could comment on that. And without enforcement, is it still worthwhile? The answer is probably so, but that's where I get into the political issue. And that is looking back at FOIA, we all remember the original, Lyndon Johnson down at the ranch with a veto statement prepared by the Justice Department and only at the last minute talked into signing the bill by his press secretary. And then of course, Ford did veto the ‘74 amendments. What am I getting at, the executive branch never really embraced applying FOIA to itself. But of course, Congress had the power to do that. So is this really a fool's errand for us even to think that Congress will apply some FOIA-like process to itself, and likewise, the courts? Are we wasting our time thinking about that because the likelihood of that level of self-accountability and self-discipline is nil? So...complicated questions.

DANIEL SCHUMAN:  But a good one. So I'll start with... So the question is of enforcement, and I would say in the legislative branch context, it depends on who you're enforcing it against. So if you're enforcing it against some of the support agencies, I can see that as being reasonable, right. We already have enforcement against the Copyright Office inside the Library of Congress. We have FOIA-like processes inside GAO, the Library of Congress, and a couple of other places. So, they're already doing it to some extent. The question is who you appeal to? If I were to create this sort of out of whole cloth like the support agencies, what I would probably do is I would take a page out of the workplace rights model. So Congress has a similar problem with respect to applying health and safety laws to itself.

You couldn't go to the Department of Labor or outside entities to enforce wage and hour restrictions and how you unionize and all that other types of stuff. So Congress created the Office of Compliance out of the Office of Congressional Workplace Rights. That is an entity that basically promulgates the regulation that deals with all of the initial level requests. And then at a certain point, you can appeal to the courts depending on what it is. And I think that that may work in the FOIA context. I don't like having agencies being the judge of their own agreement or denial of a request, having something else that test scores the regulations and that deals with at least the initial level of appeal out of the agency, probably makes sense. You could imagine, I don't have a cute name for it, but like a congressional FOIA office that's responsible for regulations that applies to certain things. And you can ultimately maybe appeal it out to a three-panel judge in the Federal Courts or something like that. And so we do have a model for that type of thing. I don't think FOIA is going to be able to get closer to the political side. I think what you're going to have to do is actually go with the (a) section, not the (b) section of FOIA, where there's the long list of things that you are required to disclose under FOIA. And I would say that for a long list of things that you must disclose X, Y, and Z, and you have a long list of those things that you have to do, just like FOIA has mandatory disclosure in certain sections.

And you probably have to think through what enforcement looks like, or you have the data coordination office I was talking about that helps agencies or entities think through how to implement that, for the implementation of sort of the FOIA (a) section. And for the (b) section, I would have, like I said, I would have like an entity inside the legislative branch that deals with uniform regulations, appeals, and then ultimately you probably have vindication to the courts. And how you divide that line, of course, will be a very interesting political question, which I will leave for further discussion.

MIKE LISSNER:  Yeah, I think I would just add to that that there's a lot of stuff that is not going to be a fight, right? I think there's probably, rightfully, there's a lot of focus on the most controversial content and what's going to happen with that. But I think coming from where we are now with the common law right of access, just having something encoded, just having a law that says exactly what the process is, boy, that would be nice. And for a lot of stuff you could say, "Look, here's what I want. Please give it to me." And they'll say, "Sure, no problem." And that'll make a lot of things a lot easier. And I've tried to get content from the judicial branch in the past. And it's hard to even figure out who to ask and you can spend days making phone calls and emails just to figure out who it is that has the thing you need. And so just having it codified would be a huge step forward for that kind of stuff.

I think sort of on the other side, the stuff that's more controversial or the judicial branch doesn't want you to have, necessarily, I think it's worth noting, like in the PACER case where they were accused of doing this skimming, it was instructive to see how they talked and thought about themselves. And I think they do treat it pretty respectfully, actually. They definitely understood that they were ruling about their own behavior and how important it was to be impartial and that. So that gives me a little bit of hope. And I think that you can also use sort of the federated nature of the courts as well to create a panel of judges that is from a geographic...and so if you're requesting something from Texas, let's make sure that maybe the judge on that one is on that panel, if not the same person. There's a lot of leeway to do that sort of thing.

And then the last point I'll just sort of throw out there is that by codifying something like this, you create a clearer story when it's denied, right. When your request is denied, the press can talk about that clearly. And they can talk about is it outrageous that it was denied? Does it violate the law that it was denied? And that doesn't necessarily get you the thing you need, but it at least makes the public understand where things are.

ALINA M. SEMO:  Okay, Tom, you're good?

TOM SUSMAN:  I'm good.

ALINA M. SEMO:  Okay. All right. Tuan, you're up.

TUAN SAMAHON:  My question is...I have a comment and then a question, perhaps on the other side of what Tom was saying, pragmatically. Tom was asking the question, is this pragmatic in that would Congress ever agree to this? So mine is the sort of other side of things, assuming for the sake of argument that Congress were willing to adopt this, and let me say that I'm sympathetic with the need for greater transparency and accountability from Congress and the courts. And I certainly do think that FOIA's current scope does seem to be transparency for thee but not for me, but if Congress were to expand the definition of the agency, that it will revise to apply to congressional and judicial agencies, it strikes me that pragmatically we'd have bad effects on the other sides. And I think Michael, you kind of allude to this and the problems on your last slide. I think legislated enthusiasm for strengthening FOIA further and vigorous judicial enforcement would likely both suffer in the political economy of transparency. In other words, there might be a policy tradeoff between the horizontal breadth of FOIA's scope, applying to Congress and to the courts now, but then what would suffer would be the vertical depths of the transparency you could come to expect.

And so I guess my question is, have you looked at all two states that have attempted to do this with their little FOIAs such that they've applied them to the courts and the legislatures like Pennsylvania's Right to Know Law, for example, applies to the courts and to their legislature. I mean, how does it work there? I mean, is it nearly as vigorous and thorough going as the FOIA is?

MIKE LISSNER:  Daniel, I don't know if you have something, have thoughts on that. I haven't had any opportunity or I haven't ever found anything about how the vertical versus the horizontal suffers. I think I could offer some thoughts about it, but there's a lot of smart people in here so maybe others have thoughts as well.

DANIEL SCHUMAN:  Yeah. And so I've not looked at it at the state level, I've looked at sort of international competitors instead, which is of course different systems of government. But I don't have a good answer for you in terms of the request nature of FOIA. I find that, in legislative models, that bright lines and proactive disclosure largely works better than having some sort of an adjudicatory process. There's exceptions, but I find that that tends to be better than having a more complicated process. But I don't have enough data points to talk about the state in terms of what works well and what doesn't work well.

TUAN SAMAHON:  I think the idea of an affirmative disclosure, say a 552(a) kind of model, as you were mentioning, Daniel, that seems like a good idea even if it doesn't have enforcement teeth, at the very least a hortatory sort of..."this is what you ought to be disclosing" is what this law actually says and it would allow partisans in Congress to call out the opposition for failing to bring something forward and that creates political pressure that can help get these things released. It is the 552(b) stuff that I'm a little bit more skeptical about, excuse me, the responsive kind of, "Here's my request" model. I might say that one way that would be maybe better is that if this weren't tied to FOIA, if it were a separate statute, and such that Congress could continue to sort of be enthusiastic about FOIA, and the courts also. I do worry if it's the fates of Congress and the courts are tied up with FOIA, that what we'll see is FOIA suffer.

MIKE LISSNER:  Yeah, I think that's a good point. And that's something that some of the conversations I had is like don't use the word FOIA. Let's not call it FOIA, let's call it a Public Access Law, or something like that. And let's, let's not intermingle them because it's not FOIA, and probably trying to shoehorn one into the other will create these sorts of complications, I guess.

ALINA M. SEMO:  Okay. Tuan, thanks very much. Are you good? Okay. Kel, I believe you were next. And then I saw Jason and Allyson, in that order.

KEL MCCLANAHAN:  Hi. So I have a question, mostly for Daniel, but it'll be interesting to hear Mike's viewpoint of this as well, coming from a different perspective. Congress and the congressional agencies tend to have a lot of overlap and sort of intermingling to the degree that a lot of the executive branch really doesn't have. And so for instance, some members of Congress believe that any GAO product that's created in response to something they asked for is their legislative product, or that the Capitol Police might say that, "Well, we don't make decisions because the Capitol Police Board that's made up by the Sergeants at Arms and the Architect of the Capitol really control things." And so how would you suggest that we deal with this, if we're going to try and make for certain components subject to something, an open record type process?

How would we address this sort of intermingling when you'd have maybe one component that isn't subject to it and one component that is subject and they sort of work hand in hand and are fuzzy with no really clear lines between them, to get things that everybody, at least in the public, would view as important?

Like in 2019, good example, in 2019, there was a Capitol Police Inspector General's report that said the Capitol has security problems and if it were ever invaded, it would have problems and we're having trouble balancing the need for security with the need for sort of openness in security. This is a very tightly held thing. This is something that I'm sure everybody would be interested in reading now, in 2021, but even going after it now, who would you go to? Is it a product of Congress, is it a product of the Capitol Police, is it a product of the Capitol Police Board? How do you deal with this kind of intermingled nature of congressional entities?

DANIEL SCHUMAN:  So I think you're raising two questions with that. One question is sort of the nature of the thing and the second question, I think, is who holds it? Like who runs the second, like the provenances, we run to the classified space a lot, like whose document is it? So let me take some sort of a part. The first one is... The question I would ask is it individualized legislative advice that is intended and understood to be confidential? So I was an attorney with the Congressional Research Service and when a member office would call me and ask for advice on a particular matter, and I gave them that advice, that is confidential. You don't get it, right? That should never be made publicly available unless the member office makes that determination. I also wrote CRS reports that were available on a website that any of 10,000 staffers could access. That's ridiculous. That should be publicly available, right? It's not individualized confidential advice relating to a legislative matter.

GAO publishes all the reports. The reports that they don't publish, they list their classified reports on their website, and they helpfully tell you how to go FOIA it. So like that is the model. That is a great model. It works well. They know that transparency and accountability go hand in hand and that if you want to have government function properly, you need to have both. The Library of Congress doesn't really get that, right? So their FOIA implementation is iffy. And the Congressional Research Service, where I used to work, they hate this stuff because of their institutional perspective. And they fight it even when it's things like the plain language description of legislation that's available on congress.gov. So that's bizarro-land, like that's not acceptable.

The second question of, "Well, who gets to release the document, who owns it? The answer is whoever has it, owns it. We shouldn't be playing provenance games, right? If I write a Dear Colleague letter and I send it to you, Kel, because Kel, you're a member of Congress, you can release it. Now, there might be a political consequence for you releasing it, although no one's going to really know that you did it, but if you have it, it's yours. If I'm a government employee and I give a document to a journalist, the journalist has it and that's the end. I mean, that's the end of that story. That's the way that works. There may be consequences for the person who turns it over, but once it's out, it's out. And I think that trying to be like, "Well, this is a CRS report, and this is a committee document, or this is a blog, well..." In the legislative context, generally speaking, that's not a thing.

There may be political consequences for doing so. So if I am on the Judiciary Committee and the Judiciary Committee staff writes me a staff memo, and I publish it on my website where I leak it, that's a problem. But that's a political problem. That's not a sort of disclosure release problem. And people will adapt to the circumstances in terms of how they commute. Like where you draw that line will change the way their practices operate so they can make a determination of what they want to keep secret and what they can't. If it's okay, Kel, I want to pose just to go back to one final sort of point that Tom had raised.

So one of the weird things, and I mention this because it's very relevant to some of the folks participating in this group, are committee records. Committee records after 20 years in the Senate and 30 years in the House, go over to the Center for Legislative Archives, where you can then go and FOIA it. Prior to that point, the Center for Legislative Archives will give it to you, but only if you have the permission of the relevant committee. Committees aren't continuing entities in the House. It could be a Democratic committee or Republican committee that changes over time. All the members could be gone. It could be 15 years later and committees don't have a point of contact or a process that you can ask.

So by way of example, I was looking for a list of everybody who worked in the White House in 1999 or 2000, which is an annual report that's sent from the White House to Congress. I tried going to the Presidential Libraries, the Presidential Libraries have lost it. Fine. I tried going to the Congressional Committee that received it, it went to NARA. NARA was very helpful and thoughtful, but they said, as is not unreasonable, you need to get the permission of the relevant committee. And the committee had no idea what this process was. They'd never heard of it. And they didn't want to extend themselves to provide these documents maybe because this isn't something that they usually do. And so when we think about how to design this, we need to be thinking about the request systems as well, and not just the right. So the committee has the authorization to go and release this document, but they were afraid to do so because they hadn't done it before and it wasn't a point of contact and so on and so forth. So we need to think through not just, and see, Kel, this response to your points, not just like what the thing is and who owns it, but the request mechanism as well. So hopefully that's helpful to your question.

KEL MCCLANAHAN:  It is. And you bring up an interesting point with the Legislative Archives. You held up the GAO FOIA process, or the FOIA-ish process, the internal regulation as an example. But they do the same thing where there [they] release the reports, but if you say you want their file that went into [the] creation of this report, they say, "We won't give it to you without the permission of the person who requested the report 20 years ago." And you run into the same problem, and that's sort of the needle that I'm trying to figure out how to thread. I agree with you that it shouldn't matter, but GAO and Congress don't appear to agree with you. And so how do we address the concerns of, yeah, whoever. How do we convince Congress that Daniel Schuman is right, and whoever has physical custody of the report, whether it be the US Capitol Police, Inspector-General or GAO, can release it?

DANIEL SCHUMAN:  So I still think this works within the first framework I described, although you might disagree. GAO, when given documents in a responsive nature, right, like not through subpoena, but just sort of, "Here you go for your investigation, just count as directed." It is a private, confidential communication that relates to legislative activity. So GAO's conduct of the investigation when they're investigating whatever entity, that gives them the response documents. That's done, for a legislative purpose, done on a confidential basis and sort of in that space. So I would distinguish that. I think that that is different from a lot of the other stuff. So the number of arrests by the Capitol Police is not a legislative matter. It's not really confidential, right, either. Like it's just fundamentally different. The number of computers they bought is fundamentally different. Like those are just different from I'm holding a hearing into SolarWinds and I go and I request thousands of documents from all these other folks. Because Congress has an interest in making sure that people either give that stuff voluntarily or comply with the subpoenas. And they're less likely to fight if Congress controls that aspect of the release mechanism, because it's closely tied up with legislation or oversight.

So, I mean, this isn't helpful, I think to your... But I think the further away you get away from that purely legislative and oversight function that is intended to be confidential, that sort of goes underneath sort of that process, I think the more likely you're going to have a strong argument, that FOIA would make sense for it. And as you get more into it, I wrote a bill because a constituent emailed me, right. I'm having trouble getting my social security check and you called member's office. No, right? For me, at least, I think there's different valences to those types of functions. I'm sympathetic to where you come from, having filed FOIA requests, FOIA-like requests, on exactly that basis. But I'm not sure that FOIA would be the right process for that. There might be something else that we would need to think of that would work sort of better as you get more closely to sort of the legislative knot.

MIKE LISSNER:  Think you're muted, Alina.

ALINA M. SEMO:  I said, Daniel, thank you for that great answer. Kel, are you good?

KEL MCCLANAHAN:  I'm good. I mean, Daniel and I could carry on like this for two to three hours, so let's move onto somebody else.

ALINA M. SEMO:  Yeah. So I believe Jason is up next. Jason Gart.

JASON GART:  Jason. Jason Gart, for History Associates Incorporated. Daniel, Michael, thank you very much for the interesting conversation. I want to focus in on, again, on the historical records, I'm a historian. And Daniel, you mentioned that member records for members of Congress could be burned. I think it was the backyard barbecue, was the comment. Ultimately my understanding is the records created in a senator's or House office, that's their property, their records, which is the way it is. But that also means that a lot of the records go to universities and various places all over the country where scholars use them and have access to them because they're localized in a way that they're not localized when they're at the Center for Legislative Archives. So that's my first comment. Second comment, or second question, is House rule seven and Senate rule 474, which essentially sets when they are open. I think it's 30 and 20 years. The provision for...excuse me, we have some neighbors here….the provision for that is actually held over when the records go into the Center for Legislative Archives. So NARA has essentially acquiesced and said, "We're going to take these records. We understand that records are [inaudible] by members of Congress, and we're going to keep them separate for these 20 or 30 years." So I guess the question is, and this goes back to Tom's comment, is maybe the stepping stone NARA, and saying, "Hey, look, we're not going to accept these records if they're not actually subject to the provision of FOIA, like all other records that are housed in the National Archives."

So I open that up, but very interesting conversation. And apologies for the neighborhood kids.

DANIEL SCHUMAN:  Yeah. Not to worry with the neighbors. So, I hope you jump in if I missed parts of this... And of course, I'm sure you're more familiar than I am, although I've attended a number of meetings for the Advisory Committee on the Records of Congress, which is the entity that meets twice a year. For those who aren't familiar with it, it was largely historians...I actually was really interested in getting non-historians on it because we were interested to talk about it from a data perspective.

Let me take your second question, first. The second question is - NARA holding the record. So, NARA is not the only place that does that. GPO does that as well as the classified records. We'll go over to the Government Publishing Office. Congress literally doesn't have the physical space. And I don't mind, particularly when committees turn over, having a safe place for the committee records to go. I think that, that doesn't concern me. I don't like the 20 and 30 years. I think that that's unreasonable. I think it should be shorter. I think that the greater period of time, I think it's 50 years, although some of you guys are probably the only people on the planet who know better than I do whether it's 50 years for classified material, but it's a much longer period for classified matters than for unclassified matters. Without even looking at whether they're even properly classified, which is a whole other question that you guys could probably talk a lot better than I could.

But I don't mind having expert archivists holding onto congressional records. That's not offensive to me. I think that's fine. And I think I would actually rather have archivists and historians and records management folks in there. The day that a member opens up their office, the second they start, they should already be designing their systems so that it's preserved and retained and managed in a way that is useful, both for them and how they run their offices and then for keeping it afterward. So that is actually how, if I were running the world, which I get to obviate the need for Congress and that's this conversation, but if I were running this part of the world, I would probably do that that way.

It was both the point of the comment that you made had to do with the personal office records. Now, whether they're public or not is a decision. And that is a decision that the House and the Senate each in their own rules can change. I think this was true for committee records for a long time, that you could also burn them as well. And that hasn't been true for a while, but I don't remember the details of that, so I might not be right. And there has been concerns about co-mingling personal and committee records such that committee records end up in the personal office and thus ended up in the barbie, which is probably not what you want. There is value, I think, in how members... is it accession, is that the right word? How they provide their records to local universities. But they can also go through them and burn them or parts of them. They can withhold them on the  basis that have to do with embarrassment that has to do with other things that are not necessarily relevant.

A number of members just toss their stuff or things get lost in the process. I do think that there is value in having materials available around the country, but it also makes it hard to get access. But more and more congressional records are born digital records. So the federated nature of the way these things are sort of being created suggests that there may be value in having more of an overarching system for making sure that they're digitized, making sure they're properly cataloged, having similar cataloging standards, having a federated search engine. So, if I'm looking for a particular document, like the subcommittee prints that I've got behind me, I don't know who's got it, but someone probably has it and it's hard to find, and looking in the WorldCat is not going to necessarily get you there.

So thinking through on a going forward basis, what do you do with these born digital records? How do you make sure that everything flows together? What assistance do you provide to people as they accession into their local university or to something else? I think that would probably be something that makes sense. And I suspect that Mike probably has similar thoughts with respect to judicial papers, because it's going to be the exact same kind of problem in terms of what judges do with their stuff. I'm not aware of an advisory committee on the records of the judiciary, although there may be such a thing, but they do beg similar questions around chamber records as you do for individual members of Congress records.

MIKE LISSNER:  Yeah. I have not looked into what happens to those records. Long-term, maybe. I have not heard of them going to universities, so I'm guessing it's mostly just the barbie.

ALINA M. SEMO:  All right, well, thanks for that, Daniel and Mike. Jason, you're good?

JASON GART:  Yeah, I guess I would say that one of the challenges you mentioned was the creation of the records once members first enter Congress and their thoughts on where their record should go. And again, my understanding is that some members of Congress are thoughtful from the very beginning. I think probably most members of Congress would like their papers to go to some university or repository in their locale or where they live. I think one of the real world challenges they face is that they're given a very short amount of time to clear their offices. If the election is November 7th, they've lost, they may need to be out of those offices by early December. And perhaps letting the records be temporarily preserved at a federal record center may help. And that's, again, tangential information that I've heard over time.

But, again, I think the stepping stone to try to push Congress to do some type of FOIA process or procedure, one stepping stone, at least for me is, again, the role that NARA plays right now through the Center for Legislative Archives, which is a terrific repository, terrific archivists there, that said they're being housed in NARA. Everything else in NARA follows FOIA. There's an exception for these records. That to me is a stress point or a push point. So very interesting. Thank you for briefing us on this Daniel and Michael.

DANIEL SCHUMAN:  Yeah, absolutely. This final point. So it's not just... When members lose their election, they've got weeks. They have to be out of their office in like two weeks. They come in, they end up in cubicles for their last month in Congress that are set up in the cafeteria. And if a member dies, which happens not infrequently, then the court comes in and takes over, but what happens then? So there are real..and particularly when you look at the Senate, they're allowed to stay there and expire there. I don't know a delicate way to say it. They tend to die in office more frequently than one would expect.

Although they have a better archival support process, they may just not be ready. And the House members in particular, they're just not ready. It is never a priority for them to do the historian and archival stuff. It's not really supported in the way that they needed. And it's just not what they do. They may think about it afterwards, but this is where more support could help streamline that process, because it really is, as you mentioned it, your mileage will very much vary depending on the number.

ALINA M. SEMO:  Okay. All right. Thanks for that, Daniel. Jason, you're good?

JASON GART:  Yes. Thank you.

ALINA M. SEMO:  All right. So we've got about five minutes. We're running a little bit over, but I know we have a little wiggle room in our agenda. We've got about five minutes left. Allyson, I know, has a question, so I will not deprive you of that opportunity, so please take it away.

ALLYSON DEITRICK:  Thanks, Alina. Question is mostly for Daniel. Michael, feel free to chime in too. But if something like FOIA were to be instituted in Congress and in the judicial branch, what do you see that interplay between the different branches looking like? Currently most of the congressional communications to an executive branch are subject to FOIA, unless they're marked as congressional records and then exempt from FOIA, do you see some sort of reciprocity with certain executive branch records or the executive branch, maybe being able to assert some more deliberative process or other privileges that they would provide the information to the Hill, but the Hill would be under obligation not to release it to the public, maybe similar to what the GAO does. What are your thoughts on that? Thank you.

DANIEL SCHUMAN:  Yeah, that's a great question. So, the marking as a congressional record is not something that I would respect as being exempt from FOIA to begin with. So like that probably puts me at variance with what some of the former committee chairs would say. I think that it creates a push to limit FOIA. I think that, that if you do it in the same regime, it creates problems. This is why I tend to favor more straightforward, proactive disclosure requirements, as opposed to the balancing questions where it's categories of stuff. So one bill that I'm working on right now, and I've been working on this for a decade is a law that would require all mandated reports to Congress to be publicly available. And there's a carve out in it, which is that it puts it through the FOIA process. So that the agencies would basically redact it in accordance with FOIA, for what is released. So, I'm trying to have a separate law that is a clear application that applies to executive branch materials, but also is respectful of some of the decisions that we've made in terms of what's disclosed and what's released.

I don't have a problem with communications from Congress to the executive branch being FOIA in the executive branch. I think that that is a fine thing. In the reverse, I don't have a problem with either communication... It seems inequitable, but it doesn't seem unjust. I don't mind necessarily that mechanism. I think where it gets weirder, all stuff is weird, but where it gets weirder is I am in a senator's office and I've heard that this support agency isn't properly protecting records. And I write them a letter and I say, hey guys, you're outside the firewall. And you're going to get this stuff stolen by a foreign aide or foreign adversary. Is that deliberative? I don't think so. It's not classified because they can't really classify stuff except under the Atomic Energy Act. And that doesn't really apply. That's where things start to get weirder.

And I don't know how you deal with those cases. Like much of my career for what it's worth, has been, here's a simple, straightforward, obvious example of something that should be publicly available. CRS reports should be publicly available. All bill summaries, status information should be publicly available. That range of stuff and just picking off pieces of things that are either inherently obvious or that congressional offices need and they can't get access to, because FOIA, we should remember in transparency... and I know you guys know, it's not just about the public and it's not just about historians. It's about the person who's sitting next to you. So the person in your office, it's about the next office over.

We have huge problems where agencies send reports to Congress, for example, that goes to staffer A, and the person sitting next to them never sees it. And when staffer A leaves, it's gone. There's a recordkeeping problem that we're using public transparency as a mechanism to fix. The same thing with their terrible technology. They have all these dear colleagues that are awful. You can't go through all of them, but if they become publicly disclosed, someone can build a better system so you can find what you're looking for.

We're using, in many respects, transparency, not just for transparency sake as well for public accountability, but to improve the internal availability of information. And that's why I like proactive disclosure, that's why I like the DATA Act. That's why I like... Those things make information available, not just to the public stakeholders, but to a lot of the folks inside that need that information as well. Sorry, that was a long winded diatribe. I will stop. But hopefully that was responsive to your question.

ALLYSON DEITRICK:  No, that's helpful. Thank you.

MIKE LISSNER:  If I have time to add one little thing.

ALLYSON DEITRICK:  Yes, please.

MIKE LISSNER:  I think one other thing many of the comments so far have been giving me a lot of consideration of is that there's currently, with FOIA only applying to some areas, it's kind of like you have someone who's gabbing in your conversation. And so there's actually a motivation not to share things that would then make that thing subject to FOIA. And that creates friction, friction in communication, friction in getting things done. Instead of emailing something, you got to pick up the phone cause no one's going FOIA your phone call. And by actually bringing public access laws into the government broadly, it should create a better economy for sharing information amongst everybody, rather than worrying, "Oh, if I do this thing, then now it's going to be subject to FOIA. And maybe I don't want that." You can actually create better information by bringing everything out into the open by default, or more things that would be open by default, I should say.

ALINA M. SEMO:  Okay. All right. Well, thanks Daniel and Michael, this has been really, really fascinating. I think we're all very engaged, lots of information to take in and to think about. And we really appreciate all of your suggestions. I'm sure we'll continue to dialogue with you as the Subcommittee on legislation looks at these issues. And thank you again. We really appreciate it. You're welcome to jump off now. We're going to move on to the public comment section of our meetings. So again, we thank you for your participation and time.

DANIEL SCHUMAN:  Thank you so much for inviting...

MIKE LISSNER:  Thank you having us.

ALINA M. SEMO:  Thank you very much. Okay. So we have now reached the public comments part of our committee meeting. I know I went a little bit over, but I still had a little bit of wiggle room. Didn't want to cut off the great discussion we were having. So we're going to invite non-committee participants, who have ideas, or comments to share to do so at this time. We post on the FOIA Advisory Committee webpage any written comments we receive. Oral comments are captured in the transcript of the meeting, which we'll post as soon as it is available. We're going to open up our telephone line. Michelle, if you could please provide instruction again to our listeners for how to ask the question or make a comment via telephone, that would be great.

MICHELLE [OPERATOR]:  Absolutely. My pleasure. So ladies and gentlemen, if you would like to make a comment at this time, please press pound two on your telephone keypad to enter the question queue. Once again, pressing pound two will enter you into the verbal comment queue.

ALINA M. SEMO:  All right. I'm just going to ask Martha first. Do we have any questions or comments that we've received via chat in the course of the meeting?

MARTHA MURPHY:  Hi, can you hear me?

ALINA M. SEMO:        Yep.

MARTHA MURPHY:    Okie doke. So one person on the YouTube chat has a question for the Classification Subcommittee. When do you think the questionnaire is going to be finished and sent? I believe it's a questionnaire regarding Glomar.

KRISTIN ELLIS:  Yes. This is Kristin Ellis from the FBI. We do not currently have an anticipated date when that's going to go out. We are still at the very beginning stages of developing the questionnaire, determining what questions to include, what type of information we're trying to elicit and identifying the specific agencies that we'll be querying. So we may have an update on dates at the next meeting, but right now it's very preliminary.

MARTHA MURPHY:  Okie doke. Mr. Hammond has submitted some questions. Some were things that were in his previously submitted comments, which will be posted on our website and will go to the committee, of course. But he was wondering if you could provide a very short update on the status of recommendation number 19. This is the [prior Committee] recommendation that recommends that Congress engage in more regular and robust oversight of FOIA. And so I think our Congress congressional committee may be able to address this.

KEL MCCLANAHAN:  Sure, this has come quite an... Oh.

ALINA M. SEMO:  Go ahead...

KEL MCCLANAHAN:  That's actually one of the big reasons that our subcommittee exists. We have a separate working group on how to make OGIS function better, whether it be, giving them more power, giving them more resources, or for affecting how agencies interact with them, that is undertaking that. But we also have a separate subcommittee on dealing basically how oversight works and how we make recommendations for how the agency should improve their oversight, or, sorry, that Congress should improve its oversight. So, that is a big part of our initial mission plan. Now, unlike most of the other agencies, most of the other subcommittees, we do operate on a bit of a six-month schedule as opposed to a two-year plan. So this may change in June, but the things that we're not done working on, we're going to carry over probably into the next one. But this does mean that we anticipate to have some work done, some movement on actually making concrete legislative proposals for this stuff in the near future, whether it be in three months or six months or nine months.

MARTHA MURPHY:  Okay. Thank you.

ALINA M. SEMO:  Thanks.

MARTHA MURPHY:  From Alex Howard. He asked, are all of the FOIA officers on the committee hosting Sunshine Week events and inviting requesters to participate? If not, why not?

BOBBY TALEBIAN:  So this is Bobby. I think Alina, you teed this up earlier, and DOJ is hosting a public event. I believe there are other agencies that are doing, as well.

ALLYSON DEITRICK:  This is Allyson from Commerce. I know at least some of our Sunshine events on Tuesday, March 16th are open to the public.

ALINA M. SEMO:  Okay. We currently have one comment or question in the queue on the phone. So if the caller can go ahead, please, that would be great

MICHELLE [OPERATOR]:  Caller, you may go ahead. Your line has been unmuted.

BOB HAMMOND:  Yes. Hi, this is Bob Hammond. Are you able to hear me?

ALINA M. SEMO:  Yes.

BOB HAMMOND:  Okay. I had a couple of follow on questions for recommendation 19. Those were in the chat. And so maybe you guys could give me an email or something on those. The issue I wanted to spend a little bit of time, and it doesn't look like we have much, were for the Technology Committee. And I don't know if we have anybody online from EPA. Maybe we can make this more focus of a future meeting, but EPA has developed really an excellent FOIA portal, but in the implementation, there are some drawbacks that really hamper public disclosure. For example, if you were to look for my FOIA request... First, if you look by my name, you'll find it hardly any of them are on there, none from Navy in public domain. So nobody can search by FOIA requests and the requests themselves are not visible.

You talk about Sunshine Week. I think Sunshine is a great disinfectant. And if the FOIA requests are public and all of the records that go with that, the correspondence and everything, if all of that is publicly available, that would address a number of my issues. There's no reason for a FOIA request to be private. MuckRock allows them to be embargoed for a period of time. If you're a member of the media, you don't want to give up the scoop. But a FOIA request is a public action. There's no reason for it not to be public. In some cases, agencies are concerned about exposing privacy information. If it's my information, I choose to disclose it. But one of the things that they voiced concern about is I exposed the names and email addresses of persons who have submitted information to me. And anything that comes from me as a private requester is already in the public domain. So nobody should redact a FOIA request. There's no reason for them to be private.

I don't know if we have anybody from EPA, but I had like six recommendations. I think my email to you only showed five. Another drawback, FOIAonline has a capability for communications where the agency can communicate with the requester. They can put the documents in there that they're releasing. That's a good function, but at the outset, the agencies can block that from being used. So you can't submit your follow ups through there. You can't challenge some of their decisions and all those things to the communications portal. And there are a number of those that I think are pretty good recommendations to make the process really what you all intend it to be. Its public disclosure. And I know we don't have very much time now, but my question is there anybody on the line from EPA?

MATT SCHWARZ:  Yeah. This is Matt Schwarz from EPA. I can respond to this.

BOB HAMMOND:  Yeah. Hey, great, Matt. Thank you. I appreciate your coming, probably on short notice.

MATT SCHWARZ:  Hi, there. No, no, that's fine. So just to clear up, EPA did develop FOIAonline, but EPA no longer manages FOIAonline. That was passed off to an inner governmental group a few years ago. And they do take public comments. They take those if you email recommendations to the help desk. There's an email address on the FOIAonline landing page. They consider those, and there are regular updates done to FOIAonline, and those go to this intergovernmental committee. So EPA actually doesn't manage FOIAonline anymore, but I'd encourage you to send those to the help desk.

BOB HAMMOND:  Well, I've done that and I haven't gotten any response. And when I submitted a FOIA request to see who was on the committee, I don't have the information as [to] who's on the committee. That should be public. Is that something that you can provide to me? I'd like to be able to make recommendations and be able to engage with the committee to provide perspective if I can.

MATT SCHWARZ:  Right. If it's an active FOIA request that'll be responded to, but as far as information that goes to FOIAonline, I wouldn't have any. EPA doesn't have any hand in that at all anymore, unfortunately.

BOB HAMMOND:  Okay. I'm just trying to find out who was on the committee, like this committee and maybe members of this committee are part of that intergovernmental working group. Might be, because you have a technology committee, and if that's the right committee, then I know who to talk to.

PATRICIA WETH:  Hi, this is Patricia Weth with the National Labor Relations Board. And my agency is one of the FOIAonline partner agencies. We use FOIAonline as our case management system and to receive and send FOIA request information. So I'm on our FOIAonline committee with our partner agencies. If you want to send the recommendations to me, I'd be happy to forward them.

BOB HAMMOND:  Yeah, sure. And I don't know if there's an opportunity for public comment when you have your meetings and those kinds of things, but I greatly appreciate that. Patricia, is your email in the body of records for today?

MARTHA MURPHY:  Mr. Hammond, everything you sent us, we'll be happy to forward on to Patricia and otherwise, send it on to FOIA-advisory-committee and we'll forward it on to Patricia.

BOB HAMMOND:  Okay. Well, listen, I tell you that would be... I think that FOIAonline would be the goal standard with just a couple of tweaks to make it transparent and better for the users. It was a great application.

MARTHA MURPHY:  Thank you so much for your comment. Alina, we've got one more that came in through chat. Sean Moulten is asking the Process Subcommittee if they thought about looking into FOIA changes that have been put in place by agencies due to the pandemic and the effect on FOIA processing? Looking for best practices to minimize impacts, the impacts of the COVID outbreak and the need to telework.

MICHAEL MORISY:  It had not occurred to me. I think the lobby will have seen an impact. I think that's a question worth fielding in terms of what changes people have seen. I think there'll be some new practices put in place that might be helpful to think about going forward. If you have specific questions you think would be useful to flag in us, like in our requester survey, I'd be really interested in this. Thank you.

BOBBY TALEBIAN:  This is Bobby from DOJ, as well. I just wanted to add to that. We have done some consideration. I know that the tech committee has thought about that as well a little bit. Because technology is such a big connection to the issues and challenges that presented it to agencies in the pandemic. But also this month, we are holding a couple of best practices with agencies with the CFO tech committee and OGIS to get some of the best practices and get a better view of the challenges of the agencies over the past year. It's something that we've been looking closely at. We issued guidance pretty early on to agencies to help mitigate the challenges and also asked agencies to report on it in their CFO report. So we're doing a lot of information gathering, a lot of review of what agencies are doing. And we're going to be doing a lot of sharing of best practices and strategies that I hope to be able to also publish in a way where all agencies can benefit from that. So, definitely an area that we have a lot of activity on, too.

ALINA M. SEMO:  Great. Bobby, thank you. So I know we're at one o'clock, 1:01 PM. I know most of us have other commitments that we need to move on to. I just want to wrap everything up. Thank all the committee members for all the great work you're doing so far. We've already highlighted our Sunshine Week events for both the Department of Justice and NARA. So I hope the public will join us for all of those. I want to thank everyone for joining us today. Hope everyone and their families remain safe, healthy, and resilient.

We will see each other again, virtually at our next meeting. Thursday, June 10th from 10:00 AM to 1:00 PM Eastern Time. So are there any other questions from our committee members or any comments or concerns? I'm seeing some shaking of heads, no. Okay. It's been a great meeting. Thank you everyone for your attention. Really appreciate all the interaction, and we will talk soon. We stand adjourned. Thank you.

MICHELLE [OPERATOR]:  That concluded the conference. Thank you for using events services. You may now disconnect.