Office of Government Information Services (OGIS)

April 4 - Minutes (Certified)

The Freedom of Information Act (FOIA) Advisory Committee convened virtually at 10 a.m. ET on April 4, 2024.

In accordance with the provisions of the Federal Advisory Committee Act (FACA), 5 U.S.C. §§ 1001-1014, the meeting was open to the public from 10 a.m. to 1:03 p.m. and livestreamed on NARA’s YouTube Channel.

Meeting materials are available on the Committee’s website at https://www.archives.gov/ogis/foia-advisory-committee/2022-2024-term/meetings/foiaac-04-04-2024.

Committee members present at the virtual meeting:

Alina M. Semo, Director, Office of Government Information Services (OGIS), National Archives and Records Administration (NARA) (Committee Chairperson)
Jason R. Baron, University of Maryland
Paul Chalmers, Pension Benefit Guaranty Corporation
Carmen A. Collins, U.S. Department of Defense
David Cuillier, University of Florida
Allyson Deitrick, U.S. Department of Commerce
Gorka Garcia-Malene, U.S. Department of Health and Human Services
Michael Heise, U.S. Equal Employment Opportunity Commission
Alexander Howard, Digital Democracy Project
Stefanie Jewett, U.S. Department of Health and Human Services Office of Inspector General
Gbemende Johnson, University of Georgia
Adam Marshall, Reporters Committee for Freedom of the Press
Luke Nichter, Chapman University
Catrina Pavlik-Keenan, U.S. Department of Homeland Security
Thomas Susman, American Bar Association
Bobak Talebian, U.S. Department of Justice, Office of Information Policy
Eira Tansey, Memory Rising
Benjamin Tingo, OPEXUS (joined around noon)
Patricia Weth, U.S. Environmental Protection Agency

Others present or participating in the virtual meeting:

Kirsten Mitchell, Committee’s Designated Federal Officer, NARA
Jackson D., public commenter
Colin Aamot, public commenter
Webex Event Producers, Intellor

Welcome and Updates from the Chairperson

Chairperson Alina Semo welcomed attendees to the ninth meeting of the fifth term of the FOIA Advisory Committee.

Ms. Semo noted that the meeting operates under the Federal Advisory Committee Act (FACA), and is public in accordance with FACA requirements. She noted that the certified minutes from the March 5, 2024, meeting had been posted online and that the biographies of Committee members were also available online.

Ms. Semo noted that Mr. Baron had joined the meeting via telephone while traveling, and that Mr. Tingo and Mr. Talebian would join late.

Ms. Mitchell confirmed a quorum.

Ms. Semo encouraged Committee members to use the raise-hand icon when they wished to speak. She reminded attendees that the Webex chat was for housekeeping only, not for substantive comments, because chat comments would not be recorded in the transcript. Comments from members of the public would be limited to three minutes per individual.

Ms. Mitchell introduced herself as the Designated Federal Officer and noted that many votes were expected at the meeting. She reviewed voting procedures: any member may move for a vote, no second is needed but would be accepted. There are three types of passing votes: unanimous, general consensus with two-thirds of total votes cast, and general majority with a simple majority. Ms. Mitchell would keep track of the votes, and if any vote was unclear she would conduct a roll-call vote.

Ms. Semo made several substantive announcements: Ms. Harper had resigned from the committee because—having left her position at a non-government organization (NGO) for a federal government job—she was no longer eligible to sit in a designated Committee seat representing the interests of an NGO that advocates on FOIA matters. Because the term is so near the end, nominations will not be reopened; however, to remain compliant with the Committee’s charter, Archivist of the United States Dr. Colleen Shogan re-appointed Mr. Howard to occupy the NGO seat vacated by Ms. Harper. (Mr. Howard had originally been appointed to a non-designated, non-government seat, a seat which will remain vacant through the end of the term.)

Ms. Semo also noted that minor discrepancies have been noticed between the charter and bylaws, so revisions to the bylaws were underway to align them with the charter. Members would be asked to vote on the amended bylaws at a future meeting.

Ms. Semo noted that there were two additional meetings left in this term. A number of recommendations would be voted on at this meeting, with the remainder voted on in the next two meetings. She further noted that the Subcommittees had been working on their white papers, and a working group had been established to draft the Committee's final report. The order of the Subcommittee presentations in this meeting would be: Resources, Implementation, followed by Modernization. There would be a break at a logical point.

Resources Subcommittee Report

Paul Chalmers and Gbemende Johnson, co-chairs

Mr. Chalmers noted that there would be a number of votes.

Ms. Jewett presented draft recommendation R-1: “We recommend that the Department of Justice (DOJ) Office of Information Policy (OIP) issue guidance to all Chief FOIA Officers outlining minimum requirements for training to agency staff, including non-FOIA professionals, outlining the requirements of section (j)(2)(F) of the FOIA which states: ‘The Chief FOIA Officer shall offer training to agency staff regarding their responsibilities under this section.’” For example, DOJ OIP, in its discretion, could consider issuing guidance concerning the following:

1. Mandatory annual FOIA training for non-FOIA professionals in the federal government; and

2. Mandatory FOIA training for all new employees, including non-FOIA professionals within 60 days of onboarding.”

She noted that some language has been updated since the draft recommendation had been presented at the previous meeting. The updates address the concern that OIP does not have the authority to make training mandatory to staff across government. The revised language suggests two areas that OIP could consider in issuing guidance.

Mr. Heise commented that the revised language was written because of OIP’s authority limitation. The Subcommittee members believe this recommendation should be an easy lift for federal agencies because OIP provides good training modules already. Agencies could produce more customized training, or they could use OIP’s existing training modules. To train all federal employees that FOIA applies to all their day-to-day work would be beneficial because it makes processing more efficient. Having widespread institutional knowledge makes the process quicker since federal employees would know that their records are subject to FOIA and that they must participate in searches.

Dr. Cuillier noted that he did not believe this recommendation goes far enough. At least four states and several other countries mandate training, with studies showing that mandatory training improves compliance. He supports this recommendation, and suggested that future terms of the Committee may want to revisit it.

Mr. Howard seconded Mr. Cuillier’s statement and noted that Mr. Heise’s comment was thoughtful. He supported strengthening the training requirement in the future, even if it requires congressional action to make training mandatory.

Mr. Talebian clarified that DOJ OIP already encourages training. Future OIP guidance would focus on what the Chief FOIA Officers in their statutory role could do vis-à-vis the requirement to provide training to agency staff.

Action Item: Mr. Susman moved to vote on Draft Recommendation R-1. There were multiple seconds. A unanimous vote of 17-0 with Mr. Talebian abstaining and Mr. Tingo absent carried the motion.

Dr. Johnson presented draft recommendation R-2: “We recommend that the Office of Personnel Management (OPM) add the 0306 Government Information Specialist (GIS) Job Series to the direct hiring authority list.”

Mr. Chalmers noted that the Subcommittee had interviewed multiple agencies with positions in the 0306 category and they had difficulty filling those positions in part because of the time it took. Direct hire authority is widely believed to speed up the ability to fill those positions.

Action Item: Ms. Weth moved to vote on Draft Recommendation R-2. Dr. Johnson seconded the motion. A unanimous vote of 17-0 with Mr. Talebian abstaining and Mr. Tingo absent carried the motion.

Mr. Chalmers presented draft recommendation R-3: “We recommend that the Chief FOIA Officers (CFO) Council, through its Committee on Cross-Agency Collaboration and Innovation (COCACI), organize agencies to participate in a ‘talent pool’ posting through the Office of Personnel Management (OPM).”

He noted that talent pools use a single hiring notice to create a certified pool of candidates that multiple agencies can hire from. He added that the Subcommittee thought the CFO Council would be the best entity to organize agencies to participate and had spoken with the CFO Council to confirm support for this recommendation.

Action Item: Ms. Weth moved to vote on Draft Recommendation R-3. Mr. Marshall seconded the motion. A unanimous vote of 17-0 with Mr. Talebian abstaining and Mr. Tingo absent carried the motion.

Dr. Johnson presented draft recommendation R-4: “We recommend that the Chief FOIA Officers Council, through its Committee on Cross-Agency Collaboration and Innovation (COCACI), create and maintain a database of position descriptions for the Government Information Specialist (GIS) job series at various grades.”

She explained that the recommendation would help create more opportunities for career advancement by giving FOIA offices a tool to work with their human resources offices to grade positions at a higher level.

Action Item: Ms. Weth moved to vote on Draft Recommendation R-4. Mr. Heise seconded the motion. A unanimous vote of 17-0 with Mr. Talebian abstaining and Mr. Tingo absent carried the motion.

Mr. Chalmers presented draft recommendation R-5: “We recommend that the General Services Administration (GSA) should create a labor category on the GSA schedule specifically for FOIA contractors to facilitate efficient procurement if an agency determines it needs contractor support.”

He noted that currently there are various schedule listings which agencies use to procure FOIA contractors. Unifying this category under a single listing would be a more efficient way to procure FOIA contractors if federal staffing is insufficient to reduce the backlog.

Action Item: Ms. Weth moved to vote on Draft Recommendation R-4. Multiple members, including Ms. Jewett, seconded the motion. A unanimous vote of 17-0 with Mr. Talebian abstaining and Mr. Tingo absent carried the motion.

Mr. Chalmers noted one additional draft recommendation, which he did not expect a vote on at this meeting.

Ms. Weth presented draft recommendation R-6: “We recommend that the Chief FOIA Officers Council form a working group to analyze the interest in and need for 1) a shared FOIA case management system and 2) a centralized records repository for use by federal agencies and the public. The working group shall draft a white paper of its findings and present it to the Council within two years of its formation.”

She noted that the full Committee had not previously discussed this proposed recommendation, but the Resources Subcommittee had approved it. The goal of draft recommendation R-6 is to seek to improve the efficiency and effectiveness of FOIA processing by identifying gaps in agency resources and investigate areas where existing resources can be used more economically, and to consider potential solutions to ensure resources reach FOIA offices. The Subcommittee heard from federal agencies that they are frustrated by FOIA case management systems. Frustrations included significant systems inefficiencies. There are several types of FOIA case management systems: internally built systems, systems purchased from commercial vendors, and until recently, a shared federal FOIA case management system known as FOIAonline [operated out of the Environmental Protection Agency (EPA)]. FOIAonline was decommissioned in September 2023.

Ms. Weth explained the importance of FOIA case management systems. Agencies use them to receive, track, and manage FOIA requests. Certain systems allow communication with requesters, allowing all communication to be tracked. Certain systems also publish responsive records.

Another feature of these systems is to generate reports and metrics, such as custom reports, process improvement metrics, and the statutorily mandated FOIA Annual Reports. The publicly reported metrics are a true example of transparency and accountability, Ms. Weth said.

These systems allow requesters to submit FOIA requests and check the status of their request. Requesters are able to retrieve large record sets from certain case systems and are able to view previous responses to other FOIA requests. Good case management systems help agencies stay on track of their FOIA requests, generate reports, stay in touch with requesters, and track cases, Ms. Weth said.

She noted that OIP was seeking comments on proposed FOIA business standards for FOIA case management systems with the goal to increase efficiency and consistency in FOIA administration. She acknowledged that before FOIAonline was decommissioned, it had been a centralized records repository for 18 partner agencies containing 11 years of released records. It allowed requesters to search for previously released records, thus saving time. The Subcommittee is aware that public interest groups retrieved records before FOIAonline was decommissioned. Ms. Weth noted that POGO [Project on Government Oversight] and MuckRock partnered to host nearly 34,000 documents from FOIAonline and at least one other group also archived documents for future use.

She noted that the Subcommittee had discussed this draft recommendation at length, and decided the best approach was to leverage the Chief FOIA Officers (CFO) Council’s statutory responsibility for developing recommendations for increasing compliance and efficiency of FOIA, and increasing transparency. The Subcommittee determined that targeting the recommendation toward the CFO Council would be effective, because the Council would take action to create this working group. The working group would gauge the need for a shared FOIA case management system and centralized record repository. The working group could review the lessons from FOIAonline, and work with MITRE Corp., GSA, and the CFO Council Technology Committee to establish benchmarks.

Ms. Semo clarified that she is the sole Chair of the FOIA Advisory Committee, and she and Mr. Talebian are co-Chairs of the CFO Council.

Mr. Howard noted that a shared online portal has been a priority for civil society groups and that although many civil society groups have archived records, not all records were archived. He noted that this recommendation sought to restore many of the benefits of FOIAonline. He expressed concern about the decision to decommission FOIAonline instead of replacing or upgrading it, and that such a disruptive decision could be made in the future about a successor system. He supported this recommendation because the CFO Council working group would be positioned to make a strong case for creating a shared service. He noted that in other countries, a centralized system increases efficiency, improves outcomes, and saves money. Across the U.S. government, dozens of different FOIA platforms are not connected under a coherent federal policy, he said. This recommendation leads back in that direction but doesn’t go far enough, he said. It only recommends studying this issue as opposed to making a recommendation to replace FOIAonline.

Mr. Talebian noted that OIP has been working toward a centralized record repository, and the FOIA Wizard is expected to eventually meet that goal.

Mr. Susman asked why the recommendation didn’t go further.

Ms. Weth noted that the Resources Subcommittee originally drafted the recommendation to the director of Office of Management and Budget (OMB). However, one concern was that OMB would not move forward with it. In the past, when the Committee directed recommendations toward various agencies or Congress, there has been no action. However, when the Committee’s recommendations were addressed to the CFO Council, OGIS, or OIP, there was action. That was the logic in this phrasing.

Mr. Susman asked why OMB or GSA would follow a CFO Council recommendation, but not one from the Archivist of the United States, whom the Committee advises.

Ms. Weth noted that the Subcommittee had considered that, and identified the CFO Council as the best path forward because OMB’s Deputy Director is a member of the CFO Council.

Ms. Jewett added that the Subcommittee considered lots of options and determined that the CFO Council has the time and ability to build a large business case, which would help gain support.

Mr. Talebian noted that there had been progress since FOIAonline was discontinued. In May, there would be an industry day for agencies to see different technologies available to agencies. A shared service is helpful for some agencies but for other agencies, there's other technology that best fits their needs, he noted. The key is interoperability between all FOIA systems to provide a central experience. He noted that a business case really would help shed light on the need and how a potential service could help certain groups of agencies and how that works within the ecosystem of all of the other technologies.

Mr. Heise noted that he supported this recommendation, and that it would be a fascinating two-year endeavor to study the landscape and determine what needs exist. He noted that the working group should focus on an after-action review of FOIAonline and why it was abandoned. A lesson-learned review would help create a long-lasting shared case-management system.

Mr. Howard noted the past considerable efforts of OGIS to bring EPA to the table and talk to the Committee about the FOIAonline decommission. Future terms of the FOIA Advisory Committee should consider recommending that a replacement be established and funded through the Justice Department. That would signal a commitment to funding and sustaining for the long term and build trust with requesters.

Mr. Chalmers noted that toward the end of its lifetime, FOIAonline was having issues. It was decommissioned because offering a shared government system entailed a lot of burden to the EPA. He noted that a lot of members of the Subcommittee would have liked to make a more forceful recommendation, but the current recommendation recognizes the reality of how much work has to go into building a new system. Many agencies were inconvenienced by the FOIAonline decommissioning, so during the time that it will take for the study, those agencies will recover their willingness to rejoin a unified system, he said. He noted that government IT is a slow process, and this endeavor must be done right. He will vote for this recommendation but wishes it were stronger.

Dr. Cuillier noted that 10 recommendations passed by previous terms of the Committee have addressed needs that a multi-agency case-management system could solve, including one recommendation from the last term. Additionally, a recommendation about posting FOIA logs could be addressed by such a system. Structured data and machine readability could be incorporated in any technology stemming from this recommendation. He noted that this is his favorite recommendation of the term, and he wished it were stronger. There have been many recommendations to fix these problems that have not made headway. So there is a need for a really strong study and white paper. It may take a lengthy study that lays out the situation starkly to get action moving forward. The U.S. system for dealing with federal records is not at the level of many other countries.

Ms. Weth noted that studies have a tendency to linger, which is the reason the Subcommittee put a two-year timeframe within the language of the recommendation. It requires the working group to produce its paper under a deadline.

Action Item: Ms. Weth moved to vote on Draft Recommendation R-6. Ms. Deitrick seconded the motion. A unanimous vote of 17-0 with Mr. Talebian abstaining and Mr. Tingo absent carried the motion.

Dr. Johnson said that the Resources Subcommittee had no further recommendations.

Ms. Semo suggested the Implementation Subcommittee begin presenting before the break.

Implementation Subcommittee Report

David Cuillier and Michael Heise, co-chairs

Dr. Cuillier spoke about the Implementation Subcomittee’s draft recommendations I-1 and I-2, which recommend follow-up on certain past recommendations. He stated the Subcommittee would provide background on what's been accomplished so far and what needs more work.

Since the March meeting, the Subcommittee has ranked priorities of which past recommendations need further work by a future Committee and grouped recommendations into three main categories. The first category is about online platforms, and improvements to web tools; second is about first-party requests; the third is about technology to include AI and eDiscovery. Those seem to be past recommendations that the Subcommittee identified desire for additional progress. There would be further work before the May meeting.

Mr. Howard noted that there can be a disconnect between the recommendations made and how institutions implement them. He noted that the Committee has been one of the country's most meaningful commitments on open government. The biggest challenge is that parts of government aren't necessarily following the recommendations. He noted that this process gives people outside of government the trust that there really are great civil servants doing their best with limited resources and increasing demand.

Dr. Nichter commented that serving on the Implementation Subcommittee has taught him about the past work of this Committee and what it has and has not been able to achieve.

Mr. Susman seconded Dr. Nichter’s comment. He noted that in future Committees, there should be a standing Implementation Subcommittee. He noted that lack of attention to the recommendations is frustrating, citing the earlier discussion about making recommendations to the CFO Council because OMB won't take action on the Committee's recommendations. He gave the example that, in its first term, the Committee recommended that OMB issue revised fee guidance which it partially did, but not fully. That specific problem is mainly notable because fee guidance should be easy to complete, but OMB keeps ignoring it, he said.

Ms. Semo wondered if the Implementation Subcommittee should consider a recommendation suggesting a standing Implementation Subcommittee for future terms of the Committee.

Dr. Cuillier liked the idea. He noted that if a standing subcommittee is not feasible, at least a synopsis to pass along. It is hard for new members to read through 51 recommendations, plus whatever is approved this term, and all of the reports with the background information. He suggested in the final report possibly having an appendix that lists and summarizes them with a status update as of the end of this term. He noted that some recommendations are repeats of previous recommendations. The repetition tells the Committee that there is still work to be done.

Ms. Semo noted that Dr. Cuillier would circulate a white paper before the May 9, 2024, meeting, which would be posted online before the meeting. She motioned for a break. Hearing no objections, she called for a 15-minute break.

Modernization Subcommittee Report

Jason R. Baron and Gorka Garcia-Malene, co-chairs

Ms. Semo welcomed attendees back. Ms. Semo turned the floor to the Modernization Subcommittee, noting that the co-chairs, Jason R. Baron and Gorka Garcia-Malene were both attending via telephone.

Mr. Garcia-Malene noted that two of Modernization's recommendations have been approved already: one last year about Exemption 5 designations (2023-01) and the other at the March 2024 meeting on a model determination letter (2024-01). He stated that both improved and modernized FOIA and were wins for transparency. He noted that at the March meeting, the Modernization Subcommittee introduced five other recommendations, with the full Committee discussing each one. The Subcommittee would bring those five to a vote at this meeting. He pointed Committee members and attendees to the Modernization Subcommittee's final report, posted on the FOIA Advisory Committee webpage. The report provides added context to the thinking behind each recommendation.

Mr. Garcia-Malene presented recommendation M-1: “We recommend that the Office of Information Policy (OIP) issue guidance to Federal agencies stating that agencies should proactively offer requesters the opportunity to discuss their request with an agency representative."

He noted that OIP has done a good job encouraging agencies to do so and this recommendation seeks to improve the current state. In the face of growing backlogs, delays are increasing. The suggestion is for agencies to explicitly communicate that a FOIA staff member is available to discuss the request to reduce scope, or clarify search terms. The communication should not prove overly burdensome. Agencies can try out and recalibrate depending on how requesters respond, he said. He noted that the goal is for this form of outreach to narrow requests, increase public engagement, improve the relationship with requesters, and maximize agency transparency without significantly increasing burden to agencies.

Dr. Nichter noted that he supported this recommendation for an additional reason. Occasionally, agencies respond from a “no-reply” email address or have voicemail boxes that are full. This draft recommendation clarifies the need for good contact information. It seems like such an easy thing to achieve, but it does not always happen, he said. He noted that in his experience as a requester, sometimes there's something missing in the communication from the agency.

Mr. Susman noted that when he made lots of requests, the National Institutes of Health didn’t answer emails or phone calls. The Federal Bureau of Investigation, on the other hand, was in excellent contact, he said, letting requesters know what was happening, and the Committee should help encourage that gold standard.

Mr. Heise noted he would be interested in how agencies internalize this recommendation. Perhaps the proactive offer comes in the acknowledgement letter, and in addition to the FOIA Public Liaison the proactive offer could be for a conversation with the person processing the request. Mr. Heise’s small agency [Equal Employment Opportunity Commission] already does that. Discussion can happen via email or on the phone; the human element to FOIA is important, and will continue to be despite AI [artificial intelligence] improvements, he said.

Mr. Howard noted that modernizing FOIA isn't just about technology. It is also about how people look at the statute, and how the Committee can improve dialogue between the requester community and agencies. Human conversation can improve the FOIA process, can speed up requests, can improve the quality of requests and can save the government money. Requesters who file appeals and lawsuits often do so because agencies are non-communicative. Reducing litigation means taxpayer dollars can be spent elsewhere rather than in defending an agency. He noted that OGIS has that responsibility, but is underfunded to do that at scale across the government.

Ms. Semo noted that Mr. Tingo had joined.

Dr. Cuillier agreed with Mr. Howard’s comments and urged OIP to study helping requesters file better requests up front, requiring less conversation down the line. He noted a disconnect between the requester and agency in terms of what exists and what requesters want, and that it would be helpful to begin communication on a positive note. Bad communication frustrates requesters and leads to litigation, so this could save a lot of money. This recommendation would help people identify from the beginning what they want. The FOIA Wizard that OIP is working on could also help requesters hone their request. He noted that there could be additional pilot projects to help people perfect requests before filing, and that there is great promise in this recommendation.

Mr. Talebian noted that this recommendation touched upon things that OIP is already doing: encouraging agencies to work with requesters by contacting requesters to discuss the scope of the request. Guidance to FOIA Public Liaisons addresses proactively working with requesters even before they make the request. But the difference with this recommendation is offering additional guidance that specifically lays out a more detailed step-by-step approach on how agencies could implement this goal.

Mr Tingo noted that this type of guidance is not just a matter of better customer experience but also a matter of equitable access to the records that FOIA guarantees access to, because we have a very broad and diverse nation of people who are more tech savvy, less tech savvy, more familiar with regulation, less familiar; and having this type of proactive engagement can only help to ensure everybody has a fair chance and equitable chance in order to take advantage of the guarantee

Dr.. Nichter noted that as a requester, too often it's easy to focus on bad actors. There are many agencies already communicating well with requesters, and he gave them credit for doing so.

Action Item: Mr. Susman and Ms. Weth simultaneously moved to vote on Draft Recommendation M-1. Several members seconded the motion. The motion carried by a unanimous vote of 18-0 with Mr. Talebian abstaining.

Mr. Garcia-Malene presented draft recommendation M-2: “We recommend that the Office of Information Policy (OIP) issue guidance to federal agencies encouraging the option of providing requesters with an interim response, consisting of a small sample of document found as a result of searches conducted and subsequently reviewed for partial or full withholding.”

He noted that this draft recommendation had been revised since the previous meeting to address earlier comments, and what animates this recommendation is the growing volume of records responsive to larger requests, which poses a massive challenge to agencies.

He explained that this recommendation seeks to give requesters an understanding of the types of records being uncovered by their search, and, in the subcommittee report, proposes a workflow agencies may borrow should this recommendation be adopted. He noted that OIP already encourages sampling to requesters, so this is not starting from scratch. The value of this recommendation is to suggest a more proactive stance by agencies as well as a protocol for the sample of records. The agency could provide a sample of documents with appropriate redactions, and then engage with the requester to determine whether the records satisfy the request or whether to narrow the scope. Reducing the scope of broad requests benefits everyone, he said.

In the report, the Subcommittee discusses how samples could be accompanied by language asking the requester to confirm whether, in light of the sample record, they remain interested in pursuing the request. Also, the Subcommittee report clarifies this is not intended to provide requesters with an iterative process where FOIA staff is used by the requester to conduct rolling, meandering research into records to suit a requester's evolving questions. Rather, this recommendation seeks to provide a sample to requesters, which itself may satisfy their need. This is an effort to ensure finite resources are used to maximize outreach and efficiency.

Mr. Heise added a logical extension to Mr. Garcia-Malene's presentation: requesters don't necessarily know what they don't know nor what they are looking for. Sampling connects the human component of talking to the requester and leveraging the technology. The conversation helps set expectations. A request involving voluminous records is going to take a long time to process—more than 20 or 30 working days, he noted. This recommendation allows agencies to work with requesters to try to clarify what the requester is looking for. A sample can help requesters ‘know it when they see it,’ and clarify or end their search.

Ms. Semo noted in the interest of time that there are three recommendations left to discuss.

Dr. Cuillier supported this recommendation and noted that it is a best practice for requesters not to request massive amounts of records but rather start with a smaller scope. They can see what the agency provides and if it is heavily redacted, the requester can fight over that. But the requester wouldn't have to wait many years to get an entire batch of redacted documents. He noted that the term for that is “ratcheting.” He supported the idea of agencies incorporating this in the process, and suggested that this be piloted systematically.

Dr. Nichter liked this recommendation. He noted that from the requester's perspective, the request is asymmetric; requesters don’t know what agencies have, and sometimes even the agency is unsure of what it has. Sometimes a requester doesn’t want everything, only something to use in a research project. Sometimes requesters wait the entire time it takes to fully process a request only to find it is not really what they were looking for. He noted that hitting a check point earlier allows the requester to review the sample. If it’s not looking promising, the requester can agree to administratively close the request. This could ultimately save labor for a lot of agencies. This process change might not be applicable very often but when it is, it would be to great benefit to both agencies and requesters.

Ms. Jewett noted that she would vote for this, but that the Resources Subcommittee found in its interviews that resources are limited at agencies. She noted that all agencies are struggling with having enough resources to be able to do these really great things. She encouraged future terms of this Committee to continue to look at resources. Even though the Committee wants to do all of these great things, it does take agency staff to do so. Most agencies have very limited and small staff so it is difficult to try to do these things. These additional process improvements do not account for the resource challenges in completing the current requirements: 20 days, appeal, the litigation time, it is difficult for the agencies to do this with the resources currently.

Mr. Howard noted the State Department had a backlog of passport applications and they increased resources and surged capacity to meet that demand. The federal government got over 1 million FOIA requests for the first time last year, so Congress should appropriate money in budgets, Mr. Howard said. He stated that the resources issue is one that the committee continues to highlight and the disconnect between the recommendations and what's actually happening is partly an outcome of resources.

Ms. Deitrick responded to Ms. Jewett's resources comment. The Subcommittee took it seriously and had a lot of discussions in formulating this and the other recommendations. They discussed the balance and trade-offs in suggesting specific types of outreach to come up with what is the best way to use resources. This recommendation came from those balancing discussions.

Ms. Pavlik-Keenan emphasized Ms. Jewett’s point. She noted that Mr. Howard’s suggestion about doing surges takes money. Implementing AI and technology takes even more money, because that's more expensive than hiring people. When an agency tries to do all of these things, the funds come out of the same pot of money. She noted that her agency’s budget was cut this year. All of these recommendations are great, and her agency will try to do whatever they can to implement recommendations, but without additional funding, they are limited in what they can do. The improvements will have to be funded. Improvements such as adding more contractors and getting new technology cost a lot of money. She encouraged future terms to remember that when they make recommendations.

Ms. Semo noted that this recommendation has engendered discussion.

Action Item: Mr. Marshall moved to vote on Draft Recommendation M-2. Mr. Howard seconded the motion. The motion carried by a unanimous vote of 18-0 with Mr. Talebian abstaining.

Mr. Garcia-Malene assured federal members that the Subcommittee had taken those concerns into consideration. A lot of the recommendations have to do with what an agency can accommodate. If the agency can provide a sample from a production of 1 million pages, it does count against the 20 days, but it may save significant time down the road.

Mr. Garcia-Malene presented draft recommendation M-3: “We recommend federal agencies expand public engagement activities focused on improving all aspects of their FOIA process."

He noted that the Subcommittee sought to expand engagement with the FOIA and civil society at large. All agencies are already doing this work, and the Subcommittee is mindful that OIP's 2023 Chief FOIA Officer Summary Report already references examples. He noted examples such as the Department of Commerce that proactively offers information that is frequently requested. The Centers for Medicare and Medicaid Services held a web conference with requester groups to introduce and demonstrate a new request portal. Such a conference likely took time but it also likely streamlined operations, he said. The Subcommittee hopes this recommendation prompts agencies to ask requesters if they are satisfied with both the process and the agency's response to their request. Including this in the final letter wouldn't necessarily take any additional time. Including it as part of the template would help collect user feedback.

The subcommittee report includes several ideas for how agencies can reach out to civil society. For example, agencies could develop frequently asked questions pages, which requires work at the front end but will save some time on the back end. Agencies can find better ways to inform requesters on the FOIA process to avoid headaches later on. Agencies can periodically reach out to the requester community via civil society organizations to get feedback on the process and engage with requesters. Some trust in government has been eroded, so any opportunity to build trust is beneficial; especially when working with requesters to narrow requests, he said. When collaborating to narrow a request, the requesters must trust that FOIA personnel really are acting on their behalf.

Mr. Chalmers asked if any thought was given to recommending specific actions as opposed to putting them in the white paper? He noted that dicta, a remark in a legal opinion made in passing, gets lost.

Mr. Garcia-Malene responded that the subcommittee considered that. The members chose to keep the recommendation open ended to avoid narrowing what agencies would consider doing. One size does not fit all, and agencies have different resource levels, and must react to changing environments. They didn’t want to be too specific in how agencies should implement the recommendation.

Action Item: Ms. Weth moved to vote on Draft Recommendation M-3. Ms. Deitrick seconded the motion. The motion carried by a unanimous vote of 18-0 with Mr. Talebian abstaining.

Mr. Howard presented draft recommendation M-4: “We recommend that the Archivist propose to the Office of Management and Budget (OMB), the Office of Information Policy (OIP), and other agency participants taking a lead role in future U.S. National Action Plans for Open Government that they include new and continuing commitments to improving FOIA administration.”

He noted that the FOIA Advisory Committee is one of the most substantive and meaningful outcomes from the U.S. National Action Plan for Open Government 2.0. Agencies should engage with many stakeholders and build upon the success of past commitments to bring more attention, higher priority, and perhaps more funding to FOIA. He noted that future actions could include big thinking about reimagining OGIS and toward the use of different technologies to improve FOIA, specifically through proactive disclosure. This recommendation seeks to position FOIA as one of the pillars of the next plan, as opposed to seeming like an after-thought in the National Action Plan for Open Government, he said. This would create a much more cohesive information policy as a country. This recommendation touches upon all of the goals that the FOIA Advisory Committee was chartered for, he said. It seeks to make clear that improving the FOIA is a priority of the United States government. More effective feedback between requesters and the government would highlight the democratic process and help people regain some trust in government.

Ms. Semo confirmed with members that there was flexibility on the 1 p.m. end time.

Action Item: Ms. Weth moved to vote on Draft Recommendation M-4. Ms. Deitrick seconded the motion. The motion carried by a unanimous vote of 18-0 with Mr. Talebian abstaining.

Mr. Garcia-Malene presented proposed recommendation M-5: “We recommend that the Chief FOIA Officers Council Technology Committee and interested agencies publish a request for information (RFI) on the subject of artificial intelligence (AI) tools and techniques as an aid to FOIA processing.”

He noted that he was a founding member of the Chief FOIA Officers Council's Technology Committee and continued to be excited about the work that body continually generates to advance technology in FOIA. The CFO's Technology Committee has already begun to approach the issue of AI in FOIA, and is already participating in various fora to share what has been learned about the application of AI in the context of FOIA. He noted that Eric Stein, the State Department's acting Principal Deputy Assistant Secretary, recently spoke before this Committee to present the cutting-edge work that the Department of State is doing with machine learning in the context of declassification, and how that work might eventually translate to FOIA. This recommendation seeks to encourage conversation between government and industry about AI. Mr. Garcia-Malene said RFIs are a pathway for gathering information for future procurement efforts, and in this case, the RFI would focus on how AI could help process FOIA more effectively.

Ms. Mitchell, noting the time, confirmed that there would be a full public comment period.

Action Item: Mr. Garcia-Malene moved to vote on Draft Recommendation M-5. Mr. Howard seconded the motion. The motion carried by a unanimous vote of 17-0 with Mr. Talebian abstaining and Dr. Johnson absent.

Public Comments

Ms. Semo noted that much work has been accomplished, and opened the public comment period. She noted that oral comments are captured in the transcript and in the recording, with public comments limited to three minutes per individual. She turned to Ms. Mitchell to read out aloud any comments that were incorrectly entered into the Webex chat.

Ms. Mitchell noted a few comments in the chat about recommendation R-6, the recommendation that related to a shared management system and a centralized repository. She reminded attendees that the chat is for procedural matters and that the Committee welcomes written comments at any time at archives.gov/ogis/public-comments.

She noted that the portal allows users to select whether they wish to direct their comments to the FOIA Advisory Committee or Chief FOIA Officers Council. All comments are reviewed and if they meet the public comment policy they are posted. She also noted that attendees who wish to can turn on closed captioning on both YouTube and in the Webex platform.

The event producer noted that each individual would have three minutes.

Colin Aamot identified himself as being with the Daily Signal. He expressed concern with proactive disclosures through FOIA requests. He reviewed and audited which agencies were actually tracking proactive disclosures, and concluded that most agencies are not tracking that. They have no fundamental tracking mechanism to track frequently requested documents—those that have been requested three times or more—nor that have become, or likely to become, the subject of subsequent requests. He noted that, while it’s beneficial to recommend new ways to improve FOIA, there is work needed to simply enforce the actual statute. Agencies do not generally have systematic ways of tracking how often each record is requested for proactive disclosure in the reading room. Many agencies minimally update reading rooms.

Jackson D. noted that some agencies run out the records retention timeline to avoid responding to requests, so there should be a formal enforcement mechanism to make sure records are indeed proactively disclosed. He noted that civilian employees should get individual legal representation from DOJ whenever a court orders a production of records, because agency counsel may have obtained separate DOJ representation. He referenced a case where the agency admitted the FOIA officer’s sworn declaration was false and the officer admitted to altering records during litigation. He noted that civilian employees must protect their own interests.

The producer confirmed that there were no further hands raised in the queue.

Ms. Semo reminded everyone that the next meeting would occur on May 9, 2024, virtually, and that the last meeting would be virtual on June 13. She thanked attendees and noted the hard work of all of the subcommittees. She noted that additional material would be circulated between meetings.

Ms. Semo adjourned the meeting at 1:03 P.M. Eastern.

I certify that, to the best of my knowledge, the foregoing minutes are accurate and complete on May 13, 2024.

/s/ Kirsten B. Mitchell
Kirsten B. Mitchell
Designated Federal Officer,
2022-2024 Term

/s/ Alina M. Semo
Alina M. Semo
Chairperson,
2022-2024 Term

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