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June 13 - Minutes (Certified)

The Freedom of Information Act (FOIA) Advisory Committee convened virtually at 10 a.m. ET on June 13, 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 10:59 a.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-06-13-2024.

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
  • Patricia Weth, U.S. Environmental Protection Agency

Committee members absent from the virtual meeting:

  • Benjamin Tingo, OPEXUS 

Others present or participating in the virtual meeting:

  • William J. Bosanko, Deputy Archivist of the United States, NARA
  • Kirsten Mitchell, Committee’s Designated Federal Officer, NARA
  • Dan Levenson, Alternate Designated Federal Officer, NARA
  • Jackson D., public commenter
  • Webex Event Producers, Intellor

Welcome from Deputy Archivist of the United States

Deputy Archivist William J. Bosanko welcomed attendees to the eleventh and final meeting of the current term of the Freedom of Information Act (FOIA) Advisory Committee. He noted that federal agencies create and maintain records while fulfilling their missions, and the most historically significant records are eventually transferred to the National Archives. Before such a transfer, FOIA is the mechanism for public access to those records. 

Mr. Bosanko noted that FOIA is important to a well-functioning and vibrant democracy, and the FOIA Advisory Committee provides an important public space for collaboration between FOIA requesters and government FOIA personnel. He noted that since the National Archives established the Committee 10 years ago, it has made a total of 67 recommendations, including 16 in this current term. He noted that the work of members helps bring together differing viewpoints that lead to meaningful recommendations for change. He thanked Committee members for their service to NARA and our democracy.

Welcome and Updates from the Chairperson

Ms. Semo welcomed participants and attendees to the eleventh and final meeting of the fifth term of the FOIA Advisory Committee. She noted housekeeping items: the meeting operates under the Federal Advisory Committee Act (FACA), and is public in accordance with FACA requirements; the certified minutes from the April 4, 2024 meeting had been posted online; and the transcript from that meeting along with the minutes and transcript from the May 9, 2024 meeting would be posted as soon as they were ready.

Ms. Semo noted Mr. Tingo's absence. 

Ms. Mitchell confirmed a quorum.

Ms. Semo reminded participants to use the raise-hand feature and that no substantive comments should be made in the Webex chat because they would not be recorded in the official record. Committee members should identify themselves each time they speak. Members of the public may submit written comments via the online portal, and they will be posted if they meet the public comment posting guidelines. She noted that the public comment period would not be at the end of the meeting, but after the Committee finished its comments on the final draft report, and before the final vote on the passage of the report.  She noted that no break was planned, and the meeting likely would finish by noon if not earlier.

Ms. Semo noted that all Committee members had a chance to review the draft final report, which was also posted on the website. She had circulated a few additional substantive comments that the Committee had received. Before reviewing the changes, she recognized and thanked the important work of the final report working group composed of Mr. Baron, Mr. Chalmers, Dr. Cuillier and Ms. Weth. She noted that Mr. Baron had written the lion's share of the report and expressed her gratitude.

Ms. Semo noted that two current committee members and one former committee member provided substantive comments to the report. There were several non-substantive comments, such as grammatical suggestions and extra commas, which would not be reviewed at this meeting.

Ms. Mitchell shared the visual of the document that reflected the changes, and Ms. Semo described the changes. 

Ms. Semo reviewed the changes, noting that substantive changes were in green highlight and that this was the first time some changes were shared with the public. The first change added "and Federal agencies" under recommendation 2024-12. The next substantive change added "requests" after the word "records." There was the addition of language stating: "current incoming workload along with trying to reduce their current backlogs."  And a word was added in the subsequent paragraph: "experience." 

Ms. Semo noted a footnote addition from a former Committee member.

Ms. Mitchell read it aloud: "Shortly before the committee's last meeting of the 2022-2024 term, OIP reported in the annual summary of agency report that the government-wide request backlog was 200,843 at the end of fiscal year 2023.  See OIP blog post, summary of fiscal year 2023 annual FOIA reports published June 7th, 2024. " 

Ms. Semo thanked Mr. Talebian for publishing the summary just in time for the report to be finalized.

Ms. Semo noted that the next change was on page 10. It was a little bit of wordsmithing, with the final version reading "determination letters are issued in response to more than 1 million requests across the government each year. " The next sentence added the language "a determination letter has both substantive and procedural consequences under FOIA." On Page 11, there were a couple of word additions and strikes: adding "mission" in the last full paragraph that starts with "first the Federal Government" and adding "guidance" to replace "a resource."  The sentence now reads: "The determination will help ensure all agencies regardless of their mission, experience or resources have guidance they can consult for current best practices."

Ms. Semo continued to page 21. The second paragraph in 2024-05 now reads: "many agencies have fully funded full-time employees, FTEs, but are unable to fill even those positions." She continued to Page 30. 

Ms. Semo noted an addition from a Committee member: "The second U.S. Government National Action Plan, released in December 2013, called for improving customer experience through a consolidated online FOIA service." A footnote linking to the action plan was added. Ms. Semo  also noted that the second National Action Plan called for the creation of the FOIA Advisory Committee. 

Mr. Howard noted that the National Action Plan didn't 'call for' but rather "committed" the National Archives to doing so. The Archivist of the United States has continued the committeement by rechartering this committee.

Ms. Mitchell made the change.

Ms. Semo noted the conclusion of the comments the Committee had received. The working group had asked her to note that in pulling together the excellent report, it relied on the great work of the three subcommittees: Resources, Modernization, and Implementation.

Ms. Semo recognized the work of the Subcommittee chairs. Implementation: Dr. Cuillier and Mr. Heise (and before Mr. Heise, Ms. Pavlik-Keenan); Resources: Mr. Chalmers, and Dr. Johnson; and Modernization: Mr. Garcia-Malene, and Mr. Baron.

Public Comments

Ms. Semo opened the oral public comment period before taking the vote. She noted that if commenters needed help about a specific case, they should email OGIS for assistance. Oral comments are captured in the transcript, which will be posted as soon as it is available, and in the YouTube recording.

Mr. Levenson read aloud substantive comments that had ended up in Webex chat. One comment opined that the Webex chat should be considered an official record and noted that the Webex comments would be read aloud. Another comment stated that the 2022-2024 term was the best ever and everyone should return.

The event producer reiterated that commenters would have three minutes for comments, and noted that there was one person in queue.

Jackson D. noted that the [NARA] Youtube chat was turned off. The Archivist and OGIS Director did not respond to a request that considered Youtube comments as reasonable accommodation. The commenter noted that at the May 9, 2024 FOIA Advisory Committee meeting, OGIS stated that having NARA YouTube chat turned off is permissible. The commenter noted that public meetings are governed by statutes mandating public participation. The commenter asked if there had ever been an OGIS Director so hostile to members of the public. The commenter asserted that agencies engage in litigation hoping litigants run out of money, and asked what if an agency misrepresented their actions to the court. The commenter concluded by noting the Committee was doing an awesome job.

Mr. Howard noted that he had never found the first OGIS Director Miriam Nisbet nor Ms. Semo to be hostile to the public in any way, just the opposite. He noted that the Committee should consider opportunities for the public to participate on all platforms where the Committee's work is shared. He noted his hope that in future terms public comment is not limited to three minutes, and that there's the opportunity for robust back and forth between the requester community, officials, and members of the Committee. He noted that YouTube chat was turned off because of inappropriate comments at  the first meeting, but he would like to see the comments come back despite the disorderly nature of online commenting, as challenging as it can be, because it reflects public discourse.

Mr. Levenson read another Webex chat comment out loud asking that Webex chat comments be read verbatim.

Action Item: Ms. Weth moved to vote on the final report. Mr. Garcia-Malene seconded. The vote was unanimous 18-0 in favor of the final report with no abstentions and Mr. Tingo absent. 

Ms. Semo thanked all committee members for two years of collaborative efforts and noted that the Committee crafted 16 recommendations that were a testament to the members' contributions, expertise and commitment to the shared goal of improving the FOIA process. She noted the diverse perspectives and insights that each member brought and that she was truly grateful for the opportunity to chair such a talented and dedicated team.  

Ms. Semo thanked the subcommittee co-chairs, the Designated Federal Officer (DFO) and alternate DFOs, as well as OGIS staff, and NARA staff and the contractors for their assistance behind the scenes.

Mr. Baron thanked Mr. Talebian for the Department of Justice's role and noted that Mr. Talebian has been gracious with his time. He thanked Ms. Semo—noting that she is a consummate public servant—and everyone at OGIS.

Mr. Howard noted that there was a case study produced by OGIS on the work of this Committee available online. It shows that there have been dozens of people inside and outside of government who have collaborated to produce many substantive recommendations. The work of the Committee has improved the relationship between various parts of the FOIA community. In that way, he noted, the process is the product. He noted that the Committee came from the second National Action Plan for Open Government. The government's focus on transparency and accountability has shifted over time, but the National Archives' focus has not. He thanked past and present leaders of the National Archives for maintaining the Committee, which he noted, is an example of how open government endured as a principle, a practice, as a product, as a process, and a platform for people to sit with each other, to offer ideas. He thanked the Committee's DFO for all of her hard work behind the scenes.

Ms. Mitchell thanked Mr. Howard and shared the the document he mentioned https://www.archives.gov/files/open/lessons-learned-foia-advisory-committee.pdf

Before ending the meeting, Ms. Semo turned the floor to Mr. Howard to mention a few issues.

Mr. Howard stated that there were two topics he wanted to discuss. The first is biometric authentication, where a requester must upload a photo I.D. and match their face via computer  video provided by a contractor. He noted that the Internal Revenue Service (IRS) introduced this system last year because first-party requesters need to identify themselves to ensure they are who they say they are. He noted that first-party requests (in which one requests records pertaining to themselves) are the sole example in FOIA where people need to identify themselves in order to make a request. This is because of the intersection between FOIA and the Privacy Act. Mr. Howard noted that the same method of authentication is applied to anybody who wishes to use the online system at IRS, Department of Treasury, and the Social Security Administration.  He noted that FOIA does not require people to identify themselves [for non-first-party record requests] much less provide biometric identification. He noted that the websites for the Treasury Department and IRS do not clearly instruct how to avoid the biometric identification and the mobile site does not give the option at all. He hoped that the next term of this Committee, as well as the Chief FOIA Officers FOIA Council, and Congress, examine how problematic the authentication requirements are becoming.

Secondly, Mr. Howard noted the recent news at the National Institutes of Health (NIH) involving records management. He noted that senior officials had a practice of trying to evade FOIA by misspelling and moving public business on private e-mail systems and perhaps even destroying records. He hoped that the National Archives conducts an investigation working with Inspectors General, and if they find that there has been unauthorized disposition of records to refer the case to the Department of Justice. He hoped that government FOIA offices use this as a moment to re-engage and clarify that it is the position of the U.S. government that this behavior is unacceptable. He noted that he believes that all of the members of this Committee do not find it acceptable, but he had not seen any strong statements from the government against this behavior.

He hoped that the incredible recommendations and commitment to public integrity displayed by Committee members will result also in substantive change, but noted the need for public recriminations against what he called “abuse of power.” 

Ms. Semo thanked Mr. Howard and sought further comment from Committee members.

Mr. Heise noted that he hoped future terms of the Committee would look at the resource issue for FOIA. He was on all three Subcommittees and noticed a lot of interest in serving on the Modernization and Implementation Subcommittees. But non-government members were not eager to be on Resources. He noted that non-government members, without the perspective on the limited resources inside the government, often ask the government for improvements without regard to resources. He hoped that non-government members of future terms would display more interest in the Resources Subcommittee. Their support is needed.

Mr. Heise noted that artificial intelligence can submit request after request in rapid succession, much faster than a person. The government is ill-equipped to deal with such a deluge of requests. When the requester community uses the FOIA portal like that, it has an adverse impact on the processing of FOIA requests. The duplicate requests from bots, AI, or other non-human submission of FOIA requests overwhelm agencies because they don't have corresponding support.  

Mr. Baron seconded much of what Mr. Howard said about the NIH controversy, and noted there is an existing statute, 44 U.S.C. § 2911, that contains a disclosure requirement for official business conducted using non-official electronic messaging accounts. Since 2014, the Federal Records Act has required offices or employees of executive agencies may not create or send a record using a non-official electronic messaging account, unless the officer or employee copies an official .gov system or forward the complete copy of the record to a .gov system. Subsection B of 2911 talks about adverse actions, the intentional violation of subsection A, which would be a basis for disciplinary action. There is law in the books, and NIH should look at taking appropriate actions. He noted that NARA opens investigations, per his experience in 13 years as Director of Litigation at NARA, and a controversy like this would absolutely require NARA to initiate an investigation.

Mr. Howard noted his disappointment that the response to documented reports of record law evasion is to blame the requester community for submitting request after request. He noted that the current problem is not AI, but that the federal government is under capacity to make progress against the backlog. Congress has not appropriated funding, and two successive administrations have not stepped up on oversight of the FOIA. Various backlogs have been reduced through the smart use of technology and capacity, but we have not seen it for FOIA.  He noted that it is a concern that automated requests inundated offices, such as when public rulemaking dockets are flooded with inauthentic comments made under fake names.  But he noted it is not appropriate to blame the requester community for the government evasion of FOIA requirements.

Mr. Heise noted that is not what he had meant in expressing his observation on the concern with AI generated requests. Agencies are doing their best. 

Mr. Garcia-Malene noted that he could not speak to the case that's in the public eye. He shared that in his experience, the NIH, and its employees, comply with both the letter and spirit of FOIA. He noted that the NIH program that he manages remains absolutely committed to complying with all laws and policies.

Ms. Semo noted there were a lot of issues to carry forward to the next term, and that nominations for the sixth term of the FOIA Advisory Committee were currently being accepted.  Details regarding how to submit either a self nomination or nomination on behalf of another individual are contained in the Federal Register Notice published on June 7th. Nominations for the 2024 to 2026 term are due no later than 5 p.m. Eastern time, Monday, July 15, 2024. She noted that the slide contained a QR code that everyone is welcome to scan to go directly to the Federal Register notice for more details. As in the past, the Archivist of the United States would review the nominations and appoint members. OGIS would notify appointees in writing. The first meeting of the Committee's next term will be Monday, September 9, 2024 at 10:00 a.m. Eastern time. Updates and details would be posted on the website.

She noted it had been a very successful meeting and thanked everyone for attending and for all the great comments. Hearing no other questions, she declared the meeting adjourned at 10:59 am.

I certify that, to the best of my knowledge, the foregoing minutes are accurate and complete on June 27, 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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