Transcript

FOIA Advisory Committee Meeting (Virtual Event)

Thursday, September 8, 2022

10:00 a.m. (ET)

Michelle [producer]: Ladies and gentlemen, welcome, and thank you for joining today's 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 our audio connections are muted at this time, and this conference is being recorded. If you require technical assistance, please send a chat to the event producer. Also to present a comment via WebEx audio, please click the raise hand icon on your WebEx screen, which is located above the chat panel on the right to place yourself in the comment queue. If you are connected to today's webinar via phone audio, please dial pound two on your telephone keypad to enter the comment queue. With that, I will turn the meeting over to Debra Steidel Wall Acting Archivist of the United States. Ma'am please go ahead.

Debra Steidel Wall: Thank you, Michelle, and good morning, everyone. Welcome committee members and members of the public to the first meeting of the fifth term of the FOIA Advisory Committee. It's nice to see those of you who I've reappointed as well as those who are new to the committee. Thank you for the work you do for us. Today's also a special day here at the National Archives, which I'll get to in a moment. But first, regarding the package of 21 wide ranging recommendations from the previous term, one was approved last year by archivist David Ferriero. Over the summer, I gave each of the 20 recommendations very close consideration in collaboration with the OGIS team. As noted on the FOIA Advisory Committee dashboard, work on five of the recommendations has already started.

With regard to four of the six recommendations that would reimagine OGIS, I paused action on them pending review of the outcome of a feasibility study to more deeply study the cost and benefits of those four recommendations and I did reject the recommendation to move OGIS in NARA's organizational chart. Committee members, although some of FOIA's toughest challenges remain and there certainly are rich opportunities for exploration, I hope that you will review prior committee recommendations and consider whether additional work is needed as you fulfill your mandate to advise on improvements to the administration of FOIA. So in other words, please don't feel compelled to make another 20 recommendations this time around. Although if you do, if you need to, you're certainly empowered to do that.

Now to the special day here at the National Archives, so 13 years ago today, the first director of the brand new Office of Government Information Services unlocked the door to the office to find requests for assistance already awaiting her attention. Miriam Nisbet had no staff and no process in place for handling those requests. She used as her guiding light 104 words in the FOIA statute, as well as the international ombudsman standards of independence, impartiality, and confidentiality. That first year, OGIS handled 391 cases largely from requesters who had already been through the FOIA administrative process today, OGIS handles more than 4,000 inquiries a year from both FOIA requesters and agency FOIA professionals at all stages of the FOIA process. By observing the FOIA process in action and offering dispute resolution services, OGIS fulfills Congress's mandate to resolve disputes as a non exclusive alternative to litigation. By allowing its casework to serve as a FOIA barometer and assessing a range of FOIA issues, OGIS fulfills Congress's mandate to review FOIA policies, procedures, and compliance.

And by speaking about systemic change in a variety of ways, OGIS fulfills Congress's mandate to identify procedures and methods for improving compliance. And certainly the FOIA Advisory Committee is a very important part of identifying improvements to the FOIA process. I'm extremely proud of all that OGIS has accomplished in the last 13 years. OGIS is where it compliments the National Archives’ strategic goals of making access happen and connecting with our customers, from federal agencies to the American public. So with that happy birthday to OGIS and welcome to your teenage years. So while many teenagers experience periods of moodiness and unruliness, not me when I was a teenager, but while some do, I'm confident that you'll continue to offer just exceptional service, both to the FOIA Advisory Committee and to the American public. So I'm happy to turn the meeting over to OGIS director, Alina Semo.

Alina Semo: Okay, great. Thank you so much, Debra, and thanks for the good wishes. 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 all of you to the inaugural meeting of the fifth term of the FOIA Advisory Committee. I would also like to introduce the committee's Designated Federal Officer DFO, Kirsten Mitchell. Kirsten, would you like to wave? Thanks. She's going to help me stay on track, not just today, but for the next two years. Kirsten will brief you later this morning on the DFO role with the advisory committee. So you'll be hearing from her soon. I do hope everyone who's joining us today, not just our committee members, but our listening folks are continuing to stay safe, healthy, and well. I want to just quickly tell you that I am back from a very quick trip to Kansas City to give two plenary session presentations to the American Society of Access Professionals.

I had the pleasure of talking about the FOIA Advisory Committee for one of the plenary sessions and was very well received by 120 FOIA professionals and invited everyone to participate and make their views known. And hopefully we'll be getting participation from them and they'll be watching us when they're not in the ASAP conference, which is ending on Friday. So I want to welcome all of our committee members who are able to join us today, express my gratitude for your anticipated commitment to studying the current FOIA landscape, and developing consensus recommendations for improving the administration of FOIA across the federal government. We will give our committee members the opportunity to introduce themselves momentarily. I have some housekeeping notes I have to go through first. So bear with me.

First, members' names and affiliations are posted on our website. We are working on posting members' biographies. They will be posted soon. I also want to let everyone know, we have recently updated our FOIA Advisory Committee recommendation dashboard on the OGIS website. Look for the blue radio button on the lower right hand side of our front webpage. The dashboard reflects all 51 recommendations that the committee has made since its inception in 2014, along with progress updates. I also want to welcome our colleagues and friends from the FOIA community and elsewhere who are watching us today, either via WebEx or with a slight delay on NARA's YouTube channel. I am advised that committee member Ginger Quintero-McCall is unable to join us today. And I know that for a fact, because I saw her in person yesterday at the ASAP conference. She is teaching there for the next couple of days, but hopefully she'll be back with us on September 14th at our next meeting. Kirsten has hopefully taken a visual roll call.

Kirsten, can you confirm, please, we have a quorum?

Kirsten Mitchell: We do indeed.

Alina Semo: Terrific. Meeting materials are available on the committee's webpage. Click on the link for the 2022 to 2024 FOIA Advisory Committee on the OGIS website. Please also visit our website for today's agenda and slides. We will upload a transcript and minutes of this meeting as soon as they are ready. During today's meeting, I want to encourage committee members to use the all panelist option from the dropdown menu and the chat function when you want to speak or ask a question. You can also chat me or Kirsten directly. However, in order to comply with the spirit and intent of the Federal Advisory Committee Act, which Kirsten will discuss later this morning, committee members should keep any communications in the chat function to only housekeeping, procedural matters. No substantive comment should be made in the chat function as they will not be recorded in the transcript of the meeting.

If a committee member needs to take a break at any time, please do not disconnect from the web event. Instead mute your microphone by using the microphone icon and turn off your camera by using the camera icon. And please send a quick chat to me and Kirsten to let us know if you'll be gone for more than a few minutes. Join us again as soon as you can. We have not planned on taking a break today, as we plan to wrap up by noon Eastern time today as per our posted agenda. And we have a sharp noon cutoff time due to AV requirements. A reminder to all committee members, please identify yourself by name and affiliation each time you speak today and every meeting. I'm guilty of doing this sometimes. So I'll try to be better about it this term, but it helps us tremendously down the road with both the transcript and the minutes, both of which are required by the Federal Advisory Committee Act. Transcripts and minutes from all the prior committee term meetings are posted on our website.

We're completely up to date now. You may access all of our prior meetings on the NARA YouTube channel, and we provide links to each meeting on OGIS's FOIA Advisory Committee webpage. A few words about public comments. We have received and posted several written comments in advance of today's meeting. We review all public comments and post them as soon as we are able. We have also alerted committee members and have invited them to view public comments on our website. If anyone wishes to submit any additional written public comments regarding the committee's work you may do so at any time by emailing foia-advisory-committee@nara.gov, and we will consider posting them on the OGIS website. An important reminder, please do not use the chat function on either the WebEx or the NARA YouTube channel platforms to submit extensive public comments. The chat function on both platforms should be limited to asking clarifying questions or providing brief comments or questions that we will consider reading out loud at the end of today's meeting.

Members of the OGIS staff will be monitoring the chat function on both platforms throughout our meeting. And I want to thank them in advance for all that work. It's hard work. In addition to the written public comments we have already posted, we will invite oral public comments after the committee completes its first meeting today. As we noted in our August 22nd, 2022 Federal Register notice, public comments will be limited to three minutes per individual. Okay, at this point, I would like to take a few minutes for each committee member to briefly introduce themselves and their affiliation and briefly state how their work relates to FOIA. So that's the challenge for today. I'll call on each of you in alphabetical order. And that means that Jason R. Baron has to go first. So Jason, if you don't mind, I'm passing the baton over to you.

Jason R. Baron: Hi Alina, can you hear me?

Alina Semo: Yes. Good morning.

Jason R. Baron: Hello everyone. Jason Baron. I'm a professor at the University of Maryland College of Information Studies, a former director of litigation at NARA. My current work is research related to machine learning and FOIA to ensure that the government does a better job with searching electronic records and filtering for FOIA exemptions, Alina.

Alina Semo: Okay, thank you, Jason. Paul Chalmers, you're next.

Paul Chalmers: Morning, everybody. My name's Paul Chalmers. I am a deputy general counsel at the Pension Benefit Guaranty Corporation, which is a federal agency. Among my jobs, I am the Chief Disclosure Officer, which means I supervise the group within PBGC that responds to FOIA and Privacy Act requests. So FOIA is a big part of my job.

Alina Semo: Okay. Thanks, Paul. Carmen Collins is next.

Carmen Collins: Good morning, everybody. My name is Carmen Collins. I am the representative for the DOD. I am currently a program manager with the United States Cyber Command. In the past, I have had paralegal roles and have been exclusively dealing with FOIA for the past 10 years or so in one way or another. I'm looking to really help out and see how this committee can help improve the FOIA process overall. Thank you.

Alina Semo: Thanks Carmen. David Cuillier.

David Cuilllier: Hi, I'm David Cuillier and I'm an associate professor of journalism at the University of Arizona. I'm also president of the National Freedom of Information Coalition, and I teach in research issues regarding access to government records and I'm happy to return on the committee. It's a lot of fun and I learn a lot. Thank you.

Alina Semo: Thanks Dave. Allyson Deitrick. You're next.

Allyson Deitrick: Thanks Alina. Glad to be back. My name's Allyson Deitrick. I'm chief of the information law division at Department of Commerce office general counsel. My office is responsible for adjudicating most of the department's FOIA administrative appeals and generally providing legal advice on FOIA matters.

Alina Semo: Okay, great. Welcome back, Allyson. Gorka Garcia-Malene, you're next.

Gorka Garcia-Malene: Good morning. My name is Gorka Garcia-Malene. I direct the FOIA program at the National Institute of Health. I also serve on NARA's Chief FOIA Officers [Council] Technology Committee, excuse me, and we study the deployment and technology in FOIA programs across the federal government. And actually a lot of what we do there is take the recommendations from this advisory committee and try to identify best practices and technology based solutions to make the FOIA community more efficient, just overall better. So I look forward to making FOIA better, participating in the advisory committee as well.

Alina Semo: Okay. Thanks Gorka. Michael Heise, you're next.

Michael Heise: Good morning. My name is Michael Heise. I'm the assistant legal counsel for the FOIA division at the Equal Employment Opportunity Commission office of legal counsel. Basically a hundred percent of what I do there is FOIA from adjudicating most of the administrative appeals, overseeing processing certain types of requests and basically providing guidance and training from everyone in the agency from the chair on down.

Alina Semo: Okay, great. Thank you. We have Alex Howard next.

Alex Howard: Hello. My name is Alex Howard. First time participant, longtime commenter. I think I've been at most of these meetings since 2014, when it kicked off. Currently I'm affiliated with the Digital Democracy Project, working in the nonprofit space, an advocacy for as you'd guess, more democratic processes, better freedom of information across state, local and federal levels. Just put in a comment to our DC Office of Open Government this morning, regarding the continued use of WhatsApp in ephemeral messaging here at the District of Columbia, where I reside. My interests are, I think, fairly focused on trying to get the public more access to trustworthy information and structured formats and accessible formats on the internet. And that has been my work for the past decade. And I'm really glad to be here with all of you.

Alina Semo: Okay. Thanks Alex. Stefanie Jewett.

Stefanie Jewett: Good morning, everyone. My name is Stefanie Jewett, and I am with the office of Inspector General at the US Department of the Interior. In my current role, I am the deputy general counsel and I am the director of the FOIA, Privacy Act, and records management programs. And in this role I handle and oversee all FOIA requests, appeals and litigation, and I am really looking forward to being on this committee. Thank you.

Alina Semo: Great. Thanks Stefanie and welcome. Gbemende Johnson. You're next.

Gbemende Johnson: Thank you Alina. Hello. My name is Gbemende Johnson and I'm currently an associate professor of Government, sorry, Political Science in the School of Public and International Affairs at University of Georgia. My research interests touch on FOIA in multiple ways, including empirical examination and analysis of FOIA outcomes and FOIA litigation. And I'm looking forward to building on the great work of previous iterations of this committee. Thank you.

Alina Semo: Great. Thank you. Adam Marshall.

Adam Marshall: Thanks Alina. Hi everyone. My name is Adam Marshall. I'm a senior staff attorney at the Reporters' Committee for Freedom of the Press. I primarily litigate FOIA requests and public records requests at the state level for newsrooms and reporters in the United States.

Alina Semo: Okay. That was very brief, Adam. Thank you. Luke Nichter.

Luke Nichter: Morning, my name's Luke Nichter, history professor at Chapman University in Orange, California. I'm brand new to the committee. So I look forward to the challenge and all that I'll learn and just frankly, serving. I'm also part of the requester community and I focus primarily on Cold War era records, both for my own publications, but also for what I like to think is the greater good. Thank you.

Alina Semo: Great. Thank you so much and welcome. Catrina Pavlik-Keenan, who is joining us by phone, I believe and not by video. Katrina, you're up next.

Catrina Pavlik-Keenan: Hi, my name's Catrina Catrina Pavlik-Keenaand I am the deputy chief FOIA officer of the Department of Homeland Security. Prior to that, I was the FOIA officer for 15 years over at Immigration and Customs Enforcement. I'm actually just finished my first year officially at DHS headquarters and I'm responsible for oversight of the department's FOIA processing for the components and also within DHS headquarters. And so I look forward to this, my first year. I look forward to this endeavor and I look forward to working with everyone.

Alina Semo: Great, thanks Catrina. Welcome. So Ginger cannot be with us today. I thought I would just give her a quick introduction. She is the legal director at Demand Progress, a progressive policy organization that works on transparency issues, including FOIA. Ginger has worked on transparency and privacy issues, both inside and outside of government, allowing her to experience FOIA both as an agency FOIA attorney and as a requester. And she is a returning FOIA Advisory Committee member. She served two terms ago and we will welcome her next time she joins us for our next meeting. I'm going to skip introducing myself. I think maybe that seems a little obvious. So I'm going to go next to Tom Susman.

Tom Susman: This time I remembered to unmute. Tom Susman, my current job is strategic advisor for global programs and government affairs at the American Bar Association. This month marks the 54th anniversary of my involvement with the Freedom of Information Act. In September 1968, I was in the Office of Legal Counsel, advising agencies on how to comply with this strange new oppressive, burdensome, horrible law that Congress had enacted. In answer to the question of how does my work relate to FOIA? It doesn't. Friends used to tell me that if it's that much fun, it's not work and I'm only halftime at the ABA. And so my passion and commitment to government transparency, open government in all manner of related issues is reflected in my involvement in this. This is my third term on this committee. I'm president of the DC Open Government Coalition on the board under David Cuillier of the National Freedom of Information Coalition Steering Committee, chair of Open the Government. It's my hobby as well as a passion. So I'm delighted to have another opportunity to work and learn in this field.

Alina Semo: Okay. Thank you so much, Tom. Tom has allowed me in the past to call him the grandfather of FOIA. I'm going to continue to stick to that. I say that in a very loving and respectful way. Okay. We're up to Bobby Talebian. Bobby.

Bobby Talebian: Thank you Alina. Good morning, everyone. I'm Bobby Talebian, director of the Office of Information Policy at the Department of Justice or OIP. And OIP is responsible for encouraging government compliance with the FOIA, we do that in a number of ways, from issuing guidance to training. Another governmentwide initiative was providing resources to agencies and also providing legal counsel to agencies on their application of the FOIA. So excited to be... OIP has been part of all of the [inaudible 00:23:14]. I'm excited to be part of this will be my first full term as director of OIP.

Alina Semo: Welcome back, Bobby.

Bobby Talebian: Thank you.

Alina Semo: And thank you for all your work in the past and your partnership. We really appreciate it. Okay. Eira Tansey is next. Did I pronounce your name correctly? I hope I did.

Eira Tansey: Oh, well it's Eira Tansey. So hi everyone. My name is Eira Tansey and I am an archivist and records manager at the University of Cincinnati and my interest in FOIA is that I've long been active in the Society of American Archivists’ committee on public policy. So lots of work there on various record keeping laws. And I also have filed FOIA requests myself as a requester to support some of my own research interests in labor and environmental laws. So I'm really happy to begin my term on the committee.

Alina Semo: Great. Thank you so much Eira. Welcome to the committee. We're happy to have you. Benjamin or Ben Tingo welcome.

Benjamin Tingo: Oh, good, good morning. Thank you very much. And my name is Ben, Benjamin Tingo. For the last six years. I've been general counsel of AINS, LLC, which is the developer of FOIAXpress, which is a leading FOIA case management software. We also make other specialized case management solutions as well. I am an attorney with more than 15 years of litigation experience in complex civil and criminal matters in both public and public interest in private settings. At AINS, I've been very involved in examining FOIA processes and procedures, and I've worked a lot to develop technologies and implement new technologies that will help to meet the current and future challenges that face FOIA in general across the federal government.

I also do have experience on both sides of FOIA requests. I've made FOIA requests and I've responded to FOIA requests for AINS’ information, which has been provided to the government. This is my first year on the committee, although a long time attendee. I do look forward to working with the committee and OGIS basically to find new ways to help continue to support FOIA professionals and to more fully enable government transparency and accountability. Thank you very much for the opportunity.

Alina Semo: Thanks, Ben and welcome. Last but not least Patricia Weth.

Patricia Weth: Good morning. My name's Patricia Weth. I work for the Environmental Protection Agency in the national FOIA office. I am the assistant general counsel and I lead the FOIA Operations and Reporting Team. For short, we call it FORT and I often say I'm holding down the fort. I never get tired of saying it, but I'm sure my EPA colleagues are a bit tired of hearing it. In my past experience, I have fully experienced it, several federal government agencies. I've also handled FOIA on the Virginia state and local government level. And I really look forward to working with the members of this committee.

Alina Semo: All right. Thank you so much, Patricia. Okay. Kirsten, I just want to make sure I didn't miss anyone, right.

Kirsten Mitchell: You did not miss anyone. You've got everyone.

Alina Semo: Okay. And you'll get to introduce yourself next. So I think we're running on schedule, so that's great. So at this point I would like to turn things over to Kirsten Mitchell, our Designated Federal Officer. She will walk us through some very important points for the committee members to keep in mind as we move forward. So Kirsten over to you and Michelle, next slide please.

Kirsten Mitchell: Thank you, Alina. I'm Kirsten Mitchell, and I actually wear two hats at OGIS. I lead OGIS's compliance team, and I'm also the Designated Federal Officer or DFO for the FOIA Advisory Committee. The two roles dovetail very nicely as the FOIA statute directs OGIS to identify procedures and methods for improving FOIA compliance and the work of the advisory committee fits right into that. Next slide, please. The committee operates in accordance with the Federal Advisory Committee Act or FACA. That law governs the committee and requires that each federal advisory committee across the government have a DFO to manage the committee and provide managerial administrative and logistical support. The committee also operates under its charter and bylaws, which are available on the FOIA Advisory Committee website under governance materials. Before I get into DFO duties, a few words about the committee's duties. Plainly and simply it's to study the federal FOIA landscape and advise the Archivist of the United States on improvements to FOIA.

Next slide, please. Committee members, you and I will spend a lot of time together over the next two years. As DFO, I attend all committee and subcommittee meetings, prepare and approve meeting agendas, maintain records and chair meetings when so directed by the Archivist of the United States. We have two alternate DFOs on the OGIS staff, Kimberlee Ried, who is unable to be with us today and Daniel Levenson, who is with us. Hello, Dan, if you could wave. Great. Kimberlee's name might sound familiar to some of you because she was detailed to OGIS part-time during the start of the previous term and was a tremendous help with the minutes and did some research on FOIA in congressional appropriations. She's now on the OGIS staff full time and is helping out as assistant DFO along with Dan.

So a few words about records management. OGIS maintains a FOIA Advisory Committee mailbox to assist with record keeping and in accordance with the bylaws that state that committee members must copy the DFO on all committee and subcommittee correspondence. So to simplify record keeping, the FOIA Advisory Committee has this email box. It is foia-advisory-committee@nara.gov.

Now I know what some of you are thinking, what is up with the photo of the Reagans with cats? That photo is from the National Archives' Catalog. And I actually put it in there because it's a great illustration of herding cats, which is a bit of what the DFOs job is like. And I say that with utmost fondness for cats. Next slide, please. So a very quick look at committee member responsibilities, which are pretty straightforward, including attend and participate in meetings. One quick note, a quorum constitutes two-thirds of the committee members or 13. We obviously have way more than that today. We've had a great group of members over the years and have never had problem maintaining a quorum. And I'm confident that that will continue. I'm not going to spend any more time on committee membership and sort of what it entails because you'll be hearing from Tom Susman with a little bit of insight into getting the most out of your time on the committee. Final note on this, thank you government members who have submitted your financial disclosure forms to the National Archives General Counsel's Office. There are several of you who have not submitted the disclosures and I have been advised by the FACA Counsel here at the National Archives that without those disclosure forms you cannot participate in any committee business, and that is just a requirement for the government members. So if you haven't yet submitted them, please do so.

Next slide please. So the committee is structured in such a way that it has subcommittees that report directly to the committee. Next week's meeting will entail brainstorming and idea sharing about various topic areas and forming subcommittees. Alina and I ask that the number of subcommittees be kept to three if at all possible. The committee had three subcommittees in each of its first three terms.  Last term, the fourth, there were four subcommittees and we have found that three is a bit more manageable. Subcommittees can include working groups that look at very specific issues, often for a shorter term than the entire two-year term. Finally, any recommendations that are made should move through and be passed by a subcommittee before being presented to the full committee. Next slide please.

So each committee has two co-chairs, one from inside the government and one from outside, that's in accordance with the committee bylaws. We find that it is a great way to get members with differing perspectives to work together. At full committee meetings each subcommittee has time on the agenda to report their work and findings.

Next slide please. So just a bit about what the subcommittee co-chairs do in case there are any you who are thinking about stepping forward for that next week. They work with me to schedule meetings. They set meeting agendas and they basically lead the subcommittee in its work throughout the entire term.

Next slide please. So a few more notes about the bylaws. We write meeting minutes for the full committee meetings in accordance with the Federal Advisory Committee Act. FACA requires us to keep detailed minutes to post the minutes within 90 days of a meeting. FACA also requires us to post transcripts and we are generally able to post those much sooner. Committee meetings are open to the public and public comments are just accepted at the determination of the chair. And I'm going to give you that email again, it's foia-advisory-committee@nara.gov.

Next slide please. So a few words about voting. Any member, including Alina as chairperson, may move that the committee votes on a matter. No second is required, which is strange to those of us who pay attention to parliamentary procedure, but a second has become, well, second nature, and Alina and I are always happy to accept. Only the chairperson and the members may vote, the DFO does not have a vote.

Next slide please. So the bylaws state that there are two types of votes the committee can take. A show of hands, which was a lot easier in the before-times when we were all together in person at the National Archives, and a voice vote. In these virtual meetings, I find it sometimes challenging to tally a voice vote so I will sometimes do a roll call. Passing votes are either unanimous, general consensus, or general majority. And then when it comes time to vote on something, we'll keep track of all of this. So no need to memorize any of this.

Next slide please. And with that, here's the slide with our contact information. Committee members please do not hesitate to contact me with questions or concerns at any time. I'm your navigator here and if I don't have an answer, I'm always happy to find someone who does have an answer. Before I turn it back over to Alina, I'm happy to take any questions from committee members and I actually have one that was brought up last week regarding the bylaws. So the bylaws were put together during the first term of the committee, the 2014 to '16 term. And they serve us well, but if you think they need amending, let Alina and me know. There is a provision in the bylaws that say they may be amended, but any amendments must conform to FACA, the Federal Advisory Committee Act, and be agreed to by two-thirds of the 20 members. For those of you math challenged as I sometimes am, that's 13, the same number required for quorum. So I hope that answers the bylaws question and I'm happy to answer any other questions anyone has. Thank you.

Alina Semo: I'm looking at everyone to see whether anyone's raising their hands. Everyone looks satisfied with Kirsten's presentation. I just want to add, as everyone is thinking about breaking out into subcommittees for next week, I want to encourage everyone to join more than one subcommittee. You're not barred from doing that, in fact, highly encouraged. As you probably will hear from Tom and Dave and Patricia about their past experiences, you can definitely serve on more than one committee. I know Dave was very active in at least a couple of them and so was Tom. And it really helps actually for continuity and hear what one subcommittee's talking about bringing it over to the other. So I think that's actually extremely helpful in that sense as well. Kirsten has to attend every subcommittee meeting. I try to attend as many as possible, which I myself found extremely helpful just for continuity's sake. So I'm toggling back and forth on my screen. I just want to make sure that no one else has any questions for Kirsten about administrative rules.

Okay, I'm not hearing anyone jumping up and down so we're running a little ahead of schedule. So Kirsten, thank you for walking us through all of that very important information. The good news for everyone is that Kirsten will be with us throughout this whole journey. We also have our alternate DFOs, Dan who's here with us today, and Kimberlee, who you'll see next week. So if at any time any committee member has any questions or concerns, they can contact Kirsten. And I really trust her when she says if she doesn't know the answer, she will find out. So next on our agenda is Tom Susman, who has been serving on the FOIA Advisory Committee since 2016 as he already mentioned, this is his fourth term. So we could not think of anyone more qualified than Tom to share some thoughts about being an effective committee member and any other thoughts you might have. So, Tom, over to you now.

Tom Susman: Thank you, Alina. Lots of thoughts, of course, but I want to start by saying that you're absolutely right. Kirsten has been very accessible whenever questions come up, some impossible to answer, most of them she has the answer on the tip of her tongue. But members should not hesitate if an issue comes up to contact our assigned officer.

As this fifth term of the Advisory Committee begins, I kind of harken back to a short story I told at OGIS' annual meeting, which is at the end of the 19th century, Charles Durell was a patent commissioner and he wrote President McKinley that he was resigning and the office should be dissolved because everything that could be invented had been invented. Now some people think that story may be apocryphal, but I love it because I'm sure that some of us are thinking: "our fifth Advisory Committee and all of these very smart people for the past eight years, is there anything else to do?" There's a lot to do, and part of what I'm going to try to do today is give you sort of an overview of why I find participating in the Advisory Committee so exciting.

Justice Scalia, this is the same justice who wrote that the Freedom of Information Act had no clothes, that it's a Taj Mahal of unintended consequences. He also coined the phrase that administrative law is not for sissies. And of course the Freedom of Information Act is in Title V, the Administrative Procedure Act. And I think to some extent FOIA is not for sissies either. And so this group that has assembled to attack yet another, basically, generation, another biennial effort of addressing FOIA problems, we'll find very quickly that there's something for everyone. Whatever your interest is, whatever your assignment, your work assignment, whatever your hobbies, FOIA and the Advisory Committee will have something that I think will engage you.

Requester community: we've done a lot on fees, agency best practices for requesters and so on, a very important issue. Chief FOIA officers: obviously additional resources, improve training, raise the profile. Historians: improve FOIA websites, records management, techies, search technology, better use of IT, embracing new technologies, lots of technology-related recommendations. Academics—David did a masterful job at reimagining OGIS far beyond. And as the Archivist indicated, she will follow through with looking more closely at the recommendations as were suggested because it goes really beyond the mundane and the easily attainable.

Defense and intelligence agency staff: revisited classified information in the last Advisory Committee. Litigators had some something to offer in terms of their concern about Glomar responses by agencies and having to litigate those. And, of course, media—there's always an interest in trying to be responsive to one of the areas that the Freedom of Information Act was addressed to when it was enacted. Proactive disclosure, FOIA logs, lots of issues that would be of interest. Which, just having gone through that, you see there are recurring themes. Technology, FOIA oversight, proactive disclosure, additional resources, accessibility under Section 508, Americans with Disability, additional resources, agency websites and logs and additional resources. You'll see a recurring theme there.

There's lots of unfinished business though. OGIS, enhancing OGIS is unfinished business. And even the single recommendation of the first Advisory Committee. I thought it was kind of interesting when Kirsten sent out her notice to members of this one she wrote, "Although some of the recommendations are marked complete, opportunities for additional work may exist and completion of some of the recommendations rest outside the Archives." Well, of course, completion... most of the recommendations rest outside the Archives. And the example I keep coming back to of one that is marked complete because the Archivist has made the recommendation, but as far from complete is the recommendation of the first advisory committee to OMB, that the FOIA fee schedule should be updated. And OMB came up with basically a half-a-loaf. There's more work to be done and that's an area that certainly can and should be followed up.

So, no, Commissioner Durell, our work is not done. Everything that could be invented relating to improving the Freedom of Information Act has not been invented. And those that have been invented still need some implementation. For the first time the fourth Advisory Committee made a recommendation addressed to a specific agency and there was some controversy about that. But we addressed a recommendation to the Department of Homeland Security because that had been, well, that's the department that receives by far the majority of requests and has a very large backlog, and so we decided that it was worth looking at a specific agency. And this Advisory Committee may want to do the same in terms of focusing on an agency.

We also made a recommendation relating to legislative information access, which was unique at first for that last Advisory Committee. And another unique thing for the last advisory committee is our, as the Archivist told us, is this the first time the Archivist has rejected a recommendation. Which is okay, I mean our job is not to try to second guess what's going to be acceptable to Bobby or Alina or Ms. Wall or Mr. Schumer or McConnell or any of the people to whom we are making recommendations. Our job is to do the best we can to come together on what needs to be done to improve the Freedom of Information Act. And I use the word come together emphasis, because it's amazing the diversity of representation on the various Advisory Committees, both from within government and outside government. 

And a lot of us have been adversaries with FOIA requests and even with lawsuits in the past. But we're here together to face joint challenges. Some involve low hanging fruit like the fee schedule. I think improving FOIA websites is low hanging fruit. Some of them involve a little more challenging and long-term issues like FOIA logs and technology. And some are very ambitious: legislative branch records and maybe some major overhaul for OGIS. But I think that the challenge will be enjoyable for everyone. I think attending meetings, we know when they're going to be, I try to block them on my schedule. I think I've missed one meeting in the last six years. I do a lot of international travel and those are kind of hard to tune into.

Work hard and there's plenty of opportunity to work hard. The subcommittees will often schedule meetings to hear from outside experts with narrower expertise that might be worth presenting at a full committee meeting. And those are all worth attending and they're all worth being involved with. I probably don't need to say to this group that one of the things that any committee needs to keep in mind is feel free to talk when you have something to say. Feel free to not to talk when you don't. We know you're listening, we know that you're a constructive member of the team. And I was on a nominating committee once in the District of Columbia bar that had two peremptory challenges for board members. One was they don't return phone calls, and the other was they talk too much at meetings. So that's just a short caveat.

As I said when I introduced myself, I mean part of the reason I'm back again is that I do find this not just to be valuable, not just to be a possibility of contributing to the continued enhancement of public access to government information on many fronts, but also cause it's incredibly enjoyable. I meet a lot of new people, I learn a lot, I have an opportunity to stay involved in a very interesting and consequential area. So that's my message for today, and I hope when our two years are done, you will have the same positive, enthusiastic response to our work as I've had for the last various committees. Thank you. And I'll take questions if anyone wants to ask questions.

Alina Semo: I was going to suggest that anyone have any questions? Adam clapped for you, so I want to give that some recognition.

Kirsten Mitchell: So I don't have a question but I have a comment.

Alina Semo: Is this Kirsten?

Kirsten Mitchell: Yes, this is Kirsten. Yeah, I just wanted to sort of talk back to what Tom said about the diverse group of members over the years and working together. And I hope these two past members won't mind me bringing this up. But I guess it was two terms ago we had Bradley White with the Department of Homeland Security and Emily Creighton with the American Immigration Council co-chairing a subcommittee together. They got along fabulously, they did a great job of co-chairing. And the interesting thing was they were able to do that at the same time they were sort of battling it out in court. And so I always sort of hold them up as ideal subcommittee co-chairs.

Tom Susman: I think Alex had a question.

Alex Howard: Yes. There's some, I think, skepticism about this committee in terms of how its activities have improved public access to information. And with your longitudinal understanding, Tom, I wondered if you might reflect upon the impact or influence you've seen it have on both the administration of the FOIA and the agencies and any legislative changes. And the latter is relevant because I do think this Congress at least is going to consider some updates to the statutes. Thank you.

Tom Susman: Alex, as I said, I've been in this arena for a long time and I'm an incrementalist. Give you sort of my touchstone for that perspective, as I went to work in 1969 on the Hill for Senator Ted Kennedy, whose big issue in the sixties was healthcare reform. And the last vote that he took, before he died, on the floor of the Senate was for a massive overhaul of healthcare, Obamacare. (Can't even do the math how many years later.) So I mean the answer is some of these, I think that bring about fairly quick results because we identify something that is low-hanging fruit.

One of the things that I'm going to recommend, and I know that some of the former members of the earlier committees are likely to go along with, is that we spend more time on going back to old recommendations and figuring out how to implement them. Do we need to? I don't think there's any... now that the recommendation has been made, there's no particular inhibition on individual members getting together to go up to the Hill, to set up meetings with agencies, and to push as a group on recommendations that are already on the books. So I haven't gone back to look at the dashboard and say, "Wow, this was really a major." I think there probably were some, but I just don't have them on the top of my head. Kirsten may know a few cause she sort of supervises the dashboard. But it hasn't... And I know Bobby from time to time will say, "Oh yeah, we've come out with guidance on that issue following Advisory Committee recommendations. And that's a good question to look into further.

And by the way, I'm really impressed by the fact that Alina, Patricia, and you all have the same taste in living room furniture and backyards. Sorry about that.

Alina Semo: I think it's the default, Tom. Alex has a beautiful backyard by the way. Okay, thanks. Anyone else have any other questions for Tom? And please know he's always available and happy to chat. Very accessible by email as well. So if any committee members want to chat him privately, you can certainly do that at any time. All right. I'm just looking to make sure no one has their hands raised. Okay. So with that, we're doing well on time, which is great.

And Michelle, if I could ask you to go to the next slide please. So this term, as I mentioned earlier, and as Debra Steidel Wall mentioned earlier, our acting Archivist, the committee is welcoming 12 new members and eight returning members, four government and four non-government members. We are very fortunate to have corralled past committee members, Professor David Cuillier from the University of Arizona, and assistant general counsel, Patricia Weth at the US Environmental Production Agency, EPA, and to agree to share their experiences and ideas from this past committee term with the current members. So I would like to turn it over to you, Dave and Patricia, You have the floor.

David Cuillier: Go ahead, Patricia. I think you're leading off right.

Patricia Weth: Oh, okay, I can do that. So good morning, everyone. I had the honor of serving on the 2018 to 2020 and the 2020 to '22 FOIA Advisory Committees. And back again, they say the third time's the charm, so hopefully that will be the case. I was thinking about what's been done with all the committees. And since 2014 there have been four terms and a total of 51 recommendations. So I am going to share my screen. Bear with me, I was successful earlier today. Okay, So I wanted to talk a little bit about, a little bit about the past recommendations. So I thought the best place to do that would be to share with committee members as well as with those watching this at home, this wonderful dashboard that OGIS has put together. It's on the OGIS website and it has, as I said, all 51 of the recommendations and what OGIS has done with them.

And so as you kind of go through this. It lists all of them for every term and it's been categorized as well. But you can click here and it will take you right to the recommendation in the final report. And rather than me talking about each of these recommendations, I thought it would be easier to show you where you can find them and review them at your leisure. Because there's been a lot; 51 is a lot of recommendations. But really what I wanted to share with the committee members is also that the OGIS website is incredibly helpful and is a great resource for committee members.

So another thing that I've liked to do in the past was to actually go to the final reports for each committee and read the recommendation and read the rationale for the recommendation. And again, you can find all of these on the FOIA, on the OGIS website. And another helpful item is for all of the FOIA Advisory subcommittees, for each term, all of the subcommittees are listed. And if they've done a final report, for example, in the 2020 term, each of the subcommittees did prepare a final report. But while the subcommittees were working, any of their research or interview notes or whitepapers were put on these subcommittee sites.

So I wanted to share with you some examples of what I thought was really good. And one that last year on the legislation subcommittee, we had a working group regarding FOIA fees. And this site was incredibly helpful with all the research that this committee, and I believe this is from the …back here. I think this is from the first term from the 2014 to 2016 term and this fee subcommittee, they have just a font of information up here. So this is available for you. Also I wanted to share with you the oversight and accountability committee. Again, this is from the 2014 to 2016 term. And again, they have a lot of information up here that may be useful for our term. This term. One thing that I do want to share with you that's important is each of the subcommittees must complete a final report. So it's good for you to know that here at the beginning of the term so that you can keep notes on your research and be able to describe your methodology and process because that goes into not just your subcommittee report, but also into the final report. And by keeping these notes, it can really, really draft a stellar  committee final report.

A report that I really referred a lot of folks to last term was a report prepared in the 2020 term by the records management subcommittee. And this was led by Jason Baron and Ryan Law. And I felt like their subcommittee report was just really well written and excellent. And again, you can get to this report through the OGIS website, and I think it's a great example for folks to look at really in the beginning of this term. So you have some ideas of how to prepare this at the end of the term because two years go by really quickly. I'm always amazed. And if you stay on top of it it's a little bit easier. I know my first term, I was scrambling the last couple weeks. So I just wanted to share that with you.

Another thing that I wanted to share was that I know Tom touched upon it and Kirsten and Alina have already offered themselves those resources and they really mean it and they're incredibly helpful and they can point you in the right direction. But also for this term, we have several returning committee members and that's Tom and Dave, Allyson, Ginger, Jason, and myself. And I know I can say this about all of them, that they have no problem with you contacting them and being giving guidance. I can tell you my first term was incredibly helpful to us. We were trying to do some international research to deal with the voluminous requests and also look at different models of agencies like OGIS, and Tom hooked us up with websites and people to interview. 

So please don't be shy about reaching out to folks. And I will also say another resource are your current committee members. Tom touched upon it. We have some really, really smart people on this committee with great experience. And I think that when we work together as a team, we work better. And I can just share with you some of my past experiences with Suzanne Piotrowski. She is a professor at Rutgers. She was incredibly helpful with helping us compile survey results.

Michael Morisy from Muckrock really could hook us up with items regarding from the requester community perspective. Even James Stocker, who's a professor at Trinity Washington University. In one of my committees, we needed a translation of German when we were looking at some international research, and he's fluent in German. So it's amazing the resources that we have here just among ourselves. And I can say this, I know I've reached out to former members. They're incredibly helpful. And lastly, don't be shy about asking FOIA professionals in the federal government. I have found people in this area in the FOIA world just really are very, very helpful people in both the federal government and the requester communities. So don't be shy about that.

So I want to turn back to these 51 recommendations that we have, and we heard earlier from Archivist Debra Wall had mentioned, suggested to our committee, how about reviewing these past recommendations? And Tom spoke about [inaudible 01:08:20] and perhaps reviewing these past recommendations. And I want to share something with you all, I want to share the final report from the 2020 term. This is Jason Baron's handwork, and he had laid out recommendations for last term. And one recommendation was, "Hey, we weren't able to get to extending some aspects of FOIA to parts of the legislative and judicial branch. Well, last term we did pass a recommendation, expanding the FOIA to parts of the legislative branch." But Jason has a second recommendation and because he's much more eloquent than I am, I'm going to read that to you. 

And this is this paragraph here, but his suggestion, "We have one further suggestion for the committee to consider rather than viewing their mission as one primarily involved in drafting many additional recommendations, members should spend a portion of their time devoted to publicizing past recommendations and measuring, evaluating compliance with them throughout the executive branch. Ways in which members may want to proceed couldn't include interviews with agency staff, conducting surveys and inviting speakers to the committee, public meetings, to report on the progress being made at their respective agencies in implementing the committee's recommendations. The committee may also want to focus on one or more agencies to examine how implementation of past FOIA Advisory Committee recommendations have been or will be accomplished." So I have to say, when I read this in the final report, I had an aha moment and I thought, "Gosh, I mean, we do have a lot of recommendations." We can all give recommendations. As a lawyer, I give recommendations all day long. And whether people listen to them or not is a completely other story. But in reading this, I felt inspired. And I thought that I and perhaps other committee members could contribute by evaluating the compliance of past recommendations.

I mean, this example in here of having agency staff come and share their unique ways of implementing certain recommendations would be a fantastic platform to share it with other federal government agencies, as well as the request or requester community. So I do echo Tom's suggestion and mark this Debra Wall's suggestion and Jason Baron's suggestion from two years ago about having a subcommittee to assist with reviewing the compliance of past recommendations. Can I just pull over? Let's see. Let's see if I can do this.

So I went to the dashboard and downloaded the information to an Excel spreadsheet, and did a pivot table to look at the different themes. And it's Tom talked about re-occurring themes. And you can see a lot of , there's a lot of recommendations, 51's a lot. But there are a lot of re-occurring themes, and one just going to throw it out. There was providing alternatives to a FOIA access. A lot of that has to deal with first-party requesters, individuals trying to get their own records. And it was really inspired by former committee member and professor Margaret Kwoka. She did a presentation,  which you can watch, it's available on the OGIS website. She's also written a book since then called Saving the Freedom of Information Act. And it's about trying to allow individuals to get their records without having to go through the FOIA.

And it might be really interesting to hear what other agencies are doing to accomplish this. For example, the IRS, you don't have to file a FOIA request to get your tax return. That's one example. There are a lot of recommendations regarding search technology and technology. And in the federal government, we're always looking for ways that can help us get out of voluminous requests and to do things with a shorter response time. And we lean on technology a lot. So it might be interesting to see and hear about how some agencies have implemented these past recommendations in their agency, raising the profile of FOIA within agencies, that is really helpful for federal agencies because when you have the support of your leadership, you can really make some great strides in the administration of the FOIA. 

And also enhancing online access of records, that had a significant number of recommendations: five. And that could be another topic that could be revisited. So I would just encourage you before the 14th. I know we have some time, but you may want to look over these recommendations, and if anyone has any questions, please feel free to contact me. I'm happy to talk about these, if anyone has any questions and if anyone has any questions right now, I will try and answer them. Okay. Well, I guess hearing none, I will turn it over to Dave. And I'll try and stop sharing Dave.

David Cuillier: Thank you, Patricia. Boy, I love that table you put together. That's great. Thanks for doing that. And I'll share here real quick. And yeah, I mean, as folks have mentioned Wednesday, next week, we're going to start working through what we want to do for the next two years. And one thing I really like what Alina and Kirsten have done is plan two meetings for this initial month. And I think that's new, and it's smart because I think I don't know about others, but last year or last term that getting started can really require a lot of time and then review. And maybe this term will be noted as the taking stock term because we do have so many great recommendations already out there. And so much research has been done. I mean, several terms looked at fees in different ways. And so I'm just going to briefly review some of the key things that were talked about last term and other informally and formally.

And then next week, maybe it'll get the juices flowing for us to discuss how we want to really focus, what we want do, what subcommittees we want to create, perhaps working groups. And maybe it extends into October. I don't know. I hate to say that Alina, but it might make sense to hone over the next month to make sure we get off to a good start. And last time Kirsten had collected ideas from individual members and threw them in a spreadsheet. And there were 49 ideas right at the beginning of the term. And I think she's going to do that again this term. And so she's going to collect all these things and we'll be able to see them. And who knows, maybe we can even look at that spreadsheet from the last term and that will give ideas. So coming out of the last term, formally in the final committee report, there were mentions of some things that the committee recommended the next term consider, don't have to, but could. One is the FOIA-like transparency in the judicial branch.

So Tom Susman did a great job doing, making the recommendation report basically on FOIA-like transparency for the legislative branch. And by the way, what I liked about what Tom did was he got it done early. He didn't procrastinate and wait, I think we approved that in 2021. And so we don't have to wait till the last minute, late spring of 2024—or whatever, whenever it is—to consider these. Vexatious requests were talked about quite a bit or voluminous requests or whatever you want to call it. A lot of discussion in the last term, I think in previous terms, and I think that's an issue. It still seems to be outstanding. And then lots of discussion of electronic tools. Great to have Jason on board. It would be great to have expertise in machine learning and proving the process. Well, those are specifically mentioned in the last report. But also in the other subcommittee reports, you'll see some other ideas and topics that were discussed, of course, the reimagining OGIS stuff.

And really, I don't think we expected Congress to turn around and pass those this year nor the Archivist to even agree to. And that's why I think we recommended more studies needed, sometimes a recommendation, especially one that's a little ambitious and outside of the box. Perhaps it's not low-hanging fruit, getting the discussion started and working through the issues and continuing forward can be a good strategy. Like Tom said, we tend to be incremental in the US to avoid violent overthrow and sudden change. At least we try, right? Most of the time. And so I suspect... I know I'm personally interested in continuing that research and looking and perhaps helping work with the Archivist feasibility study. Fees continue to be an issue like it had been mentioned. And then agency funding. I think we all acknowledge that agencies are underfunded. I mean, how can they carry out this important work and work that we keep adding on to them without the resources to do it.

And we have to figure out a way to do that. We also just talked about topics last term and previous terms like classification and proactive dissemination of declassified records. And the issue of privatized records and data when the government contracts out with private companies and then that information can be difficult sometimes to get at. And we also talked about what Tuan [Samahon] from, I think, Villanova coined "sharp practices." Kind of those things that sometimes people on both sides of the counter do for whatever reasons, frustration, trying to get things done on their terms that perhaps we might want to address. Whether it's requesters doing certain things that bog the system down or whatnot or agencies in the wording access. 

So where that goes, who knows? But it was talked about. And then additional ideas batted around lots of them. Archivist, I hope we don't have 21 more recommendations this term, but this is just again brainstorming, starting the talk. These are all topics that have been talked about of many requiring extra resources for OGIS or others. We have a lot of issues, training. There was talk of grading FOIA websites, agency websites, giving them maybe a rubric to give feedback what can be improved. Of course, that's resources. With FOIA online being decommissioned by the EPA, a lot of agencies are trying to scramble to figure out how to come up with good solid portals. And perhaps we could still help with that.

I think there's talk of handling public input as a committee. So perhaps we even have a committee process working group. One of those things is how to digest, collect the public input, distill it and distribute it among committee members. I know committee members are busy. To be honest, I doubt a lot of us had the time to actually read through every comment or solicit comment from a broad spectrum of people, including agencies. I think most of the comment comes from the requester community. I'm really curious what agency folks have to think. And they seem reticent to express themselves for some reason. But I would like to hear what they have to say. Perhaps part of that group might look at the bylaws and procedures of this committee as brought up previously. After so many terms, maybe there are things that could make it work a little better.

In the last term, sometimes we'd have something come up during a meeting without the subcommittee having a chance to approve it. And then someone wanting to vote on it. And that could be frustrating or difficult for people if they don't have all the information. As mentioned, I think as Patricia said, and Tom and others, I mean, clearly, probably, we're going to have to look closely and maybe have some folks step up to review all the previous recommendations, all the previous work, those white papers, and distill it for the rest of the committee to help us prioritize our two years ahead. And then I love what Alex brought up is, it's like, well, what's the impact of all this? Sure, we're advisory. We don't make the decision here. We just give advice to the Archivist and maybe to Congress generally, relayed by the Archivist, but I think Alex is right. There's frustration, like what good comes of all these recommendations? What's the impact? And can there be impact? I'm guessing the FOIA Officers have some restrictions on what they could do in walking up to the Hill and talking to [Senator] Leahy or whoever, [Senators] Cornyn, Grassley, or their staffs. But I can do that. And as well as many of the other committee members on that, is that something we talk about? How to... And maybe the Archivist wouldn't want that. I don't know, but that might be something we talk about. So all of those are just to get the juices going, the ideas that we're going to talk about Wednesday next week and hopefully add ideas to the shared file. And I'm really excited to see what we do this term because I mean, shoot, there's so many amazing minds here.

And I'm particularly pleased with the agency folks that I have been able to work with. Patricia, in particular, and Allison, very reasonable. You know, from the requester side, I thought they all came to work with horns and cloven hooves, but I found that was not true. They are human and smart, and reasonable. I mean, we actually had agency folks vote in favor of enforcement, binding authority by OGIS, which surprised me, but they see the reasonableness of coming up with better systems that make this work better for everyone. So with that, I'll end, open to questions or thoughts if anybody wants to chime in. Alrighty. Thank you. Alina, back to you.

Alina Semo: Yeah. Thank you so much, Dave, some really great thoughts. Actually, I would like to just gauge interest from the committee members about one thing that you said, which is to meet again in October. How does everyone feel about that? That a took me off guard, I don't know whether Kirsten and I have even thought about that. We could certainly try to arrange it. What are folks thinking about in terms of that? Do we need an October meeting after next week's meeting? Or should we reevaluate after next week? See how next week's meeting goes. I'm seeing nods on the ladder. Okay. All right. Does anyone feel like we should try to put an October meeting on the calendar and then we can remove it if it's not needed?

Tom Susman: Alina, this is Tom Susman.

Alina Semo: Yep. Please.

Tom Susman: It seems to me that this as David made an argument against an October meeting when he said that matters need to come up at the subcommittee level before he feels comfortable voting and considering with the full committee. And seems to me that October is going to be the month where the subcommittees will be organizing, and meeting, and deciding on what working groups, et cetera. And I say that with some commitment that I felt like there were an awful lot of meetings in the last committee, there were too many subcommittees and each subcommittee had too many working groups and task forces. And so if you really wanted to keep up with what was going on, you had to forego much of your day job. 

I mean, there were meetings every week. And so I'm going to suggest that we perhaps start off a little slower. They should not burn people out. And the first couple of months to subcommittees get organized and decide what they want to do. And then assuming that we can figure out what the right subcommittees are next week, and then we'll be ready for a substantive meeting, hopefully with some, maybe even some recommendations as early as next winter and spring.

Alina Semo: Tom, that makes perfect sense. I understand burnout completely. And especially for the government folks who are coming off of trying to wrap up everything at the end of the fiscal year, I think maybe they'll just want a breather. So I completely appreciate that. So with that, no October meeting, so no one should worry, at this point. But I just want to make sure that everyone has molded over everything that you've heard so far and see whether there are any questions or comments.

David Cuillier: Alina, if I may.

Alina Semo: Dave. Yes, please. Go ahead.

David Cuillier: Yeah. I totally hear where you come from, Tom. I think what I was suggesting,  or am, is if, after next week, we're still unclear on where we want to focus our subcommittees, and we want to figure out that more before December's meeting, maybe we decide at that point whether we need to continue to figure that out. Because I don't know if within a week we'll have it, but maybe we won't. And maybe we keep it loosey goosey in... And I don't know, I hope maybe we can nail it down. It seems like we've laid out a lot of good direction today to start the discussion.

Tom Susman: Yeah. David, let me just follow up on that. One more, emails that go to this group, and they go to Kirsten, and they also they're archived, but it seems to me that we could do more by way of group emails. With proposals, I mean, you and Patricia could send around a proposal what you think would be the three most important subjects among the various things listed and let people respond. And Alex will have his ideas and someone say what he thinks is a good and bad. And maybe by the time we get together, things will begin to coalesce a little more just by that off... Well, not offline exchange, but exchange in between the meetings.

David Cuillier: I think that's a great-

Alina Semo: Yeah. I'm waiting for Kirsten to jump in because she's going to tell us that that violates the FederalAdvisory Committee Act.

Kirsten Mitchell: Well, yes. What I was going to say, I guess a couple of things, I was going to say that yes, we need to do business in the public, but also after this meeting, I plan to send an email to all of the committee members asking them for their top two or three ideas, can be just a couple of words of what they would like the committee to focus on in the next two years and then compile them in the spreadsheet that David is referencing, which we did last year, and then bring that back before the full committee.

Alina Semo: And we'll post that information?

Kirsten Mitchell: Yes, it will be posted. The one from two years ago is posted as well. So that is there for all to see. And I didn't want to do it before this particular meeting because I wanted the new members to sort of get up to speed on where the committee had been before. And Dave, and Patricia and Tom, you did a great job sort of summarizing everything that's come before.

So I'm hoping that committee members are really... will take a look at the dashboard, will take a look at some of these resources that you all pointed to and then be able to answer that question, which I will ask via email.

David Cuillier: So we cannot reply all to the whole committee to an email that it violates the law, or what not? Even if that email is put online at the website before the public to all see, perhaps? Just wondering. I didn't realize that.

Kirsten Mitchell: Well, committee business needs to be conducted in the public eye. Clearly there are emails that go around among the subcommittees in terms of that's where a lot of the real work gets done. That is okay. The subcommittee meetings, the subcommittee communication, all of that, not public as you know, David.

No requirements for minutes, or transcripts, or anything like that. And that's, as you know, where the work really gets done. The issue becomes when it's the entire committee.

Jason R. Baron: David, it doesn't violate the law to send an email around to everyone, it just has to be public.

Kirsten Mitchell: Right.

Jason R. Baron: But email is a slippery slope. So I mean, I would advise that, because inevitably there's a candid conversation that really is, if it were within government itself, it would be (b)5 deliberative. This body is different.

Alina Semo: That was Jason Baron by the way, from the University of Maryland speaking. Thank you Jason.

Kirsten Mitchell: Yes. And one law that I did not mention was the Sunshine and Government Act, and we've really strived to-

Alina Semo: Backwards, Government and the Sunshine Act.

Kirsten Mitchell: Government and the Sunshine Act. Thank you Alina, I always fumble over that one. But we strive to do all our business, or as much of it as possible in the public.

David Cuillier: And when someone emails the entire committee, which happens, is that posted online? And should we refrain from replying all then?

Kirsten Mitchell: We do not post the committee emails online. We try to post as much as possible if there's a report, or some proposed recommendations, or a slide deck, or anything like that, that we post. So when people email that email box, foia-advisory-committee@nara.gov, that doesn't go to the whole committee. The whole committee doesn't see it. That's a NARA mailbox, if you will, that is used for capturing the emails regarding the advisory committee. But I think Jason was completely on point when he said email is a slippery slope.

David Cuillier: That it is.

Alina Semo: Okay with that. Dave, are you good? Okay. Maybe not as happy as you'd wanted to be with those answers, but we'll make the best of it. Anyone else have anything that they want to ask, or comment on before we turn to the last item on our agenda, which is public comments? I'm just looking around to make sure that no one has anything they want to add? Patricia has her hand up. Thank you Patricia.

Patricia Weth: Hey, Patricia Weth from EPA. I was just wondering if we past members shared ideas that we had for potential subcommittees and I was just wondering if some of the new members wanted to share if they had an idea for a subcommittee.

Alina Semo: So, basically you're putting everyone on the spot today, the 12 new members? Okay, got it.

Patricia Weth: I didn't mean to do that. I just-

Alina Semo: I don't think any of them are that shy, so it's fine.

Patricia Weth: Okay. I've noticed a lot of people come in with great ideas and I just thought I would throw that out there, so.

Alina Semo: All right. Without calling on anyone in particular, does anyone want to throw out anything?

Michael Heise: This is Michael Heise with the EEOC. Hopefully I don't step my foot in anything by saying on this, but what I've been thinking about is maybe this would be something about how the statute's written, but for Exemption 5, I always thought it was interesting, and I haven't had a chance to look at all of the recommendations and white papers, which is I hope to be my weekend project so that I have kind of all that by the 14th. So maybe this was covered in the past years.

But it's always been interesting to me that Exemption 7 has subparts, but Exemption 5 doesn't. Even though there are subparts in my opinion, because there's the deliberate process which, that's used a lot. And then there's attorney client, then there's work product, and then there's executive too.

So, it seems to me when professionals are drawing, redacting things and invoking (b)5, that it would be really nice to be able to say it was (b)-5-A, or (b)5-B, or (b)5-C because that's... And then we would know by the statute that A means deliberative, and B means attorney client, and C means work product. You could have all three of them, or something. Or whatever.

And then for metrics in terms of reporting, I think it'd be very interesting because then you can more easily capture how many times one, or the other, or a combination are being invoked by particular agencies in a given fiscal year. I just think it's a failing in (b)5 that it doesn't have that kind of granularity. That's it.

Alina Semo: Okay. Well thanks Michael for that comment. Bobby, that would mean we're reporting work for agencies, right?

Bobby Talebian: Well I mean, one just distinction to make between Exemption 5 and 7is, 7 does point to specific law enforcement interests, and (b)5 incorporates essentially civil discovery privileges, even though it's a bit of a process, attorney work product, and attorney client are the ones that are most cited. It also incorporates process communication privilege, and then theoretically any other civil discovery privilege that also meets the threshold.

So, I think there's a distinction and difference there, but we have asked agencies to report in the CFO reports on the different uses of exemptions as more of a survey to get an idea. So maybe depending on, I always like to see how that's going to help us in improving FOIA administration, but if that's a level of data that's helpful, that's something that maybe is good for discussion.

Michael Heise: And this is Michael, with EEOC again. Yeah, and I appreciate that. When I look at the yellow book, which for anyone who doesn't know, that's the guide book, right? It used to be yellow, now it's online.

So, I know in the guide book itself it kind of categorizes, there's a section on deliberative, there's a section on attorney product, there's section on work product, there's a section on executive. And I don't know how many other FOIA professionals think like this, but when I'm thinking of B5, those are the buckets I think of.

I mean there might be other ones, but maybe having it and I don't know, I like things to kind of be in different buckets. And so even though there is a difference with 7 and 5 in that way, if the vast majority of what agencies are doing is really invoking those big buckets that are in the yellow book as well, and I think everyone thinks of them that way, when courts write about (b)5, those are the things they're talking about, that maybe having those subparts and then maybe another subpart, that says other or something, and they can...

But I think that for me, it just would make more sense. Because I think of them myself as being kind of subparts. I see (b)5 as having subparts, that's all. But I get it. I get it that maybe it's not a value add, that's cool if it's not, and I think it would be.

And yeah definitely, there's other things beyond what Bobby was saying. So for whatever it's worth, that's what was on my mind. Thank you.

Catrina Pavlik-Keenan: So hi, this is Catrina Pavlik-Keenan and I was going to jump in, and I've got actually two ideas. One is, of course, and I think David mentioned, funding. We need funding for technology solutions, we need funding for offices that are not funded because they're not staffed appropriately, and so I think that would be a good topic to cover.

And my other thought is, we've talked about it in great depth and Alina, you and I have talked about this prior to this committee, about first-party requests and non-first party requests, and changing the policy and how we would do that. And so, those are two things that I think would be… are really... If we could make headway in that and make some recommendations for that and understand the process, I think those would be something that I would think that would be good working groups that we could make –maybe– good advances in.

Alina Semo: Okay, thanks Catrina for all those comments. So this is exactly the kind of dialogue that I hope we will be engaging in at our next meeting. And I know we have a hard stop at noon and I want to make sure that we have enough time for public comments. And I know that we've gotten a number of comments on the chat that I was going to ask Martha Murphy, our deputy director to read out loud.

So without further ado, we have now reached our public comments section of our meeting. So I want to just turn it over to Martha to read some questions out loud, and we will also open up our telephone lines.

Martha Murphy: Hey Alina, can you hear me?

Alina Semo: Yes.

Martha Murphy: Great. So first off, we've had a very lively chat on the YouTube, and we're getting a lot of questions, specifically about the FOIA, and the FOIA Advisory Committee coming through the chat on YouTube. So we'd like to refer folks to foia.gov for more general information on the Freedom of Information Act. Anything you really need to know about the background of the act and the agencies and how to file a FOIA, I think you can find linked off of foia.gov.

For more information about this actual advisory committee, we suggest you go to OGIS's website, which is archives and I'll spell that for you, A-R-C-H-I-V-E-S.gov/ogis. On the left hand side you'll see a link to our FOIA Advisory Committee and again, it's going to probably give you more information than you ever wanted to know about this committee and all previous committees. How they are formed, who the members are, and all the like.

So I just wanted to start off right there because I know we're very excited to see how many people are interested in what we do, but it's just too hard to answer all the specific questions in this forum. So we're going to point folks to resources for them.

Secondly, we have received 11 questions for Bobby and or Alina that the submitter requested that we read aloud. I think it would take all of our time if I read, and then you answered, and I read, and then you answered. So, I'm going to read them out now, and then give you both time to respond to anything that can be responded to today.

So if you don't mind, I'm just going to jump right in. For OIP Bobby, one word answer, "What is the dollar funding level that DOJ OIP needs to effectively accomplish its statutory admissions for fiscal year '23?" And also for OIP, "I am prepared to provide you 1000 to 2000 compliance inquiries of incontrovertible false FOIA reporting, and other potential malfeasance. Are you staffed to prepare?"

Moving on to questions for OGIS, Alina, again, one word answer, "What's the dollar funding level that OGIS needs to accomplish its statutory FOIA compliance and mediation missions for fiscal year 2023 with full mediation when sought?"

"Alina, why did you discontinue satisfaction surveys and how do you now validate your suspect claims that requesters are satisfied?" "Statutory basis is what for statement?" I guess, what is the statutory basis for the statement quote? "OGIS staff may need to consult with the Office of Information Policy of the Department of Justice before accepting the request for mediation." Not familiar with that statement, but that is the question.

The next question is, "OGIS has never engaged in mediation of my specific request to do so. Upon what authority is OGIS refusing mediation?" The next question is, "Why changed in 2022 on Ombuds report, statutory wording from 'offer mediation services' to 'help resolve disputes'? Per 5 USC section 552 (h)(3), OGIS shall offer mediation services to resolve disputes."

Next question, "Why changed 2022 Ombuds 'request for mediation' to 'request for assistance'?" Not the same, I think that's a similar question. "How many of the 2022 purported OGIS 4,100 cases went to mediation?" Next question, "OGIS and agency FOIA Public Liaisons routinely refused to engage in ADR, why does OGIS incorrectly report the number of OGIS cases, and number of times FPL assistance sought ADR in lieu of engaged in ADR?" Next question, "In my request for mediation, OGIS often says, 'File an appeal and the agency will address your issue.' Not with Congress intended, how can OGIS count such actions as an ADR case closed closure figures?"

And finally, "Recommendation number 2020-19, In the absence of oversight from Congress, FOIA otherwise lacks a sustaining enforcement mechanism. Why did OGIS non-concur with additional hearings and inquiries?"

So if either of you would like to address any of these questions, I'll be quiet now and let you do so. Bobby, do you want to go first?

Bobby Talebian: I can go first since you had a lot more questions than I did. So as far as funding, I can tell you that every year we evaluate OIP's funding to ensure that we can meet the demands of our mission and the department's been very supportive of funding OIP. Of course, we all, and I can't think of an agency, component, or organization that would say I can't use more resources. But, we are able to fully meet our mission and the department's very supportive. I'll give one example of that, and as it relates to FACA [Federal Advisory Committee Act] recommendations.

Just recently, the Associate Attorney General issued a memo to Chief FOIA Officers and General Counsels, advising them to use new e-learning training modules that we developed for the entire federal workforce, separate e-learning modules just so that every agency has these training resources. One specific for senior executives, one specific for all agency personnel that aren't FOIA professionals, and these are tailored trainings to them.

And then one very comprehensive e-learning module for FOIA professionals. And of course that required funding, and an important fund of that effort and over the past year, we're able to develop those training modules. So, that's just one example.

As far as compliance inquiries, we've always encouraged requesters to come to us if they see compliance issues. One, so that we can get a better understanding what the issue is, talk to the agency and give guidance if necessary, but also just our partnership with OGIS and hearing their feedback from their work helps us get that feedback to implement in our guidance, and our training and so forth. So yeah, I think that covers both those questions.

Alina Semo: Okay, thanks. I'm not going to be able to answer all the questions that were asked in part because one of the instructions that I always give at the beginning and at the end right before we start our public comment section rather of our meeting is that, we're we are not able to address individual requests, or individual issues related to individual requests for assistance. We just invite you to email ogis@nara.gov for individual questions.

With regard to OGIS-related questions and funding, at this point, the best answer is we support the feasibility study. And we believe the feasibility study that the acting archivist has accepted as a recommendation is a great way to study the myriad issues that were discussed in the white paper, OGIS 2.0, and all the issues that the committee considered in the last term and undoubtedly will continue to consider in this term. So, the feasibility study will hopefully answer a lot of the questions that have been raised. So with that, I would like to ask Michelle if she would like to give instructions for telephone line comments?

Michelle [producer]: Absolutely. So ladies and gentlemen, as we enter the public comment session, please limit your comments to three minutes. Once your three minutes expires, we will mute your line and move on to the next commenter. Each individual will be limited to three minutes each.

And with that, I do see that we have someone on the line for a comment. Robert, your line's unmuted, please go ahead.

Caller 1: Yes. Hi, this is Bob Hammond. Those questions were mine. Thank you for reading them. When my three minutes are up, I'm going to call back in. If there's no one else, please accept my call back. I wanted to clarify one of the recommendations that I made to the committee and that is when I talk about 15 minutes for public comments, that's 15 minutes total. So if there are five people that call in, they each get three minutes. One person, then you keep going until you use up 15 minutes.

Last year's committee was absolutely awesome. I think some of the most consequential recommendations including reemphasizing a requirement to post FOIA processing logs, I thought that was absolutely tremendous.

FOIA funding, look, it is absolutely... The biggest issue is there's no funding for OIP and there's no funding for Alina. I understand within their organizations, if they complain about it's going to be a problem. But Alina came to this committee last year and asked you to find money for her, including taking it away from agencies to fund OGIS mediation.

Bobby and Alina, this wasn't in my comments prepared, but you both got your tails kicked at the Senate Judiciary hearings. You're not doing your jobs, you don't have the money, you got great people, you just need about 10 to 20 times more. And I apologize for getting so emotional about that.

Two years ago, I emailed Alina offering to lobby Congress for additional OGIS funding, but never gets every dime it asked for in budget submissions while seeking grossly insufficient funds. That went to all stop.

Now I'm asking Congress for GAO and OIG audits of OGIS and OIP funding and mission degradation. It's been well received. I've had two conference calls with Senate Judiciary staffer this week at their request, and I have one more this afternoon. An adverse audit finding is a blessing if the reason is insufficient funding, attach the audit to next the budget and place the onus on OMB and Congress. And I asked a question for Ms. Wall and Ms. Gupta to take a look at that.

I believe that every agency budget should contain a line item for FOIA supported by what they will do to improve FOIA, that being increased staffing, their grade levels and reduced backlogs. And so if I make just one comment today, it is that the biggest issue is a lack of funding for OGIS and DOJ OIP. It's not Bobby's fault, it's not Alina's fault, but there's absolutely no FOIA compliance oversight whatsoever. None.

Bobby, you don't answer the compliance inquiries. You do about 20 a year, and you're not staffed to do it. Anybody wants a review of the-

Michelle [producer]: Mr. Hammond, thank you very much for your comments, your three minutes are up sir. Thank you.

Alina Semo: Martha-

Michelle [producer]: All right. I do not see any additional questions in queue.

Alina Semo: Okay, thanks Michelle. Martha has apparently one more comment. Martha, do you want to go ahead?

Martha Murphy: Sure. I'll be real quick. This is from an attendee from Germany. We received the following, "Since we like to promote Evidence Act at Germany, I'm interested in how the foundations for Evidence Based Policy Making Act of the US affects, or helps FOIA in the US. Is there any experience yet?" And I believe, Alex, you wanted to respond to this one.

Alex Howard: Sure. So thanks for this question. You can follow up afterwards. For those who aren't familiar, there was something called the Evidence Based Policy Making Act, it was passed in 2018, that President Trump signed into law in 2019.

It has a number of things in it that codify the idea of open government data, which is to say, making information in the United States government open and accessible by default, and published and stored, and created in a machine readable format. The most substantive impact so far has been through the Chief Data Officers Council, and the creation of Chief Data Officers who are going about the work, structure and information and making it more accessible, being good stewards of it, which in turn makes it easier to respond to FOIA requests.

The thing that many people are waiting for is guidance from the Office of Management and Budget on title two of the Evidence Act, which is the Open Government Data Act, which would instruct agencies what their obligations are under the law to structure information in machine readable format to make it accessible, which in turn would have a transformative effect upon the ability of FOIA officers to get information more quickly and to get it out.

It in theory would mean that we would no longer see FOIA officers sending in scans of tables, or scans of things in PDFs or TIFs. We'd see the disclosure of spreadsheets instead. That I think is something that hopefully we can discuss as a committee in terms of requesting OMB to do what Congress told it to do.

Alina Semo: All right, thanks Alex. Really appreciate that. I just want to wrap up. We have a hard stop today at noon as I indicated. I want to thank all of the committee members for your anticipated hard work for the next two years. I hope that the presentations from your fellow committee members, Tom, Dave, and Patricia, have gotten your creative juices flowing.

Our primary order of business for our next meeting is to have the very discussion that we started engaging in today, which is to talk about the issues that we want to take up. Select subcommittees and subcommittee co-chairs, so please think about volunteering to step up for that.

Spend some time in the next few days thinking about what these issues are and what you want to focus on. And I want to thank everyone today for joining us. I hope everyone continues to stay safe, healthy, and resilient. We will see each other again virtually in the same space at our next meeting, Wednesday, September 14th from 10:00 AM to noon eastern time. If there are no other questions and I don't have time to take any questions at this point, I am going to declare this meeting adjourned. We stand adjourned. Thank you everyone.

Michelle [producer]: That concludes our conference. Thank you for using event services. You may now disconnect.