Transcript

FOIA Advisory Committee Meeting (Virtual Event)

Thursday, December 7, 2023

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 panels, by using the associated icons located at the bottom of your screen. Please note, all audio connections are currently muted and this conference is being recorded. To present a comment via Webex audio, please click the raise hand icon on your Webex screen. The raise hand icon is located in the lower toolbar. You'll hear a beep tone when you are unmuted, at that time, you may state your name and question. Our attendees that dialed in on the phone only conference line, can dial pound two. You will hear a notification when you are unmuted, at that time, please do state your name and question. If you require technical assistance, please send a chat to the event producer. With that, I will turn the meeting over to Dr. Colleen Shogan, Archivist of the United States. Doctor, please go ahead.

Dr. Colleen Shogan: Thank you and good morning. My name is Colleen Shogan. I'm the 11th Archivist of the United States and it's my pleasure to welcome you here to the seventh meeting of the fifth term of the FOIA Advisory Committee. I do want to acknowledge that today is Pearl Harbor Remembrance Day and I would like to honor those who lost their lives on that fateful day, 82 years ago. 

The National Archive's mission to provide access to government records goes hand in hand with the Freedom of Information Act [FOIA] and this committee's work. As the nation's record keeper, we preserve truth and the lessons of our past and work to ensure that our holdings are available to anyone who needs access to them. We are also committed to furthering the principles of openness and transparency by providing guidance to federal agencies about efficiently managing their records. For FOIA to be effective, agencies have to be in a position to be able to locate and share the records that are being requested.

This committee is instrumental in helping us find more innovative ways to make that process work better. Just over 10 years ago, on December 5th, 2013, the second Open Government National Action Plan was released. It included a set of commitments to modernize and improve FOIA and its processes. One of these commitments was to create a FOIA Advisory Committee with members representing both requesters and the agencies that provide this important service. This committee was established the following year. Here we are one decade later and the committee has issued four reports that have produced 52 recommendations. I understand that the current term is evaluating those past recommendations and analyzing how agencies have implemented them.

I look forward to reading about what you have learned and reviewing any additional recommendations you may have, when I receive them, with the final report at the end of this year. Before I turn it over to Alina, I want to give kudos to the dedicated staff of the Office of Government Information Services, known as OGIS, whose hard work supporting this committee has made these 52 recommendations and today's meeting possible. Now over to you Alina. Thank you.

Alina M. Semo: Thank you so much Dr. Shogan. Good morning everyone, and welcome. As the Director of the Office of Government Information Services and this committee's chair person, it is my pleasure to welcome all of you to the seventh meeting, that's hard to believe, of our fifth term of the FOIA Advisory Committee. The Federal Advisory Committee Act, FACA, requires open access to committee meetings and operations. That means we will upload a transcript and minutes of this meeting as soon as they're ready, in accordance with FACA. The committee's Designated Federal Officer (DFO), Kirsten Mitchell, who as you know is on a detail right now but still with the agency. She and I have both certified minutes from the September 7 meeting, and those along with the transcript are now posted on the OGIS website, in accordance with FACA. Also in accordance with FACA, this meeting is public and I want to welcome all of our colleagues and friends from the FOIA community and elsewhere, who are watching us either via Webex or with a slight delay as always, on the National Archives YouTube Channel.

Committee member’s names and biographies are posted on our website at archives.gov/ogis, and click on the FOIA Advisory Committee link on the left hand side of the webpage. So I have some quick housekeeping notes today, and then we will launch into our meeting. We actually do not have any speakers today because we have a packed agenda with work that the subcommittees have been doing, and I think the committee members are very eager to hear from each other about all the great work that's been going on. I am advised that Tom Susman is not able to join us today and Bobby Talebian is also unable to join us. I don't think anyone is joining us late, everyone else is here. Dan Levenson, who is our alternate committee's, DFO, I'm going to ask Dan, have you taken a visual roll call and can you please confirm we have a quorum?

Dan Levenson: I've taken a visual roll call and I can confirm we have a forum.

Alina M. Semo: Okay, thank you Dan. Just a reminder to everyone watching meeting materials, for this meeting and all of our prior meetings are available on the committee's webpage. As I mentioned earlier, click on the link for the 2022-2024 FOIA Advisory Committee on the OGIS website. Just a few quick reminders that I always go through, during today's meeting, I will do my best to keep an eye out for committee members who raise their hand when they have a question or a comment or lean forward or wave frantically at me. Committee members may also use the all panelist option from the dropdown menu in the chat function when you would like to speak or ask a question, please chat with me or Dan directly, if you want to do that, we'll also be looking out for that. In order to comply with the spirit and intent of the Federal Advisory Committee Act, committee members should keep any communications in the chat function to only housekeeping and procedural matters. No substantive comments please, in the chat function, as they will not be recorded in the transcript of the meeting.

If any committee member needs to take a break today 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. Please send a quick chat to me and Dan to let us know that you'll be away and join us again as soon as you're able. Also, a reminder to all committee members, I am very guilty of this myself, so I will try to remember today, please identify yourself by name and affiliation each time you speak today. This helps us down the road with both the transcript and the minutes, both of which are required by FACA. Members of the public who wish to submit written public comments to the committee, may do so using our public comments form. We review all public comments and post them as soon as we are able and if they comply with our public comments posting policy.

In addition to the written public comments we have already posted, we will have the opportunity for oral public comments at the end of today's meeting, and as we noted in our Federal Register notice announcing the meeting, public comments will be limited to three minutes per individual. Any questions so far, from any of our committee members? I'm just looking quickly. Everyone looks engaged and ready to go. That's great. So now I'm going to go to our busy agenda for today, which we have posted on our website. As I mentioned earlier, no outside speakers today, we will hear from the committee's three subcommittees, Implementation, Modernization and Resources. Co-chairs of each subcommittee and subcommittee members will provide updates on their work.

I do plan to take a break today and we will see how the pace of the meeting is going. We do have three hours, so we have plenty of time, but if it turns out that we end early, then I will be happy to give the gift of time, instead of a Christmas gift or a holiday gift, to anyone and give that back to everyone if we need to end early. But we will still keep our 15 minutes of public comments at the end. Any questions before we get started? I am seeing no one raising their hand or chatting me. So next slide please, Michelle. So with that, I am going to turn things over to David Cuillier and Catrina Pavlik-Keenan, the Implementation Subcommittee, co-chairs for their report. David, over to you.

David Cuillier: Well, thank you Alina. Yeah, I'm Dave Cuillier from the University of Florida - Brechner Freedom of Information Project and thanks everyone for all their work, really appreciate it. I'll try to keep this quick going through what we've done, what we still have to do, and then maybe discuss a few items that will help the subcommittee as we move forward with some of these observations on past recommendations. So let's get going. Next slide please. Yep, okay, those are the members, all good. And let's go ahead and go to the next one. Okay, so just a quick review for those who might be new. Our mission is to review the past 51 recommendations from the previous four terms, to just see where they stand, has there been progress made, [if] not, where might we want to reemphasize further work? That sort of thing. Take a look and see what's worked well so far. And of course, we aren't assuming that these recommendations led to change, they might've. I mean, we'll try to find that and note it, if that happens, maybe things just happen to improve over time and we'll talk about that. And then we'll probably have a beefy report at the end, synthesizing all the recommendations, what's happened and what still needs to be done? All right, next slide please. 

Okay, so far to do this, we spent quite a bit of time reviewing the 51 recommendations, trying to cluster them, group them together in logical categories. And we gleaned a lot of the previous reports and studies that OGIS and OIP [Office of Information Policy] have already done in relation to some of the recommendations and that's been helpful. We did a survey last month of Chief FOIA Officers [CFOs] and we'll talk about that today [and] some of the highlights. And we're wrapping up an examination of Chief FOIA Officer reports, also relevant to some of the recommendations, to see if we can glean something from those as well. All right, next slide please.

Left to do here in our last, what, seven months, is to seek further input today from the committee and the public, if the public would like to chime in. Further discussions with OIP and OGIS. Next week we'll probably meet with Bobby Talebian and see how things are progressing with some recommendations in regard to OIP. We'll be interviewing agency staff and I think there's some interest in also talking to the requester community, to see their observations on how some of these have come through. And then draft that final report with recommendations and we hope by the next full committee meeting, March 5th I think that is, to have a lot more detail and maybe even broken down by recommendation and let people see kind of where we're at, perhaps. We'll have to talk about that as a subcommittee. All right, so I think we'd like to just get some feedback on some of the items. These are just some of them from the survey we conducted. So go ahead and go to the next slide please.

Oh, before we do that, one other slide here. This is worth noting, on the OGIS website, the federal FOIA Advisory Committee website, there's this great dashboard and it is so helpful in keeping track of these 51 and now 52 recommendations, since we have one from this term. And OGIS has kind of labeled each one, as either completed, in progress, pending, deferred, to rejected, and they're spot on, in how they code them. But we want to make a point, completed could be misleading. One recommendation might be OGIS should write a letter to Congress saying, "Do this, do that, the other thing." And so they do, they submit a letter and job done, that was the recommendation. Now whether Congress actually does anything, is a whole other story or whether there's traction on that particular topic, whole other story. And that's what our subcommittee's kind of trying to get at. Where's this issue stand, where's the gaps still, if there are gaps?

And so that's kind of how we're taking it to that next level. And that certainly does not mean we are contradicting OGIS’s interpretation of the recommendations, not at all. But we're just kind of taking that next step on the topics. All right, so let's jump into a few of these items and maybe talk about some of those. Next slide please. So this survey we did, and thanks for everyone's work on it, thanks to Bobby for sending it around to the Chief FOIA Officers. We got 22 agency Chief FOIA officers responding, filling it out. That's out of 120 agencies. So 18% response rate, kind of low in survey research. It's not terrible, I've seen worse, but we have to interpret the results accordingly and we may want to think, "Well, let's see, who's going to be likely motivated to fill this thing out?" Maybe it's the agencies that are really engaged in FOIA, really care about it, perhaps do a pretty good job trying to make things work.

So I think we have to take that in context. Could be wrong on that, but that would be kind of my guess, in how we interpret these findings. And they're still helpful, they still give us a sense, but they're not perfect and we shouldn't get too hung up on the specific percentages, but if there's a lot that say one thing or a lot that say something else, that could be helpful and we will follow up with the interviews and try to tease out the details and the nuances. All right, so let's get to some of the things that popped out. Next slide please.

Okay. So there were some items, where it appears there's a lot of good stuff happening. So for example, almost all the agencies said they follow the OGIS reading room guidelines. OGIS provided guidelines, that was one of the recommendations, on making a good reading room and the agencies that responded said, "Yeah, they take those into consideration." Now whether they do and whether all 120 agencies have really good reading rooms, we might want to look at that further. That could be as simple as just someone going through and looking at them all. But for the most part, that's promising. Another example of something that looks good perhaps, are agencies providing simple explanations on how to file a request.

So agencies, at least the ones who responded, perceive that they're doing a good job doing that. Again, whether they are or not is up for discussion and could merit further work, but it gives us a starting point. And did any subcommittee or committee member want to chime in on these at all or other items that turned out well? And I must say, by the way, the complete survey summary is provided on this meeting website, so people can look at all the details in the PDF document provided. Did anyone want to chime in on this before we get to some of the other items which are probably more discussion worthy? Nope. Good. Okay, well let's get to some of the other things, which will probably elicit more discussion. Next slide please.

All right, so there were some indications of still some gaps. Back up, that's the end. So I'd back up another one, maybe one more back and go one more back just in case. Okay. Yeah. Okay. Forward one please. Perfect. Okay, so these gaps, and these are just an example, there are others in the results, you could take a look at it, but these are probably the more prominent ones. And we're curious what committee members might think about some of these. So some of the recommendations over the years involved the Glomar response, neither confirmed nor denied, and we asked, "Do agencies provide information about this on their websites?" And about two-thirds said, "No." And about a quarter said, "Well, that's not even relevant, we don't even issue Glomar responses, so it's not relevant."

And only a few said, "Yeah, yeah, we put info on our website." So it appears that this recommendation is not really being followed by agencies, closely. And there are a couple other Glomar related recommendations in the batch, which also probably might be a little thin. And I know Adam Marshall, I think the Reporters Committee for Freedom of the Press has been working on researching the Glomar. And maybe you want to chime in on that, not to call you out or if any other committee member wants to talk about Glomar at all?

Adam Marshall: Hey, thanks Dave. Yes, the Reporters Committee for Freedom of the Press, where I am a Senior Staff Attorney, has been continuing our work to research the prevalence of Glomar requests across the federal government. It's actually produced another potential recommendation, that the Modernization Subcommittee is going to talk about later on. But I think that we are working towards publishing our first set of initial findings, early next year, which will include data from a lot of agencies, but not every agency, sadly, we're still working on that, but stay tuned for early 2024.

David Cuillier: Great, thank you. Yeah, certainly that's going to be important and we look forward to hearing that recommendation, particularly just tracking Glomar requests. Right? And I think that's the focus of your study, just see, do the agencies even track these things. So good. Excellent. And again, if anybody wants to chime in, feel free to do whatever we're supposed to do, raise our hands or whatnot, which I probably won't see, so Alina might have to keep a watch out. Another thing, FOIA performance standards and all employee appraisals. So every employee in an agency, being appraised to some point on how well they follow FOIA or apply it and mostly, no, not in there. Perhaps in of course, the appraisals of FOIA employees, but not all agency employees.

And so that begs the question, do we as a committee say, "Hey y'all, keep on this, make this happen or double down on it?" Do we cut bait and just say, "Well, whatever, it's not that big of a deal. Pick our battles or something in the middle." And then these are the kind of questions that we have to figure out over the next several months. And if anybody has any thoughts on this particular one, feel free to chime in here. We've got a hand, Catrina?

Catrina Pavlik-Keenan: So I would say my opinion, David, is to double down on it. One of the things is, this is a law that is in place and one that everybody has to comply with, whether they are a FOIA professional, directly or indirectly, because records have to be pulled from multiple offices and different parts of organizations. And one of the things at the department that we have seen, is that we are addressing this in our performance appraisals for people who are outside of the actual FOIA profession. Because of the fact that we can't do our jobs if others don't help us do our jobs, we can't meet the mandate if they're not held at a level to ensure that we need it. And so this is something that I personally feel and I've taken a personal interest in this at the department, for that kind of thing, and I really do think it is something that we should look at very seriously. But I will stop there and heed the floor for somebody else who'd like to speak.

David Cuillier: Wow, thank you. This is Dave Cuillier, again. Great comment. I'm taking notes by the way, as we go. I see Paul and Michael?

Alina M. Semo: Paul you're on mute, so whatever you said, you have to repeat.

Paul Chalmers: Sorry, I only introduced myself. This is Paul Chalmers from the Pension Benefit Guaranty Corporation. I think on the employee review standard, if that's something that the committee's interested in pursuing, there are a number of practical issues that need to really be thought about in doing it. For one thing, the person who's doing the review of the employee, they may know a little bit about the FOIA, but they're not a FOIA professional. And so they're not going to have, necessarily, the metrics or the information to provide a rating. You'd have to come up with some way of communicating with the supervisor about what ratings should be given or some way of providing input. There's just some practical issues like that, I think that need to be considered and at larger agencies it's going to be more of a problem than in a smaller one. It's just something to think about.

David Cuillier: Good point, Paul. Excellent. Yeah, something to be considered, perhaps in our follow-up recommendation if we make one. Excellent. Michael?

Michael Heise: Hello, this is Michael Heise, Assistant Legal Counsel for the FOIA Division at the EEOC [Equal Employment Opportunity Commission]. So with respect to what's on the screen here with the gaps, so the Glomar issue, I think that's something that's very important too. I think that as an investigative and enforcement body, at least on the civil side, the EEOC conducts investigations and as a result, Glomar is relevant for FOIA purposes at times. And I personally think, as a FOIA professional, that it would be a very interesting metric to get the request from the community, have as much color as they can get from agencies, in terms of how often that case is invoked because it'll lead to interesting conversations between the requester community and agencies moving forward. We have to kind of get the data, and I know we're already kind of on the road with that, but with over half saying, no.

I will say though on that first point, I think other folks on this committee have mentioned this, is that there might be at this time, a bit of a delta between the desire or the interest or the intention of agencies to provide this kind of Glomar information and the technological systemic wherewithal, that an agency might have, vis-a-vis, whatever FOIA processing system they're using. So there could be a little bit of a curve, some time, while that happens, at least for us, it's not necessarily as easy as kind of clicking something and then we can run a metric at the end of the year and provide it in an annual report.

I'm sorry, I know I'm talking a bit, but the FOIA performance standards and all employee appraisals, that is very interesting and I think I look forward to having additional conversations on that and as well as the agency leaders with annual FOIA reminders to employees. I'll just tell you from where I sit, and quite frankly on behalf of EEOC, I think is, that, providing visibility to non FOIA people, who let's face it, they're the contract creators, right? Now, after I say this, everyone's going to send a FOIA request to me for my stuff, but most people aren't interested in what I do, as long as I'm sending out the documents.

I don't create content. I'm not the meat and potatoes guy for the EEOC, I don't do that core mission. My job is to knock on people's doors and kind of get the relevant documents that they want. It makes my job easier when everyone internally is on the same page. Now, I'm not saying they are or aren't. I'm just saying, that's the reality I think every FOIA professional across the government has. We're not contract creators. We knock on doors for the paper, and to the extent that agency leaders can send reminders to employees and maybe attach a performance metric, that would be probably a game changer, in terms of the procurement aspect of the FOIA processing system, within the agencies themselves. Thank you.

David Cuillier: Thank you, Michael. I see Alex and then Patricia, please.

Alex Howard: Thank you for all of that, David. I particularly appreciated the reflection that only about a fifth of the agencies got back, which definitely introduces some selection bias. I think that would be the right term, for who is sharing what they're doing and what they're not. Going back to that last slide, I reflected how many of them say they're doing something and how many of the remaining four out of five agencies that didn't respond, would say that they are doing it or not, with respect to what they're putting on their websites, what they're complying with. I just had to reflect on the first one. Did any agencies neither confirm nor deny what they do with Glomar info? I guess that's the closest to a FOIA joke we've got.

I did want to suggest that we offer some ways forward in the survey for recommendations, and that's something we can talk about a little bit later, in terms of modernization and some next steps for improving the FOIA, which is our remit. The thing that I think we've talked about in the past at subcommittees or even with the committee, is to have some level of appraisal of performance from the FOIA requester, which is to say, could there be a question appended to a response, a disclosure? "Were you satisfied with this response or not?" One of the other open government commitments years ago was the National Petitions Platform, the so-called, We The People, on the Obama White House website. It was up on the Trump White House website for a little while. And that would actually follow up and say, "Were you satisfied with the response to this petition?"

That kind of feedback from the requester community could inform performance reviews, even if the requester wasn't happy about the amount of disclosure, they might be happy about the way the process was handled. Did they hear from someone within 20 days? Did they give them some understanding of what was requested, at least what wasn't? Did they help them refine their search? All the things that make a difference, and this is something I think a lot of requesters have experience with elsewhere across our American society, just about every service now, has a rating that's from the other side. People who ride in an Uber know that there's a driver rating and a passenger rating.

That's the kind of thing that I'd love to see. I think a couple of the things here with the gap, I'm really glad you called them out. The more that FOIA is seen as the responsibility of every person in the agency, not just the FOIA people, the better this will potentially, I think, shift in terms of the relationship, the effect of FOIA, the carrying out of it. And the more that the common requests that people are making for first-party requests are pulled out of that process, the better that I think we'll be serving the public, as a system of infrastructure.

And I'll say finally, that the last bit on AI [artificial intelligence] to improve processing, the fact that three-quarters said no, very interested in the others that said, yes. Like, "Oh, that's very interesting. That means there's already experimentation." And one of the most important things we can do as a committee, I think, is help agencies know what the other agencies are doing in this area and offer some guidelines that are, I think, coherent with what the administration is saying from NIST [National Institute of Standards and Technology] and OSTP [Office of Science and Technology Policy], the recent executive order or the OMB [Office of Management and Budget] guidance that just went out. That gives them some thinking about how to apply AI in an effective and legal and privacy respecting and [in] an open manner. Because fundamentally, if we let AI processing be put in a black box through AI, that could be problematic. But if it's also made much more, I think, constructed through those processes in a way everyone can understand, it might improve the administration, which is what I think we're after. Thank you for doing this work on the survey and I'm hopeful that we'll get full results from it over the coming months.

David Cuillier: Thanks, Alex. Looks like Patricia has her hand up.

Patricia Weth: Hi, good morning. I'm Patricia Weth from EPA and I just wanted to touch base regarding the item that you have up here about FOIA performing standards in all employees' appraisals. I do believe that FOIA is everyone's responsibility, but I think...I don't know if the intended goal to have performance standards in employee’s appraisals is going to meet the mark. Many times, all of us federal government employees, we create agency records all day long just in our emails, in addition to reports and other documents that we create. I think, to me, I think one of the best approaches is to have leadership support and leadership promoting the importance of FOIA as well as training. I think those two features really will help promote FOIA at an agency. I remember probably 12 years ago or so when I was working at the Department of Energy, OGIS came out with a suggestion that leadership send a memo throughout the agency to remind employees of the importance of FOIA. At NARA, they did just that based on OGIS's recommendation. I was at the Department of Energy at that time and the Secretary of the Department of Energy sent out such a memo, and I saw a big shift in how non-FOIA professionals looked at FOIA after the Secretary sent out that memo and said that this is to be your highest priority. I think that might be a route to go, and I know, in the past, this committee has come out with recommendations on that point. 

Another item to share about leadership and their importance in encouraging the importance of FOIA at an agency, during Sunshine Week, I know some agencies such as the Department of Education, Department of Commerce, they host week-long events for their employees, highlighting the importance of FOIA with different trainings and different presentations. That is my two cents on that note.

David Cuillier: Thank you, Patricia, really appreciate that. All of those, great comments. We have two slides after this one, so we'll try to get through the rest of these in the next 20 minutes, give time for the other subcommittees. I know they have a lot. Before we move on from this slide, I have to note it looks like a lot of agencies really aren't looking closely at commonly-requested records from first persons that could be moved out of FOIA, and that was a topic of recommendation over several terms, and I think it shows that there's a lot of work to be done with that. Professor Margaret Kwoka from The Ohio State University who has written on this and studied it, and was on the committee, would probably urge us to keep on this. I just wanted to note that, as well, on AI. Alex, I think you made a good point. Five of these agencies said they're playing around with AI, and that surprised me. I'm not sure that's a gap that could really be ruled as a promising progress, given the relatively newness, but some of you may have thoughts on first person requests and AI. I'm teeing you up, Jason, if you want to say anything on any of that. If not, that's okay. Patricia, did you still want to say anything? I see your hand up.

Alina M. Semo: I see Catrina's hand is up, too.

David Cuillier: I do, yeah. I see Catrina. Catrina, go ahead.

Catrina Pavlik-Keenan: Okay, I just wanted to say, and Alina-

Alina M. Semo: Can you just introduce yourself again?

Catrina Pavlik-Keenan: I'm sorry. I'm Catrina Pavlik-Keenan and I'm the Deputy Chief FOIA Officer at the Department of Homeland Security [DHS], and we are actually launching a study on first-party requests, Alina and Bobby are part of that study with us, and we're looking at that. That was one of the recommendations that came out of the Homeland Security Advisory Council that reports to the Secretary of Homeland Security. We are working on that, that's something we're working on this year. Also, we are...to talk to AI, we are actually in the process of looking at creating some different kinds of AI and machine learning, both of them are different things, for us to help do some of the more administrative functions within the department, so that we can free up our processors to do the more analytical portion of their job.

For instance, closing out FOIA requests, and things like that, that can be done by a machine. Also, one of the things we're looking to develop is actually a bot that...it's a little chat guy that can go in and help you when you have questions about how to submit your FOIA requests, and things like that. We're looking to create things like that, make that experience for the requester a little bit easier. We feel like, because we're not...resources that we, of course, need and everybody needs in the federal realm to do FOIA, it's not looking to probably be increased greatly, even though we continue to say we need that. We've got to find ways with technology to fill those gaps that we need in order for us to be able to do processing.

We had an increase last year in FY23, the numbers at the department, by almost close to a 100,000 requests from our previous year. Without getting any more FOIA staff, we have to find a way to be able to do that extra work and do it timely. That's some of the things that we're looking at to try to address that need. It's very interesting, I'm very excited. I'm learning a lot about AI and machine learning my own self, so as we're going through this journey, so I think that it'll do twofold. It'll help the customer experience and then it also help our processors to be able to do, really, more of the focus work they need to do and less of some of the administrative things.

David Cuillier: Okay. Thanks, Catrina. It looks like Alex has his hand up.

Alina M. Semo: Alex, you're on mute.

Alex Howard: It's 2023 and I'm still finding the mute button.

Alina M. Semo: Introduce yourself again.

Alex Howard: Alex Howard, Digital Democracy Project. I appreciate very much the news that DHS is moving forward on the recommendation from the subcommittee and open government. That is particularly important, I think, given the importance of the immigration records that are at USCIS [United States Citizenship and Immigration Service]. To the extent that DHS is able to do that, I think it'll be a tremendous win for everybody in the FOIA community to see that built out, particularly if it's a secure privacy protective service that enables people to get prioritized access to records that are relevant to their immigration status, something I think people care about in many, many different contexts. I just wanted a quick shout-out, Bobby Talebian from DOJ [Department of Justice] isn't here. He might otherwise be able to reflect on what the Department of Justice is going to be applying AI to record search in their so-called Wizard, which the public can find now at foia.gov/wizard, which enables people to do searches across many of the common categories.

It certainly seems likely that every state and city is going to have something like that that looks across all the open records that are in reading rooms, that are public-facing already, that help people see what's already out there and to the extent that DOJ is able to work with DHS and other agencies in ensuring that agency records have the right metadata and are structured online, so that they can be findable, I bet these tools will get a lot better. Thank you for bringing that up and sharing what DHS is doing there, that's a great update.

David Cuillier: Thank you, Alex. This is Dave Cuillier again. All right, so let's move to our last two slides for our subcommittee. Next one, please. We do have some challenges and things that we noted that there doesn't seem to, at least my impression, be a lot of movement on yet. We'll have to decide as a committee, again, do we double down on some of these things, or do we cut bait? Or what have you, right? One of those is the recommendation from last term, that Congress should enact FOIA-like laws for some of the legislative records like Capitol Police, and what have you. Tom Susman wrote that recommendation, did a great job, and I don't think Congress has done this yet. This is an example of one of these recommendations where I think OGIS was asked to write a letter to the Archivist or Congress to urge this and nothing's happened.

There are several of these recommendations over time, where Congress is asked to do something and things haven't moved forward. As well as 508 compliance, making sure that public records are released in a way that everybody can read or hear them despite any barrier they might have. I'm just going to list these and then people can address which one they want. One centralized FOIA platform, I think there are strong feelings about this... There are folks who think really the federal government should have something that works, that is simple, one place you could go to, and effective and works well, and we're not there. In fact, we might've backslid this year, but people can comment on that if they want.

My little baby, Strengthen OGIS, from last term, that's still waiting [for] more study and funding for a study on the repercussions of giving enforcement powers to OGIS, or some other entity, as an alternative to litigation or in addition to litigation. Anyway, these are some things that just really haven't appeared to have gotten a lot of movement, but I welcome input, thoughts on where this committee might go on some of these topics. I see a couple of hands coming up. All right. Let's see, I'm looking for new speakers. Eira. Eira, you're a new speaker. How about if you go?

Eira Tansey: Hey, thank you. This is Eira Tansey. I have a quick question, I was looking through the survey responses and I noticed that you said, of the respondents, it was a range of small and large agencies, and I know that there's not cross-tabs and maybe that's appropriate, because you don't want to be able to reverse engineer which agency was saying what, but are you able to share whether you saw any patterns, were small agencies doing some things that large agencies weren't? Anything you could share about the cross-tabs, I think would be really interesting.

David Cuillier: This is Dave Cuillier. That's a great question, Eira. I thought about doing that and now I will, because just skimming the data, I did notice things popping out, definitely. When we get to the next slide, I know part of that, that we had a great cross-section of large and small agencies, and the small agencies do talk about how a lot of these recommendations just aren't feasible for them, or make sense. If they're processing 12 FOIA requests a year, does it really make sense to set up some elaborate system, or if they're just a small agency with three people, do they really need to do some of this? I think that's something that is a really good point, we're going to talk about, and if it makes sense... Yeah, I'll go through and see if I could synthesize some of that for our future meetings. Thank you for that. All right, let's see. We had Michael. Go ahead, Michael.

Michael Heise: Okay, hello. Michael Heise, and I am still the assistant legal counsel for the FOIA division at EEOC. Can you go back to that last slide that had the little list of the 508 and the other things?

David Cuillier: Yeah, yeah, let's back up.

Michael Heise: I just want to mention on the first three, I think these are all challenges and I share with you, David, the Strengthening OGIS I think is a great interest to, I would think, everybody, both on the agency and the requester side. Congress should enact FOIA-like laws for some legislation. I'll be honest, I'm a rookie here at the Advisory Committee, I wasn't around when Tom Susman made that recommendation, or at least drafted it, and I haven't looked at it recently, so this might be a little bit coming from ignorance, but what I will say is just what strikes me in my gut, that trying to think... Maybe this is a parade of horribles, but what are all the things that are attendant to that? Let's say it actually was a thing. Someone in the public can submit a FOIA request to Congress with a capital C, just them.

What happens when, if, let's say, there was a constructive denial of that request? Then what? I'm thinking of, how does that work with... Agencies get sued all the time, that's just part of the program. The executive enforces the laws, the Congress passes, and the Supreme Court says what the law is, and that makes sense that agencies would have to defend themselves before a court and before the Supreme Court, but what happens when you have a suit where the lawmaking body and... At least as far as I understand things, maybe Capitol Police, maybe there's some carve outs, but just Congress with a capital C, if you wanted it for some congressional subcommittee's internal records, or something. Okay, is the Supreme Court, is any court, really going to get into that in a lawsuit? I don't know. I would think courts tend to... It's one thing to say, "Congress, that law you passed was unconstitutional," but they usually do it via the executive trying to enforce it, I think. What happens when you move that out? I don't know if courts are going to want to get into that. I don't know. 

508 compliance, hugely important. I think it's a resources thing, too, because as much as I would like this to be true, there's not an easy button on anyone's computer to make something 508 compliant. Rule of three, you get hit with the rule...not hit, but you get rule of three going on, so now you got... FOIA says you have to post it, 508 says, "Yes, but you have to post it, so that it's compliant." It's easier said than done sometimes with certain kinds of records, that's just a reality, I think, across agencies. If that's a challenge, I think that it'd be interesting to talk about… Maybe this is where the Resources Subcommittee, to talk about whether or not there is a need for agencies to have funding specifically tied to making sure that there is enough wherewithal in terms of resources for agencies to get rule of threes, or whatever they want to affirmatively post under a section, a release thing, that they have the wherewithal to actually make that happen, because it's not an easy button. 

One centralized FOIA platform, all I'll say with that is - fascinating issue that I think we'll spend quite a lot of time talking about, and I'm not sure where I'm at with that myself. That's myself, not speaking for the EEOC in that particular regard. I think it's very interesting, but I think that... I don't think this, I know, the federal government is not a monolith, there are certain agencies that, for example, have all kinds of declassification issues. I don't know. I see the federal government as a whole bunch of different suits that it's better to have bespoke rather than just grabbing it off in Nordstrom's rack, just getting it. I've said this before in other areas, maybe there is an ability to bucket certain federal agencies that are similarly situated. Maybe ones that don't have declass, maybe ones that this and that and the other, where there can be a FOIA platform centralized, as it were, for that particular tranche of agencies. I don't know if the EEOC...I can't remember anything having a declassification, being in the same shoes as the CIA. That, I think, is the big wrinkle that would have to get ironed out. Thank you.

David Cuillier: Hey, thank you Michael. I know, Alex, you have your hand up, but I'm wondering... I thought Lauren... Yeah. Let's go with Lauren and then Alex. We have about five minutes left, so we can hit the last slide after this. Go ahead, Lauren.

Lauren Harper: Yeah, I wanted to address... This is Lauren Harper from the National Security Archive. I wanted to address Michael's comment about the Congress should enact FOIA-like laws for some legislative records, then I'd love it if Alex probably talks about the FOIA platform, and I'm sure I'll have more to add on to that. But Michael, if I remember correctly this recommendation, I don't think it was referring to congressional committees writ large, I think it was a public route mirroring the declassification authorities that the Senate Select Committee on Intelligence and the House Committee on Intelligence already have for releasing classified national security information that's in the public interest. I think it was fairly focused if that helps illuminate or inform any thoughts you might have on it, I don't think it was a writ large kind of thing. The courts already do engage in those classification challenges with agency records. I think the bigger question is, is Congress going to enact a law? I think there's more to it there, but I just wanted to flag that.

David Cuillier: Yeah. I was actually looking for the recommendation, I don't know, Alina or Dan, if you could throw it in the chat with a link to the report that Tom wrote, where it really goes into detail of what he intended and that they intended it. That might clarify, if people have questions. Those questions came up last term too, so very good.

Alina M. Semo: We could definitely throw it in the chat. I just wanted to say, to Michael's point, and just to remind everyone-

David Cuillier: Wait, who is this talking?

Alina M. Semo: I'm so sorry. This is Alina Semo, your chairperson, Director of OGIS, but also the chairperson to this committee. Thank you. See? I said I'm always guilty. I just want to remind everyone, when we were debating and discussing this particular recommendation, it was right after the January 6th incidents that occurred, I didn't want to use any other word, so there was a lot of interest in getting access to records from the Capitol Police. The focus of the recommendation is really on offices associated with Congress, not necessarily Congress itself. I don't think they would ever want to submit themselves to FOIA, honestly, or FOIA-like procedures or any of their committees or subcommittees, so it was focused on other offices. Michael, your points of constitutionality issues and Supreme Court review I don't think would come into play and just wanted to make sure I address that. Thank you. 

Lauren Harper: Thank you, Alina. I stand corrected, thank you.

David Cuillier: Great. Dave Cuillier again. Alex, a short comment before we go to our last slide?

Alex Howard: Very short, lightning round. Yes, FOIA-like laws for some legislative support branch agencies, GPO [Government Printing Office] already does that, GAO [Government Accountability Office] already does that. The Capitol Police Department is one of the... It's within the top 10 police departments in the country, it absolutely should be subject to the same transparency and accountability provisions of every other one. Full stop. That's my view as someone outside. There's no reason to exempt them from that, because they happen to work with a legislative branch. I will note, 46 states and the District of Columbia, which should be a state, have a FOIA-like provision applying to the legislative branch. Many other countries have that apply to them. Now, it's possible that Congress will never do that to itself. It is, I think, important for me as a committee member to say that my personal feeling is that they should, not just the Capitol Police and the support branch agencies.

It does not mean they have to disclose everything, they could apply the same exemptions, but it is very clear that other legislative bodies across the United States can and do apply to themselves. That's the first thing. On 508 compliance, if records are created in an open format to begin with, if data is structured and open as is mandated by the Open Government Data Act to begin with, it is accessible to begin with. Full stop. 508 compliance is not a problem if things are created open from the beginning. I definitely think we should be looking at Strengthening OGIS and thinking about how OGIS or the DOJ and other entities could be more independent, have more capacity, have more funding, and have more ability to engage in mediation in the way that ombuds in other countries do. I think that's a very fruitful direction for us to go in as a committee. Finally, I would just say, as far as the centralized FOIA platform goes, for people who've been paying attention, the US just sunset its centralized FOIA platform that was FOIAonline.

That was a commitment in the Second National Action Plan for Open Government, the same one that created this committee. Improving it was a commitment in the third national action plan and I would just say, if you go back and read the National Action Plan, it notes that there's a 100 different agencies subject to FOIA. For the average requester, that's a lot of time searching for them, going through a unique process. The administration committed to making a consolidated portal that would enable you to submit a request to any agency from a website, which foia.gov now does, and then including more tools to improve that in the third one. Think about what they were committing to back, this is 2015. If an administration were committed to improving this, leveraging the current National Action Plan, which DOJ has been working on, implementing that wizard was a commitment in there, to improve things like adding features, right?

A guided request tool, which they've done. Tracking the request status, reporting methods for agencies, contact information that's mandatory, being able to submit through email and correspond through email, and other tools that enhance the public's ability. I don't think there's any question that foia.gov is going to be the future, because FOIAonline is the past, but as a committee, I hope that we think about how foia.gov will interoperate with all the case management systems and all of the FOIA libraries and elevate this as something that the Office of Management Budget should be funding and overseeing as part of a cross-agency priority goal in FOIA like they did before. And I'm very grateful that we're continuing to talk about it, because I think it's part of the long-time vision for how FOIA should work in the US.

David Cuillier: Okay, so we're a little over on time, I think, and I want to make sure other subcommittees have...because they have, I think, some recommendations they're proposing. Real quick, Lauren.

Lauren Harper: Yeah. Lauren Harper, National Security Archive. I'll be super quick. I think, regarding the centralized FOIA platform, there are some really tangible ways to improve it that are farther out and easier to tackle than the things that Michael and Alex were talking about, and this includes every agency highlighting foia.gov on the website, it's something a third of agencies still don't do. We're also talking about one national FOIA portal, a lot of agencies have their own standalone siloed portals and things like the password and logins for FOIA requesters are different for those siloed portals and the national FOIA portal. These are practical steps that I think it would be great to look at that would make it less confusing and cumbersome for the public.

David Cuillier: Okay. Thanks, Lauren. Michael, one sentence please.

Michael Heise: Okay. Michael Heise, EEOC comma... What I'll say is that, with the 508, Alex, I take your point, I wonder if what we need to think about for the Modernization Subcommittee, which maybe is a good segue to that, is talking about... Because, again, FOIA professionals, we generally knock on doors, we don't have the paper right in front of us necessarily. A recommendation that agencies, if they're not doing it already, create, they take their blank page, whatever they're doing in terms of creating an agency record, that they make it in such a way that's 508 compliant, because I can tell you that when we knock on doors, we get records as we find them. I think that this is the nexus between FOIA, I'm knocking on doors, and the content creators creating the stuff that everyones interested in. Maybe a recommendation goes to the non-FOIA people in agencies via this committee saying, "Recommendation is agencies need to, 100% of the time, create records in the way that is consistent with what you talked about in terms of the law.” I would be interested in talking further on that. That's it, thanks.

David Cuillier: Okay, thanks. All right, let's go to the last slide. This was interesting. This wasn't specific to a recommendation, but we wanted to find out, do agencies even...are they aware of the recommendations? Do they take them into consideration? While most of these agencies who responded said they've heard of the committee, about half didn't know the committee-issued recommendations or didn't know what they were about. That's something we, as a committee, might want to talk about this spring to prepare recommendations. Maybe OGIS folks have recommendations on this, because if these committees are going to all this work and no one's seeing it, then that seems a little frustrating. We might want to talk about... We don't do that today, but I want to plant that seed, because I think we should talk about that maybe at the March meeting. What should the committee do or NARA, or what have you, or OGIS to make sure all this work is being seen and heard? Just a thought.

All right, so this is Dave Cuillier, director of FOI Project signing off. Take it away to the next subcommittee. Thank you, all, for all your work. You're all wonderful.

Alina M. Semo: Thanks, David. You're wonderful. We really appreciate all of your work. This is Alina Semo again, chairperson. Michelle, next slide, please. I want to hand things over to the Modernization Subcommittee, Jason R. Baron and Gorka Garcia-Malene, who are the co-chairs. Over to the two of you.

Gorka Garcia-Malene: Morning, can you hear me?

Alina M. Semo: Yes, loud and clear.

Gorka Garcia-Malene: Wonderful. Good morning, everyone. My name is Gorka Garcia-Malene, I'm the FOIA Officer for the National Institutes of Health [NIH], and as Alina alluded to, I work with Jason Baron, who's also here today, of the University of Maryland, and we co-chair this Advisory Committee's Modernization Subcommittee. Next slide, please. On this slide, you see all the members of our subcommittee. Jason and I are really grateful for everyone's valuable perspectives, their ideas, and their hard work. I feel like sometimes people go unnamed, but the people doing all the hard work in the subcommittee are listed here, and it's worth a moment to just highlight who they are. Thank you, all. Next slide, please. Our subcommittee continues to meet every two weeks with working groups convening in between. As you all know, we can already claim an early success in our collaborative efforts, especially more specifically, this Advisory Committee has already approved recommendation 2023-1, which is on your screen, in which we recommend that DOJ's Office of Information Policy issue guidance that whenever an agency withholds information pursuant to Exemption 5, that agency should identify the corresponding privilege invoked.

So this should help to clarify for requesters why Exemption 5 is being asserted in the records that they receive, whether it's because the information is comprised of internal deliberations or attorney-client communications or some other protected category under Exemption 5. So I'm sure the public will find that useful. Next slide, please.

Our subcommittee is now focused on several initiatives at various stages of development. For example, we're now very far along in our effort to recommend a Proposed Model Agency Determination Letter. Adam Marshall, of [the] Reporter's Committee for Freedom of the Press, is spearheading this effort and can provide us with an update on our work thus far. Adam, if you're inclined to, the floor is yours.

Adam Marshall: Thanks, Gorka. This is Adam. As Gorka mentioned, this is a project that we have reported on before in our committee meetings. For those who aren't deeply steeped in FOIA, a determination letter is essentially the letter, the communication from the agency that accompanies its substantive response to a FOIA request. Our project is really seeking to help both requesters and agencies by setting forth best practices about the information that is provided to requesters in these determination letters.

The premise of our project is that good communication between agencies and requesters can help reduce friction, it can reduce administrative burden, and then overall, it can just improve trust in government and help understand what agencies are doing in response to FOIA requests. So as we previously reported, over a few months, our subcommittee drafted an initial model determination letter. We presented that initial draft at the June 2023 meeting of our committee.

And we saw feedback from both federal agencies and the general public in order to improve and further refine that letter. We did receive comments over a period of a couple of months from a huge array of entities, civil society groups, professional associations, federal agencies, and members of the public. So again, thank you to everyone who commented, who put time and energy into those. Since our last meeting, we've continued to review and chart and discuss all of the comments that we received, which we have now completed.

We found, I think, a lot of those comments to be very helpful. They provided great feedback, they raised some important issues. Many of those comments have already been incorporated into our ongoing working draft of the model determination letter, which we are continuing to improve and refine and I'm hopeful in the next couple meetings, we'll have a more finished project for everyone to review as our work on this continues. Gorka, back to you.

Gorka Garcia-Malene: Gorka Garcia-Malene here again. Thank you, Adam. We're all really excited to bring this recommendation to the Advisory Committee soon. Thanks again, Adam. Let's move on to the next slide. So the Modernization Subcommittee is also working on other recommendations and they're listed on the screen. The first bullet has to do with Jason Baron's work. Again, Jason Baron is a co-chair with me on the subcommittee and so he's working on two recommendations.

One is on early engagement with requesters and another one is on negotiated search protocols, and another recommendation that we're working on, this one's being spearheaded by Alex Howard of the Digital Democracy Project, is a recommendation on enhancing agency engagement with FOIA requester communities, and we're excited to continue to work on all of these. Now, Alex and Jason are both here and they can both provide us with some details on where they are in these initiatives. Next slide, please. Wonderful. Jason, I wonder whether I can turn the floor over to you so you can share a few words on your work so far.

Jason R. Baron: Thanks, Alex. Thanks, Gorka. Can you hear me all?

Gorka Garcia-Malene: Yes, we can hear you.

Jason R. Baron: Okay. So I really appreciate Alina allowing space for a conversation in a public meeting with the deliberations of our subcommittee. I think transparency is important and it's an occasion here to invite members of the committee as a whole to comment on ongoing work that we may or may not end up submitting to the full committee for a formal vote in a subsequent meeting. I also just forgot to say at the top that I absolutely second what Gorka said about the work of our subcommittee and I appreciate every member of the subcommittee contributing so much.

I don't consider that the next couple of recommendations are from one individual, we're all discussing them. My own background is, I'm currently a professor of the practice at the University of Maryland College of Information Studies, but for those who don't know, I spent 33 years in the federal government, including being the first Director of Litigation at the National Archives. Alina succeeded me in that capacity, and I have more recently in academia become a frequent FOIA requester.

So I've been on both sides and I am informed by that experience by suggesting a couple of recommendations for consideration. The first one here, we recommend that OIP-issued guidance to federal agencies stating that within a reasonably short time frame after request has been filed, either as part of an acknowledgement letter or in separate correspondence, agencies should offer requesters the opportunity to discuss their request with an agency representative or the purpose of clarifying, narrowing, and expediting the request.

This is something that many agencies do in some way or form already. In fact, if you indulge me, DOJ says in the CFO report, the CFO reports that OIP put out ask a specific question about outreach to the public and DOJ itself says, as part of the standard request process, DOJ's FOIA professionals proactively contact requesters concerning complex or voluminous requests to clarify or narrow the scope of requests so requesters can receive responses more quickly. Many components achieve success through early and frequent communication with requesters.

I'd like to emphasize frequent in that sentence, as part of the processing of their request. Such communication helps ensure that requests were directed to the proper component and were well-defined at the outset. Components reported that their requester outreach enabled them to clarify requests, narrow search requests, and avoid litigation in many instances. The communication also provided opportunities to explain certain limitations components have regarding their record-keeping systems, their search capabilities, and their ability to release certain privacy-related records.

I could go on with many other examples in the CFO reports where agencies say this. They generally have a self-limiting feature, which is that they're doing this outreach for complex requests, and it could be FOIA liaisons that are communicating with the public or FOIA staff themselves. The intent of this recommendation is to broaden this practice, to extend it to all agencies being receiving this guidance from OIP and that they make an effort to invite any requester who wishes to enter into a conversation the chance to do so.

I can tell you that in my experience, while there are some of us who are on this committee who are not shy about communicating with agencies and asking them how the FOIA request is going and to suggest even at the opening letter that we're here to engage in a dialogue, many requesters are intimidated by dealing with the federal government and they just wait, and there is enormous frustrations in waiting for those requests that take more than 20 days, or in my case, 20 months to get a response out of a number of agencies, and so this is a way to open a dialogue.

It's simply to attempt more transparency so an agency invites individuals to ask for a conversation, which doesn't have to be at tremendous length, but it would be a conversation. I can anticipate, the last thing I say on this matter before opening it up to comment from the full committee, is I can anticipate from our government representatives on the committee that they will say that this takes time and it takes a devotion of resources that are already strained. But my response as anticipating this is to say that the possibility of clarification and the possibility of narrowing requests for those individuals who take advantage of this, I think balances out that concern and I do not believe, I honestly do not believe that a large percentage of FOIA requesters will take the government up on this, but we should invite everyone to do so. So on that note, I will open it up for comments.

Alina M. Semo: Michael, go ahead.

Michael Heise: Michael with EEOC, and Jason's one of my favorite people, FYI, just so that everyone on YouTube knows. Okay, so this recommendation is, I like it, I think I just have a couple of nits, just nits on this, and that is so as an attorney, I always think about that parade of horribles on its way and words to me matter really, really, really much. So I don't like the word expediting there because expediting is a term of art, at least I think so, and that's a track. And so I wouldn't want folks in the requester community to think that somehow, the agency is even considering an expedited track. Let's say the person didn't ask for it or let's say that's going to be an issue if they did ask for it, it's going to be dispositioned by the agency at some point. So it'd be better to use a different word. There's a lot of words out there, maybe find a different one, and then I agree with you, at least for the EEOC, we already do this kind of thing, reaching out to requesters.

What I will say though, and I think other agencies, maybe DHS when they process files or something. At the EEOC, I'll just tell you basically how it works for everyone in the world to know, there are two major types of buckets. There are charge files and there are everything else, and everything else is the kind of thing that Jason, you would probably request from us, emails, calendars, whatever it is. Well, I would say that a healthy majority of those request descriptions require clarification or narrowing, and I understand why. They're on the outside trying to look in. They don't really know the ramifications of the description as we read it. But if they're asking at the EEOC for 99% of what the EEOC processes as an agency, I want my charge file or I want charge file numbered X, Y, Z, 1, 2, 3, that doesn't require clarifying or narrowing. It is what it is, and so I think there ought to be some nuance in this so that folks on my side, we get 16,000 requests a year even though we're a small agency, 13 to 16,000.

I don't want my folks out in the field to have to necessarily think that they have to reach out to the requesters. Not that they don't want to or anything, but it's just is it actually going to help? They already know what the requester wants. They want charge number 1, 2, 3, 4, 5, 6, 7, period, and so I think there ought to be some reflection on that, and I'll just say last thing you mentioned, Jason, that people are intimidated sometimes. Well, I'll tell you that FOIA professionals are humans, too.

And so they also, depending on... I love talking to people and people don't like talking to me and they sometimes like talking to me, but there are other people I know who are a little intimidated with talking to requesters depending on the requester. So I think there just ought to be acknowledgement that there's humans on both sides of this equation, but I do think that at least with the EEOC, I would be far more comfortable getting rid of expediting on this and having that nuance that sometimes a request speaks for itself, thank gosh, and we don't really need to go through all this stuff.

Jason R. Baron: I think these are all excellent points, Michael. I actually think your friendly amendment of changing the word expediting is spot on because of what you said. Secondly, in the commentary that we would provide should this subcommittee think that this goes forward, we should make those points about a file and nuances, and lastly, this recommendation is OIP and OIP can structure the guidance in a way that also makes clear it's scope and applicability, and I agree with the last point as well. I saw Patricia first and then Luke and then Alex. Patricia.

Patricia Weth: Hi, good morning. Patricia Weth from EPA [Environmental Protection Agency]. The one point that I will echo that Michael made is there's quite a few members on this committee that probably want to form a Jason Baron fan club, including myself. I do like this recommendation a lot. I will say that this has been a best practice that I have used in several offices that I've worked at, and I have seen firsthand how simply having a conversation with the requester can really help the agency and the FOIA professional learn what it is the requester wants. And hone in on those records versus giving the requester a huge volume of records, none of which is what they really, really want or need. I think this is a great recommendation and I think it can be accomplished either by contacting the requester via email. I know some people do not have that comfort level speaking on the phone, but I also find sometimes that picking up the phone does help a lot with just having that conversation instead of the back and forth and email, but this can be accomplished either in email or phone, but I support this recommendation.

Jason R. Baron: Thanks, Patricia. Luke.

Luke Nichter: Thanks, Jason. Luke Nichter, Chapman University. So just a quick comment. I'm assuming that this proposal is made in the interest of the requester, to benefit the requester, and as a requester myself, I would just say that it seems the key word on the slide is really the word opportunity, and I say that because oftentimes with an agency, I'll have a complex or a large track request, and in those cases, sometimes the agency will contact me and when they do, I feel pressure to reduce the scope of my request.

An agency might say something like, there are six pallets of records that have just arrived from offsite and we estimate it's going to take 600 months to process this - that's an actual example that I've got in writing. And so sometimes I know what I want and I really don't want to be pressured to talk to an agency, but other times, it would be beneficial to talk to someone and I'm not quite sure what I'm looking for and I'd be more than happy, for my sake as well as for the agencies, to reduce the scope or otherwise. I've never tried to expedite a request. So I don't have any experience with that. But it seems like the keyword is opportunity and if this were included in, as it suggests partly, possibly an acknowledgement letter, I just wouldn't want this to be an additional hurdle that slows down the request somehow. In cases where a requester often, in my case, I know what I want, to Michael's point, and I really don't need to clarify or slow down, and I'm appreciative of the agency and I don't really want to cause them any more work. Thank you.

Jason R. Baron: It's an opt-in. It's only if one wants to have a conversation, but I hear you about that. Alex.

Alex Howard: I would add myself to the Jason Baron fan club and would also note that the dialogue we're having here is I think representative of the one that we often have in the subcommittee and that I'm very grateful for the opportunity to learn from all the FOIA professionals, and one thing we don't hear as much from the requester community or indeed in general is that the FOIA professionals, the staff, the leadership are the backbone of open government in the United States.

And that in my experience with the committee, I've learned a tremendous amount about their commitment to doing that and to uphold what people outside of government generally view as their right to know. The statute actually gives us the right to make a request, and then the FOIA staff and agency then have a determination of whether to give us access to records and different exemptions. It's quite titrated, but the recommendation here I think gets to something very important, which is that in order to uphold someone's right to know, they have to have a right, I think, an ability to understand.

To understand the agency, its processes, its programs, its systems, where records are created, how they're created, by whom, and that by having an expectation of dialogue with a person, there's tremendous opportunity to leave the requester in a much better place with respect to their knowledge of government and indeed to improve, I think, their trust in government because there is a person there speaking with them whose job it is to help them. Often, the FOIA process devolves into a very adversarial situation where lawsuits come in.

And I would say on that count, that one of the visions for OGIS itself was to create a mediation process to avoid that in a considerable cost to requester and the US government, which paid for it with public dollars, and that the extent to which that can be averted through dialogue and correspondence and honing these, the better it is. There is an expectation of 20 business days for a request to be acknowledged, and in fact, one of the things I've heard consistently from requesters and those who sue is that they don't hear back.

And I think that offering guidance to ensure that there's a human reaching out would be valuable. Now, this could create a considerable burden for agencies that get a lot of requests, which will go, I think, to the Resources Subcommittee's recommendations. For a lot of the things that we recommend I think as a subcommittee or a committee, there's got to be more appropriations and literally more human capacity and technical capacity, and the more that we can, I think, be clear about that and the need to celebrate FOIA service and attract a new generation of people, particularly as the past generations retire, the more successful we'll be.

Jason R. Baron: I think I saw Stefanie's hand up.

Stefanie Jewett: Stefanie Jewett, HHS/OIG [Health and Human Services Office of Inspector General] and [I’m] the FOIA Officer there. I have a few quick questions. I would like a little bit more background of why you all found this to be an issue. Did you find that it was a problem? What was your basis for saying that this needed to be done as well as we're one of those agencies, certainly, that process huge amounts of requests and my concern is that it would slow us down. Is there a timeframe here that they would have to...

As soon as the requests come in for us, we are immediately processing them, right. So if someone comes in 10, 15 days later and says, oh no, this is what I really wanted. Well, now we've already written the letter, we've gotten the records, and now we're going to have to start back over from scratch. So that's just my only concern from an agency perspective, that is, this really an issue that is out in the community that the requesters are not able to get in touch with people.

I know like Michael and others have said, I know in my agency, if we don't understand or we need to clarify, we'll toll it and quickly get in touch with the requester and say, hey, is this what you really meant, and we have all over the place our contacts where they can talk to us. So those are my concerns. Is this really necessary and has there any thought been given about that it will actually slow down the processing and being able to get out the request. Thank you.

Jason R. Baron: Stefanie, I'm happy to let others weigh in on that although for time purposes, I think we do want to continue our conversation perhaps ourselves, offline. All committee members on the FOIA Advisory Committee bring their own long experience and so this request is informed by all of our experience. We as a subcommittee have not done the same kind of survey as other subcommittees.

As for resources, my strong view on this is that only a very small percentage of requesters would avail themselves of the opportunity here, but we should be transparent as a government in allowing for the opportunity for people to have a conversation and not just have it as agency initiated in certain instances, and I applaud the fact that your office does do this much outreach and agencies generally reported in the CFO report that they do so in what they consider to be complex requests.

But I believe there is a concern out there and what I was going to say at the end of both of these recommendations, and I'd like to move on to the second one, is that this opportunity here at this public meeting is to have public comments and also government comments from agencies, and so I would invite anyone to write into OGIS and that your comment will be posted. So we should get some feedback. Okay. Lauren. Yes.

Lauren Harper: I'll be really quick just to respond to, this is Lauren Harper, National Security Archive, to respond to Stefanie's question. I take the point about potentially slowing down the process. I will say our organization does file a lot of complicated requests and the issue that we have is not so much that we don't have contact information, but there's not necessarily a human being responding to our queries through that contact information. So I would say yes, it is an issue, but I do take your point about timeliness and wanting to actually continue working on the request.

Jason R. Baron: Allyson.

Allyson Deitrick: And I also wanted to address Stefanie. I think you hit the nail on the head. That's been the main topic at the subcommittee level on this recommendation is how do you balance working with requesters being open and not making things more difficult, taking more time. So building on a bit on what Michael had said about maybe carving out certain very discreet requests, I want a copy of this report that was issued on the date with the topic. You probably don't need to go back to the requester to get information on that.

But if there's some large voluminous requests, then maybe it is worthwhile to spend some time talking to the requester and say, do you really mean you want everything that says FOIA, or are you really looking for something more particular or certain custodians or these are the offices that would work on that particular topic, and try and actually make the workload a little bit easier on the FOIA staff and getting the request or the documents that they want a little bit faster. I won't say expedited, but faster than it would've been otherwise. So I just want to give you a little background on what our discussions have been like.

Jason R. Baron: Luke.

Luke Nichter: Just very briefly, from my own experience as a requester, I think what I appreciate so much about this recommendation is that I still have a challenge with a lot of agencies where there is no contact information provided for the agency, or I get a no reply email with no ability to follow up, or I get a phone number that goes to a phone number that no one answers or goes to a full voicemail box.

And I think that at least speaking for myself, and I would like, to your point, I'd like to have some data behind this. I'd be curious to know what agencies do and whether my experience is typical or not. I think that if I had a way to have a dialogue with an agency, I'm not sure that a recommendation like this is necessary, but the fact is in 2023 in a lot of my requests, there is no way to communicate with the agency, and so I think that it is a concern with some. Thank you.

Jason R. Baron: Michael, I do want to go on, but give you the opportunity.

Michael Heise: Thanks. Michael Heise with EEOC. Well, I just wanted to make a couple of points to what Stefanie said. So first off, at least where I sit at the EEOC and also before that, I was a contractor at the Department of Energy, oftentimes, when I was speaking to a requester now as a FOIA Public Liaison or processor or whatever, they would tell me how appreciative they are of hearing from me, of hearing from the agency. Now that's anecdotal, but I read in the negative then if it's such a big deal to them, then what were they lacking?

So there's that, but the other thing I will say real quick, because I know that there is folks on the requester community side here having their perspective. I'll tell you from where I sit, there's another part of this which I think needs to be, may be, reflected in the comments, is that, or not, but listen, I have had requesters that are all in on communication. It's 100% awesome, but I have a non-insignificant amount of requesters who if we try to reach out to them to understand what they're looking for, crickets.

I've even had one say, I never want to talk to your agency or you about my FOIA request. It is clear the way it's written. That's not helpful and I just want folks to know that, that there are good and bads on both sides. So just something to understand. The one thing, I think that too, I think Luke, you were talking about holding up the process, being worried about that. As we all know under the statute, there is, agencies can hold for a substantive reason if there is clarifying. I don't think that's what this recommendation is intending, that it would be like a formal toll letter.

But it could result in that, and the last thing I'll say to this, to Stefanie's point is this. To the extent that this is a lift for agencies, I think it would be a lift for something that's like totally no-brainer, clear like I want my A-file, I want my charge file, something like that, but I'll tell you from where I sit, because almost every request that we get, not at the fault of the requester, is in some way needs narrowing or clarification.

It makes our job easier to have that conversation because now, we're not, what, flying blind. So if the requester is willing to have a good faith, reasonable minds conversation with us and get to the heart of what they want, oh my gosh, and have that be an actual written amendment, okay, a written amendment, that's going to make our agency's ability to process efficiently far, far easier not only for that requester, but the next one that's waiting in the queue. Thanks.

Jason R. Baron: Thanks, Michael. Alina, can I do a time check of how much time we have?

Alina M. Semo: Yes. I was actually just getting ready to say I would love to take a break. I think we're all a little screen weary at this point, if that's okay. If we could just break at this point and take a 10-minute break. We were set for 15, but let's do 10. Is that okay? And then we can return to your next slide.

Jason R. Baron: Okay. Thanks.

Alina M. Semo: All right, so everyone please come back at 11:50 AM. Thank you so much. 

[Break]

Alina M. Semo: All right. Well, welcome back, everyone. Thanks for keeping mostly to our 10-minute break. Jason, I'm going to hand things back over to you so you can continue with the Modernization Subcommittee.

Jason R. Baron: Okay, we'll go to the next slide. No, one back. There should be a slide, with the  second recommendation. I don't know, did it... It got cut.

Alina M. Semo: It's there, Michelle. Go back, please, two slides. Nope.

Jason R. Baron: No, going forward, it's not there.

Alina M. Semo: It's there. I just saw it. 

Stefanie Jewett: Slide 23.

Jason R. Baron: There you go. Second recommendation. Good. Okay, great. So now that we've moved on from the relatively uncontroversial recommendation, we can go on to something else. So this has engendered the most conversations in the committee. Let me just read it. We recommend that OIP issues guidance to federal agencies encouraging the option of providing requesters, at their request, an early interim response consisting of a small sample of documents found as the result of searches conducted and subsequently reviewed for partial or full withholding.

I will say that I did propose this to the committee and what I should have said in the wording, and we will amend it, is that this really does only pertain to complex requests and so the issue here, and it could well flow from a conversation that in the prior recommendation it's had with the agency. The irony of this is that if you do a small sample, in many cases, you reduce the burden on agencies by ensuring that requesters get an early look at a small number of reviewed documents, and that helps clarify their requests for going forward purposes for any further effort at processing. I will say that everyone who knows me, I've been an evangelist for the point that we have huge volumes of email records because of the Capstone archiving policy put into place by 250 plus agencies, there are hundreds of thousands of hits from keywords that are routinely found when complex requests are made. In the future, it'd be millions. And we don't want a process where months or years go by without any kind of response by an agency.

And so this proposal where the agency accepts doing this and the guidance will make clear that it's in the discretion of the agency, is to step through a process, a protocol, which would go something like this. The agency and requester agree on a search in a complex case that goes out and finds potentially responsive documents. The agency agrees to review a very small number of those responsive documents to mark them up for exemptions and to give over what they can and to withhold either in full or in part. The agency is providing that as an interim response with a time limit for the requester to get back. If the requester doesn't get back on a response, well then the agency has the right to close it out as a request and they don't have to process huge amounts of documents that they otherwise would believe they're under an obligation to review if they didn't have that conversation.

If the requester is dissatisfied, wishes to discuss further, an agency may wish to do so and continue this, but this process is not intended to be iterative and to cause the agency to have this burden of endlessly doing sampling. The agency's not obligated in this process to change its search parameters or its legal view that the request is currently stated would be too burdensome. But it's a way of increasing at least some degree of transparency early on. No appeal rights would be triggered by the interim process itself and the agency, as I said, could continue to conduct what it considers a reasonable search or to close out the response with a determination letter saying the request is unduly burdensome after the sampling and after a conversation.

So I have been successful in inviting agencies to participate in this protocol. A few have taken me up on it. I may be an unusual requester because after getting the response, I've had a conversation with agencies about why they're redacting under (b)(5) for foreseeable harm. But in the end, I have decided in those few cases that I'm satisfied with the response and that I know what I'm going to get and that I've gotten good documents and that I'm not going to appeal or to force an agency to do a hundred thousand more documents for me. That may not be the case for every case and the agency still has its defenses against that happening if they really think that there's a burdensome complex request. But I understand how there's a range of what will happen here, but I do think that in many cases this will just increase, in the spirit of FOIA, the transparency of what's going on in the process. Agencies can … giving a small sample out, will bring clarity to that process and hopefully will narrow their obligations going forward in otherwise complex and voluminous requests. So with that, I invite comments.

Alina M. Semo: I don't see any hands up. Not all at once folks. Oh, hands. Who was first Luke, Michael or Patricia? Luke, go ahead please.

Luke Nichter: Thank you. Luke Nichter, Chapman University. I wonder in some ways whether there are some agencies already doing this. I'm thinking of in particular the FBI [Federal Bureau of Investigation], which sometimes on a large request will initially, and I don't always know the motivation for why they do this, but if I have a large request or a complex request, they will send what they call pre-processed records that might've been previously released or available online or sent to another requester, I suppose. And it has the same effect as this. It's unless you respond and ask for more or state you're still interested in the full scope of what you originally requested, that we consider this request satisfied.

So I do wonder whether to some degree this is being done and as a requester, I guess it goes back to my earlier comment. There are some times where I know what I want and sometimes an agency, at least in the example I gave now, will send me something that's not really responsive to what I wanted and then will close the request if I'm not careful. Other times I can see where this might be helpful, but I just wanted to pass along, based on my experience, I think, the perspective of a requester

Jason R. Baron: In my experience, some agencies do of course provide interim responses as a first thing, a low-hanging fruit. I have run into some degree of resistance in suggesting this as a protocol and I understand some of the reasons for that. But this guidance would be suggesting that agencies offer it as an option where they think that it's appropriate in complex cases. All right, I don't know who was next. So Alina, I defer to you.

Alina M. Semo: I defer to you, but let's hear from Patricia and then Michael.

Patricia Weth: Patricia Weth from EPA. I am surprised that this recommendation is considered controversial because it seems like a no-brainer to me. To Luke's point, at my agencies, I have done this in the past and it's been quite helpful in my experience to both the requester as well as to myself in helping me get the requester what they really need.

Jason R. Baron: Thanks. Thanks Patricia for the thumbs up. Michael? Oh, did I skip anybody? All right, go Michael.

Michael Heise: Okay. I know people want to keep hearing from me. So this is Michael at EEOC. I mean, I don't think it's controversial, but it's not without controversy, at least in some ways. So I think Jason, it'd be good for maybe to look at the minutes as they're reflected ultimately by Alina's team to capture all the stuff that you were saying at the outset. I think this recommendation has to be longer and has to have a lot of the things you said not in the comments. Because listen, when you're on the FOIA side of the shop, as many halos as people have, there are folks that, there could be some abuse to the FOIA system, and I just want to make sure that this kind of recommendation doesn't invite that sort of thing. Because anytime a recommendation hurts the efficacy of a FOIA shop from processing documents for Jason, that means Alex has got to wait longer, right?

So what I'm saying here is there ought to be language, Jason, in here, not in the comments that really gets into the things you said that, and I've said this before, this isn't an okay processor, let's look for a dog and find a cat. Okay, now let's go look for a horse and find a dragon and okay, now let's go do this. That's not cool and not great. I think there's actually DOJ guidance saying sampling is a good way to do things.

So I think sampling is not new, but the thing I'm seeing here is the thing you said about not appealing, all that stuff should be in this recommendation so that it's clear that the purpose of this recommendation is to narrow the request so that the requester gets what he or she wants and the agency can, and this is important to agencies because we have to report to DOJ, right backlogs, that the agency gets to be able to get a formal amendment narrowing it to the extent that the sample of documents has provided color about what exactly the requester wants. And then that can get reflected in a formal amendment so that the agency can close the request, so that now Alex, who's next in queue, can get the documents that he's entitled to. But if this is an odd infinitum wild goose chase, which I know Jason, you didn't say it was, but if I'm reading this and nothing else, I don't know. So I think there's got to be a lot more in here for at least me to be on board.

Jason R. Baron: Thanks for the comment. Patricia?

Patricia Weth: Okay. Patricia Weth from EPA. So we, as FOIA professionals in the federal government, when we work with requesters, or at least when I work with requesters in my team, we communicate, we memorialize our conversations in writing in an email. In my experience when I've done this in the past, I've communicated with the requester, perhaps over the phone, memorialized our agreement in an email, asked for confirmation from the requester, "Do you agree upon this?" And when I have used this type of interim response or sampling, the requester has always been in the driver's seat. They're in control. They tell me, "Hey, yeah, I do want my entire request as written," or "Hey, after getting the sampling, I think I'm going to narrow it to X, Y, and Z." So it's documented every step of the way. So there's no surprises on either end. I just, in my experience, have found this very successful.

Jason R. Baron: Thanks. Anyone else?

Michael Heise: This is Michael from EEOC again. I just want to make sure that I respond to that. So Patricia, I don't know if this was directed to me specifically or not, but it's not that we don't, as an agency or EEOC, find this to be a helpful thing. I have folks on my team right now doing this for folks and it does work, but I promise you when I tell you that, I have, a lot of my time is spent dealing with certain kinds of requesters and I don't know if I'm alone on that. So all I'm saying is that if this becomes, I know that Jason didn't say this, but it should be in here, that I actually think these samples should be like you get a sample and you should be able to know from the sample if you want to keep going with your hundred thousand records or if you want to just take that sample and close your request or maybe something in between.

But it shouldn't be, and I promise you there will be some requesters that will do this if they can, say, "I want you to hunt and pack forever and ever, all these different things." I promise you that will happen unless we have some guidance here that anticipates that. I promise you.

Jason R. Baron: Yeah, I think we can put that guidance in. Anyone else? Oh, Gbemende.

Gbemende Johnson: Yes. I just had a quick clarification question. So you mentioned that with the response, the agency can give the requester a period of time to respond, and if they don't, the agency can close out the request. And did you say that would not trigger appeal rights? I'm just wondering if I heard correctly.

Jason R. Baron: No, if the agency did close out the request, it would trigger appeal rights. It's just that what I've done is I've asked for a hundred documents being reviewed when I'm told that there are 80,000 documents that are potentially responsive. So I get the hundred and we have a conversation and whether the request goes on or not, as long as it hasn't taken an unduly amount of time to just do this sample, then I think it's helpful. And that sample would not trigger an appeal, at least under this recommendation as it's written now.

Gbemende Johnson: Thank you.

Jason R. Baron: Anyone else?

Alina M. Semo: I don't see any other hands, so let's keep moving.

Jason R. Baron: Okay, thanks everybody. We will continue to discuss this and refine it. I turn it over to Alex.

Alex Howard: Thank you, Jason. So I would say in noting that this is a very early discussion of a recommendation around improving one of the core parts of the not just committees remit under the charter to improve the relationship between the administration and the requester community around the use of the Freedom of Information Act and to increase public proactive disclosures, but to look at the broader context of federal agencies. That part is I think very important. And I want to say at the outset, that I am incredibly indebted to the last eight years of recommendations and the knowledge that has been created in the past because it's enabled me to think about this more productively. When I came to thinking about FOIA for the first time as a journalist, well over a decade ago I had a misperception about how FOIA was being used in the federal government. I thought it was being used by journalists and by watchdogs and independent citizens.

And what I learned from Margaret Kwoka who was part of this committee that in fact going back for decades, the FOIA has been used heavily by businesses, and this is well documented in her paper, “FOIA, Inc.”, which has turned into an excellent book, which NARA has discussed, where you had commercial businesses, law firms were more than half of requesters and her study back in 2013 that found a lot of the regulatory agencies that 69% of SEC [Securities and Exchange Commission] requests for commercial. I think something like 85% of the FDA [Food and Drug Administration], EPA had something like 79%.

And that she recommended that the way to approach this is not to limit commercial requests or indeed to charge them a lot more money since they're effectively buying public records under the FOIA and then leveraging them for business intelligence, sometimes repackaging and then reselling them in different ways, but to actually focus on affirmative disclosure of all these frequently requested records in a way that would free up the resources being used to meet all these commercial requests and move forward with addressing all the other more complex ones, which go towards, I think, the aspirational nature of the statute for transparency and accountability and used by watchdogs in the press, et cetera. People who know the history of the FOIA know that it's actually a member of Congress, Mr. Moss, who created it because Congress wanted access to records and were concerned about the secrecy of the executive branch in the midst of the 20th century.

Our discussion of this in terms of improving the FOIA process around public engagement with requesters, therefore has to grapple with the fact that in some of these places, commercial requesters are the bulk of that. How do agencies improve engagement with them? Well, in this case, I think the answer is to go back to the future and implement the Open Government Data Act by proactively disclosing in open formats these records so that everybody can benefit from them. This, of course, will be opposed by various infomediaries that might do that, but it's important. The second is to look at the requester community that looks for first party records and engage them proactively. We talked earlier about USCIS and creating those kinds of access. This is also important for veterans, I think. Something that is often a unanimous bipartisan support for. So thinking about how to engage that community as well. And then finally getting to the different watchdogs, people in media, et cetera, who put out those kinds of requests and creating opportunities around that. 

We've had some preliminary discussions about approaches to do that. The current administration has shown support as a matter of policy for increasing the capacity for public engagement by agencies around different mission protocols, particularly ones that do say scientific research or exploration, looking at NASA [National Aeronautics and Space Administration], do quite a bit of that. And there's a lot of disclosure agencies which do that as well. There's some useful recommendations the public can look at from the President's Council of Advisors on Science and Technology, which made recommendations to advance public engagement with the sciences, but those in fact would be applicable to every single agency's function. The big idea here is that agencies are effectively communicating with the public so that people don't have to make requests.

There's also some very useful guidance from the Office of Information Regulatory Affairs, part of the White House Office of Management and Budget that focused on broadening public participation in the regulatory process in terms of thinking through and grappling with some of the real challenges there. And again, this is just a preliminary, this is discussions, there's nothing set, but there could be way forward in 2024 to recommend that the administration and Congress show support for open government as a matter of practice, by not just implementing that guidance and the public participation playbook that was created and as part of a past open government commitment at the General Services Administration, but to build on the past and present commitments the US has made in open government plans and engage the public in improving the administration of the FOIA and co-creating a reform of the statute next year.

That could look at kicking off a national and international conversations on the importance of public records at sunshine in the government laws, something that has been stimulated by various efforts at the state or local level to change those laws for various reasons. There'll be a summit for democracy in the Spring. Sunshine Week as well, which are ideal moments, converting public attention into participation and collaboration around improving these laws. And there's a lot of different ways that agencies could approach public engagement, which we've discussed. I don't need to go through them all, but I would say that the opportunity to be thinking about where and how to celebrate FOIA as an important national value and centralizing attention on the need to fund the capacity to do so, I think is a core part of any national strategy to restore trust in government.

And that goes towards responsiveness, towards openness, towards collaboration, towards using offline and online methods to engage people, encouraging libraries and schools and universities to teach young people how to use the FOIA and to think about connecting them with their governments in ways that don't require them to sue to get information to which they have a right. And we've had some productive conversations, like I said, about strategies and tactics and hopefully we can ground those in some more granular directions and offer not just playbooks and recs, but pilot some of these approaches within the committee space.

I just finally note that the committee itself is that really important example of this approach as a federal [FOIA] Advisory Committee. There's expectations for openness, for public meetings, for record keeping, for public comment that every agency could be pursuing around its public records activities under rebooted open government plans. And that certainly from my perspective as a long-time advocate in the space, that that's something that the National Archives has done exceptionally well at times, including some very difficult circumstances. And that one of the things that we have to think about as a country is how to enable these discussions to happen online so that Americans can participate wherever we are, not just here in Washington, and create structured opportunities for participation and collaboration that drive towards consensus as opposed to using many of the modern technologies and tools and platforms today, which often are oriented around engagement, which create perverse incentives for people around participation. So I'm very happy to have had the opportunity to talk with committee members about this, and I'm very hopeful that we'll be able to offer some substantive recommendations to people in the new year.

Gorka Garcia-Malene: Thank you, Alex. All right, I should mention Gorka Garcia-Malene here again. Thank you, Jason. Thank you, Alex, for your remarks, and thank you all for your insightful comments. Let's please go to the next slide. Wonderful. So the Modernization Subcommittee is also working on recommendations that encourage agencies to use email, rather than U.S. Mail, for correspondence with the requesters and that encourage agencies to develop RFIs in connection with the purchase of new discovery tools and services. I know we're running a little low on time here, but before we conclude, I just wanted to provide another opportunity for panel members to ask questions of the Modernization Subcommittee. And please note that my system is not showing raised hands, so just please speak up.

Jason R. Baron: Adam, why don't you give a brief summary of your point here.

Alina M. Semo: Yeah, I don't see any raised hands, but I also just want to say we're really running pretty low on time. It's already almost 12:20. That leaves 20 minutes for the other subcommittee presentation. So Adam, two minutes please.

Adam Marshall: I'll just be very, very brief, which is to say that we are looking into why some agencies are still using snail mail as a default response method and seeing if we can come with a recommendation to use email or other electronic messaging to respond to FOIA requests.

Gorka Garcia-Malene: Thank you, Alex.

Jason R. Baron: And on the RFI point, we heard Eric Stein at the State Department in September give us a wonderful briefing on his use of AI machine learning for de-class and maybe in the future for FOIA. I don't think agencies need to wait for the State Department. I think that every agency can have an RFI to explore using e-discovery tools and services in all sorts of ways. Everyone on the committee knows that I am an evangelist for AI and machine learning, and there's a wealth of knowledge out there in the greater private sector that I think is informative for doing expedited searches and maybe even filtering for exemptions. And so we will develop a recommendation along those lines that just encourages agencies to understand the vendor space, do RFIs, and be informed so that they can go forward with possible procurements.

Gorka Garcia-Malene: Thank you, Adam. Thank you, Jason. I hope our report out conveys our subcommittee's hard work and dedication to government transparency. We're really excited to continue to build up these ideas and look forward to bringing them to the full committee in the near future. Thank you all. And Alina, the floor's yours.

Alina M. Semo: Great, thank you. So I just want to quickly shift over to the Resources Subcommittee last, but definitely not least, sub-committee co-chairs, Paul Chalmers and Gbemende Johnson and Michelle, next slide please. Paul, Gbemende, the floor is yours.

Gbemende Johnson: Thank you. Gbemende Johnson, University of Georgia. Because we are short on time, I'll have to move through the slides a bit quickly, so next slide. So the Resources Subcommittee in developing or attempting to develop our recommendations, we wanted to get feedback from those who work directly with FOIA. So through that, we have conducted a number of interviews, we've conducted a survey, and we're going to briefly talk about some of the proposed recommendations. Next slide. So for our interviews, which focus on technology training and staff resources, so far we've interviewed 12 high-level FOIA officials, 10 from cabinet agencies with eight cabinet agencies represented, two from independent agencies and some of the agencies, their jurisdiction was definitely intelligence-oriented, which would indicate special considerations for their FOIA processing. Today we're going to focus on just some of the responses from some of the interviewees on staff resources and training. Next slide.

So also with the survey, similarly, we focused on staff training, technology resources. It was fielded at the 2023 ASAP Conference, the American Society of Access Professionals (ASAP). The survey was distributed to the ASAP email list and also posted on their website. Approximately 200-220 surveys were started, but we have about 150 completed responses. And our discussion today will also focus on responses on staff resources and training. Next slide. Some of the concerns that came from the interviews should not be shocking. Some of the interviewees noted FOIA work is very difficult and their staff is currently overworked. And because of this, they don't have a lot of time to do other activities outside of processing requests. So that can be rethinking FOIA regulations. We've heard from earlier committees greater public outreach, which there's definitely a willingness to do, but there's concern about when will they be able to do that if they're overwhelmed with processing requests.

In terms of greater hiring, what was stressed is not just more people, but you need the staff with proper skills. The ability to think critically with FOIA and FOIA is complex. It's not just black and white. The interviewees also noted that their staff have had concerns about the ability to advance in their careers. There's also concern about turnover and some of the interviewees, they noted that they have a good FOIA staff, but maybe they're approaching retirement and there's a concern about loss of institutional memory. We asked whether technology or staff was the greater need. Many of them said this is hard to answer, but if they had to pick, they would say the staff was the greater need. And they also noted that there are still vacancies remaining from the pandemic which have caused complications. Next slide. So I'm going to quickly go over some of the responses from the survey which correspond to some of the things that we saw from the interviews. So we asked on the survey, did folks feel they need additional resources to properly implement FOIA? And 78% said yes, they needed more resources. Next slide.

In terms of the resources that the agencies have attempted to acquire, most said it was staff. So about 64% of the respondents said that the offices attempted to require more staff. Next slide. And staff once again came up as the greater need according to 53% of respondents. Next slide. And in terms of the issues with retention, a slight majority did note that they had considered leaving their positions for various reasons, retirement, but some noted morale issues or lack of ability to advance. Next slide. So that's the focus on staff resources, and Paul is going to talk about the recommendations, reflecting some of those concerns. But I also briefly wanted to talk about training before we get there.

So we also discussed the issue of training with the interviewees, and that was also in the survey. Of course, the respondents in the interviews noted that training is, of course, very important. There was variation in regards to whether all employees were required to receive FOIA [training]. So some agencies noted, well, new executives may receive FOIA training, but in regards to employees who are not working with FOIA directly, as I mentioned before, there's some variation to whether they are required to receive it. There was talk of, in addition to internal training, agencies have worked to provide access to DOJ training, OGIS and ASAP conferences. That seemed to be particularly for full-time FOIA employees. It also came up that there's a relationship of course, between budget and training. I remember some of the interviews noted that we try to give as much training that the budget will allow and the differences in handling of and non-classified material, which will require some differences in training. But something that was stressed is trying to get personnel to recognize that FOIA is everyone's responsibility. Next slide.

So on the survey, there was also a question about training. And interestingly, and I think this is a positive response, a majority, about 78%, either somewhat agreed or strongly agreed that they have received adequate training for their position. So there might be some questions about why is this something that we may want to revisit for a proposed recommendation? And we'll talk about that as well. So next slide. So proposed recommendations in progress. And I believe this is where I hand it off to you, Paul, right?

Paul Chalmers: Certainly. I'll take it from here.

Gbemende Johnson: Thank you.

Paul Chalmers: Based on the interviews, we've actually done more than 12 interviews. We're still memorializing and gathering data from the interviews we've conducted. But based on the data we've collected through the interviews and through the survey that we conducted, we've put together several clusters of recommendations, or we're at least deliberating several clusters of recommendations. The first cluster of recommendations has to do with availability of personnel. And a lot of this is going to sound arcane to people who are not in the federal government or have not worked in the federal government before. Those of you who are in the federal government, worked as federal managers, hopefully it's music to your ears. I don't know. But one of the key issues we ran into everywhere, and I can tell you it's an issue at my own agency as well, is the ability to hire and retain qualified personnel. It's a challenging job as we've talked about. It doesn't necessarily receive the credit that it's due across the federal government. It doesn't max out at a pay scale commensurate with other job categories necessarily, and it can be difficult to hire people into the position. So there's a cluster of recommendations that we've come up with to try to help managers in filling these slots. And one other point I wanted to make there is that we heard repeatedly, it's not so much a flat money issue, they've got these slots and they're not able to fill the slots. And as long as you don't have the slot filled, you're not able to get the work done as fast as you'd like. So one of the recommendations that we are likely to push forward to the committee is the idea of making FOIA professionals a direct hire position rather than a competitive hire position.

The federal government does that from time to time with job categories that are difficult to fill. It did it last year. Actually, it was, I guess the year before. They did it with IT professionals. It's very difficult to compete to get those types of people given the salary pressures that are out there. So they made it a direct hire rather than competitive hire. I would say that FOIA professionals are easily as important to the federal government as IT professionals and it should also receive similar status. The federal government has the authority to do this. OPM [Office of Personnel Management] can do it. We can issue regulations or they can issue regulations and it's something that we think should be done. Second approach that we'd like to explore doing, and we're still gathering data on this one, is adjusting the career ladder for FOIA professionals. And that's a term that no one outside the federal government's going to understand, but a career ladder basically means that you have a GS scale, you're a GS-9, you're a GS-10, 11, whatever.

The GS level dictates your seniority and your pay. And if you have a career ladder, you can move up through the career ladder over time. It's a key way that the federal government and federal agencies use to retain people over time. As they grow more senior, they get better at their job, they move up their ladder, their pay goes up, you're able to hang onto them. We're considering several recommendations to improve that and possibly increase the highest level on that ladder from where it now resides at a lot of agencies, which is a GS-13 and try to push it up another level or two. Another recommendation that we're considering that goes to staffing is making it easier for federal agencies to bring in contractors in crunch times to help out in processing FOIA requests. That doesn't mean that they're going to be the ones issuing the FOIA response, it's that they can do some of the support work that's necessary to allow the feds to do their job.

The specific idea that we have in mind is putting the category of FOIA professionals onto what's called the GSA scale or a schedule. The GSA schedule is a device that GSA uses to help agencies cut back on the paperwork that's required when they need to enter into a contract for goods or services. And we've had discussions with GSA about how that would happen and what we could do to make that happen. So those are the cluster of activities that we have in mind for staffing. We've touched on training and Gbemende pointed out that there are, and I think one of the comments pointed out that there is DOJ training that's been drafted and some agencies have made it mandatory. What we're considering is a recommendation that it become mandatory across federal agencies.

Gbemende Johnson: There's another slide, Paul.

Paul Chalmers: Oh, I'm sorry. Next slide.

Gbemende Johnson: There's one more.

Paul Chalmers: There it is. So here you go. So what we're talking about doing is making training mandatory across the government. It would come in several ways. When a fed is onboarded, there's a series of trainings that they receive on a variety of subjects. FOIA, if it's not one already, should be one. It also should be part of the annual training that federal employees receive. And as we've discussed, within the subcommittee, there's a number of existing slots where you could put it, for instance, feds on an annual basis are supposed to receive records retention training. One key reason why we have records retention is so that we have the data that we need to respond to FOIA requests. And it would seem like that would be a natural, the two topics work in tandem. So anyway, those are the types of things that we're looking into.

One other area where we've been potentially looking, we haven't reached a final decision on this one, and then there's one other that I'll touch on in just a second, before I finish off this slide. But one other, it touches on some comments that came up in both of the other presentations today, and that's the availability of a uniform platform for federal agencies to use in responding to FOIA requests. We gathered a fair bit of data on that, as Gbemende said, the staffing was the primary concern over technology. We asked a lot of feds, a lot of agencies, "Are you interested in having something that would approximate FOIAonline?" We got mixed results on that. Some did, some didn't. Issues that we ran into or concerns that we heard was that FOIAonline was not customizable. So it was a one-stop shop for everybody and you couldn't customize it, you couldn't configure it depending on your specific agency's need. That's going to carve out a lot of agencies from wanting to participate in something that would be rolled out for the government.

One issue in particular we heard a lot about, and I think we heard about it in a prior meeting of this committee, was that agencies who have confidential or top secret data that they're dealing with don't necessarily want to be on a cloud solution with agencies that don't, and vice versa. So those are all issues that have to go into considering how we want to shape a uniform system. There are some upsides we heard about, each agency, if you have your own system, you're responsible for doing your own cybersecurity and privacy control configurations and compliance. And that's not cheap. And then you have to do your own procurements, your own designing if you're going to build your own solution. So, there's a possible window there for consideration and we're working on that. The final one is one that we've talked about in the past. Didn't run into a lot of interest on this one, but it's one that we've touched on in prior meetings.

We've talked about the possibility of a line item for FOIA budgeting. Again, not a lot of interest was expressed in that. It's not something I'm necessarily prepared to walk away from at this point, but if we do issue a recommendation, it's not going to be as fulsome or as compelling, I think, as what we had in mind when we first started this process, what agencies are particularly interested in when it comes to resources or solving these practical issues that we've talked about here. So I've got just four minutes left here and in that time, let me cover the rest of the slide and then if there's any questions I've got before I have to stop, I'll do that. But as the slide says, it's important to revisit. There's several things on training. The FOIA officer report shows that few agencies have made the training mandatory.

That's a data point that I think supports where we're going. There are also post-COVID realities regarding communication, remote work, and FOIA responsibilities that have to be accounted for in whatever we do. One issue that we definitely ran into with a number of agencies is that many of their employees are engaged in remote work. And that's true at my agency in particular. And if you tell your employees they have to come into the office to work, then they're going to start looking for someplace like my agency where they can remote work. The problem arises because you can't do work on sensitive or classified data from home. You're just not allowed to do it. It's too much of a security breach. So if you can't hire people to come in and work five days a week in a SCIF [Sensitive Compartmented Information Facility], you're going to run into some delays.

So that's something that we're trying to see if there's something we could recommend on that point. It's a challenging one, but it's an important one, I think, considering a lot of the concerns we've heard on this committee about getting FOIA requests processed with respect to that kind of data. So we're giving that one more thought. If people have suggestions or thoughts or ideas on that one in particular, be sure to let us know. And then the last one, the cost of making FOIA mandatory for all employees. There is a cost associated with it. I think some of that has been mitigated by the fact that DOJ has drafted a lot of this already. Other agencies that are offering, I think somebody mentioned DOD. A lot of that can be leveraged in drafting the FOIA. As Alex talked about, there are 508 compliance concerns anytime you do a training. So that has to be addressed.

There is a cost associated with that, but we're not talking a large dollar value here, but it is something that we'll consider as we're putting together our recommendation on that point. And with that, I don't think there's another slide. Is there, Gbemende? That's it.

Gbemende Johnson: No, that should be the last slide.

Paul Chalmers: All right, and it's 12:38, Alina. I finished two minutes ahead of the deadline you gave me.

Alina M. Semo: No, you did great. Next time the Resources Subcommittee will get to go first. I promised both of you that. I see Alex's hand up. Alex, go ahead, please.

Alex Howard: I just want to thank both of you for sharing this work and for all the knowledge you've created around it. It's one thing to say that there isn't enough to go around, it's another to actually really ground it in the experiences of people within the government and to let the public know that more resources are needed. I can tell you that looking at another component of government, the State Department, there were something like four months, five-month wait times that they were advising people after this pandemic crunch that it was going to take six months to turn around a passport, so don't plan to go soon. That was the beginning of the year. The last financial year, they processed 24 million passport applications and starting in November, they said, "Actually it's gotten better. Now we're down to seven to 10 weeks and expedited applications are in three to five weeks."

It's still not back to where it was before the pandemic, but it's gotten better. And the way they did it was aggressively recruiting and hiring for passport agencies and centers, tens of thousands of hours of overtime and opening a satellite office to help with this. The US government put in more resources and you all have created this context for where the resources could be applied, and I have no doubt that if our government made it a priority that your work would inform where and how to do that. And I'm very grateful to you for sharing that today.

Paul Chalmers: Thank you, Alex. That's very kind.

Gbemende Johnson: Thanks Alex.

Alina M. Semo: Anyone else? We have a couple of minutes left. Okay. Lots to chew on and I know the survey results are going to be published at some point down the road attached to the subcommittee's report, so you'll be able to see that. And if you have any questions, I'm sure both co-chairs will be happy to answer any questions you might have or you can attend the next Resources Subcommittee meeting and bring your thoughts. Okay. Just going to give one more second if anyone has had any last thoughts before we shift over into the last part of our meeting.

I don't see any hands. Okay. Thanks, Paul and Gbemende, again and I appreciate your presentation. And thank you to the other co-chairs as well. We are at 12:41 PM. We are about one minute off of our agenda time, so that is just awesome. We are reaching the public comments part of our committee meeting. As always, we look forward to hearing from non-committee participants who have ideas or comments that they would like to share, particularly about the topics that we have discussed today. All oral comments are captured in the transcript of the meeting, which we will post as soon as it is available. Oral comments are also captured in the NARA YouTube recording and are available on the NARA YouTube channel. Just a reminder, as we noted in our federal register notice, public comments are limited to three minutes per person. Dan, your hand is up, but I was going to call on you anyway. I'm going to check in with you first. Let us know if you've received any relevant questions or comments via Webex chat during the course of our meeting. Dan, go ahead, please.

Dan Levenson: We have, Alina. Thank you. Yes. Well, before the meeting, we received a public comment that we should pose to committee members in case they have any answers to these questions. It came from academia. So the two questions are, are there plans to deposit data sets in many formats from FOIA libraries to data.gov via APIs (Application Programming Interface)? Are there any mandates to ask agencies to share their data with data.gov? And the second question, or third actually, will FOIA libraries be phased out over time as new centralized FOIA portals are developed and enhanced? All right, we don't have any answers to that.

Alina M. Semo: Does anyone know the answers to any of those questions? Great questions. Alex?

Alex Howard: So I know a couple of things that might be relevant, but they're speculative, so I'll share them on that count. On the second question, my understanding is that online FOIA reading rooms, so to speak, are mandated by law, so they're not going to go anywhere. That's the first thing. The second is with respect to FOIA logs and going to data.gov, I think that's credible. The question is really whether they're made in such a way that they're open datasets with metadata with agency staff that are assigned to putting them there. There is a future in which a modernized foia.gov could automatically be crawling and ingesting those kinds of records and then making them available if they're in a machine-readable format. That is likely a future that will be predicated upon the Office of Management and Budget issuing the guidance on the OPEN Government Data Act that was passed in 2018 and President Trump signed into law in 2019.

That guidance is still not out, although it should have been some time ago. Look for what's happening with the Chief Data Officers Council for any action there. You can look at data.gov/opengovernment for any kind of evidence around that. It is possible that modernization of foia.gov could expose that kind of data in an ongoing way through their API if they built that out, which could then be regularly pushed over to data.gov. That has not been something that has happened in no small part because of the lack of capacity allotted to harmonizing the FOIA with the open government data mandates. Maybe that will happen in 2024 if guidance is forthcoming. It's going to have to be something that the administration prioritizes and puts actual capacity behind.

Alina M. Semo: Okay. Thanks, Alex. I appreciate that. All right, anyone else? Okay, Dan, back to you. Any other comments to read out loud before we turn over to Michelle to open up our telephone lines?

Dan Levenson: Yes. Our frequent commenter, Mr. Hammond, has put several comments into the Webex chat. He sees deficiencies in FOIA funding and processes, and he has recommendations. Deficiencies are agency-specific. He's concerned about one agency that changed its FOIA policy in the Federal Register and he questions whether the public comment policy complies with the Administrative Procedures Act? Mr. Hammond disagrees with that agency's determination that the public comment is unnecessary before finalizing the amendments because the amendments were administrative in nature and internal to the agency's management of its FOIA program. So therefore, the agency did not request public comments on the rule and Mr. Hammond questions whether this is appropriate. 

He furthermore offers assistance to OIP and producing quality true templates with model languages that agencies can copy and paste into their policy manuals. And he asks OGIS to develop a near-term plan to audit every agency FOIA policy manual. Furthermore, he suggests that the agency that he was mentioning a minute ago withdraw its Federal Register policy or Code of Federal Regulations policy change regarding FOIA participation and offer a public comment period in the Federal Register.

Mr. Hammond also commented on the subcommittee reports. For the Resources [Subcommittee], he requests agency top-line budgets for FOIA, paraphrasing that he's never heard of anyone being rewarded for releasing records under FOIA. He observed that despite FOIA staff's desire to serve the public interest, leadership for its release of embarrassing or threatening records, FOIA budgets would not only solve agency resource issues but hold agency leadership accountable for providing needed resources by requiring them to articulate previous FOIA performance in each fiscal year budget. He strongly believes FOIA personnel want to serve the public while having professional development and career opportunities in doing so, and he emphasizes that they need more technical resources.

In terms of Implementation [Subcommittee], he's strongly in favor of one centralized FOIA platform and suggests surveying to identify the best platform available. He voices the belief that [the] Department of Justice is not the best organization to develop such an application based on their skillset. He wants to Strengthen OGIS or another alternate resolution entity by granting enforcement hours. He asks OGIS and OIP to transfer compliance oversight to GAO because GAO is well positioned to oversee compliance of federal agencies. NARA could use existing resources then for mediation. Transferring these powers to GAO would put some teeth into compliance oversight. And he further comments that the OGIS director's statement, "We sometimes joke that we are not the FOIA police," he sees that as saying that OGIS does not have the resources to engage as much as we wish to.

He asked OIP and DOJ multiple times to identify the dollar funding level needed to effectively perform their statutory missions. And he believes that OGIS is likely underfunded 10 to 20 fold. OGIS is statutorily required to perform mediation with the intent of minimizing litigation, yet OGIS needs 10 to 20 times more mediation staff to address the rising number of litigation cases and costs. He questions whether it's possible for OGIS to mediate over 4,000 cases in a year with only three people on the mediation team. And finally, he mentions that OGIS's last posted compliance review was NRC (Nuclear Regulatory Commission), where OGIS reviewed the policies, interviewed employees, and sampled 217 FOIA requests, whereas there are 1 million FOIA requests per year across the government. So he calls for more compliance reviews. And those were his comments in the chat.

Alina M. Semo: Dan, thanks very much. I appreciate that. Any other chat comments that you saw?

Dan Levenson: I did not see any further comments.

Alina M. Semo: Okay. I did see one comment earlier from an attendee who asked about the PowerPoint slides and I just want to remind everyone [that] the PowerPoint presentation from today is available on our website, so please take a look at that. Michelle, may I ask you to please give telephone instructions and then open up our telephone lines to anyone who's there to comment? Michelle? Okay. We have lost our event producer. That's not a good thing. Yeah, go ahead, please.

Michael Heise: This is Michael with the EEOC, you'll see something in the chat that was sent at 12:48.

Alina M. Semo: Right. But I think that has... Yes, I do see that.

Michelle [producer]: All right, ladies and gentlemen, can you hear me now? This is Michelle.

Alina M. Semo: Yes, Michelle. Thank you.

Michelle [producer]: Okay. I'm not sure what happened there. Apologies. The joys of technology, right?

Alina M. Semo: Right.

Michelle [producer]: 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.

Alina M. Semo: Okay. Michelle, did you give instructions for how to access the telephone line?

Michelle [producer]: And ladies and gentlemen, if you are dialed in via the regular phone line, please press pound two on your telephone keypad. That will enter you into the comment queue.

Alina M. Semo: Okay. Thank you, Michelle. Is there anyone waiting for a comment?

Michelle [producer]: Let me see. I do not see anyone at the moment either on the phone-only line or in queue in the Webex audio line at this time either.

Alina M. Semo: Okay. Thank you. Before we wrap up, I'll check in with you one more time. Dan, do you have your hand raised from earlier or do you need to add something?

Dan Levenson: There have been a couple of recent comments in the Webex chat I want to-

Alina M. Semo: Go ahead, please

Dan Levenson: read for the record. Sure. There was a question directed to all federal agencies asking, "How many employees are currently working on their FOIA teams and how is it supposed to be that processing times are working out to 20 working days?" And then also Mr. Hammond asked, "Will the National Archives make the recording of this Webex available to be reviewed later?" I'd like to answer that. Yes, we will. It is being live streamed on YouTube, which will be available on the National Archives YouTube channel to be viewed at everyone's convenience later on.

Alina M. Semo: Okay. Thank you, Dan. All right, Michelle, anyone else waiting on the comment line? And Patricia, you have your hand up I see too. Michelle, anyone waiting to comment on the telephone?

Michelle [producer]: I do see one person in the WebEx audio queue, so I will unmute them.

Alina M. Semo: Thank you.

Michelle [producer]: All right, Matthew, go ahead.

Matthew Scarlata: Yes, greetings. This is Matthew Scarlata speaking. I am interested in what the FOIA regulation changes are going to be moving forward. I have a FOIA example that is rather grave concerning information that is 98% redacted on an investigation and a criminal arrest that took place last year through the US Department of Justice, US Marshal Service. And I need to know what the circumstances are for appeals. I've appealed this request. I've made it urgent on at least three separate occasions and they will not enforce it, nor will they give me a response to my appeals, even though I've repeatedly gone to them and said, "I need a response. It's an urgent matter concerning this jailed individual who's unlawfully being detained for now going on 15 months." And they said they would give me a deadline on November 15th. And November 15th, obviously, has passed. They refuse to help in any way. So to those conditions, how do you see the credibility right now of FOIA in circumstances like that where 98% of a request is redacted that has critical information that includes a bench warrant for arrest that has no chain of custody? It's just left blank.

Alina M. Semo: Mr. Scarlata, thank you for your comment. Just going to take off my chairperson hat, put on my OGIS director hat and tell you as the FOIA ombudsman, if you reach out to us at ogis@nara.gov and send us an email with all the details you've provided along with documentation of your appeal and your initial request, we will be happy to try to help you. But if any committee members have any comments they'd like to make, I'm happy to open up the floor to that. Michael, I see your hand up.

Michael Heise: Not for that though.

Alina M. Semo: Okay. All right. Anyone else have any comments in regard to this caller's question? All right. Michael, before I call on you, Michelle, anyone else waiting on the telephone line?

Michelle [producer]: There are currently no additional, let me double check before I say, no additional hands raised in Webex or on the phone-only line.

Alina M. Semo: Okay, thank you. Patricia, did you have your hand raised earlier or was that an accident?

Patricia Weth: Yeah. Hi, Patricia Weth with the EPA? Yes, Alina, I did. It was just to help answer one of the earlier questions from the public comment, I think, as someone asked about the number of FOIA professionals different agencies had. And I was just going to suggest that that person turn to each agency website. Every agency has a FOIA website and on there, we post our FOIA annual reports. And in the FOIA annual report it does have a breakdown of our FOIA professionals and the cost for each agency. So I just wanted to share that information.

Alina M. Semo: Okay. Thank you so much. Michael, over to you.

Michael Heise: Thank you. With Michael Heise with the EEOC. I wanted to kind of address that issue too. I think it was from someone named Persia. Like Patricia said, you can find that kind of information on the EEOC's annual report. But what I would like to say real quick is just basically a kudos and a shout-out to the EEOC FOIA staff agency-wide because like I said before, 13 to 16,000 FOIA requests a year. I want to say there's maybe 40 full-time FOIA professionals in the field. That's all they do are charge files, which is 99% of our agency-wide caseload.

And they do an outstanding job with charge file processing. I can tell you they are almost always completed within the statutory story timeframe. Here at HQ, we're not so bad either, but what I'll say is our requests are perhaps a little bit more involved. They take a little bit more doing. But just so you know, in our particular shop, since I know it, since I'm the supervisor of it, there's me as the supervisor, I've got three full-time attorney advisors that do FOIA and request and process appeals from the field. And then I have three government information specialists. So they do FOIA all the time on HQ level. And then we have one coordinator person who helps me do the intake. And I am also the agency's FOIA Public Liaison. So I have the good fortune, and I really mean that, of speaking to the requester community pretty much on a daily basis. That's it.

Alina M. Semo: Okay. Thank you very much for that public service announcement. All right, so we're at 12:59 PM. I really want to be respectful of everyone's time. I don't see any other hands up, so unless you have something frantically that you were urgently trying to get onto the record, I would like to wrap up our meeting today. I want to thank all of the committee members for all of their hard work. The subcommittees have definitely been very hard at work and I hope that we'll pick up again after the holidays. I want to remind everyone our next public meeting is going to be in virtual space, in this space, but a slight change in the day.

It's going to be Tuesday rather than our typical Thursday. So Tuesday, March 5th, 2024, beginning at 10:00 AM, Eastern Time. And I want to thank everyone for joining us today. Hope that everyone and their families remain safe, healthy, and resilient. I want to wish all of you a very happy holidays and a happy 2024. And unless anyone has anything else that they would like to add, I will declare this meeting adjourned. I'm just looking to see if anyone wants to say anything. Everyone is waving. Everyone, thank you for waving. All right, everyone, have a great day, happy holidays, and we will meet very soon. Take care.

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