Transcript
FOIA Advisory Committee Meeting (Virtual Event)
Thursday, June 13, 2024
10:00 a.m. (ET)
Producer: Welcome and thank you for joining today's meeting of the Freedom of Information Act (FOIA) Advisory Committee. Please note this conference is being recorded and all audio connections are muted at this time. If you require technical assistance, please open chat with the associated icon at the bottom of your screen and send a message to the event producer. With that, I'll turn things over to Deputy Archivist, Jay Bosanko.
Jay Bosanko: Morning. Thank you. I'm Jay Bosanko, Deputy Archivist of the United States. Welcome to the 11th and final meeting of the current term of the Freedom of Information Act Advisory Committee. Each and every day, our nation's 15 cabinet level departments and more than 100 federal agencies create records in the course of fulfilling their missions for the American people. The most historically significant of those records will eventually be transferred to the National Archives.
In the meantime, FOIA serves as a vital mechanism for access to those records. FOIA is a crucial component of a well-functioning and vibrant democracy, and the FOIA Advisory Committee provides an important public space for collaboration between FOIA requesters and the public servants who respond to their requests.
In the 10 years since the National Archives established the committee, a total of 67 recommendations have been made including 16 by this current term. These most recent recommendations are in areas as diverse as technology, training, staffing, exemption use, and public engagement.
As division and disagreement fill the world around us, your collaborative work as requesters and public servants alike illustrates that bringing together differing viewpoints and allowing for a robust, but respectful inquiry, debate and discussion can result in meaningful recommendations for change. Thank you to the committee members for your service, to the National Archives, to supporting FOIA, and underpinning our democracy. Thank you.
Alina M. Semo: Jay, thank you very much. Good morning everyone, and welcome. As the Director of the Office of Government Information Services, OGIS, and this committee's chairperson, it is my pleasure also to welcome you to the 11th and final meeting of the fifth term of the FOIA Advisory Committee. 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 on the National Archives YouTube channel.
Before we launch into our meeting today, I have a few housekeeping items to cover. Candice, can we go to the next slide, please? Thanks. This meeting is public in accordance with the Federal Advisory Committee Act, FACA, which requires open access to committee meetings and operations. FACA requires us to post minutes and a transcript of today's meeting, and we will do so as soon as they're ready. Minutes from the April 4th meeting are posted and the transcript will be posted as it is ready. The minutes and transcript from the May 9th meeting will be posted as soon as they're ready as well.
Please visit our website for today's agenda along with committee members' names and biographies at www.archives.gov/ogis. I believe that we have almost all of our committee members here today. I'm advised that Ben Tingo is unable to attend today's meeting, but Kirsten, let me turn to you as our Designated Federal Officer. Please let me know if you've taken a visual roll call and if you can confirm that we have a quorum.
Kirsten B. Mitchell: I have taken a visual roll call and we do indeed have a quorum.
Alina M. Semo: Thanks. Thank you very much. During today's meeting, I want to encourage committee members to continue to use the raise hand icon at the bottom of your screen when you wish to speak or ask any questions. It's actually even better than using the all panelist option from the dropdown menu in the chat function when you want to speak or ask a question. We've asked you to do that as well in the past or chat me or Kirsten directly. Either one works, but the hand seems to be even more effective.
If any committee member needs to take a break today during the course of the meeting, please do not disconnect from the web event. Instead, mute your microphone by using the microphone icon, turn off your camera by using the camera icon. Please send a quick chat to me and Kirsten to let us know if you'll be gone for more than a few minutes and join us again as soon as you are able.
A reminder to all committee members, please identify yourself by name and affiliation each time you speak today. It makes our lives a lot easier when we prepare the minutes down the road.
An important note to both committee members and all WebEx participants, in order to comply with both the spirit and intent of the Federal Advisory Committee Act, please use the Webex chat for housekeeping and procedural matters only. Please do not enter any substantive comments in the chat function as they will not be recorded in the transcript of the meeting.
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 if they comply with our public comments posting policy, we post them as soon as we are able. We will be holding a public comment period today, not at the end of our meeting as we normally do, but after we have finished discussing the committee, the final draft report, and before we take a final vote on the passage of the report.
My goal today is not to take a break and to continue to power through and end by noon today, if not earlier. As we did note in our Federal Register Notice announcing this meeting, during our public comment period, public comments will be limited to three minutes per individual.
Let me ask our committee members if anyone has any questions about anything I've just gone over. I don't see anyone jumping up and down, so if we could go on to the next slide, please, that would be great. Let's launch into our meeting if everyone is ready.
By now, all committee members have had a chance to thoroughly digest the draft final report. We have also posted it on our website. I have circulated just last night a few additional substantive comments that we have received collectively. I'm happy to go through them if anyone has any questions about them or any concerns. Kirsten, would you be able to share your screen just to flag those particular changes when the time comes? Is that possible? Okay.
Kirsten B. Mitchell: That is possible. Thank you.
Alina M. Semo: Before we get into that, let me just preliminarily say that I really want to especially recognize and thank the important work of the working group, Jason Baron, Paul Chalmers, David Cuillier, and Patricia Weth. They have pulled together an outstanding final report. I really want to single out and recognize Jason Baron in particular since he's responsible for the lion's share of the drafting of the report. Please join me in a round of virtual applause of thanks for all their hard work. I don't think we have the applause button that we can share. Candice maybe she'll turn that on if she's able.
We have received, as I mentioned, some substantive comments from two of our committee members as well as one former committee member, and we will discuss those today. We also received a number of non-substantive comments such as grammatical suggestions, extra commas, or deletion of commas, which we have already incorporated in the final report draft, but I will not review those today. So with that, Kirsten, would you mind going ahead and sharing your screen?
Kirsten B. Mitchell: No, I think Candice needs to give me permission to do so.
Alina M. Semo: Okay.
Kirsten B. Mitchell: As soon as she has done that, I can share my screen.
Alina M. Semo: That would be great.
Producer: You should have presenting rights now.
Kirsten B. Mitchell: Okay, super. Let me...
Alina M. Semo: Oh, and we have the ability to have reactions, so I'm very excited. I'm clapping hands again.
Kirsten B. Mitchell: Okay. Can you see my screen?
Alina M. Semo: Yes, very much so. Kirsten, if you don't mind, if you could work your way down to the greens, as we like to call them. What we did was we highlighted in green highlight any changes that we considered more substantive, and because we have not shared those with the public, I wanted to make sure that we did that now.
Here's the first one. This was a suggestion that we add, "and federal agencies," under recommendation 2024-12. I'm sure there's no comments about that, but I'm pausing for a second. Don't see anything, okay. Next, please. Here is the next substantive change. Kirsten, you can probably see this a little better maybe than I can, but I think there was an additional word added after the 71,790 was the word “requests.”
Kirsten B. Mitchell: Correct.
Alina M. Semo: And then some additional language suggested added current incoming workload along with trying to replace their current backlogs.
Kirsten B. Mitchell: Reduce.
Alina M. Semo: Reduce, sorry. Reduce,
Kirsten B. Mitchell: Although replacing backlogs would be great.
Alina M. Semo: Yes, that would be wonderful.
Kirsten B. Mitchell: That would be magic.
Alina M. Semo: That would be magic. I agree. And then there was another word added in the next paragraph, experience. Okay, no concerns or objections about those, right? Okay. We also had a footnote addition that came in. This was for one of our former committee members, and you can all read that. Kirsten, can you read that out loud? That's actually very small for me to read.
Kirsten B. Mitchell: Sure, sure. I'll just read it out loud. Shortly before this committee's last meeting of the 2022 to 2024 term, OIP reported in its annual summary of agency [FOIA] reports that the government-wide request backlog was 200,843 at the end of fiscal year 2023. OIP blog post summary of fiscal year 2023 Annual FOIA Reports published June 7th, 2024.
Alina M. Semo: Thank you to Bobby for publishing that just in time for our report to be finalized. That worked out very well. Thanks, Kirsten.
Kirsten B. Mitchell: Sure.
Alina M. Semo: On to the next change, I believe was on page 10.
Kirsten B. Mitchell: There it is, and I'm going to stop here between 10 and 11.
Alina M. Semo: Just a little bit of wordsmithing, but striking the word issued, adding a phrase, "determination letters are issued in response to more than 1 million requests across the federal government each year." Next sentence, a determination letter has both substantive and procedural, and then it continues with consequences under FOIA. Any objections to those changes? No. Okay, moving right along.
Page 11, a couple of word additions and strikes. We just have the word mission added in the last full paragraph that starts with, "first the federal government," and we also had “guidance” added and “resource” struck. The model determination letter will help ensure that all agencies, regardless of their omission, experience or resources, have guidance they can consult for current best practices. That's how that sentence agreed. I think I don't hear any objections, Kirsten. We can keep going. Next one I believe is on page 21.
Kirsten B. Mitchell: There we are.
Alina M. Semo: This was under comment, the second paragraph under recommendation 2024-05. Many agencies have fully funded full-time employees, FTEs, but are unable to fill even those positions. Those are the changes that were suggested, striking some of the other words in that sentence. Okay, no objections heard on that one, Kirsten. Keep going, we're doing great. Next change I see is on page 30.
Kirsten B. Mitchell: More than halfway through. There we are.
Alina M. Semo: Yes, here we are. This was an addition that was suggested by one of our committee members. The second open US Government National Action Plan released in December of 2013, which also created this committee, by the way, called for improving customer experience through a consolidated online FOIA service, and we added footnote 65 to reference the NAP 2.0.
Kirsten B. Mitchell: Alina, I'll just note here that I see the footnote-
Alina M. Semo: I believe that completes all of our green highlighted items. I don't see any others.
Alex Howard: There's a point on that.
Alina M. Semo: Kirsten, you're breaking up. Can you say that again?
Kirsten B. Mitchell: Oh, all I was going to say this is-
Alina M. Semo: Oh, I'm sorry, Alex. Go ahead, please.
Alex Howard: I think I'd just say I'm not sure that it called for improving it. I think it committed to doing so. My understanding of all of these plans is that they are commitments. They are not simply calling for things, but they are commitments by the US government that are supposed to be co-created with the US civil society organizations so that it should not just be a call for, but a commitment to the Archivist now has continued that commitment by rechartering this committee.
Alina M. Semo: You would suggest Alex, that we change called for to “committed to improving customer experience,” right?
Alex Howard: Yeah, I think that's true because calls aren't always met and commitments aren't always kept either, but at least we should clarify that the structure of the plan is to make public commitments that then the government implements.
Alina M. Semo: Okay. Kirsten, I think that's a change you can make, doing this live, very excited.
Kirsten B. Mitchell: I just did.
Alina M. Semo: Awesome.
Kirsten B. Mitchell: I even spelled committed properly.
Alina M. Semo: All right, thanks, Alex, for that comment. I apologize I didn't see your hand. I was looking at multiple screens.
Kirsten B. Mitchell: I just wanted to note that the footnote, just a formatting issue. We'll take that out of bold.
Alina M. Semo: That was just to bring attention to everything. That concludes all of the substantive comments we had received. I just want to pause here and make sure that no other committee members have any other language, comments, responses, additions, anything else that we should talk about. Okay, I'm hearing none.
I've asked our working group if they wanted to make any comments and they ceded the floor to me just to remind everyone that in pulling together this excellent report, they relied very heavily on the really great work of the three subcommittees - Resources, Implementation and Modernization. Not necessarily in that order, but all three subcommittee reports were very excellent and were a great launching point and platform for the working group to pull the final report together.
The final report certainly reflects all of the great work that the subcommittees did, and I want to thank all the subcommittees for all their great work, including in particular our subcommittee co-chairs. They deserve a round of applause as well. Can I call on you right now? We have David Cuillier and Michael Heise, and formerly Catrina Pavlak-Keenan who chaired the subcommittee on Implementation, so a round of applause to them. Thank you.
For Resources, Paul Chalmers and Gbemende Johnson. Round of applause. Finally, for Modernization, Gorka Garcia-Malene and Jason Baron. A round of applause for that. Thanks. Oh, we got a double from Alex. Thanks. Okay, any other comments or thoughts? This is going very quickly, which is great. I'm just going to pause for one second and make sure no one else has any other comments that they would like to share at this time.
As I promised earlier, before we take a final vote on the final report, we are going to open up public comments on the final report. I want to remind all of our attendees that the FOIA Advisory Committee is not an appropriate venue for concerns about individual FOIA requests. If you do need OGIS assistance, please email us at OGIS@nara.gov.
Any 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 YouTube recording and will be available at any time on the NARA YouTube channel. As I had mentioned earlier, public comments are limited to three minutes per person. Before we open up our telephone lines, I'm going to turn over to Dan Levenson, my colleague at OGIS to see whether we have had any comments in chat that need to be accounted for. Dan?
Dan Levenson: Hi, Alina. Yes, good morning. Our frequent public commenter, Mr. Hammond, has noted that in his opinion, the chat comments in Webex should be official records and also that...well, he noted that I would be reading them out loud so that people could see them and I believe those are all his comments so far.
Alina M. Semo: Okay. Thanks, Dan. We have no other chat comments?
Dan Levenson: We have another comment that noted that the 2022-2024 committee is awesome, the best ever, and asked everyone to come back.
Alina M. Semo: Okay, that's a great comment. We'll take that.
Dan Levenson: That is a great comment.
Alina M. Semo: Thanks for reading that.
Dan Levenson: That's all I see.
Alina M. Semo: Okay. That sounds great. Candice, may I turn over to you please and ask for you to give some instructions about calling in and providing any public oral comments?
Producer: Absolutely. As we begin the public comment period, you may click the raise hand icon, which is located at the bottom of your screen to join the queue. You'll be given three minutes to make your remarks. You'll hear a tone when your line is un-muted, at which time, please state your name and affiliation, then make your comments.
If you're not using Webex audio, you may press #2 on your telephone keypad to join the queue. To assist you, there is a timer on the right side of your screen. It'll begin counting down as soon as you start your remarks and you'll hear a five-second warning when your time is up.
Alina M. Semo: Thank you, Candice. Do we have anyone waiting to be called on?
Producer: We do. Their audio though is not connected, so we're not going to be able to hear anything. I'm going to send them a note if you want to... We'll come back to them as soon as they get their audio connected?
Alina M. Semo: Sure. Candice, is there anyone else waiting to be connected?
Producer: No, it's the only person in the queue.
Alina M. Semo: Okay. We'll give them a minute. Give you a chance to send them some instructions. Thank you.
Producer: Okay. It looks like we've got them now. Hi, your line is open. Jackson, go ahead, please. Unfortunately, we're not picking up audio from the line.
Jackson: Hello, this is Jackson. I would've liked to have participated contemporaneously in today's discussions through the YouTube chat where my unfiltered and timestamped comments would be preserved for the thousands who will view the YouTube video of this meeting live and later.
The Archivist and OGIS director impermissibly refused to respond to requests for reasonable accommodation. I cannot imagine how hearing and speech impaired citizens may participate at all.
At the May 9th, 2024 FOIA Advisory Committee meeting, OGIS addressed this lack of reasonable accommodation related to YouTube chat stating, however, not allowing YouTube chat, I mean YouTube chat turned off, is completely in line with all of NARA's policies regarding the use of chat and social media. Having spoken with our counsel about that as well as our social media team, we determined that it was acceptable but as an initial matter, it may have been permissible for OGIS to have sought and for NARA's general counsel to have provided legal advice in the setting of such a complaint.
Then, open FOIA meetings are governed by multiple statutes mandating public participation, whereas other NARA social media is not. For example, the FOIA Advisory Committee was established in accordance with the U.S, Second Open Government National Action Plan, released on December 5th, 2013, the Freedom of Information Act five USC section 552(h)2(c), and the Federal Advisory Committee Act.
Nevertheless, has there ever been an OGIS director so hostile to members of the public that the director, a civil servant, is supposed to serve? On the issue of exploding litigation costs and fees, agencies have only themselves to blame for prolonging litigation hoping that litigants will run out of money and other alternate [inaudible] bad behavior.
Agencies know that success is often measured by the number of records released, but what if an agency lied to the court? What if the agency changed its position multiple times and still did not address all claimed exemptions? What if the requester submitted a request to an entity seeking to discover the operational procedures of a subordinate entity and the accuracy of Privacy Act and civil liberties reporting via quarterly Privacy Act report submissions?
Then, in sworn declarations with multiple changes in position, the agency stated that such subordinate entity had not submitted any such reports which are mandated by Section 803 of the implementing recommendations of the 9/11 Commission Act of 2007 42 USC Section 2000(e)1, Public Law 110-53, August 3rd, 2007, and so on for multiple other FOIA requests and litigation. What if the court refers matters to a special counsel? What a success in litigation.
On the issue of destruction of FOIA records, I have been reading about an America first legal FOIA case concerning unauthorized records disposition cases involving the Archivist of the United States and Centers for Disease Control and Prevention. Case number 1:24CV1092 in the District Court of Columbia. It is very interesting. This committee is doing an awesome job. Thank you.
Alina M. Semo: All right. Thank you, Jackson, for those comments. Candice, anyone else waiting to be heard?
Producer: There are no further people in queue.
Alina M. Semo: Okay. All right. Any comments or reactions to the comments we've heard? Alex, go ahead, please.
Alex Howard: On the substance, I've known Miriam Nisbet and you, Alina, since OGIS was founded, and I have never found either of you to be hostile to the public in any way, just the opposite. On the substance of the commenter, I would say that from my perspective outside of the committee, that it would be helpful to consider bringing in more opportunities for the public to participate across all of the places that the committee posts its videos, its audio, its comments, et cetera.
Indeed, that's in part of our recommendations, and that I hope that in future terms, if we come back to being in-person, that public comment is not limited to three minutes and that there's the opportunity for robust back and forth between the requester community, officials, members of the advisory committee, et cetera. I think that's a very important part of the ethos of this and while I understand the context of that YouTube chat being turned off, as people who go back to a very first meeting might recall, I certainly, from my perspective, would like to see the committee come back to hybrid discussions and to embrace the full hurly-burly of online commenting, as challenging as it can be, because that is the current state of American discourse. I hope that while you have the discretion to curtail and limit comment and to just stay in this space, I do hope that future terms will shift.
Alina M. Semo: Okay. Thanks, Alex. Any other comments or reactions from our committee? Okay, I'm not seeing any raised hands. All right, Dan, I'm just going to check in with you one more time. Any other chat comments that need to be read?
Dan Levenson: I'm checking now, Alina. The commenter requests that we read the exact comment and we don't paraphrase.
Alina M. Semo: Okay. I believe today you actually read the comments as they were.
Dan Levenson: I tried.
Alina M. Semo: Yeah. Okay, thank you. All right, everyone, I'm taking you on this wild journey. We're moving along very quickly. I'm going to ask if anyone feels the need for Kirsten to review the voting procedures before we take our final vote or is everyone pretty well immersed in the voting process since we just finished engaging in it in the last three meetings? Does anyone need the voting procedures reiterated? Okay, I'm not seeing anyone.
With that, I think we're ready to vote on the final report. How does everyone feel about that? Good. Getting thumbs up, thanks. All right, I would love to have a motion for a vote on the final report and recommendations with the change suggested by Alex Howard today. May I have a motion?
Michael Heise: I'll move. This is Michael from-
Patricia Weth: Patricia Weth from PBGC. I motion that we vote on the final report.
Alina M. Semo: Okay. Thank you, Patricia, do I have a second?
Gorka Garcia-Malene: Second.
Alina Semo: Thank you, Gorka. All right, all those in favor, please say aye.
Group: Aye.
Alina M. Semo: Anyone opposed, please say nay. Does anyone wish to abstain? Okay. Kirsten, I'm just checking with you to make sure that you got everyone.
Kirsten B. Mitchell: Indeed I did. I heard 18 to 0 because Ben is not here today, he's absent. 18 to 0, no opposition and no abstentions. Is that correct, Alina and Bobby?
Bobby Talebian: Yeah, I can vote on the report...
Alina M. Semo: Yep. I voted in favor of the report. Yes.
Kirsten B. Mitchell: Okay, super. Then that confirms the vote is unanimous, 18 to 0. Thank you.
Alina M. Semo: All right. I think we all deserve a round of applause for each other. Great job, everyone. I have just a few thanks that I just wanted to issue and then I want to open up the floor. I know one member of our committee would like to raise a couple of issues, but before we get to that, I just wanted to thank all of our committee members again.
After nearly two years of collaborative effort and dedication, we have come to the end of the road. I think we should all pat ourselves on the back and be really very proud we've put in to craft all 16 new recommendations. It is absolutely a testament to each of your contributions, expertise, and commitment to our shared goal of proving before the process.
This final report we have discussed and voted on today represents not only our collective hard work but also the diverse perspectives and insights that each of you has brought to the table. I am truly grateful for the opportunity to chair such a talented and dedicated team. I want to extend my sincerest thanks to each and every one of you for your unwavering support, thoughtful feedback throughout the process and tireless effort.
Again, particular thanks to our subcommittee co-chairs, but everyone's contributions have been invaluable and I'm very proud of everything we have accomplished. I also want to issue a particular huge thank you to our Designated Federal Officer, Kirsten Mitchell, and our alternate designated federal officers, Dan Levenson and Kimberlee Ried. I think you will all agree they deserve a huge round of applause for all of the support they have provided to us this term. Let's take a moment and give them an applause. Very much deserved. Thank you.
I also just want to take this opportunity to thank the rest of our OGIS staff, NARA staff, and NARA contractors who have assisted the committee behind the scenes during the past two years. It truly takes a village to bring all of this together, so thanks to everyone for all of that. At this time, I wanted to open up the floor to any comments and thoughts and I see one hand up already. Jason, go ahead please.
Jason R. Baron: Alina, I want to thank Bobby for the role that the Department of Justice has played. Bobby, you've been extremely gracious in your time with the subcommittees and in weighing in with substantive comments, and I look forward to your work going forward in implementing those recommendations that touch on OIP.
Alina, you have left off one important person for this term, which is yourself. Alina, you are a consummate public servant. I've known you for a very long time and I appreciate all of your support for this committee and everyone at OGIS that I have dealt with deserves my personal thanks and I'm sure the thanks of the committee.
Alina M. Semo: All right, thank you so much, Jason. Really appreciate that. Any other thoughts regarding the committee's work so far? Okay, Alex, I see your hand up. Go ahead, please.
Alex Howard: For anyone who isn't aware of it outside of the committee, there was a case study produced by OGIS on the work of this committee over the last nearly decade. It's available online, you can take a look at it. I think it's an important historical document that reflects that there have been dozens of people in and outside of government who've collaborated through this mechanism and have, as been pointed out, produced many substantive recommendations and through the work of the committee itself have, I think, increased the relationship activity between the requester community and many of the people inside of government where I think the process itself is the product and the fact that this has come out of the Second National Action Plan for Open Government is worth noting.
While our government’s commitments have shifted over time and the priority it's placed upon transparency and accountability has shifted over time, the National Archives has not, and I want to particularly thank Debra Wall, who was acting archivist, David Ferriero, the 11th Archivist, and Colleen Shogan, who has chartered a new term of this committee, which have all shown that NARA as an institution is committed to creating this space. I want to say thank you for that. It is an example of how open government has endured as a principle, as a practice, as a product, as a process, and as a platform for people to sit with each other to offer ideas.
I just wanted to say thank you in the interest of collegiality and also making sure people knew that NARA's open government commitment in its most recent plan was met by producing that, and give particular thanks to Kirsten for all of her hard work in making that real. There's a tremendous amount of behind the scenes efforts that people I think may not be aware of if they tune into these meetings and it's worth recognizing.
Alina M. Semo: Thanks, Alex. Really appreciate those kind words. I have a couple of other hands up that I see. Kirsten, I believe your hand's up.
Kirsten B. Mitchell: Yes, just to say thank you to Alex for that and I pasted the link to the document that he's talking about in the chat, but it is on the National Archives Open Government page. Thank you, Alex.
Alina M. Semo: Okay. Alex, your hand is still up. Did you have anything else you wanted to add? Alex's hand is down. Okay, anyone else have any other thoughts that they'd like to share regarding our work during this term of the committee? It's okay to be silent. It's fine. Just absorb all the good vibes today.
Okay, I'm not hearing from anyone else. No one's jumping up and down or waving their arms frantically at me. I think we can say we have successfully concluded our committee business, but before I ask everyone to sign off, I know one of our committee members asked for some floor time to bring up a couple of new issues, so I would like to turn the floor back over to Alex if you would like to go ahead.
Alex Howard: Thank you, Alina, and thank you for the space. There are two things I wanted to bring up today. One is a wrinkle that I think may be of interest to this community more so than the broader public, but implicates the broader public. The Internal Revenue Service, IRS, has introduced a new way of authenticating people online that may be familiar to people who have filed for unemployment benefits or have otherwise interacted with the government over the course of the pandemic.
It's a biometric authentication, which is to say you upload a photo ID and then it matches your face to it or you can get a video chat that's provided by a private company. This was something that was introduced last year at the IRS. My understanding was that it was done so because first party requesters need to identify themselves. It is the sole example in the FOIA where people need to identify themselves in order to make a request, that's under the Privacy Act.
That particular use case makes a lot of sense. However, this same method of authentication is now being applied to anybody who wishes to use the online system at the IRS. This has also been instituted at Treasury and the Social Security Administration. My view is that there's nothing in the statute that requires people to identify themselves, much less to provide biometric information through a government ID, much less than provide a social security number to a private service.
The agencies in question are providing enhanced opportunities for people who are involved in the electronic system. They're offering the ability to correspond with agencies, a fine thing, to check the status of their request to make requests access their documents. While it is possible to make a request to the Treasury Department or the IRS using FOIA.gov, if you actually go to their pages, it's quite hard to find that distinction. Indeed, if you do so on mobile, you can't see that option at all. The responsive website gets rid of that.
I think that's problematic. I hope that the next iteration of this committee engages with how and where first party requests and the authentication requirements that exist now should be balanced against the public's rights to make requests to view documents to interact with agency personnel without having to provide a government issued ID and social security number to a private service. Even if those things are removed from the agency's purview and they're externalized.
The fact that there is an identification requirement to make a FOIA in any context, I think is a mistake and I hope that future iterations of the committee, the FOIA Council, FOIA Officers Council and Congress, all take a serious look at that, and I also hope that we see in the future committee a really focused look at how and where there are patterns and practices of evading the FOIA.
Unfortunately, we have seen, in the recent month, a growing scandal at the National Institutes of Health. It's become clear that there is unfortunately context in which we had officials, including the head of the NIH, including Dr. David Morens, who had a pattern and practice of not just trying to evade FOIA by misspelling, but actually moving public business onto private email systems and perhaps even working with the then FOIA liaison to destroy records.
I raised this issue to the Archivist of the United States on Monday with hopes that there would be accountability. I hope that the National Archives itself conducts an investigation working with inspectors general and if they find that there has been an authorized disposition to evade the FOIA that that's referred, if it's appropriate for the Department of Justice, I hope that the FOIA community and government sees this not just as a reason to pull back, but to re-engage and double down to ensure that public does not come away from this with the impression that it is the position of the US government that this behavior is okay.
I don't believe that to be the case given my experience with all the members of this committee but as of yet, I have seen no strong statements from the White House, Office of Management and Budget, from the Archives, or from the Department of Justice, specifically the Office of Information Policy stating that people who willfully try to destroy records to evade the FOIA or move public business into these systems will face sanction. That is the missing part I have seen of FOIA in our country, the lack of enforcement if civil servants and officials choose to actually evade this transparency law.
I appreciate the opportunity to make this comment. As someone who's a representative of the requester community, I feel it's important for our committee to be discussing the reality of FOIA as is experienced outside of government and to encourage everyone inside to make strong statements to state that this kind of behavior would not be tolerated at their agency, and that just because this "FOIA lady" who apparently was a public liaison, just because they've resigned from government doesn't mean that the issue is closed.
I am hopeful that the incredible recommendations and commitment to public integrity displayed by committee members will result also in substantive change, but my sense is that if we don't see more public recriminations, that the impression of abuse of power in this context will be set as an alternative fact. That's what I wanted to say today and I appreciate the space to offer those comments. I know that it's not a great way to end, but if we don't address what's in the public dialogue right now, I feel we're missing an opportunity as a committee. Thank you, Alina, and thank you to all of you for your service.
Alina M. Semo: Thanks, Alex. Appreciate that. These are issues we can carry on to the next term of the committee, but I'm just going to pause for a second. Does anyone want to share any thoughts on anything Alex has said? I see a couple of hands. I don't know what order we should go in, but Michael Heise, do you want to go first?
Michael Heise: Michael Heise with the EEOC [Equal Employment Opportunity Commission]. Thanks, Alex, for the comments. I just want to provide a I guess from the federal side, at least from my perspective working at EEOC, I do hope that future committees will really look at the resource issue for FOIA. I'll just tell you, I was on three of these subcommittees, all three of them. What I noticed was there was a lot of interest in folks signing up for the Modernization and Implementation, but I'll tell you, I didn't see a whole lot of the requester community jumping up and down to be on the Resources one.
I just want to say that it's really easy to ask folks on the government side to do stuff without regard to any resources because you're not the one doing the work, but it's not easy. So I do hope that the requester community members in future, to the extent there is a Resources Subcommittee, that there's more interest from that side of the aisle because we need their support and it's in their interest for us to have more resources on this stuff.
Now to the other side of the coin, I think on what Alex was talking about, while I'm not going to speak one way or the other to what's going on with IRS or with NIH, but I will say that what is a federal agency FOIA office to do in a world where artificial intelligence and AI can rapid fire within seconds, submit request after request after request after request, kind of like in a bot sort of thing so not really a person, how are they supposed to deal with that? How is sources like the FOIA portal, national portal, the FOIA.gov portal, how is that being leveraged in a way by the requester community that has an adverse impact on the processing of FOIA requests by way of inundating agencies such as ours with duplicate requests that when you look at the timestamp are submitted within seconds of one another.
There's plenty to go around all over the place, but there's a real potential issue with bots and AI and this non-human submission of FOIA requests that our agencies, our agency and other agencies have to deal with, but we don't have corresponding support. To the extent there's abuse on the government side, I would respectfully submit that there's abuse on the requester community side as well.
Alina M. Semo: Okay. Thanks, Michael, for those comments. Jason, your hand was up earlier. Are you coming back?
Jason R. Baron: Yes, I wish to second much of what Alex said about the NIH controversy. I do want to point out to the committee and to others that there is an existing statute, 44 USC 2911, disclosure requirement for official business conducted using non-official electronic messaging accounts. Since 2014, the Federal Records Act is required that offices or employees of executive agencies may not create or send a record using a nonofficial electronic messaging account unless the office or employee copies an official.gov system or forwards a complete copy of the record to a .gov system and subsection (b) of 2911 talks about adverse actions. The intentional violation of subsection (a) may result in an appropriate supervisor taking some kind of... It would be a basis for disciplinary action under various laws. There is law in the books and I would trust that NIH will be looking at taking appropriate actions in conjunction with NARA. NARA always opens, in my experience as 13 years as director of litigation NARA, NARA is well aware of controversies like this and would absolutely initiate an investigation working with, as Alex said, inspector general and if necessary, with DOJ. I just wanted to point that out.
Alina M. Semo: Okay. Thanks, Jason. Alex, just a couple of minutes, please. I think we want to wrap up.
Alex Howard: I have to say I'm disappointed that the response to documented reports of records, laws evasion, and pattern and practice of an agency FOIA public liaison helping people to evade the FOIA, that the reaction to that is to then point the finger at the requester community.
The problem that we face right now is not bots. It is that the federal government is woefully under capacity to make progress against the backlogs because Congress has neither appropriated amount of funding to improve the capacity of OGIS, that the stance of the government's lawyers has often been against disclosure, unfortunately, and that we've seen avoidant leadership from two successive administrations with respect to oversight of the FOIA. I would say there was, once again no hearing for Sunshine Week in Congress.
It is not the problem that the FOIA requester community is asking for information under the law. The problem is that our government is not resourced and led to meet that need. We have seen the State Department eliminate its backlog for passport applications through these efforts, through their efforts, through resourcing. We have seen NARA reduce and eliminate its backlog for people requesting veterans records through the smart use of technology and capacity. Across the government, we have seen dedication to capacity building for different services, but we have not seen it for FOIA.
I agree that the prospect of automated requests made by synthetic persona is a concern. We have seen public rulemaking dockets flooded with inauthentic comments made under fake names or fraudulent use of American identities. Indeed, one of the approaches to addressing that is to think about how and where friction could be added to the process by the addition of identity verification. But I think we need to be really careful at pointing the finger at the requester community for the government's inability to uphold our rights to know and to access information. That's an outrageous thing to do and I don't think that that kind of tu quoque fallacy is a great way to end this particular term.
Michael Heise: Alex, that's not what I said at all and you know it. You brought up something that was in the neighborhood of what I responded to, so I wasn't responding directly to that and you know it. All I'll say is that I'm seeing the AI and the bot thing, not only with what you said with the regulatory comments, but also in the FOIA space.
I hear you on the things that you were saying. I know you won't hear me on the things I'm saying, but you know better than to characterize what I said as pointing the finger back. I'm just saying that our agency and other agents have a lot of stuff to deal with, deal with in this new world and we're doing our best. I really don't appreciate your characterizing it that way.
Alina M. Semo: Okay. One more hand I see up is Gorka. Gorka, go ahead, please.
Gorka Garcia-Malene: Thanks, Alina. Gorka Garcia-Malene, FOIA Officer for NIH. While I can't speak to the case that's in the public eye, what I can share with you is that in my experience, the NIH and its employees comply with both the letter and the spirit of the Freedom of Information Act as well as the related policies. I can also tell you that the NIH FOIA program, the program that I manage, remains absolutely committed to complying with all laws and policies and that we continue to work tirelessly to deliver the highest FOIA standards to requesters and I hope that comes across. Thank you.
Alina M. Semo: All right, thank you and thanks for that discussion. I think we have a lot of issues we can carry forward to our next term. If Candice could go to that slide, it's a great opportunity for me to point out that we are currently accepting nominations for the next or sixth term of the FOIA Advisory Committee. Details regarding how to submit either a self nomination or a nomination on behalf of another individual are contained in the Federal Register Notice that we published on June 7th.
We must receive nominations for the 2024 to 2026 term no later than 5:00 PM Eastern Time, Monday, July 15th, 2024. On this slide, we've got a QR code that everyone is welcome to scan for more details. As in the past, the Archivist of the United States will review all the nominations and make final appointments, and OGIS will notify appointees in writing.
Our first meeting of the next committee's term is going to be Monday, September 9th, 2024 at 10:00 AM Eastern Time. Please check our website for updates and details including whether the meeting will be held in person or virtually. We haven't made that decision yet.
Okay. With that, I believe that we have been able to wrap up a very successful meeting. I want to thank everyone for your attention today for all of your great comments. I hope everyone has a great summer and hopefully we'll see some of you again back in September. If there's no other questions or hands raised, I declare this meeting adjourned.
Producer: That concludes our conference. Thank you for using Intel events. You may now disconnect.