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September 8 Minutes - Certified

The Freedom of Information Act (FOIA) Advisory Committee convened virtually at 10 a.m. ET on September 8, 2022.

In accordance with the provisions of the Federal Advisory Committee Act, Public Law 92-463, 5 U.S.C. App. §§ 1-16, the meeting was open to the public from 10:00 am to 12:00 pm. Meeting materials are available on the Committee’s website https://www.archives.gov/ogis/foia-advisory-committee/2022-2024-term.

Committee members present at the virtual meeting:

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

Committee members absent from the meeting: 

  • Ginger Quintero-McCall, Demand Progress

Others present or participating in the virtual meeting:

  • Debra Steidel Wall, acting Archivist of the United States, NARA
  • Kirsten B. Mitchell, Committee’s Designated Federal Officer, NARA
  • Martha W. Murphy, Deputy Director, OGIS, NARA
  • Dan Levenson, Alternate Designated Federal Officer, NARA
  • Sheela Portonovo, OGIS Attorney-Advisor, NARA
  • Robert Hammond, public commenter

Welcome and Administrative Updates 

Acting Archivist of the United States (AOTUS) Debra Steidel Wall welcomed the group to the first meeting of the fifth term of the FOIA Advisory Committee. She acknowledged the previous term's 21 wide-ranging recommendations, and recapped the status of 11 in which  work has begun or some decision has been made. The Acting AOTUS asked Committee members to review the prior terms’ recommendations and consider whether additional work is needed. 

Next she acknowledged that it was OGIS's 13th birthday. The first year, OGIS handled 391 cases; today, OGIS handles more than 4,000 inquiries a year, thereby fulfilling Congress's mandate to resolve disputes as a nonexclusive alternative to litigation. By allowing its casework to serve as a FOIA barometer and assessing a range of FOIA issues, OGIS fulfills Congress's mandate to review FOIA policies, procedures, and compliance. And by speaking about systemic change in a variety of ways, OGIS fulfills Congress's mandate to identify procedures and methods for improving compliance. 

The Acting AOTUS acknowledged that the FOIA Advisory Committee is a very important part of identifying improvements to the FOIA process and that OGIS complements the National Archives’ strategic goals of “Making Access Happen” and “Connecting with Customers.”

 OGIS Director and Committee Chairperson Alina Semo,welcomed everyone to the inaugural meeting of the fifth term of the Committee. Ms. Semo noted that members' names and affiliations are posted on the website, and members' biographies will be posted soon. She noted that the FOIA Advisory Committee recommendations dashboard on the OGIS website has been updated to reflect the progress on all 51 recommendations that the Committee has made since its inception in 2014.  

Ms. Semo noted that Committee member Ginger Quintero-McCall was unable to join because she was attending the American Society of Access Professionals conference, where she is teaching.

The Committee's Designated Federal Officer Kirsten Mitchell confirmed a quorum.

Ms. Semo requested, in order to comply with the spirit and intent of the Federal Advisory Committee Act, that Committee members keep any communications in the chat function to only housekeeping and procedural matters, nothing substantive.

Ms. Semo noted that recordings of prior meetings are on the NARA YouTube channel.OGIS reviews all public comments for posting. Additional written public comments regarding the Committee's work may be submitted at any time by emailing foia-advisory-committee@nara.gov. She noted several housekeeping matters pertaining to public comments, including that public comments are limited to three minutes per individual during the allotted 15 minutes of oral public comments at the end of the meeting.

Introduction of Committee Members

Ms. Semo asked Committee members to briefly introduce themselves as this was the first meeting of a new term. The members introduced themselves by name, title and brief summary of their FOIA experience. (Full Committee member biographies were subsequently posted at www.archives.gov/ogis/foia-advisory-committee/2022-2024-term]

Introduction to FOIA Advisory Committee Responsibilities, By-Laws and Procedures

Ms. Mitchell, the Designated Federal Officer (DFO), provided the Committee with information about its operation, as summarized below.

  • The FOIA Advisory Committee operates in accordance with the Federal Advisory Committee Act (FACA). The Committee also operates under its charter and bylaws, available on the Committee's  website under governance materials.
  • The biggest responsibility for Committee members is attending and participating in meetings.
  • Government members must submit financial disclosure forms to the National Archives’ General Counsel's Office before participating in any Committee business
  • This Committee's duty is to study the federal FOIA landscape and advise the Archivist of the United States on improvements to FOIA.
  • The DFO will attend all committee and subcommittee meetings, prepare and approve meeting agendas, maintain records and chair meetings when so directed by the (Acting) Archivist of the United States. 
  • There are two alternate DFOs: Kimberlee Ried and Daniel Levenson.

Bylaws

  • OGIS maintains a FOIA Advisory Committee mailbox to assist with record keeping. In accordance with the bylaws committee members must copy the DFO on all committee and subcommittee correspondence.The mailbox is: foia-advisory-committee@nara.gov. 
  • A quorum constitutes two- thirds of the Committee members (13 of the 20 members).
  • FACA requires us to keep detailed minutes and  to post the minutes within 90 days of a meeting. FACA also requires us to post transcripts and we are generally able to post those much sooner.
  • Committee meetings are open to the public and public comments are accepted at the determination of the Chair. 
  • The Bylaws were put together during the first term of the Committee, the 2014-2016 term.
  • Any amendments to the Bylaws must conform to FACA and be agreed to by two-thirds of the 20 members.

Subcommittees

  • Subcommittees report directly to the Committee. The number of subcommittees should be kept to three if at all possible. 
  • Each subcommittee has two co-chairs, one from inside the government and one from outside in accordance with the Committee Bylaws.
  • Subcommittee co-chairs work with DFO to schedule meetings. They set meeting agendas and they lead the subcommittee in its work throughout the entire term.
  • Subcommittees can include working groups that look at very specific issues, often for a shorter term than the entire two-year term. 
  • Any recommendations that are made should move through and be passed by a subcommittee before being presented to the full Committee.
  • At full Committee meetings each subcommittee has time on the agenda to report its  work and findings.

Voting

  • Any member, including the Chairperson, may move that the Committee votes on a matter. No second is required, but a second is welcome. 
  • Only the Chairperson and the members may vote; the DFO does not have a vote.
  • The Bylaws state that there are two types of votes: a show of hands and a voice vote. 
  • In virtual meetings, it can be challenging to tally a voice vote so there may be a roll call. 
  • Passing votes are: unanimous, general consensus, or general majority

Ms. Semo encouraged members to join more than one subcommittee; it is allowed and highly encouraged. It helps for continuity and cross-pollination.

Getting the Most Out of Your Time on the Committee

Mr.  Susman offered thoughts to open this term of the Committee. He noted that at the end of the 19th century, Charles Durell, a patent commissioner, wrote President McKinley that he was resigning and the office should be dissolved because everything that could be invented had been invented. Mr.Susman analogies that to the fifth term of the Committee, and insists there's a lot left to do. He emphasized that FOIA is complex (noting Justice Antonin Scalia's statement that  FOIA is “not for sissies”). Everyone of all interests, assignments, and hobbies, will be able to find lots to do on the Committee.

Previous terms have worked on: fees; agency best practices for requesters; additional FOIA resources; improving training, raising the profile of FOIA; improvements to FOIA websites; records management; search technology; better use of IT; embracing new technologies; and reimagining OGIS. Some recommendations go beyond the mundane and the easily attainable. Other previous recommendations include: Defense and intelligence agency staff revisiting classified information; “Glomar” responses; proactive disclosure, FOIA logs, accessibility under Section 508 of the Americans with Disabilities Act, additional resources, agency websites and logs, and additional resources.

Mr. Susman noted that despite the recommendations, there is lots of unfinished business. When OGIS marks recommendations complete on the Committee recommendations dashboard, it notes: “Although some of the recommendations are marked complete, opportunities for additional work may exist and completion of some of the recommendations rest outside the Archives.” Most of the recommendations rest outside the Archives’ control. The first FAC recommendation, made during  the first term, is marked complete because AOTUS made a recommendation to OMB that the FOIA fee schedule should be updated. Mr. Susman noted that OMB did a perfunctory update, and that's an area that should be followed up.

Several recent firsts: The fourth term of the Committee made the first ever recommendation addressed to a specific agency. It was to the Department of Homeland Security, which receives by far the majority of requests and has a very large backlog, Mr. Susman noted. The Committee  recommended that the legislative branch establish  information access procedures. Mr. Susman also noted that for the first time, the Archivist has rejected a Committee recommendation. Mr. Susman noted that serving on the Committee is not just valuable, not just a possibility of contributing to the continued enhancement of public access to government information on many fronts, but also it's incredibly enjoyable. 

Mr Susman closed his presentation by noting that  a lot of the Committee members have been adversaries in litigation but worked together on  joint challenges: low-hanging fruit (websites), more ambitious (FOIA logs and backlogs) and some very ambitious (legislative branch records and maybe a major overhaul for OGIS). 

Ms. Mitchell added that in the 2018-2020 term, Bradley White with the Department of Homeland Security and Emily Creighton with the American Immigration Council co-chaired a subcommittee together. They got along very well and did a great job of co-chairing; however, at the same time, they were adversaries in court. In that way, they were ideal subcommittee co-chairs.

Alex Howard asked Mr. Susman how the Committee has improved public access to information.  Mr.Susman noted that he's been in the FOIA arena for a long time and is an incrementalist. He gave the example that at the start of his career in 1969, he worked on the Hill for Senator Ted Kennedy, whose big issue in the 1960s was healthcare reform. And the last vote Kennedy took, before he died [in 2009], was for a massive overhaul of healthcare, the Affordable Care Act. It took 40 years for that change. So results only come quickly when the problem is low-hanging fruit, Mr Susman noted. Mr. Susman recommended that  the Committee spend more time on going back to old recommendations and figuring out how to implement them.

Passing the Baton: Ideas from the 2020-2022 Term to the 2022-2024 Term

Ms. Semo noted that the Committee has 12 new members and eight returning members, four government and four non-government members. For the benefit of the new members, she noted that two of the eight returning members, Ms. Weth and Dr. Cuillier, would outline ideas from the previous Committee. Ms. Weth noted that this is her third consecutive term. She provided a  brief overview of the 51 recommendations from the past four terms, pointing out the Dashboard of Committee recommendations, and Committee website in general.

Ms. Weth also

  • encouraged Committee members to review the OGIS/FAC website as a resource and walked through the subcommittee document libraries from previous terms. 
  • encouraged members to keep good notes to feed into the final reports.
  • mentioned last term’s suggestion that subsequent terms should review implementation of—and compliance with—previous FAC recommendations.
  • encouraged new members to contact returning members with questions or for pointers, and for all members to reach out to each other to leverage the body of knowledge on the Committee.
  • encouraged review of themes from previous recommendations: the need to have separate avenues for first-party requesters so they do not have to go through FOIA; technology for better searches; raising the profile of FOIA within agencies to gain support of leadership; and enhancing online access of records.

Dr. Cuillier spoke next and suggested that this term might be used to take stock of previous recommendations. Dr. Cuillier noted that he appreciates how Mr. Susman enabled a recommendation to be made halfway through last term (in June 2021) as opposed to at the end of the term. He listed the following ideas: 

  • Key discussions from last term: FOIA-like transparency in the judicial branch; vexatious requests; and electronic tools such as artificial intelligence. 
  • Previous subcommittee suggestions: reimaging OGIS (enforcement); fees (revamp/fix/eliminate); agency funding (they’re underfunded, how can we get them funding).
  • Other discussions from last term included privatized data (when the government contracts to private companies, how do we ensure transparency of those records?); “sharp” FOIA practices – requesters bogging down the system or agencies thwarting access. 
  • Additional ideas that have been talked about previously: training for senior leaders; grading FOIA websites; FOIAonline replacement; public input process and working groups; bylaws/procedures updating working group; reviewing the progress/status of the previous 51 recommendations; forming a working group on impact (possible communication with congressional staffers) 

Dr. Cuillier ended by stating that at the second meeting (next week) the Committee will add to the list of topics to contemplate. The Committee is a great forum for the requester community and government FOIA professionals to come together and understand each other better.

Ms. Semo gauged interest from the Committee members about a possible October Committee meeting. 

Mr. Susman stated that matters need to come up at the subcommittee level before being presented to the full Committee. Subcommittee work will happen in October, and there will be many meetings. Chair noted that federal employees will have just ended the fiscal year, and want a breather. An October meeting of the full Committee will not be scheduled.

Dr. Cuillier commented that there's significant organization needed to determine subcommittees and set goals for the term.   

Mr. Susman suggested using group emails between meetings to accomplish more: circulating proposals and ideas to help the plan coalesce. 

The chair and DFO stated that Mr. Susman’s suggestion would violate the Federal Advisory Committee Act requirement as the Committee as a whole is required to conduct business in public.  

The DFO would solicit ideas via email from all Committee members: two or three ideas from each member for focus areas for this term of the FAC. Ms. Mitchell noted she would send the  email  after this inaugural meeting because new members needed to hear the recap of previous terms' work and review previous recommendations. 

The DFO distinguished the business of the full Committee, which needs to be conducted in the public eye, from subcommittee business. Emails are appropriate for subcommittees, where a lot of the work gets done. At the subcommittee level there are no requirements for minutes, or transcripts. However, business of  the entire Committee must be conducted in public.

Mr. Baron pointed out that it doesn't violate the law to send an email around to everyone, it just has to be public. However, email is a slippery slope. 

The DFO pointed out that to avoid running afoul of the Government in the Sunshine Act and the Federal Advisory Committee Act (FACA), the Committee strives to do as much business as possible in the public.

Dr. Cuilier asked about emailing the entire Committee: are such emails posted online? And should members refrain from replying all?

The DFO responded that OGIS does not post the Committee emails online. OGIS will post a report, or some proposed recommendations, or a slide deck. Ms. Mitchell noted that emails to the email box, foia-advisory-committee@nara.gov, do not go to the whole Committee. It is a NARA mailbox used for capturing the emails regarding the Committee

Patricia Weth asked members to share any ideas for potential subcommittees or ideas to be explored during the term.

Michael Heise suggested exploring FOIA Exemption 5, noting that Exemption 7 has sub-parts written into the statute, but Exemption 5 doesn't. Mr. Heise proposed that Exemption 5 should have subparts to cover the various privileges that fall under it: deliberate process, attorney-client, work product, executive privilege,  etc. It would help FOIA professionals organize and track the use of each privilege. Mr. Talebian pointed out that one distinction to make between Exemption 5 and Exemption 7 is that Exemption 7 points to specific law enforcement interests, while Exemption 5  incorporates civil discovery privileges. He noted that OIP already asks agencies to report on the different uses of exemptions.

Ms. Pavlik-Keenan suggested two ideas for FAC to explore: funding and first-party requests. First, funding for technology solutions and for offices that are underfunded and understaffed. Second, distinguishing the avenues for first party requests and non-first party requests, and changing the policy around those.

Public Comments 

Martha Murphy, OGIS Deputy Director, acknowledged a lively chat on YouTube, and referred folks to foia.gov for more general information on the Freedom of Information Act and the FOIA Advisory Committee page on the archives.gov/ogis site for more information about the Committee itself. She read questions posed by a single submitter for OIP and OGIS about funding requirements, methodology, specific cases, and operating procedures.

Mr. Talebian responded that OIP's funding is evaluated every year to ensure that it can meet the demands of its mission and the Department has been very supportive of funding OIP.  All agencies, components, and organizations would want more resources; but OIP is able to fully meet the mission and the Department has been supportive. For compliance inquiries, OIP has always encouraged requesters to come to them if they see compliance issues. OIP can get a better understanding of what the issue is and talk to the agency. Also, that feedback is helpful to implement in guidance and training.

Ms. Semo stated that she is not able to address individual requests, or individual issues related to individual requests for assistance and invited Mr. Hammond to email ogis@nara.gov for individual questions. On the other questions: Ms. Semo noted that OGIS supports the feasibility study, which will study the myriad issues that were discussed in the white paper, OGIS 2.0, and all the issues that the Committee considered in the last term. The feasibility study will answer a lot of the questions.

Mr. Hammond called into the phone line and noted that he appreciated the work of the previous term, including reemphasizing a requirement to post FOIA processing logs. He opined on what he said is a lack of funding for OIP and OGIS, and disagreed with OIP and OGIS testimony at the Senate Judiciary hearings.  He stated that every agency budget should contain a line item for FOIA supported by what they will do to improve FOIA, that being increased staffing, their grade levels and reduced backlogs. 

Ms. Murphy read another question submitted in writing regarding how the Evidence Based Policy Making Act affects FOIA. Mr. Howard shared his expertise on the law, signed into law in 2019. It codifies the idea of open government data in various ways: making information in the U.S. government open and accessible by default, and published and stored, and created in a machine readable format. Mr. Howard noted that still pending is guidance from OMB on title two of the Evidence Act: the Open Government Data Act. Guidance would agencies what their obligations are to structure information in machine readable format to make it accessible. In theory, FOIA officers would no longer send in scans of tables, or scans of things in PDF or TIF formats.  

Ms. Semo announced that the primary order of business for the next meeting would be to talk about the issues that the Committee wants to take up this term, identify subcommittees, and select subcommittee co-chairs. She noted that the next meeting would be Wednesday, September 14, 2022, at 10:00 am ET. Ms. Semo adjourned the meeting at 12:02 am ET. 

I certify that to the best of my knowledge, the foregoing minutes are accurate and complete on November 29, 2022.

/s/ Kirsten B. Mitchell 

Kirsten B. Mitchell

Designated Federal Officer,

2022-2024 Term

 

/s/ Alina M. Semo 

Alina M. Semo

Chairperson,

2022-2024 Term

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