Office of Government Information Services (OGIS)

March 2 - Minutes (Certified)

The Freedom of Information Act (FOIA) Advisory Committee convened virtually at 10 a.m. ET on March 2, 2023.

In accordance with the provisions of the Federal Advisory Committee Act (FACA), 5 U.S.C. §§ 1001-1014, the meeting was open to the public from 10 a.m. to 12:40 p.m. and livestreamed on NARA’s YouTube Channel.

Meeting materials are available on the Committee’s website at https://www.archives.gov/ogis/foia-advisory-committee/2022-2024-term/meetings/foiaac-3-2-2023.

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)
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
Jason R. Baron, University of Maryland
Luke Nichter, Chapman University
Benjamin Tingo, OPEXUS (formerly AINS)
Eira Tansey, University of Cincinnati
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
Patricia Weth, U.S. Environmental Protection Agency
Committee members absent from the meeting:
Adam Marshall, Reporters Committee for Freedom of the Press

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
Daniel Levenson, Committee Alternate Designated Federal Officer, NARA
Jeff Edwards, Environmental Protection Agency
Laura Johnson, Environmental Protection Agency
Brent Evitt, Defense Intelligence Agency
Robert Hammond, public commenter
Michelle Ridley, Webex event producer

Welcome from Acting Archivist of the United States

Acting Archivist of the United States Debra Steidel Wall welcomed everyone to the fourth meeting of the 2022-24 term of the FOIA Advisory Committee. The Acting Archivist quoted Congressman William L. Dawson from nearly seven decades ago: “An informed public makes the difference between mob rule and a democratic government,” a statement that the Acting Archivist said sums up what NARA does. She reminded everyone that by providing advice to her, the FOIA Advisory Committee contributes to a sound democratic process.

The Acting Archivist invited attendees to join Sunshine Week programs — especially the discussion about how FOIA governs records at NARA. She mentioned the open seat on the Committee and that she looked forward to reviewing nominations to fill the vacancy.

Welcome and Updates from the Chairperson

Chairperson Alina Semo welcomed members and those in attendance. She stated that the names and bios of Committee members are on the Committee's website.

Ms. Semo announced that Mr. Marshall was unable to attend the meeting; Ms. Johnson and Mr. Nichter must sign off early; and Ginger Quintero-McCall, who had been occupying a non-governmental seat, had to resign from the Committee because she took a federal job. There have been more than a dozen nominations submitted for the empty seat, which will be presented to the Acting Archivist.

Ms. Semo confirmed with Ms. Mitchell that there was a quorum for the meeting.

Ms. Semo confirmed that minutes from the December 1, 2022, meeting had been certified in accordance with FACA and that they, along with the transcript, were posted on the OGIS website.

Ms. Semo reminded those in attendance that no substantive comments should be made in the Webex chat function and asked Committee members to identify themselves by name and affiliation when speaking. Although the NARA YouTube chat was not on, Ms. Semo noted that comments were welcome via OGIS’s new public comments form. Ms. Semo noted that written public comments that comply with the policy will be posted and that oral public comments at the end of the meeting would be limited to three minutes per individual.

Ms. Semo introduced the first presenters, Laura Johnson and Jeff Edwards from the Environmental Protection Agency (EPA).

Briefing on FOIAonline

Ms. Johnson gave a status update on the decommissioning of FOIAonline and gave background on the history and evolution of the platform. In 2010, FOIAonline filled a significant void that existed in the private and public sectors, and its presence inspired other private-sector FOIA case management systems. Vendors have now created off-the-shelf solutions at a reasonable price, she said. EPA determined that continuing FOIAonline would no longer be feasible due to difficulty and expense in customizations and maintenance. EPA has highlighted specific milestone dates for partners and is working with vendors to migrate partner data.

Mr. Chalmers asked if there is a common theme in the types of customizations that agencies were making to FOIAonline.

Ms. Johnson responded that although each agency administers FOIA in accordance with the general process outlined in the law, each agency has unique records and thus requirements.

Mr. Edwards noted that EPA has observed a wide variety of uses for FOIAonline with some agencies using it to communicate internally instead of relying on email and other agencies using it to release documents and host a repository.

Ms. Johnson added that some agencies wanted to use FOIAonline for records management, which isn't feasible.

Mr. Chalmers asked for examples of things that vendors can do that FOIAonline cannot.

Mr. Edwards responded that the search functions are more powerful in private-sector technology.

Ms. Johnson added that FOIAonline would not be able to keep up with artificial intelligence (A.I.)

Ms. Weth asked if EPA had asked the General Services Administration to take over FOIAonline.

Mr. Edwards responded that the decision to decommission FOIAonline predated both speakers.

Mr. Howard asked two questions: first, how records are being transferred, and second, how EPA is ensuring that no data is lost or becomes unavailable to the public.

Mr. Edwards addressed the first question. EPA has a custom export algorithm that compiles data in a structure to be exported. There is copious documentation and collaboration with data engineers to ensure the importing systems are capable of processing the exported format.

Ms. Johnson addressed the second question. Many agencies that haven't yet awarded a contract may be imminently about to award their contract. EPA does not anticipate any partner not being well-positioned with a new system on the sunset date of September 30, 2023. Some partners are taking on their own messaging approach. EPA is looking into direct communication with frequent requesters.

Mr. Howard asked a follow-up question on deliberations about why FOIAonline wasn't handed off to another agency.

Ms. Johnson responded that such a hand-off wouldn't have solved the problems that FOIAonline experienced. Private-sector vendors can provide a better solution for less money.

Mr. Heise asked if there is any aspect of the FOIA process that would lend itself to a one-stop solution.

Ms. Johnson reiterated that different agencies get different types of requests; however, all EPA partners wanted the ability to pull year-end reports.

Ms. Collins expressed appreciation that EPA is making such an effort to transition and sunset the system.

Ms Semo thanked the presenters and issued an invitation for them to come back for the next meeting. She introduced the next speaker, Brent Evitt from the Defense Intelligence Agency (DIA).

FOIA Administration: Challenges and Opportunities

Mr. Evitt introduced DIA and its mission of military intelligence. He briefed on how his office changed the perception of FOIA at DIA from being viewed as an administrative function to being viewed by senior leaders as an important part of the agency’s overall mission. They did this through ensuring that decision makers and mission partners knew that FOIA is central to the mission of building democracy through public trust.

Mr Evitt discussed how DIA combined offices overseeing records management, FOIA, and declassification into the Information Management and Compliance Office (IMO), which DIA created as of Oct. 1, 2021.

IMO reports directly to the Chief of Staff of the DIA, and its four divisions oversee the following issues: records lifecycle; open government, including FOIA; declassification services; and oversight and compliance, which ties closely to the other three divisions. The new organizational structure has helped with the overall mission to manage information as well as professional development because analysts can gain experience within similar but different issues that all relate to information management, Mr. Evitt said. He noted that the organizational structure change may not work at all agencies.

Mr. Evitt mentioned creative ways to educate about FOIA, citing a FOIA comic book as a success. He mentioned limited resources as a difficulty across government, and acknowledged that administering FOIA still requires a lot of difficult work, particularly at DIA because of the complexity of the information the agency handles.

Mr. Evitt analyzed ways in which the Intelligence Community's necessary secrecy can be a challenge for their FOIA office, but highlighted that leadership support sends an important message, building morale and improving efficiency.

Ms. Semo asked if he could share the comic book.

Mr. Evitt responded that there is an electronic copy likely available online.

Mr. Heise mentioned other informative comics about FOIA.

Mr. Howard read his chat comments into the record asking about DIA's case management system and if it is interoperable with FOIA.gov; how DIA is celebrating Sunshine Week; and if they can disclose spending for tech and AI to declassify and/or redact.

Mr. Evitt responded that he would check on interoperability with FOIA.gov. Declassification is a big, but thorny mission and the agency is working to create a new branch to coordinate declassification. He stated that declassification helps government internal operations, too. DIA plans to expand its reading room alongside a transparency website.

Mr. Garcia-Malene asked about the degree of control DIA has over its FOIA searches.

Mr. Evitt responded that DIA’s information systems are decentralized, so the agency relies on partners to do the searches.

Ms. Deitrick asked about the records lifecycle and how it interacts with FOIA.

Mr. Evitt responded that the records lifecycle from cradle to grave is important in order to avoid spending money maintaining information that is not needed and inefficient to use.

Ms. Semo asked Mr. Evitt to speak about culture change.

Mr. Evitt responded that culture change was less difficult than he had anticipated. In the future, he would like to cultivate further culture change by bringing in a panel of requesters so that Intelligence Community specialists could see who's interested in this information and have more clarity on what happens to the information they may have reviewed under the FOIA. Also, he would like to get Intelligence Community personnel teaching FOIA at various training venues because it's difficult for people to enter Intelligence Community buildings.

Ms. Semo read another question from Mr. Howard into the record: if the Department of Defense (DOD) would have proactively released civilian casualty data if a journalist had not filed suit under FOIA or if DOD is actively doing so now.

Mr. Evitt responded that he could not speak about DOD writ large. DIA routinely identifies what information could be proactively disclosed. FOIA requests and litigation bring things to everyone's attention. It is a challenge for any FOIA program to identify the hottest topics for proactive disclosure. Mr. Evitt has never observed an agency not wanting to disclose proactively but has observed that priorities are constantly changing.

Mr. Heise asked about how litigation affects the relationship between those processing litigation and those processing requests and appeals.

Mr. Evitt answered that there are separate teams that process requests, appeals, and requests and appeals in litigation at DIA. If the litigation team is struggling to respond to a case in litigation, they can solicit assistance from the rest of the division, from headquarters, or from other divisions. But they operate with a separate team of people.

Ms. Semo introduced the Director of the Office of Information Policy (OIP) and Committee member Bobby Talebian.

Briefing on Open Government National Action Plan 5.0

Mr. Talebian spoke about OIP’s three specific commitments in the Fifth U.S. Open Government National Action Plan. The first initiative is to update the FOIA Self-Assessment Toolkit to generally incorporate the Attorney General’s 2022 updated FOIA guidance. OIP is adding new modules that will address disclosures, administrative FOIA appeals, and technology expectations The second initiative is for Chief FOIA Officers Council and partners to develop shared FOIA business standards for technology. The third is to enhance the user experience on FOIA.gov, helping users find what they need more quickly.

Mr. Howard noted that all three commitments are pre-existing and asked if OIP created new commitments.

Mr. Talebian responded that the commitments are things that have been under discussion but including them in the National Action Plan elevates those commitments.

Mr Howard asked if OIP would add new commitments to implement from the Committee’s recommendations.

Mr Talebian answered that OIP will continue to work with agencies on best practices for FOIA administration.

Subcommittee Reports

Modernization Subcommittee

Mr. Garcia-Malene, co-chair, gave an overview of the structure of the Subcommittee, early projects, and frequency of meetings. There are two working groups: Process and Technology. The first Subcommittee project focuses on improvements to FOIA response letters and the outcome would be to produce a model determination letter. In an effort to avoid duplication of effort on the intersection of FOIA and technology, the Subcommittee seeks updates from Chief FOIA Officers Council’s Technology Committee..

Mr. Baron stated that the Subcommittee recognizes the importance of civic engagement between agencies and various FOIA communities and will investigate more active engagement.

Ms. Semo solicited questions for the Subcommittee. Hearing no questions, she turned the floor over to the Resources Subcommittee.

Resources Subcommittee

Mr. Chalmers, co-chair, summarized the mission statement and the guiding principles of the Subcommittee: how to demonstrate if agencies need additional resources and the best way to get those resources. The Subcommittee has begun to interview a variety of agencies, having conducted about half a dozen interviews so far. Preliminary results indicate how complicated this issue is and the variety in how agencies are organized. The Subcommittee has also been interested in whether the government could develop or procure a processing system for use by agencies across government. EPA had challenges, but could a similar, better solution be offered across government, which would be especially useful for small agencies that may not have the resources to engage with a private sector vendor?

Mr. Howard asked about FOIA personnel retention and wanted a high-level preview of the Subcommittee’s findings on resources and funding trends.

Ms. Semo mentioned that Mr. Howard could volunteer to be on the Subcommittee.

Mr. Chalmers stated that government IT projects can take on a life of their own. The Subcommittee plans to look into funding questions. On the staffing question, it's complex. The labor market — the “Great Resignation,” in which employees have resigned from their jobs en masse during the COVID-19 pandemic — makes it challenging for the government to recruit people. Mr. Chalmers said that the Office of Personnel Management is having difficulty recruiting younger employees. Discrepancy between agencies' pay scales may further complicate retention. Some agencies have begun to focus on retention.

Ms. Semo solicited questions for the Subcommittee. Hearing no questions, she turned the floor over to the Implementation Subcommittee.

Implementation Subcommittee

Mr. Cuillier, co-chair, stated that the Implementation Subcommittee had posted their update on the Committee website. The Subcommittee has completed about half of the review of past Committee recommendations.

Mr. Baron acknowledged compliance issues with past recommendations. The Subcommittee is working to do everything possible to engage with agencies on their efforts to comply with the recommendations.

With regard to Recommendation 2021-01, that congressional support offices be subject to FOIA-like access, Mr. Susman said that he would be glad to make a motion that OGIS send a follow-up letter to the appropriate congressional committees in the 118th Congress reaffirming the Committee’s recommendation regarding access to legislative branch records.

Ms. Semo stated that such a motion is unnecessary because OGIS is already working on a follow-up.

Ms. Semo introduced public comments.

Public Comments

Ms. Mitchell read a question into the record asking when the OGIS annual meeting will be. She answered that the trend of the past four years is likely to continue with the meeting scheduled for the summer:May, June, or July. It will be scheduled and announced soon.

Mr. Levenson acknowledged multiple chat comments from Mr. Hammond that had already been addressed by the speakers.

Mr. Hammond commented that for the past two-plus years he has advocated for more money for OGIS, OIP, and agency FOIA offices; he believes each agency budget should have a top-level line item for FOIA and records management. He praised OGIS’s blog, and said that agencies should work with OGIS when requesters seek OGIS assistance.

Ms. Ridley stated there were no other callers in the queue.

Closing Remarks and Adjournment

Ms. Semo thanked Committee members and reminded attendees about the March 13, 2023, Sunshine Week program, “Making Access Happen: FOIA at the National Archives.”

Mr. Talebian mentioned OIP’s March 13, 2023, Sunshine Week event and awards ceremony for outstanding FOIA professionals.

Ms. Semo reminded the Committee that the next meeting would be on Thursday, June 8, 2023 at 10 a.m. Eastern time.

Mr. Howard suggested that a representative from the Office of Management and Budget be invited to the next meeting to brief on interoperability between FOIA.gov and other case management systems.

Ms. Semo adjourned the meeting at 12:40 p.m.

I certify that, to the best of my knowledge, the foregoing minutes are accurate and complete on May 9, 2023.

/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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