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December 5 Minutes — (Certified)

The Freedom of Information Act (FOIA) Advisory Committee convened virtually at 10 a.m. ET on December 5, 2024.

In accordance with the provisions of the Federal Advisory Committee Act, as amended, 5 U.S.C. Chapter 10 (codified at 5 U.S.C. § 1001, et seq.), the meeting was open to the public from 10 a.m. to 11:20 a.m. Meeting materials are available on the Committee’s website https://www.archives.gov/ogis/foia-advisory-committee/2024-2026-term.

Committee members present at the 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
  • Kevin Bell, Federal Energy Regulatory Commission
  • David Cuillier, University of Florida
  • Whitney Frazier-Jenkins, Pension Benefit Guaranty Corporation
  • Elizabeth Hempowicz, American Oversight
  • Scott Hodes, Department of Homeland Security
  • Shelley Kimball, John Hopkins University
  • Margaret Kwoka, The Ohio State University 
  • Frank LoMonte, CNN
  • Marianne Manheim, Department of Health and Human Services
  • Deborah Moore, Department of Education
  • Joan Moumbleaux, Environmental Protection Agency
  • Ryan Mulvey, Americans for Prosperity Foundation
  • Richard Peltz-Steele, University of Massachusetts
  • Melissa Pickworth, Department of Health and Human Services
  • Sarah Weicksel, American Historical Association
  • Nick Wittenberg, Armedia

Committee members absent from the meeting:

  • Nieva Brock, U.S. Department of Defense
  • Bobak Talebian, U.S. Department of Justice, Office of Information Policy

Others present or participating in the meeting:

  • William J. Bosanko, Deputy Archivist of the United States, NARA
  • Kirsten B. Mitchell, Committee’s Designated Federal Officer, NARA

Welcome from Deputy Archivist of the United States

Deputy Archivist William J. Bosanko  welcomed attendees to the third meeting of the sixth term of the Committee. He noted that a decade ago, NARA established the federal FOIA Advisory Committee and that he had the privilege of speaking at the inaugural meeting. He noted then and now that FOIA administration should not be entirely government-run; FOIA is a partnership between government agencies that implement the law and policies, and requesters who use the law and policies. That aspiration is embodied in the FOIA Advisory Committee. When the Committee was being set up, agencies reported processing more than 678,000  FOIA requests in fiscal year (FY) 2013. A decade later there were over 1 million annual requests. That challenge and others, he noted, creates an opportunity  for the Committee to discuss FOIA's toughest challenges.

Mr. Bosanko noted that two weeks earlier marked the 50th anniversary of the first legislative amendments to FOIA, when Congress overrode President Ford's veto of the bill. The 1974 amendments established processing timeframes, as well as establishing the U.S. District Court in the District of Columbia as the universal venue for FOIA lawsuits, and gave federal judges the right to review classified records in camera. Massachusetts Congressman Silvio Conte urged his colleagues to override the veto because it would “strengthen the public’s right to know what its government is doing [so] democracy will work better.”   These words fit with NARA's new strategic framework to strengthen democratic engagement and inspire civic participation. FOIA can and should play a part in both.

Welcome and Updates from the Chairperson

Ms. Semo welcomed attendees to the third meeting of the sixth term of the FOIA Advisory Committee. She noted the first two meetings of the term — September 9th and 13th — are available on the National Archives YouTube channel and certified minutes and transcripts from those meetings were posted online. She noted that the meeting operates under the Federal Advisory Committee Act (FACA) and is public in accordance with FACA requirements. She also noted that  The FOIA Ombuds blog would feature a series of posts with short profiles of Committee members.

Ms. Semo noted that Ms. Brock was absent. Mr. Talebian anticipated joining late, and Dr. Kimball would leave early.

Ms. Mitchell confirmed there was a quorum present and noted that Ms. Hempowicz was having technical trouble.

Ms. Semo encouraged members to use the raise hand icon. 

Ms. Semo asked if a member needs to step away, they should send a chat to the Chairperson and the Designated Federal Officer (DFO). Also, to comply with FACA requirements, she asked attendees to use the chat only for procedural and housekeeping purposes as the chats are not recorded in the transcript of the meeting. 

Members of the public may submit written comments via the online portal, and they will be posted if they meet the public comment posting guidelines. There would be an oral public comment period at the meeting. 

Ms. Semo stated that the agenda would be flexible, with either a break or an early end. In any case, there would be a public comment period at the end.

She noted that the bulk of the time would be dedicated to Subcommittee reports, with the hope that the reports spark discussion among Committee members.

Ms. Semo turned to the agenda.

Statutory Reform Subcommittee Report

Co-chairs: Ms. Frazier-Jenkins and Mr. Mulvey

Ms. Frazier-Jenkins gave an overview of the Subcommittee and its work so far. She introduced the goal of the Subcommittee: to develop and propose recommendations for Congress to amend the FOIA. The Subcommittee focuses on draft recommendations that enhance the requester experience and the challenges agencies face in processing requests. She noted that there were three working groups: the Transparency Obligations working group, which examines mandatory disclosures; the FOIA Processing working group, which examines challenges in processing FOIA requests; and the Enforcement Models working group, which examines mechanisms for enforcement beyond the current judicial review process. She noted that her co-chair, Mr. Mulvey, would present the Transparency Enforcement models working group after she presented the FOIA Processing working group.

Ms. Frazier-Jenkins gave an overview of the FOIA Processing working group, which focuses on challenges that processors and requesters encounter. It is still in the exploratory phase, looking at issues such as: how litigation affects resources, the administration and management of requester fees, funding for reading rooms, and application of statutory exemptions. The goal is to develop recommendations that improve processing issues for agencies and requesters.

Mr. Hodes noted that in the next couple of months, the working group will look at the timeline for when proposals will be made, and how members will look at the issues, and that they will consult with others on the Committee.

Ms. Pickworth added that the working group was mindful of overlap with other subcommittees, so that the work would not contradict or overlap with other subcommittees.

Mr. Mulvey introduced the other two working groups: the Transparency Obligations working group, led by Ms. Kwoka, and the Enforcement Models working group, led by Dr. Cuillier.  

Mr. Mulvey explained that the Enforcement Models working group would look at ideas to change the statute in terms of review and enforcement. It would look beyond the current system of judicial review toward possible new ways to enforce FOIA. Possible reforms include such ideas as overhauling OGIS, creating an independent review body, identifying new ways of despite resolution, creating a FOIA Court, and involving Inspectors General in enforcement. The working group has been active and has a clear timeline for deliverables. It is working on initial drafts of what will become parts of the Subcommittee report and recommendations that will come to the full Committee. 

There are currently three general buckets the working group is exploring: an independent information commission; reforms to the current system of judicial review to streamline it and increase efficacy; and other aspects of government oversight and existing federal enforcement mechanisms that could be applied to FOIA. The working group would seek to draw on existing ideas such as the work of past Committees and FOIA experts. He noted that the Subcommittee hopes to bring the working group’s initial recommendations to the full Committee as soon as the Spring meeting, to do feasibility studies later in the term, and to bring speakers to future full Committee meetings. 

Dr. Cuillier confirmed that Mr. Mulvey’s overview was comprehensive.

Mr. Mulvey presented the third working group: Transparency Obligations. This working group is looking at substantive obligations involving disclosure and how to change that process. It would include not only the scope of statute, but also the affirmative proactive disclosure obligations in sections (a)(1) and (a)(2) of the FOIA statute. This working group has a similar timeline to the Enforcement Model working group, and its buckets are: the foreseeable harm standard and a public interest balancing test; definitional questions about the FOIA, such as definition of “record” and the concept of agency control; and a continuation of the previous term’s work on exploring how FOIA or transparency requirements could be expanded to legislative and judicial branch agencies. On affirmative disclosure, the working group plans to look at adjacent issues such as  Section 508 of the Rehabilitation Act, which requires that all records posted to agency websites be accessible to people with disabilities. The working group would also look at the scope of certain exemptions — specifically Exemptions 4 (trade secret/commercial financial information), 5 (predecisional inter-agency/intra-agency records), and 7 (law enforcement records) — to explore possible modifications. The Transparency Obligations working group would also look at bringing speakers to the full Committee meetings and conducting feasibility studies.

Ms. Kwoka confirmed that Mr. Mulvey’s overview was comprehensive.

Ms. Frazier-Jenkins noted that the Subcommittee is off to a great start in exploring many great ideas.

Ms. Semo invited questions from Committee members for the Statutory Reform Subcommittee.

Mr. Mulvey requested that other Subcommittees should let the Statutory Reform Subcommittee know if they come across any ideas for reforming the statute. He hoped for a cross-fertilization of ideas.

Mr. Baron asked if the Subcommittee had given thought to public input on reform proposals and drafts, such as last term’s solicitation for comments on an Implementation Subcommittee recommendation. 

Mr. Mulvey confirmed the Subcommittee considered that and decided to defer finalizing a request for OGIS to publicize it, but it may end up happening when the recommendations are more fully formed. He noted that many ideas circulated among the working groups came from the public, as well as from past terms. The members are aware of the importance of public feedback, if not at the ideation stage then certainly before the full Committee deliberates and votes.

Ms. Kwoka added that both of the working groups that she is on seek to use as much of the past Committee work as possible, to avoid duplication of work or sending out redundant surveys. To that end, when formulating proposed recommendations, they seek to understand where there are gaps, where further consultation would be helpful, and how to frame public comment.  She noted that much of the work is based on public input.

Mr. Peltz-Steele asked if the consideration of agency control within the Transparency Obligations working group would be fleshed out. He asked if “agency control” implies some form of privatization.

Mr. Mulvey clarified that agency control of a record is not the same as physical possession of the record but rather whether the record is subject to the control of an agency so that the agency can process it under the FOIA. He noted the question of agency control often comes up in the context of records that the President claims are presidential records or Congress claims are congressional records; in those situations, an agency cannot process those records under FOIA. A major question is if privately run prison records are subject to the control of the agency that contracts out the detention, such as the Department of Justice’s Bureau of Prisons or the Department of Homeland Security? What is the extent to which those records are subject to the control of the agency? He noted that different jurisdictions have developed different tests to determine what 'control' means, so it may be better to have a statutory answer.

Ms. Manheim noted that she is the only government person on the Transparency Obligations working group and that the other members are “the public.” She noted that she found their perspectives fascinating and that it would be helpful to have more government perspective as they formulate ideas.

Ms. Semo noted that it's not too late to join the working groups, and that no working group is limited to members of its Subcommittee. She then introduced the Volume and Frequency Subcommittee.

Volume and Frequency Subcommittee Report

Co-chairs: Mr. Wittenberg and Ms. Brock (absent)

Mr. Wittenberg noted that the Subcommittee had drafted its purpose statement and its goal, which can be found on the Committee’s website. There has been an increase of volume and frequency of FOIA requests. He encouraged Committee members and the public to review the website. He reported that the Subcommittee is working on a unified definition of challenging FOIA requests, because the subjective nature of “challenging” varies among agencies due to the variety of experience, size, staffing, and resources. Mr. Wittenberg noted that Colleen Murphy, Executive Director and General Counsel of the Connecticut FOI Commission presented to the Subcommittee on how the state handles vexatious requests. The Subcommittee asked many great questions including how Connecticut pauses a vexatious requester's ability to file requests. He noted that it is unclear which group(s) at the federal level would adjudicate what “vexatious” is, and how the logistics and mechanism would work. The final point he noted was that the Subcommittee is looking at developing a survey of FOIA professionals on issues around volume. The Subcommittee identified the American Society of Access Professionals (ASAP) as a useful avenue and discussed using the annual training conference in Las Vegas in 2025 to gather data from FOIA professionals. The Subcommittee is also considering sessions with agencies, and noted the difficulty in having honest, frank discussions, or even participation. He noted that it might be useful for all working groups and Subcommittees to consolidate the questions they want to ask and send out an omnibus survey. 

Mr. Wittenberg asked if other Subcommittee members had points to add and thanked them for their participation and work.

Ms. Semo asked if the Subcommittee had set up working groups.

Mr. Wittenberg noted that the Subcommittee would consider working groups for areas where they would be helpful.

Ms. Semo asked if the Subcommittee would be open to non-members speaking about challenging or vexatious FOIA requests.

Mr. Wittenberg noted that it would be helpful to use the expertise of the Committee members because “challenging” was subjective. 

Ms. Pickworth noted that “challenging requests” could be caused by the nature of the request or, alternatively, that certain agencies may lack staff, processes, or technology.  Separating burdensome requests from agency-internal issues with processing would be helpful.  

Mr. Wittenberg noted that technology and training can affect processing. He noted that the Environmental Protection Agency (where he previously worked) set the gold standard. It was a great point to parse whether the challenge was internal or external.

Mr. Baron noted the tremendous volume of requests, more than a million each year. Some requests may not be voluminous by themselves, but other requests are. Artificial intelligence (AI) could be a path forward for those requests with enormous amounts of responsive records. Mr. Baron noted that he had commented on the Sixth U.S. National Action Plan for Open Government, stating that the government should look at AI to help manage FOIA backlogs. He noted that this Subcommittee should work with the Implementation Subcommittee. 

Mr. Wittenberg noted that working across Subcommittees was a good idea. He added that he constantly hears about AI, and it would be helpful to break down silos to make information more accessible.  The Subcommittee could help get these ideas out there.

Ms. Semo asked for additional comments. Hearing none, she introduced the Implementation Subcommittee.

Implementation Subcommittee Report

Co-chairs: Mr. Baron and Ms. Manheim

Mr. Baron noted that he and Ms. Manheim divide responsibilities and that others would also speak. He thanked Subcommittee members for their work so far.

He noted that at the beginning of last term, the Implementation Subcommittee began examining the progress federal agencies had made in implementing the 50 outstanding recommendations that existed then. By the end of the term, the Archivist had approved [67] recommendations, and accumulating recommendations would lead to having over 100 in a couple of terms, and this caused the Subcommittee to pause and reevaluate. The Subcommittee started to figure out how the existing recommendations could have higher visibility and greater impact across the executive branch. The Subcommittee would use this term to review select existing recommendations to evaluate which ones can have the greatest impact. 

Mr. Baron thanked fellow Committee member Mr. Talebian, head of the Office of Information Policy (OIP), for taking up the recommendation that asked OIP to include in the Chief FOIA Officer (CFO) Report a question on agency  implementation of past Committee recommendations. The data collected would be helpful to this Subcommittee as it undertakes its work this term.

Mr. Baron introduced Mr. Peltz-Steele.

Mr. Peltz-Steele noted that the Subcommittee had begun to prioritize the previous recommendations to find efficiency. Members polled the Committee and found that many recommendations overlap. Thus, making progress on one often leads to progress on others. He noted that he had begun to create categories that were more functional than the categories that are listed on the Committee recommendations dashboard on OGIS’s website. The Subcommittee created an ad-hoc working group to identify high-priority recommendations. There were four substantive categories: engagement, for example, requester dialogue; technology, for example AI; training, for example, training for all agency employees; and workflow, for example, first-person request management.  There also was a fifth category for items that had significant Committee interest, but did not fall into one of the four categories.  The categories would be helpful in clarifying the values of the Committee and determining how to work to advance those values.

Dr. Moore noted she, Dr. Kimball, and Ms. Moumbleaux are leading the Barrier Analysis working group to examine the challenges agencies are facing in implementing existing recommendations. The working group’s secondary goals are to spotlight the importance for agencies to implement the recommendations, facilitating agency identification of their own barriers, and helping them think creatively about overcoming those barriers. This would include getting senior leadership to think about the barriers. Finally, the working group would work to promote knowledge sharing across agencies to help share best practices. 

The working group plans to use focus groups, largely modeled after the Government Accountability Office’s FOIA backlog study. The number of groups they hold would be determined by the number of moderators and notetakers they can get. They would aim to have a representative sample of small, medium and large agencies. The representatives from each agency should be knowledgeable about FOIA operations and have decision making authority or at least insight into the decision-making process.  The working group would use the Chief FOIA Officer Reports to examine how much agencies have already done. If the data is available quickly, the working group may use it to shape their focus group questions. In addition to looking for note takers and moderators, they have begun working on the questions for the focus group — to find and define protocols for the focus groups so that each one is conducted in the same way. They will explore training for moderators to level-set the protocol and to elicit responses.

Mr. Baron introduced Mr. LoMonte to speak about actions already underway and that will be taken before the next public meeting.

Mr. LoMonte recapped the activities undertaken so far. In the September meetings, there was the idea of seeking a Day-One memo from the incoming administration clarifying that FOIA would be a priority, similar to a previous administration’s statement. The working group considered several approaches including a Day-55 memo that would align with Sunshine Week. The discussion shifted from an aspirational document to something with accountability. They considered both of those approaches.  Because the 2025 CFO Reports ask if agencies are aware of the Committee and its recommendations, the working group didn’t want to duplicate work.  The consensus has been to slow down on seeking a declaration on a Day-One or Day-55 memo, and instead to do additional stakeholder information gathering.

Mr. Baron thanked Mr. LoMonte and turned to Ms. Manheim.

Ms. Manheim noted that they were looking at the positive side: identifying, for example, the best practices that keep winning awards at DOJ’s Sunshine Week. They could promote new and creative best practices and use Sunshine Week to raise awareness of the Committee. The working group has started working on AI and wanted to work collaboratively with other Subcommittees and the CFO Council’s Committee on Cross-Agency Collaboration and Innovation (COCACI) to avoid duplication.

Mr. Baron opened the floor for questions.

Ms. Semo noted that it was not COCACI but the Technology Subcommittee of the Chief FOIA Officers Council that was looking at AI.

Mr. Bell noted that he had asked OIP for information on prior year Sunshine Week nominees. OIP provided transcripts of the awards ceremony, describing the winning work. 

Ms. Pickworth asked Dr. Moore about working together to avoid duplication of effort to coordinate on moderators and interviewees for the focus groups. She wanted to avoid over-burdening FOIA offices. She asked who the target audience would be and noted the challenge in getting people at the right level with insight into processing and management decision making. It may vary agency by agency.

Dr. Moore noted that they were seeking to work with other working groups. They would continue to look at combining efforts. The working group would not be able to find the right person at each agency. Instead, the request would describe what they’re looking for, and agencies would select the relevant person to participate. Coordination across working groups would be helpful but may not yield combined focus groups if there’s not enough overlap.

Ms. Pickworth noted that the Volume and Frequency Subcommittee had overlap.

Mr. Baron noted that Ms. Pickworth had a good point. There should be a joint meeting of working groups to work it out. There are a substantial number of FOIA officers they could tap.

Ms. Semo agreed with Mr. Baron’s point.

Dr. Kimball noted that when both sides have outcomes and recruitment shaped up more clearly, then they can understand if they are working in parallel or separately. The Volume and Frequency Subcommittee began to explore the idea of a survey with focus groups as a secondary data collection. It was early to decide on a focus group because they still have to figure out the ultimate goals and who they are recruiting.

Mr. Wittenberg noted that after having a clearer idea, it would be good to get together. It would be good to understand exactly how many FOIA reporting agencies there are.

Ms. Pickworth noted her support for using the Sunshine Week Awards to identify and share best practices.

Ms. Semo noted that Dr. Kimball would be leaving momentarily, and hearing no comments from Committee members opened the public comment period.

Public Comments

The event producer confirmed that there was no one on the telephone nor were there any raised hands on the virtual platform.

Ms. Semo noted how productive the meeting had been, and confirmed with the event producer that no one was in the telephone queue. She reminded the audience that written comments are accepted at any time on the OGIS website. She noted the creative ideas expressed, and thanked the co-chairs of the three Subcommittees.

Ms. Semo noted the next meeting would be on March 6, 2025, at 10 a.m. ET. She asked for final comments or announcements, and hearing none she adjourned the meeting at 11:20 a.m.

I certify that, to the best of my knowledge, the foregoing minutes are accurate and complete on December 31, 2024. 

/s/ Kirsten B. Mitchell

Kirsten B. Mitchell
Designated Federal Officer,
2024-2026 Term

/s/ Alina M. Semo

Alina M. Semo
Chairperson,
2024-2026 Term

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