Office of Government Information Services (OGIS)

September 9 - Minutes (Certfied)

The Freedom of Information Act (FOIA) Advisory Committee convened virtually at 10 a.m. ET on September 9, 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 Noon. Meeting materials are available on the Committee’s website at 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
Nieva Brock, U.S. Department of Defense
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 O. Moore, Department of Education
Ryan Mulvey Americans for Prosperity Foundation
Richard Peltz-Steele, University of Massachusetts
Melissa Pickworth, Department of Health and Human Services
Bobak Talebian, U.S. Department of Justice, Office of Information Policy
Sarah Weicksel, American Historical Association
Nick Wittenberg, Armedia

Committee members absent from the meeting:

Joan Moumbleaux, Environmental Protection Agency

Others present or participating in the meeting:

Dr. Colleen J. Shogan, Archivist of the United States, NARA
Kirsten B. Mitchell, Committee’s Designated Federal Officer, NARA
Adeline Wilcox, public commenter
Michael Ravnitzky, public commenter

Welcome and Administrative Updates

Ms. Semo welcomed in-person and virtual attendees and introduced the eleventh Archivist of the United States, Dr. Colleen Shogan, noting that Dr. Shogan was sworn in in May 2023 as the first woman appointed to lead NARA. She noted that the Archivist is responsible for preserving, protecting, and sharing the history of the United States, and that Dr. Shogan appointed the members of the 2024-2026 term of the Committee.

Dr. Shogan welcomed in-person and online attendees to the inaugural meeting of the sixth term of the Freedom of Information Act (FOIA) Advisory Committee. She noted it had been over four years since the Committee met in person. She invited in-person attendees to view the nation’s founding documents in the National Archives Rotunda. She noted that the Declaration of Independence contains a grievance against King George III for calling meetings of legislative bodies at “places unusual, uncomfortable, and distant from the depository of public records for the sole purpose of fatiguing them into compliance with his measures.” She noted that NARA is the nation’s depository of public records and its mission is to preserve, protect and share those records. The founders understood that to hold government accountable, transparency and access to records is vital, she said.

Dr. Shogan noted that when Congress was working on the 1974 amendments to FOIA, Senator Robert Taft Jr. said that “freedom of information is the hallmark of a democratic society.” FOIA allows for accountability and transparency, and for the citizenry to make informed decisions. That is why the work of the Committee is so crucial, even when it is not easy. Intense discussions are a good thing because transparency requires intelligent, thoughtful, deliberate discussion and analysis to balance the needs of governance and the needs of the public. This Committee should lead that discussion.

Dr. Shogan noted that across the federal government there were more than 1 million FOlA requests last year. The Committee's creativity and diligence can help make FOlA operate more efficiently. She thanked members for their presence and their service, and turned the meeting over to Ms. Semo.

Ms. Semo welcomed attendees and noted that earlier in the year, Dr. Shogan renewed the Committee's charter for two years through 2026. She thanked Dr. Shogan for her support. Ms. Semo noted some basic housekeeping rules, reviewed the agenda, and set expectations for the meeting.

She noted that OGIS is the federal FOIA Ombuds office, and this year marked the 15th anniversary of OGIS's opening and the 10th anniversary since the National Archives established the FOIA Advisory Committee. She noted that OGIS staff provides administrative and managerial support for the committee, and acknowledged not only the hard work of the OGIS staff, but also other NARA staff, including the audio-visual staff, for their work.

Ms. Semo reviewed a few housekeeping rules. The meeting was being recorded and live streamed on the National Archives YouTube channel with a slight delay. Also, there would be a slight delay for the two Committee members attending on the telephone. She asked attendees to turn off or silence all electronic devices, and noted that meeting materials are posted on the FOIA Advisory Committee page of the OGIS website. She asked Committee members to identify themselves by name and affiliation each time they speak during the meeting to aid with the transcript and the minutes, both of which are required by the Federal Advisory Committee Act (FACA).

There would be a 15-minute break at approximately 11:20 a.m. While no food or drinks are permitted in the auditorium, food may be purchased and eaten at the cafe located on this level. The Committee would reserve the last 15 minutes of the meeting for public comments limited to three minutes per individual. Only those present in McGowan would be able to comment but the Committee would meet again, virtually, on Friday September 13, and there would be a chance to provide oral comments via the virtual platform. Ms. Semo noted that written public comments are always welcome and invited attendees to visit archives.gov/OGIS/public-comments to provide comments at any time.

Agenda

Ms. Semo presented the agenda: first an introduction of the Committee members, then a presentation from the Committee's Designated Federal Officer, Kirsten Mitchell, about the FOIA Advisory Committee's bylaws and procedures. After the break, there would be comments from three returning committee members to offer tips: Mr. Baron, Dr. Cuillier, and Mr. Talebian. They would share ideas from the last term of the Committee with this term. Ms. Semo also noted a new method for determining areas of study: the previous five terms of the committee started each term with a brainstorming session that led to topics ripe for study. This term, Ms. Semo suggested three broad areas of study: volume and frequency of requests, FOlA statutory reform, and implementation of past committee recommendations. There have been 67 recommendations to date.

She noted that introductions would be alphabetical, starting with Mr. Baron on the telephone.

Introduction of members

Mr. Baron introduced himself as a Professor of the Practice at the University of Maryland at College Park. Previously he spent 33 years as a federal attorney, first at the Department of Justice in the Federal Programs branch of the Civil Division, then as the first director of litigation at NARA. He served on two previous terms of the Committee. He noted that he would reserve other remarks for the time reserved for him later in the meeting.

Mr. Bell introduced himself as an attorney in the Office of General Counsel at the U.S. Federal Energy and Regulatory Commission. In that capacity he handles initial review and intake of FOIA requests, interfacing with requesters, litigation— essentially all aspects of the FOIA process.

Ms. Brock introduced herself. She is with the Department of Defense, Defense Intelligence Agency. She is Senior Counsel, working to develop an information and management compliance office with other senior executives that will incorporate all facets of information records management. Her hope for this Committee this term is to see just how close the U.S. can partner and align our FOIA systems, and how technological advances in FOIA requests can be addressed.

Dr. Cuillier introduced himself as director of the Brechner Freedom of Information Project at the University of Florida. He wishes to focus on frequent and voluminous requests, following up on recommendations from the 2020-2022 term to reform OGIS, and to find innovative ways to make FOIA work better.

Ms. Frazier-Jenkins introduced herself as the disclosure officer at the Pension Benefit Guaranty Corporation where she leads a division that processes FOIA and Privacy Act requests. Her goals are building on past recommendations, especially regarding FOlA resources, and using technology to make the FOlA process more efficient.

Ms. Hempowicz introduced herself as Deputy Executive Director of American Oversight, a non-partisan, non-governmental watchdog organization that advances truth, accountability, and democracy by enforcing the public's right to public records. She hopes the Committee makes the best use of non-governmental and governmental voices and minds coming together to improve FOlA so that it meets its promise.

Mr. Hodes introduced himself as Associate Counsel with U.S. Citizenship and Immigration Services at the Department of Homeland Security. He stated that he defends and advises clients on FOIA matters. Previously, he spent 16 years in private practice representing FOIA requesters and then over a decade at the Federal Bureau of Investigation. He wants to use this term to review the concern that the responsibility of implementing FOIA has narrowed to FOIA offices, and he would like to see this Committee examine ways that agency personnel outside of FOlA offices could share the responsibility with agency FOlA officers and offices.

Dr. Kimball introduced herself as the Associate Director of the Communications graduate program at Johns Hopkins University in DC. She has more than 20 years of research experience in open government focusing on a qualitative law-in-action perspective to understand the interface between requester and access professional. Her hopes for the term are to look at ways to make that interface accessible, approachable, efficient, balanced for both sides, especially for those requests that might be framed as unduly burdensome or excessively frustrating, and finding efficient creative ways to implement this term's and past terms' recommendations.

Ms. Kwoka introduced herself as a faculty member of Ohio State University Law School and a member of the 2016-18 term of this Committee. She has spent 15 years studying FOIA, and the right to public access of government information more generally, looking at how administrative systems can better administer transparency laws. She noted that Congress has an appetite for revisiting and improving the FOlA statute on a vaguely decade cycle, observing that about every 10 years or so Congress passes a set of FOIA amendments. Her interest for this term is to look for ideas about which recommendations might be ripe for legislative improvements.

Mr. LoMonte introduced himself as the newsroom legal counsel for CNN, where he advises journalists on legal matters, and noted that his specialty and passion is FOIA. He noted that he was not speaking on behalf of his employer; he's speaking on his own. He's been a superuser of FOIA, first as an academic user then for the news media. He wishes for a deep conversation about deliberative process exemption under FOIA’s Exemption 5. He noted that many states do not have a deliberative process exemption, and he would like to examine the federal exemption.

Ms. Manheim introduced herself as an employee of National Institutes of Health at the Heart, Lung, and Blood Institute, as a branch chief in an office that handles FOIA requests for 22 centers around NIH. She would like to focus on how litigation has “wagged the dog;” a return of decency and kindness; better technology; better training; and to better educate requesters to make better requests.

Ms. Moore introduced herself as the Chief FOIA Officer at the Department of Education, the first person to serve in the role since it became a stand-alone office. Previously, she had spent 15 years in a variety of roles in the federal government. She noted an interest in working and building on work of the past and considering a barrier analysis about the impediments that agencies face that prevent them from implementing the good recommendations.

Ms. Semo introduced Joan Mombleaux from the Environmental Protection Agency, who was unable to attend the meeting. Ms. Moumbleaux is an attorney and IT expert, who previously worked at the National Oceanographic and Atmospheric Administration. She had previously worked in the private sector at various law firms.

Mr. Mulvey introduced himself as an attorney for the Americans for Prosperity Foundation, where his practice touches on various issues of administrative law and legal investigations. He leads FOIA coalitions with other organizations interested in transparency at the federal and state level. He noted his work in running FOIA Advisor and as president of the American Society of Access Professionals, which is committed to training at the federal, state and local levels. He also noted his excitement to serve on the term that occurs 50 years after the 1974 amendments to FOIA, which made FOIA what it is today. The world has changed since 1974, he noted, so there are lots of improvements to FOIA to explore..

Mr. Peltz-Steele introduced himself as a professor at the University of Massachusetts Law School who has been working on FOIA for a long time. The impetus for him to move from journalism to law 30 years ago was a frustration with FOIA. He noted what an honor it is to serve on the Committee, and announced that his priorities were technology and implementation. He is impressed at the body of recommendations previous terms have made, and he would like the Committee to explore more about the efficacy of FOIA relative to the private sector. He noted that the federal FOIA had the advantage of learning from best practices of the 50 state laboratories of freedom of information laws.

Ms. Pickworth introduced herself as the Disclosure Policy Branch Chief in the Food and Drug Administration’s Office of Regulatory Affairs, where she has done FOIA work for 15 years. She supervises a branch of disclosure and works on FOIA policy. She noted the hope to find a path forward on unduly burdensome requests and do work in the area of FOIA funds.

Mr. Talebian introduced himself as the Director of Office of Information Policy (OIP), which is responsible for encouraging governmentwide compliance with FOIA and reporting on FOIA. OIP does this through guidance, counsel and publications. He noted that he has enjoyed serving on other FOIA Advisory Committee terms, and looks forward to building on past successes. He noted an interest in all the themes discussed thus far and noted that they are all ideas to help meet the demands of FOIA.

Dr. Weicksel introduced herself as a historian and the Director of Research and Publications at American Historical Association, founded as a nonprofit in 1984 and chartered by Congress for the promotion of historical studies in the U.S. She looks forward to contributing perspectives from historians, who are part of the requester community, and shares in her colleagues’ hope in looking at technological advances that could apply to FOIA to improve processing time.

Mr. Wittenberg introduced himself as Corporate Counsel for Legal Technology and Innovation at Armedia. He previously worked at the Environmental Protection Agency, and at the White House Office of Science and Technology Policy. He was on the Chief FOIA Officers Council Technology Committee, where he chaired the AI working group. He also served on the American Society of Access Professionals board. He noted his excitement for making the FOIA process more efficient and accurate.

Ms. Semo noted that meeting material and information will be available on the Committee's website. She introduced the Designated Federal Officer (DFO), Ms. Mitchell, to present the bylaws.

Designated Federal Officer's Presentation of Committee Bylaws

Ms. Mitchell introduced herself as the DFO, and as the lead of OGIS's Compliance Team. She introduced alternate DFOs Dan Levenson and Kimberlee Ried. She thanked Rana Kandekhar, of NARA’s Office of General Counsel, and Jamie Atkinson and the National Archives Audio/Visual team. She noted the Committee operates under three acts: FOIA, the Government in Sunshine Act, and the Federal Advisory Committee Act (FACA). She noted there were three other advisory committees at NARA, and that advisory committees have a long history in the U.S. President George Washington sought the advice of one during the Whiskey Rebellion of 1794. FACA, which Congress passed in 1974, mandates how advisory committees operate: transparently and openly, two qualities central to the work of the National Archives. Records of the Committee are posted on the website, and meetings—in person and virtual—are open to the public. She noted that OGIS staff shines a light on the working of the Committee.

Ms. Mitchell noted that the DFO is an administrative officer who ensures that the rules laid out in FACA and the Committee's bylaws are followed. In addition to requirements of FACA, the DFO is a resource. A lot of work was done in previous terms, passing 67 recommendations, and current members will have to learn about what work was done in their studies and recommendations. Ms. Mitchell is happy to make connections with experts such as FOIA professionals, records management personnel at NARA, or Committee alumni. Committee members are expected to attend, volunteer, and submit agenda ideas. There have been terrific speakers who have shared their research and work with the Committee. Some of the members of this term have presented to prior terms: Mr. Mulvey, Mr. Peltz-Steele, and Ms. Kwoka.

Ms. Mitchell noted the hope that subcommittees would be formed by the end of the September 13, 2024, meeting and asked members to consider volunteering as co-chairs of the subcommittees. She asked the public to get involved by submitting written comments and making oral comments during the public comment period. She noted FOIA works best with everyone working together: agencies and requesters. The Chair and DFO look forward to working with everyone and Ms. Mitchell promised the members would have fun.

Ms. Semo noted that the meeting was running ahead of the agenda and announced a break. She reminded attendees that food or drink can be purchased at the cafe, but no food or drink is allowed inside the auditorium. The break would last until 11:02 a.m.

[Break]

Ms. Semo welcomed attendees back from break.

Getting the Most out of Your Time on the Committee/ Passing the Baton: Ideas from the 2022-2024 Term to the 2024-2026 Term

Ms. Semo noted the first agenda item was about getting the most out of serving on the committee and passing the baton from the previous term, with ideas from previous term for this term. She introduced Dr. Cuillier.

Dr. Cuillier noted that what he was about to say was his own opinion. He noted it would be smart not to overextend, not joining all subcommittees because focus is good. Subcommittees should have liaisons and ability to communicate with one another, and working groups can be efficient.

He also noted that it is good to plan ahead: The Committee does not have to wait until the last stretch of the two-year term for the full Committee to provide feedback on recommendations or vote on everything. The previous term was rushed at the end, he said. It's important to do pre-readings; nothing should be sprung on the committee without giving everyone a chance to read it.

Dr. Cuillier noted it would be beneficial to keep in mind who the audience is. He asked how many members had a J.D. and how many people had PhDs. He noted that the recommendations should be targeted to—and for the benefit of—people beyond lawyers and academics.

Dr. Cuillier noted that it was okay to disagree. He noted that in the past he wanted to hear more from FOIA Officers, especially when they have contrary opinions to the majority in a conversation. They should not be reticent to speak up; the requester community certainly hasn't been. It is okay to vote 'no;' consensus is not mandatory. It is also okay to have recommendations rejected; Dr. Cuillier noted his pride in having authored the sole recommendation that was rejected by the then-acting Archivist of the United States.

Finally, Dr. Cuillier noted it was useful to do the homework from the start; reading past terms' reports and subcommittee reports. It's a lot, but it's important for members to have awareness of the work that has been done to avoid reinventing the wheel.

Ms. Semo handed the floor to Mr. Talebian.

Mr. Talebian noted that it's important to keep an open mind to the different perspectives that members bring to the Committee. The recommendations take into account the different perspectives. He noted it was helpful to leverage all the available resources: the Chief FOIA Officer reports, the Chief FOIA Officers Council, the number of initiatives that came out of recommendations, and the reports and recommendations of past terms. The recommendations are good, but they do not define the success of the Committee. When they do form recommendations, the most successful ones are the ones where the members have found consensus that accounts for all perspectives. Successful recommendations should be specific and actionable, and should come with milestones and reasonable timelines.

One of the last observations Mr. Talebian noted was that the majority of the Committee's work is done via subcommittee. It was important not to overextend oneself, and to focus and get involved. Finally, the subcommittees should not duplicate efforts with each other or with the Chief FOIA Officers Council. He ended by noting that FOIA and fun both start with 'F,' so the Committee members should just have fun.

Ms. Semo mentioned that Dr. Cuillier served on the 2020-2022 and the 2022-2024 terms and Mr. Talebian has served on the Committee since 2020 by virtue of his position as director of OIP. She then introduced Mr. Baron.

Mr. Baron apologized for not attending in person. He stated that he would begin by examining broader remarks about the issues of the FOIA environment, then remarks about his ideas of how the Committee should approach its work this term. He noted that he has been in the FOIA space for a long time. He was in government for 33 years at DOJ and NARA, having been lead counsel on the Armstrong v. Executive Office of the President case from 1992. He played key roles in important government litigation and policy development.

Mr. Baron noted that government representatives on the Committee should not be reticent to acknowledge obvious things about FOIA—including its shortcomings. Agency representatives on this Committee are stellar public servants, but not all FOIA shops are implementing cutting-edge practices involving technology or reducing backlogs. Mr. Baron noted that it is not unusual for federal employees to tell a court that it may take several years or even a decade to process large requests. He himself has been waiting more than two years on half of the approximately two dozen FOIA requests that he filed with different agencies. He noted that the volume of electronic records would become beyond anything seen. No one would consider it reasonable for human beings to review millions of government records before releasing them. Much review is still done manually. He encouraged members of the Committee to find out the number of email records in the Capstone system at their agencies. There are solutions involving state-of-the-art AI.

Mr. Baron turned to how the Committee should approach its work this term. He noted that there have been 67 recommendations from previous terms, and that the terrific OGIS dashboard catalogs them, many of which can truly be said to have been completed. However, many of OGIS and OIP's successes in communicating and issuing guidance to agencies have not translated into the agencies taking meaningful action. He said the Implementation Subcommittee report from last term needs to be carefully read for suggestions about both next steps for recommendations that OGIS and OIP have completed but also regarding where more work could be done and for recommendations that are still pending.

Mr. Baron noted that both formal and informal recommendations were made in the past. By “informal” he pointed to the last section of last term's Modernization Subcommittee, Implementation Subcommittee, and Full Committee report. Those reports encouraged future terms to think beyond recommendations, because an escalating number of recommendations would not be helpful if agencies were not aware of them or unable to implement them. He encouraged members to review last term's reports: Modernization report pages 25-31; Implementation report pages 10-12; and the final Committee report pages 35-37. The discussion on those pages includes encouragement for the Committee to step up in public engagement, including giving public notice on select draft recommendations, raising awareness of FOIA at OMB and the White House, increasing collaboration with the Chief FOIA Officers Council and its Technology Committee, and being aware of the Open Government Partnership. Making recommendations is not easy, but it is easier than to figure out how the Committee can move the needle and make an impact on the implementation of previous recommendations. It's important to raise awareness of the Committee's work among senior FOIA officials across government who are positioned to do something to implement them.

Mr. Baron noted that the Committee was chartered as an advisory body under FACA, not as an audit committee. It cannot directly provide direct recommendations to various agencies. The Committee can work through OGIS and OIP to make progress in the next few months. There will be a new president in January, and the Committee should act as a catalyst in making early recommendations to the new administration.

Mr. Baron noted that the final paragraph in last term's report is a good starting point for further discussion: “For the past five terms, the members of [this Committee] have endeavored to make a positive contribution in improving how agencies administer the FOIA. We trust and expect that in future terms, this Committee's members will not consider themselves solely wedded to past ways of doing business. Instead, they should consider employing strategies and creative thinking to magnify this Committee's voice, to ensure the mission of FOIA, [and] to increase government transparency and accountability is best accomplished through their efforts.”

Mr. Baron concluded by noting that all members of the Committee must participate actively, and that he looked forward to being part of this effort.

Ms. Semo thanked Mr. Baron and handed the floor to Ms. Kwoka for her comments.

Ms. Kwoka noted that her term was in an earlier term of the Committee, and she added that the Committee should operationalize the recommendations better. The Committee is not the only body in government working with federal and non-federal representatives to create recommendations to improve the administrative state. She noted her work with the Administrative Conference of the United States (ACUS), and a recent project she was involved in to create proposed legislation on a narrow topic. The narrowness helped it to be operationalized. On the legislative side: getting as specific as the Committee can be to create an 'off-the-shelf' proposal of some variety that's ready when someone is ready to take up that charge. Her final point was to note that it had been enormously helpful to interview and reach out to people to gather ideas for use as source material for recommendations. She noted that OGIS staff are gracious in setting up connections with people who are not on the Committee.

Dr. Cuillier noted that if the subcommittees coordinated on their collection of data, such as conducting surveys, it would be beneficial. It may also be beneficial to coordinate with the General Services Administration’s Open Government Advisory Committee to learn from each other.

Ms. Semo noted that OGIS has been sharing best practices with the GSA Committee, and that the GSA group's first meeting would be in October. It is GSA's first FACA committee in the transparency space.

Mr. Mulvey asked about the scope of what the Committee could do, if there was openness to things the Committee has not done before, and what the parameters and limits were to how far the Committee could experiment.

Ms. Semo noted that the mandate of the Committee is to make recommendations to the Archivist of the United States. The Archivist has full jurisdiction over records management issues but not FOIA across the government. The Committee has been careful in how recommendations have been phrased, but she did not want to discourage creativity.

Mr. Mulvey clarified that the Committee members had the freedom to draft what they wanted and then have the conversation to pull back. He suggested having a meeting with legislators on Capitol Hill.

Ms. Semo noted that the non-government members were welcome to meet with legislators. She also noted that the dialogue about parameters would continue.

Mr. LoMonte asked if the committee could synthesize the most important recommendations and findings from the previous terms into a day-one agenda for the new administration for non-appropriated actions that could be done with an Executive Order. With 67 priorities, nothing would be a priority, so a top ten priority list would be helpful.

Mr. Baron noted that President Obama had issued an executive order on day one about government transparency. It is in the remit of the Committee to give language to OMB to hand to the President for an EO highlighting the importance of FOIA. He noted that the President and OMB should not get too in the weeds on FOIA.

Ms. Semo noted that last term's Implementation Subcommittee tried to identify the five most important past recommendations.

Dr. Cuillier noted that it was not an easy endeavor, and the current term would likely come up with other priorities. He supported the idea of a synthesis for the upcoming new administration. It would also help the new members come up to speed quickly.

Mr. Wittenberg noted it was a great idea because collaboration is great and it would help move the needle forward, especially on training and technology.

Mr. Baron reminded members to read the selections of the reports to inform a discussion on how this term can strategically accomplish things; a conversation about process rather than substance.

Ms. Pickworth asked about proposals to the Hill, and the subcommittee jurisdictions. She asked if it had occurred to previous terms to have draft language for legislation.

Ms. Semo turned to Ms. Mitchell.

Ms. Mitchell noted that past terms had made recommendations for legislative improvements. OGIS had provided to the Hill options to make the intersection of FOIA and 508-compliance more streamlined.

Ms. Semo noted that one statutory duty of OGIS is to provide an annual report to Congress and the President. In the past, OGIS has used the report to highlight recommendations of the Committee. OGIS would be happy to continue to do so. OGIS generally puts it out in May, so the next opportunity would be May 2025.

Ms. Pickworth noted A-19, the process that agencies use to submit legislative proposals through OMB to Congress, could be used to submit legislative proposals for FOIA and asked if this had ever been considered to gain traction legislatively.

Ms. Mitchell noted that it had been discussed at the subcommittee level and could be brought up again. It is not something the full Committee has acted on.

Ms. Manheim noted that the Chief FOIA Officers Council might be working on some of these same issues and asked how much the Committee should work with the Council to avoid duplication of effort.

Mr. Talebian noted that both he and Ms. Semo co-chair the Council and work to ensure the groups are complementary and not reduplicating efforts.

Ms. Semo noted that the next Council meeting would be November 7, 2024. She noted past terms of the FOIA Advisory Committee had invited Council Committees to speak to the Committee, and that this term could invite Council speakers again.

Ms. Semo noted there was homework before the next meeting. She suggested the possibility of three subcommittees: Volume and Frequency, FOIA Statutory Reform, and Implementation of past recommendations. She encouraged members of the public to provide feedback to the Committee and asked Committee members if they had final thoughts before public comments. Hearing none, Ms. Semo opened the public comments section.

Public Comments

Ms. Wilcox introduced herself as a retired federal employee. She noted that she submits FOIA requests to the Census Bureau. She finds FOIA more frustrating under the current administration than under the previous one, possibly because a different attorney is assigned to her request. She relayed a notable exception: Census FOIA officers responded within days over the Labor Day weekend. She identifies herself as a “citizen journalist” and falls into the “other” category. She finds Census's fee demands for amounts exceeding $400 to be unreasonable.

Mr. Ravnitzky highlighted points from an article he had submitted as written comments, “The Right to Know: FOIA Bill of Rights.” He has seen first-hand unnecessary difficulties in the FOIA process. The statute addresses some of them; however the difficulties persist. He noted some examples of delays, overcharges, denials, and inconsistent communication. His article addresses these issues. He noted that better acknowledgement would benefit everyone. He gave examples: requesters have the right to a final response letter that contains the case number, the subject description and appeal rights. Many letters lack those basics, he noted. Requesters have the right to an Estimated Date of Completion upon request, but he noted few agencies will provide this. Requests should be processed with a presumption of openness and with an appropriate application of the foreseeable harm standard. He noted that this often does not occur. Requesters should be able to ask for an electronic search of email without inappropriate constraints. Instead, he noted, some agencies object to email searches, and often demand impossibly specific information from the requester.

Requesters have the right to records that are not locked or encumbered by file restrictions, and agencies should scan with reasonable care. However, he noted requesters often receive records that are locked, poorly scanned, or in unreadable formats. Referred or remanded requests should be processed based on the original submittal date to avoid years- or decades-long delays.

Requesters should be given a good faith fee categorization and not just defaulted to the commercial requester category. Agencies should ask requesters for clarification if they object to the requesters self described fee-category. Requesters in a non-commercial category should not be charged a reviewfee. Requesters should get a good faith fee breakdown if applicable fees upon request.

Mr. Ravnitzky noted that these things all happen. Improving these issues would benefit both agencies and requesters by reducing time-consuming appeals, he noted. Statutory reform would be helpful, but his goal is for the Committee to discuss his bill of rights. DOJ and OGIS could incorporate these ideas into guidance. Adopting these principles would decrease the adversarial relationship and would increase transparency and would improve the experience for all FOIA requesters.

Ms. Semo confirmed that the article had been posted as a written comment.

Ms. Mitchell noted that a recommendation from the previous term was a model determination letter, which included case numbers, subject description, and appeal rights. She noted that the letter is posted on the OGIS website.

Ms. Semo asked for Committee comments; hearing none, she reminded attendees that people can register for Friday's meeting until 11:59 p.m. on Wednesday. She reminded everyone that the next meeting would occur on Friday September 13, 2024 at 10 a.m.

Ms. Semo adjourned the meeting at 11:59 a.m.

I certify that, to the best of my knowledge, the foregoing minutes are accurate and complete on October 21, 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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