Office of Government Information Services (OGIS)

September 13 Minutes - (Certified)

The Freedom of Information Act (FOIA) Advisory Committee convened virtually at 10 a.m. ET on September 13, 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 11:35 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
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 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
Bobak Talebian, U.S. Department of Justice, Office of Information Policy
Nick Wittenberg, Armedia

Committee members absent from the meeting:

Kevin Bell, Federal Energy Regulatory Commission
Sarah Weicksel, American Historical Association

Others present or participating in the meeting:

Kirsten B. Mitchell, Committee’s Designated Federal Officer, NARA

Welcome and Administrative Updates

Ms. Semo welcomed attendees to the second meeting of the sixth term of the FOIA Advisory Committee. She noted that this meeting follows the kick-off meeting held in person on Monday, September 9th, in the William G. McGowan Theater. She noted housekeeping items: the meeting operates under the Federal Advisory Committee Act (FACA), and is public in accordance with FACA requirements; the certified minutes from this meeting and the September 9th meeting will be posted online within the 90-day statutory timeline; and the transcript from both meetings would be posted soon thereafter. Members' names and meeting material are posted on the website.

Ms. Semo noted that two members were absent: Mr. Bell and Ms. Weicksel. She stated that Ms. Moumbleaux and Ms. Brock were joining by phone without video.

Ms. Mitchell confirmed there was a quorum present. She noted that Ms. Moumbleaux was able to join with video and that Mr. LoMonte would have to sign off at 11:30 a.m.

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

Ms. Semo asked, to comply with FACA requirements, that attendees only use the chat for procedural and housekeeping purposes. Webex chat is not saved, and is not for substantive comments. If a member needs to step away, they should send a chat to Alina and Kirsten.

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 goal was to end by noon, if not earlier.

Ms. Mitchell noted that Ms. Kwoka would join a few minutes late.

Ms. Semo turned to the agenda.

Committee Priorities for the 2024-2026 Term

Ms. Semo noted that the discussion would be about priorities for the 2024-2026 term. The meeting wouldn't necessarily take up the entire allotted time, if they finished discussions early. They would form subcommittees and select co-chairs. Each subcommittee would need one government and one non-government co-chair per the bylaws. Members have had the chance to review material from the previous term.

Ms. Semo thanked Ms. Mitchell for putting together the summary chart that captures members' priorities as expressed on Monday. Ms. Mitchell had grouped the priorities under the three buckets: volume and frequency, FOIA statutory improvement and implementation. Ms. Mitchell circulated the document to members.

Ms. Semo noted that this meeting was an opportunity for members to air their hopes for the term. She reminded members that subcommittees are not set in stone for the entire term; traditionally subcommittees have lasted the entire term, but that is not mandatory.

Ms. Semo welcomed Ms. Kwoka.

Ms. Semo encouraged the subcommittees to establish working groups as an efficient way to tackle many issues. The Committee has seen subcommittees change direction and it has seen them take up a topic and then drop it.

Ms. Semo opened the floor for discussion.

Ms. Pickworth asked if it was possible to consolidate some of the categories, perhaps establishing some of the categories as working groups. Volume and frequency might fit under legislative reform; it might require legislative change to offer meaningful relief to agencies.

Dr. Kimball noted that, because this is her research area, she was wary of putting the volume and frequency group under statutory changes; there might be policy, training, or other other ways to address the issue. Also, she encouraged the committee to change the name to be more open than volume and frequency or unduly burdensome; because sometimes there is harassment with the volume.

Mr. Mulvey agreed with Dr. Kimball. He supported the idea of a statutory reform subcommittee. He noted his belief that a complete reworking of how FOIA is written is needed to make it work in the future, especially given the huge volume of records. He touched not only on vexatious requests, and the volume of records but also on AI. There likely will be an overlap between subcommittees. Volume and frequency is different from statutory reform, because there could be changes in regulations and procedures for agency processing. Another non-statutory reform would be to require CAPTCHAs on portals. For those reasons, he suggested not collapsing proposed buckets into one.

Ms. Semo noted that Mr. Mulvey may want to co-chair a subcommittee.

Ms. Hempowicz agreed with Dr. Kimball and Mr. Mulvey. She noted that she did not have strong feelings about creating volume and frequency as a subcommittee or as a working group. She is in favor of having implementation and statutory reform at the subcommittee level. She noted that past committee work showed that practitioners had commented that the recommendations painted with too broad a brush, and the Committee may continue to do that if it solely focused on legislative solutions. Quite a few existing recommendations already sought to address volume and frequency.

Ms. Manheim asked with 67 recommendations, how could the Committee get all the agencies to implement those recommendations? How to avoid constantly revisiting recommendations without changing anything? She noted that it could be possible through legislative changes or technology. She asked if the Committee had the power or if even the Chief FOIA Officers have the power.

Ms. Semo appreciated Ms. Manheim’s concern. A number of recommendations have been tackled by OGIS. For example, she and Mr. Talebian, who co-chair the Chief FOIA Officers Council, have established Council committees as recommended by the FOIA Advisory Committee.

Ms. Brock appreciated the three buckets. It's a reasonable number, and they're broad enough to fit many ideas therein. The first job for an Implementation Subcommittee would be more vetting of past recommendations to see if they are still actionable. Then the subcommittee could work on implementing fewer.

Dr. Moore recognized Ms. Manheim's comment about the difficulty of moving from great recommendations to actually doing them. She noted that the Committee has to be careful not to ignore the audience. It needs to work with agencies and tailor the recommendations, because a small agency is very different from a large or mid-sized agency. The Committee should recommend things that can get done and make a difference.

Mr. LoMonte noted that at the meeting earlier in the week there was interest in identifying five or six core topics that are common to the 67 past recommendations; those could feed into a memo that would be ready for the new administration in January 2025. This could nest as a working group under Implementation, which could identify which are ready for an executive order or tone-setting declaration on day one of the new administration. There are some recommendations that could be done internally, or within OGIS. If those are gaining traction already, then it might not be needed to flag them for the new administration. Tone setting is important, symbolically, even if there's little immediate progress.

Ms. Hempowicz voiced support for Mr. LoMonte's idea noting that she would want to work on such a memo.

Dr. Cuillier noted that he has been trying to group ideas into working groups under the subcommittees. He stated that he liked the idea of two subcommittees, but had a concern about the feasibility. He noted that the three that have been laid out would work. Under Statutory Reform, he noted there could be working groups developing better legislation for a potential congressional hearing closer to the 60th anniversary of FOIA in 2026. There could also be a working group about reimagining OGIS. Under Implementation, he noted that in the last term's report, starting on page 20, there were 17 previous recommendations that the subcommittee felt could use more work. Those 17 recommendations were grouped into four areas. The new Implementation subcommittee could start with those. They could have working groups on AI and Technology, Websites and interactivity, first-person requests, building culture and transparency, public engagement, and maybe White House transition. He noted that the committee was on the right track. He noted that what the Committee creates today could be changed, so coming up with general ideas today would come together nicely.

Mr. Mulvey noted that it was good to start brainstorming working groups. Statutory reform would be a big project, so working groups under that subcommittee could look at processing requests and addressing vexatious requests and volume; a fees working group that builds on previous terms’ work on fee reform. He noted that as a practitioner and litigant, he thought a litigation and judicial review working group on how FOIA lawsuits are brought under the statute would be helpful. An exemptions and foreseeable harm working group could examine deliberative process privilege reform and how foreseeable harm might be changed. Another working group could pursue the idea of the recommendation for a presidential memo.

Ms. Semo sought clarification on whether Mr. Mulvey was in favor of collapsing Volume and Frequency under FOIA Statutory Reform.

Mr. Mulvey noted that he was not. Voluminous and frequent requests could be addressed through statutory reform, but also addressed in another subcommittee. He noted that a change to the statute might not be the only, or even the best way, to address the problems that agencies faced.

Ms. Semo reviewed the working groups that Mr. Mulvey noted.

Ms. Manheim noted that the biggest issue for her agency was the 20-working-day response time, which leads to litigation problems. She noted that some requests seek so many records that it makes 20 days impossible.

Ms. Frazier-Jenkins asked a procedural question: how many working groups do subcommittees typically have? She noted there are many priorities and wanted to clarify the limit.

Ms. Semo noted that she has seen subcommittees with three or four working groups, and sometimes a working group is a single person who reports back to the subcommittee. She noted that 15 is too many, so limiting it to “a few” is workable.

Dr. Moore noted that political appointees are motivated at the end of their terms to leave a mark. Maybe the Committee shouldn't limit itself to thinking about the first day of a new administration. Those two might not be mutually exclusive, but the Committee should consider both.

Dr. Kimball noted that she has reviewed the summary chart and anything marked other, and commented that the discussion hasn't touched on AI yet. AI could fit in many working groups.

Ms. Semo noted that the DFO and alternate DFOs try very hard to connect the various subcommittees, and create continuity. AI is an important topic that has a thread in all of these themes.

Mr. Wittenberg noted his support for the previous comments, and the continuity. He noted the importance of messaging to a [new administration] that the Presidential Records Act and FOIA apply. Producing something by the first day of a new administration would show the Committee is ready for the new two-year term.

Ms. Kwoka asked a procedural question: is it possible for Alina to share her screen with a Word document so the Committee could see the working groups under each subcommittee in real time? It would be helpful.

Ms. Semo noted that it was a great suggestion.

Ms. Mitchell noted she could share her screen.

Ms. Kwoka stated that it could be something as simple as a document listing three subcommittees, and then bullet points with potential working groups to capture and visualize the decent outline the Committee has started. She noted her substantive points: under Statutory Reform, having a conversation about affirmative or proactive disclosure reform. There are past recommendations on this topic, and other legislative proposals that we could draw on. She noted that this Committee has done an enormous amount of work on first-person requests, especially those from immigrants seeking their Alien Files (A-Files). She hasn't heard those ideas yet in this discussion, but they could fit in somewhere.

Ms. Semo noted that Ms. Kwoka had done work on that in the past, and if she were still interested in working on that topic, her work would be welcome.

Ms. Hempowicz noted that it made a lot of sense to include those topics in multiple subcommittees: Legislative and Implementation.

Mr. Baron noted there's a lot to be said for having three groups. He noted his support for a Statutory Reform being its own subcommittee, noting that Mr. Mulvey's had an ambitious agenda for that. He noted the public comment on Monday about a FOIA Bill of Rights, and the Committee should be thinking about incorporating those ideas into the Committee's conversations, especially with regard to public engagement. He noted that in a prior term, there was a Time and Volume Subcommittee, and bringing something similar back underscores an endemic issue in FOIA that the Committee has not solved. He noted that at the beginning of each term, there's great enthusiasm to do many different things. The Committee doesn't have to address every problem all at once, on week one of the Committee. For example, last term, the Modernization Subcommittee first worked on a Model Determination Letter, and also on reforms to the Exemption 5 designations and created a mid-term recommendation rather than tackling everything all at once. Whatever the number of ideas there are, when the subcommittees are formed, there could be a prioritizing of what ideas are the most important.

Mr. Baron noted that with regard to the day-one executive order, outreach to the White House may be easier or more difficult with the change in administration. If he were to co-chair the Implementation Subcommittee, he would want a working group to draft something quickly. He noted that it took a long time last term to get started. There were many months of discussion to understand work from the past, then more months developing a survey, and finally a survey of FOIA professionals.

He has a different vision for this term's Implementation Subcommittee: the central take-away from the last term is how the Committee can have more of an impact in raising the awareness of recommendations across the executive branch. He noted that the animating question is that, while there are several recommendations that have borne fruit, there has been a lot of Committee work that has not penetrated to FOIA staff throughout government nor to senior officials. He noted that his vision is to heighten the visibility of the previous work of the Committee, and to chart a path forward to increase the impact of the Committee. The day-one work is an immediate priority, and there are many other things to work on.

Ms. Semo noted that it sounded like Mr. Baron is interested in co-chairing the Implementation Subcommittee.

Ms. Brock noted a topic that might fit under Implementation: relationship building and interactions with requesters. She wanted the Committee to offer improvements about proactive engagement with requesters. She also clarified that it's the request that's vexatious not the requester. The requesters are the reason FOIA exists: to disseminate information to the public. That means the issue is with the type of request not the requester.

Dr. Kimball noted that “vexatious” has more hostile connotations than “unduly burdensome,” so in her academic work, she uses “unduly burdensome” to keep the tone appropriate. She noted that types of requests that feel harassing, which are different than volume or frequency, could be categorized under whatever the Committee decides to call these problematic requests.

Ms. Semo noted that at the previous meeting, Ms. Manheim spoke about introducing decency back into the process, which mirrors Ms. Brock's comments today. She asked if that could fit under Volume and Frequency.

Ms. Pickworth noted that not all requesters are vexatious; however, some of her Committee colleagues have experienced this firsthand. She raised the concept of decency and expectations of how requesters have engaged with us; she noted she has staff members that have been verbally assaulted by people, and have experienced mental consequences as a result. She noted that it's unclear how to manage people when they cross the line. It would be helpful to come up with guidance to manage those situations.

Ms. Semo noted that there are several other agencies that would echo that.

Mr. Mulvey noted as a requester, he does not find the term vexatious to be problematic. He does have a problem conflating it with unduly burdensome requests, which are not the same thing. There is a technical meaning to “unduly burdensome” in case law alongside “reasonable description.” He noted that the Committee needs to be clear about the difference between the two. The Committee could broaden the decency discussion beyond the requester/agency dynamic to building a better culture in FOIA administration. The cultural improvement could include not only the relationship between requester and agencies but also culture inside agencies, for example between the FOIA office and political leadership or between the FOIA office and program offices. He noted the difficulties that a FOIA office faces when dealing with people inside their own agencies. Sometimes a head office is reluctant to release records, or a program office doesn't want to do a search and doesn't prioritize FOIA. There might be a way to improve culture in that sense.

Ms. Semo noted that this point resonated with her. She mentioned that in the past, people have likened being detailed to a FOIA shop to being sent to Siberia.

Ms. Manheim noted that making statutory changes might not gain traction. In addition to creating written documents, maybe the Committee could have some forums with requesters; the Committee could take more action rather than just making recommendations.

Ms. Semo noted the Committee could explore having requesters speak at a public meeting.

Mr. Wittenberg noted that the Committee could do a FOIA Bill of Rights, perhaps one external and one internal. It would address the mental issues [about abusive interactions with requesters] and also give requesters some guidance to help them. He noted that OGIS puts out best practices for FOIA.

Ms. Semo asked for clarification as to whether the FOIA Bill of Rights would accompany a day-one memo or whether it would be separate.

Mr. Wittenberg noted it could come before and be referenced in a day-one memo. A potential executive order could summarize key points.

Ms. Brock noted that she is excited about the idea of a public forum. She asked what the limits would be and what would be possible. She loved the idea of engaging with requesters and the process. She also supported maintaining and respecting the distinction between unduly burdensome and vexatious.

Ms. Semo noted that the Committee has not had a public forum of the type that members have started to outline. The Committee has invited oral public comment at every meeting as well as written public comments. The public forum can be explored.

Mr. Hodes noted that all the ideas discussed so far fit well into the three subcommittees. He added that the Committee tried to create a FOIA job classification, and it was important to continue to professionalize the FOIA workers within the agencies. One issue with frequent or burdensome requesters is that not every FOIA worker is comfortable speaking to requesters. The Committee should consider the variety of processes for FOIA administration. There are huge differences between individuals and between agencies. With respect to the Chief FOIA Officers Council, at many agencies the FOIA officer may not be the one making policy decisions about FOIA. This Committee should look at structures of FOIA and how policy is made at agencies. Structure may have changed in 25 years: it used to be a FOIA Officer, but now the whole FOIA process has gotten more complicated. As we introduce new technology to fix that, it makes some things easier but other things more complicated. Finally, he noted, the 2016 FOIA amendments added a 25-year sunset for deliberative process. He has not seen any studies showing outcomes, other than anecdotal evidence. Before coming up with new legislative proposals, the Committee should look into the effect of that provision.

Ms. Semo noted that those were great points. She mentioned OGIS's training on dispute resolution skills for FOIA professionals with best practices for talking to requesters on the phone. The younger generation may have less experience talking on the phone.

Ms. Kwoka responded to Mr. Hodes’ final point: there had been a very recent academic study on the effect of 25-year sunset to the deliberative process privilege. The study suggests that the impact is small because of records retention schedules. The schedules diminish the rule's effect because many records may be disposed of after seven years. She noted that the study is one data point.

Ms. Semo asked Ms. Kwoka to share that academic study and for it to be posted online.

Ms. Mitchell noted that the study may not be able to be posted on the website depending on Copyright status.

Dr. Cuillier noted that any subcommittee must be limited to fewer than 13 to avoid a Committee quorum. He asked whether, when a Committee member shares a study, the Committee email boxes should be copied.

Ms.Semo confirmed that members are encouraged to copy the FOIA Advisory Committee box for records retention purposes.

Dr. Cuillier noted that the emails are public records. Last term, the Committee saw the Copyright issues. He didn't know how to deal with that. It would be good to figure out a way to disseminate information with each other. He noted that it would be good to have a way to figure out what members are interested in and asked if it were possible to create a shared document.

Ms. Semo noted that it was possible, but suggested something more organic. After forming the subcommittees, allowing members to gravitate towards issues that interested them, and then figuring out working groups for specific topics. She noted that in the past it worked that way, and it allowed for flexibility if a subject turns out to be less fruitful than someone had hoped.

Ms. Pickworth noted that vexatious requests should go under Statutory Reform, because there are various states that have looked into this so the Committee has something to look at and perhaps pull from. The Committee should develop and agree upon criteria of what constitutes a vexatious request, we could consider a process of debarment for a period of time to offer relief to agencies. Some agencies use debarment in contract processes when people abuse the process.

Ms. Semo noted it was an interesting suggestion. She noted that Drs. Kimball and Cuillier are looking at states' legislation and laws about vexatious requests.

Dr. Cuillier explained that he and Dr. Kimball, along with two other researchers, were working on a study funded by the Democracy Fund to look for solutions. Statutory process to help agencies deal with abusive requesters without restricting the flow of information for requesters. They are six months into the study looking at 50 states and the legal provisions. The research identified 16 different terms for such abuse. Work on this continues, but he will circulate the paper to Committee members. The work will be completed next June, and there could be cross-pollination with the subcommittee. They are also looking at other countries, and issues beyond merely statutory. He noted that the issue is complex and challenging.

Dr. Kimball underscored that they are considering all kinds of solutions, including statutory ones. In terms of subcommittees, not all statutory recommendations will come from the Statutory Reform Subcommittee; Implementation may offer some statutory reforms.

Mr. LoMonte noted that there might not be time to finalize all subcommittee rosters in this meeting. However, there is time urgency about day-one recommendations for a new administration. The Committee must agree on any recommendation at the December 5th meeting, the next meeting of the full Committee. The Committee should put that framework in place at this meeting if there is a consensus on doing so.

Ms. Semo summarized that there was consensus. She noted that a working group could be formed under the Implementation Subcommittee and asked if Mr. LoMonte wanted to head the working group.

Mr. LoMonte agreed to head the working group.

Ms. Semo solicited for volunteers to serve as Implementation co-chairs. She nominated Mr. Baron as the non-government co-chair for Implementation, and sought a government co-chair.

Ms. Manheim volunteered.

Ms. Semo confirmed that Implementation has co-chairs and that Mr. LoMonte is the head of the working group for the day-one memo.

Ms. Semo noted that Ms. Brock and Mr. Wittenberg had raised their hands to volunteer for the Volume and Frequency Subcommittee. She confirmed with them that they volunteered.

Ms. Semo confirmed with Mr. Mulvey that he would co-chair the FOIA Statutory Reform Subcommittee. She asked if Ms. Pickworth would like to be the government co-chair.

Ms. Pickworth declined, and Ms. Frazier-Jenkins volunteered to co-chair the Committee.

Ms. Mitchelll confirmed the co-chairs of all three subcommittees.

Ms. Semo clarified that Ms. Mitchell may cease sharing her screen and agreed to circulate the document. She asked all members to volunteer for at least one subcommittee, and floated the idea that members may volunteer for more than one subcommittee.

Ms. Pickworth clarified that she may sign up for two, and later decide based on bandwidth which one she would be able to make the biggest difference.

Ms. Semo invited other comments. Hearing none, she moved to the public comments section noting that public comments would be limited to three minutes per person. The comments would be captured in the transcript and on the NARA YouTube channel.

Public Comments

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

Ms. Mitchell reminded the audience that written comments are accepted at any time through the link on the slide.

Ms. Semo noted that Committee members always welcome public comments. She confirmed with the producer that there were no commenters in queue. Hearing no objections, Ms.Semo moved to closing remarks.

Ms. Semo thanked members for attending on Monday and today, and for their upcoming hard work. The next meeting would be on December 5, 2024, at 10 a.m. ET.

Mr. Cuillier asked if the next steps were that co-chairs would email to solicit members for each subcommittee and set up the bi-weekly meeting of the subcommittees.

Ms. Semo noted that members may email her and Ms. Mitchell directly about which subcommittees they were interested in working on, and whether they were interested in the day-one memo working group.

Ms. Brock asked if there would be a shared drive to share information.

Ms. Semo noted that in the past, some agency members had issues with Google docs. Subcommittees will find solutions that work for their members.

Ms. Mitchell noted that the Committee had not yet found a solution for sharing documents. She would work with co-chairs to schedule meetings.

Mr. Peltz-Steele noted that he had been quiet because others had said what he might have said.

Ms. Semo looked forward to meeting again on December 5th, and adjourned the meeting at 11:35 a.m.

I certify that, to the best of my knowledge, the foregoing minutes are accurate and complete on October 25, 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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