2023 Annual Open Meeting Transcript

Event Producer: Welcome and thank you for joining today's OGIS Open Annual meeting. Before we begin, please ensure that you have opened the Webex participant and chat panel by using the associated icons located at the bottom of your screen. Please note or audio connections are muted and this conference is being recorded. To present a comment via Webex audio, please click the raise hand icon on your WebEx screen. The raise hand icon is located in the lower toolbar. You'll hear a beep when you are unmuted. At that time, please state your name and question. If you are connected to today's webinar via phone audio, please dial pound two on your telephone keypad to enter the comment queue. If you require technical assistance, please send the chat to the event producer. With that, I will turn the meeting over to Alina Semo, Director, Office of Government Information Services. Alina, please go ahead.  

Alina M. Semo: Thank you Michelle. Good morning everyone. My name is Alina Semo and as the Director of the Office of Government Information Services or OGIS, it is my pleasure to welcome all of you to our seventh annual open meeting. With this meeting, I mark my seventh year as OGIS Director. A little hard to believe. I hope everyone who is joining us today has been staying safe, healthy, and well. In a minute I will go through some basic housekeeping rules and set some expectations for today's meeting, but first, some background on why we're holding this virtual meeting today. 

When I joined OGIS in December, 2016 as Director, Congress had just passed the FOIA Improvement Act of 2016, six months earlier. Among the FOIA Improvement Act mandates was that OGIS, not less frequently than annually, conduct a meeting that is open to the public on the review and reports by the office, and that just shall allow interested persons to appear and present oral and written statements at the meeting.  

Throughout this meeting, we will be monitoring the chat function on Webex. We are also simultaneously live streaming on the NARA YouTube channel with a slight delay. Following my short State of OGIS Report, we will have a public comment period. We will open up our telephone lines during the public comment period to give attendees the opportunity to comment orally. Each caller will be limited to three minutes each. I want to note that if you're watching us on the NARA YouTube channel, you will not be able to provide oral comments during our public comments section. You can only provide oral comments via telephone if you have registered in advance via Webex. However, you are always welcome to submit written comments or statements. We are accepting public, written comments for 30 days following this meeting through Thursday, July 13. Please use our public comments form available at www.archives.gov/ogis/public-comments.  

We will post all comments that meet our posting policy, which is available on the website I just noted and that we are posting in the chat that my colleague has just posted. Thank you, Kirsten. While we are happy to have all points of view shared, please respect your fellow attendees and keep conversation civil and on topic. We are recording today's session and we will post a transcript of this event on the OGIS website as soon as it becomes available. The video of the meeting will be accessible for later viewing on the NARA YouTube channel. Next slide please.  

Fiscal year 2022 presented OGIS with fewer challenges than in the prior three fiscal years. Taking you back to fiscal year 2019, which seems like a decade ago, we experienced the longest shutdown in the history of the federal government, nearly five weeks, which has no doubt contributed to increased backlogs for FOIA programs and requesters seeking OGIS assistance. Life as we know it was upended in fiscal year 2020 and fiscal year 2021 when the Covid-19 pandemic turned the world upside down. We are pleased that neither a government shutdown nor a pandemic challenged us in fiscal year 2022 as we continued to provide high quality services in our role as the federal FOIA Ombudsman, serving as a neutral and trusted voice for the FOIA process. Next slide please.  

At the end of last week, we were very pleased to be able to publish our 2023 OGIS Annual Report for Fiscal Year 2022. We are holding this meeting to coincide with the publication of that report. We have included the direct link to our annual report on this slide. It looks a little off, so my apologies, but you can still see the link and the PowerPoint for today's presentation is accessible on the OGIS website, www.archives.gov/ogis. Next slide please. Before I discuss our activities in the past fiscal year, a few words about what we are, sorry, who we are and what we do. As the federal FOIA Ombudsman, OGIS serves as a resource for information and assistance about the FOIA process. 

Our work as the ombudsman ties directly to the mandates given to us in the FOIA. By listening to stakeholders, requesters and agencies and observing the FOIA process in action, we help to fulfill Congress's mandate to resolve disputes as a non-exclusive alternative to litigation by allowing our dispute resolution, casework and compliance assessments to serve as a FOIA barometer; and to study a range of FOIA issues we fulfill Congress's mandate to review FOIA policies, procedures, and compliance, and identify procedures and methods for improving compliance with- FOIA. And by speaking about systemic change in a variety of ways, we are fulfilling Congress's mandate to identify procedures and methods for improving compliance with a FOIA. We do all of our work guided by commonly accepted ombuds standards of independence, impartiality and confidentiality. We are independent. We are an entirely separate office from individual agency FOIA programs and we can submit reports, recommendations, testimony, or comments about the FOIA directly to Congress without prior approval from any federal officer or agency. We are impartial. We advocate for a fair and equitable FOIA administrative process rather than for the interests of either FOIA requesters or agencies. And we are a new, trusted, neutral third party and protect the confidentiality of our communications with both requesters and agencies. As we note in our annual report, running through all of our work is holding space for vital and sometimes difficult conversations to occur, which is a core ombudsman function. Next slide please.  

Every day individuals come to OGIS seeking our assistance with the FOIA process. We hear from requesters and agency FOIA professionals from the least experienced to the most seasoned who seek our assistance in a variety of ways. Let me explain more about our dispute resolution program. It is important to note that we do not dictate solutions or tell agencies they have to turn over records. Our mediation services are completely voluntary and we have had both agencies and requesters decline to participate. Most often we act as a facilitator to help agencies and requesters better understand the issues and the other parties position and interests. Both our mediation and compliance programs, which I'll discuss shortly, are guided by the principle of neutrality. We advocate for neither the requester nor the agency, but for the FOIA process to work as it should. We are a non-exclusive alternative to litigation. We try to prevent litigation, but a requester is still free to file a lawsuit if they are not satisfied with the OGIS process. We have found that even if we cannot resolve a dispute entirely, we can help the requester and the agency narrow the issues that remain in dispute. Next slide please.  

In fiscal year 2022 OGIS received more than 4,300 requests for assistance and closed more than 4,500 cases, including many cases from previous years. We meet people who come to us where they are, both in terms of the FOIA process and FOIA knowledge. The help ranges from answering questions about the FOIA process to providing requesters with additional information about the processing of their requests to facilitating difficult conversations between requesters and agencies. While the bulk of the request for assistance comes from requesters agencies come to us seeking assistance from improving both their programs efficiency and their communications with requesters. Next slide please.  

In addition to assisting thousands of requesters each year, we have started providing a new virtual training program on negotiation for government FOIA professionals. Prior to the Covid emergency, we hosted several in-person training sessions each year, they were very popular and highly successful. Last year we substituted our in-person training with a virtual training option, focusing on negotiation skills with requesters, particularly when communicating by telephone. I am pleased to report that we are seeing increased demand for this training. If your agency is interested in such training, please contact us and let us know. We're currently trying to fill up our dance card for the remainder of the year. Next slide please.  

OGIS publishes a number of assessments and reports each year as part of its compliance role. In September 2022, OGIS published an assessment on FOIA and agency performance plans. The genesis of this assessment report was a recommendation made by the 2018 to 2020 term of the FOIA Advisory Committee on FOIA’s inclusion in agency performance plans as opposed to individual federal employee performance plans. We reviewed the available annual performance plans and reports for all 15 cabinet level departments and the independent agencies that receive more than 50 FOIA requests in fiscal year 2020. OGIS assessed whether agencies’ annual performance plans and performance reports mentioned FOIA and if so, included FOIA performance goals, measures and results, and we made two findings. The first, one quarter of departments and agencies reviewed included FOIA in their agency performance plans. Second, FOIA performance goals and measures varied widely across agencies that included FOIA in their annual performance plans.  

We also made two recommendations regarding the inclusion of FOIA and agency performance plans. The first recommendation - that all federal agencies that receive more than 50 FOIA requests annually should include FOIA in their annual performance plans. We recognize that agencies sometimes view their mission as in conflict with the openness requirements of the FOIA. We suggest shifting that thinking to view agency missions and FOIA as partners for a better performing agency that is trusted by the public it serves. The second recommendation - agencies should include specific FOIA goals along with metrics and their annual performance plans for accountability and to leverage FOIA toward furthering an agency's mission.  

This past fiscal year, we also published a second assessment report and continued our successful partnership with our NARA colleagues in the Office of the Chief Records Officer [CRO] for the U.S. government on the Records Management Self Assessment, RMSA, an annual survey to determine whether federal agencies are complying with statutory and regulatory records management requirements. The RMSA survey, with a tremendous 96% response rate, and administered to agency records officers from January to March of [2023] included three questions regarding the challenges of administering FOIA during the pandemic and one question about the collaboration between agency Chief FOIA Officers and Agency Records Officers. Here are some key results from that survey. 

Roughly half of all respondents 51% reported that the Covid-19 pandemic did not disrupt their agency's ability to respond to FOIA requests [in 2022]. However, 45% of agencies did report a disruption to their ability to respond to FOIA requests. 78% of respondents whose FOIA programs were disrupted reported that their agency's paper records were inaccessible due to office closures while 51% reported that agency staff were not available to search for records. 73% of respondents reported that their agency worked directly with requesters to tailor their request for most efficient processing during the Covid-19 pandemic. 55% of respondents said that they included information about anticipated delays in requester communications, including acknowledgement letters. 54% assess their technology to ensure the most efficient administration of FOIA and 51% reported that their agencies posted notices on their FOIA websites informing requesters of the most efficient ways to make requests. Over half of the respondents,  56%, reported that the Agency Records Officer and the Chief FOIA Officer work together on information technology requirements that benefited both programs, an increase of 5% from the previous year. 50% of respondents reported that they worked together to identify programs or offices most likely to have responsive records, a 6% increase over the previous year. Our partnership with the CROs office on the RMSA continues and we look forward to publishing another assessment later this fiscal year. Next slide please.  

One of several hats that I wear is co-chairing the Chief FOIA Officers Council along with Bobby Talebian, the Director of the Office of Information Policy at the Department of Justice, and whose creation was mandated by the FOIA Improvement Act of 2016. We have created two very active committees, the Technology Committee and the Committee on Cross Agency Collaboration and Innovation — COCACI. Both committees are made up of dedicated FOIA professionals from a number of federal agencies across the federal government. We encourage any FOIA professionals watching us today to volunteer their time on either or both committees. Please send an email to CFOCouncil@nara.gov if you are interested in joining us. Our Chief FOIA Officers Council meetings are recorded and available on the National Archives YouTube channel www.youtube.com/USNational Archives. All CFO Council materials are now being posted on foia.gov and we are grateful to OIP for spearheading that effort to cut down on duplicate posting of material on both the OGIS and OIP websites.  

Among our activities in fiscal year 2022 was the NexGen FOIA Tech Showcase, which was a collaborative effort of the CFO Council's Technology Committee, OGIS and OIP. The purpose of this event, the first of its kind, was to identify FOIA technology solutions for federal agencies in response to existing FOIA case processing challenges raised through the technology committee's research. Additionally, the event was intended to help federal agencies better understand the promise of artificial intelligence and advanced emerging technology for case processing.  Vendors shared issues, insights, and explored potential solutions in several areas, including e-discovery, electronic record search tools, case processing tools, including the collection of records to review for redaction, and posting accessible 508 compliant releases, redaction tools including tools that allow for automatic redaction of similar forms and record types including paper, digital content, videos, data and others, artificial intelligence — AI — tools that may assist with the FOIA case processing, the future of improved public FOIA reading rooms, and websites and improving the FOIA customer experience.  

Next slide please. Another hat that I wear is chair of the FOIA Advisory Committee. The fourth term of the committee had an unprecedented four subcommittees, a lot of work for all of us, which delivered 20 recommendations for improving FOIA administration government-wide to the then Acting Archivist of the United States, now Deputy Archivist of the United States, Debra Steidel Wall, and one recommendation to the then Archivist, David Ferriero. The fourth term and its four subcommittees, Classification, Legislation, Process, and Technology, ended in 2022 with 21 recommendations, 20 in fiscal year 2022 and one in fiscal year 2021. The recommendations for improving the FOIA process spanned a range of topics including neither confirm nor deny/Glomar responses, classified information, online access enhancements, FOIA and accessibility, alternatives to FOIA access and reimagining OGIS. Before retiring, Mr. Ferriero signed the charter for a fifth term of the FOIA Advisory Committee and Ms. Wall appointed its members in August 2022. The current committee term, which kicked off in September of 2022, saw members forming only three subcommittees, which we're grateful for, that are looking into the implementation of past committee recommendations, ways to modernize FOIA administration, and how to increase resources for FOIA programs.  

Next slide please. A couple of years ago OGIS created a terrific recommendations dashboard in order to keep track of the great work the committee has done since its inception in 2014. I have included the link on the slide as well as an image of the radio button you can find on our front webpage,  www.archives.gov/OGIS on the lower right hand side. We continue to update the dashboard periodically as we make progress on the recommendations. Next slide please. The FOIA statute authorizes OGIS to submit legislative and regulatory recommendations, if any, to improve the administration of FOIA. In our 2022 Annual Report, we made two recommendations stemming from FOIA Advisory Committee recommendations regarding increased oversight of FOIA by the US Government Accountability Office or GAO, which the FOIA statute specifically contemplates. GAO, often called the congressional watchdog, is a legislative branch agency that provides auditing, evaluating, and investigating services.  

The 2018-2020 term of the FOIA Advisory Committee recommended that the Archivist task OGIS with asking Congress to engage in regular and robust oversight of FOIA, hold more hearings, establish regular and coordinated communication with agencies, and strengthen OGIS with clear authority and expanded resources. That was recommendation number 2020-19. And also address funding for agency FOIA programs and ensure that agencies have sufficient resources to comply with FOIA, that was recommendation number 2020-20. With regard to recommendation number 2020-19, OGIS recommended that Congress should consider asking GAO to pinpoint either systemic or specific compliance issues that Congress could then address in a more targeted surgical fashion, either through hearings or additional inquiries. As the 2018- 2020 term of the FOIA Advisory committee explained in its final report, in the absence of oversight from Congress, FOIA otherwise lacks a sustaining enforcement mechanism. It is incumbent upon Congress to ensure that the country has a robust, well-funded and carefully considered overall FOIA program to deliver the transparency and accountability that the American people deserve and expect. 

The committee's final report provides specific recommendations for ways that oversight could be achieved. OGIS supports regular and coordinated communication between Congress and federal agencies. We are pleased that in direct response to a request from the chairs and ranking members of the Senate Committee on the Judiciary and the House Committee on Oversight and Accountability, GAO initiated an engagement on agency FOIA request backlogs in March of this year. We look forward to GAOs findings and recommendations that we believe will help address the FOIA Advisory Committee's recommendation as well as one of FOIA's biggest challenges. While GAOs engagement on FOIA backlogs is not directly focused on funding for agency FOIA programs, we expect and hope that agencies will bring funding issues to GAOs attention, which ties directly to FOIA Advisory Committee recommendation number 2020-20.  

In response to that recommendation, OGIS renewed its recommendation that Congress should consider asking GAO to conduct a study of the funding for agency FOIA programs to determine whether agencies have adequate funding to comply with FOIA and respond to requests in a timely manner and what additional resources agencies in fact need in order to improve the FOIA process overall. OGIS has gained a significant amount of experience in assessing agency FOIA programs and stands ready and available to assist GAO with these efforts. As we noted in our 2022 Annual Report, we fully support any efforts in Congress to increase funding for agency FOIA programs that demonstrate the need and can document how they will use increased funding to improve the FOIA process, including decreasing backlogs and increasing efficiency and effectiveness. We have also noted that the 2018-2020 term of the FOIA Advisory Committee recommended that agencies conduct a comprehensive review of their technological and staffing capabilities within two years to identify the resources needed to respond to current and anticipated future FOIA demands. That was recommendation number 2020-13. Such a review we believe would put agency FOIA programs on a firm footing for asking their agency leadership and Congress for more resources in a more targeted fashion. Next slide please.  

So what is ahead for OGIS? We will continue to provide high quality ombuds services. We will continue to hold space for vital conversations regarding improving the FOIA process through public events, receiving comments from and interacting with our many stakeholders and as the pandemic recedes into memory, we look forward to reviving our program of assessing individual agency FOIA programs. We will continue to offer virtual training to help agency FOIA professionals improve their communications with requesters and we will continue our collaboration with OIP and the Chief FOIA Officers Council and continue to lead the FOIA Advisory Committee to the successful conclusion of its fifth term in June of 2024. Next slide, please. 

I would be remiss if I did not take a minute to recognize the extraordinary OGIS staff. I am extremely grateful to my terrific OGIS team whose work facilitating greater access and transparency to federal records and assisting anyone with the FOIA process has continued to further two of NARA's strategic goals, Making Access Happen and Connecting with Customers. Their work behind the scenes makes me look great in front of the camera and I am grateful for all the support that they provide. Thank you again to my great OGIS staff. Next slide, please. 

We have now reached the public comments part of our annual meeting. Congress has instructed us that in conducting our meeting that is open to the public on the review and reports by our office, we should allow interested persons to appear and present oral or written statements at the meeting. We will open our telephone lines momentarily to give attendees the opportunity to present oral statements. As I noted at the top of our meeting, if you are watching us via the NARA YouTube channel, you will not be able to provide oral comments during our public section. As we noted in our, I noted earlier, each individual caller will be limited to three minutes each. An important reminder with regard to oral comments. Please be aware that this is not the right time or venue to ask questions about a specific FOIA request or a specific issue you are experiencing that is unique to you. While we're happy to have all points of view shared, please respect your fellow attendees and keep the conversation civil and on topic. We will now open up our telephone lines and Michelle, our event producer,  please provide instructions again to our listeners for how to provide oral comments via telephone.  

Event Producer: Ladies and gentlemen, as we enter the public comment session, please limit your comments to three minutes. Once your three minutes expires, we will mute your line and move on to the next commenter. Each individual will be limited to three minutes each.  

Alina M. Semo: Thank you, Michelle. Do we have any callers waiting to speak on the telephone?  

Event Producer: Yes, we do have one person in the queue. Mr. Hammond, go ahead. Your line is unmuted. Mr. Hammond, your microphone isn't, we can't hear you. You might want to adjust your mic. We are still unable to hear you, Mr. Hammond. I don't know if you can adjust your mic at your end. We're unable to hear you. All right. We are unable to get Mr. Hammond’s line together... So Mr. Hammond, I would recommend that you dial in perhaps because we are unable to hear you.  

Alina M. Semo: Okay. Thank you. Michelle. Do we have any other callers on the line?  

Event Producer: I do not see any other callers.  

Alina M. Semo: Okay.  

Event Producer: At this time.  

Alina M. Semo: Thank you. If Mr. Hammond is able to call back in, we would be happy to hear from him. I'm now going to ask my OGIS colleague, Dan Levenson, who has been monitoring our chat if we have received any comments during the course of our meeting, Dan?  

Dan Levenson: Yeah. Mr. Hammond has made several statements of factual matters about the administration of FOIA. We would just like to say that with regard to the FOIA annual reports, the Office of Information Policy [OIP] takes the lead on the reports. Any discrepancies may be reported to OIP, and OGIS greatly appreciates OIP’s work on these statutorily mandated reports that shed light on each agency's administration of FOIA and that give FOIA managers data to help them manage their programs. So those are the comments.  

Alina M. Semo: Thank you, Dan. There's nothing else. I wasn't monitoring the chat when I was speaking, so to you.  

Dan Levenson: No, those were the only comments.  

Alina M. Semo: Okay. On chat, I see Mr. Hammond has his hand raised and he has also dialed in. Michelle, should we try him again?  

Event Producer: Yes, let's try Mr. Hammond again, and see if he can get his line open. All right. Mr. Hammond, can you hear us?  

Bob Hammond: Yes, I can. Can you hear me  

Event Producer: All right? Hello? Perfect. Yes, your audio is good. You're all set. You may go ahead, sir.  

Bob Hammond: Okay. This is Bob Hammond. I'm normally polite, today requires candor or nothing will ever change. I have several key points which must be reflected in meeting minutes. First, I was unable to make my oral comments on June 8, 2023, FOIA Advisory Committee due to technical difficulties on the government's end. I will be posting those comments. Second, regarding the MITRE prepared FOIA reference model. MITRE is an excellent nonprofit organization that can help you with FOIA and your agency may already have contact with them. The initial reference model is a good start, but lacks request for input. Some important things are missing, some are not quite right, some are contrary to policy. [inaudible] Continuing my comments…my two questions for Bobby Talebian at the end, will DOJ and MITRE mark V1.0 as a draft and staff it for public comments? Now, Bobby Talebian, will you state today in this open meeting, there is no circumstance whatsoever where multiple requests may be merged or combined into one? Please confirm that doing so is a violation of law. Third as to OGIS’s FY2022 ombuds report. My comments are the same as last year's report, fluff, fantasy and material emissions. OGIS is failing miserably in its statutory compliance oversight and mediation admissions, the crux of which is massive narrative under funding 10 to 20 fold. While I have been advocating before Congress for two years, perhaps wasting my time, Ms. Semo was signing about inadequate funding in her ombuds report to the President, Congress and her testimony before Congress last year, all the while asking the FOIA Advisory Committee to find her more money. In theory, Ms. Semo’s ombuds reports and her testimony to Congress are not reviewed or edited or approved by anyone. I don't believe it. From my expedited 2021 FOIA request, Ms. Semo’s 2021 SES based salary was $190,300 dollars. Therefore, in the 2021 performance cycle, Ms. Semo would receive a mandatory SES bonus between $9,965 and $39,800. NARA refuses to release Ms. Semo’s bonuses, which OPM requires to be released, perhaps in Ms. Semo favors an increase in bonus over straight talk. Talk to Congress and the President about mission failure due to inadequate funding. You never get money. You don’t…. 

Event Producer: Thank you so much, thank you so much for your comments sir.  

Bob Hammond: Success. Instead of the reality of abject failure, you are not getting increased funding. It is physically impossible for OGIS you to have engaged in 4,500 alternative dispute resolutions with free mediators. I suspect OGIS has not conducted…  

Event Producer: Mr. Hammond, thank you very much for your comments, your time has expired, so thank you. All right. I do not see any other hand raised at this time.  

Alina M. Semo: Okay, Michelle, thank you so much. I appreciate that. Dan, can I just ask you to come on camera again? I just want to confirm that we have received a number of public comments that we have already posted online. Is that correct?  

Dan Levenson: We've received a number of comments and I believe we posted them if there are any that are not posted, they will be posted soon.  

Alina M. Semo: Okay. Thank you so much. I appreciate that confirmation. Okay. Michelle, no other callers on the line?  

Event Producer: Nope, I do not see any other hands raised at this time.  

Alina M. Semo: Okay, I appreciate that. Next slide please. So just a reminder, we are going to continue to accept public comments, written comments through Thursday, July 13, screenshot of our public comments form on our website and the link to the public comments site that you can go to…Dan? 

Dan Levenson: May I add one thing? 

Alina M. Semo: Please…

Dan Levenson: They will be posted as long as they meet our public comment policy I should say  

Alina M. Semo: Yes. Thank you. Next slide please. Okay. I just want to thank everyone for joining us today for our annual open meeting. As I mentioned earlier, our annual report is posted. I invite everyone to take a look and thank you to all of you who have joined us and I hope everyone and their families remain safe, healthy, and resilient. And we will see you again in this forum on September 7, 2023, for our next FOIA Advisory Committee meeting. Thanks very much. Have a great day.  

Event Producer: That concludes our conference. Thank you for using event services. You may now disconnect.