Chief Freedom of Information Act Officers Council Meeting Meeting Minutes – July 22, 2016

Speakers:

• Melanie Ann Pustay, Director, Office of Information Policy (OIP), Department of Justice (DOJ), Council Co-Chair
• Nikki Gramian, Acting Director, Office of Government Information Services (OGIS), National Archives and Records Administration (NARA), Council Co-Chair
• Andrew Mayock, Deputy Director for Management, Office of Management and Budget (OMB)

A full list of attendees is included at the end of the minutes.

Welcome and Opening Remarks from Ms. Melanie Ann Pustay

• Inaugural meeting called to order at 2:00 p.m. by Council Co-chair Melanie Ann Pustay.
• Ms. Pustay welcomed everyone and stated that the attendees were gathered to inaugurate the first meeting of the Chief FOIA Officers Council.

Presentation on the Make-up and Responsibilities of the Council

• Ms. Pustay discussed the common goals of the newly formed Chief FOIA Officers (CFO) Council to improve the FOIA, share experiences across agencies, and learn from one another. Ms. Pustay also highlighted the unique and important role CFOs play in FOIA administration.
• Ms. Pustay discussed the responsibilities outlined in the statute for agency CFOs, including the newly added emphasis on their role as a result of the FOIA Improvement Act of 2016.
• Ms. Pustay then discussed the make-up of the Council, which includes the Directors of OIP and OGIS as Co-Chairs, the Deputy Director for Management of OMB, and every agency Chief FOIA Officer.

Remarks from Mr. Andrew Mayock on OMB's Role within the Council

• Mr. Mayock discussed OMB’s role in the Council.
• Mr. Mayock identified the three ways OMB would be interacting and engaging with the Council. First, by January 1^st, OMB would work with the Council, particularly DOJ, to help develop guidance regarding a “Release to One is a Release to All” presumptive standard. Second, OMB would keep working with DOJ and others to launch a consolidated request portal. And third, Mr. Mayock discussed the creation of a Cross Agency Priority (CAP) goal for FOIA.
• Mr. Mayock explained that in support of the CAP goal, OMB would provide senior-level leadership, and the co-goal leaders would be OMB, DOJ, and NARA. He explained that as to the CAP goal, in the near-term he wants to drive implementation on the recently passed amendments to the FOIA. In the longer-term he wants to work with the Council and with the CAP goal leaders to focus on the most difficult challenges agencies face in effectuating the FOIA. Mr. Mayock stated that he looked forward to further Council meetings and closed his remarks by thanking the Council.

Remarks from Ms. Nikki Gramian on OGIS and the FOIA Advisory Committee

• Ms. Gramian introduced herself as acting Director of OGIS and discussed OGIS's role and the new provision of the FOIA that pertain to her Office.
• Ms. Gramian also explained that OGIS leads the FOIA Advisory Committee, which brings together requesters and agency FOIA professionals to recommend improvements to the administration of the FOIA and she provided background on the Committee. Ms. Gramian discussed the Committee deliberation that took place the day before the Council meeting in which members pointed to issues with funding, technology, the ever- increasing volume of records and requests, and awareness or commitment of agency officials as the most difficult issues in FOIA administration. Ms. Gramian also spoke about the Committee’s discussion on the need to increase Proactive Disclosures and the current impediments agencies face in making more information available without the need to file FOIA requests.
• Ms. Gramian stated that additional information related to the Committee could be found at www.archives.gov/ogis
• Ms. Gramian closed her remarks by stating that she looked forward to discussing the Committee’s progress with the Council, thanked the council, and stated that OGIS looked forward to working with Council members.

Proactive Disclosure Pilot

• Ms. Pustay presented the first initiative for the Council to work on, which is implementing a “Release to One Release to All” presumption. Ms. Pustay explained that when President Obama signed the FOIA Improvement Act of 2016, he specifically directed the Council to look at the “Release to One Release to All” policy to determine how this policy could be implemented broadly across the government through guidance issued by January of 2017. Before discussing OIP’s “Release to One Release to All” Pilot, Ms. Pustay reviewed several of the efforts OIP has taken since 2009 to encourage greater proactive disclosures across agencies, including requiring agencies to address the topic in their CFO Reports each year and by issuing guidance on the topic. Ms. Pustay also noted that DOJ’s longstanding “Rule of Three” related to frequently requested records had now been codified by the FOIA Improvement Act of 2016. Ms. Pustay stated that a logical extension of that practice was to post virtually every FOIA release online.
• Ms. Pustay described the six-month pilot that OIP began in July 2015, in which seven agencies volunteered to test the feasibility of a “Release to One Release to All” policy. She relayed that from the outset of the pilot, DOJ excluded records provided in response to first parties seeking access to their own records as such records would not be appropriate for posting due to privacy concerns. Ms. Pustay listed the pilot participants and thanked them for their efforts. She explained that throughout the pilot, participants shared metrics and information with OIP. OIP then conducted an assessment of the Pilot which is posted on OIP’s website.
• Next, Ms. Pustay briefed the Council on the seven findings of the pilot. These included the importance of leadership support, the need to have a plan to address compliance with Section 508 of the Rehabilitation Act, the need to remain flexible in implementation, and the inherent value in the policy. Ms. Pustay also referenced the survey conducted from the 2016 Chief FOIA Officer Reports in which 24 agencies indicated that their FOIA office had at least some involvement in preparing their records for posting, including coding documents for compliance with Section 508 of the Rehabilitation Act. Ms. Pustay reported that OIP could not draw any conclusions as to the impact of the policy on the number of FOIA requests or the number of visits to agency websites.
• Ms. Pustay noted that while none of the participants reported any impact on outside stakeholders, some journalists did express concerns with the policy because it could impact their ability to have the first access to any given set of records and thereby impact their ability to have a “scoop.” Lastly, Ms. Pustay noted that the pilot participants reported that they had experienced additional benefits to their programs as a result of their participation in the pilot. For example, through the pilot, participants developed closer working relationships with their Information Technology (IT) team, became more aware of material that was being posted at their agency, and found greater efficiencies in working with other offices.

Next Steps

• Ms. Pustay referenced President Obama’s announcement when signing the FOIA Improvement Act of 2016 that directed the Council to look at how the “Release to One Release to All” presumptive standard could be implemented across the government. Ms. Pustay stated that this is an excellent initiative for the Council to consider as CFOs are senior level officials who have broad oversight responsibility for FOIA within their agencies and so are uniquely positioned to assess the resource and staffing implications associated with implementation of the presumption.
• Ms. Pustay asked the CFOs to review OIP’s assessment and findings from its “Release to One Release to All” pilot and assess how their agencies could go about implementing the presumption. She asked that this review include an assessment of the resource and time demands that would be required to implement the presumption at their agencies..
• Ms. Pustay stated that OIP would be providing CFOs with a template to help facilitate the questions that would aid in their evaluation of the policy and would also help OIP compile agency feedback.
• Ms. Pustay advised the Council that at the next meeting OIP would invite members of the journalist community as well as members of the public and interested agency personnel to discuss the impact of the presumption on journalists and the potential impacts of building in a reasonable delay prior to posting.

Questions

• Ms. Pustay then opened the floor to discussion. She responded to various questions regarding the pilot and future implementation of a "Release to One Release to All" presumption. Issues raised by members and addressed by Ms. Pustay included the impact of such a policy on the agency's legal requirement to post frequently requested records, the resource impact of such a policy, and the need for flexibility.

A video of the full meeting is available at: https://www.youtube.com/watch?v=vEqR_zbLS0o.