April 21, 2015 Meeting Transcript

FERRIERO: Good morning. I am David Ferriero, the Archivist of the United States. I'd like to welcome you here, for this meeting of the FOIA [Freedom of Information Act] Advisory Committee. And I'm pleased to note that this Committee is approaching its one-year anniversary. It's adversely challenging amount of effort by this one, but we truly have hit the road running and have gained momentum since then. The excellent discussions, research and efforts, to improve our understanding of the problems with the current process. We have seen, from the Subcommittees over the last few months, speaks both to your dedication and the importance of your work, and I'd like to personally thank you for the work that you're doing. You know, I moved away from what now looks like a cushy job, in New York, to become the Archivist of the United States, on the promise and belief that the National Archives could play an important role in the Open Government Initiative. I have worked very hard in those five years, especially with my colleagues from the Open Government community, to not only get the records out and available, but to use all of our resources, including OGIS [Office of Government Information Service] and ISOO [Information Security Oversight Office] and the Public Declassification Information Board, to focus on ways that we can improve access to the Federal records. So, I'm a huge fan of your work and you have my commitment for support of the work that you're doing to improve access for the American public. Thank you for being here. Thank you for taking time from your own lives to help the government in this work. You have my deep appreciation, thank you.

GRAMIAN: Thank you.

FERRIERO: And I wish I could stay but I've got to go.

GRAMIAN: Thank you, sir. Good morning everyone. Thank you all for joining us today, for the fourth meeting of the FOIA Advisory Committee. I know you all join me in thanking the National Archives and Records Administration for being the host agency for the Committee. I want to thank our archivist, who provided the opening remarks. As I've mentioned at a previous meeting, I am Nikki Gramian, the Deputy Director of OGIS, and I have a brief update on the Committee membership. As you all know, Mr. David Reed has stepped down from the Committee, and his co-chair for the Proactive Disclosure Subcommittee, will be joining us by phone, I believe the latter half of the meeting, Mr. Gillespie. I wanted to thank Mr. Reed for his services to the Committee and the government replacement the Archivist has appointed, Mr. David Pritzker. Mr. Pritzker is the Deputy General Counsel for the Administrative Conference of the United States; ACUS. He brings to the FOIA Advisory Committee, 40 years of experience as a Federal agency attorney, specializing in administrative law, including FOIA. He has extensive experience in regulation, alternative dispute resolution and advisory Committee processes. Please join me to welcome David. We're very glad you're here.

PRITZKER: I'm delighted to be here, or rather, I'm delighted to be in this seat, instead of that seat.

GRAMIAN: We're delighted you're in that seat as well. We would like to spend the next few minutes introducing the members who are around the table and also on the phone. As a reminder, the Committee members' bios are all available on our Committee's web page, which is available at www.ogis.archives.gov. We are videotaping this meeting and we'll make the video and transcript of the meeting material available on the Committee's web page. For the record, it will help if you can remember to identify yourself by name and affiliation when you speak, and I will be reminding you guys. Committee members Karen Finnegan and Maggie Mulvihill are unable to join us today, due to previous commitments. Eric Gillespie also is going to join us, again, by phone.

LEMELIN: Maggie may call in.

GRAMIAN: Maggie may also call in, that's great. We'll look forward to seeing the other two folks, hopefully, at our next meeting in July. So, let us start with the members who are on the telephone, if I could ask them to introduce themselves. [pause]  Did it go on?

REID: Yes. It's connected.

GRAMIAN: Did anyone call?

REID: There's just nobody on.

GRAMIAN: So, we'll just go with going around the table. If I could start with --

WHITE: I'm Lee White, Executive Director of the National Coalition for History.

PUSTAY: Melanie Pustay, Director of OIP [Office of Information Policy] at Justice.

GRAMIAN: David Pritzker, Deputy General Counsel of the Administrative Conference of the U.S.

MCCALL: Ginger McCall, Electronic Privacy Information Center.

EVITT: Brentin Evitt, Defense Intelligence Agency.

WEISMANN: Anne Weismann, Citizens for Responsibility and Ethics in Washington.

JONES: Nate Jones, National Security Archive.

HOGAN: Jim Hogan, Department of Defense, Director for Oversight Compliance.

BARBER: Delores Barber, Deputy Chief FOIA Officer, Department of Homeland Security.

ZAID: Mark Zaid, Private Practitioner, and the Executive Director of the James Madison Project.

BAHR: David Bahr, Private Attorney, representing at the request of the Committee.

MICHALOSKY: Martin Michalosky, the FOIA Manager at the Consumer Financial Protection Bureau.

GRAMIAN: Thank you. Let me also introduce the members of the OGIS staff, who are really the life support for the Committee's operations. Christa Lemelin, as you all know, is our Designated Federal Officer for this advisory Committee. I have Amy Bennett, who kindly has agreed to take notes for today, and our newest member of OGIS's family is Hirsh Kravitz, who is our attorney [Note: Mr. Kravitz is OGIS's Attorney-Advisor]. I also have [OGIS facilitator] Angel Simmons, who is also present here.

OK, so before we dive into the work we're about to do, I wanted to share some details on how today's meeting will work, and also cover some basic expectations and ground rules for our session. The first thing is, we will take about 15 minutes break halfway through this meeting, at approximately eleven-fifteen to eleven-twenty. While we are not allowed to have any food or drinks in this room, you may wish to grab something quickly from the Charters Café, located two levels down, in the ground floor, which is also where the restrooms are located.

All of the information about this Committee is maintained on our web page, within the OGIS website, www.ogis.archives.gov, and you can also find the Committee's charter, everyone's information, Committee members, linked to our videos, transcripts, for all of these meetings, information about meeting dates, public comments, and anything else that's related to the work of this Committee. We will meet about four times per year. Today's meeting agenda on OGIS's website, lists all the dates for the upcoming meetings. We have selected Tuesday of the third week of the month, unless the date conflicted with a holiday. During our inaugural meeting, we established three Subcommittees; the Subcommittee on FOIA Oversight and Accountability, the Subcommittee on Proactive Disclosures, and also the Subcommittee on FOIA Fees. These Subcommittees are free to schedule meetings in addition to this larger Committee meeting. The same FACA rules apply for your Subcommittee meetings, and we can expect to see notice of those meetings, and they should be open to the public as well. [Note of Clarification: Subcommittees do not have the same notice and open meeting requirements as the full Committee, as long as the Subcommittees report back to the full Committee. The Committee’s Membership Balance Plan states, “Any Subcommittees to the FOIA Advisory Committee will report to the FOIA Advisory Committee, which will determine the balance of the Subcommittee according to the criteria in this membership plan.”]

Subcommittee documents are also available on our website. So, today, we are expecting to hear some updates from these Subcommittees. This is a Committee on Freedom of Information. We want to work -- we want our work to be as open and transparent as possible. We're again, glad to see so many interested folks in this room, and we want all of you guys to be part of the Committee as much as possible.

So, with that said, I'm going to be -- we just talked about the meeting minutes of January 27th, with our newest member, Mr. Pritzker. These minutes meetings were emailed to everyone, I believe. Everyone had a chance to read.

LEMELIN: You also have a copy in front of him, a few others at the table have a copy in front of you right now. Mr. Pritzker called to our attention, that we inaccurately described Section 508, so he proposes that we amend the record to have a more accurate and correct actual description. Thank you, Mr. Pritzker, for bringing that to our attention.

GRAMIAN: Therefore, if you all don't mind, we would like to make those corrections and then have it at our next meeting, with both last minutes, as well as for this meeting's minutes, and we'll vote on them next time. We are now going to start with the Subcommittee reports. Let's start with Oversight and Accountability, if I may. You will have about 30 minutes, with the Subcommittee on Oversight and Accountability, including where we will include a report of where the work stands, and any discussions or brainstorming, if you all would like. Subcommittee on Oversight and Accountability.

MICHALOSKY: All right, thanks, Nikki. I'll go ahead and start us off and then Mark will kind of finish us off with some comments on the progress with litigation and what we're looking at there. To start off with, and to follow up some of the discussion we had last meeting, we did meet on March 6th and then again on April 7th, to discuss some progress in some other aspects that we're working on. To give you an update on one of the action items, OGIS touched upon some oversight and other aspects of reports or program reviews and inspections, and those type of things. We did get some additional reports that we have posted up on the OGIS site, from a member of this Committee, and then also, Nate Jones has taken on a continuous review of those, to try and pinpoint certain trends or certain issues that come up repetitively, or maybe even unique. So Nate is continuing to do that and we hope to have a better report on some of that analysis at our next meeting.

As far as an assessment of the Public Liaison role, we did partner with the Fees Committee, to craft a poll, or if you want to call it a survey but we're going to stick with poll, to go out to agencies; specifically Public Liaisons, but they can certainly go to FOIA professionals in their agency to answer some of these questions. We have a rather robust, and I think we would gather a good amount of information on that role, and what is going on with the Public Liaison, as well as what fees are going on, some of the fee aspects, and the Fees Committee will touch upon that. I did want to touch upon that survey or that poll, but I did want to kind of start off with talking about that [FOIA] Public Liaison role. I think it's only fitting that I go through a blog that was posted by OGIS, now four years ago, on the role. So, it talks about, back in 2007, now eight years ago, the Open Government Act amended the FOIA, specifically, it formalized the FOIA Public Liaison role within agencies. This role will serve as a supervisory official whom requesters can raise concerns about the program or the requests that are being processed by an agency, specifically reducing delays, increasing transparency, understanding the status of request, and assisting with resolutions to disputes that requesters have with agencies, that they filed a FOIA request. The role serves as a listening ear for FOIA requesters and works to resolve those disputes, which is what I would kind of categorize as providing customer service, and they're really focused on how requesters are our customers, and resolving their issues, complaints, challenges that we face processing FOIA requests. This role is something that OGIS uses to address some matters that are elevated up to -- they are partners with OGIS, and with that in mind, we wanted to go ahead and reach out to them and see how well that role is serving, who is serving in that role, and a variety of other things.

So I just want to touch on a couple of the questions that we're going to ask, and this is something I believe is posted on the Committee website, so you don't have to take copious notes or anything, it's going to be posted up there. I want to touch upon some of the ones that fall under the Oversight and Accountability, and then the Subcommittee on Fees will touch upon the questions that they're going to ask. But we want to first ascertain who's serving in that role, because it's such a unique role. It is a supervisory official. It could be a lawyer, it could be a FOIA professional, it could be someone else as a collateral duty, but who is in that role, what's their grade series. How long have they served in that role?  Who do they report to?  Is it the chief FOIA officer or is it someone else?  Have they received Public Liaison training or customer service training?  This is something, maybe through DOJ, OMB, OGIS, or some other role, so how they receive that. Do they plan to attend training?  So if they haven't but they play to attend it over the next 12 months. Do they have sufficient resources?  Do they feel that they need more personnel, more training, leadership support, technology, to do a better job and overcome some challenges they may face. How often are they, on average, contacted by requesters?  Is it something that they interact with the public on a daily basis, or maybe it's months, and then what percentage of things do they resolve?  Is it a status check, and what's the status of my request?  Is it something to do with an appeal?  Is it, I'm not satisfied with my response?  And what does this mean, this exemption thing, can you explain that to me, but what are the percentages that they're contacted. What are they answering and what are they interfacing with the public about. Do they interact with their attorneys?  Do they have attorney interaction within their agency and within their role?  How often do they interact with that attorney? 

And then that's all for the Public Liaison role for Oversight and Accountability. There are some questions regarding fees that I'll let them handle that. But that is something that we've put together and work to finalize, and we're working with OGIS to get that published, out to the Public Liaisons or the agency FOIA professionals, to get those answers. And then once we get that information, we will then analyze that and see if there are some trends or some issues or challenges that come as a result of that information. And then that's really all that I have to report as far as the work that we've done on those two aspects, and I'm going to ask Mark to talk about the litigation piece that we've been looking at as well.

PUSTAY: Could I ask a question?

GRAMIAN: Sure. Of course.

PUSTAY: Melanie Pustay from Justice. Did you purposely not include parallel questions directed to the FOIA Requester Service Centers?  Because I'm just thinking since the Liaison is the supervisory official, it might be that an agency has a really robust service center and lots of data could be collected about how many times they interact with requesters and the questions they get, and only a small percentage might actually go to the Liaison. So, I just wondered if you were purposely only wanting to see what went up to the Liaison, and excluding the Requester Service Center, or did you want to -- or had you thought about covering both in the survey?

MICHALOSKY: I think we generally talked about a little bit of that; not necessarily the service center by title, but I think the different functions. We've had some other questions in here that we kind of narrowed down, and replaced them with some other matters, but the way that, I think the intent that we're going to flush out over the next probably couple weeks before this goes out, is to add a paragraph to kind of describe what the intent of the survey is and who that goes to. I think initially, we have a focus of a Public Liaison, but then we would put in there and try to capture it and explain it in the appropriate way, of you can go to other FOIA professionals, naturally a customer service center if you have one and it's robust, to answer these questions. And there are some comment fields in here, or text boxes, that maybe that can be described a little better, but the initial focus was that position itself, that title, that supervisory official that handles those matters, and then possibly, you know, they can contribute with that type of service center, to answer some of those. Like maybe, you know, they have a certain text box, where they can explain some of those things.

PUSTAY: I'm thinking of like, status inquiries. I just would imagine that lots of those would be answered by the Requester Service Center, which might be the actual FOIA professional handling the request. It seems like it would be helpful to gather that info, but that might not go up to the Liaison, because it might just be being handled by the --

MICHALOSKY: We weren't focusing on, necessarily, how well the agency as a whole is going to answer these. We were focusing on that role itself. I think the fees is probably a little bit more of a holistic approach.

BARBER: Melanie, what -- this is Delores Barber from DHS. When Marty and I first met and we were talking about this whole thing, when you bring up the FOIA Requester Service Center. And Marty, you mentioned the Open Government Act. We started our discussion, and it was predicated upon the Executive Order 13392, and so the first thing we asked ourselves was what agencies, what departments actually have a FOIA Requester Service Center that's implemented, they're calling it that, which led us to the FOIA Public Liaisons. Are they supervisory positions? Has anybody created any training for them?  Do they function in the role that they have? Is it a specific duty for a specific person, or is it a collateral duty? So when all those questions came up, that's when we did our first draft of the poll, and what we envision is that we go out first, to see what sort of information that we gather with this first pass in the poll, and then see if we can expand it out.

PUSTAY: OK.

BARBER: Like Marty mentioned, in terms of the text boxes. Hopefully, we'll be able to capture whether or not people actually have a FOIA Requester Service Center and they're calling it that, and it's established at agencies. For example, when I first came to DHS, which is huge, there was one FOIA Public Liaison, and I encouraged the chief FOIA officer at the time, to look at Executive Order 13392. I don't think one FOIA Public Liaison for all of DHS would exactly serve all the customers that we get.

PUSTAY: Right.

BARBER: So, we expanded that very quickly, to over 20, and each of the components and some of the sub-offices, and made sure that they were supervisory positions. So, once we get this first pass, and correct me if I'm wrong, Marty, then I think that will inform how we expand.

PUSTAY: Go for more information.

MICHALOSKY: Because we haven't -- and this is me speaking, and this is Marty again, if anyone's on the phone, but we're not sure, we don't see data that really supports who's in those role, what are they doing, how is it being utilized. So we thought, since this is a specific role that each agency should basically have, even if it's one, or thirteen, we want to assess this role in particular. Then, based on that, we could probably then start looking at some other aspects of it. So maybe there will be a survey in the future that says OK, we've collected this data, this is what it looks like. Now let's get a different picture of, you know, greater customer service type FOIA Requester Service Center type thing.

PUSTAY: Right. I think what happens is people conflate.

MICHALOSKY: Right.

PUSTAY: I think the terms get conflated, and because the Liaison sort of sounds more like a person, we tend to think they're doing everything, but it's supposed to be that it's two levels.

MICHALOSKY: And that's exactly what we want to assess. We want to see what is going on with this role, because it's ambiguous. Who's in this role?  Is it somebody that has a powerful role, or is it a collateral duty for somebody in this office way down here?  Exactly what you mentioned is what we're trying to assess. So we get some hard data to say this is what's going on in the agencies, and then maybe next steps would be something along a different line, based on some of this data.

WEISMANN: If I could just add, this is Anne Weismann from CREW. From the FOIA requesters’ perspective, I think certainly what motivated me to push for this is the notion, anecdotally, that the FOIA Liaison has not, in many agencies, proven to be a very effective position. And so our focus was very deliberate, on the FOIA Liaison. We are not trying, with this survey, to collect data across the board on how well an agency deals with the public, et cetera. I think the data for requesters will confirm or refute the sense we have that this isn't being an effectively utilized position in a lot of agencies, and it will do more as Marty... So there's a number of perspectives, I just want to stress, that go into the design of this survey.

ZAID: This is Mark Zaid. To add, because the Liaison is an individual, and that individual is going to be identified. So if  a requester, you know, those of on here are sophisticated in experience, but if someone in some Midwest state, not to pick on the Midwest, just goes to -- anywhere outside of D.C., how about that, looks up online, who the Liaison is, they can't call the public service, the FOIA Service Center, they're going to call or email the Liaison, and we wanted to get a sense of, is that person responding back timely and if they're responding timely, are they responding substantively, are the responding accurately, have they been helpful?  That was a large part of it. No reason why we can't look at the --

WEISMANN: Right, the service center.

ZAID: The agency responses certainly, in general, to find out later, but the first focus was, the first place someone is going to go to, is that working.

PUSTAY: It's Melanie again. Maybe if there's like a preamble to your survey that lays that out, that you're purposely looking at the Liaison, and you understand that the agency has the two levels, because really, in theory, if you're in the Midwest, you should be able to go to the website and call first, the FOIA Requester Service Center, and get a human being, that's supposed to give you things like your status. And then it's if you need more, that you go to the FOIA Public Liaison. I mean, it will be interesting to see, I mean I know that's, it sounds like that -- I see now, your focus really is on what happens at that next step.

GRAMIAN: Mr. Pritzker.

PRITZKER: David Pritzker, ACUS. It seems to me that it's essential to add one more question that will ferret out how big the program is. As it happens, one of the hats I wear at ACUS is that I'm the FOIA Public Liaison. I can answer all of these questions and you wouldn't have a clue, from what I wrote, that we have a miniscule number of FOIA requests. So, I think you need something that at least will identify whether the program gets thousands or hundreds or dozens of requests each year.

GRAMIAN: This is actually very helpful. We will have some time, and I would love for everyone to participate, and if there's additional questions that can be added, maybe we all could brainstorm and come to an agreement on that.

MICHALOSKY: And just one more alibi. This is Marty again. I think to compliment what you and Melanie had brought up, David, I envisioned it, as we collect the information, that we look at the annual reports. To a degree, annual reports [Note:The FOIA requires each Federal agency to submit an Annual Report to the Attorney General each year. These reports contain detailed statistics on the numbers of requests received and processed by each agency, the time taken to respond, and the outcome of each request, as well as many other vital statistics regarding the administration of the FOIA at Federal departments and agencies.] do kind of give us a little sense of how well that program is working. What are the average turnaround times, backlogs and so forth. So, by looking at that data, we could then ascertain that this agency is maybe, you know, they process a thousand a year, versus more than a thousand a year, or has a number amount of Public Liaisons, because it says that in the report. So, I think there will be a complimentary data, being complimented by both sides, where we look at, you know, this is the type of agency it is and this is the data based on the annual reports, and then this is what we got from that individual that is interfacing with the public, hopefully very often, and can give us a sense of that interaction, rather it be extremely positive and very well-rounded and has a very well established program and outreach and customer service focus, or it may be there's some challenges and we can ascertain that they don't have access to email, for example, you know and that's something that maybe needs to be addressed. So, we're looking to probably compliment a variety of different things and then next, we can definitely use that data as a foundation and look at other things. We can certainly look at, if agencies are doing well, or to help us move along to say, you know, in a report that we may want to publish in the future, these are recommendations, to compliment the Open Government that was done eight years ago. So in eight years, we found this, based on something that was put in place eight years ago. So that's kind of like what we were looking. A great question, thanks.

BARBER: This is Delores from DHS. To go to David's point, I think for the first question that we have, we can add, where it asks about your position, series and grade, if we can just add what agency you're at. It will make it easier for us to --

PUSTAY: To match it.

BARBER: -- match it up with annual report data. So thank you for that, David.

ZAID: This is Mark Zaid. David, if there's anything, because obviously being new, we didn't have anybody who was a Public Liaison, so one of the things that might actually be helpful, since this has not been issued, maybe we'll get the answers from you first, so we can see, and you let us know if there's something that you think would be more meaningful to add here. We tried to keep it down to a specific number of questions, so as to increase the odds of responses which, by and of itself, will tell us something about Public Liaisons, if they blow off the Federal Advisory Committee survey/poll, and don't answer us. I think that will be quite telling, and probably be the first thing in our report, as to who did not respond, and then follow up as to why they did not respond, because particularly, we want to know, like you wear multiple hats, so is this, for other agencies, is this something they just tacked on to someone because they happened to be there that day and they don't know or care about FOIA and people who call are placed on the second tier. I don't know if that's true at any agencies, but that was one of the purposes for us issuing this or about to.

And then on the litigation side there's really not much, if anything, to report. Things that we had initially decided to look at, we're still looking at, but we discovered that there are private organizations, most notably Syracuse University, with TRAC [Transactional Records Access Clearinghouse], that have been independently undertaking much of the same information or efforts that we were going to do, and since we're tied to government now, we want to be efficient. So we're not going to reinvent the wheel and we're going to try and mirror and match up with what they're doing and then fill in any gaps, and they're, from what I can tell, robustly compiling information relating to litigation efforts. So on that, we're not reinventing the wheel. That's pretty much it on litigation and I think that's it for our Subcommittee.

GRAMIAN: Do we have any questions?

PRITZKER: I'd like to ask a different kind of question -- this is David again -- prompted by what Mark just said, about encouraging responses. Has the Committee or Subcommittee, has anyone, thought of how this is going to be distributed, and specifically, under who's aegis?  I don't know how frequently an Advisory Committee sends a survey of this kind out to Federal agencies, and how it's done so that it encourage responses. Has anybody thought about that?

ZAID: We did. This is Mark. My understanding, and I'll defer back, is it's either going to -- or both, come through, that Melanie would help us, or at least identify folks, if we didn't know. Well, we can obviously find them, but wanted to know, does someone have a list of everybody in one place or do we have to go to every agency's websites, to actually find out who the Liaison is. I think we even suggested, and I don't know if that's ever happened, whether OGIS was going to maybe compile a list and put it online.

PRITZKER: That's not my point. (overlapping dialogue; inaudible)

ZAID: No, no, how you would send it to them. I mean, I think it's coming through OGIS as the primary, is it not?

GRAMIAN: I believe we were going to enlist Melanie's assistance for compiling a list of everyone for this project.

PUSTAY: We're happy to do that. I think though, David, is --

WEISMANN: How it's going to get set up.

PUSTAY: David is saying not more than -- not really so much the addresses, but like sort of the mechanism.

ZAID: I presume it's going to be emailed to every Public Liaison, and then we'll do follow-up phone calls if we don't hear back.

PUSTAY: We're happy to do it.

LEMELIN: Christa. So, the National Archives, we're going to administer the survey and we'll probably do it through either QuestionPro or SurveyMonkey.

GRAMIAN: Right.

LEMELIN: And so we expect to work closely with Melanie, to ensure that we're sending it to all the FOIA Public Liaisons. Before we can send it, we need internal approval from the National Archives Chief Operating Officer's Office. That shouldn't be a lengthy process. It's just a matter of having the questions approved and providing the background on what it is we're doing and why we're doing it. That's our expected process.

GRAMIAN: Right. So what we need to do is come to an agreement with all the questions, and then once everybody has added every -- you know, the questions, and looked at it and approved it, then we'll go to our chief operating officer, and then we'll take it from there. Other questions?  Anyone else?  No. All right, thank you so much, thank you very much, Marty and Mark.

LEMELIN: Can I add one more comment?

GRAMIAN: Of course.

LEMELIN: This is Christa again. Nate did a really good job putting together a lot of agency reviews and GAO audits and reports, and I've tried to get a lot of those up on the OGIS website by providing links to them. If you go toogis.archives.gov, there's a (inaudible) section, and each of our Subcommittees has its own web page. If you look on the Oversight and Accountability web page, you'll see links to a lot of GAO audits and a lot of --

JONES: IG [Inspector General] reports.

LEMELIN: -- agency reports and audits, and OIP guidance and all kinds of great things. So, if any of you have suggestions on resources I can add to that, or if members of the public want to write in and let us know what we should add, we're happy to do that and we welcome your feedback and collaboration on making this a great resource.

GRAMIAN: Thank you all. So, we'll now turn to the Subcommittee on FOIA Fees, chaired by Ms. Ginger McCall and Jim Hogan, if I could turn to Ginger or -- OK.

HOGAN: Hi, it's Jim Hogan here. We started, the Subcommittee was formed last summer, of course, with our first meeting. I think discussions hit upon, at least from the view when I've talked with FOIA officers about Department of Defense. It's one of the most contentious issues between FOIA requesters and FOIA professionals, the fee issue, and a lot of it is misunderstanding. I'm surprised FOIA officers aren't educated, exactly what's required. It's a lot of subjective decisions that have to be made, in a world where people want decisions to be as objective as possible. So there's a lot of gray area and it requires a lot of education with case law changes. The guidelines, created by OMB, are from 1987, and the world had changed drastically since then, so sometimes FOIA officers are left feeling there's not enough guidance, and so they do many times, what they think is right, and the process of trying to adjudicate what fees may or may not be there, delays, in some ways, the process of the requester getting information that they want.

So, is there a way to streamline, is there a way to improve it?  We've looked at what some other countries have done, we discussed that in the last meeting here. It doesn't seem to be as much of an issue that we can tell, from other countries. Mostly, we're looking at Canada, Australia, New Zealand, the United Kingdom, and I think we looked at Mexico also. So, why is it such an issue here?  Is it getting worse?  There's sort of two ways to get data, and we're going to talk about a survey to really define a problem, a survey of FOIA officers, FOIA professionals, which we're going to piggyback on the survey questionnaire going out, or the poll going out, from Marty's Subcommittee, going to Public Liaisons. Marty and I are going to talk a little bit more about, do we want the Public Liaisons answering this, because many times Public Liaisons really don't do day-to-day FOIAs. Sometimes they do, sometimes they don't. Sometimes they have no experience doing it. Do we get an answer more from the people out in the field doing the work?  What do they see the issues are. And many times the issues will be different, you know, for example, Department of Defense, out at some air base in Nevada would be a different issue than we have here inside the beltway; different types of requesters, different types of documents being requested.

We also talked about, it would be nice to get data from FOIA requesters. Unfortunately, we can't do that because restrictions of government surveying the public and getting data from the public, the ropes we have to go through, the hurdles we have to go through, we realize it's not a good idea. We discussed a couple possibilities and we're going to talk to Christa a little bit, you know, focus groups, maybe through ASAP, we don't know if that's really possible. So, we're pretty much going to be restricting our data that we are able to get from government agencies and government people, but I believe the public can make comments to the Committee at any time.

LEMELIN: Yes.

HOGAN: So if they voluntarily want to give comments to the Committee through the website, on what they see fees are, that's fine, that's good, that's something very welcome to us. So, we're still looking at defining it. I do think the problem is we want to see exactly, do we take too much time. Now, granted, and Nate talks about this in our Committee meetings, I agree with him, is that less than 1 percent of the money -- you know, we don't get that much money in, that's true. The FOIA fees are -- I don't know why, what their purpose was, way back when the Congress first did it, but it didn't fund the FOIA program, it doesn't. I know at Department of Defense, you've got there where they're getting 20 percent pay cuts in some places, or resource cuts. You can frustrate a commander. Why do we give this stuff out free and we can't get money for it?  Understand, understand that is going on. But it really, the fees do not pay for the program. Maybe we discover what their real purpose is. We talked about in the Committee, is a fee sometimes a way of helping a FOIA requester narrow the focus of the request, and try to get it in a quick manner.

The discussions have been good. I can't say we come to any conclusions sometimes in our discussions. We keep going round and round in circles and sometimes there's no easy answer here. But we're going to out with, you can see the questions here on the handout, and they're available online, some of the questions dealing with fees. One is a flat fee, and that's something that some countries have. I think Canada has a flat fee and also, I think you have to be a Canadian citizen to ask for Canadian documents too, so we don't do it there of course, but a flat fee of five to ten dollars for noncommercial. We're primarily focusing on noncommercial requesters. We'd like to keep commercial requesters, keep that, not change that at all, keep it the way it is right now, even though at times it could be difficult. I mean there's even been controversy whether if someone is actually a commercial request or not. Mark has probably been called a commercial requester.

ZAID: Yeah.

HOGAN: That is rare, but sometimes, maybe that's something to look at, getting rid of fees. Maybe that's a commercial question we need to add here, about getting rid of fee categories. I can't remember if we addressed that, because that's a subjective call. Try to get information, as much as we can from the Public Liaisons, and see what we can do with that data. We also looked at some discussion, hypothetically, what would happen if we eliminated fees or changed the fee structure. Whenever something is changed, and you hear this inside the beltway, the unintended consequences of a law change. It's Congress, you know passes laws, something happens, great, then there's these unintended consequences, and if we have some type of legislative proposal at the end of this Committee, if we do from our Subcommittee, can we foresee some of those unintended consequences if we negate them. That's predicting the future. But we'd like to make it, I think we all, on the Subcommittee, want a process here that's beneficial to both agencies and requesters. Get it out there easily, without being bogged down, because the more we get bogged down on issues, the greater the backlog is. The Department of Defense backlog has gone up significantly, and that's the things that we are battling.

So, we discussed, and I just have a couple positive and negative issues here. If we eliminated fees, the positive thing was, we cannot be spending resources trying to adjudicate fee issues. I mean, we have FOIA officers that are writing a letter discussing fee issues, just work in processing it, making sure the search is done, doing a review, responding to the requester, coordinating the reviews. Time could be spent on that, and a negative, a potential negative is, would it be an increase in large and complex requests, where they're asking for a lot of documents. At some agencies, I think that could be a very real issue, based on the type of requesters they have, and that would increase FOIA backlogs, and we're trying to keep that backlog down. So is that something that's a real possibility?  We don't know. We don't think the view, the charter of the Subcommittee, is to be looking at how we deal with potentially, large requests. There have been some agencies, at least some components of Department of Defense getting larger requests. We're doing emails a lot more, so you get a whole lot more documents when you grab a few thousand emails, responsive to the request. It takes a lot longer to do. But we're not really going there with that, but we want to see if we can keep -- you know, have maybe an end product that, to the best we can tell, would not necessarily entail that. It's hard to predict the future, but that's just a concern we have.

We talked about flat fees or high threshold for fee requests. So we drafted, actually something I came up with a few years ago, a potential legislative proposal, something I did in my spare time, not that I have spare time, but something I did. How would it look like, and I sort of patterned it after what the United Kingdom does, where they do have like a ceiling, a fee ceiling, without going into detail on that. And so we just circulated that around and we got some good comments. I don't know if anybody really likes it. The more I look at it, the more I dislike it myself in some ways, the possible negative consequences from it. Right now, obviously, in the next few months, we're going to be looking at this legislative proposal, how can we tweak it, and we may not end up with anything at all. We may end up with the best thing to do is deal with what we have and get a good education process here. Or, it might be, let's just scrap the whole thing and maybe start over. We're not sure, we're still going in that direction, but personally to me, I've enjoyed the discussion among fellow agency officials and ones from the requester community on the board. I'm proud to be able to represent the DOD especially, to the Subcommittee, and some of the concerns I have, and I share with them, some of the things we hear in the Subcommittee, and hopefully, during this process, at least we can get some more education out there in the field, about how to deal with fees.

One of the things I try to tell FOIA officers in the Department of Defense, and others, don't make fees an issue when it's not an issue. I think that's something that's going on. They're sweating over issues, I say how much search do you have?  Well, we have two hours of search. That's not an issue. Even if it's three hours of search, don't make it an issue, because they spend more money trying to make it an issue when it's not an issue. When there's valid issues, when it really is a fee issue, and this is really concerning, and how do we deal with that, and how do we educate the requesters too in that way. I invite comments from any other Subcommittee members, please, or any other Committee members.

ZAID: I've got one, this is Mark Zaid. I don't know necessarily, that is has to be a survey question, but it might be an interesting data point when we're discussing whether or not an agency should just forego an issue of fees, get rid of fees other than commercial, from a statutory standpoint. I'd be curious to know if this can be tracked. How much, by way of fees, are owed to an agency, by a requester who agreed to pay fees and then reneged on payment after delivery of documentation, what that number is. And then, has an agency of the United States Government ever gone after anybody for fees in that type of situation. So, if we have a situation where fees are being -- the time was spent in determining a fee category, and assessing fees and doing all the letters, and then the person doesn't pay and then nobody does anything by way of enforcement, then why are we even doing it in the first place. That may be a small number, it may be medium, a large number. It may not be a number that can be tracked, I don't know at all, but if it is trackable, that might be an interesting data point to, I would imagine, probably go for the fact of it's not worth the effort of having to deal with fees, because I doubt anyone has ever been sued in the history of FOIA, for collection of fees.

HOGAN: No, and I'd just say, in Department of Defense, I've never heard of them going after, and anybody who's got a tracking system should be able to get a report, of who owes. Of course, that report, is it accurate?  It could be errors people put into the system, that somebody owes fees and they don't, or they paid and it hasn't been caught up. So, I don't trust those reports. When I was an action officer a number of years ago, we would have that system. I'd get a request, I'd look at it, and then I'd double check the file and say this person really owes, yes, we will do -- basically, we won't honor the request. It's you pay and then we'll process your request, if you don't pay we won't process, but never... It's not worth it, because I would think the resources to take, to go over someone, more than they owe anyway, so I've never done it but yeah.

GOTTESMAN: And Jim, this is Larry Gottesman.

HOGAN: Yes, Larry?

GOTTESMAN: I can tell you that Treasury requires agencies, if you have a debt owed to the government, to refer it to Treasury. So, the Treasury does after FOIA requesters who have basically, bad debt.

HOGAN: Right, that's true.

GOTTESMAN: They don't sue anybody, they just go after, I guess their tax returns or something. So there is a process that agencies are required, by Treasury, are required to refer any bad debts to the Treasury, for the collection.

MCCALL: This is Ginger McCall, I'm the co-chair on this Committee, but as I was looking at the questions and Jim was going through the history of the conversation that we had, it occurred to me that we may -- several times in the conversations that we've had in the Subcommittee, the issue has come up about agency processing queues, what percentage of requests the agencies receive are complex requests or voluminous requests. That may be something that we'd want to get to in the survey sense. It has come up a lot in the conversations that we've had around the FOIA fees issue.

BARBER: This is Delores Barber from DHS. Thinking about the issue of fees, and when you were giving your report, Jim, about restrictions in obtaining information from the requesters. I think when it comes to fees that -- because we have to charge fees, Melanie will tell us, that it would be useful to at least attempt, or think about the feasibility, of collecting information from the requester community. Even though there are information collection restrictions, they're not too formidable, and this Committee might think about coming together and maybe coming up with the information collection, going through the OMB process, and talking to the requester community, because the one thing that jumps out to me about this survey, because we're going to send it to the FOIA Public Liaisons, is that what would we do with the data once we get it. I think anecdotally, just if we fill this out, if we all put ourselves in the shoes of FOIA Public Liaison and filled out this survey about fees, we could pretty much guess what the outcome is going to be. I think it would be useful to expand it out, to actually maybe think about doing the work to create a real survey instrument and send it out to the requester community, and drill down and figure out just exactly what is going on with fees. I like the idea of the compare and contrast with other countries. However, the United States of America is the biggest FOIA game in the world. So, when you talk about Canada, you talk about flat fees and you talk about fee limitations, it's different in the UK than it would ever be in the United States of America, and I think it would be worthwhile for this Committee to at least think about reaching out to the requester community on the issue of fees and actually doing a real survey.

HOGAN: I appreciate that, Delores, thank you very much. We talked to Christa a lot, and maybe I'm just giving my impression, my memory is that the time to take to do the survey. Do you want to address that Christa, please.

LEMELIN: I mean it's just the process of collecting information from the public, it just has that added hurdle of having to go through OMB. So, we have to go through now, internally first, and then go through OMB. We're happy to do that if that's what the Committee wants us to do. Parts of the thinking was this Committee, you know, is a two-year Committee at this point, and so I think wanting to -- firstly, I think the idea was first that we'll go through the low hanging fruit and then at the same time, let's work on some survey questions for the public, if that's what we want to look at. I think there are definitely information gaps out there, that it would be great for us to fill in.

GRAMIAN: And we're happy to do that if you all could come up with the questions.

LEMELIN: Yeah, tell us what you want and we'll support you.

GRAMIAN: And then we'll start the process.

WEISMAN: If I could just speak up, this is Anne. I think it might be worth also checking with TRAC, to see if they have done anything on this issue. I don't know if they have, but they collect a lot of data, so it might be a good starting point. Also, they might have some good ideas about how to go about collecting that kind of data. I actually, I agree with Delores, that I think it would be an extremely useful piece of this, to get that perspective.

BAHR: This is Dave Bahr. In a sense, I guess the hat I wear hear is representing the requester community. I can say anecdotally, without the benefit of actual hard data, that a lot of my clients, when they come to me, and I'll start talking to them, and my due diligence about other requests that they've had, or even the history of the request, bringing it to me. Frequently, they'll get a fee assessment of $500 or $300 or even $100, and that often is enough for them to say well, all right, I guess we can't afford this, and then that request grinds to a halt. Often, unsophisticated FOIA requesters aren't privy to the concept of the fee waiver or an administrative appeal, or it seems to daunting, and so even though they have rights guaranteed by the system, they don't take part of that, they don't exercise those rights. And, you know, they come to me and then I say well, here's what we can do, but often, we have to hit the reset button and start the whole request process over, because the appeal deadline has lapsed or something like that.

So I can say that obviously, for the information professionals in this room, people who do FOIA requests, hundreds of FOIA requests a year, this is a no-brainer. We know how to formulate, or describing our requester category, we're laying all the groundwork for the fee waiver, et cetera, et cetera, but there is a vast -- the body politic, the public out there who is supposed to be using this without lawyers. This is not supposed to be requiring lawyers, to make a FOIA request. It's very intimidating and if you're seeking information for your grassroots group that has an annual budget of $5,000 a year and they say well here, you can have it for $200, that just shuts the whole thing down. So, yes it would be great. When I was the one who suggested that we try and explore the idea of waiving fees in their entirety, for non-commercial requesters, one of the things I wanted to do as part of this polling process, was to seek this information for the public, but then I learned of all the hurdles that we'd have to jump over and the hoops we'd have to jump through. We don't want the perfect to be the enemy of the good, and so we want to get the information, at least some information, sooner, rather than later, and so that's why we're going through this more narrowly focused approach.

JONES: Nate Jones, National Security Archive, thanks, Dave. Two. Just kind of one point that I want to get on for the record and one general question. The question is, are agencies really required to charge fees, because I remember going through FOIA regulations a while back. I'd like to see the genesis of that. In some agencies, I can find it, I think off the top of my head, is actually CIA has a line in their regs saying, when it's in the agency's interest, we can waive fees at any time, and they generally do that, I think it has worked very well. And then the other point is, something that we've got to figure out or clarify, or make known, is that if, in according to the updated law, if an agency misses its 20-day, or in my opinion, sometimes 30-day deadline for FOIA, for non-commercial requesters other than reproduction fees, they cannot be charged. So, there's a huge universe of requests where agencies are saying this will cost literally $1.4 million to process this request, but the fact of the matter is, is the agency, probably in all likelihood, would have missed their deadline and not be able to charge most of those fees anyways. So that's an important aspect of the fee conundrum I wanted to get on the record. Thanks.

PRITZKER: David Pritzker, ACUS. I haven't look at the report to us, that I've mentioned at prior meetings, I haven't looked recently, but I think there's some data in that about fees. I'll check into it and let you know whether there's anything that fits in with this conversation. But the other thing I wanted to mention is that there have been comments about the hurdles getting a survey to the general public, to the requester community, approved by NARA, getting it approved by OIRA [The Office of Management and Budget's Office of Information and Regulatory Affairs]. I've done that too. I've spent some time as a desk officer at OIRA. In addition to persuading the folks there, the Paperwork Reduction Act requires no fewer than two public comment periods about your proposed inquiry; 60 days for the first and 30 days for the second, and so if there's any hope of getting this information in the near future, this isn't the way to do it.

JONES: Nate Jones again. I would just add to that, my hope is that in general, the FOIA -- and I've noticed we're halfway through our two-year term, halfway through our session, and we've spent a lot of time talking about surveys, not a lot about actual reform. So, I would just second that more than jumping through hoops to do surveys and collect information, which is very important. I want to stay and I think most of my colleagues want to go beyond that as well, so, thanks.

MICHALOSKY: Hi, this is Marty, can I take a moment?

GRAMIAN: Of course.

MICHALOSKY: Just on two points. One is that collecting from delinquency. I know my agency, their working through a process now, to actually come up with a policy where we can, if you want to call it, go after, or collect delinquent fees. As well as, that's actually a sub-portion of a bigger collection effort, where we go and collect basically from employees, if they're overpaid in travel and things like that, but I put in a piece on collecting FOIA fees. That policy is now going on about a year, so it's not an easy thing to do. That also fits in with what Larry brought up about Treasury; at what point do we refer, at what point do we waive it, because it just takes too much effort. But we've been working on that for a year and in my mind, I don't know why it takes a year to do that, but it's taken a year and it's hard work, to get all those things lined up, which leads me into my second point. Trying to understand, other than it's hard work to change the fee guidance after 30 years, and speaking as an agency, we're now, our regulation for FOIA, as well as basically information disclosure and confidential super-rides when information is all in one regulation, it's three years old and we're rewriting it. And one of the things that I wanted to do was get away from the OMB guidance, as well as the guidance basically, in everybody's regulation. So I crafted thresholds, or I wanted to craft thresholds. If it's below $500, it's automatically waived. I don't have to do anything, it's automatically waived, or you know, collect X amount upfront, or you know, structure that so it really supports common sense. My legal team said you can't do that because you have to follow only guidance, and it restricts you to do that. So again, I go back to not understanding why, after almost 30 years, why that hasn't changed, because even whenever agencies like mine wants to set thresholds and do things in a more constructive and positive manner, those regulations then restrict you from doing it and essentially, I have to write, in my administrative record, I'm waiving this fee, I'm waiving this fee, and I'm waiving this fee, versus having a very strict approach saying, I'm automatically waiving these because we won't collect anything unless it's above $500. So just from a different perspective, I've tried to do that in my guidance, in my regulations, and it's now more of a hindrance to even do that.

JONES: It will be a terrific tangible benefit -- Nate Jones -- if the FOIA Advisory Committee could make it so that agencies that want to improve their fee structure are not handcuffed.

WEISMANN: This is Anne. That leads me to a suggestion of adding a question to the survey that gets at the issue of, you know, are there in -- I don't know how phrase it, but basically the question of whether there are internal prohibitions or bars, on your discretion, with respect to fees. Because I'm really curious, how many agencies believe they have the discretion, and what they understand are obstacles. So, I would suggest that you considering adding that as a question.

ZAID: This is Mark Zaid. I know when we were pulling together these poll survey questions, we were combining the two Subcommittees to make it more efficient, but I'm wondering, is the Public Liaison really the right person to answer these fee questions?

HOGAN: That's something Marty and I were talking about before the meeting started and it may be the -- no. A Public Liaison, in some cases, and I'm thinking of all the ones we have at DOD, but not as many as Delores has. We only have about 16, but I'm thinking some of them no, some of them yes. So, we would ask them to give it to their -- have a FOIA professional answer this question, somebody who deals with this. But then again, for example, you have, say the Department of the Army, who has a FOIA Public Liaison here in Fairfax County, but then they have hundreds of people around the world who better answer the questions. So, maybe we have to look at restructuring it when we get it out to the field, where a person out in South Korea or Kansas, have a better way to answer it than someone here, is something we have to rethink.

ZAID: Who, from the agency folks, and maybe Melanie, you might be able to add, who within an agency has authority to decide what the fee policy is going to be in that agency?

BARBER: Well, the fee policy would be in the regulations.

PUSTAY: The policy is the regs. The policy is the --

ZAID: Right.

PUSTAY: But the actual implementation, day-to-day, as Jim was saying, is going to be the FOIA professional. They're implementing it. One thing, just to throw this in as we're having this discussion, and one thing I'm thinking is we know -- the one step that we have for everybody's, every agency's annual FOIA report, is that the tiny little percentage of money that gets collected in fees, which shows you -- but I'm thinking that maybe we could ask more specifically. My take, from that tiny little percentage that is collected, is that fees, as a practical matter, are assessed in a very small percentage of cases, because we have such a small amount of money coming in. It would be good, I think, to find out, to just add a question, what percentage of requests involve assessment of fees. Like, let's see sort of out of the 700,000 requests we have across the government, how many of those requests are people wrestling with the fee determination. I think that would be a really good statistic for us to have.

GRAMIAN: And I think one other thing that sort of comes to my mind is at what point does the agency issue its fee letter. Is it after it has done the search or after it has contacted the program office to figure out the volume of records?

PUSTAY: I mean, it should -- Melanie again. I mean, one thing, and I forget, somebody made this comment about before; one thing that we're always trying to stress to agencies is that don't wrestle with the fee waiver determination until you find out if you're even going to have fees to assess.

GRAMIAN: That's right.

PUSTAY: Because it might be that your search is under the threshold, or under two hours, or your fee is under the threshold and it might not do it.

WEISMANN: This is Anne. I think that's a good point though, Nikki, because I do think, in my experience, there are some agencies that reflexively decided at the outset, and others that will wait. So that might be again, useful information to get.

BAHR:This is Dave, Dave Bahr. I will say that from personal experience, agencies not only will say the fee assessment/fee waiver issue has to be decided upfront, but by the way, we're tolling our response deadline until we figure it out. Regardless of what the FOIA text says, that's the standard practice in some agencies.

ZAID: This is Mark Zaid. I can think of instances, and I remember having to then write to the agency and say you know what fine, give me the two hours, just do that, and then you want to stop at two hours, go right ahead. So that's definitely been an issue at times at some agencies.

PUSTAY: I think the statutory entitlements, the two hours and the 100 free pages for not commercial, the idea behind that was to give everybody a base, that everybody, regardless of their financial... The association that doesn't have that much money, that everybody gets something from an agency, as long as they're not commercial, they should get something from the statutory (overlapping).

ZAID: Well then maybe -- and this is Mark. This may be a very small number, so I don't know if it's worth adding, but given that we've had some experiences, I'd be curious to know whether agencies, when they are assessing fees from the outset, before they're doing a search, are they at least undertaking that free two-hours search. I'm going to anecdotally say no, that they're just pushing it to the requester and saying nope, here's the fees and we're not going to do anything until you agree to pay 25 percent, or whatever percentage that they might have set, which to me would be contrary to what the statute is requiring.

HOGAN: That's a good point. Jim Hogan again, here. Sometimes that's an education issue, but it's also, it's case by case. If you have a component out there that pretty much knows everything they have, you know, like a military installation; a contract. Of course those are commercial, but other things, you know, a police report or something like that, it's easy to do, but when you have a, we really don't know what there is, sometimes two hours of research will turn up a couple things, sometimes it will turn out a whole universe of stuff. But I agree, do the two hours at least.

PUSTAY: But Jim, I don't mean to say. It might be that you can tell from the face of the request.

HOGAN: Right, so encourage people to do it.

PUSTAY: That the two hours is only a drop in the bucket and that it will be bigger. It is true, I mean fees are definitely a case by case.

HOGAN: You're right. But I encourage people, do the two hours, see what you have, and do the two hours in a place where -- not where you think they're not going to have documents. It's going to be where you think the most significant documents are. You may have five locations you're thinking of, but get the two hours for something, get some substance there, and see what you give them. A lot of times FOIA requesters are happy with what you have, an understanding. It comes down to, a lot of times, communication, quality communications between the FOIA officers and the FOIA requesters. I'm hearing though, sometimes that in itself takes away time from processing requests, but I try to encourage people, you still have to -- it's very important. In the long run it pays off for both, and keep that communication open. Let them know, if it's a large request, what it really is, and help them focus on getting what they want, talk to them about what they want.

WEISMANN: Could I go back?  This is Anne.

HOGAN: Please.

WEISMANN:To a point that Mark raised, that we at least give some thought to, or the Subcommittee give some thought to, and that is separating out this survey, because I'm not sure that it belongs with the other. I'm not sure that we'll get as robust a response if it's included with the other, and I think it's at least worth considering separating. I know that the goal was to avoid having too many surveys, but I think that it will limit the value of the responses if we include it.

ZAID: That's a good point, this is Mark, because I mean, I don't think we had thought about that. As I think about some of these fee issues and asking, is the Liaison the appropriate person, they're not going to know it. They're going to have to go do some research, whereas the questions that we were asking, from our Subcommittee, they should be able to answer right off the top of their head, in a five minute time span, if not less, and I'd hate for, we didn't get answers to the first nine questions because they felt it was a daunting task, to ask the next six, seven questions, which we want them to answer, or somebody to answer too. So, we probably do need to separate it.

BARBER: This is Delores Barber from DHS. I agree that it should be separated, here's my recommendation. If you sent the fee poll to the chief FOIA officers, at least this is how it would happen at DHS. If you send it to the chief FOIA officers, the chief FOIA officers will send it to their staff.

WEISMANN:To the entire FOIA professionals.

BARBER: Yeah, is that true at DOD, Jim?

HOGAN: Yeah, exactly what I was thinking. I think it would probably be better and more efficient to do it through the Public Liaisons, and from there down to the FOIA Requester Service Centers.

BARBER: But the thing is, with the FOIA Public Liaison, that's one of the things we're trying to assess from that survey, whether or not there are FOIA Requester Service Centers in all the departments and agencies.

HOGAN: Yeah, I'm just thinking of the Department of Defense.

BARBER: But if you sent it to the chief FOIA officer at DHS, it would get to all of the FOIA processors, this fee survey.

HOGAN: If it works that way.

WEISMANN:Which means we'd get a more robust response.

HOGAN: You would hope.

WEISMANN:Which we're clearly all in favor of, right, or see it as good. Is there any -- I'm just not hearing any good reason not to do that.

HOGAN: So I think what we're going to do with this, we'll -- it seems like we're going to separate from the other Committee, and add some questions in here that we've discussed, add a separate survey for the public, and that will probably be the first priority because that will take longer to circulate around, and hopefully get some to view within a few weeks on that. The other would go to chief FOIA officers or Public Liaisons. We can go to chief FOIA officers, I just hope that doesn't -- and some agencies, that could slow it down, but I would think not. We'll go to chief FOIA Liaison.

PUSTAY: This is Melanie again. I know, I mean I feel like I know what you're thinking of, Jim. I wonder if it's the -- I mean, every FOIA office has, the actual FOIA office, has, I hate to say chief again, but a lot of times that's the name that it's called, the principal FOIA officer for each component or each agent say, that might be a more direct spot to send the fee one to, the fee survey to.

BARBER: This is Delores. Kind of like what OIP does, when they send out a meter request. They go to the chief FOIA officers and eventually, it comes to me and trickles down.

GOTTESMAN: This is Larry Gottesman. The only issue, if you go to that level, you may end up having to go back up to that level, and therefore, you may slow down the response time. Because if you go into the political appointee, at least at EPA, and it trickles its way down, it's going to have to trickle its way back up to that political appointee, because you're asking that individual for a response, which could continue the process.

HOGAN: Unless they did online responses, like in SurveyMonkey. Yeah, I know what you're saying though, I've run into that.

GOTTESMAN: The chances of that getting to a political appointee, going into a SurveyMonkey and filling it out.

HOGAN: We're not telling political appointees, telling the FOIA officers down at the lower level, but I know what you mean.

PUSTAY: But you're saying don't go to the chief FOIA officer, go to the actual, the working level, the principal, what we call it, the principal FOIA contact.

BARBER: The principal FOIA contact.

PUSTAY: Who works in FOIA every day, at the agency, or as a component of the agency. I think that's more practical.

GRAMIAN: And I think that would be the FOIA Public Liaison in many cases.

PUSTAY: In many cases it is but not always.

GRAMIAN: That's correct, not always.

HOGAN: But at Justice, it retains lists like this.

PUSTAY: Yeah, we definitely have those.

HOGAN:So, all the ones from foia.gov. That makes sense, that would be easy.

PUSTAY: Yeah, yeah, it's right on foia.gov, yeah.

GOTTESMAN: This is Larry Gottesman. If you're going to the public, I mean I can tell you, we've done ICRs, and you might not get your responses until after the Committee's two years are up, because this is going to take you a minimum of four to six months.

GRAMIAN: Yes, that's correct.

GOTTESMAN: At a minimum, four. If everything goes perfectly, all the stars are aligned, it's going to take you six months, realistically.

HOGAN:That's why I'm encouraging people who are watching this or listening to it, to tell the Committee here's what we think.

BARBER:So wait, the FOIA Advisory Committee disbands in a year?

GOTTESMAN:Two years, yeah.

BARBER: Oh, and then it's no more?

LEMELIN:It could be renewed.

GRAMIAN: It can be renewed.

BARBER:Oh, OK.

WEISMANN: It was established for a set time.

GOTTESMAN: So there needs to be a report at the end of two years, and you're going to get your survey results 22 months into a 24-month, what value is it?

BARBER: I see.

WEISMANN:This is Anne again, on the issue of getting public input. I still believe it's important, but I think the process of going through the government is so clunky, that it would delay anything meaningful.

GOTTESMAN: It's hard to get around.

WEISMANN:That said, you know, those of us on the Committee who are requesters, and more plugged into networks of requesters, certainly could get some anecdotal evidence. And I recognize it would be anecdotal, but it still, I think could be useful.

BARBER: That's a good point, Anne. This is Delores. We could also consider partnering up with ASAP, and they might be interested in doing something like this.

WEISMANN: Yeah, my organization did a survey, we've used ASAP, they sent it out. We did a survey a number of years ago, we were trying to assess certain things about the FOIA, and we approached ASAP. They have a policy, they will do it generally, and it was sent out under the auspices of ASAP. It was a SurveyMonkey survey that went to, I think everybody in their database. So that's actually a pretty streamlined process. Now, a lot of those people are agency people as well, but it does include requesters.

GRAMIAN: I believe we sort of entertained this idea or checked about --

WEISMANN: About focus groups?

GRAMIAN: About using ASAP, and I think there was some limitation on the FOIA Advisory.

FEMALE: (inaudible).

GRAMIAN: But allow us to check. We'll check with our general counsel's office.

WEISMANN: I think that's a fair point, this is Anne. I would just say, if the Committee formally can't do it, I don't know that it necessarily stops some of us from trying, in other ways, because the goal here is to get as much as data as possible. And we recognize that the Committee functions under certain strictures that make some of this difficult.

ZAID: This is Mark. That's the issue, I imagine, from a legal standpoint, and Gary Stern and whoever else in the office of OGC, for an hour, can look into it, but it would be in the same way of the police using the public as an agent, to go do things. So if we can't do it as an advisory Committee, by going through whatever, all the hurdles that the others have said, we couldn't just say hey ASAP do it. But you and I, Anne.

WEISMANN: Right, exactly.

ZAID: As are individuals, can do that in our spare time and just happen to push the information or hand over the information to the Committee.

HOGAN: Or submit it to the Committee through the public engagement process.

ZAID: Right.

WEISMANN: Right, so there are ways.

GRAMIAN: Great, great, thank you. So, why don't we take a 15-minute break and when we come back, we'll discuss the Proactive Disclosure.

LEMELIN: So, eleven thirty-five, please be back. Bathrooms are two levels below. Also, the coffee is down there, at the Charters Café.

[BREAK]

GRAMIAN: Welcome back everyone. So this is going to be our final Subcommittee report, which I understand Eric is --

REID: We're actually having difficulty with the phone. I think folks trying to call in haven't been able to call in.

GRAMIAN: I see.

LEMELIN: So, I don't think Eric will be joining us by phone today.

GRAMIAN: All right. As we have previously mentioned, David Reed has stepped down from the FOIA Advisory Committee, from his co-chair role on the Proactive Disclosure Subcommittee, Eric is the other co-chair from the non-government member. In this regard, we need to fill David Reed's shoes, so I'm going around the room for a volunteer on the government, for one of the government members, to see who would be willing to --

EVITT: I'll volunteer to do it. This is Brentin from DIA.

GRAMIAN: Wonderful, thank you so much. Also, in a phone conversation with Eric, he did want to add a few other questions to your questionnaire for the Proactive Disclosure. So, if I could ask you, Brentin, to contact Eric and see what questions you guys wanted to add, that would be great.

EVITT: All right, will do.

LEMELIN: Just as a follow-up, I mean I see this as an opportunity to kind of reboot the -- this is Christa. Reboot the Proactive Disclosure Committee. This Committee look at the proactive disclosures, it's actually in the second U.S. Government action plan, so I think it's very important that we step up our game on this front. OIP has issued some great guidance, so Melanie, I hope that you will help out with this Subcommittee, and all of our Committee members, I think it's a big challenge, and I think insight on the realities of what it is to work with the government. You have resource restrictions and to have requirements of the data that we're proactively trying to put out there, I think that would be very helpful. So if you are interested, please reach out to Eric, reach out to Brentin. OGIS is happy to convene a meeting of the Subcommittee if that's so desired, but this is a new opportunity to reinvigorate our investigation of this issue, where we need your help. So please step up.

EVITT: I'll reach out to Eric and we'll try to convene a meeting of the Subcommittee as soon as we can.

GRAMIAN: Thank you very much, thank you. All right, so now we can just wrap up and turn to the public for any comments.

LEMELIN: Can we hold off on that?  This is Christa again. I don't know if anyone has any comments or anything, issues that we haven't thought of or considered, or aspects of the survey that we want to talk about, or we're comfortable where we are now, moving forward.

GRAMIAN: Anybody?

LEMELIN: Final thoughts?

BARBER: I have a thought. I don't want to appear as if I didn't know about the structure or the bylaws and the charter of this Committee or whatever, but I was under the impression that the FOIA Advisory Committee; one, was to find ways to gather information or recommendations for improving FOIA.

GRAMIAN: Yes.

BARBER: Both inside the government and for the requester community. And that in two years time, with -- and Nikki, you're doing an outstanding job as interim leader, but you know, we're a year into this and there's a vacancy in OGIS, at the directorship. It seems to me that the momentum is just starting, in terms of coming up with ideas about how to come up with these recommendations, that it would be a shame if it came to an end so abruptly, particularly since -- and I was always under the impression that we had two-year terms, but that the whole thing would go on, which has sort of informed my thinking in terms of trying to push past these barriers at OMB, to solicit information and data from the requester community, because you can get started and maybe this group, if our terms expires, may not see, may not get to the mountaintop, but the next group that comes in actually would. Anyway, I'll throw that out there into the universe, that I think that this Committee is a really good idea and that it would be a shame if it just came to an abrupt end.

ZAID: This is Mark Zaid. I think, because Delores and I are sitting next to each other, we must have been having a mental connection, because I was going to raise some issues about that as well, to sort of assess where we are at almost a year, and halfway through our tenure. I guess I'll throw out a few specific questions. I know the announcement was issued for the directorship. Maybe if we can get an update as to where that stands in the process. Two, what actually is the process, if we wanted to, as an advisory Committee, to recommend to extend the life of the Committee, because I have absolutely no idea of how that works.

GRAMIAN: Allow me to check and I will definitely send an email to everyone, because I'm not sure what --

LEMELIN: Yeah, we don't know. I think the Committee, at this point, according to our charter, has a lifespan of two years. I don't -- I mean, I think we see this as something that could be renewed, but like Nikki said, we're happy to look into it. I don't see this as something that will come to an abrupt end, because this is something that needs, obviously, a lot of work, and it takes time to do these things.

GRAMIAN: But allow us to check.

JONES: Nate. Because I know one of the things that has been our real pusher on this from day one, to obviously have something of substance come out of this, and I know, I think we talked at the first meeting, or maybe it was at one of our Subcommittee meetings, about not waiting until the very end, where we issue a report, that somewhere along the line, we show here, here are some substantive recommendations that we're already making, as we go along. We all lead very busy lives. I'm shocked that actually almost a year has already passed, and every time we have a Subcommittee meeting I realize damn, I didn't do all of what I said I was going to do, from the three months earlier, where did the three months go?  So, I guess I would suggest we all start thinking about what do we want to do in the next three to six months in particular. I know I definitely would vote to extend the life. It might even be a good thing to keep an advisory Committee going, frankly, at all times, because FOIA is always developing as time goes by. And now, the OGIS directorship, where we stand on that.

GRAMIAN: My understanding is they're looking at resume.

JONES: Has the period closed for collecting?

GRAMIAN: Yes, it has, yes. It closed on March 13th. That's all I know. I can find out, I can ask for a status.

JONES: That would be great.

GRAMIAN: Sure.

PRITZKER: On the matter of lifespan of the Committee, this is David Pritzker again, I believe there are two things that govern this. We're a Committee of NARA and so the impetus for doing something about renewal, if permitted, would have to come from them. All advisory Committees that operate under the Federal Advisory Committee Act, are charted for two years.

GRAMIAN: That's right.

GRAMIAN: So in any event, even if NARA had authority to extend this, they'd still have to re-charter it.

GRAMIAN: Correct.

GRAMIAN: The going through GSA for that, at the two-year mark, presumably shortly before the two-year mark. I would think the other issue is whether there is anything, under the National Action Plan, that limited it, and that's something I don't know about.

PUSTAY: No.

PRITZKER: If there's nothing that limits it, then it's basically up to the agency to decide whether it wants to renew it, and then we would have to go through the two-year chartering process.

GRAMIAN: And I think the National Action Plan actually does have language about renewing it after two years if necessary, but we can check. We can check with our Office of General Counsel.

PUSTAY: Yeah. I mean, I do believe the charter itself has language to that effect.

GRAMIAN: It does have language, yeah.

PUSTAY: So we'll both follow up on that.

ZAID: This is Mark Zaid. I don't know if we can -- do you want me to put you on the spot and ask you a question?  We were just -- the general counsel now, Gary Stern, has entered our room. We were talking about what's the process, if it exists, of expanding the life of the advisory Committee. Do you know?

STERN: Short answer, not off the top of my head. I think whatever the creating entity, you know, can expand it. This wasn't set up by statute.

GRAMIAN: National Action Plan.

STERN: Right. National Action Plan is essentially White House OMB, if they want to extend it. What's the timeline?  Is it two years?

ZAID: Two years.

STERN: Two years.

ZAID: So we're like halfway in almost.

STERN: Right. So, it would be to go back through that same process, I think.

ZAID: But can it be extended so that that same -- everybody who is on, goes for a year, or whatever period of time, or does it have to be completely reconstituted?

STERN: I think there's lots of options there but yeah, I would think they could do it that way, to keep the same body and just give it more time. That's pretty common with lots of commissions that just need more time, either by statute or by whoever is the creating entity.

GRAMIAN: Great, thank you. Anyone else?  Any other comments, questions?

LEMELIN: Do we have any callers on the phone? 

REID: Is there anyone on the phone?

GRAMIAN: OK, all right. Now, we can turn to everyone else in the room. Thank you all who have joined us, and we're eager to hear from all of you, if you have any other comments or questions for the record. Please identify yourself as well. Thank you.

CAFARO: Hi. Cindy Cafaro from Interior. I have a very small, hopefully practical suggestion, for your questions about the survey, which is it sounds like a very straightforward Public Liaison survey is going to be going out separately than the fee survey. With that in mind, I would suggest asking the Public Liaisons one more question, which is who is the person you would go to for information about fees. And if that is the case, you can then have a one-stop shop. The answer may be oh, it's me, actually I'm the expert on fees, or it may be something else, but doing that rather than going to each and every subcomponent FOIA officer, may be much more coherent and quicker for you, in getting the responses and data you need, while still getting, hopefully, the same amount of data. Going deep down into various layers could be confusing, I think, for everyone, including the folks who are supposed to respond and may not fully understand, as people do, at the other levels, what this Committee it is and its importance and the necessity of getting the information it needs.

GRAMIAN: Does anyone have any comments about...?  Everyone is nodding their heads. OK. Anyone else?

LEMELIN: If no one has anything else, I'm going to weigh in again. As your Designated Federal Officer, which basically means that I just email you a lot, you know, we're one year in, and I'm going to ask that those of you on the Committee, rededicate yourselves to the work of the Committee, to the work of the Subcommittees. If you've been hanging out on the sidelines, if you haven't involved yourself in the work of any of the Subcommittees, I'm asking you right now, to please get yourself involved with one or two Subcommittees. We have a year to go. The Archivist of the United States appointed you to serve on this Committee because you are experts in the FOIA. There are a lot of people who wanted to serve on the Committee. It's an honor for you to be here, to sit at this table, so please, take a look at yourselves and what you're bringing to this Committee, and please rededicate yourselves. We're all very passionate about the FOIA and we need your voices to be heard. Thank you for being here, but we've all got a lot more work to do, and I look forward to working with you and supporting you, so that we make that happen.

BARBER: Hear, hear.

WEISMANN: Well said.

GRAMIAN: Thank you, Christa.

LEMELIN: You're welcome.

GRAMIAN: Yes?

WILLIAMS: Good afternoon. My name is Wanda Williams, and I'm an archivist at the National Archives, in College Park. Regarding the survey, I wanted to recommend that you consider reaching out to public affairs persons, simply because in some cases they also deal with FOIA requests, in addition to the Public Liaison.

GRAMIAN: Thank you so much. Comments?  Questions?

ZAID: This is Mark Zaid. I guess the one thing on that, that would be very interesting to know, if the public affairs folks in agencies actually know they have a Public Liaison for FOIA, so if they do get a question, that they presumably would hopefully refer to the Public Liaison.

LEMELIN: Not another survey. [Jokingly]

[Laughter]

GRAMIAN: That's right.

HOGAN: We're dedicated.

GRAMIAN: OK, if we have no other questions, comments, I'd like to close by saying that we've all heard, this Committee has already been very active in its efforts to improve the FOIA, through the efforts of the three Subcommittees. We look forward to hearing updates on the Committee's work, and we invite you to visit the website for more information about what we're doing, and your participation. One final note is that all of you in this room will undergo the National Archives exit screening procedure before you leave the building, so for security purposes, all individuals' bags will be checked. This is just a routine check that everyone does, so don't get offended or upset. Thank you all again, and we'll meet at our next meeting, which is July 21st. We stand adjourned, thank you.

LEMELIN: Thank you.

Date Posted: May 11, 2015 | Date Reviewed: Ju 20, 2015 | Date Updated: Jul 20, 2015