October 20, 2015 Meeting Transcript
Freedom of Information Act (FOIA) Advisory Committee Meeting
October 20, 2015
Committee members present in the Archivist’s Reception Room:
- Dr. James V.M.L. Holzer, Chair, Office of Government Information Services (OGIS), National Archives and Records Administration (NARA)
- Delores Barber, U.S. Department of Homeland Security (DHS)
- Brentin V. Evitt, Defense Intelligence Agency (DIA)
- Larry Gottesman, Environmental Protection Agency (EPA)
- James "Jim" Hogan, U.S. Department of Defense (DOD)
- Martin Michalosky, Consumer Financial Protection Bureau (CFPB)
- Sean Moulton, Project On Government Oversight (POGO)
- David Pritzker, Administrative Conference of the United States (ACUS)
- Lee White, National Coalition for History (NCH)
Mark S. Zaid, Law Office of Mark S. Zaid, P.C.
Committee members on the phone:
- Dave Bahr, Bahr Law Offices, P.C.
- Andrew Becker, The Center for Investigative Reporting
- Karen Finnegan, Department of State
- Eric Gillespie, Govini
Committee members absent from the meeting:
- Clay Johnson, Department of Better Technology
- Ramona Branch Oliver, U.S. Department of Labor (DOL)
- Maggie Mulvihill, Boston University
- Anne Weismann, Campaign for Accountability
Others present at or participating in the meeting:
- David S. Ferriero, Archivist of the United States, NARA
- Amy Bennett, OGIS, NARA
- Teresa Brady, OGIS, NARA
- Patrick Eddington
- Jennifer Goode
- Christa Lemelin, OGIS, NARA
- Don McIlwain, National Declassification Center, NARA
- Ryan Mulvey
- Kay Reid
- Lubna Shirazi
- Karen Thornton
- Rawa Zerihun
- Angel Simmons, OGIS, NARA
- Alina Semo, Office of General Counsel, NARA
LEMELIN: [0:00:00] Good morning, ladies and gentlemen. My name is Christa Lemelin. I am the Designated Federal Officer for the National Archives and Records Administration’s Freedom of Information Act Advisory Committee. It’s my honor today to introduce the 10th Archivist of the United States, David Ferriero, to give introductory remarks. My mother will be especially excited that I get to introduce to you, because, as you know, you and I are both North Shore, Massachusetts, natives, and [0:01:00] every time you visit our great state, my mother clips news articles about you and sends them to me. So thank you, sir, for doing me this great honor and for welcoming us all to your room, and for being such a great supporter of this Committee and the work that we do.
FERRIERO: Thank you, thank you. We are graduates of the same high school, actually. Not the same year, but the same high school. So, welcome. It’s a very exciting day as we introduce James Holzer for his very first meeting here as the director of OGIS. And in your honor, just a housekeeping detail that we’ll clear up right away, the restrooms at either end of the building are open for the first time for your meeting, so you don’t have to go downstairs. [laughter] I just discovered this morning that we hadn’t made arrangements for that.
So just a few words. You all know James, but just a few words of introduction, of [0:02:00] who he is and where he came from and why I selected him to head this very important part of our mission at the National Archives. James comes to us from the Department of Homeland Security, where he served as Senior Director of FOIA and led several initiatives that improved the agency’s FOIA process and the requester’s experience. Considering his impressive work with FOIA issues, I’m sure his is a familiar face to you. I’m glad James has joined us, as he has an opportunity to help improve the administration of FOIA across Federal government, and I also sought the input of several members of the Open Government community in making this appointment. So I’m pleased that James has joined us.
You also have a unique opportunity to make recommendations for change that reflect the needs both of the FOIA requester community and Federal agencies. [0:03:00] I know that many across the FOIA landscape are looking to you for suggestions to improve the FOIA process. It’s a process that remains, as Senator Patrick Leahy has called it, the cornerstone of democracy. This month, the National Archives joins libraries, archives, and educational institutions and historical societies across the nation, celebrating American Archives Month. This annual celebration highlights the importance of public access to records, and your work directly supports such efforts. As the nation’s record-keeper, we here at the National Archives are grateful for the opportunity to support the work of this Committee, and we look forward to following your progress in the months ahead.
Before you leave today, I hope you’ll take an opportunity to wander across to the other side of the building and take a look at the Charters of freedom in the rotunda. It’s always a special moment for me when I have an opportunity to walk in and pay attention to who’s there [0:04:00] and watch the American public have interaction with our founding documents. That’s always a moving experience. And if you want to be totally moved, go over to the O’Brien Gallery to see our “Spirited Republic” exhibit, which talks about the government’s role in alcohol. It’s a very disturbing and a very -- on the one hand, a very exciting exhibit for you to learn about your government and its actions. And just a preview of next spring, our next big exhibit coming up is one we’ve entitled “Amending America,” and it deals with the 11,000 attempts to amend the Constitution. So that’s going to be a very interesting exhibit. And I’ll be staying with you for part of this morning’s meeting.
HOLZER: Thank you. So, thank you all for joining us today for our sixth FOIA Advisory Committee meeting, and my first meeting as Committee Chair. I know you’ll all join me in [0:05:00] thanking the National Archives and Records Administration for hosting these Committee meetings, and I want to give a special thanks to the Archivist for the kind remarks. As it’s already been said, I’m James Holzer, I’m the director of OGIS, and I’m the Chair of the Committee. Prior to joining OGIS in August of this year, I served as a senior director at DHS, and in that position I was the senior advisor to the department’s executive-level leadership on FOIA compliance. I also led the implementation of the department’s enterprise-wide FOIA tracking, processing, and case management system, and supervised a team of FOIA professionals performing various program activities that often involved unique and sensitive FOIA matters relating to FOIA administration.
I’m very happy to be a part of the National Archives. It’s an agency that’s dedicated to driving openness, cultivating public participation, and strengthening our nation’s democracy [0:06:00] through public access to government records. I’m excited to be working with this Committee, comprised of government and non-government experts. As Committee Chair, I look forward to working with you to ensure that our efforts have an impact across the Executive Branch and to help improve the FOIA process for agencies and requesters alike.
We would like to spend the next few minutes introducing the Committee members who are around the table and on the telephone. Committee members Maggie Mulvhihill and Anne Weismann and Ramona Branch Oliver are unable to join us today due to previous commitments, and actually Anne is sick. So we’ll look forward to seeing them at our next meeting in January.
As a reminder, the Committee’s biographies are available on our website at www.ogis.archives.gov. We are videotaping this meeting and will make the video, transcript, and meeting materials available on the Committee’s web page. [0:07:00] So, for the record, please identify yourself by name and affiliation when you speak. So let’s start with the members we expect to have on the telephone. I’ll ask each of you to introduce yourselves and remind the group of your profession and affiliation. Dave Bahr?
BAHR: Good morning. Yeah, Dave Bahr, out here in Eugene, Oregon. I’m an attorney in private practice and I represent public information requesters all around the country.
HOLZER: Thank you. Andrew Becker?
BECKER: I’m a reporter with the Center for Investigative Reporting in the San Francisco Bay area.
HOLZER: Karen Finnegan?
FINNEGAN: Hi, this is Karen Finnegan, I’m calling from the State Department.
HOLZER: Thank you for joining us, Karen. Eric Gillespie?
GILLESPIE: Eric Gillespie, I’m the CEO of Govini, a big data and information business [0:08:00] that focuses on transparent and open government data.
HOLZER: Thank you very much. And now we’ll hear from those of you in the room. Again, I’ll ask you to introduce yourself and remind the group about your profession. We are going to start on my left with David, please.
PRITZKER: David Pritzker, Administrative Conference of the United States, a small Federal agency where I’m Deputy General Counsel, and also, not incidentally, FOIA Public Liaison.
MICHALOSKY: Hi, good morning. My name is Marty Michalosky, I’m the Deputy Chief Administrative Officer for the Consumer Financial Protection Bureau.
EVITT: Hi, good morning. My name is Brent Evitt, I’m a Deputy General Counsel at the Defense Intelligence Agency.
HOGAN: Good morning, I’m Jim Hogan, I’m Chief of DoD FOIA policy within a directorate for oversight and compliance, Department of Defense.
JONES: Nate Jones, Director of the FOIA project at National Security Archive.
PUSTAY: Melanie Pustay, the Director of the Office of Information Policy at DOJ. [0:09:00]
BARBER: Delores Barber, Deputy Chief FOIA Officer, DHS.
MOULTON: Sean Moulton, Open Government project manager at the Project for Government Oversight.
WHITE: Lee White, Executive Director of the National Coalition for History.
ZAID: Mark Zaid, a private practitioner and the executive director of the James Madison Project.
HOLZER: Thank you very much. I’d be remiss if I didn’t mention Marty -- Martin, you just got a promotion, isn’t that right? Taking on a little bit bigger and a little bit wider role over there.
MICHALOSKY: I used to be the FOIA Manager, now I’m the Deputy Administrative Officer, so now I’m over FOIA records, security, privacy, and library.
HOLZER: Let me also introduce members of our OGIS staff as well, who support the Committee’s operations. Christa Lemelin, she’s the Committee’s Designated Federal Officer. [0:10:00] Amy Bennett is live tweeting the meeting this morning. Nikki Gramian, my Deputy. Our General Counsel staff, who I’m not seeing, but Jean Whyte and Alina Semo. I’d also like to thank the Chief Operating Officer as well, Jay Bosanko, who has provided some support recently on some of these survey issues that we faced.
So before we get started, let’s just provide you with our general agenda and cover basic expectations for today’s meetings. We’ll take one 15-minute break halfway through this meeting, approximately at 11:30, and although food and drink are not permitted in this room, you may purchase food downstairs in the Charters Cafe, which is located two levels down. My remarks said the restrooms are also down there, but as the Archivist pointed out, you can now use the restrooms up here. [0:11:00]
FERRIERO: One more revision. You can have food in here.
HOLZER: OK, we can have food in here. [background chitchat] All right. Well, wonderful. Just as a reminder, under the terms of our Charter, we meet up to four times per year. Our next meeting will take place on Tuesday, January 26, 2016 [Note: The January 2016 meeting has since been rescheduled to Tuesday, January 19, 2016]. Also, as a reminder, our Committee includes three subcommittees: FOIA Oversight and Accountability, Proactive Disclosures, and FOIA Fees. Our subcommittees may schedule meetings in addition to the larger Committee meetings. Because the subcommittees report to the full Committee, the subcommittees do not have the same notice and open meeting requirements as the full Committee. The Committee’s Designated Federal Officer, Christa, must be present at all subcommittee meetings, and for record-keeping purposes, members should [0:12:00] copy her on all communications concerning Committee and subcommittee activities.
This is a Committee on the freedom of information, so accordingly we want our work to be as open, transparent, and participatory as possible. So for updates on the Committee’s activities, please follow our blog at foia.blogs.archives.gov, and follow us on Twitter.
We welcome and encourage the public to submit written comments and suggestions for the FOIA Advisory Committee by email, mail, or fax, and the Committee’s contact information is available on our website as well. We are glad to see so many interested folks in the room, and we want you to be as much a part of this Committee as possible. We have set aside time at the end of the meeting for public comment. We look forward to hearing from any non-Committee members who wish to comment at that time. [0:13:00]
We will now do the approval of minutes. I believe the Committee members have had a chance to review a copy of the July 21, 2015, meeting minutes. We sent those electronically, and I believe you have a copy in front of you as well. Are there any corrections to the minutes? All right. If not, then we’ll now entertain a motion to approve the minutes. Do we have a motion?
BARBER: I move that we approve the minutes.
HOLZER: Do we have a second?
HOLZER: Thank you. So all in favor?
HOLZER: Anyone opposed? All right, the minutes will be approved. Thank you. OK, so now we’re going to spend the majority of this meeting hearing from each of the subcommittees on your work. We’ll spend 30 minutes on each subcommittee’s report, including a report of where the work stands and any discussion or brainstorming you [0:14:00] would like to have with fellow Committee members. We want to ensure we have a clear path forward for the coming months as we continue working to make recommendations to improve FOIA as directed in the second Open Government National Action Plan. So, let’s hear from the Proactive Disclosure Committee. Eric Gillespie and Brent Evitt are the co-Chairs of that subcommittee, and I’ll ask them to report on their activity.
EVITT: All right, good morning. This is Brent Evitt here, and Eric Gillespie is on the phone. Eric, can you hear us?
GILLESPIE: I can, thank you.
EVITT: Eric and I are now in our second -- we’re here today, our second full Committee meeting as the co-Chairs of the Proactive Disclosure Committee. We came here in July and talked about where we were thinking our Committee’s work was headed. We talked about two goals that we had. One was to explore the role of the statue and the regulations in encouraging, enabling, mandating, however you wish to describe it, [0:15:00] the work of FOIA Officers across the government in making proactive disclosures.
The second thing we were going to look at was the role of technology, the way that technological fixes could help us achieve this goal. The July Committee meeting was very helpful to us, because it allowed us to add some meat to the bones and sort of -- it gave us more to talk about under each of these categories.
We have discussed the position that FOIA Officers are in, that natural tension between wanting to reduce the backlog and wanting to make proactive disclosures, and the fact that, at least in my experience with the FOIA community, I’ve never come across a FOIA Officer who didn’t think this was a good idea, proactive disclosures. But in the tug-of-war, often proactive disclosures lose. So we’ve discussed how the regulations [0:16:00] particularly encourage proactive disclosures, how reporting helps, and what can be done to encourage this across the FOIA community.
I think we -- very clear steps have been taken, and I think there are probably gains that have been made as a result of that, but we’re asking ourselves now what more could be done; what have we learned from that experience and what can help us encourage this in the future. There is, I think, reluctance, at least on my part, to do anything that overreaches. I wouldn’t want to create a regulation, for example, in my own agency that we couldn’t achieve. So that’s the tension, that’s what was -- the element that was added to our discussion after the July meeting, was how far can a rule go to encourage this, and what benefit is there to that.
We also talked about [0:17:00] what we’ve called the low-hanging fruit. There are clearly categories of records out there that the public is interested in, agencies could focus on releases of those types of records, and Eric had some cool technological fixes to figuring out what is actually sought by FOIA requesters. But at the July meeting, we added to that the concern that if you go completely in that direction and you start focusing your proactive disclosure efforts on what is popular, then you miss what is out there in the agencies that may not be popular right now but may be very important. So it’s almost like you have to burn that candle at both ends; you have to figure out how to do both.
There was a discussion in July about whether there had been any data to show that proactive disclosures [0:18:00] actually reduced the number of incoming FOIA requests, and I haven’t, myself, been able to find anything that really answers that question one way or the other. It’s -- getting back to the question of prioritizing our work with proactive disclosures, it seems logical to me that if you could hit popular themes, you might reduce the number of incoming FOIA requests. But as far as I know, no one knows the answer to that right now, but I’m open if anyone has any data. But regardless of whether it does reduce the number of incoming FOIA requests, I think proactive disclosures can be very important to the statute, and it can certainly further the goals of the FOIA.
Now when it comes to the tech question, I think we’ve now realized that there are almost two questions here. There’s like [0:19:00] -- there are like big technology fixes that we could discuss, agencies redoing entire FOIA processing systems, where you would build in a very quick proactive disclosure mechanism: you finish processing FOIA requests, you press a button, and it goes off to the reading room, or goes off to the internet. That’s a long-term, big-dollar sort of fix. For most agencies, that’s probably at least a five-year process, I would say, to procure a new system. But Eric has led the discussion that there could be a lot of little tech fixes, too. There may be existing commercial fixes that are out there that could be layered onto what we’re doing that could help get information out there into the public’s hands.
We’ve also talked about the fact that others out there [0:20:00] are working on this same concept. I know Bobby [Bobak "Bobby" Talebian] from DOJ came and talked to us last time about the release to one, release to all initiative, and we heard in July that the Food and Drug Administration also has done some good work in this area by actually predicting what people are going to be interested in and trying to get ahead of that. And there was a comment in July that maybe the General Services Administration has done some work in this area, too, but I haven’t been able to track that down yet.
So, at this point what we’re going to focus on, and again, this is subject to discussion here, is figuring out what others have done, learning from the work of others, like DOJ, OIP [Office of Information Policy], we’d like to come and talk to Melanie and Bobby [Talebian] and see what they’ve -- what OIP has learned. [0:21:00] And then perhaps start with a small agency and talk to their FOIA staff and see what their views are as a small agency looking at the concept of proactive disclosures. My agency has volunteered to be the one that we meet with, and that may very well be what we do. And we’d also like to look at a large agency and sit down with them and say, OK, what are your challenges when it comes to proactive disclosures? At the moment we think we know what the challenges are, but we may be wrong, we may be seeing it from only our own perspective. And then we’d also like to just, as I mentioned, check around and see what GSA and FDA may have done that we could learn from.
So that’s it. That’s the report of the Proactive Disclosures Committee. I’ll open up the floor if anybody has any comments.
BARBER: I have a question, Brent. When you looked at [0:22:00] the different agencies, did you take into account the kind of records that are associated with the agency based on their mission? For example, at DHS the majority of the FOIA requests that we receive are for immigration-related records, right? So that’s information that we would not ever proactively disclose.
EVITT: That’s right.
BARBER: But when I was working at the Department of Commerce, the Department of Commerce doesn’t get a lot of FOIA requests, because most of the information, based on the mission of that agency, that they produce, they proactively post, either in statistical tomes or other documents. And my other comment is, what about specific things that departments and agencies can do? Like, for example, draft documents. Because I understand that the requester community gets quite upset when we [apply FOIA Exemption] (b)(5) [to] draft documents and we don’t release them, or we don’t release them proactively, or we don’t even release them after we’ve [0:23:00] posted a final document. What are your thoughts about that?
EVITT: OK, this is Brent again. I think, Delores, you’re right, it’s going to depend on the agency, how easy it is to do proactive disclosures. I mentioned the Food and Drug Administration. I know from years of co-teaching with Fred Sadler that they are very active in trying to figure out what the requester community is going to be interested in in the future, and perhaps their mission makes that a little more doable, because they know what their scientists are working on at the moment, so they know when they make -- they approve a drug, they know that’s going to be a big topic. And that may not be possible for other agencies. For my agency, for example, we sometimes have a little advanced warning, but it’s usually a day or two of advanced warning, so you can’t do much strategic planning for proactive disclosure with a day or two of warning. [0:24:00]
The exemption 5 draft issue, I think, is one that vexes all of us in the government, because obviously we all see draft documents withheld when they come across our desk for review. I don’t know, I think the Committee -- for us, I think the Committee is going to have more discussion about whether that is a big issue for us as we talk about writing a report. I think it is a big issue in the FOIA community, without a doubt, and certainly I’d love to see more disclosure of draft material when there is no basis for withholding under exemption 5, there’s no harm.
HOLZER: I have a quick question. When we are discussing the idea that proactive disclosures might reduce the number of FOIA requests that we would receive, the Federal agencies would receive, do we have any idea of the number of hits or visits to these types of records that are being posted online? I know that in your release all policy that is something that is being tracked. Did you guys ask for any of the agencies to kind of give any kind of metrics regarding the FOIA libraries?
EVITT: That would be a good idea for the Committee, actually, because maybe that would give us some data. If we know, for example, that an agency is making a certain level of effort to make proactive disclosures and they have seen the number of hits on their reading room website increase tenfold during that period, and maybe even if they’ve seen the number of incoming FOIA requests drop or at least stay stable, maybe that’s data right there that one affects the other.
PUSTAY: That’s -- I mean, part of what we’re doing in our pilot is looking at just that, because of the [0:26:00] tension that you talked about between taking time to proactively disclose records and the concern that that’s taking away time from processing. So the reason we’re doing this pilot is to actually try to get metrics, because we all want more proactive disclosures, we all think it’s a good thing even separate and apart from whether it reduces FOIA request. It’s just good because it’s just a natural part of what the purpose of the Freedom of Information Act is. But we did think, because there’s this tension, because we don’t have unlimited numbers of people to do the posting, that it’s helpful to know, OK, when we take time to post, are people actually looking at the records, and what are they doing. So one of the series of metrics that we’re capturing are actually hits to the posted material, so that we could start to see if agencies could identify, well, when we post this kind of stuff, we get lots of hits. And even if it doesn’t decrease [0:27:00] requests for that information, at least you know people are looking at what you’re posting, and so that’s a good reinforcement to continue posting that material. And then maybe conversely we would see certain kinds of things are not really getting hits, and so maybe we thought they were of interest to the public, but they’re really not, so in a cost-benefit analysis it’s better to put our resources toward posting other kinds of things. So we’re hoping to gather that kind of data that will help drive this a little bit better, through our pilot.
MOULTON: I think it’s useful to at least look at this, but I would caution us from putting too much weight on how many hits something is getting in a cost-benefit analysis. Sometimes information gets picked up by one or just a few individuals, who then re-disseminate it, either through articles or through larger newsletters, and so a lot of people are actually benefiting from the disclosure, they’re just not coming to that particular web page to see it.
And the other thing is, sometimes this [0:28:00] information may not be getting hits at the time, but things -- situations can change. One of the pieces of information we’ve long said should be sort of mandatory for all agencies are top-level official calendars. And again, not every secretary’s calendar is going to get looked at every month, but say a high-level official runs for higher office, like a former secretary of state who runs for president, they might be very interested in that calendar, as they are now, and if that information had been proactively disclosed, it would be out there instead of there being FOIA fights right now. So there are going to be those situations, too, where the information’s not getting many hits, but then you might know or expect that situations could change, and being proactive about it puts the agency and the whole government in a better light, that it’s already out there.
PUSTAY: I agree with all of that. I also think the sort of -- the other piece of this is [0:29:00] we really need to have the ability, and this is maybe where the tech side of your work on your subcommittee, Brent, could be helpful, is the ability to find this stuff. Because the more we put out there, if you can’t easily find the records -- now, a calendar is maybe not so hard to find, but like you said, agencies could be putting things out that five years from now we’re like, "Oh, wow, we really want to gather all the data on that topic." We need to be able to find it. And I know at one of our best practices workshops, the one we had last year on proactive disclosures, one of the things I asked the panelists were -- or maybe it was with the requesters -- I asked requesters, so maybe it was a requester panel, "do you guys first -- do you typically first look at what’s already posted before you make a FOIA request?" Like, "do you actually look first to see?" And the answer was, "well, actually, no." Because it’s just easier to make a request. [0:30:00] So I was really stunned by that. But at the same time I thought, well, maybe that’s showing you that it’s not so easy to find things that are posted, and if you can’t easily first find them, then you’re going to default to making a request because you know how to do that, and at least the request-making is fast.
HOLZER: That’s one of the things that we’ve talked about. Not all the FOIA websites are really easy to navigate, right? It can be a challenge to find information on the website, so I agree.
EVITT: I think -- Delores was talking about how each agency can be very different, and when you get to the tech question, each agency is very different too. Each website is different. Some agencies, like mine, as I said in July, have a huge error gap between our system and the rest of the world, for a very good reason. And then other agencies are already right there on the edge, they can post to the internet almost immediately if they had the technical means to do it. [0:31:00]
JONES: This is Nate Jones from National Security Archive. First I wanted to just underline something that Melanie said, and separate from hopefully reducing the workload and making people hopefully search and click and download the documents rather than re-filing FOIA requests. There’s another very good reason that we touched on that proactive posting is so important, and that’s the having a government that operates on the presumption of openness and having as much information out there, to have as informed a citizenry as possible. So even beyond that, that’s the other reason we’re doing it. I don’t think we’re just doing it to reduce workloads or backlogs, though I take that -- hey we’re a nuts-and-bolts world.
And after that I just have two comments and one question for the subcommittee. The comments are, first of all, on the issue of big technology and it’s hard for agencies to get the big fix to easily push a button and release, eventually, somehow, the documents onto the internet. Well, I would say that [0:32:00] I hope that some of the tech companies that are making FOIA software are hearing this subcommittee saying we need a solution, and I think I hear that people may be willing to pay for this. And I hope that they’re running, not walking, to make a technological solution that makes it easier for the agencies to post documents online and makes them searchable easily from Google.
My second comment, along the lines of what Sean said, is that another good thing that would be proactively posted and easy to find on the FOIA website is a kind of road map of where the documents are. A record-retention schedule, I believe, is already mandated to be posted online, but those are often very hidden, and even then, if you -- some of them are very good, some of them not so much. So another category that I would like to see every FOIA page have front and center is a road map of where the documents are, what’s held off at the Washington records center, what’s easy to find, and indexed [0:33:00] so that requesters know what they can request. Now, having said that, does that you mean that you might have more FOIA requests? Maybe. But I still think that would be a good thing, if the public knows what the government knows about how their records are filed and stored.
And then my last question. The subcommittee has spoken earlier about the issue of [section] 508 compliance with the Rehabilitation Act, and I remember a meeting, I think, about a year ago, the Proactive Disclosure subcommittee gave a very good report, I thought, that said essentially it should be, in this day and age, one, most records should already be created 508-compliant; that actually is the law, not posting. And two, even if they’re not, it should be fairly easy to post them. So my question, and it’s a leading question, but I’m hopeful, that the lack of not bringing up 508 compliance means that this hurdle is beginning to become overcome and that 508 compliance is no longer the big reason why more documents aren’t posted online.
EVITT: [0:34:00] The honest answer is, I don’t know where we stand with the 508 compliance question. I know the discussion has been going for a while. As Eric and I came to be co-Chairs of the Proactive Disclosure subcommittee, we have not made that a center point of our discussion. We will take that back to the subcommittee and see if maybe we should be discussing it. I know it has been discussed in the past. I know it is a problem.
ZAID: This is Mark Zaid. I want to echo some of the thoughts, or at least I’ll say I agree with Sean and Nate, and one issue obviously you guys are going to have are figuring out some way to measure the metrics of this. I’m thinking of some possible ways, and perhaps one way that could be searchable from within each FOIA office is to have the FOIA Officers indicate how often in their responses to FOIA requests [0:35:00] are they saying or referring people to their website for whether or not there are documents that are responsive. I think I’ve given an example before, if you send NSA [National Security Agency] a record for UFOs, they’ll just say, "Go look at our website, we don’t have any records." Or I’m sure there’s other indications where they’ll say, "Go look at our website, here are all your records before we start processing." That at least may be something that’s searchable by FOIA officers rather than looking at hits or dissemination of documents.
EVITT: OK, thank you, Mark. So right now we plan to have a full subcommittee meeting in November, I’m hoping, and we’ll work with Christa to try to make that happen. Right now we have, of course Eric Gillespie and I are co-Chairs, Delores, Marty, David, and Sean, I think, have agreed to work with the subcommittee. Anyone else who would like to is certainly welcome. [0:36:00] We will reach out to you, Melanie, if that’s OK, and see if we can get on your calendar to talk to you.
MOULTON: One other thought that I wanted to raise. You talked about regulation and technology, and I think there might be a third piece. Maybe it fits in the technology, so I’ll just bring it up and we can figure out how it fits and whether or not we can address it. But I think one of the things for proactive disclosure that we should be thinking and talking about is record creation, with an eye towards disclosure. I know there’s a lot going on from the archives and electronic records management, and hopefully we can fit into that, but I also know that at the last meeting, I think it was Marty that talked about the contracts for a Consumer Financial Protection Bureau and how they kind of preemptively structured them so that they would be more releasable. [0:37:00] I think it’s the kind of policy, or at least preference, that we could start to build in to record creation that could make a big difference down the line in terms of whether or not they’re easily releasable or not, maybe even some of this (b)(5) stuff could be decided ahead of time, so there’s a lot that can be released. And there’s a smaller piece that’s (b)(5) that we can fight over with a FOIA request, if people really want to, but if we can get a lot of material out and make it easier, it makes a lot of sense.
EVITT: All right, thanks, Sean. I think that’s a good point. I think that actually fits in our first -- the first part of our mission, the rules, regulations, and procedures of the agency. It was a great discussion in July, that if you get a lot of requests for contracts, it can be very helpful to build in to your process an understanding with the companies that you deal with about how you’re going to handle their contract documents. And I think there are many other [0:38:00] gains you could make along those lines, and this may be what we consider that low-hanging fruit. For example, if your agency publishes a series of documents or has a certain type of information that it always produces and you can think about that beforehand and you can plan for what would happen when you’re processing that for release, I think that can be very helpful if you can actually educate the people who are creating the information.
Now, I think there is a limit to where -- how successful you’re going to be in doing that. I mean, I don’t think we’re going to be able to very quickly make great gains in that area. Certainly in a few categories, we could make some gains.
PUSTAY: I think that -- Jim, didn’t DLA [Defense Logistics Agency] -- I think it was DLA, a couple of years ago, set up a whole system for [0:39:00] having contractors provide like a publicly releasable version of contracts, so that that could be posted right away. And then, sure, people could -- it’s sort of like you’re saying, like if you wanted -- if you really wanted to kind of get into the nitty-gritty and go back and forth about whether a B4 call was right or not, yes, you could do that and submit a notice and all that could happen. But for the vast majority of people, there would at least be something available like immediately that had the (b)(4), at least a first cut of (b)(4), already taken out. It seemed like we were already seeing some of that --
MICHALOSKY: Of course the difficulty is, without FOIA exemption, you can’t use Executive Order 12600 to process there, that’s a guarantee, that’s exactly what we’re getting. And each agency will -- may have different processes. It helps and [0:40:00] it does have a tendency to reduce FOIA requests, I think, so we’re -- I haven’t really looked at it too much to see how good the results are, but it has helped the agencies.
LEMELIN: If I might jump in here. I’m not on the Committee, but obviously we’ve been chatting a lot about these different issues, and I think that one thing we need to keep in mind is that the topic, the issue of proactive disclosures, it’s much bigger than FOIA. We’re talking about records management, we’re talking about IT, we’re talking about contracting and procurement, we’re talking about 508. We’re talking about all these different units within an organization. So one thing I’m going to challenge the subcommittee to do is just kind of think of what’s doable, what’s reasonable, what -- you’re looking at this huge universe of things, and I think you’ll probably have to narrow it down to something, so I think that’s something to think about. I’m thinking of things from the requester’s perspective and from the agency’s perspective, [0:41:00] in our role as FOIA Ombudsmen at OGIS, we hear from requesters and we know that they want records and we know that they want them to be proactively disclosed, but another issue that we’re hearing about is the idea of education. How do we empower requesters to look at agency FOIA websites and find the records that have already been publicly released so that agencies don’t have to duplicate their work, so agencies can work more efficiently?
Part of that is agencies will need to improve -- well, you may find that agencies need to improve their websites. I think the important point that Melanie raised is, it’s not enough to put this information up, it needs to be searchable and discoverable and crawlable, and that’s an IT issue. The program offices need to talk with the FOIA offices and vice versa. You’ve got the records management issue. And Sean referenced Marty’s comments at our [0:42:00] previous meeting, the idea that records management and disclosure, it needs to be built in to a record, a record -- you think of the classified world where paragraphs are portion-marked so you know right away what can ultimately, hopefully, be disclosed and what can’t be. I mean, one thing that might be useful to agencies, they come to us, they want to know how to do it, and I think the take-away from this Committee won’t be, "Oh, use this product," but it might be gathering a list of what practices agencies are using to proactively disclose things, what are the elements of a good proactive disclosure program? And so it’s not just going to be about FOIA, it’ll be bigger than that.
But I think what’s doable -- you and Eric have mentioned the low-hanging fruit. I mean, this isn’t going to be an issue that this Committee solves, but what can you do that will be valuable [0:43:00] to requesters and to agencies? So, maybe some more education, improving websites, but also what’s doable, can we add to OIP’s proactive disclosure best practices, what can we do. I think it’s a really great topic. I hope more of the Committee will get involved. And I also think it’s really interesting, because OIP, it’s doing its "release to one, release to all" thing, and I think it complements the work that Eric’s been doing very well. I think there are -- there’s the "release to one, release to all" approach, but there’s also looking at it in a more strategic way, looking at it, analyzing the data from different agencies and seeing what records are in demand, and so when something comes up, you can deliberately make the effort to proactively disclose that.
I mean, I think another great area where some agencies have had success is kind of having special projects that they do. So you have a [0:44:00] Supreme Court nomination, and then all the resources go into that, you get that out as quickly as possible. There were agencies that released records in response to the BP oil spill. I mean, sometimes you don’t know a record is in demand until some crisis or some event happens, and then all resources go into that. So there are different ways, there’s the strategic approach, there are special projects you can do, but I’m really excited for you to be working on this. I’m talking a lot longer than I thought I would, and I bet you’re all amazed by this.
One of the elements of the U.S. government’s second open national action plan -- I totally messed up the way that’s -- the NAP, wasn’t just the creation of a FOIA Modernization Committee, but one of the specific areas that we should be looking at in trying to address in some way, big or small, is the issue [0:45:00] of proactive disclosure, so let’s get our hands dirty, let’s try and do something. And I hope those of you here will give us feedback. We hear time and time again there’s not going to be a one-answer-fits-all, because agencies produce different records, they have different systems, there’s not going to be an easy fix. But let’s try and do something that will help us meet the needs of requesters and agencies.
FERRIERO: This is David Ferriero. I just want to make some connections here with something Nate said and the records management discussion. We are up to our necks, as you know, in implementing the directive on managing government records. And part of our responsibility has been working with the industry to educate them, first of all, about what the needs are and to let them go away and start thinking about the tools that they can [0:46:00] develop that will help us do our work. So an important piece of that is this FOIA responsibility and letting them know. We’ve already had one industry day, we’re gearing up for another one. So it’s important that the FOIA piece of it be part of what we talk to them about, and I promise to bring that to the table.
JONES: I just want to give one more quick kudos for another, I think, textbook example of proactive disclosure. The National Archives and Johnson Presidential Library just released a whole set of every PDB from Johnson, and a little bit of Kennedy, that was once called the most secret documented created that would never be released. And National Security Archive might quibble with some of the redactions and we’re eager to see the rest of them released, but credits due to the National Archives, with some help from the CIA, for posting a huge series of documents proactively that is a great resource, and it’s getting lots of hits, too.
FERRIERO: And I would just flip your comments and give more credit to CIA than National Archives. It was Joe Lambert who really pushed this.
EVITT: Just to finish our report. We recognize that we need to reach some conclusions that are a mix of idealistic and practical and that can actually do some good, and we’re going to need to start bringing -- getting a report together here in the next few months. So again, I invite anyone to join us as we do that. We will have a full subcommittee meeting in November.
HOLZER: So just to articulate next steps, you’re going to wrap your hands around what you have, the discussion that we had today, and then you’re going to write some kind of report with next steps as far as not necessarily the recommendations, but where you kind of see us heading? [0:48:00]
EVITT: That’s my plan. I have already done one email out to the Committee, trying to sort of capture where we are at this moment. I’ll do another one after this meeting, and then work with Christa to figure out when and where we can meet, and then try to get on Melanie’s calendar.
HOLZER: So that’s going to be kind of a recurring theme here as I’m going to kind of push folks to tell me what the next steps are. I’ll mention it a couple of times, but the Charter is coming -- it’s going to expire in May, so we have one more meeting in January, and then we’ll report out whatever it is the next steps are going to be. We’ll have further discussions about the Charter, obviously, but I would like to push each subcommittee as hard as we can to come up with some of those key areas that we could move in a direction. So thank you very much. [0:49:00]
Let’s now turn to the Fees subcommittee, co-Chaired by Nate Jones and Jim Hogan. I will turn it over to Nate.
JONES: All right, thank you very much. I have three main points I want to hit, and then plan to have the rest of the time for discussion. So, the three points are: First, I want to talk about our recent poll summary, to Federal workers. Second, I want to talk about how we get input from the public on FOIA fees. And third, next steps.
So, I think it’s on the OGIS website and everyone has a copy of a summary of our FOIA fees poll that we put together. Essentially we wanted to get insight from government FOIA processors and FOIA requesters on fees, FOIA fees that I remember our first meeting here, we called a huge [0:50:00] source of FOIA acrimony. So as we try and make them less acrimonious and try and fix them, we wanted to get input.
The first step that’s come to fruition, and there’s a great resource on the OGIS website, is the poll of Federal FOIA processors. So over 407 responded, more than 75 percent have worked there for three years; more than 55 percent are hands-on FOIA processors, not kind of someone with a FOIA tag that doesn’t get their hands dirty. These are very interesting results, and very good results. I want to highlight two data points and then urge you guys to look at the data more closely, because I think it’s really good.
So the first data point I just want to hit is that, of the requests, about 20 percent of all request report -- 20 percent of all poll respondents said that fees [0:51:00] -- sorry, of all the poll respondents, they estimated that 20 percent of all FOIA requests are charged fees. I’ll say that again. Only 20 percent of all FOIA requests, our respondents said, are charged fees. So that’s an interesting data point, next to the fact that we’ve said before that FOIA fees cover just 1 percent of all FOIA costs, and again, as we all know, that FOIA fees don’t go to the agencies, they go to the [U.S. Treasury's] General Fund. So now we know that, of all the FOIA requests that processors see, they say that only 20 percent end up being charged fees; the rest are news media fee status or fee waivers, or probably something we’ve talked about before, administrative discretion waivers.
The other data point is that the majority of respondents to our survey said that using fees never or [0:52:00] rarely resulted in requesters narrowing their requests. And we’ve spoken before that maybe that’s a use of fees, but the data at least makes you raise your eyebrow. Those are just kind of the high-level reviews, and I should’ve said it earlier, the summary of the data was compiled by Maggie and Julia Mata, and it’s -- thank you very much. But I would also urge for you guys to dig in to the actual raw results, which I’m very glad are posted on OGIS’s website, and especially I’d point you guys to question 6, and this is where FOIA processors that actually know FOIA and actually get their hands dirty, and it’s not in the handout, you have to look online, actually spoke candidly, which they’re often not allowed to do in the Federal government, and that’s one thing I’ve been learning on the Committee as a member from the public, is that a lot of people in the government have their hands tied and can’t speak candidly. [0:53:00] But take a look at question 6, and if you really want to know what’s up with FOIA fees, give a long read to the responses there, and there are some very telling responses.
We can come back to this later, but essentially we have the data released on OGIS’s website, we have a good summary by Julia and Maggie, and these responses will inform our subcommittee’s work going forward.
The second point, we wanted to also poll the public, so we get both sides of the coin, but we’ve learned that due to logistical problems, problems about doing polls and publishing results, that it is not going to be practical to do. So instead, the subcommittee, I think with some concern, has decided that we want to solicit comments directly to OGIS, in OGIS’s website, from the public that we’ll post. But rather than officially solicit them through a poll or a survey, [0:54:00] like we did with this, we want the public to just write in and say, Tell us what you think we should do about FOIA fees. And I know that’s a challenge; we had 400 Federal FOIA Officers tell us what they thought, and I would love to see that many public people write in. But know that even though we’re not doing a poll to the public, we want to hear, and we will take your opinions into consideration.
But finally, the last point, from talking with everyone in the subcommittee, we didn’t join the FOIA Fees subcommittee to do a bunch of polls. We’ve spoken from day one that we want to make actual improvements on FOIA fees, reduce the acrimony, and hopefully get more requests out to more people more quickly, get more returns to more people more quickly.
So with that vein, our next steps. After some discussion, we kept [0:55:00] going back to what is the root of the problem? And what we found time and time again is that the real law, or the real advice, the law of the land, colloquially, about FOIA fees is this OMB [Office of Management and Budget] FOIA Fee Guidance from the Federal Register, written in 1986, 1987. Now, that’s essentially before email was created. It’s before the internet. It’s before being able to send a FOIA response over a computer instead of printing out a big packet of documents and sending via posted mail. And it’s also incomplete. Jim pointed out that it seems to be missing key words at key spots.
So what our subcommittee has decided is that what our tangible result to improve the processes, is we’re going to recommend, I believe, to the Archivist, to recommend to above him to upgrade the FOIA [0:56:00] fee thing from 1987. It’s much needed. Now, we’re still working -- and we don’t want to just do the same thing and cross out the date and put a new one. We’re working to have a set of consensus recommendations using the data from people inside the government and FOIA requesters of what can we all agree on that we can do to improve the FOIA fee process for this much-needed update. I’ll leave it there and we can have some discussion.
HOLZER: So just for a point of clarity, and Christa, you can correct me if I’m wrong, I believe that the subcommittee will make a recommendation to the larger Committee; the larger Committee will then take a vote on how they would like to proceed and whether or not they are in agreement with the subcommittee’s recommendation. Then, based on that, the Committee as a whole will make a recommendation on how we’re going to proceed.
LEMELIN: To clarify or add to Nate’s comments, [0:57:00] the reason we thought it would be best to informally gather data from the public about this issue is, the survey, as you generated it, it doesn’t really qualify for OMB’s five-day fast-track process, so, short reason, bureaucracy.
HOLZER: I know that there was some hesitancy, right, but this was an issue that we were working on, and if the subcommittee felt strongly on this issue, we could go through the OMB clearance route. The only point is, is that by the time that we got some kind of determination, the Committee’s Charter would probably have expired.
JONES: The subcommittee understands, and we want to use our resources in other ways.
LEMELIN: And so I would say -- I mean, we welcome the public, as we always do, to comment informally, to write up your own experiences, or if you do want to post survey questions that you want people to specifically respond to or elaborate on their experiences, [0:58:00] that’s definitely doable and something we can do.
HOLZER: So based on [NARA] General Counsel’s guidance, we’ll obviously work with the subcommittee, but on the Advisory Committee’s web page itself, there will be some kind of survey or some way of collecting the comments, as you guys have drafted them.
LEMELIN: It wouldn’t be like a survey instrument like Survey Monkey, it would just be a bunch of questions that we’d like people to respond to so we can better understand their experiences with the fees and the fee process.
HOLZER: I do think you bring up a valid point about who we’re going to target or how we’re going to get folks to go on there and make those comments. I mean, obviously there’s going to have to be some kind of media blitz or outreach that we do, stakeholder engagement, to get a representative sample. Because obviously we don’t just want media requests, we want the individual experience, we want the full experience.
JONES: So while we’re talking about [0:59:00] procedure stuff, the subcommittee, as far as I understand, we’ve decided that we want to go ahead and recommend that we update the guidance at the next meeting, so should we pass it on now, or pass it on to the next one? Because we do know that time’s a constraint. So we were starting to work with -- to have a product, I think, by the next meeting, by the next meeting. So what procedural things we need to do to make sure that we can deliver this product by the next meeting. Or none?
PRITZKER: Two things. First, on what Christa was describing about putting on the OGIS website, I think your general counsel will advise you avoid use of the word survey, avoid talking about or listing questions. Put it in terms of issues, inviting comments on the issues. A question I’d like to ask, [1:00:00] particularly prompted by my reading of your poll results: Has anybody looked into whether there’s some legislative history as to what Congress thought would be the purpose of having fees, or what OMB, in its guidance, thought was the purpose of fees?
JONES: Jim did. Jim did some great research on this, and I’ll let him share it.
HOGAN: You’ll notice something here, and this is from the preamble to the guidelines, and it says, “While the legislative history of the 1974 amendments to the Freedom of Information Act shows that Congress did not intend that fees be erected as barriers to citizen access, it is quite clear that the Congress did intend that agencies recover of their costs” -- there’s a missing word between “recover” and “of.” Again, “Congress did intend that agencies [1:01:00] recover of their costs.” Some? Most? Half? We don’t know what that word is.
PRITZKER: Are the agencies getting to keep any of this money?
HOGAN: The agencies don’t keep it. The money is --
PRITZKER: So how does it --
HOGAN: How do they recover costs? They don’t.
PRITZKER: So maybe there’s a recommendation somewhere in that --
HOGAN: Well, this is something I asked the former director of OIP, (inaudible) about 15 years ago, somebody asked him, “Why can’t agencies get it?” And Dick was very wise. His answer was, “If your bean counters knew that you were getting, say, $10,000 in from FOIA fees, what are they going to do to your budget? They’re going to cut it $10,000, you’re going to break even.”
PRITZKER: All of that makes sense. My point is simply that if there is a mismatch between the intended purpose of the fees and what’s actually happening with the fees, maybe that’s an area for recommendation.
HOGAN: And (inaudible) may have changed in the past 40 years, 50 years, of what to do with fees.
PUSTAY: I think actually in some ways [1:02:00] ironically, the language about that Congress was intending agencies to recoup fees, when you match that against the reality that agencies are getting 1 percent of fees, I think Congress was intending that there be lots more charging of fees and recouping of fees than there actually is. It’s really kind of ironic how it’s panned out. The one thing that I thought was particularly interesting about the survey that I felt relieved about, to a great extent actually, was the fact that there was, at least for this survey, the people who responded to the survey, the amount of time spent on fees was very small. I was really pleasantly surprised, because I think a lot of us, sort of the lore or our perception was that oh my god, the poor FOIA professionals are just spending hours and hours in diverting their time fussing over fee determinations. [1:03:00]
JONES: Fifty percent spent less than one hour a week, and only 7 percent spent 10 or more hours a week.
PUSTAY: A week. So it was a really pretty startling -- but I thought, I mean, that, to me, was really a powerful thing for us to know. And obviously, I mean, the survey, to the extent we captured a certain group of people -- I know it’s not statistically necessarily exactly, that you can predict it out, but I found that result a very powerful thing, and I just think it should help our thinking, that OK, so maybe it’s not so much that we want to focus on reducing time spent. So what is it that we want to focus on? Clarity of the requirements, or -- another thing, the second thing that struck me was, it seemed like a lot of people mentioned the desire to have more training on fees. I mean, that was certainly something that resonated with us, because we did a fee summit before, [1:04:00] and so for me, just looking at that, and I’m happy to talk with the Committee, like what further things we can do for training. We’re happy to start doing that kind of thing as soon as we can.
BAHR: This is Dave Bahr. Regarding the point about the time spent on fee issues, I think it’s important to note, and this underscores my frustration that we can’t really effectively poll the requester community, that whereas the FOIA staff may not think that they’re spending a significant amount of time on the fee issue, I can speak from personal experience on my clients’ behalf that as far as the requester community goes, fees are a very, very predominant issue, and I don’t know if the reason that FOIA staff doesn’t spend a lot of time on fees overall is because the vast majority of FOIA requesters, from the commercial requester community, where fees are a given and therefore there’s no dispute, I can’t speak to that. I know that, as [1:05:00] I said, from personal experience, my clients have definitely been confronted with fees, where they were forced to either withdraw the request or significantly narrow the scope of the request for the information that they had a right to have access to. It’s very unfortunate that the bureaucratic barriers to asking the requester community are going to leave a very large void of information for the Committee to work with, because the process has been skewed to make it very easy for us to ask the internal FOIA staff their views.
And the other comment I wanted to make is, I was disheartened to find that the primary reason, and this is regarding question 6 on our survey, that the responses to question 6, the majority of people who thought fees should be retained primarily based that opinion on the ability to use [1:06:00] fees in a coercive nature, to force people -- to try to force people to seek less information from the government than they originally sought. And the FOIA’s text does not speak to using fees in a coercive nature, it speaks to recovering fees, reasonable fees, or fees reasonably tied to the cost of actual production of the information, and not as a tool to force people to narrow their requests. We all know that that’s a common use of this, and the response to the survey has ratified that.
The final point I’d make is, I forget who it was just a moment ago, mentioned that 1 percent of the fees recovered are going to the agencies, and I just want to underscore that that’s a misunderstanding. Even though we’re recovering only 1 percent of the fees, or 1 percent of the cost of producing the information, none of that money, not a single penny is going back to the agencies. [1:07:00] In effect, the agencies are spending staff time and money recovering fees that are going in the General Fund and not coming back to them. So it’s a net loss regardless of how much time the agency spends whenever they ask for fees and have to deal with fees. Thank you.
JONES: Thanks, Dave.
LEMELIN: Can I jump in here? Mr. Pritzker, I just want to respond to your comments regarding the verbiage we might include with anything we post or publish online with regard to our attempts to gather more information about the public experience with fees. I mean, we are in contact with our Office of General Counsel, and that’s a great reminder that we should run anything that we have by them, so we’re using all the right buzzwords and not saying the words we shouldn’t say.
Dave Bahr, I mean, I think you raise an interesting point, and I think that’s [1:08:00] something you should bring back to your fellow subcommittee members, and it’s kind of an issue that Melanie touched on, too, the issue of how much time requesters spend dealing with the fees issue. I’m sure Melanie sees this with agencies when they do training, I know at OGIS we see this when we work with agencies and when we work with requesters. I mean, there’s a lot of misunderstanding when it comes to fees, especially with regards to the issue of fee waivers and fee categories, and people don’t always get that. So that’s definitely an issue. Dave, I’d say if you think that’s an issue that should be raised in whatever we post, to gather information, to learn more about requesters’ experiences, bring that, and we could definitely include that in anything we post to solicit feedback on this issue.
MICHALOSKY: I talked with Ann about this a while ago, [1:09:00] but in our [CFPB] regulations, we have given the FOIA manager administrative discretion to waive fees, and I would say that a vast majority of non-commercial requesters I’ve waived pretty much as a standard practice now. So what I’ve done, and you’ll see this probably, I think, by the end of the year when our regulation update goes out for public comment, but we’ve now instituted that in our regulation, that we have -- we’ve raised thresholds away from the $25. We’ve made them higher, we’ve made the prepayment limit higher. And that was all in an attempt to take some of the work that the subcommittee had commented on, as well as the survey results, and just a good practice of getting information out there to non-commercial requesters. So we’ve taken that approach, and you’ll see it probably in the regulation by the end of the year, I think we’re planning on getting that out.
JONES: Thanks, Marty. That reminds me, two other [1:10:00] related issues that the subcommittee is working on is this issue of administrative discretion in FOIA fees, and also the issue of when can FOIA fees be charged and to whom if the request goes over the 20- or 30-day deadline per the 2007 Open Government Act. So those are two other issues that we’re also digging into.
HOLZER: I guess next steps, that was kind of one of your leading questions, right.
JONES: Yeah, I got a lot of those.
HOLZER: It sounds like you guys have done a lot of work and that you have several recommendations that you’re going to vote out of your own subcommittee, or you guys are in agreement between good recommendations?
JONES: I think we’ve already voted out of the subcommittee that we want to recommend to the Archivist that the OMB guidelines be changed.
HOLZER: And that’s the --
JONES: That’s already -- our subcommittee already has agreed to that. However it happens that [1:11:00] we can keep moving forward at the next meeting, I don’t know when we have to have a vote on that, but --
GOTTESMAN: Are you going to recommend language for OMB to issue, or just a recommendation that new language needs to be issued? That’s where I’m a little bit confused.
HOGAN: I don’t know if that’s something we would leave up to OMB, I don’t know if we will get to the guts of that so much. Primarily I’m thinking -- I want them to look at in light of the realities of the changing -- and the biggest issue is whether, and thank you to the National Security Archive back in 1998 for suing the Department of Defense, is whether -- how an organization qualifies as a representative of the news media, and that is very troubling, even with -- in case law, a recent opinion came out of the circuit court here in D.C., it may have changed things a little bit, don’t know. But [1:12:00] in light of that, and the whole world of journalism has changed, it’s different than it was 20, 30 years ago. I don’t call it a crisis in the profession, I’ve heard that term, but it’s a different profession in some ways, how you define that profession. And so, then, what is the true congressional intent when it comes down to who qualifies for the favored fee category, and have OMB, I think, to re-look at that and say, OK, here’s the reality of the world, here’s how it’s changed. It may be -- the answer may be something agencies will have trouble living with, that’s a risk we have to take. It could be saying, here’s a new world.
I think the congressional intent is different than it was 40 years ago when it comes to agencies recouping fees, or the government recouping fees, whoever recoups the fees. It’s definitely changed. I’m not familiar with the [1:13:00] congressional language for the change in 2007, the Open Government Act, but I think there’s some discussion there about -- because they brought in the (inaudible) opinion and codified it. I’m thinking of just saying, OMB, here’s what you want to look at and how you redo it.
GOTTESMAN: The challenge of media requesters -- I mean, you have corporations and law firms now saying, Oh, we are the public -- we write a newsletter, so therefore we feel we (inaudible) media status, is they’re suing an agency on behalf of a client. So those are the challenges, you’re correct. And it’s tough in today’s world.
HOGAN: And I think -- I mean, I’ve said this before, can the National Football League qualify as a representative news media in accordance with recent case law? They have a --
JONES: (inaudible), get some data on concussions, publish it.
HOGAN: See, they have --
JONES: That was the case with the military recently.
HOGAN: They have a cable network, they have [1:14:00] reporters, they have a blog, they have all those things where people -- and Sean’s shaking his head yes. And I know POGO’s [Project on Government Oversight's] is an example of one. Yeah, National Football League qualifies, OK. Is that where we want to go? Is that where the requesters want to go? I don’t know. But it seems to be that’s where it’s going. Now that’s -- I have been able to be frank and open, and despite what you’re saying, some government employees aren’t -- in that position, I am -- that’s a concern, that’s my concern, or just an observation, I’d say, where we go on fees.
JONES: I would just add that any change we -- no one from the requester community, and I don’t think anyone from the government community, would want the OMB guidelines to change to prohibit more requesters. I think we’d want them to be in the spirit of President Obama [1:15:00] and the Attorney General’s instructions on FOIA and the presumption of disclosure. And I’m certain that the Archivist would agree with that as well.
HOLZER: I think that there’s really two options here, right? I mean, you could bring a motion forward right now and make a recommendation, which the full Committee could then vote on. Or we could table the conversation, noodle on it a little bit, and then you guys could submit something a little bit more formal, as in the language that you would actually like the recommendation to read, to the Archivist.
PUSTAY: It seems like, since we haven’t done this yet, we haven’t had a vote for the Committee, it seems like just -- maybe my caution as a lawyer, that normally you would have something in writing that we could look at, and then we could all -- and it’d be nice to have it in advance so that then we’re ready to vote, [1:16:00] as opposed to just kind of doing it on the fly.
JONES: I just wanted to -- but do we have to have that in writing next meeting, or can we have that before next meeting so that we can actually do something?
HOLZER: So you want to vote on it prior to the next meeting? Is that kind of the implication?
JONES: I think working backwards timing-wise, right, you guys know.
GOTTESMAN: Couldn’t we just take a -- couldn’t people just sort of give their consensus on how they feel about the position about a recommendation that NAR update their -- this way at least you’ll have sort of an informal consensus, know where everybody’s going vis-à-vis going through the formal process that Melanie recommends, which I would agree with. Because I mean, I clearly have been saying for years it’s time to update the OMB fee guidance.
HOLZER: I do think there’s a nuance there, right? Because what we kind of heard from both sides a little bit was this broadening of the media category and do we want OMB’s guidance [1:17:00] to kind of restrict that a little bit. What I kind of heard from today was no, we want to make sure that we’re as broad as we can. So what exactly is the recommendation? It seems to me that the recommendation is --
JONES: To update the guidance. I mean, we’re not -- neither Jim nor I is going to write the guidance for -- or anyone on this subcommittee.
HOGAN: I don’t think we’ll have a good idea exactly what we’re going to recommend to them even by the next meeting. I think we’ll have something really written up, because once we get this informal survey -- it’ll almost be rushing it, I’m thinking. I don’t know, Nate may disagree, and that’s fine. But we can have -- we definitely want to go forward with something, but we definitely have to see what the public tells us, I think, before we go with that.
PUSTAY: One thing that I think it might -- sort of the more simple the formulation is, then the easier it is to move forward on. Like something like recommending it be updated. I think regardless, it’s noticing comment rule-making, so you could -- the phrasing of it could be -- [1:18:00] the phrasing could actually make sure that you take into account with formal -- with rule-making and commenting and input from civil society and things like that. But it seems -- I just think it’s always easier -- it’s just easier to be able to look at -- even if it’s just a short, simple -- I think the simpler it is, the easier it’ll be. Two sentences --
HOGAN: Something simple is (inaudible) at the next meeting, yes.
PUSTAY: Not some big report or something, but just something really simple.
HOGAN: Does everyone feel comfortable kind of (inaudible)?
PRITZKER: I don’t feel comfortable with the last thing that Melanie said, because what that -- given what’s been said in the last several minutes, that sounds a little too abbreviated, along the lines -- I think it’s useless to say to OMB that you should update your guidance, without telling them what the problems are. We don’t have to write language for them. We shouldn’t write language for them. But, for example, talking about [1:19:00] the evolution of the concept of media or journalism, other issues, the way that the growth of the internet and government record-keeping has changed in the almost 30 years since then. We ought to be, in our recommendation, identifying where the problems are and what it is that needs to be updated, without telling them how to do it. But I think just to say it’s time to update your guidance would be useless.
PUSTAY: No, I don’t disagree. I totally agree. I think we’re just talking about it as two different things. Like what you just described, I think would be like the background, here’s the issue, sort like think of here’s the facts, here’s what’s changed --
HOGAN: Like what a report would look like?
PUSTAY: Like what a report would look like? And then the actual recommendation that people would vote on could be something very simple. Straightforward is what I’m trying to say. Maybe that’s a better word [1:20:00] than simple.
PRITZKER: But identifying these issues, at least in my view, ought to be more than just the background. That’s part of -- I think that should be part of the recommendations. You can say “such as” or “including, for example,” but I think that it’s important to identify where the problems are, even if you don’t have the solutions.
PUSTAY: And what the need would be -- what forms the basis for making the recommendation.
PUSTAY: I agree totally.
JONES: My opinion, speaking for myself, is that the subcommittee is ready to do that. What is the process of officially getting the permission to do that so that we can give a deliverable before our tenure expires.
HOLZER: I think that Larry had a good point. Do you want to do like kind of a consensus to see where we kind of lie on the issue, and then in January [1:21:00] that you would submit some kind of written product, whether as a white paper or some type of report, laying out all these issues that have been brought up, with the specific recommendation that we can then all read and take a vote on. And as long as you get that to Christa, she can handle the agenda, make a new agenda item --
LEMELIN: Not at the last minute.
HOLZER: And then if we can get it out to folks a little bit before, so that way, if there’s any amendments to it --
JONES: That sounds good to me. Should we do it --
JONES: Do we move or --
HOLZER: I don’t think -- since we’re just doing a poll, I mean, this is an informal poll about your inclination on this recommendation, if this is something that you’re inclined to go forward with as a full Committee. In favor of recommending to OMB?
OTHERS: Aye. Yes.
HOLZER: I think this is a solid [1:22:00] recommendation, one that we can definitely move forward together on. It’s great work.
GOTTESMAN: (inaudible) what the specific background material is and how -- because, I mean, clearly that’s the difficult part. The recommendation to change the fee guidance that’s almost 30 years old is an easy one. It’s really what does the background material say and how that would affect -- so that’s the tough part, to be honest with you. The easy part is, we need to do something.
All right. So I think we’re in a really good position. I don’t know how everyone feels on the Committee, but I feel this is a good start. All right. So we’re going to go ahead and take a 15-minute break, and then we’ll reconvene, in 15 minutes, 11:45, right?
END OF AUDIO FILE 1
HOLZER: Just wanted to make sure everyone had time to get back. I guess we’re going to start a little bit early, one minute. So finally we’re going to turn our attention to the Oversight and Accountability subcommittee. So I’m going to turn it over to the co-Chairs, Mark and Marty.
MICHALOSKY: Just a caveat, the minutes from our last meeting as well as, I believe, the white paper that you were given are on the OGIS website, so I’ll caveat this discussion with that. But the subcommittee did meet officially on October 8 to discuss kind of the three topics that we agreed to kind of work on.
I’ll start with the assessment of the FOIA Public Liaison role and determine opportunities for improvement. As reported at the last Committee meeting, [0:03:00] we conducted a poll, much like the Fees Committee, that we sent out to the hundred agencies that conduct FOIA and are responsible for FOIA. The subcommittee, through this poll, received 90 responses from FOIA professionals throughout the Federal government asking a variety of questions on their roles, everything from the position series that they sit in to how often do they communicate and by what means. And basically to evaluate, are they having positive experiences, are they having some issues, and what are those issues and so forth. The raw data from this poll that we received back in July we did post on OGIS website under the subcommittee for Oversight and Accountability, much like the Fees poll data is out there, including comments, not just the data from our questions, but some of the comment fields and some of the comments that we received, [0:04:00] you can see all that if you go to the website.
Delores Barber took the lead on capturing the raw data and putting it into a white paper, I’ll call it a white paper, that each of the Committee members have as well as, I think, you were given a copy too. That’s been posted, I think, this morning to the OGIS website as well. Basically what this does is roll up that raw data into a nicely formatted and colorful document. But I wanted to thank Delores for doing that, and her staff did a fantastic job on it.
I just want to touch upon a few things that’s in the report. So, question 1 we talked -- we asked what position series. So it’s good to see that most of them were in the 306 series or the 301 general series. [0:05:00] How long has people served in this role? Forty percent, which was a pretty hefty percent, were five or more years, with 20 percent behind that being one year or less. So a majority of the people in this role have some experience in that role, which is positive.
What type of position title do the people directly above this position report? A vast majority of them are in a high-level supervisory or management position. For example, a director, a deputy Chief of the office. Since assuming the Public Liaison role, was another question, did people in this position attend some type of training to understand what the role is and what they’re doing. A vast majority have. For example, the leaders were their own agency FOIA training, the Department of Justice FOIA training, and then behind that OGIS training and [0:06:00] ASAP [American Society of Access Professionals, Inc. - a non-governmental, independent, educational, not-for-profit association for Federal government employees and private citizens working in the fields of information access through the FOIA, the Privacy Act (PA), and laws and regulations], which is basically a vendor. Another question talked about was their plans to attend even more training. Over 66 percent said yes, that they plan to attend training over the next year, which is very good. Another question, specifically question 6, talked about how the Public Liaisons feel about personnel training, organizational leadership support, technology. Looking at the data, it seems that most are satisfied with that, which is good to get that data.
Is the FOIA Public Liaison role pushed out to requesters so they know that that exists in the resolve disputes statuses? All those type of things, 72 percent stated that their agency informs the public and requesters that this role exists and how to get to them. [0:07:00] And some of those ways to get to them, agencies post 85 percent of the time through their agency website, email address, through the Public Liaison phone number, and those contact points.
Some of the other data in -- like, for example, questions 8, 9, 10, 11 were just a variety of different things that were evaluated on. There’s a lot of data there, I’m going to go ahead and just refer you to looking at that yourself. Looking at the remainder of the questions, does the FOIA Public Liaison interact with their agency counsel? Most of the respondents said yes, on a daily basis. So that’s good, that there’s a close relationship there. And then the last two questions on the survey talked about what are -- one of them was, what are the suggestions that you have to improve basically FOIA administration? [0:08:00] What’s interesting is, some of these efforts are already under way. Developing standard regulations, developing standard training programs, and going back to something we’ve heard numerous times in the past, and even at this meeting, the technology. So how do we have a better case management system? Of course how does -- how do we procure that? Share resources? All those type of things.
And then the last question talked about is there any topics to reflect on maybe in the future surveys or other ways to collect information. And there were kind of like three areas that I want to bring up. One is talking about what we talked about in this meeting earlier, which was the use of Exemption 5. So is that -- is it being used effectively, overused, things along that nature. Discussions about [0:09:00] laws and the releasing of copyright information, so we talked a little bit about the (b)(4) and the contracts and a variety of things like that. So that kind of came up with that information. And then lastly it talks about just general FOIA administration topics, like training, staffing, and budgets. That was just a real high-level things that I wanted to touch on that’s in this white paper, and that’s an effort that we pulled out of conducting that FOIA poll.
The second item that we took on, and we talked a little bit about this in past meetings, is to identify current authorities for oversight and actions that have been completed over the last 10 years. So this really focused on audits, agency reports, possibly investigations, program reviews, all those type of things. Nate has done a fantastic job, with the help of some others on the subcommittee, [0:10:00] to pull -- to first -- and of course to post them, but to really identify, pull these together, and we go back further than 10 years. I think at one point, I think we have like a 25- or 30-year-old report that surfaced.
So we have now, we just posted a few more to the subcommittee’s website, but right now we have close to 80 or even more than 80, I think, was the count, of these type of reviews and audits and reports that are available for everybody to look at, that we pulled together in one spot. There are subcommittee members reviewing each of those reports to try and identify trends, conclusions, ideas, things that are either, maybe have been addressed, maybe they’re the rub from year to year to year to year and there just hasn’t been efforts to correct them, all those type of things. That’s kind of our next focus, is to -- the subcommittee members [0:11:00] that are reviewing this, to pull out those trends and variety of different things that are found that are a continuous theme, and put them into like a white paper. That’s kind of like what we talked about. Very similar to this, but pull something together that that review has -- we can put that in some type of document that states this is what we found. So that’s under way right now.
And then the last item that we’ve pulled together over the last, since we’ve started this effort, was to look at past litigation reviews. This is something that goes back to the Janet Reno days, whenever there’s a litigation review and there were some positives that came out of that. We wanted to look at that and see if there’s something that we can apply now to help with litigation, help with the appeals process, and things like that. I don’t have an update, the subcommittee does not have an update for that item for this meeting, but generally we’ve discussed the effort that TRAC [Transactional Records Access Clearinghouse - a data gathering, data research and data distribution organization at Syracuse University] [0:12:00] has been doing and seeing if we can learn anything from that. And then also some of the other general discussions was looking at the mediation role that OGIS has, how does the appeal process either work positively or not positively? That appeals process prior to litigation, what are reasons for litigation? David kind of reenergized the reducing FOIA litigation through targeted ADR [Alternative Dispute Resolution] strategies paper that’s out there from his organization. And some things that we’ve tried to see if we can kind of take some efforts in that area. It is complicated, complex, but we are still looking at it to see if we can -- what actions we can take moving that forward.
As far as next steps, I’ll tee off [0:13:00] James’s before he asks me. Some next steps is, again, going back to the reports, the audits, and those 80-plus documents to put together a white paper over the next -- we’ll have to see if we can do that by the next meeting or not, but do a similar effort where we say, based on these reviews, this is what we found, and share that, and tie it into those documents that are already on the website. I think, even though we generally talked about this at the subcommittee in the past, but doing a similar effort of the agency for -- agencies for the FOIA Public Liaison role, but asking the public what their experiences are. So I think based on what Fees had talked about earlier, we would likely take a similar approach and ask for public comment to see is the FOIA Public Liaison role working for the public or not? At that point, then [0:14:00] probably compare these results and see if there’s opportunities for improvement or suggestions there. And then again, going back to the litigation review, it is a complicated thing, but we are looking at things that we may be able to take on to kind of address that while we still have some time left on our tenure.
And the last item that was brought up is possibly conducting an interview with OGIS, much like we did with OIP in the past. And if you want to see that, that’s gathered in minutes that we have on the website and some of the information that Melanie and her staff had shared with us whenever we interviewed -- the subcommittee interviewed them with a variety of questions on what’s the role, responsibilities, or things being effective, rooms for improvement, next steps, things like that. There’s some interest on the subcommittee to do a similar interview with OGIS and take the same kind of effort that we did with OIP with sharing that [0:15:00] information. And that’s the subcommittee report.
ZAID: I’ll jump in. One, I also want to echo my thanks to Delores and Marty for taking the lead on pulling the survey, or poll, whichever one we’re supposed to call it, results together. And I kind of want to comment on a few points of it, because all in all, it’s sort of like when the president makes his State of the Union and he goes, “The union looks good,” or so. And it does with the Public Liaison, and Marty gave you the glass half full. I want to kind of give you the glass half empty, because the whole purpose of us as this Advisory Committee is trying to improve things. So what is there that has to be improved?
I’m a little bothered by the fact that almost 20 percent of the Public Liaisons say they haven’t received any training. Now, of course we don’t know the supporting data for this in the sense of maybe [0:16:00] 20 percent just assumed their office, so they haven’t had time to take training. I don’t know, but the fact that 20 percent haven’t is a little disturbing. I don’t know what “other” means, maybe Marty or Delores can fill in if they added what they meant by “other.” That they’re not going to take training, a third of them aren’t going to take training in the next year. Now, maybe that’s because 40 percent have been there for five or more years and they feel they don’t need any training. I don’t really think I need much more training in FOIA, so it’s not necessarily a negative thing, but I’d be interested to see if we could figure out why they don’t want to take training.
If I can read what the graph is on [question] 6, so someone tell me if I’m reading this wrong, and it certainly looks good, but if I’m reading it correctly, from a third to 45 percent of those polled/surveyed are neutral to very dissatisfied with every category. [0:17:00] Am I reading that correctly? Right? If I go up to where the yellow is on each of them, so that includes very dissatisfied, dissatisfied, neutral. So a third to 45 percent are very dissatisfied or neutral about their personnel, their training, their leadership support, and their technology. I don’t think that’s necessarily a good thing.
I think it’s great that 73 percent of the FOIA Liaisons inform the public that they exist, but are you kidding me that 20 percent actually don’t? What purpose are you serving in this position? And 10 percent don’t know if they’re telling the public that they exist? I mean, so that 27.8 percent actually freaks me out far more than the great result that 72.2 percent. How could this number not be like 98.9 percent, with the 1 point -- what did I just say, 98.9? -- the 1.1 percent -- I’m going to make it 99 percent so I can make it easier -- the 1 percent just took their job [0:18:00] yesterday and just haven’t had time to check to see if people don’t know about them. That’s, I think, very problematic.
I know, just as a couple of examples of what I had to deal with just this last few days as a FOIA requester-slash-lawyer, when I’m dealing with some of the agencies, and I don’t know if I’m dealing with the liaisons, probably not, this notion of interaction with the public, which is what this liaison position obviously is all about -- I know I’ve been dealing with an Air Force component, and I’m getting these generic email responses from some nameless, faceless person, “the FOIA staff.” And I can understand why probably the contractor who was answering this email doesn’t necessarily want to have their name attached, but as someone who’s dealing with the Federal government, I’d like to be able to reach out and understand who I’m talking to, and maybe have a phone number that I can call into it on [0:19:00] the email, so I don’t have to look it up and try and track down who these people are.
Just as another example, because this goes to training, I’m still finding that these folks don’t understand that they’re obligated by law to provide an estimated date of completion for their responses. And I’m very sympathetic to the fact of how do you figure out what that estimated date of completion is going to be, and I know I never hold anyone who tells me that we’re -- I’d like to hear “we’re hoping to have it done within four months,” and I’ll go, "OK, great, just give me a sense," rather than, "OK, it will be done in four months." But the response I’m getting back is, “Well, I’m sorry, we’re doing this first in, first out, and we don’t know when we can tell you.” And I finally had to get on the phone with the head of the office to say, “You do realize the law requires you to actually respond? So can you please tell your contractors that -- train them on what the law is?” That’s sort of a little aside, but it relates to the training issue. [0:20:00]
And I think, certainly from our subcommittee perspective of -- and especially if we lengthen the term of our tenure as an Advisory Committee, we can try and start to look at some of these more oversight issues. Some of them are little tweaks, I’m sure, but every little tweak will make a difference for quite a number of requesters. And again, I want to thank the subcommittee for doing such great work.
MICHALOSKY: Any general thoughts, comments?
MOULTON: This is Sean Moulton with Project and Government Oversight, and just to go a little further than Mark’s comments, I do think he’s highlighted some of the areas need improvement, and obviously something we can hopefully come up with some recommendations on. I think some of them are pretty low-hanging fruit, which is good news. But I also think -- I’d be very interested to get some of the raw data or some cross-tabs on this, because [0:21:00] I’m curious to see if the people who answered, that they’ve only been in their position for a year or less, are the ones who haven’t received training or the ones who don’t know, or if it’s some other mix.
If the people who are dissatisfied or very dissatisfied, if there’s some breakdown in terms of the types of requests that they get or types of interactions that they’re talking about. Certainly on the people who say that they don’t inform requesters as to their role, I’m curious to see what their frequency of contact with requesters is, because we had some that were very low, hear from them just less than once a month. And that may be because they’re not telling the public about them, and if we see that others who do a good job of informing the public see a higher level of requests, then again, I think that’s a good dynamic, one that we can then try and correct for in those agencies that aren’t doing a good job with [0:22:00] that first piece. And so if it’s possible to see some of that greater breakdown of data --
MALE: That stuff’s online, right?
MOULTON: Is it all the way, down to the individual responses?
BARBER: Yes. All of the raw data can be found on the OGIS website, and this just rolls up in a very high-level aggregate, OK? But Mark and Sean, you bring up some good points, particularly when it comes to training. If you do just a cursory cross-check of the data and the dissatisfaction that you see across some of these questions, particularly question 6, and the last two questions, 13 and 14, where the FOIA Public Liaisons pretty much repeat themselves, there’s emerging themes and trends that come from the data about leadership supporting FOIA efforts at departments and agencies, and the need for specific FOIA liaison training. Now, if you go dig into the raw data, [0:23:00] you will find that the respondents said I get training in this, I get training in that, but it’s not specific to FOIA Public Liaison.
The one thing that I want to do is go back to the history of this. What we were looking for is to make sure, one, that all of the 100 departments and agencies that are subject to FOIA had a FOIA Public Liaison. The role of the FOIA Public Liaison, as you all probably know, was created in Executive Order 13392 in the former administration; it was codified in the Open Government Act of 2007. So we were curious to know whether or not agencies took that seriously, and they do. And the data also shows that there are opportunities to strengthen that role so that people know precisely what it is they’re supposed to be doing, and that they get supported by leadership. And Marty and I, we were talking about this, and we thought that with [0:24:00] this new administration coming on board, that’s where we might be able to be effective in taking advantage of some of the issues that you bring up, Mark, and you bring up, Sean. Does that make sense, Marty?
MICHALOSKY: Absolutely. And the only thing that I would add, and if you want to get to the specific website, there’s a link in that report that takes you directly to the raw data. I believe it’s on, is it page 2 or -- so it’ll take you straight there. But one of the things that I know I’ve done at my agency is, I wasn’t satisfied with just sending people to FOIA training, but I took a significant advantage of the OGIS ADR training. We’ve sent them to general customer service training, who, I mean, realistically they don’t talk about FOIA at all, they just says it focuses on the customer and what their need and desire is and how do you mitigate that and give them a good user experience whenever they call in. They didn’t talk anything about FOIA. So sometimes it’s not even [0:25:00] being specifically FOIA training as much as it is being available. I mean, personally, and I’ve shared this with the Committee before, I’ve called my fellow FOIA managers and other agencies and I can’t get a hold of them, I can’t leave a message, I don’t get a response back, I get a fax machine beeping. And I’ve submitted two FOIAs in my entire lifetime, and my experience has not been positive with either of those.
So I understand exactly what -- well, maybe not exactly, but I can understand to a degree the things that you face, because I think probably all of us agency representatives in the room has faced that sometime in our career. So I mean, I know personally, I think it’s important that not just focusing on FOIA, but focusing on customers, and that customer is the requester as well as our internal people. That may be another area, [0:26:00] is even focusing on some other things that will help strengthen and prepare people for that role and keep them focused on the goal that we’re trying to achieve here.
BARBER: I have two additional comments piggybacking off of that, Marty. Once we look at the other side of this, like with the Fees Subcommittee, and get some public comment, then we’ll be able to marry what we have here from the FOIA Public Liaisons with what the public is experiencing. The other thing that you’ll find when you go and dig down into the raw data is that the FOIA Public Liaison is a collateral duty for the people who responded to this poll, because they’re also FOIA processors. So I think that’s where some of the frustration came with their responses in terms of training. "OK, yes, I know how to do FOIA," they seem to be saying from the data, "but nobody’s told me how to behave like a FOIA Public Liaison, and so I wing it." And you’ll see that in the comments [0:27:00] and we’ve left those untouched, you can read them, and people were very candid, despite the fact that they work for the Federal government.
But I’m interested in hearing from the public and their experiences about the FOIA Public Liaison, and then taking that information and sharing it with the new incoming administration. Since new administrations seem to like to tinker with FOIA, maybe they can take advantage of this information.
PUSTAY: One thing I wanted -- I had a lot of reactions to all this survey data, actually, but just to give you a couple of highlights from my perspective, I was happy with, just like with the fee survey. Of course I did like the part -- the 72 percent of people made the public aware. I thought there were a lot of really good things, the satisfaction rate with FOIA Public Liaisons, and I thought all of that was really good. But I also can’t help but look at the glass half empty side as well, [0:28:00] to echo those comments, and the biggest thing to me that I want to do and can offer to work with the subcommittee on, because it’s something that I feel is important for us to do anyway from my shop, is we want to do guidance that specifically lays out the duties not just of FOIA Public Liaison, but also of the FOIA requester service center, because there’s really two separate -- the whole idea behind that was that there’s two levels, and two different sort of buckets of people and responsibility. So we have thought that it made sense to actually lay out the responsibilities of both those positions in guidance, and then hold some targeted training specifically on, kind of in conjunction with the launch of the guidance, have a big training on here’s the kind of things that both those sets of people should do, so that there are then resources for people [0:29:00] to look at and go to, and we get better uniformity in terms of those positions. So I offer myself to the Committee for that piece of it.
ZAID: For one thing, Marty, if you want to sue on those two requests you weren’t satisfied with, I’m available for consultation.
MICHALOSKY: That’s water under the bridge.
ZAID: We had 90 out of 100 respond -- 90 percent is very impressive. But I remember saying at an earlier meeting that I’m going to be more interested in the fact of who doesn’t respond, and the fact that 10 percent, 10, did not respond to a request from the Federal Advisory Committee makes me question as to how responsive they are to the public when they’re asked. I didn’t look at my own raw data, so I presume we can identify [0:30:00] which of the 10 did not respond, and I would suggest for either OGIS and/or OIP to reach out to those 10 and ask why did you not respond. Did you not receive it? Were you too busy? Were you out sick? Were you on leave? Or you just didn’t care? Because maybe that person should not be in the Public Liaison role. There could be a completely legitimate reason. Marty, how long -- I don’t remember how many times did we send it to them, and how long did they have it?
MICHALOSKY: I think we initially sent it once, I think it was open for 30 days, and Christa, you can correct me if I’m wrong, but I think it was open for 30 days, and then I believe you sent a reminder saying, Hey, it’s going to close in a week or something, get your input in.
PUSTAY: They were voluntary, though, right?
ZAID: No, of course.
PUSTAY: So, I mean, in a way it’s kind of hard to --
MICHALOSKY: I mean, I was satisfied --
PUSTAY: -- say it was a voluntary survey, but now we’re kind of putting the hammer down because you didn’t voluntarily respond. [0:31:00] That sort of seems incongruous to me.
ZAID: I recognize that. It certainly wasn’t mandatory, but it’s sort of symptomatic of a potential problem. I wouldn’t say you have to punish them, but I’d be curious to know, why didn’t you respond?
PUSTAY: A way that I looked at this piece, not that specific piece but sort of just the general -- the fact that we have some agencies saying that they don’t publicize the fact that they have a FOIA Public Liaison, like you said, that should be 100 percent. So what I was thinking, in terms of addressing things like that, was that that could be something that we could include as part of a question to be answered by the agency officially in their Chief FOIA Officer report. See, I can do that as an actual official, mandatory thing that the agency responds on. Now, we’ve already done our guidance for 2016 reports, but I can put this -- that would be something that I could do for 2017, is have maybe a series [0:32:00] of questions on things like that, like do you publicize, give us the link. See, we can do a lot of things like that in those Chief FOIA Officer reports that will kind of really bring home the need to do things like publicize these things. So that’s another -- that would be my approach to that.
GOTTESMAN: I can speak to one agency (inaudible), which is EPA, because we went through a revolving hat on Public Liaisons. As of, I guess, a couple of days, I am now the Public Liaison, but we went through a revolving door, so to speak, and at the time the survey came in there wasn’t anybody. People left, people came, and so that’s why we didn’t respond. We didn’t have one for about a six-week period. Not that people didn’t call asking questions, but we just didn’t have a -- because our website gives you a generic number to call, so we make sure whoever the person is, they can answer. So there’s one you can knock off for that reason.
PRITZKER: All right, [0:33:00] I’ll knock of another one.
ZAID: I’m sure you responded, David, because you’re the Public Liaison, right, for your agency as well.
PRITZKER: Yes, but I’m one of the 10. I did not respond to the survey, and here’s why. Here’s why. I was afraid that it would -- given the numbers, what I would say about our very small agency and very small FOIA operation would skew the results, and I didn’t want to do that. So, for example, there’s a question here about, Are you in contact with your attorneys? Well, the two of us are our attorneys. How often do people -- how often do FOIA requesters contact you? I don’t think anyone has ever contacted me, because -- or at least and said so -- because I’m the FOIA Public Liaison. They send us requests, we deal with them, on occasion we contact them to work out how to [0:34:00] -- how best to respond to them. So that’s what I had in mind when I said that I was afraid that it might skew the results to put in zeros and never and that sort of thing. And besides, I kind of figured that I’d have some input.
MICHALOSKY: So there’s 2 out of 10, so now you’re down to 8.
FEMALE: I think he’s getting (inaudible).
PRITZKER: There may be other small --
ZAID: There could be completely legitimate reasons. But even if we identified one agency that did not have a legitimate reason and we fixed it, that’s positive.
MICHALOSKY: I just hope that we have the same response from the requester side. I hope that we have 90 people that submit comments. So publicize it as much as possible. [0:35:00]
PRITZKER: I don’t want to sound like a broken record, though maybe I do, on the subject of the ACUS work in this area, but in addition to our report that Marty mentioned, there was our set of recommendations, some of which do address improving the functioning of the Public Liaisons. So you might find -- you might want to repeat some of the things we suggested there. For example, we talked about training, we talked about agency support for Public Liaisons at high level, and some other points as well. It might be worth incorporating that into what this Committee recommends.
PUSTAY: I thought just one other comment about the survey results that I thought was striking was when you look at that -- the reasons why people contact the liaison, the subject matter reasons, the substantive reasons, question 11 -- or no, it’s not question 11, where is it? [0:36:00] Is that it? Yeah, it is 11, sorry. It is 11. Where you look at the big numbers of -- like the topic 27 under “often,” it was delays. Processing was 22, status was 27. So the big numbers for -- that fall under the “often” category were really all connected to really like status or what does it take to process a request, why is it taking so long. So that also, that struck me as something that maybe there’s something there for agencies, for their websites, to maybe have more explanatory information about how long a request will take, what requesters can do to make their request go faster, some things maybe proactively, like maybe to talk about the Proactive Disclosure Committee, that might be something -- a proactive addition to a website to address those questions, to cut down on the need to call a liaison. [0:37:00] Just trying to put all these pieces together.
That just was very striking to me, that that’s what people aren’t asking about some of these other sort of more down and dirty of FOIA. They’re really asking more practically, like "when am I going to get my records?"
HOGAN: I’ve been a Public Liaison since it started, and (inaudible) Secretary of Defense and some other agencies in the DOD, and I would say those three are the primary reasons. And many times I’ll say, Have you talked to your Action Officer? Do you know who that person is? They say, "Yes, here’s the name and number, but I decided to call you instead of the Action Officer." And that’s just part of the education. I’ll say, "Well, the law specifically says you come to me when you’re not happy." And so I encourage -- and the requesters, like I encourage them to go back to the Action Officer and get that communication going. Now, if I find out that they don’t know who it is, then that’s a different issue and we’ll deal with that accordingly. But I try to get them talking with the action Officer. It’s easier (inaudible). But I’d say a large percentage of my time is just getting the two together, and then I just back off and they’re happy. [0:38:00]
HOLZER: All right. No further comments on this? OK, so now you guys are going to get that part where next steps, all right? So as you’re aware, this Committee was one of the flagship initiatives of the second U.S. Open Government National Action Plan. The purpose of our Committee is to develop recommendations for improving FOIA administration and proactive disclosures. The Committee serves as a deliberative body to advise on improvements to the administration of FOIA. At this time, I’d like to discuss the administrative meeting that we held on September 9, when some of us met to discuss logistical and administrative issues, and the Committee’s two-year Charter, which expires in May of 2016.
We need to consider the results of our study during the past year and a half and be prepared to provide the Archivist with a final product. During our administrative meeting in [0:39:00] September, we discussed that the subcommittee may produce work products. Once the subcommittee produces work products, then we may use them to write a white paper, recommend legislative action, policy changes, or executive action, among other matters. So at this time, I’d like to invite the full Committee to explore what we as a Committee would like to produce before our Charter expires. I turn it over to you guys.
I recommend a list of recommendations to the Archivist. And you look pained.
HOLZER: I guess what I want from you guys is, what does that list look like, or what is the final product? I can kind of lay out my thoughts on it if that’s helpful, but I don’t necessarily want to steer you in that direction. I do think that what we’re starting to see come out of the subcommittees, [0:40:00] it’s very helpful, and that the recommendations that we make, they need to be substantive in such a way that the Archivist understands why we’re making the recommendations. I think that David, you brought up kind of some good points when you were saying, you know, if we just make this recommendation, it’s just standing out there, that may not be necessarily helpful for us as a whole.
JONES: I’d just quickly caution on another board that (inaudible) that a Public Interest Declassification Board did 10 recommendations, and I think none of them, three years later, I believe, have been come up on. So I think if we tailor our recommendations that they actually happen, is what we need to do. Because it doesn’t do anybody any good to make a bunch of pie-in-the-sky recommendations.
GOTTESMAN: I’ve been on a few agencies, and what always seemed to work well is to come up with recommendations and then supporting documentation (inaudible) the recommendations. What is a challenge? What are we trying to address? And [0:41:00] what’s a recommendation? So, the Archivist has more than update the 1987 fee guidance, but here’s the challenge, here’s the issue, and here’s a way to potentially resolve it. That seems to work well, at least internally within EPA.
ZAID: The first thing, though, we have to decide is are we ending in May or are we going to ask for an extension of time of whatever period of time that is? If we’re ending in May and disbanding, then we have to decide how -- what do we want to propose by then and in what format. But if we know we’re going to extend beyond that time, then we can look at well, are we going to make an interim report? Issue some sort of interim report by that time, with a full report or recommendations by whatever date we’ve been extended? So I think before we kind of put the cart before the horse, I’d like to have a better sense of what our [0:42:00] lifespan is going to be.
BARBER: I think our lifespan depends on people who are members of subcommittees actually doing, actually fulfilling their commitments, so that if we have next steps, if we have work products within our subcommittees, if we have meetings and people aren’t attending, and people are not contributing, that is going to be a big clue as to whether or not this Committee survives past May, in my opinion.
PRITZKER: I haven’t looked at the Charter in a while, but are we restricted to making recommendations to the Archivist? We were talking an hour ago about making a recommendation to OMB. When we read the poll results here of the FOIA Public Liaisons, that suggests that maybe we ought to be telling agencies to have their -- to either do something differently with their [0:43:00] Public Liaisons or get them to have more training or inform them as to whatever. Somebody was pointing out before that some percent of the Public Liaisons who responded don’t even know what their regulations say. So I’d want to check as to whether we have any restrictions on whom we can issue recommendations to.
BARBER: I think the Charter says we issue recommendations to the Archivist.
PRITZKER: Solely to the Archivist?
PRITZKER: So how does that fit with what we were talking about with recommendations to OMB? Are we telling the Archivist, you should recommend it?
BARBER: The recommendation would go to the -- the recommendation will go to the Archivist for his consideration, and then --
BARBER: Yes. And then --
PRITZKER: But --
BARBER: Then based on his network of people, whether or not he would push that through to OMB.
MALE: So that’s part of the consideration, right?
PRITZKER: I’m trying [0:44:00] to understand now, to whom is the language in the recommendation we talked about an hour ago addressed?
BARBER: It would go to the Archivist.
PRITZKER: So that would be worded as the Archivist should recommend to OMB to do the following?
MALE: And that’s consistent with the Charter.
PRITZKER: Just a bit convoluted. I believe in plain language whenever possible. [Laughter]
HOLZER: So, did we address the first part of that?
BARBER: About the recommendations to the Archivist?
HOLZER: Well, I think to Mark’s larger point about whether or not this Committee would go forward, I guess that kind of forms the basis of the recommendations that we might be interested in making?
PUSTAY: My sense would be that since the Archives [0:45:00] created the Committee, the Archivist, I guess, or the Archives created the Committee, that it would be -- it’s hard to say, well, we don’t really -- I think it might be more persuasive to make an argument to continue the Advisory Committee if we had some outcome from this first term. So maybe -- because right now it seems premature to know whether or not the Archivist would want to do this for another two years. But it seems like we could say, Here’s what we’ve done thus far, here’s the things we would like to do if we continued forward. We have lots of great ideas, here’s our 10 things we want to do, but here’s what we’ve done now. Something like that.
LEMELIN: And that could be a recommendation that the Archivist renew the Charter and, you know, let’s renew it, here’s why you need to renew it, and then set out your reasons. Good point, Melanie.
GOTTESMAN: If you’re going to renew the Charter, if that’s the desire of the Archivist, I think he can’t wait [0:46:00] till May of 2016 to recommend that the Charter be renewed, because -- you’re an expert more than I am, but a Charter is going to take a while to get through the process, like anything else in government, so that would need to be a decision the Archivist needs to make probably early on in the game, probably by January of next year.
LEMELIN: The Archivist is aware of the situation and we’ve discussed it with him. Our office of general counsel is aware of the situation, and we will follow up as necessary. I don’t know if that answers your question, but we’ll definitely -- he’s aware, we’re chatting about it, to be continued.
ZAID: I agree, Melanie, and I certainly wasn’t suggesting we shouldn’t have something by the termination of our natural life. I think it would be very prudent for us to put something forward by then, and then identify what else [0:47:00] we would like to do. And I think -- and I totally agree with what Larry is saying. I mean, I don’t think we should wait until we put out the report and then ask to be renewed or extended. We’re at an interesting point in time that we have -- here we’re making these recommendations to the Archivist to do whatever they might ask him to do, or suggest that he do, at the tail end of this administration, and we know there’s another administration coming in for sure. We don’t know who, obviously.
But somebody had mentioned earlier, I forget who it was, about the notion that there’s a lot of always tinkering in the very beginning of the new administration -- was it you, Delores, I think? -- tinkering with FOIA at the beginning of the new administration, so I do see a value for us extending our tenure, one, to follow up on what Nate’s talking about, so that our recommendations might not just be [0:48:00] that, and that they sit. So that we can -- we have an impact, hopefully, on the end of the Obama Administration, and then, perhaps more importantly, an impact on whoever the new administration’s coming in, to say, Look, here’s what we’ve recommended, and maybe they’ve adopted it and maybe you haven’t, and if you haven’t, we have another year or two, whatever it would be, to say -- to ask why. Look, we’ve seen another two years of Public Liaison issues, maybe we fixed some of the issues that have identified from this raw data, which would be something that would be absolutely fantastic.
And it might not be the same -- maybe we’re not going to have the same people, maybe some people don’t want to be on the advisory board for another one year or two years, that’s individual. But I’m -- it’s difficult, as I’m sure all of us have seen, even with a lifespan of two years to juggle everything, and you don’t get to do everything that you wanted to do. But I’m pretty confident we’ll have [0:49:00] a good product and something helpful to the Archivist, at least, but I’m sure we’re going to be able to take it a bit further.
JONES: Just logistically, would it be possible to make any kind of decision before the next in-person meeting? Is it possible to -- I mean, for the subcommittees to report back before the next meeting, saying here’s the deliverable we want to do for the next meeting, or do we need to do it right now? That’s the practical question.
ZAID: (inaudible) ask if we want, as a Committee, recommend that our life be extended.
JONES: Right, yup.
LEMELIN: We’ll follow up on it and we’ll get back to you.
JONES: So if the answer is no, we’re going to be in trouble.
ZAID: Well, I think, but we already had discussion, or someone had, with Gary Stern [Gary M. Stern - NARA General Counsel] that we can ask for -- it’s not an issue about asking the Archivist, or whoever, I don’t know who actually -- does the Archivist [0:50:00] make that decision, sole rights in his authority? So I guess, I mean, the question really is for the Committee, is that something we want? And when would we ask the Committee, ourselves, to vote on whether we’re sitting here right now and you do an informal straw poll? Or you do it electronically, or we do it for the next meeting in January.
HOLZER: The only thing I would say is, as far as I understand it, I mean, this Committee was created from the National Action Plan, and you could correct me if I’m wrong, you guys have the historical knowledge on this more than I do, and that it contemplated a two-year kind of commitment from the Archives. It’s not necessarily the case if the Archivist decided to not house it here, that it couldn’t be picked up from another agency, OIP, or whether it does stay here. I think that it makes sense where it’s at, if it’s the Committee’s will for us to go forward and [0:51:00] to seek the Archivist to extend this Charter, I think that’s something that we could do. But I think Delores has a valid point. Everybody here is really busy, it is a huge time commitment on our part, so if this is something that we as a Committee feel inclined to do, then I would just hope that those that are seeking the extension would commit to participating actively.
PUSTAY: I feel like -- I just keep feeling like it’s just maybe even one meeting premature, because this meeting has been so productive, I thought in terms of like we already know like a recommendation from the Fee subcommittee, the other two subcommittees are much closer now to building on something. It just feels to me like once we say, OK, here’s all the -- here’s kind of what the Committee wants to do going forward, here’s our recommendations, here’s our plan, like when we have that, it will [0:52:00] help know what else we need to do. Or what the best format is for going on.
HOLZER: I can make the commitment to meet with the Archivist and have a discussion with him, and to meet with NGC [NARA Office of General Counsel], and to figure out what the timelines look like, so that if there is an issue where we could not get it extended in time, then maybe we would just have to have -- call a meeting sooner rather than later? Was that -- is that something that you guys would be interested in pursuing?
BARBER: Yeah, that would (inaudible).
HOLZER: I mean, I think Melanie’s right, I think January would be fine, but I can meet with the Archivist in the next couple of weeks and find out where we’re headed.
JONES: So, just to (inaudible) clarification. We have a meeting in January, and then one more meeting, is that correct?
LEMELIN: Yes, in April.
PRITZKER: Is there anything in our Charter that [0:53:00] restricts us from calling an additional meeting?
PRITZKER: All you have to do is put a notice in the Federal Register.
HOLZER: Yeah, and that’s kind of my point. If we need to do one sooner to bring up this issue, we can do that.
MOULTON: This is Sean Moulton with Project and Government Oversight. I think Melanie’s right, I think we’re making a lot of progress and it’s exciting, and in some areas I think we’re going to have something to deliver. I do worry that -- you know, we’re still collecting a lot of information. We’re doing the public -- we don’t know what’s going to come of that, and I’m not sure that that part’s going to be fully baked with just two meetings to go. And so, I think we’re going to have something, and it’s going to be helpful and substantive, and yet I’m almost -- I feel almost certain, even now, to say that we want more time to finish up some of the work that we’re working on right now.
HOLZER: The sense that I get [0:54:00] is that there are some really solid recommendations that can be made, especially around the OMB guidance, the fee issue. I think the Public Liaison is a really good area that we could target. I don’t want to presuppose what that would look like, but I mean, Melanie’s already talked about training, about collecting data. We could come up with some really good recommendations on that right away. And then I think that everyone has kind of outlined these other ideas of future studies, right? We want to go look at GSA, we want to talk to FDA, and that’s where we make the case to the Archivist that there’s still places for us to go look at and improvements to be made to the process and the system. But I definitely think we need to have something to kind of culminate this project and say where we’re headed. A road map, if you will, of where we want to go.
BARBER: I think that seems good.
HOLZER: So we’re really going to rely, then, on the next meeting in January that the subcommittees will have some type of product that we could then combine into a [0:55:00] larger report at the end, with some type of recommendations to the Archivist.
HOLZER: Does that sound good?
BARBER: Yes sir.
HOLZER: Good plan of action? We’re in agreement? OK. All of you have been really busy on this Committee, and I thank you for these thorough reports that we received today and for your efforts thus far. Again, at the same time I remind you that much work is to be done. So, as discussed, we need to consider how each subcommittee -- did I already say all this? No. As each subcommittee is going to give us their findings, and then we’ll give a final report to the Archivist. And, as always, please reach out to Christa or myself if there’s anything that we can help with.
So now we’re going to turn it to the folks in the room. Thank you for joining us today, and we’re eager to hear from you as well. So we will take your comments [0:56:00] and questions for the next 20 minutes. I’ll invite those of you with questions or comments to approach the microphone. For the record, please state your name and your organization, if appropriate. Do we have any comments today?
RAVNITZKY: Hello, thank you for providing an opportunity for public comment. My name is Michael Ravnitzky, and I’m speaking on my own behalf, and I appreciated hearing the Committee discuss some big-picture issues that are very important, but I’d like to comment and provide some input on a more detailed matter that is nevertheless affecting a lot of requesters, and I’m hearing stories about this more frequently from people with some great frustration, so I thought I’d share it. But I think the issue is a little more nuanced than might be perceived at first glance.
As you know, there’s an increasing use of [0:57:00] electronic transmission of documents. It’s gone from a very small percentage a few years ago to an overwhelming percentage now, I’d guess 80-something percent of all document requests are probably satisfied electronically. And in some cases, in many cases the documents are PDFs [Portable Document Files], they’re Excel files, they’re Microsoft Word documents, and other things, and those documents have the capacity to be either password protected or locked. Those are two very different problems, but what’s happening is that the requesters are receiving documents that are locked. That means that sometimes they can’t be printed, sometimes they can’t be taken apart and particular pages used, they can’t be posted sometimes on the internet. There’s a lot of difficulties in working with them, and while those difficulties can be overcome with some care, it degrades the images, it makes the documents less useful, and in some cases not useful for the purposes that they were requested. [0:58:00]
Those files, under the Electronic Freedom of Information Act amendments, they’re supposed to be able to be released in their native format, and I may be paraphrasing a bit, if that’s practicable and if it doesn’t cause any exemption problems. And in these cases, there are no exemption problems. Now, I’m going to distinguish this, the FOIA requests, from cases in which they were first-party requests and about personal information and Privacy Act requests, where there may be legitimate reasons for securing the file before it’s transmitted so that it’s not tampered with or otherwise -- there may be standard operating procedures involved. I’m talking about regular FOIA requests that are meant to be released to the entire public.
So, as I said, this is occurring more and more frequently, I’m hearing about it from people, and it’s causing some frustration, but why is it occurring? From the agency perspective -- I thought about this a little bit, because people have ascribed all sorts of, as you know, sort of malicious intent to this, [0:59:00] and I don’t think that’s the case at all. I think that the agencies have legitimate reasons or practices that lead to this. First of all, they have a need for version control and document control, and that’s becoming more prevalent as records procedures become spread through agencies and they become more familiar with those requirements.
The Chief Information Officer at many agencies has guidelines they’ve established for handling material that’s sent out of the agency by email, and a lot of times it’s required to be put in certain formats. There’s a perception among some people that improper modification of files could occur, making documents appear to say one thing when they really didn’t. And there’s also practices in transmitting documents that particular types of information need to be protected against misuse. But mostly I think it’s the standard operating procedures of the agency and a standardization [1:00:00] of sending documents outside, and that’s looped in somehow the FOIA process, and because it occurs with all documents, not just the ones that need special protection, but people are told in the agencies when they’re trained to send documents out, you must do this and this and this when you send the documents out. And because it’s applied to everything, it causes these problems.
Now, from a requester standpoint, that causes some difficulties. First of all, there’s an impediment to their use, and I think I described that before. There’s barriers to use which are disfavored under the law. It sends the wrong message to requesters. And the work-arounds reduce the utility of the records received, and it blocks effective use of the records. But ultimately I think it’s inconsistent with the intent of the law.
Now, when questioned, most agencies decline to supply an unlocked file. If you go back to the agency, I’m told that the agencies say, "We don’t have to" -- some do, but most say, "We don’t have to supply an unlocked file, there’s no requirement." You get what you get. And there’s no good answer to that, because I don’t [1:01:00] think there’s litigation on the subject, I don’t think there’s any case law. I may be wrong, but I suspect that this hasn’t been really addressed. And because there’s the perception out there among agency staff that they don’t really need to supply unlocked files and that these things that are done to electronic files don’t affect their releasability and their use, whereas the requesters have a completely different perception of this. They think it’s just harassment or imposing problems.
So what can the Committee do? I’d like to ask the Committee to consider studying this issue, or looking at the issue, because as I indicated, there are good discussion points on both sides and policy reasons why this may occur, and perhaps recommend that either DOJ or perhaps even OGIS -- either DOJ consider issuing guidance on the subject, to provide some general guidance to agencies based on the results of the examination, or maybe OGIS can consider looking into it as well. [1:02:00] That was my comment. Thank you very much.
HOLZER: Any other comments? Is this an issue that we can take up? Can we fold it into one of the subcommittees?
LEMELIN: Can the Fee Committee take it on?
HOLZER: I’m just trying to think --
GOTTESMAN: To me, it sounds maybe like some type of general guidance that goes out. I mean, not to put OIP there or something, but I’m not sure about -- with us [EPA], I mean -- I share your frustration, I mean, even internally whenever we collect documents, we occasionally get locked documents to the FOIA office. And you’re right, it is a procedural issue. Whenever we inquired about it, it was like, "Well, we do all these this way." [1:03:00] And said, "well, we can’t unlock it," and then if we do get it unlocked, we can’t provide that to the requester like that. So, I mean, I know we face that issue, but I’m not sure that that’s really a Committee role versus just a general -- I mean, if we can find a place maybe to wrap it into one of our recommendations, like as a tagline, but --
HOLZER: I think it’s something that it’s worth looking at. It’s a struggle that I faced at another unnamed agency. Just because of some the guidance that we had in place, you couldn’t send anything out unless it was locked, password protected. And a lot of that’s just the transmission of PII [Personally Identifiable Information] as it leaves the agency and what our responsibility is to protect it. But I think it is something that we should look at later on.
MOULTON: It might be something we can at least touch on, and I’m not sure exactly the proactive disclosure. It’s not proactive, since it’s a response, but there’s [1:04:00] an aspect of technology that we’re going to look at, and so we might be able to at least open the door on this, saying "When you’re disclosing this proactively, make sure not to lock it," or at least address it in some way and then that opens a door in terms of the responses as well.
HOLZER: We might be able to find best practices around this, because what we see on systems like FOIA online, where the records are uploaded, the requirement to password protect them isn’t necessarily there, because you already have the authentification done when the password -- when you log in. So they’re downloading the records, as opposed to transmitting them across the web.
PUSTAY: I mean, the -- it’s a really interesting topic, it does seem to me like we would need to do -- like we would have to have our own subcommittee to look into it, because it’s not really an actual FOIA issue. It impacts FOIA, but we have guidance now, obviously post OMB breach, [1:05:00] we have guidance from OMB about making sure that we do properly encrypt first-party requests, which I know you were excluding from your comments. But we have now an affirmative obligation to encrypt those so that we’re not indirectly putting anyone’s information at risk. But the whole security of email transmissions is really, I don’t know if it’s like the, like you mentioned, OCIO [Office of the Chief Information Officer] offices. I mean, I think we would have to really delve into like who sets the standards on those kinds of things. I think there’d be a lot of research that would need to be done before we could address it.
BARBER: It is a very big issue, and it’s something that comes up all the time at DHS, because we get a lot of first-party requests. But it is an emerging IT issue, this area of encryption, and the duplication and e-discovery. And so it’s a [1:06:00] big enough topic that it could require its own subcommittee. And Melanie is right, it’s outside of -- it doesn’t just affect FOIA. There’s a lot of different aspects, but there are companies, in fact the Department of Defense sent out an RFQ [Request for Quote], or a request for information, recently asking for companies to submit their capabilities to go through and de-dupe encrypted emails at the petabyte level. And they received no response, because it is an emerging issue. Encrypted emails, de-duping it, responding to email requests. And so as time goes on, not only will it be a FOIA issue, records management, but IT in and of itself.
PUSTAY: And let me just say, too, I think -- I mean, I think it’s a really interesting issue, because obviously [1:07:00] we don’t want the security concerns to trump FOIA access and diminish the usability here. We’ve been trying to push agencies to release records electronically. So on the one hand, I’m happy when you say 80 percent of the responses are going electronically, that’s what we want. But then if they’re encrypted in a difficult way, then that’s undercutting that. So I mean, I think FOIA needs to be a piece of it, it’s just that it’s clearly a bigger issue than FOIA.
RAVNITZKY: If I may just add this one comment. A lot of the releases are on CD-ROMs, they’re not necessarily emails, so it’s not exclusively an email issue. And I think it’s more a matter of not telling everyone what to do, it’s more a matter of leaving the door open so that if a requester asks to have an unlocked file and there’s no policy reason or no specific reason why an agency would need to keep it locked, then they can give it to the requester. That’s a very simple thing, and that’s not [1:08:00] -- that’s not a large-scale study project, that is simply the right of the requester to receive an unlocked file in the cases where there’s no reason, no definable or articulable reason why it needs to be locked up or password protected.
HOLZER: Mike, I think what you would find, and I don’t want to speak on behalf of the agencies, but in my experience, what you’re going to find is that it’s an IT security policy. So anything coming off of the computers are going to be locked automatically, and there’s no way around it. They’ve locked down the USBs, they’ve locked down the drives, post Snowden, and so they’ve implemented these policies, in order to get the information out, it has to be password protected. I saw that at my previous agency. We struggled for months to get an exception, to get a waiver, to get it to burn, just to make CDs. But in order to do it, it comes now encrypted. I know that there’s other agencies, I’ve been seeing the tweets about them, there’s one nameless one, that’s how they do everything, through the CDs. I know CIS [U.S. Citizenship and Immigration Services] does CDs that are encrypted as well. [1:09:00]
RAVNITZKY: OK, thank you.
HOLZER: My point is that I think that it’s probably fairly easy to say that if you look at it, it’s going to be IT again. But this is something that I think we could engage on.
GOTTESMAN: To kind of piggyback on that, I mean, I would say a vast majority of the laptops at our agencies don’t even have CD-ROMs anymore. A lot of things have changed with the breaches and so forth, and unfortunately the collateral damage is FOIA and other things going out of agencies. But it is something that needs to be corrected or worked around or a waiver, something like that.
HOLZER: So we’ll table that for further discussion, maybe we could pick that up if we go forward. Anyone else? Any other comments? OK. So, as you’ve heard, this Committee has already been very active in seeking out ways to improve FOIA through the efforts of the three subcommittees that are under way. At our next meeting, we look forward to receiving the subcommittees’ work products or written reports. [1:10:00] We invite everyone to visit our website and social media for more information about our activities and how you can participate. One final thing to note is that all of you in this room will undergo the National Archives exit screening procedures to leave the building, so for security procedures, all individuals’ bags are checked to ensure that no archives holdings are removed from the building. Thank you again for coming, and we will see you at our next meeting in January. We stand adjourned.