Office of Government Information Services (OGIS)

October 21, 2014 Meeting Transcript

National Archives and Records Administration (NARA)
Freedom of Information Act (FOIA) Advisory Committee Meeting
October 21, 2014
10 am – 1 pm

The Advisory Committee met in The Archivist's Reception Room, Room 105, in the National Archives Building at 700 Pennsylvania Avenue, N.W. Washington, DC 20408-0001.

COMMITTEE MEMBERS PRESENT

  • MIRIAM NISBET, CHAIR
  • ANDREW BECKER
  • KAREN FINNEGAN
  • ERIC GILLESPIE
  • LARRY GOTTESMAN
  • JAMES HOGAN
  • NATE JONES
  • GINGER MCCALL
  • MARTIN MICHALOSKY
  • MAGGIE MULVIHILL
  • MELANIE A. PUSTAY
  • DAVID S. REED
  • ANNE WEISMANN
  • LEE WHITE
  • MARK S. ZAID

COMMITTEE MEMBERS PRESENT BY PHONE

  • DAVE BAHR
  • CLAY JOHNSON

NON-COMMITTEE MEMBERS PRESENT *

  • DAVID S. FERRIERO, NARA
  • MICHAEL BINDER, UNITED STATES AIR FORCE (USAF)
  • NIKKI GRAMIAN, NARA
  • CHRISTA LEMELIN, NARA
  • CARRIE MCGUIRE, NARA
  • KEL MCCLANAHAN, NATIONAL SECURITY COUNSELORS
  • KIRSTEN MITCHELL, NARA
  • DAVID PRITZKER, ADMINISTRATIVE CONFERENCE OF THE UNITED STATES (ACUS)
  • ROBIN ROSS, NARA
  • ANGEL SIMMONS, NARA

* ONLY INCLUDES THOSE INDIVIDUALS PRESENT AND QUOTED OR MENTIONED IN THE TRANSCRIPTS

FERRIERO: Good morning. I’m David Ferriero, the Archivist of the United States and it’s a pleasure to welcome you to my house this morning. And I’m sorry I wasn’t here for your very first meeting, but welcome to the second meeting on the FOIA Advisory Committee. The momentum behind government openness and transparency is growing around the globe and it’s an exciting time to be a part of the international conversation. And efforts like the Open Government Partnership have provided a platform for leaders from around the world to share ideas and declare commitments to transparency and accountability. And at the United Nations last month President Obama spoke about the importance of the open government movement and he made reference to the work of this committee, citing efforts to modernize FOIA so that it’s easier for American citizens to use FOIA.

As the nation’s record keeper NARA is grateful to the President for acknowledging the importance of FOIA as a cornerstone of democracy and for acknowledging the work of the committee as well as the work of our colleagues at the Justice Department and elsewhere as we take a look at the original open government law. I also want to take this opportunity to acknowledge OGIS director Miriam Nisbet on this, the last occasion which she will be chairing the FOIA Advisory Committee, as she retires from federal service at the end of November. Miriam joined the Justice Department a few years after FOIA was passed and has spent her career working toward government openness through positions inside and outside of government. We and all Americans owe Miriam a debt of gratitude for the work she has done in just five short years. You will be missed and rest assured that the work that you have done sets the framework for American citizens to be reaping the benefits of your work for many years to come. Thank you, Miriam. Have a good meeting.

NISBET: Thank you so much. The archivist was not able to be with us in June at our inaugural meeting because he was testifying in Congress and thought it prudent to accept the invitation of the House Committee on Oversight, Government and Reform, but we’re delighted to have him here today. So good morning, everyone. We really are so glad to have everyone with us today. Before I get too much further I do want to be sure we do have -- we’re going to go through introductions, we’re going to go over the agenda, but we do have two of our committee members on the telephone and I want to just check and see if we have them, can they hear us, and can we hear them.

BAHR: Yeah, we can hear you fine.

JOHNSON: Yeah, loud and clear.

NISBET: So good morning, Dave and Clay.

BAHR: Good morning.

JOHNSON: Good morning.

NISBET: All right, so we’ll do introductions in just a moment, gentlemen, if you’ll stick with us for a moment. I appreciate everybody being here and particularly the work that the committee has already been doing through three subcommittees to dig into three priority areas that we identified at our meeting in June. I know everyone joins me in thanking the archives for being the host agency for the committee and it is, as you know, a very appropriate place for us to be sitting considering the mission of the archives to provide access to government information and to preserve our nation’s records which are the backbone of good government and certainly the Freedom of Information Act.

I rejoined the National Archives five years ago, I’d been here in the 1990s, to launch the Office of Government Information Services. As David said, the office envisioned by Congress to serve as the federal FOIA ombudsman providing mediation services for the first time to resolve FOIA disputes and reviewing FOIA policies, procedures and compliance across the government. Like this committee, OGIS is also charged with making recommendations to improve FOIA administration. Many of you in this room have been an invaluable part of our team’s achievements over these past five years and I want to thank you for that. I know that the archives is hard at work on finding a successor for the director position and I look forward to working with that person to keep the momentum going.

Now, I’d like to move into introductions of our members around the table and also on the telephone. Just a couple of notes from our last meeting. Michele [Meeks] is no longer a part of the committee because she changed positions within her agency and as a replacement the archivist has appointed Brent Evitt who is the deputy general counsel for mission services, science and technology with the Defense Intelligence Agency, its office of general counsel. Welcome Brent, glad to have you.

EVITT: Very much appreciate it.

NISBET: Just a reminder for everyone, all of the members’ bios are on the committee’s web page at www.ogis.archives.gov and also listed on the handout agenda for today’s meeting. We are live streaming this event on YouTube this morning. We were not able to do that the first time, but we are moving into that mode now and we’re also videotaping and we will be making a transcript. So it will help enormously if you would just remember to identify yourselves when you speak and give your affiliation, and that will help us, that will help the videographers, it will help us when we’re doing the minutes. One of our committee members, government members, Delores Barber of the Department of Homeland Security, could not be here today because of a previous commitment. She sends her regrets and looks forward to seeing you at the next meeting on January 27, 2015.

So let us start with the two members who are on the telephone. I know we’ve heard you but we are going to ask each of you to introduce yourselves, remind us what you do in your day job, and I’m going to say for everybody ideally we would love to have you explain more about how you got here and why are you on the committee. But I think your views and your experience are going to come through in our deliberations so we will save that. OK, on the telephone.

JOHNSON: Hi, I’m Clay Johnson. I’m the CEO of the Department of Better Technology. We are a company that works on modernizing government through hopefully streamlining the procurement process. I’m a former presidential innovation fellow who worked on the RFP team. Prior to that I was the director of Sunlight Labs and have been working on government transparency for a very long time.

NISBET: Thank you, Clay.

BAHR: This is Dave Bahr out here in Eugene, Oregon and I represent FOIA requesters (inaudible) all around the country as they attempt to get information from federal agencies. And that is, I suppose, my statutory position on this committee is to represent the interests of the requester community. I hope to appear in person one of these times at these meetings as opposed to by phone and I look forward to when that might occur. I also want to just pass along that I’m watching the streaming video on YouTube and there is no audio for that. I’m not sure if that’s just a matter of a switch that needs to be flipped, but it’s a silent video image at this point.

NISBET: Thank you, Dave, and I believe that Christa Lemelin, who is our designated federal officer whom all of you have been in contact with, has just left the room to go and see if she can rectify that situation.

BAHR:
All right, thank you.

NISBET: Thank you so much. So that’s Dave and Clay on the telephone. And if we could, let’s start with Mark Zaid who’s all the way to my left and we’ll go around the table. Mark, good morning.

ZAID: Good morning. Thank you, Miriam. Congratulations on your upcoming retirement. That’s what I aspire to. (laughter)  I’m a private practitioner here in DC and also with the James Madison Project and been handling FOIA litigation for over 20 years.

WEISMANN: Good morning. My name is Anne Weismann. I’m chief counsel for Citizens for Responsibility and Ethics in Washington. I am, as many of you know, a very frequent FOIA requester. Prior to that I had many years at the Department of Justice where, among other things, I did handle the defense of FOIA litigation on behalf of agencies.

GOTTESMAN: I’m Larry Gottesman. I’m with the Environmental Protection Agency. I’m the agency’s FOIA officer among other titles.

BECKER: My name is Andrew Becker. I’m a reporter with the Center for Investigative Reporting which is in the San Francisco Bay Area and FOIA is just a daily part of my job.

OLIVER:
Ramona Branch Oliver, the director of the Office of Information Services within the Office of the Solicitor at the Department of Labor.

GILLESPIE: Eric Gillespie. I’m the CEO of a San Francisco based company called Govini and we use data like FOIA data for the private sector.

PUSTAY: I’m Melanie Pustay from the Department of Justice. I’m the director of Office of Information Policy and we’re responsible for encouraging and overseeing agency compliance with the FOIA.

WHITE I’m Lee White, the executive director of the National Coalition for History, and obviously FOIA is pretty important to historians.

MICHALOSKY: Hi, I’m Martin Michalosky. I’m with the Consumer Financial Protection Bureau and I’m their FOIA manager.

REED: I’m David Reed. I work for the Federal Communications Commission where I’ve spent a great deal of time responding to FOIAs.

MULVIHILL Hi, I’m Maggie Mulvihill. I teach data journalism at Boston University and I’m a working reporter. I’m training the next generation of journalists how to use state and federal FOIA effectively and aggressively. And I’m on the reporter’s committee for freedom of the press steering committee where I was a law school intern many years ago.

MCCALL: I’m Ginger McCall. I’m a Freedom of Information Act litigator with the Electronic Privacy Information Center. I also teach a course on the law of open government at Georgetown Law Center.

EVITT: And my name is Brent Evitt. I’m the career FOIA attorney and I work for the Defense Intelligence Agency Office of the General Counsel.

JONES: Nate Jones, National Security Archive, non-government frequent FOIA requester that uses FOIA to get US national security documents declassified and published and analyze them.

FINNEGAN: Hi, I’m Karen Finnegan. I’m with the State Department and I manage a division that develops internal policies and procedures for FOIA and handles FOIA litigation and special document production.

HOGAN: I’m Jim Hogan. I do FOIA policy in the Department of Defense Transparency Office within the Directorate for Oversight and Compliance.

NISBET: Christa, why don’t you introduce yourself and then I’m going to introduce the rest of the OGIS staff.

LEMELIN: I’m Christa. I’m the designated federal officer for this committee and I’m a facilitator at the National Archives and Records Administration’s Office of Government Information Services and I’m very excited to be sitting with the big boys and girls at the big table so (laughter) thank you for letting me be your note taker today.

NISBET: Thank you, Christa. And if I could just quickly point out other members of the OGIS staff who are really the life support for this committee, not to mention OGIS. Nikki [Gramian] is there by the door. On the other side we have Carrie McGuire and Kirsten Mitchell. Robin Ross is still helping us with our registration in the hallway and I would like to introduce our newest staff member, Angel Simmons, who comes to us from the Department of Transportation and she started yesterday. (laughter)  So before we dive into our work I just want to go over a few details about how today’s meeting is going to work and cover some basic expectations and ground rules. OK, before we get to the agenda apparently the audio of the live streaming is not working, so it can’t be fixed, is that correct? Don’t know.

LEMELIN: Still working on it.

NISBET: Working on it. Working to resolve it and we’ll just keep tabs on that.

MALE: The audio is being recorded.

NISBET: The audio is being recorded, it will be available, but for the live streaming right now it’s not working. Thank you. We will do our best.

MALE: Rely on the live tweeters in the room. (laughter)

NISBET: So maybe one of the most important things is we will take a 15 minute break at approximately 11:20, so just keep that in mind. And while no food or drink are allowed in the room except for the bottles of water that the speakers have you will be able to grab something from the café which is two levels down on the basement floor, if you haven’t visited there already, and that’s also where rest rooms are located. Just a reminder, all of the information that the committee members are using today, that they used in past meetings, are available on the Advisory Committee’s website which is within the OGIS web page at ogis.archives.gov. You can find the committee’s charter, biographical information about all the committee members, links to the videos and transcripts, information about meeting dates, and documents related to the work of this committee. We will be meeting up to four times a year. The meetings coming up are listed on today’s agenda and are also on the web page and we have selected Tuesdays of the third week of the month unless that date conflicted with a holiday. So I think they’re pretty consistent.

We’re going to have a few administrative matters and then we’re going to spend the bulk of our time on the subcommittee reports. We will have 90 minutes. We’ll have 30 minutes for each of the subcommittees to report. Remember we have three priority items for which we have three subcommittees. One is FOIA oversight and accountability, one on proactive disclosures and one on FOIA fees. Those subcommittees are free to schedule meetings in addition to these and in fact we know that they have already been working and are going to have some reports for us this morning. This is a committee on the Freedom of Information Act and accordingly we’re wanting our work to be as open and transparent and participatory as possible. We’re really glad to see so many people in the room and we’re looking forward to hearing public comments at the end of the meeting. The last 20 minutes are going to be devoted to that.

I just want to mention one thing that we talked about at the last meeting. We did explore the creation of a Google group to facilitate communication between the committee members and the public. Ultimately after a great deal of exploration and work with our Office of General Counsel as well as GSA we are not moving forward with that at this time. I think we, like many other FACA committees, share some concerns about how to do that and comply with the FACA requirements. The general services administration, which is responsible for implementing the Federal Advisory Committee Act, we understand, is working to clarify the extent to which social media can be used by agencies in compliance with FACA and we look forward to those clarifications which will help us and at any time that we are able to move forward with that we will do so. As I said, we’re looking forward to hearing from you for the non-committee members and we will have time designated at the end for that. One more time a little bit of a reminder, we’re happy to accept comments at any time. We’ve had plenty of comments submitted to us and it’s easy to do so by going to our website. There is a tab for contact us slash submit comments and we know that people know how to find it and we encourage you to do that. You can also email us directly. The address is foia-advisory-committee@nara.gov.

[END OF THE AUDIO FILE]

NISBET: I don’t think I hear any noes or nods. So the certified minutes are approved. Thank you. The next item of administrative matters concerns the draft bylaws. The Federal Advisory Committee Act does direct committees to develop operating procedures to govern Advisory Committee activities and meetings and to specify the relationship among the Advisory Committee members, the designated federal officer and agency staff. We have shared the draft bylaws with the committee and posted the draft on the committee website. Just a note that the bylaws were modeled after the GSA’s examples that were posted online and they reflect the basic intentions for the way the committee will work. They’re fairly brief and straightforward. We have had a few suggested changes that are reflected in the version that’s posted on the website, but I do think there might be some additional discussion that needs to be had and I think we are probably not ready today to vote on the bylaws. Could I ask if there might be a few of the committee members who would be willing to sort of pull together any additional suggestions and put forward a version that the committee can then vote on? We can do it by email, we can do it by teleconference and I think we can dispatch that pretty quickly with a little bit more work. I think we’re probably, as I said, about 98% of the way there. Great. So I’ve got volunteers Ginger, David, Melanie, Larry. Great, that’s four people. Anybody else with a burning desire to work on the bylaws? OK. Then we’re going to put that aside for the moment and I think we’re in pretty good shape on that and we will look to our working group to finish that up for us.

The last thing I’d like to mention in the way of housekeeping is to be sure that everybody has taken a look at, the committee members but also members of the public, our Frequently Asked Questions. We posted those on the committee’s website September the 15th. We worked on those, the committee worked on those in conjunction with our Office of General Counsel, NARA’s Office of General Counsel, which provides great support to the committee. We attempted to answer a number of questions about meetings and about recordkeeping that came up at the June meeting and that have come up also through exchanges of email. The core sources for those frequently asked questions and the answers to those questions come from the GSA rules on FACA from the Office of Government Ethics, opinions, and also from NARA’s General Records Schedule 26. I want to emphasize that NARA, particularly because of our mission of providing records management counsel, advice, guidance, and our role in preserving historically valuable documents, we are trying to make sure in every way that we can that the records of this committee are kept in the most efficient and complete way. And that means as we have requested, and I think everybody is working hard to do this, that we make sure that on our communications that you all are copying Christa who is our designated federal officer and that we’re keeping a good record so that in the future people will know how we worked and what we did and how we came to the conclusions that we did.

Does anybody have any questions or any points they’d like to raise with regard to the FAQs? Let me just add that is a living document. To the extent that additional questions or issues come up we can add to those and we also really hope that those will be a model for other federal Advisory Committees because we think they do a pretty good job of addressing a lot of these sort of day to day concerns. OK, wonderful. We’re going to then go ahead and move to hearing from each of the subcommittees. We’re going to have, as I said, approximately 30 minutes for each subcommittee report including the status of where the work stands, any discussion or brainstorming that they would like to have with the full committee, and we also want to be sure that we leave here today with a clear path forward through the coming months on the topics at hand as directed upon the creation of this committee in the US open government national action plan. Just a nudge. If there is anybody on the committee who hasn’t begun to participate in the subcommittees please do so. This is really where our work is going to get done and we need to have everybody involved in that. So I think as we hear the reports this morning we’re going to have some enthusiastic responses and some additional members from the subcommittees. So I think we are going to start with the subcommittee on FOIA accountability and oversight. Our co-chairs for that are Marty Michalosky and Mark Zaid and I’m going to turn it over to you gentlemen.

MICHALOSKY: Thank you, Miriam. I guess somebody has to lead the way. I was hoping not to go first, and I don’t think we’ll need 30 minutes, but we do have an ambitious, I think, agenda to look at for the next quarter and I’d like to share that with the group. First I want to thank those that have participated in this subcommittee so far. Certainly it takes people to give their opinions and their thoughts and their experiences and background to really craft an agenda on matters of -- or opportunities to improve. Thanks to Mark for his leadership and, most importantly, the opportunity to host us in our first meeting, thanks to Anne, Andrew, Ramona, Ginger, Nate for their participation and their input. It was terrific to have a discussion with colleagues in the FOIA community and agency representation too.

So what we did is we went into the deliberation and the discussion on what are our objectives, what are our goals, and what are things that we want to work on over the next quarter so that we can start with an area that we can [seek?] on what’s been done, what authorities exist, and obviously what are opportunities to improve or model best practices. So after a significant amount of deliberation and discussion we settled on four items that we’re going to work on over the next quarter and each of the members that I just thanked and recognized, each have an opportunity and have taken up at least one of these roles to work on and report back in another meeting in December. And then later of course report in January.

So the first thing that we were going to look at is to identify current authorities for oversight. So what currently exists? This could be GAO, Inspector Generals, OGIS, DOJ, for example. And what actions have been taken or completed over the last 10 years? So these could be, for example, program reviews, audits, reports, inspections, things that those groups that I just mentioned worked on. We’re going to look at that for the last 10 years, we will collect it, we will review it, we will analyze it, and there was a suggestion to post this 10 year review for you to see as well and then for you to look at and review just like we have. One of the purposes for that is that identifies some commonalities, are there gaps, are there reoccurring issues that are just continuous, are there inconsistencies? So that’s what we’re going to be working on for item one.

The second item is to determine opportunities for additional oversight. So I mentioned OGIS and DOJ just as an example. Those exist. We want to look at what is going on with those two groups as well as others and identify any gaps or opportunities to improve or opportunities to take additional oversight actions or suggest those actions. The third item that we looked at, or we will be looking at, is to assess the implementation of the FOIA public liaison role and determine opportunities for improvement. This is a little bit maybe outside the typical maybe accountability and oversight role, but this is something that the group felt pretty passionate about is that public liaison role. Is it what it needs to be, is there opportunities to streamline that further, is there opportunities to bolster it, to maybe put in a certain suggested language of who should be in that role to make it successful? That is definitely a role that helps with FOIA processing, it helps with requests for an agency communication, negotiation, sometimes dispute resolution. It’s a very important role, a very public facing role. The group felt that we needed to look at that and make sure that it is fulfilling what it was set out and established to do.

Lastly, the last item that we want to work on over the next quarter is to evaluate past litigation and review efforts and determine if there’s further action or improvement needed. This is not something that’s really in my wheelhouse so if there are questions or concerns about litigation review Mark is taking the lead on that, but that is an area that, again, there’s been some work, some successes many years ago in that area, and it’s something that we want to look at. Is there an opportunity to improve and bring that back to a certain degree and what does that look like and what does that mean?

We also looked at one other item and discussed it very vaguely, but we didn’t take this up as an actionable item right now over the next three months, but that was to identify and look at state, federal and international oversight and accountability roles. And that’s something that we have on hold right now just because with these four items we certainly have enough work, but it is something that is on our agenda for possibly in the future. After, like I said, a very good conversation, a very good discussion on these items, the subcommittee decided to reconvene in early December to take up what actions have been taken, what research has been done, reviews conducted, and analysis and determine where we’re at. What do we need to do next and then ultimately provide a report at our January meeting of the committee? That’s what I have to report. Mark, if you have something to add, that would be great. Otherwise do we want to take input right now?

NISBET: I think so.

MICHALOSKY: We’re prepared to take questions and input after Mark comments.

ZAID: Sure. And thank you, Marty, for taking the lead on that. We did try and embrace an ambitious plan that we can contribute and we intend to provide further written reports as well as we go along for the hope of obviously having a written product from the Advisory Committee. From the litigation standpoint we’ve got several litigators on the non-governmental side on our subcommittee so we want to streamline what we can and address issues. There was a litigation review back in the early 1990s. I think that was the last one, at least that we know of, so I’m finding out some information about how that was conducted and the success that that actually did have in streamlining some of the cases. And we’ll look at what we can do to try and minimize litigation. Part of what we do and what the oversight and accountability is try and strengthen the administrative process so we can cut back on the litigation obviously. And there have been some changes statutorily to the FOIA in the last few years that have impacted litigation and we’ll take a look at some of those to see how those have operated and if they’ve worked well or not. I think with that if there’s any committee members who want to ask questions or offer suggestions, we’d love them.

NISBET: Please identify yourself.

MULVIHILL Maggie Mulvihill from Boston University. When you had the discussion about oversight, the first action item, I’m assuming that you’re talking about authorities, governmental agencies. That’s what you’re speaking about
when you say authority, is that correct?

ZAID: Yes.

MULVIHILL Just government. So were there any discussions about what has worked well and what hasn’t worked well in terms of oversight within agencies?

MICHALOSKY: So the answer is yes. This is Marty again. I know I personally discussed a little of the things that we’ve done at our new agency, for example, internal reviews that we’ve taken on ourselves aside from any GAO or Inspector General. But it’s kind of like self-policing if you will. So I know that we have talked about that. I offered that up as an example. That’s something we are looking at. And then possibly what agencies do across the board. So that’s something that we did briefly talk about.

WEISMANN: This is Anne Weismann. I think we saw that in some ways as a two-step process. One was identifying existing oversight authorities. I don’t know that it’s necessarily confined to the federal government, although that’s the sort of obvious starting point. And then I think the next step would be evaluating just how effective they’ve been. I mean for example, we’re aware that there have been several IG investigations at agencies about their FOIA practices, so that would be a component that we would look at.

JONES: I’ll add to that. Thanks, Maggie. I think you actually asked the question -- this is Nate Jones from National Security Archive -- that we all in our committee were talking about and I think got the sense that there was a problem. We know that some parts of government encourage compliance, some parts mediate compliance, but there’s no one really forcing it. But I think what we came to the conclusion was that we need to do more study before we really take the second step, which I very much hope that our subcommittee does, and figure out actually how to improve oversight and compliance. So I think you’re right, the first step is a broad survey of trying to figure out where the holes are and what GAOs, IGs say the holes are and say that repeatedly with the hopes that we can diagnose the problem more accurately before trying to fix it.

NISBET: It seems like I’m hearing there may be a couple of different aspects. When you’re talking about authorities, as everyone has said, you’re naturally thinking of government authority to do oversight and review. And those might be more obvious in terms of being able to find them, particularly if you’re looking at a time period of the last 10 years. But if you also add into your collection of information reports and reviews that have been done by non-governmental organizations that seems like that could be quite informative, although I recognize this is a very, very ambitious -- just your first item alone is really a huge effort and it seems like this is -- I think it’s going to take you a good long time. It’ll be interesting to see what you report in January, but I think if you can consider including in your review at some point non-governmental reviews and reports those might help you identify gaps as well.

ZAID: Absolutely we intend to do that. And in fact, I throw out to the committee and even the members of the public, some of us have been doing this a long time so we may have some memory of a report here or there, but we’ll be searching mostly online to find GAO reports, Congressional hearings, some IG reports. If anyone knows of any audits, inspections, investigative reports from your agencies, other agencies, non-governmental organizations, and can make them known to us, send us -- most of us are easily found online email-wise or can go through the advisory email and send those links to us, or a copy of the report if you have it. That would be absolutely fantastic. One of the things we talked about with a hope would be to make the collection available through the Advisory Committee website if that is feasible or not, so that we can have a repository, or depository? I don’t know if it’s a repository. Depository? (laughter)  

LEMELIN: An archive.

ZAID: An archive might be better, yes. An archive of all of these items because a number of them, especially the IG reports and the GAO reports, they’re kind of jumbled in multiple different places, there’s no real one place that we know of. And we’ll approach that and see what we can do as well. But definitely if anybody has any knowledge. I know at our first meeting we were told of a report, and it’s in the minutes, that’s going to be very helpful from one of the other agencies. And so just, yeah, shoot it over to us.

NISBET: Certainly if any member, committee member, or any of our public participants today knows of a place where at least some of this is collected that would be a really helpful piece of information. And I’m thinking that a source for that might be a university program that has perhaps studied this or -- anyway please speak up so that the committee is not redoing work that’s already been done. You all know that but I wanted to say it out loud because this is a really important and ambitious undertaking. And certainly let me just say we will work with you in terms of making a place where this is available.

MULVIHILL I just am having a thought about making this a searchable database. It would be a great teaching tool and I wondered if once you get the collection together if you’d be able to search it by key word or by agency. It really would be a unique, I think very valuable, tool both for teaching FOIA but also for litigators. So I would help with that if you need any help.

NISBET: Maggie, perhaps you have a student that might (laughter) like to volunteer?

MULVIHILL I’ve talked to the reporters committee about this, about whether or not there’s a way to use media law classes across the country to sort of crowd source this project or gather information, and it seems like it’s an untapped resource. I don’t know how such a national media law project at the college level could be organized, but it’s probably something worth thinking about. Get those student soldiers out there gathering this so you can do other interesting things. So I don’t know what I got myself into with that statement (laughter) but just something to think about.

NISBET: Any other thoughts on this first item? The second thing you mentioned was opportunities for additional oversight. I’m guessing that that is sort of a -- might be an add-on or a byproduct of your first ambition which is the collection.

ZAID: Yes. And it’s also tied to what Marty said about our later review of state and foreign similarities or whatever their call their FOIA laws in those various jurisdictions. It’s a little bit too ambitious. That might be what some of the students actually could help us with if any are ever able to participate, but to see what else is out there in other jurisdictions, whether it’s in the United States or overseas, that function in a way that we haven’t envisioned or looked at or maybe can improve on. So there’s a lot here obviously that we want to try and do. And certainly I guess again I can throw that out to the public. If anybody knows of how -- I don’t do state litigation, but I’m sure there are some here who do a lot of state litigation and some of the states have a very aggressive FOIA practice through the state jurisdictions that are actually just disclosing more information than the federal government. So there’s a lot to learn there.

NISBET: Larry.

GOTTESMAN: I just have one comment or suggestion. When we start looking or comparing states and cities to the federal government we need to understand states and cities are not the federal government. We need to compare apples to apples versus an organization that basically can maybe get 100 requests or 200 requests a year versus a government that may get 600,000 requests a year. So we just need to make sure we’re sort of at least addressing those discrepancies or those differences.

WEISMANN: I don’t disagree, but for purposes of oversight and accountability I’m not sure those differences are that critical. And I also wanted to say we had some discussion in our meeting where the goal is to really produce some concrete things, not just to have recommendations. I mean we are very ambitious and we’ll see if we can meet this, but we all are very committed to seeing some very concrete things come out of this. I mean the collection is a start, but that’s only a first step and I think we see ourselves going far beyond that in terms of identifying where the gaps are in oversight and accountability and coming up with solutions. And if there’s a way to start implementing those solutions we’re really committed to that process.

JONES: I’ll second that.

MICHALOSKY: I mean that’s exactly what Anne said, is that’s our stepping stone to start with. And we wanted to see over 10 years what has been done, what’s been transformed, what works, what hasn’t been tapped or addressed, and really look at that to see, again, what’s working, what isn’t, what has been an ongoing issue for 10 straight years. And we need to craft a different way or offer a suggestion on how do we address that because in 10 years, for example -- I’m just making this up because I haven’t looked at the review, but there may be possibilities where something has not been addressed effectively and instrumented true change in 10 years. So maybe that’s something that we need to look at a little bit more closely because that may be more serious than something that just popped up last year or came out on an annual FOIA report.

NISBET: I have a couple of questions on your number three and number four objectives, if we could move to those. Could you talk a little bit, either Mark or Marty, about how you were looking at connecting with and assessing the FOIA public liaison role, which is, as you said, very significant and a great source of information for the committee.

MICHALOSKY: I can certainly address it because I’m sure number four, I’m not going to address that. That’s something for Mark definitely. But the public liaison role, there was a significant discussion over that, probably the most I think out of all these items, because again it’s something that we all felt was a very important role. I think we all shared stories on our experiences, both good and bad, or mediocre, with this role and even to a degree how it’s been handled in our agencies or in our previous kind of places of employment. And one of the things that we looked at was we would like to reach out and survey the current public liaisons or poll them and that’s something that has yet to be determined. If we’re able to do that and how do we exactly do that where we can see what is the makeup of that position and what is the type of employee, the type of position that’s associated with that role in agencies, what opportunities have been successful, what is maybe a sticking point of possible -- an issue. Things along those lines. And in order to really do that is to really evaluate the people that are currently serving in that role or have served in that role in the past. Again, one of the things that you’re going to see probably a repetition of is we felt that in order to really be effective we need to know what’s going on and what has gone on in the past. Because we’re looking at something maybe that’s going on today, but maybe a few years ago was slightly different. And maybe we made successful improvements there or maybe we’ve backslid a little bit and it needs to be readdressed again. But one of the first steps is to go out and survey that role in each agency, bring that data back, and then in conjunction with that as we’re really starting to look at that, is there opportunities to, again, improve it, change it possibly, look at what the original onset was for that role in the agencies, and what the purpose was, and through that survey again, or the poll, whatever you want to call that, is that role really being lived up to? So looking at what was done many years ago, whenever that was put into place, and then today are we actually implementing that? So some of that was some of the discussion that we’re looking at.

ZAID: And part of that related to what some of us discussed in the first meeting which was, what, in July?

NISBET: June.

ZAID: And that was attitude. What are the attitudes of those within the federal government who are working in the FOIA positions? And those who are in the FOIA liaisons, and we haven’t judged any agency or anyone, but those in that position who are involved with the public, probably more so than anyone else, at least as it’s designed, one would hope that they’re going to have a very, very positive attitude for the FOIA as well as a very helpful attitude. And we want to make sure that that has worked. I mean without naming agencies there are some agencies that I know I can call and never get a phone call back from. Now, something’s wrong there because that’s not how it’s supposed to be designed, that’s not what this position was designed for. Others we had some conversations of that the person who was put in that position didn’t have really any FOIA experience at all. It was just someone that was available to take the slot. And if that’s the case what kind of education might be given to that individual? Because it would be better to have somebody obviously that was more experienced and maybe came out of the FOIA community, whether federal or non-government. But I know we had some conversations, and we can talk to the General Counsel’s office about what it is we are allowed to do with respect to contacting agencies because honestly we did not know about that. Some of the government representatives on our subcommittee raised some concerns, not on their own, but identified that there was a possible impediment to doing so. It wasn’t necessarily because of the Advisory Committee status, but something about polling or surveying, I forget which word we weren’t supposed to use (laughter) but one of those we’re not supposed to use that way. (overlapping dialogue; inaudible)

FEMALE:
Yeah, Paperwork Reduction Act has input those requirements.

ZAID: So we weren’t familiar with it so we needed to --

NISBET: But Mark, we can work through I think pretty quickly. In fact, I think there have already been -- Office of General Counsel has already been looking into that to see what we can do and how we can do it. And so I’m certain that we can remove the impediments and do it in a perfectly correct way.

PUSTAY: One thing that I can certainly offer to the subcommittee is we could certainly convene a meeting of FOIA public liaisons to give you an opportunity to sort of sit in a room with a group of FOIA public liaisons and just as part of your research and your gathering of info that’s something that we’re happy to do.

ZAID: That would be great.

MICHALOSKY: Thanks, Melanie.

OLIVER:
I’d just like to add one more thing. As a part of our deliberations on this topic of the FOIA public liaison we really realized that it’s the culture within the agency. Does this chief FOIA officer hold a position of authority and then how linked in are they with the chief FOIA officer who sets the tone across the agency for how FOIA is implemented? And so from my own perspective we are 23 freestanding agency components across and then down there are national, regional and district offices that have to report up through this chain. So we also wanted to look at the service of customer service centers, which are also a part of this outreach process. They are supposed to be the first line of contact in helping to address concerns by requesters. And oftentimes the chief FOIA office or the FOIA public liaison is only as good as the support staff working in the offices where the requests are coming and where the records are maintained. So we just wanted to take a holistic view of this process because that’s going to give some indicator on how successful the FOIA public liaison will be within individual agencies.

NISBET: That’s a very good point. And I would just add in terms of contact with and convening OGIS certainly would be part of that. The FOIA public liaisons are our primary, our main, I’m not going to say our only, but our first point of contact when we are contacting agencies about a request, a matter that has come to OGIS because there is a dispute or a potential dispute. So that’s a population that we have a lot of, a great familiarity with and appreciation for. We’re going to need to wrap up fairly soon and I don’t want to do that without hearing a little bit about your fourth point which is the litigation review. Could you talk a little bit about that, Mark?

ZAID: Sure. So that predominantly arose out of the [Attorney General Janet] Reno order that came out in 1993 that initiated a litigation review that went across the United States of all the active FOIA litigation at the time. And Melanie, we weren’t clear as to whether it was a Federal Programs Branch or a civil division or the US attorneys’ offices themselves who did the review. I don’t know if you know.

PUSTAY: I’m trying to remember. I think it was Federal Programs Branch that did it. And maybe both. I’m sorry, maybe it’s both.

ZAID: I know we checked one of the FOIA newsletters to see -- FOIA update to see if there was a little bit of information from probably around 1993, 1994. And I want to say there was like 400 lawsuits or something like that and there was a review and quite a number of lawsuits were either dismissed after this review -- in fact, I was even told there were some lawsuits that had been completed that actually additional information was released as a result of the review. The similar holder memo didn’t have any specific requirement to do this review so that was one of the things we were going to look at to see if there was a way to have some sort of review. Was it needed, can it be done, is it worthwhile to have it, how would it be done? And then just because, again, we have several litigators who are on our subcommittee, what can best be done to frankly minimize the litigation? Or I know from my perspective I honestly don’t pay that much attention to the administrative process because it just doesn’t work sufficient to my clients’ needs so I jump into litigation. Is there a way to possibly --

NISBET: Although I know you’re going to start coming to OGIS. (laughter)

ZAID: I do. You know I do come to OGIS. We do send to OGIS and OGIS has been fantastic. [We want to still give you more teeth?], that’s what we’re going to work on. If Albania has teeth in their OGIS then the US government’s OGIS should have teeth there.

JONES: And Mexico.

ZAID: And Mexico. Which will be one of the things we will be looking at as part of this oversight, but what can be done? As litigators from the government side and the non-governmental side, once we enter into litigation it becomes a free-for-all battle amongst each other and what seems to be lost is this evaluation from the government. Because we want the records released so we’re willing to go yes, if you want to give us something we’ll obviously go away, but we get into a major battle. And most litigation is handled, correct if I’m wrong, Melanie, the US attorneys’ offices, I would say, handle most of the FOIA litigation around the United States, correct? And so there might not be as coordinated discussion. That’s what the Federal Programs Branch office is typically dealing with because they’ll take on a case that is going to have impact from a policy perspective. But once we get into this litigation then we’re in a battle and that’s basically best man, best woman, wins and who’s standing at the end of the day? We’d love to see if there’s some way to have some additional review of what this litigation is going to be about to decide do we really want to be here, from either side? Is this something we really need to be fighting against, can we narrow this battle going in and obviously save taxpayers money, save resources, time, etc., and promote what at least I know some of us believe? You know, the joint objective of FOIA, we shouldn’t have any different opinion whether we’re in the government or not in the government. We are all fighting for additional openness and the question is just which angle we’re taking when we’re fighting. So that’s what the litigation is sort of going to be. We’ll have some suggestions that we’ll make to see if they could be implemented. We’re going to be talking to folks that were in the government at different times, in the government now, get their opinions as well and hopefully come up with some streamlining I think is probably the best thing we could do.

NISBET: Could I make sure that everybody remembers, for those of you who are working on this particular point, there was a very lengthy report that was done by Professor Mark Grunewald for the administrative conference of the United States. It is in our documents. David Pritzker who is here from ACUS introduced it into the record at our meeting in June and it is a very helpful look at FOIA litigation and in addition to the findings I think the methodology would prove to be very interesting to you as well. So that’s one resource that’s a pretty recent resource too.

ZAID: Absolutely. It’s top on the list.

NISBET: Any other comments on this subcommittee’s work so far? This is really exciting. I hope you have a lot of energy. (laughter)  OK, if we don’t have any other comments I think we are ready to take a break. Now, before you jump up, we’re going to take 15 minutes. So all right, realistically please be back in this room a little before 11:30. We’ll take slightly more than that. The café and rest rooms are two floors down. You can take the stairs, there are two separate sets of stairwells, or the elevator. You’ll be going to B for basement and we’ll see you back here a few minutes before 11:20 and then we’ll start sharp at 11:30. Thank you.

[BREAK]

NISBET: OK, if people would take their seats please. All right, welcome back, everyone. This is Miriam Nisbet. I appreciate everybody keeping to the time restraints and we’re back and ready to go. I understand that our audio issue from earlier has been resolved, so we are back in business in terms of our live streaming and we have audio now. So thank you for that work getting us there. We’re going to now turn to the subcommittee on proactive disclosures. Our chairs for that are David Reed and Eric Gillespie and they have a report for us. Who’s going to go first?


REED: I’m starting.

NISBET: Thank you, David.

REED: Thanks, Miriam. So Eric and I --

NISBET: David? Excuse me one second. Let me just be sure that we’ve got Clay and Dave.

BAHR: (inaudible)

NISBET: Great, thank you. Sorry, David, for that interruption.


REED: No problem, thank you. Eric and I are going to lay out the preparatory work that we’ve been doing and then we’re going to be pitching for more help from other committee members. We’re going to start with some background that’s familiar already to many of you. The Freedom of Information Act already requires two kinds of proactive disclosure. The first is regarding publication in the Federal Register. That’s for some basic organizational information which gets published as the US government manual. The requirements to which it is subject, which is through publication of rules and forms, and these requirements in section (a)(1) of the act are not met through publication all at one time in one place for agency, so it comes out as particular items are issued. The second kind of proactive disclosure that’s already required is what used to be referred to as the reading room requirement, it’s now often called the electronic reading requirement. The requirements that certain information must be placed where the public can read and copy it. Now that’s typically a website. Or the agency is also allowed to publish and sell the information. That’s an alternative. And this applies to opinions and orders adjudicating cases, statements of policy that are not published in the Federal Register, staff manuals instructions that affect the public and, of particular interest here, records already released under FOIA which are likely to be subject to subsequent requests, and that’s often referred to as the rule of three because an agency says if we’ve had a FOIA for it before and we get a second and we anticipate a third, then that’s generally interpreted as meeting the test of likely to be subsequent requests. And then the requirement is also for an index to all of the above to be made available in the reading room, now often a website.

There’s been guidance, nonbinding guidance, during the current administration that then encourages further proactive disclosure. So for example, the President’s memorandum of 2009, agencies should take affirmative steps to make information public, should not wait for specific requests. That was followed by the attorney general’s memorandum. Agencies should readily and systematically post information online and in advance of public request. Legislation that just recently passed, and the implementing regulations are still being developed, the Data Act which is separate from FOIA but certainly is relevant when you look at proactive disclosure issues, so the Data Act builds on top of the existing USA spending.gov disclosures about grants, contracts, loans. What the Data Act adds to what’s already been disclosed is data about agency budgets, commitments and expenditures which are at different stages in the federal spending process. The agency commits, then obligates, then expends, and so under Data Act you see all those steps separately. Reprogramming, that is moving funds, usually require permission of Congress from one purpose related account to another and the fund balances, the money that’s available in a particular account.

Also relevant to the issue of proactive disclosure is how the Data Act requires this information to be made available to the public. One is that the information must be available as a bulk download and machine readable. We’ve probably all had the situation of trying to get information from a website where the website does allow us to search for a particular record, but if we wanted to see the whole context of a mass of records we would have to go through that search thousands of times. The Data Act requires the ability to just download the records in bulk so people can analyze the information in context. Another requirement developed in use of common terms, formats and definitions (inaudible) some financial data elements. This actually shows, I think, the difference between a data provision approach and a record provision approach in that when we disclose records under FOIA we’re showing them in the context that the government is holding them. Whereas when you have a data disclosure such as under the Data Act, then the agency is designing the format in which the information is going to be presented and the context and therefore you have to have standards for that.

Finally, the Data Act requires that the information posted is subject to audit by GAO and by agency inspectors general. And again, that’s different when you’re looking at is the agency disclosing the data in an accurate way versus the FOIA, when we hand over a record it’s kind of as it is. The agency has not had a chance to put a spin on it. Eric, could you talk through the (inaudible)?

GILLESPIE: So we at our June meeting talked at length about the benefits of transparency, open data and open government and what the attributes of good governance related to that are. In addition to that, today there are many great business cases that we can point to in the private sector where companies are using this as raw material that have a good economic impact and create jobs. And we also think there’s a lift that can be achieved by providing some of this data in machine readable formats to the private sector. And if we’re successful at routinizing much of the standard scenarios agencies can then begin to focus their very expensive and valuable resources on the things that have a greater positive impact in terms of disclosure. We put forward on the subcommittee this thesis. There were two primary tacks that we thought we could take that we’d like to talk about today.

First we thought we could cluster the types of records, which will vary by agency, into a common taxonomy in order to begin to look at the trends and the patterns across a wide swath of FOIA records. And second, if we could identify the personas of the requesters, which are probably more macro across agencies, we can begin to see where the critical needs are that emerge and analyze those needs to establish baselines for systematizing the requests and beginning to look at the backlog of requests and how people go about requesting and what those needs are. And with those two tacks, identifying the primary types of records that are there within agencies and the types of requesters, the personas of the requesters and the intersection of those two things, we think it provides a lot of value to informing a proactive disclosure policy.

The next slide is an excerpt from the Center for Effective Government report from March of 2014. This is just 15 agencies representing 590,000 FOIA requests in fiscal ‘12 and a staff of 3,200 people that are dedicated to serving up these requests across the 15 agencies. And again, the standard deviation across the caseload is pretty wide. The average is about 220 per FTE. But it also demonstrates that the clustering that we talked about is agency specific. So you’re going to see a wide variance in the types of clusters of requests within agencies. And again, it serves to highlight the variance across agencies. It also, I think, demonstrates the net positive impact that’s possible if the needs of the requesters and the primary clusters are identified and our approach to proactive disclosure is met across those two vectors.

We have run into some significant challenges. The mechanics of this are not trivial, as I think everyone on the committee knows. We began pulling FOIA logs and looking for trend lines. We couldn’t find enough to be statistically significant and we desperately need help with this. Even trying things like using basic word clouds to see some trends and patterns proved to be very difficult and we’re struggling with this. So we have some challenges and questions here. We would love to find a couple of pilot agencies around this table to help us with this and that will be one of our requests from the subcommittee is to help us create a corpus and a pilot within a couple of agencies to prove out this theory.

REED: We have found an example of the kind of analysis that Eric was just talking about, not with regard to a federal agency, but with regard to a New York state agency ah which operates under a state level law that’s similar to FOIA. And this was a non-government organization that was able to analyze the FOIA logs, or in that case FOIA logs from the New York state agency, and they found the kind of results that Eric was talking about in terms of clusters of records requested and personas or types of parties that are requesting. So they found that 55% of the requests were for just a few types of records. They’re listed here. Reports about specific addresses, inspection of landfill, air quality, whatnot. Over half of the FOIA requests for this. Also the researchers looked at who had filed these requests. They saw that there were a fairly small number of firms in the real estate industry that made up a large share of the requests. They interviewed two of the largest requesters and those requesters said that they’d be very happy to get that data from a website rather than having to go through the process of requesting it by FOIA.

So this is an example of the kind of findings that we’re hoping will show potential in the federal government for finding, as Eric said, types of records which if they were proactively disclosed could just be looked up by the interested parties as opposed to having the parties and the government undertake the burden of processing a FOIA for them. One other example of the kind of opportunity we’re looking for is what’s already happening under the Single Audit Act. This is a federal law which requires that an entity that receives at least a half million dollar in federal grants -- that threshold is about to be increased, right now it’s half million -- the entity must send a financial statement, management discussion, auditors have been in, and details of the grant. These are all sent to the Bureau of the Census which is actually a central collection point although census then farms them out to the specific cognizant agencies for each entity’s grants. As Eric said, one of the reasons we want to get the information out there is so that there can be productive economic use of it. In the case of the Single Audit Act reports there’s at least one company that wants to use these disclosures, this data, in order to do ratings of municipal bonds which are right now apparently done on a fairly subjective basis. This company’s trying to develop a more data based approach and they want this data to do it. Clearly if companies are able to produce more accurate ratings of bonds, then that improves the efficiency of the capital markets, so there’s a public benefit.

The company actually ran a test to see whether these reports would be available through FOIA, so they FOIAed for reports, all of which were released unredacted indicating that the information is suitable to be released to the public. However, the FOIA took multiple follow-ups, it took two and a half months, which is not surprising because many of you are familiar with the situation. Census got the FOIA requests, census said the custodian of records is the agency we sent the report to, so they have to send it to the custodian of records, they have to say this information was submitted by another party, the grantee, so we have to check with them, and before you know it, you know, two and a half months seems quick. Now, the OMB has issued rules which will affect the reports filed after this year which changed the system to proactive disclosure. What these new OMB rules say is that when the Single Audit Act reports come in they all have to get posted to a single website where they’re available to the public. And of course they run into issues that we’re going to run into whenever we look at proactive disclosure. For example, is the information releasable? In the case of this OMB has addressed the issue of personal identifiable information, PII, they’ve addressed it by putting into the new OMB regulations that the submitters, the grantees, are responsible for not putting PII into their reports and therefore putting the responsibility at that stage to avoid the necessity of the agency reviewing everything before it gets posted for PII.

Also of interest to us is because this disclosure is being done under separate legislative authority than FOIA Act the FOIA restrictions are not explicitly applicable. In fact, the only restriction that is in the OMB regulations explicitly is an exception for information that’s restricted by federal statute of regulation, which is one of our FOIA exemptions but certainly not the whole panoply of it. So I think it highlights an issue that comes up whenever we’re going to look at other options for proactive disclosure which is what is going to be non-releasable and how do we build into the process preventing things that are properly non-releasable? Do you...?

GILLESPIE: As we look at the options for proactive disclosure and moving this upstream in the process there are three things that we’re asking the members of the committee to consider. One, we would love to hear even anecdotally what you are doing in your agency or what you’d like to do that you can’t do today that this might help with. Two, we desperately need a data set and a corpus of data that we can begin to work with to prove out this theory, that we can begin to point machines at and grind through some of this data to see what patterns and trends emerge. And three, we need help just in terms of the cluster analysis and identifying the types of records that emerge once we do point machines at it and the types of requesters that we see emerge in terms of the personas that we identify.

REED: That’s pretty much it. I’d actually like to thank Lee who joined our subcommittee and then had to take a break from the committee and is back with us. And I'd also like to thank Melanie who gave us a great pointer to a search for agency FOIA logs which has been a very useful data source. I guess we’re ready for discussion.

NISBET: OK. Thank you. Thank you very much. I think we probably have a lot of comments and questions. Christa, I wonder if you could go back to slide --

LEMELIN: Ah, I can’t because I don't have the control.


NISBET: Is David doing? Go back to slide nine.

REED: I'm sorry

NISBET: No, slide nine. There you go. Because I think that has the places where you’re asking for input. So one thing maybe -- because just a reminder for everyone, the materials, this presentation and the reports of the other two subcommittees are posted on the Advisory Committee website. We’re really, thanks to Christa’s efforts, we’re getting everything posted as quickly as we can, as we have them, so that everybody has them available. One question I would have is on point number two with regard to the FOIA logs, it would be great if you all would share the information you got or the source you got from Melanie because I think I’ve heard a lot of people say that’s a very difficult thing to do is to find the FOIA logs.

REED: Yes, I’ll send it around and I was surprised, they’re a lot more accessible than you would think.


NISBET: Good. That’s good news. That’s great, really good to hear. So could one of you, or both of you, talk a little bit more about what you’re looking for in the way of cooperation to obtain data?

GILLESPIE: I’ll start. We would love to find just a data set. I’m not sure how far back the data goes in your respective agencies, but you could provide it on a DVD, you could provide in a searchable database format, in some sort of XML format, we can figure out a variety of different ways to ingest the data into some sort of common format. But we’re having a very difficult time finding a source for the data and need to identify that source.

PUSTAY: Would it be a data set that is not already public by the agency that’s --

REED: Yeah. Well, it’s possible that the data has been made public and we’re just not aware of it, or it’s possible that it’s not been released.

GILLESPIE: It’s not accessible perhaps.

REED: Yeah, what we have found, for example, a lot of the agency FOIA logs, they vary in the description that they give of the records requested. And so when we started looking at some of them we thought we cannot use this as a basis to figure out which type of records are requested for each request, nor in some cases what the requester. And so we are looking for something beyond the publicly available logs we have been able to go through so far. Perhaps the information has already been publicly released and we just haven’t been able to find it, I don’t know.

NISBET: Anne.

WEISMANN: I wanted to make you aware of a document that was put together a number of years ago with input from a fair number of organizations within the so-called openness community which was a list of data sets that we were recommending be sort of first stop for proactive disclosure. They’re data sets that are common across all agencies within the government and we did present it to the administration. It has never been acted on. It’s been refined over the years, but as I said, it represents the work of a reasonable number of groups and might be interesting to look at. I mean it’s things from contract information to Inspector General reports, but again, the goal was to identify subsets that, at least from our community’s perspective, we wished -- we wanted to be more easily accessible and that we thought are created across agency lines.

REED: That’s great. If you could email me a link I’ll post it with the rest of the subcommittee documents.

WEISMANN: I will.

NISBET: Larry, but let me just ask a follow-up question of Anne. Have you all identified any agency that seems to be coming close to fulfilling that wish?

WEISMANN: When we last looked at it we had not. We certainly were aware that some of these data sets were being made publicly available on a routine basis, at least by some agencies, but what we were pushing for is kind of uniform buy-in from all agencies, so we didn’t really look -- I don’t think we’ve looked at that issue.

NISBET: Larry and then Andrew.

GOTTESMAN: I mean EPA a couple of years ago started posting all its FOIA requests and response of records online so you have full access. You can’t download a whole data set but you can clearly run reports for anything you want. And that’s available through FOIA online for EPA. We rarely withhold what a requester is asking for except if it’s personnel -- there are some very sensitive issues which we don’t release, but probably 99% of our requests we do make it available to the public. So maybe a good place for you to go.

REED: For the stuff that you have, that you are able to release, would it be possible to get it by bulk download?

GOTTESMAN: It’s available on the website and you could go on and case by case or do a search on it. It’s a full text retrievable so you can search on any key word.

REED: Thank you.

BECKER: I know Delores [Barber] isn’t here, but I imagine she wouldn’t mind if I volunteer some information from the Department of Homeland Security which out of your list had far and away the most requests. I think the number two agency that gets the second most amount of requests at Homeland Security is Customs and Border Protection. And I think there probably is an interesting data set to break down in terms of individuals, journalists that are looking for data sets for trade, and so there’s some business element to it. And I actually believe, to my understanding, that they have done some quantitative analysis. I think journalists like make up 5% of requesters, so I think they do have some sense of the type of requesters. So that might be a robust data set if you can get them to cooperate. That might be a good place to start as well.

REED: Thank you.


NISBET: So we’ll make sure that Delores knows that her department has been volunteered.

BECKER: She can thank me for volunteering her.

NISBET: Knowing Delores, she will be the first one to step right up. We have just a few minutes so I do want to get any other comments, plus I want to ask the chairs just to quickly tell us sort of what the next steps forward are so that we know what to expect in January. Nate?

JONES: First off I want to say the prospect for deep in the weeds analysis of this data is really exciting, so I look forward to that. But I also want to -- two quick suggestions and almost more bang for the buck suggestions. You mentioned earlier that the current rule is that if a request is requested three times, that in my experience no one’s really tracking, they put it online. And to me that seems like a ripe target for modernization. I know EPA posts all their requests online, or all their responses online. I know Department of State does a great job posting millions, I think all of them, online quarterly. ISCAP, other countries do it. So I think something, another avenue of proactive posting we may want to work on is finding a way to change the three time request to ideally most of the universe of released documents. I know the documents are already digital at agencies through FOIA online, so I think a bang for the buck might be getting someone to change the wording from three times to if at all possible and follow the lead of our other star agencies throughout the government. And that leads me to my second point, that when I bring this up to people the biggest hurdle I always see to proactive posting is 508 compliance and I think at our last meeting someone from the audience wisely said if we don’t do anything other than fix 508 this will be a success. So I’d like to, and I’ll volunteer to work with the subcommittee, to examine those two really important issues to maybe -- I don’t know anything about the computer analysis, but if we can fix 508 and nudge agencies to post the releases that they’ve already spent hours working on, to spend in my opinion a few more minutes and put them online for everyone to see, not one person that put it in the desk drawer, it would be great progress.

JOHNSON: This is Clay Johnson and (inaudible) I’m willing to help in whatever way I can with it. Just wanted to mention that since I can’t raise my hand.


NISBET: Could you just say that again? We had a hard time hearing you in the beginning.

JOHNSON: That was me that mentioned the 508 compliance at the last meeting and I’m willing to help in any way I can, so just please reach out to me and let me help.

NISBET: Thank you.

REED: I heard I’m willing to help, so who is that?

NISBET: Clay. And I think everybody agreed at our last meeting that that absolutely has to be a priority. We all want to reach that goal.

MCCALL: I do have one comment in relation to that. As someone who works a lot with reporters I do think that there’s some value in not necessarily posting the documents up immediately, building some delay into it. If a reporter or a requester puts so much work into making a request, following it through either the administrative system or litigation, I do think that it’s fair to give them two or three or four days to review those documents and have some sort of exclusive on it. I know that I have a much harder time taking documents out and getting reporters to cover them and getting widespread coverage if it’s not an exclusive. And I think that it would actually chill the incentives on especially a reporter’s side if there wasn’t some at least three day delay there to give them exclusive access to the documents. It’s just something to consider. But I definitely think that having everything up online is a laudable goal, but I think that we need to consider that interest.

GOTTESMAN: I think we need to treat everybody alike though, so reporters need to get treated like everybody else does. So if you’re going to do it for reporters you need to do it for everybody.

MCCALL: I think that there’s some interest on commercial requesters’ side too. If they’re paying for the documents they might want a few days of exclusive access to those documents. I mean the commercial requesters do pay for access to these documents, there is some interest in that. And I don’t think that it undercuts the public’s access to the documents to build in three days of delay. I think that it’s a reasonable balance.

NISBET: Could I suggest that this issue, which I’m seeing a lot of interest in and it’s certainly an issue that’s been around for a long time, that that be folded into those of you who have an opinion and an interest in it, please make this part of the proactive disclosure work.

MCCALL: Yeah, I’d be happy to keep talking with you.

NISBET: Please do.

BAHR: I’d like to comment regarding the repeated request issue. I think that there’s a subset of not requests for the same document, but repeated requests for the same type of information that I see coming up with my clients, particularly with federal agencies that do work out in the world, field agencies and [collect field debt?] and that sort of thing in a predictable way. And a lot of my clients have difficulty accessing the information in a timely manner year after year after year, particularly if they’re being called upon to comment or participate in the agency planning process. And I have one client that always seeks information for field work that’s done in the summertime in the Pacific northwest so that they can comment on management decisions that happen in the wintertime and the agency very predictably slow-walks its response so that the client doesn’t have access to the information until after the planning process is closed. And so that falls through the cracks because it isn’t asking for the same document, they’re asking for the same type of information. So I would suggest that that also be a consideration as we talk about proactive disclosures.

GILLESPIE: So that specifically with cluster analysis should be able to address -- one thing that we hadn’t considered, which we will based on that comment, is looking at a time dimension to see if there’s any seasonality or cyclicality to the types of requests on a time horizon, which there may be, which could be interesting.

NISBET: So Dave, thank you for that comment. It sounded like you were volunteering to be part of this committee -- subcommittee. Yes?

BAHR: (laughter)  Yes. Yes, I will.

NISBET: Andrew, this is the last comment because we do need to move to the third --

BECKER: Sure. And this kind of overlaps a little bit with oversight as well. And that is with the repeated requests, but it also has to deal with if you appeal a response. And on appeal you’re actually able to get the records released and how there sometimes is a disconnect then back to the original FOIA process or FOIA office, so you have to go back and just request the records if you’re looking for updates. So if there’s some sort of -- it goes to maybe internal policing as well. If there’s some sort of precedent that’s been set at the agency in releasing the records, that that should be communicated and documented.

NISBET: Good point. Thank you. So we do need to move to the next subcommittee, but thank you so much for that report and provocative points. I think you have a lot of people to work with you.

REED: Yeah, thank you, everybody who offered to help.

NISBET: So we’re going to move to the subcommittee on FOIA fees and we have Jim Hogan and Ginger McCall who are the co-chairs and we’d like to hear from you now.

HOGAN: Thank you. First of all, Miriam, on behalf of the Department of Defense we’d like to thank you for your service chairing this committee in the five years at OGIS, getting it standing up. I know it hasn’t been easy and many times it’s difficult to work with agencies and other entities. We do appreciate what you’ve done. We think you have done much to facilitate communication between us and requesters and interagency and we do appreciate that very much. Thank you.

NISBET: Thank you, Jim.


HOGAN: We met a week ago, had a first meeting, and I’d like to thank my co-chair, Ginger McCall, for hosting us at Epic headquarters in Washington, DC. We started meeting and I have four items of agenda. Let me just go over those briefly and we’ll talk about how we approached each one. First would be we want to explore what are the potential fee issues and how are they being perceived? If you remember the brainstorming we had in June, it was based on perception. Even the word animosity was brought up, and is there an animosity existent? Another one is, if we go from there to the next point, what are avenues, potential avenues, to gather any kind of relevant data to further define the issues? And thirdly, we thought maybe it would be relevant to look at how other countries handle their fee issues and their open access laws and then we want to discuss what are we going to do at the end, what’s our end product here for our subcommittee?

After a lot of discussion there was a consensus that there is some animosity between FOIA requesters, FOIA entities, organizations, and the federal government, official FOIA officers who are working FOIA requests, concerning fees. It seems like -- I’m basically talking consensus here of the committee -- a lot of time is spent by government officials dealing with fee issues. I think the perception from FOIA officers is that this is a difficult issue to really deal with sometimes. There’s maybe a lack of understanding of fee related requirements by FOIA officers, including that lack of understanding of what the act requires and what the relevant case law says. There may be confusion among FOIA officers about the definitions and standards, for example fee category. I know some members of this committee have been put into three or four fee categories, probably every one, and probably made some up too. (laughter)  So that’s been an issue, we recognize that.

There’s a lack of consistency, perceived lack of consistency, on some entities which say I got a fee waiver here, I didn’t get one there, maybe the exact same request. And also there seems to be a perception of greater amount of voluminous requests and vague requests. People asking for anything and everything. How is that related to fee issues, we explored. And maybe another related issue started coming in here, and not sure whether we wanted to at the time approach it by the subcommittee, but maybe something to do with it is resource issues. Are some of these requests becoming a burden on agencies? And some of us have been around for a couple of decades and may be able to address that better. We talked about the importance of gaining some kind of empirical evidence. Statistics may be difficult because even statistics based, you know, where we have annual reports don’t really address the issues per se. We talked about complex, simple requests, but that’s even a subjective call from agency to agency. There’s no standardization there. So we’re wondering maybe more anecdotal evidence, gathering data, talking to FOIA requesters, talking to other agencies, maybe talking to our counterparts in other countries. And that gets back to the data collection. And Christa was at our meeting and she was looking into it and we discussed before. And I didn’t mention foreign governments so that’s another issue. Maggie was on the phone, she goes, “I can talk to my counterparts” and we said we’re not sure right now. So understanding clearly the rules of data collection or just talking, interviews. I think we can within our own agencies but [most?] exactly what the issues are out there and how we can further define what the issues are.

We looked at briefly the open government laws of Canada, Australia, New Zealand and UK and also discussed Mexico and how they might be related to what we have, recognizing they have, especially the parliamentary governments are very different than our government and some of these laws -- I know the UK has only had their freedom of information law for 10 years now. But I think we can get some good ideas from them. FOIA requesters are FOIA requesters, it’s the same from one country to another so I think there’s some commonality there.

We looked at a couple of potential end products. The first would be some kind of maybe guidance. There’s a lot of guidance out there already, but maybe something that defines specifically FOIA terms specifically from -- again, this is just brainstorming here. Common terms that seem to be misunderstood. We can understand what is being misunderstood out there. The hard concrete terms that are in the act itself and maybe related case law. And the second potentially could be a legislative proposal through OGIS. If we see that the act itself causes maybe some confusion, interpretation, we may get different courts interpreting it different ways. Maybe a legislative proposal would be in the making. I think pretty much our consensus was keep it the same for commercial requesters. I don’t think there’s an issue there. There seems to be with other public interest groups, other things there. And then we’ll also explore some of the Congressional record. Discussions were made and I know a lot of that is already publicly available. And we have our next meeting also in December and we don’t have the date yet, but I’ll work with Marty and others so we don’t conflict with our subcommittee meetings here.

Some of the members, things they’re looking at right now, it would be exploring some case law, agency regulations, which we would hope there’d be some kind of consistency there on fee issues, and other sources for current definitions of various categories and other fee related issues. We may see some misunderstanding out there in written regulations. We don’t think, because the regulations go, as some of us know here, through a very, very thorough comprehensive review. But we might see something out there. Other members are going to do research on what other countries are doing also. And then once we have good understanding of what kind of information we can collect from the public, etc., we will go out there and start gathering some information. And we recognize, I like the term Mark used, jump into litigation, we recognize sometimes the fee issues do cause jump into litigation. And that’s one of our things is try to avoid that. Sometimes the solution is just better communications between a FOIA requester and the government. Sometimes it isn’t. It depends. It really changes. But I’m just wondering, and maybe this would be discussion here, how much do resource issues in federal agencies, how much does that play into why there’s some of this animosity to that extent. And Ginger, do you have anything to add?

MCCALL: No, I think that’s about it. I did actually want to thank the students from our Georgetown Law open government course for their work on some of the research here. We’re looking pretty intensely into the case law around the definitions of news media, noncommercial scientific organizations, and educational institutions.

NISBET: Wow, thank you. All right, questions, comments? Mark?


ZAID: This is sort of an overlap between our two subcommittees, although it’s a little bit outside of I think both. When I think of fees I’m thinking of attorneys’ fees and one of the things that I think would be very interesting, and Jim, you talked about the resources, as I’m sure pretty much everybody here knows there was an amendment to the language a few years ago that took attorneys’ fees from, instead of being paid from the general operating treasury fund, whatever we call it in the United States, regular US treasury, what’s it called?

FEMALE: Judgment?

ZAID: Judgment fund. It comes out of the agencies’ budgets which, frankly, I didn’t think -- I understood the notion of it, but I didn’t think it was a very smart thing to do because some of the litigation that we handle goes on for so many years we can wipe out an agency’s budget very easily with the amount of attorneys’ fees, especially at some of our hourly rates. And I have no idea if there has been any analysis of attorneys’ fees since that amendment came forward and the impact it has had on agencies, FOIA, budgets and resources, positive or negative. I’m not sure what the positive could be. I can only imagine really a negative. And as to whether that needs to be changed back perhaps. Frankly I don’t care where I get paid as long as I get paid. Doesn’t matter where and I certainly don’t want to hurt an agency’s budget along the way to make it more difficult for other FOIA requesters to come after. There may be something we can jointly look into with the two subcommittees.

NISBET: I think that’s a really good idea. Other comments on that? Nate?

JONES: This is on something different.


NISBET: OK, hold it one second. I will tell you that in connection with the study that Mark Grunewald did of litigation one of the issues that I’m aware that he was looking at was trying to get a handle on the issue of attorneys’ fees. And I know that it’s very difficult to pin it down, particularly because those are just not necessarily reported and particularly if they’re as a result of a settlement agreement. They’re just not necessarily going to be out there, obvious and available for analysis.


PUSTAY: We do, as part of the DOJ litigation and compliance report, we include a listing every year of all the FOIA litigation cases and we also include, it’s required that we include, whether or not there was an award of attorneys’ fees and the amount. So that’s available on our website.


MCCALL: I’m sorry. I actually took a look at that lately and realized that there were some flaws and inaccuracies in it. I don’t know, it’s something we can chat about more outside of the meeting, but I had a hard time. I think that what Mark Grunewald used was actually [TRAC?] maybe or scraping the pacers (overlapping dialogue; inaudible).

PUSTAY: He had several sources.

MCCALL: But it’s hard, it’s very difficult to track down the actual amount of litigation fees, but it is something that potentially we could look into.


NISBET: Just add it in.


PUSTAY: Also I mean there’s litigation cases that are settled in which fees are paid, so that wouldn’t be included in the statistics gathered.

MCCALL: Yeah, the inaccuracies that we saw related to our own lawsuits were usually cases that were settled. And it might also be an issue of there was a case and it was settled like in a later year, so that could cause problems.

PUSTAY: I just want to make sure we realize it’s completely different than assessing fees in response to FOIA requests. So we’ve now just sort of blended the two things, but really it’s a whole different topic. It’s obviously controlled by -- fees are awarded by a court under standards that are set out in the statutes. It’s really a different animal than I think what you guys were talking about with your committee. What I think we had are the agreement of what it would be looking at, which is ways to see whether the assessment of fees to FOIA requesters could be improved, if that process could be improved.


NISBET: You’re right, but I thought that Mark was tying in the issue of FOIA litigation over fees.

ZAID: Yeah, and especially just listening to what Jim was talking about and realizing that subcommittee is talking more about sort of the front end of fee assessments, fee waivers, but in thinking about fees it still ties into us. I mean for example, with our number four litigation [prong?] one of the concerns we had when this change was made was is this going to be an incentive for the federal government to litigate the case longer in the hope that maybe instead of settling it early because there would be fees -- maybe not necessarily the Justice Department lawyers, the agency itself might -- I’m speculating -- might not want to settle because it’s going to come out of their budget. And if they litigate it longer there’s obviously a risk of incurring greater fees, but you might even be able to secure a victory so that there wouldn’t be any fees. So that’s not a positive outcome of what this provision was. I don’t even know if there’s any way to measure that other than talking to US attorneys’ offices and Federal Programs Branch to get a sense, did that ever anecdotally ever come up for an agency? But certainly since we’re talking about fees and the impact that fees have, as you said, on the efficiency of the office, the resources of the office, then that directly ties into attorneys’ fees since it’s coming from the agency’s budget.


NISBET: And it was that tie-in that I think you were just suggesting this subcommittee be aware of.

ZAID: Yes.


NISBET: Nate?

JONES: Another issue that I think the subcommittee, I think, would be a good idea if they tackle to decrease fee animosity might be this issue of when an agency can charge fees and what fees they can charge if they go over the deadline. I know that there’s discrepancy, but to my understanding the law was amended in 2007 to say that if an agency goes over this 20 or 30 day deadline for noncommercial requesters they can only charge reproduction fees. And many agencies do that, but some agencies now say, through what in my opinion is a strange loophole, that the request is unusual so we don’t have to follow what Congress wrote. So if we can get rid of that case that could cause a lot of the animosity to go away. Or maybe I’m wrong and maybe this FOIA subcommittee (overlapping dialogue; inaudible).

MCCALL: That’s something that we actually did discuss in our subcommittee. I mean you know, this is something very dear to my heart --

JONES: I hope you tackle it.

MCCALL: -- and it’s certainly something that we plan on tackling, at least I hope that we will.

HOGAN: I think when you say loophole it is in the law (overlapping dialogue; inaudible) statute says unless unusual circumstances --

JONES: I think that the definition of unusual is maybe being stretched.

HOGAN: It’s actually defined in another part of the law.

MCCALL: In the other part of the law, though, it only gives you an extra 10 days to respond, not a blank check.

PUSTAY: No, but it defines -- I mean just so you guys know -- this is Melanie again to support what Jim is saying. I mean the law actually says unless unusual or exceptional circumstances as they’re defined in the FOIA apply. So it’s coming straight from --

JONES: But unusual is 10 days, not infinity.

WEISMANN:
If I could, I think this discussion illustrates exactly what we’re talking about that goes on. I mean I could make just as rational and passionate an argument of what I think the statute means. I don’t think the point is you’re right, I’m wrong or I’m right, you’re wrong, but it is exactly this kind of conflict that gets played out again and again and again on the issue of fees and that’s why I think it’s so critical that your committee tackle this issue.

NISBET: I think misunderstand is the word that Jim used and I think that’s just exactly -- identifying those areas that are so often and repeatedly misunderstood would be very valuable.

MCCALL: Yeah, that’s a large part of what we’re hoping to do here is to create some kind of uniform guidance. Because a lot of the fee acrimony comes from -- well, another agency said that I’m a news media requester, why are you telling me that I’m an ordinary requester? Well, I’m a blogger, I have a blog, why are you telling me that I’m not a news media requester, or these sorts of fee and delay issues. I mean if there was something uniform that requesters could count on I think it would go a long way toward cutting down on the acrimony.

FINNEGAN: I think that all of us agree that simplifying the process is really the goal, the underlying goal, and how we get there we’re not sure yet. But Jim and I were very clear that there is too much time spent in agencies on fee issues to no good result. It just delays the entire process, it expends resources, and I think, at least from my perspective, simplifying whatever process that we arrive at, I think, is the best we can do to help agencies and requesters.

BAHR: I’d like to speak to the question of assessment of fees when deadlines are missed. As far as the guidance that we provide I think it’s important that the best practices contemplate an agency addressing the deadline issue and whether a fee should be assessed. It’s been many years since the 2007 amendments went in place and I have yet to see an agency affirmatively state oh, we missed our deadline, therefore we’re not charging you these fees. And time after time after time it’s incumbent upon my clients to affirmatively step forward and say you can’t charge me these fees because you missed your deadline. Sometimes the agency will say OK, you’re right, you got us. Often they’ll contest it. But as far as I understand the statute and the recent decision in CREW there’s nothing that requires an agency to affirmatively state or to affirmatively address the fee assessment slash deadline compliance issue in its response, in its final decision. And I think that that would be a very useful thing to enhance the process and reduce animosity so that the requesters are fully apprised of their rights, because most people don’t know that. Most people are not aware that an agency can’t assess fees. I mean people in this room, the professional FOIA people, know that, but people I deal with on a daily basis don’t know that and fees are commonly assessed even after agencies egregiously blow their deadlines. So that’s a major, major issue that Congress -- Congressional intent, I think, is being undermined in this regard.

MCCALL: So if I understand, I think what you’re suggesting is that perhaps we include some sort of recommendation of public education on fee issues?

BAHR:
Yes. I think that’s a best practice. The guidance issued from DOJ to agencies’ practice should say by the way, your final decision should address this, so that the requester is apprised of their rights regarding the fee assessment.

MCCALL: Yeah, I think as we’re having this conversation one more useful avenue of research would be to look at the way that this provision in the Open Government Act of 2007 has played out in case law.

NISBET: OK, so you all have that on your list and so noted. We need to wrap up. Do we have any last-minute comments for this subcommittee? We’ve heard next steps which is you all are going to meet in December. I’m sure you welcome additional people to be part of the subcommittee, so encourage everybody that hasn’t thought about that to be part of that subcommittee. It is a big, big issue, one of our three priority issues. OK, now we’re going to turn to everybody else in the room who have been very patiently listening and participating with your ears. So we’re going to take comments for the next 20 minutes. It’s now 12:30. If you wish to make a comment, if you wish to speak, we would ask you to come to the microphone, the standing microphone, so that your comments are part of the recording of the meeting. Please identify yourself and your affiliation and we would ask you to please keep your comments brief and to the point so that everybody has a chance to participate. We’re also going to take questions from those watching the live stream as time allows. If you are listening you can also go to OGIS, ogis.archives.gov, and you can also send us comments after this of course at any time at our email address which is foia-advisory-committee@nara.gov. So our first commenter.

BINDER: My name is Michael Binder. I’m with the Air Force Declassification Office, but I’m speaking here on my own, not representing the Department of the Air Force, Department of Defense or the US government, although I’m on fairly safe ground because right now the Air Force is having its biweekly FOIA teleconference so they should all be on that right now. I wanted to comment about two of the subcommittee reports. First the oversight committee. There’s a lot of oversight that’s performed now. Every hour that’s devoted to compiling information for oversight purpose is taken away from the actual processing of FOIA cases. And in the House-passed bill they put more oversight in which in my opinion adds nothing to make the FOIA process work better. So instead of additional oversight I would recommend alternative oversight, something that actually works. I think what you need to do is to tie the oversight back to the organizations and in that sense the GAO, OGIS or DOJ might not do it. It might have to be the Inspector General that would have to do it. In the Air Force units get inspected by the Inspector General. There’s probably a checklist, going to be a few questions about information protection, maybe there’s a question about FOIA, and that’s it. That’s the extent of it. I’m not an expert on this, but that’s my impression of how things are done. There really needs to be something more in depth and that needs to come back to the Air Force FOIA policy office.

But what I really want to talk more about is the proactive disclosure. I don’t think this is going to help really. We do a lot of work for National Security Archive. We can do a document and we will give 95% of the document to the requester. The appeal letter has already been prepared and it’ll come to us as if we had said in the letter of response, “You have one day to appeal.”  It comes back, it’s got the supporting document saying you’ve given this information away before, how come you’re not giving it to me again? If we gave the document away proactively we would still have to keep out the classified information and so what would happen is it would come back to us as a FOIA asking for that information. And then we would say no, we can’t do it. And then it would come back on an appeal. So instead of doing the review twice, the first for FOIA and the second for appeal, we’d be doing it three times, the first for proactive disclosure, the second for FOIA and third for appeal. And I just think that that’s not really going to accomplish too much.

The notion about putting every document up, scanning is very labor intensive. If we’re doing classified documents, which is the only thing that we do, we do that on the SIPRNET and then to post it we have to go to the NIPRNET and sometimes we have to do that by hand, each page on the scanner manually. And so that takes a lot of time, it takes a lot of server space, and if the requester community wants to buy us the servers that can put all these documents up there, maybe we could then work out a deal. But those are my comments.

NISBET: Thank you, Michael.

JONES: Can I respond quickly? I’d welcome a chat after about frivolous appeals. We can try and cut those down but I don’t think we do those. But we can chat. And then secondly, as part of the FOIA modernization committee I realize the classified world is tough, but for moving documents from the SIPRNET [Secret Internet Protocol Router Network] to the NIPRNET [Nonsecure Internet Protocol Router Network] by hand does not seem very modern and I think that’s something we need to think more about as we think with 508 compliance and other ways to modernize to bring FOIA back to the top tier of the world.

NISBET: Thank you and we definitely encourage communication between requesters and agencies, so you’re setting an excellent example.

MICHALOSKY: If I may jump in for 30 seconds, I’d talk with you offline because there is mechanisms that do that automated versus hand scanned.

HOGAN: I would like to add for Mr. Binder’s comments, and this is for the proactive disclosure, when you get to the end product if it’s a type of document that’s right for proactive disclosure, classified documents, that is a real issue. You know, how do we deal with that? Because you want to have that for a while. Because I have seen proactive disclosure of classified documents like he said, still request. We even won litigation over one. So how we handle that I’m not sure.

MCCLANAHAN:
Kel McClanahan. I’m a private attorney with National Security Counselors. It’s kind of interesting that we brought this up as a matter of communication because the first thing that I have to say is about communication between agencies and requesters, especially with regard to fees. And that is that y’all identified an issue but didn’t really get into it, the idea of the request for any and all records about X. And many of us who file these requests, both the professionals and just the generic requesters, file those because we get tired of really hyper-semantic narrow interpretations of requests. And we get tired of filing a request for, and I’ll use a litigation case that wasn’t even one of mine, I think it was an ACLU case, where it was so narrow that the CIA said they had no records about the "attention shake" interrogation technique because they called it the attention grasp interrogation technique. You know, stuff like that that they’ll go and they’ll litigate these issues to avoid conducting broader searches and so that leads us to file these requests for any and all records.

Now, understanding that it’s unlikely to change the culture of interpret it as narrowly as possible, a way to get around this is if I file a request for any and all records about a subject, because I don’t know what types of records you have, if you call me and say this is going to yield 50,000 pages, can you narrow it, my question is going to be tell me what kind of records you have and I’ll narrow it. But very few agencies do that. They’ll either deny it as over-broad or they’ll just process for the eight years or they’ll assess an enormous fee for it. And that’s something that’s really easy to work with. I’ve worked with OGIS, call the agency and say what are we talking about and through OGIS come out oh, turns out I only need about 10% of the records that you have. And that’s the first point I wanted to make about fees.

The second is also about fees, is there’s a phenomenon I have noticed recently in some agencies, in many agencies actually -- I won’t even name names because it tends to be fairly broad -- that I think y’all should look at when you come to fee assessments and that is the delay in making them. I’m running into agencies that I’ll file a request in 2011, they’ll say we’re processing, we’ll decide your fee category later, and in 2014 they decide that they want to assess a fee, they want to deny a fee waiver or something like that. Things that should have been decided long, long ago because pretty much nothing fee related involves what records you found, or even whether or not you have records. Fee waivers or whether or not disclosure of any responsive records would be in the public interest. News media is, are you news media, not are you news media and we found 50,000 records. And these are determinations that should be triaged very quickly so that if you do want to assess fees you assess them early, they’re appealed, if the person loses on the appeal you don’t process the request, you move onto the next one. And it’s something that can come really early in the process that would streamline it for a lot of agencies.

And that’s going to bring me to the third point which doesn’t really narrowly fit within any one of your subcommittees. It sort of goes across all of them, except for the fee one, oddly enough. And that is the proactive disclosure committee talked about how you can get records about something but you can’t get the underling information, or it’s harder to get the information in one format versus the other. And when I heard that, that reminded me of something that I’d been meaning to mention to you all before which is a growing trend among government agencies to interpret FOIA to be for records and not for information, to the point that some agencies are even making arguments in court that information in this database is not available to you unless you are logged into that database so it’s not responsive under FOIA. Only Xerox printouts of it are. And stuff like that that is -- I mean in my opinion, I’m biased because it’s my case, there’s no real defense for that, for giving me a printout of a screen shot that has words running off the page and I say I want the words that are off the page and they say that’s in the database, that’s not responsive under FOIA. That’s the worst example I can think of but there is this -- it’s happening more and more to me and the requesters that I work with of agencies going if it’s not on a piece of paper or it’s not saved as a discrete file in the system, it’s not FOIAable. And there’s lots of case law on this, this should be a no-brainer, but they’ve lost touch of that somewhere along the way and there should be a best practice when we’re putting together best practices of if it’s written down somewhere it’s a record, unless it isn’t an agency record, something like that. But what format it is in is completely irrelevant whether or not it’s FOIAable. And that’s all I have to say about that.

MCCALL: One real quick response. We are, Kel, looking at the issue of fees and other mechanisms to get requesters to narrow requests. I’ve heard frequently from agencies that the reason that they want to continue to assess fees is because it’s a mechanism to get requesters to narrow. So this is something that we talked about quite a bit at our subcommittee meeting. It’s something that we’re working on.

ZAID: I mean when we’re talking about some of the oversight certainly those issues of communication and narrowing with the public liaison position, I know I always encourage agencies, look, if you’ve got a question, interpretation of what I’m looking for, call me. Or any requester. Because a lot of the times, especially for those of us who are lawyers, when we do the any and all this is how we’ve been trained to deal with discovery requests because we want to make sure we capture everything and sometimes we capture far more than really what we want, but we don’t know that because, as Kel says, we don’t know what your record base and your systems are. And oftentimes if you can call us and you say you know you’re going to be grabbing all of these files generally and we’ll go no, I don’t want that and I don’t even want you to waste your time on that, you can totally exclude it. It doesn’t happen enough, quite frankly, and that’s something why we want to talk to the liaisons as well to have that better dialogue. You don’t want to put any particular requesters on the pedestal, but there are requesters who are, whether they’re lawyers or they’re just requesters who all the agencies know who frequently submit requests, that if you can build up that rapport with that individual you can really minimize your work within the agencies.

NISBET: Melanie.


PUSTAY: I just wanted to reinforce this whole concept of negotiating and talking with requesters. It helps me when I’m talking with agencies, it helps me to be able to tell them that requesters talk about how they appreciate being reached out to and that they are willing to narrow. It helps me pass that message on, so I appreciate you all saying that and certainly we’ve negotiated with Kel on many a request. And we’re in the process now of finalizing our FOIA e-learning training modules and we’ve really hit home on this quite a bit in those training modules, encouraging agencies to reach out and talk with the requester about the scope of the request, what’s entailed, and the benefits to everybody. So I think there it’s something that if we could just keep just expanding that kind of protocol it’ll be good all the way around.

HOGAN: I think something Kel brought up sort of talks about -- of a tension here. We have --

NISBET: Jim.

HOGAN: I’m sorry. Jim Hogan. Thank you very much, Miriam. Appreciate that. I thought I was distinguishable. (laughter)  Another tension we have we didn’t discuss in our subcommittee but I think it is -- the FOIA backlog. We have a lot of pressure to reduce backlogs from Congress, from requesters, from everywhere, and the administration. We understand and that’s important. And any and all requests does something to the backlog. And even the time to talk to the FOIA requester does something to the backlog. And a lot of times the FOIA officers are not the records managers, are not the ones doing the search. And that sort of adds up. So I’m not saying necessarily this is the case for all FOIA requesters, but a lot of times that’s in the back of their mind. They see this request, OK, that’s adding to the backlog, do I have to call this person? And we encourage them to and I definitely understand the points Kel brought up. He doesn’t have any idea what we have. He knows the subject matter, you know, what does he want? So maybe our committee can look at that somehow. I don’t know if there is a good answer for that because each agency, even within the Department of Defense, we have a myriad of ways records are managed and who’s got what and how we do it. And it’s a very difficult thing which there may not be an answer to, but there is that tension and we recognize it.

MULVIHILL: I just got a quick question. I don’t know the answer to this. I mean how frequently are indexes to federal government agencies updated and put out there? Because we make our students look at the records retention schedules before they -- or study the regulations so they know exactly what is kept and how they should ask for it.


HOGAN: That’s a good question. And many times, especially with electronics, let’s say someone on the Office of Secretary of Defense staff because I’m familiar with that, deals with issues in country X and they’ll probably, as they’re dealing with the issues they set up a file on the shared drive, add documents in and revise them, they change things, and then at the end there is a product that gets recommended say up the chain, we want to do this. And there’s maybe many, many emails between them and State Department and elsewhere. The emails don’t necessarily come within that index. And so the request comes in for National Security Archive and we want to know are we dealing with documents you have on country X and issue Y. Now that person’s got a file there. That file, because it’s still a working file, has not entered yet into an archival process yet and they’re still working on it. I’m just saying it’s sort of the reality with electronics. They’ve got a lot of documents in there and a lot of emails and the email, if we’re discussing with State those emails have got to be reviewed by everyone. So the indexes are sort of more general that don’t always to me answer specifically what’s in that action officer’s file on the staff. But I think their starting point in understanding the retentions helps a lot, but many times, put it this way, I think action officers want to save just about anything anymore, and rightfully so in some respects. So a lot of that is being caught into it and the FOIA officer doesn’t know what’s in that person’s file sometimes. But maybe in the subcommittee we need to talk about this more, absolutely.

NISBET: I think indexing is something that ideally would be at the top of the list, but it’s at the bottom of the list.

HOGAN: It’s a records management issue.

NISBET: Yeah.

HOGAN: Which, quite frankly, if you don’t have a good records management you don’t have a good FOIA program, I think.

NISBET: Yeah, absolutely. Thank you. Couldn’t have said it better.

MCCALL: I had a comment. Aren’t all of the agencies required to create enterprise data inventories under the recent guidance?

NISBET: Yes. Yes, but (overlapping dialogue; inaudible).

PUSTAY: I think what Jim is saying is that there’s just requests so often that encompass much more than a data set. It’s (inaudible).

HOGAN: Exactly.

PUSTAY: I think that’s it in a nutshell.

NISBET: The index is only one place that you can go and it’s sort of one piece of that. Absolutely. Any -- Maggie, I hate to cut you off.

MULVIHILL That’s all right, let’s move on.

NISBET: But I see we have another commenter and I want to be sure we get everybody in.

PRITZKER: I’m David Pritzker from the Administrative Conference of the U.S. and I spoke to you at this point at your first meeting to bring to your attention our recent project and recommendation that’s been alluded to a couple of times today. Mark Grunewald’s research and the report that you have a link to in your minutes. The only reason I’m speaking now is to call your attention to the fact again that there was a recommendation that came out of this. The whole purpose of our doing the study was to come up with a set of recommendations to OGIS and the agencies and just kind of peripherally a couple of sentences addressed to Congress. But that recommendation addressed several points that were spoken of this morning, in particular the matter of encouraging agencies to communicate -- where there were disputes, where there are differences, communicate with your requesters with or without the benefit of OGIS participation. And I was pleased to hear what Melanie said about incorporating this into your training. Our concept of who would be the chief people for this communication would be either the public liaisons or others in the agency that the public liaisons would be in touch with. The other thing that in our committee’s deliberations that wound up in the recommendations was improving and making more effective the roles of public liaisons so that, for example, in our recommendation there are some specific suggestions about what kind of training they should receive and getting greater institutional support from the leadership of their agencies. So that really is all I wanted to say, to emphasize that this recommendation is our ultimate product and the report is background for this and we hope that you can take the recommendation and run with it and incorporate it into what you do. Thank you.

NISBET: Thank you, David. A very important recommendation. Do we have anyone else who wishes to contribute at this time? If not, I’d like to remind you that we are always happy to receive comments. You can visit the FOIA Advisory Committee website where you can find the contact us comments tab. That is at ogis.archives.gov. And look for the FOIA Advisory Committee. So unless one of the members has something else to add at this point -- I’m looking around, people are looking hungry -- I think that we can pretty much wrap things up. I think we’ve heard very specific next steps from the subcommittees and we’re going to look forward to hearing about that additional work. I want to thank Bill Carpenter and Ellen Knight for our Information Security Oversight Office who helped us with moving people around this morning and getting you to where you needed to be, and also to the NARA AV [Audio Visual] staff. We appreciate that and glad that we had the additional live streaming today which we didn’t have in June. One final note. When you leave this building everybody, that is everybody, every visitor and every staff member, undergoes a bag check on the way out. Please know that it’s not for any reason other than we want to check every single person and make sure that nobody’s making off with our treasures, which we know you would not do, but please just cooperate. It’ll take just an extra minute or so for you to exit. And I want to thank everybody again, thank the committee members, thank you who are in the room participating, and we stand adjourned. Thank you.

    Date Posted: Nov 13, 2014 | Date Updated: Nov 20, 2014 | Last Reviewed: Nov 20, 2014


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