June 24, 2014 Meeting Transcript
National Archives and Records Administration (NARA)
Freedom of Information Act (FOIA) Advisory Committee Meeting
Tuesday, June 24, 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
- KAREN FINNEGAN
- ERIC GILLESPIE
- LARRY GOTTESMAN
- JAMES HOGAN
- NATE JONES
- GINGER MCCALL
- MARTIN MICHALOSKY
- MELANIE A. PUSTAY
- DAVID S. REED
- ANNE WEISMANN
- LEE WHITE
- MARK S. ZAID
COMMITTEE MEMBERS PRESENT BY PHONE
- DAVE BAHR
- ANDREW BECKER
- CLAY JOHNSON
- MAGGIE MULVIHILL
NON-COMMITTEE MEMBERS PRESENT *
- WILLIAM J. BOSANKO, NARA
- KIRSTEN MITCHELL, NARA
- LYNN OVERMANN, WHITE HOUSE OFFICE OF SCIENCE AND TECHNOLOGY POLICY (OSTP)
- CORINNA ZAREK, OSTP
- CHRISTA LEMELIN, NARA
- KEL MCCLANAHAN, NATIONAL SECURITY COUNSELORS
- CINDY CAFARO, DEPARTMENT OF THE INTERIOR
- GAVIN BAKER, CENTER FOR EFFECTIVE GOVERNMENT
- SARAH KOTLER, FOOD AND DRUG ADMINISTRATION
- DAVID PRITZKER, ADMINISTRATIVE CONFERENCE OF THE UNITED STATES
* ONLY INCLUDES THOSE INDIVIDUALS PRESENT AND QUOTED OR MENTIONED IN THE TRANSCRIPTS
NISBET: Get to your seats, and we’re going to be calling the meeting to order in about 15 seconds, thank you. May I ask before we start? Who do we have on the phone? If you could just give me your first name so that we know you’re there and who to look for.
JOHNSON: This is Clay Johnson.
BECKER: This is Andrew.
MULVIHILL: This is Maggie Mulvihill from Boston University.
BAHR: This is Dave Bahr from Eugene, Oregon.
BECKER: And Andrew Becker calling from Washington State.
NISBET: Great. Thank you. I think we’ve got one more member who’s going to be calling in but we’ve just about got a full contingent. Thank you so much.
BOSANKO: Good morning. I’m Jay Bosanko. I’m the chief operating officer at the National Archives, and it’s my sincere pleasure to welcome you today on behalf of the archivist of the United States, David Ferriero, for this first meeting of the FOIA Advisory Committee.
The National Archives has a unique role among federal agencies, which we often describe as preserving the past to protect the future. If you have time after today’s meeting, I encourage you to explore the records we have on exhibit in our museum, including a fascinating display of the most interesting signatures in our holdings and the stories they tell. “Making Their Mark” is located in the O’Brien Gallery, and will be on display until January of 2015.
As the nation’s record keeper, NARA’s role goes beyond preserving and displaying historical records. We also provide leadership on managing and organizing the records our government creates every day and making them retrievable through mechanisms like the Freedom of Information Act. The FOIA has provided the public with the right to access government records for nearly 50 years, and like anything that has been around for decades, FOIA continues to benefit from regular improvements, such as the types of legislative, executive, or policy improvements that this committee might suggest. It is important to note that FOIA administration and its process is not something that is or should be entirely government-run. It is a partnership between government agencies that implement the law and policies and the requesters who use the law and policies and can inform government where we can make improvements.
We worked hard to convene a committee that is reflective of the broad array of audiences that it must serve. Your diverse backgrounds and interests will be essential to crafting a new and better future for this important program. We appreciate the opportunity to provide a home for this committee and look forward to sharing what we have learned through our work as you discuss the future of FOIA, and to learning from all of you as well.
We want to thank you all for agreeing to serve on this committee. We know how valuable your time is, whether you traveled across town or across the country or are joining us on the phone today. Thank you for your service. Now I’d like to introduce somebody who to this group likely needs no introduction, Miriam Nisbet, the chair of the FOIA Advisory Committee.
NISBET: Thank you, Jay. And good morning, everyone. We’re really delighted to see such a nice turnout. We have quite a few people registered besides those who have already arrived. I think we might have a few more latecomers. So just a welcome to you all who are here. And we’ll be continuing to see people come in, I expect. This is a very exciting time for FOIA. We are very pleased with this committee to be part of a process that certainly started before the last year or couple of years. Many of you have been involved for a very long time, interested in FOIA, making suggestions about improving FOIA, being part of the process through making requests, through processing requests, through looking at policies of the government. And this is a continuation of that. But very specifically, we are part of a process that relates directly to the U.S. government’s National Action Plan for Open Government, for the Open Government Partnership. That is a plan the second version of which was announced last December. There were five commitments to improving the Freedom of Information Act. And this advisory committee was one of those five commitments.
As Jay mentioned, the National Archives and Records Administration is really a natural home for an advisory committee that is studying looking at FOIA and making improvements to it. The Office of Government Information Services, which launched just about five years ago, fifth year anniversary coming up in September, has a mission to provide mediation services. Some of you have taken advantage of those services or will take advantage of them I hope. And also to review agency FOIA policies, procedures, and compliance, and recommend improvements. So it’s really that mission, the mission of the National Archives, to provide access to government information, the core mission. The mission of OGIS really dovetails beautifully with the mission of this advisory committee.
What I’d like to do is before we get any further to have everyone, all the members, introduce themselves. And I’m going to ask you to do that in a very brief way. If we had everyone explain their paths to this meeting today, their history with FOIA, I think that could take up a very good part of the meeting time. So what I’d like to do is ask for people to introduce themselves by their name, the position they currently hold, and certainly as our meetings go on remembering this is a two-year process I think people’s connection with, their interest in, their experience with the Freedom of Information Act will come through through our discussions and our deliberations.
Before we do that, I do want to just remind everybody we are being videotaped. And the recording as well as a transcript of the meeting will be available to the public hopefully within about a week. That will be available on the OGIS Web site where we have all of the meeting materials available, and so for people who are not going to be with us today they’ll be able to follow our proceedings over the next several hours. So let’s start with our members. I will note that we have two members, Delores Barber from the Department of Homeland Security, and Michele Meeks from the Central Intelligence Agency, who are not able to be with us today because of previous commitments. We’re delighted that we have 18 of the 20 though here in person or on the telephone. So let me start with the people who are on the telephone and ask you to introduce yourselves. And I think if we just go in alphabetical order we would be starting with Dave Bahr. Are you there, Dave?
BAHR: I am. Yes. Thank you. I’m sorry that I’m appearing by phone rather than there in person. I look forward to meeting you in person at some of the following meetings. But just very briefly. I am a lawyer. I represent requesters seeking information from the government either state or federal all around the country. And I hope that I can illuminate some of the issues and concerns that arise in that context in this process to try and make the FOIA operate better for all involved.
NISBET: Thank you, Dave. Andrew Becker? I know you were there earlier. OK, we’ll see if Andrew will -- I’m going to ask maybe one of our OGIS staff members to send an email or text to Andrew and see if we can get him back on the phone. Clay, I think you’re next. Oh boy.
JOHNSON: Sorry. Here I am. Can you hear me?
NISBET: Great. Yes, we can. Good morning, Clay.
JOHNSON: Sorry. I’m very studiously muting my cell phone because I’m at home with a sick two-year-old who desperately also wants to participate in the federal advisory committee and add. But I think I might be the only one who can understand him. I’m Clay Johnson. I’m with the Department of Better Technology and a big fan of everybody’s work. Thanks very much for having me here.
NISBET: Thanks, Clay, and thank you for that reminder. For people who are on the phone, if you could mute except for when you’re talking, that would help. And welcome to Clay’s two-year-old. I’m sure this is a good civics lesson. Maggie?
MULVIHILL: Hi, everybody. Can you hear me?
NISBET: Yes, we can.
MULVIHILL: OK. Hi. My name is Maggie Mulvihill. And I’m a professor of journalism at Boston University. And I’m also a lawyer. I’m interested in how we teach FOIA at the higher education level and also how we use technology and data to look at how the federal government works. And really, I’m absolutely elated to be included. Thank you so much for having me. I look forward to meeting everyone.
NISBET: Thank you, Maggie. And hopefully we’ll have you in person at another, at a future meeting.
MULVIHILL: Of course.
NISBET: Do we have Ramona on the phone yet? OK. Ramona Oliver from the Department of Labor also is going to be calling in. She had a conflict that did not allow her to be here in person. And hopefully we will hear from her before long. So let’s start with those at the table and I’m going to ask Jim Hogan and then we’ll just go around the table here.
HOGAN: I’m Jim Hogan with the Department of Defense, Freedom of Information Policy Office.
MCCALL: Hi. I’m Ginger McCall with the Electronic Privacy Information Center. I’m associate director of EPIC and director of EPIC’s open government project.
REED: I’m David Reed. I’m assistant chief financial officer at the Federal Communications Commission.
WHITE: I’m Lee White. I’m the executive director of the National Coalition for History.
PUSTAY: Melanie Pustay. I’m the director of Office of Information Policy at Department of Justice.
GILLESPIE: I’m Eric Gillespie and I’m the CEO of a company called Govini.
NISBET: Miriam Nisbet, National Archives.
JONES: Nate Jones, National Security Archive, which is a non-government FOIA requester.
FINNEGAN: Hi. I’m Karen Finnegan. I’m deputy chief of a division at the State Department that handles FOIA policy and FOIA litigation.
ZAID: Mark Zaid. I’m an attorney here in DC and the executive director of the James Madison Project.
MICHALOSKY: Hi. I’m Marty Michalosky. I’m the FOIA manager at the Consumer Financial Protection Bureau.
WEISMANN: Anne Weismann. I’m chief counsel at Citizens for Responsibility and Ethics in Washington.
GOTTESMAN: And Larry Gottesman, the agency FOIA officer at the Environmental Protection Agency.
NISBET: And I’m just going to mention that Kirsten Mitchell, who is at the end of the table to Larry’s right, is a staff member with the Office of Government Information Services. And she is going to be taking notes this morning to help us fill out the record of this meeting. So Kirsten doesn’t have a microphone over there. But thank you, Kirsten, for being willing to be our notetaker. And again welcome to those of you who have arrived. We are delighted to have you here at the first meeting of the FOIA Advisory Committee.
So let me take a few minutes to talk about some ground rules, some housekeeping, some expectations, if I could. So now that we’re all gathered, I do want to let you know that we’re going to take a break at some point. We will take a 15-minute break. We’re going to be aiming for doing that at around 11:20. So just slightly more than an hour from now. And we will have people who can help point you to the cafe, which is two levels down, in case you want to grab a cup of coffee or a bite to eat. There are restrooms on that level as well. And there are also restrooms available to you at one level down, where you entered this morning on the ground level. There are restrooms in the research room, and you are free to use those as well.
I mentioned before all the materials for this meeting are available on the OGIS Web site. There is a handout. I’m seeing the handout in people’s hands. So just note that on that handout is the URL for the OGIS Web site where the committee materials are housed and will be housed as we go along. We will be having meetings up to four times a year and we have picked some tentative dates to roughly correspond with the date of this first meeting. So we’ve aimed for the Tuesday of the third week in every three months from now. We have listed those dates on the handout and provided them to the committee members. We know that not everyone is going to be able to make every single one of those dates. But we’ll do the best we can. And hopefully by having them ahead of time you can mark those dates out. If you are looking for them and not seeing them in your materials, we will get them to you after the meeting. The next meeting is going to be October 21st. So that one for sure, please, if you could make a note of that. But we will give you all of those dates.
By the way, I’m referring to, and you will see, that the members of the committee have a binder in front of them. The materials are pretty much those that have already been made available through the Web site. But the entire binder in electronic form will be available hopefully by the end of today. We were having technical difficulties yesterday. But we have the National Action Plan, a few related materials, the text of the Freedom of Information Act, a compilation of OGIS recommendations to improve FOIA, which is part of our mission. We have the charter for this committee. We have a number of documents related to the Federal Advisory Committee Act, including the final rule issued by the General Services Administration. We have a committee membership list and biographies. Those again are available on the Web site. And then we have the agenda and logistics materials for today. So no mystery there. That’s what’s in the binders.
What I’m realizing that may not be in the binders yet is the information on the handout that has the tentative future meeting dates. So look no further. We will get those to you when we have our break, members.
We are going to be drafting and developing bylaws for the committee. That is a task that the committee will need to turn to, mainly to flesh out some of the operating procedures such as are already laid out in the charter. And we will be working on that.
Just a reminder. I don’t probably need to remind anybody of this. But because we’re dealing with the Freedom of Information Act, our interest is very strongly that of making sure not only that we have an open meeting, but the materials and the way we operate are as transparent and open as we possibly can. I think that we have a number of people who have been following the setting up of the committee who are very interested in the proceedings. And between the committee members themselves who are dedicated to this process and those of you who are going to be contributing in other ways, I’m sure that if there’s any way in which we are not as open as we need to be, you will not let us down, you will let us know. And we will hear you and try and rectify that. But just do know that we are trying to do that, but for those of us -- none of us on the committee have previously served on a federal advisory committee. And we are learning a bit as we go. It’s an interesting process.
Also, we are working on developing a collaborative workspace. We haven’t quite got that down yet. But we’re trying to do that. That’s something that would need to be open to all the members. There are some difficulties we found with agencies not necessarily using the most up-to-date information technology so that -- I know that’s a shock. David Reed for example from the FCC has started the process of trying to set up a collaborative workspace for us. David, thank you for that. I don’t think we have it up. And not necessarily is everyone able to access. I think it was going to be a Google --
REED: I put it up as a straw man just to play with and see what’s going to meet our needs.
NISBET: We’re working on that. So we’ll keep everybody informed on that. And of course, we’re going to want to listen to those of you who are in the room. We have set aside a portion of the meeting at the end to get public comments. But I know that also you will not hesitate to talk to any of us, to talk amongst yourselves, to talk to your colleagues. And we want to hear the good ideas that all of you have. A reminder again. This is a two-year effort. We’re not necessarily going to be able to identify every single thing that we want to look at or every single issue today. Certainly not solve all of those problems. But we’re going to make a start, and I think we can make a lot of progress pretty quickly.
So what we’re going to be doing today is starting with -- we’re going to be moving into the next part of our meeting with a brainstorming session. We’re going to be looking at various projects that we might consider, and then we’re going to be selecting three projects that we are going to focus on. That is going to be an interesting process. We’re going to be led in that by Lynn Overmann, who is a senior adviser at the White House Office of Science and Technology Policy. And I am as curious as you are to see how that works and what we come up with. So, Lynn.
OVERMANN: Good morning, everyone.
NISBET: Good morning. I’m going to turn it over to you.
OVERMANN: So I’m very pleased to be here today. This is actually something that we do very frequently in the Office of Science and Technology Policy as it’s a way that we can really get everybody creatively brainstorming, identify ideas that you have, but not only -- what we see with this is what’s really great is oftentimes you all have very similar and overlapping ideas that we can identify through this process, and we like literally put them up on these boards, and then we have you vote. And what we’ve learned from that is it can help people in recognizing commonalities, see where --
MULVIHILL: Excuse me. This is Maggie from Boston. I’m sorry. I can’t hear.
OVERMANN: Apologies. And really come up with some great projects that people are very enthusiastic about. So we have a few tools of the trade that are actually right in front of you. You have a sticky pad. You have a Sharpie. And what we’re going to ask you to do first -- I’ll go over the whole process, and then we’ll start with the brainstorming. The first step that we will do is we’re going to ask you to brainstorm ideas, at least three each, but you can do more if you’re feeling energetic this morning, and the only framework we want you to keep in mind is, if you can, try to bucket them into these three different steps. Process, policy, and legislative. You may have one or more ideas that cross the boundaries there. If that’s the case, iif you could write each idea on two separate stickies so that we can put them up. What we’re going to do at the end is we will physically place your stickies here and group them. And then we’ll vote at the end. So those four red stickers are the stickers that you will use to
vote on the ideas that you like the best.
You can use all four on one idea if you think it’s particularly genius. You can use one per each, whatever it is that you want to do. So we’re going to give you 10 minutes. You can either write your ideas out, or if you’re particularly artistic, you can draw them. Some people like to do that. I am a terrible artist so I tend to write. And I also have terrible handwriting. So ideas that you think fit into this that would be your top suggestions to improve the FOIA process, policy, or legislative fixes that you think are required. We’ll give you 10 minutes to do that. At the end of 10 minutes we’ll come back and ask each of you to do a rapid pitchout of your ideas and we’ll see what we come up with. So we’re going to go ahead and start right now. And if anyone has any questions now is the time to ask. All right, great, go ahead.
JOHNSON: How would you like for us on the phone to participate in this part?
OVERMANN: I apologize. I forgot about the folks on the phone. Folks on the phone, especially the one with the two-year-old, have him do your drawing for you. But if you just want to go ahead and write down your ideas or figure out, we’ll ask you to share them on the phone, and then perhaps someone here can actually just jot them down on a sticky pad for us. Then we can make sure that we include your ideas on the boards as well.
JOHNSON: OK. So we should write them down now and then someone will ask us about our ideas later? Is that the plan?
NISBET: Yes, that is what we will do. So you are thinking and writing for the next 10 minutes.
JOHNSON: I’m always thinking and writing.
OVERMANN: And you can use crayons if you want.
NISBET: Yes. And the instructions are you can use crayons if you’d like.
OVERMANN: Three-minute warning, everyone. I know 10 minutes feels like a long time. Right?
NISBET: Did we have somebody join on the phone in the last few minutes?
BECKER: That was me, Andrew Becker.
NISBET: Oh, Andrew, great, we’re glad to have you back.
BECKER: I’m just having some technical difficulties with my Internet connection.
NISBET: Well, hang in there. And did you hear the instructions about coming up with some ideas for improving FOIA?
BECKER: Yes. And the 10 minutes are almost up.
NISBET: OK, thank you.
OVERMANN: All right. Time is up. Going to have my colleague Cori, who you all know, who’s leading our open government efforts, be our runner. So who should we pick on first? Should we start on this end? Of course start on the opposite end from where Cori is. Start with your first idea. We’ll go through.
GOTTESMAN: Something I’ve been advocating for. Uniform fees for FOIA processing.
OVERMANN: And which bucket would that go in? Does it require legislation? Or is that a policy?
GOTTESMAN: I don’t know. What do you think? It’s probably both. Because I guess OMB could say that the fees across the board are “X” because they do have the guide.
ZAREK: What else we got?
GOTTESMAN: Second one, some uniform regulations. Be nice if the public had one set of regulations. That’s policy, clearly policy. Third one clearly legislation, those of us know we have 20 working days to process requests. Some requests are probably easily processed in 20 days. Some of these requests, if it takes us six months to process the public is happy. However, the statute says we have 20 days to process. Maybe some way of saying simple request maybe 20 days, if it’s a complex request maybe 60 days, I’m just throwing numbers out. And the last one, which you probably all guess. Some kind of consolidated FOIA portal, location, repository, someplace for the public to go one place and submit the request, agency process the request, and receive their records electronically.
OVERMANN: That’s a popular one I can tell you already.
ZAREK: Excellent. All right. Anne.
WEISMANN: OK. First study of agency FOIA backlogs, cause, effect, solutions.
OVERMANN: That sounds like policy. Right?
WEISMANN: I think it’s probably both. But I’ll leave that to you. Harnessing technology government-wide, what’s available, how can it best be used.
OVERMANN: That sounds like process and also related to the single portal but not exactly the same.
WEISMANN: Related to fee policy, evaluating and fixing it. That’s probably legislative, just like Larry said. I took the liberty of doing a couple extras. OK. Developing cross-training for agency FOIA personnel and requesters. That would be process. And building in a permanent role for requesters in formulating FOIA policy, that would be policy.
OVERMANN: All right. Moving on.
MICHALOSKY: All right. So I have technology for process, specifically even searching. We talk about emails and we’ve heard about emails. So things like that. So how do we leverage technology to do that efficiently, effectively, and quickly? I think this is policy, but agency training and education. Not just FOIA professionals but every employee. How do people respond to FOIA? Usually not very well. “I have to do this. Do I really have to do it? What do I need to do?” But understanding what is FOIA and what do they have to do.
OVERMANN: Do you think policy or process?
MICHALOSKY: I think it’s policy because I can talk about it all day long but I need a little bit more than just my words so to speak. And then I have more oversight. I think this is probably -- I don’t know if it’s policy or legislative. But more oversight, expanding DOJ’s role, and OGIS’s role. But also audits. Being more proactive. Are agencies doing what they’re supposed to? And be consistent versus just the annual report.
OVERMANN: I’m going to put this along the edge between these two. All right.
ZAID: OK. I’ve got increasing and/or restoring public confidence in the system, particularly through enhanced communication between the agencies and requesters. Some agencies are fantastic, some agencies after doing this even for 20 years won’t return my damn phone call. Policy.
OVERMANN: I feel like that’s related.
OVERMANN: I think that’s related to an earlier suggestion on cross-training for -- OK.
ZAID: One of the things we always hear is it’s easy for us as lawyers to file our own FOIA lawsuits. Doesn’t sway me in the slightest. But for most people who use it litigation is very expensive and difficult and not something they know. So creation of an independent authority that can adjudicate the disputes between the agencies administratively. And it could just be giving more teeth to OGIS the way some countries have actual ombudsmen.
OVERMANN: That sounds like policy and it seems related to --
ZAID: Policy, maybe legislative too.
OVERMANN: So we’ll put it in this little corner here. Oversight and independent authority.
ZAID: The third one is somewhat of an echoing of what we’ve heard already. Enhancement of the online capabilities such as tracking progress.
OVERMANN: Excellent. Feel like there are going to be a few stickies in that space. OK. Moving on.
FINNEGAN: OK. My first one is to develop an avenue to access immigration records that is outside FOIA and/or simplify the FOIA process to access these records. Because there’s several departments that deal with huge numbers of requests for these records.
OVERMANN: Do you think that’s policy or process? A little bit of both?
FINNEGAN: Yeah, I think it is. I think more policy. But --
OVERMANN: We’ll put it here. OK.
FINNEGAN: I also have build a stronger bridge between FOIA and records management and mandate annual training in both areas for federal employees.
OVERMANN: Excellent. That matches this. OK.
FINNEGAN: And then I have create standard performance criteria for federal employees that address FOIA and records management responsibilities.
OVERMANN: Excellent. I feel like that’s a little between more oversight and consistent agency training. OK.
JONES: All right. I took your mandate and ran with it. So I have aim for one year max for every request. That’s a good rule of thumb. One way to do that --
OVERMANN: Do we want to put that in legislative related to the --
JONES: I would say process but it might bleed in. One way to do that is to improve the referral process. Some of our 20-year-old request are 20 years old because of the referral process. Increase discretionary releases. Everyone talks about it. I’d like to see it happen more. That includes (b)(5) exemptions and the ODNI actually said a quote at the Sunshine Week that said, “Not can we withhold but should we?” Like to see that used more.
OVERMANN: Excellent. That sounds --
JONES: I’ll let you decide. Policy I guess, sure. I have reduced fee animosity like Larry was talking about. I’m outside the government. I can say that.
OVERMANN: We said that that was crossing both so I’ll put that one on the policy side.
JONES: Something that we’ve kicked around a long time is litigation review. And we think there are some FOIA cases in the courts right now that could be dismissed. The memo yesterday. The Department of Justice to their credit said, “We’re not going to appeal, we’re going to release it.” But they could have done that earlier in our opinion. I would say that’s probably policy.
OVERMANN: Yeah. I think that’s in the cloud of the oversight, independent authority, and proactive.
JONES: And then related to that I would also say get Department of Justice, not OIP, the civil division, to think long and hard before defending FOIA withholdings. So maybe have tougher discussions with agencies saying, “We’re not going to withhold that or we’re not going to defend that in court. You have to release it.” Or maybe tie in OGIS. And then last, sorry, guys. Post exponentially more FOIA releases online and move it so that the default is posting the releases online.
OVERMANN: Excellent. And from the perspective of our chief technology officer, I would just caveat this with making it machine-readable so it’s easier to search and people can pull and share as they please.
NISBET: I’m going to add another to reforming. I put the word reform. I’m not sure if that’s the right one. For fees and fee waivers.
NISBET: And this is a crazy one but revise the statute in plain writing. I feel like this is going to get a lot of votes. I don’t know. Just a thought. On the process side I think this fits in with some of the others. But building accessibility into IT procurement. And that would work for FOIA and for records management issues. So a little bit related.
JOHNSON: That’s crazy talk.
NISBET: I’m sorry.
JOHNSON: I was just saying procurement reform is crazy talk. This is Clay Johnson.
NISBET: Maybe I have a buddy on that. Another one that’s legislative but could be policy is reducing and clarifying Exemption 3 statutes, which are the statutes that prohibit release of information. Here’s a process one. Having some sort of a triage system at agencies for tasking searches so that records are not disposed of or lost while pending in a queue.
OVERMANN: Interesting. Do you think that’s policy or process?
NISBET: It’s both probably. And this one I guess is process, which is standardizing FOIA Web sites. And I just do want to mention, and I know you all are aware of this, but I want to say it in case people are not. Remember I mentioned in the beginning in the introduction that this advisory committee is one of a number of initiatives under the Open Government National Action Plan of the US government. And some of the things that have been mentioned are projects that are under way. Having a common rule or regulation, having one consolidated Web site for making requests. So those are things that I think everybody recognizes. And training as well. Those are all in the works.
GILLESPIE: So I think my three are process. I’m going to pile on with the single point of access and a central repository that’s searchable. Architectural standards for data and documents. Including machine-readability.
OVERMANN: Yay. Thank you.
GILLESPIE: And then lastly establishing a set of metrics and benchmarks that track transparency and the efficacy of the process so that there’s visibility into how agencies are performing and how requesters are requesting.
PUSTAY: My first one is improving the ability of agencies to proactively post information by simplifying or possibly modifying Section 508 of the Rehabilitation Act to make posting easier.
PUSTAY: That’s probably legislative. And then improving the ability of the public to gain access to proactively disclosed information by greater utilizing metadata tagging.
OVERMANN: These are all words we love.
PUSTAY: And then building on that even more improving both the quantity and the quality of what is proactively disclosed by moving beyond FOIA offices and having greater engagement across the agency. And then my last one is expanding the use of IT tools to help agencies achieve greater efficiencies in actual processing of records.
OVERMANN: That actually sounds a little different from the portal piece, right?
PUSTAY: Yes. It’s more tools for the processing.
OVERMANN: It’s more for agencies. Right? Great.
WHITE: I’m embarrassed because mine are somewhat parochial and the word historian is in a lot of them.
OVERMANN: We need those perspectives.
WHITE: Well, yeah. One would be to aggregate FOIA requests by topic to identify subjects that can be prioritized for processing and release. So if the Department of Energy is getting FOIA requests on one topic and if you had somewhere to track them by subject area.
OVERMANN: That actually -- that’s the metadata.
WHITE: I don’t know if that’s a dream. But some agencies have history departments, not a lot of them, but they do. But FOIA offices at agencies with history offices should engage them and seek advice on requests. So again they can help out with maybe finding the records faster than if it’s just done haphazardly. And the other one would be to have your office, OGIS, work closely with the National Declassification Center to develop processes to expedite declassification.
OVERMANN: Excellent. Thank you.
REED: I have one that clusters with the suggestions regarding metadata. This is to design record systems for easier and more accurate redaction. And I say this is actually broader than metadata and automated systems. I think it extends even to the design of paper forms, which unfortunately a lot of agencies are still using. That we should be looking every time we set up a record for what are we going to do when the time comes to release it, have we determined what is or isn’t releasable. I have two that cluster I guess with the suggestions about oversight. One is to improve the accuracy of agencies’ FOIA work hour reports. I don’t think we actually have good information about how much time is spent processing responses. And then the second is to audit a sample of FOIA responses for proper disclosure. Right now in general we just rely on respondents’ protests, appeals, as quality control. But A, respondents don’t always have the resources to appeal, and B, there are some mistakes that respondents don’t have an incentive to appeal. So we should be doing our own quality control.
OVERMANN: Excellent. Thank you.
REED: And then finally just adding a vote to all the previous suggestions with regard to proactive disclosure. The public should be able to see what the government’s records are without the requester or the agency going through the expense and delay of a FOIA request. The information in general should just be out there for people to look at.
OVERMANN: All right. Onward.
MCCALL: This one is a policy suggestion. Proactively disclose popular classes of documents. For instance contracts, congressionally mandated reports. Use an audit either of a year’s worth of FOIA requests or six months’ worth of FOIA requests to identify what are popular document sets. And then prioritize those for proactive disclosure. This one is legislative. Legislate for more funding or shift funding internally within the agency to give FOIA offices more resources to hire and invest in new technology. Aiming for the stars here. And while we’re at it, while we’re aiming high and being aspirational, a legislative fix, I think. A (b)(5) exemption balancing test of foreseeable harm of disclosure versus the public interest in disclosure. Another legislative fix here to create a unique identifying phrase that allows advocates and interested parties to identify and track (b)(3) bills as they move through Congress. This is a process.
OVERMANN: You can do a hashtag.
MCCALL: Yes, that would be nice. This is a process or policy suggestion. Greater outreach, especially via phone and email, to requesters to work with them on ways to narrow requests. I think this would help to whittle down the backlog, get more things into the simple track instead of the complex track. And another policy fix or potentially legislative. Presumptively include all IRS-designated 501(c)(3) organizations as educational or noncommercial requesters for favored fee status.
HOGAN: Well, since I was at the end I knew there would be no white space left up there after this group. So I only have three.
JOHNSON: You’re not even the end. Remember the people on the phone.
NISBET: We are not going to forget you.
HOGAN: I’m at the line actually, not virtually. First is legislative. It’s been mentioned several times. Revise or eliminate fees at least for noncommercial requesters. Look at seriously what we have there. Commercial requesters, let them keep paying. The next one in between policy and process. Promote more agency interaction between FOIA and open government slash transparency offices. In the DOD we’re right now planning, and hopefully within the next six months, have my office in the same office with transparency open government. But that’s not true at all agencies. And for those of us in FOIA our mandate is what the FOIA is. Proactive disclosure is not part of what we do necessarily. So some kind of direction to get agencies interacting more in that regard. And the last one I have is policy moving into process. And building on what Ginger said about proactively disclosing contracts. Part of the problem is we don’t have a process to determine what is commercially confidential or not. You have Executive Order
12600 if a request comes in. But you have no other process. If you say, “OK, I got a contract going to proactively disclosed, to deal with line item.” So some kind of process that is developed that can facilitate proactive disclosure of items in contracts. That’s all I have.
OVERMANN: Great. All right. So we’ll turn to the folks on the phone. I’m going to need someone in the room who writes quickly and neatly. Cori. Excellent. So we will be taking down your ideas and we will be putting them up on our ever filling boards here.
NISBET: So why don’t we start with Dave?
BAHR: All right. Thanks. Everybody is -- my whiteboard in my mind has been filled in by all the great suggestions. But one thing I haven’t heard is actually the first one on my list, which is to increase the culture of professionalism for non-Beltway FOIA staff. For those of us out in the hinterlands that’s the big issue. Somebody else mentioned providing teeth for OGIS, which I heartily endorse. Great folks that don’t have any mechanism to actually make the agencies do anything. And somebody else also mentioned -- I think the term was to reduce fee animosity, which I love. That’s a big issue for the requesters. And I would like to highlight that.
ZAREK: Put plus one next to that.
OVERMANN: Great. Is that all?
BAHR: Yes. That’s it.
OVERMANN: Excellent. Other phone representatives?
NISBET: How about Andrew? I think we’re going to stick with alphabetical.
BECKER: Sure. I also have to echo a lot of suggestions pertaining to the machine-readability, the standardization. So I’ll throw out a couple of ideas. One would be a process. I think this falls under customer service type of thing. Better mechanism for communicating with FOIA offices. Specifically have -- better communication, if there’s issues around things of that nature.
NISBET: Andrew, this is Miriam. I’m sorry to interrupt you. But you’re breaking up a little bit. Is it your connection? Or is there any way you could -- thanks.
BECKER: It is probably my connection. Is that better?
ZAREK: I think we captured it.
NISBET: We’re good. Continue.
BECKER: Sure. This is under legislative. I would say more oversight. DOJ role having more. And then finally this could probably -- policy. Transparency in the full FOIA, in the handling of FOIA in terms of who, what, how, and why are things searched internally. The requester can be sure that whatever records he/she is seeking there’s been a thorough search and there’s accountability in that search.
NISBET: And Andrew, I think it wouldn’t hurt for you to maybe send those. If you would just send those to us in writing as well because you were breaking up there.
BECKER: Sure. Happy to.
NISBET: Thanks. Clay.
JOHNSON: Hi there. So I’ve got three ideas. The first one is legislative but it’s really just follow-on to do something with 508 compliance. My idea would be a three-year 508 exemption for FOIA documents. Generally think stuff a bit older is almost impossible to ensure 508 compliance. Some of the stuff that’s pre-Internet especially. So coming up with some way to get FOIA documents outside of the 508 stuff is important. The second one is probably the only idea that hasn’t come up yet, which is standard redaction technology. It seems like redaction, especially of personally identifiable information, is one of the big holdups around this stuff. And so developing -- I know my firm, we work a lot with open data stuff. When I was director at Sunlight Labs we worked a lot with open data stuff. And we made it relatively cheap to scan documents and identify Social Security numbers in a bunch of PDFs and redact that personally identifiable information. So I think that that kind of technology needs to be encouraged. Develop a centralized -- government -- speaking of centralized inside of government, my third thing is -- and I’m probably going to take a radical approach here -- I will probably be the only person on this committee that vehemently opposes a centralized repository of FOIA documents with a singular search interface, because I think that the federal government historically has a really bad track record of developing centralized portals of that regard. And we can see from HealthCare.gov or SAM.gov or I could spend all day listing off those centralization efforts and how they failed. And instead what we should be aiming for is a standard set of FOIA protocols that are vendor requirements. A bunch of open APIs that are well documented that are vendor requirements -- that are implementing FOIA technology inside of agencies. And if those APIs are developed right then we will have all kinds of central repositories and the FOIA request can go to the right place. And the FOIA responses can be indexable, crawlable, and findable. Especially and specifically for the public where they search for the most, which isn’t on FOIA.gov, it’s on Google. So I think we in this committee need to not think how do we invent Google but for FOIA but instead think about how do we get FOIA documents into Google. And so there’s a set of protocols now -- service requests into government called Open311. And so I’d like to see an Open311 set of protocols but for FOIA developed. So those would be my three.
OVERMANN: Is that everyone? OK.
OVERMANN: Oh. Sorry. One more.
MULVIHILL: Hi. I guess I’ll start with policy. I don’t know if I’m the only person who’s representing higher education full-time. But since I teach FOIA and since it’s an interesting process to teach students what their rights are, number one, and that they should be aggressively asking for government information, I’d like to see more either student representation or student input into this whole process. Since we’re training the next generation of journalists and policy makers and educators. I’m not really sure whether or not any students applied for these positions. I’d like that. But how we can use universities and secondary schools to promote open government. It’s important to me. Whether or not at some point we should have a FOIA MOOC or some sort of online education module to come out of this committee would be interesting. That was my idea about policy. Including the student component into it somehow. On process, I’m probably just repeating what other people have said, but the elimination of paper, as simply as I can state it. I recently got some documents from a year after I filed a FOIA request, federal government paper documents. And the elimination of paper is something that I struggle with all the time as both a working journalist and as a teacher. And again given the open source tools and the codes, possible code that could be written to get some of these records. For example, I have a computer science student at BU right now who’s been scraping state Web sites fairly easily. And I just think that there can be some better ways the technology can be integrated into the whole FOIA process, getting records. So I’d like to talk more about that. And then on legislative oversight, I’d be curious to know what we could do from this committee top down to educate state lawmakers about FOIA. I’m just speaking from Massachusetts, which does not have strong public records law. In fact probably one of the worst according to the Center for Public Integrity’s state integrity study that was done last year, which my students and I did the reporting on, and we got an F in open government issues in Massachusetts. And I would like to see more education of state lawmakers on the meaning of open government and how the federal government is dealing with this i.e., this committee. And then I would also just on oversight -- it would be -- someone mentioned earlier the cost of denying access. I would like to see at some point a quantification of -- whether this could be an ongoing quantification of the cost to prevent access to records. If there’s any way that we could assess how much the government is spending to deny records, whether it’s an assessment of how much costing for a lawyer to do redactions or paying outside counsel. But it would be really helpful I think to look at this in terms of money spent. Probably a very big project, but I would be curious to see it. I mean in Massachusetts for example we tried to look at government spending on sealing records in federal court. And we weren’t able really to get the information, which I can -- another time. But numbers and I’d like to see what those are at some point. So that’s it.
NISBET: Thank you, Maggie.
OVERMANN: All right. So we have everyone’s input. I did my best to cluster them because I want to just walk through the clusters of ideas that I think we’ve all heard as we’ve gone through the process. And this way if you want to vote on a broad cluster as opposed to a specific idea you can put your dots in the middle of them. I’m going to caveat at the beginning. Miriam pointed out that there are some projects that are already under way that it may not make sense for you guys to take on as an independent project. But be sure that this committee is informing those projects. That would be the online portal, so I tried to cluster the things, the suggestions that were made that I think fall pretty squarely into that spot. And the uniform regulations. So I think it may make sense to set those aside so that you guys can focus on things that aren’t already under way, obviously recognizing we want your input on that.
So just to clarify the voting process. You all have your four stickers. You all get to vote. The top three projects are going to be the projects that you all will then brainstorm further on and take on as the projects that you’ll move forward with. So actually you guys did a fantastic job. A lot of these really clustered in topic areas that were really interesting. A lot of energy around proactive disclosure and a lot of really great suggestions about ways that that could be improved. There were some really interesting notions on IT tools specifically for the government. I heard this in two different ways. One for the internal processing and efficiencies within government. And then also how that can be used externally as well for people to more easily search, prioritize, and get the information out to the public in a way that makes more sense and is a lot easier to access. Heard a lot of really -- there’s a lot of energy around fees. We ended up putting it on both sides but we can just pick whichever one you want. If you want to vote, I suggest that we vote one fee project and then figure out how that could cross both legislative and policy. A lot of heat and energy around more oversight and figuring out where that should land, if it should be OGIS, if it should be DOJ, but a more formal oversight authority that would cross the federal government. But then related but I think pretty separate is also how we can increase metrics, transparency, auditing, and accountability within government so that we’re tracking our programs, making sure that they’re actually doing what we think they’re supposed to do, and figuring out how we can improve them. There was also an internal agency focus on training and increasing communication, understanding, and FOIA as a cross-agency issue as opposed to just FOIA offices and the open government advocates. And then there was a lot of energy around figuring out ways that we can more effectively communicate with the requester community, both on the policy side of the shop but also in the process of requests, so that we can try to eliminate or narrow them down in a way that makes the most sense. So we clustered those together. There were a few that were individual. And I think the legislative ones by their very nature -- I’m sorry -- were a little bit more independent. So I left those separate. And another thing just I can confess as a lawyer. I found the litigation review actually, I thought that that was worth its own little bucket. It may make sense to fold that in either on the accountability side, perhaps on the oversight side. So it could fit, but I do think this proactive notion of taking a hard look both at the cases that are currently in the court and also ones that we’re contemplating defending could be a really interesting piece as well. So now what we’re going to ask you to do is take those precious four red dots.
PUSTAY: Could I just say one thing? One other National Action Plan commitment that you didn’t mention at the beginning that we are already working on is training. So a whole training series of modules for FOIA professionals and none so that there are actually -- that needs to be in the same category as the regs and the consolidated.
OVERMANN: Excellent. All right. So I’m going to pull out -- the only one that I think doesn’t solidly fit in the training is more ongoing interaction between FOIA and open government transparency offices. So I’ll put that up here. So great. So we already have things that are in process that we can inform. So if you could go ahead and vote then we will --
ZAREK: So 20 minutes to vote and take a break.
NISBET: How do the people on the phone get to vote?
ZAREK: They can let us know what they vote for.
NISBET: All right.
ZAREK: They can email Christa.
NISBET: So for those of you on the phone if you could send an email to Christa and let her know how you want to vote, we will take that.
OVERMANN: Great. So you’ll have 20 minutes. You just physically walk up and place your stickers where you want. And then is the break built into that 20 minutes? Great. So the faster you vote, the longer time off you have.
** BREAK **
NISBET: All right. Welcome back, everybody. This is Miriam Nisbet. We are getting ready to get a summary of our votes. And for those on the phone I think you have gotten an email from Christa. You may have already responded. And we’re going to need your votes because as I understand it we have a couple ties here in terms of our votes. So I’m going to ask Cori Zarek to give us a summary and tell us where we are. And Cori, what is the best way for us to hear from -- should we just ask the people on the phone one by one?
ZAREK: Sounds good. Let me give a quick rundown of what our top four projects to pursue are. And we can hear from the folks on the phone to help us break that tie. So our winner here with -- winner? They’re all winners. The project receiving the most attention with nine votes is something centered around proactive disclosures. And so folks had a lot of different ideas in this space and we grouped them all together. So we can take this forward, and you all can determine where to take it. But discussion of using technology and IT solutions to help tag records to make them more searchable and findable. More attention to disclosing categories of documents, popular records, review of requests that have come in in order to help determine what should be disclosed. Just all the general proactive disclosure goodness. So that will be certainly a project for you all to pursue. It seemed like it got the most attention here today. So that’s great.
And then right on its heels we had eight votes for pursuing something in the oversight space. And so this was the general gist that FOIA could use some more oversight, whether it’s from DOJ or OGIS or from outside audits or perhaps even considering creating some sort of new independent authority to assist with resolving issues that come up in the FOIA process. So that received eight votes and would be another contender for you all to pursue.
And then the last two, which each received seven votes. One is the fees and fee waivers, subtitled reducing fee animosity, which a lot of you wanted to look into. And then finally we had another seven votes for litigation review. And both looking at cases that may be in litigation that may not need to be and also pre-litigation —having attention and maybe some process or standards to determine whether to defend those types of cases.
So if our folks on the phone wanted to chime in with a vote, it will help us determine which of these projects make the most sense to fill that third slot. So we did hear from Dave Bahr. So thanks, Dave. If anyone else would like to chime in, now is your chance.
JOHNSON: I think it’s interesting that the lead vote getter of all of this is proactive. Basically we shouldn’t even need FOIA. But that obviously is my top vote getter. I think after that I would have to go with oversight. I think that if that can be done in a scalable and smart way, I think that that’s the part we might have the most impact.
ZAREK: Good. Helpful. But not helpful in terms of breaking the tie. Who else do we have?
MCCALL: Isn’t litigation review a form of audit? Wouldn’t that be a form of oversight?
ZAID: That’s what I was going to suggest. I think those are close enough to be merged into one.
ZAREK: Does that work for you all? Because that definitely helps us all out. That’s great. Then we have a new top vote getter. Sounds good. Why don’t we put these all together here in the same little family? And so then that leaves us with exploring proactive disclosures, exploring oversight-slash-litigation review, and then the fees and fee waivers. And my work here is done.
NISBET: Let’s hear from Andrew, Clay, and Maggie.
JOHNSON: Well, you just heard from Clay.
NISBET: Oh, I’m sorry.
JOHNSON: Dave I think had participated. Did you hear from him already? Did you say?
ZAREK: We did. We received Dave’s votes.
BAHR: Do I get to vote twice?
NISBET: All right. So how have we recorded Dave?
ZAREK: Dave sent us an email. And I put his proxy stickers up during the break.
NISBET: OK, great, all right. And how about Maggie? Maggie, are you there? OK. We’ll come back to that. Who are we missing? Do we have everybody? Andrew, did we hear from you by email?
NISBET: OK. Sorry. All right.
JOHNSON: Somebody just joined us. Who’s that?
BECKER: Back on.
NISBET: Thanks. All right. Well, then we have three large topics. And we’re going to spend the next 45 minutes to 50 minutes. We’re going to try for about 15 minutes each devoted to these three topics, topic by topic. And we’re going to see if we can put them in a more understandable way in terms of goals and how we would go about looking at them. So why don’t we just take them in the order that we were left with, which is the proactive disclosure bucket, the oversight bucket second, and then the fees? And let’s see if we can organize ourselves into what would it look like to examine these topics. We really need to have a goal. And I guess that could be for example that we would like to see a change in policy or we would like to move towards a recommendation for legislative change. We’ll figure out what that would mean for the topic we’ve chosen. And then some concrete steps on where want to go from here. Remember we’ve got a two-year timeframe here. But we have to organize ourselves in a way that we can productively look at these issues and come out with something at the end. That doesn’t mean we have to wait two years to talk about what we are seeing or what we think we would like to see. But that is the timeframe. For each topic I am going to be suggesting that we have a volunteer. One person who’s with a government agency, one person who’s with a nongovernmental organization or entity, to be project leads. And really take charge of the topic and to solicit members of the committee to work with them. So if that sounds a little vague it’s because I’m going to need you all to help me figure out how we actually work. I’m not entirely sure how we’re going to go about this. So I need people to start contributing that. But could we start right now with the topic of proactive disclosures and see if we could put a bit more of a framework on it? What is it that we’re going to look at? Where would we want to go? What would be our goal on this?
WEISMANN: I just thought it would be helpful to take separately all those and look. See if we can --
PUSTAY: I was thinking the same thing. Those little stickers already have lots of different --
WEISMANN: So maybe we could flip it over, like the thing, the page. Once we’ve gotten all the stickies. Just so that we can start to organize around.
REED: I think within all those topics that are on the stickers, within those I think one thing we want to ask is OK, what are the existing crosscutting requirements, what’s already in statute or OMB circular or whatnot that’s relevant to each of those. And then secondly whether there are any informative models in existing individual agency practices. For example I think Nuclear Regulatory Commission already puts all of its awarded contracts in a public reference room, so that’s one model of proactive disclosure. So I think one thing is what are the existing crosscutting requirements, and then what are some existing individual agency practices.
WEISMANN: Another question to ask there I think. What are the barriers? I mean there are a lot of suggestions around 508 and other technological, or getting contracts and not knowing outside of a FOIA request. So if we could look at where the barriers are, it would help us I think as well.
JOHNSON: This is Clay Johnson, Department of Better Technology, I just point out that whether the disclosure is proactive or reactive, it’s often the same processes on the inside of government that need to be followed and used. Whether that be redaction or posting online or technology, and I think that inside of government right now I think some of those processes are a real mess. We need to focus on both at the compliance level and at the technical level. I think that at least where I can help there is on the technology side of those processes.
HOGAN: Add to what he said. I think the agencies have to create a process. There are not in many agencies proactive disclosure process. They go to the FOIA people and they say, “Well, there’s no FOIA request. You want us to take away from processing FOIA requests to deal with this?” So agencies, that’s a resource issue of course. But creating a proactive disclosure process when documents are created, so at the end of the process, when the document is created, it’s ready to go up there.
JONES: Another thing I suggest is as we pointed out this is part of the Open Government Partnership. So we should probably get in touch with the group that is -- or it’s at least related to it. So we should probably get in touch with the other people working on the same issue.
ZAID: At the same time, what role can the public and the private requesters play in working with those in government who are going to be deciding what’s proactive, what should be proactively disclosed or not? There are obviously a lot of issues that come up with that. What determines what’s in the public interest? How many FOIA requests we have for this topic, or something else? Besides obviously resource issues, it’s always going to be a problem with everything we’re talking about here, unfortunately. But what role does that play in whether this advisory committee or more interaction? There’s quite a bit of overlap then with a number of the other stickies that didn’t fall within this. But since we’re all supposed to be, both government and non-government, really on the same page with respect to this, it comes down to attitude. We had the Reno memorandum. We had the Ashcroft memorandum. Very different. What impact did those really play getting down to the lower levels? One thing. Many in the community have criticized the Obama administration. I’m not saying whether rightly or wrongly. With coming in as this most transparent administration and maybe not seeming very different from the prior administration, which certainly didn’t have that reputation. I think it’s more at the line level where we really see. I know so many FOIA offices that their very fiber is they want to get information out as much as possible, but they don’t have that support at the higher levels. And so what role can the public play in helping that out?
NISBET: Mark, I think maybe what you’ve just said points to in different ways having requesters help set priorities for proactive disclosure. In other words with resources being an issue, that being one barrier, I think I’ve heard several barriers just in the last few minutes, one is resources. One is a lack of a process and also maybe a culture fits into that as well. But also given that where would an agency put its priorities? What would you go for first in terms of types of records but also in terms of trying to put records in the best -- keep records, take records, collect records in the best possible way to make it easier to disclose? So it’s both a priority in terms of what you would go for as your -- I hate to use the term. But the low-hanging fruit that would be able to get out there pretty quickly. But also in terms of your processes so that you for example would collect and maintain contracts in such a way that they could be easily disclosed. So I’m just trying to sum up what I’ve heard so far.
PUSTAY: I would just add that we’re not -- at least with proactive disclosure, we’re not at the base level, because we have had since 2009 like a real whole process with agencies identifying records and posting records and including examples of records. So we can use what has been done already as a guide or to help agencies going forward. And one of the things in July the best practices workshop is going to be on proactive disclosures, where agencies are going to be sharing like their successful strategies. And that can help guide our discussion as well.
FINNEGAN: One thing though I think we have to remember is that to really make proactive disclosure part of the culture of an agency you need more than FOIA people at the table. So you need FOIA people, the open government people, IT people, records managers. And then you also need someone at a very high level that’s going to support that kind of initiative that should outlast administrations and just be part of the way we do business. So getting the right people at the table I think is maybe the first item of business to go forward with the discussion.
JONES: I think the second might be Melanie’s point. We need to find someone that’s worked on trying to find a way to do proactive disclosure before, to find a fix, work-around, stalemate, truce. Something with 508(c) compliance, which is a law that makes it really difficult to post records online, especially older records. Even if maybe we’re getting too far ahead of ourselves. Even a standard where we say only records that were created in digital can be posted online. So that way we don’t worry about compliance. But 508(c) compliance. I know it’s jargon but we need to look it up, and that’s a key obstacle I want to get on the record.
WEISMANN: What I would add too is I think we need to identify common sets of records across all agency lines. I think the more specific we can be, the more achievable it is to have proactive disclosure. But then I think we need to help agencies develop agency-specific kinds of records that are going to be of interest. The FDA might have a very unique set of records to them that would be appropriate for proactive disclosure. The FCC might have another. So I think as we think about this issue, the more we can flesh out and identify specific sets of records or kinds of records, the more achievable the goal is.
REED: That’s a good point. And crosscutting records, records that many agencies keep on a similar system, is a good target. For example there are only a few travel management systems used by government agencies. And so if you work out how to disclose from a few different travel systems, you can get almost all agencies’ records.
PUSTAY: Another huge thing, a dividing line with proactive disclosures, are the documents that are pretty much releasable right in their entirety. Those are obviously way easier to have in buckets for proactive disclosure, versus the far more complicated records like you’re talking about contractor-submitted records, where you have to go through submitter notice. So you can want to release those proactively but the burden, the time to do it, is very much something that needs to be factored in versus other types of documents that are more readily disclosable. So we have to have two approaches depending on the record.
ZAID: We also have to take into consideration where agencies have overlapping interest and jurisdiction. Our former and current DOD folks will remember back with GulfLink back in the ’90s. And I had a case where DIA released a lot of information online in the earliest of the days of the Internet and then the CIA completely freaked out that all these records had been declassified properly through the system, and pulled them all back until we actually did a FOIA lawsuit to restore them there. So there’s going to be conflict even between agencies on some of these issues that we’ll have to take into consideration.
JONES: We mentioned before, talking about good examples. I’m sure we have lots of them. We can all throw them out. But the Department of State’s Web site is a very good example to look at. I believe they quarterly post almost all FOIA releases online. So when I’m talking around town about what do you mean by proactively posting, or the default being when you release your record post it, I say, “Look at Department of State.” I’m sure other agency sites have good Web sites as well.
ZAID: Maybe one of the things we can do is identify best practices that already exist to show who we think are being leaders.
PUSTAY: So the perfect timing of this is the July best practices workshop. Now I’m trying to think how we best do that. Part of the whole purpose of that workshop is to have agencies give examples of how they’ve achieved greater proactive disclosure.
NISBET: Melanie, would you just for the benefit of people who don’t necessarily understand the workshop series just briefly summarize what it is? Because they’ve already begun and this is the next --
PUSTAY: Stage of it. So it’s one of the -- Miriam mentioned we have five FOIA-related commitments in the National Action Plan. And one of them is a series of what we’re calling sharing of FOIA best practices where we’re identifying a distinct topic and then having a panel of agencies that have shown great success or progress in that area share with agency personnel or with the public. And the proactive disclosure workshop is going to be -- I’m trying to remember if that one is open to the public or not. We’re having some open to the public, some for agency personnel. But the idea is to share successful strategies for improving FOIA with the idea of building on those success across the government. And we’ve already had the first workshop, which was on reducing backlogs and improving timeliness. And it was really well received. And the next one is going to be on proactive disclosure. So we definitely can factor the two in is all I’m saying. They can work together.
NISBET: Good. That will assist very much. Could I ask? I think if this is this, whatever this is -- that’s where I’m going -- how do we want to describe the goal of this committee with regard to this particular topic? Is there a succinct way that we can say more than just we’re going to be looking at improving proactive disclosure? That may be for right now all we can say. But I think we need to come out of this meeting with a stated goal. And then we can talk about what are the steps that we’re going to take to get it. And again I’m going to be asking for volunteers to lead the next step. Would somebody like to take a stab at it?
REED: I think our overall goal is to increase the amount of government records that are proactively disclosed. I think the means by which that happens, I think we should certainly be very open to that including recommendation for legislation. Because I think a lot of things, such as the relationship to Section 508, are things that are difficult to resolve other than by legislation.
PUSTAY: I think the second half of that also would be improving the public’s ability to access what is disclosed. So the whole idea of it being an open format and searchable. So that we’re going beyond just putting things up on the Web, but really making it usable and searchable.
REED: That’s a good point.
WEISMANN: I might articulate the overall goal as developing a roadmap for how to achieve proactive disclosures across the government or something like that. Because that’s what we’ll do. I mean at the end of the day we’ll have recommendations for legislation, we’ll have ideas, etc. But it’s really a roadmap on how you get there.
GOTTESMAN: And maybe try to identify types of records that are across the government where agencies can strive to make these records available proactively. I’ve heard some like travel systems. Contracts. Things we know the public is interested in. Things across all government agencies. Maybe we can try to identify some of those as a way to try to find a way to get proactively more information to the public.
JONES: I would just add that from my position I hope that the category of records that a big chunk of FOIA releases is in that category. So when we say proactive disclosure, I think I would hope that would mean don’t just mail the FOIA release to someone so they can put it in their desk drawer. If you go through the hours to process it, also throw it on the Web so anyone else can see it.
WEISMANN: That strikes me that we need a common definition of proactive disclosure. Because I was thinking of it in terms of documents that may not be requested under the FOIA. We need a definition.
NISBET: It should be both.
REED: And I guess the stuff that’s already been released under FOIA is the low-hanging fruit of proactive disclosure, because --
ZAID: I also want to add a caveat of some of the things where we don’t want to undercut ourselves since we’re looking at FOIA. And one of the folks on the phone had mentioned the irony that proactive disclosure almost eliminates the need for FOIA if it actually worked this way. And I know some agencies I’ve experienced, and I’m sure EPIC and some of the other groups have as well, where now we’re getting letters that say, “Oh by the way, go check what we proactively disclosed on our Web site before we start processing your FOIA request.” And we don’t want to have that.
JOHNSON: This is Clay Johnson from the Department of Better Technology. That was me who said that. And I just want to express that I want us to be really cautious that the proactive disclosure route is not a cop-out by this committee to help fix and modernize the real problems of FOIA processing. I think that in an ideal world yes, someone in my position, in an ideal world, you wouldn’t have to FOIA for these. You wouldn’t have to send a Freedom of Information Act request to government for anything at all. However, the pragmatic reality of things is and always will be that Freedom of Information Act requests will have to be sent to government. And the method by which government does that now costs the government a lot of money and takes way more time than anybody would like. And it’s a horrendous process and needs to be -- stress to the committee that we should focus more on figuring out and fixing those problems than coming up with a solution that isn’t pragmatic and likely won’t be adopted. An ideal world type scenario. And I’m fine with going the proactive disclosure route, but I still think we need to be anchored in the reality that there are problems. Fires to put out.
NISBET: Thank you, Clay. We’re going to need to move to our next topic. So I want to close this one just for the moment by asking for two volunteers to lead us with the next steps, which would include I think putting together a statement along the lines of we’re looking at developing or -- well, I’m going to need you all to help figure out how to say this. But essentially our goal is a roadmap that would increase the amount of government records that are proactively disclosed in a usable way. That’s a very very high level statement of a much more complicated issue.
And in doing that we would be looking at for example what existing requirements there are. We’d be looking at barriers and trying to identify what those are. Looking at ways that those barriers are being overcome, and that would include agency and requester best practices right now. And bring that back to the committee. Because we’re going to be soliciting public input on this as well. So could I ask for one government member and one non-government member? OK. So Eric is our non-government. OK. So David and Eric are our project leads on this. Anyone in the committee can volunteer to work with them. And you can volunteer to work on more than one topic. But we don’t have to decide that right now. But we will be soliciting volunteers for that.
Because we need to move to our next topic. We have approximately 20 to 25 minutes to cover the next two topics and get our project leads and some steps forward on that. And if we could turn to the second topic, which relates to oversight. And maybe we could do as we did before, and start with summarizing the stickies that we had, to remind us of why we thought this was a good topic. Cori, you’re doing a brilliant job.
ZAREK: The litigation review piece of oversight, so we don’t want to forget about that. But the general discussion was to explore whether more oversight through existing functions like DOJ and OGIS administratively makes sense, whether we want to fold in an audit piece to that. Any other overarching bigger body that we may want to explore. Another independent authority beyond what already exists. Exploring that. And then also folding in the litigation review piece of that. So we’ll just call this the oversight project.
MCCALL: I think it would be helpful first to start with a review of what current oversight mechanisms exist, because there are the annual FOIA reports, there’s OGIS, there’s the DOJ OIP. There has in the past been a litigation review. If we could just look through a brief history of FOIA oversight mechanisms.
JONES: A little bit of IG.
MCCALL: And there’s also been some Congress, congressional hearings.
NISBET: So as with our first topic, one of the first things we’re going to do is identify existing requirements.
WEISMANN: I think the next step is to identify the gaps.
ZAID: I think also a best practice evaluation but not best practices internally but externally. We’re not the only country in the world or even if we only want to look at states in the United States that have a Freedom of Information Act. And how have some of those other countries implemented oversight and to what effect? I instructed an Albanian delegation a number of years ago. This is the last vestige of communists that became independent. And within less than a decade they created an ombudsman with teeth, which is where I got that suggestion on the OGIS side, where if requesters had a dispute with an agency they would go to this ombudsman and the ombudsman internally would have an independent authority to tell the agency yes or no. I do not honestly know if it has worked in the last decade since or so I met with them. But it existed and we can look around to see how other countries, the UK now has a process, I don’t know how different it is than ours. But I know when I’ve been teaching the DC bar course when I mentioned earlier the Reno memo and the Ashcroft memo, and we talked about this litigation reform. And if you remember what the Reno memo said, the change in policy. Reno memo was of course Justice, we’re not going to defend you agencies if we don’t agree with your position. And I would always ask my co-teacher in the DC bar who’s a colleague and friend from the Federal Programs Branch how many times had Justice Department actually declined to represent an agency. And I do it now as a joke over the last 10 years, because it’s always stayed zero. Now internally that may be different obviously, when you have some internal discussions. But it was the notion of what’s the difference between the policy and the practice. And we want to merge the two.
NISBET: So that might fall into the gaps analysis.
WEISMANN: And I think just to pick that -- you might have mentioned this, Mark. I think state FOIAs can be interesting to look at, because they often have more and different enforcement mechanisms. I don’t know if they work on the federal level or not. But it’s certainly worth exploring.
PUSTAY: And I’m just going to say that obviously there are examples of cases where agencies make discretionary releases during the course of the litigation.
MICHALOSKY: Can I just add one thing also? Not necessarily fill in the gaps or existing. But at the CFPB we’ve done some different things. And not only did we finally submit our first annual report. We worked with OGIS. We have an internal ombudsman that reports to the director that I get calls from if someone’s unhappy. They can go to public liaison. They also go to our ombudsman. We have a process with that internally. We also have a policy that we do independent audits of our compliance program each year. So two years ago it was the FOIA program. Last year it was privacy. This year it’s records management. Next year I’ll be up again to do my independent audit. So we have auditors that we hire to come in to do a variety of different audits and compliance pieces are part of that as well. So I’ve gone through it in a variety of different ways and a variety of different practices. So I can certainly give my input in those areas as an agency that we’ve gone through a lot of those different pieces.
NISBET: That sounded to me like volunteering to be a project lead.
MICHALOSKY: Let’s wait till the end.
NISBET: Well, we are going to need that pretty quickly. So I don’t want to cut off discussion at all on this. But it sounds like we’re identifying some steps, which is again starting with existing requirements, identifying gaps, and looking at best practices. And I would say that’s in reality, not just on paper, from other countries and also from the states. Other ideas for how we would go about examining this issue?
ZAID: Looking internally -- I don’t want to rule out also on the federal level, as we sit in the National Archives, the ISCAP, Interagency Security Classification Appeals Panel, affiliated with ISOO, which in processing MDRs, mandatory declassification review requests, has been very successful from a public interest standpoint of looking at agency request as a collective government entity. And I know last stat -- maybe somebody could correct me -- was like over 50% I think -- 70% they were ordering or authorizing or at least recommending maybe the release of that information which an agency had held to be classified. So I look at that as an incredible success story. And also goes to when we look at the attitude in the agencies. When you’ve got multiple federal agencies telling a sister or brother agency that we disagree with your decision, it shouldn’t have to come from the requesting community to say, “We disagree with your decision.” There’s something fundamentally wrong there.
HOGAN: One thing as we look, this gets to the form of government. If we look at compliance, more oversight of a law, whose responsibility is that in government? It’s really can you assign that to an executive branch of the government. I mean true oversight. OGIS and OIP do a wonderful job helping work with us, helping us see what’s going on, what’s wrong, and dealing with it. But the true oversight is more -- is that a legislative function the way our government is set up? And a GAO. We can oversight within our own federal agencies. I can do some oversight and deal with compliance and DOD. And so is that something where -- do you actually have teeth, the teeth that’s necessary? Does it have to be something from outside the executive branch? I don’t know.
REED: One step towards having an oversight agency is having an agency with rule making authority that covers all agencies. For example, the Federal Advisory Committee Act, there are rules of GSA which apply to all agencies’ operations under the Federal Advisory Committee Act. Now does GSA enforce them? I don’t think they have FACA police. But at least they issues a binding standard.
WEISMANN: Maybe what we’re talking about is accountability. Instead of oversight it’s accountability to have agencies have processes in place that would show that they’re accountable to their legal requirements, whether it’s FOIA or any other law.
HOGAN: And that’s what we do with the annual reports. It’s accountability. Ultimately reports way up to the attorney general. FOIA officer is accountable to the attorney general, public liaison is accountable to the agency FOIA officer right now.
WEISMANN: I wouldn’t want to narrow its focus like that because I think there’s still room to consider whether there is an oversight role that could be created or expanded. And the other thing I was going to say is if you’re talking about oversight or accountability you have to have measurements. What does it mean to be compliant with the statute? So I think that’s another task of this committee.
NISBET: Well, once again starting with defining.
ZAID: We can also look to the Public Interest Declassification Board, PIDB. There’s a morphing of executive branch appointments, legislative appointments, public sector involvement. It’s similar in a way to the advisory committee of course.
JONES: Well, let’s give this one some authority.
ZAID: Yes. But then we couldn’t be called advisory committee. Authority? Federal FOIA Authority Committee? Can we do that?
PUSTAY: And obviously Congress already put into the statute incredibly detailed requirements for accountability in terms of what’s required for the annual FOIA report. I mean there’s a lot of data there that I mean I think is rich and has a lot of potential to be used and analyzed even further than it is. I mean it’s incredible what’s already required to be reported by all agencies.
NISBET: That’s why we’re going to start with existing requirements, because that helps define this. OK, so I need my volunteer project leads, please. And then we need to move to the next. OK, sounds like -- let’s just have two. One government and one non-government. Do you all want to step out and arm-wrestle or toss a coin or what? OK. While they’re deciding -- OK, Mark. And who’s going to be our government?
MICHALOSKY: I’ll work with Mark. If it was Anne -- no, I’ll work with Mark.
ZAID: Because I don’t hassle your agency.
MICHALOSKY: Yeah. I mean we have a good friendship already.
NISBET: OK, that’s great. Thank you both. So Marty and Mark are going to be our leads. And we’ve got some ideas for what your steps would be. And we’re going to leave it there. And we’re going to turn to our last topic. And that is fees. OK. So Cori, if you could quickly summarize for us what those stickies look like.
ZAREK: We have got the general bucket of fees and fee waivers. Potentially exploring whether or how to reform them. The possibility of uniform fees. Whether we may want to revise or eliminate fees in some circumstances, for noncommercial requesters for example. And the overall goal of reducing fee animosity, whatever that may mean to you.
NISBET: OK. So generally one question is do you reform, do you eliminate. If you are reforming is there a way to have a more uniform approach? And I guess the animosity issue we leave out there as a piece of all of this.
PUSTAY: This is another one of those where it does tie into something that we’re doing existing in our project to have a common FOIA reg that we’re doing collaboratively with a lot of people here with both agencies and reps from the civil society. The idea behind the common FOIA reg is to have a core set of standards. And part of the reg of course would be devoted to fees, so that that project itself might help solve some of this, will be addressing at least some of the idea of the uniformity.
NISBET: So there’s a tie-in to the other effort even though it’s just a piece of that. This would be a place again where we could start with some research. The existing requirements are pretty much there in the statute and with the OMB guidelines. But might this be a place where if there have previously been efforts or ideas put forward for changing the fee system it would be useful to look at? I’m guessing that we’re not the first group of people to say, “Wow, what about fees? Isn’t there a better way to do it?”
MCCALL: This is I think a frequent topic of comments on proposed FOIA regulations. So that might be a place to start, to look at some of the comments on agency regulations that outside parties have made.
ZAID: Standardization. I know, as I’m sure some of my colleagues here, some organizations are granted a fee waiver at one agency and then denied a fee waiver at another agency. Or especially now with the Internet who constitutes a representative of the news media in determining where you fit in a category?
NISBET: So that again is going to fall into what are some existing agency practices that could be informative or good models or bad models.
MCCALL: And to maybe look for some bright-line rules. I mean I do think that creating a presumption that a 501(c)(3) organization would qualify for reduced fee status or favorable fee status is a good bright-line rule. Because it seems like the problem here is that there aren’t really bright-line rules for the agencies to follow. So even within an agency there’s a lot of inconsistency that an organization may for one request be granted news media status and then for another not be.
HOGAN: I’ll go back to Miriam’s first question. Are we looking at reform or -- I think it should seriously be looking at legislative reform. That may take care of these issues, because we draw these lines. Something’s going to come up in the future. It’s going to be OK, are they in the favored category or not. And I hate to be pessimistic but it just seems so much so many things change over past few years. And it’s going to be changing in the future. Do we have to seriously consider some kind of reform? Maybe do research. Other countries. The British have a whole different way of looking at fees and issues there. But maybe look at other countries too and see how they deal with this issue. How does it affect other issues within? Because I know from talking to FOIA requesters it creates animosity even internally. Not just between us. It goes back 26 years between us and Nate.
MCCALL: I think that if you’re looking at fees you also have to consider the OPEN Government Act of 2007 provisions regarding what happens when agencies fail to meet a deadline and fees. And how well that’s actually being followed within agencies. Anecdotally from a requester standpoint it seems like it’s not really being followed very well at all. But it’s a thing that needs to be addressed.
JONES: If we’re talking things that need to be addressed, according to DOJ reporting collected FOIA fees make up only 1% of all FOIA costs and they don’t go to the agencies. They go to the general fund. So I guess the reason I use the term acrimony, is it acrimony over something, or acrimony over nothing. And some of my friends would be quick to say, “Well, we use them to reduce our workload.” And that’s going to be probably a hard discussion we’re going to have to have.
MCCALL: And I also think if you’re using fees to whittle down someone’s requests and to pressure toward narrowing it, I think using the you’ll be able to get your documents more quickly if you narrow this request is just as effective of a stick.
ZAID: I’d be interested to know. Following the act actually one of the things I thought might have worked to our disadvantage from the requester community was the notion that if an agency failed to meet the deadline and it couldn’t charge fee waivers, or even with attorneys’ fees, that that comes out of now your agency budgets, right? Instead of the general operating fund. So there’s somewhat of a disincentive to even resolve something administratively because there may be a cost. And I mean this is going to come down to much of what we talk about financial, whether or not everything we’d love to see implemented could really financially be implemented. And that’s going to be a great deal of the role of Congress to see if we’re going to have any fees put in. But as Nate is saying 1%. If 1% is only going really, being collected, really what difference does that make? Then why do we even have a fee issue? There’s those types of -- let’s weigh costs and benefits. Maybe that’s the -- what is the costs and benefits of having fees or not having fees and fee waivers? Isn’t that the ultimate question?
WEISMANN: The cost to the agency of evaluating fee requests, adjudicating fee requests, if you have to litigate fee requests.
HOGAN: That goes into whether there’s a legislative reform or not. Definitely that should go into it, absolutely.
MICHALOSKY: And I think another item. I know as we were starting up and we were looking at how do we process fees, how do we collect them at the new agency, the discussion about delinquent requesters came up. Do we go after them? Is there a certain threshold where it’s not really worth it to go after them? And things like that. So we even looked at the perspective of delinquent requesters. What’s that threshold? And where it’s a cost-benefit to even consider just writing it off versus going after for a delinquent government debt.
MCCALL: We could also use this space to examine ways that new technology could make the process more efficient in a way that would both reduce fees for requesters and also reduce the agency workload. So better search mechanisms. Ways to produce documents in electronic formats instead of on paper that would require paying duplication fees. Those sorts of mechanisms.
NISBET: OK. So we’ve identified a lot of things right here in terms of what we would need to look at. And I think there’s an open question as to whether or not we’re talking about reform or whether we’re talking about elimination. I mean that’s a very rough way to put it, but we’ve identified lots of things that need to be looked at in terms of existing requirements, analysis that has come through with looking at regs. A number of entities have looked across agencies at their regulations. And that would include fees. Remembering that this ties into the common rule initiative part of the National Action Plan. Looking at existing policies and practices including for federal agencies and also other countries. And looking at the costs and benefits of the fee requirements. And that would include what are fees being used for, the cost of collecting fees, among other things. The legal consequences. And those are is it really working. And also bringing in how technology might help. So this is a huge topic. And I’d like to ask. Who wants to be the leads? OK. So Ginger is raising her hand. And who would like to volunteer on behalf of the government? I’m looking at Jim because he’s talked and thought a lot about this. Great. So we’ve got Jim Hogan and Ginger as our co-leads. And with that I think we have a lot of work to do.
OK. So we are just about -- by both my watch and my phone it looks like we’re at 12:33. And unless there is something else that one of the members would like to add, we’re going to move to the public comments. Mark.
ZAID: If I can ask a guidance question. So we said the next meeting is in October.
NISBET: October 21st.
ZAID: What does the committee expect from the now three committees that we would have ready for October?
NISBET: That would be one of the first things I would ask these groups to let the committee know. I think if you all can confer pretty quickly. We’re also -- I’m going to ask everybody, all the members, including those -- remember we’ve got a couple of members who are not with us today. We’ll be bringing them into getting them up to speed. We also have the members on the phone. Everybody I hope will volunteer to work with one or even more than one of these groups. And maybe the first thing is to come back to the committee with what you think is a timeframe and an achievable goal. Or a set of goals for each of these. So it’s going to require getting together, talking, consulting. And also listening to your constituencies. I know that’s very vague but I think we have to ask the group, the members, to figure out a way forward.
MCCALL: I have a question. As federal advisory committee do we have some overarching deliverable goal that we hope to achieve within the two-year time span? A written goal. Do we want to make recommendations? Do we want to issue a report?
NISBET: I’m going to ask everybody to look again at the charter for the group. And that is to produce recommendations on improving FOIA. And they can fall into legislative, policy, executive action. Those are all open. And that’s why we’ve tried to work with these basic groups here in coming up with our topics. So yes. Hopefully we’re going to have recommendations. And again we’ve got a two-year term to do it. That doesn’t mean we have to wait two years to make a recommendation if we get there earlier. That would be great. We can do these things together, seriatim. That’s for the committee to decide.
ZAID: I guess the Archives’ general counsel is our legal adviser so to speak? Since we’re through the Archives?
NISBET: Certainly for ethics issues and certainly available for questions related to FACA.
ZAID: So from a FACA standpoint I don’t necessarily know what our individual responsibilities are with respect to any work product that we do or if we get together and meet as a committee. Is that a meeting that has to be disclosed or should be disclosed that the public can come to? Or do we preserve those records for inclusion in the committee? We don’t have to have an answer obviously right now. But I don’t know the FACA requirements.
REED: We should get guidance from NARA’s lawyer. But the regulations under FACA does talk about work papers of the committee, and that those are to be made public.
NISBET: And they need to be managed as federal records. Subcommittees, the rule -- and we will get you additional guidance. But I do not have it today. The general rule is that subcommittees do not have to adhere to the same rules in terms of Federal Register notice and that sort of thing. But I’m just going to tell you our goal is going to be to try and be as open as we possibly can about when we’re meeting, what we’re talking about, and the work product that comes out of it. But I don’t have all those answers right now, Mark.
ZAID: That’s OK. I don’t expect it for now. And how about looking towards -- since obviously we want to have some sort of end product, whatever that product will be. And hopefully interim products. But what about keeping the public informed? Are we authorized to create a Facebook page, a Twitter handle where we are posting updates or soliciting information from the public? I don’t know what the rules are.
NISBET: I don’t either. Mark, I want you to make a note of every single one of those good questions.
ZAID: That’s why it’s recorded. That’s why I’m not taking notes.
NISBET: And we’re going to try and answer all of those things, but I don’t have the answer today.
LEMELIN: That would be a six-hour meeting.
NISBET: Yes. Christa says that would be a six-hour meeting.
ZAID: And lunch would be included. And for the public.
NISBET: So we’re going to try and answer all those questions. And we’re going to let everybody here and anybody who’s interested know the answers to those questions. But what I would like to do right now is turn to our members of the public who are here. And let’s hear comments, questions, concerns from anyone here. And we have about 20 minutes to do that. So if you want to speak, please come to the microphone so that your comments are part of the recording of this meeting. And please identify yourself and let us know where you’re from, your affiliation. And who’s going to be our first?
MCCLANAHAN: Hi. I’m Kel McClanahan, I’m from National Security Counselors. Most of the committee members know me. So I won’t go into any great detail for an introduction.
NISBET: Welcome, Kel.
MCCLANAHAN: Thank you very much. This is a great thing. And the one thing that looking at what you all have been talking about doing going forward, there’s been an idea that was rushed by a couple times but never actually hit head on that I wanted to ask you to keep in mind whenever you’re doing your project. And that is there will be best practices, and there will be agencies that adhere to those. And by and large, the agencies that have good practices do not need any help. And the agencies that do not have good practices generally have already been encouraged by OGIS or OIP or courts for that matter to do better and have not. And so whenever you look at addressing a problem, you need to keep in the back of your mind how to go about doing it such that even the most recalcitrant agencies don’t have a choice. And this is where almost everything that we’ve addressed boils down in some part to legislation or to some kind of oversight, accountability where the good guys are good guys, they should be held up, they should be used as examples. And the bad guys should be required to do all the things that you’re saying everybody should do.
And with that just one very small thing that I wanted to mention. If you all could have something like a single email address that when somebody sends something there it gets disseminated to the committee. Rather than I write Mark and she writes Anne and different people addressing different people, different members of the committee, that we could ensure that anything that would be submitted to the committee would automatically hit every member of the committee. They could ignore it if they want but at least they would have it.
HOGAN: I want to add. If I receive an email say from Kel concerning committee business, does that become part of the committee record? Something I want to make sure. That’s true. How we then get it to the committee for records management.
NISBET: We’re going to figure that out. Thank you, Kel. Cindy.
CAFARO: Hi there. I am Cindy Cafaro. I am the departmental FOIA officer for the Department of the Interior. Those of you who know me are probably not surprised I’m speaking. I would like to respectfully disagree with the gentleman who just spoke in that I think that good practitioners -- and I hope that my department is among the good practitioners, we try very hard -- do need help. And I think that you have touched in this meeting on some of the areas that you really could help us. And I really liked Ms. Weismann’s formulation of the roadmap because I think that’s actually very helpful for you to think about and for all of us to think about in that currently what exists -- there are sometimes roadblocks. And we need real help to get past those roadblocks. I know this has come up already. But in the area of proactive disclosures, 508, I know it’s not the most exciting thing to talk about. But it can be a real roadblock for agencies. If you can help us with that, that would be -- if you did nothing else but that, this committee would have been a roaring success.
The other thing is that when it comes to oversight, please. If we can focus on being a roadmap forward and not setting up new blocks. So for example with oversight as with so many things, if we’re working on a new report, if we’re working on a new audit, that’s less time we have to spend processing your requests. And so there’s a risk-reward, positive, negative. And so just please keep that in mind in not setting up a new hurdle for us to get over that doesn’t really add value. Would be greatly appreciated.
And finally I really like Ms. Ginger McCall’s point on fees. Also being able to focus on reducing costs for everyone. As people have mentioned, that 1%, boy, that goes straight to Treasury. Boy, we’re just salivating for that. But we do have legal requirements. We have legal requirements and we’re supposed to think about what use are you going to put things to. And so for example someone mentioned in some agencies people give us a fee waiver, in some they don’t. Sometimes they do, sometimes they don’t.
Of course that’s because we’re required to look -- hopefully, if people are being rational, and let’s assume for the moment they are -- that’s because we’re supposed to look and say, “OK, how are you going to use the information this time? And are you going to use this in a way that’s going to further public understanding?” And sometimes the same organization may give us a great write-up of that one time and then the next time may not. And so working on ways that we can get past some of these smaller issue, bright lines. That would be really helpful. Or just ways to reduce fee costs for everyone would be great. So thank you. We really appreciate it, and I think everyone can use your assistance.
NISBET: Thank you, Cindy.
BAKER: Hi. Gavin Baker at the Center for Effective Government. First thanks to all the members of the committee and staff who are assisting with the committee. I think that you’ve taken on a very important responsibility. And no pressure, but we’re all counting on you to do really important and useful things. So I’d like to make two brief suggestions to the committee. The first is that I think you’ve picked a set of great issues to work on initially. But based on the conversation today it seems like some of these issues have a little bit more in the way of problem definition than others. I think on proactive disclosures we got a pretty good sense of what we see as the issue, what are we trying to fix here. On oversight and fees it seems a little fuzzier still. On oversight it seems to me that the key question is what is it that needs more oversight. If we can start with that point then we can move on to what kind of oversight is there already, where are the gaps, how can we build something better. But first we need some idea about where is it that we need to be looking, because you can’t oversee everything all the time. It’s just not possible. So there was some discussion about litigation and that seems to me like one area where oversight would be useful. And then what are the other pieces of the process where there ought to be more oversight?
On fees conversation seemed to be starting to come around to this point. But to put a little -- to suggest putting a finer point on it, it seems to me that the key question is about simplification and streamlining of the fee process. That right now it is duplicative, it’s slow, it’s complex, it’s burdensome for everybody involved. And so the main question it seems to me is about how can we move through the fee process in a way that is quicker, that is easier to do, and that is less burdensome. Although you guys are the committee, so if you think that that’s not the issue, then work on something else. But it seems like that’s the crux of the issue. But in order to really make progress on these issues it seems like we’re going to need a little bit more definition.
My second point related to that, I hope that these subcommittees or working groups or whatever they’re going to be called will make use of the people outside of the committee, both outside of the government as well as the many folks inside the government who have their expertise and ideas to share. I know that we stand ready to help you guys. And I know that everybody else here does as well. So please make use of us. We want to work with you and help with everything that you’re doing. Thanks.
NISBET: Thank you.
PRITZKER: My name is David Pritzker. I’m the deputy general counsel of the Administrative Conference of the United States. We have recent -- well, let me say a word about who we are. We are a very tiny federal agency which by way of structure is actually an advisory committee as well as being an agency. So we’re very familiar with how a small group can deal with FACA requirements. And maybe there’s some guidance we can give you on that.
But our structure is such that we are a public-private partnership whose mission is to study issues of administrative procedures in the federal agencies and come up with recommendations for improved procedures. Well, it so happens, as many, most, perhaps all, of you know, we have very recently completed one of these projects at the suggestion of Miriam and OGIS. We undertook a study of recently litigated FOIA cases with an eye toward trying to see how best to use resources that are available, to apply alternative dispute resolution approaches to avoiding litigation. I won’t go through the whole story but my purpose in mentioning this is that there is a report, a supporting report, which addresses many of the things that were talked about this morning. For example there is a brief survey of state and international efforts in this area. There is a great deal of information on data about litigation. You may find this to be useful. And then of course there are the recommendations, which are partly directed toward the way OGIS carries out its responsibilities, but also partly directed to other agencies and how they might better interact with OGIS and use other resources. So the bottom line of all of that is that Miriam has copies of these things. And we’d like to have them entered into the official record of this committee.
Two other brief points. One is that very clearly your intention as an advisory committee is to be as open as possible. And one of the things we do is that we do have live streaming webcasts of this kind of meeting, of all of our public meetings. And if we, as small as we are, with as tiny a budget as we have, can do this, there are ways it can be done. And I would strongly advise you to check that out.
And then the last point I want to make is I emphasized how small we are. Whatever you recommend, please keep in mind that we’re not all the Defense Department. We’re not all the big agencies. We’re not the Justice Department. And there are burdens on small agencies for any kind of governmentwide practice or policy or requirement. Oh, and finally, we also -- we really are from the government, and we’re here to help. So please call on us if there’s any way we can be helpful.
NISBET: Thank you, David. Let me just also mention that ACUS had a report and recommendation within the last couple years. I want to say it was 2012. But I could be wrong. I’ll look it up and make it available to the members of this committee. But a recommendation on FACA for recommendations on how to use advisory committees even more productively. And I think it’s really very helpful. So I’ll share that with the members as well. Thank you.
KOTLER: I’m Sarah Kotler. I’m the deputy director of the FOIA program at the Food and Drug Administration. And I’m happy to be following Mr. Pritzker because I wanted to just echo your final point. Not that we’re a tiny little agency by any means. But we’re not as big as some departments, that taking a one size all approach, whether it’s about the size of the agency or the requester community that that agency tends to attract or the type of records that they tend to process more, would not be the best approach. There are a few things said that made me go, “Oh my God.” For instance just for some strange reason contracts at FDA do not seem to be a very popular item. Probably shouldn’t say that, but it’s true. We spend very, very few resources releasing contracts under the FOIA. And if suddenly we were to get a recommendation that all contracts have to be posted, would really turn our program on its head, and would take precious resources away from the records that people really want and throw them into records that quite frankly nobody seems to want, or very few people seem to want.
So I would hope that any recommendations in terms of proactive posting would at least allow agencies to make a determination of what people want from them and not just say what people may want from other agencies that tend to be popular. We all have different requester communities.
Which brings me to my second example on fees. I’m all for getting rid of fees for noncommercial requesters. It’s just not worth the headache. The number of people you have to call and say, “Don’t worry, you’re not getting an invoice, you’re not getting charged for that.” But unlike many other agencies, the vast majority of our requesters are commercial. And so to say we don’t want fees at all would have a very different impact on the Food and Drug Administration than it might have on some other agencies that mainly deal with media or nonprofit or consumer. So if we could just all remember that we are all very different. Consistency is great but we want to make sure we take account of our differences as well.
NISBET: Thank you. We will do that. Anyone else who would like to make a comment in the next two minutes? Well, let me assure you that you are not restricted to just right now. We do want to hear from you throughout this process. We are very mindful of how important it will be to have your participation in the work that the committee does. So if you’re not speaking now that doesn’t mean that you will not have plenty of other opportunities to do that.
We will try and keep everybody as updated as we possibly can on what we’re doing, when we’re doing it. The materials, again we will make everything as available as possible on our Web site. Your handout has the URL and we do invite you not only to look at it but if you have suggestions for how we could do it better, we will. Mindful of David Pritzker’s suggestion, certainly we at the National Archives will be looking into our capability for doing live streaming. We did not have that ability to do it now. And it may be that we’ve overlooked something. But we will be looking at that for the future. And one reminder. As you are leaving this building we do have everyone including staff go through exit screening. If you have ever paid any attention to the news about the National Archives and Records Administration and the loss of valuable documents, you know that we do not joke about this sort of thing. It’s a reality, so you will all need to go through the exit screening, and we appreciate very much your cooperation in doing that.
Unless a member of the committee wants to add anything at this point, I think we are going to stand adjourned. Thank you.