January 27, 2015 Meeting Transcript
National Archives and Records Administration (NARA)
Freedom of Information Act (FOIA) Advisory Committee Meeting
January 27, 2015
COMMITTEE MEMBERS PRESENT
- NIKKI GRAMIAN, ACTING CHAIR
- BRENTIN V. EVITT
- LARRY GOTTESMAN
- NATE JONES
- GINGER MCCALL
- MARTIN MICHALOSKY
- DAVID S. REED
- ANNE WEISMANN
- MARK S. ZAID
COMMITTEE MEMBERS PRESENT BY PHONE
- DAVE BAHR
- ANDREW BECKER
- DELORES BARBER
- KAREN FINNEGAN
- ERIC GILLESPIE
- JAMES HOGAN
- RAMONA BRANCH OLIVER
- LEE WHITE
NON-COMMITTEE MEMBERS PRESENT*
- AMY BENNETT, NARA
- CHRISTA LEMELIN, NARA
- MICHAEL RAVNITZKY
- JASAMYN ROBERTS, GENERAL SERVICES ADMINISTRATION
- BOBAK TALEBIAN, DEPARTMENT OF JUSTICE
* THIS ONLY INCLUDES THOSE INDIVIDUALS PRESENT AND QUOTED OR MENTIONED IN THE TRANSCRIPTS
BAHR: Good morning, everybody.
FINNEGAN: Good morning.
BAHR: Dave Bahr from pretty Eugene.
FINNEGAN: This is Karen Finnegan.
BAHR: Are you guys getting weather?
FINNEGAN: Yeah, we had some snow, but it's not very bad at all.
BAHR: That's good.
FINNEGAN: Very good.
BAHR: Much ado about nothing. I guess New England’s getting hammered.
FINNEGAN: Yeah, certainly are.
FEMALE: Good morning, everyone.
GRAMIAN: OK, I can hear some folks on the phone. So let’s get started. I would like to thank everyone who made it in this morning despite the problems some of us faced with getting here. As you may all know from the previous meetings and introductions by Miss Miriam Nisbet, our former OGIS [Office of Government Information Services] Director and Chairperson for this committee, my name is Nikki Gramian. I am the Deputy Director of OGIS. At the present I am in an acting position as the director of OGIS and therefore I'm chairing this meeting today in that capacity. Hopefully OGIS will have the next director on board soon who will be able to chair the next meeting in April. By way of short introduction I joined OGIS in March of 2013. I previously worked at the Department of Homeland Security [DHS] Office of Inspector General and prior to my employment at DHS I worked at the Department of Justice [DOJ] Executive Office for U.S. Attorney FOIA unit. In between my jobs at DOJ and DHS I also worked for a very short period of time at the Federal Public Defender’s Office for the Eastern District of Virginia when they first opened their doors in Alexandria, Virginia. I've had the pleasure of working with some of you on FOIA matters, so some of you know me in my previous positions.
So let’s now move on with the introduction of the FOIA Advisory members. If we could please spend a few minutes, or the next few minutes, introducing the members who are around the table as well as those on the telephone. We did get some emails from some of the folks that were originally going to be present who are now going to join us by phone. Before we begin the members’ introduction, as a reminder, if the committee members -- I'm sorry, the committee members’ bios are all available on our website, on the committee’s web page, which is also available at www.ogis.archives.gov. Unfortunately today we're not able to live stream the meeting. However, we are videotaping the meeting and will make the video transcript and meeting materials available on the committee’s web page.
For the record it will help if you all can remember to identify yourself by name and affiliation when you speak. Committee members and Department of Justice Office of Information and Policy director Melanie Pustay could not be here with us today because of a previous commitment. Two other government members and also Dave Bahr [Mr. Bahr participated in the meeting via phone] and Maggie Mulvihill are also unable to attend due to previous commitments. We look forward to seeing them at our next meeting on April 21st, 2015. We can start with the members who are on the phone and then we'll hear from the rest of you in the room. I'll ask each of you to introduce yourselves and remind the group what you do in your professional jobs. Let’s start with the folks on the phone if we could.
BAHR: My name is Dave Bahr and I'm an attorney. I represent FOIA requesters throughout the country in their interactions with various federal agencies. I'm in Eugene, Oregon.
GRAMIAN: Thank you, Dave.
FINNEGAN: Hi, I'm Karen Finnegan. I'm with the State Department and I'm chief of the division that develops internal FOIA policies.
GRAMIAN: Good morning.
WHITE: Hi, I'm Lee White, Executive Director of the National Coalition for History.
HOGAN: Good morning, I'm Jim Hogan. I'm the chief of DOD FOIA policy in the DOD, Department of Defense, transparency office.
BARBER: And this is Delores Barber. I'm the Deputy Chief FOIA officer at the Department of Homeland Security.
GILLESPIE: This is Eric Gillespie. I'm the CEO of Govini.
OLIVER: Ramona Oliver, the director of the Office of Information Services at the Department of Labor.
GRAMIAN: That's it? OK, great, thank you. Now for the folks at the table, if we could start with my --
REED: I'm David Reed. I'm assistant CFO [Chief Financial Officer] at the Federal Communications Commission.
MICHALOSKY: I'm Marty Michalosky I'm the FOIA manager at the Consumer Financial Protection Bureau.
WEISMANN: Anne Weismann. I'm chief counsel and interim executive director of Citizens for Responsibility and Ethics in Washington or CREW.
JONES: Nate Jones, director of the FOIA project at National Security Archive.
MCCALL: Ginger McCall, Associate Director, Electronic Privacy Information Center [EPIC].
(overlapping dialogue; inaudible)
EVITT: I'm Brent Evitt. I'm the Deputy General Counsel for Mission Services, Science and Technology at the Defense Intelligence Agency.
ZAID: Mark Zaid. I'm an attorney here Washington, DC handling FOIA litigation and also the executive director of the James Madison Project.
LEMELIN: And very soft-spoken.
ZAID: Yes. With my apologies to my good colleague by the DIA [Defense Intelligence Agency].
EVITT: Quite all right.
GOTTESMAN: Larry Gottesman, agency FOIA officer, EPA [Environmental Protection Agency].
LEMELIN: I'm Christa Lemelin. I'm the FOIA Advisory Committee’s Designated Federal Officer and I'm a facilitator at the Office of Government Information Services.
BENNETT: I'm Amy Bennett. I'm at the Office of Government Information Services.
LEMELIN: And Amy’s taking notes for us today so I don’t have to, so thank you, Amy.
GRAMIAN: Yes, Amy’s our newest member at OGIS. She’s part of our review team and she’s kindly going to take notes for us today. OK, so let’s move to our agenda. Before we dive into the work that we're all about to do I wanted to share some details on how today’s meeting will work and also cover some basic expectation and ground rules for the session.
First we will take about a 15 minute break halfway through this meeting at about approximately 11:20. While we're not allowed to have any food or drinks in the room, you know we can only have water --
LEMELIN: Unless you're at this table.
GRAMIAN: Unless you're at this table, yes. We could have water. If you all wish to grab something quickly from the café which is located two levels down on the ground floor, which is also where the rest rooms are located. Next, along with everyone’s bios, as we've explained, all of the information about this committee is maintained on our web page within the OGIS website. Again, www.ogis.archives.gov. There you can find the committee’s charter, members’ bio, and any other links to videos, transcripts of these meetings, information about meeting dates, public comments, and anything else related to the work of this committee. As you all know, we will meet four times per year. This is our third meeting. Today’s meeting agenda is at the OGIS website and it lists the dates of our upcoming meetings. We selected Tuesdays of the third week of the month unless the date conflicted with a holiday. During our inaugural meeting we established three subcommittees. The subcommittees on FOIA and Oversight and Accountability, the Subcommittee on Proactive Disclosures and Subcommittee on FOIA Fees. These subcommittees are free to schedule meetings in addition to the larger committee meetings. The same FACA rules apply to the subcommittee meetings and we can expect to see notice of those meetings and that they're open to the public as well. Subcommittee documents are also available on the committee’s web page in case somebody wants to review those. Today we will hear updates from each of these subcommittees and we will also discuss the draft bylaws for the committee.
This is a committee on Freedom of Information. Accordingly we want our work to be as open, transparent, and participatory as possible. We're glad to see so many interested folks in the room and we want everyone to be as much of a part of this committee as possible. I should also note that we have set aside a period of time at the end of the meeting for Public Comments. We want to hear from everyone in this room today and we look forward to hearing from any non-committee members who might like to comment at the end of the meeting. To learn more about submitting comments to this committee please visit our site and look for [the] Contact Us/Submit Comments page. Now if we could just take a few minutes to take care of two very important administrative matters. One is the approval of our minute meetings [sic] for the October 21st meeting. The committee members have had a chance to review a copy of the minutes from the October 21st, 2014 meeting. A copy was emailed by Christa --
LEMELIN: And you also have copies in front of you right now. And if you're in the studio audience these minutes are available online.
GRAMIAN: Right. If you all would take a few minutes to review what's in front of you and let us know if there are any corrections to the meeting minutes. Anybody? Any corrections? No? I guess your silence means no. That’s great. We'll now entertain a motion to approve the minutes. Do we have a motion?
MALE: So moved.
GRAMIAN: All in favor?
GRAMIAN: All opposed? Excellent. The minutes are approved. Anyone on the phone? OK, great. Thank you all. Now if we could also move to our next topic for the committee’s vote and that topic is our draft bylaws. The Federal Advisory Committee Act, FACA, requires advisory committees to develop clear operating procedures to govern advisory committee activities and meetings and specify the relationship among the advisory committee members and the designated federal officer, Christa, and the agency staff. On November 13th, 2014 the committee’s bylaws working group consisting of the former committee chair and OGIS director, Miriam Nisbet, Miss Melanie Pustay, Miss Ginger McCall, Mr. David Reed and also Mr. Larry Gottesman all met to discuss and agree upon the language for the bylaws. The November 13th bylaws that Christa circulated to the committee members reflect the changes to which the working group agreed upon. Please note that the bylaws were modeled after the examples that were posted on GSA’s [General Service Administration's] website and it also reflects the basic intentions for the way this committee will work. As you can see, they're fairly brief and straightforward, so if we all could take a few minutes to review and discuss any questions, comments that anybody has. OK, great.
REED: My only comment is that I’d like to thank my colleagues who worked on developing these bylaws.
GRAMIAN: Noted, thank you. Great. We will now entertain a motion to approve the bylaws.
MALE: So moved.
GRAMIAN: All in favor?
GRAMIAN: All opposed? Wonderful. Anyone on the phone? I guess not. OK, the bylaws are now approved. All right, great. So before I turn the microphone to our subcommittee members are there any other topics that we can discuss that you all need to discuss? No? Great. OK, so now we will spend most of the meeting time to hear from each of the subcommittees on their work. Christa and I will keep time and we will spend about 30 minutes on each subcommittee’s report, including a report on where each subcommittee’s work stands, and if there are any discussions or brainstormings you all would have to discuss with your fellow committee members. Let’s also make sure that each subcommittee has a clear path forward for the coming months as they continue working to make recommendations to improve FOIA as directed upon the creation of this committee in the second open government national action plan. With that said, I would like to ask the subcommittee on Proactive Disclosures, co-chaired by David Reed and Eric Gillespie, to present their subcommittee reports. And I understand Mr. Gillespie may have to leave early today. If that's the case we'll just have Mr. Reed. Thank you so much.
REED: Thank you, everybody. This is a report of what proactive disclosure subcommittee has been doing since the last meeting. We're working on two topics currently. The first one is analyzing FOIA requests to identify high value types of records for proactive disclosure. The second issue is one that came up in a previous meeting which is looking at the relationship between proactive disclosure and the section 508 requirements for accessibility. First, with the identifying high value records for disclosure, after our last meeting we discussed a study that had been done by a group called Reinvent Albany which examined FOIA requests to the New York State Department of Environmental Protection, analyzing those requests to find what kind of information was being requested and by whom. At the time of our last meeting we were discussing this based on their written report. Since then we interviewed the person who directed the Reinvent Albany study to find out more about their methodology. What we found out was that they were not actually able to go through the log of FOIA requests and classify each one as to what type of records was requested. Instead they looked at the logs to identify the most frequent filers of FOIA requests and then they interviewed those frequent requesters to find out what kind of information they typically requested and what they used it for. So that was the basis of Reinvent Albany’s findings, that there were just a few types of records that constituted about half of the FOIA requests to this particular agency and therefore concluded that if those records could be disclosed proactively there would be an offset in savings in reducing the number of FOIA requests the agency had to respond to.
We also came across a similar study that's been done even more recently at the U.S. General Services Administration [GSA]. In this case GSA was responding to a data call from the Office of Management and Budget which had asked each agency to investigate how non-government groups were using open data that the government made available. And in order to respond to that data call what GSA wound up doing was going to their FOIA office to identify the regular requesters and repetitive requesters of FOIA and then GSA surveyed those identified requesters to determine how people were using the data that GSA did make available. This just brings us to another example that although up till now most of the analysis of FOIA requests has been in terms of number of requests, speed of service, the number of requests that are partially or fully fulfilled, there's an additional aspect of information about FOIA requests that we see as important, which is what particular records are being requested and by whom. And I think both in this GSA study, in the New York state study and our work, and I think more broadly as the government proceeds in working towards more effective, open data and open government, looking at the content of FOIA requests is going to be an important information source for us to be data driven in determining what data the government should make open that would be high value.
We have been trying to do some analysis ourselves of FOIA requests. We have found information on the content of FOIA requests at federal agencies. One source is the FOIA logs. Several agencies’ FOIA logs are available through FOIAonline.gov. There are some other agencies who do not have their logs on FOIAonline.gov but do have logs on their agency websites. And finally, there are federal agencies that as of now are not posting their FOIA logs either on FOIAonline or on their own websites. In those cases the FOIA logs might be available from those agencies through a FOIA request, but they're not being routinely disclosed. There's a good deal of variation between agencies in how well the FOIA logs describe what was requested by each request. Some agencies have for each FOIA request or for almost all their FOIA requests a pretty much verbatim extract from the actual request of what was requested. So in that case the log is as clear as the request itself. Now, sometimes the requests aren't that clear, but it's nothing the agency can fix. In other cases we found the FOIA logs and the publicly available records from some agencies give a less usable picture of what's being requested. We so far found one agency that has actual copies of the FOIA requests available on its website. That would be useful although in the cases where the FOIA logs give very good descriptions of what was requested then that's, I think, as good for our purposes as copies of the actual requests. If Eric is still with us on the phone then he can describe some work that he did looking at two particular agencies’ FOIA information to do a pilot analysis. Are you still with us, Eric?
GILLESPIE: I am. (overlapping dialogue; inaudible) FOIAonline.gov website. The most robust data set that was available there was from the EPA. The second most robust data set was from Department of Commerce. We didn't include the Department of Commerce output in the report today, but we have that information if anybody’s interested in seeing it. The first slide that you have in front of you is the word density cloud that just looks at the EPA content. Effectively what we did was we used some technology to very simply crawl the FOIAonline.gov site and pull back every available EPA request that had been posted on the website. And with that content and doing some basic text analytics we created this word cloud that shows the density and occurrence of each word. At the center of the cloud you see the more frequent words that show up across the 3,500 or so requests that we were able to get access to at the FOIAonline.gov website.
The next several slides show categorically some of the themes that emerged as we looked at the text analysis. The primary category slide highlights the [heads of substances?] at -- I'm sorry, the types of documents that are primarily requested from the EPA. So you begin to start to see themes like systems inventories, citation claims, lawsuits, determinations. Another interesting observation here are the boundary designations for property lines to determine contamination sites, and we saw that frequently. On the next slide you begin to see the entities emerge and we've highlighted a few here. Some of the entities are Superfund sites that show up frequently. You see companies like DuPont and ADM begin to emerge where there's information most frequently requested about those specific organizations. You see entities like the Sierra Club show up who are frequent requesters. On the next slide you begin to see the primary categories of chemicals that emerge and you begin to see a lot of mercury, radiation, radon, biphenyl requests. And through this -- again, it's a fairly simplistic analysis of very dense documents, but you begin to see thematically these words tell a story about the types of requests that happen most frequently and the information that's in those requests.
The next slide is a word density clustering analysis and better than look at the individual words the analytics that we ran looked at the proximity of words to one another. So how often words are associated with each other and how far apart they are in relationship to one another. And those that are circled on the word density [inputs?] in these slides again begin to tell a theme and story about what we saw as the text analytics begin to highlight certain things and we begin to see a lot of underground tank requests and contamination remediation requests, water quality, water supply, wastewater requests, water storage, etc. A lot of remediation requests. And through this -- the technology is fairly simple that we used here -- we began to see these themes emerge that of course specific to the EPA, and we have the same analysis for the Department of Commerce. We were able to begin to understand the most frequent types of requests, the types of requesters. So we also looked at titles of requesters, to look at patterns and begin to see patterns emerging for specific types of requests that could be proactively disclosed if done by -- if proactively disclosed by the agency on a more frequent basis.
This analysis is, again, fairly rudimentary. The data sets that we were working with from FOIAonline.gov is relatively shallow. What we like to do -- I think now that we've tested this thesis and proven out that we can begin to see themes emerge with even relatively simple technology applied to the data sets, we’d like to identify an additional data set that might perhaps be a little more robust that we could begin to do this with. And I'll turn the conversation back to David since I'm on the phone. But we're hoping to identify committee members who would be willing to shepherd us through a process at an agency to begin to do these types of analyses with a deeper, more rich data set that might be more telling. And with that, I'll turn the conversation back over to David since he’s in the room.
REED: Thanks, Eric. The other issue we've been looking at is one that was raised at the previous committee meeting and that was the relationship between section 508 accessibility requirements and proactive disclosure. And what we've done at this point is kind of teed up the issue. Just to review background, some requirements of the section 508 of the Rehabilitation Act, first of all that federal information technology must ensure that individuals with disabilities have access to and use of information and data that is comparable to persons without disabilities. Secondly, the law says that if making the technology accessible would be an undue burden on the agency, then the agency must provide alternative means of access that allows the individual to use the information and data. And then these statutory requirements are fleshed out by standards that are issued by the United States Access Board which sets standards for particular technological approaches and performance that are considered sufficient to meet these requirements. As a lot of you know, the Access Board is in the process of and is expected to soon issue a revised set of standards that will refer more to existing international standards for accessibility.
When looking at the issue of whether there might be a problem in proactively disclosing federal records if they are not already in accessible format one thing is that most federal records should already be in accessible format. We've been under section 508 requirements for years now. The section 508 requirements apply not only to information that the government releases to the public, it also applies to the use of information technology by federal employees and therefore our systems are under the requirement to be accessible whether or not we've been making those records public all along. One example is that whenever we go to our office in the federal government and use the standard word processing software that we have it produces documents that are supposed to well adapted for use by software that will read it out loud to a person who’s sight impaired. And so a lot of the accessibility has become built in to federal information technology by this time.
However, that doesn't mean that everything in the government is accessible, that all our records are accessible. For one thing we still have some paper based work flows. We all in our work, I think, run across various cases where the way the work gets done is that there's a paper form that gets filled in and then gets maybe some handwritten annotations on it or some stamps, some rubber stamps, and it gets filed. These paper records are not inherently accessible. Another example is when we produce graphics. In order to be accessible to persons who cannot see the graphics would have to be tagged with alternative text that describes what the graphic shows. In addition, even when a document is accessible originally, when we go through the process of redacting that document that process typically makes the document inaccessible. The standard procedures, for example, for redacting documents using Adobe Acrobat would produce a file where you have an image of the document with some portions redacted, but the text layer which a text reading software could read out loud has been eliminated. And so in that case if the document is to become accessible again it has to go through a process of remediation such as recognizing the text with optimal character recognition, adding back tabs to indicate the structure of the document, adjust the reading order. There is a memo which some people may be familiar with from the Department of Homeland Security on creating 508 compliant PDF documents and it describes the process of taking a document which has been redacted in Adobe Acrobat and then remediating it so it becomes accessible again. It's all doable, but it takes some work.
At this point I think because 508 compliance in general is an issue where there's a constant balancing of what works for persons with disabilities and what is practical at any given time in terms of the current state of technology and cost of that technology and the information technology in use by agencies, because it's all so much about the particulars I think we would like to elicit, both from my committee colleagues and from the public, specific cases of difficulties that have prevented proactive disclosure of federal records because of concerns about accessibility, and to encourage that feedback of actual cases of problems we're putting forth this straw man and saying here’s a possible solution, let’s find the cases where this would not work. And two steps are first of all that posting that we applied the same standards to proactive disclosure records as to any other publicly available information from the federal government. So those requirements, as with any federal information, the records should be posted in accessible form unless the agency determines that it would be an undue burden. If there is an undue burden then the agency must provide alternative means of access. We have seen in numerous cases where federal agencies already are making proactive disclosure of information on their websites. It's common to see a notice that the agency intends this all to be 508 compliant and if you find that it is not working for you, you should contact this person to explore how the government can remediate that.
And then the second point here is we're proposing that agencies should not delay proactive disclosure of records because they are not yet accessible. And that disclosure should happen while the agency proceeds with making the records accessible. So what we're asking for in this case is if anybody can come forward with cases saying here’s the particular set of records which have been proactively disclosed or could be or should be proactively disclosed, but they cause problems in terms of 508 compliance and accessibility. And we’d like to be able to work with some actual cases to flesh out what's wrong with this proposal and what alternative principles we should put forward. That's all we have at this point. Thank you very much.
GRAMIAN: Anyone with questions, comments?
JONES: I have a comment. Nate Jones. I’d like to thank you for a great presentation and just quickly on 508 compliance, there are already some government [e-stars?] that have, I think, following the course that you set out posted the vast majority of their FOIA releases online 508 compliant. I hope I don’t miss any, but Department of State, NARA, all of the agencies in FOIAonline, ISCAP [Interagency Security Classification Appeals Panel] . So there are already people that have been doing this and great work and we've got to get all agencies up to snuff, in my opinion. Thank you.
REED: And that's a very good point. I mean we do see variation and I think one good objective would be since we've seen the importance of the FOIA request data, to find ways to encourage all agencies to come up to the level of the best agencies in terms of describing the content of what was requested.
GRAMIAN: Anyone else, questions, comments? Anyone on the phone? Questions, comments?
WEISMANN: I have a question. This is Anne Weismann. So can you just detail a little more the kind of additional help, volunteer work you're looking for?
REED: Two things. With regard to the identifying targets for proactive disclosure, as Eric discussed, I think we're looking to work with the members and anybody else in agencies to get the most in depth data about FOIA requests. So in the cases where FOIA logs may have some requests for which there is not a description of what was requested we want to at least understand why the description is missing and if possible fill it in if it's available from some source that we have not yet looked at. So I think what we're asking for with regard to that is help with fleshing out the data about the content of what was requested from agencies.
And then the second thing with regard to 508 compliance, we're looking for actual cases where a problem has arisen in reconciling, making disclosure of records to the public versus only putting forth a face to the public that meets the 508 accessibility requirements. So we're looking for people to come forward with factual cases that have arisen or that they see saying there's this type of records and we have or would like to or have been asked to disclose them but we're concerned that we'll be told they're not 508 compliant.
JONES: One lead on that, I remember our first meeting we had an excellent guest saying if you can fix 508 compliance this FOIA committee will have been a success. She was from Department of Interior.
GRAMIAN: Anything else? Anyone? Well, we're well ahead of our schedule. We could take a break or we could move to our next subcommittee. If anyone is interested in taking a break or... no? Let’s do one more, OK. So let’s just turn to the subcommittee on FOIA fees chaired by Ginger McCall and Jim Hogan. You will have about 30 minutes, or more since we're ahead of schedule, and go ahead and...
MCCALL: So we held our meeting once again at EPIC’s offices. We held it on December 3rd. The members in attendance were Jim Hogan and myself, Ginger McCall, Anne Weismann, Karen Finnegan and Dave Bahr. Christa Lemelin was also there from OGIS. Oh, and Nate apparently, which we'll have to I guess amend these --
LEMELIN: We'll post the updated version of those notes online.
MCCALL: Great. So when we had met the first time we discussed potential areas of research and some of those areas of research were looking at the current status of court precedent regarding the three designated special categories of requesters. So news media, educational institutions and noncommercial scientific institutions. We were going to look at the case law around that and try to find out whether or not there was any real clear definition of these things. Because one of the problems that we noticed for FOIA officers within agencies that's creating inefficiencies is that it's very difficult for the officers necessarily to have any consistency and real guidance about who falls into these categories. And this also creates problems for requesters because a requester may sometimes qualify for a category and then if they make a request to a different agency, or even within the same agency, they may be denied special fee category status. And these fees make a huge difference to requesters. They can be thousands or even tens of thousands of dollars.
So we decided first we were going to look at case law precedent around these designated special fee categories. And second we were going to look at how other countries around the globe deal with fees, particularly fees in regards to large requests, voluminous requests, or frequent requesters. Because one of the things that was raised by several of the FOIA officers who were in this meeting from the government side was that the fees are used as a tool to encourage requesters to narrow their request and to discourage what they called vexatious requesters. So for this meeting in December we looked first at the summaries of the fee provisions in access laws in Australia, the United Kingdom, Canada, Mexico and New Zealand and we included a table of our findings within these notes here from the meeting. What we found in short was that laws on fees are all over the place. It’s difficult to see any sort of real pattern in worldwide access laws. So we weren't able to necessarily find a solution there. And we talked about it, we discussed at length the pros and cons of these different fee structures that were set up in countries. For instance, in Canada there's a flat fee of $5 charged. Other countries allow agencies to designate a requester as vexatious or they give a certain amount of search time that's free. So there are a lot of differences around the world in these fee laws and in the way that agencies deal with voluminous or what they would call vexatious requests. So we talked about the perceived advantages and disadvantages of each country’s fee structure and we also considered whether or not those countries actually have a structure where a person would have to go into an office and search for documents themselves or if they could make a request and then have a government officer search for that request, or search for those documents.
Next we moved on to reviewing the U.S. standards for favored requester categories. I had a couple of memos [Memo on Representatives of News Media, Memo on definition of "noncommercial scientific institution" and Memo on D.C. Circuit Case Law on Educational Institutions] prepared by some of our interns looking at law, specifically in the D.C. Circuit, for what qualifies as a news media requester, who would qualify as an educational institution, who would qualify as a noncommercial scientific institution. We also looked at agency regulations to try to find out if there was any firmer guidance there. And the conclusion that we came to in this meeting was that the categories are often ill-defined and they're confusing to both the agency and the requester. And this, I think, accounts for a lot of the time that's spent on fees and perhaps we figured this accounts for a lot of the contentiousness around the fees issue. So then we talked a little bit about some of the proposals that were made originally. One of the proposals that we had made, that was made in the very first meeting of this federal advisory committee, was the idea of just eliminating fees all together for all noncommercial requesters. So we talked about the advantages and disadvantages of that. The primary advantage of this would be a reduction of time that the agencies spend on adjudicating fee issues. So figuring out who would fall into a favored requester status, who qualifies for fee waivers, all of that time would be reduced. It would also, I think, really benefit requesters because requesters wouldn't have to worry about the financial burden that they may have to shoulder for making a request. It would allow agencies to focus their resources on the actual processing of the FOIA requests, but within the group, within the subcommittee, there was a lot of discussion and a lot of concern around the potential risk of FOIA requesters flooding the agencies with requests, especially voluminous requests, because they would no longer have to pay processing fees. There was some speculation that this could increase agency backlogs or response times.
So it was noted by some of the governmental members of the subcommittee that there is a history of a small number of requesters flooding the agencies with requests, that a small number of requesters end up accounting for a large percentage of the agency’s work time. And that given this history the elimination of fees may make things worse. Other nations, as noted in our research, had labeled these types of requesters as vexatious, but for understandable reasons some within our subcommittee group found that term to be problematic. So we decided that we would use the word extreme instead. Currently agencies don’t necessarily have a tool in their tool kit to deal with extreme requesters or very frequent requesters or voluminous requests. So several nations do have within their access laws sections dealing with vexatious requesters, specifically Australia and the UK and New Zealand approach this issue, though they do it differently. So we created a summary of those approaches and it's in the materials. Different countries define vexatious in different ways. In some countries vexatious, quote, vexatious requests don’t have to be honored. It differs within the countries who gets to designate a request or a requester vexatious, so it seems around the world there's not a lot of agreement about this. So we talked a lot about that and the applicability or necessity of a similar provision in the U.S. There were a lot of concerns on the part especially of the requesters of requesters being unfairly deemed vexatious. Perhaps some of us up here might be deemed vexatious. (Laughter) And so the potential of mischief by the agencies in labeling a requester, the difficulty of objectively defining an extreme request or requester, it seems like this is comparable to the difficulty of defining news media. The potentiality of foreclosing access rights to the public because of a few bad apples. And we decided that the subcommittee decided that it seems advantageous to have an independent authority make this sort of designation instead of an agency, but that this would ultimately add significant time to the process in making a determination, so it may not end up being any more efficient than what we already have.
Other potential ideas for fee improvements were then discussed. We talked about modeling a system that has a single low uniform fee, something like Canada, that would be paid by all requesters. This would make requesting more affordable across the board and it would eliminate the time spent by FOIA officers in resolving fee category issues and potentially discourage extreme requesters. We also talked about a scheme that would by default make requests free of fees except if the documents implicated by the request passed a fixed threshold. So for instance, a 10,000 page threshold. This would eliminate agency time spent assessing and collecting fees, eliminate economic barriers for more requesters and help discourage over-broad burdensome requests. So the attendees debated the merits of each of these claims, but ultimately decided that the discussion was lacking necessary information about the actual burden created by extreme requests, existing agency mechanisms for dealing with broader frequent requests and the actual amount of agency time spent assessing or collecting fees. So to that end we decided that we’d like to do a survey of FOIA officers. We agreed that the questions should center around two general areas. The first area would concern fees and the determination of how extensive they are as an issue, if at all, and the second would explore large and burdensome requests and agency mechanisms for dealing with those requests. And we plan to hold our next meeting again at EPIC’s offices in February.
GRAMIAN: Thank you. It’s very informative.
MCCALL: Oh, and actually to that end, on the topic of the survey, we will be reaching out to members of this advisory committee to get some ideas about questions for that survey.
GRAMIAN: Great. Anyone, comments?
JONES: Quick comment. I think some good news is due to --
GRAMIAN: If you could please --
JONES: Oh, Nate Jones. Due to posting our documents online ahead of time the FOIA listserv already has read these and has a very active and very good discussion on this topic. So I recommend all of us to go read and perhaps chime in and certainly take their views into account. So it's already creating a good discussion.
LEMELIN: Just to jump in here and put in another plug, we really want the public and federal agencies to share their thoughts and opinions on this. So please visit www.ogis.archives.gov and go to the FOIA Advisory Committee section of the web page and within that there's information on how to submit public comments. So please do that. Please be part of this important conversation. Your thoughts and opinions are very important and will inform the work that this committee does.
MCCALL: Yeah, it would be great to hear from members of the public, people within agencies, others in advocacy groups about potential solutions for this problem, taking into account both the agencies’ interests of the overly burdensome requests but also the requesters’ interests in more ready access and not having overly large fees.
WEISMANN: Yeah, I was just going to add one thing that was striking to me -- this is Anne Weismann, sorry -- is that I think it's perceived as a problem or issue from both sides, if you will. Both requesters and agencies I think are really struggling with this.
MCCALL: Yeah, and one of the things that we talked about within the subcommittee on the side of the requesters is that if you are a requester who’s making reasonable requests and then you're dealing with a backlog that's created by large over-broad requests or requests by very, very frequent requesters it ends up putting you at a disadvantage as well.
JONES: Just two more quick points. One, I think there's a lot of agreement that no matter what the problems -- one of the problems is that there's no real standard and that standards for fees fluctuate from agency to agency and that's a cause of the frustration. And my second point is that, to my surprise actually, the end appeal stage of Mandatory Declassification Review, which is in some ways parallel to FOIA, actually does not do -- they don’t charge fees and they don’t do a first in/first out basis. They actually prioritize. So frequent requesters sometimes go to the end of the line by this body at NARA’s opinion, which is an interesting model to study. In some ways it's successful in some ways it might not be, but it's certainly to around the world we can look here at home as well.
GOTTESMAN: First actually a comment, then a couple of quick questions. I can tell you from EPA’s standpoint we don’t look at the size of the request in making fee waiver determinations except when we got those records I want all records in EPA involving clean water or, you know, back up a truck, we'll -- so we really don’t look at those. Secondly, the memos you mentioned your staff did, are those available on the website?
MCCALL: Yeah, I can send them along so that they can be put on the website.
GOTTESMAN: That would be great. And our biggest challenge is the educational category because we see most students in college and high school now feel they're educational and I think that's really a big challenge we all have, just to determine when they're really educational, when they're just sort of doing a paper. When they tell you, “I need it tomorrow because I haven't done my research yet” it's pretty obvious where they fit, but that's always a challenge to agencies is when these educational requesters come in, are they really requests on behalf of the university or are they really just a student making a request because they want some research done for them?
REED: That's another point. This is David Reed. We discussed what you called extreme requesters, which some other people have called vexatious requesters, but there's also, I think, in a lot of cases an issue of what you would call frivolous requests where it is a student doing their term paper and kind of mechanistically filing a FOIA request with a federal agency. And the question is whether as a matter of policy the government should be dedicating resources to processing that request. And right now the only way it's discouraged is by fees. I'm happy to see that you are coupling the fee issue with the issue of reviewing whether requests actually should be processed. And if there was some way to do that that was not subject to abuse of putting aside the requests from the government’s opponents, then it seems that would be better all around than using fees to discourage some requests.
MCCALL: I can't speak for the subcommittee, but just to speak from a requester standpoint I would think actually that a request by a high school student or a university student, we would actually want to encourage that. That to me seems like the exact sort of thing that we would want to encourage under the statute. It's important civic engagement by young people.
WEISMANN: This is Anne Weismann. Let me just also add I think it would be very dangerous territory for the subcommittee to go down the road of deciding -- of creating standards for what are the requests that an agency should or should not entertain. I mean the law is pretty clear. It's a right that the public has, period. Really the only issue we're talking about here is fees and, again, I mean there are fee requirements and standards built into the statute, but nevertheless the experience of people on both ends is that they've been very difficult to implement. And so we have focused on what I guess I have to stress I think is a very, very narrow subset which is very, very frequent requesters which doesn't really look at the merits necessarily of any independent request. And as a member of this committee and subcommittee I would be adamantly opposed to going down that road. I think it would be entirely inappropriate.
MCCALL: Yeah, and the reason that we were looking particularly at this idea of vexatious requests is because the initial proposal was let’s get rid of fees. Let’s get rid of fees for all noncommercial requesters. The agency pushback on that has generally been fees are an important mechanism that we use to discourage irresponsible, extreme, vexatious requests which end up creating more of a backlog which hurts everyone both at the agency and the requester community. So fees are the tool that the agency uses to discourage those requests or when they receive such a request to encourage a narrowing of a very, very broad request. So I think it is an important conversation to have, whether or not these extreme requests really are a problem for agencies, and it's difficult to get at that by looking at the current reports that are up on FOIA.gov. We haven't been able to figure out exactly how many requests really are voluminous, very voluminous, how many requesters really are vexatious requesters or extreme requesters, someone who’s making a request every day or every other day. So we're trying to get a handle on exactly how much of a problem is this really. Because if it's not that much of a problem then perhaps this idea of getting rid of fees for noncommercial requesters is a viable idea. When we end up looking at the amount of time that agencies spend processing fees related issues versus the amount of time that's spent on these requests perhaps it comes out one way, perhaps it comes out the other, but the way to get to that, we hope, is to do a survey.
GOTTESMAN: And Ginger, this is Larry Gottesman, you've said it now three times and it really offends me, agencies -- I can tell you most agencies do not make determinations on fee waivers based on the size of the request.
MCCALL: No, I'm not saying that they make a determination on the fee waiver, I'm saying that --
GOTTESMAN: But we also don’t look at fees as a way to encourage requesters to limit their requests.
MCCALL: Well, that's different than --
GOTTESMAN: I can tell you, at least I can speak --
MCCALL: But we were told by the people within the subcommittee. I mean this is something that the officers themselves say.
GOTTESMAN: I understand, but I can just say at EPA I can tell you we do not make that decision. Clearly we've never said oh, because this request is going to take us 300 hours to process -- we call it the 100 year request -- we would never go back and say, you know, we're going to come out with a number because we're going to try to discourage you. I mean we will give them valid numbers if they want to limit their request, except for those requests asking for all records at EPA involving clean air or clean water. I mean those are just beyond anybody’s relative reasonable request, but...
MCCALL: And this is what we're hoping to get to in the survey. I'm not (overlapping dialogue; inaudible). I'm also saying from an outsider’s perspective I was not the one who came up with this idea that fees are used to discourage broad voluminous requests. It was something that was raised by the FOIA folks, the government side FOIA folks within the subcommittee.
GOTTESMAN: That's fine. Just the other side of the coin is we've never done that.
MCCALL: And I hope that this is what we'll get to in the survey is to be able to look at the different ways that agencies deal with these requests and with fees.
JONES: The lack of uniformity government-wide because other FOIA folk just said on the record that they have.
GOTTESMAN: Which goes back to the encouragement of one central set of fee structure for the whole government.
WEISMANN: But again, this is Anne Weismann, this is raised as like a common response to the proposal to get rid of fees which is that then what do you do with these extremely large -- so I think I can't stress enough I think the first step is, is this a real issue? Or again, is it a straw man issue that we're dealing with? And that's really, I think, the first step that we need to figure out.
MCCALL: And it would be helpful when we get that question from folks on the government side, oh, if we can't use fees then how do we deal with these requests, how do we deal with an over-broad request that we want to be narrowed? If there's an agency that has a great way of dealing with this, if you have a different -- if you have a way of working with those requests, of encouraging requesters to narrow over-broad requests, or perhaps over-broad requests aren't that much of a problem at all actually for your agency, it would be helpful to hear that.
HOGAN: Hi, this is Jim Hogan. Could I speak a little bit?
MCCALL: Of course.
HOGAN: OK, good. I want to make sure that it's working here. I want to be careful not to couple fees with discouraging. Of course we don’t do that, but I think a reality is for a FOIA officer out there that when they have a request that clearly does not qualify for any fee waiver and the person does not the ability to demonstrate it, etc., and it's a large request, sometimes that is used as an encouragement to the requester to help narrow and focus the request and that's sometimes a difficulty with a lot of FOIA officers. Whether it's somebody that qualifies for a fee waiver or not it is encouraging the requester to focus the request to get the information they want in a reasonable amount of time. And I think that's part of the difficulty out there in understanding FOIA requesters. They don’t understand how the filing systems are so they'll say I want everything and anything on a certain subject, such as what Larry was talking about there. So I think we're going to be able to get some feedback once we have the questions to the agencies in that how do they deal with that? And of course for any request, for a lot of requesters, especially if they qualify for a fee waiver, the primary encouragement is time. You know, we can be more focused the more narrow you are, the more we work with you, the quicker you can get the information.
FINNEGAN: Hi, this is Karen Finnegan. I’d like to support a little in a different way what Jim is saying in that I think there is a common interest when an agency and a requester can talk about the scope of the request because the requester wants to get the information as quickly as possible and the agency also has an interest in processing the request as quickly as possible so they can close it and it's not part of the backlog. But I think that the perception that's coming out in everyone’s comments is the one that we start with is there's acrimony in the fee issues in the FOIA world. And so in addition to the detailed work we're trying to achieve here I think we also have to try to change the perception and the approach that seems to be common from both the requester and the agency side when they're talking about fees.
WEISMANN: I think that's a very good point and, again, I think data is what will help us get there.
MCCALL: So to that end we invite people to propose survey questions. We'll put together, I think, a list in the next few weeks and then perhaps email them out. Maybe we can get those posted up on the website for this committee and solicit response on those questions and see what people think.
ZAID: This is Mark Zaid. Depending of course on whether there's a decision that fees should be eliminated or not, is the subcommittee looking at trying to better define the category of potential fee requesters?
MCCALL: I think that those exact goals will probably be refined once we've actually seen the data from the surveys. It's difficult to say right now what the goal should be.
ZAID: Because I know one of the issues I've looked at for a number of years, particularly for a number of the groups that we represent in the nonprofit world, I've even struggled with trying to figure out exactly how some of us are either news media or educational. I mean we clearly should be entitled to fee waivers and we're the type of groups that the statute presumably was designed for, but the category really isn't there. To the agencies’ credit, they've shuttled us into fee categories that we probably shouldn't be in in order to get fee waivers because we just don’t exist there. There’s no nonprofit for the betterment of education and dissemination of public information. Obviously if you don’t decide fee waivers should be eliminated that's something I would suggest that you look at.
JONES: Mark, this is Nate. I've heard of people (overlapping dialogue; inaudible) telephone friends.
ZAID: You don’t have to tell me that you're Nate. I know you're Nate. (Laughter)
JONES: I've heard banter around that it hasn't happened, just adding in if an organization is a 503(c) then --
WEISMANN: A 501(c)(3).
JONES: Thank you, Anne. Then they would only pay reproduction fees which is...
MCCALL: I think, I mean that's an idea that I've supported for a while. I think it might be a good middle ground on this, but we'll have to see what turns out from the surveys.
ZAID: The other thing, there was some time last year someone FOIAed some document from the FBI [Federal Bureau of Investigation] and I want to say it said it was vexatious FOIA requesters because I was on the list and I wasn't quite sure why exactly I was on the list. But I was curious at least whether you saw this from the other countries or hear in your discussions with the agencies, whether it's vexatious or extreme, I mean to me there's a significant difference between someone who’s submitting a significant number of requests but every one of them could be legitimate and substantive and entirely appropriate, but there's just a million of them. Anyone who does FOIA litigation knows that some of the worst FOIA decisions are by vexatious litigators, usually prisoners, that end up having bad decisions because quite frankly the judges just want to get rid of them and then eventually ban them from doing any further litigation. But they're submitting FOIA requests about OK, what kind of toothpaste are we getting here at the prison, which I suppose could be something good in some ways, but every year, every day, whatever. But I wonder if you're looking at the notion of -- maybe this would be the survey question. What do agencies mean by requesters that are submitting a significant number of requests? What's causing them the problem? Is it the number of the requests or is it the substance of the requests, the frivolity of the requests? We all know here some individuals who I won’t name who are incredibly, I would say by definition vexatious if you go by volume, but this one person in particular submits fantastic FOIA requests that end up actually all over the news because of the substance that he ends up receiving. But I certainly know of some agencies that would love to shut him down just because of the number of requests. But that's what the statute’s there for.
GOTTESMAN: This is Larry again. But the flip side is we now have a new requester who’s someone with EPA who’s making between 20 and 30 requests a day every single day for information regarding -- I think he’s worked his way through Congress, to be honest with you, and the Senate. And so it's just becoming, you know, for other folks it's becoming a challenge because if he’s going to make 435 requests, which is my guess as to what he’s doing (inaudible) numbers of every Congressman and every -- I mean every governor. It sort of puts the agency in a fairly -- a difficult position because do we process his basically 500 FOIA requests or do we process, you know, where do they come? And if you're doing first in/first out your staff limitations are there. So they're reasonable requests on their face, but they're like I want every FOIA request or every document and agency regarding Congressman X. It’s just a challenge to agencies.
WEISMANN: The one precaution I would say here, it's not to agree or disagree with any of the remarks that were made, but the subcommittee is looking at the issue of fees and so we do have to make sure that that remains our focus. Obviously it's touching on broader issues that with more time may be appropriate for this Advisory Committee or any of the subcommittees to look at as well, but I think just keep in mind that we're looking at through the narrower lens of the fee provisions.
GRAMIAN: Excellent comments. Thank you all. Anyone on the phone? Comments? OK --
MICHALOSKY: Could I add just one more last minute comment?
MICHALOSKY: So I think the work of this committee --
GRAMIAN: If you would please state your name.
MICHALOSKY: Yes, Marty Michalosky from the CFPB. I think this is important work. I'm interested to see what updates come to the OMB guidance and just other general guidance as well because I think that's about due for some.
MICHALOSKY: And I say that in a different perspective. I follow what kind of Larry has pointed out as well, that we don’t charge a lot of fees and we find other ways to work with requesters. But we're going through our regulation rewrite. After three years we're updating it again and one of the things that I wanted to do was really look at fees and if you want to say relax them or take a different approach to them, and what I found out was that I'm limited in that approach because of some of the guidance that is out there. So if I want to, for lack of a better term, automatically waive fees below a certain threshold or don’t charge fees or get rid of duplication fees and do those type of things, I'm limited because there is already rules out there that I have to abide by, or my regulation would contradict the government’s rules, so to speak. So I'm very interested to see those things change so that agencies out there that do want to change things are able to do that better and more quickly and really focus on things in a more holistic approach to benefit both agencies and requesters.
MCCALL: Yeah, I think that's a very good point.
GRAMIAN: Excellent. We can go ahead and take a break. We are way ahead of our schedule. You know, upon return we will only have one more subcommittee to do their report.
LEMELIN: So let’s come back at 11:30 and we'll have the Oversight and Accountability Subcommittee report and Public Comments. Thank you.
GRAMIAN: All right, welcome back everyone. It is 11:33 right now and we can go ahead and turn to our next subcommittee which is the subcommittee on oversight and accountability. Martin and Mark Zaid are the co-chairs of the subcommittee and I'm going to ask them to report on their activity. There you go.
MICHALOSKY: Thank you, Nikki. This is Marty Michalosky from the CFPB. I'm going to go ahead and take part of our work and report out to you and then discuss it, and then Mark’s going to take part of it and we're going to split that up. We reported back in October of our meeting in September that we had with the subcommittee. Thank you to all the subcommittee members that gave their time and input and feedback on what we're doing going forward, but during that update and the meeting we had set basically four guidelines or four things that we were going to start with and start looking at and working on. And I'm here to report on the progress of those items. We did meet in December, December 10th, and we were going to talk about these four items. The first item that we started to discuss was to identify current authorities for oversight and action. So this included really that 10 year review that I had discussed. So we were looking at audits, program reviews, inspector general reports and so forth. So we went ahead and looked at that for 10 years. Nate Jones, one of the subcommittee members took this piece of the project on and basically went through and worked to pull a variety of different reports.
So he identified and collected over 50 government reports related to FOIA programs since the 1970s. Out of those 50 or so reports we've actually already posted 24 of those on the subcommittee’s website. So that's been posted this week and you can review those. Those are focused on really GAO reports. This collection and the larger collection of the 53 does not include Congressional or non-government entity reports. These are only government reports and not those entities’. So just keep that in mind as we look through those. One of the things that I do want to solicit from the public and even other committee members is we have a strong desire to take input from the public and take input from others. So if you're aware of some reports that we don’t have on our list or that we don’t have posted, please guide us in that way so we can go ahead and pull those. If you have other things that you would like for us to consider that are along these lines of audits, inspection reports that you think are valuable, please send them to the committee so we can evaluate those and discuss those and considered those.
Also with that, we plan on in the future to continue collecting and continue posting these reports as we uncover them or they're shared with us, but we also want to look at these and conduct a review and analysis to see what do they say. Are there perpetual problems year after year after year? Are there new things that were remediated and resolved, and maybe we want to look at that practice and how was that successful and maybe apply that elsewhere. But if you want to help us you can also look at these and see if you come to a different analysis or you identify some other trends or some other issues that you’d like for us to look at. So please look at these, consume them, share them, and then come back to us if you see something that you’d like for us to look at, or even come to a meeting and make a public comment. So we do ask and we desire your input and your help in this area too. So just to recap, we have identified 53 reports. We have 24 GAO reports that are in that subset already posted that you can begin looking at and reviewing. And then if you have anything to share with us please do so. That would be very helpful.
One of the things that we're also looking at is next steps. I identified this as another item that we were looking at, but to determine areas for additional oversight. Once we begin this review we want to look at this as a two step process. One is to look at the reports that are out there, what reviews have already taken place, what audits, what inspections, and then look for what has worked, what hasn't worked. Again, what is perpetual and then what can we suggest as next steps. So are there additional oversight roles, are there additional guidance, things like that. So once we begin this analysis we're going to go ahead and look at that next step. The other thing I want to talk about that we talked about in the subcommittee in December is assessing the FOIA public liaison role at different agencies and components. So what does that look like, what's successful, what needs to be improved? And that's something that we're looking at. So one of the things that I worked on with other subcommittee members is to conduct a survey of this role. So some of the things that we're going to focus on in this survey is to assess what type of people are serving in this role. Are they FOIA professionals? Were they in a different role and this is a collateral duty? Are they trained? Do they have some education and experience with FOIA, or are they working in a different area of responsibility and they just pick up the phone? So what are the people serving in these roles, what is their background, what is their training? It could come down to even what is their grade in authority, are they in a supervisory position, aren't they, like what the statute calls for. So we are looking at doing a survey to all government FOIA public liaisons and assess those items to have a picture of what does that -- what is the current status of that role and what does it look like?
Some of the future plans once we conduct that survey is to basically look for opportunities for improvement. To kind of move this forward as well we want to partner with the Department of Justice OIP [Office of Information Policy] to first have a discussion and then conduct a survey. So we're working with DOJ to set that up, to have that basically roundtable with agencies, get their feedback even outside the survey. So the survey’s a tool that we definitely want to use and we want to collect information, but we also want to set the tone for that survey and we want to give the public liaisons an opportunity to share information with us so it's a two way street. We’d like to see what does this role look like in their agency or component, but also what concerns do they have? So it's a two way opportunity for discussion. So that's something that we're working with DOJ on and we're going to be doing it in the near future. And then we're also going to go into -- I believe we're going to partner with the Fee Subcommittee to do one survey to agencies so we're not sending multiple surveys out to agencies but we're doing this in one avenue versus multiple. And again, much like what Ginger had pointed on, if the subcommittee members have input for those questions or concerns that they want us to touch upon, please send that to our subcommittee so we can evaluate that and maybe even talk with you further. Because we may have a certain approach and then you may bring something to the table of an idea or thought with that as well. So we do solicit your feedback as well. Those are the two items I want to talk about and I'm going to ask Mark to cover the other two items as well.
ZAID: Thanks, Marty. And thanks to all the members of the subcommittee and especially to Marty who’s done a good lion’s share of keeping the subcommittee members up to date and pushing us forward. So as he said, we met on December 10th of last year. I'll deal with the other two items that we had identified as our sort of four main objectives. The third one dealt with attorneys’ fees. A little bit different from the issue of the fee waivers, although there is some relationship to it. And one of the things that we're looking at is to get a better sense of the cost to agencies that attorneys’ fees, when we're successful in litigation, might be having on the process. So the last amendment to FOIA switched fees coming from an actual agency budget rather than the general treasury in the United States. It was intended to serve the purpose of incentivizing agencies to be more productive and to perhaps settle sooner rather than litigate because if they lost the case, and especially if they're a smaller agency like Marty’s agency, we could probably bankrupt them if we took a sizable -- I mean I know several of us have had six figure attorneys’ fees settlements and for some of the agencies that would be pretty significant.
So we have no sense yet as to whether that objective or motive or thought has actually played out well. To some extent the view might be that agencies have buckled down and tried to litigate more and harder in the hopes that they would prevail rather than lose earlier on or settle. So that would be part of the survey actually that we will participate in as well. And we're trying to compile more accurate information dealing with attorneys’ fees, what fees were paid, in which cases, what for, etc. We're going to not reinvent the wheel because there's actually an effort underway in, is it Syracuse, Anne? (overlapping dialogue; inaudible) TRAC [Transactional Records Access Clearinghouse] at Syracuse University that is just coincidentally looking at some of these same issues and we are in touch with them so as to piggyback as much as possible and gather that information. That's a pretty simple one. The other thing about with attorneys’ fees and litigation, we're going to be looking at just what kind of litigation there is that's going around throughout the federal government. There hasn't been a litigation review or analysis since the early ‘90s and the question is how best could we avoid litigation? And this sort of goes to the oversight and the fourth component as well, are there ways such as the mediation that OGIS provides where we could avoid going into litigation and the cost that that entails? Some of the data in the annual reports that the agencies issue deals more with man hours and we're looking, as I just said when we're going to look at what TRAC is doing, of more of the cost itself from the fees, the actual dollar out of pocket costs. But the review that was done back in the early ‘90s apparently looked at a set of cases that existed at the time pending litigation and even some that had stopped, and in fact once they reviewed the litigation there were actually additional releases that were made even though the agency had won. I think somebody said, was it on Wallenberg, that right? Raoul Wallenberg, the Swedish diplomat. Swedish? Am I getting the country right?
ZAID: Swedish, right? Swedish diplomat killed in World War II, or imprisoned in the Soviet Union depending on which theory you want to go at, but that's a different story. And whether or not we can persuade or it is necessary for an agency or entity to do so some sort of survey of current litigation and see if there are cases that perhaps should never have been defended. For those of you who are familiar with the Attorney General memos that have come out in the last 20 plus years, Reno, Ashcroft and Holder each had one, and it talked about where if the Department of Justice did not -- I'm paraphrasing -- agree with the agency in question in a particular case that they might not defend it. Well, to my knowledge there's never been a case that the Department of Justice has not defended. And that could be because every one of those cases were defensible and should have been defended or it could be that that statement just wasn't really taken to the heart that it was meant to be and lawyers being lawyers, we'll litigate either on the prosecution or to the defense side regardless as to how it comes before us. So is there a way for some sort of entity to examine cases as they come along and sort of almost be a neutral advocate internally to say maybe we should second think this one or have some more discussions before we go forward.
The fourth component of that in dealing with oversight was with the Office of Information and Policy and on January 13th we met with the director, our fellow committee member, Melanie Pustay, and the chief of compliance, Bobby Talebian -- am I saying it right, Bobby? Bobby’s here in the audience -- who gave us a wonderful amount of their time and very productive discussion about the role that OIP plays. With the creation of OGIS a number of years ago we're looking at what different entities have an oversight role, what role should they play, how can those roles be increased, if they should be increased, in any particular way. And OIP within the Department of Justice, as I read from their website, responsible for encouraging agency compliance with FOIA, ensuring that the President’s FOIA memorandum and the AG FOIA guidelines are, I think it says implemented but it's cut off on my page, across the government. And they're looking at, as we were told, encouraging compliance, overseeing compliance and Melanie and Bobby went through all these different areas that they do. And for example, OIP used to historically deal with issues if a requester or member of the public wanted to call in and have an issue with a particular agency, it would go through OIP. But with the existence now of OGIS they get very few at OIP because these type of cases tend to go through OGIS now and OGIS has done an excellent job in dealing with those.
So part of what we were sort of looking at is, is there any need at all to modify oversight authorities at different offices or agencies? We talked about OIP having -- used to have a greater role in litigation than it does now. There was discussion, I know, and raised by some of us in the private sector, of some concerns with respect to in particular the FOIA litigation guide that the department oversees and issues, which is a fantastic resource. Absolutely one of the best FOIA resources out there, written by the lawyers predominantly, and although Melanie has modified it over the years and will take a look at this now as well, it very much reads, at least from the private perception, as more of a legal brief for the government’s position. And what we're looking at of course is trying to get more of a neutral view as to what would the purpose of FOIA be. The purpose of FOIA is to have the release of information subject to one or more of the nine exemptions being met, but the primary goal is to release. So as lawyers the way we can write things, we can very easily write things as this is the argument we want to support and here’s the cases that support that proposition or we can reword the same cases in a different way. But much of what happens with FOIA, as anyone who deals with FOIA knows, it is an attitude. It’s the attitude that permeates through, particularly in the government sector, with the requesters -- I'm sorry, those who process the requests and the attitude that they want to emulate. And if they have a positive attitude it works fantastic and if they have a negative attitude there's going to be more withholdings and that's a systemic problem that always has existed and will no doubt continue to exist, but we're looking at what other mechanisms can exist from that oversight standpoint to further encourage compliance and as well if we talk about what was going on with the fees.
So a discussion of if there's going to be some sort of standardization of fee waivers, if that will still exist because of the differences of the agencies. Well, OK, where is that going to come from? Who’s going to create that? Should it stay as it is now? But even with OIP being part of the Justice Department not every agency, quite frankly, has to listen to OIP. They can implement sort of in their own way. Now, it doesn't tend to be that way from what we've been told over the years, but every once in a while there can be an issue. So there is some limitation that exists and is there a need for that limitation, to the extent it does exist, to be remedied in any particular way? So those will also be some of the survey questions that we compile to see if there is any need, further need, for additional oversight. I know I think I've mentioned before at other past meetings another type of example, as we'll look at some from whether it's a state or around the world, a sort of type of ombudsman. Should there be additional authority given to perhaps OGIS or another entity if that's the need? The example I've always cited, the country of Albania, which was not the Mecca of freedom in the world as the last communist country to fall, within years of it becoming free in about 1992, by 1999 they had a new constitution largely based on ours, they had a Freedom of Information Act and they had an ombudsman office that if you complained to it as a requester that an agency wasn't complying with your office, that office can tell that agency, not just mediate but tell that agency that they needed to comply and order the release of information. Don’t know if it's frankly worked or not in Albania, I just know that it exists, but we want to look at things like that to see if those type of examples would make sense here in the United States. They might not. Don’t know. But those are the types of issues that we're looking at with respect to this subcommittee. I think that's it. Am I missing anything from the other members?
JONES: I would just add that enforcing compliance or encouraging compliance, you gave the good example of fees, but I would also say the example of redactions or over-redactions or maybe under-redactions.
GRAMIAN: That was Nate Jones.
JONES: Nate Jones. Of course it was.
GRAMIAN: Comments, anybody?
WEISMANN: I have a -- it's not specific to this but I just want to flag it before I forget, a concern or an issue that I think as a committee we will have to deal with. A number of the subcommittees want to do surveys and I know we thought would make sense to do one, but I know from surveys I've done when I've worked with people in the field, surveys that are long are a real problem. So I'm concerned and I do think as a committee we're going to have to take a look at the best way to proceed.
BARBER: Anne, I (inaudible) on that. This is Delores Barber and I have a concern too about the survey and I think we did discuss this in our subcommittee. The difference between taking a poll and doing a survey and making sure that we don’t run afoul of any OMB [Office of Management and Budget] requirements.
WEISMANN: I may have used the wrong language. We did address that, but I'm addressing a different issue as well which is that whatever we call it, if it's a survey or a poll, if it is very long because it includes questions from all these subcommittees I think there are real issues about getting responses, effective responses. I mean there's a whole study, in other words, there's a whole science of doing surveys, so I just think we're going to have to be mindful of that and really figure out, get our arms around what's the universe of questions we have and then how does it make sense to get the information? Is it one survey with everything or is it multiple? So I just wanted to flag that.
BARBER: And OMB actually has some guidance that they have posted about how to develop questions. And you're right, it can be a complex sort of thing, but there are certain steps that OMB might flag us on if we're making this a widespread collection of information. And even what the survey pool itself might look like.
REED: If you're talking about a survey only of federal employees in their capacity as federal employees then at least that used to be outside the Paperwork Reduction Act and OMB approval. Nonetheless I take the point that the survey has to be done such we get a good response rate, and so you do want to look at length and understandability and all of that.
MCCALL: This is Ginger. I actually have some connections to some survey methodologists, so I could probably ask for a little bit of just pro bono informal help.
GRAMIAN: Sounds great. And I think this question came up before and we have had some discussions with our Office of General Counsel that we can follow up on. Is that right, Christa? OK, great. We'll follow up and let everybody know. Anyone else, questions? Folks on the phone?
BARBER: Nikki, I have a follow-up question for the Proactive Disclosure group. This is Delores again. I'm going to take your ask back to my team and see if they might be able to identify a larger data set. Do you have a process or a timeline about when you want people to get back to you?
REED: We do not have a timeline established. If you're talking about having something to say within the next few weeks that would certainly be timely.
REED: Thanks, Delores.
GRAMIAN: Thank you all so much for your reports. And now we can turn to everyone else in the room. I want to thank all these folks in the room for attending this meeting. We're eager to hear from all of you as well. And we'll take your comments and questions for the next 20 minutes. Anyone? Please.
RAVNITSKY: Does this work? Hello? My name is Michael Ravnitsky. I'm interested in the furtherance of open government and I've been interested in that for some time. I'm speaking on my own behalf of course and I've gotten to know some of the fine folks who administer FOIA in some of the federal agencies as well as the motivated and altruistic for the most part people who are interested from the requester community in the same sort of issues. And I wanted to comment on one particular issue today and then make one comment about the fee issue that came up earlier. One of the quiet successes of FOIA that has not been commented upon much, and I haven't heard anybody talk about it, is the fact that some 70 to 80% of releases now to requesters are done electronically, either by email or on a disk or on a flash drive. And that's worked out very well, but it's led to one type of problem that I wanted to raise which I've been hearing from a lot of people who I know.
That is that there's problems with a lack of consistency and standards in scanning quality. Poor scans, poor resolutions, lack of OCRing [Optical Character Recognition]. It's not 508 compliant but it can't even be made 508 compliant because trying to scan something of poor initial quality makes it very hard. Locked or password protected files, password protected disks that are sent out and require special accommodations to try to even open and read, much less copy or use. Disinclination to release native files like an Excel spreadsheet or a flat data file or something like that. Instead the preference is to print it out and provide some sort of scanned PDF of poor quality and making it very hard to use the actual underlying data. I know that there's a couple of people here who are quite familiar with that. Unnecessarily huge files when they don’t need to be because people are unfamiliar with how to transmit electronic data. Archaic or obsolete software formats. I know people who have taken years to figure out how to crack open something they've gotten under a FOIA request and that really shouldn't be necessary. And fragmented records or files broken up into lots of little pieces which also is frustrating, I think, for some people.
So those are things that could be easily accommodated and fixed if there were some sort of general suggested guidelines for agencies to have in releasing records. I think that the staff would benefit from having those kind of suggested guidelines. And there may be data format quality guidelines floating out there somewhere in the government, but I think that these don’t need to be mandates. They can be suggestions and they can be just really common sense sort of things, but things that people don’t think about when they're processing a FOIA request. So the agencies are saving a lot of money and time and effort and the requesters are happier because they're getting electronic records, but when you get to the point where the quality of these records is sometimes abysmal and in order to make them usable by anybody people have to go to great lengths, extraordinary measures, to salvage the data.
So the something I wanted to say about fees was this, that I think that, and this hasn't been widely recognized yet because the DOD FOIA regulations are not yet issued in their final form, but what I saw of them in their initial form, and I'm sure that comments have been received to make them even better, Jim Hogan in particular is a very thoughtful gentleman. He’s done a great job at formulating a set of regs that really accommodates a lot of the discussions that have been held in the FOIA requester and agency community over the last few years and I think that those could be a model for other agencies in the future, especially in their dealings with FOIA fee categories and waivers and fee assessments and those sort of issues that come up over and over again. So I would encourage the committee to look at those draft regs and what finally is issued when they're issued and perhaps see if that might form some sort of a model for future agency FOIA fee issues and regs.
Certainly OMB might be encouraged to revisit their guidance which is aging quickly and would benefit from a modern perspective. One of the big problems is to distinguish fee waivers from proper fee categorization and ambiguity, which I heard muddled a little bit here too. And I think that's very commonplace in the agencies. Some of them are using a shorthand, but some of them just don’t get it and I think that it's important to really maintain that separation between what's a fee waiver and what's a fee category because those are essential things built into the law. I personally think the law is wonderful. I think the law works well when it's carried out and the problem is when the rubber hits the road the law isn't always carried out, and some of that is training and some of it is interpretation. There is an interstitial category that Mr. Zaid referenced which is not really envisioned in the statute and the regs as they're written now, which is sort of people don’t fit into any of the categories but are not doing it for a commercial purpose and are trying to circulate information to the public. And I think there's a number of organizations which have sort of found a home somewhere, but that's not the best solution and perhaps the agency regulatory -- future agency rule makings might be a good home for fixing that. You can't change the statute but you can accommodate that by agency handling of FOIA requests in their regulations perhaps and find a good solution there.
Agencies probably have a lot of discretion to set the fee threshold where they want to and I think that some agencies which I am familiar with have set it quite high do not typically charge noncommercial requests for -- they don’t charge noncommercial requesters and they've done very well in that way. If they do find a voluminous, burdensome or difficult request then they can talk with the requester and have that conversation. And I think I can prove this point by saying that I believe agencies should not send out fee letters for more than $500 or $1,000. Nobody should be sending out a letter for $10,000. They should be picking up the phone and talking to the requester to mutually address the issue verbally and/or in a meeting. I think when you start sending out letters that arbitrarily assign large costs to a request, that's when you get into a position where people take firm positions and there's less opportunity for dialogue. So those are just my thoughts. Thank you.
GRAMIAN: Thank you. Any comments?
MCCALL: Yeah, actually I largely agree with a lot of that. And one thing on the issue of FOIA regulations, so one of the other pieces of the national action plan was that the Department of Justice is supposed to craft a uniform FOIA regulation or at very least model FOIA regulation for use across the government. A few of the groups here, CREW and EPIC and National Security Archive and OTG [OpentheGovernment.org], have put together some model FOIA regulations, but I would encourage folks in the public to keep an eye on those uniform FOIA regulations as they're crafted and engage with the agencies on that.
GRAMIAN: That was Ginger McCall. Anyone else? Comments by members?
ROBERTS: I had a question. My name is Jasamyn Roberts. I'm new actually with the government, with data.gov under GSA, and one of my roles is marketing and communications. I know one of our goals with data.gov is -- I think mostly everyone here would know that it's a harvesting tool and a catalog website for all these different data sets coming from the different agencies. One question I had was I'm wondering as we're gathering the different data sets from the various agencies, right now we're in the stage of version 1.1 where we want those data sets in the JSON format. So I'm wondering how do you see that role as we have larger and larger amounts of data sets available, how do you see that affecting the requests that are made directly to the agencies? Do you see data.gov one day taking over where individuals can just come straight to that website and find what they need, or do you think that's going to be a long, long, long term vision? That's what I believe data.gov would be used for in the long run, so that would in turn then probably affect those fee structures and so forth. So I'm just wondering what you see, how you see a data.gov role, playing a role in that.
JONES: I'll go first. Nate Jones. I'm a strong believer that the more that agencies proactively post information the fewer FOIA requests they'll get. And I think that there's a long way to go until we cross the, in my opinion, acceptable threshold of enough information posted to see fewer FOIA requests. But if data.gov is successful we'll see it. And then I would also add that I think it would be terrific if agencies said here is our data set of all of our FOIA releases in this year and you guys post it. I don’t think I've seen that yet and I think it would be a tremendous room for growth. So I guess the big point is use FOIA releases as a data set. Because right now, as many of us know and as I've said before, people spend hours processing a FOIA request, print it off and it may go in someone’s desk never to see the light of day. And it's a waste of resources and it's a good avenue for proactive posting, privacy and journalistic concerns notwithstanding. There's ways around that.
ROBERTS: And also when it comes to kind of touching base on what you were saying with the different formats, how realistic is it for the agencies to be able to convert some of those data sets into the JSON format so that it is accessible and easy to read and easy to use data for the public?
MALE: That might be a question for Govini.
ROBERTS: Would that be very time cons-- I'm sure it would be to a certain degree, but I'm wondering is there a solution for that, for us to help in our goals and to help in your goals as well?
REED: I'm not qualified to address the technical question of what the cost is of converting to
JSON. I do think we have to be aware of the issue that under FOIA the requirement is for the government to disclose its records and if it withholds any part of it that it accounts for that. And therefore any conversion of format from the native format the government is holding those records in into another format poses the question of whether the information has been changed. And so I think when we look at putting information into a format that's easy for external users to use we have to -- if we say that we're doing this as part of FOIA then we have to look at whether we are following the FOIA requirements to present the government’s actual records, you know, with any redactions clearly marked. So I don’t know if that answers it or muddies the waters.
ROBERTS: Thank you, I appreciate it.
GRAMIAN: Any other comments? Nate?
JONES: I just have two quick comments. First, oddly enough, what we talked about earlier about the great comments on the OGIS website, there's many on there but I want to just flag one great set that anyone interested in FOIA should read from the Society of Historians of Foreign Relations which actually is a pretty broad survey of FOIA requesters. We talked about doing a survey about FOIA processors, but they raise many of the issues that we brought up today, fees, proactive disclosure, they also mention B5, but anyone interested in FOIA and all of us should give it a good hard read. Also secondly, my second point, I wanted to thank Nikki for a great job, but I also wanted to state my concern as a member of this council that the FOIA Ombuds Office, the FOIA watchdog, still has not published a call for applications for the director of the place that looks out for FOIA requesters and FOIA processors. And I know things in the government can get muddled, but I want to state for the record that it's concerning and I think many of my council members might agree and I urge the administration or OMB or NARA or whoever to hopefully get this application up quickly and further strengthen OGIS. Thanks.
GRAMIAN: Thank you. As you all have heard, this committee has already been very active in its efforts to improve FOIA through the efforts of the three subcommittees that are underway. We look forward to hearing updates on the committees’ work and also invite you to visit the website for more information about what we're up to and how you can participate. And one final thing to note is that all of you in this room will undergo the National Archives exit screening procedure to leave the building. For security purposes all individuals’ bags are checked to ensure that no archives holdings are removed from the building. And I want to thank everyone for coming and we will see you all at our next meeting on April 21st, 2015. We stand adjourned. Thank you.
Date Posted: Feb 4, 2015 | Date Updated: Feb 4, 2015 | Last Reviewed: Feb 4, 2015