October 21, 2014 Meeting Minutes
National Archives and Records Administration (NARA)
Freedom of Information Act (FOIA) Advisory Committee
Meeting Minutes - October 21, 2014
The FOIA Advisory Committee convened at 10 a.m. on October 21, 2014, in the Archivist's Reception Room, Room 105, in the National Archives Building at 700 Pennsylvania Avenue, N.W. Washington, DC 20408-0001.
In accordance with the provisions of Public Law 92-463, the meeting was open to the public from 10 a.m. to 1 p.m.
A transcript and videos of the meeting are available on the Committee’s website at https://ogis.archives.gov/foia-advisory-committee.htm.
Committee members present in the Archivist’s Reception Room:
- Miriam Nisbet, Chair, Office of Government Information Services (OGIS), NARA
- Andrew Becker, The Center for Investigative Reporting
- Karen Finnegan, U.S. Department of State
- Larry Gottesman, Environmental Protection Agency (EPA)
- Jim Hogan, U.S. Department of Defense (DOD)
- Martin Michalosky, Consumer Financial Protection Bureau (CFPB)
- Melanie A. Pustay, U.S. Department of Justice (DOJ)
- David S. Reed, Federal Communications Commission (FCC)
- Eric Gillespie, Govini
- Nate Jones, National Security Archive
- Ginger McCall, Electronic Privacy Information Center (EPIC)
- Maggie Mulvihill, Boston University
- Ramona Branch Oliver, U.S. Department of Labor (DOL)
- Anne Weismann, Citizens for Responsibility and Ethics in Washington (CREW)
- Lee White, National Coalition for History (NCH)
- Mark S. Zaid, Law Office of Mark S. Zaid, P.C.
Committee members on the phone:
- Dave Bahr, Bahr Law Offices, P.C.
- Clay Johnson, The Department of Better Technology
Committee members absent from the meeting:
- Delores Barber, U.S. Department of Homeland Security (DHS)
Others present at or participating in the meeting:
- Amy Bennett, OpentheGoverment.org
- Amanda Bignall
- Michael Binder, United States Air Force
- Krista Boyd, House of Representatives, Committee on Oversight and Government Reform Staff
- Cindy Cafaro, Department of the Interior
- Jillian Clouse
- Nikki Gramian, NARA
- Mark Hassell
- Matthew Kasper
- David Kruger
- Christa Lemelin, NARA
- Adam Mazmanian, Federal Computer Weekly
- Kel McClanahan, National Security Counselors
- Carrie McGuire, NARA
- Don McIlwain, NARA
- Kirsten Mitchell, NARA
- Mariia Piontkovska
- David Pritzker, Administrative Conference of the United States (ACUS)
- Robin Ross, NARA
- Wendy Schumacher, National Oceanic and Atmospheric Administration
- Alina Semo, NARA
- Claire Shanley, American Society of Access Professionals
- Mark Siford, U.S. Securities and Exchange Commission
- Angel Simmons, NARA
- Bobak Talebian, DOJ
Jean Whyte, NARA
Introductions and Announcements
Archivist of the U.S. David S. Ferriero opened the meeting by commenting on the growing momentum behind government openness and transparency around the globe. He noted President Obama's speech at the September 2014 Open Government Partnership meeting at the United Nations about the importance of Open Government and U.S efforts, including the work of the FOIA Advisory Committee, to make FOIA easier to administer and use.
Mr. Ferriero also acknowledged Office of Government Information Services (OGIS) Director and FOIA Advisory Committee Chair Miriam Nisbet who retired from Federal service at the end of November 2014.
Committee Chair Miriam Nisbet gave brief opening remarks, noting that OGIS, like the FOIA Advisory Committee, is charged with making recommendations to improve FOIA administration. She thanked those in the room who had been an invaluable part of OGIS's achievements over the past five years and noted that the National Archives is working to hire a successor for the director position. She also noted that the Central Intelligence Agency's Michele Meeks is no longer a part of the committee because she changed positions within her agency and as a replacement the Archivist appointed Brent Evitt, the Deputy General Counsel for Mission Services, Science and Technology, with the Defense Intelligence Agency's Office of General Counsel.
Committee members briefly introduced themselves and Ms. Nisbet introduced OGIS staff in attendance.
Ms. Nisbet reviewed ground rules and housekeeping matters, noting that materials for the meeting will be available on the FOIA Advisory Committee website; the committee will meet as many as four times a year.
The Committee unanimously voted to approve the June 24, 2014 meeting minutes.
Ms. Nisbet noted that the Federal Advisory Committee Act (FACA) directs Federal Advisory Committees to develop operating procedures to govern Advisory Committee activities and meetings and to specify the relationship among the Advisory Committee members, the Committees' Designated Federal Officers and agency staff. Ms. Nisbet noted that FOIA Advisory Committee draft bylaws were circulated among the Committee and that additional discussion appeared necessary before voting on the bylaws. The Committee created a Working Group consisting of Miriam Nisbet, Melanie Pustay, Ginger McCall, David S. Reed, and Larry Gottesman that will meet to discuss and agree to bylaws language.
As a final administrative matter, Ms. Nisbet reminded the Committee and interested members of the public to view the Frequently Asked Questions document distributed to the Committee and posted to the Committee's website. The document answers questions about meetings and about recordkeeping that came up during the Committee’s June 24, 2014 meeting.Subcommittee Reports
To ensure that the Committee’s Oversight and Accountability, Proactive Disclosures, and FOIA Fees subcommittees have a clear path in the coming months to recommend improvements to FOIA, the Committee dedicated the majority of the meeting to status reports from the subcommittees’ Co-Chairs.
Oversight and Accountability Subcommittee Report
Oversight and Accountability Subcommittee Co-Chairs Martin Michalosky and Mark S. Zaid reported that the subcommittee agreed to focus its efforts on identifying current authorities for oversight and past actions (program reviews, audits, reports, inspections, etc.) that have been completed by open government groups and others over the past 10 years; determining opportunities for additional oversight; assessing the implementation of the FOIA Public Liaison role and determining opportunities for improvement; evaluating past litigation review efforts; and determining opportunities for further oversight.
Mr. Michalosky noted that the subcommittee discussed oversight practices that work well within agencies, including self-policing, internal audits, as well as what agencies do across the board. Mr. Zaid observed that reports, studies, hearings, and investigations regarding FOIA oversight are not available in one central place and suggested creating such a collection online.
Proactive Disclosures Subcommittee Report
Proactive Disclosures Subcommittee Co-Chair David S. Reed presented an overview of the FOIA’s proactive disclosure requirements and the Department of Justice’s guidance encouraging agencies to proactively make information available to the public. Mr. Reed touched on the Digital Accountability and Transparency Act (DATA) Act and the benefits of standardizing proactive disclosures. Mr. Reed and Co-Chair Eric Gillespie explained the challenge the subcommittee faces in breaking down Federal agencies’ FOIA requests by record type, request type, or requester type and in obtaining FOIA logs with sufficient descriptions to get the data needed for analysis. Mr. Reed and Mr. Gillespie asked whether there are agencies represented on the Committee that would be willing to pilot a project with the subcommittee on this issue.
FOIA Fees Subcommittee Report
FOIA Fees Subcommittee Co-Chairs James Hogan and Ginger McCall noted that the subcommittee had explored how Federal agencies and FOIA requesters perceive FOIA fees, how data could help define and analyze the issues, and how other countries handle open access law fees. Issues identified by the subcommittee include a lack of understanding among FOIA requesters and Federal agencies regarding fee-related FOIA definitions and requirements; the lack of consistency in fee-related decisions; and how fees are used in voluminous and vague requests.
Michael Binder with the Air Force Declassification Office spoke on his own behalf and not as a Department of the Air Force, Department of Defense or a U.S. government representative. Mr. Binder said that there is a lot of FOIA oversight that currently exists, some of which takes away from the actual processing of FOIA requests. Rather than simply adding new oversight requirements, Mr. Binder recommended that the the Committee discuss how new requirements can replace old requirements and what old requirements should be eliminated. Mr. Binder also noted the challenges of proactive disclosure in terms of the labor, resources and technology involved in reviewing, scanning, and proactively posting documents online.
Kel McClanahan, a private attorney with National Security Counselors, commented on the need for better communication between agencies and requesters regarding fees and the scope of a request. Mr. McClanahan stated that he frequently files broad requests to avoid the agency interpreting the request too narrowly, and that agencies should contact requesters to discuss narrowing requests before either closing the case administratively as “too broad” or needlessly processing too many records. Mr. McClanahan also noted that agencies should make fee assessment determinations early so as to streamline processing. Finally Mr. McClanahan noted that some agencies are interpreting FOIA very narrowly to apply only to written [textual] records. As a result of this narrow interpretation, some agencies are denying access to databases in favor of releasing print outs of the database records.
David Pritzker from the Administrative Conference of the United States (ACUS) reminded the Committee of his comments during the Committee’s June 24, 2014 meeting with regard to the ACUS report “Reducing FOIA Litigation through Targeted ADR Strategies.” He noted that the report and ACUS recommendations addressed several points that the Committee discussed during its October 21 meeting, particularly with regard to encouraging agencies to improve communication with requesters. Mr. Pritzker noted the importance of improving and making the role of FOIA Public Liaisons more effective by ensuring they have the appropriate training and have greater institutional support from the leadership of their agencies. Mr. Pritzker added that he hopes the Committee can incorporate the report’s recommendations into the Committee’s work.
Closing and Adjournment
Ms. Nisbet said the Committee is always happy to accept comments. Information regarding how to submit comments is available on the Committee webpage at https://ogis.archives.gov/foia-advisory-committee/contact-us-submit-comments.htm. Ms. Nisbet thanked those who contributed to the meeting and adjourned the meeting.
I certify that, to the best of my knowledge, the foregoing minutes are accurate and complete.
Designated Federal Officer
The Committee will formally consider these minutes at its October 27, 2015 meeting, and incorporate any corrections or notations in the minutes of that meeting.
Date Posted:Jan 12, 2015 | Date Updated: Jan 12, 2015 | Last Reviewed: Jan 12, 2015