Meeting Minutes – June 4, 2020
National Archives and Records Administration (NARA)
Freedom of Information Act (FOIA) Advisory Committee
The FOIA Advisory Committee convened at 10 a.m. on June 4, 2020, virtually. In accordance with the provisions of the Federal Advisory Committee Act, Public Law 92-463, 5 U.S.C. App. §§ 1-16, the meeting was open to the public from 10 a.m. to 1:00 p.m.
Meeting materials are available on the Committee’s website.
Committee members present at the virtual meeting:
- Alina M. Semo, Director, Office of Government Information Services (OGIS), National Archives and Records Administration (NARA) (Committee Chairperson)
- Jason R. Baron, Faegre Drinker Biddle & Reath (Co-Chairperson of the Records Management Subcommittee)
- Emily Creighton, American Immigration Council (Co-Chairperson of the Time/Volume Subcommittee)
- Kevin M. Goldberg, Digital Media Association
- James R. Jacobs, Stanford University Libraries
- Joan Kaminer, U.S. Environmental Protection Agency (Co-Chairperson of the Vision Subcommittee)
- Lizzette Katilius, U.S. Securities and Exchange Commission
- Chris Knox, Deloitte (Co-Chairperson of the Vision Subcommittee)
- Ryan Law, U.S. Department of the Treasury (Co-Chairperson of the Records Management Subcommittee)
- Sean Moulton, Project on Government Oversight (POGO)
- Michael Morisy, MuckRock
- Suzanne J. Piotrowski, Rutgers University School of Public Affairs and Administration
- Lee Steven, Cause of Action Institute
- James R. Stocker, Trinity Washington University
- Bobak “Bobby” Talebian, U.S. Department of Justice, Office of Information Policy
- Patricia Weth, U.S. National Labor Relations Board
- Bradley White, U.S. Department of Homeland Security, (Co-Chairperson of the Time/Volume Subcommittee
Committee members absent from the meeting:
- Sarah Kotler, U.S. Department of Health and Human Services, Food and Drug Administration
- Abioye “Abi” Mosheim, U.S. Consumer Product Safety Commission
Others present or participating in the virtual meeting:
- David S. Ferriero, Archivist of the United States, NARA
- Kirsten B. Mitchell, Committee’s Designated Federal Officer, NARA
- Martha W. Murphy, Deputy Director, OGIS, NARA
- Jessie Kratz, National Archives Historian, OGIS Detailee, NARA
- Viju, WebEx Operator
- Welcome and Announcements
Archivist of the United States David S. Ferriero welcomed everyone to the second virtual meeting of the FOIA Advisory Committee and the final meeting of the 2018-2020 term. The Archivist noted that two years ago he appointed 20 FOIA experts from inside and outside of the government to serve on the Committee and advise on improvements to FOIA administration across the government.
The Archivist said that since September 2018, the Committee’s Records Management, Vision, and Time/Volume subcommittees have analyzed the FOIA process, brainstormed and deliberated on ways to improve it. He said that the full Committee voted on a majority of the subcommittees’ proposals at the Committee’s previous three meetings and the result is a package of 22 far-reaching recommendations, which are aimed at federal agencies, including the National Archives and Administration’s Office of Government Information Services (OGIS), the Chief FOIA Officers Council, the Council on Inspectors General for Integrity and Efficiency, and Congress. The Archivist said that he looked forward to the Committee’s deliberations during the meeting and to receiving the Committee’s final report. He thanked the Committee members for their dedication to FOIA and their work.
The Archivist said that he is committed to ensuring that the Committee’s recommendations are carried out and noted that much of the work for implementing the recommendations will be tasked to OGIS. Mr. Ferriero said that OGIS is currently completing action on recommendations from the 2016-2018 term of the Committee by assessing how agencies prepare documents for posting documents on agency FOIA websites and how agencies are incorporating FOIA performance standards into non-FOIA professionals’ performance plans and evaluations.
The Archivist said that he renewed the FOIA Advisory Committee’s charter for a fourth term. In accordance with the Committee’s charter, he said that OGIS would solicit nominations for government and non-government members to serve on the Committee for the 2020-2022 term. Mr. Ferriero said that the new Committee of 20 members expects to hold its first meeting on September 10, 2020. Mr. Ferriero then turned the meeting over to FOIA Advisory Committee Chair, Alina M. Semo.
Ms. Semo welcomed everyone to the virtual meeting and thanked the Committee members for their work during the term. She recognized in particular the efforts of the subcommittee Co-Chairs, the Committee’s Designated Federal Officer, and the Committee's working group (Jason R. Baron, Abioye Mosheim, Sean Moulton, and Patricia Weth) responsible for putting together the Committee’s final report and recommendations. Finally, Ms. Semo thanked particular NARA staff for their work supporting the Committee.
Ms. Semo reiterated the Archivist’s comments regarding the renewal of the Committee’s charter for a fourth term, 2020 to 2022. She said that OGIS would publish a Federal Register notice soliciting nominations for members to serve on the 2020-2022 term and said the first meeting of the new term would take place on Thursday, September 10, 2020.
Ms. Semo reminded everyone that the FOIA Advisory Committee reports to the Archivist of the United States and provides a forum for public discussion on FOIA issues. She encouraged public comments to be e-mailed to firstname.lastname@example.org. Ms. Semo noted that meeting materials are available on the 2018-2020 FOIA Advisory Committee webpage, including committee members’ biographies and committee documents. Ms. Semo added that to promote openness, transparency, and public engagement, committee updates and information are available on the FOIA Advisory Committee website, the OGIS blog, and on Twitter at FOIA_ Ombuds.
Ms. Semo explained the WebEx chat function and requested that Committee members use the chat function to indicate when they want to speak and refrain from including any comments of substance in the chat to comply with Federal Advisory Committee Act requirements. Ms. Semo also asked Committee members to stay connected to the audio and video for the duration of the event, even if they needed to take a break.
Ms. Semo said that the meeting agenda is available on the 2018-2020 term’s FOIA webpage and that the goal of the meeting was for the Committee to vote on one best practice that has now reverted to a recommendation; discuss any comments submitted by members of the Committee and the public; and discuss, finalize and vote on the Committee’s final report. Ms. Semo said there would be time at the end of the meeting for public comments.
Ms. Semo explained that the Committee's working group met regularly to pull together the draft report based on the recommendations the Committee passed. The final draft of the report was posted on the 2018-2020 term’s meetings page and promoted via the OGIS blog and NARA’s social media. Due to an oversight, Ms. Semo noted that the version of the draft posted did not include two appendices. She apologized for the oversight, thanked Jason R. Baron for pointing it out, and said that OGIS would post the draft appendices, one of which was the Committee’s charter which was already available online, to the 2018-2020 term’s meeting page.
The Committee approved the May 1, 2020, meeting minutes.
Next, Ms. Semo explained the voting procedures and said that Ms. Mitchell, the Designated Federal Officer, would record and announce the results of any votes taken during the meeting and then the floor would be open to the Committee for a period of general comments, questions, and discussion about the recommendations.
Mr. Goldberg said that he thought that Committee members participating in the virtual meeting should turn their cameras on for the sake of transparency and Ms. Semo agreed and observed that she was able to see that Committee members participating in the meeting had their cameras turned on with the exception of Patricia Weth who was not able to turn on her webcam.
Ms. Semo asked whether there were additional questions or comments and there were none. Ms. Semo then provided background information on the discussion that would take place during the remainder of the meaning.
Ms. Semo said that the Committee’s working group made a great effort to integrate the three subcommittees’ reports into one complete document and grouped the recommendations into subcategories which meant that recommendations in the Committee’s draft final report appeared in a different order than in the subcommittee reports. For the sake of clarity, she explained that the working group took some drafting liberties and made minor revisions to the wording of some of the Committee's recommendations while upholding the substance of the recommendations as previously voted on by the entire Committee.
Ms. Semo said that the working group used editorial discretion to craft supporting text for each recommendation that adhered to what was set out in the subcommittee reports, supplemented with additional text and citations. She said that the working group shortened some of the accompanying rationales from the subcommittee reports while retaining the substance of what was said.
Regarding the results of the Time/Volume subcommittee’s surveys of FOIA personnel and requesters, Ms. Semo explained that for the draft final report, the working group used its discretion to omit the cites and percentages from the Time/Volume subcommittee’s reports and replace them with somewhat less precise language that conveys the overall meaning of the results. Ms. Semo noted that the final version of the Time/Volume Subcommittee is available on the Committee's website and it includes the actual survey results which interested parties may wish to review. In addition, Ms. Semo said that the Records Management and Vision Subcommittees’ reports were updated and the final reports are available on the Committee’s website
Ms. Semo called the Committee's attention to Recommendation 13 in the draft final report which had formerly been Time/Volume Subcommittee Recommendation 1, and which was voted on by the full Committee as a best practice at its March 5, 2020 meeting. Ms. Semo said that the working group thought that the report flowed more smoothly when reverting the best practice to a recommendation and hoped that the Committee agreed. Ms. Semo read the text of Recommendation 13: “We recommend that agencies conduct a comprehensive review of their technological and staffing capabilities within two years to identify the resources needed to respond to current and anticipated future FOIA demands.” Ms. Semo invited the Committee to comment; however, there were no comments.
The Committee voted to pass Recommendation 13 with Mr. Talebian abstaining.
Mr. Talebian proposed that the Committee change the draft language of Recommendation 1 to the following: “We recommend that the Office of Government Information Services undertake an assessment of the information agencies make publicly available on their FOIA websites to facilitate the FOIA filing process, and for the purpose of informing further guidance by the Office of Information Policy on how agencies may improve online descriptions of the process.”
Ms. Semo asked whether Mr. Talebian’s proposed revisions addressed Mr. Susman’s concerns with the draft language for Recommendation 1. Mr. Susman said that he agreed with Mr. Talebian’s proposed revisions. Ms. Semo asked the Committee for comments on Mr. Talebian’s proposed language and there were no comments. Ms. Semo asked the Committee whether there was a need to vote on Recommendation 1 individually or whether to vote on it as part of the final package. The general consensus was to vote on Recommendation 1 and the subsequent recommendations discussed during the course of the meeting as part of the final package. Ms. Semo then turned the floor over to Mr. Moulton to discuss Recommendations 3 and 12.
Mr. Moulton proposed that the Committee change the draft language of Recommendation 3 to the following: “We recommend that agencies work towards the goal of collecting, describing, and giving access to FOIA-released records in one or more central repositories in standardized ways, in addition to providing access on agency websites.”
Mr. Moulton explained that he proposed the revision to the language to make agencies rather than OGIS and OIP targets of the recommendation. He said that he envisioned that OGIS and OIP would help agencies to implement these recommendations.
Mr. Baron said that he supports Mr. Moulton’s proposed revision and noted that the draft recommendation was discussed in the prior public meeting to balance the ability of agencies to implement the recommendation. Mr. Baron said that as Mr. Moulton and Mr. Jacobs noted, OGIS and OIP can encourage agencies to work towards the goals set forth in the recommendation. Mr. Baron said that he thought it would be more effective for OIP and OGIS to do this.
Ms. Semo and Mr Talebian agreed.
Mr. White said that he had no issue with Mr. Moulton’s language.
Mr. Moulton proposed that the Committee change the draft language of Recommendation 12 to the following: “We recommend that agencies release FOIA documents to the public on their FOIA websites and in FOIA portals in open, legible, machine-readable and machine-actionable formats, to the extent feasible.”
Mr. Moulton said that the rationale for removing references to OGIS and OIP in Recommendation 12 was to target the recommendations to agencies rather than to OGIS and OIP specifically. Ms. Semo opened the floor to questions and comments.
Ms. Creighton asked for clarification of the rationale behind the proposed revision. Mr. Moulton explained that under the draft Recommendation 12 language, if OGIS and OIP encouraged agencies to accomplish the recommendation, technically the recommendation would have been satisfied even if agencies didn’t change anything. Mr. Moulton said that the intent of the revised language was for the agencies to take action on the recommendations and noted that OIP and OGIS have important roles to play in helping agencies to implement the recommendations. Ms. Creighton thanked Mr. Moulton for the clarification. Ms. Semo asked whether anyone had any more questions or comments for Mr. Moulton regarding Recommendation 12.
Mr. Baron explained that the draft Recommendation 12 language was calibrated to address the concerns the agencies might not be able to implement the recommendation in the short term and noted that there were differences of opinion as to whether to use stronger or more cautious language for the recommendation as it related to agencies capabilities. Mr. Baron said he had no objection to Mr. Moulton’s proposed language.
Mr. White and Mr. Jacobs also voiced support for Mr. Moulton’s proposed language.
Mr. Susman said he did not oppose the proposed revision but that it is important for OGIS and OIP to be involved with Recommendation 12 as agencies may need outside supervision, accountability, assistance, and encouragement if the Committee adopted the proposed language.
In drafting the Recommendation 12 language, Mr. Baron said that the Committee is aiming for OIP and OGIS to fully embrace agencies’ posting of documents in machine-readable format but said implementing part of Recommendation 12 will involve a little bit of study on the Committee’s part.
Ms. Semo asked whether anyone else had any comments. There were no comments. Ms. Semo asked the Committee whether there was a need to vote on Mr. Moulton’s proposed Recommendation 12 language or whether to vote on it as part of the final package. The general consensus was to vote on the recommendation as part of the final package. Ms. Semo then turned the floor over to Ryan Law to discuss Recommendation 8.
Mr. Law proposed that the Committee change the draft language to the following: “We recommend that the Office of Information Policy (OIP) collect information as part of each agency’s Chief FOIA Officer Report regarding Standard Operating Procedures for the processing of FOIA requests to increase public transparency into agency FOIA processes and to encourage agencies to improve their internal processes.”
Mr. Law said that the draft language only included the goal of encouraging agencies to improve their internal processes and believed that the recommendation should include language on improving and increasing public transparency to agency FOIA processes. Mr. Law asked whether there were questions or comments on the proposed change.
Ms. Creighton, Mr. White, and Mr. Talebian said that they supported Mr. Law’s proposed language change.
Mr. Baron said that he supported the language. To make the recommendation clearer, Mr. Baron proposed changing the language in the recommendation to “to increase public transparency and to encourage agencies to improve their internal processes.” Mr. Law agreed with Mr. Baron’s modification to the language.
Next, the Committee discussed Recommendation 18: “We recommend that the Chair of the Council of the Inspectors General on Integrity and Efficiency (CIGIE) consider designating as a cross-cutting project or priority area the issue of how agencies are doing in providing FOIA access to agency records in electronic or digital form.”
Mr. Susman proposed revising Recommendation 18: “We recommend that the Chair of the Council of the Inspectors General on Integrity and Efficiency (CIGIE) consider designating as a cross-cutting project or priority area the issue of how successful agencies have been in providing FOIA access to agency records in electronic or digital form.”
Mr. Baron said he had no objections to the proposed language change and noted that the proposed language calls for making FOIA a cross-cutting project or priority area an ongoing priority rather than a one-time thing or assessment. Ms. Creighton cited the need for the recommendation to include language on how to measure success.
Ms. Semo recalled that the original intent of the recommendation was to have CIGIE designate a cross-cutting project to measure how agencies are performing their FOIA duties.
Mr. Baron said that the original intent of the recommendation was to get FOIA on the radar screens of Inspectors General and said how they assessed the FOIA programs was up to them. Mr. Baron said that he liked the language that Mr. Susman proposed.
Mr. Jacobs noted that he hopes that the review that takes place can take the form of an auditor review of how agencies are planning to meet the goal forth in OMB/NARA Memorandum M-19-21, Transition to Electronic Records.
Ms. Semo asked whether anyone had any questions, comments or suggestions regarding the Recommendation 18 language. There were no further comments.
Ms. Semo turned the floor over to Mr. Baron to discuss the “Final Observations” section that he wrote for the Committee’s draft final report. In this section, Mr. Baron explained that the intent was to offer suggestions for the next term of the FOIA Advisory Committee without binding any members of the 2020-2022 term to any particular action. He wanted to bring this section to the Committee’s attention because it was not something that the entire Committee had discussed.
Given the recommendations issued by previous terms of the Committee and the 22 recommendations to be issued by the 2018-2020 term, Mr. Baron suggested that the 2020-2022 term may wish to devote a portion of its time to measuring or evaluating compliance with the recommendations made in the previous terms.
Ms. Semo asked whether anyone had any comments. Mr. Jacobs thanked Mr. Baron for including the “Final Observations” section in the draft final report. Ms. Semo asked whether anyone else had any comments and there were none.
Ms. Semo turned the floor over to Committee Designated Federal Officer Ms. Mitchell to summarize the public comments submitted to the FOIA Advisory. Ms. Semo noted that the public comments were posted to the Committee’s webpage.
Ms. Mitchell said that Julie Winstead, a Privacy/FOIA officer for the New Mexico Veterans Affairs Health Care System observed a lack of training at all levels of her organization and identified the need for more records management and FOIA training. Ms. Winstead wrote that she supports the recommendations in the Committee’s May 19, 2020, draft final report and recommendations.
Ms. Mitchell said that Linda Frye, a Senior Government Information Specialist at the Social Security Administration, submitted a public comment concerning Recommendation 12, the Committee’s recommendation encouraging agencies to release FOIA documents in open legible, machine readable and machine actionable formats, to the extent feasible. Ms. Mitchell read Ms. Frye’s comment on Recommendation 12 which stated: “If this is implemented, how will agencies ensure the data’s integrity and that the data will not be falsely represented? Data provided in the recommended format can be manipulated.”
Ms. Semo asked for feedback on Ms. Frye’s comments. Mr. Jacobs said that data integrity is important and observed that agencies and organizations have public key infrastructure, checksums and other tools in place to assure the integrity of their data.
Mr. Morisy said that he wanted to echo Mr. Jacobs’ comments. He noted that even if agencies do not provide records in editable formats it can be easy for bad actors to forge agency documents convincingly, regardless of how agencies release them. Mr. Morisy said that the solution agencies sometimes use of providing less usable documents is not solving the issue and hurts the ability of requesters to meaningfully engage with material and increases distrust in government in other ways. He said that finding solutions is important.
Ms. Semo specifically asked Committee member and OIP Director Mr. Talebian if he wanted to weigh in on the ability to protect the integrity of documents. Mr. Talebian said that the rationale in the Committee’s recommendation illustrates that there are multiple ways of releasing information in machine readable formats while protecting the integrity of the data.
Ms. Mitchell summarized Ms. Frye’s submitted written comment regarding Recommendation 20 that Congress ensures that agencies receive and commit sufficient resources to meet their FOIA obligations. In her written comments, Ms. Frye said that the majority of the FOIA Advisory Committee’s recommendations depend on Recommendation 20 being implemented.
Ms. Mitchell summarized the written comments submitted by Dr. Paul Maas Risenhoover from the requester community. She noted that a number of the comments did not relate to the work of the FOIA Advisory Committee, so she would not describe them. She said that Dr. Risenhoover does not think that agencies using private contractors should be allowed to respond to FOIA requests by saying they are over-broad and, or not properly formulated. She said that Dr. Risenhoover wrote that: “NARA should ensure that Privacy Act requests do not require physical submission of an Affidavit of Identity claiming American citizenship, but may instead use an email option under 28 USC 1746(2), to attest to the Requestor's identity.” Finally, she said that Dr. Risenhoover does not think that FOIA requests should not be denied without at least one search by a subject matter expert.
Ms. Semo asked the Committee whether there was any feedback on the comments and specifically asked Mr. Talebian whether the Department of Justice has considered accepting anything less than the verification of identity waiver currently in use by most agencies.
Mr. Talebian said that agency regulations indicate how requesters should provide agencies with verification of their identity for the purposes of obtaining access to Federal records. He noted that agencies' regulations have more flexibility where different forms of certifying identity are acceptable. He said that agencies are bound to follow the verification of identity requirements set forth in their regulations.
Regarding Dr. Risenhoover’s comments relating to contractors, Mr. Morisy said that there is a fair amount of concern within the requester community that the contractors agencies may bring in to process FOIA requests may not be transparent and that they are trying to figure out how to deny requests because it is cheaper and puts profits over transparency. Mr. Morisy noted that the 2018-2020 term of the FOIA Advisory Committee did not look at the issue of contractors and said that it is something worth flagging for future discussion.
Mr. Talebian said that when agencies use FOIA contractors to process requests, agency FOIA professionals and officials should supervise the contractors. He noted that the decisions the contractors make should not differ from the decisions that agency FOIA staff would make and reasonable searches should be conducted. He said that contractors cannot independently make decisions or they should be supervised by the actual FOIA professionals in the office.
Mr. Moulton said that he agreed with Mr. Talebian’s comments and noted that Dr. Risenhoover’s comments may have been referring to agencies that use private contractors to do some agency program work and the contractors may be the managers of the records. Mr. Moulton said that when agency activities are contracted out it can become a bone of contention, whether or not those records are accessible through FOIA. Mr. Moulton suggested that future FOIA Advisory Committee terms may wish to consider whether there are best practices or recommendations to put forth as it relates to contractors.
Ms. Semo observed that the OPEN Government Act has a provision stating that contractor generated records are subject to the FOIA and asked whether that was sufficient or whether something else was needed. Mr. Moulton said that that’s the question and that he does not know how well this FOIA provision has been implemented.
Ms. Kratz read the written comments submitted by Alexander B. Howard. In his written comments, Mr. Howard said: “ 1. The White House Office of Management and Budget removed a cross-agency priority (CAP) goal for the Freedom of Information Act across the U.S. government. The Council should recommend that OMB restore this CAP Goal. 2. The Department of Justice took public comment on a "release to one, release to all FOIA policy" but then buried it. The Council should recommend that OIP implement it. 3. The US Capitol Police are not subject to FOIA, nor are other legislative support agencies or the courts. The Council should recommend that Congress enact some mechanism by which the public can exercise its right to know across all branches of the US government.”
In response to Mr. Howard’s first comment, Mr. Moulton said that the Committee captured the essence of Mr. Howard’s comment regarding the CAP goal with Recommendation 16 for the Chief Officers Council to look into cross-agency collaborations and a potential grant program.
Mr. Moulton added that Recommendation 18 gets to the same goal. Regarding Mr. Howard’s third point about the Capitol Police, Mr. Moulton said that the FOIA Advisory Committee’s March 5, 2020, meeting included discussion around applying FOIA in some form to the other branches of government. He noted that the Committee’s draft final report mentioned encouraging a future term to consider this topic and that the 2018-2020 term did not have time to fully explore the issue. Ms. Semo said that she agreed with Mr. Moulton.
Regarding Mr. Howard’s second comment, Ms. Semo said that the Department of Justice is still considering the "Release to One, Release to All" draft policy. Mr. Jacobs suggested that the Committee incorporate Mr. Howard’s comment regarding the CAP goal more explicitly in the comment section of Recommendation 18 in the CIGIE recommendation. Mr. Moulton said that he is not sure he would feel comfortable adding language about the CAP goal to the comment section of Recommendation 18 and explained his rationale. Mr. Jacobs said that he agreed with Mr. Moulton.
The Committee discussed the written comments submitted to the Committee and whether to address them in the form of an OGIS blog post, whether to include them as an appendix in the Committee’s final report, and how to ensure that the 2020-2022 term of the Committee is aware of the submitted written comments. The general consensus was to not include submitted comments from the public in the final report. The submitted comments are available on the 2018-2020 term’s webpage.
Ms. Semo asked the event producer for the virtual meeting to open the telephone line for public comments. Mr. Howard said that he hoped that the National Archives would live stream FOIA Advisory Committee meetings in the future and not require members of the public to register for the meetings in advance. Mr. Howard said that he hoped that he submitted three written comments which he hoped would be posted. Mr. Howard summarized his written comments and thanked the Committee. Ms. Semo thanked Mr. Howard for his comments and advised him that the comments would be posted to the Committee’s webpage. and that the next term of the Committee would discuss and consider his comments.
Committee Votes on the Draft Final Report
Ms. Semo moved to vote on the final report and recommendations package, which was seconded and passed by the Committee with Ms. Semo and Mr. Talebian abstaining.
Closing Remarks and Adjournment
Ms. Semo thanked the Committee for their work and efforts during the 2018-2020 term and noted that meeting attendees and the public should stay tuned to OGIS’ website and social media for information on the FOIA Advisory Committee’s activities and how to submit public comments. She said that the National Archives will convene the fourth term of the FOIA Advisory Committee in the fall.
Ms. Semo adjourned the meeting at 11:36 a.m.
I certify that, to the best of my knowledge, the foregoing minutes are accurate and complete on September 17, 2020.
/S/ Kirsten B. Mitchell
Kirsten B. Mitchell
Designated Federal Officer,
/S/ Alina M. Semo
Alina M. Semo