Transcript

FOIA Advisory Committee Meeting (Virtual Event)
Thursday, May 5, 2022
10:00 a.m. - 1:00 p.m. (EST)

Michelle [producer]: Ladies and gentlemen, welcome, and thank you for joining today's Freedom of Information Act Advisory Committee meeting. Before we begin, please ensure that you have opened the WebEx participant and chat panels by using the associated icons located at the bottom of your screen. Please note all audio connections are currently muted and this conference is being recorded. You are welcome to submit written comments and questions throughout the meeting, which will be addressed at the Q&A session of the meeting. To submit a written comment or question, select "all panelists" from the dropdown menu in the chat panel, then enter your question or comment in the message box provided, and send. If you require technical assistance, please send a chat to the event producer. With that, I will turn the meeting over to Debra Steidel Wall, Acting Archivist of the United States. Ma'am, please go ahead.

Debra Steidel Wall: Okay. Good morning. Thank you. Yes, I'm Debra Wall. I'm The Acting Archivist of the United States. This is day four for me, and it's my pleasure to welcome you all to the ninth meeting of the fourth term of the FOIA Advisory Committee. As many of you on the committee and in our virtual audience know, now retired archivist David Ferriero established this committee eight years ago as part of the U.S. Open Government National Action Plan. The committee's work to improve the FOIA process government-wide is part of a rich legacy that David has left us as he goes off on a well-deserved retirement. David was an unparalleled champion for openness, and as his deputy since 2011, I joined him in that steadfast support of the committee's work during its four terms.

The National Archives’ mission won't change with David's retirement. Our commitment to making access happen will continue, because the work we do here every day at the National Archives is vital to a well-functioning and vibrant democracy, whether it touches the Federal Records Act, the Presidential Records Act or the Freedom of Information Act. I'm thrilled to report that last Thursday, David signed the charter for a fifth term of the FOIA Advisory Committee, and later this spring, the Office of Government Information Services will be seeking nominations for the new term. I look forward to working with OGIS to appoint, and in some cases, possibly reappoint, members to the term that kicks off with the first meeting after Labor Day. Work that this committee does is important and makes a real difference in the cause of openness, and I thank all of the committee members past and present, I think the talented OGIS staff, and all of you here today who share that mission. With that, I'll turn the meeting over to Alina Semo.

Alina Semo: Thank you so much, Debra, we really appreciate it. Hopefully you could stay for a little while, but if you can't, we completely understand that. As the director of the Office of Government Information Services and this committee's chairperson, it is my pleasure to welcome all of you to the penultimate meeting of the fourth term of the FOIA Advisory Committee. I hope everyone who is joining us today has been staying safe, healthy, and well. I want to welcome all of our committee members who are able to join us today, and express my continuing gratitude for all of the hard work you've put in for the last two years, your commitment to studying the FOIA landscape in order to develop some fantastic recommendations, a lot of them for improving the FOIA process government-wide. I know you've put in a lot of work already. I'm looking forward to finalizing our recommendations at today's meeting.

I also want to welcome our colleagues and friends from the FOIA community and elsewhere who are watching us today, either via WebEx or with a slight delay on the NARA YouTube channel. I am advised that committee members, Roger Andoh and Alexis Graves are unable to be with us today, and also that A. Jay Wagner will be popping in and out due to some other competing commitments. But I'm going to ask Kirsten, who has taken a visual roll call, if she could confirm that we have a quorum.

Kirsten Mitchell: We do indeed have a quorum.

Alina Semo: Okay, great. I just want to say a few words about public comments. We have received two written comments in advance of today's meeting. If you do not see your written comments posted, please be patient. We're working through them. Kirsten, as our designated federal officer, has shared comments with all committee members in advance of today's meeting.

If anyone wishes to submit any additional public comments regarding the committee's work, you may do so at any time by emailing foia-advisory-committee@nara.gov, and we will consider posting them to the OGIS website. An important reminder for our public members attending today, the chat function and WebEx and the NARA YouTube channels, is not the proper form to submit extensive public comments. The chat function on both platforms should be used to ask clarifying questions or provide brief comments or questions that we will consider reading out loud at the end of today's meeting. During our public comments period, the committee specifically is interested in getting feedback on issues that we are discussing today. Meeting materials for this term, along with member's names, affiliations, and biographies are available on the committee's web page. Click on the link for the 2020 to 2022 FOIA Advisory Committee on the OGIS website. Please also visit our website for today's agenda, PowerPoint presentation, and related meeting materials.

We do have a very packed agenda today and several recommendations that subcommittees are eager to present, discuss, and vote on. I also want to remind all of our committee members, today is our last public meeting opportunity to iron out any specific language and recommendations, and obtain votes necessary for passage. Following today's meeting, the working group will be hard at work pulling together a final report draft that we will vote on at our last meeting on June 9th. As chairperson, I look forward to working with the working group to finalize that draft. A word about our agenda today, I reserve the right to adjust the times as necessary. We'll see how the cadence goes. I want to remind committee members to use the "all panelists" option from the dropdown menu in the chat function if you want to speak or ask a question and I may have missed you, but I am looking at everyone right now.

You could also feel free to chat me or Kirsten directly that you would like to speak. However, in order to comply with the spirit and intent of the Federal Advisory Committee Act, committee members should keep any communications in the chat function to only housekeeping or procedural matters. No substantive comment should be made in the chat function, as they will not be recorded in the transcript of the meeting. Also, a reminder, if you need to take a break at any time, please do not disconnect from either audio or video of the web event. Instead, we suggest you mute your microphone and turn off your camera and just send a quick chat to me and Kirsten to let us know if you'll be gone for more than a few minutes and join us again as soon as you can. If all goes according to plan, we will be breaking at 11:20 AM.

Although we may end up breaking a little earlier or later, depending on our pace and cadence today. And a final reminder, I'm guilty of this all the time. Please identify yourself by name and affiliation each time you speak. That helps us tremendously down the road with both the transcript and the minutes, both of which are required by the Federal Advisory Committee Act. We will be circulating minutes from our March 10th and April 7th meetings to committee members after Kirsten and I have reviewed and certified them. We will ask committee members at that time if they have any edits or changes to suggest, otherwise we will go ahead and post them. The transcript from the March 10th meeting has been posted on our website and we will post the transcript from our April 7th meeting in the near future. You may also access both of these prior meetings on the NARA YouTube channel, and we provide both links on our website.

One final quick set of housekeeping rules, but very important rules, I want to remind everyone about voting procedures since we will be voting several times today. Any member of the committee can move to vote on a recommendation. The motion does not need to be seconded, although it seems like we like doing that, so we'll continue doing it. The motion can pass by unanimous decision, which is when every voting member except abstentions is in favor of or opposed to a particular motion, general consensus, which is when at least two thirds of the total votes cast are in favor of or opposed to a particular motion, or a general majority, which is when a majority of the total votes cast are in favor of or are opposed to a particular motion. In the event of a tie, we will reopen discussion and the committee will continue to deliberate and vote until there is a majority. 

Votes will be by voice. All those in favor will say "aye," any opposed will say "nay." Anyone who wishes to abstain will say "abstain." I'll take a minute to pause each time to make sure Kirsten has reported the vote for each recommendation. Looking around, making sure no one has any questions or concerns. I don't see any, and so with that, I am going to turn over right on time to the first discussion of the Technology Subcommittee, Allyson Deitrick, and Jason Gart, co-chairs. I'm going to turn it over directly to Jason and Allyson. I don't know who's speaking first, but the floor is yours.

Jason Gart: Allyson? 

Allyson Deitrick: Thanks so much for that, Alina and Jason. The Technology Subcommittee has gone back and looked at the second part of our third recommendation pertaining to FOIA logs and the affirmative disclosure by agencies. We're continuing to expand on the original recommendation from the 2016-2018 FOIA Advisory Committee. The substantive changes that we've made involve adding information about fees. We added that the log should be text-searchable, changed the frequency of proactive posting from monthly to at least quarterly, deleted the different treatment for agencies that receive fewer requests, and acknowledged that the release of the information is subject to the assertion of exemptions and exclusions.

The data fields that we would like added proactively for the FOIA logs would be tracking number of the requests, date of the request, name of the requester, assuming if it's not a first-party request, organizational affiliation if identified, whether the request was processed under the Privacy Act as well, subject matter of the request, status of the request, whether it's pending, closed. For requests that have been closed, the date closed, and the result of the FOIA request, whether it was granted, granted in part, denied, withdrawn. The fee information, fee category assigned to the requester, if applicable, such as commercial, educational, news media, other. Whether a fee waiver was requested, if the fee waiver was requested, whether it was granted. Amount of fees charged, and amount of fees paid. 

Does anybody have any questions on our revised proposal? The part one we had done at the last meeting and that one had passed, and it was just part two, so if we get one more... There we go. And then…

Kirsten Mitchell: Allyson, this is Kirsten. I just wanted to let you know that the full sum of all of these recommendations, the A through J are on the link that I just shared with everyone.

Allyson Deitrick: Okay. Thank you, Kirsten.

Kirsten Mitchell: Just to see them in one place, because they're split up in several different slides here.

Allyson Deitrick: Okay. 

Alina Semo: They're also available on our website. All right. So any questions from subcommittee members first, and then committee members? I see Kel raising his hand.

Kel McClanahan: Hi. Yes. I just have a question about the fees. Is this something that you would envision being a dynamic document so that it would be updated in real time? Or would it be published after a period when all the fees have been paid, or would it just be how many fees are assessed? How would it...? Because fees are something that normally change both how much is assessed and how much is paid over the course of the request, so what would be in that field if it's not dynamically updated?

Allyson Deitrick: I envision it as a snapshot at a moment in time when those reports are done quarterly, or whenever they're run. Others might have other thoughts, but also, if the case is open and fees are charged, that could be updated. And then when the case is finally closed, it would have the final information, if that request is open more than a quarter. Others on the subcommittee, any thoughts?

Kel McClanahan: I think most requests are going to be open more than a quarter. That's just the way things are. Would you expect agencies to go back, forgetting about fees, to go back and update the FOIA logs when the request has been closed? If it still isn't when the report is generated?

Allyson Deitrick: The way that we're envisioning this work is that if a request is open when the first quarter report is done, and then it would be on there as open. Then, say the second, third, whenever that request is closed, it would be on that most recent quarterly report as well.

Kel McClanahan: So, a request would show up in multiple reports?

Allyson Deitrick: Possibly.

Kel McClanahan: And if it lasts a year, it'll show up in four different reports as open, open, open, closed, or something like that?

Allyson Deitrick: That's the way I would envision this working. Yes.

Kel McClanahan: Okay. That can cause trouble for people who are trying to use these to track how much... How many requests are coming in and what not because they would be duplicates if you do do that, and I think that's a great... I'm not against the idea. I would say that there needs to be a marker for, "This is a legacy request. This is something that's not new to this month," for the ones that remain open.

Jason Gart: Jason Gart, History Associates. So Kel, great question. I think in the full document, we actually see [the] status of the request, so it's going to say "pending." It might see pending quarter one, quarter two, quarter three, then quarter four closed. And I think the language is, "Proactively publish on an ongoing basis at least quarterly." So, if they want [it] updated daily, I mean, more power to those agencies to do that. But we understand time constraints and workload, and we say at least quarterly.

Kel McClanahan: I don't think that's a bad idea. I'm just saying that if it says, "Pending in Q1," and then the same number is there, and it says, "Pending in Q2," it would be helpful for people reading the report not to have to go back and look at Q1 to see if it's an old request versus a newly submitted request in Q2. A little flag or something for new request or existing request, or even have a column that says, "Newly submitted this quarter."

Jason Gart: Right, and I think... Allyson, or David, or Kristin, I think that once it's a new request, it would be implied that this is a new request so that the people using the logs can see that this is a new request that came in. And then, that request would be pending.

Linda Frye: This is Linda Frye from SSA. One thing to keep in mind is when we do the logs, they're going to have the date that the request was received, so using that information, you should be able to tell when it actually came in. However, I do have an additional concern because with adding the fee information, that just changed this workload from something relatively easy to something very... It's going to be very time consuming for agencies to do, because I can tell you right now, for us to provide fee information, we have to go in and look at every single case individually. There is no way for us to run an easy report out of our processing system to provide that fee information. So that just took this from being a minor addition to our workload to a pretty major addition to our workload that's going to take a significant amount of time.

Allyson Deitrick: The way this is phrased is a should contain and not a must contain, so if phrased in terms of best practices, are you okay with that? What do others think as well?

Linda Frye: I'm okay with that, I just was concerned that it was listed as a requirement.

Bobby Talebian: This is a Bobby from-

Kel McClanahan: It might also change, since FOIAonline is going away, that whatever system folks end up with might be capable of doing that.

Bobby Talebian: This is Bobby from DOJ. I just want to [say] along those lines…to me, the primary purpose of FOIA log is to inform the requester of what's being requested, what's been processed, to better inform them of the types of records they could request. I appreciate very much that the recommendation says that a FOIA log should, or a good one would contain some of these, but my focus would be on those elements that actually assist the requester in seeing what the records that have been processed are. I'm not so sure what the benefit of the fee information is in a FOIA log. We do have that information in the annual quarter report, both at a raw level and in the aggregate level, so it's out there to understand how fees are being assessed. My suggestion would be to focus on the elements that are, as my colleague here just mentioned, not too burdensome for the agency to put in a FOIA log, and that are most reflective of what's being processed topic-wise, and what happened to those requests.

Michael Morisy: This is Michael Morisy from MuckRock. Thank you, Linda, for flagging that concern. I don't want to create a ton of undue burden on agencies. I think one of the things that's exciting to me about this proposal is the potential to reduce some of the end-of-year annual FOIA reporting requirements, as more data is proactively released in the long term. I do think if we could use this recommendation to nudge, not necessarily the FOIA offices to manually put this in, which does seem like an unnecessary burden, but to put pressure on the people who make FOIA processing software, to start including that in the data that's more easy to export, that would be a win. I don't know. Maybe this goes beyond the scope of what we want to put into this recommendation at this point, but I'd be fine with leaving that out there.

But I do think it'd be great if we could push vendors to start making this easier to just export, because this is just data. To the point that Kel raised earlier, I think having this as a living document, I think the goal should be this data is available online, similar to how FOIAonline does it, quite frankly, where you can search and export data in a variety of ways. You don't have to release a FOIA log, but it's a living database that folks can access.

David Cuillier: This is Dave-

Kel McClanahan: This is Kel- Oh, go, Dave.

David Cuillier: Oh, thank you, Kel. Thanks. Yeah, I think Linda, as Allyson said, these are just recommendations. These are a goal out there. We understand different agencies would take different time to get there, certainly. And Bobby raised a good point. Well, why need all this data out there anyway? I think there are two other reasons why this data is really valuable. One is, requesters turn to these logs for guidance when they may be looking for information. Why reinvent the wheel? It's helpful if they get a sense of what information was requested in the past, how it turned out, what fees were charged. All that sort of thing is very important to requesters, and we found in our research that requesters actually look at these logs for that reason. 

The second reason is, this data is really important for us to get a good sense of how the system's working. A. Jay Wagner, myself, many others, we analyze this data, the log data, to see trends in what's happening. We need it down to that granular level, the individual request. We look at fees charged, we look at time spent to process. I think it's a really good way for all of us, and not just scholars or researchers, but agencies, the government, and everybody else to be able to see what's working well and what could be done better. Really, that's the impetus of having some of that data added in there, is ideal in helping the system work better. I hope that helps answer that question. It's a really good question. Thank you.

Bobby Talebian: Thank you, David. I appreciate that, and I appreciate both perspectives, of course. In my office, actually, we're all about data. Of course, handling the annual FOIA report, and my only suggestion was going towards we should... I think you capture it in the recommendation as far as that these are things that would be good to have in a FOIA log, is that perfect... And this is what I said last time, that perfect shouldn't be the enemy of the good, and I'd hate to have agencies feel like they can't do any of this. This is a long list and they can't do it, or it's the burdensome, or...

Obviously, I think for a FOIA log, the primary purpose of FOIA, what I've always seen is to make sure that at the very least you can see what's been requested and how that request has been handled, records been processed, the topics and whatnot.

Then, all of this other data is helpful as well, as we analyze it ourselves in assessing agency compliance. We have it both in the annual FOIA report, but also on a request-by-request level, the raw data that agencies are supposed to be posting. If you go look at the DOJ's report, you can see, by request, every single request in the annual FOIA report, what fees were assessed, and how much, if there was a fee waiver. I think it's all good. My takeaway is just that again, that perfect shouldn't be enemy of the good, and that, to me, the top A through H in a FOIA log is something that should be prioritized over the I.

Alina Semo: Thanks Bobby.

Kel McClanahan: This is Kel-

Alina Semo: Kel, did you want to add something? Kel, go ahead.

Kel McClanahan: I'm very... Moved isn't the right word, but I very much support the point that Michael was trying to make, that is almost a counterpoint, but it is supported by what Bobby just said. We all know agencies... requesters. All know agencies where we find that the FOIA log is created by hand or something like that. It's not exported from a system. It's not automatically generated, and this is not the norm, but it's out there. There are several agencies that do this, and we also know that some FOIA logs are better than other FOIA logs. I think that Michael raises a very good point when he says, "If an agency thinks that it's too hard to do this by hand, they should stop doing it by hand." They should start making their FOIA system able to export it.

When Bobby said, "Well, I don't want people coming to me and saying they can't do it because it's too hard," I think that an agency choosing to do a FOIA log by hand or in an inefficient manner, and then going to OIP and complaining about how hard it is to do it by hand or an inefficient manner is just a complete breakdown of the system, when the option is out there to stop doing it by hand. To the point, I don't want to... I agree, we don't want to add a tremendous burden to agencies, but we also don't want to back away from things because some agencies might shoot themselves in the foot and add the burden to themselves rather than do it a smarter way.

Alina Semo: All right. Thanks Kel. Anyone else have any questions or comments that they'd like to add?

Patricia Weth: Hi. Yes, this is Patricia Weth from EPA. I just want to say, I've worked for several agencies where we have proactively posted our FOIA logs. They don't pull them by hand. There's nobody in the back office pulling these things out request by request, but we use the system that we have and we pull the data that we can. Right now, I, like Social Security, my agency, we use FOIAonline. So, the information that we can pull are items A through H and, we are able to post that. If there's capabilities in the future, I don't know what the vendors or what companies the FOIAonline partners are going to go to when FOIAonline sunsets. But I will say this, that the agencies are doing the best that they can with the software that they have at this time.

Jason Gart: Jason Gart, History Associates. One of the interesting things about the Technology Committee is that we've really looked at the challenges that the agencies face, and then what we should be striving to do. There's different agencies that are at different places. We understand that, and we've heard a lot about that over the last two years. What this recommendation and some of our others have tried to say is, "Listen, these are some best practices. This is where we'd like it to go. This is where, as you think about, what type of standardization you should see, in this example, across FOIA logs, what would be best for both the agencies, but then also for the requester community?" 

Absolutely, we've heard a lot about agencies that have budgetary limits and staffing limits, and that's not... This is not, if you don't do it, you're put in a corner. This is about what the new system may or may not have, maybe helping those technology companies that maybe approach for a new system, what they should start thinking about, and really, just to try to get us to the point of, this is where we think a best practice or future system might have.

What I would also say is that this recommendation was first broached in 2016-2018, so it's been sitting out there without much... With some action, with not a lot of action. I think the point is, again, future thinking, and let's see where we pass this resolution or pass this recommendation, and put it out there, that this is what we'd like to see in the future system. And as agencies can begin to do that, that just helps everyone.

Alina Semo: Do you think with that, are we ready to make a motion and take a vote? Jason and Allyson?

David Cuillier: This is Dave Cuillier. Yeah, well said, Jason, I move recommendation of this recommendation.

Alina Semo: Okay. Do we have a second?

Kirsten Mitchell: Point of order, Alina. 

Alina Semo: Yes. 

Kirsten Mitchell: Yes. At the last meeting, the full committee voted on both part one and part two in spirit.

Alina Semo: Right.

Kirsten Mitchell: And the part one is the FOIA Advisory Committee... I mean, the 508 Compliance in FOIA, so I just want to clarify, David, that this would be the entire draft recommendation number three and not just the FOIA logs. Correct?

David Cuillier: Sounds good to me. I agree.

Kirsten Mitchell: Okay. I'm sorry to interrupt. So David has moved and then Alina, I think is seeking a second.

Alina Semo: Right. Thank you. And thanks for the clarification Kirsten.

Kel McClanahan: I'll second. This is Kel.

Kirsten Mitchell: Thanks, Kel. All right, so let's take a vote. All those in favor, please say aye.

Alina Semo: Aye.

David Cuillier: Aye.

Jason Gart: Aye.

Kel McClanahan: Aye.

Alina Semo: Pausing for a second. Make sure Kirsten got all of that. Any opposed? Please say nay. There aren't any nays Kirsten. Anyone wish to abstain? Bobby is abstaining. Kirsten?

Kirsten Mitchell: Okay, so the motion-

Bobby Talebian: I couldn't get to my unmute button.

Alina Semo: It's okay. We got you.

Bobby Talebian: Thanks.

Kirsten Mitchell: Okay. This is Kirsten. It looks like the motion passes unanimously with Bobby abstaining.

Alina Semo: Okay.

Kirsten Mitchell: And there are no... I did not hear any no votes, but if there were any, please speak up now.

Alina Semo: I didn't hear any either. So thank you.

Kirsten Mitchell: Super. Thanks.

Alina Semo: Okay. Great job technology subcommittee. Pats on the back. Good job, Jason and Allyson. Thank you again. Okay. We're going to move right along to the process subcommittee. I believe that there's one recommendation that got carried over from our last meeting that was passed in principal but needed to have the language ironed out. I'm going to turn it over to Michael and Michael will hopefully lead us through that. Next slide please, Michelle.

Michael Morisy: Hi, this is Michael. I am actually going to hand this off to Tuan.

Alina Semo: Okay.

Michael Morisy: To take it home.

Alina Semo: All right, thanks again, Michelle. Next slide. And I guess next slide.

Kirsten Mitchell: Next slide. Yes.

Alina Semo: All right Tuan, you're on.

Michelle [producer]: Remember to unmute yourself on the WebEx platform as well.

Michael Morisy: Looks like he might have stepped the way, so I don't know if it makes sense to adjust the order.

Alina Semo: We can certainly do that. And I know it's a little bit unfortunate Alexis can't be here or she might have been able to speak to this as well. And someone chat Tuan just to check in to see where he might be? I would really appreciate that. But I'm happy to adjust. I know we have put on the agenda that there might be a compliment recommendation from the legislation subcommittee. Patricia and Kel, I'm going to look to you as the subcommittee co-chairs if there's anything you want to present on that, or if that's been tabled.

Kel McClanahan: You're talking about from yesterday?

Alina Semo: Yes.

Kel McClanahan: Yeah. That has currently been tabled. So we didn't vote on that, but I sent it to process. So if they want to talk about it, we can talk about it.

Alina Semo: Okay. Michael, is there anything you want to... It looks like Tuan dropped off our event producer's going to continue to look for him. Thank you, Michelle. All right. Why don't we put a pin in this literally and figuratively, let's circle back to Tuan as soon as he can join us again, we will come back to the process subcommittee and let's keep moving because we have a lot to talk about in the legislation subcommittee. So I understand from Patricia that I should be turning things over to Dave Cuillier. So I will now do so. And Michelle, if you could go to the next slide, please. Okay. And one more slide. All right. So Dave, the floor is yours to present.

David Cuillier: Thank you. And I appreciate it. I'm Dave Cuillier, I'm from the University of Arizona and president of the National Freedom of Information Coalition. Thanks to the working group again, Patricia Weth, A. Jay Wagner, Tom Susman, the legislation subcommittee, full committee OGIS staff, and the more than 40 experts that we've consulted on these topics over the past six months. It's really made, I think, for a better product in the end.

Since our last meeting last month, I've incorporated more feedback and suggestions into the white paper, the report, which is on the website, updated as of yesterday, including feedback from OGIS. I added this appendix D. So if folks want to skim that feel free to do so. It's truly a communal report here, a diversity of ideas and suggestions taken into consideration. And as far as I know, perhaps the most comprehensive and certainly most peer reviewed document on this subject out there that I've seen. So thank you all.

That said, we've just scratched the surface on this last meeting, we approved recommendation one, that we recommend OGIS be given authority to issue binding decisions. But today starting out, if I may, I'd like to start out with recommendation six. That the archivist embarks on a feasibility study to flesh out the details on all this. I think this is perhaps the most important recommendation. If we can just do one thing today, I think that would be a success. The more we learned in this process, the more we learned, we need to learn more. And people raised legitimate questions about the details, the implementation, and we acknowledge that more work is needed to be done to flesh that out.

So that is why our recommendations are so short. They're conceptual. We acknowledge that details need to be worked out and recommendation six is that important step to do so. So with that, I'd like to ask for a motion to approve recommendation six initially here, starting out and welcoming discussion.

Alina Semo: Well, before we get to a motion, I do want to open up the floor to comments and questions. But I'm going to take my chairperson hat off and give myself the floor since I have the ability to do that and put my director of OGIS hat on for just a minute. First of all, I want to thank David and the working group. You have done an amazing job of pulling all this together. The white paper is very, very well researched. A fantastic amount of work went into this. And I just want to show my appreciation. I'm extremely grateful.

Jason Gart: I think Alina is muted.

Kirsten Mitchell: Alina you were on mute.

Alina Semo: Yes.

Kirsten Mitchell: Pardon me for interrupting.

Alina Semo: I unmuted myself and muted myself again by accident. What did you guys hear so far? What did I say?

David Cuillier: You were going on praising me a lot.

Alina Semo: Oh, yeah.

David Cuillier: And the working group.

Alina Semo: Yeah. And I genuinely mean that. Yeah.

David Cuillier: Everything is perfect. Thank you.

Alina Semo: Yes, everything is perfect. And I was acknowledging that appendix D was a late comer to all of this. And some of the committee members may not have had a chance to review it yet. But OGIS did want to take the opportunity to express a few thoughts and raise concerns as I think the paper does acknowledge. And as David has just acknowledged that there are a lot of hurdles that need to be crossed.

But we certainly are supportive of recommendation number six. So I want to start off with that because we think that studying this issue further really warrants a lot of interest and focus to try to get to, as Dave said, we just scratched the surface. There's a lot more to uncover. And we think possibly an NGO or another nonprofit organization of some sort could actually undertake this kind of study. So we definitely want to take the position that we definitely endorse that recommendation.

With regard to the rest of them recommendations one through three, I think gave OGIS some pause. OGIS's approach from the very beginning has been and continues to be that we are the FOIA ombudsman and that's consistent with what OGIS believes Congress envisioned for us. And we are concerned that the first three recommendations that is Congress giving OGIS authority to make binding decisions, giving OGIS authority to review records in camera and Congress giving the federal courts extra weight to be given to OGIS decisions is going to erode and significantly shift OGIS away from the role that it has staked out in the last 12 years of trying [inaudible 00:41:59] from individual stakeholders and from agency stakeholders that it has worked with, and these new functions and duties would interfere with our role as an ombudsman. And it would turn us into an enforcer and adjudicator, which we're concerned about.

We do help over 4,000 requesters annually. These include individuals, nonprofits, journalists. Many of [these] folks are coming to us at different points in the FOIA process. Some of them are coming at the very beginning. They don't even know where to file a FOIA request. Some of them are coming at the very end. They're unhappy with the appeal decision that an agency has issued. And all of these concerns, we try to help and we try to steer these requesters in the right direction. And we are concerned that recommendations one through three would actually take away from that safe space that we feel that we have created for these vital conversations to take place. And it would require us to fundamentally restructure ourselves. We would have to create walls between different teams of people to work on different responsibilities. Some of which would be actually in direct conflict. Negotiator versus enforcers is how we put it in our appendix D.

That's not to say that it can't be done. And we're certainly appreciative of the work the white paper is recognizing, and that there's a need for additional study. Again, would really endorse recommendation number six. Recommendation number four, creating a direct line item budget, we think is a double-edged sword. There are pluses and minuses. And so you can read all of that in our paper.

Increasing our budget, certainly with regard to recommendations one through three, if all those new functions were to be taken on, it just would need significantly more budget, greater budget. But I'm always the first to say that we also have been operating with a significant detriment to our staff. We've had staff losses that we haven't always been able to replenish, as frankly has been the case with our entire mother agency, the National Archives and Records Administration. So I'm always advocating for more staff and more budget to increase our staff, both on our mediation team and on our compliance team. But to be sure, increasing the staff doesn't always fix the entire FOIA landscape. So we also need to keep that in mind.

And then finally, with respect to recommendation number seven, again, probably another double-edged sword. There are definitely advantages to reporting directly to the archivist of the United States. Although our experience in the past 12 years as we recognize in our appendix D has been very, very positive. We have had great relationships with the now retired archivist, David Ferriero, and our current acting archivist, Debra Steidel Wall who have both been extremely supportive of our office of everything that we've tried to do of this committee in particular.

So we do not know what the future's going to bring though. So there's something to be said for that, right? We're going to have a new archivist and we don't know how things will end up turning out. But all of that said, we have concerns about several of the recommendations. We support recommendation number six. And I look forward to hearing from all the other committee members. So I yield the floor back to the first person who wants to speak. James Stocker.

Kel McClanahan: This is Kel. A point of order are we going to-

Alina Semo: Sorry, Kel. Go ahead.

Kel McClanahan: Are we going to go through these or are we just sort of like, I talk about number three and then Dave talk about number six and then are we going to go through the... Like everybody talk about one and then everybody talk about two and everybody talk about three.

David Cuillier: Why don't we start with number six? Let's get that out of the way. And let's go one by one, rather than everybody talking about all of them, but-

Alina Semo: Okay.

David Cuillier: But, thank you Alina for that.

Alina Semo: Sure.

David Cuillier: So number six, I've heard support from requesters agencies, all sorts of folks think it's a good idea. I think this is an easy one to get out of the way since... So anybody want to make a motion to further flesh out the details on these concepts?

Alina Semo: Before we get to the motion, I saw James's hand up earlier. James, did you want to comment on number six?

James Stocker: This is James Stocker. I wanted to comment more…make a more general comment if I could just really briefly. Thank you for all the work that you and the subcommittee, you've done on this. Alina, thank you for articulating the concerns that OGIS has about some of these recommendations as well.

It seems like an obvious alternative to this would be to create a new body that would perform some of these functions in addition to OGIS. And given that FOIA functions require something like 5,000 staffers across government and cost hundreds of millions of dollars it doesn't necessarily seem too burdensome to have two different agencies doing these different things. In other words, OGIS as ombudsman and then maybe another body serving more as an arbitrator, like an arbitration panel or something like that. Did you all give any thought to that and how would that change? What would change these recommendations?

David Cuillier: Thank you, James. Indeed. Yeah, we did look into that. We looked at Pennsylvania, where they do both mediation and binding decisions and they told us it worked. We looked at other nations where this works. So, yeah. But that was certainly a consideration. And frankly, it's still an option on the table. What if we conduct this feasibility study and we find that really the best system is to create a whole new agency to handle this or even within the judiciary. And it works well in Ohio. So indeed we did look at all these different models in the states and around the world. And that's why I think it's important to approve recommendation six, that we further flesh out the details.

Just because if we approve recommendations one through seven, we know Congress, isn't going to turn around and approve these tomorrow. Right? I mean, this is going to take years. Years of discussion, years of figuring things out with DOJ, with developing bipartisan support. So this is just the start of the conversation and I hope people realize that. Because otherwise we could be here all day, thinking about what about this? And what about that? And well that... And so I hope the concept here is, we've looked into it. We've done a ton of research and I encourage people to look at the annotated bibliography, the list of experts we consulted, all sorts. But it's just the start. But you raise an excellent point, James, one that others did, and one that we will continue to look at. So I wonder if we can see if there's support for continuing to study this as recommended in recommendation six.

Alina Semo: Dave are you making a motion?

David Cuillier: I will move that we approve recommendation six then.

Alina Semo: Okay. Do I have a second?

James Stocker: Seconded.

Alina Semo: Thanks, James. Okay. Everyone let's take a vote. All those in favor, please say aye.

Kel McClanahan: Aye.

James Stocker: Aye.

Michael Morisy: Aye.

Dione Stearns: Aye.

Patricia Weth: Aye.

Alina Semo: Pausing for a second. Making sure Kirsten got all of that. All those opposed, please say nay. Don't hear any nays. Anyone wishes to abstain?

Bobby Talebian: This is Bobby, I abstain.

Alina Semo: Kirsten. How are we doing?

Kirsten Mitchell: Okay. So it looks like we have the unanimous vote among all those voting and Bobby is abstaining.

Alina Semo: Okay. So we have passed recommendation number six. Good job, David.

David Cuillier: Well, it's not me, but thank you all. And I think it'll be important. And I would recommend the committee in the next term continue this with whatever form the archivist wants to build on this. It'll be really important. Awesome.

So with that, maybe we hit another low hanging fruit, since we're on a roll. I'd recommend we go to Congress increases OGIS's budget. All right. See, succinct. We don't say exactly how much in the report. We lay out some ideas, but it's just conceptual, we think OGIS's budget should be increased. As you see in the report, the Congressional Budget Office, it originally estimated that OGIS would need, I think it was around $4 million or more a year just to do what it initially was set out to do. And it has not gotten that. It's just not funded where it needs to be. And of course, if Congress is to do anything more, add additional responsibilities, it would need much more money.

It's the least staffed FOIA agency in the world. And you can take a look at the appendix that lists them all and shows the United States federal government, less listed last in the entire world. So anyway, I would recommend we discuss and or approve recommendation five. That Congress increases OGIS's budget. And not good detail like, well, is that the archivist? Is it Congress? They need more money. Thoughts.

Kel McClanahan: This is Kel. I support it 100%. I'm trying to figure out if we can vote on five without figuring out four. Because Congress increasing a budget for a component of an agency is sort of wonky sometimes. And so it may be that... I'm not saying that Debra Wall is going to do this. So I've known her for several years now, she should do this. But down the line it could be that the next archivist is not as interested in four years, not as interested in OGIS and Congress says we want $10 million to give to OGIS and they just say, okay. And then don't do it. They redirect it. And so I think that it might be more sensible to talk about sort of fusing four and five to say that... OGIS should get a higher budget, should basically be five. And then four will deal with whether or not Congress can do it versus whether or not the archivist asks for a bunch of money and then uses [as] a discretionary fund to fund OGIS or something like that.

David Cuillier: Okay. So Kel this is Dave Cuillier. So perhaps we should just tackle number four first and then go to five? Okay. So, okay. So let's hit four, that Congress creates a direct line item budget for OGIS. As we found, it occurs with some other executive agencies, so this isn't unprecedented. And we noted OGIS's double-edged sword thinking on this. Like, well, it creates new challenges. You have to go to the Hill and advocate for yourself. But we think overall, from what we've learned in our research, it would help OGIS. So that's our feeling. So based on what we learned, that's what we recommend. Thoughts on that?

Kel McClanahan: I have a question for Alina about this. Is OGIS funded out of the discretionary fund now? Or how is it funded within NARA.

Alina Semo: Not the discretionary. This is Alina Semo. Not the discretionary fund. I wish there was discretionary fund. Then I could dip into it whenever I want to. [We are funded] out of the NARA budget.

David Cuillier: And clearly, I mean, I personally approve, I love NARA. I mean, this isn't a slam against NARA. But if we look at OGIS's budget ever since its inception, it has not been where it should be, where CBO said it should be. So NARA has a lot of responsibilities, a lot of different things it must do. I'm sure it wishes it had more money. So that's why really the onus is on Congress here. If they believe in transparency, and apparently they do, they approved FOIA. And if they really believe in it, they gotta to put their money behind it. And directly. This is a calling higher than all. It transcends the executive branch, the legislative branch. This is something they need to fund directly, if they believe in it. So they got to put their money where their mouth is. That's the feeling here. Other thoughts? Anybody disagree that we shouldn't do this? Open to counter thoughts or anybody want to make a motion to approve recommendation four?

Jason Gart: Jason Gart, History Associates. I'll make a motion to approve.

Alina Semo: Thanks, Jason, do we have a second?

Kel McClanahan: I'll second. This is Kel.

Alina Semo: Thanks, Kel. All right. Let's take a vote. So we're voting now, just so we're clear as a point of order, we're voting on number four and number five together.

David Cuillier: No, just four, I think, at this point.

Alina Semo: Number four.

David Cuillier: Five will probably be a quick, easy one after this, hopefully.

Alina Semo: Okay. So let's take a vote on number four. Congress creates a direct line item budget for OGIS. All those in favor, please say aye.

Dione Sterns: Aye.

Jason Gart: Aye.

Kel McClanahan: Aye.

Patricia Weth: Aye.

Alina Semo: Okay. I heard a straggling aye. All those opposed, please say nay. I don't hear any nays. Any abstentions?

Bobby Talebian: This is Bobby. I'm abstaining.

Allan Blutstein: This is Allan Blutstein. I abstain.

Alina Semo: Okay. And this is Alina Semo, I also abstain. All right. So Kirsten, how are we doing.

Kirsten Mitchell: Okay. So I heard no, no votes. And I heard three abstentions. I just want to double check because I had trouble hearing. Allan Blutstein, Alina, and Bobby abstained. Otherwise the vote passes. Everyone else voted yes.

Alina Semo: Okay.

Kirsten Mitchell: So motion carries.

Alina Semo: All right. Thank you so much.

Kirsten Mitchell: Sure.

Alina Semo: David, next. You're doing great.

David Cuillier: Thank you everyone. How about number five? Yeah. Now that Congress is responsible for your budget, we think they should increase it. Any thoughts? Anyone disagree with that? Anyone want to say, nah, it's a waste of money. Cut. Keep it the same.

Patricia Weth: So Patricia Weth from EPA. I move that we vote on this.

Alina Semo: Okay. Thanks Patricia. Do we have a second?

Tuan Samahon: Tuan Samahon, I second.

Alina Semo: Thanks, Tuan. Okay. Let's take a vote on number five. Congress increases OGIS's budget. All those in favor, please say aye.

Patricia Weth: Aye.

David Cuillier: Aye.

Kel McClanahan: Aye.

Allyson Deitrick: Aye.

Alina Semo: All right. All those opposed, please say nay. Didn't hear any nays. All those abstentions, please speak up now.

Bobby Talebian: It's Bobby and I abstain.

Allan Blutstein: Abstain.

Alina Semo: Allan, was that... Allan Blutstein was that you abstaining? Okay.

Allan Blutstein: Yeah.

Alina Semo: And Alina Semo is also abstaining.

Kirsten Mitchell: Okay. Terrific. This is Kirsten. Recommendation number five to increase OGIS's budget passes with three abstentions. And just to confirm those abstentions are Allan Blutstein, Alina Semo and Bobby Talebian.

Alina Semo: Okay, great. Dave, you're on a roll.

David Cuillier: Oh, we're on a roll, but here's where it starts getting tricky. So the next, I think let's jump to seven, shall we? I think the archivist of the United States returns OGIS as a direct report. If I were the archivist, I would oppose this. I think most administrators would seem like that's a hassle and a headache to have lots of direct reports, but we believe that it should happen in this case.

We’ve read through the report, the justification for when NARA broke... OGIS used to report directly to the archivist. And then they went through a restructuring some years ago and is referenced in the report. I have a link. You can read the rational thinking behind why they put OGIS two step, two layers under the archivist. Why they put it in with another agency within NARA. We saw their justification, but we don't agree with it.

We think OGIS does have a special role that transcends NARA that transcends the executive branch. Frankly, in other parts of the world, this agency would be independent of all branches or in Connecticut, even. So we think at minimum, if OGIS can't be independent of the executive branch, that it should be…have a little more clout, a little more authority within NARA. Where the head of OGIS should have a direct line to the archivist. That's going to strengthen OGIS we believe. And that's kind of our feeling. And now of course, it's up to the archivist and the archivist can say, nah, thank you, but we're not going to do that. But I recommend we still recommend it. Thoughts?

Patricia Weth: This is Patricia Weth from EPA. I move that we vote on this.

Alina Semo: Wow, Patricia, you're really picking up the pace here. I just want to pause for a second and make sure there are no comments or questions on number seven before we take a vote.

David Cuillier: Alina, I don't know. I don't want to be a big Robert's Rules person, but I'm certainly open to discussion after a motion is made. I think that's actually Robert's Rules. So it is not like we're calling the question in my mind. So perfectly fine. If someone moves and then we have further discussion in my mind. If it's okay with you madam chair.

Alina Semo: Sure. Usually that's not how we do it, but I will allow it today.

David Cuillier: Okay.

Alina Semo: Very magnanimous. So Patricia has moved to approve number seven, recommendation number seven. Is there discussion on this motion or questions? I don't see any from the committee members. I'm just scanning faces. Do we have a second on the motion?

Dione Sterns: This is Dione, I second the motion.

Alina Semo: All right. Thanks Dione. Let's take a vote. All those in favor of number seven, the archivist returns OGIS as a direct report, please say, aye.

Multiple: Aye.

Alina Semo: There are a lot of simultaneous ayes. Hopefully Kirsten caught all of that. All those opposed, please say nay. I didn't hear any nays. All those who would like to abstain please say so at this point.

Bobby Talebian: This is Bobby and I abstain.

Kristin Ellis: This is Kristin and I abstain.

Allyson Deitrick: This is Allyson and I abstain.

Alina Semo: Alina Semo, I abstain [crosstalk 01:04:44]. Sorry, Allan I didn't mean to tread on you. That was Allan Blutstein abstaining. Alina Semo abstaining.

Kirsten Mitchell: Okay, so give me a minute. This is Kirsten. I just want to make sure that I got everyone who is abstaining. I'm going to read off those who've abstained. Allan Blutstein, Allyson Deitrick, Kristin Ellis, Alina Semo, and Bobby Talebian. Is there anyone else who abstains? Okay. Motion carries by a 12 to zero vote with six members abstaining, I'm sorry, five members abstaining.

Alina Semo: Okay. Thanks very much for that.

Kirsten Mitchell: You're welcome.

Alina Semo: David, back to you.

David Cuillier: Thank you, Alina. David Cuillier again, and thank you all for approving unanimously, the probably first recommendation of any committee term to be rejected outright. So thank you. We'll see what the archivist does with it or the interim archivist or whomever. Last two, and these probably will have some discussion. I don't think these will be unanimous votes or perhaps we should return to the second recommendation which we started discussing last meeting. Congress gives OGIS the authority to review records in camera and feel free to pop the slide for number two and three there.

And so open to continue the discussion. Last meeting there were some good questions, good thoughts on what that can mean. Thoughts like, well, what about the national security community, the intelligence community, classified records. How's that going to be handled? As noted in the report, this is not unheard of in other jurisdictions, Canada, they had classified security standing. They could look at records, classified records in camera, even. Perhaps it's a special team within OGIS that does this, that has intimate knowledge of sensitive records and can review these, maybe a certain facility. I don't know. There were suggestions of excluding certain records or certain exemptions that could be reviewed. So that was kind of the discussion. And I'd like to entertain continued discussion if we can come to some agreement or disagreement over recommendation two.

Alina Semo: Yeah, I just want to note, thank you, David, I just want to know if that should be a number two on the slide? There are two number ones there, but that should be two. Congress gives OGIS the authority to review records in camera.

David Cuillier: So, okay. Yeah. So we're looking at the second one. Congress gives OGIS the authority to review records in camera, right?

Alina Semo: Right. Just noting the typo. [crosstalk 01:08:19]. I see Kel wants to say something. Yes?

Kel McClanahan: Yes. But if you're still talking...

Alina Semo: Nope. [inaudible 01:08:30].

Kel McClanahan: So I just want to make a few points, especially on the intelligence side of it since that's where I live. When Congress created OGIS, they didn't say they started mediations except for the intelligence community. And they fully intended for OGIS to be able to do mediations everywhere. And the hallmark of a good mediation is someone, and I'll use the magistrate judge system as a good example, the courts to mediation. You want someone who can talk to each side alone and say, "That's not a really good argument. If you press on this, you can do it because this isn't binding. But the thing you're saying is weak, or the thing you're saying is strong."

If the mediator talks to an agency and the agency says this information is classified, is classified/protected by national security. It [inaudible] methods, but we're not going to tell you why. We're not [going] to let you see the information that you reach your own conclusions. Then the mediator cannot advise the agency, "Okay. I don't think I agree with that." And it's not just classification, without this recommendation, OGIS, if the USDA wants to tell them that they can't review something that they're withholding under B5 or B4 or B6, then OGIS' mediator's hands are basically tied to having to trust what the agency is telling them. At which point, they're not really mediated, they're just facilitating a discussion. And so lots of people have clearances around the country and the government. OGIS is not a big office. It does not have 50 mediators who would need to get cleared. I think that it is entirely reasonable for one or two people, or maybe just a head, just Alina, and Alina gets a security clearance, nobody else does. And she gets to come in at this classified material that you maybe make a carve out for that, but that you don't say, “we're going to say that agencies can just refuse to let OGIS see what the argument is about.” So that ties OGIS' hands behind their back, and basically guts the mediation whenever you have an intransigent agency, whether it's national security or not.

David Cuillier: Thank you, Kel. I think Kristin Ellis would like to comment.

Kristin Ellis: I would, thanks Dave. This is Kristin Ellis from the FBI. So I actually had a couple of things. As I read this recommendation, I read it as an offshoot of the first one, which is to give OGIS binding authority to adjudicate cases. And then as part of that, the authority to conduct in camera reviews, because I assume right now, if an agency is willing in mediation to show OGIS the processed records in order to resolve the mediation that that can already happen. I put that back to Alina. I don't know if it does, but I don't think that there's anything that stops an agency right now from volunteering to do that. So I was not reading this as a standalone provision, but more as an offshoot of the first provision. So I guess I would like clarification on that. 

But speaking of mediation, right now, mediation is voluntary. And so if a national security component concludes that the danger to national security is such that they should not mediate this case, then they don't have to. And so that is fundamentally different than OGIS being able to say, "I want to review these records in camera," especially considering that within the realm of the intelligence community, FOIA programs, there's often incredibly, highly classified information at issue. And the more people you give access to incredibly sensitive information, the more risk you create of unauthorized disclosures, whether inadvertent or purposeful of that information, which could harm national security. And to be clear, I am not suggesting that anyone in OGIS would purposefully disclose classified information, but the more people you give access, the more you move these records around, the greater risk you create. And so from a national security standpoint, I have a lot of concern about this recommendation.

There are also other things that would need to be taken into consideration. For example, federal grand jury information. There's a statute that governs it, that it's not entirely clear to me that OGIS would fall within the four corners of that statute in terms of having access to federal grand jury information. So there's a lot of different kinds of information, not necessarily national security information that have restrictions on it that don't as it stands right now, necessarily contemplate giving access to a body like OGIS to have that information. So, like I said, I'm speaking mostly from the national security standpoint, but there are other pieces of it that could be problematic.

David Cuillier: Thank you, Kristin. I see Tuan's hand up, but beforehand, Alina, would you like to chime in on any of that?

Alina Semo: No. I think I certainly said our piece earlier in terms of our position. I hear what Kristin is saying, and I appreciate those comments as well, but no, nothing in particular.

David Cuillier: Okay. I see. Tuan's hand went down. So anybody else like to chime in?

Tuan Samahon: I didn't mean...

Kel McClanahan: I wanted to respond to that, but if someone else wants to talk let them go first.

Alina Semo: Yeah, I think Tuan is back on.

Tuan Samahon: Right. I didn't mean to put my hand back on. You just acknowledged me. So I was ready to speak. This is Tuan Samahon. I think it's salubrious to grant OGIS in camera review authority because agencies can sometimes take litigating positions with requesters, even prior to actual litigation having been filed. And these positions may be real stretches. And I think that often it's the case when one actually gets into litigation and an assistant US attorney or other DOJ counsel has eyes on the actual record or is getting to that point. At that point they almost act like a concierge for the requester. That's the term I think David McGraw of the New York Times once used to describe this role and they basically talk the agency off their position, that their position is frankly not defensible, that the characterization of the record will not fly in a federal court.

And that the AUSA is not prepared to stick their head out for the agency and the agency's position. And of course that all requires that one get to court and go to the trouble of instigating litigation. And so I think that OGIS in part is, its submission, its existence is to assist with diversion of FOIA litigation. And to the extent that there can be eyes on these records, but still within the executive branch, but not within the particular department. That might be very helpful to promote disclosure of records that are frankly not squarely within any of the exemptions. And so I think that especially given the courts disfavor strongly in camera reviews, saying it is not a judicial role makes sense that it would be an executive branch role, but maybe outside of the small department or division of the executive branch having OGIS do that job would be a good idea.

David Cuillier: Thank you, Tuan.

Kel McClanahan: Thank you, Tuan.

David Cuillier: Kel, before you go. So are you for or against this? I just want to make clear.

Tuan Samahon: I favor Congress giving OGIS authority to review-

David Cuillier: Okay. Thank you. I just want to triple check. Thank you. Go ahead, Kel.

Kel McClanahan: And Tuan did say one of my points much more eloquently than I could, so thank you for that. I will say as a matter of just experience, not all AUSAs are that way. And so, in fact, I've even had one tell me that they had not read the unredacted records three years into their litigation about the reductions, but that to Kristin's points and Kristin raised some valid points. I will not say that they're completely frivolous, but I will say that they're already existing mechanisms for this, for instance, congressional oversight. Sometimes you have an agency and you have a congressional office that wants to review agency records about something. They go out to the agency and look at them in the agency and read them and then come back. That obviates for the highest security classification, the concern about, well, what if somebody were to hack into OGIS and get these records?

Well, they can't because they don't physically have the records. I'm not saying that they should do that in all instances, but if it is sensitive enough that that is a concern, then there are ways to handle that. The entire torture report team worked in a CIA facility on their entire report, the CIA computers, there was a scandal about that, but they did it. So there are procedures for this. Similarly, we're talking about the people, and I know that Kristin wasn't saying that someone at OGIS would be a security risk, but to that point, I'm not saying that the CIA, or if I should have to give classified information to the director of OGIS, I'm saying that they should have to give it to her if she has a security clearance. They still have to process her for a security clearance and approve her before they can do that.

If somehow you had an OGIS director who could not get a clearance, that might be a problem, but I don't really foresee that happening at that level of seniority. And so that's a concern that's not really going to be reflected in real life experience. I think there are concerns here. I think that there are checks and balances and caveats that would have to be written into this law, but I don't think that it's insurmountable. And I don't think that the answer is, well, they just don't do the IC or they just don't do classified records or something like that. The goal here is to, as Tuan said, have OGIS be able to be the best mediators they can be and keep things out of court. And in order to do that, and then the recommendation itself, starts with if OGIS is to mediate or adjudicate disputes between the requesters and agencies and we believe it must have all the facts at hand. That's not just if they're doing number one, that's if they're being a good mediator. So that's my 10 cents on that.

David Cuillier: Thank you, Kel. And we'll go to Kristin. She has a question, and then I know we're five minutes past break time. So we might, Alina it’s up to you, be able to finish this one and then go to break before we hit the last one.

Alina Semo: Yeah, I think that would be great.

David Cuillier: Totally your call. Kristin, you had a question?

Kristin Ellis: Yeah. So I just was still seeking clarification on is two just a standalone mediation even if one doesn't happen? Because I go back to the fact that agencies can already give stuff to NARA. They can already look at things in camera.

David Cuillier: That’s….[inaudible 01:22:15].

Kristin Ellis: They can already look at things. If the agency's willing, A, is willing to mediate, because not all agencies are willing to mediate over things like appropriateness of exemptions. And if they do that, they already have the ability to show things to NARA.

David Cuillier: That's a great question, Kristin. It was written, I think initially with the idea that all this is kind of bundled together and that that would certainly make sense. They would need the in camera review if they're making binding decisions. The other working group members, you chime in, I think the idea's you could work standalone as well. So that this is necessary to make good decisions in mediation, they need to see the records, which is what we heard from other agencies that have this authority. Even in mediation when an agency is reluctant to hand the records over so OGIS can look at it, OGIS should have the authority to say, "We really need to see those." You make a good point though, if an agency says, "Okay, we'll go to mediation." And then OGIS says, "Well, we need to see the records." I suppose there's nothing stopping an agency from saying, "Okay, we're done with mediation," and walk away. And I guess that's a question to Alina, that could happen even if we recommend and Congress takes this action. Correct? Is that-

Alina Semo: Yeah. Absolutely. This is Alina Semo. Yes. We always say mediation is a voluntary process. We need both parties to be willing to participate in the mediation in order for it to go forward. So of course, either party can walk away at any time.

David Cuillier: Yeah. So, in essence, if OGIS doesn't have binding authority, then this won't make a huge difference probably in most cases, but we still think it's important and great questions, great points brought up. Again, like with the other recommendations, I think this would require further study, investigation, flushing out in that feasibility study. So this is one of those items like, okay, in concept, we like the idea, but we definitely need to look into the details a little bit more. And that's I think the intention here, if that makes sense. Did that answer your question? Thank you.

Kel McClanahan: I just wanted to say Kristin did raise a point that I meant to mention. Yeah. I think that, and in fact, the agencies do this even in court mediation where they will say they don't want to cooperate with the mediator and they walk away. I think that the point of this, when it's mediation, I don't agree with Dave that this doesn't add a lot because I think that what this says is if you're not willing to cooperate with the mediator, you have to leave mediation. You can't just say, oh, because you can't look at records and then continue to drag out the mediation. So I think that sort of forces the agency to say, you cannot get the benefits of mediation if you don't play ball, if you want to forgo giving records over, that's fine, you can leave mediation, but you have to leave mediation.

David Cuillier: Good point Kel. Further questions or discussion, or does anybody want to make a motion?

Jason Gart: Jason Gart, History Associates. One thing I would just add is that the National Declassification Center at the National Archives in College Park deals with classified material all day long. So there is the ability within the National Archives to deal with national security classified material. And I think that should just be, we should just remind everyone that they do it, it happens. And I think we should have our trust in that system and their work. And the fact that OGIS can maybe leverage the skillset and the expertise that is at the NDC as they begin to think out how this might work.

David Cuillier: Thank you.

Alina Semo: Yeah. I do thanks for that point, Jason, but I do want to add NDC does not have independent declassification authority and they rely on other agencies on the originating agencies with equities to make declassification decisions. So it's a partner process.

Jason Gart: Right. Which is the same way this would work. Right? There's a network within NDC with people that have clearances throughout the federal government. So I assume that there would be a mechanism to accept and to deal with material that's classified and that they could work that out. And that should not be a concern.

Alina Semo: Understood.

David Cuillier: Okay.

Alina Semo: So David, let me ask you this. Do we want to carry over to after break, the vote? Maybe folks are feeling a little beleaguered. It's 11:30 and we could take the vote right after we come back. Would that be okay?

David Cuillier: That's fine with me, Alina.

Alina Semo: All right. Let's do that. Let's take a 10 minute break, I think is what we gave everyone today. And if we could be back at 11:41, that would be great. Just remember just to mute yourselves and stop your video, but don't turn off your connection. And at this point we will take a break. So Michelle, if you could put the slide onto our break slide, that would be just great.

BREAK

Alina Semo: Hello everyone. Welcome back to part two of the penultimate meeting of the fourth term of the FOIA Advisory Committee. We hope that everyone has had a good break. We actually went over about five minutes trying to give folks a chance to take a breather and walk around a little bit, but I think we're all back, or at least most of us are. 

And Michelle, if I could ask you please to go back a slide or two. Right, and one more slide, please, because we are still... and one more slide again. We are still focused on number two, which reads number one currently. Congress giving OGIS the authority to review records in camera. I know we had a robust discussion before the break. We had a number of questions. Before we take a vote, any other comments or observations or questions about number two? I don't see any. Who would like to make a motion?

Kel McClanahan: This is Kel. I'll make a motion.

Alina Semo: Thank you, Kel. So moved. Do we have a second?

Patricia Weth: This is Patricia Weth of the EPA. I second.

Alina Semo: Okay. Thanks for the second. All right, let's take a vote then. All those in favor of recommendation number two, please say, "Aye".

Multiple: Aye.

Alina Semo: Okay. All those not in favor of recommendation number two, please say, "Nay".

Allyson Deitrick: Nay.

Kirsten Mitchell: Okay. This is Kirsten. I'm going to need folks to say who said nay. I almost wonder if... I hate to do this, but can I do a roll call, Alina?

Alina Semo: Go ahead.

Kirsten Mitchell: Just so I have it correct? Allan Blutstein?

Allan Blutstein: Abstain.

Kirsten Mitchell: Okay. David Cuillier?

David Cuillier: Aye.

Kirsten Mitchell: Allyson Deitrick?

Allyson Deitrick: Nay.

Kirsten Mitchell: Kristin Ellis?

Kristin Ellis: Nay.

Kirsten Mitchell: Linda Frye?

Linda Frye: Aye.

Kirsten Mitchell: Jason Gart?

Jason Gart: Aye.

Kirsten Mitchell: Okay. Kel McClanahan?

Kel McClanahan: Aye.

Kirsten Mitchell: Michael Morisy?

Michael Morisy: Aye.

Kirsten Mitchell: Alexandra?

Alexandra Perloff-Giles: Aye.

Kirsten Mitchell: Tuan?

Tuan Samahon: Aye.

Kirsten Mitchell: Matthew?

Matthew Schwarz: Nay.

Kirsten Mitchell: I'm sorry, did you say yay?

Matthew Schwarz: Nay.

Kirsten Mitchell: Nay. Okay. Alina?

Alina Semo: Abstain.

Kirsten Mitchell: Dione?

Dione Stearns: Yay.

Kirsten Mitchell: James Stocker?

James Stocker: Yay.

Kirsten Mitchell: Okay. Tom Susman?

Thomas Susman: Aye.

Kirsten Mitchell: Aye, and Bobby?

Bobby Talebian: Abstain.

Kirsten Mitchell: A. Jay is absent, and Patricia Weth?

Patricia Weth: I'm abstaining.

Kirsten Mitchell: You're abstaining. Okay. Just a sec. Okay. This is an interesting situation that I don't believe we've had before on the FOIA Advisory Committee. We have 10 votes for and one, two, three. Three votes against, and then one, two, three, four, five... no. Four abstentions.

Alina Semo: So 10 votes out of 17 committee members present today. Is that a general majority?

Kirsten Mitchell: No. That's just a simple majority.

Alina Semo: A simple majority. So does that mean that the motion carries?

Kirsten Mitchell: Yes. I'm sorry, yes. Simple majority, the motion carries.

Alina Semo: Okay.

Kirsten Mitchell: Okay, and I want to go back to recommendation number four, re-imagining OGIS. We were having some audio problems earlier, and I did not catch that Tom Susman voted no on that. The motion still carries, number four, 13 to one, but I just wanted to put out there on the record that Tom voted no on that.

Alina Semo: Kirsten, thank you.

Kirsten Mitchell: Yes.

Alina Semo: All right. So, David, I think that leaves one recommendation for us to discuss?

David Cuillier: It does. Recommendation three, and I see on the slide it says this was passed last meeting. I don't-

Alina Semo: Recommendation one was passed. Can we go to the next slide, Michelle?

David Cuillier: Oh, one. Yeah. I'm sorry.

Alina Semo: It's okay.

David Cuillier: [inaudible 01:49:11] slide. I'm looking at the slide.

Alina Semo: Michelle, next slide please.

David Cuillier: Sorry. 

Alina Semo: That's okay.

David Cuillier: By the way, does anyone, Tom, did you want to in a sentence or two say why you voted no? I mean, only if you want to. You don't have to, on the recommendation four?

Thomas Susman: Yeah. I guess I always feel that whenever there's any potential for controversy, it makes it too easy for Congress to slash and burn, and they won't do that to the archives, but they could well do that to OGIS.

David Cuillier: Okay. Good point. Something for us to continue looking into with the feasibility study, I think. Definitely. All right, so recommendation three. Congress directs the federal courts to give extra weight to OGIS decisions. The lawyers on this committee probably will want to talk more about this, and so let's open it up to discussion. I think some folks have some opinions on this.

Kristin Ellis: This is Kristin Ellis-

Kel McClanahan: Kel, I'm waiting.

Kristin Ellis: Oh. Sorry.

Kel McClanahan: Kristin, do you want to go first?

Kristin Ellis: Yeah. This is Kristin Ellis from the FBI. So, technically the way the FOIA litigation works, is it's a de novo review by the court. So, they really shouldn't be considering weighing or not weighing decisions. So that's that, but I also, again the agencies are in the best position to be making decisions about their records and their equities and their processing. I don't see why it would be beneficial or necessary to give additional weight to OGIS decisions. 

And again, I'm reading this as an outflow of number one, because mediations are not decisions that OGIS is making. So, this would presumably come directly from OGIS being some sort of an adjudicatory body. And I frankly have not done the research on this, but I am not aware that courts generally give extra weight, whatever that means, to administrative adjudications by the executive branch. 

For example, in the EEO context, in the MSPB context, in other administrative tribunals. So, if we're talking about de novo review, that isn't giving weight to the decision. It's looking at it fresh. So, you would also have to fundamentally change the nature of FOIA litigation to implement this. I don't see why it would be necessary for a court to give deference to OGIS in this context.

David Cuillier: Okay Kristin. Would someone else like to chime in? Kel?

Alina Semo: Kel.

Kel McClanahan: So, I actually almost agree with Kristin on this, which is sort of rare, as you all know. I don't like this recommendation as it is written, because it is tied to number one. And I agree with her, I agree with Kristin that the term extra weight does get into the whole de novo review thing, and run afoul of some ways that OGIS works, but if it were re-imagined to basically say... the underlying thing is, Congress directs the federal courts to give extra weight to OGIS decisions. If that philosophically were just to say, "More weight than is currently given" which is none, to OGIS findings. Then that does solve a big problem. Which is, right now, even though OGIS does not have binding authority, OGIS does occasionally in their closure letters say something like, "This does not appear to be" or, "This appears to be a violation of XYZ." Or something like that. "In our opinion, it is X." 

That in and of itself is very very powerful, and is given zero credit by the court, whereas a declaration from literally any FOIA officer who files a declaration in litigation is given what's called the presumption of good faith, which means to some judges that unless the requester comes out with some extrinsic evidence that they would have no way of having because they're not inside the agency, to say, "Look, this declarant is saying something wrong." That is not enough to overcome the presumption of good faith. 

Now, this is different in different courts, but if you were to rewrite this as Congress directs the federal courts to give the same credibility and presumptions to statements of OGIS as it does to agency declarations, that would even the playing field, and that would say, "Look, we're not asking for the court to defer to OGIS. We're just saying that when OGIS does go out of its way to say that what an agency's doing doesn't seem kosher, that the court has to take that at the same value as the agency declaration that says 'Of course we're doing everything kosher' because we are presumed legally to do so."

David Cuillier: Okay if [inaudible 01:55:35]. I'm sorry. I'm not sure if Kel... you're done? Okay.

Kel McClanahan: I was saying, if you would agree to an amendment of this language to basically change it to equal weight to agencies, then I would support it. I can't support it right now because it is... there are problems with the idea of more weight than de novo or deference. I think it needs to be equal on both sides. There should be parity, not a thumb on the scale one way or the other.

David Cuillier: So you're saying Congress directs the federal courts to give equal weight to-

Kel McClanahan: To OGIS findings as they do to agency declarations. The agency seems to be no doing the right thing but we’re… 

[The following text below is not available in the online (YouTube) audio recording beginning at minute: 1:58:22] 

Alina Semo: I see Alexandra is dying to say something, so Alexandra.

Alexandra Perloff-Giles: I'm not sure I understand Kel's proposed reform, which seems like a very different point than what this was getting at. But I'm with Kristin, I think, I'm not sure that there's a problem that this solves, that there's a problem with de novo review as a general matter. And my concern is that it's hard enough to get judges to look behind the hood, and it would be another excuse to punch to agency deference and say, "Well, OGIS has looked at this", so I would like to not give courts that out. And so, I would yeah. That's my concern.

Kel McClanahan: I can actually give a solid real-life example of the problem this solves. Several years ago, and Kirsten is going to roll her eyes, so she knows exactly that I've talked about this many times, there was a case that ended up in litigation that had gone to OGIS first. 

And the closure letter from OGIS said that... I don't remember the exact phrasing, but the gist was the agency seems to be not doing the right thing, but we're litigators so we can't do anything about that. I'm sorry. And so, when the agency declarant writes this declaration defending their actions, I filed the OGIS letter, and I said, "Look, here's OGIS, the people set up to be FOIA geniuses, saying that what the agency did was wrong." 

And the lawyer for the DOJ actually literally wrote in a footnote, "No credit should be given to OGIS, because they just do mediations while OIP is tasked with setting different wide FOIA policy, and so you should defer to DOJ." That is the problem this is solving, that when you do get OGIS on your side, the DOJ still argues that the court can't listen to that, and needs to listen to the DOJ and the agencies.

David Cuillier: Okay. So, there's a lot going on with this recommendation, and frankly, if you ask me, I don't have strong feelings about this one. And I think it's only on the list because I think some of us thought, Kel, you really wanted this or others out there in the requester community thought this would be helpful. But, if there's not a strong feeling toward this, there's no reason anybody needs to make a motion. Six out of seven ain't bad.

Alina Semo: Are you thinking about withdrawing then? The recommendation? Is that what is going on?

Kel McClanahan: Well [inaudible 01:59:33] I'm writing something in the chat that will be the language I'm proposing.

David Cuillier: I don't mind even taking a vote and having it go down in flames.

Alina Semo: Okay.

David Cuillier: That's democracy.

Alina Semo: Yes. At its best.

David Cuillier: In action.

Alina Semo: Kel, whatever you write in the chat, I just want to remind you it needs to be read out loud. Like when you pass a note in class.

Kel McClanahan: Okay. I'm just going to write it out so I can see it, but I'm-

Alina Semo: Sure.

Kel McClanahan: Typing right now so we can have something to vote on my amendment. But if we want to vote on this plain language now, and then vote on my amendment, I'm happy to do that. However you want to do that.

Alina Semo: David, I think you want to move on the current language that is?

David Cuillier: Yeah. Let's go ahead and get it on the record.

Alina Semo: Okay.

David Cuillier: That's a [inaudible 02:00:14].

Alina Semo: First, I need a motion.

Patricia Weth: I, Patricia Weth, EPA. I move that we vote.

Alina Semo: Okay. Do we have a second?

David Cuillier: Second.

Thomas Susman: I'll second.

Alina Semo: Thank you. All right. So all those in favor of number three, congress directs the federal courts to give extra weight to OGIS decisions, please say, "Aye".

Thomas Susman: Aye.

David Cuillier: I'll say Aye.

Alina Semo: I heard two ayes. Any other ayes?

Kirsten Mitchell: I have David and Patricia saying aye.

Thomas Susman: Tom, hello?

Kirsten Mitchell: Yes, Tom?

Thomas Susman: Aye.

Kirsten Mitchell: Tom is an aye.

Patricia Weth: I'm not an aye.

Kirsten Mitchell: I'm so sorry, Patricia.

Patricia Weth: That's okay.

Alina Semo: Patricia just moved.

Patricia Weth: Oh, is that it?

Alina Semo: Yes.

Patricia Weth: Yeah.

Alina Semo: But she's not an aye. Okay all those against-

Michael Morisy: This is Michael. I'll be an aye.

Alina Semo: I'm sorry, who else is an aye?

Kirsten Mitchell: That was Michael Morisy.

Alina Semo: Okay. So, so far we've got three ayes. David, Michael, Tom. Correct?

Kirsten Mitchell: Correct.

Alina Semo: Any other ayes? All of those against, please say nay.

Matthew Schwarz: Nay.

Kristin Ellis: Nay.

Allyson Deitrick: Nay.

Linda Frye: Nay.

Thomas Susman: Nay.

Patricia Weth: Nay.

Alina Semo: Kirsten, did you get all of that? That was a little tricky.

Kirsten Mitchell: I didn't. I... yeah.

Alina Semo: Let's do a roll call again.

Kirsten Mitchell: Yeah, let's do a roll call again. Thank you. Okay. Allan Blutstein?

Allan Blutstein: Abstain.

Kirsten Mitchell: Abstain? David Cuillier is a yes? Allyson? 

Allyson Deitrick: Nay.

Kirsten Mitchell: Allyson is nay. Kristin?

Kristin Ellis: Nay.

Kirsten Mitchell: Nay. Linda?

Linda Frye: Nay.

[Online recording resumes here.]

Kirsten Mitchell: Jason?

Jason Gart: Abstain.

Kirsten Mitchell: Abstain. Kel? 

Kel McClanahan: Nay.

Kirsten Mitchell: Nay. Michael I have as a yes. Alexandra?

Alexandra Perloff-Giles: Nay.

Kirsten Mitchell: I'm sorry, did you say nay?

Alexandra Perloff-Giles: Nay, yes.

Kirsten Mitchell: Nay is your correct vote?

Alexandra Perloff-Giles: Nay with a no. Thank you.

[The following text below is not available in the online (YouTube) audio recording beginning at minute: 1:58:38]

Kirsten Mitchell: Yes. Sorry about that. There's some background noise here. Tuan?

Tuan Samahon: No. Nay.

Kirsten Mitchell: Tuan is a no. Matt?

Matthew Schwarz: Nay.

Kirsten Mitchell: Nay. Okay. Alina?

Alina Semo: Abstain.

Kirsten Mitchell: Abstain. Yeah. Dione?

Dione Stearns: No.

Kirsten Mitchell: No. James?

James Stocker: Nay.

Kirsten Mitchell: Nay. Okay. Let me get that. Tom, I have as a yes.

Thomas Susman: Correct.

Kirsten Mitchell: And Bobby?

Bobby Talebian: Abstain.

Kirsten Mitchell: A. Jay's absent. Patricia?

Patricia Weth: No.

Kirsten Mitchell: No. Okay. So, it looks like the motion fails with 10 votes.

Alina Semo: 10 votes against.

Kirsten Mitchell: 10 votes against.

Alina Semo: Three votes for.

Kirsten Mitchell: Three votes for, yes. And four abstentions.

Alina Semo: Okay, thank you for that.

Kirsten Mitchell: Sure.

[Online recording resumes here: 1:58:40.]

Alina Semo: David, I'm going to turn it back over to you. Do you want to entertain Kel's amendment? 

[The following text is not available in the online (YouTube) audio recording beginning at minute: 1:58:41]

David Cuillier: Not really, but... again, I'm all about democracy, so who am I to shut him down?

Alina Semo: Okay. Well, I'm also all about the timing, because [inaudible 02:03:55].

David Cuillier: Yeah, I know. That's what I was thinking about, and-

Alina Semo: Two sub committees.

David Cuillier: But I think we can deal with this quickly. I mean, if Kel wants to move his motion, it's in the chat. The congress directs the federal courts to afford equal presumptions [inaudible 02:04:10] to any OGIS finding or OGIS statement regarding requests as it does to agency declarations. He certainly can move that, and we can discuss and vote. I'm not opposed to that, sure.

Alina Semo: Kel, would you like to move?

Kel McClanahan: Yes. He just saved me the time of reading it, so yes. I move that we adopt that, since I changed agency declarations to an agency declaration just for parity. 

[Online recording resumes here: 1:58:43.]

Alina Semo: Okay. Do I have a second? Although we don't need one. All right, let's take a vote. All those in favor of Kel's amendment, please say, "Aye". 

Kel McClanahan: Aye.

Patricia Weth: Aye.

Thomas Susman: Aye.

Kel McClanahan: Yay.

Alina Semo: All right, Kirsten, did you get that?

Kirsten Mitchell: No. Can we do a roll call again? Yeah. Sorry to-

Kel McClanahan: I'll withdraw the motion. I think I got one aye. So, I can withdraw the motion.

Alina Semo: You're withdrawing the motion?

Kirsten Mitchell: You're withdrawing the motion? 

Alina Semo: Okay.

David Cuillier: And Kel, I would vote no, but only because I don't understand it, and this might be an issue that we further look into and talk about as a committee next term in the feasibility study. So, I'm sure you have a brilliant idea, it's just much more brilliant than I can fathom and understand. So, further discussion and fleshing out I think we can come back perhaps next term and build on this. So, thank you for raising it.

Alina Semo: Great. All right, well thank you for all of that, David.

David Cuillier: Yeah, no I think that was cool. That worked.

Alina Semo: Okay, great. Thank you. I'm just going to keep moving things along if you don't mind. I really appreciate it. I am going to circle back to the process subcommittee, and now I believe Professor Tuan Samahon is able to speak with us about the one recommendation that the subcommittee was going to address today. So, Tuan, the floor is yours.

Tuan Samahon: Thank you, and my apologies. I had an inopportune network connection failure right when I was up in the agenda last time. If we could have the language up on the powerpoint.

Kirsten Mitchell: Yeah. Michelle, if you could go back to that slide. Keep going. This is the process subcommittee.

Tuan Samahon: While Michelle is doing that, I'll remind everyone that we had agreed in spirit to the expression and draft recommendation number two. So, back one more to number two of the subcommittee on process. Still not quite there yet. And so, what we did was a little bit more wordsmithing afterward. Thank you. 

And we came up with this language, and I should say that our fearless leader, Alexis, is fulfilling her civic duty as a juror today, and so for that reason, I'm stepping in. And so the language was that agencies should amend any regulations, directives, policies, and guidance to provide individuals regardless of whether they have legal representation in agency proceedings access to records about themselves. 

And you'll recall that the specific context which we had looked at with what apparently is in the process of being resolved was EOIR and the ECAS system and access to records of proceedings, where there was differential treatment, depending whether one was represented or not. If one was represented, one could avail oneself of the benefit of the FOIA alternative ECAS. To get those records of proceedings, however, if one was unrepresented, it was the case that one could not. And I believe in our last meeting, it had been reported. And of course we had been in touch with EOIR, and had raised this issue with them and discussed it with them. I believe Bobby had reported that EOIR was in fact changing. It was in the process of changing, or it had changed it such that ECAS would become available to unrepresented persons.

But as a general proposition and principle, this should apply, not just for EOIR but across the board. And so this is something that could be done on the executive branch side in terms of implementing its own discretion under existing law to afford these opportunities. So, in addition, we have been in touch with Kel McClanahan who had suggested individually his suggestion for legislative solutions to address the same problem of first person FOIA. And specifically, he had circulated to means of some others, the language of a proposed amendment to 5 USC, 5 55 streamlining access to personal information act of 2022. And that is on the legislative side. But I perhaps leave that and invite Kel to sort of comment on the legislative sort of proposed fix. First, I'd like to address maybe our executive side language. Are there any questions or comments that members of the FOIA advisory committee have, or motions for us to adopt this language?

Kristin Ellis: This is Kristin from the FBI. Other than the EOIR situation, are we aware of any other circumstances where agencies are not allowing people access to their own records unless they have representation under the FOIA?

Tuan Samahon: Yeah, so I believe in the last session we had discussed that at one point, apparently the EEOC had similarly not given record access to unrepresented persons. We did not attempt to do all agency executive branch survey to determine whether there were such particular instances, but as a general proposition, we make this recommendation.

Kel McClanahan: I'll clarify something. Kristin said something at the very end that you might not have heard, Tuan. She said under FOIA.

Tuan Samahon: Oh, I'm sorry. My apologies.

Kel McClanahan: Yeah. Yeah. And no, I do this all the time. I'm not aware of any agencies. I think they'd be violating the law if they did that. They said only representative people can be FOIA requests. My understanding was that this was supposed to tie into the alternative method. If you have an alternative method, you can't discriminate based on whether or not the person has a lawyer.

Tuan Samahon: That's correct. And I'm sorry. I did not hear those last words under FOIA.

Kel McClanahan: Right.

Bobby Talebian: I know I was introducing myself, but that was the point I was going to make. So thanks Kel.

Alina Semo: Thanks Bobby. Anyone else have any comments or questions? Or we're ready to take a vote? Can I have a motion?

Kel McClanahan: I'll move.

Allyson Deitrick: This is Allyson. I'll move.

Alina Semo: Okay. Allyson. So moved. Do I have a second?

Kel McClanahan: Sure. I'll take second.

Patricia Weth: I second.

Alina Semo: Patricia and Kel. Both second, third and fourth. Okay, great. Let's go ahead and take a vote on this. The language is up on the screen and I'm not going to read it out loud, but all those in favor, please say aye.

Multiple: Aye.

Alina Semo: Okay. Anyone opposed? Please say nay. I did not hear any nays. Any abstentions?

Kristin Ellis: I abstain. This is Kristin.

Bobby Talebian: Bobby. I abstain.

Matt Schwarz: I abstain too.

Alina Semo: Who else said they abstain after Bobby?

Matt Schwarz: Matt.

Kirsten Mitchell: Was that Matt Schwarz?

Matt Schwarz: Yes.

Kirsten Mitchell: Yes. Okay. Sorry. I couldn't hear.

Alina Semo: Okay. Alina also abstains.

Kirsten Mitchell: Alina abstains.

Alina Semo: All right. Any other abstentions? Okay. No problem. Kirsten, should we give you a second?

Kirsten Mitchell: Motion carries 13 yays, no nays and four abstentions.

Alina Semo: Okay. All right. Thank you so much. And thank you, Tuan, and thanks to the first party working group for all the great work and the process subcommittee. I really appreciate all the work you guys have put into this. So I'm going to keep moving because we're running definitely a little behind schedule. I want to turn things over to the technology. Nope, wrong, to the classification subcommittee. Michelle, if we could move forward several slides to get to the classification subcommittee slide that would be great. I'm going to turn things over...

Kel McClanahan: Alina, point of order. We were not done with this because we wanted to talk about the language.

Alina Semo: I apologize. Although Tuan did miss the part where you had earlier said you were tabling your motion.

Kel McClanahan: No, that was from the previous one.

Alina Semo: Okay. So I apologize. Tuan, is there anything more you would like to say about the now tabled motion of legislative language?

Tuan Samahon: So I don't know if we tabled Kel's legislative language. I think that was the prior discussion. But what we were saying is that there are two ways to try to achieve the goals of disclosure, first person requests. And we just addressed the executive branch side of things. Kel had suggested legislative language on the other side of things. And Kel, since it's your language, maybe I should defer to you here, you speak on this.

Kel McClanahan: Okay. And actually to make this really short. The entire idea is all of these recommendations #1, #2 and #3, we didn't do #4 because that's a different issue. But #1, #2 and #3, I wrote a bill that would basically be the template that the example for the draft language that we could say, if the committee agreed with it would justly incorporate it in. Here's an example of something you might want to follow when trying to write a bill that does these three recommendations. I believe that Kirsten has a copy of it in the slide deck. I don't know if that happened. That did not happen. Okay. She and I had talked about that during the break.

Kirsten Mitchell: Yeah. I'm sorry. That did not happen. Just as a point of order, this was discussed among committee members, legislation committee members yesterday, but it did not get advanced out of the subcommittee.

Kel McClanahan: Right. And I'm not saying it did. This is not a legislation subcommittee proposal. This is a proposal from one committee member to an amendment to sign a report and for the committee to vote on, but as Tuan, so if he wants to call a vote on it, he can vote on it. But if the people can't look at it, I won't read it. So it's very obnoxious to do that. As Tuan said, 5 USC 555 is part of the APA. It's the part that you generally have the other stuff about agency proceedings. It's for ancillary matters. And I proposed to put three different subsections in there that addressed agency proceedings would be 555f entitlement to different benefits 555g. And that there should be a mechanism for an agency to stay saying, if someone does request records under this, then the agency can't continue with the adjudication before they get their records to avoid a problem that happens in security clearances sometimes. It was modeled entirely on the security claims process and the right should get under executive order 12968. I'm not quite sure how to handle this.

Alina Semo: Can I just make a suggestion? The motion has been tabled. It's not moving forward to the full committee

Kel McClanahan: No, the motion has not been tabled Alina. The motion was tabled for the previous recommendation on the technology committee or the legislative committee about whatever.

Alina Semo: Nor was the motion that passed on the process subcommittee. Correct? The process subcommittee did not vote on this motion or the language. I was going to make a recommendation that since we're not able to vote on it and not everyone has the text in front of them, including our audience members. The working group, that's putting the final draft paper together, the final draft report, could include the language and discuss it, but it would not represent a standing vote that would be taken by the committee.

Kel McClanahan: And we vote on it in June when we vote on the final report? I'm okay with that. It is difficult when you can't look at it. Even Kristin made that point in the chat. So I'm happy to do that and have a discussion on this in the final report in June.

Alina Semo: What do the working group on the final committee report think about that suggestion that I just made? David and Dione and Patricia.

Patricia Weth: This is Patricia Weth from EPA. I'm really confused as to what's going on and what is this? Is this a recommendation that's going to come directly from Kel to the full committee? Because my concern is we have to have our final report completed by the end of this month. And we have to share it with the full committee members for them to review and comment. And because it has to be in final form for our next meeting. I don't see us having time to include another recommendation. We haven't even gotten through all of the recommendations that are on today's agenda. That's my concern. I do have a suggestion. Each of the subcommittees are putting together their reports and this could be something that could be included in the legislation subcommittee report, which of course, would be posted on the OGIS website. That's just my suggestion.

Alina Semo: Okay. I'm very cognizant of the time. It's 12:25 already Kel and I understand you wanted to move this forward in deference to you and cutting into your time of presenting your classification subcommittee recommendation. I think we go with Patricia's recommendation. I'm just going to make a unilateral decision and we could discuss later if needed, but let's move on to the classification subcommittee at this point. And I'm going to turn it over to James and Kristen, although I take it, Kel is going to be presenting.

James Stocker: Thanks very much, Alina. This is James. Just to check, I guess, a point of order. Do we have a hard cut off at 12:45?

Alina Semo: So I'm happy to stay past 1:00 if we have a quorum. So let's just do a quick check on that.

James Stocker: We'll see where we get. I'm going to be really brief. So we in the classification subcommittee have voted to bring forward five recommendations on the connections between classification and the Freedom of Information Act. It's important to note, we were not unanimous on all of these. There's five recommendations. It was a two to one vote on the first three. On the fourth one, it was two in favor and one abstained. And there was unanimous agreement on the fifth recommendation. And what that kind of indicates is that there are some differences in our views on these recommendations. All of these recommendations concern a single issue. Basically, what happens when some parts of the executive order on classification are followed to a letter, but other parts are not.

And in particular what it refers to is when you have a piece of information or a document that has information in it that satisfies the substantive definition or the substantive requirements for being classified. In other words, release of that information would be detrimental in some way to national security, but some of the procedures that are required to be followed are not followed, and those can include things like the requirement to be marked appropriately. So if during a Freedom of Information Act request, a document comes up that is not appropriately marked, can it then be withheld and what has to happen to that document?

And we have five recommendations that address this in various ways. I'm going to turn this over to my colleague, Kel, who wrote much of this report, who will introduce either the first three or four. And then we're going to allow my co-chair Kristin Ellis, who might want to offer a slightly different perspective to comment on that, as well as to introduce recommendation #5, which as I mentioned before, has unanimous support from the subcommittee. So I'll turn it over now to Kel to continue.

Kel McClanahan: Actually, James and Kristin, if y'all don't object, I think that because following the model of how the previous vote went, it might make more sense to go with five first because that's the one that we all agree on. Get that out of the way. So we're not sort of rushing through it at the last minute before questions. I'm happy to do that if y'all want to.

James Stocker: This is James. I don't have any objection to that.

Alina Semo: That's a good idea.

Kristin Ellis: That's fine by me. This is Kristen Ellis from the FBI and just to front load, James had indicated that there was not unanimous vote from the subcommittee on anything but #5, I was the dissenting vote on the other portions of it, just in the issue of transparency. The recommendation #5, if we can move the slides forward.

Kirsten Mitchell: Yeah, it's slide 23, please.

Kristin Ellis: Thank you. So the underlying premise of this entire group of recommendations is that there are two main essential parts of the executive order governing national security. There is a sort of a substantive requirement, as James mentioned, that information to be classified must meet certain criteria substantively. And then there are certain procedural requirements within the executive order that once information that can be classified, is classified. It needs to be marked as such. And that includes portion markings and banner markings to identify that this information is classified. And the whole point of marking classified information is so that people handling it know how to handle it. The executive order says that the president has assessed that there's a certain type in categories of information, that if they are disclosed, could harm national security. And so unauthorized disclosure of that information needs to be prevented.

And the only way really to prevent unauthorized disclosure of that information is for people to know what the information is so that they can properly protect it and handle it. There are instances, and certainly, I don't think that anyone in the intelligence community would disagree with me on this. There are instances where information largely derivatively classified information is not marked with all of the markings required by the executive order for whatever reason. And the question is what happens, specifically in this context in FOIA, if that record is responsive to a FOIA request, and a FOIA processor sees it and it is not marked, can it be withheld in response to exemption 1? And should the agency be going back and marking the document? In my experience in the last decade in the intelligence community and in handling classified information on a fairly regular basis, both in FOIA and outside of FOIA, there are certainly times when records are don't have all of the markings they're supposed to have.

In my experience as an agency, my agency will go back and make sure that the documents are marked. Again, because it is in our interest to do that. And then to protect national security. If we're not marking them, we can't properly handle them and make sure that they're not getting disclosed. So the thrust of this recommendation is essentially to assess how widespread of a problem this is and how agencies are addressing it, because there is a perception, at least in some corners that agencies are regularly ignoring omitted markings, unclassified documents, which like I said, in my experience, that's not accurate, but I certainly don't work in all of the intelligence agencies so I can't certainly speak to all of that. So this recommendation is for the archivist to request that the inspector in general for the intelligence community conduct a review of agency's compliance with the executive order, provisions that particularly relate to marking of classified information, either initially classified information or derivatively classified information in response to FOIA requests or other disclosure requests and these specific languages up on the screen.

The part of my reason for making this recommendation or proposing this recommendation to the subcommittee, which then adopted it, is that the ICIG is part of the office of director of national intelligence. The role of that organization is to be the honest broker in the intelligence community with oversight over other intelligence community agencies. And also, they have a major component of their mission is transparency within the intelligence community. So that seems like a logical place to go to help assess the extent of this problem and how agencies address it. So that's my elevator pitch on #5.

Alina Semo: Thanks, Kristin, for that.

Kel McClanahan: And I can chime in.

Alina Semo: Kel, go ahead please.

Kel McClanahan: And say, while I obviously disagree with Kristin on some of the points that she made, we both agreed that at the very leadoing it. But beforst there is a different inexperience between people. She has said that in her experience, they do do it, in my experience, litigating against the intelligence community. I've run into several situations where they didn't do it, and there are court cases about them. But before we get into the meat of the rest of the recommendations, which are basically make them do it and put penalties in and a minute to take the orders and whatnot, we all agree that at the very least someone should get a good picture of how widespread it is, as she said. 

[The following text is not available in the online (YouTube) recording beginning at minute: 2:25:14] And so I would struggle to support this recommendation as well.

Alina Semo: Any other comments or questions about recommendation #5 from the technology? I'm sorry. I keep saying that. I apologize from the classification subcommittee. I've corrected myself. Classification subcommittee. I'm looking around, I don't see anyone nodding or flailing their arms at me. Do we have a motion? 

[Online recording resumes here: 2:25:15]

Patricia Weth: Patricia Weth from EPA. I move that we vote on this recommendation.

Alina Semo: Okay. Thanks for that.

Dione Stearns: I second it. Dione.

Alina Semo: Thank you for that second, Dione. I appreciate it. Let's take a vote. All those in favor, please say aye.

Multiple: Aye.

Alina Semo: I heard a lot of ayes. Kirsten, did you catch all of that, hopefully? Anyone against please say nay. Okay. Any abstentions?

Bobby Talebian: Abstain.

Alina Semo: Who was that?

Bobby Talebian: It's Bobby.

Alina Semo: Thank you, Bobby. Alina also abstains. Any other abstentions? Kirsten, how did we do on that vote?

Kirsten Mitchell: Okay. Motion carries. There were no, no votes. Two abstentions from Alina and Bobby.

Alina Semo: Okay. All right. Kel, floor’s back over to you.

Kel McClanahan: All right. So I'm going to hit #4 next because it is sort of the other low hanging fruit. If you could go back a page. So the information that y'all haven't been given yet is sort of why this is a thing. There is this discrepancy between what the FOIA case law requires and what the executive order purports to require. And as James said, agencies sometimes don't mark their documents. They don't do other things that are required by the executive order.

And yet under exemption B1, the classified information exemption, a court will still sign off on it and say that they have proven that it is currently and properly classified. This is a fairly recent development in the last 10 years or so, but it is pretty consistent in the last 10 years before that. The prevailing view in the courts was that you have to follow adhere both to the procedural and the substantive criteria of the executive order, but then around 2010, the courts moved towards saying that only one section, section 1.1A had to be followed by the executive order in order for them to adhere something, in order for them to withhold something under, B1.

And without getting into the bigger reasons and the bigger changes, #4 is a purely administrative change. And it addresses a place in the executive order where they almost address this, where there is a section in the executive order that says that when an agency discovers omitted marks, and I can answer why the markings are important either now or later, but I will address it later if we don't address it here, when reviewing something for derivative classification or reviewing it for declassification, they must consult with the appropriate equity holders and apply the markings.

It doesn't say, or FOIA review. And because agencies do not consider FOIA review to be declassification review, they do not believe that that provision in the executive order requires them to apply omitted markings when they're reviewing something through FOIA, as opposed to declassification review. So this just fixes that. It says, look, declassification review, they have to apply it. Derivative classification review, they have to apply it. FOIA, they have to apply it. It's a pretty open and shut recommendation. Any questions? I think Patricia raised her hand. I can't see what she just did. That was not her. Okay.

Allan Blutstein: This is Allan Blutstein from America Rising. My question for #4, and it's applicable to #1 through #3 as well. What about Glomar responses? It's not clear to me that these recommendations wouldn't fold those in. I don't think they should, but it's not addressed here. And that was the primary issue in one of the cases you cited or the subcommittee, this group cited, in which Kel, I think you litigated, which was mostly the CIA, which I think was correctly decided in any event. I think it would be useful to clarify whether these recommendations exclude or include Glomar responses. I don't consider those to be withholding, but denial, but I don't know what the intention is here. But that's my question.

Kel McClanahan: Yeah. So there's two parts to that answer. I'm going to stick a pin in how it affects #1 through #3, because the answer is different than how it affects. For #4, the language and executive order specifically says where the information that has been omitted that was supposed to be there. And there is currently a difference of opinion as to whether or not you have to mark Glomar, but in the context, and that's sort of what goes towards #1 through #3. And so we will talk about Glomar when we get to that. For this one, it's already built into the system. In declassification, when they're reviewing a Glomar fact for declassification, they don't have to mark it or do whatever they do to it. And you can actually declassify Glomar facts. And in fact, I've had ICE cap appeals that dealt with a mandatory declassification review request for the existence or non-existence of right information, which that was deemed to be a classified fact.

And so for this provision, that it doesn't apply because it basically says whatever you're doing for declassification review do for FOIA review. If you're not doing Glomar for declassification review, don't do Glomar for FOIA. It is just sticking FOIA onto the other end. If you, whether or not they should be doing Glomar, as part of that is a different discussion. That's not relevant to this particular recommendation. And I'll get to that when we talk to that.

Kristin Ellis: This is Kristin. The executive order specifically says that markings are required only when classified information is in documentary form. And my view is that a Glomar response because it is not about actual documents. It is about facts that if we acknowledge, we have records, we're disclosing that we have classified information or potentially could be disclosing that fact. So there's no record to mark. And I think, Allan, I'm getting to your point in the case law that you're talking about. I believe that court said with a Glomar, there's no document to mark. So by definition, nothing omitted. My interpretation of this provision in the executive order is when you are talking about an actual physical document that may have markings omitted from it. And I don't believe it should affect a Glomar response, because we're not creating a new document and then classifying that document, ergo having to mark that document, when we issue a Glomar response. I don't know if that answers the question but at least my view is that I don't view this ... because this just adds language to a provision that already exists in the executive order and I don't believe that provision affects Glomar responses either.

Kel McClanahan: The short version is both Kristin and I...we have vastly different views on the first part of what she said, but we both agree that's not here, that's not something that happens in this particular recommendation.

Allyson Deitrick: This is Allyson-

James Stocker: This is James. Just because of time, if anyone has any other questions, I think it'd be great to hear them but, otherwise, I'd like to move for a vote on this recommendation.

Allyson Deitrick: Actually, this is Allyson. I have a question about the timing about when the marking should be done because as written, it says that, in cases were information withheld ... Does that mean that, after the information has been withheld, then they go back and mark it, or should it be that the information is marked before a final determination is made? I guess it just isn't as clear to me as I would like. Do you guys have some more background on-

Kel McClanahan: Sorry. Again, these are all questions for one through three, not through four. Different agencies do it differently. The executive order only requires that they be applied, not that they be applied before the declassification review is done. This is, again, just whatever you're doing for declassification, whenever you do it, on whatever timetable you do it, do it for FOIA.

Kristin Ellis: To be clear, this is actually a paraphrase of what is in the memo. The language that currently exists in the executive order talks about when information is reviewed for declassification, derivative classification, or...then we were adding for FOIA. It talks about it at the review stage.

Allyson Deitrick: Okay thanks.

Alina Semo: James, do you want to move for a vote on number four?

James Stocker: So moved.

Alina Semo: Do we have a second?

Kel McClanahan: Second.

Alina Semo: Kel seconded. Let's take a vote. All those in favor of recommendation number four, please say aye.

Multiple: Aye.

Alina Semo: All right. I'm waiting for a second to make sure Kirsten got most of that. 

Kirsten Mitchell: I think so. Can we go to the-

Alina Semo: Let's go to the nay's.

Kirsten Mitchell: ... no's?

Alina Semo: All those against this recommendation, please say nay.

Patricia Weth: Nay.

Kirsten Mitchell: Was that you, Patricia?

Patricia Weth: Yes.

Kirsten Mitchell: Okay. 

Alina Semo: Any other nays? Okay. Any abstentions?

Kristin Ellis: Abstention.

Tuan Samahon: Abstain, Tuan.

Kristin Ellis: I abstain.

Allan Blutstein: Allan abstains.

Kirsten Mitchell: Okay.

Bobby Talebian: Bobby abstaining.

Kirsten Mitchell: Okay. I've got Allan abstaining, Kristin abstaining, Alina and Bobby abstaining. There was-

Alina Semo: Alina's abstaining, yes.

Kirsten Mitchell: Yes. There was one other abstention that I missed.

Allyson Deitrick: Allyson.

Kirsten Mitchell: Allyson, okay. Any other abstentions that I'm missing?

Alina Semo: Just so I'm clear, there were no nays?

Kirsten Mitchell: There was one nay and it was Patricia Weth.

Alina Semo: Got it. Thank you.

Kirsten Mitchell: Yes. The motion carries with one no vote and five abstentions.

Alina Semo: Okay. James, how do you want to proceed at this point, looking at the time. We have some folks who are able to stay past one, but not that many so I'm concerned about one through three. I know Kel wanted to have time to present, but would you like to take a vote as a package?

James Stocker: Well, I don't know. How does Kel feel about this? I'll turn that over to him and let him decide. You're muted, Kel. Sorry. Kel, you're muted. I don't know if you're talking to the committee or not.

Kel McClanahan: When James started talking, I couldn't talk because my Bluetooth died. I think it doesn't really make sense to vote on these one through three as a package, but we only do need to talk about one because one is sort of the big one and the purpose of two and three are really the parts of one. Let's say that someone didn't like one but they were okay with the marking half of it, which would be two. Then they would vote yes on two, no on one, or if we recommend all three and the archivist doesn't like one but he likes two, or she likes two, sorry, then that's how that would go. We don't really need to debate two or three, we just need to debate one. Does that make sense?

Alina Semo: Michelle, can you [inaudible 02:45:31]

James Stocker: This is James. Maybe we can try to do that very relatively quickly. I know it's tough because the issues are complicated, although we've done a pretty good job so far.

Alina Semo: We're doing great.

Kel McClanahan: Cool.

Alina Semo: Thanks, Michelle.

Kel McClanahan: A lot of the discussion has already been done on one built into the other. It basically boils down to set the FOIA, the one case law ... make it track the executive order, make it go back to what it was 11 years ago or, sorry, 13 years ago, to where, if there's something in the executive order that they didn't do, then they can't claim it's properly classified and therefore, they can't withhold it under B1. We say either the FOIA statute or the executive order, because you can really do this either way. Our recommendation is basically to give Congress, give the president the freedom to choose whichever path they choose. You can either amend the FOIA statute by amending B1 to say, "If it does not comport with the requirements of all of the executive order, then it's not exempt under B1," or you could have the executive order say, "You may not withhold it under FOIA, if it has not comported with these requirements."

Just as a brief background of this, these markings are not just frivolous markings. Many of the markings, while they are written and they're intended to be written, not just for the agency employees to know how to treat it but for everybody else. The Clinton executive order, which preceded the Obama executive order 13536, set a lot of these markings up in the interest of transparency so that you know when it is supposed to be declassified, so that if that date has passed, you can point to the marking in the redacted record to the judge and say, "Look, it was supposed to be declassified. It says that you must identify the person who classified it." What if that person wasn't authorized to classify it? There are lots of markings that are required for transparency purposes because one of the key precepts of the executive order is that information shall not be classified indefinitely, but if you don't mark it when it is supposed to be declassified, then agencies don't always know when to declassify it and judges don't know when to say, "No, this this cannot be continued to be withheld because it was supposed to be declassified," or something like that.

The other small background note on this is that this is an area where we don't know a lot of examples because most ... well, maybe not most, but a definitely a high percentage of B1 withholdings are in full. And that means that, if I request it and they say, "We withheld one document in full," I don't know if their markings or not on it. If they release something redacted and I can see, "Oh, there's markings or there's not markings," yes, they withheld this paragraph that's marked U under B1. Well, then clearly, it's not classified because it's marked unclassified.

This does happen. It doesn't happen a lot, but it happens enough. The purpose of this is to basically fix that, to say, "Okay, judges can look at whether or not they have followed the executive order," like they did for 20 years before 2010. They can say, and they still do this in some instances ... 1.7D is one that judges will look at, make sure you follow it, but this undoes, this fixes, the judicial case law that says you only have to show you did 1.1 and it addresses some of the judge's observations. One judge in the full report we quoted came out and said, "It looks like they might have violated the executive order, but I can't get to that question because the precedent is whether or not they violated 1.1A and the others don't matter." 

That's what this is. I'll answer specific questions about this. To Kristin's point that you mark information to keep it classified and to protect it, that's not always true because, if a document is marked top secret and it has no other markings and no portion markings, which are when you mark each paragraph, the agency still treats everything in that document as top secret, even the parts that are not actually classified. Adding a portion marking is not necessary for them to continue to treat it as top secret. They already treat it as top secret because it's the entire document. I can take questions on this and address anybody's concerns.

Alina Semo: Assuming there are any questions. Okay. 

Allan Blutstein: This is Allan Blutstein from America Rising. I haven't had time to review 10 years worth of case law. The memo's pretty thin. I'm curious whether Kirsten agrees with that view, that courts have broken bad over the last 10 years and that this requires the fix that Kel is suggesting.

Kirsten Mitchell: This is Kirsten. Just point of clarification, I believe you meant Kristin?

Allan Blutstein: Kristin, yes. My apologies. Yes.

Kristin Ellis: That's fine. Kirsten and I interchangeably hop into things, so it's good. I frankly don't agree, A, that courts have departed from what is required. I, again, in my practice have not seen that this is a major or persistent issue. I have certainly had more than my fair share of conversations and fights with DOJ lawyers representing us in court to make sure that we have done everything that we are required to do. I definitely know the FBI FOIA shop. If they find a document that doesn't have all of the proper markings, we'll make sure that it gets marked.

I am concerned at the notion that there is a recognition, and I think Kel would agree with me on this, if information would harm national security, it meets 1.1A's requirements of the executive order, but it's missing a marking, I don't believe that there's a recommendation that information should be disclosed under FOIA or be required to be disclosed. So what this is basically doing is asking the court to enforce the executive order which, by the very terms of the executive order, is not appropriate. The executive order itself says it does not create any rights enforceable by law. As I said at the outset, full candor, I am the dissenting person on the subcommittee as to this because I don't read the executive order the same way that Kel does. I don't read the case law the same way that Kel does. I don't think that this is the problem that he thinks it is and I don't support this recommendation.

Kel McClanahan: I will join Kristen to say that, yes, we're not recommending. One litigate did try to litigate this point. They lost and they probably should have lost. We're not saying that, if you find a document that's not marked, you have to release it. We're saying that marking is only part of this. Marking is the one we keep talking about. There are other parts, but let's stick with marking for now. This is saying for marking that, if you find something that isn't marked, you have to mark it before you withhold it so that the court, so that the requester can see the markings, can know whether or not all of the provisions were followed, can know if it was retroactively classified.

There are provisions in the executive order for retroactive classification. This is not saying that, if there is information that is unmarked and is, in fact, unclassified, they have a process for classifying it. It is a more difficult process because you've already gotten the FOIA request for it, but it's there. This is saying that, if they want to do that, they have to do that. They don't necessarily have to do that if they just want to mark something that's been improperly marked, but that by the time a decision letter goes out to a requester or, at the very least, by the time the agency files a declaration in their lawsuit about the classification of the information, it has to be marked. That's all this is saying.

Alina Semo: In the interest of time, it's 12:59 PM. We are losing a quorum very quickly. If we're going to take a vote on number one, I vote that we do that now. I would like to ask for a motion to be entertained. Can I have a motion?

Kel McClanahan: I'll motion.

Alina Semo: Thank you. Do we have a second?

Kristin Ellis: Second.

Alina Semo: Okay. Let's take a vote, please. All those in favor of number one, please say aye.

Multiple: Aye.

Alina Semo: Those against, please say nay.

Multple: Nay.

Kirsten Mitchell: Okay. Can we do a roll call? I'm sorry, I didn't-

Alina Semo: Roll call.

Kirsten Mitchell: ... [inaudible 02:56:18] those.

Alina Semo: Go ahead.

Kirsten Mitchell: I'll be very quick. Allan?

Allan Blutstein: No.

Kirsten Mitchell: No. David?

David Cuillier: I abstain because I don't have enough information to make an informed vote at this point. Sorry.

Kirsten Mitchell: Nope. Allyson?

Allyson Deitrick: Nay.

Kirsten Mitchell: Nay. Kristin?

Kristin Ellis: Nay.

Kirsten Mitchell: Nay. Linda?

Linda Frye: I'm abstaining.

Kirsten Mitchell: Okay. Jason?

Jason Gart: Abstain.

Kirsten Mitchell: Abstain. Kel?

Kel McClanahan: Aye.

Kirsten Mitchell: Michael?

Michael Morisy: Aye.

Kirsten Mitchell: Alexandra?

Alexandra Perloff-Giles: Abstain.

Kirsten Mitchell: Abstain. Tuan?

Tuan Samahon: Aye.

Kirsten Mitchell: Matt?

Matt Schwartz: I'm a nay on one through three and I have to run to another meeting, sorry.

Kirsten Mitchell: Okay. Got you down as a nay on this one. Dione?

Dione Stearns: Nay.

Kirsten Mitchell: Nay. James?

James Stocker: Aye.

Kirsten Mitchell: Aye, okay. Tom?

Tom Susman: Nay.

Kirsten Mitchell: Tom, that was a nay, correct?

Tom Susman: Correct.

Kirsten Mitchell: Okay. Bobby?

Bobby Talebian: Abstain.

Kirsten Mitchell: Okay. Patricia?

Patricia Weth: Nay.

Kirsten Mitchell: Nay. Alina?

Alina Semo: I abstain.

Kirsten Mitchell: Okay. Looks like ... Excuse me, I'm losing my voice. It looks like we have seven nos and four yeses, so motion fails.

Kel McClanahan: All right.

Alina Semo: Okay. How do we want to-

Kel McClanahan: Let's skip forward to number two. These are just the parts of number one, and we can just call straight for a vote on those two.

Alina Semo: Vote on two and three together, Kel, right?

Kel McClanahan: Well, no, because you may agree with two and not with three, or vice versa.

Alina Semo: Okay.

Kel McClanahan: If you voted for two and three together, then that's one.

Alina Semo: I'd like to collect votes, though, on both at the same time, because it is now 1:02 PM and we're going to lose our quorum. That's going to be a problem for the vote. Can we vote for them together?

Kel McClanahan: Well, let me summarize what they are. I can do that in two sentences. Number two is-

Alina Semo: Do we need to summarize them? They're posted.

Kel McClanahan: Well, the classification instructions are one of the markings, so that's what that is. It's something that's already required to be there by the executive order, it's not adding a new thing. That was my thing. Why don't we just do a roll call and yea two and three is for all the other markings. Roll call and then vote on both of them.

Alina Semo: Roll call.

Kirsten Mitchell: Okay, so…

Alina Semo: Do a roll call, please.

Kirsten Mitchell: ... That sounds good. Okay. Allan?

Kel McClanahan: [inaudible 02:59:23] quickly?

Allan Blutstein: No.

Kirsten Mitchell: I'm sorry?

Kel McClanahan: Can we see number three quickly?

Allan Blutstein: No.

Alina Semo: Hold on one second. Michelle, can you move the slide forward, please, to number three?

Alina Semo: There we go. Thank you.

Kirsten Mitchell: Okay. Allan, I'm sorry. I heard you say no. Did you say no for both two and three?

Allan Blutstein: Correct.

Kirsten Mitchell: Got it. David?

David Cuillier: Abstain.

Kirsten Mitchell: For both?

David Cuillier: Yes.

Kirsten Mitchell: [inaudible 02:59:56] Allyson?

Allyson Deitrick: Nay to both.

Kirsten Mitchell: Nay to both. Thank you, Allyson. Kristin?

Kristin Ellis: Nay to both.

Kirsten Mitchell: Nay to both. Linda? Linda Frye? Okay. I am going to count her as absent, since I do not hear her.

Kristin Ellis: Said she had to go for another meeting.

Kirsten Mitchell: Right. Okay, Jason?

Jason Gart: I'm going to abstain on both of them.

Kirsten Mitchell: Abstain on both of them, okay. Whoops, just a minute. Kel?

Kel McClanahan: [inaudible 03:00:41] Yea on both

Kirsten Mitchell: Okay. Michael? Michael Morisy?

Alina Semo: Absent. I believe he also had to leave.

Kirsten Mitchell: I believe absent. Yep, I'm getting that. Alexandra? I believe she also had to depart.

Alina Semo: Right.

Kirsten Mitchell: Okay. Tuan? Is Tuan still here?

Alina Semo: Yes.

Tuan Samahon: I'm still here. Yea on both.

Kirsten Mitchell: Yea on both. Thank you, Tuan. Matt? Matt Schwarz?

Alina Semo: He also had-

Kel McClanahan: He left, but he voted nay on both before he left.

Alina Semo: He voted no on both. He already had to leave, but he voted no on both.

Kirsten Mitchell: Okay. Alina?

Alina Semo: Abstain from number two and number three.

Kirsten Mitchell: Okay. Dione?

Dione Stearns: Nay.

Kirsten Mitchell: Nay on both?

Dione Stearns: Yes.

Kirsten Mitchell: James Stocker.

James Stocker: Yea on both.

Kirsten Mitchell: Yea on both. Tom?

Tom Susman: No on both.

Kirsten Mitchell: No on both. Bobby?

Bobby Talebian: Abstain on both.

Kirsten Mitchell: Okay, thank you. Last but not least, Patricia?

Patricia Weth: No on both.

Kirsten Mitchell: No on both. Okay. We've got seven nos and three yeses, so motion fails.

Alina Semo: Okay. Thank you very much, Kel, and thank you classification subcommittee. I really appreciate all your work. I'm just going to quickly move on to our public comment section. Michelle, if we can go to the next slide, please? We all know the rules. Three minutes for each commenter. I'm going to ask Michelle to open up the telephone lines at this time. We understand there's a caller that's waiting.

Michelle [producer]: All right, ladies and gentlemen. As we enter public comment session, please limit your comments to three minutes. Once your three minutes expires, we will mute your line and move on to the next commenter. Once again, three minutes for your comments. We are going to Mr. Robert Hammond. Sir, please, go ahead.

Bob Hammond: Hi, this is Bob Hammond. Can you hear me okay?

Alina Semo: Yes.

Bob Hammond: Okay. Well, listen, I'm going to try to be brief because we're over time. I have 20 recommendations that are contained within my presentation that was just posted today. To save me the time of reading them all, consider that I did read them as oral public comments and include them in the meeting minutes.

A couple things I do want to say. I went farther than this committee in recommending that OGIS be completely removed from NARA and placed under Congress. I asked a question in the chat that was supposed to have been read out loud, but I'm going to ask it again. Ms. Semo, at the next meeting, I think you owe the American people the dollar figure that you believe you need to fully fund your agency to do its existing mission. Is it 18 million? I don't know. One of the problems with being under NARA is when you put that out for the world to see, you're probably going to get hammered at NARA because they want to use that money for something else.

I want to pass that same challenge on to Bobby at OIP. OIP is grossly underfunded. You both got your tails kicked at the Senate hearings recently. FOIA compliance is nonexistent, mediation is non-existent. It needs to be funded and this committee has done some extraordinary work with your recommendations.

One of my recommendations that dovetails with releasing those contemporaneous FOIA logs is annual FOIA reporting and the raw data that goes with it is massively, massively false. Everybody knows it. My experience is primarily with a couple of agencies within DOD but everybody from the FOIA officer up through the chain of command, service secretaries, secretary of defense, OGIS and DOJ OIP, they all know it and, every year, we get a footnote that says last year's data was massively false. They list a whole bunch of agencies but they never tell you what they changed. You've got to make them amend that last report, make them amend the raw data that goes with it and post them both. I don't care if it takes DOD 10 years to get a single report right, the American people need to know how materially inaccurate these are. That's a safeguard for FOIA requesters to know, even if your FOIA requests and appeals are being recorded. I can tell you mine are not. I have open FOIA requests and appeals dating back to 2013.

I'm prepared, if that's what it takes, to put a thousand or more examples into the public domain. When I go to OGIS and I ask for help, as I did on two recent [inaudible 03:06:00] appeals that I submitted by certified mail in 2018, and I said, "I want the status, the case numbers and I don't believe you're reporting those in your annual reports." OGIS comes back and says, "Well, they don't have any open appeals dating back there and we've already addressed all your concerns about FOIA reporting." That's nonsense. You have to take each case, document it and, when you find malfeasance, you have to act on it. I'm going to ... Are there other callers waiting to get in?

Michelle Ridley: Sir, your time has expired. Thank you very much for your comments.

Bob Hammond: My hand is back up. Thank you.

Alina Semo: Martha, I understand that there are no questions in chat that we've received during the meeting. Is that correct?

Martha Murphy: That is correct. Mr. Hammond asked the one question that he had asked us to speak out on.

Alina Semo: Michelle, you can go ahead and unmute Mr. Hammond for an additional three minutes and then we will wrap up.

Michelle Ridley: All right, very good. Mr. Hammond, you are unmuted. You may go ahead.

Bob Hammond: Okay. Well, I didn't get agreement to read into the record so I'm going to read my recommendations. The first one is related to everybody and these are posted on YouTube. The committee has them and they're within a presentation that we just posted. My first one is to require contemporaneous posting of all FOIA logs. That's already been recommended today. Require agencies to amend past quarterly and annual FOIA reports. You can see my presentation, DOD Massive False Reporting, Part One, Letter Secdef, Complaint to DOJ OIG. I've already discussed that one quite a bit. Require agencies participating in FOIA online to produce plans to preserve all FOIA online records, which are unique records subject to FOIA. They're not replicated anywhere else. You've got to preserve every item within FOIA online and I want to know how that's going to be done.

I want to see guidance discouraging preventing automated destruction of FOIA case processing records and seeking a change to narrow GRS to make FOIA case processes records permanent. DOD admits errantly and unlawfully to destroying potentially hundreds of thousands of records over a short time. That's based on a Navy record schedule and my own experience. The NARA GRS 4.2 requires FOIA and [inaudible 03:08:33] case files to be retained for six years after the final agency action or three years after final adjudication by the court, whichever comes first, but requesters unsatisfied with FOIA responses often seek case records of prior FOIA requests, extending that further. Now, I did that. When [inaudible 03:08:51] said that they didn't have Walter Reed's annual FOIA reports, I submitted another request, I asked for the case records and [inaudible 03:08:59] admitted to NARA that they had destroyed their records. The FOIA officer's never going to be able to keep track of that and you can't use automated retention schedules to delete things. NARA requires all records to be submitted digitally, so there's virtually no cost to doing this.

For OGIS, we've already said allow OGIS and DOJ OIP to make referrals to special counsel in egregious compliance violations or willful withholding. My understanding is the courts never do this. We've already talked about reviewing records in camera, binding arbitration, placing OGIS under contract. It's another one here: require OGIS to stipulate the annual funding it requires and study current OGIS funding shortfalls and mission accomplishment or mission failure. NARA refuses to even give me the budget request. What did NARA ask for? I can see the final budget things going to Congress and NARA gets every dime they ask for. The budgets went from 1.6 million with 400 mediation cases years ago. Now, OGIS says they have 4,600 mediation cases, still with three people. Impossible to do that, but they're getting 1.2 million. That's nonsense. OGIS needs to get direct funding from Congress and I think they need to report to Congress. OGIS will not-

Michelle Ridley: [inaudible 03:10:25] Sir…

Bob Hammond: [inaudible 03:10:26] ... I'm back in, thank you.

Michelle Ridley: [inaudible 03:10:28], thank you.

Kristin Ellis: Alina, you're muted.

Kirsten Mitchell: Alina, you're on mute.

Alina Semo: Thank you. Thanks, Michelle. I promised everyone we'd wrap up by 1:15, so I'm going to try to keep to that promise. Thanks for the committee members who were able to stay behind. Just want to remind everyone that the working group on the final ... working the final draft report to the archivist, the acting archivist, is going to be hard at work in the next month. I want to thank in advance the working group members: David Cuillier, Dione Stearns, Patricia Weth and Allan Blutstein, in no particular order. I want to remind everyone we're going to meet again on Thursday, June 9th, 2022 starting at 10:00 AM. It may be a shorter meeting than usual, given the fact that we'll just have the final report to consider and vote on. If there are no other questions or comments, I would like to adjourn our meeting. Just looking around, seeing if there's any questions or comments. I do not see any. We stand adjourned. Thank you very much, everyone. Have a great day. Stay safe.

David Cuillier: Thank you.

Kirsten Mitchell: Thank you.

Michelle Ridley: [inaudible 03:11:40] conference. Thank you for using event services. You may now disconnect.