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Meeting Minutes (Certified) - September 10, 2020

The Freedom of Information Act (FOIA) Advisory Committee convened at 1 p.m. EDT on September 10, 2020, virtually. 

In accordance with the provisions of the Federal Advisory Committee Act, Public Law 92-463, 5 U.S.C. App. §§ 1-16, the meeting was open to the public from 1 p.m. to 4 p.m.

Meeting materials are available on the Committee’s website.

Committee members present at the virtual meeting:

  • Alina M. Semo, Director, Office of Government Information Services (OGIS), National Archives and Records Administration (NARA) (Committee Chairperson)

  • Roger Andoh, U.S. Department of Health and Human Services, Centers for Disease Control and Prevention

  • Allan Blutstein, America Rising 

  • David Cuillier, University of Arizona 

  • Allyson Deitrick, U.S. Department of Commerce

  • Kristin Ellis, U.S. Department of Justice, Federal Bureau of Investigation 

  • Linda Frye, Social Security Administration

  • Jason Gart, History Associates Incorporated 

  • Alexis Graves, U.S. Department of Agriculture 

  • Loubna W. Haddad, U.S. Department of Defense, Defense Intelligence Agency 

  • Kel McClanahan, National Security Counselors 

  • Michael Morisy, MuckRock  

  • Alexandra Perloff-Giles, The New York Times Co. 

  • Tuan N. Samahon, Villanova University

  • Matthew Schwarz, U.S. Environmental Protection Agency

  • James R. Stocker, Trinity Washington University 

  • Thomas Susman, American Bar Association 

  • Bobak Talebian, U.S. Department of Justice, Office of Information Policy 

  • A. Jay Wagner, Marquette University

  • Patricia Weth, National Labor Relations Board

Committee members absent from the meeting:

  • Not Applicable

Others present or participating in the virtual meeting:

  • David S. Ferriero, Archivist of the United States, NARA

  • Kirsten B. Mitchell, Committee’s Designated Federal Officer, NARA

  • Eric F. Stein, Co-Chair, Chief FOIA Officers Council Technology Committee, U.S. Department of State

  • Michael Sarich, Co-Chair, Chief FOIA Officers Council Technology Committee, U.S. Department of Veterans Affairs 

  • Martha W. Murphy, Deputy Director, OGIS, NARA

  • Kimberlee Ried, Public Affairs Specialist/OGIS Detailee, NARA

  • Andre Thom, WebEx Operator 

Welcome and Introduction of Committee Members 

Archivist of the United States David S. Ferriero welcomed the group to the first meeting of the  fourth term of the Freedom of Information Act (FOIA) Advisory Committee. He stated if we were not in a pandemic he would welcome everyone to the National Archives building, a shrine to American democracy. 

He stated that in addition to housing the nation’s founding documents — the Constitution, the Declaration, and the Bill of Rights — the National Archives and Records Administration (NARA) provides a permanent home to every statue signed into law, including FOIA and the Federal Advisory Committee Act (FACA). Mr. Ferriero also noted the FOIA Advisory Committee’s task of advising on improvements to  FOIA complements the agency’s strategic goals of ”Making Access Happen” and ”Connecting with our Customers,” and that the Committee’s work ties closely to the FOIA Ombudsman’s office, (the Office of Government Information Services (OGIS)), to identify procedures and methods to improve FOIA compliance. 

Mr. Ferriero noted that President George Washington is first credited with using outside experts for advice. When facing an uprising in western Pennsylvania over a whiskey tax (the first-ever federal tax on a domestic product) President Washington appointed an ad-hoc group of commissioners to investigate the Whiskey Rebellion of 1794. The commissioners ultimately advised President Washington that enforcement of the tax would require “the physical strength of the nation.” Mr. Ferriero noted that federal advisory committees are one of the few formal ways for private sector citizens to participate in the policymaking process.

Mr. Ferriero also noted earlier this summer OGIS delivered the Final Report and Recommendations of the 2018-2020 term with an unprecedented 22 recommendations seeking to enhance online access to information; improve FOIA and records management training; raise the profile of FOIA within agencies; and embrace new technologies. He remarked that he has entrusted OGIS with fulfilling some of these recommendations and tracking progress on others and is particularly pleased that many of the recommendations marry well with records management. He stated a strong records management program is the backbone of an excellent FOIA program. 

Last, Mr. Ferriero stated that he does not expect another 22 recommendations or even half that many; rather, he welcomes the group’s advice in helping to implement some of the previous recommendations over the next two years. Mr. Ferriero ended by acknowledging the challenging times at the moment and requested everyone to take care and stay safe. 

Committee Chairperson and OGIS Director Alina Semo welcomed the group and thanked them for attending. She stated there would be time at the end for public comment and noted that meeting materials and other related information are available on the OGIS website. 

She asked that FOIA Advisory Committee members raise their hands to speak and identify themselves by name and affiliation when talking. She stated that OGIS staff would monitor for non-verbal cues in the virtual format and noted there would be a 10-minute break at 2:45 p.m.  Last, Ms. Semo introduced Loubna W. Haddad as the newest member of the Committee representing the U.S. Department of Defense, Defense Intelligence Agency. 

Introduction to the FOIA Advisory Committee By-Laws and Responsibilities

Ms. Mitchell called roll (see list above) and noted the two-page summary on the OGIS web site in regard to FACA and the Committee’s Bylaws. She also highlighted the requirement that any communications be sent to foia-advisory-committee@nara.gov. Ms. Mitchell reviewed the definition of quorum, expectations around committee and subcommittee meetings, and the process by which this group advises the Archivist of the United States. 

FOIA Advisory Committee meetings are open to the public and Federal Register notices are published in advance of the Committee's gatherings. Any Committee member may make a motion for a vote, no second is required, but it is appreciated.  Consensus is two-thirds majority vote and majority is one person over 50 percent of the Committee. Ms. Mitchell also noted she is a resource and available to help the Committee with their work. 

Ms. Mitchell ended by thanking several NARA staff  who are assisting with the FOIA Advisory Committee, specifically Christa Lemelin from OGIS, Kimberlee Ried who is a detailee to OGIS, and Rana Khandekar, an attorney in NARA’s Office of General Counsel.  

The State of Technology and FOIA

Ms. Semo stated that Committee members had noted concerns around technology in regard to FOIA. She welcomed Co-Chairs Michael Sarich and Eric F. Stein of the Chief FOIA Officers Council Technology Committee to present on the state of technology and FOIA. 

Mr. Stein and Mr. Sarich presented an updatefrom the Technology Committee and noted several 2020 accomplishments. Mr. Stein stated that eight working groups are in the process of being created, but want to avoid duplication of efforts of other agencies. Each group has specific tasks with a charter that outlines the scope and responsibilities; the groups are encouraged to cross-collaborate. Messrs. Sarich and Stein provided an overview of the eight groups — also referred to as “communities of interest.”  

The working groups are: 

  • FOIA Searches: examining electronic records access.

  • FOIAXpress and FOIAonline: focusing on establishing communities of interest for each of these two processing systems. (No agency participants endorse specific products or services.) 

  • Artificial Intelligence (AI): examining records management practices around implementing solutions like technology-assisted review and how to leverage technology better to identify records. 

  • 508 Compliance: examining how to provide a suite of tools and/or set of guidelines to make FOIA-released records accessible to persons with disabilities.

  • FOIA and Classified Information: focusing on those who work with classified information and national security and looking at what tools  agencies are using to address unique classified issues.

  • Collaborative Tools: looking at collaborative tools (e.g., Microsoft Teams or Zoom) and how they affect record-keeping so records can be located, discoverable, etc. This is an emerging issue given the current pandemic. 

  • Video Redactions: looking at how video records are redacted. This working group has some early findings to share. 

[Note: The Chief FOIA Officers Council combined the 508 Compliance and Collaborative Tools working groups after this presentation.] 

Mr. Sarich highlighted the Video Redactions Working Group’s  five early findings which include: video redaction records schedules can vary from agency to agency and platform to platform; tools have varying levels of complexity; litigation can drive video redaction schedules and agency resource allocation; earmarking funds for FOIA contractors with special skills can be efficient; and as agencies build out FOIA programs they need to consider adding video redaction work and skills to position descriptions and performance plans. 

Mr.  Stein stated the working groups' next steps include finalizing their charters followed by implementation of their plans. They intend to hold workshops on FOIA technology issues for the FOIA community and are aiming to complete work from the February 2020 Reportand then solicit feedback from the FOIA Advisory Committee, Chief FOIA Officers Council, federal agencies, and the public on topics of shared interest and best practices. 

Mr. Stein and Mr. Sarich asked for questions from the group. 

Mr. McClanahan asked about the timeline on record keeping for records that have been requested under FOIA but destroyed due to retention schedules. He noted the large backlogs some agencies face  in responding to FOIA requests. He asked if there is a way to put a hold on records awaiting FOIA requests so they are not destroyed before the request can be fulfilled.

Mr. Stein noted that it was something they are looking at and agencies in general are aware especially in regard to the tools available.

Ms. Perloff-Giles asked if search capabilities of agencies are made available anywhere. She noted that the technical information would be helpful to requesters. 

Mr. Stein stated he would share that feedback with the working groups. He also addressed from the chat a question about how will working groups solicit feedback from the public? Mr. Stein noted his and Mr. Sarich’s contact information from the slides and that they welcome feedback and will incorporate it. 

Regarding when the Technology Committee expects to complete work on the recommendations in the February 2020 report, Mr. Stein stated they do not have completion deadlines yet, but are working on determining those in the months ahead. He noted that the COVID-19 pandemic has created some working challenges. 

Mr. Susman asked about how the current FOIA Advisory Committee can stay in touch with Messrs. Stein and Sarich to keep updated on the progress of the working groups. Mr. Gart asked if that could be formalized in regard to meeting agendas. Ms. Semo stated she invites the Technology Committee when they have status updates. She will consider adding it as a standing agenda item. She also noted that there will be a public meeting next month, in October, of the Chief FOIA Officers Council and that Messrs. Stein and Sarich would be presenting this information to that group as well.  

Passing the Baton: Ideas from the 2018-2020 Term to the 2020-2022 Term

Ms. Semo acknowledged the returning members from the third term, Michael Morisy, James R. Stocker, Tom Susman, Bobby Talebian and Patricia Weth. Ms. Semo asked these individuals to talk about some aspects of the FOIA Advisory Committee’s work that has been discussed in the past and future areas for discussion. 

Mr. Susman stated that he is thrilled to be back on the committee. He noted there were 30 total recommendations, yet the first recommendation, regarding FOIA fees, from the Committee’s 2014-2016 term, has not been fully implemented. He suspects there is a long road ahead on getting some of the recommendations adopted and said it would be good to focus on the work that has been done previously and move those recommendations ahead. Mr. Susman suggested that the Committee consider having the sub-groups provide interim reports - one example would be for the technology group to produce a short report on the work they have accomplished. He ended by stating he is looking forward to working together.

Mr. Stocker noted he was glad to be back for a second term and that he believes the group shares an important role in a functioning democratic government and enjoys the high level of collegiality. He agrees with Mr. Susman that it would be good to look back on previous terms’  work and build upon it. He noted that at the same time, new members of the Committee will bring new experiences and fresh energy. He would like to look at the impact of security classification on the FOIA request process and is interested in knowing how declassification review impacts how the FOIA request can be expedited. For example: what’s the average time of these requests? and how much time is going toward declassifying material? -These questions are some the Committee could explore. 

Second, Mr. Stocker noted that sometimes it takes months or years to declassify relatively banal information. He wants to know if it is possible to measure the impact of the over classification on FOIA? What measures can be taken to reduce the backlog of FOIA requests? What should an appropriate process look like? How do other countries handle this? He suggested looking at a specific agency, such as the National Archives, to determine how to review these questions. 

Ms. Weth spoke to her experience on the 2018-2020 FOIA Advisory Committee and noted Committeemembers can serve on more than one subcommittee. She also referenced former 2018-2020 FOIA Advisory Committee member Jason Baron’s comments in the Final Report from the 2018-2020 FOIA Advisory Committee in which he noted members of the FOIA Advisory Committee should consider spending a portion of their time devoted to publicizing past recommendations and measuring/evaluating compliance of them throughout the executive branch.

Ms. Weth suggested continuing the subcommittee format with a subcommittee specifically meant to examine past recommendations such as an “Implementations of Recommendations” subcommittee. Under that she suggested four potential working groups— training, online access, congressional, and one dedicated to raising the profile of FOIA in agencies. She noted that what she found most helpful was reading the final reports of the past terms and the resources available to the committee, including the staff at the National Archives, and fellow Committee members. 

Mr. Morisy spoke to Ms. Weth’s comments around her advice in regard to coming into the committee. He noted the challenges that this Committee has in that they lack the ability to legislate and provide resources to agencies to process FOIA requests. He noted that it is better to look at the big picture to make sure the collective field is one that serves the American people as best as possible to serve the needs of today, tomorrow and many years from now. He stated this Committee is a good process in which the requester and provider community come together to address issues. His advice is to take time to listen to what is and is not working from the FOIA community. 

Mr. Morisy stated the group is at an intersection of many fields who are coming together to make the FOIA process as best as possible. He suggested taking the time/opportunity to listen to others and think through larger issues to address transparency and FOIA in general. He also suggested not limiting scope of the FOIA Advisory Committee recommendations to only what Archivist of the United States can do, but rather to look at these as a call to build upon things like legislation and to use the group as a springboard to make a greater impact. Mr. Morisy said he would like to see a subcommittee on extending FOIA and transparency beyond the executive branch to legislative and judicial agencies. He noted it is an area members of the public have questions about and that the public should expect transparency and aim for it across all aspects of government. 

Mr. Talebian stated that he is glad to be on the Committee  by charter (as director of the Office of Information Policy) and would be by choice. 

The Committee took a 10-minute break.

Committee Discussion and Selection of Subcommittees and Co-chairs

Ms. Semo noted that she hoped the previous presentations got everyone’s creative juices flowing. She referenced a FOIA Advisory Committee Priorities spreadsheet (available on the Committee website, that was circulated earlier in regard to interest areas of the FOIA Advisory Committee. If consensus can be reached on subcommittees then co-chairs will be determined today. Ms. Semo opened the floor for discussion. 

Mr. Andoh spoke of looking at previous years' recommendations to move forward. Ms. Semo noted that he might be a good fit for an Implementation of Recommendations subcommittee.

Mr. McClanahan noted that the priorities seem to cut across the various buckets around litigation. The group has done a lot of research around that issue and is agency centric, but FOIA litigation is an integral part of FOIA itself. He suggested a subcommittee to focus on litigation and address the priorities previously identified in that bucket. 

Mr. Samahon agreed with Mr. McClanahan’s suggestion. He noted the judicial enforcement mechanism is hard to divorce from the agency processing of FOIA and that it helps with identifying what the requester community thinks is fair. Mr. Samahon noted that it might be desirable to strengthen OGIS’s role to avoid disputes that could end up in court as OGIS has the power of persuasion, but cannot order agency behavior.

Mr. McClanahan stated that at times there will be tension between a judge’s view of OGIS and OIP guidance. He suggested that if the Advisory Committee recommends reform to Congress that it does so by making a clear recommendation on whether OGIS opinion versus OIP guidance has the greater weight or influence in cases in which the two may conflict.  

Mr. Talebian stated he does not think there is conflicting guidance from OGIS and OIP. He also noted that he thinks there is less ability to make an impact on the issue Mr. McClanahan raised around litigation. 

Ms. Weth echoed Mr. Talebian’s comments regarding litigation. She wondered if there should be a subcommittee on just legislative and congressional initiatives based on the FAC priorities list. 

Ms. Semo asked Ms. Weth to speak to Mr. Samahon’s comment around strengthening OGIS’s role since that was something she looked at in the previous term of the Committee. Ms. Weth noted that the Committee can ask OGIS to do only so many things with limited staff and resources. She said what would need to be developed is an entire litigation department under OGIS and in general OGIS could use more staff and resources. 

Mr. Wagner wondered if the Committee could address the role and responsibilities of OGIS, as currently OGIS has no investigative or subpoena power. He noted some states have such authority at the state level. He asked if it is worth looking into.

Mr. Andoh stated he was struggling with a focus on litigation. He noted that litigation occurs when records are not provided upon request and is the result of failing to respond to FOIA requests. He suggested addressing the bigger issues of the request — how to make sure agencies respond timely to requests? How to ensure agencies do so within the time frame allotted? He expressed a desire to find ways to work collaboratively to avoid litigation in court. 

Mr. Talebian stated that the last thing an agency wants is litigation and that the goal for reducing the need is a shared one. He suggested focusing on the administrative side, as Mr. Andoh noted. 

Ms. Ellis pointed out that litigation and legislation are remedies and stated that she favored looking at what Messrs. Talebian and Andoh noted — the administrative process that results in litigation. Ms. Semo noted the consensus is to focus on the process. 

Mr. McClanahan asked about the number of committees the FOIA Advisory Committee can have. Ms. Semo stated there is no limit, but it is ideal to have no more than four due to time constraints and staff resources. Mr. McClanahan pointed out that the group is already discussing 4-5 committees. 

Mr. Gart stated that he was struck by a comment from Ms. Weth around big strategic ideas that could be further examined in a holistic global view rather than tactically. He noted his surprise around the lack of FOIA goals and metrics to be implemented by agencies. He asked about publicizing the Committee’s past recommendations. 

Ms. Dietrick offered two suggestions, one of a separate implementation subcommittee and two, having a litigation subcommittee. She also said she agreed with Messrs. Talebian and Andoh.  

Mr. Susman noted that litigation is a problem, but thinks that it falls into two categories — substantive application of exemptions and process. He stated that adequacy of search is usually the issue and that’s a process problem and that litigation would be too difficult perhaps for this group to address given the lack of general group knowledge around it. He went on to note that process reform could reduce litigation on the FOIA request and technology plays into the challenges and suggested no more than four subcommittees to not spread the group too thin.

Mr. Stocker stated there were three subcommittees last year, but then those were divided up into smaller groups. Ms. Perloff-Giles said she sees two subcommittees for the group: FOIA as it is and FOIA how it should be. 

Mr. McClanahan agreed with Mr. Gart in regard to trying to not duplicate efforts with the groups. He noted that in his opinion, however FOIA processors handle requests, if they  get sued, the Department of Justice will defend them, which sends a mixed message to the requester community. If  the Committee doesn’t address or discuss litigation conduct, its work will be incomplete.  

Ms. Semo noted she would respectfully disagree with the statement that DOJ will defend every agency in every situation. 

Ms. Semo noted she was hearing discussion about process, technology and legislation as possible subcommittees and woven throughout the conversation,  a focus on past recommendations. Ms. Ellis noted that classification would be of interest to her. Mr. McClanahan agreed. 

Ms. Semo stated a possible homework assignment for each subcommittee is to craft a mission or vision statement to bring back to share for further refinement. She asked how the Committee felt about process, classification, technology, and legislation as the four subcommittees. Upon group consensus she asked for volunteers to co-chair the subcommittees, one from the government and another from the requester community. 

Below is the final determination. 


Classification Subcommittee 

  • Kristin Ellis, Federal Bureau of Investigation
  • James Stocker, Trinity Washington University


Legislation Subcommittee

  • Kel McClanahan, National Security Counselors
  • Patricia Weth, National Labor Relations Board


Process Subcommittee

  • Linda Frye, Social Security Administration
  • Michael Morisy, MuckRock 


Technology Subcommittee

  • Allyson Deitrick, U.S. Department of Commerce
  • Jason Gart, History Associates Incorporated 

 

Ms. Semo asked the group to consider which subcommittees they want to work on. She noted a bit of synergy among the subcommittees in the last term as the group did its work. 

Ms. Weth expressed concern about the four subcommittees not including or addressing the work around the past recommendations. She asked if that will be part of the process as she would like to have a subcommittee to “babysit” the previous recommendations. Mr. McClanahan suggested that it could be done easily through liaising across the various subcommittees.

Public Comments

Ms. Semo opened the meeting for public comment. 

Edward Hasbrouck, a freelance journalist and consultant to several nonprofit organizations, asked to speak. He noted he is a regular FOIA requester and that he does not have the resources to litigate around issues when dealing with federal FOIA requests. Mr. Hasbrouck requested that the Committee push for implementation of the 1996 E-FOIA Act. He noted the provision requiring production of records in any form or format in which they are held and in which they are readily reproducible has been almost entirely ignored by federal agencies. He  asked the group to work on the E-FOIA Act as a part of their work this term.  

Ms. Semo thanked Mr. Hasbrouck for his comments and suggested it be a topic for the Technology Subcommittee to examine. She asked Ms. Murphy for comments from the chat function. Ms. Murphy addressed a comment about the meeting minutes and transcript, both of which will be available on the OGIS web site. 

Ms. Murphy also addressed Mr. Susman’s question from the chat box in regard to FERMI [Federal Electronic Records Management Initiative] and whether the FOIA Advisory Committee needs to make recommendations about FERMI and the use of technology. Mr. Susman chimed in that he felt if the Committee was going to participate in this area, that they should be timely and not wait until 2022 to respond. 

Ms. Murphy noted another question: What happens to records management subcommittee work? Will their recommendations be split amongst the new subcommittees for follow up? Mr. Talebian noted this could be a part of the newly formed subcommittees’ work and identify gaps accordingly. 

Mr. Stocker asked if there was going to be an attempt to review all prior recommendations by all of the previous committees or if the group was going to be selective. He suggested it might be a good idea to be selective. 

Ms. Murphy noted another public comment regarding scanners for all agencies and more attention to FOIA and transparency. The commenter also stated historically, Congress has been painfully slow to recognize the needs of the agencies in this respect, how can the public help you with that? 

Mr. McClanahan offered to address that question. He stated the key to get congressional attention is just that one has to give it attention. He suggested writing a blog post, reaching out to elected officials, and to basically take the approach of “if you see something, say something” in an effort to garner attention to the problems of FOIA. Ms. Semo suggested that be an area for theLegislation Subcommittee to work on. 

Ms. Murphy addressed questions with regard to how those watching can send in or submit questions. Those watching on YouTube can type comments into that chat, or send questions in after the meeting at any time to foia-advisory-committee@nara.gov. 

Ms. Mitchell noted a question about which subcommittee will address requirements and auditing of reading rooms and other public facing tools? Ms. Mitchell followed up that question with clarification about an upcoming assessment that OGIS is currently working on and will be publishing soon that deals with electronic reading rooms and posting documents.  

Ms. Semo noted that perhaps Process and Technology Subcommittees could also address those issues.

Closing Remarks and Adjournment

Ms. Semo reminded the subcommittee co-chairs of their homework. She asked the group to give thought to which subcommittees they wish to serve on. Ms. Semo reminded the group of the next meeting on December 10 at 10:00 a.m. EDT. 

Ms. Semo adjourned the meeting at 3:03 p.m.

I certify that, to the best of my knowledge, the foregoing minutes are accurate and complete on December 10, 2020.

/S/ Kirsten B. Mitchell
Kirsten B. Mitchell
Designated Federal Officer, 2020-2022 Term

/S/ Alina M. Semo
Alina M. Semo
Chairperson, 2020-2022 Term

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