June 10, 2021 - Meeting Minutes (Certified)
The (Freedom of Information Act) FOIA Advisory Committee convened at 10 a.m. EST on June 10, 2021, virtually.
In accordance with the provisions of the Federal Advisory Committee Act, Public Law 92-463, 5 U.S.C. App. §§ 1-16, the meeting was open to the public from 10 a.m. to 1 p.m. and livestreamed on NARA’s YouTube Channel.
Meeting materials are available on the Committee’s website at https://www.archives.gov/ogis/foia-advisory-committee/2020-2022-term.
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
- 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
- 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, U.S. Environmental Protection Agency
Committee members absent from the meeting:
- Linda Frye, Social Security Administration
- Alexandra Perloff-Giles, Gibson, Dunn & Crutcher
Others present or participating in the virtual meeting:
- David S. Ferriero, Archivist of the United States, NARA
- Kirsten B. Mitchell, Committee’s Designated Federal Officer, NARA
- Martha W. Murphy, Deputy Director, OGIS, NARA
- Sheela Portonovo, Attorney Advisor, OGIS, NARA
- Kimberlee Ried, Public Affairs Specialist/OGIS Detailee, NARA
- Emily Manna, Policy Director, Openthegovernment.org
- Freddy Martinez, Policy Analyst, Openthegovernment.org
- Michelle Ridley, Webex Event Producer
Welcome and Updates
Archivist of the United States David S. Ferriero welcomed the group to the fourth meeting of the fourth term of the Freedom of Information Act (FOIA) Advisory Committee, and noted that he was joining the group from the ancestral lands of the Nacotchtank peoples, which today is home to the flagship building of the National Archives in Washington DC.
Mr. Ferriero noted two important historical moments in American history, the first, June 19, 1865, on which Union troops announced that an estimated 250,000 enslaved Black Americans in Texas were free by executive decree. He stated that among the holdings of the National Archives that have been digitized for online viewing is that decree, General Order Number 3, read by Major General Gordon Granger to the people of Galveston. He noted that June 19 — or Juneteenth — celebrating the emancipation of remaining enslaved Black Americans in Texas reminds us that Black Americans helped build our great nation even when rights and liberties were denied to them.
Mr. Ferriero also noted that June 19 is particularly significant to the National Archives as it was on that day in 1934 that President Franklin D. Roosevelt signed the law establishing the National Archives to centralize federal recordkeeping. The National Archives Act called for “all archives or records” of the U.S. Government, legislative, executive or judicial to be under the charge of the Archivist of the United States. Workers from the Works Progress Administration, a Roosevelt New Deal agency, surveyed federal records nationwide, locating them in basements, attics, carriage houses, abandoned buildings and alcoves with little security or regard for storage conditions.
Today, the National Archives encompasses a nationwide network of Federal Records Centers and presidential museums and libraries in 16 states and the District of Columbia. Like so many other historical and cultural institutions around the world, National Archives facilities have been physically shuttered by the pandemic for nearly 18 months.
Mr. Ferriero noted that the Rotunda at the National Archives in Washington, D.C., has re-opened to the public for timed ticket entry as well as five Presidential Library museums that are open with limited capacity on select days.
He thanked the committee for their work with regard to a draft recommendation to be considered today regarding public access to some legislative branch records. He stated that public access to government records in all branches of government strengthens democracy by allowing Americans to claim their rights of citizenship, hold their government accountable, and understand their history so they can participate more effectively in their government.
Committee Chairperson and OGIS Director Alina Semo welcomed the group and thanked them for attending. She welcomed Kirsten Mitchell, the Designated Federal Officer, and expressed her gratitude to the Committee for continuing to study the FOIA landscape. In addition, she noted the absence of FOIA Committee Members Linda Frye and Alexandra Perloff-Giles and dispensed with a roll call.
Ms. Semo stated that Patricia Weth has changed agencies from the National Labor Relations Board (NLRB) to the Environmental Protection Agency (EPA) and the Archivist has re-appointed her to the Committee.
Ms. Semo noted there would be time at the end for public comments via Webex and the YouTube chat function; noted that meeting materials and other related information are available on the OGIS website; and invited the public to email comments to email@example.com. Previously received comments have been posted to the website. She noted that the transcript and video will be available after the meeting.
She asked that FOIA Advisory Committee members raise their hands to speak and identify themselves by name and affiliation when talking or use the “all panelists” chat function as appropriate. She stated that OGIS staff would monitor for non-verbal cues in the virtual format and noted there would be a 15-minute break at approximately 11:30 a.m.
Ms. Semo noted the March 3, 2021, FOIA Advisory Committee Meeting minutes have been posted to the website. She also stated that since the last meeting two prior FOIA Advisory Committee recommendations have been completed. Ms. Semo noted the FOIA Advisory Committee Recommendations Dashboard has been updated accordingly.
Ms. Semo also stated that OGIS has launched five cross-training programs in which staff from other NARA offices have been assigned to OGIS part time to work on completing past FOIA Advisory Committee recommendations. Those projects include compiling briefing material for new senior leaders, working with OIP and NARA's records management experts on updated training material, reviewing information agencies make available on their websites about the FOIA filing process, and reviewing agency performance plans to see if FOIA is included. She noted that work continues and the OGIS team will share the results when they are ready. Last, she reminded the Committee to check out the FOIA Ombudsman blog, where you can learn more about individual members of our Committee
Briefing on Legislative Reform Efforts
Ms. Semo introduced Emily Manna and Freddy Martinez from Open The Government.org. Ms. Manna began by explaining the work of Open the Government and its focus on government accountability. She noted the organization has been working with a coalition which was formed from the 2016 FOIA Improvement Act and whether agencies were following the policies. She noted that there may be a FOIA reform bill forthcoming from the coalition and that Open The Government is pushing for an increase in FOIA resources across the government.
Ms. Manna noted three key recommendations that Open The Government is studying: 1) preventing over-redaction and improper withholding of information; 2) minimizing delays and improving efficiency; and 3) protecting and strengthening fiscal and corporate transparency.
She spoke to the first area of preventing overredaction and improper withholding of information and noted the reforms that Open The Government have isolated include narrowing of Exemption 7(F) to prevent agencies from withholding law enforcement information based on a nebulous idea of potential harm from disclosure. Next she addressed minimizing delays and improving efficiency by noting their goal is to work on providing FOIA officers access to electronic record keeping systems as well as requiring agencies to proactively disclose certain categories of records.
Last, Ms. Manna noted that in regard to protecting and strengthening fiscal and corporate transparency, Open The Government has a recommendation related to Exemption 4 that is a response to the Argus Leader Supreme Court decision as well as a recommendation to apply FOIA to the records of private prisons and detention centers contracted by the federal government. She stated this is something that would certainly be an uphill battle in terms of FOIA legislation and getting it through the Senate in particular. She noted Open The Government feels strongly that applying FOIA to private contractors is really the next frontier of FOIA as she stated approximately 40% of federal government work is done by private contractors. And so if FOIA does not apply to 40% of government work, then that's a significant weakness in the law.
Ms. Manna noted one other item that Open The Government is examining is giving OGIS the authority to order release of records as a part of its services. Ms. Manna stated there is an appropriations piece that Open The Government is examining; and there is interest from Congress in looking at the data around staffing and resource needs.
Mr. Gart asked about how applying FOIA to government contractors would work.
Ms. Manna noted it would be thorny around records access issues and will be a long road, however the private prison industry is a place to start in terms of looking at access to more records as folks on both sides of the aisle see it as a core government function. She stated the record of a private contractor fulfilling a contractor requirement would be an agency record available and subject to FOIA.
Mr. Martinez noted that at state levels this is already being done as contractor records are available under state access laws. He also noted that across the country many states treat core government functions as subject to FOIA. In other words, there is a catch up needed of FOIA best practices at the federal level compared to the states. Mr. Martinez stated that Open The Government believes there should be a mechanism by which either the Chief FOIA Officer or someone in conversation with the Chief FOIA Officer, maybe the Chief Information Officer, should be able to put together a joint proposal for a modernization budget to include items like e-discovery tools, records management, etc.
He also spoke about the need for public interest balance tests and noted that the foreseeable harm standard has not been implemented in a significant way. Mr. Martinez stated Open The Government thinks there should be a subset of public interest that outweighs exemptions, e.g., news media interest, protecting the life of individuals, etc. should override the potential to exempt information.
Mr. Martinez also noted the Exemption 4 Argus Leader decision and the interest in reverting to the National Parks standard that was upended by the Argus Leader decision. He noted interest on the Hill in legislation, specifically the Open and Responsive Government Act (Senate Bill 742 in the current term), which attempts to clarify congressional intent.
Mr. Martinez stated they want to restore the substantial competitive harm that comes out of the exemption as the records should be maintained and treated as confidential only if they are both actually and customarily kept secret within both the company and in the industry. He expressed concern in which government agencies are withholding records on the basis that they are confidential because the agency defers to private businesses and “takes their word for it” without doing analysis. Mr. Martinez cited a Department of Labor example in which workplace injury reports were treated as trade secrets for the purposes of FOIA. He noted there is a need for a mechanism to restore the idea of a substantial competitive harm that would arrive from the release of a business’ records as well as a need for analysis of what is confidential and what is commercial.
Mr. Martinez noted that the improper withholding of information is also an area of concern as it relates to Exemption 7(F) which is used frequently in government. He stated that Open The Government thinks it has been expanded beyond what was intended by Congress and its use should be limited to things like active law enforcement investigations. Finally he noted concerns about expanded access to electronic records. He stated one of the recommendations Open The Government is making is that FOIA officials be given direct electronic access to the records that they would ultimately be reading, searching, redacting and releasing. The intent would be to reduce the time involved in which a FOIA officer will go to a subject matter expert, maybe two or three or four times, ask them to search for records, and then ultimately release both records. He noted this was a major inefficiency in the government.
Mr. McClanahan asked if there was any reason why an agency could not go ahead without statutory reform and noted in a contract that a contractor should make their records available to the agency in the instance of a FOIA request.
Ms. Manna responded that many agencies already do that as many contracts have such a provision in place.
Mr. Samahon asked about unpredictability around the foreseeable harm standard and if agencies may inadvertently err on the side of over-redaction which would later lead to more litigation in the courts.
Ms. Manna noted that adding this to the foreseeable harm standard would help add clarity rather than more ambiguity as agencies are already erring. Mr. Martinez noted courts already know how to deal with this concern and have the ability to flex muscles if necessary.
Mr. Samahon noted that any time ambiguity is written into the statute it creates pockets of cost for requesters. He stated bright line rules could help with this issue.
Ms. Manna noted that increased disclosure could help with this concern.
Mr. Stocker asked if Open The Government had done a study around the role of public interest foreseeable harm determinations. And he asked who carries the burden on articulating the level of public interest.
Ms. Manna said no study has been done thus far. She noted the burden is on the agency.
Mr. McClanahan asked how Open The Government would propose specifying that the public interest could not be defeated by the existence of the exemption.
Ms. Manna stated she would leave that to litigators.
Ms. Semo noted a comment that was received which she read aloud. “There may be value (this is to the appropriations issue Freddy that you talked about earlier), there may be value in re-channeling FOIA fees towards OGIS, which could help provide a secure, and additional source of funding.”
Mr. Samahom asked further about public interest and noted that it has been relatively limited.
Ms. Manna stated that Open The Government is trying to specify further rather than broaden definitions.
Ms. Semo thanked Ms. Manna and Mr. Martinez for their time and presentation. She transitioned to the Subcommittee Reports and noted that each subcommittee’s mission statements have been posted on the OGIS website.
Legislation Subcommittee - Kel McClanahan and Patricia Weth, co-chairs
Ms. Weth noted that the Legislative Subcommittee has three working groups. She turned it over to Mr. Blutstein, who noted one new FOIA idea the fee working group is examining, in partnership with the Process Subcommittee, is whether ordinary requesters should receive free research time and limited free services. He noted one agency has taken this route, the Consumer Financial Protection Bureau, and their regulatory change has increased efficiency. It is unclear whether Congress would support this, so Mr. Blutstein noted they will continue their research.
Mr. Schwarz spoke in regard to the funding working group and their work in regard to funding FOIA operations. He noted research that has been completed around appropriations bills. Mr. Schwarz stated he is going to look at state and international examples of FOI funding.
Mr. Susman presented a proposed draft recommendation for the FOIA Advisory Committee. He noted that the Subcommittee focused on making this recommendation about how FOIA is applied to judicial and legislative branches. Mr. Susman stated this is focused on legislative access and that it is intended to look at congressional support offices, not Congress itself or individual offices or committees.
The recommendation states: Congress should adopt rules [or enact legislation] to establish procedures for effecting public access to legislative branch records in the possession of congressional support offices and agencies modeled after those procedures contained in the Freedom of Information Act. These should include requirements for proactive disclosure of certain information, procedures governing public requests for records, time limits for responding to requests, exemptions to be narrowly applied, and an appeal from any initial decision to deny access.
Mr. Susman noted the proposed recommendation looks at proactive disclosure, procedures around requesting materials, and the time limits with exemptions narrowly applied. He stated that there was not a judicial review suggested and that this will be the first recommendation to apply a FOIA-like process to the legislative branch.
Ms. Semo invited the Committee to comment and noted a vote would be taken. She stated the phone lines would also be opened for public feedback.
Mr. McClanahan noted a point of clarification around judicial review. He stated that the Subcommittee had a robust conversation around that and decided not make a suggestion around judicial review.
Mr. Samahon asked about the speech and debate clause in the U.S. Constitution as it relates to this recommendation.
Mr. Susman noted a recently decided case from the D.C. Circuit Court [Judicial Watch v. Adam Schiff, Case No. 19-03790 (D.C. Cir. June 4, 20201)] in which James Valvo sued Congress under common law right of access to get records from the House Intelligence Committee. Mr. Susman noted that the Circuit Court discusses the speech and debate clause and appears to interpret it broadly.
Mr. McClanahan also cited another recent issue around the speech and debate clause in which a court refused to issue a summons.
Mr. Stocker asked about exempt information as it relates to congressional transparency. For example, the Office of Congressional Ethics answers members' questions around what they are allowed to do, etc., and Congress and their staff have an expectation of privacy with regard to these conversations. Mr. Stocker asked if Congress would need a whole new category of exemptions.
Mr. Susman stated some of these can be answered by looking to see if there is an executive agency that is similar or mirrors the legislative branch and apply FOIA accordingly and in the same way.
Mr. McClanahan also noted that FOIA exemptions are supposed to be read narrowly but often are read broadly.
Ms. Ellis noted parity is key to being able to protect executive branch records. She noted it is often mirrored in state and local arenas, too.
Mr. Gart asked if the Subcommittee had reached out to the Advisory Committee on the Records of Congress. He noted Mr. Ferriero is a member of that Committee and asked if they had any thoughts or feedback.
Mr. Susman stated they had not reached out and that it would be a good idea. He noted that the other advisory committee focuses on record keeping and archives management.
Mr. Stocker asked who would be the ultimate arbiter around this recommendation in Congress.
Mr. Susman stated the arbiter ideally would be an independent entity within the legislative branch, headed by Congress itself.
Mr. Gart stated that the Library of Congress (LOC) does not serve a public function as its purpose is to serve Congress. He noted the same with the Congressional Research Service (CRS), as it is intended to serve Congress as a part of their internal work but that CRS reports are publicly available. Mr. Gart questioned whether this would improve the functioning of Congress by allowing requesters to FOIA the information.
Mr. Susman stated that the mantra “they are out there somewhere” is not a fair way to share the information. He noted the costs still come out of taxpayer dollars and that many legislative offices exist to support the executive branch so access provisions should apply.
Mr. McClanahan said this is intended to help Congress function more effectively and know what the government is doing.
Ms. Semo noted from the chat function Daniel Schuman has offered to make some comments.
Mr. Schuman stated that inside the legislative branch, FOIA is applied to the Copyright Office itself, although no other support offices or agencies, but there are several support offices or agencies that follow a FOIA-like process. They generally follow similar rules that FOIA applies with respect to the support offices and agencies. He stated having more proactive disclosure with respect to the operations of the support offices and agencies would be welcome.
Mr. Schuman also noted he has attended all the meetings of the Advisory Committee on the Records of Congress and this has not been a matter that has come up as it tends to be more focused on the archival functions of member records when they retire. He stated that the Government Accountability Office (GAO) has an effective appellate process and could be a model for oversight or appeals of decisions pertaining to access of congressional records. He noted his appreciation for the Committee’s work on this effort.
The Committee took a 10-minute break.
Ms. Semo outlined the voting procedures.
Mr. McClanahan moved to approve the recommendation; Ms. Weth seconded the motion. He noted the request to remove the brackets around the terms “or legislation.” Motion carried unanimously. Mr. Talebian and Ms. Semo abstained from the vote. Vote was 16-0, with two abstentions and two Committee members absent.
Mr. McClanahan noted his thanks for the affirmative vote.
Process Subcommittee - Linda Frye and Michael Morisy, co-chairs
Mr. Morisy noted the Process Subcommittee’s work has been in coordination with the other Subcommittees. He stated they are working on wrapping up examining the impact of prior recommendations and that the Process Subcommittee is aiming for an informal draft report soon. He noted they are starting to move to the next round of recommendations and identify key process- related areas they want to address.
Technology Subcommittee - Allyson Deitrick and Jason Gart, co-chairs
Ms. Deitrick noted that the Technology Subcommittee revised its mission statement which now reads: “Our mission is to prepare baseline standards and best practice recommendations to ensure that federal agencies have up-to-date access and impartial information on the functionality and operations of technology-driven solutions to ensure that the selection and implementation of new FOIA tools meet current and future needs of federal agencies and the requester community.”
Ms. Deitrick noted that the Technology Subcommittee has worked over the last nine months to hold discussions with agency representatives to learn more about the technology within the FOIA offices and what would be helpful in improving request processing. The Technology Subcommittee was considering recommendations about what electronic discovery could look like as part of their work; however Ms. Deitrick noted there is quite a bit of discrepancy between various agencies’ needs across the federal government. The Technology Subcommittee has now turned its focus toward devising recommendations on the following areas: best practices for the content of agency FOIA websites; releasing records in a standardized way, such as native CSV versus a PDF of a spreadsheet; using technology to increase proactive disclosure, and FOIA logs with minimal fields of information; and creating a centralized repository across agencies.
Classification Subcommittee - Kristin Ellis and James R. Stocker, co-chairs
Mr. Stocker spoke about the Classification Subcommittee’s research around Glomar responses in which an agency neither confirms nor denies that an agency has any documents that are responsive to a FOIA request. He noted that a challenge in addressing Glomar is understanding its scope across the government as Glomar usage has expanded over time and agencies are not required to report about their use of Glomar.
Mr. Stocker noted that the Classification Subcommittee distributed a questionnaire regarding the use of Glomar to 23 agencies and offices with a deadline of July 15 for response. Participation is voluntary. The subcommittee asked about agency practices regarding automatically issuing Glomar responses in regards to all or certain types of FOIA requests; whether and how agencies track the number of Glomar responses they issue; data about the number of Glomar responses and appeals of those responses agencies issued between 2015 and 2020; litigation regarding Glomar responses to FOIA requests in that same time period; templates that agencies use for Glomar responses; whether agencies make Glomar responses and/or guidance available to the public, any guidance regarding Glomar responses, etc.; and whether a representative from the agency's FOIA office would be willing to have a follow-up conversation about their use of Glomar responses.
Mr. Stocker stated that the Classification Subcommittee is hopeful that in follow-up conversations, the subcommittee can clarify any responses that were potentially incomplete or not fully responsive to the question. He noted that after the questionnaire results were received the Subcommittee will process them and share with the FOIA Advisory Committee.
Ms. Murphy noted two comments received from Alex Howard. He stated that almost five years ago, the Department of Justice(DOJ) received comments on a proactive disclosure policy and civil society groups responded, encouraging adoption. He asked what is the status of this policy at the DOJ Office of Information Policy (OIP). He asked why it has not been considered and implemented.
Mr. Talebian noted the policy regarding proactive disclosure was still under discussion and is something the DOJ is still focused on as they know that the more records provided to requesters proactively is a way of increasing government transparency and improving FOIA processes. He stated that the Department has long encouraged proactively releasing records beyond those required by FOIA and they are still asking agencies to report on it and aiming to implement strong disclosure policies. Mr. Talebian also noted the department is excited to work with the General Services Administration on the idea of a centralized FOIA search function of all FOIA libraries.
Mr. Howard also asked what happened to the FOIA Cross Agency Priority (CAP) goal.
Mr. Talebian noted that the CAP goals were established a number of years ago to promote two initiatives. One was the launch of the centralized FOIA website, the national portal, FOIA.gov and the other was to look into the increased promotion of proactive disclosures policy. He noted the portal work has been completed and work continues on its interoperability. He stated the work on proactive disclosure policy is still being examined.
Robert Hammond asked if the OGIS office was monitoring the comments on Webex and the YouTube channel and indicated some technical issues. Ms. Semo stated she would check on it.
Mr. Hammond also asked about an opportunity to present slides. Ms. Semo noted they had been posted on the OGIS website. Mr. Hammond asked if he could present at a future meeting with slides. Ms. Semo said she would take it under consideration.
Mr. Talebian noted his office will continue to work with Mr. Hammond about his concerns. Mr. Hammond asked about public responses to his questions. Mr. Talebian noted OIP has responded. Mr. Hammond noted that he would again like to brief the group on a presentation.
Mr. Hammond further noted he submitted additional public comments and did not see them posted on the OGIS website. He noted emails dated May 13 and June 4 around violations of the ADA and FOIA Redactions that are not 508 compliant. He asked if the DOJ/OIP will issue an advisory opinion.
Ms. Semo noted that OGIS is aware of the issue and that the FOIA Advisory Committee is not designed to discuss individual requests.
Mr. Hammond noted another question about the Department of Defense change to 32 CFR Part 286.4 that states participation in alternative dispute resolution is optional. Mr. Hammond stated this is contrary to the FOIA statute. Ms Semo noted OGIS would respond privately to Mr. Hammond about the issue.
Ms. Murphy noted Amanda Tempel shared two items in the chat and that she will share them with the FOIA Advisory Committee. The first item directs everyone to the OGIS issue asessment, Methods Agencies Use to Prepare Documents for Posting on Agency Freedom of Information Act (FOIA) Websites; and the second refers everyone to the Chief FOIA Officers Council Technology Committee working group that is looking into 508 compliance. Ms. Murphy noted these links in the chat.
Ms. Semo thanked everyone for attending and noted the next meeting is on Thursday, September 9, 2021, at 10:00 a.m. Mr. Wagner asked if the next meeting would be in person or virtual. Ms. Semo stated virtual.
Ms. Semo adjourned the meeting at 12:50 p.m.
I certify that, to the best of my knowledge, the foregoing minutes are accurate and complete on September 7, 2021.
/s/ Kirsten B. Mitchell
Kirsten B. Mitchell
Designated Federal Officer,
/s/ Alina M. Semo
Alina M. Semo
Federal FOIA Advisory Committee