September 9, 2021 - Meeting Minutes (Certified)
The (Freedom of Information Act) FOIA Advisory Committee convened at 10 a.m. EST on September 9, 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
- 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, Gibson, Dunn & Crutcher
- 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:
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
- Richard Peltz-Steele, Professor, University of Massachusetts School of Law at Dartmouth
- Sheryas Mallya, Webex Event Producer
Welcome and Updates
Archivist of the United States David S. Ferriero welcomed the group to the fifth meeting of the fourth term of the Freedom of Information Act (FOIA) Advisory Committee and noted that he was joining the group from the National Archives in Washington DC.
Mr. Ferriero noted an important historical moment in American history with the forthcoming 20th anniversary of the September 11 attacks. He noted that the attacks sparked countless FOIA requests to agencies, large and small from the FBI [Federal Bureau of Investigation] and Federal [Aviation] Administration to the State Department and the National Institute of Standards and Technology among many others.
Mr. Ferriero also stated that although the records of the independent and bipartisan 9/11 Commission are not subject to FOIA because the commission was part of the legislative branch, the National Archives has legal custody of the commission's 570 cubic feet of records. While many remain classified, some are the subject of an executive order the president recently signed directing the Justice Department and other agencies to review, declassify, and release documents related to the FBI's 9/11 investigations. Not classified and publicly available online in the National Archives Catalog are summaries of more than 1,200 fact-finding interviews conducted by the 9/11 Commission staff.
Mr. Ferriero stated that as we approach the anniversary of 9/11, he encouraged all to visit the catalog at catalog.archives.gov, to access these and many other permanent records of the US government.
He also noted that since the last FOIA Advisory Committee meeting in June, the National Archives has added to the catalog a harmful language alert to advise users that historical records and their descriptions may contain harmful wording, reflecting outdated, biased, offensive, and possibly violent views and opinions. He stated that the National Archives is working with staff, communities, and peer institutions to assess and update descriptions that are harmful and to establish standards and policies to prevent future harmful language in staff generated descriptions. Mr. Ferriero noted that work is the direct result of the Archivist’s Task Force on Racism he convened in 2020 to identify and recommend solutions to issues stemming from structural racism within the agency. He noted that the Task Force’s final report is available at archives.gov.
Mr. Ferrerio noted that local public health metrics across the nation are forcing the agency to close or cut back on physical access to many facilities to protect the health and safety of visitors, customers, and employees during the ongoing COVID-19 pandemic. He noted that the public is still able to view the Declaration of Independence, the Constitution, and the Bill of Rights to those who reserve time entry tickets on recreation.gov. He then turned the meeting over to Alina Semo.
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 that Committee member Linda Frye is in a new role as acting division director of the Social Security Administration's FOIA team which means Ms. Frye will step down from co-chairing the Process Subcommittee. Alexis Graves will be stepping into the co-chair position with Michael Morisy.
Ms. Semo noted that the Committee had received some comments in advance of today’s meeting and those are posted on the Committee’s website. She stated 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. 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 11:20 a.m. She noted that this is the last meeting for OGIS detailee Kimberlee Ried and thanked her for her contributions to the Committee.
Ms. Semo noted the June 10, 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. In particular, she noted that OGIS recently completed recommendation 2020-14 by publishing an assessment on commonly requested categories of first-party records. The report and three recommendations are available on the OGIS website. She stated that the assessment looks at two broad categories of records that requesters seek about themselves. Those records such as employee and personnel records maintained by all agencies and records that are unique to an agency's mission. She thanked Jennifer Dryer, a NARA staff member who was temporarily assigned to OGIS earlier this year, for conducting the analysis for this report. She also thanked OGIS staff member Christa Lemelin for her work in keeping the dashboard updated.
Briefing on Public Access in the Private Sector
Ms. Semo introduced Professor Richard Peltz-Steele of the University of Massachusetts at Dartmouth School of Law. Professor Peltz-Steele teaches tort law, comparative law and media law, including free speech, access to information, defamation privacy, and copyright. Before joining the law school faculty, he practiced commercial law in Baltimore and Washington, D.C., and taught law for more than 13 years. Ms. Semo noted that Professor Peltz-Steele earned his Bachelor's degree in journalism and Spanish from Washington and Lee University and his law degree from Duke University.
Professor Peltz-Steele noted that he would take the group back to 1791 to look at FOIA and where it comes from within the framework of the Bill of Rights and the First Amendment. He noted confusion about the law with examples such as Branzburg v. Hayes, which held that the First Amendment does not provide a right to newsgathering but then noted exceptions such as Richmond Newspapers, Inc. v. Virginia and Press-Enterprise Co. v. Superior Court of California, which affirmed the public’s right to be present in a courtroom. He noted that since Reconstruction, the US has struggled with acknowledging people's rights that are adversely affected by fellow citizens.
Professor Peltz-Steele stated that FOIA has struggled in the same way in terms of being able to be “horizontally expressed” in a vertical or hierarchical system of laws. He noted that this becomes a bigger issue when private actors are cast as quasi-government and are expected to follow the same guidelines around right of access to information. He stated that one way he and other researchers have examined this issue is through the lens of a power model and that there must be a balance between the power of government and the power of the people.
He stated that during the 20th century, the power dynamic began to shift due to the size of government and laws like the Administrative Procedure Act were put in place as the genesis of FOIA which then led to the concept of structural pluralism as noted by [Professor] Alasdair Roberts. Professor Peltz-Steele noted examples of this such as the emergence of hybrid things, quasi-governmental actors, and the transfer of government authority of government funding, of government functions into a private or quasi private sector. He cited loans as an area in which quasi-private entities are created by public authorities. He stated that “hand-wringing” ensues over how to account for these “quasi” scenarios with regard to transparency and accountability.
Professor Peltz-Steele then noted an example from South Africa that came about after the end of apartheid, known as the Promotion of Access to Information Act (PAIA). The PAIA partly serves to hold oppressors accountable for their actions during apartheid. He noted that this power model is one in which the people or countrymen are reasserting power against the authorities who had taken it away. He also noted two sections within the Act that help further define the right to access of information.
He noted that within PAIA Section 50 there must be a right asserted and then a necessity to produce the record. He stated this is not unique to South Africa, as the African human rights system has now adopted a model law with similar language that has been enacted in five African countries. Professor Peltz-Steele stated he began to examine this issue to see what it will look like on the ground in Africa.
He stated that as a result of this law and the expansive South African Constitution there have been broad applications of the law. Professor Peltz-Steele stated he was interested in how the Western hemisphere can examine this in terms of human rights and where it could be applied as the concept of access in the private sector and transparency for accountability of private actors. He noted this is not a new idea for the US, but rather one that has not been embraced or enforced due to the power imbalance. He stated that he and others continue to examine this issue around bringing this to practical application in the US so there is a framework to say “I need access to those quasi-private or private records because I need to know what happened. I need to know the truth of how this private actor was implicated.”
Ms. Semo opened the floor for questions.
Mr. McClanahan asked how Professor Peltz-Steele envisions this type of law playing out when it comes to litigation? Who would be representing the private entity that someone is trying to get records from through an extended FOIA? Or would it be a private law firm hired by that company? Or would it be the Department of Justice because these could be government adjacent documents?
Professor Peltz-Steele stated that in the PAIA Section 50 there must be a “right” required or an injury suffered which serves as a qualifier. He noted another option could be through an administrative enforcement approach, such as OGIS.
Mr. Susman asked what kinds of information have been obtained from the private sector using this law and recalled that there was a big focus on human rights violations by the private sector as a basis for opening their records. Has that ever been used?
Professor Peltz-Steele agreed that while something may look good on paper its success depends on what is done with implementing it. He noted that few cases have relied on the Section 50 aspects and in some instances the litigation was more trivial and there is literature that indicates that PAIA does not work. He noted that one of the challenges with PAIA is integrating the Act with other transparency mechanisms. He stated that if this type of demand for information is growing across Africa then there is a need for it elsewhere.
Professor Samahon noted that some agencies could feel harassed by some actors and noted that preventing abuses would need to be well articulated.
Professor Peltz-Steele responded that indeed a balance needs to be established to ensure transparency and accountability.
Mr. McClanahan asked a question that he noted might be perceived as rhetorical: he inquired about clarity in litigation versus suing and getting more information through discovery.
Professor Peltz-Steele responded that he thinks a menu of options could be made available to possible requesters to squelch the notion of continuous litigation in these instances.
Ms. Semo thanked Professor Peltz-Steele for his presentation. She transitioned to the Subcommittee Reports.
Legislation Subcommittee - Kel McClanahan and Patricia Weth, co-chairs
Mr. McClanahan turned the presentation over to David Cuillier to discuss work on how OGIS might be empowered to do more than it does now. Professor Cuillier shared that the group is working on examining mediation enforcement models in other states and nations; interviewing a range of people, and gathering data. He stated they would synthesize their findings and plan to share at the December meeting. He noted a group at Yale University is also doing similar research. Last, he noted that [Professor] Margaret Kwoka would be presenting on this issue at the upcoming National Freedom of Information Coalition Summit, September 28-30.
Mr. Blutstein discussed the work being done to examine FOIA fees collected by agencies and noted that the group was looking at whether fees should be delivered from the Treasury to a miscellaneous fund that could either aid OGIS in offering more services or toward establishing a technology fund to improve FOIA operations. He noted that in fiscal year 2020, federal agencies collected $2.1 million in FOIA fees. Last, Mr. Blutstein noted the group was also looking at whether the two free hours of search time afforded to requesters in certain fee categories should be increased by agencies. He also stated the group was looking at whether all fees should be eliminated and if a recommendation should be made.
Mr. Andoh asked if the working group was considering whether vexatious requests would be a part of the fee elimination group for commercial requesters?
Mr. McClanahan stated he felt that agencies should determine for themselves whether a requester is vexatious or not.
In response to a question, Ms. Semo noted that the first recommendation from the current FAC term (Recommendation 2021-01) has been sent to the Archivist of the United States and he accepted the recommendation. She stated that OGIS is working on submitting it through formal channels and is working with OMB to submit it to Congress.
The Committee took a 15-minute break.
Classification Subcommittee - Kristin Ellis and James R. Stocker, co-chairs
Ms. Ellis stated that the Classification Subcommittee is looking at the impact of classification on the FOIA process, the use of particular exemptions to justify withholding national security information, and ways to improve communication between agencies and the public regarding classification. In particular, the subcommittee has been examining the use by federal agencies of the Glomar response, in which an agency neither confirms nor denies the existence of records. The subcommittee surveyed agencies on the use of Glomar, but the responses did not provide a clear baseline.
Ms. Ellis noted that the subcommittee is now looking at whether agencies should use NCND – rather than Glomar – to “neither confirm nor deny” in responding to FOIA requests. She stated they are also looking to possibly recommend that agencies track and report on these types of responses.
Process Subcommittee - Alexis Graves and Michael Morisy, co-chairs
Mr. Morisy reported that the Process Subcommittee was looking at prior recommendations of the Committee and their impact. He noted the subcommittee was working on a survey for the requester community and was examining four key areas, specifically: contractors and privatized data as it relates to FOIA; FOIA fees in collaboration with the other subcommittees; clarity and consistency in request processing; and FOIA processes overall.
Mr. Andoh reported that his working group was looking at first-party requests as they relate to due process and discovery rights provided in the Fifth Amendment to the U.S. Constitution. The group is examining whether records that adversely affect an individual can be made available to the first-person requester without a FOIA request. Ms. Graves noted that the group was looking at agencies that receive large amounts of first-party requests.
Ms. Ellis asked which agencies the team was looking at in their research as she expressed concern related to law enforcement agencies and the challenges that could result. Ms. Graves noted they were looking at immigration related agencies. Last, Professor Cuillier noted that they welcome input on the survey the team is conducting.
Technology Subcommittee - Allyson Deitrick and Jason Gart, co-chairs
Mr. Gart reported that Technology Subcommittee members are examining how online content for FOIA portal websites could be improved and to make the process more transparent. This includes links to descriptions of records held by agencies, information on FOIA fee categories, explanations of the nine exemption categories, a tracking mechanism or status bar, and contact information for FOIA officers and FOIA Public Liaisons. Ms. Deitrick noted that the subcommittee is also looking at how metadata is used and tracked as it relates to FOIA requests.
Ms. Haddad asked for clarification around the term metadata and what that means as it relates to FOIA. She asked if the recommendation was to make metadata available through the FOIA process. Ms. Deitrick clarified that the discussion of metadata was very general in regard to whether any sort of recommendation should be made at all.
Mr. Gart stated that the group was trying to wrap their heads around the potential ramifications of tracking and sharing metadata outside of what the National Archives already requires agencies to track when transferring records to the Archives. Ms. Haddad asked again for clarification on what exactly the type of metadata would be.
Mr. Gart stated it could include things like where a document was created, when it was created, who created it, how it was created, who edited it, vital pathways, etc. Professor Samahon noted additional information could include various edits of the document, when changes were made, etc. Mr. Talebian stated there is case law around some of this issue that could be a starting point for research. Ms. Semo noted that a burden could also be placed on agencies to manage the metadata aspects.
Mr. Talebian asked about the research the subcommittee is doing on websites. He also stated that DOJ/OIP has given consideration to offering advice to agencies on standardizing websites, but that each agency is different and may need to add more information as it relates to their materials and mission and how FOIA is used by requesters. He noted that the DOJ is also excited to work with 18F on improving functionality of FOIA websites.
Ms. Mitchell reminded the group that a prior recommendation pertains to reviewing agency FOIA websites and that the OGIS staff will be putting together an assessment in the next fiscal year.
Robert Hammond asked about OGIS and the ability to increase staffing and funding. He cited examples of challenges in backlogs. Professor Cuillier noted that the working group is looking at how OGIS can be reimagined in terms of increasing resources to manage the request loads.
Martha Murphy noted that comments in the chat not related to the Committee would be handled separately. She noted a question from Mr. Hammond in the chat about posting the names of all attendees, government and non-government, for today’s meeting as the Chief FOIA Officers Counsel has a statute that requires this information be made public. Ms. Murphy stated OGIS would look into this question. She also noted that questions about the accuracy of meeting minutes be sent to the OGIS staff directly; and stated a participant asked about posting the chat log, but that it has not been the practice of OGIS to do so.
Ms. Murphy stated that a question arose about private data that cannot easily be withheld despite the potentially chilling effect. Mr. Talebian noted that the agency in question would be subject to FOIA and able to use exemptions to ensure privacy. He noted that the FOIA counselor service line, 202-514-FOIA, could help answer this type of question as well.
Last, Ms. Murphy noted that Mr. Hammond asked to be included in any surveys being routed to requesters. Professor Cuillier stated they will note his interest along with any others who want to offer feedback.
Ms. Murphy noted a question from Alex Howard who asked if the Technology Subcommittee found FOIA officers are aware of the Open Government Data Act requirements to convert PDFs to structured data. Ms. Deitrick stated they would take it under advisement.
Sean Moulton from Project on Government Oversight (POGO) (and a prior Committee member) asked if the Committee was going to examine or look into the issue of enforcement as it relates to FOIA. He noted the work being done by OGIS and DOJ/OIP to aid in mediation efforts but that there is not a clear enforcement mechanism in place to ensure consistency across agencies in how FOIA is applied. Professor Cuillier stated their group is looking at the issue and would welcome any suggestions to help tackle the issue.
Ms. Semo thanked everyone for attending and noted the next meeting is on Thursday, December 9, 2021, at 10:00 a.m. She indicated the meeting will be virtual.
Ms. Semo adjourned the meeting at 12:55 p.m.
I certify that, to the best of my knowledge, the foregoing minutes are accurate and complete on December 8, 2021.
/s/ Kirsten B. Mitchell
Kirsten B. Mitchell
Designated Federal Officer,
/s/ Alina M. Semo
Alina M. Semo