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December 09, 2021 - Meeting Minutes (Certified)

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The (Freedom of Information Act) FOIA Advisory Committee convened at 10 a.m. EST on December 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 live-streamed 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.  

The Freedom of Information Act (FOIA) Advisory Committee convened virtually at 10 a.m. ET on December 9, 2021.

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 live-streamed 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
  • Kel McClanahan, National Security Counselors
  • Michael Morisy, MuckRock 
  • Alexandra Perloff-Giles, Gibson, Dunn & Crutcher
  • Tuan N. Samahon, Villanova University (joined late at approximately 11:30 am ET)
  • Matthew Schwarz, U.S. Environmental Protection Agency
  • Dione J. Stearns, Federal Trade Commission
  • 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:

  • none

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
  • Amy Bennett, Department of Homeland Security, public commenter
  • Alexander Howard, Demand Progress Educational Fund, public commenter
  • Freddy Martinez, Open the Government, public commenter
  • Robert Hammond, public commenter
  • Michelle Ridley, Webex event producer

Welcome and Administrative Updates

Archivist of the United States David S. Ferriero welcomed the Committee and the public to the sixth meeting of the fourth term of the Freedom of Information Act (FOIA) Advisory Committee and noted that he was joining from the National Archives in Washington DC.

Mr. Ferriero welcomed new Committee member Dione Sterns of the Federal Trade Commission filling the vacancy left by the resignation of Loubna Haddad of the Defense Intelligence Agency.  Mr. Ferriero invited those in attendance to visit the National Archives’ FOIA Reading Room at Archives.gov to access presidential records released related to the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol and the Task Force on Racism. He invited those in attendance to watch the National Archives November 18, 2021, event with former FOIA Advisory Committee member Professor Margaret Kwoka, discussing her book, Saving the Freedom of Information Act, and interviewed by current Committee Member Tom Susman.

Mr. Ferriero 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 thanked the Committee for their commitment to studying the FOIA landscape, and welcomed new Committee member Dione Sterns of the Federal Trade Commission. Ms. Semo offered her thanks to Loubna Haddad for her service to the Committee and her work on the Classification Subcommittee.

Ms. Semo stated that they had received several written comments prior to the meeting and had posted them in accordance with the Committee’s policy for public comments and Section 508 of the Rehabilitation Act. She invited Committee members to review the public comments.

Ms. Semo invited the public to email extensive comments to foia-advisory-committee@nara.gov rather than submit them via the chat function in Webex or on the NARA YouTube channel. She stated that OGIS had received a request to post a list of all who attend FOIA Advisory Committee meetings and decided to reject the request. She noted that the FOIA statute requires that meeting minutes for Chief FOIA Officer Council meetings must contain a list of persons present. There is no such statutory requirement in either FOIA or the Federal Advisory Committee Act under which the Committee operates or in the Government in the Sunshine Act. She also noted that meeting materials for this term, along with members’ names, affiliations and biographies were available on the Committee's web page.

Ms. Semo called for a motion to approve the September 21, 2021, FOIA Advisory Committee meeting minutes.

Action Item: James R. Stocker moved to approve the September 21, 2021 minutes. Kristin Ellis seconded. Motion carried unanimously.

Discussion of Classification Subcommittee Draft Recommendations

Kristin Ellis and James R. Stocker, co-chairs

Classification Subcommittee co-chair Kristin Ellis reported that the Committee studied and submitted draft recommendations regarding Glomar responses mostly related to national security cases. Ms. Ellis thanked Kirsten Mitchell, Alina Semo, Christa Lemelin, and Bobby Talebian for their comments and input on the draft, and Kel McClanahan and James R. Stocker in drafting the recommendations.

Mr. Stocker noted that while Glomar responses are generally accepted in the requester community, there is skepticism in how the responses are used. He reviewed the four recommendations drafted by the Subcommittee:

Recommendation 1: That the Office of Information Policy (OIP) issue guidance to government agencies that they use the internationally recognized nomenclature of “neither confirm nor deny,” NCND, to refer to Glomar responses.

Mr. Stocker stated that the common term, Glomar, used to describe these responses is problematic since it specifically refers to Exemption 1 related to national security and many Glomar responses are tied to other FOIA exemptions. He also noted that the term is also not widely understood by ordinary people.

Mr. Stocker stated that the Subcommittee recommended the phrase “neither confirm nor deny” be substituted in place of Glomar in official responses.

Recommendation 2: That OIP require standardized tracking and reporting procedures for “neither confirm nor deny” responses.

Mr. Stocker stated that the Subcommittee further recommended that government agencies should be required to annually track the number of NCND responses, whether those NCND were in part or whole, and which FOIA exemptions were cited in the responses. They also recommended that the Department of Justice maintain annual aggregate data of NCND responses across all federal agencies.

Mr. Stocker stated that Congress does not currently require agencies to track and report NCND responses and the DOJ recommends that NCND be reported as full denials. He stated that there was the widespread impression that NCND responses were increasing across all levels of government, commonly referred to as “Glomar creep.” He stated that tracking NCND responses would provide the public a better understanding of NCND trends and use.

Recommendation 3: That government agencies provide information to requesters on their websites regarding circumstances that will likely result in an NCND response.

Mr. Stocker noted that some agencies, such as the CIA, already provide this information on their websites. He added that the Subcommittee suggested that agencies provide this information in plain language, ideally in a FOIA reference guide.

Recommendation 4: That the Archivist of the United States direct a relevant organization to conduct a review of the use and practice of NCND responses across government and formulate a set of recommendations to ensure that these responses are being used in a manner consistent with the goals of the Freedom of Information Act.

Mr. Stocker stated that the Classification Subcommittee conducted a survey of agencies that frequently issue NCND responses. The survey received a small number (six mostly incomplete responses).  He noted the goal of a larger review of NCND practices across government would be to determine current NCND practices and expansion of NCND responses over time and review appropriate reporting practices.

Mr. Stocker noted that the investigatory body should make recommendations addressed to Congress and the executive branch that ensure that NCND responses are used in a manner consistent with the goals of FOIA, implement reporting requirements, and direct agencies to use NCND responses only when necessary.

Ms. Semo thanked Mr. Stocker for his presentation.

Mr. Talebian stated that more data on the use of Glomar would be helpful and that under the current reporting requirements, Glomar responses fall under “full denials.” He also noted that there are instances when an agency knows in advance that a fact is exempt from disclosure without having to conduct a search for records.

Mr. Talebian asked if there were any thoughts about the agencies’ internal use of the term Glomar.

Mr. Stocker stated that there is still some question about how partial Glomar responses are reported and clarified that the goal of the recommendation was to ensure consistent and better reporting. He also noted that there is an impression that it is easier for agencies to issue a NCND response than to conduct a records search.

Mr. McClanahan stated that it is difficult for requesters to know if an agency is providing a blanket Glomar response based upon the type of request and to quantify how widespread NCND responses are across government without better reporting requirements. 

Mr. Talebian reiterated that he believes additional data would be helpful.

Mr. Blutstein thanked the Subcommittee for its recommendations and stated that he did not find use of the term Glomar problematic and that he was not sure if agencies should be offering advice on how to circumvent exemptions. He added that he is unsure whether special treatment is warranted for Glomar responses  vis-a-vis reporting on the number of Glomar responses that have not been affirmed on appeal or not upheld by a court in litigation

Mr. McClanahan stated that the reason for including the number of Glomar responses not upheld by a court or on appeal in the recommendations is because of the belief that Glomar responses are being abused and that more data would assist in reforming the issue.

Mr. Talebian noted that OIP reviews every case decision and provides summaries of decisions by topic including Glomar decisions.

 Mr. Gart noted that Glomar was the name of the exploration vessel, not the Soviet submarine which the vessel sought, and asked how a future investigatory body might get a better response from agencies.

Mr. Stocker suggested that attorneys may be more attached to the term Glomar since it is frequently referenced in legal cases. He also suggested that it be mandatory for agencies to comply with whatever organization is directed to conduct a review of the use and practice of NCND responses across the government. 

Mr. McClanahan stated that there is variation among agencies in guidance about FOIA exemptions and provided an example of requesting records related to a former Stasi (East German secret police) officer versus the police force itself; the former resulted in a Glomar response, the latter did not, he said.

Mr. Susman asked whether it is possible to determine which exemption was used in a Glomar response.

Ms. Ellis responded that Glomar litigation does not exist on its own and is a unique way of asserting a FOIA exemption.

Mr. Morisy thanked the Subcommittee for their work and observed immense confusion and uncertainty around Glomar even by experienced FOIA requesters. He stated that he supported the Subcommittee’s recommendations, particularly with regard to improving Glomar language, and reporting about Glomar responses. 

Mr. McClanahan noted that there is a distinction between categorical exemption and a Glomar response.

Ms. Weth expressed her support for the Subcommittee recommendations regarding language and clarifying guidance on agency websites, but stated that she agreed with Mr. Blutstein regarding reporting on Glomar responses that have not been affirmed on appeal or not upheld by a court in litigation.

Mr. Stocker stated that the Committee may want to consider emphasizing the standardization of language for reporting requirements to have a better understanding of NCND.

Mr. McClanahan stated that if agencies were currently tracking partial or whole NCND responses there would be no need for the recommendation.

 Mr. Talebian stated that the reporting recommendation was not specifically tied to agencies’ FOIA Annual Report and that a better place for reporting on Glomar might be the annual Chief FOIA Officer reports.

Ms. Semo asked the co-chairs Mr. Stocker and Ms. Ellis if they were ready for a vote on the Subcommittee’s recommendations.

Mr. Stocker recommended the Subcommittee meet to review the Committee’s comments before a vote.

The Committee took a 12-minute break. 

Discussion of Technology Subcommittee Work

Allyson Deitrick and Jason Gart, co-chairs

Mr. Gart reported that since the last full Committee meeting in September, the Technology Subcommittee had worked on two recommendations to the Committee. The first recommendation is that FOIA websites should have baseline features that include: a listing of the types of records maintained by the agency that are linked to record schedules and Capstone policies, guidelines for FOIA request best practices, and examples of requests that would be considered burdensome to the agency. He noted that with the recent announcement that the EPA will be retiring FOIAonline, [the FOIA platform used by 20 FOIA programs], there may be an opportunity for the Subcommittee to draft basic functionality recommendations for commercial developers. He stated that the second recommendation the Committee is working on is a set of best practices regarding release of records in standardized ways.

Ms. Semo asked if there were any further questions and stated she was looking forward to their recommendations at the March 2022 meeting.  

Discussion of Process Subcommittee Draft Recommendations

Alexis Graves and Michael Morisy, co-chairs

Ms. Graves introduced and thanked members of the First-Person FOIA Working Group and former member Professor Margaret Kwoka’s research, which served as a framework for the group’s recommendations. Ms. Graves noted that the working group started with a prior Committee recommendation that OGIS and OIP identify records frequently requested under FOIA and the Privacy Act by individuals seeking records about themselves.

Ms. Graves noted that the working group built on that work by taking a deeper dive into the agencies identified by Professor Kwoka as having the largest number of first-person requests and that the agencies have been working on steps to facilitate access to records. She noted that both the IRS and SSA have created processes that facilitate access to information by first-person requesters outside of the FOIA process. Records that fall into these categories include an individual’s tax transcripts or application for a Social Security card.

Ms. Graves stated that USCIS Alien-files (A-Files), the collection of records that document a person’s journey through the immigration process, are among the government’s most-requested first-person record, and USCIS has taken steps to reduce its backlog following a 2019 class-action lawsuit. Following the lawsuit, USCIS was ordered to submit compliance reports on processing A-file requests. Ms. Graves noted that USCIS had reported a reduction in its A-File backlog from 21,297 to 244.  The working group asked USCIS to consider a non-FOIA alternative for A-File FOIA requests.

Ms. Graves stated that the working group also spoke with the Executive Office for Immigration Review (EOIR) regarding the processing under FOIA for first-party requests for Records of Proceedings (ROP). Ms. Graves reported that EOIR was in the process of implementing an electronic system, ECAS, to facilitate the processing of ROP requests.

The group’s first recommendation is that records relied on by any agency that affect eligibility for benefits or adversely affect an individual in proceedings should automatically be made available to that person under a non-FOIA process.

 Ms. Graves noted the working group’s second recommendation is that record access should not discriminate against pro se parties who do not have an attorney representing them.

Ms. Graves stated the working group’s third recommendation is that agencies use technology to make it easier for individuals to make first-person requests outside of FOIA.

 Ms. Graves stated the working group’s fourth recommendation is that agencies that receive many first-person requests should identify these records and develop procedures that facilitate customer service and access.

Ms. Graves stated the working group’s fifth recommendation is that agencies should consider costs and benefits of proactive systems for record disclosure modeled on the systems used by the IRS and SSA.

Mr. Stocker thanked the working group for its recommendations and asked if it could go into more detail on recommendation two and recommendation four.

Mr. Talebian suggested that the working group consider the challenges to implementing their recommendations such as record review and the cost of processing the records even if outside the FOIA process.

Mr. Blutstein noted that the recommendation regarding records relied on by any agency that affect eligibility for benefits or adversely affect an individual in proceedings may be too broad and sweeping for all government agencies and should be targeted to specific agencies.

Ms. Weth stated that some agencies could release more records if they changed their regulations. 

Ms. Deitrick asked if the working group had considered the impact of the CASES Act requiring certain information requests to be released electronically. Ms. Graves said the working group would revisit that issue.

Mr. Morisy stated that building electronic systems with standardized methods of requesting and releasing information has been a known issue and that the public demands more from government.

Mr. McClanahan noted that requesters often receive records with varying redactions depending on whether the records were requested via FOIA or as first-person requests.

Mr. Talebian stated that he also wanted to see improvement but would like the Committee to consider the challenges agencies face in implementing changes.

Mr. Morisy noted that the Committee recognizes the challenges faced by agencies.

Ms. Semo turned to a comment regarding the recommendation.

Amy Bennett of the DHS Privacy Office thanked the Committee for its recommendations but noted that the recommendations did not consider the unique nature of A-files. A-Files are in the legal custody of USCIS but can contain records from multiple agencies, law enforcement, and national security officials, she said. Ms. Bennett also noted that the IRS and SSA models cited by the Committee would not be feasible for A-files as they still require review for national security and other sensitive information prior to release. She noted that the recommendation to move A-file requests outside the FOIA office could lead to poorer customer service. Finally she said that USCIS has a special team, the Significant Interest Group, that processes non-A-File FOIA requests, and that FOIA performance metrics make it clear that ignoring large FOIA complex FOIA requests is not acceptable.

Ms. Perloff-Giles asked what percentage of A-files are redacted prior to disclosure.

Ms. Bennett responded that virtually all A-files require redactions before release.

Ms. McClanahan noted that he has observed that it is not safe to assume that all A-file redactions are valid, particularly related to Immigration and Customs Enforcement (ICE). He also noted that resources are an issue whether the records are processed within or outside the FOIA process.

Ms. Bennett agreed that redactions are frequently challenged in court and added that DHS strives to be a good steward of the public’s resources and that more funding will not necessarily solve long-term issues.

Mr. Andoh clarified that the working group is not recommending that A-files as a whole should be considered for an alternate process but specific records within A-files should be identified for such a process.

Ms. Bennett responded that USCIS has already done a lot of work in that area and that is not how the recommendation is currently written.

Mr. Samahon stated that there are other countries, such as Estonia, that have moved to electronic record systems and that offer alternatives to the current A-file system. 

Ms. Semo thanked the Subcommittee for their work and the thoughtful comments.

Discussion of Legislation Subcommittee Work

Kel McClanahan and Patricia Weth, co-chairs

Mr. Wagner provided an update on a survey he and David Cuillier conducted of FOIA requesters that would be of interest to the Legislation Subcommittee. He stated that the survey was in its second phase and open to all requesters and suggested that members distribute it to interested individuals that submit FOIA requests at the local, state, and federal levels.

Ms. Semo asked if there was a deadline for the survey.

Mr. Wagner responded that the survey deadline was December 13, 2021.

Mr. Cuillier stated that he was working on examining FOIA models across the world that might offer ways to improve the US FOIA system. He noted that OGIS is critically understaffed and that similar offices in other countries have more authority and independence from the executive branch.

Ms. Semo thanked Mr. Cuillier and the other Subcommittee members for their update and opened the meeting to public comments.

Public comments

Alexander Howard thanked the Committee for its work and noted that he was concerned about the sunsetting of FOIAonline and suggested that websites such as data.gov could serve as a model for online FOIA disclosure.

Mr. Talebian noted that they were currently working on many of the issues raised by Mr. Howard.  

Freddy Martinez stated that he was surprised by the lack of a commitment to transparency in FOIA by the current White House administration. He expressed a wish that the Office of Management and Budget (OMB) would implement the recommendation of adding budget lines for FOIA offices.

Mr. Talebian thanked Mr. Martinez for his comments and stated that his office fully supports furthering the purpose of FOIA.

Robert Hammond stated that the staff at OGIS was magnificent but could not be expected to mediate 4,600 cases with three staff members and that the office is severely underfunded.

Ms. Semo thanked everyone for attending and noted the next meeting is on Thursday, March 10, 2022, at 10:00 a.m. She indicated the meeting will be virtual.

Ms. Semo adjourned the meeting at 1:23 p.m.

I certify that, to the best of my knowledge, the foregoing minutes are accurate and complete on March 4, 2022.

/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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