May 5 - Meeting Minutes (Certified)
The Freedom of Information Act (FOIA) Advisory Committee convened at 10 a.m. ET on May 5, 2022 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)
- 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
- 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
- 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:
- Roger Andoh, U.S. Department of Health and Human Services, Centers for Disease Control and Prevention
- Alexis Graves, U.S. Department of Agriculture
Others present or participating in the virtual meeting:
- Debra Steidel Wall, Acting Archivist of the United States, NARA
- Kirsten B. Mitchell, Committee’s Designated Federal Officer, NARA
- Robert Hammond, public commenter
- Michelle Ridley, Webex event producer
Welcome and Administrative Updates
Acting Archivist of the United States Debra Steidel Wall welcomed everyone to the ninth meeting of the fourth term of the FOIA Advisory Committee. Ms. Wall reported that the National Archives’ mission will not change with the retirement of former Archivist David Ferriero, and prior to retiring, he signed the charter for a fifth term of the FOIA Advisory Committee.
Ms. Wall stated that she looked forward to working with OGIS to appoint or reappoint members to the Committee for the next term and turned the meeting over to Committee Chairperson Alina Semo.
Ms. Semo thanked the Committee for their work over the past two years studying the FOIA landscape and developing recommendations to improve the FOIA process. She noted that Committee members Roger Andoh and Alexis Graves were unable to join the meeting and A.Jay Wagner would have to periodically step away from the meeting. Ms. Semo asked the Committee’s Designated Federal Officer if there was a quorum for the meeting.
Ms. Mitchell confirmed there was a quorum for the meeting.
Ms. Semo stated that public comments should be emailed to email@example.com and not submitted via the NARA YouTube or WebEx chat. She reminded Committee members that this was the last public meeting to finalize language and vote on individual recommendations. She stated that the Committee will vote on the final draft report at the last Committee meeting of the 2020-2022 term on June 9, 2022,.
Ms. Semo reminded the Committee that any member can move to vote on a recommendation and that it is not necessary to second a motion. She noted that a motion can pass by unanimous decision, general consensus, or general majority.
Ms. Semo turned the meeting over to Technology Subcommittee co-chairs Allyson Deitrick and Jason Gart.
Discussion of Technology Subcommittee Draft Recommendations - Allyson Deitrick and Jason Gart, Technology Subcommittee Co-Chairs
Ms. Deitrick stated that the Subcommittee revisited the second part of the third recommendation related to proactive disclosure of FOIA logs and added additional information regarding fees and searchable text, and acknowledged that the release of information was subject to exemptions.
Ms. Mitchell stated that all of the recommendations Ms. Deitrick referenced are included in the link she shared with the Committee and attendees. The recommendation and fields are:
To be most useful, agency FOIA logs should contain, at a minimum, each of the following fields in either Excel or CSV format, in preference to PDF:
a) Tracking number of the request.
b) Date of the request.
c) Name of the requester, provided it is not a first-party requester (i.e., someone asking for records on himself or herself) – to be most useful, the agency should publish the names of all third-party requesters; the agency should also alert requesters that they will publish the names of third-party requesters in their FOIA logs.
d) Organizational affiliation of the requester, if identified in the request.
e) Whether the request was processed under the Privacy Act as well.
f) Subject matter of the request.
g) Status of the request (pending, closed, etc.).
h) For requests that have been closed, the date closed and the result of the FOIA
request (granted, granted in part, denied, withdrawn, etc.).
i) Fee Information
a. Fee category assigned to requester, if applicable (commercial, educational, news media, other).
b. Whether a fee waiver was requested.
c. If a fee waiver was requested, whether it was granted.
d. Amount of fees charged
e. Amount of fees paid
Mr. McClanahan asked if the fees category would be updated continuously or after they were assessed and paid.
Ms. Deitrick stated that the reports would be a snapshot in time and updated quarterly.
Mr. McClanahan asked if the FOIA logs would be updated after requests were closed.
Ms. Deitrick stated that requests would remain open on subsequent reports until closed and would show up on multiple reports.
Mr. McClanahan stated that this could cause issues for people that use the reports to track requests.
Mr. Gart noted that in the draft it states that requests will be identified as pending.
Mr. McClanahan stated that it would be helpful if pending requests were identified as new or existing.
Ms. Frye stated that the requests include the date received which can be used to determine when it was submitted. She also noted that including fee information in the reports would be time consuming for some agencies that have to add the information manually.
Ms. Deitrick stated that the recommendation for fees is currently phrased as a best practice and asked if Ms. Frye agreed.
Ms. Frye stated she was OK with the current wording.
Mr. Talebian stated that the primary purpose of the FOIA log was to inform requesters what was requested and was unsure of the benefit of including fee information in the logs.
Mr. Morisy stated that he was excited about the recommendation to proactively release information and thus reducing the end-of-year reporting requirements. He noted that this might push FOIA software vendors to make it easier to export raw data.
Mr. Cuillier stated that the recommendations were based on what information was important to requesters and to provide a sense of how the FOIA system is working and to identify trends.
Mr. Talebian stated that he hoped the recommendations would not be too burdensome on agencies and that OIP analyzes FOIA data to assess agency compliance.
Mr. McClanahan stated that he agreed with Mr. Morisy’s assertion that if agencies struggled with complying with the recommendations they should find more efficient ways to export their FOIA data.
Ms. Weth noted that no agency assembles data manually and at the Environmental Protection Agency, data points (a) through (h) can be pulled and posted online.
Mr. Gart stated that the Subcommittee looked at the current challenges faced by agencies and that the recommendations were created to be used by agencies as a roadmap for future systems.
Action Item: David Cuillier moved to vote on Technology Subcommittee draft recommendation three, recommending that agencies proactively publish searchable FOIA logs containing certain information. Kel McClanahan seconded. Motion carried by unanimous vote of 16-0 with Bobby Talebian abstaining.
Ms. Semo thanked the Technology Subcommittee for their work and turned the meeting over to Michael Morisy, Process Subcommittee co-chair.
Discussion of Process Subcommittee Draft Recommendations - Alexis Graves and Michael Morisy, Process Subcommittee Co-Chairs
Mr. Morisy attempted to pass the floor to Mr. Samahon, who was unexpectedly disconnected from the meeting.
Ms. Semo requested to move to the presentation of the Legislation Subcommittee until after Mr. Samahon’s return.
Ms. Semo turned the meeting over to Mr. Cuillier at the request of Legislation Subcommittee co-chair Ms. Weth.
Discussion of Legislation Subcommittee Draft Recommendations - Patricia Weth and Kel McClanahan, Legislation Subcommittee Co-Chairs
Mr. Cuillier stated they have incorporated feedback and suggestions into the white paper and added appendix D since the last meeting. He called for a discussion of recommendation six which recommended that the Archivist of the United States commission a feasibility study to explore the costs and benefits of the Subcommittee’s other recommendations to “reimagine OGIS.”
Ms. Semo opened the floor to the Committee for comments on recommendation six.
Ms. Semo stated that as the OGIS Director she was supportive of recommendation six but recommendations one through three gave her pause. She stated that recommendations one through three would potentially erode trust and alter OGIS’s role as ombudsman as envisioned by Congress.
Ms. Semo stated that recommendations one through three would require OGIS to fundamentally restructure itself into two groups as negotiator and enforcer. She noted that this would require a significant increase in its budget, and that OGIS currently helps more than 4,000 requesters annually.
Ms. Semo stated that recommendation seven was also a potential double-edged sword and that there would be advantages to OGIS reporting directly to the Archivist of the United States. She noted that the Office has had great relationships with both the recently retired Archivist of the United States and the current Acting Archivist of the United States.
Mr. McClanahan asked if the Committee was going to discuss each recommendation individually.
Mr. Cuillier suggested the Committee begin with recommendation six.
Mr. Stocker suggested that an alternative was to create a new body to perform these functions in addition to OGIS. He asked if the Subcommittee had considered this as an alternative.
Mr. Cuillier confirmed that the Subcommittee had considered creating a separate arbitration authority and stressed the importance of the feasibility study to determine the best approach.
Action Item: David Cuillier moved to vote on Legislation Subcommittee draft recommendation six that the Archivist of the United States commission a feasibility study to explore the costs and benefits of the Subcommittee’s other recommendations to “reimagine OGIS.” James Stocker seconded. Motion carried by unanimous vote of 16-0 with Bobby Talebian abstaining.
Mr. Cuillier stated that recommendation five is to increase OGIS’s budget.
Mr. McClanahan asked if the Committee should consider recommendation four along with recommendation five since they are related.
Mr. Cuillier agreed to consider recommendation four that Congress create a line-item budget for OGIS. He noted that recommendation four comes with more responsibility for OGIS to advocate directly to Congress.
Mr. McClanahan asked Ms. Semo if OGIS is currently funded with discretionary funds.
Ms. Semo answered that OGIS is not funded with discretionary funds.
Mr. Cuillier stated that he supports NARA but added that the onus is on Congress to directly fund OGIS.
Action Item: Jason Gart moved to vote on Legislation Subcommittee draft recommendation four that Congress should create a direct line-item budget for OGIS. Mr. McClanahan seconded. Motion carried by general consensus on a 13-1 vote with Tom Susman voting “No” and Bobby Talebian, Allan Blutstein, and Alina Semo abstaining.
Action Item: Patricia Weth moved to vote on Legislation Subcommittee draft recommendation five that Congress increase OGIS’s budget. Mr. Samahon seconded. Motion carried by unanimous vote of 14-0 with Bobby Talebian, Allan Blutstein, and Alina Semo abstaining.
Mr. Cuillier stated that recommendation seven is to return OGIS as a direct report to the Archivist of the United States. He noted that OGIS previously reported directly to the Archivist until a restructuring some years ago, and a direct report will strengthen OGIS.
Action Item: Patricia Weth moved to vote on Legislation Subcommittee draft recommendation seven that OGIS be returned as a direct report to the Archivist of the United States. Ms. Stearns seconded. Motion carried by unanimous vote of 12-0, with Bobby Talebian, Allan Blutstein, Kristin Ellis, Allyson Deitrick, and Alina Semo abstaining.
Mr. Cuillier opened the discussion on recommendation two for Congress to give OGIS in camera review authority, allowing it to review records that are requested under FOIA.
Ms. Semo noted a typo on the slide.
Mr. McClanahan stated that OGIS would need in camera review in order to act as a mediator and that it would potentially only require one or two individuals with the necessary security clearance.
Ms. Ellis stated that she viewed this recommendation as an offshoot of the recommendation that would give OGIS the authority to issue binding decisions. She noted that the Intelligence Community works with highly classified information and the more individuals with access to that information the more risk of disclosure.
Mr. Samahon (who had now rejoined the meeting) stated he was in favor of giving OGIS in camera review since many times agencies take untenable legal positions against disclosure and it requires a mediator or Assistant U.S. Attorney to tell the agency that their position is indefensible in court.
Mr. McClanahan noted that there are procedures in place for viewing highly sensitive records that would allow OGIS to act as a mediator for cases involving classified information.
Ms. Ellis asked if recommendation two is standalone or tied to passage of the mediation recommendation.
Mr. Cuillier stated that the Subcommittee initially intended for the two recommendations to be bundled together, since they would need in camera review to make binding decisions but could be considered independently.
Mr. McClanahan stated that the recommendation requires agencies to provide access to the records or forgo mediation.
Mr. Gart added that the National Archives’ National Declassification Center works with classified documents and that the Committee should trust the system that is in place.
Ms. Semo noted that the National Declassification Center works with agencies to make declassification decisions.
Ms. Semo asked if the Committee would like to vote after the break.
Committee took a 10-minute break.
Action Item: Kel McClanahan moved to vote on Legislation Subcommittee draft recommendation two that Congress should give OGIS the authority to review records in camera. Patricia Weth seconded. Motion carried by general majority with a 10-3 vote, and Allyson Deitrick, Kristin Ellis, and Matthew Schwarz voting “No.” Bobby Talebian, Allan Blutstein, Patricia Weth, and Alina Semo abstained.
Mr. Cuillier asked Mr. Susman if he would like to share why he voted “No” on the previous recommendation that Congress create a direct line-item budget for OGIS.
Mr. Susman stated that he was concerned that Congress could cut OGIS’s budget.
Ms. Ellis explained that she voted “No” on asking Congress to give OGIS the authority to review records in camera because FOIA litigation requires a de novo review (looking at the administrative record anew) by the courts and should not be weighing decisions by OGIS.
Mr. McClanahan stated that he partially agreed with Ms. Ellis but noted that OGIS decisions are powerful and that he supported giving equal weight to OGIS decisions that are currently given to agency declarations.
Ms. Perloff-Giles stated she did not understand the problem that the recommendation tries to solve.
Mr. McClanahan cited an example of the DOJ claiming in a court filing that no weight should be given to a particular OGIS decision since they conduct mediations and should defer to the DOJ for policy.
Mr. McClanahan stated he was writing proposed amendment language in the chat.
Ms. Semo reminded Mr. McClanahan that the proposed changes would need to be read aloud into the record.
Mr. Cuillier stated he would like the recommendation with its current language brought to a vote.
Action Item: Patricia Weth moved to vote on Legislation Subcommittee draft recommendation three that Congress directs the federal court to give extra weight to OGIS decisions. David Cuillier seconded. Motion failed with a 3-10 vote. David Cuillier, Michael Morisy, and Tom Susman voted “Yes.” Bobby Talebian, Allan Blutstein, Jason Gart, and Alina Semo abstained.
Ms. Semo asked Mr. Cuillier if he wanted to consider Mr. McClanahan’s amended recommendation.
Mr. Cuillier agreed to consider Mr. McClanahan’s amendment that Congress would direct federal courts to afford equal weight to any OGIS finding or OGIS statement regarding requests as it does to agency declarations.
Mr. McClanahan made a motion to vote on his amendment. There were several yes votes but unclear how many. Ms. Mitchell asked for a roll call vote. Mr. McClanahan withdrew his motion.
Mr. Cuillier noted that he would have voted against the amendment but it may be something the Committee should look into during the next term.
Ms. Semo passed the floor to Mr. Samahon to present the Process Subcommittee’s recommendations.
Discussion of Process Subcommittee Draft Recommendations - Alexis Graves and Michael Morisy, Process Subcommittee Co-Chairs
Mr. Samahon stated that he was presenting on recommendation two in place of co-chair Alexis Graves who was unable to attend the meeting. The recommendation stated that agencies should amend their regulations, directives, policies and guidance to provide individuals access to agency records about themselves in agency proceedings regardless of whether they have legal representation.
Mr. Samahon asked if there were any comments on the recommendation from the Committee.
Ms. Ellis asked if there are situations other than EOIR [Executive Office for Immigration Review] where agencies do not provide access to records under FOIA unless represented by counsel.
Mr. Samahon stated that EEOC had a similar policy but that the Subcommittee did not survey all agencies.
Mr. McClanahan noted that Ms. Ellis asked about situations specifically under FOIA and stated he was unaware of any agencies.
Action Item: Allyson Deitrick moved to vote on Process Subcommittee draft recommendation two. Kel McClanahan seconded. Motion carried by unanimous vote of 13-0 with Bobby Talebian, Kristin Ellis, Matthew Schwarz, and Alina Semo abstaining.
Ms. Semo thanked Mr. Samahon and the Subcommittee for their work.
Mr. McClanahan asked to discuss the legislative language of the recommendations.
Mr. McClanahan stated that he drafted a bill that would serve as a legislative template for Process Subcommittee recommendations 1-3 if the Committee wanted to include it with the recommendations.
Ms. Mitchell stated that the language was not included in the slides and noted that it was discussed the day prior and did not advance out of the Legislation Subcommittee.
Mr. McClanahan stated that this was an amendment and not a Legislation Subcommittee proposal.
Ms. Semo suggested that the amendment was tabled.
Mr. McClanahan stated that the amendment was not tabled.
Ms. Semo stated that the Process Subcommittee did not vote on the language and the Committee did not have the draft in front of them to vote on it. She suggested that the final report working group could discuss including the language in the Committee’s final report.
Mr. McClanahan stated that he was OK with the Committee voting on the language with the final report at the June meeting.
Ms. Weth stated she was confused if the recommendation was submitted by Mr. McClanahan or the full Committee and was worried that the final report would need to be completed by the end of the month with time for Committee members to review and comment on it.
Ms. Semo stated that she was going to move on to the Classification Subcommittee’s recommendation.
Discussion of Classification Subcommittee Draft Recommendations - Kristin Ellis and James R. Stocker, co-chairs
Mr. Stocker stated that the Classification Subcommittee voted to bring forward five recommendations related to the issue of when you have information that was improperly and inconsistently classified.
Ms. Ellis stated that the premise of the recommendations surrounds the two essential parts of the executive order governing national security information: that the information must meet certain criteria in order to be classified and it must be marked as classified.
Ms. Ellis noted that there are instances when derivative classified information is not marked with all of the required markings required by the executive order. Recommendation five calls for the Archivist of the United States to request that the Inspector General for the Intelligence Community conduct a review of agency compliance with the executive order related to the marking of classified information in response to FOIA requests.
Mr. McClanahan stated that in his experience there were several situations in which Intelligence Community agencies didn’t go back and mark classified information and that there was agreement to determine how widespread the practice was.
Ms. Semo asked if there were any other comments on recommendation five.
Action Item: Patricia Weth moved to vote on Classification Subcommittee draft recommendation five that the Archivist of the United States request that the Inspector General of the Intelligence Community review agency compliance with E.O. 13526 and FOIA. Dione Stearns seconded. Motion carried by unanimous vote of 15-0 with Bobby Talebian and Alina Semo abstaining.
Mr. McClanahan stated that recommendation four would require agencies to apply omitted markings when they are performing FOIA review and discover classified material has not been marked.
Mr. Blutstein asked if the recommendations would apply to Glomar responses as well.
Mr. McClanahan stated recommendation four would not apply to Glomar but only when agencies are conducting declassification review.
Ms. Ellis noted that the executive order specifies markings are required only when the classified information is in documentary form and she did not believe it would apply to review of Glomar facts since they were not in documentary form.
Mr. McClanahan agreed with Ms. Ellis that Glomar does not apply to this recommendation.
Ms. Deitrick asked if the markings are applied when the information was withheld or before a final determination is made.
Ms. Ellis stated that the executive order requires markings during the review stage.
Action Item: James Stocker moved to vote on Classification Subcommittee draft recommendation four. Kel McClanahan seconded. Motion carried by general consensus with a vote of 11-1, withPatricia Weth voting “No.” Bobby Talebian, Allan Blutstein, Kristin Ellis, Allyson Deitrick, and Alina Semo abstained.
Mr. McClanahan stated that the Subcommittee recommended that Exemption (b)(1) of the FOIA statute be amended to state that "if it does not comport with the requirements of all of the executive order, then it's not exempt under Exemption (b)(1)." He further noted that the markings were written with transparency in mind, and so agency employees and the public could know when a redacted record could be declassified. But the courts have recently interpreted the law to withhold documents in full even when portions are unclassified.
Mr. Blutstein asked if Ms. Ellis agreed with Mr. McClanahan’s view that the courts’ interpretation of the executive order is broken and requires fixing.
Ms. Ellis stated that she did not agree that courts have departed from what is required and did not support Mr. McClanahan’s interpretation of the executive order or case law.
Mr. McClanahan stated that the recommendation is not requiring the release of unmarked documents but would require marking before it is withheld from the requester.
Action Item: Kel McClanahan moved to vote on Classification Subcommittee draft recommendation one. Kristin Ellis seconded. Motion failed on a 4-7 vote with Kel McClanahan, Michael Morisy, Tuan Samahon, and James Stocker voting “Yes.”. Bobby Talebian, David Cuillier, Linda Frye, Jason Gart, Alexandria Perloff-Giles, and Alina Semo abstained.
Action Item: Kel McClanahan moved to vote on Classification Subcommittee draft recommendations two and three.. Motion failed on a 3-7 vote with Kel McClanahan, Tuan Samahon and James Stocker voting “Yes.” David Cuillier, Jason Gart, Alina Semo, and Bobby Talebian abstained.
Mr. Hammond recommended that OGIS be removed from NARA and placed under Congress. He asked Ms. Semo how large of a budget would be needed for OGIS to carry out its mission. He also asked Mr. Talebian how large of a budget would be needed for OIP to carry out its mission.
Mr. Hammond stated that in his experience with federal agencies, their raw data and annual FOIA logs are false. He requested that agencies post their amended raw data.
Mr. Hammond read into the record his recommendations: require contemporaneous posting of FOIA logs, amend past quarterly and annual FOIA reports, agencies participating in FOIAonline create plans to preserve all FOIAonline records, discourage automated destruction of case processing records, allow OGIS and DOJ OIP to make referrals to the Office of Special Counsel for compliance violations, require OGIS to stipulate the annual funding it requires, and study current OGIS funding shortfalls and mission failure.
Ms. Semo thanked the Committee members for staying for the extended meeting and reminded everyone that the Final Report would be considered and voted on at the next meeting on June 9. The Working Group members are David Cuillier, Dione Stearns, Patricia Weth and Allan Blutstein.
Ms. Semo adjourned the meeting.
I certify that, to the best of my knowledge, the foregoing minutes are accurate and complete on July 11, 2022.
/s/ Kirsten B. Mitchell
Kirsten B. Mitchell
Designated Federal Officer,
/s/ Alina M. Semo
Alina M. Semo