June 9 - Meeting Minutes (Certified)
The Freedom of Information Act (FOIA) Advisory Committee convened virtually at 10 a.m. ET on June 9, 2022.
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
- Kel McClanahan, National Security Counselors
- Michael Morisy, MuckRock
- 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:
- Alexandra Perloff-Giles, Gibson, Dunn & Crutcher
- Tuan N. Samahon, Villanova University
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
- Jessica Hartman, OGIS staff member
- Ryan Milliron, public commenter
- Michelle Ridley, Webex event producer
Welcome and Administrative Updates
Debra Steidel Wall, Acting Archivist of the United States, welcomed the group to the ninth meeting of the fourth term of the Freedom of Information Act (FOIA) Advisory Committee. She stated that since 2020, the Committee’s four subcommittees have been working on 21 far-reaching recommendations and that she looked forward to the Committee’s final report. She said she would give each recommendation very close consideration.
Ms. Steidel Wall thanked the members of the Committee for their hard work and collaboration, and told them that a NARA-OGIS challenge coin and certificate of thanks would be sent to them. She noted that the Committee is soliciting nominations for the 2022-2024 term and that she was looking forward to the first meeting of the next term on September 8th.
Ms. Steidel Wall turned the meeting over to Ms. Semo.
Ms. Semo thanked the Committee members for their hard work developing recommendations to improve the FOIA process and looked forward to finalizing the report.
Ms. Semo noted that Committee members Ms. Perloff-Giles and Mr. Samahon were unable to join the meeting and confirmed that Committee members Ms. Frye and Ms. Ellis were able to join by telephone but not video.
Ms. Semo confirmed with Ms. Mitchell that there was a quorum for the meeting.
Ms. Semo reminded those in attendance to use the all-panelist option in the chat function to speak or ask a question, and not to share substantive comments via chat. She noted that the meeting minutes and transcripts for the April 10, May 5 , and June 9 meetings would be posted to the Committee’s web site as soon as they are completed. She asked that all public comments be emailed to firstname.lastname@example.org.
Ms. Semo asked if there were any responses from the Committee to any of the public comments.
Mr. McClanahan noted that a public commenter suggested that FOIA logs should include appeal information and that he supported the suggestion that appeals should be included in the recommendation regarding FOIA logs.
Mr. Gart expressed support for the proposal.
Ms. Deitrick stated that the Subcommittee did not consider appeals in its discussions.
Ms. Weth stated that the Committee had already approved all of the recommendations and suggested that any revisions should be considered by the next term of the Committee.
Mr. Gart stated that appeals may be covered under subheading “g” of the recommendation [2022-10]
Ms. Semo agreed with Ms. Weth to keep the recommendations as they are currently written and to move on.
Mr. Cuillier thanked everyone who submitted public comments and noted that some of the ideas that the Committee considered will likely come up in the next term.
Mr. Stocker asked if the Committee was going to vote on each recommendation or on the entire report.
Ms. Semo confirmed the Committee would vote on the entire report.
Mr. Stocker proposed that the Committee consider combining the Technology Subcommittee’s recommendation seven [2022-07 re: posting certain information on FOIA websites beyond what is required by law] into the Classification Subcommittee’s recommendation three [2022-03 re: posting information on FOIA websites about “Neither Confirm Nor Deny”/Glomar responses].
Ms. Deitrick suggested that the Committee add a footnote to each recommendation instead of combining the two recommendations.
Mr. Stocker agreed with Ms. Deitrick’s proposal.
Ms. Weth stated that the recommendations were approved by the full Committee in prior meetings and did not think there would be confusion with overlap between recommendations.
Ms. Semo asked Mr. Talebian to share his thoughts on recommendation seven.
Mr. Talebian stated that there won’t be any confusion from OIP on considering both recommendations [2022-03 and 2022-07] which are both directed at OIP.
Mr. McClanahan asked if the Committee was only considering grammatical revisions at this point or if the Committee was going to consider amendments.
Ms. Semo stated that the Committee circulated a draft of the report in advance of the meeting in order to give Committee members a chance to comment and raise issues prior to the meeting.
Ms. Semo thanked the members of the Final Report Working Group (Mr. Blutstein, Mr. Cuillier, Ms. Stearns, and Ms, Weth) for compiling the final report and noted that they would fix small grammatical errors including adding page numbers to the Table of Contents. She added that the working group received the suggestion but decided against adding the definition of “metadata” to the glossary. Ms. Semo noted that the definition of metadata is defined via footnotes. She also noted that “conflict” was changed to “challenges” in recommendation 2022-09 to reflect changes agreed to at a prior meeting..
Ms. Deitrick clarified that the main addition was breaking recommendation 11 into recommendation 2022-11 and 2022-12.
Ms. Semo stated that recommendation 2022-14 was changed to match the language passed by the Committee.
Mr. Susman noted that the first draft recommended DHS should commission a study but the Committee clearly wanted an outside, independent view not under the authority of the Committee or DHS. Mr. Susman suggested additional language to the recommendation for Congress to provide appropriations for such a study, noting that Congress should get behind such an idea.
Mr. McClanahan supported Mr. Susman’s amendment and noted that in his discussions with DHS officials, they indicated that the study would cost around $4 million.
Mr. Susman stated that DHS did not share the Committee’s concern that the problem should be addressed quickly and may not be committed to allocating funds for a study.
Ms. Semo asked Process Subcommittee co-chairs Ms. Graves and Mr. Morisy if they agreed with adding Mr. Susman’s additional language.
Ms. Graves agreed to the language.
Ms. Semo asked Mr. Susman to present language to the Committee for approval and asked if any other Committee members would like to comment.
Mr. McClanahan suggested adding appeals to the FOIA logs under recommendation 2022-10.
Ms. Semo asked Technology Subcommittee co-chairs Ms. Deitrick and Mr. Gart if they would like to comment on Mr. McClanahan’s proposed addition.
Mr. Gart suggested adding appellate status under item “g” – the list of items that the Committee recommends including in proactively published FOIA logs .
Ms. Deitrick stated she would prefer to keep the recommendation as it is currently written.
Mr. Andoh stated that the Committee should leave appeals out of the recommendation since requesters can appeal multiple issues at different times, and that could be difficult to report on in a FOIA log. Ms. Graves agreed.
Ms. Semo suggested the Committee vote on Mr. McClanahan’s proposed addition.
Ms. Weth stated that the Subcommittee has been working on the recommendations for years and that the Committee should go with their original recommendations.
Mr. McClanahan stated that the Committee was setting a dangerous precedent by considering one amendment on its merits and another amendment by a different standard.
Ms. Mitchell raised a point of order as to whether the full Committee or the Technology Subcommittee was voting. Ms. Deitrick asked whether it should be the Technology Subcommittee voting on the matter first since the recommendation came from that Subcommittee.
Ms. Semo clarified that the Technology Subcommittee would vote first.
Action Item: Allyson Deitrick motioned for the Technology Subcommittee to vote to add appeals to the list of items in recommendation 2022-10. Kristin Ellis seconded. Motion failed by vote of 1-5 with Mr. Andoh, Mr. Cuillier, Ms. Deitrick, Ms. Ellis, and Mr. Gart against and Mr. Wagner voting yes.
Ms. Semo asked Ms. Deitrick how she would like to proceed.
Ms. Deitrick stated she would not like to bring the appeals language to the Committee for a vote since it did not clear the Subcommittee vote.
Mr. Cuillier stated he supported adding the appeals language but not during the current meeting since the Committee did not have sufficient time to consider the changes.
Ms. Semo returned to the first-person requests issue and language from Ms. Susman. She noted that a Process Subcommittee vote would be necessary before the full Committee considers any particular amendments.
Action Item: Ms. Semo moved that the Process Subcommittee vote to add language regarding congressional funding to the comments sections of recommendation 2022-14 of Process Subcommittee recommendations. Motion passed the Subcommittee with Mr. Andoh, Mr. Cuillier, Ms. Graves, and Mr. Morisy voting yes and Ms. Frye voting no.
Mr. Cuillier stated that the difference between this addition and the previous addition regarding appeals information in FOIA logs is that the congressional funding language was distributed prior to the meeting.
Mr. Susman noted that there is a difference between adding new ideas and clarifying ideas previously discussed by the Subcommittee.
Mr. Susman read his additional language to the Committee: “The subcommittee acknowledges that, given the challenges CIS is currently facing,that include complying with stringent court orders, transitioning to a new access platform, and what appears to be another record-breaking year of new FOIA requests, the commissioning of an independent assessment by an outside entity will require supplemental funding. We therefore recommend that DHS seek and Congress provide specific funding to CIS to support this assessment.”
Ms. Semo asked if CIS refers to USCIS.
Mr. Susman confirmed that CIS referred to USCIS. The Committee agreed to change CIS to USCIS and to capitalize “Subcommittee.”Ms. Mitchell made the changes.
Mr. Morisy supported the additional language and stated that it codifies the intentions of the Subcommittee to ensure that Congress funds and provides oversight of the proposed study.
Mr. McClanahan proposed that the Subcommittee remove “DHS seek and …” since it implies that DHS initiate the study and its funding.
Mr. Susman stated that he included the language as a courtesy to DHS since they ought to be invested in the study.
Mr. Morisy agreed with Mr. Susman that the language provides DHS with a mandate to ask for the study.
Mr. McClanahan stated that he didn’t think the Subcommittee needed to vote on the proposed change.
Mr. Susman stated that Congress would ask DHS’s views on the study regardless.
Action Item: Ms. Susman moved for a Process Subcommittee vote on additional language regarding funding to the comments of 2022-14 Process Subcommittee recommendations. Motion passed the Process Subcommittee by unanimous vote.
Action Item: Ms. Susman moved to vote on additional language regarding funding to comments of 2022-14 Process Subcommittee recommendations. Ms. Graves seconded. Motion passed by full Committee by unanimous vote with Ms. Semo and Mr. Talebian abstaining.
Ms. Semo opened the floor to public comments.
Mr. Susman stated that there were many great comments received by the Committee and he hoped that the Committee would use them as a roadmap for the next study. Mr. Susman added that he hoped the Committee would look to crowdsource ideas from the public in the next term.
Mr. Milliron thanked the Committee for the opportunity to speak and stated that none of the Committee’s recommendations addressed any of the challenges he faced as a FOIA requester which is that 40 state FOI requests got processed while none of his 120 federal FOIA requests had been processed.
Mr. McClanahan encouraged Mr. Milliron and others to apply to be on the Committee to provide different viewpoints.
Ms. Semo thanked everyone for their comments and asked the Committee if there were any additional comments before voting on the final report.
Action Item: Ms. Ellis motioned to vote on the Committee’s final report. Ms. Weth seconded. Motion passed by unanimous vote with Ms. Semo and Mr. Talebian abstaining.
Ms. Semo stated that the final report would be posted on the Committee’s website as soon as possible and thanked the Committee for their hard work. Ms. Semo stated that the Federal Register notice for Committee nominations published in the Federal Register on June 8, 2022, and that the nomination deadline is June 30.
Ms. Semo stated that the Acting Archivist of the United State would make final appointments to the Committee before the September 8 , 2022, meeting, the first of the next term.
Jessica Hartman read an additional comment submitted to the Committee: “I asked DOJ OIP and OGIS to identify in this meeting, the dollar funding level needed for fiscal year 2023 to effectively perform in all their statutory missions. OGIS is likely underfunded 10 to 20-fold.”
Mr. Susman thanked Ms. Semo and her staff for their work and leadership on the Committee.
Ms. Semo thanked Mr. Susman for his comment and stated that the Committee should be proud of the final report.
Ms. Semo adjourned the meeting.
I certify that, to the best of my knowledge, the foregoing minutes are accurate and complete on August 29, 2022.
/s/ Kirsten B. Mitchell
Kirsten B. Mitchell
Designated Federal Officer,
/s/ Alina M. Semo
Alina M. Semo