FOIA Advisory Committee Meeting (Virtual Event)
Thursday, September 10, 2020
1 p.m. - 4 p.m. EDT
Andre [Operator]: Welcome and thank you for joining the FOIA Advisory Committee. I'm going to turn the conference over to David S. Ferriero, the Archivist of the United States. Please go ahead.
David S. Ferriero: Good afternoon and welcome to the first meeting of the fourth term of the Freedom of Information Act Advisory Committee. I'm David Ferriero, Archivist of the United States, and I join you from my office at the National Archives Building in Washington, DC. If we were not in the midst of the coronavirus pandemic, I would welcome all of you committee members and attendees alike, in person to this beautiful building, a shrine to American democracy.
In addition to housing our nation's founding documents, the Declaration of Independence, the Constitution and the Bill of Rights, the National Archives and Records Administration also provides a permanent home to every statute signed into law since America's founding, including the Freedom of Information Act and the Federal Advisory Committee Act. The National Archives is pleased to charter, host, and support this important advisory committee, not simply because of our role in maintaining FOIA and countless other US statutes.
The FOIA Advisory Committee’s task of advising on improvements to the administration of FOIA compliments the National Archives strategic goals of Making Access Happen and Connecting with Our Customers from federal agencies to the American public. The committee's work also ties closely to FOIA’s mandate, that the FOIA’s Ombudsman office, the Office of Government Information Services here at the National Archives, identify procedures and methods for improving FOIA compliance.
Although Congress passed FACA in 1972 advisory committees have played an important role in shaping public policy since the earliest days of our democracy. President George Washington is credited with first using outside experts for advice. Facing an uprising in Western Pennsylvania, over a whiskey tax, the first ever federal tax on a domestic product, President Washington appointed an ad hoc group of commissioners to investigate the Whiskey Rebellion of 1794.
The commissioners met with concerned citizens and ultimately advised the president that enforcing the tax would require, “The physical strength of the nation.” Federal advisory committees are one of the few formal ways for private sector citizens to participate in the federal policymaking process. Such committees have advised on everything from organ transplant procedures, drug approvals and stem cell research, to drinking water standards, space exploration and federal land management.
Earlier this summer, OGIS delivered to me the final report and recommendations of the 2018 to 2020 term of the FOIA Advisory Committee. The committee identified and approved an unprecedented 22 far-reaching recommendations seeking to enhance online access to information, improve FOIA and records management training, raise the profile of FOIA within agencies and embrace new technologies.
I've entrusted OGIS with fulfilling some of the recommendations [and] in tracking the progress of other recommendations. I am particularly pleased that some of the recommendations marry records management and FOIA, as we have often recognized a strong records management program is the backbone of an excellent FOIA program. Please know that I don't expect another 22 recommendations or even half that at the end of this committee's term in 2022.
I welcome your advice and participation in helping to implement some of these recommendations over the next two years. Much work is ahead of you, but I am impressed with your broad experience, both inside and outside government and your deep commitment to making the FOIA process better for all.
Finally, I'd like to acknowledge these difficult times we are in, as we continue to physically distance ourselves from one another and our workplaces and adapt to life's challenges in ways that tax our minds, bodies, and spirits. Please take good care and stay safe. Now, I turn the meeting over to the committee's chair, Alina Semo.
Alina M. Semo: Thank you, David. I really appreciate it. As the Director of the Office of the Government Information Services and this committee's chairperson, it is my pleasure to also welcome you to our inaugural meeting of the fourth term of the FOIA Advisory Committee. I have a few opening remarks. I'm going to talk really fast, because we've lost a little bit of time due to our technical difficulties. I apologize to both the committee and our attendees for that.
Let me take a second to also introduce the committee's Designated Federal Officer, DFO, Kirsten Mitchell. I've asked her to help me stay on track today, I know she will. I hope everyone who's joining us today has been staying safe, healthy, and well. We do have a packed agenda and I will again keep my opening remarks very brief. I want to welcome all of our committee members, I'm really glad to see that we have a full house today.
I want to express my gratitude upfront for your commitment to studying the current FOIA landscape and for developing consensus recommendations for improving administration of FOIA across the federal government. We are going to take a roll call very shortly, so stand by for that. I also want to welcome our colleagues and friends who are watching us today via WebEx. Despite today's ambitious agenda, we will leave time at the end for public comments.
We look forward to hearing from many non-committee and participants who have ideas or comments to share. And we always welcome written comments. We will open up telephone lines at the conclusion of the committee's deliberations. And OGIS’s Deputy Director, Martha Murphy, is monitoring our chat function throughout the meeting and if you have any questions or comments, feel free to chat [with] them at any time, Martha can read them at the end.
Public comments, suggestions, and feedback, can be submitted at any time by emailing firstname.lastname@example.org. Moving to the virtual meeting space has challenged all of us, but we are happy to let everyone know that we are also attempting to stream this meeting on the National Archives YouTube channel today and we will post the stream on the FOIA Advisory Committee website.
A few housekeeping rules before we get started. Meeting materials for this term will be available on the committee's web page. Click on the link for the 2020 to 2022, FOIA Advisory Committee on the OGIS website. We will upload the transcript and video of this meeting, as soon as it becomes available. Members' names and affiliations are already posted. Member biographies will be posted in the near future, as well as, a complete set of all 30 recommendations this committee has made since its inception in 2014, along with their status.
Since March of this year, we have held several meetings virtually. We anticipate continuing to do so in the foreseeable future. Whenever we do get the green light, we will once again meet on the stage in the McGowan Theater, but until then the virtual environment is our friend. The virtual environment has some advantages, including much shorter commutes for all of us, very casual Fridays, as well as Mondays through Thursdays.
The disadvantage for me and Kirsten, is that we will not be able to see you, the committee members raising your hand or eagerly leaning forward, ready to make a comment or ask a question as we would if we were on stage in McGowan. I will be doing my best to monitor committee members' nonverbal cues during the webcast. But we all need to be respectful of one another, try not to speak over one another. Although I realize that's inevitable at times.
I want to encourage all committee members to use the "All Panelists" option from the dropdown menu in the chat function, if you want to speak. You could also just chat me and Kirsten directly. But in order to comply with the spirit and intent of the Federal Advisory Committee Act, please only keep communications in the chat function to housekeeping and procedural matters, no substantive comments should be made in the chat function. They will not be recorded in the transcript of the meeting.
Also, if you need to take a break, please do not disconnect from either audio or video, especially now that we're all up and running, instead, put your phone on mute and close your camera, send a quick chat to me and Kirsten to let us know if you're going to be gone for more than a few minutes and join us again, as soon as you can. We have noted a 10-minute break at approximately 2:25 PM, we'll have to see where we are in our agenda, but I do promise to take a 10-minute break.
As a reminder, for purposes of our transcript, please identify yourselves by name and affiliation each time you speak, this will help us down the road with both the transcript and the minutes, both of which are required by the Federal Advisory Committee Act. This seems to be a logical time to do a brief roll call. I would normally solicit each one of you to introduce yourself, but in the interest of time, we're going to do a quick roll call. Kirsten will do that next. We'll save the introductions for our next meeting.
Before we get started, you may be seeing a new face and name on your screen today. Loubna Haddad is joining us from [the] Defense Intelligence Agency. She is a last minute substitution, graciously accepting David's nomination to fill one of our government slots. Please help me in welcoming Loubna, she is able to join us for the beginning part of our meeting today.
I'm going to turn over to Kirsten now to provide the roll call and a brief introduction to the FOIA Advisory Committee's bylaws and responsibilities. Kirsten, over to you.
Kirsten Mitchell: Thank you, Alina, and welcome everyone. I apologize if you are hearing any background noise, it is pouring rain here in Washington, DC and it is causing a lot of noise on my skylight. I apologize for that. I will go through and just do a quick roll call. I think we have everyone here. But Roger Andoh from the Centers of Disease Control and Prevention. If you could just let us know that you're here?
Alina M. Semo: We don’t have Roger.
Kirsten Mitchell: Pardon me?
Alina M. Semo: We don't have Roger. We had him earlier, but I do not see him on. Does anyone else see him? I don't see him on...
Kirsten Mitchell: I do not.
Alina M. Semo: I'll check on that Kirsten, keep going on.
Kirsten Mitchell: Okay.
Andre [Operator]: I do see Roger…
Kel McClanahan: I see him.
Andre [Operator]: On the panelist.
Alina M. Semo: Roger, are you there?
Andre [Operator]: I don't see his picture though.
Alina M. Semo: Right, we don't see you on camera either.
Andre [Operator]: I'll reach out to him via chat.
Kirsten Mitchell: Okay. Thank you. Next, Allan Blutstein, America Rising.
Allan Blutstein: Here.
Kirsten Mitchell: David Cuillier, University of Arizona and NFOIC, the National Freedom of Information Coalition.
David Cuillier: I'm here. Thank you.
Kirsten Mitchell: Thank you. Allyson Deitrick, US Department of Commerce.
Allyson Deitrick: I'm here.
Kirsten Mitchell: Good. Kristin Ellis, the Federal Bureau of Investigation.
Kristin Ellis: I'm here.
Kirsten Mitchell: Thank you. Linda Frye, Social Security Administration.
Linda Frye: I'm here.
Kirsten Mitchell: Jason Gart, History Associates Incorporated.
Jason Gart: I'm here. Thank you.
Kirsten Mitchell: Alexis Graves, US Department of Agriculture.
Alexis Graves: Good afternoon, I am here.
Kirsten Mitchell: Great. Loubna Haddad, US Department of Defense, Defense Intelligence Agency.
Loubna W. Haddad: I'm here. Thank you.
Kirsten Mitchell: Thank you. Kel McClanahan, National Security Counselors.
Kel McClanahan: Here.
Kirsten Mitchell: Thank you. Michael Morisy with MuckRock.
Michael Morisy: Here.
Kirsten Mitchell: Alexandra Perloff-Giles, New York Times.
Alexandra Perloff-Giles: Hi, yes. Hello.
Kirsten Mitchell: Hello. Tuan Samahon, Villanova University.
Tuan N. Samahon: I'm here.
Kirsten Mitchell: Great. Thank you. Matthew Schwarz, US Environmental Protection Agency.
Matthew Schwarz: I'm here. Thanks.
Kirsten Mitchell: Thank you. James Stocker, Trinity Washington University.
James R. Stocker: I'm here.
Kirsten Mitchell: Great. Thomas Susman, American Bar Association.
Tom Susman: Here.
Kirsten Mitchell: Great. Bobby Talebian, US Department of Justice, Office of Information Policy.
Bobby Talebian: Hi, I'm here. Thank you.
Kirsten Mitchell: Thank you. A. Jay Wagner with Marquette University.
A. Jay Wagner: Here.
Kirsten Mitchell: Great. Last but not least, Patricia Weth with the National Labor Relations Board.
Patricia Weth: Hi, I'm here.
Kirsten Mitchell: Okay, super. I'm going to…I feel like a teacher on the first day of school. I'm going to circle back up to Roger Andoh. Is Roger with us?
Andre [Operator]: I have not received a response yet.
Kirsten Mitchell: Okay, super. Yeah, if you keep checking in on that, that would be great. As Alina mentioned, I'm going to go over some bylaws and responsibilities real quickly. I just want to take a few minutes of your time. We sent a two page summary to all committee members and we also have that posted on the FOIA Advisory Committee website, which is accessible at archives.gov/ogis, that's O-G-I-S.
This committee, in addition to being governed by FOIA, also is governed by the Federal Advisory Committee Act, also known as FACA and the Government and Sunshine Act. Transparency and openness are the crucial aspect of both of those laws. In that vein, I want to let everyone know that all committee and subcommittee emails must include the FOIA Advisory Committee email for record keeping purposes. I think Alina read it earlier, but I will go ahead and read it again. It's email@example.com.
The committee's charter and bylaws are both posted on the FOIA Advisory Committee website, but I want to go over a few things very briefly in the bylaws. While most of these meetings are... these full committee meetings are the most public facing events, if you will, the committee will have sub-committees and each sub-committee will have two co-chairs. One is a government member and one is a non-government representative member. We find that that's a really great way to get the membership balance working together and that is in both the charter and the bylaws.
A quorum, it constitutes two-thirds of the committee members or 13. They have a history of great attendance and look forward to that continuing. Along those lines, committee members, your responsibilities are pretty straight forward. Attend all meetings of the committee and the sub-committee or sub-committees of which you are a member.
Submit items for committee and sub-committee agendas, deliberate in a collaborative manner with fellow committee members and advise the Archivist on FOIA-related matters. Finally, for you federal members, submit confidential annual financial disclosure forms for ethics review. Thank you to all of you who have already done so, I think we're just missing one of them.
A little bit about public comments. All FOIA Advisory Committee meetings must be open to the public and the public must be permitted to present oral public comments, unless otherwise noted in the Federal Register notice that announces the meeting. To those of you attending today's meeting, please know that written comments may be submitted to us at any time and we welcome those.
A little bit about the voting, any committee member, including the chairperson, Alina, may make a motion. No second is required, but Alina appreciates a second. Pretty much those unanimous decisions, every member present has cast a vote in favor of, or against a particular motion. General consensus is at least two-thirds of total votes cast and general majority is the majority of votes cast.
That was a real quick overview of the bylaws. I'm just wanting to go over a few of my responsibilities. As the Designated Federal Officer, I am here to ensure efficient operations, ensure compliance with FACA, the Federal Advisory Committee Act, and other applicable laws and regulations. I attend all committee and subcommittee meetings, so we will be seeing a lot of each other in the coming two years. I also prepare and approve committee meeting agendas, maintain records of committee activities, ensure transcript and minutes for each meeting and chair at any meeting when directed to do so by the Archivist.
That sounds like a lot, but I wanted to let you all know, I have several National Archives colleagues assisting me. I want to give a shout out to Christa Lemelin who works with me at the Office of Government Information Services, on FOIA compliance issues. I'm also really thrilled to have Kimberlee Ried. She is a Public Affairs Specialist for the National Archives, Office of Legislative Archives, Presidential Libraries and Museums Services. She will be detailed to OGIS to help us with committee work.
Finally, and some of you have met, Rana Khandekar, who's in the National Archives, Office of General Counsel. She is our ethics attorney and the government folks heard from her during their ethics briefing earlier this week. Finally, one of the things I love most about working at OGIS is bringing together FOIA requesters and federal agencies, and I'm thrilled to see the committee bridge that FOIA community.
Finally, I'm here to help, so please don't hesitate to contact me. If anyone has any questions, I noticed there's one from Kel McClanahan in the chat about, about can we give someone a proxy to vote? There's no provision for that in the charter or the bylaws. The answer to that would be, no. Any questions? Otherwise I will turn it over, back to Alina.
Alina M. Semo: Great. Thanks very much Kirsten. I really appreciate it. I'm trying to move things along. Prior to our meeting today, Kirsten, I asked all of you to give us your top two or three issues, you would like the committee to consider during this term. We shared those with you yesterday. They are also now posted on our website for all of our attendees. Not surprisingly, several of you identified issues related to FOIA and technology.
That is why I have asked the co-chairs of the Chief FOIA [Officer]'s Council Technology Committee, to join us today, to tell us about the exciting work their committee has already accomplished and will be taking on in this coming year. My ultimate goal is to balance the work of our two committees and avoid duplication of effort as much as possible.
The Technology Committee was formed in September of 2018, as a result of a past FOIA Advisory Committee recommendation. Originally a sub-committee, we have elevated their status to a full committee. So far they're the only committee, there might be more. I’m very pleased to welcome the co-chairs of the Technology Committee, Eric Stein and Michael Sarich.
Eric is the Director of the Office of the Information Programs and Services at the State Department. His office is responsible for the department's records management, FOIA, Privacy Act, classification, declassification, library and other records and information access programs. I am now exhausted. Michael is the Veterans Health Administration FOIA Director, leads a program with over 300 FOIA and Privacy Act officers. He handles 25,000 plus requests across 151 facilities worldwide.
I know that Eric has a hard stop at 2:00, hopefully he can stay maybe till 2:01. Michael promised to stay a few minutes behind, in the event that there are questions that I hope there will be. With that, I'm going to turn it over to Eric and Michael. We need the slides up.
Eric F. Stein: Great. Good afternoon everyone. Thank you for the opportunity to come and present. My name is Eric Stein and I'm joined by my colleague, Mike Sarich. Mike, are you available? We have put together a presentation about this wonderful Technology Committee that we've been so fortunate to co-chair over the past almost two years now, already. As we go through this presentation, we have an opportunity for questions and answers at the very end. I just want to get right into it.
About us, as Alina pointed out, we were created about two years ago and we have really grown. We started with maybe just about a dozen agencies and now have approximately 40 members, from 25 different departments and agencies. It has been a great experience to have so many different FOIA professionals working together and to share perspectives with regard and a real focus on technology.
With accomplishments for [the] year to date, earlier this year, we released our report with best practices and recommendations, it's posted on the OGIS website. We're very happy to say that we've either completed a couple of those recommendations or are making progress to complete the rest of them.
Additionally, Michael and I participated in the OIP best practices workshop, FOIA and technology, I believe that was in April this year, right when the pandemic started. We really received a lot of excellent feedback from FOIA practitioners, about the issues they're facing within the FOIA programs, across the government, as you know, agencies are large, they're small, they deal with diverse record types, as to the perspectives we got from our colleagues who work on FOIA, helped to enrich the group. To get more specific, the challenges they faced, many of them working remotely and some for the first time ever. Technology and the role of technology was already critical, but that much more critical the results of events as they unfolded across the world.
We mentioned we added about 25 new members this year and that has been wonderful. It took us about a month or so to establish a governance structure, which we'll be hearing about shortly into different working groups, to really leverage the full expertise of so many members who we want to take full advantage of their expertise and experience in the different areas, the working groups we've created.
Again, Alina's point is noted and we don't want to duplicate with any existing efforts. A lot of our job is often to play facilitator. Agencies and practitioners are wondering who... I have this question, but I don't know who to ask. If it's technology related, of course, they go into the OGIS or OIP, with the network we've created. It's nice because we have a range of employees across all different ranks and levels. We've created a nice network of people who are willing to... and really want to help one another succeed, whether it be in their specific program areas or just cross-cutting issues.
We look now at the FOIA working... we'll talk about the FOIA working groups in a moment and the working group charters, because we're fans of creating government structure but we want to make sure we're clear about what our working groups are doing. We don't want nebulous objectives or tasks, we want to say, here's what we're working on, here's what we're going, if you ever come up... if you ever have ideas or recommendations, we went through the list that you've already provided. A lot of the topics you've raised are already things we're looking at, we’re happy to drill down harder on some of those topics or back off if they're existing groups already doing that work, because there are so many aspects of technology that are so important. You can go to the next slide, please.
Here we have the in-technology working groups. What Michael and I will do is go back and forth. We've divided them up and we've found chairs and co-chairs for each different groups, from across the inter-agency, to discuss, to lead and to participate in these efforts. While there's overlap on some of the topics and themes, we've carved out specific taskings for each one of them, and we also encourage committee members, of course, to work across their working groups in the bigger sessions, to make sure that they're aware of what the other members are doing, but also to help inform the efforts they're specifically working on.
For FOIA searches that is an effort dedicated to the search of electronic records. Electronic records, as we know, it is where we are. It's not the future, the future is now, we're here. A lot of agencies have expressed interest and best practices, when it comes to electronic records management, tools, having and really drilling down and focusing on FOIA, how are those tools leveraged to conduct the best possible searches?
Now, if you do a search on certain terms and electronic archives and databases, you can be inundated very quickly with 200,000, 2 million, even more records that are potentially responsive to requests. We have to bridge this gap between the wonderful ability to search so much electronic records in such a quick way, to finding what requests we really need in a timely manner. That group has a nice range of employees from across different FOIA programs, looking at large agencies, small agencies and different software tools that are being used for those searches.
The next two here are FOIAXpress and FOIAonline. For those, I just want to point out, we don't endorse any specific tool, but rather these are two that we found that are used by a lot of agencies. I want to see, Michael, are you on the line?
Michael Sarich: Yeah. Thank you very much. Can you hear me?
Eric F. Stein: Sure. Yes.
Michael Sarich: Thank you very much.
Eric F. Stein: Michael over to you to talk about those.
Michael Sarich: Sure, great. One of the great things about this iteration of the tech committee are these lanes of effort and these Technology Committee working groups and it makes sense to talk about the FOIAXpress and the FOIAonline one together. One of the things that we're attempting to do here is communicate... sorry, is create a community of interest.
Again, as Eric mentioned, we're not endorsing any particular product one way or the other, but what we want to do is bring those folks whose agencies have chosen to use these products together, so they can share best practices, resources, and the likes. We're not duplicating and reinventing the wheel. For example, if the Veterans Health Administration and VA have created great training products for FOIAXpress, then they can share those out.
Likewise, if the Social Security Administration has created great training products for FOIAonline, likewise, they can share those out with the, for example, the Department of [the] Interior. That's what we're working towards there in those lanes of efforts. We're going to be excited to share with you some of the preliminary findings in just a second, so I’ll toss it back for artificial intelligence.
Eric F. Stein: Artificial Intelligence, AI, a very popular topic. The question is, how do we leverage it in FOIA and how do we do it effectively? What we've been doing is, we have a group looking at records management practices, AI in government and the private sector, and looking for implementable solutions in the short and long term, to leverage concepts like machine learning.
Another concept that they're looking at is what's called technology-assisted review. These are different ways that agencies get... not necessarily AI, they are AI like concepts on how do we leverage technology better to actually do the searching and review of records in an effective way. There are all types of considerations for AI. That's a very interesting group and we're working to possibly have sessions in the future with FOIA practitioners, to introduce them to the concept of AI. Because I think for a lot of people, it's a frightening thing. They go to the worst possible scenarios of what this could mean or... but rather we have to look at how can AI be leveraged to really help work with people, whether it be FOIA practitioners, the public requesters across the board, to make FOIA programs better in the future. With that, Michael 508 compliance.
Michael Sarich: Sure. One of the things that you hear in the FOIA space frequently when you go to ASAP [American Society of Access Professionals] or you're talking to colleagues across the community, are challenges with 508 compliance. We have all of this information that we're either obligated to under the rule of three or that we would like to post proactively. However, that dreaded 508 compliance piece comes up, where folks are a bit concerned or reticent about putting things up and putting their agencies at risk.
What we're looking here to accomplish, is to provide a suite of tools, a set of guidelines, best practices, ways, so we don't have to be afraid of posting these things proactively online. These records that we really want to get out as part of the transparency community, to the larger requester community and indeed the public at large.
We're really looking forward and excited to the work of the 508 compliance working group, to be able to provide some of those hard tools for the FOIA professionals in our community, so they can have those in their toolbox moving forward.
Eric F. Stein: FOIA classified information. There are a host of issues technology related, that agencies have raised with us, those that work with classified national security information. We wanted to look at what tools are available right now that agencies are using. While some of the other areas, we just mentioned AI or the different software tools or searches or key factors, there are some unique classified issues that agencies wanted to discuss. What we're going to do is continue to reach out to other agencies that work with classified information and to provide options and solutions to some of those challenges. Back over to you, Michael.
Michael Sarich: Another emerging issue is collaborative tools. Many folks in many agencies are moving to Microsoft Teams. A lot of us during COVID moved to Zoom calls or Zoom Gov or to other platforms as quickly as possible. The question then arises, are we creating records here, when we're using these collaborative tools? For example, if a Skype message might have a very short retention schedule and might be gone, you might not have to necessarily worry about, say, it in a FOIA request, for now maybe in the Microsoft Teams environment. How is that going to impact and implicate your operations as a FOIA program? What do you need to do? What do you need to be aware of in that space to make sure that you are capturing appropriate... conducting your appropriate search and reasonably calculating and to discover all of the relevant records there?
Part of this is also an employee awareness, making sure that federal employees understand what records are and what they aren't. Then part of it is also, how are we going to deal with the deluge which we expect to happen from Microsoft Teams chat and from other of these collaborative tools that come on the scene.
It's going to be a big and emerging piece, as we're constantly looking to increase our efficiency as agencies, by embracing these collaborative tools, working together, especially in a distance setting. We're really looking forward to the work of this group.
Eric F. Stein: Then video redaction, Michael do you want to…?
Michael Sarich: Sure. What we thought we would do is, we would go ahead and provide you with some of the early findings. Trying to demonstrate the work that we've accomplished so far in this really relatively short amount of time. If we can move to then to the next slide, we'll give you just a quick sampling of some of the five early findings that we found from the Video Redaction Working Group. In the interest of time, we're not going to go deep into each of these, but just, you can think of this as the teaser of a trailer, kind of a coming attraction.
Briefly, first we found that video redaction retention schedules can vary across platforms and across agencies. Something that might be held at close circuit camera television piece might only be held for 30 days, because then the drive will loop over and it'll start it again, unless it's flagged in that time period. Video redaction retention schedules can vary from agency to agency and from platform to platform, inside of that agency.
Tools that FOIA professionals are using vary in complexity. There's some tools that can be purchased, where you can basically do the next version of Star Wars on your computer. You can do all kinds of crazy things in it, but then you might need to have that level of technical George Lucas-like expertise in working with video software to make that work. Making the tool fit the job is an important piece, because we've seen... we've all gotten new products pushed to us and it got all kinds of bells and whistles, but you just need it to do one thing. You need in the FOIA space to maybe blur the faces and blur the... or maybe change the sound. We want it to do those two things, we don't need to put the rainbows and stars and all the rest of it in there. Making the tool match the job or matching tool of jobs is very important. Litigation, we found, can drive video reduction schedules and agency resource allocation. Some folks might not have any tools at all, some agencies may just have zero tools, but then based on the court order have to stand something up from scratch.
That can be very challenging in a resource restricted agency, to be able to... we've been sued for this, now we have to do it. I think the implication is if as federal agencies we create the record, the courts will look at us perhaps to say, you created it, now it's your job to process it properly. This is where one of the... I think one of the recommendations that are going to come out is earmarked marketing funds for FOIA contractors with specialized skills to be efficient.
Because instead of hiring [an] FTE with video background for one or two or five requests a year, allocating a certain number in your budget, to be able to go out and on a certain basis or as needed basis, to be able to hire that skill in could be very efficient, rather than having a FOIA officer spin their wheels, staying a week or two to learn software, that they may have a very limited need to be doing.
The last piece of this is, if you can't do that, as you build out your FOIA programs, consider adding video redaction skills to position descriptions and performance plans. We're always looking in the FOIA space to who we recruit, how can we recruit people? Eric has great stories about working and looking for librarians, which I think makes a lot of sense. You take those lessons and you look to see who we're bringing into this community of practitioners. It makes a lot of sense moving forward, as we look at this, across the entire FOIA space in the government, to see if there's room for... and if we can bring on folks with these video redaction skills. I think we'll see that more and more.
Again, that's just a quick flavor of some of the things that we've accomplished. But now we're going to talk about some of the next steps, FOIA working groups. We’re going back to… next slide, please and over to you, Eric.
Eric F. Stein: Just that we can probably make up a little bit of time here, right now we're working to finalize our working group charters with clear deliverables. We can say a lot of the groups are looking and doing research or doing outreach or looking at existing documents already out there, from whether it be previous advisory committees or just other findings. We're doing that work right now and we are in a good place there. Then the next steps will be of course, to implement those plans and to do the series of actions you see here on the rest of the screen. I think just for the sake of time as well, Michael, is there anything else you want to add before we open up for questions?
Michael Sarich: Sure. Just that this is a very active group that is interested in talking about discovering, but then implementing. We want to bring these tools to the field and we want to make sure that these aren't just... that we don't just do reports. We want to make sure that these get into the hands of the FOIA practitioners across the federal family and they're able to take these and improve processing across the spectrum. Which is one of the reasons I'm so excited for Eric and I to be here before the FOIA Advisory Committee, who often sets the tone and tenor for improvements across the field. With that, I think we can definitely take questions. Thank you.
Eric F. Stein: Good.
Andre [Operator]: To ask a question on the phone line, please press pound two on your telephone keypad. Again, pressing pound two will indicate that you have a question, that time you will be unmuted and you will be able to state your name and ask your question. Looking to the phone lines, not seeing any questions at this time. You’re also welcome to write your questions in the chat, by sending a message to all panelists in the drop down menu. Not seeing any questions on the chat or the phone lines.
Eric F. Stein: We do want to say thank you again for the opportunity to present today. As we continue to work on our process moving forward, we'd welcome the opportunity to come back and brief again and provide updates, not just with the charters, but also with the findings or any recommendations that you may have. If there are no questions, I just want to say thank you, it's always a pleasure and we're always humbled to have the opportunity to come and brief this group or any group on the work that we're doing. Thank you.
Alina M. Semo: Eric, before you jump off, I know Kel McClanahan has a question for National Security Counselors. Kel, go ahead, please.
Kel McClanahan: Hi. Listening to your presentation, when you're talking about the search methodology and how to use technology to improve the searches, then later on when you got to the video, you were talking about basically the records disposition schedule, when the video may be deleted after 30 days or something. One of the problems that some of the bigger agencies run into in my experience, is that they have such a backlog, that they don't get around to tasking the relevant office to do a search, until after the records you're looking for have already been destroyed.
Have you figured that out or are you looking at a way to use technology to allow a person to basically almost pre-search, to go out and identify potentially there's a bunch of records for the purpose of putting a hold on them from destruction, until the time comes around for them to be processed in the order in queue?
Eric F. Stein: Sure. You raised in the context of both search and the video redaction piece, but I think it touches on several of the working groups. One of the things that I just pointed out is, we found that electronic records are just… they're proliferating, they’re either popping up in all types of different forms, and so agencies have a challenge on how to preserve and follow records schedules for the different tools and technologies. It's something we're looking at; I don't think we have a specific answer. We can take that point back to the committee to look at. It's definitely something I think agencies in general are working through, based on the conversations I've had. Michael.
Michael Sarich: I would just say just to add to that, if you... one thing that I like to reference is James Holzer’s report on backlog reduction from DHS, which is fantastic. He makes the point, which I think we shouldn't forget, is in his report that federal agencies are creating more and more records than they'd ever have. We're constantly creating records and it's a challenge to stay in front of the curve there to make sure that we're able to hang on to them for an appropriate amount of time to fulfill our transparency mission.
With Mr. Holzer's point of view there, which I think is absolutely correct and on point, it is a huge challenge. If you only have the resources to hold material for 30 days before it stops then, right, I agree with you 100% that that's a challenge for agencies and certainly something that we can address. I know that we just gave you the top layer of some of the baseline data from the Video Redaction Committee. But as Eric, I think also correctly pointed out, that does such a lot of the lanes of effort that we have on a committee for sure.
Kel McClanahan: To clarify, I was just using the video as an example, because that's what you mentioned. I, for instance, had a request that had a three-year [retention] period on the record and the agency didn't get around asking the office until three and a half years later because of the huge backlog at the agency. This isn't even a short term thing, this is how do you, to the extent you can, if you can figure out a way to frontload some sort of a cursory search capacity that may not be as intensive as a regular search, just for the purposes of avoiding this problem, so that three and a half years down the road, when you do the search, the office doesn't come back and say, “We wish you'd asked us six months ago.”
Michael Sarich: That's definitely something our committee could look at in terms of the tools and AI and the different capabilities that are out there.
Eric F. Stein: Yes, certainly.
Alina M. Semo: Okay. I know Eric and Michael have to go shortly. Does anyone else have any questions before they leave us, anyone?
Kirsten Mitchell: Alina, there are a couple of questions in the chat, that I just thought I would read.
Alina M. Semo: Should we save to the end…?
Kirsten Mitchell: If that’s okay.
Alina M. Semo: Well, should we save those to the end, since we’re low on time.
Kirsten Mitchell: Well, one of them is from Alexandra and she asked…
Alexandra Perloff-Giles: I can ask the question if that's easier.
Kirsten Mitchell: Okay. Yeah.
Alina M. Semo: Go ahead and ask please.
Alexandra Perloff-Giles: I'm curious whether the search capabilities of different agencies are made public anywhere. I've had experiences where we give a Boolean string and are told that there are too many characters in the boolean string, for instance. That kind of technical information is helpful, if that's available.
Eric F. Stein: We can definitely take that back in terms of search capability. But I think agencies… we’ve been through all the Chief FOIA Officer reports, we will look at what was shared there, we’ll look at what's also publicly available. But we can try to drill down for additional detail, that is definitely something we can look into. I see another question asking about, how will the working groups solicit feedback from the public?
The last slide here is, actually has both my email address and Michael's. We welcome feedback and incorporate it, we actually love when people ask questions whether it be from public agencies, because it's something to consider. It's really important. The final question I see here is, when do we expect to complete work on the recommendations in the February 2020 report?
I don't have the completed deadlines yet, but we are seeing different initiatives that have been created throughout the government, and some of them are touching on what we proposed and we're proposing. We're just trying to figure out what role do we play. What role do those initiatives that are underway play? I think we'll just keep an eye on them and continue to try to put finer points on deadlines in the months ahead.
COVID did put us in a tough situation where we were also working remotely with a lot of our colleagues. I can say our technologies and meetings and calls were working so far. We've had a few issues and a couple of times. We're still challenged with the technology, but we will get there.
Alina M. Semo: Okay, great. Thanks. Tom Susman, does that answer your question?
Tom Susman: Yeah. But let me follow up. Although we don't have a specific deadline or a date for getting back to the Advisory Committee, could we stay in touch with the technology working group on a regular enough basis so that we get a little warning? That's an extremely important area, we invested a lot of time in the past and I think it would be useful to be able to collaborate a bit with this Advisory Committee, rather than just get hit with the final report sometime as we're wrapping up the year after next.
Eric F. Stein: Absolutely, yes. Alina, I turn to you for confirmation here about that. Michael, agreed?
Michael Sarich: Absolutely.
Alina M. Semo: Yup. I think we can make that happen...
Eric F. Stein: Bobby as well.
Bobby Talebian: Yes. I’m nodding my head too...
Eric F. Stein: Okay.
Jason Gart: This is Jason Gart. We want to formalize that somehow, something for each of our meetings?
Alina M. Semo: I'm sorry, Jason, I don't understand the question. Formalize…
Jason Gart: Formalize it in reporting back in advance of each of our meetings, for status during the last... since the last gathering.
Alina M. Semo: Sure. I don't know if we... I usually invite Eric and Michael when they have status updates. We only meet four times a year as a committee. There may be a sub-committee that gets formed that could keep in touch with them more regularly. I can certainly think about adding it as a standing item, if everyone else thinks that's a great idea. Do I hear yes or no?
Kel McClanahan: I think it might make more sense to just, as meetings come up for us to engage with Eric and Michael, to see if there's something that would benefit for an agenda item.
Alina M. Semo: Yeah. That was my thinking too. Okay. Thanks very much.
Michael Sarich: Okay. We're always very happy to publicize all of the things that we're doing. For example as Eric mentioned, working in the different events that we may have, we're going to publicize those very widely and in advance… in as much as advance possible and as soon as we're able to set dates and so on. We're very much looking forward to an interactive process with all of our groups. We're definitely much stronger together.
Alina M. Semo: Great. Next month, actually, we'll be holding a public meeting of the Chief FOIA Officers Council meeting and Michael and Eric will be presenting there. Lots of opportunities to tune in and hear how much more they've gotten done in one month. Hopefully a lot. All right guys, I know you have to take off, thank you again for bearing with us with our technical difficulties, really appreciate it.
Eric F. Stein: Thank you, take care everyone.
Alina M. Semo: Okay, thanks. I'm just going to keep moving. We are very lucky to have four returning members of the 2018-2020 committee members with us. Tom Susman, Michael Morisy, Patricia Weth and James Stocker, and in no particular order did I say those names. Despite challenges during the COVID-19 pandemic, I am very proud to say that the 2018-2020 term continued to stay engaged and focused. As David Ferriero mentioned earlier, in July, we delivered to him an impressive 22 recommendations at that time.
Again, I want to stress as David did as well, I don't think anyone is expecting another 22 recommendations in this committee term. I think you're going to hear a little bit about that from our four returning members. But we thought it would be very helpful and it would be beneficial to have you hear from each of those members about their experiences in the last term and some other issues that they thought they would like to share with you.
We're going to turn over to them to talk about some areas that we've tackled in the past. Some areas perhaps it needs to get passed on to our current committee. With that, I'm going to turn it over to, who's going first, Tom, James, Michael, or Patricia?
Tom Susman: Okay. Let’s see, I'm off mute.
Alina M. Semo: Tom, you're on.
Tom Susman: Yes. Okay. I have to start by saying, what a thrill it is to be back again. I've been involved, as many of you know, with FOIA and related access issues for decades now, but I learned so much over the past few advisory committee sessions. Today's a great example of so much still to be done in the technology area. That was an area to which I came with very little background and expertise. It is so key to the future for records management, public access, proactive disclosure, that it really is something that I probably have learned more than I've contributed, when it comes to that area. I think we find that through surveys, interviews, speakers, meetings, or demonstrations that we'll all learn a lot in the next months to come.
There have been comments about 22 recommendations from the previous committee, I think Alina said 30 total. I'm struck with the fact that the first advisory committee gave birth to one. We are certainly not on an exponential path, there's no question about that. But I can't help mentioning that even that first recommendation from almost five years ago has not been fully implemented.
It was a simple recommendation to the Office of Management and Budget concerning updating the fee schedule consistent with both the judicial and legislative developments. While OMB has put out a notice on that subject, far from really keeping the job of updating comprehensively for the public guidelines for FOIA fees. We can go back beyond even the 22 recommendations of the last committee, in terms of our look back and implementation.
These are all extremely important, that I think the creation of the technology working group and the FOIA Officers Council, emerged from our work in the advisory committee. I think we've done a lot, got a long road ahead in terms of getting recommendations adopted. I think that interestingly I went over the priorities that Kirsten so ablely put together quickly for us on the spreadsheet that was sent out.
I wish we could cover all of them, they're all great. But I think the more we focus on the work that's been done and building on that, the more we’re likely to accomplish during our term. While the previous committees have expressed their recommendations in a single report at the end of two years, I do suggest that we consider perhaps smaller groups doing interim reports, perhaps not quite as aggressive as an entire volume that we've been putting together.
One example would be if the technology working group comes out with its final recommendations and responses to our recommendation. That would be an occasion for us to engage and perhaps even come out with a short report based on what they've done. Another area relates to the Coronavirus and pandemic, I think most of us have noticed some changes in the way the government has functioned, in some agencies major, in others not. But perhaps they need a short term look at how we can get back to normalcy, even remotely would be important. It needn't take two years for this committee to do.
Those are just throwing out some ideas, what an incredible array of expertise and experience we have, the committees. If we act with consensus, we’ve so far, reports have been unanimous with both the government and private sector.
I think there's no reason why we can't stay that way. We all share... despite our differences of orientation, perspective, professional aspects, et cetera, we are here because we share a commitment to access to government information, including the Information Act. I'm looking forward to working with all of you to begin this challenging journey. Once again, thank you. Who's next?
James R. Stocker: I can go next, if you’d like...or Patricia, would you like to go?
Patricia Weth: You go James, I’ll follow you. Tom’s hard to follow.
James R. Stocker: He is a tough one to follow. Absolutely. Good afternoon everyone. I see my new colleagues, welcome to the FOIA Advisory Committee. I'm delighted to be serving a second term on the committee. I'll echo what Tom said, it's a great learning opportunity, particularly for me who as a historian, as a representative of historians and historical organizations. The point is not what I do most of the time. I definitely bring an outsider's perspective and had a fairly steep learning curve. I'm glad to be back a second time.
The committee is important for a lot of reasons. I think we play an important role and in sharing the effective functioning of democratic government, ensuring that it is transparent. One of the things that really impressed me about the committee, is the high level of collegiality amongst the committee members. I was very pleasantly surprised by it. Especially since in many cases, we sit on the opposite side of the FOIA requests.
It makes a big difference, being able to sit down and chat with someone who experienced FOIA from a different perspective, particularly when your main experience is waiting years on end sometimes for a response or perhaps your experience is in fielding five phone calls in a week from someone who's very excited to see your response to their FOIA requests. I was very happy about that and expect the same going forward.
I also agree with Tom that it would be a very good use of our committee's time, to look back at what previous committees have done. Just because that work does reflect the big investment of effort and if there is no meaningful follow up by a later committee, it’s possible that recommendations can basically fall by the wayside. I do echo that. At the same time, the new members of the community bring a great deal of experience. They bring new perspectives, fresh energy. I think we also have to make room for new issues to be addressed.
I'm a little bit aware of that, because I joined the committee a bit late last year and wasn't able to play a role in setting the agenda of the committee. I think that there's some issues that I personally would like to see addressed and I know that based on the priorities you all submitted you feel the same way.
For me one good use of our time would be to look at the impact of the security classification process on FOIA and FOIA requests. Many of you know there's a separate process [of] mandatory review requests, for requesting specific classified documents. But FOIA requests often concern information that is classified and agencies are thus obligated to review classified documents as part of their responses to these requests. I'm interested in gaining a better understanding of how this process of classification and declassification review impacts Freedom of Information Act requests, hopefully with a goal of expediting the process for requesters.
There's a lot of different directions that this could go in. I think one question that could be asked, is just this basic understanding of the impact of classification on FOIA and access to information. Obviously it takes time to review classified documents, so it ends up slowing down the request box. But I don't think that we have a very good sense of the scope of this issue. Basic questions like, how many FOIA requests across government concern access to classified information?
These are things that we essentially don't know the answer to. What is the average processing time for these requests? What percentage of that time of processing is going towards declassifying the material? All of those are questions that could be of relevance to people interested in improving the administration of the FOIA. I think that those are the things that our committee could explore.
Second thing is a well-known and widely acknowledged problem of over classification of information. All across the government, far too many documents are unnecessarily classified as the declassification process is also often reviewed. Sometimes it takes months or years to clear relatively banal information. It's not clear how seriously the impact of this is on the FOIA process. Is it possible to measure the impact of this phenomenon of over classification on FOIA? That's another thing that the committee needs to look into.
Then finally, perhaps most importantly, what measures could be taken to reduce the impact of classification on FOIA requests? One possibility would be to look at general steps that could be taken to reduce the backlog of documents in need of review. But I think that there are probably other advisory committees throughout [the] government that are looking at this issue. As our speakers a little bit earlier pointed out, it's not always a good thing for various advisory committees to do redundant work.
It might be fruitful to look at specifically how this happens in FOIA requests. Are FOIA requests at different agencies placed into a separate queue for declassification? Do these receive prior authorization with respect to other requests? Are they relatively deprioritized? What should an appropriate process look like? How do other countries around the world handle such issues? What can we learn from this? I think these are all questions that we would do well to look into, because I think there is a large portion of the requester community that is interested in such matters.
In terms of the scope of the inquiry, we could look all across [the] government. But I think that could be a little bit complicated. One lesson that I've learned from last term, is that while we are all very capable individuals, we have limited resources in terms of time, the committee does not have a professional research staff to assist us with these inquiries, and so if our inquiry becomes too large, we can easily get sidetracked and maybe not be quite as successful as we would like to be.
One way in which we can proceed, would be to pick a set of agencies to look at and get a better sense of how classification impacts the FOIA process at these particular agencies. As a historian, I would be very interested in looking at NARA, but I would be open to talking about other agencies that could be included as well. I see Kel has made a comment that we could make a motion to hire research staff. I wish that were possible, but I think probably not. If this is an issue that other committee members are in[to], I'd love to hear your ideas on what an inquiry into classification could look like. Thanks very much.
Alina M. Semo: All right. Thanks. Patricia, do you want to go next?
Patricia Weth: Yes. Good afternoon. I'm Patricia Weth, I'm the acting FOIA Officer [and] Public Liaison at the National Labor Relations Board. I had the honor of serving on last term’s FOIA Advisory Committee. Like the previous committees, our committee had three subcommittees, Time/Volume, Vision, and Records Management. I spent time on the Time/Volume Subcommittee, as well as the Vision Subcommittee, also, I was a part of the final report working group. I want to share with you that you can be on more than one sub-committee depending upon your interests
As you've heard, last term we came out with these 22 recommendations and at the conclusion, I didn't think that I could contribute anymore to the committee. But then in the final report, Jason Baron wrote a section entitled Our Final Observations, in which he makes two suggestions for our current committee. The first suggestion, I know Michael's going to touch upon. But the second suggestion is what I wanted to visit and it echoes what Tom and James were saying. Since Jason is much more eloquent than I am, I'm going to read from the final report.
“As challenging as it has been to fashion these recommendations, the more difficult part is in seeing through their effective implementation. Without intending to bind members of any future term of this committee, we have one further suggestion for the committee to consider. Rather than viewing their mission as one primarily involved in drafting many additional recommendations, members should spend a portion of their time devoted to publicizing past recommendations and measuring/evaluating compliance with them throughout the executive branch.”
Then, Jason gives a few suggestions about how we could go about this. When I read this section of the final report, it really spoke to me and I felt inspired and I wanted to come back and help with implementing these recommendations, because we can make lots of recommendations, but until they're implemented, I don't think we'll see much change.
For me, I'm just going to make a suggestion. Ideally, I would love to have three subcommittees just devoted to following up on these recommendations. But I understand we have all these amazing committee members who have excellent ideas for the FOIA, which will require some subcommittees. I'm going to make the proposal that we have at least one subcommittee to look at these recommendations. We could call it implementation of the recommendations subcommittee. We can workshop that idea, I'm not very creative. But under that particular subcommittee, I'm suggesting that we could have four potential working groups.
The first, I would suggest would be training, which has three recommendations, that that working group could follow up on. The second one I'd recommend would be online access. This would be a combination of three recommendations under the subject matter, enhancing the online access, and also would include the two recommendations under the subject matter of providing alternatives to FOIA access.
Then the third working group, I would suggest would be a congressional working group. We have two recommendations directed to Congress. My thought was that members of this working group and the committee could meet with members of Congress regarding these recommendations and actually draft the proposed legislation and hand it off to the congressmen, so that they could… or senators, so they could drop it. Additionally, Michael will be touching upon another proposed legislation that we discussed a bit last term and I thought this working group could assist with that.
Then the fourth working group that I thought could focus on the subject matter of raising the profile of FOIA within agencies, which has four recommendations. I would also include the two recommendations directed to the Chief FOIA Officers Council. I packed a lot in this one subcommittee in the event we're not able to have more sub-committees devoted to following up on the recommendations. This one subcommittee would be tasked with the implementation or overview of approximately 16 recommendations.
That's just my proposal, I'm just throwing it out there. Then, I just wanted to share some tips or lessons that I learned from last term. Something that I found really helpful, was reading the final report of each of the FOIA committees. Also watching some of the meetings was really helpful too, because you can get a flavor for the meetings and what is expected. Keep in mind though, every committee is different, made up of different members.
The other suggestion or one thing I just want to comment on that was difficult for me to get used to, was at these committee public meetings, which we're in now. Before we speak, we were always told that we need to state our name. I believe, and Kirsten and Alina can correct me if I'm wrong, but this helps with the meeting transcripts, and it also helps to introduce you to the meeting audience.
But the most helpful thing I found were the resources that the committee has, and really and truly the resources are the people and they're the people that we are seeing right now in this meeting. We have Alina and Kirsten here present at all our subcommittee meetings which last term at least were all conducted via teleconference. They're here to support the committee and subcommittees. It's not their first rodeo, so please look to them for guidance. Kirsten really meant it when she said, call me if you have any questions. They've been extremely helpful in pointing me and my fellow committee members in the right direction for various research projects.
Also, last year’s committee members, Michael, James, Tom, and myself will be happy to help. I can tell you, I looked to Tom last year, he was a big help to me and several committee members. We had two projects that were dealing with international research. One was international research on FOIA statutes in different countries and we looked to it to get ideas, how to deal with luminous requests. Another was, we were looking at national models of agencies like OGIS. We interviewed Tom, he was a great source of help, he turned us to this really helpful website. We then set up another interview with another gentleman who was extremely helpful. Don't be shy about asking for help.
Then the third group of resources that are people, are your fellow committee members. I'll just point out like last year, Suzanne J. Piotrowski, who's a professor at Rutgers, she really did a heavy lift in helping with the survey results for one of the subcommittees. Michael Morisy, who's the co-founder of MuckRock, is really helpful at giving us the requester perspective. James and I were on a committee involving the international research and he's a professor at Trinity Washington University and he's fluent in German. He looked at all these German statutes. Really the people on this committee are going to be a huge resource for you.
Then lastly, I would keep your eye on the target on, for each of our subcommittees, we need to complete a final report before the term ends. I would suggest keeping notes on your research and interviews, so that you can describe your methodology and process. The two years go by really quickly and it's hard to backtrack and remember everything that you did. Also a really good subcommittee report, helps us create a stellar committee final report.
I would just point to, if you wanted to look at what I thought was a really good example of a subcommittee report, I would suggest that you look at the Records Management Subcommittee report from last term, it's highly detailed and it has legal support for each recommendation. That's it, that’s the list of my helpful [01:16:15 inaudible]
Alina M. Semo: Okay. Great. Patricia, thanks so much. Michael, over to you.
Michael Morisy: Great. I would just say Patricia said it all and I think so eloquently, except for the fact that she then said I was going to follow up on a few items. I guess I do have to say something after all. But I do want to just echo everything she said, because I think that's a great summary of what makes us a committee, an honor to be on, and a really wonderful opportunity. But also, how we can effectively do our work in a way that aids our field.
I'll start with some of the advice, because I think coming into the committee, I come from a very small nonprofit and I think government committees work a lot different than I've certainly been used to working. Also we're in an interesting place, because we can't legislate, we can't allocate funding, we can't get Amazon to donate color scanners to every federal agency in the country or really do anything directly, which can be frustrating. I think all we can do is provide recommendations. I think we can't snap our fingers and fix any problems.
Our recommendations have to be directed towards the Archivist and the Archivist also can't do a lot of those things directly either. Even coming to the practice of a recommendation can be challenging. I think everybody on the requester side and everybody on the processing side both have some individual wishes that would make everybody's... their particular lives a lot easier. But I think as a committee we're really charged with thinking through the bigger picture.
Because I think the challenge of making recommendations that we can't necessarily enact directly ourselves is also an opportunity, because we're not constrained with the political realities, we're not constrained with the financial realities. We should be looking at, what do we need to do, to make sure our collective field is one that serves the American people, as best as possible? What can we do to create a healthy and vibrant [FOIA] ecosystem that serves the needs of today, tomorrow and many years from now?
I also think it's a wonderful opportunity that brings together both the requester community and the processing community. The FOIA officers that I've gotten to know through the committee in the last term, just so many committed, thoughtful individuals. It's a real pleasure to be working collaboratively on this project, in a way that I think our field doesn't often get enough time and opportunity to do. Being able to work together on this project is [a] really, really important and special space and I'm grateful to get to be a part of it, again.
My advice is to take some time to really listen to what is and isn't working for our peers on all sides of the issues. Which FOIA is a complex challenge, FOIA is not easy. It involves everything from document management, to digitization, to AI, to really tricky political realities and financial realities, and also helping build strong cultural norms, so that Congress and the public support the important work that needs to be done. Because this stuff cannot be done on a zero budget or zero political support. We have an intersection of a lot of really interesting, different fields that come together. We have a chance and really a mandate to take a step back and think through, what do we need to do to make this work for everybody, as best as possible.
As Patricia said, elegantly said, the resources that the committee has here are people and really wonderful people. People with a lot of different experience, from speaking German, to years of experience trying, dealing with things on one side or another. I think being able to tap into that and really work to make sure that the experience that you bring to this committee is helping shape our recommendations, but also, you're doing what you can to elevate the experience that other people have.
I think that's some of my favorite conversations, where people push back on what seem to me like obvious solutions and took a chance to explain, okay, this is why we can't do that or this is why this isn't really feasible. Taking an opportunity to really listen to our colleagues is really wonderful. I think I would just urge everybody on the committee to step back from, hey, I really hate this particular exemption or this specific problem and try to think through what are the larger structural issues that we can help shift the conversation to address when it comes to transparency and the Freedom of Information Act in general.
Finally, while we're delivering recommendations to the Archivist, I think it's important to not necessarily limit our scope to just what the Archivist has to do. I think we can treat our work as yet another accountability measure where we look at how we want FOIA to work in two years, five years and beyond. We tell the Archivist here's our recommendation, but that recommendation can also be a calling to task. If we find, for example, that certain things are not funded in a way that makes them work effectively, I think we have an opportunity to come out and say, here has been the cost of this. Our recommendation is that the business remedied, because this is a historical cost for not doing this properly.
I think there's creative ways that we can use the fact that we are a recommendation body to highlight issues that then help set agendas for other bodies that can then build on our work. I know that when congressional staffers are looking at how they want to shape legislation, one of the things they do is look at the recommendations. They do use this as a springboard.
While it can feel that we're sometimes held back, I think we can use this as an opportunity to say, we are not constrained in ways that other places are constrained. That's general advice, use our constraints as opportunities. I think everybody working in the world of transparency and FOIA, is very used to constraints and working with few resources. I think taking those skills and working with the wonderful people here, is a great path forward.
One of the things I would like to see a subcommittee on, is the idea of extending FOIA and transparency laws beyond executive agencies, to legislative and judicial branches as well. I think that's been a recurring topic that has come up in multiple previous terms. I think that's also something that a lot of members of the public have questions about, wait, why is Congress exempt? Why is the judiciary exempt from FOIA? I don't think there's necessarily easy answers. I don't think this is just, hey, let's make Congress subject to FOIA. I think Congress might have some thoughts on that themselves.
But I do think that this is something where, if we have a subcommittee fully devoted to this issue, we can come out with some really strong recommendations, and maybe that is something that's more nuanced, but I think it is something that we have seen come up recurrent in terms and could really benefit from a clear suggestion or guidance to where we feel it should be, so that it's something that the public should expect transparency. This is a way that we can feel this and other components of our governance.
I'm really excited to be working with all of you. I'm really excited to be working with the three other continuing members. This is a real privilege and honor, because I do think that our work is not just in building a stronger FOIA, is not just building a stronger transparency component for our government, but is really essential to building an informed democracy, I think.
Right now people throughout the country have a lot of questions for a lot of things. Every day you see some of those questions getting answers or getting those questions being met through the power of public records, through the power of the Information Act. I think we serve a really strong role in helping government of the people, by the people, really help be informed about making the best decisions for where we want to go as a country. It's a real pleasure.
Alina M. Semo: Michael, thanks for that. I really appreciate all four of you weighing in. I was remiss in not recognizing Bobby Talebian, who is also returning member, but by charter, not necessarily by choice, as the Director of OIP. Bobby joined us pretty late in the last term of the committee. But he was always coming to our meetings in the past, so he was certainly familiar with the work of the committee. Bobby said he's good. Do you want to share anything else with the…?
Bobby Talebian: No.
Alina M. Semo: Rest of the committee? No?
Bobby Talebian: No. Thank you, Alina. I'm glad to [be] here by charter, but also would be here by choice. A lot of the work that the department does in our government wide policy position in FOIA, is greatly informed by both the agencies and the public. I had the pleasure of working with our prior director, Melanie, from the beginning of the committee and then I had the pleasure of actually joining last year. A lot of great recommendations that OGIS and OIP are starting to work on. Glad to be here and looking forward to more vibrant discussions and exploring how we can all improve FOIA all the way around. Thank you.
Alina M. Semo: Great. Thanks very much, Bobby. All right, so we're a little past our agenda break of 2:35 PM, 2:25 PM, rather, sorry. But if I can ask everyone to keep the 10 minutes and return at 2:55 PM, I would greatly appreciate that. Just a reminder, put your phone on mute and just shut your camera off, but don't log off, because you may have trouble logging back in. See you in 10.
Andre [Operator]: We're live.
Alina M. Semo: Okay. Welcome back, everyone. Thanks again for keeping to our 10-minute break. Thanks for returning and sticking...it's a long meeting I know, and thanks for sticking with us. Now the hard work is about to begin. I really hope that the two presentations you heard before our break, from Eric and Michael and from your fellow committee members, have gotten your creative juices flowing.
I know we also have asked each one of you to provide us two or three areas of interest that you'd like to work on. The spreadsheet was circulated yesterday, as I mentioned earlier. Thanks to Kirsten, our DFO, she was actually able to group all the suggestions into certain buckets, if you will, for lack of a better word and she also identified those suggestions. All of them are great by the way, I never think there's such a thing as a bad idea, but some of them have already been covered by past committees. I definitely want to make sure that we're not duplicating work. There are several themes that I see going across and I'm happy to flag them. But I very much want this to be a robust discussion amongst all of us, about logical stuff committees that we might be able to form, in order to tackle all these important issues. If we can reach general consensus today on forming subcommittees, I am also seeking volunteers for co-chairing each subcommittee. We always want a member for the government side and a member from the requester/industry side.
If I could go ahead and turn it over to all of you. Just remember, state your name and your affiliation before you speak, for the transcript and tell us your thoughts about what you've heard and the way to go forward. Who wants to go first?
Roger Andoh: This is Roger. Can you hear me?
Alina M. Semo: Okay, Roger. Hello, yes?
Roger Andoh: Hi. My name is Roger Andoh, I work for CDC. My takeaway from what I heard from the returning committee members, that I think it would be a great idea to look to some of the recommendations and see the ones that we can push forward. I'm definitely willing to table my recommendations, because they are new and rather look at recommendations from last year, from previous years that we can make a difference on. We should also do.
Alina M. Semo: Roger, thank you. It sounds like you're volunteering to be on the implementation or recommendation subcommittee that Patricia has [stated in her] presentation. Perfect. Thank you and I appreciate that. I'll just also, just mention that the theme that I saw that I circled was classification, I know James spoke to that. Some legislative issues, both old and new, there are definitely some great new legislative issues that have been brought up, and process.
There were definitely a number of process questions and issues raised in slightly different ways. There are some variations on the theme, but I definitely saw a lot of process. Then obviously technology. Just sending those topics out, those buckets out. Anyone else want to chime in? Oh, Kel is raising his hand. Kel please.
Kel McClanahan: One of the things that I noticed and…
Alina M. Semo: Kel, Kel McClanahan.
Kel McClanahan: Oh, sorry, Kel McClanahan, National Security Counselors. Sorry. Many of the recommendations, not recommendations, many of the priorities that were in the list from me and from other people, seem to cut across the buckets that were assigned to them into a bigger picture that I this group hasn't really looked at before, which is basically litigation stuff. Whether it be something that Kirsten had written about, whether or not the issue… whether or not something that's classified should be properly related to the subject of litigation. My issue about, in camera documents and litigation or one of the other topics was to what degree... what happened when the DOJ or the agency takes a position that is against its own stated guidance and litigation.
I think that we've done a lot of stuff going up to that line in the past, but everything in the past has been agency centric and dealing with agencies, dealing with how agencies do with FOIA, dealing with how agencies deal with requesters. But FOIA litigation is an integral part of FOIA. I think the next logical step would be for one of the subcommittees to focus on just the litigation stuff, to everything that involves what happens after a court gets involved, to look at all of those pieces and address the four or five priorities we identified that would fall into that bucket would be the next logical step to me.
Alina M. Semo: Okay. Our thoughts on that?
Tuan N. Samahon: This is Tuan Samahon, of Villanova Law. I just wanted to second that suggestion. I think at the end of the day the judicial enforcement mechanism is what backstop the operation of the statute. It's hard to divorce internal executive agency processing from the judicial enforcement piece of it. I think that it can help inform executive agency process also to understand a little bit better what requesters think of the fair interpretation of the statutes and for there to be some dialogue about that.
I think also some of the reforms, we’ve mentioned the desirability perhaps of going to Congress. At least to my mind, I think OGIS occupies an interesting space within the executive branch and has begun to serve as an office, with respect to the last several years of dispute resolutions, but on the mediation basis, I think to the extent that there were congressional appetite to do so and OGIS, of course, didn't object, that it might be desirable to strengthen OGIS’s role, so that it actually can maybe divert in a meaningful way, some disputes that would otherwise end up in court.
I'm just not sure, from the agency perspective, what freedoms they give OGIS right now, because OGIS has the power of persuasion, but it doesn't wield the stronger stick, with respect to behavior that may exist in agencies that needs to be disciplined.
Kel McClanahan: This is Kel, again. This actually was one of the things that I did not list as a priority, but I think could be looked at through this is, many times you'll see tension between how judges treat a statement by OGIS. Do they give credence to defer it? The agencies often take the position, oh well OGIS just as mediations. You need to look to OIP for the really smart people.
The requesters tend to lean on the side of, well no, but OGIS would set up a statute to do this, but there's been no consensus on that. And so that would be a definite area of exploration and perhaps even recommended reform to say, if we're going to go to Congress with reform or say, make it clear. If OGIS is given the power to write advisory opinions say, and court shall treat them accordingly or something like that, to basically stop the tug of war, so that it's not, no, if I have an OGIS opinion that supports my case and Agriculture has an OIP guidance, which supports their case, the judge doesn't have to go, “Whichever one, I feel like today is given a clear priority.”
OGIS writes about their opinions, OIP sets policy recommendations or the other way around, so that everybody knows which to pay attention to. That confuses the agency employees too, if they have conflicting information.
Bobby Talebian: This is Bobby from DOJ. I really don't think there is conflicting guidance in what OGIS recommends into their advisory [opinions] or when they mediate. Alina can correct me if I'm wrong, but because we've worked together closely, and I've not seen an instance where there's a conflict between what OGIS’s [01:49:38 inaudible] advisory committee, where in a mediation and where it would be a disagreement with our guidance.
The one thing I'd caution about focusing too much on litigation, is that I think that's probably the place that we have least room to make an impact. Particularly if we're talking about [a] judicial court's interpretation of the statute. I would share that we're just wasting the resources that we have on some of these other more topics where we could be more impactful. That would just be my one thought to keep in mind, if we're talking about litigation.
Patricia Weth: Hi, this is Patricia Weth, with NLRB. I echo Bobby's comment about having a litigation subcommittee. But what's come to mind in hearing Kel speak and sorry, the other person before him, and looking at this Excel spreadsheet, I'm wondering if we should perhaps have a subcommittee just for legislative initiatives or congressional initiatives. I know earlier today I was suggesting that it could come underneath the implementing the recommendations.
But looking at the list, this Excel spreadsheet list and hearing the two earlier speakers, I'm wondering if we should just have a subcommittee fully dedicated to legislative initiatives. It could include the two previous congressional recommendations, as well as the proposed legislative recommendation that Michael discussed about expanding FOIA to the judicial and legislative branches. I just throw that out there as an idea.
Alina M. Semo: Patricia, can I just ask you to address Tuan’s comment earlier about the need to strengthen OGIS's role? Because that is something that I know you worked on in the last term. It's something that the previous committee was trying to look into, just so you know.
Patricia Weth: Yes. What we looked at; we were looking about... we were reconsidering the model of OGIS in the Vision Subcommittee. When we looked at it we... I've done a little bit of research, I don't want to take up too much of the committee's time, but we saw... we can ask OGIS to do a lot of things, but they only have so many staff members and so big of a budget, that if their task were to expand even greater such as, finding decisions and mediation, that would be a whole other, almost litigation department that would need to fall under OGIS. But certainly, just in going through all their tasks, I certainly do think that they could use more staff and more resources with even their current tasks.
Alina M. Semo: You're here. Kel is raising his hand again.
Kel McClanahan: Unless somebody has something else to say.
Alina M. Semo: No, I'm just trying to watch everyone from those non-verbal cues. Anyone else want to speak before Kel does? No. Kel, go.
Kel McClanahan: Ok, I just want to respond to Bobby and Patricia, and to say, maybe we can reconcile these two ideas. Because I do like Patricia's idea of having one group that is basically looking at not so much topic area, but remedy area. How would we do this? We would go to Congress. We'd have to think differently about how to do it. Most of the litigation things would be probably going to Congress, we legislated fixers.
If you go back to a lot of the Sunshine Week hearings, almost every Sunshine Week hearing involved somebody, one of the congressmen or senators saying, “If you have a way to reduce FOIA litigation, please let us know.” That's what I'm saying we should do. I agree with Bobby that we can't affect how a judge is going to rule, but we can affect how the litigation happens and we can affect how agencies make their arguments.
We can affect how, to the extent that we want to change the law or recommend to change the law, to say, “Yeah, we can affect how a judge will have to rule if we changed the standard, to make a foreseeable harm standard,” or something like that. I mean every statutory change, changes how judges rule and how a case file works.
Since we have been given, not we, the FOIA committee necessarily, but we, the FOIA community, have been repeatedly begged by Congress to find a way to reduce FOIA litigation or at least reduce unnecessary FOIA litigation or streamline it or make it not so onerous, that seems well within our mandate. Whether we have it as a separate litigation committee, subcommittee or fold those issues into things that would be legislative, I think is semantics as long as it gets addressed.
A. Jay Wagner: Yeah. I have something I’d like to add. A. Jay Wagner, Marquette.
Alina M. Semo: We can hear. Yeah, we can hear you.
A. Jay Wagner: All right. Cool.
Alina M. Semo: Go ahead Wagner.
A. Jay Wagner: That was one of my concerns as far as priorities go as well, I put it under enforcement. Correct me if I'm wrong here, but I think... and I'm certainly sympathetic to Patricia's concerns as far as bandwidth. But I would wonder if that's something that we could think about, is the roles and responsibilities of OGIS. I'm not entirely clear, but I don't think they have investigatory power or subpoena power when they look into disputes.
I would wonder... I know in some states that that's been pretty effective. Also, what kind of authority their opinion has. I don't believe it's binding authority. Again, I know some states, their oversight or ombudsman offices have those kinds of abilities. I'm not saying it's a fix or something that would just need some significant funding, but I was just wondering if that might be something worth looking into as well.
Alina M. Semo: Okay. Thanks very much. Roger, did you have your hand up before?
Roger Andoh: Yes, I did.
Alina M. Semo: Okay.
Roger Andoh: I'm still struggling with trying to focus on litigation. I think the question that comes to mind is, why most cases, FOIA cases are in litigation in the first place. I think that that's the question we should ask. At least from my experience, most times we get there because we didn't provide access to records in the request. Most of... that’s why we're there. If we want to prevent litigation, we need to find ways to make sure that agencies can respond to FOIA requests timely.
That's an important component. I think that's where most of the litigation cases, that's why they started in the first place. Once you get there, then you start talking about….because once they've sued you, then when you provide a response, the next part is, we don't like the way you made your...we want to challenge your disclosed inadmissions on the adequacy of the search.
I think we should be focusing… my view is that we should be focusing on how can we make sure that agencies respond timely to FOIA request[s]? How can we educate FOIA requesters to understand that, in spite of the fact that we're supposed to respond within 20 working days or 30, that realistically for most agencies, that is probably not a possibility? How can requesters and the agencies work collaboratively to make sure that we can find ways to prevent us having to litigate these cases in court? That's my view.
Alina M. Semo: Okay.
Bobby Talebian: This is...
Alina M. Semo: Kristin. Oh, I'm sorry. Kristin raised her hand; Bobby go first though.
Kristin Ellis: Bobby go ahead.
Bobby Talebian: I'll start raising my hand, I forgot. Bobby, from the Department of Justice. I just wanted to echo and just say… and it's something from what Kel said, is I think the last thing I can tell you, is as an agency, [no] FOIA office wants to be in litigation. We want to do everything we can, not to be in litigation. I really think the goal of reducing the need for litigation or reducing litigation, is a very much shared one.
But I think that it really... the problems on the, not the problem, the focus is on the administrative side, because that's what we...kind of what Roger is saying as well. Many of these items that we have that focus on the administrative side, my opinion would be more impactful in reducing litigation.
Particularly one that I was...one that I had made some other folks have also made, is focusing on what are the resources that are needed by agencies to be able to satisfy their FOIA obligations. Something that aren't focused on resources, I think would maybe be a beneficial item for the community to look at.
Alina M. Semo: Okay. Thanks, Bobby. Kristin?
Kristin Ellis: I am Kristin Ellis from the FBI and Bobby kind of just stole everything I was going to say. I think that one of the things that Kel mentioned or one of the words that Kel used was remedies. I think that that was something that Patricia was getting at too with legislation. I think litigation is a remedy, legislation is a remedy, you have to look at what the problem is before you talk about remedy.
A particular topic, the timing for responding to FOIA requests, resource issues may lead to causes of litigation and legislation. I think the core problem has to address, because otherwise then the remedies aren't going to be useful... talking about remedies isn’t going to be helpful until you talk about what the actual problem is.
I think that I would say, unless a subcommittee specifically about litigation for example, then something along the lines of what Bobby was talking about, what Roger was talking about.
Alina M. Semo: What I'm hearing Kristin and Bobby say, is a little more of a process. It's focused on the process bucket that we had identified earlier.
Kel McClanahan: Alina, how many committees can we have? Is there a limit?
Alina M. Semo: No. In theory, you can have 100. No, there's absolutely no limit. We have just found...we were actually going to break down into four subcommittees as I recall in the last term. We ended up melding together two subcommittees into one and that's why we ended up with three. I see Tom maybe wanting to comment on that. But it does get a little unwieldy and it takes up a lot of time.
For Kirsten in particular, I'm very respectful of her time as well, because all the... rubber hitting the road work, where we have to roll up our sleeves does get done at the subcommittee level. But it's very important work. I would discourage you from having 100. I would encourage you to try to keep it to a low number.
Kel McClanahan: Correct me if I'm wrong. This is Kel again. It seems to me that every... I don't actually disagree with Kristin or Bobby or Roger or anybody, I think all of these are good buckets and good topics for committees, it's not a zero sum game. I've heard roughly four to five ideas and we have roughly four to five subcommittees. I don't see that we necessarily have to be debating whether or not we should do administrative or not administrative, we should do recourse issues versus litigation, we should do legislation versus processing, when we can do them all and they would overlap.
Actually, it would be good that they overlap, because each time we have a committee meeting, each subcommittee says, here is what we've done and we feed off of each other for the next quarter. Like the litigation committee can follow up on something that the administrative resource committee did and implement that into whatever we would be doing and so on and so forth. So that by the end of the two years, we have this report that each recommendation basically cross cuts across all of the topics, to provide a holistic attempt at fixing what's wrong with FOIA and what we think.
Alina M. Semo: Okay. Jason has a comment.
Jason Gart: Yeah. Thank you. I guess just to step back before we dive too deep, just some first impressions as an outsider from the requesting community. From reading the reports, I was really... and the recommendation and reports were just excellent, just superb, and very well done. I think one of the things that I was really struck by, was the comment that Patricia mentioned where, what are some proposed legislation?
What are some bigger strategic things that could be done to improve it? There's 22 different recommendations, there's hundreds of different issues that you're facing that, that both the agencies are facing, requesters are facing. I think maybe after going back to the previous work, maybe it's time to just step back and say, okay, how would we really fix it in a more holistic, global strategic view rather than just very tactical dealing with this issue or that issue. That's just my personal impression.
I was surprised that there's not FOIA performance goals and metrics for agencies that they have to implement as part of their strategic planning process. I was really struck by the prior committee's comment and really speaking as a historian, this is someone speaking from the grave so to speak, what publicizes our past recommendations? New group come in here, help us publicize it, because we spent a lot of work coming up with these. That's just my comment.
Alina M. Semo: Okay. Great. That was Jason Gart. I just want to make sure that we put that on the record.
Kristen Ellis: Yeah. Thank you.
Alina M. Semo: All right. Anyone else?
Allyson Deitrick: This is Allyson from...
Alina M. Semo: Sorry, go ahead Allyson.
Allyson Deitrick: Allyson from Department of Commerce. Two suggestions, one, I know some people discussed whether we should have the separate implementation subcommittee and I was thinking it would be easier to have... if you have a technology or a process or whatever committee and have part of that subcommittee’s goal be figuring out which of the prior recommendations they want to implement further or publicize, or do a deeper dive on and then also come up with newer or options of those recommendations.
Then the other one was regarding its potential litigation subcommittee. I agree with Bobby and Patricia and the other speakers, who said that a lot of it feeds into litigation, so if we could improve search adequacy or resources for staffing and timing, I think that would help drive down the number of cases that get to litigation. I think that should be... really have these subcommittees look at things through a litigation focus, but I don't know necessarily that a litigation committee would be the best use because it would just be so all encompassing, unless it was specifically focused. That’s all.
Alina M. Semo: Okay. Thanks Allyson. Tom, were you waving at me and I didn't see you? I apologize.
Tom Susman: I want to make sure I'm [not on] mute. Tom Susman. Litigation is a big problem Kel, but I agree with what Allyson just said and that is, litigation seems to me to fall into two categories, one are substantive application exemptions. That's really, we may have legislative proposals, but I think that's not worth a lot of our time. The other is process. If you read monthly reports or biweekly reports of litigation as Allyson said, adequacy of the search is really probably the single most litigated issue. That's not a litigation problem, that's a process problem.
I also think that to get into litigation, there may be among the group on the screen three or four participants who had firsthand experience with litigation. I think that it may be difficult to a higher learning curve, to try to figure out for those who haven't had a courtroom problem, to figure out exactly how to track that problem back to its origin, as long as the origin isn’t a judge.
I mean, I kinda like the idea of seeing how process reforms could reduce litigation. I think we had this conversation in the last Advisory Committee, about such issues being so heavily litigated and therefore we spent attention to that subject and that's where I think technology has a lot to do with that. I guess I'm a big fan of going back to almost where Alina started, which is process, classification and technology and may be a little bit of a focus on legislation because you'd have to do that to capture Congress or the courts. It seems to me that four subcommittees may be... we may be able to handle it. I'm not sure that over four makes any sense at all, because some of us like to be on more than one and that would spread members too thin. Thank you.
Alina M. Semo: Okay. Thanks I'm going to pick on Allan Blutstein. Allan, you were in the courtroom once, the very first exemption full trial...
Allan Blutstein: I was and it was a forgettable experience because we got crushed and rightfully so.
Alina M. Semo: James, I'm sorry...
James R. Stocker: This is James. I just did want to point out that, although we had three subcommittees last year, we had numerous sub, subcommittees. Depending on how you divide it up, you can see our work as having consisted of more than just three groups. Basically that is to tell you, if we end up with a slightly larger number of committees but we have those committees be relatively narrowly focused, it's not necessarily a problem, at least from my view.
I think the trick is to assign the committee something relatively narrow to focus on. Rather than like, if we say for instance, just the litigation, I mean, well, everything can be litigated, everything is litigation. Whereas as many of you have pointed out, if we focus on a process of litigation or a very narrow question, like how can we best reduce litigation? That then narrows the scope of the work and maybe allows for something productive to come out of it.
Alina M. Semo: Okay. Thanks. Allan, did we cut you off? I'm sorry.
Allan Blutstein: No, I had nothing further on that topic.
Alina M. Semo: All right. Thank you. All right. Anyone else raising their hand?
Alexandra Perloff-Giles: Somehow unable to raise my hand on the chat.
Alina M. Semo: Oh.
Alexandra Perloff-Giles: This is Alexandra Perloff-Giles.
Alina M. Semo: Hi, Alexandra.
Alexandra Perloff-Giles: ... from the Times. I guess whereas Kel sees a multiplicity of committees, I see two at this point. One is FOIA as it is and making that work as well as possible. One is FOIA as it ought to be and that's the legislative side of the house. I agree with those who noted that one of the main reasons for litigation is delay. I mean, certainly from our point of view, that's the most frequent reason we file suit is just to get in the litigation queue, when we're given a deadline of 2023 if we stay out of the litigation queue. Reforms in house at the agency would I think help the litigation side.
Kel McClanahan: This is Kel again. I agree with... I've been saying I agree with everybody because I'm just an agreeable person. I agree with James that it does make more sense to be narrowly focused. When I'm talking about litigation, the people who are saying, litigation is everything, that means you have to look at search, that means you have to look at this. I think that just like we're not trying to duplicate effort with the technology people, for instance.
If there were a litigation committee or subcommittee or sub subcommittee or whatever working group, it would be stupid to have those people look at how to deal with search methodologies and the process group deal with how to deal with search methodologies. It's basically a Venn diagram, where most of the work is done in the part, outside the common area. Like the items that I raised, the priorities I raised, the thing that Kristin raised about the classification, those are litigation specific issues.
Should something be done in litigation, not what the litigation is about, but how the litigation is conducted? That is the thing that I think is being left out by all of these ideas. Is that for good or for ill, the lesson that a lot of FOIA officers learn and a lot of FOIA requesters learn, is that regard... and many people here will disagree with me I'm sure is that, however you do your FOIA process as an agency, if you get sued, the DOJ will defend you and they will defend you whatever your decision was. That sends a mixed message to many processors that I've spoken to. Where they're being told not to do this, but they know if they do it then an AUSA [Assistant U.S. Attorney] will write a brief saying it was perfectly legitimate for them to do it.
Stuff like that, if you don't address litigation conduct and/or how things happen in litigation, like, can ex parte declarations remain sealed forever? Should there be a legislative fix to allow them to unseal eventually? Can you file them at all? Stuff like that. If you don't deal with that piece of the puzzle, anything you do is going to be incomplete and is going to be subject to reversal, the second the lawyers get involved. That's the perspective that a lot of the outsiders have.
Alina M. Semo: I just want to put on my DOJ hat for a second, having been there for 23 years. I respectfully disagree with the fact that DOJ will defend every single FOIA decision that has been made. There are cases in which agency counsel is persuaded to settle or stand down or change their ways. Bobby maybe you can back me up on this... I just want you to know it's not as clear cut as you think, Kel.
Bobby Talebian: Yeah. Thank you, I agree.
Kel McClanahan: I'm oversimplifying, but there's enough of... it happens enough of the time to be concerned. I’ll let it go.
Alina M. Semo: I'm hearing lots of different ideas. I'm mindful of the time as well. My hope was that we could end our meeting today with at least some subcommittees formed. I'm hearing and maybe I'm just echoing Tom, but I'm still hearing a lot of process discussion. I haven't heard classification come up as much, so you obviously weren't doing your job. I'm still hearing technology and I'm hearing legislative. And maybe woven throughout those are our past recommendations. Kristin is raising her hand.
Kristin Ellis: If you need some more discussion of classification, I would certainly support a committee on classification. It was one of...it's related to one of the items that I brought up and what James was talking about, I thought made a lot of sense to discuss.
Alina M. Semo: Okay.
Kel McClanahan: Same here. I would support classification.
Alina M. Semo: Okay. One suggestion I could make and see how everyone reacts to it is, one of the homework assignments that I could give, especially if we can select subcommittees, between now and our next meeting is for each subcommittee to come up with a mission or a vision statement of some sort, so they can hone in on exactly what they want to be working on and bring that back to the committee next time for any further assignment. I'm floating that out as a workshop idea as Patricia has said.
How does that sound to folks? I’m seeing nods. Okay. How do folks generally feel about process, classification, technology and legislative as four committees, subcommittees rather, sorry? Nods. Yes. Okay. I'm getting a thumbs up from Alexis, thank you. Okay. Thumbs up from Allan. Good. Okay. Do I have any volunteers for co-chairing any of these subcommittees? This is always my favorite part. Okay. James is raising his hand, for James?
James R. Stocker: I would be happy to co-chair the classification committee. If a government partner is willing...
Alina M. Semo: Okay. Kristin, I see you raising your hand.
Kristin Ellis: I would also be happy to co-chair the classification.
Alina M. Semo: Okay. All right. James and Kristin, thank you. Who else is raising their hand? Linda. Thank you.
Patricia Weth: Alina, this is Patricia. Can you state the subcommittees again? I just didn't...
Alina M. Semo: I have Process.
Patricia Weth: Process.
Alina M. Semo: Classification, Technology, and Legislation or legislative, however you want to get that moniker.
Patricia Weth: I would volunteer for the Legislation Subcommittee.
Alina M. Semo: Okay. Linda, I hope that's not the one you wanted to volunteer for.
Linda Frye: No, it wasn't. I would like to volunteer for working on the Process [Sub]committee.
Alina M. Semo: Oh, makes sense. Great. I need a non-government side for process and legislation. Not all at once.
Patricia Weth: Kel’s hand is up.
Alina M. Semo: Kel, what would you like to volunteer for?
Kel McClanahan: I feel like Patricia on Legislation.
Alina M. Semo: Okay. Thank you. Who wants to work with Linda on Process? Alexis I can't have you because I need one government and one non-government person, unless you want to volunteer for technology. Okay. Michael, are you volunteering for Process?
Michael Morisy: This is Michael, I'd be happy to do Process or Technology.
Alina M. Semo: Okay. All right. Thank you. That leaves us with Technology, I haven't heard anyone raise their hand for that. Does anyone have thoughts about, do we need to have a technology subcommittee that's separate? What's the consensus on that?
Kel McClanahan: What would be the goal of the technology subcommittee?
Alina M. Semo: Real question. Kel, like the rest of us, you can see all the technology issues that were raised...and definitely work very closely with the Technology Committee from the Chief FOIA Officers Council. But there are...and I have passed on all of your suggestions by the way, collectively the committee to the Technology Committee coaching them so they are aware. But the one thought that I have about the Technology Committee that would be formed here, is that it would involve both the requesters side and the government side. Whereas the Technology Committee only has government folks. I think that's a fair point to make.
Jason Gart: This is Jason.
Kel McClanahan: The reason I ask...oh who said that?
Jason Gart: Oh, I'm sorry. Jason Gart, History Associates. I'd be happy to co-chair the technology.
Alina M. Semo: Okay. Thank you.
Allyson Deitrick: This is Allyson Deitrick from Commerce. I'd be happy to co-chair the Technology [Sub]committee from the government side.
Alina M. Semo: Okay, great. All right. Thank you very much. I really appreciate everyone. Now even the harder part now comes for each one of you and I'm not going to ask for it necessarily today, but please start thinking about what subcommittees you'd like to help with. Even if you don't want to be a co-chair, there are lots of opportunities for work and you've heard some folks talk about the fact that there were sub sub subcommittees.
We actually used to joke about that a little bit at our committee meetings last year and the year before, because sub sub subcommittees would actually give reports. We certainly want to encourage that. I also want to add that I also saw a lot of synergy. I hate that word, it's my least favorite government word, but I'm still going to use it, among the subcommittees and this last term and the term before.
To the extent that there was overlap on subject matters, subcommittee co-chairs would be talking to each other and communicating and collaborating on overlap areas. There's always that possibility. Alexandra did you want to say something?
Alexandra Perloff-Giles: No, that's okay.
Alina M. Semo: Okay. All right. How are we feeling about the decisions we just made today, is everyone good? Everyone have any heartburn over anything? Okay, no heartburn. Thank you.
Kirsten Mitchell: Hi Alina. This is Kirsten, I just wanted, if we can go over these again, who is co-chairing each of the committees?
Alina M. Semo: Sure. Here's what I have. I have Linda Frye and Oh….Michael Morisy, for the Process Subcommittee. For Classification, I have James Stocker and Kristin Ellis. For Technology, I have Allyson Deitrick and Jason Gart. For Legislation, I have Patricia Weth and Kel McClanahan.
Kirsten Mitchell: Great. Thank you. I just wanted to make sure…
Alina M. Semo: Did I get that right guys?
Kirsten Mitchell: ... everyone was on the same page.
Alina M. Semo: Everything good? Okay, good.
Patricia Weth: Alina…
Alina M. Semo: All right. Any last comments that anyone would like to make or questions or thoughts that they want to share before we turn our time over to any public comments or questions that folks may have, who are watching us out there in virtual land?
Patricia Weth: Alina it’s…
Alina M. Semo: Yes, Patricia.
Patricia Weth: Patricia Weth, NLRB again. May I just ask a question about the subcommittees? I do have a little bit of heartburn over the subcommittees, only because I was looking for a subcommittee that could be devoted to helping address the previous committee’s recommendations. In looking in this spreadsheet, I see a lot of people were interested in a lot of things that we've touched upon in the past.
Is the thought with these four subcommittees, I could see maybe the Process Subcommittee, Technology, and the Legislative Subcommittee could certainly look at the past committee’s recommendations and maybe underneath each of those subcommittees, have a working group that can try to implement or address those past recommendations? Is that part of the thought process and having these four subcommittees?
Alina M. Semo: Patricia, to me that sounds like it makes a lot of sense. Because I think there's a lot of folks who have weighed in and said, “Yeah, we're really interested in this issue.” Then of course Kirsten and I were very quick to comment, “Oh, that's already recommendation number five.” I think there's definitely a lot of overlap. I would ask each of the subcommittee co-chairs to talk amongst themselves. When they are drafting up some kind of mission or vision plan, to ensure that they're also going to be working on past recommendations. Will that give you a little less heartburn?
Patricia Weth: It would. Although ideally I would have loved just to have one subcommittee to really babysit on those previous recommendations, but I think at least three of these four subcommittees could perhaps help move along some past recommendations. I don't think the Classification Subcommittee [02:27:22 crosstalk] because I don't think there's been any past recommendations on that. At least not to my reflection.
Alina M. Semo: Okay. Thanks. Kel is raising his hand. Last comment.
Kel McClanahan: Kel McClanahan, NSC [National Security Counselors]. I think that a way we might be able to do that pretty easily without forming a new committee, is to form two people, Roger and Jason, or Roger and Allan, or someone like that to basically be... their entire job is to coordinate the working groups on outreach or whatever we want to call it and implementation and marketing. They wouldn't have a committee of their own, their committee would be all the other people who are in all the other committees, who are working on these issues. They'd be like co-coordinators for marketing or implementation or something like that.
Alina M. Semo: Any other reactions to that comment? It sounds like there's rooms for compromise and shuffling around a little bit, in terms of issues that we're all looking at. I don't think anything is set in stone. I guess I am urging all the subcommittee co-chairs to think about strongly… this is my pitch on behalf of Patricia, also a pitch on behalf of myself as the director of OGIS….22 recommendations is a lot, so any help you want to give us, I know that I would appreciate. Also speaking on behalf of Bobby, I think he would appreciate that. We definitely need the help, so that would be great.
Okay. I don't see anyone else raising their hand or waving frantically at me. With that, I do want to turn to our section of the meeting where we hear public comments. We look forward to hearing anyone who stuck around this long, any comments or ideas that they would like to share. Andre, I would like to ask you to open up our telephone lines at this time and provide instructions for those of you who are calling in and listening in.
Andre [Operator]: To ask a question, press pound two on your telephone keypad, you will hear a notification when your line is unmuted. At that time, please state your question. Alternatively, you may submit a written question by selecting all panelists from the dropdown menu in the chat panel, enter your question in the message box and send. Again, pressing pound two on your telephone keypad will indicate that you have a question. Opening the lines to the public. Looking to the phone lines for any raised hands. We have one raised hand. Please go ahead caller, state your name.
Edward Hasbrouck: Thank you. My name is Edward Hasbrouck and I am a freelance journalist and a consultant to several nonprofit organizations. I'm one of those regular users of FOIA. One for whom FOIA is essentially, completely broken, and dysfunctional. But two, who does not have the resources to litigate and so agencies know that they can with impunity ignore me. Even if they're not of bad faith, there's still an incentive just because of prioritization to ignore those who are known or not likely to be able to litigate.
I think this committee has a particular responsibility to raise a voice on behalf of the vast majority of FOIA requesters, who are never going to be able to litigate. I could go on at great length, but since this is your first meeting and your agenda topic is supposedly the prioritization of tasks. I want to limit myself to one point, which is what I think should be your highest priority, because it doesn't require legislation and I think you might actually be able to accomplish something.
That is to push for implementation of the provisions of the 1996 E-FOIA Act, requiring production of records in any form or format in which they are held and in which they are readily reproducible. Despite having been on the books for more than 20 years, this provision has been almost entirely ignored. Tools, such as FOIAXpress, have been procured and deployed, even though they are incapable of satisfying the statutory mandate and should have been excluded from consideration of not meeting the bid specifications.
Agencies have made no effort. Their first step in processing responsive records typically, is to take the responsive files. They use this rhetoric of documents. I urge you to purge documents from your vocabulary, most of the records that I and others are requesting are not in document form; they are in digital files. They take the responsive files and the first thing they do is they substitute newly created PDF documents for the responsive files.
Everything else they do, treats those substituted PDFs as though they are the responsive records, which they're not. A starting point towards implementing, I think many FOIA offices would process records properly in native format, if they were given guidance and a ready tool set and workflow for how to do that. That could apply to a lot of different types of records, the most obvious sort is email. Where email is, again, take extreme shots, which is effectively redacting in the client, because that only shows some of the headers.
Then they put them in the paginated PDFs, they aggregate an indeterminate number of email files into one PDF. If you get the emails in native format, you can import the emails into an email client like Thunderbird, or you can import them into a cloud-based email client like a Gmail account then use the robust tools available in those email clients for searching and mining and making use of the responsive records.
A first step should be giving agencies guidance. FOIA officers should know in what file formats email was actually served stored on their email servers. They should have tools readily available for redacting and releasing email in the file format in which it is served on their servers. Beyond that, reproducing records in native format should include guidance for, for example, how to produce a record of an agency’s Facebook account, how to produce...
I'm dealing with an agency now that is about to be disbanded next week. It said that on the dissolution of the agency, they're going to delete all their social media accounts. They're going to delete the Eventbrite account they've used for keeping track of participants in their meetings. They're going to delete their Zoom account. They have Google Analytics tracking cookies on their .gov website, which enables Google to produce reports for them as to who's visited their website.
What would a report of a Google Analytics account look like? There should be readily available templates for how to produce records of these kinds of outsourced accounts in native format that FOIA offices have available. Again, this book...or law has been on the books for more than 20 years. There's been no movement, the tools have completely ignored it.
You should start with tools for redacting and producing email messages, whether it's in .MDX files or .EML files, whatever file format they're stored on agency email servers, that would also make searching a lot easier. Because what happens is, agencies will go into… they'll pass the search out to individual users who will go into their email clients and try to do searches. Email is typically stored in ASCII text.
What should be going on, is they should be doing breaths of the servers for the text strings that people are looking for. But until they start thinking of the responsive records as the actual files and understanding something about the file formats in which records are stored, rather than focusing their mind on these substituted PDF documents, we're never going to move forward.
Please, please… Look, you don't need new laws when we've got 20 plus year old laws that nobody's even started to implement. Work on the E-FOIA amendments of 1996, starting with email. Thank you.
Andre [Operator]: Oh, I believe you are muted.
Alina M. Semo: Hi, sorry. That was me talking to everyone and saying thank you for your comments. That might be a great topic for the Technology Subcommittee to take up. I'll add that to your list of things to consider. I'm going to turn to Martha Murphy, our Deputy Director from OGIS. Do we have any questions or comments that came in on the chat during our meeting that you want to tell us about?
Martha Murphy: Sure. First off, someone just asked if the public comment section will be transcribed or made part of the record. Yes, the entire meeting is going to be transcribed and we will be releasing the transcription, as soon as possible on OGIS’s website. Regarding Tom's comment, does the Advisory Committee need... and I believe this had to do with perhaps not waiting until the end of the Advisory Committee to put out all of the information that we're gathering. Does the Advisory Committee need to make recommendations early this cycle relating to FERMI [Federal Electronic Records Management Initiative] and the use of technology? That was the first question.
Alina M. Semo: Anyone want to fill that question?
Tom Susman: Yeah. My answer would be, we need to do it... if we're going to participate in this area, we need to be timely. I'm not sure exactly where things stand with FERMI now, but I wouldn't wait until 2022 to respond on things like that.
Martha Murphy: Thank you. The next question was, what happens to the Records Management Subcommittee work? Will their recommendations be split amongst the new subcommittees for follow up?
Alina M. Semo: It’s close to Patricia's point which she was making earlier. Do we have returning members who want to comment on that?
Bobby Talebian: I guess one thing we could do... this is Bobby from DOJ, is that once the committees have done their vision and they've considered which of the prior recommendations they would be looking into, we can see if there's any gap.
Alina M. Semo: Ok good point. James. Sorry, James, go ahead.
James R. Stocker: My thought is basically, I suppose more of a question of whether we are going to attempt to review all prior recommendations by all of the previous committees or whether we're going to be selective. I think it might actually be a good idea to be selective and take on with some of them. It's nice that we're finally for the first time, going back and looking at prior recommendations. It would be a little bit of a shame if we had a dedicated subcommittee this term and then we didn't do it again for six years. I think it would be setting a nice tradition if we could integrate this into the work of the subcommittees and set a precedent for future committees going forward to do more of the same work, so that every single term, at least some of the previous recommendation could be looked at.
Martha Murphy: Okay
Alina M. Semo: Martha, any other questions.
Martha Murphy: Okay. Yeah, one more, actually a couple more. One is, someone wrote, scanners for all agencies, more attention to FOIA and transparency. Historically, Congress has been painfully slow to recognize the needs of the agencies in this respect, how can the public help you with that?
Alina M. Semo: Okay. Kel would like to address that.
Kel McClanahan: I can answer that, though I don't work in an agency. This is Kel McClanahan. I have dealt with Congress a lot on this very issue and that's the solution. If you want Congress to pay attention to FOIA, you have to get Congress to pay attention to FOIA. As trite as it sounds, you do that in the same way, you get Congress to pay attention to anything. Even if it's not writing your congressman, write a blog post, tweet about it, do something that will get notice to it. If you see something, say something.
If you have a particular story, you filed a FOIA request and you got back this bizarre response, or it took forever because they were running it on a 1996 scanner or they printed it out on that dot matrix paper, because they didn’t burn CDs or something like that, go talk about it, draw attention to it. The more attention you draw to it, the more people who actually talk to Congress, whether it be in their committee form or like me as an advocate going and talking to Congress, we can point to what you did. We can point to your stories and say, look, the people want you to do something about this.
Alina M. Semo: Kel also, since you've volunteered now to be the co-chair of the subcommittee on legislation, maybe that's something you can add to your toolbox of things you want to look at. Okay. Martha, anything else? You said you had one more?
Martha Murphy: Some of the folks who are watching this on YouTube, wanted to know what phone number to call in. I just wanted to explain, there were two methods to access this presentation. One was to register in advance and then you'd have access to the phone to call in. Folks who are watching on YouTube, unfortunately you don't have that opportunity, but feel free to type something in the chat, we are monitoring the chat.
We've got a couple minutes, so if you want to quickly type something into the chat. Otherwise, you certainly can get in touch with us after the meeting and we'll be happy to forward the information onto the FOIA Advisory Committee. I'll ask Kirsten to please give us the email address for that.
Kirsten Mitchell: Sure. I'm happy to do that. This is Kirsten. The email address is firstname.lastname@example.org. Alina…
Martha Murphy: Thank you.
Kirsten Mitchell: ... we have one last question that... or maybe not the last, but we have another question that's come up.
Alina M. Semo: Sure.
Kirsten Mitchell: That is, which subcommittee will address requirements and auditing of electronic reading rooms and other public facing tools? Before I throw that out there, I just want to say that one of the assessments that OGIS is currently working on and we hope to publish in the near future, deals with electronic reading rooms and posting documents on those reading rooms. Stay tuned to OGIS. Then again, the question, which subcommittee will address, requirements and auditing of electronic reading rooms and other public facing tools?
Alina M. Semo: My two cents, process and technology could both be looking at those, but just throwing that out for folks to think about. Okay, Martha, you're good on any other comments or questions on chat?
Martha Murphy: There’s one more question. I'm not sure which, but this person they said, asking about the ETA on the OGIS release date, but I'm sorry, I'm not sure the release date on what.
Kirsten Mitchell: I think it was the report that I just mentioned on posting documents to…
Martha Murphy: Gotcha.
Kirsten Mitchell: ... FOIA meeting rooms. Yeah. We're hoping to post that, gosh, I would say certainly in the next month or so. Stay tuned for that. By the way, that is the result of a recommendation from a prior FOIA advisory Committee, actually the 2016 to ‘18 term of the committee.
Alina M. Semo: So maybe we'll only have 29 recommendations left.
Kirsten Mitchell: Many of them have already been addressed.
Alina M. Semo: That's true.
Martha Murphy: That's all the comments that I saw.
Alina M. Semo: Okay.
Martha Murphy: That was all that I saw, Alina. Thanks.
Alina M. Semo: Andre, I just want to ask if there's anyone else on the phone line that wants to ask any questions, otherwise we'll wrap it up.
Andre [Operator]: We're not seeing any hands raised at this time. Just as a final reminder, pressing pound two on your telephone keypad will indicate that you have a question, pound two. Going once going twice, three times. No hands raised.
Alina M. Semo: All right. I just want to close up. I'm trying to very much be respectful of everyone's time. I do apologize for all the technical difficulties we had today. I promise you; it normally does not happen; this is definitely an outlier. We probably rushed through a couple of the topics, but I feel like we got a lot of work done today. I hope you're all feeling very good about everything we've done here together today.
I want to remind the subcommittee co-chairs of your homework assignment. I want to ask all the committee members to volunteer, to serve on subcommittees and get the ball rolling, because our next meeting is not until December 10, I believe. Actually, I'm fairly confident we're going to be meeting virtually again on December 10th. It's a Thursday and the time is going to be 10:00 AM to 1:00 PM. I want to thank all the committee members today.
Anyone have any parting words or last comment that they would like to make, before we all say goodbye? No, I'm seeing lots of shaking the heads of no. Thank you again for joining us today. I hope everyone and all of your family stay safe, healthy, and resilient. We will reconvene on December 10th. With that, we stand adjourned. Thank you.
Andre [Operator]: That concludes our conference. Thank you for joining and using AT&T Event Service Enhanced. You may now disconnect.