FOIA Advisory Committee Meeting (Virtual Event)
Thursday, December 10, 2020
10:00 a.m.-1:00 p.m. (EST)
Michelle [Operator]: Ladies and gentlemen, welcome and thank you for joining today's 2020-2022 FOIA Advisory Committee meeting. Before we begin, please ensure you have opened the chat panel by using the associated icon located at the bottom of your screen. Please note, all audio lines have been muted and we are currently recording this conference. You are welcome to submit written questions throughout the meeting, which will be addressed at the Q&A session of the meeting.
To submit a written question, select all panelists from the dropdown menu in the chat panel, then enter your question in the message box provided and send. If you require technical assistance, please send a chat to the event producer. With that, I will turn the meeting over to David Ferriero, Archivist of the United States. Sir, please go ahead.
David S. Ferriero: Good morning and welcome to the second meeting of the fourth term of the Freedom of Information Act Advisory Committee. I'm joining you today from 700 Pennsylvania Avenue. Once again, and for the fourth time in 2020, the committee meets virtually, as we soon enter our 10th month of physically distancing ourselves from one another.
Today, December 10th marks 72 years since the United Nations adopted its Universal Declaration of Human Rights. Nearly two decades before Congress passed the Freedom of Information Act, the UN declared in 1948, that everyone has the right to freedom of opinion and expression. That right, the UN declared in Article 19, includes the quote, “Freedom to speak, receive and impart information and ideas through any media and regardless of frontiers.” That freedom is so well enshrined in our American FOIA statute.
I'm pleased that the committee will discuss today the intersection between FOIA and classified records, an issue of great importance to the National Archives and ripe for examination by the FOIA Advisory Committee. Bill Fischer of the National Declassification Center here at the National Archives and John Powers of our Information Security Oversight Office, ISOO, are joining us today to give overviews of the work of their offices and how this work relates to government transparency.
Over the past 18 months, ISOO has engaged with a diverse group of stakeholders and subject matter experts from federal agencies, Congress, and civil society groups to gather their recommendations on data collection reform. The desired outcome is to end outdated ineffective data and information collections about information security programs, government-wide. This year, despite the pandemic, ISOO is piloting a new questionnaire that consolidates and streamlines data collection. That process for reform mirrors the collaborative work that is the hallmark of the FOIA Advisory Committee.
I'm also proud of the work of the National Declassification Center, NDC. They systematically declassified records, including last year’s combination of the U.S. declassification project for Argentina, the largest government to government declassification project in United States history. The projects resulted in the declassification and the release of more than 11,600 records relating to human rights abuses, committed in Argentina between 1975 and 1984. While not tied directly to FOIA, this historic release of records affirms the National Archives' commitment to transparency and illustrates how the NDC and ISOO bring together people and processes to improve declassification and public access to historical records.
As I said at the FOIA Advisory Committee's kickoff meeting in September, much work is ahead for you, but I'm pleased that the committee's four subcommittees, looking at national security classification, FOIA process, legislation, and technology, have begun work and are charting their course for the next 18 months. Finally, as the hours of daylight grow shorter and time separated from colleagues and loved ones grow longer, I extend best wishes for peace and resilience in this season of light. Please take good care and stay safe. I now turn the meeting over to the committee's chairperson, Alina Simo.
Alina M. Semo: Thank you so much, David. Good morning everyone, as the Director of the Office of Government Information Services, OGIS, and this committee’s chairperson, it is my pleasure to also welcome you to the second meeting of our fourth term of the FOIA Advisory Committee. I would also like to introduce the committee's Designated Federal Officer, DFO, Kirsten Mitchell, the glue that holds us all together. She is going to help me stay on track today, as she always does. You'll be hearing from Kirsten shortly with some important updates.
I believe we have everyone joining us today. I want to welcome all of our committee members. I hope everyone who is joining us today, both on the committee and in our audience, has been staying safe, healthy, and well. I want to express my gratitude for the committee members’ commitment to studying the current FOIA landscape and developing consensus recommendations for improving the administration of FOIA across the federal government, particularly under more difficult circumstances of 2020 and unfortunately ongoing into 2021.
Today, in the interest of time, I would like to dispense with the roll call today, and just say a group hello to everyone. Hello. As I mentioned earlier, all 20 committee members are here today. I also would like to welcome our colleagues and friends from the FOIA community who are watching us today either via WebEx or NARA YouTube. We do have another very busy agenda today, so I will keep my opening remarks brief and do my best to make sure we stay on track, so we can end on time.
Despite today's ambitious agenda, we will leave time at the end for public comments. We look forward to hearing from any non-committee members who have ideas or comments to share. We will open up the telephone lines for the last 15 minutes of our meetings. OGIS’s Deputy Director, Martha Murphy will be monitoring the WebEx chat function throughout the meeting.
OGIS Attorney Advisor, Sheela Portonovo, will be monitoring the NARA YouTube chat function. If any one of you has any questions or comments, please feel free to chat them at any time. You may also submit public comments, suggestions, and feedback at any time by emailing firstname.lastname@example.org and we will post them to the OGIS website.
I have some housekeeping rules before we get started on our substantive meeting. Meeting materials for this term are available on the committee's web page. Click on the link for the 2020 to 2022 FOIA Advisory Committee on the OGIS website. Please also visit our website today for the agenda for today. We will upload a transcript and video of this meeting as soon as they become available. Members' names, affiliations, and now biographies, we've added those recently, are now posted.
As I said earlier, I will dispense with the formal roll call, but we can report that all 20 of us are accounted for today. Michael Morisy, I believe has just joined us recently, hopefully, his audio is on. I also just want to let everyone know Alexis Graves has to leave at 12:20 today. We've agreed to give her the floor first on part of our agenda, since she has to leave a little bit early.
As everyone knows, we've been holding our meetings virtually since March. The virtual environment has advantages for many of us, including what we have started to all refer to as business on top and party on the bottom. I'm guilty of that myself today. 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 at any given second in time. We're trying our best to monitor all faces at all times.
We will be looking for nonverbal cues, but we just want to remind everyone to be respectful of one another, try not to speak over each other, although I realize that maybe inevitable at times. I want to encourage all committee members to also use the all panelists option from the drop-down menu in the chat function if you have a question or would like to make a comment, or you can also chat me or Kirsten directly, we'll be monitoring the chat function.
But in order to comply with both the spirit and intent of the Federal Advisory Committee Act, FACA, please be sure to keep your communications in the chat function to housekeeping only, no substantive comments, as they will not be recorded in the transcript of the meeting. Also, an important reminder, because I'm guilty of this myself if you need to take a break, please do not disconnect from either audio or video web event. Instead, put your phone on mute and close your camera, or turn off your camera. Send us a quick chat to me and Kirsten, to let us know if you'll be gone for more than a few minutes and join us again as soon as you can. Don't do what I normally do, which is I just hang up, and then I have to start the whole cycle all over again, it's very painful.
We have noted a 15-minute break at 11:20 on our agenda, we hope that we can keep to that. We'll break a little bit earlier or later, depending on how our pace is going. Also, a reminder to all of our committee members, please remember to identify yourself by name and affiliation each time you speak. I know it was hard to do that. I myself always forget that as well, I'm trying to remind myself as well. But it helps us tremendously with the transcript and the minutes, both of which are required by the Federal Advisory Committee Act.
Before we move on, next, I would like to have us look at the meeting minutes for our first meeting from September 10th, we need to approve those minutes from that meeting. Kirsten has circulated all of those minutes to the committee members. Later today, Kirsten and I will certify the minutes to be accurate and complete, which we are required to do under the Federal Advisory Committee Act, within 90 days of our last meeting.
At this time, I do not believe we have any comments or questions, or concerns about the minutes from any of the committee members. Kirsten’s shaking her head, no. Do I have a motion to approve the minutes in their current form? Tom, thank you. Do I have a second? Even though one is not required, I'll take a second.
Roger Andoh: This is Roger, yes.
Alina M. Semo: Thank you, Roger, for your second. All present in person in favor of approving the minutes, please say aye.
Members of the Committee: Aye.
Alina M. Semo: Thank you. Is anyone opposed? No one opposed; therefore, the minutes are approved. Thank you, that was very painless. At this time, I am now going to turn the meeting over to Kirsten, who will provide some updates on task committee recommendations. I'm going to turn to our event producer Michelle, to ask her to display our dashboard. Thank you.
Kirsten Mitchell: Thank you, Alina. This is Kirsten. Those of you who watch the FOIA Advisory Committee closely know that since 2016, the committee has made 30 recommendations to the Archivist for improving FOIA administration across the government. To help committee members and the public track the status of these recommendations, we created this dashboard tool on the FOIA Advisory Committee page of the OGIS website. Michelle, our event producer has pulled it up on the screen. Thank you, Michelle. The dashboard provides three things: descriptions of each recommendation, actions taken to fulfill each, and links to reports, correspondence, and other related materials.
A couple of quick notes. Thank you, Michelle, I think you can stop scrolling. For the recommendations marked complete, OGIS and indeed the current FOIA Advisory Committee, recognize that opportunities may exist for additional work. For the recommendations not completed, they are marked either in-process or pending. The in-process recommendations we are actively working on, while the pending recommendations we have not formally launched, but expect to do so as early as January 2021.
We plan to regularly update the tracker and keep it up to date. We will also announce big updates on our FOIA Ombudsman blog and on Twitter. Our Twitter handle is @foia_ombuds. A shout out to my colleague, Christa Lemelin, who turned this from idea to reality. We think it's a great tool for transparency and accountability. It's already made my job easier. I invite everyone to please check it out. We shared it with the committee members a week or so ago, just before we made it public. Please check it out, but not right now.
We're about to hear some interesting information about FOIA and classified records. I will turn it back over to Alina to introduce our National Archives colleagues, Bill Fischer, and John Powers. Over to you Alina.
Alina M. Semo: Kirsten, thanks very much. I really appreciate that. Yes, I really want to thank very much Kirsten and Christa Lemelin and my terrific OGIS staff, who's been putting a lot of work, not only on this dashboard but everything they’ve done this year. Thank you very much. I am very pleased to welcome my colleagues from two of our, what I like to call sister offices, the National Declassification Center, NDC, and the Information Security Oversight Office, ISOO, Bill Fischer and John Powers. I refer to them as our sister offices, because ISOO, NDC, and OGIS are organizationally all situated under the umbrella of Agency Services here at the National Archives. I want to give a shout-out to our Executive for Agency Services, Jay Trainer, for his continued support of all of our programs.
William P. Fischer, otherwise known as Bill, was appointed Director of the National Declassification Center in February 2019. Prior to this appointment, Bill served in a number of positions at the Department of State, involving records management, declassification, and other information access programs. Most recently, having served as the Deputy Director of the Office of Information Programs and Services at the State Department.
Prior to joining the Department of State in 2008, he served in a variety of archival roles in NARA, from 1998 to 2008. Bill circled back to his favorite home agency. He holds a BA in History from the University of Montana, an MA in History from Montana State University. Something I just learned by looking at his bio the other day, a Ph.D. in History from the Catholic University of America. From now on, I will be calling him Dr. Fischer.
John Powers serves as the Associate Director for Classification Management at the Information Security Oversight Office, ISOO, where he also serves as the Senior Staff Officer for the Inter-Agency Security Classification Appeals Panel. That's a mouthful. The acronym, as we love to have in the government is ISCAP, and the Public Interest Declassification Board, known as PIDB. I know John will explain those acronyms in his presentation today.
In his 29 years of work at the National Archives, John has served in many roles and positions, almost all focused on declassification, public access to government information, and transparency. A quick personal note, I first met John when I was still working at the Department of Justice, working on the Nixon tapes case and John was working at the Nixon project a long time ago. From 2015 to 2018, he served as the Director of Access and Information Management at the National Security Council. John holds a BA in International Relations from the College of William and Mary, and an MA in U.S. history from George Mason University.
Both Bill and John would try to stay through the end of the meeting today to answer any questions. But in the event, either one of you gets pulled away gentlemen, please know we will post any questions that we receive and your answers on our website at a later time. With those introductions, thank you again very much for joining us. I'm turning it over to you, John.
John Powers: Okay. Can everybody hear me? I hope.
Alina M. Semo: Yes.
John Powers: Thank you for having me, OGIS. And welcome to everybody virtually. I'm here today, I'm representing our Director, Mark Bradley, who is on a virtual book tour today for his book that just came out about a month ago. Let me give you a little thanks to the OGIS staff for putting this together. I'll thank you in advance for your comments and questions. I'm looking forward to staying throughout the meeting today and answer your questions at the end.
This is probably the eighth meeting I've done from my bedroom, which happens to be the quietest place in our house. With two kids virtually learning, a wife that is also on WebEx right now and I also have a very big dog who is barking at a construction crew outside our front door. Hopefully, that's not going to interrupt us all. Next slide, please. Let's go to the next slide after that.
I want to give you a little bit of history about ISOO, first of all. We were created in 1978 under Executive Order 12065, by President Carter. We were initially part of the White House and began life in the New Executive Building Office, and then moved to the National Archives in the mid-1980s. We are indeed a very small office with a very large portfolio. Almost all of that is focused on managing government information.
We are a little bit unique though, we receive our policy guidance from the National Security Advisor. We do work very closely with the National Security Council on matters relating to information security and information management. In fact, our director is appointed by the Archivist of the United States, with the approval of the National Security Advisor. A unique position there as well.
That said, organizationally within the National Archives, like OGIS, we report to the Executive for Agency Services. I've just put a little bit down here about our organizational structure. We have two directorates, an Operations Directorate that works on several information security items, including control of unclassified information, the national industrial security program for contracting agencies in our state, local, tribal, private sector information-sharing program. SLTPS is the acronym for that.
I lead a small directorate called the Classification Management Directorate, that I also think has a fairly big mission here. That includes, going out to agencies and reviewing their declassification programs, managing, and doing all of the work associated with the ISCAP, the Information Inter-Agency Security Classification Appeals Panel, and also staffing the Public Interest Declassification Board. Next up, next slide.
I want to give you an idea just of how big our portfolio is. We actually have five executive orders that we either are primarily responsible for or have a role in. The key for all of these though, is that they are all focused on managing information. For the purposes of this presentation, you're in luck, I'm only going to focus on one small part of that, which is EO13526, our Classified National Security Information Program. Next slide, please.
I put this up just for reference and there'll be a few more of these slides that are up here for reference. But I felt that this was important for you all to see, especially some of you who are FOIA folks who may not know about ISOO, what exactly our mission, vision, and values are. I'd quickly just draw your attention to our mission statement. That is what we do, we are dedicated to it, all 19 of us on staff. Next slide.
What exactly are our primary responsibilities? We're responsible for developing and implementing directives. We work closely with the National Security Council and effective agencies, through [an] interagency process. Once executive orders are signed, the next item is how to implement them, give direction to agencies on what they're supposed to do and what those orders mean. We actually have four implementing directives that we work with every day, once they have been written. The fourth one that's not on here is 32 CFR 2004, which is the National Security Industrial Program.
The other big item I'll talk with on this slide is our oversight in an inspection role. Although we are smaller than we have been, we do try to go out to agencies, look at their programs, see what they're doing right, what they're doing wrong, try to help them improve their programs. That is our overall goal here, I think. It really is to try to help agencies be better. We collect data and I think the Archivist did talk a little bit about that we are in the process of reforming and modernizing the data that we collect from agencies, in a combination of results from both our oversight on-site, our oversight on collecting and analyzing the data, we then report on the results. We do that in a number of different ways, individually with the agency, through our annual report, on our blogs, and also through our ISOO notice program on our website. Next slide.
We have a whole lot of other responsibilities that go with those executive orders, which includes...again, I'll focus on two here. But we do an awful lot of work, with every one of these is still very active despite COVID and the pandemic. They are also all virtual, also on WebEx, with the exception of the Inter-Agency Security Classification Appeals Panel, which typically meets in a classified environment. We have figured out a way to work in SCIFs [Sensitive Compartmented Information Facility] and work across to keep our business going.
Our job there is to serve as the administrative and program support staff. Our director serves as the executive secretary, and we do everything that is related to the panel itself. On the bottom, I'll talk a little bit about the Public Interest Declassification Board, where our director also serves as the executive secretary, that is by statute. Our staff provides all of the administrative and program support for them as well. Next slide.
The biggest part of our work, I think, is our oversight role. Going back to what I said earlier, it is really important here, that we are all trying to help agencies improve their programs. In the case of the Classification Management Directorate, we are trying to help them improve the accuracy of their classification and declassification decisions. In the case of our Operations Directorate where we’re trying to help them improve their safeguarding and how they are protecting their classified information. Next slide.
I put this mainly up for reference. I'm not sure how many of you deal with classification day in and day out. But there are rules for what you can classify, how, when, what, where essentially. That is all spelled out in section one of the executive order. I will leave it at that. On the bottom part of it though, how we monitor how those agencies are doing with that, we do that through our onsite inspections, we do that through data requests, and we analyze their responses, we collect information from them every five years through a fundamental classification guidance review process, which we require all agencies to review every one of their classification guides, to see if they are still accurate, to see if they are still updated, if they need updating. That process should include not just classifiers, original classifiers, and derivative classifiers. It should include users, it should include subject-matter experts, and it also, typically we ask that to include de-classifiers and FOIA professionals as well, to give a perspective on what is going on in the FOIA and declassification world, that may impact what should or should not go in an updated classification guide. Then the last thing that we do regarding classification, is we really do try to help agencies improve their own security education and training programs. Next slide.
This is a reference again, for those of you that are not involved in this every day. I just use the government term that can be very confusing, an original classification authority and a derivative classification. This is the difference between the two of them, just as for your reference. Next slide.
Let me go over that declassification, which I've spent most of my career working on. The rules for that, what, where, when, how, and why, all are found in section three of the executive order. In this executive order, there are...I put down a few items that are for the very first time were included in the executive order. That included that all information was subject to declassification and importantly, for historians, this allowed the president's daily briefs to be reviewed for declassification, which previously the CIA said they could not be. It allows the declassification of artifacts. There are new declassified artifacts in museums, both at the Air Force, at the CIA, and in other places to showcase some of the work that they've done historically. It did tighten the criteria for exempting information and it importantly also set limits. That something that you [00:29:34 inaudible] that was exempted at 25 [years]. Those exemptions ended at 50 or they ended at 75, depending and you had to ask for a new request after each certain time threshold.
Of course, for Bill, it created the National Declassification Center, with the goal of trying to bring all of the classification agencies under one roof, as they prepare to make records public. I really think importantly, one of the things that has been helpful for the declassification center, and I'm sure Bill will probably talk a bit about this here, is one section of the order said, was really designed to try to limit unnecessary referrals, something that I too found in its very early declassification assessments in the late 2000s. This part of the order was really meant to help with streamline the reviews that were conducted by multi-agency records.
I talked a few seconds earlier; we began our declassification assessment program back in 2007. It's been successful. We think that agencies have dramatically improved the quality of their reviews, that they are exempting information they should exempt, they are not exempting information they should not exempt, they are by far not missing embedded equities that they should be referring to other agencies, mostly intelligence agencies. Then the third thing that we've really noticed, is that they are definitely limiting the number of referrals. There are far fewer unnecessary reviewers clogging the National Declassification Center system. That's not to say everything is perfect. The reviews are still pass-fail, but certainly, we have seen a marked difference from that. Next slide, please.
Now, I want to talk a little bit about the ISCAP, the Inter-Agency Security Classification Appeals Panel. We have four functions. This also is slightly different from the earlier versions. It first came into being in 1995 or 1994 in the Clinton order and has been a successful mechanism to serve as the final arbiter of what should or should not be classified. Either if you are requesting a record be declassified through mandatory declassification review or if you are challenging the classification of a record that is inside your agency.
The four functions that we have are to be the final authority on classification challenges and by approving exemptions for declassification at 25, 50, and 75 years. That typically means the declassification guide, that we work with agencies. Again, every five years, these are required to be updated. The process has increasingly been much longer than before. They are, again, to account for the 25, 50, and 75-year differences. The last thing I'll say on this slide here is the bylaws. The way that we work, the way that the members of this panel work, are all codified in 32 CFR 2003, which you can find on the ISCAP website and I’ll put it up at the end. Next slide.
This is just a reference panel. A reference slide of who sits on the ISCAP and who is served as the final arbitrators. They are high-level officials at all of these agencies. The two kinds of anomalies here are the National Archives, which sits as a member. It does not have original classification authority, but it certainly has an interest through its National Declassification Center and through the National Archives mission to make government records available. The president did give the Archives a seat at the table to make decisions.
The second thing is that eliminated the CIA as a permanent member of the ISCAP. It only participates in certain instances and that's when its information is the subject of the appeal. That said, the Director of National Intelligence does have the final say over the intelligence community, that's both in this executive order and of course, that's where its authority lies. Next slide.
Our activity. I can go back a lot longer, but I thought I'd just focus on the last three years here. Although we've not publicly released the 2020 information, we will do that through our annual report. But I will go ahead and give you the news here and let the cat out of the bag. But I wanted to talk a little bit about it. First, I'll start with the declassification guide process. It was significantly longer than the last time. The liaisons from the agencies decided that they wanted to have much more robust declassification guides from the agencies this time around. They strengthened the language, by requiring one, agencies use standardized language so there wasn't any confusion about what could or could not be exempted, and that crossed agencies. We also really tightened the definitions, by we, I mean, the ISCAP members, decided to tighten the language of what you could exempt and for how long. You would not automatically get a pass at 25 and have the same exemption at 50. If you wanted to exempt at 50 or at 75 years of age, the thresholds were much stronger and they were both within the executive order, but in practice here as well.
The other thing, for the first time, we recognized that agencies and this came out of the ISOO analysis part that we had done in the last few years, we noted that agencies were on some occasions had the exact same information and yet they were treating it differently. The ISCAP required those agencies to work together, to come up with a joint declassification...a portion of a declassification guide that covered that information so that those agencies were treating the same information the same way. As you can see, we started this in 2018. We didn't finish it until towards the end of 2019. Then with the passage of time, a new program came up where we did make an addendum to one guide.
Now, I would say what has happened because of COVID, is we did not get very far on our mandatory declassification appeals. Initially, the Archives was closed, the National Archives was closed all around the country, including in Archives 1 where we are based, and in Archives 2 where the National Declassification Center is based. Most of the agencies we work with were also closed early on and slowly got back up to speed.
It wasn't until August, that we figured out how we could work in a classified setting to limit folks to the exposure to health concerns, but still start the process working again. We've already closed from October to December the 10th, we've already quadrupled the number of cases that we have closed in all of 2020. How does this body meet normally outside of a pandemic? Normally, they meet twice a month. They meet for four hours at a time and they go over cases that way.
We've had no classification challenges the last three years. I may get a question or two about that towards the end. The other big item though, that we have noticed, and this really started in the late 2000s, an exponential increase in our backlog, which went from under 100 cases at the beginning of 2000, to where we stand today of about 1,300. Most of these cases come to the ISCAP because one year has passed and the agency has not acted on the request.
In contrasting with FOIA, under the Freedom of Information Act, agencies have 20 days to respond. In the MDR [mandatory declassification review], that timeframe is extended to a year and still over 90% of the cases that come to the ISCAP, come to the ISCAP because the agencies have not met the time threshold. Next slide, please.
I wanted to talk a little bit about our annual reports. I want to talk about our recent ones, because they have been different from what we historically have done as a 20 to 30-page report in status update, about all of our programs. We've shortened them, they are reported to the president, they do go to the president. From being at the National Security Council for three years, I can tell you that they do make their way to the president.
We believe very strongly, our director believes, that it is time for us to modernize our information management and information security policies and practices. All the executive orders leading up to today, they are still based on Cold War practices and policies. That is not how the government operates today. We've said in these last three reports, we think that it's an imperative both to national security and our democracy. We've said that it's going to require sustained White House leadership.
We recognize that any kind of a revolutionary change is going to be very difficult. We also know that it's going to require significant investments in technology and that those investments are going to have to be closely coordinated across the agencies, so systems can talk to one another and that they are using technology to identify each other's equities, both for classification and declassification.
Now we've also just as part of that process, as the Archivist did mention this, we have started to realize that also the information that we collect is outdated. We also were a little unsure of the accuracy. How difficult and how accurate is it to classify the number of derivative classification decisions, when you have multiple electronic formats and agencies using many different classified communications methods to create, disseminate, and use classified information?
We're trying to work with our agencies. We've also gone out to some of the civil society groups to talk a little bit about what metrics are meaningful for agencies. What metrics can we come up with that will help you improve your program? We're working with OMB to figure out how we can include costs that are accurate and actually measure information security programs.
Of course, for Congress and for the public, we really have gone out to say, what's meaningful for you as you conduct and want to look at independently conduct oversight of these programs? I mentioned a few seconds ago that the order does need changing. There are several challenges that ISOO has historically talked about. But certainly, in the last few years that we've talked about in our report to the president, that there is a continual challenge of over classification, despite a strengthened fundamental classification guidance review program.
That the effect of that over-classification is that it limits information sharing. That does have the potential to cause harm to our government. We have noted that while security education and training programs have improved at agencies, there still are compliance issues, especially when it comes to original classification authorities who tend to be agency leaders, they are very busy. Classification is not their day job, their mission is their day job, but they still must receive detailed training every year. Almost 85% of the agencies that deal with classified information, have yet to implement a performance management critical element, for their staff that use classification day in and day out. ISOO does, the NDC does, but not many other agencies do.
Then the last thing I'd say, which is very important, and this makes a little bit of sense because declassification programs are, by nature they're 25 years behind what's going on today. Bill Fischer is going to talk to you about paper and the challenges of working with multiple equity records in paper because we are still at the dawn of the digital age when it comes to declassification. But very fast, we are going to have an exponential growth of digital records that are going to need to undergo declassification. ISOO has found that declassification programs across the government are ill-prepared to deal with that onslaught. Next slide.
I wanted to switch over and talk on another...happy here to talk about the Public Interest Declassification Board. It was established by Congress in 2000 as a memorial in tribute to Senator Daniel Patrick Moynihan. It's been re-legislated at least five times before finally becoming a permanent independent board and commission in this year's or last year's National Defense Authorization Act. The function remained the same.
I'm going to focus just on one, which is the goal of the board to improve classification, declassification, and public access to government information. During the time that they've been active, although the law was first passed in 2000, first appointments weren't made until 2005 and the board didn't start meeting until the end of 2006. Since then, they've written five reports to the president, they have engaged in a number of other issues with the White House, to help them work on classification matters.
At the moment, although they are allotted nine members, we have five. They are Alissa Starzak, who is our acting chair. They are John Tierney and Trey Gowdy, two former Congressmen. Michael Lawrence and Ben Powell, who were just appointed by the president. We still have three presidential vacancies and one congressional vacancy [to be appointed by], Senate Majority Leader McConnell. Our office, as small as it is, we do provide all of the administrative and logistical support for this board. Mark Bradley, our director, does serve as the executive secretary. Next slide.
I did want to talk about their most recent report. Several of you, I think, have probably heard about their report. It was published in May, late May. We had a public meeting on it in June. It is titled, A Vision for the Digital Age Modernization of the U.S. National Security Classification and Declassification System. It really did, it was meant to serve as a roadmap to help agencies overcome antiquated cultures and antiquated policies, to design more modern processes, and to get the government to think seriously about modernizing the system.
It decided to put this report into three sections, those recommendations that could have an immediate impact. and you’ll note here that one of the recommendations was to empower the NDC. They felt that they really did want the NDC to have more authority, independent authority, especially since they're working with historical records, to move the records through the process.
The other recommendation is for the Secretaries of Defense and Energy and the Office of the Director of National Intelligence. Three very big agencies with very big budgets, who are very interested in information security and classified national security information management. The board wanted have the president direct these folks to work with the Archivist of the United States to develop a plan for how they can modernize their own classified systems and their records management programs so that once their records do get to the National Archives, it will be far easier for them to review and declassify their electronic records.
The last two are the strategic policy changes. The controversial one, they did recognize the importance of having an executive agent. ISOO is the executive agent for several information security executive orders. They realized very quickly that it is important to have someone be in charge. That in today's world where information seamlessly crosses between agencies, it is imperative that there be standards beyond just the ISOO, beyond just the Department of Defense, that we needed to branch out beyond the silos and they really wanted the president to designate an executive agent and then a steering committee that would help guide the executive agent in implementing a new system with new policies and procedures. Of course, the last part over here I’ve talked about the importance of transitioning, to going for more automated classification and declassification procedures. Next slide.
One of the questions I heard that you all might be interested in asking, has to do with the future. I think the reports speak for themselves here, the ISOO annual reports the last two years. I will say the next upcoming report, which we'll cover FY 2019. It will talk about the need for modernization. I'm sorry, FY ‘20. It will focus on that. It really is the executive order. It was revolutionary almost when it was signed in 2009 with some of the changes, were very significant.
But that order is 11 years old, we don't work that way anymore. The government doesn't work that way. You don't work that way anymore. Electronic communication is our life today. This executive order, the current one, talks about documents. It talks about how you store records in safes. That is not how we work today. We need to modernize our policies to match how we work so that we are protecting the information we have to, we're disseminating it to those that need it, and we are declassifying it timely so that our citizens can be informed.
Again, previewing what will be in the next annual report. That will be it. I know this is a FOIA FACA committee, I'm sure that you all are familiar with the Office of the Director of National Intelligence, IG FOIA report from 2018, and it says the challenges are not just outside the ISOO. The challenges are also within the ISOO. That there is a recognition that even within FOIA, which I think is very closely aligned with declassification, that there are new policies and processes that they need. They still lack technology and the secure communications that many other folks do. These are going to be essential for whatever happens for the future. Then, of course, I just talked a little bit about what the PIDB thinks about the future and the need for modernization. Next slide. The last slide.
I thank you for indulging me for the last 25 minutes or so. I wanted to quickly give you a few plugs here. You can find more information on our website. If you have not subscribed to our blogs, we have several, including the ISOO blog, which we've just started, the CUI blog, which is ongoing and it started long before, I've included a few email addresses, and also for the Public Interest Declassification Board, if you want to read their five previous reports to the president, they can all be found on our website.
They also have a blog that we are robustly…we try to post every week and we did post today that the members are inviting public comment. What should a new executive order look like? I know that many of the folks in the civil society community have already submitted their report to President-elect Biden. It does include many of the recommendations from the PIDB and it does highlight some of the challenges that ISOO has put in its recent annual reports.
But we really would value your participation. If you have ideas, we're happy to post them on the blog. Please use the blog that way and if you want to remain private, we also can receive your information via our email website. Thank you very much for listening to me and hopefully you didn't hear a dog barking or a construction crew going. Thank you.
Alina M. Semo: Thanks very much, John. We really appreciate that great presentation. I'm going to now roll it over to Bill. I know there are a few questions from our committee members, and I've asked everyone just to bear with us until Bill presents, and then we'll open it up to questions from everyone. Bill, you have the floor.
Bill Fischer: Great. Thank you, Alina. It's always a pleasure to follow John Powers. I think John is probably one of the strongest promoters of declassification and transparency out there, anyway. I have to also commend that last slide, I don't know if that's an innovation of yours, John, but I haven't seen it before, I like it. Anyway folks, good morning, and I just want to begin by thanking you for this opportunity to speak today and participate in this meeting. It's a great opportunity for me to share a little bit about the National Declassification Center and the role we play in overall government declassification efforts. Thank you, Alina, thank you committee for extending the invitation, it’s a great opportunity.
I want to throw this out there. I thought it was very fitting that John and I, but especially myself, followed the Archivist David Ferriero this morning because I'm thinking the National Declassification Center was one of Archivist David Ferriero's first acts as Archivist almost 11 years ago now. After the executive order was promulgated in December of 2009, one of his first official acts was to establish the NDC on December 30th of 2009. If you do the math, you can see that earlier in this year we celebrated our 10th anniversary and Mr. Ferriero played a key role in that.
Then considering that Mr. Ferriero also established this FOIA Advisory Committee, I thought he provides a great nexus point. It's our common interest in declassification, accountability, transparency. I just thought it was very fitting, given the history of both of our entities, organizations, and the Archivist, to be speaking here this morning. It's a great honor to follow him as well and be able to speak a little bit about this organization, that he had such a key role in establishing.
Speaking of Executive Order 13526, John covered it very well. I just thought it would be worthwhile mentioning that the vision of the NDC, our motto, our mission is really rooted in EO 13526. Our motto, our mission is releasing all we can, protecting what we must. This is what we strive for in our daily activities, in our processes, and in our functions. It's rooted in the executive order. That's what gives us our marching orders and it provides our vision. I think it's worth noting in the preamble to the executive order, it's well-stated so I can't improve upon it, but it mentioned, our democratic principles require that the American people be informed of the activities of their government.
Nevertheless, throughout our history, the national defense has required that certain information be maintained in confidence, in order to protect our citizens, our institutions, so on and so forth. Right, there is the vision for the NDC. That you can see is reflected in our mission, which is releasing all we can, protecting what we must. We have this dual function that we strive to fulfill in all of our processes, in all of our procedures. It guides us. It's the guiding principle of our work, it's been the guiding principle of the last 10 years, the first 10 years of the NDC, and it's the guiding principle that's taking us into the future.
I would also like to note that the overall mission of the National Archives is public access to the historically valuable records of the United States government. The top strategic goal or the first strategic goal in our strategic plan, is Making Access Happen. As you can tell, the vision of the order, the mission of the NDC, all supports that overall NARA mission of releasing all we can. When we strive for releasing everything we can and protecting that sliver of information that must remain confidential, we are supporting Nara's overall mission of Making Access Happen.
I would also like to point out, and John alluded to this, that this is not just a NARA enterprise, but this is an overall inter-agency enterprise that we participate in. The executive order helps shape that and influence that. I want to also give credit to our inter-agency partners who are vital to this process. The NDC would not be able to do what it does, we would not be able to fulfill our mission, we would not be able to release, we would not be able to Make Access Happen if it weren't for the participation, collaboration, cooperation of inter-agency partners, who are situated with us when we're on-site in College Park and as well as the network of contacts we have with agencies. It's very important to also recognize the role that our partners play in this process because they're vital. We work well together.
With that high-level opening here, I think what I'd like to do now is I'll turn to this high-level process map. I just threw this out there as a reference to illustrate our process and what we do at a very high-level. I like to think of our process as a...we have a macro process, and we have a micro process. The top half of the slide really refers to our macro-level process and the bottom half refers to our micro-level process. But regardless of whatever we're talking about, it's still all aimed at releasing all we can, protecting what we must. It's a quality assurance system.
I'll begin up in the upper left-hand corner in the light green box, where it talks about classified records accessioned into NARA. As you probably already know, NARA is the nation's record keeper. As the nation's record keeper, the role that we play in this, is that we are the record keeper, not the custodial unit, but the unit responsible for all of the classified permanent records being accessioned into NARA. Not just one agency, not just one record series from an agency, but the whole universe of classified permanent records, which gets to my point about the macro-level.
We at the NDC and at the National Archives have a responsibility for all of the permanent historically valuable records that are classified, that are accessioned into the National Archives. We have this responsibility to perform quality control checks and review and protect and release that entire universe of information. We begin our process with that in mind. The first thing we do when we receive record transfers accessions is to assess the quality of what we're getting because this will determine how we end up evaluating each particular accession and how quickly it can make it through the process.
This assessment is basically a review of the documentation, a physical check of the records, to make sure and ensure that a proper review was conducted by the originating agency and very importantly, that the particular review...that the particular accession had a valid Kyl-Lott review conducted, which relates to nuclear information, RD/FRD [Restricted Data/Formerly Restricted Data]. Before we can move on, we must ensure that a valid Kyl-Lott review was conducted.
In most cases, at this point in time, a particular accession transfer... I'm going to refer to it as a declass project, moves immediately to a sample evaluation for quality control. It's the rare exception that begins as a page-by-page review and that would only happen if there was not a valid Kyl-Lott review conducted. If we discovered some error or problem with this particular project, that forced us to conduct another page-by-page review of this material. But that's a rare exception. The standard, the norm is that our evaluation will be a sample of that particular project.
I must also point out at this point, that this is also an inter-agency operation at this point. We partner up with the agencies that are on-site in College Park and conduct that sample. If there are no errors discovered for missed equities, that sample project we'll move on then to the next stage. If there are errors discovered and the errors are widespread and systematic enough for that particular project, unfortunately, it will have to go back for a page-by-page review. However, again, that is still the rare exception.
Once a project makes it through this evaluation stage for quality control, it then goes into a DOE quality assurance review queue. This is a queue established by the Kyl-Lott Amendment and it's how the Department of Energy implements their role in this process to ensure that these records have undergone a proper thorough review and that there is not an inadvertent release of RD/FRD material. The DOE quality assurance review could also be a sample, an audit of a few records, a few documents or it could be page-by-page, depending on the subject matter the agency and really what they're looking at there, the types of criteria that they would be approaching this from.
Once the material makes it through the DOE quality assurance review, it then moves on to the next stage of the process. It's the box there that says indexing and withdrawal. I like to refer to this as the liberation stage. Because this is where, if I use the example of a one-box project, this is the stage wherein that one box of records, if there is only one document in that box, which continues to be exempt from release if it's withheld, it has a tab around the document, that one document is removed from the box, set aside, put in a withdrawal box, sent to the classified stack. Information about the document is recorded in our tracking and control system. A withdrawal notice is inserted in the box, which serves as the holy grail for requesters, in order to be able to identify and find and request that document. But the other documents in that box, which have gone through the full declass evaluation process, are then eligible to be moved to an open stack. They're liberated and allowed to move to an open stack for public access. This is a very important part of the process.
If those documents that are ready for the public open shelves, they've been declassified, they move to the right. However, you will notice that I do have this point about other access restrictions. I don't want to scare you and make it sound like nothing is going to be released. However, I must note that in some series of records, in some documents, in some boxes, some projects, there are also other access restrictions on some of these records. I just want to make you aware of that.
Those could be law enforcement, it could be some sort of statutory exemption, it could be personal privacy. It just depends. That's not necessarily the norm, but I just wanted to make you aware of that. If there are other types of access restrictions on those records, NARA’s FOIA and Special Access staff works with requesters on gaining access to those records. But, at that point, I've washed my hands of this. It's not a declassification issue any longer, it could be some other special access restriction.
For records that are withheld during the process, they go to what I'll call the north of that indexing and withdrawal box, to our inter-agency referral center. This is an innovation that predated the executive order but was spelled out in the executive order, that is another fantastic inter-agency operation that we conduct, which allows reviewers from other agencies to review documents that were withheld during the automatic declassification process for potential release, once they come up in their queue.
At this stage of the game, further records end up being released and those will then be refiled in their original series, in open stacks, and made available for researchers. Those records that must remain exempt or withheld, will be refiled in our classified stacks and withheld boxes until they come up for release once again. That's the high-level process at the macro-level, for the large-scale annual reviews and transfers of classified records.
The bottom half of the slide gets that more of the micro-level. This is the access request from the public role here. How does the public, how do researchers get access to individual specific documents that have been withheld? We have two basic routes FOIA or MDR. But before I get to that, I just wanted to mention, the first box coming out of the chutes is indexing on demand. This is an innovation of the National Declass Center, that allows the public to play a very key role in shaping the decisions about prioritizing what will be indexed and released, based on researcher interests and requests.
This is really the part where the public plays a key role in helping to determine what is going to be prioritized for release by the NDC. I think it's also important just to mention once again, that the reason we build this in, after the DOE quality assurance review is because, as the nation’s record-keeper, we at the NDC have a responsibility to ensure the quality of the basic review of all of the classified permanent records coming into the National Archives.
We can't neglect this agency or that series of records. We have to do this for all of the records because we have this responsibility for these records to the American people. However, at the point, after the records go through evaluation and DOE quality assurance review, it's a natural breaking point, which allows us then to focus on what's of most interest to researchers and requesters, so that they can play a role.
There is a queue for indexing and withdrawal. Rather than just taking in projects first in, first out, what we do is we annually publish a list of projects that are available for indexing and withdrawal, or indexing on release on-demand, on our website, which allows requesters to visit, scroll through, identify a project of interest to them, which then will shape the ultimate queue for indexing and withdrawal. This allows us to prioritize based on that indexing on-demand list.
Record projects, declass projects that have no interest, they will sit on the shelves until there is an IOD [indexing on demand] request for them, or that we get to them in the queue. However, projects that do have researcher interest will get prioritized. This helps in two ways. The first is, that there may only be one document tabbed in that box, that must be indexed in order to release, say, 90% of the material on the box.
That accelerates and speeds up what we can get to that particular researcher or requester. Then for the one document that continues to be withheld, we then have the FOIA or MDR route, for that particular researcher to request that one document. It allows us to get a lot of material out, plus then provide the means for the interested party to request the document of particular interest or documents, whatever it is.
Under FOIA and MDR, we work closely again with our inter-agency partners. The FOIA MDR shops for our partners are not located in the NDC, these are generally speaking part of an agency's overall information access program. Agencies don't have their basic FOIA or MDR shops located within the NDC. We take documents that are withheld in our holdings, and then we consult with the agency that has the equity, which that is the box to the right, agency review.
When we consult with those agencies, those agencies conduct their line-by-line review and they redact, release, whatever the case may be, and they return the results to us, and then we communicate those results to the requester. There, it could be denied in full, released in full, released in part, whatever. But it's a line-by-line review conducted, which allows for redactions.
That's our overarching process at a very high level. I didn't touch on lots of nuances say or details about the process, but I wanted to ensure that you had a good high-level picture of how we fit into the National Archives, the overall scheme of things, the executive order, and also to ensure that you had an understanding of our role in terms of, at the macro-level all of these records, but then at the micro-level trying to get individual records to requesters and researchers.
I should also point out that up until this point, we have been really a shop focused on federal records. However, over the last year or two, there's been a change in that, and now the NDC will be responsible for the declassification of presidential records as well. That process of moving classified presidential records to the NDC for declassification was disrupted severely by COVID. We were in the process of moving collections from various libraries into our facility for declass that was disrupted by COVID.
It's also obviously disrupted our ability to be able to start to process any of those records. However, moving forward, I would like to note that the NDC will be responsible for the declass process at the macro and micro level for federal records, as well as presidential records. With that, I'll stop here Alina. Then, I'm also available with John for any questions. Again, thank you very much for this opportunity.
Alina M. Semo: Bill. Thank you so much, we really appreciate that. We already have three committee members very eager to ask you questions. I know we're running up against our break time, so let's keep that in mind. But I definitely want to encourage all of these questions to be asked, it's a great opportunity. Kel McClanahan is first up, after that Tuan, and after that Tom Susman. That's who's been queued up so far. If anyone else has any questions, they want to ask, please chat me and Kirsten. James also has a question. James, you’re fourth up.
Just to also let everyone know, by the way, James reminded me earlier that he has to jump off at 11:45 AM. Kirsten, I'm sorry, Kristin Ellis, his co-chair on the Subcommittee for Classification will be giving the report out. Anyway, with that, Kel, go ahead, please.
Kel McClanahan: If James is about to have to jump off soon, why don’t we let him ask his question first.
Alina M. Semo: That would be wonderful. Thank you, James. I mean, thank you, Kel. James, do you want to go ahead?
James Stocker: Yes, sure, absolutely. Can you hear me now?
Alina M. Semo: Yes.
James Stocker: Great. You can hear me. Okay. Good. First, let me say thank you all for the very informative and stimulating presentation. It was a lot of information that I think provides a very nice overview of the functions of your offices and it gives us a lot to think about as we go about our work. I have a lot of questions; I'm going to try not to ask them all. I think the couple of things that you said really drew my interest. You gave some suggestions for the reform of the executive order on classification. I was curious, so who is going to write the new executive order if and when it's rewritten?
Then another slightly more specific question I wanted to ask related to the tracking of information on classification and declassification requests. I was curious how you track that information and also whether you track information related to the use of Glomar exemptions, in response to requests for national security information? This is an issue that our subcommittee on classification may look into and we're interested in gathering information about that. Thank you very much.
Kel McClanahan: Bill, you might need to fill in right now, because John got kicked off the audio.
Kirsten Mitchell: Yes, John is calling back in.
Alina M. Semo: Okay. Bill, would you mind taking a crack at, at least part of what James’s two-part question.
John Powers: I'm back.
Alina M. Semo: Oh, good. John is back.
John Powers: Although I missed the question if it was directed towards me.
Alina M. Semo: Yes. James, sorry, can you summarize?
James Stocker: Sure. Just very quickly. On the executive order, you mentioned that there is a possibility of it being rewritten, who will lead that process and how will it work? Then I'll ask another question about tracking information, about the numbers of classification and declassification requests, and also whether or not you track the use of the Glomar exemption.
John Powers: Let me get the first one first. All the executive orders and the implementing directors are done through an inter-agency process that is led by the National Security Council, through its normal NSC policy-making process. Typically, for just executive order, it's going to involve senior leaders from those agencies that have an interest in this - Department of Defense, Office of the Secretary and National Intelligence, Department of Energy, Department of State, Justice, the FBI, National Archives, ISOO.
There are a whole lot of folks that will participate in that if, and when it does happen. That process can take anywhere from six months to a year and a half. It depends on how we can... how the inter-agency process is working its way through, and also the direction that you are given through the National Security Council structure. Those are a few things.
Second question has to do with, are we tracking the number of declassification decisions? I'm assuming you're referring to Mandatory Declassification Review. The answer is, not at the moment. We have completely stopped our data request on that as we start to work through with the agencies as to what we think we want to do, that will help them improve the program. Talking with civil society groups and stakeholders. This is one of those data points that we do expect to continue of how many MDR requests do you receive in a year? How many do you complete? How many are carried over? Things like that.
On the automatic declassification front, up until 2017, we were capturing that information, as well as the MDR information. The third question you ask has to do with, are we tracking Glomars? We do not. We only track whether... at least up to that point, we were tracking only whether an agency had exempted information, had exempted the record under automatic declassification or they had declassified their equity or if they had referred it to another agency. That was it. We do not track to that granularity of a level.
James Stocker: Do you mind if I follow up and ask whether you think you should be tracking that? I'm sorry if someone else is going to respond. My apologies.
John Powers: It's certainly something we can take up. I guess I haven't seen too many Glomars. I think that you would get, it is not really a government-wide issue, as it is a very specific intelligence community issue. Really, that is a CIA issue primarily. We certainly, I think we'll look into it. I encourage you to put that up on the PIDB blog as well so that something that both the PIDB could look at and we can also take a look at and see whether we think it's worth doing.
James Stocker: Okay. Thank you very much. Can I just ask one other question? I'm sorry, to monopolize the floor. You mentioned the categories of redacted and formerly redacted records, which is an older set of security classifications as I understand it, that are no longer used. Should these still be around? Would it make sense for there to be legislation or something like that to change the classification? Would that make your work easier or would that just complicate that?
John Powers: First thing is, I did put it in the chat for all when Bill mentioned the words FRD and RD. RD and FRD refers specifically to the 1954 Atomic Energy Act, as amended, which classifies Restricted Data as scientific information relating to the development of nuclear weapons. Then removed from that RD category in 1954, that was the amendment, was something that they ended up calling Formerly Restricted Data, which had to do with the application of nuclear weapons, including storage sites, how you actually designed the weapon systems to carry a nuclear weapon. A little bit different.
Now, the current, if you're talking about the old exemption category restricted, I would say that the orders already, in previous orders...actually I want to say the 2003 order or maybe even the order from Bill Clinton, that eliminated that category and it said that that information was declassified. If it is a restricted category, that information dates back from World War II and it's already taken care of. The order also does talk about OADR, which is Originating Authority Declassification Required, which means that you had to go back to the originating agency, or you could not determine a declassification date. All of those also have been superseded by this executive order, which says it doesn't matter how the records are marked. They are all subject to automatic declassification at 25 years unless you have an exemption for it.
Even those they're exempted, those that are exempted, their exemptions expire at age 50, unless you've asked for additional permission to extend it beyond that. That may be a little bit too detailed for you, but I hope that's good.
James Stocker: Thank you very much for your thoughts. This is James Stoker, again. But I was actually referring to the restricted informal restricted that which... my understanding is that they are things that Congress needs to legislate. Basically, what I'm wondering is, if the existence of those two categories to deal with nuclear weapons, and other related information, if these are categories that should be effectively changed. In other words, should they just be made Top Secret or something like that, so that they can be dealt with within the normal channels of declassification, or if that would not necessarily help the declassification of information?
John Powers: I guess I will give John Powers opinion on this. Bill Fischer, please feel free to join in. It is a law, it's from 1954, very old, heart of the Cold War. It does make some sense to, to legislatively protect very specific scientific information, science to science, it's not going to change over time the technology, on how you build an atomic weapon. Perhaps that is a very good thing that we don't let everybody see.
The category of Formerly Restricted Data, I think just the term itself is very confusing to everybody. I wish that there was a different term that they used. I know that the Department of Energy has its own implementing regulation, 32 CFR or 10 CFR, I forget the specific citations. But there are processes within that implementing directive, on how the public can request this information be removed from FRD or RD status.
I don't know that it is a...how the Department of Energy has actually worked these processes. I think that there are some reforms that should be helpful in that, in trying to modernize how one goes about declassifying Formerly Restricted Data, including a new term, this is my view. I would say that Bill, again, I'll let Bill come in here when they do the Kyl-Lott National Defense Authorization Act amendment, which happened in 1999, I believe, or 1998.
That requires every agency certify, through that it has reviewed its records from de-classifiers who have passed the Department of Energy training, that they have certified that there is no RD or FRD in those records. When the QA, the quality assurance takes place, I would think that 95% of the records that were found that were missed, which is still a very small percentage, are FRD designations either that they're marked, or they're unmarked.
That is where I think that there probably could be a little bit of a discussion about how to reform that. Unfortunately, it's a law. I would say that it is very difficult to change a law, but that is something that it might be worthwhile to explore. Perhaps Bill Fischer would like to say a quick word or so.
Alina M. Semo: This is Alina. Unfortunately, Bill had some audio difficulties and he's dropped off. He's…
John Powers: Okay.
Alina M. Semo: … trying to get back in. As soon as he's back, maybe he'll jump in. James, are you satisfied with your questioning, or are you done for now, or…?
James Stocker: Absolutely. I just want to say thanks to both of the speakers again, for all their work and for coming today. Very grateful.
Alina M. Semo: Okay.
John Powers: James, please put that up on the PIDB’s blog.
James Stocker: I will. Thank you very much.
Alina M. Semo: All right, great. Kel, over to you.
Kel McClanahan: Hi, John. If Bill is still watching, hi Bill. Again, I echo James's thanks for this very educational thing for many of the panel members who don't deal with national security information, I'm sure this was very enlightening. I'm going to go to the attorney thing and ask you a question that I already know the answer to. John, certainly….something that the classification subcommittee is looking at and I think that everybody would benefit from a greater explanation.
That is since we are the FOIA subcommittee, we’re the FOIA committee, we are dealing with FOIA directly and not as much how to do MDR and how to do declassification. How does MDR, in every agency, not just NARA, handle information that would be protected by a FOIA exemption? What's the interaction between those two?
John Powers: Sure. The executive order is very clear on this, Section 3.5C I believe, requires that records that are requested under MDR, the agency review those records for public release, which means that they are reviewing for classification. The records have to be classified in the first instance, for them to be a mandatory declassification review request. But agencies must also review for the other FOIA categories so that at the very end of this the requester is getting a public release document that has been redacted for if it has been redacted at all.
I would say that in the past, we found out that over 90% of the records that were requested under MDR, actually are declassified. People seem to be getting what they want, at least from the more recent past. But if there is a redaction, they are supposed to cite the reasons for those redactions. Typically, on MDR, they will cite the executive order using a 25X category and then numbers one through nine, depending on the reason for the exemption. If there are any FOIA exemptions, they're supposed to cite the FOIA exemptions that go with it.
Kel McClanahan: If I can just follow up, this is something that we talked to Bill Carpenter way back then when he had a round table. If you file an appeal to ISCAP, of a decision where they have withheld something under FOIA, will ISCAP adjudicate that appeal?
John Powers: Perhaps, if it is a recent FOIA exemption if the requester has...there are a couple of different things. If it's the same requester and the record was exempted or redacted using a B1 exemption. If the record has been reviewed in the past two years and it's the same requester, they don't have to do it. It's a time-saving thing in recognizing that agencies are pretty strapped for both FOIA professionals and de-classifiers.
But that is why at the beginning of this process, requesters must choose either FOIA or MDR. Now, what I would say, is that the ISCAP will not look at other FOIA exemptions. They are concerned totally with the application of the B1 exemption, the 25X category or the 50X category, or the 75X category. Was it correctly decided and applied? I'm not quite sure if that answers your question, but maybe that's a start.
Kel McClanahan: It gets most of the way there. The point I was trying to get at and you did explain it, is that if, for instance, you file an MDR request for CIA, for something that it’s in an attorney's memo, that they will say, “We're not going to grant this under 3.5C because it's covered by attorney-client privilege,” FOIA exemption B5. If you appeal that to ISCAP, ISCAP will say, “We have no jurisdiction to adjudicate the B5. What we can only adjudicate, a declassification decision or not.” Is that accurate?
John Powers: Correct. That is correct. On the crazy chance, if the CIA, using your hypothetical example, the ISCAP will look, it will decide if the CIA didn't make that initially the case, they will decide what is and what is not classified in that record. That would potentially allow the FOIA requester, then to use the judicial process or adjudicating that FOIA restriction that is not a B1.
Kel McClanahan: Thank you. I have one small question and then we can probably go to break if Alina signs off on that. If they get a request like that, where it is classified, but it is also exempt under B5, let’s say. Will the agency process the record for declassification even if they might not release it for other reasons so that at least going forward it will be an unclassified privileged document?
John Powers: In my view, the agency should process that, and they should be citing all of their reasons for why they are withholding a record, whether it's exemption one or exemption five or other exemptions. Under MDR, certainly, if it goes up the field up to the ISCAP, they are going to make a decision on whether that record is classified or not. Outside of that, it's the purview of the agency.
The other example I'll give you has to do with RD or FRD. RD or FRD information is almost always found within a record that contains other national security classified information, that is not RD or FRDs. The Inter-Agency Security Classification Appeals Panel is going to make a decision on all of the information that is not RD or FRD, but it will leave it to the Department of Energy and the Department of Energy to the Department of Defense, in the case of FRD to decide how to deal with that information.
Kel McClanahan: All right. Thank you very much. Very helpful.
Alina M. Semo: Despite what Kel said, we are not able to go to break yet, because we have two other esteemed committee members who are queued up to ask questions. Tuan, you’re up next, unless you think questions have already been asked that you were already intending to ask.
Tuan Samahon: Yes, in part, I'll limit my question here. But my question was about Executive Order 13526, Section 5.3C also, which operates as an election of remedies. You can exempt… get executive MDR process, which while ultimately discretionary bound by executive standards, is likely to be more generous than the alternative, or you can get the judicial process that you could sue under FOIA. But you'll get the court's exemption one jurisprudence which is very deferential to the government and the courts decidedly do not follow the philosophy of releasing all that we can, protecting all we must if you go into litigation.
This provision feels a bit punitive. Given MDR or not and ISCAP appeals, have enormous backlogs in terms of the President-elect Biden contemplating an order - I wonder if we can get some change here, perhaps a compromise where a requester could sue without losing executive ISCAP process, provided you've been waiting in good faith long enough? I wonder if this might be at the same time because we're all interested in disclosing all we can protecting that which we must, I wonder if we might not see some change there?
John Powers: I think that's a very good question. I hope that you do... please put that forward. I agree. I think ISOO's analysis of the agency MDR programs and I'm sure it does follow what is going on in the FOIA world too. That is that offices are overwhelmed with priorities. What I will also say is, MDR is an executive order, FOIA is a law. When we go out to talk to agencies and when the PIDB went off to talk to agencies, what they heard is, they're going to try to prioritize a little bit the FOIA since there are legal ramifications for non-action or adverse decisions.
Even then, they're still woefully behind. That is the same with MDR, they're woefully behind on that too. How you can get to that with a 1,300 plus case backlog and there could be multiple documents or multiple, I'd say documents at the moment, because we haven't gotten to electronic records yet in the ISCAP. That’s a very good question. I certainly, putting on my what the future should hold hat, we'd be very interested [in] hearing your ideas on that. Please do send those along.
Tuan Samahon: Thank you.
Alina M. Semo: Okay. Thanks, John. Tom, are you still with us and would you…?
Tom Susman: I am.
Alina M. Semo: Like to ask any question? Thanks. Go ahead.
Tom Susman: Tom Susman. Two questions. We have two subcommittees looking at the issue of training relating to FOIA. Yet, you had mentioned earlier, John, that training is required for classification, but there's a real compliance problem. I'm wondering if there's a role that the advisory committee can play in trying to... if you have some ideas, we don't have to do this now, but how to get some enforceability to the training requirements, which the results of absence of training is almost always going to be over-classification. One possibility would be no training within the 18 months. We’re supposed to be trained every year, no training in 18 months and you lose your classification authority. I'm sure that there are other ideas one could come up with. That's one issue that I'd like to put on the table.
The second is, there's also a Legislation Subcommittee of this advisory committee. I recall during the 70s, a big battle between the Congress when they were considering comprehensive classification legislation and the executive branch said, “No, you can't do that constitutionally, that's an executive function.” I guess this may be a bigger question than you want to address right before the break. But yes, what's the role that Congress can play? Should we be even considering recommendations to Congress in the classification area or is the administration likely to take a historic position that we'll do it by executive order and Congress should not intervene? Thank you.
John Powers: Hello. Am I on?
Alina M. Semo: Yes.
John Powers: Great questions. I would say, I cannot speak for the administration. I seem to have lost my audio here. But I'd say, I can't speak for the administration. What I would say is that as far as legislation goes, the challenge of undoing legislation seems to be harder than an executive order. Then that's just my personal view. We are still dealing with the effects of the 1954 Atomic Energy Act Amendment on RD and FRD information, that is a challenge for historians. That we hear about at the Archives, at ISOO, and then the PIDB specifically almost weekly.
The other thing I would say is that first of all regarding your training thing is the executive order does have punitive actions for what happens if you do not receive your training. Original classification authorities, in theory, at least according to the order, if they have not taken their yearly training, they are supposed to lose their ability to classify the records. That's the order, it says that already.
Now, what ISOO has found is that... not so much for the derivative classifiers, but rather for the OCA, some of those folks at agency head, deputy agency heads, the heads of assistant secretary, undersecretary level, who are typically the three-star generals, those folks are usually quite busy. We do have concerns about the quality of the training that they receive, that they are perhaps done too quick. They're not as detailed as they should be. That said, we also are not really staffed to go out to every single OCA. Even though that there are far fewer OCAs today than there were 10 years ago, and that's a good thing, we think, we don't have quite the staffing to go out and do that. We do offer template slide decks for the person who is responsible for an agency information security program, the senior agency official who's responsible for the program. That they can use the training that we have and just modify it to fit their agency.
Whether or not that actually happens, that's the question. Derivative for the de-classifiers, we feel pretty good about the training that they receive. But the original ones, we’re not quite so sure, based on some of the few interviews when we were going out to agencies and actually doing onsite inspections, and part of our process included an interview with one or two OCAs. One of the questions we'd ask is, when did you do your training? The answer was, I don't know. Then we knew that we had a corrective action and a finding, to put in our response. I don't know if I've answered your question or not, maybe perhaps a little bit. I'm happy to continue this discussion either through your subcommittees or otherwise too.
Alina M. Semo: Tom, you’re good?
John Powers: Oh, I’m back on.
Alina M. Semo: I think… Tom just gave me a thumbs up, so thank you. It could very well be that Bill Fischer has rejoined us on audio, but we're going to give him a little bit of a break. What we may call on him to do is revisit some of the questions that were posed today, all of the questions that were posed today by all of our committee members, and ask whether he has anything to add to John's great answers. John, thank you so much for hanging in there with us, we really appreciate it.
Let's all take a 15-minute break. I know we're a little behind schedule, actually way behind schedule, so let's all try to come back at noon. Can I give you a 10-minute break instead of 15 minutes? That would be really great. We'll continue our great meeting that we're having. Everyone, 10-minute break, please come back at noon. Thank you.
Hi, everyone, welcome back. Michelle, I just want to make sure we're back online, we're recording, and our audience is watching us. Can you confirm that, please?
Michelle [Operator]: Yep. We are all set.
Alina M. Semo: Okay. Thanks. I'm sorry to have given everyone a really short break, you know you can run away from the computer anytime you need to. But I appreciate the fact that everyone's hanging in there. Bill, thank you so much for your participation. We know you have to drop off a little bit, so we are going to grill you with all the questions that were asked and ask of you if there's anything you want to add later after the meeting. We'll post any additional thoughts you have to tack onto John Powers’s great answers. You're not off the hook entirely. But thank you and I'm sorry if you have technical problems.
At this point in our meeting, I would like to turn to the part of our agenda, where we hear on the progress of each of our four subcommittees. I am extremely grateful to all four subcommittees. None of them have wasted any time since our last meeting, everyone has rolled up their sleeves and started digging in to figure out mission and direction. Thank you very much for that.
I did suggest at our first meeting back in September, that each subcommittee focus on a mission statement of some sort that may help move the ball forward. I understand that although some of those mission statements are ready, some are still in progress. As soon as all four subcommittees are ready for prime time, we will post them all on our website. Stay tuned for that.
But I'm excited to hear from all four subcommittees. I think the committee will hear all the great work that's been going on. I know some of the committee members are on multiple subcommittees, which I think is actually a great benefit because they can lend their voice to things that they're hearing, that's going on in each of the various subcommittees. I really want to encourage that. Tuan, it's still not too late for you to join the Classification Subcommittee, that's my pitch. Over to Kristin Ellis. Unfortunately, James Stoker, who is our co-chair on the Classification Subcommittee had to sign off. But Kristin is here today. Kristin, over to you.
Kristin Ellis: Thank you, Alina. Hi everyone. As Alina said, James and I are the co-chairs of the Classification Subcommittee and James had to drop off, so he's left me in charge and that may be dangerous. The Classification Subcommittee has drafted a mission statement. As Alina said, I think that everyone is not ready for prime time, they haven't been posted yet. As a general proposition, the Classification Subcommittee is planning to investigate the role of classification in the FOIA process.
Certainly, the classification of information is critical to national security. But as both John and Bill talked about earlier, it can impose obstacles to the public's ability to access certain information. We are going to explore that in a lot of different fashions, we think, during this term. To that end, our most recent discussions have focused on possible priorities for the subcommittee to work on. We came up with a list of seven potential priorities.
Right now, the subcommittee is four people, me, James, Kel, and Loubna. We have limited resources, limited time to explore all seven, at least at once. We decided to try to prioritize the priority list and determined that we could work on a couple of items at a time, and maybe at the end of this, we will have touched seven, or we will have really touched on an issue with just focusing on one or two that really we think are critical to this work. Maybe we'll only get to two of them.
To that end, we identified the... we also considered that it might make sense to have a more broad, longer-term item that we work on and then smaller, more concrete, more time-limited items that we could get do outs on more quickly, that may inform the bigger process. We went through our list of seven potential things and came up with two that we want to focus on initially. One concrete, one more broad. The concrete item is how Glomar responses are administered across the government.
For folks that don't work too much in the classification area in FOIA, a Glomar response is basically just an agency refusing to confirm or deny whether responsive records exist. But Glomar was actually a classified CIA ship. There was a case about that, which resulted in it being called Glomar. We want to focus on how Glomars are administered in the government and is there any consistency across the agencies regarding use, which there may not be because different agencies have different reasons for invoking a Glomar.
As I think the presentations earlier today and Kel's question to John, I believe, indicate it seems that it's a data point that's not being collected right now in the government. This is largely going to be a research item, to see if we can put our hands around the use of Glomar and how it's being used, and the extent to which it's being used in the government.
Then the second item, the more broad, longer-term we think item, is how agencies can proactively declassify documents to better meet the concerns of the requester community. Again, I think this does have a lot with what John and Bill were talking about. Is there a way? How is there a way to make information more accessible proactively, versus through the MDR process or through the FOIA process? That one is broader and it’s probably going to require a number of different avenues to figure out if there's a way to accomplish that.
Our next subcommittee meeting is after the holidays and we will continue the work and discussions. We’re very early stages for all of this. My time here is short. That's pretty much all I have to report out from the subcommittee activity so far. Unless somebody has questions or Alina, Kirsten, if you need me to address anything else?
Alina M. Semo: I'm certainly very good. I just want to ask your subcommittee numbers, Kel, Loubna, anything either one of you would like to add?
Loubna Haddad: This is Loubna. Nothing to add. Well stated Kristin, thank you.
Kristin Ellis: Thanks, Loubna. Kel, I hope that thumbs down was not, I just completely screwed that up, but that you're good.
Kel McClanahan: No, I’m good. I have lots of things to add later, but not today.
Alina M. Semo: Okay. The work continues. Thank you so much Kristin for that report. Michelle, next slide, please. The next subcommittee that's going to report for us is the Process Subcommittee. The co-chairs are Linda Frye and Michael Morisy. Linda and Michael, I don't know which one of you is going to present, so I'll let you take it from here.
Linda Frye: I can go ahead and present. Basically, we have been meeting every other week. At this point, we've started on our mission statement, but I don't know that it's 100% finalized yet. We've identified eight recommendations from the prior committees that we want to further explore and see the likelihood or difficulty in trying to get some more of these implemented to help the FOIA process flow. Michael, do you have anything else to add?
Michael Morisy: Yes. I think that covers it. I have a draft of our mission statement that we're still, sort of a working mission statement so far. But I think I'll just go through it. A well-functioning system of public records is a cornerstone of informed democracy. This subcommittee examines the current FOIA processes as a mason would their tools. In order to further improve our field, we’ll identify how prior recommendations have and have not had their intended impact, highlighting both successful pilots and progress while noting blockers and impediments to progress.
We'll also look holistically at how we can build a shared understanding of FOIA’s purpose and process, which brings together the goals of the requester and the processing communities, as well as identify applicable inspiration from state and international practice. We'll pay particularly close attention to the FOIA process through three particular lenses; the use and adoption of technology, the independence and impartiality of the process, and structural incentives to set the groundwork for lasting improvements for the field. I think that has the word process about 50 times in it, but I guess that's relevant for our committee.
Alina M. Semo: Michael, thanks very much. Linda, thanks very much. Any Process Subcommittee members have anything to add. I just want to first thing say thank you to the Process Subcommittee for taking on this, probably not so thankful task of looking back to prior recommendations. On behalf of OGIS, we are very grateful for that help. I think that's very valiant of you and very much appreciated. Thank you.
Hearing nothing else from anyone on Process, if we could go to the next slide, Michelle, please. I invite now the Technology Subcommittee co-chairs, to present and let us know what they have been up to. Allyson Deitrick and Jason Gart are our co-chairs. Allyson and Jason, I don't know who's going to go first or I'll let you guys figure it out.
Allyson Deitrick: This is Allyson, I'm going to go first. We've finished our mission statement, vision statement and we're going to be exploring the applicability of technology-driven solutions to improve and streamline the FOIA process, as well as review prior Advisory Committee recommendations. We're currently in the process of going through the technology aspects of the prior committees' work and seeing which ones that we think we can take to the next step, which ones we can add to and fully execute, as well as seeing what new priorities and goals that our group has. We're looking to do both short-term and long-term impacts as well. Jason, do you have anything to add?
Jason Gart: No, that covers it. Thank you.
Allyson Deitrick: Welcome.
Alina M. Semo: I do want to note that the Technology Subcommittee has been coordinating with the Technology Committee of the Chief FOIA Officers Council, so we're trying very hard not to overlap, but there are so many issues that need to be looked at. Again, I'm also very grateful for your work and trying to follow up on recommendations from the past committee terms that we've had. Thank you for that. Anyone else on the Technology Subcommittee have anything to add or anyone on the committee have any questions? I'm seeing a lot of nos. Okay.
Moving on, last but not least, turning... next slide, Michelle please, to Patricia Weth and Kel McClanahan our subcommittee co-chairs for the Legislation Subcommittee. I'm asking that as a question mark, are you legislative or legislation? I just want to clarify.
Kel McClanahan: That's a good question. Yes.
Alina M. Semo: Okay.
Kel McClanahan: I'm not entirely sure. I think legislative is better.
Alina M. Semo: Okay.
Kel McClanahan: But it’s your choice.
Alina M. Semo: Just thinking through. Yes, legislative sounds good. Kel, you said you were going to go ahead and present, so over to you please.
Kel McClanahan: Our subcommittee is a little bit of an odd duck here, where we're more of an operational approach, rather than being here in particular subject-matter like technology or process or something like that. We're looking at issues that we've decided are particularly ripe or are susceptible to legislative fixes, legislative reform, or even to exploration to see if legislative reform is necessary.
We originally had 13 items that we went through. Some of them were from old recommendations, some of them were from recommendations from other committee members, and narrowed it down to four. We don't really have a, not even ready for prime time, we don't have…it ready for the midnight-show, a mission statement yet, because we decided because of the nature of our subcommittee, we're making six months plans basically.
What we are talking about now, what I'm talking about now, is what we're planning on doing for the next six months. Then we're going to do a whole new six-month plan that may be something completely different or may carry over some matters. We voted on all 13, we had a lengthy discussion of them, and we settled on four topics that are relatively briefly expanding FOIA or some FOIA-like process to certain parts of the legislative and judicial branches like GAO or Capitol Police or Administrative Office of the U.S. Courts.
In the interest of greater transparency, to those agency-like entities that would be amenable to that kind of transparency. Finding ways to improve and give them greater authority to…and in all ways, make OGIS more effective, more resilient, nimble, able to do the things that those who were here when OGIS was created envisioned for OGIS to do. To address that bugaboo funding, appropriations, getting money for FOIA offices or FOIA programs or finding ways to make more bang for your buck in FOIA programs so that if you don't get more money, at least you can do more with it.
The last one is another perpetual argument. How to improve fees, how do agencies assess fees? How do they charge them? How do they use them? Should they have them? If they should, should they be uniform, et cetera? All things fee-related. Those are basically our four topics that we're going to look into. Hopefully, have something done on at least a few of them, if not all of them some six months from now. Then we will recalibrate and decide where to go from there. I'm good unless anyone has questions or Patricia wants to say something.
Patricia Weth: I'll just follow up and say, as Kel mentioned, those are our four working groups expanding the scope of FOIA, strengthening OGIS, FOIA funding, and FOIA fees. Shameless plug, if any of these sound of interest to you and you would like to join our subcommittee and these working groups, the water's warm, so jump right in.
Alina M. Semo: Thanks, Patricia. Perfect plug, I really appreciate that. Thanks, Kel for the presentation. I'm looking at everyone, does anyone have any questions for any of the subcommittee co-chairs, before we move on? I'm seeing no one jumping up and down. Okay. At 12:20, we were supposed to lose Alexis and I'm hoping maybe I can catch her for five minutes. We're unfortunately a little behind schedule today and I'm going to have to just cut short part of our agenda. But since it's a very important topic, I really would like to say that I'd like to get it started today and continue and carry it over to March when our next meeting occurs. Because unfortunately whether we like it or not, the pandemic continues to stay with us. Just a quick couple of remarks and then I'm just going to turn the floor over to Alexis.
When this year began, I don't think any one of us could have imagined the year unfolding the way it has. We all know that COVID-19 has had a profound effect on all of our lives. But in particular, today, I wanted to just focus our discussion among our committee members so we can learn more from each other about how the pandemic has impacted the FOIA process at federal agencies and how in turn that has translated to the requester community.
We know that on March 17th, 2020, OPM ordered maximum telework flexibilities across the federal government. The move to a full-time work-from-home environment affected a lot of FOIA offices, especially in the intelligence community. OGIS found itself in a unique position to observe FOIA administration across the government. We published a quick review of that. We looked at how agencies were informing FOIA requesters about what was happening as a result of the pandemic. A snapshot between May 15th and June 9th, of 2020.
In the midst of that review, kudos to OIP. OIP issued their guidance for agency FOIA administration in light of COVID-19 impacts on May 28th, 2020. It stressed four important things. FOIA statutory time limits remain unchanged, requesters I'm sure wanted to hear that, importance of clear and effective communication with requesters, encouraging agencies to make proactive disclosures, and leveraging technology to maximize efficiency.
Just a shameless plug for OGIS, we're actually going to undertake another review of agency websites, and we hope to publish another quick snapshot in time report in the near future. With that, I'm just going to turn it over to Alexis. Maybe she could share with us a few things that have been going on at her agency before she has to jump off.
Alexis Graves: Yes. Thank you. Can you hear me okay?
Alina M. Semo: Yes.
Alexis Graves: Perfect. We immediately put a notice banner on our landing page, which I think was very helpful for requesters. We of course encouraged electronic submission to the extent possible, in lieu of mail and fax. We also encourage people to consider out-scoping those portions of the requests that are asking for hard copy records, with the understanding, of course, that many people were, of course, teleworking, and unable to do or perform those searches.
We have found that the requester community has been very amenable actually to out-scoping portions of their requests, of course, with the caveat they will come back once the pandemic is over to request those other portions. But I think the majority of our records are electronic now. Most of what they're asking for can be accessed through those electronic searches.
One of the big things for us initially was staffing and I'm sure this hit every agency. But, we really had to think about core hours and how we do schedules for our analysts. Everybody has families and so, we wanted to make sure that we were being mindful of that. We actually extended our core hours. We were also very flexible with our schedules. We have some folks who will work a few hours in the morning, take a midday break and then work in the evening.
We have folks working as early as 05:30 - 6 AM and they might conclude their day at 7:00. Once that flexibility was afforded and approved by our general counsel, I think that we began to see that continuity of operations again. One of the things that we are still trying to figure out or resolve is the idea of these checks. To the extent that we can raise these, we have been doing so. But again, that does require someone to come into the office. We've been just round robining the idea of folks coming into the office to pick up checks, look for checks, and making sure that those get off to the Treasury. Again, we are looking for solutions to expedite that process.
Overall, I found that our agency and the types of records, we are one of the fortunate ones. We don't have a lot of classified records. It really blended itself to telework. I am actually pleased to report, despite all of the challenges this year, we recently had a realignment where our staff offices were realigned with the offices of general counsel, and all of our staff offices this year, despite the challenges of realized reductions and the backlog. I'm very pleased and proud of that. But again, I think that has us starting to think about how we do our business operations and what's the most effective.
Alina M. Semo: Alexis, thanks. That was really helpful. Do you need to jump off or...?
Alexis Graves: Yes.
Alina M. Semo: Could you stay for a minute?
Alexis Graves: I will need to jump off.
Alina M. Semo: Okay. Thank you so much. Happy holidays and thank you for sharing all of that.
Alexis Graves: Thank you.
Alina M. Semo: Thank you. Initially, I was going to ask Roger to kick us off, but I gave Alexis the floor since she had to leave. But Roger, would you like to share with us a little bit about what's going on at the CDC? Especially because I'm sure you are under a lot of scrutiny, a lot of requesters want records about what's going on at the CDC, especially during the pandemic.
Roger Andoh Sure. Thank you, Alina. Good afternoon, everyone. We've done a couple of things. I think one, we did provide some updates to our website and basically encouraging requesters to submit their requests electronically because we have basically two avenues by which they can submit their requests and it's entered into our system. It's a much more efficient way to do so. We discouraged...we said don't submit requests by mail, because there's no one there to pick it up.
We still have had quite a few come in, not that many. We have one of our staff members who goes... I think for the first six or seven months, we had no one go to the office. But we recently had a student intern come on board and he has caught up with all the snail mail in the office. We've been able to handle that. We’ve also been able to find a solution to getting payments for fees electronically so that people don't have to send in checks. But the reality is, we very rarely charge fees anyway and so that is not really a big issue for us.
We certainly have seen... because of the role CDC is playing in the pandemic, we’ve seen a significant increase in our FOIA requests for 2020, FY ‘20. CDC typically averages around 1,100, 1,200 requests. For the first time in FY ‘20, we ended up with very close to 2,500 requests. That's close to a 100% increase in the number of FOIA requests that we receive. The vast majority of the requests that we work on are related to COVID. Basically, we are the COVID processing agency for the nation, basically. Although the majority of requests that we get it’s everything... all about COVID.
Most of the requests that we receive are also complex in nature because all these COVID records involve multiple agencies and the White House. Processing the documents and getting them out the door, has not been as prompt and as timely as we would like. We've seen an increase in our work backlog, from a low of less than 20 at the end of FY ‘19, to somewhere in the region of over 300, which is something that we don't want to see. But we're working to try and get it down. But we certainly have changed some of our processes, to make sure that we can much more efficiently move cases along.
Around June, Alina can speak to this, CDC engaged with OGIS so that we can engage with our requesters and we had, I think, close to 100 participants both from the requester community, reporters and just members of the general public, to give them an opportunity to hear from CDC...what we're doing with regard to handling COVID requests and how they could help us help them. I could say that, I think, since that webinar, we're seeing a change in our communication and the willingness of requesters to work with CDC, in terms of providing responses for their FOIA requests, they're much more willing to work with us and that has been very helpful.
We've also seen a dramatic increase in the use of technology, to assist us in looking for documents. Before FY ‘20, I think probably only about 15, maybe 20% of our FOIA searches were conducted by the FOIA office. Most of the searches were conducted by [records] custodians. But as of early November, over 7,000 CDC staff assisted with the response, which means that we don't have the luxury of going to custodians and asking them to assist with searching for documents. Fortunately, because we had e-discovery tools available, it has certainly helped us ramp up, utilizing that e-discovery to search for documents. Certainly, that has definitely helped us out a lot, because, without that, I think we'd be completely buried.
We've definitely had our staffing issues, but we've managed to secure some COVID resources for two-term employees, who are going to be with us up to four years. That has certainly helped. We included a student intern, to help us with initial intake and that also has been helpful. We are working to see if we can get a contract in place to assist us with processing FOIA requests, so we can move these cases out quickly.
Lastly, what I wanted to say is that, as a result of our inability to respond to FOIA requests timely, especially in this COVID, we've seen an increase in our litigation cases. Therefore, that's another thing that we’re having to deal with. Hopefully, I think that we have gotten to a much better place now, that we have a much better process in place and we’re moving in the right direction that I think that a year from now, we'll be at a much better place than we are right now, in terms of timeliness of responses to request. We’re finding our process getting even better, communicating with requesters even better, providing a lot more interim responses to FOIA requesters, and asking them whether that will be enough to close our requests, especially if some of the other records that they're waiting for might involve, for example, [02:28:57 inaudible] documents. Hopefully, we think that some requesters might go, you know what, what you’ve given us is enough would be willing to close our request. If anybody has any questions, now or at any point, I'll be happy to answer.
Alina M. Semo: Roger, thank you so much.
Roger Andoh Sure.
Alina M. Semo: That's really helpful. Just to be fair and balanced, I want to look to our committee members who are on the requester side. That is the beauty of this committee, that we have a balance of both. Anyone on the requester side, want to weigh in about their experiences during COVID? Mr. McClanahan.
Kel McClanahan: I have actually been asked by a couple of different people to mention the experiences of various litigants and various requesters with various agencies, that go across the agency or across multiple agencies, to find out how widespread this is. One of the big ones that we have experienced is, the agencies that will do the rotating staff or they'll have staff coming in on certain days or even certain weeks, or the people who can't come in, don't come in, because they're either sick or they have to stay at home or something like that. They might not be able to work with classified information.
But some agencies are still keeping the, what I'll call assignment queues. Where let's say that Alina Semo is a FOIA officer and she is in charge of my request. If she stays home, my request goes into a general pool that people won't look at until they're done with all the requests that they're already assigned and so requesters are getting basically sidelined or thrown to the side, by complete accident, simply because the FOIA analyst that's handling their request isn't there that week or that month or can't access classified records or something like that. That is one concern I've heard from some people.
The other concerns that sound like they're going away, so I'd like someone like Loubna or Kristin to talk about this when they get around to it, is, when you're talking about classified records and you're talking about, a lot of agencies had problems with work from home analysts not being able to see classified records. That appeared from the outset to be less of a problem than it was maybe six months ago. But I would like someone who actually works in an intel or a law enforcement agency to talk about that and how they're fixing that problem.
Alina M. Semo: Great question, Kel. I don't want to put Loubna or Kristin on the spot, but we'd love to hear from your perspective what's happening on your end.
Loubna Haddah: Hey, this is Loubna, I'm happy to speak to that. Obviously, I think Kel’s comment is spot on, which is, it's less of a problem now than it was six, seven, eight months ago. With regards to DIA, that's been one of the biggest problems that we've had to try to tackle in terms of dealing with FOIA requests, is that most of the information that people are... requesters are seeking, are on the classified systems, but we have had a significant portion of our FOIA specialists at home teleworking for a variety of different reasons.
We're dealing with situations of folks who have self-certified as high risk, and the agency has a policy in terms of how we deal with that. We're dealing with also trying to accommodate folks who have families at home, kids at home, who are working, and try to figure out how to balance telework with mission. Then we also have certain restrictions, in terms of the agency's reconstitution plan and the percentage of employees who can actually be physically on-site.
Those have all evolved over the last couple of months, where we're better now, the FOIA office is in a better posture now, in terms of at least being able to have a certain amount of people in the office every single day. But obviously, they're not anywhere up to 100% full operating capacity. That's just consistent with the agency's reconstitution plan, in terms of how to keep the workforce safe and the safety protocols that we have in place.
It continues to be a challenge. But I think it is less of a challenge than it was at the beginning when we had almost a majority of folks on telework. But given the nature of the document that we work with, not being able to have everybody in the office all the time, is going to necessarily impact the ability to process with the same speed and efficiency that we did before.
Then, again, as an intelligence agency, we also work very closely with other agencies because most of the records that we have contain other agency equities, and those agencies have their own limitations that just build on top of it. I know that we've made some efforts to try to improve upon the type of work that the folks that are teleworking can do, in terms of intake processing, initial responses, communications with the requesters, things that we are able to try to, can do from telework, the agency is working to allow the FOIA specialists to be able to do that. Hopefully, that will help us to become a little bit more efficient. Hopefully, that answers Kel's question, over.
Alina M. Semo: Thank you so much. Kristin, do you want to talk a little bit about what's going on in your neck of the woods? That will really be helpful?
Kristin Ellis: Sure. I violated Alina's rule at the beginning. I'm Kristin Ellis and I’m at the FBI. I think consistent with Loubna’s experience, it's less of an issue for us right now. But I will say that as of Monday, the FBI’s FOIA shop has dialed back to a 50% capacity, because of impacts from COVID. Starting in April, we had gone back 100% and we've had to dial that back.
The challenge for all of this, for anybody that works in an agency that works on a classified system, is, that our systems are typically built around the classified system because it can handle everything. It can handle unclassified as well as classified. Whereas the unclassified system can only handle unclassified. The full portal, where you can submit an electronic request, it gets routed ultimately through to the classified system.
Our FOIA document processing system is on the classified system. The vast majority of what we do evolves from a classified system. For security reasons, we can't just downdraft that information, even if we believe it's unclassified to work on an unclassified system with it. Because that risks spills of classified information that is not immediately identifiable in the document. Basically, from our perspective, this all drives around people and the ability of people to physically be in an office, which has been obviously for pandemic purposes, the major impediment.
We're continuing to work through this. Our FOIA office is continuing to explore whether there are technical logical solutions to any of this. If so, if they're feasible, in terms of purchasing technology, implementing technology, getting it through security protocols, and all of that. We're just doing our best to continue the flow of the work. From our perspective, we also hate being shut down, because we already were in the hole in terms of a backlog. Not working makes that backlog worse and we don't want a worse backlog.
As I think, Roger was talking about CDC’s litigation load going up, FBI’s definitely was already very high, and adding to it doesn't help anybody. We're trying to be creative in solutions, but our hands are very much tied, just because of the security aspects of it. We're continuing to try to get as many pages out to as many people every month as possible. But I think that this is a long-term government-wide problem that needs to be addressed because I think most of us were caught on our heels when we couldn't go to work.
We have continuity of operations plans, but a lot of those are based on folks in DC not being able to work, but maybe folks in California being able to work. The problem was nobody could go to the office and so we didn't have backup and we didn't really have a great plan for how to work that, when all of us work on classified systems in the FBI, generally speaking.
I think that that's not a great answer, but that's where we're at right now, is we shut down, our FOIA shop shut down completely in March, for about six weeks. It then went back online in varying degrees. We're now dialing it back, because of the amount of infection and exposure that we're experiencing. I think that we're going to continue to see the up and down in the ebb and flow until we get the situation with the pandemic under control.
Alina M. Semo: Thanks, Kristin. I'm looking at our time and I know that there's a lot of other folks that would love to talk about this topic. I would like to ask for the rest of the committee members to defer and save their thoughts for our next meeting. I really would like to continue this discussion; I think it's a very important one and hope that all of you agree. But I also want to end this meeting on time today.
We are at 12:43 pm and at this point, I thought I would turn to the public comment section of our meeting if that's okay with everyone. Okay, I'm seeing some nods. Thank you, Dave, for nodding. At this point, we have now reached the public comments part of our committee meeting and we do look forward to hearing from any non-committee participants who have ideas or comments to share.
Just a reminder, we have posted, and we will continue to post on the FOIA Advisory Committee webpage, on the OGIS website, any written comments we receive, any oral comments are captured in the transcript of the meeting and we will post those as soon as they're available. Michelle, our event producer, if I could ask you to please open up our telephone lines and provide instructions, that would be great.
Michelle [Operator]: Absolutely. Ladies and gentlemen, if you would like to make a public comment over the phone line, please press pound two on your telephone keypad to enter the comment queue. Once again, pressing pound two will enter you into the queue.
Alina M. Semo: At this time, do we have any calls online? Anyone want to ask any questions through...?
Michelle [Operator]: I do see one person on the phone would like to ask a question.
Alina M. Semo: Okay.
Michelle [Operator]: Caller, your line is un-muted. You may go ahead. Caller, please un-mute your phone or device. Your line is un-muted, you may go ahead.
Robert Hammond: Hello. This is Robert Hammond can you hear me?
Alina M. Semo: Yes.
Robert Hammond: Hello?
Alina M. Semo: Yes, Mr. Hammond. Good afternoon. We can hear you.
Robert Hammond: Oh, yes. Ma'am. I'm sorry for the inconvenience there. I submitted a document for a public comment, and I don't know if anybody's had a chance to read it. But the first part was the question in the 2016 FOIA legislation, it required a single portal for submitting. I was wondering… I was thinking that might be FOIAonline, but I'm not sure. Maybe it's foia.gov, but does anybody know what the answer is to that and how that project's coming?
Alina M. Semo: Robert, do you want to take that one?
Bobby Talebian: Yes. Excuse me, this is Bobby from the Department of Justice. The national FOIA portal that was part of the 2016 amendments, that is foia.gov. FOIAonline is a shared service that agencies could use as a case management system that also has a public-facing portal, similar as other case management systems that are out there that other agencies have built or are procuring that also may have a public-facing portal.
But the intent of the amendments were to have, in addition to that, not to disrupt a single place or a requester can go and make a request directly from that website to any of the agencies subject to the FOIA. We launched that in, I think 2017 or ‘18, we launched the national portal on foia.gov, where you can go, and each agency has their own landing page. A key part of the portal is interoperability with agencies' case management systems.
In agencies, we had a directive to agencies to join OMB DOJ directive that acts as an exception, being granted that agencies be fully interoperable with the portal by the end of this fiscal year. We're working with the agencies to do that. A lot of agencies are already interoperable. When you go to foia.gov, you will see a form, a standardized form, but one that’s also customized to the agency, where you can submit your request directly through that agency, from the portal. Also has a lot of wealth of information about the agency's FOIA program, including their FOIA libraries, their average processing times, their FOIA regulations, their FOIA reference handbook. Foia.gov is where the national FOIA portal is.
Robert Hammond: Okay. If I could have just a second to follow up on that, I've used both. Foia.gov is basically an API, connects to somebody else's application. From a requester’s perspective, all that does, it gives you a place to submit your request. FOIAonline, on the other hand, you get to log in, it pre-records all the stuff you'd normally use for a FOIA thing. You can view the status for your request if it's open if it's closed and those sorts of things.
I'm sure you don't have time to address it during the meeting, but I like FOIAonline, I really do. But there are several deficiencies from the perspective of the requester, in that...and a couple of those things, the agencies shut by default to embargo and make [it] not viewable to the public, the requester's name, the request itself and all the correspondence. That defeats the purpose of the webpage. I mean, release to one, release to all. Maybe you guys can get a chance to take a look at the recommended changes that I have for that one, get it to the right committee, and hopefully, somebody will take a look at that. Thank you.
Bobby Talebian: Thank you. I'll just quickly add on to, just that, of course, the individual for these might have additional functionality. But the idea with the portal is that we'll continue to just building on it, so that we can integrate with agency systems to add additional functionality, such as viewing records and things like that. The vision is that eventually, all the functionality of the national portal increases to meet the type of functionality that's out there for what individual agencies are using for their portal if they are using the portal.
Robert Hammond: Thank you, sir.
Alina M. Semo: Thanks.
Michelle [Operator]: We do have another question in the queue.
Alina M. Semo: Let's go ahead and listen to that caller.
Michelle [Operator]: Very good. Caller, your line is un-muted. You may go ahead.
Alex Howard: Hello. This is Alex Howard. Thank you for continuing to hold these discussions during this state of pandemic. I hope that you'll make the recording of this discussion available to the public on the Archives’ YouTube channel, as soon as it's feasible, along with the closed captioning described at the beginning, to make this public meeting accessible.
I asked several questions in the chat prior to when I raised my hand because I wasn't sure if the queue would get to me. But the principal one at the top, I would be grateful if you could address the others, regards the suspension of freedom of information law practices and offices across our country. Obviously, the folks from the federal government will focus on the agencies, but there are quite a few people from civil society as well. What we see here on the civil society side is states and city governments suspending FOIA during the state of emergency, which has now lasted for over nine months.
Given the scale of death and destruction ongoing right now, we can expect to last the winter. What should be the stance of agencies with respect to the FOIA? What should be the stance of others? What provisions can be made to ensure that public access to trustworthy information in a pandemic is not cut off? I should say, particularly given that we see significant disparities between what governors, secretaries, and even presidents say in public and what epidemiologists and public health officials are saying in private. Thank you again for hosting this meeting in a virtual context, enabling us to continue to have these discussions.
[END OF TRANSCRIPT NOTE: TECHNICAL DIFFICULTIES BEYOND OGIS’S CONTROL ABRUPTLY ENDED THE MEETING AND THE PUBLIC COMMENT PERIOD AT THE 2:29:15 MARK. WRITTEN PUBLIC COMMENTS MAY BE SUBMITTED AT ANY TIME TO FOIA-ADVISORY-COMMITTEE@NARA.GOV.