FOIA Advisory Committee Meeting (Virtual Event)
Thursday, June 10, 2021
10:00 a.m.-1:00 p.m. (EST)
MICHELLE [OPERATOR]: Ladies and gentlemen, welcome and thank you for joining today's 2020 to 2022 FOIA Advisory Committee Meeting. Before we begin, please ensure that you have opened the Webex participant and chat panels by using the associated icon located at the bottom right-hand side of your screen. Please note all audio connections are currently muted, and this conference is being recorded. You are welcome to submit questions throughout the webinar, which will be addressed at the Q&A session of the webinar. 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. So please go ahead.
DAVID S. FERRIERO: Thank you and good morning and welcome to the fourth meeting of the 2020-2022 term of the federal Freedom of Information Act Advisory Committee. I join you from the ancestral lands of Nacotchtank peoples, which today is home to the flagship building on Pennsylvania Avenue of the National Archives.
June marks several important historical moments in our rich American history but there are two events that bear mentioning today. The first is June 19th, 1865, two years after Lincoln signed the Emancipation Proclamation when Union troops announced that an estimated 250,000 enslaved Black Americans in Texas were free by executive order. Among the holdings of the National Archives that have been digitized for online viewing is that decree, General Order No. 3, read by Major General Gordon Granger to the people of Galveston. June 19th or Juneteenth, celebrating the emancipation of remaining enslaved Black Americans in Texas reminds us that Black Americans helped build our great nation, even when rights and liberties were denied them. Last year's national reckoning with issues of racial equity elevated the important June commemoration in our country's historical consciousness. As part of that reckoning at the National Archives late last year, I convened a task force on racism and tasked it with identifying and recommending solutions to issues both explicit and implicit, stemming from structural racism within the agency. I look forward to sharing more about the task force work in the coming months.
June 19 is also of particular significance to the National Archives as it was the day in 1934 that President Franklin D. Roosevelt signed the law establishing the National Archives to centralize federal record keeping. [The] National Archives Act called all archives or records of the United States government, legislative, executive or judicial, to be under the charge of the archivist of the United States. Workers from the Works Progress Administration, a Roosevelt New Deal agency, surveyed federal records nationwide locating them in basements, attics, carriage houses, abandoned buildings and the alcoves with little security or regard for storage conditions. Today, the National Archives encompasses a nationwide network of federal record centers and presidential museums and libraries in 17 states in the District of Columbia.
Like so many other historical and cultural institutions around the world, National Archives facilities have been physically shuttered by the pandemic for more than a year. While we've continued to make access happen in virtual spaces throughout the pandemic, all National Archives facilities are in some phase of reopening. We recently launched the pilot program to test, bringing researchers back into the National Archives research rooms. And I'm pleased that the Rotunda of the National Archives building here in Washington, as well as five presidential museum, libraries, are open with limited capacity on select days. If local public health metrics remain below target for safe reopening, the Rotunda also will be open on Monday, July 5th for the July 4th holiday weekend. Please visit archives.gov for more information.
FOIA Advisory Committee members, as we recall the founding of the National Archives as our nation's record keeper, I look forward to a bright future, including your work in the federal FOIA space. I understand for the first time, since the committee's establishment in 2014, you all will formally consider a recommendation less than one year into your term. I appreciate your work on a recommendation regarding public access to legislative branch records, a timely topic. Public access to government records in all branches of government strengthens democracy by allowing Americans to claim their rights of citizenship, hold their government accountable and understand their history so they can participate more effectively in their government.
Finally, the approach of the summer solstice and the long hours of daylight remind us that the long dark winter of the pandemic will someday be behind us as we emerge from these pandemic times. Please continue to take care and stay safe. I now turn the meeting over to the committee's chair, Alina Semo.
ALINA M. SEMO: Great, thank you so much, David. Really appreciate those great remarks. As the director of the Office of Government Information Services, OGIS, and as committee's chairperson, it is my pleasure to welcome all of you to the fourth meeting of the fourth term of the FOIA Advisory Committee. I hope everyone who's joining us today has been staying safe, healthy, and well. I want to welcome all of our committee members today and express my gratitude for your commitment to studying the current FOIA landscape and developing consensus recommendations for improving the administration of FOIA across the federal landscape. I would like to re-introduce everyone to the committee's Designated Federal Officer, DFO Kirsten Mitchell. She is going to help me stay on track today as she always does, and make sure that everything runs smoothly.
Kirsten has taken a visual roll call and confirms we have a quorum. Unfortunately, we have two committee members who are not able to join us this morning, Alexandra Perloff-Giles is unable to join us. Linda Frye is unable to attend the first part of the meeting, although she may join us later this morning if she is able. Since we're dispensing with the roll call, I'll just say hello to everyone. Group, hello, and good morning. Patricia Weth, who has been on the committee since the archivist appointed her in 2018 has recently changed agencies. Patricia is now Assistant General Counsel in the national FOIA office of the Environmental Protection Agency, EPA. In light of her move from the NLRB to the EPA, the Archivist has reappointed Patricia to the committee where she will continue to represent the interests of a non-cabinet level agency. We appreciate and thank EPA for supporting the Advisory Committee and the important work that we do. Thanks, Patricia.
I also want to welcome our colleagues and friends from the FOIA community and elsewhere who are watching us today, either via WebEx or on NARA’s YouTube channel. We have a busy agenda today, so I will do my best to make sure we stay on track and on time and perhaps even a little bit early so I can give you some minutes back to your day. Despite today's full agenda, we will leave time at the end for public comments to allow the opportunity for any non-committee attendees to provide ideas or comments.
A few words about public comments. We have received a number of written comments that we have posted on our website, and we have shared them with committee members. Members of the public can submit public comments at any time by emailing firstname.lastname@example.org. We read all public comments and consider them for posting in accordance with our posting policy for public comments, which is available on the FOIA Advisory Committee website. And we also share public comments with our committee members.
Please note, the chat function in WebEx or the NARA YouTube channel is being monitored today, but it's not the proper forum to submit extensive public comments. You may submit public comments at any time by emailing our FOIA Advisory Committee mailbox, and we will consider posting them on our OGIS website. The chat function on both platforms should be used to ask clarifying questions or provide brief comments or questions that we will read out loud at the end of today's meeting. We will open up the telephone lines twice today. Once at the end of the deliberations of the committee on today's recommendation that will be presented by the legislation subcommittee and at the end for the last 15 minutes of our meeting to receive any oral comments.
Meeting materials for this term, along with members’ names, the affiliations, and biographies are available on the committee's webpage. If you click on the links or the 2020 to 2022 FOIA Advisory Committee on the OGIS website, you will be able to access that. And there, you will also find our agenda for today's meeting. We will upload a transcript and video of this meeting as soon as they become available. All submitted comments that are not case-specific are also posted or will be posted on our website.
A reminder that the FOIA Advisory Committee is also not the appropriate venue for concerns about individual FOIA requests. If you need OGIS assistance, you may request it, but we ask that you not do so through the committee email. Please send us an email at email@example.com. It is hard to believe that we've been meeting virtually since March of 2020. The virtual environment has proven to have several advantages for all of us, including saving money on dry cleaning bills, saving commute times and achieving a better work-life, home-life balance. The disadvantage for me and Kirsten is that we are not always able to see committee members raising their hands or eagerly leaning forward to ask a question or make a comment as we would if we were meeting in person. Although I will be doing my best to monitor committee members' non-verbal cues during the webcast, please all be respectful of each other and try not to speak over one another. Although I realized that will be inevitable at times.
I also want to encourage committee members to use the “all panelists” option from the drop-down menu in the chat function when you want to speak or ask a question in case we miss your verbal cue. You can also just chat me and Kirsten directly.
As a reminder, however, in order to comply with the spirit and intent of the Federal Advisory Committee Act, committee members, please keep any communications in the chat function to only housekeeping or procedural matters. No substantive comments should be made in the chat function as they will not be recorded in the transcript of this meeting. Committee members, a reminder that I make every single time, if you need to take a break, please feel free to do so, but do not disconnect from either the audio or the video of the web event. Instead, put your phone on mute and turn off your camera temporarily. Send 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. We are going to be taking a 15-minute break at approximately 11: 30 AM on our agenda. We may break a little bit earlier or a little later, depending on our discussions and our pace today.
And a big reminder to everyone, I am equally guilty of this, please identify yourself by name and affiliation each time you speak, if at all possible. This will help us down the road with both the transcript and the minutes, both of which are required by the Federal Advisory Committee Act.
I'm going to move on now to the approval of the meeting minutes from our last meeting, March 3rd, 2021. Minutes from that last meeting have been written up by Kimberlee Ried from the National Archives. And we thank Kimberlee for that. Kirsten and I have to certify and post those meeting minutes online last week in order to comply with a 90-day deadline imposed by the Federal Advisory Committee Act. So we went ahead and certified the minutes to be true and correct. But if we missed anything, committee members, please let us know and we can get that corrected.
Before turning to our guest speakers, a quick update. Since we last met on March 3rd, we have completed two prior FOIA Advisory Committee recommendations. So we're excited about that. And we have also updated our committee recommendations tracker accordingly. That means eight out of the 30 recommendations that have been made to date to the archivist, 22 of which were made in the 2020 term, 2018 to 2020 term are now complete. A recommendation number 2020-10 has now been completed. That recommendation called on NARA and DOJ [Department of Justice] to establish liaisons with the Chief Data Officers [CDO] Council to ensure that council officials understand the importance of federal record keeping and FOIA requirements.
The directors of OGIS and OIP [Office of Information Policy], that's me and Bobby Talebian, and our Chief Records Officer for the United States Government, Laurence Brewer, have now all been designated ex-officio members of the CDO Council. And we will work to ensure that the council understands the importance of federal record keeping and FOIA requirements. The complete recommendation number 2020-07 in full, OGIS included in our May 2021 annual report to Congress and the President, the results of our 2020 assessment on FOIA performance measures for non-FOIA professionals, which included four recommendations for agencies to take. And I invite everyone to the website to look at that and study that further. Work on 17 FOIA Advisory Committee recommendations is in progress. Five recommendations are pending, which means work has not yet begun on them, but we hope to do so in the not too distant future.
So bottom line stay tuned, work by OIP and OGIS continues. We are working very cooperatively together. So I am extremely happy about that, and thank Bobby for all the great cooperation. We've been regularly updating the recommendations dashboard. So please check that frequently. And special thank you to Christa Lemelin on our staff for continuing to keep that dashboard up to date.
In the past, I have mentioned that earlier this calendar year, our OGIS team launched five cross-training programs in which professionals from other National Archives offices have been assigned to OGIS on a part-time basis to work on completing past FOIA Advisory Committee recommendations. Those projects include compiling briefing material for new senior leaders, working with OIP and NARA's records management experts on updated training material, reviewing information agencies make available on their websites about the FOIA filing process and reviewing agency performance plans to see if FOIA is included. That work continues, and we will publish the results of those efforts as soon as they are available for primetime. So please stay tuned.
Also, please check out the FOIA Ombudsman blog, where you can learn more about individual members of our committee through our getting to know the committee members blog posts. A special thank you to Kimberlee Ried, she's been doing an outstanding job with that and I think all the committee members for agreeing to share a little bit about yourselves and letting everyone know what interests you and your work with FOIA. I'm going to pause for a second and make sure that none of our committee members have any questions so far about anything I've gone over.
Okay, great. Everyone is raring to go. All right. So we're going to move on to the next portion of our agenda. So it looks like we're right on track. We are going to have a briefing on legislative reform efforts today, and I am very pleased to welcome Emily Manna and Freddy Martinez from Open The Government, who will be providing us with an update on legislative efforts to reform FOIA.
Emily Manna is the Policy Director in Open The Government, where her work focuses on transparency and accountability for U.S. military and national security programs, records management and data preservation, and extending proactive disclosure and the public's right to know. Her opinions, writing and research have appeared in numerous outlets, including Columbia Journalism Review, the New York Times, the Hill, the Houston Chronicle, the Nation, Roll Call and on NPR member stations. Prior to joining Open the Government, Emily focused on civil liberties and human rights issues in the U.S. national security and foreign policy. Emily holds a master's in public policy from Georgetown University, where her research focused on the U.S. drone program.
Freddy Martinez is a Policy Analyst at Open The Government, whose transparency work focuses on surveillance, immigration and police accountability. His work has appeared in numerous media outlets, including the New York Times, Vice, Forbes, the Intercept and the Chicago Sun-Times. He was previously a Mozilla/Ford Foundation open web fellow at the Freedom of the Press Foundation.
We have agreed that after their presentation committee members will have the opportunity to ask questions, make comments, and have a dialogue with Freddy and Emily. So please hold your comments, save them and I am now going to turn things over to Emily and Freddy. So welcome, we're very happy to have you.
EMILY MANNA: Thank you so much, Alina. Thank you for the introduction, and thank you so much for having us. We're really thrilled to be here talking to you all about the work that we've been doing over the past couple of years. So for those who don't know too much about Open The Government, we are a coalition of a little over 100 organizations that vary across the political spectrum, across policy issue areas that are all working to advocate for open government and government accountability. And we have been working with a smaller subset of that coalition, about 20 to 30 organizations on a set of coalition FOIA reform recommendations, and that's what Freddy and I will be talking to you about today.
Before I kind of talk more about the substance of the reforms, I just wanted to tell you a little bit about how they came about. Most of this kind of emerged out of the 2016 FOIA reform process and some of the coalition's priorities that did not make it into that bill. And also, what we've seen in terms of how the 2016 FOIA Improvement Act has been implemented and the extent to which agencies are successfully following the updates in that bill. And also, some of the ideas in our reform recommendations come from congressional staffers and their ideas and priorities. Some come from other kinds of events in the FOIA world, such as the Argus Leader Supreme Court decision, and some just come from various organization priorities. This set of recommendations has emerged over a couple of years of work and discussion and conversation within the coalition until we ended up now with the recommendations that we have here.
And at this point, we have presented those in Congress. We have been having conversations with congressional offices, still have yet to see how much of our reforms they may accept and sign off and send into a bill. But I do think that it's likely we will have a four-year reform bill in some form this year. But still TBD really on what that will look like. We are also, I will say, focused on an appropriations track as well. We recognize that resources are a significant part of the problem in terms of where backlog plays, et cetera. So we are pushing for increases in FOIA resources across the board as well. And Freddy, will talk a little bit more about that in a few minutes.
So now I just like to go through a kind of overview of the issues that our reforms are trying to tackle, and then I'll let Freddy do a deeper dive. And then hopefully, we'll leave some time at the end for any questions or discussion.
So our set of recommendations aims to address three main, kind of thematic, areas of FOIA. And those are preventing over-redaction and improper withholding of information, minimizing delays and improving efficiency, and protecting and strengthening fiscal and corporate transparency. Those are the three areas. So for that first area, preventing overredaction and improper withholding of information, the reforms that we've kind of isolated over the past couple [inaudible 00: 23: 40] include narrowing of the (b)(7)(F) exemption to kind of prevent agency from withholding information based on a kind of nebulous idea of potential harm from disclosure, a clarification of the remedial power of federal courts to order an agency to comply with FOIA. And the meaning of that is allowing courts to order public disclosure rather than simply release of a document to a complainant.
And the biggest FOIA recommendation in this part of our recommended reforms is a public interest balancing test that we'd like to see added to the foreseeable harm standard. And that's really come out of, again…[inaudible]. Since the 2016 FOIA Improvement Act, the way we have seen the foreseeable harm standard implemented and a real feeling on the part of civil society that [it’s] not necessarily being implemented in the way that Congress intended and in a way that favors disclosure, and that there's some ambiguity there. And so we think adding a public interest balancing test would clarify and help to enhance disclosure and employment process.
The next piece on minimizing delays and improving efficiency. The first recommendation in this section is to provide FOIA officers direct access to electronic record systems. If I'm not mistaken, I think that's something this committee has discussed in past sessions. And requiring agencies to proactively disclose certain categories of records. And I know that is a previous recommendation of one session of this committee, and this recommendation actually was based heavily on that recommendation from the FOIA Advisory Committee. Categories of records, such as agency head calendars, visitor logs, the 10 largest contracts and grants, things like that, that would help to remove some of those frequently requested documents from the FOIA stream and hopefully improve the efficiency of the process.
Finally, the piece on protecting and strengthening fiscal and corporate transparency. This is the piece where we have a recommendation related to the (b)(4) exemption that is a response to the Argus Leader Supreme Court decision, and I know Freddy's going to discuss that in more detail. And we also have a recommendation to apply FOIA to the records of private prison and detention centers related to their federal government contracts. This is something that would certainly be an uphill battle in terms of FOIA legislation and getting it through the Senate in particular. But it's something that Open The Government feels really strongly about. We feel that applying FOIA to private contractors is really the next frontier of FOIA, and it's something that we're really committed to working towards in the long term. At this point, something like 40% of federal government work is done by private contractors. And so if FOIA does not apply to 40% of government work, then that's a significant weakness in the law. And so that's a real priority of ours.
And one other piece that I did want to mention is not actually [to] blunt part of these main kind of thematic areas, but I know that one subcommittee on this committee is considering reforms or recommendations related to OGIS. So I did want to mention that we do have one recommendation as well that would give OGIS the authority to release records as a part of case services. So that's kind of a brief overview of the recommended reforms that we've put forward. And I think now I'll turn it over to Freddy to dive into a little more detail, but then we're happy to take questions or hear your thoughts and feedback and have a discussion after that point. So Freddy I'll turn it over to you.
TUAN SAMAHON: I'm sorry. This is Tuan Samahon. I can't hear any audio.
ALINA M. SEMO: Tuan, you're not the only one. Freddy? Yeah, we can't hear you. He is retooling. Please stand by.
MICHELLE [OPERATOR]: Freddy, please do unmute your phone.
All right, Freddy. We may have to have you dial back in because we cannot hear you. So stand by while Freddy dials back in, everyone.
EMILY MANNA: I can go ahead and talk a little bit more about the appropriations piece of our recommendations while we wait for Freddy to dial back in.
ALINA M. SEMO: Thanks so much.
EMILY MANNA: Yeah, I think one thing we did just want to highlight for this committee in particular, and I know it's not an unfamiliar issue to you all. But our hope to advocate for increased resources for FOIA offices, it's been extremely difficult to get a real sense of the budgeting and resourcing needs of FOIA offices across the board in any kind of specific terms. And this is a situation where we actually have folks on the Hill, who are interested in this and who are interested in making this happen, but we find ourselves in a situation where, again, coming by those numbers in any detail is so difficult that we may find ourselves once again in a position of having folks on the Hill have to ask for more information for those kinds of specific numbers rather than being able to actually pass some serious appropriations provisions that would provide some much needed resources. So just an ongoing issue that we're finding in our attempts to make that happen is just coming up with those specific numbers, especially on an agency-by-agency basis on staffing and resourcing needs. Freddy, are you back now?
MICHELLE [OPERATOR]: No, he's not quite back in. He is still dialing in.
ALINA M. SEMO: While Freddy is trying to dial back in, can I just pause, Emily, and give the committee members an opportunity to ask questions about the legislative proposal so far?
EMILY MANNA: Sure thing.
ALINA M. SEMO: Sure. Jason, go ahead.
JASON GART: Hi, Alina. Thank you. And thank you, Emily. So Jason Gart, History Associates, Inc. Can you talk a little bit more about your comment about applying FOIA to government contractors and how that would work?
EMILY MANNA: Sure. Yeah, I mean, it's a really thorny and complicated issue and there would be a lot of both, not only FOIA and access issues, but records management issues that would come into play there. And we certainly recognize that. It would be a long road, and we definitely recognize that, but we think we have to get started somewhere. And the private prisons and private detention centers industry in particular was a good place for us to start into focus, because this is something that most folks on both sides of the aisle see as a pretty core government function, and therefore, a good industry to start in terms of a place where the public really direly needs more access to records. And the way that we have set that up in our recommendations is just to make clear that the records of the private contractor that are related to fulfilling their government contracts would be considered agency records for the purpose of FOIA. So it's not, for example, making the contractor to be considered an agency, which would just bring up all kinds of additional records management issues for the entirety of that contractor’s operations, even outside of the government contract. But instead, just to say that those records that are related to fulfilling the government contract would be considered [an] agency record.
FREDDY MARTINEZ: Thank you. And Emily, I think just jumped up. Can y'all hear me now?
ALINA M. SEMO: Yeah, thank you.
FREDDY MARTINEZ: And, and if I could just jump in here and I think one of the reasons we think people should take this proposal seriously, is that many states already require this...and this is also built into many contracts now that's a record maintained by the contractor are considered agency records and our property, essentially all of the agency. And so if you look across the...so that's the first part. The second part is that if you look across the country, many states really do require that core governmental functions be treated as agency records and subject to FOIA, even if it's done by a private party. So for example, in Illinois, it is an example here, but it's not the only one, something like the majority of the states have some version of this.
What we really think is important here, catching up federal FOIA to some of the best practices that are performed across the country at the local level. We definitely think that this is an issue that is really more about sort of bringing federal FOIA in line with other practices across the country. And, and I'm sorry I had to rejoin. So if I'm restating this here, just to circle back with Emily really quickly. I think having an appropriation for things like e-discovery for like records management, things that I know that the direction that the FOIA Advisory Committee had discussed before, we think that's a great way of tackling some of these issues that it's still technically legislation, but it's also not it doesn't have to touch the text of FOIA. That's a great place where we think additional resources could be had.
In particular, we think that there should be a mechanism by which either the Chief FOIA Officer or someone in conversation with the Chief FOIA Officer, maybe the CIO, should be able to put together a joint proposal for things like a modernization budget. So maybe they could put together a package that says we need money for something like e-discovery tools, and we're going to use it for both FOIA, but in general, also records management and other kinds of things.
Sorry. And I'm just kind of going to move back onto the other idea of the public interest balancing tests. And that really is just sort of coming out of the fact that the foreseeable harm standard really hasn't been implemented in any significant way. We sort of think that there should be at least a subset of public interest that should outweigh kind of exemptions. So things like news media interest, protecting the life of individuals, these kinds of things should override the potential to exempt information. And we think that one in particular is a really important one.
The...okay, some of the other priorities that we have as a coalition includes [inaudible] Exemption Four this is the Argus Leader decision. We definitely see strong interest in things like reverting to the National Park standard that was upended by the Argus Leader decisions. And we have interest on the Hill in legislation. So for example, the Open and Responsive Government Act, which is Senate Bill 742, in this current term, attempts to clarify congressional intent with before... And in particular, we think that there should be a few things, right? We want to restore the substantial competitive harm that comes out of the exemption. We definitely, we also think that records should be maintained and treated as confidential only if they are both actually, and customarily kept secret within both the company and within the industry. We are seeing situations now where government agencies are withholding records on the basis that they're confidential because they sort of defer to private businesses and just sort of take their word for it without doing any kind of analysis.
We saw an example where the Department of Labor was saying that workplace injury reports were trade secrets for the purposes of FOIA, because even though they're, the agency is required to proactively disclose some of that information and the business is required to post those records publicly in their work workplaces. That's kind of what's happened after the Argus Leader decision. So we need some mechanisms both to restore this idea of a substantial competitive harm that would arrive from the release of a business's records. And we also need some mechanism for an analysis of what is confidential and what is commercial. One of the reasons that we think that the Open and Responsive Government Act really does sort of get to the heart of what we're trying to do here, but we definitely think that there...think that could be really powerful as part of a package.
My apologies. The last part that I want to talk about, I guess, is the improper withholding of information and the expanded access to information. So for exemption (b)(7)(F) in particular, this is an exemption that's used the most frequently in government. And we think that over time, the use has sort of expanded far beyond what was intended by Congress. In particular, the text of exemption of (b)(7)(F) is that a risk to any person that would arise from the release of records is the basis for withholding. And this sort of definition of any person has expanded from a very real particular individual to sort of very vague and theoretical harm.
We think that limiting (b)(7)(F) to any, basically we think that this, any person that is identified as a potential person for, for harm should be related to an active law enforcement investigation that has some specificity to it. We've seen the government sort of tried and agencies tried to use these in, for example, in one example, we saw that potential flooding risk, for example, in the future to some towns, potentially, these kinds of vagueness, they vague risks really do not sort of get to what we think Congress tried to properly protect.
Yeah. And then finally, in sort of reducing proper withholding and over redaction, we also think that we need some mechanisms for, sorry, let me pause there. Sorry about that. I did want to, sorry, let me shift gears here for a second and talk about expanded access to electronic records. And I know this is an issue that the advisory committee has looked at before. One of the recommendations that we're making is that FOIA officials be given sort of direct electronic access to the records that they would ultimately be reading, searching, redacting and releasing. So this is a provision that just clarifies that FOIA officials should have direct access to the records that they will release. And this is sort of to reduce the situation where a FOIA officer will go to a subject matter expert, maybe two or three or four times, ask them to search for records, and then ultimately release both records.
Obviously, we think that there will be a situation where these individuals will work together, but if a FOIA officer, can you sort of maybe do that first level search, this will sort of cut back some of the back and forth between them and the subject matter experts. We're seeing this as one of the major inefficiencies in FOIA across the agencies. And we know that in our discussions with FOIA officers, that this is the change that they would very much welcome. And that would very much speed up their workflow. So we think that was a no brainer. And we think that that one would have a lot of agency buy-in from officials and from, well, the community as well. I think I will wrap it up there. Yeah. I'll leave it there for questions.
ALINA M. SEMO: Okay, great. Freddy, thanks. I know that Kel McClanahan had a question. Kel, over to you.
KEL MCCLANAHAN: Hi, thanks for that. Hi, Emily and Freddy, and for the rest of y'all, the question I have is going back to something that Emily talks about when she was talking about the private prison issue. And obviously I'm hoarse because I have a cold today. Was there in your notes, did you come up with any reason that an agency could not go ahead without statutory reform and put in a term in a contract that would require the contractor to make their records available to the agency in the instance of a FOIA request?
EMILY MANNA: No, Kel, that's a great question. I don't think there's any reason why and many already do and that to be quite honest, that's part of our argument is that many contracts already include such provision, so it shouldn't be a major change or a major shift for many of these contractors. The reason why we'd still like to see it done through the statute is for the purposes of the integrity and strength of the FOIA as a statute, right? That is something that we feel should apply to government work across the board, whether that's being done by agencies or federal employees, or whether that's being done by contractors. We'd love to see that change to the statute, but in the meantime you're absolutely right. There's no reason why agencies can't go ahead and include this in their contracts currently.
TUAN SAMAHON: Hi, this is Tuan. I have a question for Emily Manna. Emily, could you address, a little bit, this proposed foreseeable harm balancing test? I, my thought or immediate reaction is yes. I'm sympathetic with the idea of putting teeth into this test. I recall, well, Michael Bekesha from Judicial Watch advising that this was going to be a toothless test if it was adopted, but nonetheless, that's what Congress went with and that largely in many instances has proved to be toothless. But I'm concerned, I'm concerned that perhaps it is going to create a lot of unpredictability, which at the agency level may mean that people will err on the side of over-redaction and then it pushes the decision basically out of the agency and then into the courts, so those who have lawyers can litigate these claims.
Of course, when you've got a balancing test, that's a standard, you know, that's famously subjective and it tends to then depend very much upon the identity of the adjudicator. So say how [a] US district court judge or senior district court judge Royce Lamberth applies that test is going to look very different than say a much more pro-government judge. I'm wondering whether you've given thought to other ways of putting teeth into this foreseeable harm standard, whether you consider the unpredictability issue.
EMILY MANNA: Sure. I mean, this has been, this has been a long-standing priority of our coalition to add a public interest balancing test in some form. We ultimately decided that post 2016 FOIA Improvement Act that adding it to the foreseeable harm standard would be the best way of doing it because we believe that it will add clarity to the foreseeable harm standard. And that, some of the issues you're describing is to a large extent what we're already seeing in the implementation of the foreseeable harm standard act.
Agencies are already erring on the side and that there is ambiguity there, a lot of litigation over, over the foreseeable harm standard and hope that adding language would, would clarify the foreseeable harm standard rather than adding more ambiguity. We're adding in our language a few different examples of public interest for this purpose to, for reference, which include things like furthering public understanding of the operations or decision-making of an agency or government official, facilitating the public's ability to make informed decisions with respect to electoral or democratic processes, investigating any reasonable suspicion of governmental wrongdoing, furthering public health or safety, and other relevant public interests.
We're hoping that we can add clarity rather than adding ambiguity, but of course, at least in the short term I'm sure there will be a lot of litigation over this as there would be over any kind of new change to the FOIA. But it's our hope that down the road in the long term, this ultimately improves disclosure and would it decrease litigation in the long term? I don't know if that answers your question. I don't have specifics on the kind of other ideas that folks have talked around on adding, adding keep to foreseeable harm. But that's kind of a little more insight into our thinking. I don't know Freddy, if you wanted to add anything.
FREDDY MARTINEZ: Yes. Thank you, Emily. I definitely also want to remind people that there are already balancing testing in other parts of the FOIA. Agency officials and district courts already know how to deal with them. And so our belief is that there already is this, I guess muscle that they can flex if they need to. So we have heard that concern raised, but we also just remind people that this is a thing that there's already other parts of FOIA, and we don't work here sort of adding more complexity, or at least we would think that people will be able to handle it just fine.
TUAN SAMAHON: If I could just push back a little bit, every time you write in ambiguity to the statute, you are increasing the costs to claimants and to the government to resolve those ambiguities. And when you've got a fee-shifting statute and you have requesters who, by and large, depend on the goodwill of pro bono, low bono lawyers, those who are willing to work on a contingency fee basis, you create a certain pocket of costs for prospective clients. And so let me suggest that the standards [are] fine, but [by] adding new standards, you can find some bright line rules also to help backstop some of these things, because, and again, this isn't just the requester's side. I would think too, if I were a FOIA officer I would prefer to have some predictability here.
Again, there's big literature on the costs and drawbacks of standards versus rules. One of the famous ones for standards is going to be this unpredictability of cost and a risk of inconsistent outcomes throughout. And so again, I think that your, your instinct of including some examples is a good start, but I wonder also, are there some clear lines maybe that you might draw and again, make this a little bit more administratively simple for the agencies on the agency side and a little bit easier, less subjective for the benefit of both counsel in court.
EMILY MANNA: Thank you. Yeah. I mean, it's definitely something important to consider. Again, I'll just say that ultimately it's our belief that increased disclosure will ultimately reduce that burden. But I do agree that in the short term there likely will be a slightly increased burden when this change is still new, but it is our hope that there will be what kind of results standard ultimately. But I absolutely hear your point and thank you for the feedback. We can certainly consider whether there are, as you said, more bright kinds of outline rules that can be implemented to this as well.
JAMES R. STOCKER: Hi, this is James Stocker, Trinity Washington University. I also had a question about the foreseeable harm standard, and actually there are two things that I wanted to ask. First, have you all done a study of the role of public interest in foreseeable harm determinations? Because I think my understanding is that the agencies have the discretion right now to consider public interest in determining whether something is a possible harm standard or not, or are you aware of any? Then the other question is, on who would do the burden be to articulate what the public interest is? Would it be requesters who would talk to, in their FOIA requests, state what they think the public interest is, or would you just ask the agencies to make a determination about what they think the public interests of a particular request might or might not be? Thank you.
EMILY MANNA: To your first question, we have not studied that. So, I don't know if you're aware of anything on that note. To your second question, it would be to the agency to weigh that public interest, not to the requester, which is why we've provided examples in our recommended language. Freddy, do you want to say more?
FREDDY MARTINEZ: Sorry, I was muted the entire time. I definitely agree with you on the second part that we definitely think it should be on the agencies to be considering all of these, especially with how I think at the end of the day, what we're trying to do is find a mechanism to make it clear that the public interest in disclosure should override agency interest in withholding. And what we're adding is another sort of additional power to that backing. And so we think that would sort of make it clear to the agencies that they should be considering all of these things when they're applying exemptions. So I definitely would think that it's appropriate to sort of put that toward the agency because it's ultimately the agencies’ overuse of redactions and exemptions that we're trying to tackle.
EMILY MANNA: And the agencies are already considering the foreseeable harm piece of that. So that's already required to be part of the agency calculus [in] deciding whether to withhold information. So this just adds not only that disclosure would harm an interest protected by an exemption, and that such harm outweighs the public interest in access to the information. So it's just adding additional language to what the agency is already considering in the foreseeable harm standard.
KEL MCCLANAHAN: Hi, this is Kel McClanahan again, coming back to this issue. How would you propose specifying in the rule, in the legislation, if there were to be legislation on this, that the public interest could not basically be defeated by the existence of the exemption? Like say that the agency wants to withhold something under 5 attorney-client privilege. And they say, well, there's no public interest in the release of attorney-client privilege information because of the importance of the attorney-client privilege in American jurisprudence or something like that. They have tried in some of the various foreseeable harm cases where they basically make it a nullity. How would you get around that proactively so that we don't end up back here four years from now re-arguing how to make this better yet again?
EMILY MANNA: That's a good question, Kel, and one that I might leave to the litigators. I'm not a litigator on FOIA. Freddy, I don't know if you have thoughts on that.
FREDDY MARTINEZ: I don't. I mean, yeah, it is kind of a circular pattern here, I think, which is challenging. I don't have thoughts on that, unfortunately. I do think that it's one that we're going to have to tackle moving forward, but I don't know how to get to that.
ALINA M. SEMO: Well, if anyone else has any questions now is the time to get them in. We're running a little behind schedule. So I encourage everyone to just think through any other questions to ask Emily and Freddy quickly. I'm sure Emily and Freddy will also be available afterwards. If anyone has any other questions to send them an email, we can reach out to you. There was one comment that we received that I just want to read out loud. “There may be value. This is to the appropriations issue Freddy that you talked about earlier, there may be value in re-channeling FOIA fees towards OGIS, which could help provide a secure, and additional source of funding.” Michael Morisy is studying fees, so that's one thing I guess you could take into account as the process of committees talking about that. Anyone else have any questions? Tuan, you asked a very good question. I don't want to bypass you. Would you like to just ask it out loud? Do you want me to ask it, you left it in the chat?
TUAN SAMAHON: I can just leave it for Emily and Freddy to take a look at it. I was just asking in other contexts, the public interest is limited to knowing what the government is up to. And so I, again, wanted to understand better, of this proposal of having public interest considered, and whether you were proposing a conception of public interest that was broader. Again, I think public interest can mean, one of these elastic terms that could mean a lot of things, but under the court's jurisprudence that's been relatively limited when we're, for example, in the privacy context, considering a (b)(7)(C) redaction, for example,
EMILY MANNA: Alina, could I just give like a thirty-second answer? Yeah. Okay. I think that's a really great question and something to think about again I think specifically for our litigators and those who will be litigating on this, but I'll just say that I don't think what we proposed here is necessarily a broader conception than that. I think we've just tried to list examples within, kind of what the government is up to that we think get at some areas where agencies might be tempted to withhold information and think that agency interests might outweigh the public interest there. So I think we're just trying to specify further rather than broaden that definition, but it's a great point, definitely something for us to consider.
ALINA M. SEMO: All right. Great. Anyone else have any burning questions? That they want to ask Emily and Freddy? All right. I'm not seeing any verbal cues. No one's jumping up and down or anything. So with that Emily and Freddy, thank you so much for your time. Great presentation. Lots to think about and lots for the subcommittees to take into consideration. Thank you, Alexis, for the clap. We would be clapping for you if we were live, so we can certainly do that. Okay. Well, thank you so much. You're welcome to stick around Emily and Freddy for the rest of our discussion, we're actually going to launch into the Legislation Subcommittee. They are advancing a recommendation today. Perhaps you have comments or questions, so feel free to stick around.
Okay. Everyone's strap in. We're ready. We're going to move on to our subcommittee reports. As a reminder, we've got four subcommittees, but today we're giving more floor time to the Legislation Subcommittee because they do have a recommendation to move forward. I want to point out to everyone. We have posted mission statements for all four of our subcommittees: Classification, Legislation, Technology, and Process. They're all available on the main OGIS webpage, just scroll down to 'what's new.' A particular note and you'll hear perhaps a little bit later this morning, the Technology Subcommittee has tweaked its mission statement, kind of, redirected itself. So that's great. But first on the agenda today is the Legislation Subcommittee. We have asked this subcommittee to present first, since they do have this recommendation. I am going to turn it over to co-chairs Patricia Weth and Kel McClanahan. But Patricia will speak today and Kel is a little under the weather. So Patricia, you're going to go ahead and give us an update on what your subcommittee has been doing.
PATRICIA WETH: Yes, good morning everyone. So for the Legislation Subcommittee, we have a number of working groups and today we're going to report out on three of them. I'm actually going to turn it over to the leads of each working group. So you'll be hearing from Allan Blutstein, who is the lead for the FOIA fees working group. And then next Matthew Schwarz will give a report out on the FOIA funding working group and last, but certainly not least is going to be Tom Susman, who leads the expanding the scope of FOIA working group. The majority of our time is going to be going to Tom because he has a recommendation to propose to the full committee. So with that, I'm going to turn it over to Allan.
ALLAN BLUSTEIN: Thank you. One new FOIA idea we have recently explored in conjunction with the Process Subcommittee is whether ordinary requesters should receive additional research time and whether commercial requests should receive limited free services as well. One agency that has already enacted these changes is the Consumer Financial Protection Bureau, which in 2018, amended its FOIA regulations and waived search fees and review fees up to $250. We spoke with the CFPB FOIA staff and they stated that overall their regulatory change has increased the efficiency of their operations. Whether other agencies would enjoy similar benefits is unclear. It is also unclear whether other agencies or Congress would support reducing fees for commercial requesters. So our deliberations on this issue will continue. That's all from the fee working group.
PATRICIA WETH: Thanks, Allan. And Matthew,
KIRSTEN B. MICHELL: Patricia, I think you're on mute.
ALINA M. SEMO: No, she's okay.
PATRICIA WETH: Oh, I'm on mute.
ALINA M. SEMO: No, you're good. You're good now.
PATRICIA WETH: Okay. To Matthew to then report out on the FOIA fund working group.
MATTHEW SCHWARZ: Yeah. Thanks Patricia. This is Matt Schwarz. So for the funding working group, Kimberlee Ried with NARA did some wonderful research for us and she combed through the appropriations bills and found some interesting line items. So I was interested to hear when Freddy was talking about possible line items and appropriations bills, so I think we'll look into that as well. I plan to do some additional research to see what both states and other countries are doing in terms of funding their sunshine laws. Additionally, I thought that the comment today in re-channeling FOIA fees through OGIS is very interesting. I have that on my plate moving forward. Thanks.
PATRICIA WETH: With that, we're going to turn the remainder of our time over to Tom Susman. Tom, take it away, please.
TOM SUSMAN: Thank you, Patricia. You've all been circulated a preliminary draft of a paper that I wrote that forms the basis of the subcommittee's recommendation. I've gotten very good feedback from Matt and Patricia that has not yet been incorporated, but I do want to start by inviting everyone to please feel free to get ahold of me directly with any suggestions, criticisms, editorial comments because I will be revising this. The title should more accurately address instant access to the legislative branch rather than Congress, because it goes beyond the actual Congress itself as you've read. A special thanks to a few people, Daniel Schuman who addressed this committee at our last meeting, really did groundbreaking work in this area and I cite to him and rely on his work quite a bit. Both Alex Howard and James Valvo have done research and produced papers and been active in this field, and I also rely on their work.
The subcommittee's focus responded to a recommendation of the last Advisory Committee that its successor should look at application to the legislative and judicial branches. This is part one on the legislative branch and no commitments yet in terms of what will follow. I'll hit the highlights of the recommendation, which I think that we put on the screen and then we will take questions and have discussion. The subcommittee decided that we're at a point where the committee may want to go ahead and approve a recommendation that can go to the Archivist and move through channels without waiting until the end of the full committee term, or you can postpone consideration, whatever, however the committee decides to do that. Can we get the recommendation language up there, Kirsten? There we go.
KIRSTEN B. MICHELL: Yes, there it is. Thank you, Michelle.
TOM SUSMAN: Thank you, Michelle. Right. We started out with the proposal that the procedures for access should be directed towards the support offices and agencies of Congress and not broadly at Congress. Those are listed in the paper, Capitol Police, GAO, Library of Congress, CBO and others. They all perform administrative and support functions, similar to the kind of functions provided by executive agencies. Some already have formal FOIA processes like the Governmental Accountability Office that has adopted regulations. Some have informal ones like the Congressional Budget Office. Others like the Capitol Police remain closed and opaque. The recommendation does not apply to members' offices, committees. The reasons are really spelled out in a draft paper, political, practical, and constitutional. There is likely to be some disagreement on that subject, and I'm not sure that any one reason can be identified as determinative. I have to admit that I've had over 50 years in and around the legislative branch and a lot of this is my own sort of strategic conclusion that not approaching Congress head on where members would worry about how does this affect me in my office and my staff and my committees is a more likely way to get serious consideration.
We talked about access procedures modeled after those in the Freedom of Information Act, not application of the FOIA itself. Full acknowledgement, that many states and foreign countries have right-to-know laws, access-to-information statutes, and regulations that apply to their parliaments and their legislative branches as well as the executives. Again, this was, I think, more of a strategic decision that Congress is different. It considers itself different and it's more likely to be responsive to wanting to craft rules from the beginning that apply to itself rather than trying to figure out how to carve out exceptions or (b)3 statutes or whatever it might do when it began to take a red pen to the Freedom of Information Act.
Proactive disclosure specifically mentioned Congress does an awful lot of that right now, a number of areas where it already puts information up on the web, and that's certainly appreciated by the public and media and everybody who follows legislation. We've identified a few areas, some proposed by Daniel Schuman, others recommended by some others who have looked into this and that's an open list. I'm sure there are others and I would invite suggestions of what we should add as for examples. The proposal that whatever Congress adopts, whether it's regular rules or legislation that it include procedures governing the requests and time limits.
Again, the FOIA provides a model, but I was hesitant to suggest that the Advisory Committee would attempt to approach, prescribe deep details for Congress, and dictate what they should adopt, but to use the FOIA as a model as the Government Accountability Office has and allowing Congress to make the final decision. We stopped short of proposing judicial review of final agency decisions to evolve. There are potential constitutional concerns, and I go back to probably even greater than constitutional or the practical and political challenges of asking Congress to subject itself to another branch's routine review. I'm not saying that the courts have hands off when it comes to legislative decision making. That goes back to Marbury v. Madison, but to have Congress place itself in a position where every time a denial of information is made, that a requester could go immediately to court to challenge Congress. I think that would not likely be a workable solution and more likely to have an independent office within the legislative branch that is led by members of Congress who are ultimately responsible to make the appeal decisions.
Okay. That this won't be the first time a recommendation has been made to Congress to apply FOIA or some similar law to itself. It's considered and had hearings on the subject before. The fact that there has been zero movement on this issue ever, suggests that this may not be the last recommendation of its sort. I know it doesn't go far enough for some who might think that FOIA should apply to the legislative branch just as it applies to the executive branch. I've called this the what's good for the goose principle, but I think that however principled that approach is, it is not likely to garner serious consideration by the first branch. Our subcommittee decided to recommend a more modest step though, I believe a strategic one. That's the description and background, and I'd be pleased to participate with my subcommittee members in discussing and responding to your questions and obviously the recommendation is on the screen to invite suggestions in its proposals for improvement. Thank you.
ALINA M. SEMO: All right. Thanks, Tom. Really appreciate that. I know that we had a robust discussion at the subcommittee level, but at this point, I want to invite any other committee member who was not on the Legislation Subcommittee to provide any comments, questions, or feedback, so I'm going to open up the floor to that and after we have finished deliberating, but before we take a vote on the recommendation, which is what I assume we're trying to do today. Correct, Tom? Correct, Patricia? Correct, Kel?
PATRICIA WETH: Yes.
ALINA M. SEMO: Yeah? Okay. Yeah. We will open up our telephone lines to welcome any public comments, so we can hear from any non-committee participants who have ideas or comments to share on this particular recommendation. With that, I'm going to open up the floor to other committee members. Anyone have anything they like to talk about?
KEL MCCLANAHAN: This is Kel. I just wanted to add one point of clarification before it gets too muddy in the discussion. When Tom had mentioned that we steered clear of recommending judicial review, our thought about, "Well, maybe it should be an independent office or an independent panel," or something like that. We steered clear of making any particular recommendation in general. We actually had a fairly robust discussion on this and decided in the end that we would not foreclose it either. If Tom happens to be incorrect about the palate in Congress right now and Congress is okay with judicial review, great.
We did not want to put our thumb on the scale one way or the other. Just our design here was to say, there needs to be some kind of review. There needs to be something, some kind of access and some sort of appellate authority to look at these things. We're not going to micromanage. We're not going to prescribe actual ways this could happen. Although we would obviously be welcomed to share our analysis with anyone, wanted to start working on legislation like this, but that shouldn't be read as an endorsement or lack of endorsement of any particular provision.
ALINA M. SEMO: Okay. Thanks, Kel. Other committee members?
TUAN SAMAHON: Hi, this is Tuan. I just had...
ALINA M. SEMO: Sure. Tuan.
TUAN SAMAHON: This is Tuan. I just had a quick question. Is the constitutional concern you alluded to the speech or debate clause, is that the specific issue that was having you pull back from traditional review?
TOM SUSMAN: Yeah. Actually, that's the main one. I should mention also that only last week, the DC Circuit [Court] came out with a decision because James Valvo sued Congress under the Common Law Right of Access to get access to information from the House Intelligence Committee. I confess I hadn't even thought of or approached that issue, but the court also discusses the speech and debate clause and I think probably interprets it more broadly than I would have. I think that it needs to probably be given a little more attention in terms of the report, but they're also... These issues were discussed in greater detail in the O'Reilly article over a number of years ago that cited and there are other... And he goes through a discussion, very erudite, an academic discussion that I didn't repeat of other potential separation of powers and presentment and things of that sort that might implicate constitutional arguments.
KEL MCCLANAHAN: For instance, there was just the case of [Representative] Eric Swalwell attempting to serve [Representative] Mo Brooks. The court said, "I'm not going to order [the] US marshal to deliver the subpoena, because it might...or deliver the summons because it might implicate some kind of separation of powers.” It's more of a nebulous concept than just speech or debate. But yes, speech or debate is definitely one of the key concerns here.
JAMES R. STOCKER: This is James Stocker from Trinity Washington University. First, I just want to thank everyone on the subcommittee for all their work on this effort. This is a great recommendation for draft recommendation. My question is about the exemptions. What exemptions do you think would a law on congressional transparency include? Would they be the same as the FOIA? I'm thinking, for instance, the Office of Congressional Ethics, right? Which is an office that many members of Congress, and then also staff members will turn to, to ask whether or not they are allowed to do something or other to hold a meeting or go to lunch or whatever else. They have an expectation when they inquire of this office to a relatively great deal of privacy. They need to be able to ask questions in order to effectively do their job, so they know what they are allowed to do and what they're not. It seems to me that that would be an example of a case where the Congress will want to ensure that they are erring on the side of protecting the privacy interests of individuals. I guess I'm just wondering whether Congress is going to need a whole new categories of exemptions, or if the ones that are already in the FOIA are enough. Thanks.
TOM SUSMAN: Yeah. This is Tom Susman. Let me take a shot at that. A lot of these questions can be answered by saying, is there an executive agency counterpart that does that? If so, are the exemptions adequate? There was a question in the chat about the Capitol Police. Would this apply to Capitol Police? The answer is it applies to the Secret Service. It applies to the FBI, the DC FOIA applies to the DC police. We have lots of examples across the country where police forces are under every state's freedom of information law. That's the answer I would give. With ethics opinions, the same thing. Every agency and department has an ethics officer that gives opinions to government employees who come and ask, "Can I go to this reception or can I accept this gift?" Or the Office of Government Ethics that answers, "What do I need to divest in order not to have a conflict of interest?"
All of that's been protected. We haven't seen any agitation for expanding exemptions to protect privacy in those areas. I would think that, as I said before, I think the FOIA exemptions had been tried and true in many ways with years of judicial interpretation. I would kind of hate to see Congress start from scratch, especially since there wouldn't be the same opportunity for judicial interpretation of the language and I wouldn't trust Congress to use extremely precise language the first time through. I feel comfortable with starting with the current exemptions.
KEL MCCLANAHAN: This is Kel. I can add to both more generality and more specificity to that statement. The first, the general statement is, we did a lot of thinking on this and when it boils down to it, one of the complaints that people often hear about FOIA that is a fair complaint is that the exemptions, even though they're supposed to be read narrowly, can be written very broadly, especially (b)(5). If you look at that, it's really hard to think of a type of information that...let's say at the GAO or the Capitol Police that would not be covered by an existing exemption that would need to be covered by something. I think this might be a solution in search of a problem.
As for specifics, there's already precedent for this idea of just importing FOIA. This is how the [Washington] Metropolitan Area Transit already...WMATA has their own FOIA procedure. They are not subject to federal FOIA, but they have the thing called the PAR, the Public Access to Records policy. In its text, PAR says, "We follow FOIA and we follow judicial interpretations of FOIA." If a case comes down that says that the (b)(5) means something or that this type of information is exempt from the (b)(3) then it's also exempt under PAR by the same token. If it's not exempt, it's not exempt. You already have this other entity that is not an executive branch agency that has a tried and true history of just saying, "Yeah. FOIA's pretty broad enough for us. There's nothing really new that we'd need to create here."
KRISTIN ELLIS: This is Kristin Ellis from the FBI. To piggyback off that a little bit, if you're looking at agencies like the Capitol Police or GAO, a lot of information that they have could have originated from the executive branch. Certainly as a law enforcement agency, sharing information with the Capitol Police and vice versa. GAO obviously would have copious quantities of executive branch records and parity is key in being able to protect the executive branch records. We see this with state and local law enforcement agencies a lot when FBI information is shared, every state has its own protection. Ensuring that the information is properly treated becomes difficult under 50 different statutes. To the extent that this gets any traction, I agree that I think the exemptions that exist have worked since they were enacted, and it would make sense for them to be adopted. Obviously, if there's a particular type of information that's not reflected in executive branch records that Congress thinks it needs to protect, it certainly could add things, but I think the ones that already exist would make sense just given the nature of the sharing of information, at least with some of the agencies.
ALINA M. SEMO: Okay. Thanks, Kristin. Jason, I know has a question. You've been waiting very patiently.
JASON GART: Thank you. Jason Gart, History Associates Incorporated. This is very, very interesting. I wonder as you were crafting this, if you reached out to the Advisory Committee on the Records of Congress, which I believe also David Ferriero is a part of, but just see what their stream of thinking is and what they're doing on this issue? It may not be something that they're dealing with, but you do, as your starting point, talk about the political considerations. I just wonder if you reached out to that committee and if they have thoughts on it?
TOM SUSMAN: Tom Susman responding. No, I haven't. That's a good idea. We did get some comments about record keeping and record management. Jason Baron on the previous committee or advisory committee filed comments that have been posted and Daniel Schuman, who I see active in the chat has also spent some time looking at the archives management access to committee records, etc. That's a major subject, an important one. I think it'd be good to get the view of the [other] committee, but for now, we're looking at access FOIA or FOIA like access and I'm going to leave to somebody else the planning of records, retention records, management and archive records access from the legislative branch, an important subject indeed.
ALINA M. SEMO: Okay. Anyone else from the committee have any questions? I know we've gotten some chat comments. I was just going to read them out loud, but before I do that, I wanted to give any other committee members a chance to ask questions or make comments. Everyone's good? Everyone's probably ready for a break.
ALINA M. SEMO: Okay.
JAMES R. STOCKER: Hi, this is James Stocker, again. I'm sorry. I had one other question I wanted to ask and basically, who would be the ultimate arbiter of this legislation within the Congress? In other words, who would be making the decision about whether to grant or not grant responses to a request? I asked this question because one obvious concern about this would be the potential for political misuse. You mentioned earlier that there are parallels in the executive branch for all sorts of situations, and certainly that's the case in the executive branch as well and someone who didn't charge a FOIA could potentially misuse the FOIA or use it in a political manner, but it seems to me that the stakes are even greater in the Congress. We can imagine if a partisan actor was in charge of deciding whether or not to respond to transparency requests, that it could be used in quite a damaging way or in a way that disrupts the function of the Congress. How could concerns about that possibility be addressed? Thank you.
TOM SUSMAN: James, this is Tom Susman. I can't believe you're suggesting that Congress might be political. I don't know that there's ever a guard against political misuse, certainly as you acknowledge, it happens in the executive branch. Of course, there, you can go to court. That is an argument for getting it out of the branch. We suggest things that would include the involvement of members of Congress in the ultimate decision making, so that the Capitol Police general counsel could make the initial decision of a request to the Capitol Police force. If a requester wanted to appeal, they would go to... What, again, I'd like to see if I were doing the drafting, an independent entity in the legislative branch that is headed by members of Congress. I don't like to use examples because most of the ones, the joint ones like the Joint Committee on [Printing] is sort of moribund, but I could foresee a joint congressional committee on information that could take care of a lot of these records' management and archiving. There's no consistency, uniformity between the two houses of Congress on a lot of these issues that really would benefit from some comment. I don't have a clear answer and clearly, whatever answer one gives, if it's in the hands of a member of Congress, there's likely to be some political consideration given. I don't know that one could avoid that. I think we're recently confronted with the fact that even on judicial review, we're looking at what some might call political influence of decision making. That's inherent in our system, I'm afraid.
KEL MCCLANAHAN: This is Kel. I can sort of hit the other side of that coin, which is somebody raised the concern that what if this is used for political purposes to get information out. Not to withhold information for political gain, which will release information for political gain. To that point, it's already something they can do. This is Congress we're talking about. There is absolutely nothing restricting a random member of Congress from just releasing information they want to release for political gain, except occasionally if it's classified. Even then, you have clever ways around that as Mike Gravel discovered a few years back. But I think that, again, it might be to reuse the same tired phrase of a solution in search of a problem for us to try and guard against an appellate authority of a FOIA-like process, not being able to do [what] any member of Congress can do anyway.
TOM SUSMAN: Kel, this is Tom Susman. The flip side of that is, and I just thought about it, when you talk about political use of the FOIA, I can see challengers to members of Congress and senators at election time if such a law applied to their offices, individuals, or staff. I could see this being weaponized as a campaign tool. Much likely so if it's the Library of Congress, the police or the Government Accountability Office is subject to access.
KEL MCCLANAHAN: That's a very good point. I think that [the] underlying reason that we chose the offices we did, because we didn't choose... Even to the extent that committees can be found to be beholden to the chair. We only chose agencies that are independent. They serve the public. They serve every member of Congress equally. They serve every member of the public equally. The degree to which they serve varies, but no one can say that they are going to immediately look out for the best interests of one person or one party over the other. When you have a public service mandate like the Library of Congress, like Government Accountability Office, like the Architect of the Capitol and the Capitol Police, then a public awareness of your activities should also come with that.
ALINA M. SEMO: Thanks, Kel. Jason, you had a follow up question?
JASON GART: Yeah. This is where I guess I disagree a little bit. First of all, to use two of your examples, Library of Congress, there's not really a public function. It serves the members of Congress. It's the library for the members of Congress. Others can use it, but it's actually... Its purpose is for members of Congress. I would say the same of the Congressional Research Service and you have it as Congressional Reference Service, but I believe it's the Congressional Research Service where it's intended to serve the research needs of members of Congress as part of their internal deliberations.
You cited examples, the historical CRS reports, but most of them are publicly available. Most of them are either on the CRS website, there's like 9,000 of them, and then the others are essentially available in various places like ProQuest Congressional, and other databases. If you say, "Okay. The CRS reports are already out there really, you just need to look for them." Then, the other function to serve as a research service for members of Congress, would that improve the functioning of Congress by allowing you to FOIA that information?
KEL MCCLANAHAN: My response...
TOM SUSMAN: Yeah. Good question. This is Tom Susman. All right. CRS reports. The ones that CRS doesn't post may well be out there. They may well not be out there. We don't know, and they may be out there and you have to pay to get them. I'd hate to apply that standard to the executive branch. It's out there somewhere. You just need to find it. Maybe Westlaw has it.
JASON GART: Microfiche. It's in libraries on microfiche. It's not totally digitized, but it's available to the two-step process of going to a library and pulling indices and grabbing it off of microfiche.
TOM SUSMAN: On the subject, on the subject of... The purpose of CRS is to provide resources to Congress. Certainly no member of Congress pays for it out of his or her pocket that still comes out of tax dollars and I probably would, in a very few minutes, could name you at least 50 different executive branch offices whose function is to support executive branch officials and agencies. They're all subject to the Freedom of Information Act, even though they may not be publicly facing, we don't make that distinction with the executive branch and I wouldn't make that in the legislative branch.
KEL MCCLANAHAN: To follow up on that, I would sort of push back against the idea that the goal of this is to improve the functioning of Congress. Congress will function most effectively in complete secrecy, no open hearings, no open meetings, no open records that will allow them to function very efficiently. So will the executive branch, this isn't about that. This is about allowing the government or allowing the people to, as FOIA dictates, know what the government is up to. The cases at cites that rule, I'm not saying that FOIA is designed to let the people know what the executive branch is up to. There are a lot of FOIA officers out there, and a lot of agencies out there who would say that FOIA makes their job a lot harder and makes them function much less efficiently and we don't accept this from them. I think that saying, well, then we shouldn't apply it to CRS or to Capitol Police or to GAO because they serve a similar purpose, would be equally misguided.
ALINA M. SEMO: Okay. I'm mindful of our time and don't want to discourage any further questions or comments from any of the committee members. So I'll pause for a second and make sure that everyone has gotten their questions or comments in. I know we've gotten several chat comments to all panelists from Daniel Schuman, who was our presenter last time, to whom Tom referred as a great source of information on this particular recommendation, so I was going to turn next to Michelle, our event producer to ask her to open up our telephone lines. Daniel has offered to summarize his comments. Michelle, can you please go ahead and give instructions on presenting any comments at this time through the phone?
MICHELLE [OPERATOR]: Absolutely. Daniel Schuman, if you would like to make your comment, please press #2 on your telephone keypad to open your line. There you are. All right, sir your line is unmuted.
DANIEL SCHUMAN: Hi, good morning, everyone. It's so good to see your smiling faces. I'm sorry that I can't be on video with you all as well, but I guess it's an unfair advantage, but thank you all for giving me an opportunity to make a public comment. There are a couple [of] issues that came up during Tom's eloquent presentation and the great conversation that followed from it that I thought might be useful to clarify.
First inside the legislative branch, we already have FOIA applied to the Copyright Office itself, although no other support offices or agencies, but there are several support offices or agencies that follow a FOIA like process. For example, both the Library of Congress and the Government Accountability Office have promulgated regulations, including an appeals process by which you can go and request documents. In addition, Congress directed the Capitol Police at the end of the last Congress to go and implement a FOIA like process as well.
We are already seeing FOIA-like processes being put into place. They generally follow similar rules that FOIA applies with respect to the support offices and agencies. We don't know what the Capitol Police’s will look like, as someone who's worked, sort of with respect to the support office and agencies just by way of anecdote, we spent the last three and a half years investigating some of the failings and other problems inside the Capitol Police, which is very difficult to do when there isn't a tool available like FOIA. One of the values of course, is having openness and transparency is that you can identify problems and then remedy them before they become acute and I would suggest that had there been more insight into the Capitol Police, for example, we might've had things go very differently at the beginning of this year. I think that there's also the sort of value in thinking, FOIA of course, is both a proactive and a reactive disclosure provision. Having more proactive disclosure with respect to certain things, with respect to the operations of the support offices and agencies, I think would be welcome. Happy to talk about this more, but I'm trying to be brief.
The second is I've attended all the meetings of the Advisory Committee on the Records of Congress. This has not been a matter that has come up before then, at least in the meetings I attended, although I did miss one, I think six months ago, they tend to be more focused on the archival question about what happens to member committee records when they retire. It's a number of very, very thoughtful, intelligent folks that are largely historians so that seems to be their attitude and their focus.
You could talk to the clerk of the House and secretary of the Senate to see, to sort of gauge their interest. Their meeting was just this past week, but it has not been something that has come up. The final question I think that was raised was the mechanism of oversight or appeals. Currently for the processes that exist, you can appeal inside the agency. For example, [inaudible] the Library of Congress, if they don't respond to a request that you make, you can appeal it internally inside the Library of Congress. The same thing is true for GAO. It goes up, I believe it goes up to counsel. We've had great success, GAO has a very effective appellate process. It works really well, but [the] Library of Congress is not particularly responsive to FOIA requests. You actually have to go and find ways to draw public attention to it before they'll actually respond to you. But there is an appeals process.
I suspect that there is probably value in harmonizing some of the FOIA processes across the support offices, extending to the ones that [it] does not currently apply. Instead of doing it piecemeal one at a time, you can rather have a general rule that is sort of understood as applying across the various support offices and agencies, and then you have a go-to some sort of an appellate process that is inside the legislative branch so you can avoid some of the conflicts of interest that could potentially exist while still making sure that you don't run into the separation of powers questions. I know these, I've talked more probably than you guys want to hear, particularly since it's already a lengthy meeting, but I hope that this was helpful and clearing out some of the questions that came up in your conversation. I'm so appreciative that you're thinking through these questions. Designing stuff inside the legislative branch is very hard and I am just thrilled that you guys are thinking about different ways to make our democracy more responsive and accountable. Thank you very much.
ALINA M. SEMO: Great. Thank you so much, Daniel. Really appreciate that. Since we have our lines open, Michelle, I'm just going to check to make sure no one else is interested in offering a public comment or asking a question.
MICHELLE [OPERATOR]: All right, ladies and gentlemen, if anybody else would like to make a comment on the question, please do press #2 on your telephone keypad to enter the question queue.
ALINA M. SEMO: Okay. We'll just pause for a second. I don't know how the other committee members feel, but I'm going to speak for myself that I am in need of a comfort break and we're about 20 minutes behind schedule.
MICHELLE [OPERATOR]: I do to see... I'm sorry to interrupt you, Alina. I do see someone has a question on the line.
ALINA M. SEMO: Okay, go ahead please.
MICHELLE [OPERATOR]: All right. Caller, your line is unmuted.
BOB HAMMOND: Yes, Hi. This is Bob Hammond. Can you hear me please?
ALINA M. SEMO: Yes. Mr. Hammond, this is a question or a comment you have about the current recommendation?
BOB HAMMOND: Yes. It's really a more general comment. The phone line keeps breaking up and disconnecting and I wonder if during the break, somebody could take a look at that. I'd appreciate it. Thank you.
ALINA M. SEMO: Thanks. Appreciate that. Okay. What I'd like to propose is that we take a break since we're about 20 minutes behind schedule. When we resume, let's move the recommendation forward for a vote [if] that's acceptable to everyone and we'll take a vote. I'll go over the voting rules very briefly. Again, just to remind everyone since it's the first vote we've had as a committee. Let's all come back at 12:05 PM if that's at all possible. All right. Thanks everyone.
MICHELLE [OPERATOR]: Ladies and gentlemen, welcome back. For those of you who are experiencing any type of audio issues throughout today's event, please do feel free to dial back in for the audio to the event. That's just for those of you who have had some kind of audio issue, just feel free to dial back in for the event. With that, I'm going to turn the event back over to Alina Semo. Alina, please go ahead.
ALINA M. SEMO: Great. Thank you so much Michelle, really appreciate it. I think almost all of us are back. Just checking visually to see if we've definitely got a quorum. Allyson, A. Jay, Bobby are not back, yet.
ALLYSON DEITRICK: I'm here.
ALINA M. SEMO: Okay. Thanks so much Allyson. Tuan?
A. JAY WAGNER: I'm here, [inaudible] here as well.
ALINA M. SEMO: Okay, great. You guys are just not necessarily on camera.
BOBBY TALEBIAN: I'm here too. I'm just adjusting my computer.
ALINA M. SEMO: Okay. [crosstalk 02: 07: 09].
TUAN SAMAHON: Tuan’s here, just getting adjusted.
ALINA M. SEMO: Okay. Everyone's adjusting. This is great. Okay. Before we move to vote on this recommendation the Legislation Subcommittee has moved forward, I just want to give one final sweep to any of the committee members if they have any other questions that we didn't have a chance to get to before the break. All right. Silence is golden. Okay. I want to go over the voting procedures since this is the first time we're taking a vote as a committee. Briefly, any member of the committee can move to vote on a recommendation. The motion does not need to be seconded, although it seems like we've been doing that for a while so it's very nice to have it and I will be happy to entertain one. The vote can pass by unanimous decision, which is when every voting member, except abstentions, is in favor of or opposed to, a particular motion. General consensus, which is when, at least 2/3 of the total votes cast are in favor of, or are opposed to, a particular motion and a general majority, which is when a majority of the total votes cast are in favor of, or are opposed to, a particular motion.
In the event of a tie, we will reopen discussion and the committee will continue to vote until there is a majority. If you are in favor of the recommendation, say aye. If you are against a recommendation, say nay. If you do not wish to vote, say abstain. In this current virtual environment, we will take a voice vote. I will make sure we pay particular attention to nays and abstentions. Kirsten, our DFO will record and announce the results of the vote. At this time, is anyone prepared to make a motion on this recommendation?
KEL MCCLANAHAN: I am.
ALINA M. SEMO: I am, was that Kel?
KEL MCCLANAHAN: Yes.
ALINA M. SEMO: Okay. Do I have a second for that motion? Sorry, go ahead, Kel.
PATRICIA WETH: This is Patricia Weth, I second the motion.
KEL MCCLANAHAN: Well, there's one small change that we discussed in the chat. This recommendation has taken the brackets out around enact legislation so that it just becomes a part of the sentence as amended. I motion... I move that we vote to accept the [recommendation.]
ALINA M. SEMO: Okay.
PATRICIA WETH: This is Patricia, I second the motion.
ALINA M. SEMO: Okay, Patricia, thank you for the second.
PATRICIA WETH: Yeah.
ALINA M. SEMO: At this time, does anyone have a question? I thought I heard someone else. No. Okay. At this time, let's go ahead and take a vote - all in favor of this recommendation as currently written on the screen, please say aye.
MULTIPLE PEOPLE: Aye. Aye. Aye. Aye. Aye. Aye.
ALINA M. SEMO: Okay. Anyone not in favor of the recommendation, please say nay. All right, I hear no nays. Is anyone abstaining?
BOBBY TALEBIAN: Hi Alina, considering my past voting practice, I'm abstaining.
ALINA M. SEMO: I'm actually also going to abstain and hopefully that's not a surprise to anyone, but I just thought I would explain my rationale. In the event the Archivist accepts this recommendation and tasks OGIS to convey the recommendation directly to the Congress. I don't want my vote now to give the appearance of a conflict as director of OGIS and chairperson of this committee so I abstain. Kirsten, hopefully will note that. Would you like to read the vote of the committee that will go out [inaudible]?
KIRSTEN B. MICHELL: Hello, it's Kirsten. The vote was 16 to zero with two abstentions, Alina and Bobby.
ALINA M. SEMO: Okay.
KIRSTEN B. MICHELL: So the motion carries.
ALINA M. SEMO: Great. The recommendation is passed. Thank you very much, Legislation Subcommittee. We expect great things from you at the next meeting. Perhaps there'll be another recommendation. No pressure on the other subcommittees. Okay.
KEL MCCLANAHAN: Alina, I have-
ALINA M. SEMO: Yes.
KEL MCCLANAHAN: A short question, because we only had abstentions, but this is still not unanimous because of the abstentions?
ALINA M. SEMO: No, it's still considered unanimous.
KEL MCCLANAHAN: Well then, on behalf of the committee or the subcommittee. Thank you all for entertaining our ideas, we'll see what happens next.
ALINA M. SEMO: Okay. Thank you. All right. I'm going to move on to the reports of the other three subcommittees. Don't want to have anyone feel left out. Second on the agenda is the Process Subcommittee. I know Linda, I don't think has joined us, so Michael Morisy, as the co-chair, I'm going to turn over to you for any updates. Please go ahead.
MICHAEL MORISY: Great. Yeah, that's a tough act to follow and it's, it's really great to see that recommendation moving forward with the Process Subcommittee. A lot of our work has continued to be sort of in coordination with or lumped with the other subcommittees, so thank you to all the other subcommittees for being so, so great and collaborative.
We are working on wrapping up a lot of our work examining the impact of prior recommendations. Some of that is already kind of going into reports or kind of proposals with other subcommittees, but we hope to have some sort of very informal kind of draft report, just mostly for ourselves to kind of think about, okay, here's what's worked and collect all the thinking and discussions you've had in the past. We're also starting to move towards looking at what are the next round of more forward-looking recommendations sees that context, both follow up on some of the successes and challenges of prior recommendations as also looking at sort of what are some of the key process related areas that have been unaddressed. Not a whole lot of new and exciting proposals to discuss today, but we've had a lot of really great discussions and great collaborations going forward and hope by the next subcommittee meeting or the Advisory Committee meeting to have some concrete [inaudible] to put forward.
ALINA M. SEMO: Okay. No pressure, Michael. All right. Thank you very much. I really appreciate it. Anyone else from the Process Subcommittee want to add anything? Okay. All right. I'm going to next turn on our agenda to the Technology Subcommittee, coaches, Allyson Dietrick and Jason Gart. Allyson, are you presenting today?
ALLYSON DEITRICK: I am. Thanks Alina. First thing, as Alina mentioned in her introductory remarks this morning, shortly after the last full Advisory Committee meeting, the Technology Subcommittee regrouped and revised our mission statement. It now reads that our mission statement is to prepare baseline standards and best practice recommendations to ensure that federal agencies have up-to-date access and impartial information on the functionality and operations of technology driven solutions to ensure that the selection and implementation of new FOIA tools meet current and future needs of federal agencies and the requester community. This can be found on the Technology Subcommittee part of the NARA FOIA Advisory Committee web page. We've spent a lot of time during the last nine months...six months since we started meeting trying to figure out how we can best serve the FOIA community, both requesters and agencies, and this involved a lot of discussions with agency representatives to determine the types of technology recommendations that would be the most helpful to agencies as they process FOIA requests.
As part of these discussions we spoke with or learned more about the 10X process through GSA, and now they're currently working on a project that is by the Department of Justice to investigate a centralized way for the public to search across agencies’ FOIA reading rooms. We also spoke with 18F at GSA and learned about the services that 18F offers to help federal agencies improve government services through technology. Based on initial discussions, our subcommittee was considering recommendations of what an ideal FOIA intake and processing system would look like, certain functionality...that type of specifications, particularly through the use of electronic discovery or artificial intelligence software. However, we’ve grown in this learning process, we learned that...we decided not to pursue this further because there's such a wide discrepancy in agency needs and there's no one size fits all, even in an ideal world with an unlimited amount of money due to a lot of various factors, including agency size and complexity, the number of FOIAs received in a year, some agencies receive dozens, some receive several thousand. So, it just wasn't going to be the most beneficial use of our time.
So, we've regrouped and are now focusing, devising recommendations on the following four areas, one - best practices for the content of agency FOIA websites; two - releasing records in a standardized way, such as native CSV versus a PDF of a spreadsheet; third - would be using technology to increase proactive disclosure, and the fourth - would be FOIA logs covering inclusion of certain [inaudible] to having standards for what FOIA logs should include such as minimal fields and creating a centralized repository across agencies. So, sort of allow requesters to more easily learn what information has already been previously requested by others. That's the end of our Technology Subcommittee report.
ALINA M. SEMO: Okay. Jason, anything to add?
JASON GART: No, thank you, Allyson.
ALINA M. SEMO: Okay. Any other subcommittee members want to add anything? Okay. Lots of silence. Okay. So let's move on to report out from our Classification Subcommittee. Co-chairs Kristin Ellis and James Stocker. I don't know who's reporting out. So I'll let you guys take the lead.
JAMES R. STOCKER: Hi, this is James Stocker. I'll be reporting out today. The Classification Subcommittee has been meeting monthly. The main issue that we've been working on is the issue of security-based Glomar responses deployment requests. Glomar responses, as you will recall, are denials that essentially are used to confirm or deny that an agency has any documents that are responsive to the FOIA request. One of the challenges in addressing the Glomar issue is understanding its scope. While there's a general impression that the use of Glomar responses has expanded over the years since it was first used in 1975, agencies do not regularly release information about their use of the Glomar exemption.
Accordingly, we have distributed a questionnaire regarding the use of the Glomar exemption for security reasons, to a set of 23 agencies and offices. We contacted them with our questionnaire about 10 days ago and asked if they'd respond to the questions with a deadline of July 15, we have in fact already received one complete questionnaire response already today. And we hope that we will receive many more in the coming months. Participation, of course, is entirely voluntary. We have no authority to tell agencies to participate. However, we hope that agencies will seek participation in this questionnaire as compatible with the spirit of the FOIA to promote transparency about their practices.
Questions that we are asking include the following: We asked about their practices in regards to automatically issuing Glomar responses in regards to all or certain types of FOIA requests; we asked them about how they track the number of Glomar responses they issue and whether they track the number of Glomar responses that they issue; we asked them for data about the number of Glomar responses that they issued to FOIA requests on an annual basis between 2015 and 2020, we asked for any information they have about appeals to Glomar responses, that is same timeframe, that's 2015 to 2020; we asked for information about litigation regarding Glomar responses to FOIA requests in that same time period; we've requested any templates that they use for Glomar responses; and we asked whether or not they make Glomar responses available to the public, any guidance regarding Glomar responses, etc.; and then finally we asked whether or not a representative from the agency's FOIA office would be willing to have a follow-up conversation about their use of Glomar responses. And we're hopeful that in those follow-up conversations, we'll be able to answer any questions that we may continue to have or to clarify any responses that were potentially incomplete or not fully responsive to the question.
After we receive the results of this questionnaire, we'll process them and share them with the next full committee meeting. I can't promise that we'll have a recommendation by that point but we should be getting closer. So if not at the next full committee meeting, hopefully, the following full committee will have a recommendation for the committee's consideration. And that's pretty much what we've been up to. We are also considering our next project beyond Glomar, but I don't think we've decided on the project we'll be pursuing. So I'll hold off on discussing that for now. Thank you.
ALINA M. SEMO: Thanks so much, James. I really appreciate it. Kristin, anything you want to add?
KRISTIN ELLIS: No, James covered that beautifully. Thank you.
ALINA M. SEMO: Okay. All right. Anyone else from the Classification Subcommittee want to add anything? Okay, I'm hearing silence. So also let me just open up the floor to the committee. Any questions of each other in terms of work that any of the four subcommittees are doing? Just want to give that opportunity. Okay. I'm hearing silence on that too. Any other questions about anything that we've covered today before I move on? Because we've got about...we're a little bit early now on our agenda. So, we've got about five more minutes before we turn to public comments.
Just want to make sure everyone's gotten their fill of opportunities to ask questions or make comments. Okay. All right, here we go. So let me now turn to the last portion of our agenda for today. We have now reached the public comments part of our committee meeting. We do look forward to hearing from any non-committee participants who have ideas or comments to share, we do post on the FOIA Advisory Committee website any written comments we receive, as I noted earlier. Oral comments are captured in the transcript of the meeting, which we will post as it is available. Before I ask Michelle to open up our telephone lines, I am going to ask Martha Murphy, our deputy director, to let us know if we have received any questions or comments via chat during the course of our meeting, either on WebEx or within our YouTube channel that haven't already been brought up. Martha?
MARTHA WAGNER MURPHY: Hi Alina, this is Martha. We had two comments from Alex Howard, and neither relate directly to what's been discussed today. The first, mentions that it's almost five years ago the Department of Justice took comment on a proactive disclosure policy and US civil society responded encouraging adoption. What is the status of this policy at DOJ/OIP?
BOBBY TALEBIAN: Hi, this is Bobby from the Department of Justice. Thanks, Alex, for the question. The policy is still very much under consideration. I don't have anything official to update [or] say today, but I just want to note that proactive disclosures is [an] area that we've really focused on for a long time. And [inaudible] the pilot was a DOJ initiative….something we're still very focused on. The more we can provide records to requesters proactively, that's the most efficient way of increasing government transparency. And I think there's an inherent value in that. And it also has potential to improve the FOIA process. Of course, when we did the release to one, release to all there were challenges. Many of those, one of those, in particular, the resources needed to remediate the records, which is a challenge focused on by the FACA for a number of terms also as a focus of our work in the Chief FOIA Officers Council Technology Committee.
And so, the more we advance in that area, I think it's going to be helpful for us to continue to move towards having even more records posted online. But beyond the “release to one release to all policy,” the department's long encouraged proactively releasing records beyond those required by the FOIA. We're still doing that. And we're still asking agencies to report on that and we're still wanting to implement strong practice disclosure policies. And along those lines, as Alyson mentioned, we are working, we're excited to work with GSA on the idea of a centralized FOIA search function of all the FOIA libraries, which would only enhance - the two will be very complementary. So we're excited to be working towards a strong practice disclosure policies, building on all the great work the agencies have done so far.
MARTHA WAGNER MURPHY: Great. And now second question, is there any update on what has happened to the FOIA CAP [Cross Agency Priority] goal?
BOBBY TALEBIAN: So as you know, the CAP goals were established a number of years ago to promote particularly to two initiatives. One was the launch of the centralized FOIA website, the national portal, FOIA.gov and the other was to look into the increased promotion of proactive disclosures policy.
So, both of those we worked through and continue to get support from OMB on, so they didn't go away. And that in fact, the national FOIA portal, in a sense, the initial vision was, was completed. And we're still getting strong support from OMB in enhancing the functionality of FOIA.gov, completing interoperability. As I mentioned, the search functionality is one. We've, also, are starting to reach out to get both the agency and user feedback on other functionality that would be helpful on the national FOIA portal in our centralized website. And of course, as I just mentioned, all of our proactive disclosure efforts.
ALINA M. SEMO: Great. Thank you, Bobby. Martha, any-
MARTHA WAGNER MURPHY: That's it for the chat comments.
ALINA M. SEMO: Okay. All right, Michelle, may I ask you to repeat the instructions for any public comments that want to be made over the telephone line?
MICHELLE [OPERATOR]: Absolutely. So ladies and gentlemen, if you would like to make a comment or have a question and you would like to ask it over the phone, please press # two on your telephone keypad to enter the comment you, once again, pressing # two will enter you into the queue.
ALINA M. SEMO: And Michelle, do we have anyone on the telephone lines?
MICHELLE [OPERATOR]: And it looks like we do have a question or comment that popped into the queue. Caller, your line is un-muted. You may ask your question or comment.
BOB HAMMOND: Yes. Hello, this is Bob Hammond again. Can you hear me, okay? Yeah. I've just been having a number of technical difficulties today with connecting. But in any event, my first question is...I submitted several comments via the chat window that's available to me from the instructions that were provided. And I don't know if those go to the committee and even if they're being monitored. As I look at who's in there right now, David and Allan are, and then there's one other person who appears to be a member from the public in the chat window. Are those comments being monitored and addressed?
ALINA M. SEMO: Yes. Mr. Hammond, they are being monitored. We are monitoring both on WebEx and on the NARA YouTube channel, but I actually, I'm just asking the other community members. Has anyone else seen any other comments from Mr. Hammond today? No. We have not.
BOB HAMMOND: Okay. Well, I think that's a technical issue. I followed the instructions for getting into the WebEx and again, the chat window to me only has David Cuillier, Allan Blutstein, myself, and then there's one member from the public. So I'm not quite sure. And that's the only chat window that's available to me. That sounds like a technical issue.
ALINA M. SEMO: Okay. That's probably a technical issue, yep. We'll work it out. Thank you for letting us know.
BOB HAMMOND: Okay. If I may, I had asked for an opportunity to brief a couple of topics today and to have the PowerPoint slides presented, will I be able to do that?
ALINA M. SEMO: Certainly. We're happy to give you a few minutes of the public comment period. We circulated the PowerPoint slides to the committee members and they're posted on our website.
BOB HAMMOND: Well, sure, but you're posting PowerPoint slides for your presentations. I'm just asking if mine can be posted so that I can make an effective presentation.
ALINA M. SEMO: We have not planned for that and we can’t accommodate that today, Mr. Hammond, I'm sorry.
BOB HAMMOND: Okay.
ALINA M. SEMO: Perhaps you could summarize your slides.
BOB HAMMOND: Well, I think that's, if I may, with respect, I'd like the opportunity to be able to present those slides. There's a lot of information in the slides. They've been reviewed and they're posted. I don't know why I wouldn't be able to present them. If we're not able to do that today, I would ask that I have the opportunity at a future meeting to be able to present them using the slides. Is that agreeable?
ALINA M. SEMO: It is agreeable that you're asking. We will take it under consideration.
BOB HAMMOND: Okay.
BOBBY TALEBIAN: I'll jump in here, Alina, just really quick because I know those slides are directed at OIP, and Mr. Hammond, we'd be happy to continue working with you and happy to put our position [out there]. I believe your issues regard our work and compliance inquiries as well as a disposition of an agency on reporting. My team will continue to work with you on those issues.
BOB HAMMOND: Yeah. Listen, the comments are posted and I was asking for decisions in this public forum on the recommendations that I made. Those would both require your concurrence with those. And so, since we're not presenting those briefings today and they're posted, I'd be happy to not present those in a future forum. If you're able to review my recommendations and accept them, then I don't need to brief those slides.
BOBBY TALEBIAN: So, our office has gotten your views and we'll continue to work with you. Obviously, you're asking for decisions from my office, but of course, as Alina mentioned, the material is posted and everyone on the FACA is welcome to look at them and we welcome anyone's recommendations and feedback.
BOB HAMMOND: Okay. Well, how do I get decisions on the recommendations, including, I submitted a number of public comments asking for actions, how do I get public responses to those? If I may.
BOBBY TALEBIAN: As to any question that you've had to my office, we have been responding to [you] very respectfully and will continue to respond.
BOB HAMMOND: Okay. Well, and I apologize, I've got you on speaker, I was having other difficulties. I guess we're somewhat at an impasse on that topic, on both those topics. And, Mr. Talebian in my briefing slides, as you know, I'm very complimentary of your office, actions on the FOIA compliance inquiries. I know you guys are working hard on that and, as you know, my recommendations really have to do with adding a little bit more substance, some internal controls to those to make sure that they all get answered. And obviously, you don't have an answer for me today. That's fine. We've got some time over the summer before there'd be, I think, any more open meetings. I would appreciate responses to those two proposals, one regarding the compliance inquiries and the other one regarding moot determinations. And basically, I'm asking that your agency issue advisories that those are not allowed and that they'd be discontinued. And that FOIA appeals be adjudicated based on the records at the time of the administrative appeal. So I'd really like to brief those with the slides because you miss a lot without the visuals. And I don't think there's a technical reason they can't be presented.
BOBBY TALEBIAN: Thank you. And I appreciate the compliment. And like I said, our office is more than willing to go through all that with you.
BOB HAMMOND: Okay. I'm happy to work with you, but again, I'm seeking public responses. So with that, let me just turn briefly. I submitted a couple of public comments that I believe are completely in compliance with the posting rules and in line with the committee's charter. And I don't see those posted, what I would ask is... I'm not aware of anything that deviates from the guidance, in fact, they're very positive public comments, a lot of compliments in there for the [Chief FOIA Officers Council’s Technology Committee’s] FOIAonline [working group] and others for the excellent work that they're doing and for your office and for OGIS. And so I'm confused as to why those haven't been posted. I've submitted the same comments three times. And so I'd be looking for a response if there's a reason they can't be posted.
ALINA M. SEMO: So, Mr. Hammond, I can address that. We've certainly been keeping track. You've obviously submitted, as you know, numerous comments and we've been keeping pretty careful track. If we haven't had a chance to post them yet, we will certainly look at them and ensure that they're up after the meeting.
BOB HAMMOND: Okay. I'd appreciate that. Some of these are comments that I submitted in March and May, and they should be not very controversial. So, I'll be looking for a response on the two that haven't been submitted or haven't been publicly posted. Let me just make a couple of comments because I know we're not going to get real far with this. As I said in my correspondence to the committee recently, it's my humble opinion that in any discussion of FOIA, the requester is the most important person in the room. And I don't presume to speak for all requesters, but is there anyone who would disagree with that?
Okay, well, I know many of the committee members that spoke today are doing a lot of work to advocate on behalf of FOIA requesters. I have submitted a number of public comments that, I think, make the process much better, improve compliance and transparency. And those are all actionable. I think a number of those could be implemented very quickly. And so I'm looking for responses to those. Let me just address one that I submitted and asked for a response.
And this would be a question for Mr. Talebian and Ms. Semo with my great respect. My emails of May 13, 2021, June 4, 2021. And I believe one after that, I submitted public comments for posting. The subject was violation of the ADA and FOIA redactions. And therein, I noticed that I've been receiving FOIA determination letters that are not 508 compliant. As example redactions in 5.5 point red font against the black background and not searchable, not having run OCR [Optical Character Recognition].
And I asked for certain actions, including a DOJ advisory opinion to agencies identifying the issue in the simple fixes. And parenthetically all Microsoft Office products, they all have, and Adobe, have built-in accessibility checkers. I run those before I submit things to your committee because your committee will not accept anything for posting that's not 508 compliant. To me, that seems like a quick and easy fix. There are a number of public websites that talk about how to make a document compliant, but it's really just as easy as running the accessibility checker. So my question again, with respect [to] Mr. Talebian and OGIS, will DOJ/OIP issue an advisory? And from this email, the same question.
ALINA M. SEMO: Bobby, do you want me to take that first?
BOBBY TALEBIAN: Sure.
ALINA M. SEMO: If you don't mind. So Mr. Hammond we know about this issue. You've brought it to our attention. Actually, it does pertain to a particular case that you had with a FOIA request that was pending at a particular agency. So as I made my statements earlier today, and I don't know if you've heard them, we're really not here to address individual requests. We're happy to continue to work with you. And advisory opinions is something that is within the scope of what OGIS is supposed to be doing, OIP issues guidance and advice. We do issue advisory opinions from time to time and it is something that we're looking at. So stay tuned.
BOB HAMMOND: Yeah. If I may respond and again with respect... Go ahead, Bobby.
BOBBY TALEBIAN: Yeah. I was just going to say that we issue guidance to agencies and a lot of our guidance is informed from what we see from the requester’s perspective and what we see from the agency's perspective. So I appreciate your continuing to contact my office and raising these issues. It's something that we continue to work to. Obviously, we encourage agencies to release information in open most usable formats, but first and foremost, our agencies are responding to requesters, providing those records in a form or format that requesters request and that's readily useful in that format.
BOB HAMMOND: Okay. So, let me respond to two parts of that. First, this is not just one FOIA request. I get this a lot. So it's a big problem. It's real easy to fix. And so I think if, unless there's some kind of an advisory or something, many agencies may not know that they're doing this and other requesters may not know how to address it. And so what I'm asking for is some kind of public clarification to the agencies that says, hey, this is occurring and this is how you fix it. It seems pretty simple. And as you know, ADA compliance is a pretty important issue.
ALINA M. SEMO: We appreciate that Mr. Hammond, and we're definitely studying the issue. You brought it to our attention and we very much appreciate that.
BOB HAMMOND: Okay. I appreciate it. And you know, the other thing as to public comments and addressing things, I don't know, if I ever put something in my public comments that you think don't comply with your posting requirements, I would really appreciate feedback on that. Well, I actually, I need feedback on that to know what it is that OGIS or OIP, I think OGIS posts these, believes is not in line with the posting requirements. So I appreciate that.
The other thing in your public comments, and I read your guidelines very carefully to make sure that I comply, and I'm pretty certain that I do, but it also suggests that good submissions include anecdotes and experiences and those kinds of things. It's hard to make broad generalizations about an issue without citing specific examples. And in fact, your public comments call for that. So my intent is not to embarrass any agency or anything like that. But again, this is one that I think is kind of a broad issue. And so I'll appreciate a public response to that.
Again, since my comments in the chat room, apparently, it didn't go to all of the members of the panel. I'll post those after the meeting or ask that they be posted as public comments. I have another one that again, this is comments that I submitted on March 3, 2021, updated on May 3, 2021, and submitted a couple of times since then, I believe, but this one goes, Ms. Semo, this is really to you. It goes to OGIS mediation and DOD change to CFR 32, part 286.4. And specifically in the CFR, the DOD states that participation in alternative dispute resolution is optional. This appears to me to be contrary to the FOIA, which states each agency shall and states the right, shall and right are mandatory, they're not optional terms. In any event, it's my belief the DOD CFR change is contrary to the FOIA statute's intent.
And also, and I believe Mr. Talebian, I may have set one or two of these over to you. And I think also to OGIS, where DOD states on appeals of that issue, where they've given an adverse determination and not included the right to seek dispute resolution or mediation through OGIS. DOD has stated that they're not required to do that. And as you read the statute, it says the right to seek dispute resolution with OGIS or the agency public liaison. I believe the intent of that is that the requester has the right to do both, but Navy has interpreted that more narrowly. So again, that's a comment I've submitted back in March and I'm looking for some action on that item.
ALINA M. SEMO: Okay, Mr. Hammond, we definitely have received that comment. We understand your concern. We're actually looking at the regulation so we can better understand what's happening. And we will address that with you separately and privately, not in this public comments forum, and I'm not going to cut you off unnecessarily, but we're rounding out the time of our comments. Public comments have exceeded 15 minutes. I want to make sure that we've given anyone else the opportunity to provide any public comments. So, Michelle, I'm going to turn over to you to see if anyone else is waiting on the line to make any comments.
MICHELLE [OPERATOR]: I currently do not see any other folks wanting to comment. But once again, as a reminder, ladies and gentlemen, you can press # two on your telephone keypad to get into the comment queue.
ALINA M. SEMO: Okay. Martha, do we have any other chat comments that have come in?
MARTHA WAGNER MURPHY: So yes. So, Amanda Tempel has directed everyone's attention to a couple of items. I have added them to the chat, made sure that they went out to all attendees. The first directs everyone to OGIS's issue assessments on methods agencies use to prepare documents for posting on agency FOIA websites [OGIS Issue Assessment: Methods Agencies Use to Prepare Documents for Posting on Agency Freedom of Information Act (FOIA) Websites, December 16, 2020]. And the second refers everyone to our Chief FOIA Officers Council Technology Committee that is looking into 508 compliance [508 Compliance and Collaborative Tools Working Group]. There's some helpful links in the chat. And so I suggest everyone take a look at what Amanda directed people to. I have put that out to all attendees.
ALINA M. SEMO: Okay. Well, thanks very much, really appreciate everyone's participation today. We're going to close our meeting. Anyone has any questions from the committee, please speak out. Everyone's good. Okay.
I want to thank everyone for all the work that they've done thus far and very excited to have one recommendation done and behind us. That's great. I also want to thank you for your anticipated work that's coming up in the next year. Thanks to everyone for joining us today. Thank you for everyone's comments. I hope everyone and their families remains safe, healthy, and resilient. We will see each other again, most likely virtually at our next meeting on Thursday, September 9, 2021 from 10:00 AM to 1:00 PM Eastern Time. Any last questions or concerns? Okay, great. We stand adjourned. Thank you, everyone. Yes. I'm sorry. Go ahead.
A. JAY WAGNER: Do you anticipate that the next meeting [will] be in person or virtual?
ALINA M. SEMO: I anticipate it's going to be virtual.
A. JAY WAGNER: Thank you.
ALINA M. SEMO: And I will obviously keep everyone posted. All right. Any other questions from the committee? No. Okay. Thanks again, everyone for your hard work, stay safe. We are now adjourned. Take care. Bye-bye.
JAMES R. STOCKER: Thank you.
MICHELLE [OPERATOR]: Conference is ended. Thank you for using event services. You may now disconnect.