FOIA Advisory Committee Meeting (Virtual Event)
Thursday, September 9, 2021
10:00 a.m.-1:00 p.m. (EDT)
Shreyas [Operator]: Welcome and thank you for joining today’s conference, Freedom of Information Act Advisory Committee meeting. Before we begin, please ensure you have opened the Webex chat panel by using the associated icon located on the bottom right corner of your screen. Please note that all audio connections are muted at this time until the Q and A portion of the call. The instructions on how to ask verbal questions will be given at that point. You may submit written questions throughout the presentation, and these will be addressed. To submit a written question select “all panelists” from the drop-down menu in the chat panel, enter your question in the message box provided and send. If you require any technical assistance, please send a chat to the event producer. With that, I turn the conference over to David Ferriero, Archivist of the United States.
David S. Ferriero: Thank you. Good morning and welcome to the fifth meeting of the 2020-2022 term of the Federal Freedom of Information Advisory Committee. I join you once again from my office at the National Archives building in downtown Washington. This committee is one of the four active Federal Advisory Committees that provide countless hours of advice and guidance to the National Archives on a wide variety of issues that touch federal records and information oversight.
Two days from now, we Americans will observe the 20th anniversary of the attacks of September 11th, 2001. Events that forever changed the fabric of our nation. September 11 sparked countless FOIA requests to agencies, large and small from the FBI [Federal Bureau of Investigation] and Federal [Aviation] Administration to the State Department and the National Institute of Standards and Technology among many others. Although the records of the independent and bipartisan 9/11 Commission are not subject to FOIA because the commission was part of the legislative branch, the National Archives has legal custody of the commission's 570 cubic feet of records. Many remain classified but are the subject of an executive order the president signed last week directing the Justice Department and other agencies to review, declassify, and release documents related to the FBI's 9/11 investigations. Not classified and publicly available online in the National Archives catalog are summaries of more than 1,200 fact-finding interviews conducted by the 9/11 Commission staff. As we approach the anniversary of 9/11, I invite you all to visit the catalog at catalog.archives.gov, where you can access these and many other permanent records of the US government. Since the last FOIA Advisory Committee [meeting] in June, the National Archives has added into the catalog, a harmful language alert to advise users that historical records and their descriptions may contain harmful wording, reflecting outdated, biased, offensive, and possibly violent views and opinions.
The National Archives is working with staff, communities, and peer institutions to assess and update descriptions that are harmful and to establish standards and policies to prevent future harmful language in staff generated descriptions. That work is the direct result of a Task Force on Racism that I convened in 2020 to identify and recommend solutions to issues stemming from structural racism within the agency. As the keeper of this nation's founding documents, we have a special responsibility to the ideals that all peoples are created equal, that people have equal protection under the law, and that there is a common good that includes us all. More information, including the Task Force's final report, is available at archives.gov.
When the FOIA Advisory Committee last met, local public health metrics were allowing the reopening of many of our federal records centers and presidential museums and libraries in 17 states and the District of Columbia. Unfortunately, local public health metrics across the nation are forcing us to close or cut back on physical access to many facilities to protect the health and safety of visitors, customers, and employees during the ongoing COVID-19 pandemic. Here at the National Archives flagship building, we're still able to allow viewing of the Declaration of Independence, the Constitution, and the Bill of Rights to those who reserve time entry tickets on recreation.gov. As we look to the past and observe the 20th anniversary of the 9/11 attacks, it is helpful to remember this great nation's resilience. That resilience will continue to serve us as we go...as we weather the ongoing pandemic. Stay safe, be well. And I'll turn the meeting over to our committee chairperson, Alina Semo.
Alina M. Semo: David, thank you so much. Good morning, everyone. As the director of Office of Government Information Services [OGIS] and this committee's chairperson, it is my pleasure to welcome all of you to the fifth meeting of the fourth round of the FOIA Advisory Committee. I hope everyone who's joining us today has been staying safe, healthy, and well. I want to welcome our committee members today and express my continuing gratitude for your commitment to studying the FOIA landscape in order to develop recommendations for improving the FOIA process government wide. I also want to welcome our colleagues and friends from the FOIA community and elsewhere who are watching us today either via Webex or with a slight delay on NARA’s YouTube channel. Some housekeeping rules and announcements. First, I would like to introduce our fearless committee’s Designated Federal Officer [DFO] Kirsten Mitchell. Kirsten are you waving? Okay. She is going to help make sure that we stay on track and that we end today by 1:00 p.m.
Our captioning provider has a hard stop at 1:00 p.m. today. So we will need to end promptly at that time. Kirsten has taken a visual roll call [and] confirms we do have a quorum. Kirsten is that correct? I believe everyone has joined us except for one committee member who is now just joining us. I will not call out his name.
Kirsten Mitchell: Everyone is here, Alina.
Alina M. Semo: Everyone is here, so this is great. Congratulations to Linda Frye, who has been named acting division director of the Social Security Administration's FOIA team, which is great for her and for SSA, but it means that she has had to step away from co-chairing the Process Subcommittee with Michael Morisy. The good news is that Alexis Graves of the US Department of Agriculture has stepped into Linda's place to co-chair the Process Subcommittee. We are happy that Linda remains on the committee.
Thank you, Alexis, we really appreciate all the work you have in front of you. A few words about public comments. We have received several written comments, submissions in advance of today's meeting. We have reviewed them all carefully evaluated them prior to posting them to ensure they satisfy our posting policy for public comments, which is available on the FOIA Advisory Committee website. We have posted these public comments after remediating them to ensure they are compliant with Section 508 of the Rehabilitation Act. I want to specifically invite our committee members to review the public comments we have received thus far, if you have not already done so. I also want to note that the chat function and Webex or the NARA YouTube channel is not the proper forum to submit extensive public comments. You may submit public comments at any time by emailing email@example.com, and we will consider posting them to the OGIS website.
The chat function on both platforms should be used, ask clarifying questions, or provide brief comments or questions that we will consider reading out loud at the end of today's meeting. We will also open up the telephone lines at the end of the committee meeting today to receive any oral comments. We are particularly interested in soliciting feedback from members of the public on the issues that the four subcommittees are currently considering. You will be hearing more about those later today from the subcommittee co-chairs. Committee members are interested in hearing your ideas and feedback so that they may integrate these into their internal discussions as they develop recommendations for this term. Again, the comments can be submitted at any time by emailing firstname.lastname@example.org dashes in between.
Meeting materials for this term, along with members names, affiliations and biographies are available on the committee's web page. Click on the link for the 2020 to 2022 FOIA Advisory Committee on the OGIS website. Please also visit our website, www.archives.gov/ogis for today's agenda. We will upload a transcript and video of this meeting as soon as they become available. Also a reminder that the FOIA Advisory Committee is not the appropriate venue for concerns about individual FOIA requests. If you need OGIS assistance, you may request it, but we asked you to not do so through the committee's email.
It's hard to believe that we've been meeting virtually for the past 18 months. While the virtual environment has allowed us and has allowed most committee members to attend with greater ease regardless of their geographic location, the disadvantage for me and Kiersten 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. So I will again be doing my best to monitor committee's members non-verbal cues during our webcast, but we will all need to be respectful of one another. Try not to speak over each other, although I realized that is 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, you may also chat me or 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 only to housekeeping and 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 if you need to take a break, please do not disconnect from the audio video, the web event. Instead, mute your microphone and turn off your camera by using the camera icon, send a quick chat message to me and Kirsten to let us know if you'll be gone for more than a few minutes. Join us again as soon as you can. We have noted a 15-minute break at 11:20 on our agenda. Although we may break a bit earlier or later, depending on our pace today. So we will play that by ear, but everyone, I promise we will get a break.
A reminder to everyone, I am very guilty of this myself, but please identify yourself by name and affiliation each time you speak today. 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 am sad to announce that Kimberlee Ried’s last FOIA Advisory Committee meeting is today. As committee members recall, Kimberlee who works at the National Archives in Kansas City, Missouri, has been detailed for the last year to help OGIS with administrative support for the committee. In addition to helping Kirsten with a lot of logistics to make these public meetings happen, Kimberlee has also managed the Meet the Advisory Committee Member posts on the FOIA Ombudsman blog and has researched some FOIA funding issues for one of the subcommittees working groups. Thank you to Kimberlee for all of your work. We are very grateful, and we will definitely miss you.
Kirsten emailed members the minutes from the June 10th meeting that Kimberlee prepared under the 90-day deadline laid out in the Federal Advisory Committee Act and I have to certify and post the minutes earlier this week. So we will dispense with any approval or seconding of the minutes, even though I know that's really fine. So we have certified the minutes to be true and correct, but committee members, if we miss something there's anything we need to correct, please let us know and we will correct it. Before we turn to the main body of our agenda today, a brief update on past committee work. I am pleased to report that, OGIS recently completed recommendation 2020-14 by publishing an assessment on commonly requested categories of first-party records.
The report and three recommendations are available on our website. The assessment looks at two broad categories of records that requesters seek about themselves. Those records such as employee and personnel records maintained by all agencies and records that are unique to an agency's mission. Thank you to our National Archives colleague, Jennifer Dryer, who was temporarily assigned to OGIS earlier this year and conducted the analysis for this report and stay tuned, work by OGIS and OIP continues. We are regularly updating the recommendations dashboard and thank you to Christa Lemelin on OGIS staff for keeping our dashboard up to date.
Okay. Any questions on housekeeping matters that I just covered from committee members before I go on? No, thank you. I'm seeing noes. Okay. So at this point, I know we're about five minutes early, so that's great. I am going to turn to the next stage of our agenda. We have our guest speaker today and I'm very pleased to welcome Professor Richard Peltz-Steele, the University of Massachusetts School of Law and Dartmouth Massachusetts. Professor Peltz-Steele teaches tort law, comparative law and media law, including free speech, access to information, defamation privacy, and copyright. Before joining the law school faculty at what's colloquially known as UMass in 2011, he practiced commercial law in Baltimore and Washington, D.C., and taught law for more than 13 years. He is the author or co-author of qualitative and quantitative research articles in law and mass communication journals, as well as book chapters, a treatise in the law and mass communication field, a casebook and tort law and a case book and freedom of information law and policy.
Professor Peltz-Steele earned his bachelor's degree in journalism and Spanish from Washington and Lee University and his law degree from Duke University. He is active in international media and law and policy and has presented papers in Europe, Asia, Africa, and South America and is published in international and foreign journals. Professor Peltz-Steele serves in various capacities for the American Bar Association, including the Legal Education Committee of the section of International Law. Finally, professor Peltz-Steele publishes a blog that he considers his space to ruminate on the law of torts, as well as on other topics of interest to him: journalism and mass communication, civil rights, sports, comparative law, social and economic development and transparency and accountability. The title of his blog is The Savory Tort, which I must say sounds very tasty. I believe that we've agreed that after the presentation committee members will have the opportunity to ask questions if that's okay with you professor. Okay? Great. So without further ado over to you, Professor Peltz-Steele
Richard Peltz-Steele: Thanks so much Alina. That was an extremely generous introduction. If you'd asked me, I would have given you a 10-word version, we'd be on with it. I'm just thrilled to be with you today. And I'm especially grateful for particularly the support of Tuan, among your members, I want to mention because he's been so supportive of my interests. It wouldn't be efficient in my use of your time, but I have to start with one disclaimer, which is that I want to share some foundational ideas, theory with you today. And that is not really mine. So the research that I am working on and that I'm pursuing is built on that, but I don't want to take credit for others' ideas and the important groundwork here. So in the slides that I prepared, you're going to see some attributions to the people whose ideas I'm shamelessly taking today, stealing today. Stealing is the word I'm trying not to use.
So I appreciate your understanding of that though with the natural, a further disclaimer, that all mistakes are undoubtedly so I appreciate. Alina, whoever's doing next slide for me, I thank you in advance and we can go to the next slide. So again, we're laying a broad groundwork here, so I'm going to take you back to 1791. And if we can think about what is FOIA and where does it come from, or what does...where does access to use the sort of global term will be ATI Access to Information or FOI. The classical notion of human rights is sometimes called political rights or blue rights, is what we're most familiar with from the Bill of Rights. And we've got, of course, our favorite First Amendment, which is free speech with its free exercise causes. For example, we found some privacy in there between the Fourth, Ninth and other Amendments.
And these rights are all again in the classical notion, they animate our Constitution. They're really well expressed as negative rights. So there are things about which it's really easy to say. Congress shall make no law because that's what we want. We want liberty vis-a-vis the state. Access to information has always been a little bit of a tough sell. It's not the same. It's not about being left alone. It's actually about the opposite. It's about civic engagement, people reaching out to be involved with government. And I think that's why it's not just me and others think that's why we get confusion. We get doctrines like Branzburg v. Hayes, which give us the sort of general rule that the First Amendment does not provide a right to news gathering. It does not provide a right to access to information, but then we get these odd little exceptions like Richmond Newspapers and Press-Enterprise where there's public right to be present in a courtroom. And we have trouble reconciling these. So we can go to the next slide.
Thanks. So another way of looking at this in these classical liberty based, political rights, blue rights is that the people have rights vis-a-vis the government, and this is really the genesis of our state action doctrine in constitutional law and rights are only valid as against the government. There are negative rights to be left alone vis-a-vis the government. This is what elsewhere in the world is called verticality. [That] human rights operate only vertically of the person versus the state. And we've struggled with this. This understanding has been at times limiting in our American experience. The civil rights act since reconstruction, we've had trouble sort of rationalizing, how do we deal with problems that are not vertical. Problems that are horizontal when people's rights are being adversely affected by fellow citizens. And I won't detail the evolution of that, but this is why today we look for a basis for something like the Federal Housing Act, we look at the 13th Amendment, the Commerce Clause, the Spending Clause, because we have to find these sorts of ways to work around our state action limitation.
The next slide. So we shoehorn, if I can use the term, we shoehorn ATI or FOI into this framework as a civil right, that we create by statute needs to be sustained and that's great. We created a statutory right that is equally effective as a First Amendment right vis-a-vis the state, it fits within the state action doctrine. FOIA is not the only such mechanism, common law is really important. The First Amendment gets a little bit of action, but essentially this is how we hobble it together in the same way that we have worked on the problems in civil rights. The next slide. But in the... Just like the civil rights act, I should say FOIA has struggled with problems of horizontality expressed in this vertical system.
So, when private actors sort of do the government's bidding, what we've done is devised ways to try to apply the right of access to them generally by casting them as quasi-governmental actors. So we do that through tests like, power, are you doing something the government does? Are you funded by the government? And that way we say, "Well, for this purpose, you are the government." And so that comports with our state action vision, it allows us to extend the access to information by redescribing in this way. And you all know better than I, we've probably done this more thoroughly. I don't want to be normative and say effectively, but more thoroughly at the state level, the states have a lot of innovations.
Well we can go to the next slide. I think Alina is trying to tell me something, keep moving. So, but we have not done it as well. Now we're going really far ahead. So we're going to go back a couple of years. Can we go back? Oh, thank you. That's perfect. So appreciate it. So, we have these extensions to these quasi-governmental actors at state and federal levels, perhaps more so at the state and at the federal level. But I want to go back... Take us back to basics again and say, maybe this initial conception, like the state action doctrine, maybe that's not the right way or the only way of looking at things. And indeed political science, people, people with PhDs are much smarter than I am, they've been working on this all through the 20th century. They came up with different ideas about what ATI or FOI it's to understand it as a civil right or human rights.
And one of the different ways of looking at rights is to describe them in terms of power. And there are others, but I'm going to focus on the power model because I think that's helpful for us. And when you recast these rights in the power framework, libertarian doesn't describe everything. That's our liberty ethos of the American tradition. It doesn't describe all rights. Well in the liberty framework, think about something like the Voting Rights Act, or voting rights at all. They again require citizen engagement. We kind of describe that as a right to be left alone, as a right to keep government out of your business. But power makes more sense if you look at things in terms of power, the people they take power, they transfer it. They give it to, assign it to the government for certain functions.
And then, you can see that, for example, in the 10th Amendment, that the reservation to the people at that, which they did not divest themselves, transferred to the government. And you see, think about, I guess, the republican guarantee clause in the Constitution also, for example, so we can go to the next slide. Thanks. And so what we create then is this sort of tension in the power model, a tension, but a balance between the power of government and the power of the people. And we have to keep these two things in balance so that we have just the right amount of liberty that we want in our society, vis-a-vis our collective interests. And I don't mean to here suggest they're the same size. They...one could be bigger or the other could be bigger, but the important thing is that there's a tension and a balance and that we maintain it the way we want it to be. The way our Constitution designed it.
So next slide. But so a peculiar thing happens in the 20th century. That is the advent of the administrative state and that changes the power dynamic because government gets really big and we need accountability mechanisms then, so that the people can be at that level so that people can hold the administrative state accountable. And that's where we get the Administrative Procedure Act, which of course is the genesis of FOIA. So next slide. FOIA becomes the restoration in the 20th century of that balance between a larger, a more active government and the people. Correcting what has been called a democratic deficit and restoring the appropriate balance between these two things. At the same time, we see emergence, an idea of thinking about ATI or FOI as has what UNESCO and others have called an enabler right. That it is important. It is a human right, a civil right, but it's not per se rather it's a right that is necessary to facilitate the realization of other rights. So an enabler human right, which I think is synchronous with this concept of a power shift. Next slide please.
So then we see another shift though, late in the 20th century, and now he's not the only one, but [Alasdair] Roberts described this as structural pluralism. Let's go back one note, we hit two, two forwards there. Thanks. We'll be there in just a second. So we've got the...one forward to get our structural pluralism, but then we'll stop. There we go. Oh, and one more, I think. Super, thanks. I will stop there for just a second. So we've got in part motivated by our limits and impulses, we had this sort of move back to what privatization was in the 20th century. And we had this again, what Roberts calls structural pluralism. We could say it was part of privatization, but we have the emergence of these new entities hybrid things, quasi-governmental actors, the transfer of government authority of government funding of government functions into a private or quasi private sector sometimes like in, in loans, the creation of quasi private entities, by public authorities.
So to deal with all this structural pluralism, now we can just jump one on with the slides. To deal with that, we saw new developments in the way, FOIA particularly again at the state level, in the way FOIA grappled with structural pluralism. And it...you can debate how effective it was in doing so, but we see a lot of angst in these. A lot of handwringing over, how are we going to have accountability for these clause governmental actors? In my class in FOI, just yesterday they brought it up, not me, that we wanted to talk about university foundations that support five foundations to support public universities. What do we do with that? How do we ensure accountability? And that precipitates this very difficult discourse about how do we classify these things? How do we decide when they cross this line into requiring accountability? And not to mention as a political matter It brings about resistance from private sector actors who say, "I have interests here." That you can't just trample with your supposedly need for transparency and accountability, but I want to take us now, let's travel halfway around the world and go to our next slide and think about an entirely different experience.
So different country, different culture, different 20th century experience. We have apartheid in South Africa, well into the late 20th century. And if you're sitting there in the demos, you are the people who are under this system, your worldview of government is very different, and it does not so much draw a bright line between private and public sectors because they're all in on apartheid. And so there is just as much anxiety and outrage and concern over the implication of private action within the apartheid regime, as there is public action and no wonder, then we have democratic deficit, but we also see in the late 20th century, so-called information poverty, where you have these extremes in society, in the conventional sense of poverty, but also in every other sense, in a democratic sense and an ability to participate in government and in transparency and an ability to see what government is doing.
And so to hold government officials accountable and information poverty. So next slide, please. So, no wonder then when apartheid comes to an end, the new constitution of South Africa, the people who sit down to write that, they take on these challenges and they include as this... As you all know, as is common today, the human rights of access to information in the constitution, both in the interim constitution of 1983 and the permanent constitution of ‘96. By 2000, they implement a constitutional right through the Promotion of Access to Information Act, PAIA like our FOIA, but PAIA does something different. And what PAIA does is as you see here, and it's two parts of Section 11, and it's Section 50, it goes after all of the former oppressors, if you will. All of the actors who, the people of the new constitutional regime believe need to be held to account. That is public sector and private sector, as well as our Section 11, dealing through a function test with the quasi-governmental actors in between.
And so we get this different vision and South African scholars have recognized that this is the power model. This is the people reasserting power against the authorities who had taken it away from them, going to deprive them. And so PAIA in this model makes a lot of sense. It's about empowering and informing people. So if we could go to the next slide. If we go back then to what we looked at before in our model, you'll remember that in our conventional classical model, we have this red stroke down the center. That was the end. That was where right of access went up to the state action doctrine, just like under civil rights. You couldn't go beyond that as it were, or you couldn't go to a horizontal application of that concept. But if you go to one more, we'll have a new image at the bottom.
And if we look at it in a sort of a South African approach, power approach, it's coming up here in just a second. Here we go. Perfect. Thank you. So if we look at it and this approach, it's the so-called red line, the state action doctrine. It's not an end point. It's a point...I describe it as a point of inversion. It's a point at which the right of access to information starts hitting friction. So you have a frictionless right of access to information up to the state action doctrine. It doesn't stop. Accountability doesn't stop. The need for transparency doesn't stop. But now it starts to meet resistance. When you start to move the application from the vertical to the horizontal, you start to impinge on the liberty interests of private actor custodians, or respondents.
And so the farther you reach into that private sector, the more their liberty interests push back. And so PAIA Section 50 developed a sort of a balance to deal with that problem. It said a record is required, that is access to a record for requester is required for the exercise of protection of a right. And so there are two really important components in there. There has to be a right asserted, and then there has to be a necessity to produce the record in furtherance of that right. And that, if you're thinking, "I think that sounds like First Amendment strict scrutiny." Yeah, exactly. Right. So what you have here is sort of a constitutional test inverted so that you have a narrow tailored incursion into the private sector, premised upon a human right need. And that's essentially the model of Section 50. Now, one more slide, please.
If I can show you just briefly, this is where I think things get really interesting. And in fairness, your interest might rightfully peter out, which is fine. But if you'll stay with me for just a moment with it, this is not unique to South Africa anymore. The PAIA in South Africa was in 2000 modelled on the '96 and '93 constitutions. The African human rights system adopted a model law with slightly different language in 2011. It has now been, I've read, it has now been enacted in five countries. I have not verified that myself, but five other countries with some form of that. I do know it's in Kenya. I've looked at that a little bit. You see a different formulation in Kenya. And again, you see some variation on the language required, may assist rights versus right, or fundamental freedom. And that has generated differences in how the rights are interpreted. I'll show you in a moment.
But this is growing. I mean, that I think is the salient takeaways, that there's something appealing about this, particularly in Africa, where we have a developed, largely a developing world context, where people have an experience that's not so great with accountability in government. And they're looking to reassert people's rights to attain accountability. One more slide, please.
So under, really under Tuan’s leadership at Villanova in a symposium, I started really digging into, "What's this thing look like on the ground in South Africa?" And I will tell you it's, in the first instance, it might not strike you as what you would expect, well, nor even appealing as a doctrine. One of the quirks here is that, of course you might know, South Africa has sort of a famously expansive constitution in its articulation of rights. And the South African supreme court is famously progressive in interpreting those rights. And so as a result, we've got some rather broad application and some of the sort of modest uses of PAIA Section 50 have been ways we might not think about it as human rights issues in the United States. One of the interesting ones to me as a torts professor is pre-litigation discovery. So people went in and said, "Look, I don't know whether I can sue the hospital over this medical negligence because I don't know what happened. But I have a right of access to the reports for redress of grievance under my constitution. And in order to exonerate that right, I need to see the internal medical report that the hospital produced." And the court said, "That makes sense." So this isn't kind of the most highfalutin, high-end sophisticated esoteric use of the right, but it's on this PAIA Section 50 model, also a fairness in administrative hearings.
I want these records from a private sector custodian because otherwise I can't get a fair shake in this administrative hearing. Also in criminal rights, I want the police report because I need to know more about what was going on behind my incarceration, electoral rights and diversion results but no question that the thing applies even in shareholder values. I need to know what my holding is worth because I have a right to sell it and be remunerated. And so I need to know how they've got them. So if you go on one more slide, please.
I was a little, to be frank, a little less interested in those applications. I'm really interested in what kind of, we western hemisphere, think about in terms of human rights terms, where could this be applied in this sort of a socio-economic development and classical human rights framework? And there's some interesting action there, too. Of course there is a right to a healthy environment in the South African constitution, so-called green rights. And you have a case of our seller metal fabricator or manufacturer steel producer versus all environmental justice, where the private actor was compelled to produce an environmental toxicity report based on the claim that otherwise I can't exonerate my rights to a healthy environment. You have used in anti-corruption, an area close to my heart because it involves, I'll say soccer, the world's football, FIFA, and a lot of promises were made as I'm sure some of you remember over the 2010 World Cup and what it would mean for South Africa. And some journalists such as the Mail and Guardian said, "We're not seeing all that prosperity. I'd like to know a little more about that." The FIFA World Cup Organizing Committee, of course, is where these classic private entities organized by a public authority and M and G said, we have PAIA Section 50, we want access to that. And they were given access in part. So next slide please.
So that, I've taken you down sort of my road of interest in where this goes, and I want to learn more about it. And I can tell you a little more about it if you have questions but let me bring it back home for us. We have this in the United States, this concept of access in the private sector, transparency for accountability of private actors, it's not foreign to us. We have what I would describe as sectorial extensions of the idea. When I first started talking to other law faculty about this, the business people, whom I, forgive me, but it makes my eyes glaze over, but the business law people who are very educated in their vein said, "Oh yeah, this is SEC regulation, right? This is Sarbanes-Oxley." Oh, okay. I see. Right. So, in a way, this is sectorial affirmative required transparency from the private sector for the purpose of public accountability. And we have, for example, the Toxic Release Inventory, right? Kind of a famous example of this, I think, a successful example of statutory affirmative transparency apart from FOIA in our federal code. At the state level, of course, we have the finance function control tests. I mean, one way is to look at those in the classical sense that we're just getting a look at quasi-governmental functions or quasi-governmental actors. But what they're really trying to do, I'd say, is just keep that power dynamic imbalance. And so they all are sort of reaching out in the direction of private actor accountability.
There are, I just chose one. There are other works to be sure, but one administrative law review article here 2019 looked at public contracting. And I know you all have had some discussions about privatization in the justice area. You've got like the Cardin Bill, which says we should have transparency flow through public contracting. That again is sort of anchoring in the classical model. But I think it's after the same objective of transparency and accountability from a private actor and kind of what struck me about the amount of Rookard pieces, they also talk about sort of premising access on public impact. That maybe in addition to tools like function and funding, maybe we should be looking at, "Does what you do have a tremendous public impact?" And that would be a premise by which you trigger certain transparency obligations. That strikes me a lot like Arcelormittal versus [Vaal Environmental Justice Alliance] that you've had, or even like the Toxic Release Inventory. When there is this event that implicates public health, you have been triggered into a public transparency and accountability. And I think that's an interesting idea.
I've thought, how do you sort of bring this South Africa notion to practical application within US FOIA? I've not thought deeply about it to be fair, that others have thought more about it than I, but I thought, well, you could continue with the intersectoral thing, more like the TRI. When there is some triggering event that clearly implicates what we call civil rights, then you have a transparency and accountability mechanism. And another one I find very compelling is now there's a lot of Robert E. Lee statue events going on in Virginia. When you have sort of this civil rights redux, maybe that does it. South Africa has the right to truth and that's been used in PAIA in a PAIA framework to say, "I need access to those quasi-private or private records because I need to know what happened. I need to know the truth of how this private actor was implicated in apartheid.” Maybe that's a model that we could follow. So those are just ideas I have. Again, you guys are the US FOIA experts and I defer to you, but I hope that I've been able to share something that's worth chewing on. Thank you for the opportunity.
Alina M. Semo: Thank you, professor. We really appreciate all of that. I want to pause and invite thoughts, comments, [and] questions from our committee members. Tuan, I know you have something to ask or say.
Tuan Samahon: I think Kel was raising his hand.
Alina M. Semo: Oh, I'm sorry. Thank you.
Kel McClanahan: No, he can go first.
Tuan Samahon: Kel, go ahead.
Kel McClanahan: So I have just a very sort of in the weeds question, but when you're getting into sort of into how the FOIA system works, this is something that you can't escape, which is, how would it play out in your opinion, or in your mind of how you would envision this happening when it comes to litigation? How specifically, who would be representing the private entity that someone is trying to get records from through an extended FOIA? Or would it be a private law firm hired by that company? Or would it be the DOJ because we're talking about government adjacent documents where they have to fight, where they have to be co-counsel. How would this play out in sort of the public- private relationship between the government and that entity?
Richard Peltz-Steele: That's a really insightful question, Kel. And I really would, I would rather you keep talking about it because the more you said, the more ideas I got on how we could do it, but you cite an important issue. And in fact, one of the interesting things in the South Africa model is, there was a question about standards. We have, of course, the problem in constitutional law of environmental standing, which we're not too keen on. And that was a problem because can NGOs go and litigate this? South Africa has generally resolved the question in favor of the NGOs, but that also is owing to the very unusual, constitutional model. I don't think that would necessarily comport with ours, barring the creation of a statutory right such as FOIA does, some kind of private rate of action. But that doesn't answer the sort of policy question of who should. And I think that's the sort of more compelling question.
Immediately, I have two responses. One is, one of the things I like about the PAIA Section 50 approach is you have that premise in a rights required. So if you translate that into our standing, that means you have to have suffered an injury or you have to have at least have an injury that's more than speculative. And so that would be a qualifier, I don't know if it's a good one or not, but that narrows the field. Another approach, of course, you just made me think of the sort of OGIS, like an administrative approach, that's viable, too. I'm sure Alina would like more to do. And, another way of thinking though, is, I don't know if it's sort of good to mention the work of Professor [David] Pozen in this crowd, he's been very critical of FOIA, but he's got a lot to commend his work and he's taken what I describe as a consequentialist approach, which is to say, let's just look at what we're going to accomplish with this. And, he's really big on affirmative disclosure. And so the TRI is in the affirmative disclosure mode. I think that's a more limited response. There are a lot of technical hurdles that go along with affirmative disclosure. You all know better than I, but that at least is sort of, it's not the same as PAIA Section 50. It's not litigation, but at least it responds in the same way. It says we recognize the need for transparency and accountability in the private sector. And then maybe you need some kind of enforcement mechanism through OGIS if someone thinks that affirmative disclosure requirement is not being complied with. But there's a menu, there's a menu of options and it kind of just depends how aggressive you want to be in bringing it about.
Alina M. Semo: Tom, I see you're raising your hand, but Tuan, I think you wanted to go first, correct?
Tuan Samahon: I'm actually listening. So if Tom wants to go, that's great. I'm still...
Kel McClanahan: All right, Tom, over to you.
Tom Susman: Yeah. Rick, I'm curious, what kinds of information have been obtained from the private sector using this law? Because I recall probably a decade after it went into effect, I remember reading some academic materials saying that it really hadn't been used at all. And then, and so, we're looking, this committee is looking at it sectorally, I think. And Congress is too. I mean, that is, I think Congress has focused a bit on private prisons, for example. The state legislation focuses often on contracting out of government functions, as I think the terms used, which always seemed to me sort of intuitive. When you go beyond that and, of course, South Africa, I recall also there was a big focus on human rights violations by the private sector as a basis for opening their records. Has that ever been used? I mean, where's that taken us? It's, I'm always curious about these wonderful laws like Afghanistan's Freedom of Information Law...
Richard Peltz-Steele: Yeah, right, right.
Tom Susman: ... that look great on paper, but just never seems to work.
Richard Peltz-Steele: As you say, Tom, I said it just yesterday. And I won't name the country I used, but I said to my class, to be clear, having it written down doesn't mean anything and it's all about what you do with it. And we were actually talking about our FOIA and its difficulties in implementation. But you're right, I mean, one thing to recognize, just sort of off the top. And I glossed it over for sake of time, but that South Africa law has been around for a while. Right. And even before 2000, the courts held that one was able to bring a direct action under the constitution. So really, we have litigation dating back to 1993. And yet in those years, you can collect in your hand, the number of cases that have actually used Section 50, then I've actually referred to, grounded their actions in rights.
And a lot of them, as I showed you, a lot of them are what we would regard, frankly, as trivial. They're internet scene, shareholder disputes and family companies, that sort of thing. And there's been probably an equal amount of literature about why does South Africa's PAIA not work. And that goes to a lot of reasons that you might suspect. Dysfunctions in government and without delving deeply, I'd say the happy news, I guess, is that those are kind of collateral to what it's supposed to do in theory. So if you could solve the mechanical issues, your doctrine is there. Admittedly, we could, at some point say the same thing about our FOIA, too. We have a lot of execution issues. That's part of the reason of the creation of OGIS, but that sets then to answer your question more directly, how has it been used? And I did indicate the use in an environmental case.
One thing I will tell you, I love about that case. It's just makes me grin is the, you'll forgive the tangent, but the custodian or the private respondent, one of them came into court and argued in the alternative, "That record doesn't exist, but if it does exist, we want to know how you found out about it." Which is an interesting argument to make. It turns out the record does exist. So that was, I think, a very effective use. It wouldn't necessarily comport with environmental standing in the United States.
The M&G case, I mentioned also. Another one that is sort of perhaps instructive are cases in which it has been tried and not worked. One of the difficulties has been integrating PAIA Section 50 with other transparency mechanisms. And the courts have held, I think properly, that PAIA Section 50 simply can't overtake and overshadow all other transparency mechanisms. And so if there's a parallel mechanism such as accountability in the financial sector, that applies to the records, you can’t use PAIA Section 50 to subvert that and get something that mechanism by design keeps confidential. But then what is sought in that vein is interesting because then you do see people trying to seek financial accountability records. Think about, I had a student last year write a terrific paper on, I hate to call it, I don't want to call anyone out at a public meeting, but a terrific paper on sort of insider trading in Washington connected with COVID. And I didn't know half the stuff that was in this paper. It enraged me as a taxpayer. And that to me is a great possibility.
But if there's a parallel disclosure mechanism, that's going to have to operate first, but that kind of thing, I think anti-corruption is a powerful use where there's a potential. The law in Kenya was used in an anti-corruption thing as part of a journalistic probe. And there it hit actually, to Kel's question, it hit a standing problem. In the Kenyan court, and it's a little difficult to separate the politics of it from the law of it. I'm not going to try, but the Kenyan court held that you can't use this mechanism as a bootstrap. So you can't come in and say, "I have a right to be a journalist and therefore I can have anything I want.” And that, unfortunately, was [the] kind of the argument that the requester was making in this anti-corruption probe of the judiciary in Kenya.
So but the idea of what the requester was after was I think, good, promising, but they needed to find an appropriate plaintiff and it just couldn't be a general citizen right like FOIA. So anti-corruption I would put on the table. Yeah. One of the exciting things to me is about where the potential is and, and I just admittedly have a feeling that maybe I need to learn to sell better to others, but I just, if this is growing on the African continent, it strikes me that there is a need for it. It's responding to some perceived deficiency. And so I'm not deterred by its lack of or its thin use, yet. I think what we need to do is start exploring, researching, and understanding it and start pushing its boundaries to see what it can do.
Alina M. Semo: All right. I'm looking around, other committee members, anyone else have any … oh Tuan only because I called on you earlier. Okay. Go ahead please.
Tuan Samahon: Grateful for the presentation, Rick, which is helpful to sort of give us some theoretical background to thinking about this as Tom mentioned, we've been thinking about this problem somewhat sectorally, looking at those places that are most immediately adjacent to the government. So as you might say, quasi-governmental entities performing things that we could say that are classically, traditional governmental functions like incarcerating people and so the operation of private prisons. And it strikes me also that under your theory, we'd think about it, they're basically being sort of more of a compelling interest and that you've got great deprivations of the individual's rights. And as we might be concerned about that, I mean, other sectoral areas that we might possibly be interested in or others might be interested in, could include things like privately contracted military forces and their contract docs. And, that it's maybe more controversial because it touches on subjects regarding national security.
But again, to the extent it talks about abuses that might be conducted and might not otherwise be sort of obtainable. So I was wondering then, since one of the traditional extensions of the American Constitutional State Action Doctrine has been to state traditional governmental functions, do you think that the other sort of extensions of the State Action Doctrine to private parties, it would make sense to also have transparency in those directions. I'm thinking of Brentwood Academy and the entwinement with a theory or Wilmington Parking Authority and entanglement, just in terms of trying to articulate a broader theory of when we should consider extending transparency obligations to entities that are again adjacent to government.
Richard Peltz-Steele: That's absolutely fascinating to me. I had not thought about it. The idea of sort of using the public accommodation doctrine to extend transparency and accountability, I think, is terrific. I mean, I really, forgive me, I'd have to think that through some more about what the implications would be, and would that generate some collateral consequences that would concern us, but short answer, yes. That's actually a terrific idea. I mean, to be clear, I share with some of you who are academics, I share the luxury of being able to give you my ivory tower perspective and then dump it in your lap to find a practical use for it. And so yay me. But the advantage of that is admittedly again, as I say, I've been so sort of consumed with looking at how to research this thing, I haven't dived deeply into how you make it reality, but certainly, I don't think that...I don't think we're going to need to move to the United States off of the State Action Doctrine soon.
So the question is how do you build the notion of accountability into our existing framework? And I think what you suggest is apt in that way. Your mention of national security and sort of pushback, because I think it is as a practicality important to recognize the political angle and the pushback from [the] private sector. I should note, perhaps, that Section 50 in the Act has exemptions that parallel those available to the public sector. So there is a competitive advantage exemption. There's a trade secrets exemption. There's a national security exemption for the state contractor. So you have a model. You're not totally abandoning; you're throwing open the doors of private enterprise. A lot of what people would like to access is going to be covered by exemption. So that's just a, forgive me, it's not right on point with what you asked, but certainly I think it's promising and proof of how to expand within our framework, which includes sectoral regulation and thinking broadly about state action.
Tuan Samahon: One thought I have is, I mean, the closer it looks like these are functions contracted out by the governments to the private sector are much more comfortable with the idea that there be some reciprocal obligation with respect to transparency. I guess where I'm a little bit more concerned is where there is a private sector actor that makes decisions that obviously are of interest to the broader political community, but really isn't getting necessarily any direct contracted benefit with the government. So, I mean, if, for example, there's been some complaints from conservatives, more especially, who traditionally have always protected a private sphere of action. When it comes to Twitter, however, we're going to make an exception and sort of almost convert Twitter into a common carriage…. you can't de-platform and there might be in some interest, right, in sort of extending obligations of transparency to Twitter. We get as much transparency as Twitter cares to make right now as a matter of voluntary disclosure. But if someone wanted to actually know what considerations went into sort of canceling someone's accounts, suspending someone's account. I could see and be concerned a little bit that this could make certain company targets of harassment in the same way that agencies often feel harassed by certain actors. And so I think the mechanics of that procedure, some of the questions Kel raised in how to prevent against abuses, in some ways that would need to be well articulated before you start talking about extending too far, explaining allegations of transparency to the private sector, because otherwise I think it's an absolute balance beyond those who have like directed, contracted beneficiaries of government largesses on the one hand understandably having reciprocal obligations of transparency.
Richard Peltz-Steele: If you allow me two quick reactions which I'll try to make quick. One is when you raise this and you have me thinking about this with Twitter and your extension of state action, one thing that I find fascinating in the current debate we have over the internet regulation in Section 230 is that everybody, all of a sudden, is always interested in the company town doctrine in the First Amendment. It's like this was something that was off the table for decades and we just had to explain it to students in the First Amendment classroom that this was even a thing, and now it's like, "oh, that?" And so that's fascinating how these things come and go, but in that thing I point out, one thing I find interesting as far as the liberty pushback in the Section 50 model is that we still have on the books something like California's access to private shopping centers where that 14th Amendment interests of the private property does push back but can be overcome by the First Amendment interest, or the state interest, I should say, in First Amendment values.
And so I think that that's even an example of that very balance in the context you suggest, and that balance being drawn successfully in favor of exercise of the right vis-a-vis the private interest. Now to your point though, valid point and observation about politics, I think there was a very real danger of something like this being politically weaponized and especially in today's climate, and that would be detrimental to transparency and accountability.
There is a South African case involving, I don't know how to characterize it, a dispute over campaign finance, essentially, which it’s an NGO versus a political party. It was called the IDASA [Institute for Democratic Alternatives in South Africa] versus ANC [African National Congress] but it was arguably what you're describing. It was arguably, "We've got this cool law. Let's use it to go after our ideological enemies." And so to Tom's question, this was a perhaps viable use of the thing. To Kel's question, the court had already created a standing problem for itself with a broad standing doctrine, and then when it came to be, the court said, "Well, wait, now we have the parallel law of campaign finance. You can subvert that and work around it through PAIA." And so wiggled its way out of the problem that way, but it does eliminate the danger that you suggest. And so absolutely yes, such a thing has to be carefully drawn with those concerns in mind.
Alina M. Semo: So at the risk of shutting down this great dialogue, and I don't mean to shut it down at all because I think it's an ongoing dialogue, Kel promises that he has one very quick question, he says it's very small, and I would like to move on. But Kel, go ahead.
Kel McClanahan: So something that this entire conversation we've just had with Tuan made me start thinking, and this is going to sound like a rhetorical question and I promise it's not, given that you were emphasizing that at least in probably the most likely model we would have here, that you would have to have suffered some kind of harm in order to figure this right, what would you get through this that you would not get through suing the people for that harm and getting discovery? What does this add to the table?
Richard Peltz-Steele: That's a great question, Kel, because it could be rhetorical, and it could be practical. Unfortunately for me, you indicated it's not rhetorical, so I have to briefly respond. And I think it depends what you want to achieve, both as a matter of policy and having the law, and also for the claimant, and I think that's a compelling thing here where I see a diversity, a range of objectives. When you look at the Right To Truth case, Hlatshwayo is a researcher. He wants access so that he can understand history. That is a right, if you will, that I think we all would agree theoretically is served well by FOIA, by the very business of NARA, but not one that is exonerated anywhere in that statute otherwise, and so that's an end unto itself.
Other people use it as a means to an end. So the hospital case, I suggest that you've got pre-litigation interests where I don't know whether I have a claim. So unless I have pre-litigation discovery, I don't know whether I was wrong. And so there is very mechanical, very workmanlike as to what it's accomplishing, and arguably you could do it better through a civil procedure amendment, but there it is. So it's a really thought-provoking question because on a deeper level, it asks you what you want to accomplish by creating the system in the first place. And that goes to them when you talk about rights required, which ones qualify? Will we allow bootstrapping? Will we allow Mail and Guardian investigations of corruption or is that too general a standing doctrine for us? Those are the kind of policy questions you would have to answer, that you could set up, to answer your first question, it can be done from a menu of options, depending on what your desire is. Thanks.
Alina M. Semo: All right. Well, thank you so much, Professor Peltz-Steele. We really appreciate your presentation. A round of applause deserved. We really appreciate your time and gave us a lot to think about, so thank you very much.
Richard Peltz-Steele: Thank you all so much and for the work you do. Appreciate it.
Alina M. Semo: Thanks. Okay committee members, I'm moving along in our agenda, and we are up to the point where we're going to be starting our subcommittee reports, so everyone roll up your sleeves. Everyone has been very busy in the subcommittees, so I'm very pleased to know that everyone's been doing a lot of hard work. We're going to hear reports from each of our four subcommittees. We have asked that each subcommittee brings at least one issue that they're working on that they would like to discuss with the entire committee. I think everyone is aware of that, so with that, I'm going to turn to the Legislation Subcommittee first, co-chairs Patricia Weth and Kel McClanahan. Would you please go ahead and give us an update on the work of your subcommittee?
Kel McClanahan: Sure, and I'm not going to talk much except to tee up the other speakers. The only thing that's beyond the scope of what they're going to talk about that we've done is we've created our own working group, on first-party requesters that we're going to be working hand-in-hand with Process Subcommittee on that and coming at it from two different directions trying to complement each other. But today, what we're going to do is have two of our working group members give you presentations on the work that they have been doing where we have a FOIA fees working group and an empowering OGIS working group. And so the heads of those working groups are going to talk about their stuff and then I'm going to shut up and watch like the rest of y'all. So David, you want to go first?
David Cuillier: Thank you, Kel, I appreciate that, and thanks, Patricia. We started up a working group relatively recently in examining mediation enforcement models in the states and other nations. We want to see if there are processes that might help the FOIA process work better. While OGIS continues to do its best with the limited resources it has, and we support OGIS, we suspect there might be ideas out there worth considering and suspect additional funding will probably be needed. So we're looking at, or talking to a lot of people, interviewing people, gathering data. This month, we'll synthesize that information into recommendations for the subcommittee and then for the full committee with a goal of having a proposal to consider at the December 9th meeting. Coincidentally, there's an excellent group looking into enforcement models, including federal, for perhaps OGIS, coming out of Yale, and they're going to present some of their thoughts October 1st at the Yale Media Freedom and Information Access Clinic Access and Accountability Summit. I'm going to go ahead and throw that link in the chat in case anyone wants to check it out. It's a great gathering, a lot of good sessions planned.
Also relevant to this discussion and our inquiries as a committee, the National Freedom of Information Coalition Summit, September 28-30th is also going to talk about this and will include Margaret Kwoka and others talking about how to fix FOIA, and I just plunked that in the chat as well in case anybody listening is interested in attending either of those. I think they're both relevant to this working group's work.
We welcome any suggestions big and small for ways of improving the FOIA process through OGIS or even other means. Right now, we're in the brainstorming phase, so all ideas are welcome. Big or more realistic tweaks, we'll probably come up with several recommendations. So anyone who wants to talk to me or the working group directly, feel free to reach out to me. I've put my email in the chat as well. We want to hear all ideas. So far, we've compiled about a list of 10 blue sky ideas as we look at possibilities for the future, so it should be interesting. Thank you. Thank you, Kel and Patricia.
Kel McClanahan: I just realized you probably want me to step in so...I think Allan is up next.
Allan Blutstein: Thank you, Kel. The fee working group has explored several additional proposals since the full committee last met. One new issue under consideration is whether FOIA fees collected by agencies should be diverted from the US Treasury where they are currently required to be deposited under the Miscellaneous Receipts Statute. In fiscal year 2020, federal agencies collected about $2.1 million in FOIA fees and Congress can spend this money as it sees fit for non-FOIA related purposes. So to date, two ideas have been raised for the use of this pot of money. One would be to increase the budget of the Office of Government Information Services, whose services, of course, benefit requesters and agencies alike. The second idea, I think credit goes to Tom Susman here, is that an information technology fund would be established that agencies could dip into to improve their FOIA operations. My recollection from our discussion is that both of these proposals were viewed favorably, but that there were fewer objections to using this pot of FOIA fees for the information technology fund.
An additional issue that we're studying is whether FOIA requesters in the "all/other" fee category should receive more than two free hours of search time. For example, perhaps doubling that amount to four hours, which is what the state of Massachusetts currently provides free of charge. It's not readily apparent, however, how many requests by all other requesters currently require between two and four hours of search time, and so ideally, we'd like to obtain data from agencies about this before making any recommendations. Lastly, I'll mention since committee members have asked about this from time to time, the group is still considering the possibility of recommending eliminating all fees for all requesters as well as eliminating fees for all requesters except for commercial requesters.
Alina M. Semo: Okay. Allan, thank you so much, really appreciate that. Just wanted to ask if committee members from other subcommittees have any thoughts or comments about those two working groups or have any questions for the working groups? Well, it seems you guys are doing a great job, so keep up the good work. I don't hear anyone asking any questions. Okay, Kel and Patricia, any other...
Kel McClanahan: Roger raised his hand.
Alina M. Semo: Thank you for pointing that out. I made that comment beginning, I can't see everyone out at the same time. Roger, please go ahead.
Roger Andoh: Yes, so my question is with the last one, if you eliminate fees for everyone with the exception of commercial requesters, are you guys also considering looking at vexatious requests? How would agencies deal with vexatious requesters? So that happens. That's a real thing.
Kel McClanahan: The issue, and I'm not on the fees working group, so Allan can speak to what they've talked about, but vexatious requesters has come up sort of in passing in some discussions. It is itself a very, very, very, very tricky issue, as you can imagine, because one person's hard-hitting journalist is another person's vexatious requester, and so I personally, and I did not speak to the subcommittee on this, I personally think that there are plenty of ways for agencies to deal with so-called... actually, what you would call vexatious requesters without making that a thing, because if it doesn't read through and describe the records sought, or if it's unduly burdensome, these are things that are allowed, especially on unduly burdensome. Simply submitting lots and lots of requests, there's nothing inherently wrong with that and I don't think that should really come into the mix, but there are lots of tricks agencies have that are legitimate, or sometimes illegitimate, but that they can do in order to avoid most of the problem without actually adding a new category of you know who is allowed to submit request and how often are you allowed to do it. But that's just my two cents.
Alina M. Semo: Okay. Thank you, Kel, and thanks, Roger, for that question. Anyone else have questions for the Legislation Subcommittee? Okay. I'm not seeing any raised hands.
Kel McClanahan: Alina, do you want to mention what happened to the last recommendation?
Alina M. Semo: Oh sure. In response to your question, Kel, yes. So the first recommendation of this committee term 2021-01, has been sent to the Archivist. He has accepted the recommendation and we are currently working through the process of trying to send it through formal channels, working with OMB on that to send it over to Congress. And we invite everyone to look at our dashboard for a summary of the recommendation and there's an underlying summary of the reasons for that recommendation. Very, very well-done paper that's about seven pages long. Thanks, Kel.
All right, any other questions? Is everyone ready for our short break? Yeah, I'm seeing some nods. It's hard to be online for all this time. Okay. So let's take a break. It's 11:23 AM. We're just three minutes behind schedule. If I could please ask everyone to get back at 11:38 AM, that would be great. So please stop your video and mute yourselves and I'll see you back in 15 minutes. Thank you.
Shreyas [Operator]: Welcome back, everyone. Just had a quick instruction about sending the question in the chat. So if you want to submit a question in the chat panel, please make sure you select "All Panelists" from the dropdown menu in the chat panel, enter your question in the message box provider and send. Kindly do not send it to all attendees. Thank you. I now turn it back over to Alina. Please go ahead.
Alina M. Semo: All right. Well, welcome back everyone on the committee. I think we're all back. Waiting on a couple of folks to turn on their cameras, but hopefully everyone is engaged. We at least have a quorum. So we're moving on to presentations from our other three subcommittees, and next up is the Classification Subcommittee, co-chairs James Stocker and Kristin Ellis. James or Kristin, I don't know who's giving a report out today, so I'll turn it over to you.
Kristin Ellis: Hi, it's Kristen from the FBI and I am giving a report out. Hi Alina. On behalf of my co-chair James Stocker and our committee members Loubna Haddad and Kel McClanahan, I'm going to provide our update. So just a reminder to everyone, our mission statement in the Classification Subcommittee is that classification of information, while critical to protecting national security, can pose major obstacles to the public's ability to obtain information about government operations under the FOIA. So our subcommittee is looking at the impact of classification on the FOIA process, the use of particular exemptions to justify withholding national security information and ways to improve communication between agencies and the public regarding classification.
As part of our work, the subcommittee has been exploring the role of national security Glomar responses in FOIA, and just for everyone's clarification, a national security Glomar response is one where an agency neither confirms nor denies the existence of responsive records because doing so could itself reveal classified information. As an initial step in our work, we sought to compile baseline information about the use of Glomar responses by agencies. The annual FOIA report that agencies are required to prepare doesn't collect or report statistics on the use of Glomar or related information regarding Glomars.
So this led us to sending a survey out to the federal agencies that were most likely to be using national security Glomars. We want to thank those agencies that participated in the questionnaire by responding to it in whole or in part. Unfortunately, the net result of that survey was not sufficient to establish any sort of baseline about the use of Glomar responses in those agencies, so while having that baseline data would have been helpful to informing our recommendations in shaping our work, we've continued to explore ways to shed light on the use of national security Glomar responses. The following are topics that we've been discussing and exploring as our work moves forward. So we've been discussing whether to recommend that government agencies use the internationally recognized nomenclature of neither confirm nor deny, NCND, versus calling these Glomar responses. Just as a little backstory, Glomar refers to a court case about a CIA ship called the Glomar Explorer. So that's where the word came from. It doesn't really have any particular meaning outside of the FOIA context.
The next thing that we were looking at is whether to recommend that agencies track data on NCND responses that they issue, including the total number of responses issued and the relevant exemptions that are relied upon, because when an agency is relying on a Glomar response, it has to attach it to a FOIA exemption. In the national security realm, that's typically exemption one and/or exemption three. We're further looking at whether to recommend that agencies provide information to requesters on their websites regarding circumstances that will or may trigger an NCND response, and where possible, recommendations about how to avoid such response or to structure their requests in a way that results in a substantive response versus a non-response.
We're looking at whether to recommend that the executive order on classification, which currently is Executive Order 13526, includes specific guidance to reduce to a minimum level possible the use of NCND responses. And finally, we're looking at whether to recommend that when an agency makes a determination, that the fact of the existence or nonexistence of information is itself classified, which is what normally triggers one of these responses, that it must record that determination somewhere with proper classification markings pursuant to the executive order so that the classification of that fact can be reviewed and challenged and ultimately subject to declassification requirements under the executive order. So those are the topics that we've generally been talking about. We have not reached consensus yet on whether or not to make any of these recommendations. And that's where things stand with our subcommittee.
Alina M. Semo: Okay. James, anything you want to add?
James R. Stocker: No, I don't think so. I think that Kristin did a great job of summing up the many discussions that we've had. I would also note that we are all, in addition to the Glomar issue, we started to discuss the possibility of looking at the relationship between the Freedom of Information Act and MDR requests to understand how those two processes interact with one another, so that's a possible second topic for us to continue to pursue after we wrap up our investigation of Glomar.
Alina M. Semo: All right, thank you. Any other subcommittee members want to chime in on anything that has been reported out? No. Any committee members have any thoughts or comments or feedback for the work that the Classification Subcommittee has done? I'm seeing some noes or maybe is...no. Okay. All right, well thank you for that report. Kristin, I appreciate it. James, thank you for all the work you guys have been doing. I really appreciate it. And I am now going to move on to the Process Subcommittee. Not hearing any objections, moving on. So Michael Morisy, Alexis Graves are co-chairs. I don't know who's giving us an update today. I will turn it over to all of you and Michael or Alexis, go ahead please.
Michael Morisy: Hi, Michael Morisy, professional affiliation with MuckRock. Yeah, so we've been really busy over the last few months. When we started with the subcommittee, we've been really looking retroactively in terms of some of the prior recommendations, their implementations and also their impact. Based off that early foundational work, one of the things we've been collaborating with some of the other subcommittees on, and has been led up by David, is putting together a survey to also get a sense from the requester community as well as the processing community in terms of what is the actual impact of these reforms been? I think one of the things that, as a Process Committee, we're really interested in is where does the theory and the hypothesis of what's going to fix FOIA? How has it actually worked in the past? Because there's been a lot of really great recommendations. As OGIS has tracked, a lot of those recommendations have been put into practice, but I think a lot of folks would agree that there's still room for improvement within the overall FOIA process. So having an understanding of these prior process improvements and how they move forward was a real interest to us as a subcommittee.
Starting over the past few months, we've now started looking forward, as well. I think one of the things we wanted to do as a sub-committee was look at some of the broad areas of where some of the FOIA process issues really get stuck or things that seem to be unresolved tensions within the FOIA process, and what are some of the recommendations and areas that we can use to move past that?
I'm going to briefly talk about just the four key areas that we are looking at going forward, and I think I want to mention these, but also for anybody who's out there listening or watching this retrospectively, we're really interested in feedback that is targeting these four areas, so if you have suggestions or examples or you've seen interesting regulatory or process changes that help address these four key areas, we would love for you to submit a public comment specifically about these and have that passed onto the Process Subcommittee so that we can incorporate that guidance and potentially talk with you more and get more details about ways that we can tackle these areas.
The four areas that we're looking at, very pertinent to today's presentation, was FOIA and contractors and privatized data. As more information and more government services get privatized, how should FOIA’s regulatory regimes and also processes be addressed? I think one of the things that we were looking at, not to step on the legislative toes too much, was also are there things that can just be baked into contracts, baked into agreements, baked into RFPs from get-go that don't even necessarily include changes to the laws, like best practices that say this data must be made available on demand or available proactively? And how can we change our procurement processes to be more transparent by default?
The second area that the Process Subcommittee is looking at in coordination with the other subcommittees is FOIA fees and what is the role they played? And I think there are some really important tensions. FOIA fees are, from the agency's perspective, are a really critical negotiating tool when trying to talk with requesters and work with them on narrowing the scope of perhaps very broad requests, and so looking at what are ways that we can improve that FOIA process and there's been some really great discussions there. The third area is clarity and consistency of request processing. I think we've seen some agencies who've done absolutely fantastic jobs in terms of processing requests in a timely manner and comprehensive manner, and other agencies have struggled to have those same practices implemented. We realized that each agency has its own unique context and each request is its own unique entity, but I think there are a lot of those concerns within the requester community, but also opportunities within the processing community to better share best practices and come up with a more consistent and clear FOIA processing guidelines and systems and just processes in place within the FOIA processing.
And then the final area that the Process Subcommittee is looking at, and this was Tuan’s term, just sharp FOIA practices. I think there's increasingly felt both within the requester community, but also the processing community that there's been some things that are very concerning or both sides dug their heels in on certain issues that are potentially very damaging to the FOIA process as a whole. Requesters are very concerned about the politicization of FOIA processing, in terms of political interference in responses, but also things like the increasing use of Open America stays to delay or make some FOIA tactics no longer useful. And agencies are increasingly concerned about just the amount of litigation as well as other vaccine requests or what they perceive as vaccine requests that are straining agency resources and making it harder to negotiate around requests and have a smooth working request process. None of these are simple issues. I think there's a lot of nuance and a lot of really challenging discussions that need to be had. And I think the FOIA Advisory Committee being half requesters and half folks from the agency processing community is the perfect venue to really start having these discussions in a meaningful way.
So just to quickly recap, we are very, very interested in feedback and suggestions and ideas around FOIA and privatized data, FOIA fee issues, clarity, and consistency or requests processing and sharp FIOA practices. Please submit any ideas and other opportunities, or even just examples that we should be considering to the public feedback. But now I want to hand it over to Roger, who's going to talk a little bit about some of the subcommittee's ongoing work, looking at an older issue, which is first-party FOIA requests and their outsized presence within many agencies in terms of slowing down or overwhelming their FOIA processes. So, Roger, do you want to share a little bit about [what] that working group has been digging into?
Roger Andoh: Yes, thank you so much, Michael. The first-party working group consists of myself, Tuan, Tom and Alexis, and we've looked at multiple recommendations that we want to bring forward. But the one that I want to discuss today is about due process and discovery rights. The Fifth Amendment guarantees that no person shall be deprived of life, liberty or property without due process of law. In addition to the courts, [inaudible] with the due process of law guaranteed by the Fifth Amendment, Mathews versus Eldridge. When notice and meaningful opportunity to be heard are [inaudible] due, a process which is a mere gesture is not due process, Mullane versus Central Hanover Bank & Trust. Very often, the meaningful access of the opportunity to be heard requires access to information in records about the party to the agency's action, and this evidence, these records are held by agencies. We find that the inadequacy of other disclosure mechanisms often motivates parties to engage in first-party FOIA practices.
So what I recommend is that across all agencies, records that are relied on by any agency that adversely affects an individual to make what might be available to them. In the judicial context, automatic disclosures are common. In the criminal context, James versus United States [inaudible] requires the criminal accused their civil context the federal rules of civil procedure categorically mandates some [inaudible] from parties. So this is something we are looking at really closely, and I think we are going to come up with a paper soon and out at some point towards off to [inaudible] but we think that this is something that would have a meaningful impact across all agencies, which is basically that if you over rely on any records that will adversely affect an individual, we should make those records available to the person without forcing them to make a FOIA request for these records. Tuan and Alexis, do you want to add anything else?
Alexis Graves: I would just add, Roger, that we were certainly working with various agencies, some of these agencies where they receive a large number of first-party requests. And so, we want to make sure that the comments that we push forward, the recommendations that we push forward are meaningful and solution-oriented. And so, I'm looking forward to continuing to work with those agencies and this group with respect to pushing forward some recommendations.
Alina M. Semo: Great. Thank you so much, Roger, for that report. Michael, I don't want to take away from your presentation, so I'm just going to open it up to anyone else who wants to ask any questions or make comments on what you all have presented so far. Kristin Ellis?
Kristin Ellis: Thanks, Kristin Ellis, FBI. Alexis, you had mentioned that you're working with other agencies or with a number of agencies on this first-party recommendation. I'm wondering if you can let us know what agencies or just generally, are you talking to agencies within, for example, the law enforcement community, the intelligence community? Because a recommendation along the lines of what Roger's talking about could be intensely problematic to people that work in sort of my end of FOIA.
Alexis Graves: Yeah, absolutely, Kristin. We are actually looking and speaking with some of the ones that have immigration records.
Kristin Ellis: Thank you.
Alexis Graves: Absolutely.
Alina M. Semo: All right. Any other questions so far?
Kirsten Mitchell: Hey Alina?
Alina M. Semo: Yes.
Kirsten Mitchell: This is Kirsten, David Cuillier raised his hand.
Alina M. Semo: Oh, thank you. Sorry, David. I didn't notice you. David, go ahead.
David Cuillier: Oh, that's great. Great, yeah. David Cuillier from the University of Arizona. I just wanted to also mention that the survey we're doing out of the subcommittee, it's with A. Jay Wagner, as well from Marquette, and we welcome input. We would like to survey folks who have used FOIA, FOIA requesters, and we're going to finalize our draft survey in about a week, distribute among committee members to make sure we hit topics that can address issues that we're all working on. So we welcome feedback, as well as from the public. So if you'd like to submit public comments on things you think we should know about how requesters feel about the process, let us know. We'll run it through human subjects approval from our universities, and then get that out in the next month probably and kudos to A. Jay, by the way, we acquired a $5,000 grant from his university to help improve the response rate for our survey, which you'll make it a little more credible and useful. So thanks A. Jay and thanks to Michael Morisy as well for his assistance and helping. So welcome any feedback. Thank you.
Alina M. Semo: Great. Thank you. All right. Anyone else have any questions so far? Okay. All right, Michael, I'm going to turn it back over to you. Any other presentations from the Process Subcommittee?
Michael Morisy: Nope. That I think covers our update for this meeting, but we would love to hear your feedback. Thank you, Kirsten, for dropping that public comment link.
Alina M. Semo: Okay. All right. I'm going to move on to the third item on our agenda. If there is a presentation. I'm sorry, last. I'm still on third. Our last presentation, last but not least, is the Technology Subcommittee. And our Co-Chairs Allyson Deitrick and Jason Gart are going to be presenting to us today. Again, I'm not a hundred percent sure who's going to speak. So Jason and Allyson over to you guys.
Jason Gart: Thank you, Alina. Thank you, Alina. I'm going to go first and hand it over to Allyson. Jason Gart, History Associates Incorporated. Good afternoon, everyone. As we previously reported in our prior briefings to the FOIA Advisory Committee, the mission statement of the Technology Subcommittee for the 2020-2022 term, it's to explore the applicability of baseline standards and best practice recommendations to ensure that federal agencies have up to date access and impartial information on the functionality and operation of technology solutions for the selection and implementation of important tools. Today, Allyson, I would like to focus the discussion on two recommendations that the subcommittee is currently exploring. I'll discuss the first and then Allyson will provide an overview on the second.
So this first recommendation pertains to or relates to best practices and minimum requirements covering online content of agency FOIA portal websites. Our view of the group, the view of the subcommittee is that most of the agency websites could be improved, both in two ways. One by being more customer-friendly. And then the second, by being standardized across all the different agencies. This is supported by several ongoing things that are occurring.
The prior recommendations by our predecessors and the other in prior terms of the FOIA Advisory Committee, the FOIA Improvement Act of 2016, and then OGIS is also working on this issue. For us, agency websites or agency portals should have some minimum items. And these items, these pieces would help to make what we feel the process more transparent. One would be to link to a description of records that are maintained by the agency. Another might be information on FOIA fee categories, an explanation of FOIA's nine exemptions, contact information for the FOIA officers and the FOIA Public Liaison, requirements for those requesters that are seeking expedited processing at some type of agency information on the average processing time for requests, both simple and complex record requests, and then assessable contact information for individuals with disabilities, if they're having trouble encountering inaccessible documents. And then finally, some type of status bars, so that each requester understands where they are in the process of their particular FOIA request.
We also intend to implement as part of our recommendation a kind of self-check for future committees for the next term, so to speak. And that is, what would constitute success? So in our recommendation, we're going to also say, this is what we envisioned, and this is what we think would constitute success in the future 3, 5, 10 years down the line. And that can be as simple as the hope that within one or two years, 80% of agencies meet these minimum requirements or have these features. So that's the first recommendation. And then I'll turn it over to Allyson the next one, but I'm happy to answer questions or give additional thoughts.
Allyson Deitrick: Thanks, Jason. My name's Allyson Deitrick, Commerce Department. And the second topic that we're considering making a recommendation on, and I hedge it a bit because it's brought some lively debate within our subcommittee. So we're curious what the other FOIA committee members think of it and public comment as well. And that's regarding the metadata associated with documents that are provided in FOIA requests and should the subcommittee and hence the FOIA committee make a recommendation about encouraging metadata releases with documents or only upon request. And that's balancing the need for full information with especially, the intelligence community and law enforcement communities, trying to avoid inadvertent disclosure, information national security, potential controlled unclassified information that's been sent beyond what it's entitled to. Also, especially when there's embedded information, that's not immediately apparent in the document, and then it's embedded in, could be inadvertent disclosure that way. So we've had some lively discussions about the pros and cons and difficulties it could cause for different agencies to process. So we’re curious what the committee and the public have to say about that. Thank you.
Alina M. Semo: Yeah. I want to second Allyson's comment about the fact that we've had a couple of very lively subcommittee meetings to talk about metadata. And I think it's an important topic we'd love to hear from other committee members as to their reaction and thoughts about metadata and accessibility under FOIA to metadata of documents. Not all at once.
Loubna Haddad: This is Loubna, DIA. Quick question just so that I can be clear, is the proposal then or the recommendation under consideration is to make metadata available through the FOIA process, excuse my technical ignorance. But I'm just kind of trying to understand what is exactly the proposal that's being put forward or being discussed.
Allyson Deitrick: Oh, sorry. We're trying to figure out should we even make a recommendation regarding metadata, so we're curious if agencies have certain concerns or if they're already doing it, not doing it, what the public's thoughts are, just trying to balance the need for disclosure and transparency with the need to protect information. So we're trying to figure out, is this something that the subcommittee and hence the FOIA committee should even make a recommendation on, is there any consensus?
Jason Gart: And I would just jump in and say that...
Loubna Haddad: Thanks.
Jason Gart: I would just jump in. It's Jason Gart, History Associates. So, our understanding is that metadata is currently not released to requesters due to the limitations of the processing platform. So the system currently just strips out metadata during the processing of materials for release, at least by some agencies. In researching this issue, we've found that metadata has not been covered by prior committees. We feel it's going to be a bigger issue for the agencies in the near term, as federal agencies transitioned to fully electronic documents. We also feel that metadata is critical; it's part of the document. The National Archives has guidance on what metadata should be attached to electronic records that are submitted, that are deposited into the National Archives by federal agencies.
We certainly, and it's been a very, I think, great conversations over the last month or so, as we can discuss this, but there are certainly some important things that we need to understand about the potential ramifications to the national security community and the law enforcement community. And this is what we're wrapping our head around. And our group is very small. I think it's six of us. It's Roger, David, A. Jay, Allyson and Kristin. So we're the smallest group here, and we certainly welcome your thoughts and comments on if you think this is something, a road we want to go down.
Alina M. Semo: I just want to speak for myself. I think I just had a temporary technological glitch, and everyone froze for about 15 microseconds. And Jason, I missed the last part of what you said. Did anyone else experience that as well? I'm seeing some nods. Thank you for the sympathy. Jason, could just repeat the last part of what you just said.
Jason Gart: Yeah, the last part, and apologies. The last part was just that we are a small group. There's six of us, David, A. Jay, Kristin, Allyson, Roger. And we certainly, we want to hear your thoughts on whether you think that this is an issue that we want to drive forward with. We think there's something here that should be explored further, but certainly, there's a small group of us. So, what does the broader group think?
Alina M. Semo: Loubna, if you're talking, we can't hear you. You're on mute.
Loubna Haddad: Sorry, technical user error. Yeah. Thanks, Alina. I don't want to hog the questioning on this, but again, my lack of technical knowledge, can someone explain that when we're talking about metadata, what exactly are we referring to? What does that encompass, please? Just so that I can kind of understand what the pros and cons might be of that. Thank you.
Jason Gart: Yeah, that's a great question. And I will say that all of us in the Technology Committee are very honest that we're probably not the most technologically sophisticated, but based at a very high level, where the document was created, when it was created, who created it, how it was created, who edited it, vital pathways, things of that sort. So the underlying structure to the actual electronic record, and tee this off further, this is where it gets a little bit dicey with, there's certainly pieces there that we would want to be very careful with releasing as part of a FOIA request that might deal with what the national security or law enforcement issue.
Loubna Haddad: Thanks, Jason. And has there been any thought or discussion given to whether that type of information would fall under an exemption relating to the records that reflect the decision-making process? Right? Because if you're talking about who's editing it, how it's been edited, things like that, that's part of that process to reaching the final product, right? So there may be some issues to consider as well as many others, especially speaking from an intelligence community perspective, but that's one that also pops to mind that I recommend there'll be some discussion about. Thank you.
Jason Gart: That's a great point, thank you.
Alina M. Semo: Tuan, go ahead.
Tuan Samahon: I mean, to the extent the metadata might say include information about, because I know it could do like control Z or command Z, you can see what the past iterations of the document were, if there is any kind of track change information, I think that might qualify as deliberative material, wouldn't it? In some sense and could raise some concern there also. I guess it depends on how you are defining metadata.
Kristin Ellis: This is Kristin. I don't know that we've had an in-depth discussion about it, but I think the expectation is that certainly metadata may be information that is exempt, including deliberative information, but also other sensitive information. I think we haven't quite gotten as far as what we would do with the metadata. If the conclusion was that it is or should be subject to the FOIA, we are still exploring.
Bobby Talebian: This is Bobby from the Department of Justice. There is some case law around it. I just would have to refresh my mind on [it] right now, but that's something that probably be a starting point to look at.
Alina M. Semo: Yeah. This is Alina from OGIS. I just want to, I just want to add also one of the other areas of discussion has been the burden on agencies that would be imposed and having to process not just the documents themselves, that would be responsible for FOIA requests, but the underlying metadata. If we're talking along the lines of what Kristin just mentioned, applying exemptions. So we've discussed that a little bit. We've touched on that briefly, but again, just invite folks to think about that and ruminate. And if you have any other thoughts, please share them with the subcommittee. And Bobby, I'm going to turn back to you. You had wanted to ask a question about one of the earlier recommendations from those subcommittee on technology, correct?
Bobby Talebian: Yes. Thank you, Alina. Bobby again. So I was curious of how the committee went about examining the agencies' websites and what there should be on there? That's the one question I had. But then I also wanted to offer a comment as far as standardizing agency websites because that's something that we really considered when we issued our guidance on FOIA websites. And I think that there's a balance there where standardization is certainly helpful, there's certain things that we had that should be standardized, but we don't want to pull agencies back from adding additional detail or things that are specific to their agencies or the way they design their websites that would be really helpful to the agency. So I'd offer like State Department's website as an example, which they have a really helpful format as far as walking through requesters, as far as what they're seeking and how to best request it.
And that model might not be conducive for another agency. So we wouldn't want one agency having a lesser website for the sake of standardization. But in addition to that, so I would offer looking at the guidance where we pointed out where things that should be standardized, and many of them are some of the things that I believe that were mentioned here, as far as good practices. But a lot of that too, we tried to incorporate in, we view as the real standard website for agency FOIA administration, which is FOIA.gov. So there, we really standardized to have agency-specific information on really standardized agency landing pages. That includes a lot of the helpful things that I agree we want to make sure it's fully accessible to the requester community. As far as descriptions of the types of records, links to reference guides, regulations, all the contact information for the FOIA public liaison, the processing times are simple on average requests and so forth. And we're still working on it.
So we're excited to launch a new engagement with 18F to build on the functionality, and things like status are certainly things that we're going to be looking to. So I just wanted to offer the idea of, standardization is good, but there is a balance there as far as we don't want it to limit agencies, FOIA websites. But then also, I think the FOIA Amendments of 2016 took this into account where Congress wanted agencies to be able to maintain their own websites while also having the national portfolio as a single website for agency FOIA administration. Those are my hopefully helpful comments for the subcommittee, and that I was also interested in how we went about looking at agency websites to come up with those recommendations.
Jason Gart: Yeah, Jason Gart, History Associates. Bobby, that was very useful. 18F, we had 18F brief the group on, I guess, two occasions now, or at least one. Basically, we went through the prior recommendations of the subcommittee and then also some of the FOIA Advisory Committee survey questions that was previously done. And again, these are not the final... this is like some of the benchmark things that have started to percolate up off what we learned, but I absolutely agree. And I think the subcommittee would probably also agree that we definitely do not want, this is baseline.... this is minimum requirements. And we don't want to be...think the websites and the portals that do work now and that are thoughtful and user-friendly, we want to keep that, and we wanted to bring the other agencies up.
And the other thing that was really interesting with the conversations with 18F was just to make it more consumer-friendly, to know where you are in the process, know where to click, have things that kind of aren't... One of the things we saw in the surveys is that people feel they have to click through and go all around. And make it much more just ease of use. But absolutely. Great comments, Bobby. Thank you.
Bobby Talebian: Thank you, Jason. We've met with 18F, we actually just started a new engagement to help with our next phase of FOIA.gov. So it sounds to me like it might be a good meeting to have with this committee and 18F as far as when they do case interviews to get your insight, as we start working on FOIA.gov. Obviously, the agency websites are separate. But again, also, if you haven't, I'd also take a look at our guidance on agency FOIA websites looking into this topic.
Alina M Semo: Okay, great. Thank you. Any other questions or thoughts about the Technology Subcommittee's work? ...and that's not you're raising your hand, right? Okay. Just double checking. Just looking around. Kirsten is raising her hand.
Kirsten Mitchell: Yeah, I just wanted to thank Bobby for that update and remind everyone that a prior recommendation, 2020-01 pertains to review of agency websites, which one of our National Archives colleagues has completed reviewing a good chunk of agency websites, and we'll be putting together an assessment in the next fiscal year, which is what two, three weeks away. And we'll be sharing that with Bobby and his team at OIP. So, and of course with the public and all the committee members. Thanks.
Alina M. Semo: Thanks for that Kirsten. Okay. Any other comments or thoughts that have occurred to anyone having heard all these upcoming presentations, other questions? Everyone's doing great work. I'm very, very grateful. I think we're going to come up with some great recommendations. Hopefully not 22 of them though. At least that's what the Archivist would prefer. Keeping the number a little bit lower, but I'm not here to stifle any creative outside the box thinking.
Okay. So, I believe we are now towards the end of our agenda and we're actually running a little ahead of schedule, which is great. I would love to give a few minutes back to everyone cause I know how busy everyone actually is. We have now reached the public comment part of our committee meeting. So, at this point, we look forward to hearing from any non-committee participants who have ideas or comments to share. Any oral comments are captured in the transcript of the meeting, which as I mentioned at the beginning of the meeting, we will post when it becomes available.
Any member of the public may speak or otherwise address the committee in accordance with regulations that govern all federal advisory committees as agency guidelines permit. So I'm going to ask Shreya, our event producer, to give instructions about accessing our telephone lines that we will make available for everyone who wants to weigh in orally. And I'm also going to call upon OGIS deputy director, Martha Murphy, to let us know if we've received any questions or comments via chat. We've been monitoring both the WebEx and the NARA YouTube chats. So Shreya first, let me turn to you. If you could give instructions, please on opening up telephone lines and letting folks call in.
Shreya [Operator]: Sure Alina. As we move to the comment section, if you're using the WebEx audio, you may enter the comment queue by using the WebEx raise hand icon located just above the chat panel. You'll hear a beep tone when your line is unmuted. At that time, please state your name and comment. If you're just on the phone line and not using the WebEx audio, please dial #2 on your phone to enter the comment queue. You'll hear a notification when your line is unmuted at that time, please state your name and comment.
I do see one call in the queue.
Alina M. Semo: Okay, let's go ahead and take that call.
Shreya [Operator]: Okay. Sure. Caller please go ahead. Your line is unmuted.
Bob Hammond: Yes. Hi, this is Bob Hammond. Can you hear me okay?
Alina M. Semo: Yes.
Bob Hammond: Oh hey. And listen, great presentations today, particularly interested in the Technology [Sub]committee. Today I wanted to address this one issue unless granted a different time and that is focused funding. I want to follow up on a commitment that I made to help seek additional funding for the Office of Government Services in their important missions of compliance and mediation services to resolve disputes between persons making FOIA requests and administrative agencies per statute. I know that this committee has been seeking ways to get additional funding for OGIS that was mentioned today. And there was also a recommendation number 19. Congress strengthened the Office of Government Information Services with clear authority and expanded resources. As you all know, the FOIA Advisory Committee reports to the Archivist of the United States, the Office of Government Information Services serves as the chair of the committee and OGIS staff provides administrative and logistic support. And as we all know, the honorable David S. Ferriero is the Archivist of the United States.
To the people doing the day-to-day work. I stand with you on the enormous need for more resources, more help. Many in this meeting may not know that OGIS has just two people assigned to the FOIA compliance team. That's Kirsten B. Mitchell and Christa Lemelin and just three people assigned to the mediation team; Carrie McGuire, Dwaine Bacon and Jessica Hartman. In correspondence and in past meetings, I commented that from my experience in the budget world, when you tell leadership that you're doing more with less, you get less. And so I said, I would rather for my request to take longer and be more thorough. Because of the extremely important bill missions of OGIS, I made a commitment to advocate for additional OGIS funding, including writing to members of Congress.
It was time to make good on my promise. So I looked at the OGIS FOIA reports to Congress and the President to learn what I could that might be helpful. I learned that in FY2020, OGIS processed 4,169 requests for assistance. I thought, this is good stuff. I can divide three staff members into 4,169 requests for assistance and make a strong case. And I think most of you would agree that it's an impossible task for Carrie, Dwaine and Jessica to do the quality of work that in their heart that they want to do, they need more help. But then I read in that report to Congress and the President that OGIS has decreased our backlog by 83% from the end of FY19, decreased our backlog by 83%. Then I learned from there that NARA’s FY2020 budget ... NARA saw only an increase of $77,000 from 2020 to 2021, barely the rate of inflation.
And you won't get additional money if you don't ask for it. In my view, that's likely enough to cover salary and paperclips. When I made that promise to advocate for more OGIS resources, it was from my heart. The OGIS teams at the front lines, I want to stand with you, I can't help you. No one on this committee can help you in my view, if Congress and the president do step up, when presented with facts and significant problems affecting our citizens as important. I'm reminded of the recent horror affecting our veterans. This may not be a good analogy, so please don't take it literally. All the reports said that veteran patient backlogs were decreasing. Senior executives were getting fat bonuses while the reality on the ground was that veterans were waiting weeks and months for appointments becoming sicker and sadly in some cases passing away.
When the reality on the ground became known Congress and the President stepped up, provided substantial additional funding and passed the Veterans Choice and Accountability Act of 2017, allowing veterans to see a local private doctor in certain cases, and the VA would pay for it. And again, there was substantial additional funding. Carrie, Dwaine and Jessica I stand with you and your urgent need for more resources, more help, but what caused the case backlog to go away? Did something happen to make part of the caseload go away? Are agencies, DOD refusing to engage in dispute resolution, have requested to become disillusioned and quit relying on OGIS? Is OGIS closing cases without dispute with resolution? Is OGIS processing cases in the order received? On that last issue, just a few days ago, I received a curious letter from OGIS addressing three cases that were themselves only days old. I have open cases dating back to 2018.
DOD would state that they're not required to include the mandatory right to alternative dispute resolution in adverse determinations letters. And OGIS director agreed with that DOD position until just days ago, in a limited retraction to one of those days old requests. The facts are overwhelming all public DOG and OGIS documents and the statute itself states that mandatory right. DOJ and OGIS have posted model letters. In 2020, DOD issued a change to the code of federations and therefore in processing. Among other presentations, my presentation on mandatory rights to dispute resolution has not been posted although it meets the OGIS posted guidelines. Then I learned from OGIS reports to Congress and the President and FY2019, OGIS handled 4,649 requests. 4,649. In FY20 OGIS received only 4,062 requests. What caused that workload to go away? What is ground truth and how are the backlogs being cleared?
And importantly, what is the quality of the work that the mediation team would in their hearts strive to do? Here are my recommendations. I believe that this committee, OGIS compliance and DOJ OIP must address the issue of DOD's change to the 32 CFR part 286, which does not contain the mandatory rights of OGIS dispute resolution and does not appear to comport with laws, regulations, and policies. Note the DOD instruction, 5145.05 requires DOD to actively promote the use of ADR and eliminate barriers to the use of ADR, which contradicts 32 CFR part 286.2. I personally believe that an audit of OGIS processes, performance metrics and raw data is in order. And it's important that the compliance and mediation team workers be evaluated fairly and rewarded for quality work and helping, and I quote "through all disputes between persons making FOIA requests and administrative agencies."
I believe that OGIS should resume posting response letters and logs and include anonymous surveys and response letters to ascertain the effectiveness in executing FOIA dispute resolution. In the private sector they use them excessively to keep their customers. Mediation team could be rewarded for quality work. Prior to September 22, 2016, OGIS posted logs of its dispute resolution cases and letters, which contained a statement and a link. "We appreciate your feedback please visit..." And then gives a website for Survey Monkey to take a brief anonymous survey on the services you received from OGIS. I also believe that the Archivist of the United States should reallocate funding within NARA to support the OGIS mission.
And I had one other...
Alina M. Semo: I'm just going to interrupt you. I don't want to interrupt your great narrative about all the great work that OGIS is doing and I very much thank you for that. I know Dave Cuillier spoke earlier about the re-imagining OGIS working group. I'm sure he's taken all of these comments under consideration and we'll continue to discuss those. David, do you want to respond to anything that Mr. Hammond just said? Or do you want to just take them under advisement and continue to work? It's up to you.
David Cuillier: Well, I really appreciate those comments, Bob. Thank you. And I hope that you send them our way so we can really digest those. I think you're absolutely right. I mean, some of the facts gathered by Michael Morisy and others show that Pennsylvania's Office of Open Records, for example, has 20 people. And OGIS has eight and Pennsylvania handles 2,600 cases. OGIS 4,600, 4,000. So it's crazy. I mean, Pennsylvania has a population of 12 million. OGIS is serving 330 million. We got to fix that. So by all means Bob and others send your feedback and we will take it seriously and provide ideas beyond just asking for more money, which will probably be a top consideration. What else can OGIS do to make the system better? So thank you, Bob.
Bob Hammond: Just one quick point In NARAs FY 2020 congressional budget justification, as I said, OGIS saw an increase of only $77,000. Barely the rate of inflation. NARA got everything that it asked for including $377,823,000 with only $1,000,212 for OGIS. And as I said, I think that's barely enough to cover salary and paperclips. So that goes to my initial recommendation that within NARA that some of that money be reprogrammed. I just think it's, as you mentioned, it's just astounding that you have a little over a million dollars to service the American people.
David Cuillier: No, no, I agree with Bob and Pennsylvania dedicates 3.3 million. Connecticut, 1.7 million. I mean, it's just totally out of whack. So please send those comments. I know others probably want to comment today but thank you because that's critical and think bigger. Should OGIS get a direct line budget from Congress? I mean, let's look at other models out there and other systems that might work better. I mean, nothing wrong with NARA. No offense, but you know, there are other models, that's how Connecticut's office is set up. It's a direct line item budget from the legislature. So it can't be tinkered with the executive branch, not that NARAs tinkering, again, but those are the things that we're looking at. So yeah. Please send those comments and I'd love to chat further.
Alina M. Semo: Great. Thank you. Shreya, do we have any other telephone callers at this time?
Shreya [Operator]: I do not see any further callers in the queue. As of now.
I do see one more that came in just now, through WebEx.
Alina M. Semo: Okay. I'm going to ask that caller to hold because I would like to just turn over to Martha for a minute and see whether we have any WebEx or NARA YouTube chat comments or questions. Martha, go ahead please.
Martha Murphy: Yes, we do. We did receive some comments that are unrelated to the FOIA Advisory Committee. We're not going to read those out today, but as appropriate, we will be responding directly to individuals. Mr. Hammond actually noted that the Chief FOIA Officer's Counsel statute mandates a posting of all attendees, government and non-government. Will, he asks, will we adopt the same protocol for posting all attendees to the FOIA Advisory Committee? We spoke a little bit during the break about this. We're going to look into this. We don't have an answer for you today but thank you for raising that comment.
We've also received some comments concerning the accuracy of our previously posted meeting minutes. We're going to ask folks, if you have a current concern about our minute accuracy to please directly contact us about those specifics. We have the ones who were in the comment. If anyone else has any concerns and we'll review the accuracy of the minutes. So thank you very much.
One question was will NARA or OGIS post the participant chat log from WebEx? It has not been our practice to do so. We don't plan to do so. As of right now. We did get a question about privatized data. The individual noted that they have concerns that their organization has its own private data that cannot be easily withheld despite the potentially chilling effect the release of this information would have on your business. This is someone who is a FOIA professional. And so Bobby, I think you had some comments or thoughts on that.
Bobby Talebian: Thank you, Martha. So I believe the agency is subject to the FOIA. It has available to it all the exemptions that the other agencies have for protecting sensitive information...as for any. I encourage that agency representative to reach out to FOIA concern line and can provide individual guidance on the material that is of concern. So, (202)514-FOIA, we’d be happy to help.
Martha Murphy: Thanks. Thank you, Bobby. And then the last check comment I have is from Mr. Hammond, he would like to please be included in any of the surveys that were mentioned, and David I think you had a response to that, Mr. Cullier.
David Cuillier: Sure. I think where we're headed is two phases. First phase, that'll be very targeted sample to capture a representative sample, you know, a reflection of the entire community, and then maybe open it up to everybody and anybody and their dog through all the FOI list serves and, and you name it and you, we can even have a link from the OGIS website, the committee website, we'll figure that out. By all means, anybody who will want to provide their feedback, we'll give them that opportunity. Thank you.
Martha Murphy: Great. And Alina, we just got one more. If you'd like me to read the last one from Alex Howard, with respect to technology. Did the subcommittee find FOIA officers are aware of the Open Government Data Act requirements, their Chief Data Officer and Chief Data Officer Council and GSA resources to convert PDFs, to structured data?
That was a comment that came in.
Alina M. Semo: Jason. Allyson, do you want to comment on that? Is that something that you want to talk about at the next subcommittee meeting?
Allyson Deitrick: I think it's something we'll take under advisement and look into it for the next meeting. Thank you.
Alina M. Semo: Okay. Martha, any other questions?
Martha Murphy: That's all for right now.
Alina M. Semo: Okay. Shreya it's back to you any other callers waiting on the line.
Shreya [Operator]: Yes, I do see one caller in the WebEx queue. Caller, please go ahead. Your line is unmuted.
Sean Moulton: Hi, this is Sean Moulton with the Project On Government Oversight. Long-time listener, first-time caller. I wanted to just put an idea in the subcommittees. First off, I think you've got some great subcommittees and really interesting work going on wrestling with some terrific issues. So I'm looking forward to the recommendations, but I do think there was just the previous commenter who was talking about resources, which is extremely valid, but I think the other thing that occurred to me as I, as I was listening was the question of oversight for implementation as we talk about any of these sort of new standards, whether it's websites or fees or different process as this committee puts out these ideas about sort of a minimum standard or policies that should be followed. I think one of the overarching weaknesses in the US FOIA system is that there isn't a clear decider on someone to do enforcement, obviously both OGIS and OIP do a lot of really great work mediating and trying to resolve any problems that come to their attention and sort of encouraging agencies to do better.
So I would say that as, as these committees move forward with some of these recommendations that they consider those challenges. And also in addition to these process and technology recommendations that we come up with in classification review that they think about, I don't know that there's a great answer here, but they think about what might be a good improvement in sort of that oversight and that sort of enforcement to get consistency across the agencies. There's a lot of really good agencies trying very hard to do their FOIA well, and then there are agencies that maybe don't have the resources or see it as a lower tier item and we wind up getting a less consistent application and I will stop there, but thank you very much.
Alina M. Semo: Okay. Thanks very much for that Sean. Comments or feedback from committee members on Sean's comments?
David Cuillier: Well, I'm sorry to speak again, Alina, but just saying that's what our working group is going to focus on Sean. So please send us your suggestions. That's a big issue, but an important one that I think the requestor community in particular is really keyed on. Thank you.
Sean Moulton: Thank you. But I would just say, and I do realize that you guys are focusing on that with this re-envisioning, but you know, barring that change in how things are done now. I'm suggesting that given the system we have now, kind of a more limited role of enforcement, how can we do a better job if that remains sort of status quo? What can we put in place for the technology? If we come up with some web website, minimum standards, is there going to be a role for OIP given its current configuration, things like that. So I want my cake and eat it too, so to speak.
Alina M. Semo: Okay.
Kel McClanahan: I have just one thing to say on that and this is Kel. I'm not on video because...reasons. I think it is worth noting that you talked about the classification of information, that in the realm of classified information and access to it everything goes up to the President. And if you file an MDR request and it is denied, you then go appeal it to the agency. Then you go to ICECAP and then ICECAP, at least on paper, makes a recommendation to the President. And if they recommend, for instance, if they make a decision that it be released the agency can go over their head to the President and say please don't release this information. And it would send quite a message if someone, whether it be in the executive branch or the legislative branch were to basically say, look, we recognize that the reason that the President has the final say in everything about classified information we can tell what a high priority the protection of classified information is wouldn't it be nice if access to information were an equally high priority. Just naming someone who would be the final decider would send that huge message about how important FOIA and transparency is to the government.
Alina M. Semo: Okay. Thanks, Kel. Appreciate that comment. Martha, just double checking. Any other comments on the chat functions? Either WebEx or YouTube?
Martha Murphy: Nope. We're not seeing any other comments right now. Thank you.
Alina M. Semo: All right. Thank you, Shreya any other callers waiting in queue?
Shreya [Operator]: I do not see any other callers in the queue.
Alina M. Semo: Okay. Thank you. A last opportunity for committee members to share any thoughts or comments about today's meeting or anything that we've talked about today? No, I'm not seeing any, anyone raising their hands. Okay. So again, I thank you throughout. I'm going to thank you again. All the committee members have been doing a great job so far and your anticipated work for the upcoming year. I know we're in the home stretch now, so we're going to be definitely getting busier, not less busy, but thanks for all the hard work you've been putting in. I'm very grateful. Thanks to everyone for joining us today. I hope everyone in your family has remained safe, healthy, and resilient. We will see each other again on video. I predict it's going to be virtual. Sometimes folks ask me that, but at the rate we're going, and you heard the Archivist’s opening remarks. The pandemic is not easing up in many areas of the country. I predict we will meet once again, virtually on Thursday, December 9th, 10:00 AM to 1:00 PM Eastern Time. And with that, I'm just going to ask any other questions or concerns.
Okay. Okay. Did I hear someone on the line or is that maybe someone doesn't have their line muted? Okay. So with that, I am going to say we stand adjourned. I hope everyone has a great day and stay safe everyone.
Federal FOIA Advisory Committee