FOIA Advisory Committee Meeting (Virtual Event)
Thursday, December 9, 2021
10:00 a.m.-1:00 p.m. (EDT)
MICHELLE [EVENT PRODUCER]: Ladies and gentlemen, welcome. And thank you for joining today's FOIA Advisory Committee meeting. Before we begin, please ensure that you have opened the Webex participant and chat panels by using the associated icons located at the bottom of your screen, you are welcome to submit written questions throughout the meeting, which will be addressed at the Q&A sessions of the meeting. To submit a written question, select your panelists from the dropdown menu in the chat panel. Then answer your question in the message box provided and send. Please note that all your connections are currently muted, and this conference is being recorded.
To ask a question via Webex audio, please click the raise hand icon on your Webex screen, which is located above the chat panel on the right to place yourself in the question queue. If you are connected to today's meeting via phone audio, please dial pound two on your telephone keypad. To enter the question queue. If you require technical assistance, please send a chat to the event producer. With that, I will turn the webinar over to David Ferriero, Archivist of the United States. Sir, please go ahead.
DAVID S. FERRIERO: Thank you, Michelle. Greetings from the National Archives Flagship building, which sits on the ancestral lands of the Nacotchtank peoples. It's my pleasure to welcome you to the sixth meeting of the 2020-2022 term of the Federal Freedom of Information Act Advisory Committee. And I'm pleased to welcome our newest member to the committee, Dione Sterns of the Federal Trade Commission, who I appointed last month to fill the vacancy created by the resignation of Loubna Haddad of the Defense Intelligence Agency. Thank you to Loubna for serving on this fourth term of the committee. And thank you Dione for rolling up your sleeves for the last 7 months of this term.
[The] Committee’s charter notes that in addition to developing recommendations for improving FOIA administration, the Committee also should develop recommendations for improving proactive disclosures. I understand that the Technology [Sub]committee is building on the work of the 2016 to 2018 term of the Committee, which offered 11 types of records to prioritize for proactive posting. Here at the National Archives we take seriously FOIA’s mandate to proactively post records of general interest.
You may have heard news in the last couple of weeks about the role of the National Archives with regard to presidential records and executive privilege, for instance. I invite you to visit the online National Archives FOIA Reading Room at Archives.gov, which contains dozens of letters related to the request for presidential records by the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol. Other selected records available on our website include records related to my Task Force on Racism, which I convened in 2020 to recommend changes in support of an equitable environment for all National Archives customers, internal and external. Also on our website are FOIA logs, an employee locator, and an organizational phone list among many other records frequently requested under FOIA. These postings set a great example for proactive disclosures across the government.
Committee members, I look forward to hearing about the ideas you all have been shaping since the September 9th meeting on a range of FOIA matters, including FOIA funding, first-party requests, and the agency's use of the so-called Glomar response to neither confirm nor deny the existence of records.
Today marks the eighth virtual meeting of the FOIA Advisory Committee which last met in person on March 5th, 2020, when those of us in the William G. McGowan Theater here at the main Archives building refrained from handshakes and used copious amounts of hand sanitizer.Twenty-one months later after the pandemic turned our world upside down, we continue to face uncertainty as to when we might meet again in person. For the time being, I wish you continued resilience as the days grow shorter between now and December 21st and happy holidays with your families and loved ones.
Finally, if you have not already watched the National Archives Foundation's recent event with former FOIA Advisory Committee member Professor Margaret Kwoka, discussing her book, Saving the Freedom of Information Act, I urge you to watch the National Archives YouTube channel. Long-time FOIA Advisory Committee Tom Susman interviews Professor Kwoka about the role that FOIA plays in fostering democratic accountability and transparency. I now turn the meeting over to Alina Semo.
ALINA M. SEMO: Thank you very much, David. Good morning, everyone. As the Director of the Office of Government Information Services (OGIS) and this Committee's chairperson, it is my pleasure to welcome all of you to the sixth meeting of the fourth term of the FOIA Advisory Committee. I hope everyone who's joining us today has been staying healthy, safe, and well. I want to welcome all of 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 especially want to welcome Dione Sterns of the Federal Trade Commission. As David noted in his welcoming remarks, he appointed Dione last month to fill a vacancy created when Loubna Haddad of the Defense Intelligence Agency took on new work responsibilities and resigned from the Committee.
I do want to thank Loubna for her work on the Committee and particularly her work on the Classification Subcommittee. Dione is assistant General Counsel for Information at the Federal Trade Commission (FTC), whose headquarters sits right next to the National Archives flagship building in downtown Washington, DC. Prior to joining the FTC, Dione fulfilled a variety of FOIA and Privacy Act responsibilities at the Department of Justice’s Executive Office for United States Attorneys (EOUSA), and the Office of Information Policy (OIP). Her experience ranges from processing FOIA requests to serving as agency counsel in FOIA litigation to training senior officials on FOIA.
Dione is a graduate of Howard University and Catholic University's Columbus School of Law. Dione has already jumped into Committee work by attending all four of the most recent subcommittee meetings. Dione, thank you for that. And she is deciding which subcommittee or subcommittees she will join. I told her there's no limit. Welcome Dione, we are very glad that you are here. I also want to welcome our-
DIONE J. STEARNS: Thank you.
ALINA M. SEMO: Thanks. I also want to welcome our colleagues and friends from the FOIA community and elsewhere who are watching us today, either via Webex with a slight delay on the National Archives YouTube channel.
So, some housekeeping roles and announcements that we always go through at the beginning. Committee members, please bear with me. First, I would like to introduce our fearless leader, the Committee's Designated Federal Officer (DFO), Kirsten Mitchell. Kirsten's going to help make sure that I stay on track today as always. Kirsten has taken a visual roll call, confirming that we have a quorum. We expect Tuan Samahon to join us a bit later today. And I am advised that Tom Susman will have to depart the meeting at approximately noon, but he may be able to call back in. So that would be lovely.
A few words about public comments. We have received several written comment submissions in advance of today's meeting. We have reviewed all of them carefully and 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. We have received so many public comments that we are still in the process of going through all of them. Even if there are any comments that we decide not to post, we will nevertheless share them with all Committee members.
And 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 in 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 us at email@example.com. And we will consider post them to the OGIS website. The chat function on both platforms should be used to ask clarifying questions or provide brief comments or questions that we will consider reading out loud at the end of today's meeting. During our public comments period, we are particularly interested in soliciting feedback on the issues that the four subcommittees are currently considering. Committee members are interested in hearing your ideas and feedback so that they may integrate these into their internal discussions as they develop their recommendations for this Committee term.
I would like to briefly address one comment we received that we post a list of all attendees, government, and non-government for our FOIA Advisory Committee meetings just as we do for all Chief FOIA Officers Council meetings. We have considered this request and have decided not to do so. The FOIA statute itself requires that detailed minutes of the Chief FOIA Officers Council meetings be kept and contain a record of the persons present. There's no such statutory requirement on either FOIA or the Federal Advisory Committee Act under which this Committee operates or the Government and Sunshine Act. Therefore, we will not be posting a list of meeting attendees, either government or non-government for our FOIA Advisory Committee meetings. 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 through the 2022 FOIA Advisory Committee on the OGIS website, please also visit our website today for our agenda.
And regarding our agenda today, we have no outside speakers, nor do we know exactly how much time each agenda item might take, particularly with regard to some of the draft recommendations that we'll be discussing today.
And as chairperson, I reserve the right to adjust the times, as necessary. We will upload a transcript and video of this meeting as soon as they become available. A reminder that the FOIA Advisory Committee is not an appropriate venue for concerns about individual FOIA requests. If you need OGIS assistance, you may request it, but we ask that you not do so through our Committee email.
It is hard to believe that we've been meeting virtually for the last 21 months. While the virtual environment has allowed all of us as Committee members to attend with greater ease, regardless of geographic location, a big disadvantage for me and Kirsten is that we're not always able to see Committee members raising their hands or leaning forward to ask a question or make a comment as we would if we were meeting in person. So I will be doing my best to monitor Committee members non-verbal cues, and we all need to be respectful of one another. Try not to speak over each other. Although I know that's inevitable. But I also want to encourage Committee members to use the all panelists option from the dropdown menu in the chat function when you want to speak or ask a question and I will call on you at that time, or you can also chat me or Kirsten directly via chat.
As a reminder. However, in order to comply with the spirit and intent of the Federal Advisory Committee Act, many members, please keep any communications in the chat function to only housekeeping or procedural matters. No substantive comments should be made in the chat function as they will not be recorded in the transcript of this meeting. Another housekeeping reminder, if you need to take a break, please do not disconnect from audio video of the web event instead, just simply mute your microphone and close your camera and send a quick chat to me and Kirsten to let us know if you'll be gone for more than a few minutes and join us again as soon as you can. We have noted a 15-minute break at approximately 11:20 AM on our agenda. We may break a bit earlier or a bit later, depending on our pace today.
And just a reminder, I'm always guilty of this. Please remember to identify yourself by name and affiliation each time you speak, this will help us down the road with both the transcript and the minutes, both of which are required by the Federal Advisory Committee Act.
So with all of that, any questions? You've heard me give all these instructions before. So there should be no great surprises. I would like to turn my attention now to approving the minutes from our last meeting, which was September 10th, 2021. Kirsten emailed Committee members the minutes from that meeting. I apologize, September 9th, not 10th. I misspoke. Under a 90-day deadline laid out in the Federal Advisory Committee Act, she and I certified the minutes to be true and correct, and posted the minutes earlier this week. But Committee members, if we missed anything, please let us know and we will make any corrections, as necessary. So at this point, do I have a motion to approve the minutes unless I hear any objections from anyone.
JAMES R. STOCKER: So moved.
ALINA M. SEMO: Okay, do I have a second?
KRISTIN ELLIS: Second.
ALINA M. SEMO: Thank you. All right. All in favor. Say aye.
ALINA M. SEMO: All right, any objections? Okay. Minutes are passed. And they are posted on our website for your viewing pleasure. Okay. Any questions before we get started on the substantive part of our meeting today? Anyone have any concerns or questions that they want to ask before we get started? Okay. Not hearing anyone. If we could please move the slide deck Michelle to the next slide.
Okay. So first up today, we always like to switch things up, keep everyone on their toes. The Classification Subcommittee is going to be presenting first. Kristin Ellis and James Stocker are the Classification Subcommittee co-chairs and they've been hard at work and I'm going to turn the floor over to James and Kristin.
KRISTIN ELLIS: Thanks, Alina. This is Kristin Ellis. I am an attorney with the Federal Bureau of Investigation, and I am a co-chair of the Classification Subcommittee with James Stocker, as Alina mentioned, and our other [Sub]committee member, we are a very small [Sub]committee, is Kel McClanahan. The focus of our work over the past year-ish has been well a focus has been Glomar responses, particularly those issued in national security cases. A Glomar response is one where the agency neither confirms nor denies the existence of responsive records because doing so would itself reveal some information that is exempt from disclosure under the FOIA. While the FOIA statute itself does not contemplate a Glomar response, courts have recognized it as a legitimate response to a FOIA request under certain circumstances. However, there is some public skepticism about the use of Glomar responses. This may be driven in part by a lack of publicly available data about the use of Glomar responses, including the frequency and circumstances under which they may be issued.
So this Subcommittee has prepared a report that has been circulated, I believe, to the full Committee, making recommendations designed to improve transparency and understanding about the use of Glomar responses. And James is actually going to go through those recommendations. But before I turn it over to him, I wanted to take a second to thank Kirsten Mitchell, Alina Semo, Christa Lemelin, and Bobby Talebian for their comments and input on the report, as well as my fellow Committee members, Kel and James, for all the work that they've done getting it together so we could present it to you today.
JAMES R. STOCKER: This is James Stocker from Trinity Washington University. Thanks Kristin. And thanks for all your work as well. As you can imagine, this is a rather polarizing issue in some ways. While generally both members of government agencies and of the requester community recognize that Glomar responses are legitimate and acceptable and appropriate under certain circumstances, there is a significant amount of skepticism from the requester community about the way that they are used. And so our recommendations, which I'm going to go through now, are designed to try to get at some of the sources of this skepticism. So I'm going to go through the four recommendations one by one. I think we have them on the slides, is that correct? So, if we could just go to the first recommendation.
Okay. Here it is. I would note this, I'm going to read the text of the recommendations. Some of them have been slightly paraphrased I believe to fit on the slide. So I'll read out the full text of the recommendation as we've made it in our report. Number one, we recommend that OIP issue guidance to government agencies that they use the internationally recognized nomenclature of neither confirm nor deny, NCND, to refer to Glomar responses. FOIA's purpose is to make the government more transparent and accountable to its citizens. And the use of terms of art or jargon can make this more difficult.
We particularly think that the term Glomar itself is problematic. Why? Well, it refers to the name of a specific submarine involved in a court case and that court case originally had to deal with exemption (b)(1) related to national security. However, nowadays the Glomar response is used in response to many different types of FOIA exemptions, including regarding privacy. And it's also spread beyond the federal level to state and local authorities. So Glomar as a term is somewhat misleading. And that can act as a barrier for ordinary citizens and average requesters who are not deeply steeped in the history of the FOIA.
The first question that anyone asks when they hear this term Glomar is what, Glomar, what is that? And that requires a lengthy explanation. And our impression is that this can act as a barrier to responding and reacting to Glomar responses.
We would note that in practice, the term “neither confirm nor deny” is used in many places, including in government documentation on the subject. So if you read through the executive order on classification or Department of Justice and OIP guidance on the subject, usually in the text, the term neither confirm nor deny is used. But the term Glomar is also used from time to time, in particular when referring to court cases. We feel that using the term neither confirm nor deny will help to make the concept clear to all involved.
So going to our second recommendation now. If we could put it on the slide. We recommend that OIP requires standardized tracking and reporting procedures for NCND responses. That is Glomar responses. I'm continuing here with our recommendation just to make this clear. Government agencies should be required to track and report on an annual basis the total number of NCND responses issued. Whether these NCND responses were in whole or in part, the relevant FOIA exemptions that justify Glomar responses and the number of corresponding cases in which these were used. The number of NCND responses that have not been affirmed on administrative appeal and the number of NCNC responses that have not been upheld in a court by a court in litigation. We also recommend that the Department of Justice should track and report on an annual basis, aggregated data on NCND responses as reported by agencies.
Congress does not currently require government agencies to track and report the use of NCND responses separately from other types of responses. Whether they are included generally in full denials based on exemptions. At least this is what the Department of Justice through OIP recommends. They recommend that NCND responses be reported as full denials. However, our Subcommittee was not able to ascertain whether all agencies follow this practice. So there is a lack of data out there about how often these neither confirm nor deny responses are used. Certainly, there is an impression that their use is increasing. There has been a term coined for this so-called Glomar creep, which refers to the increasing use of neither confirm nor deny responses in federal government, as well as it's spread to other branches, or excuse me, at least to other agencies within government and to the state and local level as well.
Tracking data on the use of NCND responses will help the public better understand trends in these areas and their under underlying facets. Now to be meaningful, the data must be sorted and categorized. For instance, some agencies include a partial NCND response in response to every FOIA request. If you count this as a single NCND response, it will invite the number of Glomar responses that are actually being used. So for this reason, we believe that agencies should report FOIA data segregated by category, such as whether or not the NCND response is full or partial. And then they should also sort the number of NCND responses by exemption.
However, because we don't feel like we have a good handle on exactly how these responses are used across government, we believe that at least in the short term, agencies should be allowed a certain amount of leeway in how they report these responses. In other words, they should look at their own practices and figure out what the best way is to report them.
In recommendation number four, we recommend further investigation into the issue of Glomar responses, neither confirm or deny responses. And we suggest that this be one of the things that the investigation look into as well. However, right now, the subcommittee did not feel comfortable going into too much detail about exactly how these responses should be tracked and reported.
We have here on this slide, some of the details, if you all would like to have a look at it, about what we're asking government agencies to track and report right now. But we do recommend that DOJ through OIP include NCND responses in its annual summary of agency annual reports so that there is a picture of how this practice is conducted across government.
We can move on to the next slide now. Our third recommendation is that government agencies provide information to requesters on their websites regarding circumstances that will likely result in an NCND response. And where possible, recommendations on how to avoid such a response. Government agencies already have a duty to provide the public with information on how they implement the Freedom of Information Act. For instance, there are explicit requirements in place for government agency websites regarding the FOIA. However, government agencies are not currently required to include information regarding NCND responses.
Some agencies do this already. So for instance, if you go on the CIA website, there's a list of guidelines and it's online FOIA reading room that includes several mentions of how they use neither confirm nor deny policies. However, there's not a general policy statement on how NCND responses are used. For many other government agencies, there's no mention of this at all. So you could file a FOIA request and receive a neither confirm nor deny response and be totally surprised by it or not have any awareness that this is a possible response.
So we suggest the following guidelines for information be provided in the public. This is not in the text of the recommendation itself. This is in the explanation of it, but it provides some ideas of how agencies could proceed. The agency should attempt to describe all circumstances that will likely result in an NCND response with as much relevant detail as possible. The agency should advise requesters on how to avoid an NCND response if possible. The information should be clearly written in plain language, understandable to a non-expert. And we suggest that an ideal place for such a discussion is in the FOIA reference guide or handbook. We recognize that this will be challenging for agencies, and we could go into this in more detail in the discussion.
For instance, if your goal, this is an NCND response, is to avoid revealing information about so-called sources and methods, you may not be able to go in a large amount of detail about what those sources of methods are, because that would actually reveal what the source of and methods are themselves. However, you may be able to discuss the practice to some degree. So we're not getting into too much detail here about what specifically agencies should be doing, but the general thrust of our recommendations that they should be providing more information than they do now.
Okay. We can go on recommendation number four. Our final recommendation is that the Archivist of the United States direct a relevant organization, such as OGIS or the Information Security Oversight Office, or if necessary recommend that a relevant organization, such as the Government Accountability Office or the Intelligence Community Inspector General first conduct a review of the use and practice of NCND responses across government. And second, formulate a set of recommendations to ensure that these responses are being used in a manner consistent with the goals of the Freedom of Information Act.
So as my colleague Kristin may or may not have mentioned, we did attempt as a Committee to administer a questionnaire to various agencies that we thought frequently used NCND responses. And being the Subcommittee on Classification, we particularly targeted agencies that we felt would be likely to use neither confirm nor deny responses in regards to exemption (b)(1) on national security.
However, we only received responses from a very small subset of agencies that we sent the questionnaire to. I think... I don't remember the exact numbers, but I think we sent almost two dozen questionnaires out and we maybe received six responses. And most of those responses were not full responses. We speculate a little bit in our report on the reasons for the lack of response, and we don't necessarily believe that all agencies were trying to avoid responding to our questionnaire, but it did ask for quite a bit of data and data that they may not have had on hand. But basically, this points to a fundamental problem is that in order to make recommendations about how to do NCND responses better, we need to have good information about how they are used at the present. Now, the first three recommendations that we offered address this in part, but we think that another agency with a professional staff and the relevant access, including security clearances needs to investigate further how this works.
We're asking that the investigation attempt to answer the following questions. What practices are currently in place across government for the use of neither confirmed nor denied requests? Has the use of these responses expanded over time? And if so, are there any discernible causes for such expansion? I just want to note here that the expansion of the use of neither confirm nor deny responses doesn't necessarily indicate that there is a problem, but it might. And so, we would like the investigation to look into this further.
What are the appropriate reporting practices regarding the use of these procedures? What categories should agencies use when reporting NCND responses? What data would agencies themselves find useful to collect? And we offer this suggestion in particular because we believe that an investigation such as this could help agencies to better understand themselves how they track or better understand themselves how they use these responses. Under what circumstances do agencies issue NCND responses without conducting an initial search for records? Under what circumstances do agencies conduct an initial search of records before issuing an NCND response?
Based on the findings of this review, the investigatory body should make recommendations, aimed achieving the following goals: Ensuring that neither confirm nor deny responses are being used in a manner consistent with the goals of the FOIA, implementing reporting requirements regarding the use of NCND responses, improving communication about NCND responses with the public, reducing the unnecessary and inappropriate use of the NCND responses, and ensuring that agencies only issue NCND responses when conducting an initial search for records, when absolutely necessary. The recommendations should be addressed to both the Congress and the executive branch.
So those are our recommendations. At this time, we'd love to hear any feedback or questions from members of the Committee. Thank you very much.
ALINA M. SEMO: James. Thank you very much. Great presentation. A lot to think about, and I'm going to turn it over to Committee members to ask questions.
BOBBY TALEBIAN: This is Bobby. First, I just want to say thanks so much James and Kristin and Kel for all the great work you did on this and for sharing the white paper. I just had two comments and then one question. So maybe I'll start with the comments and leave it at the questions. First, I want to say I do appreciate having more data on this topic and I can see that that would be helpful, but I do want to push back just a little bit on agencies properly reporting on it with the current existing guidance. As you know, we have comprehensive guidance to agencies on these reporting requirements, and we do provide refresher training every year to the agencies that are managing this data and reporting to us. And also, agencies validate, and we validate the data to make sure that it's as accurate as possible. Anything specific to this, for example, and we have seen in the other disposition category, an agency put in a Glomar response. We would go back to verify that that should be a full denial. So, I wanted to push back a little bit on the data not being accurate, but that's separate of course from more data being helpful.
Second, as far as the conducting of a search, there are instances where the agency will know without having to conduct a search that the existence of a fact is exempt and that's where really Glomar comes.
So, I don't necessarily believe that not conducting a search when the agency knows that the information is exempt, the existence of it, is necessarily wrong or is wrong. I should say that. And then finally my question, as far as the first recommendation, I kind of hinted at this, I think a couple of days ago. I'm interested to see, were there examples that you saw or are there examples where the agency is describing their withholding, as Glomar, without explaining that they're neither confirming or denying the existence based off an exemption? Of course, I understand that we don't want to use that type of nomenclature necessarily when responding to the public or in public to requesters who are not familiar. But I'm not sure that the internal use of it by government agencies that have been using it for years has a significant impact. So, I just wanted... what your thoughts were more on that if you don't mind.
JAMES R. STOCKER: Okay. Thank you so much, Bobby. This is James Stocker. And if the other members don't mind, I'll respond to at least some of that. First off, let me say, thank you for your comment on reporting practices. It's great to hear that OIP is monitoring this carefully and verifying that government agencies are reporting these as full denials, which is what is recommended. And I think required, as you said, by the DOJ. It's good to know that it's being validated. I think that this concern was in part sparked by the lack of responses to our questionnaire, but it also raises the question of how other types of Glomars are reported, for instance, partial Glomars, right? Are those reported as full denials? If something is partially Glomared, then responses... but some records are released, even though it's partially Glomared, I think that there are big questions about how this works and how it's reported, and that's why we're asking for additional data.
So, the line between asking for additional data and current practices can get a little blurry. Our goal with this recommendation though, is ultimately not to criticize, but to think about how this could be conducted better. And so, I think that we're on the same page there. On conducting a search, is not conducting a search necessarily wrong? Well, no, I don't think that the Subcommittee is suggesting that not conducting a search is wrong in all circumstances. However, there is an impression, and this is one of those impressions that maybe the requester community has.
That's difficult to validate empirically because we don't necessarily have data about this, but the impression is that it's much easier for a government agency to neither confirm nor deny response than to actually go through the effort of conducting a search. So if there may be an incentive to use this response, and we're not able to substantiate that in all cases, although I think that some members of the Subcommittee might have personal experience that they could share. I'm looking at one colleague in particular right now that suggests that this might be the case, but nonetheless, I think that it is important to search a case.
So, there are reasons to conduct a search that are beneficial. And I might let my colleague talk about that here in just a minute. And then finally, on the first recommendation, you ask if there are specific examples of use of the term global in communications from government. No, I don't think so. If you, at response letters, for instance, I have not seen any that use the term Glomar, right? So, it's true that there are not responses being sent directly to the public. However, agency websites do often mention the term Glomar. So for instance, the FOIA updates published by OIP, the OIP guidance on Glomarization, those are using the term Glomar, and those are documents that are intended, of course, for government use, but also for non-government use as well. So, we believe that standardizing the use of this term would be ultimately useful.
I will say that within the Subcommittee, there were initially some questions about whether or not this recommendation would really make a large difference. And I would say that of the recommendations patients we're making, this may be the least essential one, but I do believe that it will make it more useful. In part because it helps to demystify what's going on. I mean, one of the problems, philosophically, at least from my perspective is that we see the term like Glomar and it just seems so extraordinary. It seems out of the ordinary, it seems like there's just something happening that we're just unable to comprehend and for an average person not steeped in the case law it may be a deterrent to say further appealing something or revising your request and proceeding further. So, using terminology that is more comprehensible is one step towards addressing that. I hope that responds to your comments.
KEL MCCLANAHAN: And this is Kel as the aforementioned colleague that he was referring to, one of the reasons that the search thing is an issue, is that if you file enough requests with agencies that tend to do Glomars, you start to notice a few things. And one of the things that we're hoping that this data gathering would quantify so that we could decide is it just all the agencies hate me, or is it that they do this as a blanket policy, are these instances where you don't have agencies that just reflexively Glomar anything about a particular topic. And for instance, I'll give a hypothetical example, let's say that OIP is one of these offices and if I file a... or I'll use FBI, cause OIP is too small, FBI is a big agency.
They have a big FOIA office. This is the example I used when we were talking about it in the Subcommittee, that if I file a FOIA request for all records about Alina Semo, they will Glomar it because whether or not they have FBI records on her is a privacy matter. That is, what I would argue, a legitimate argument. However, if I file a FOIA request for all records about Kristin Ellis, they will also Glomar it giving the same exact form letter saying, because it's a third party, you need this, this, and this. And they won't even bother to check that she is a known FBI person who is publicly known to associate with the FBI. They will just go, oh, third party, Glomar. So, we're trying to narrow down say, if there are things, there are these places where, and it's not just privacy, it's intelligence, it's choices, the methods, classification.
If you do this enough, you see a lot of reflexive Glomarization of things that if they are pushed, like if you go to court or if you appeal or something, they'll turn around and say, "Oh, sorry, here are some records we could give you. We didn't look for it because it Glomared." But they don't do that until you push them to that point. But we are having difficulty quantifying, is it just a couple of agencies that do this, or is this a widespread thing? And how do we make it so that those agencies don't do that. If there are established guidelines, that if it is a third-party request, you must search to see if there are any publicly acknowledgeable records about that person before you Glomar it, you must do sort of the minimum due diligence as a FOIA officer before you assert we can neither confirm nor deny.
BOBBY TALEBIAN: Thanks, James. Okay, go ahead.
ALINA M. SEMO: Bobby, I'm sorry. I don't know if you have a follow up question. Allan has gracefully been waiting. He has his hand up, but I want to allow you to ask any follow up questions first.
BOBBY TALEBIAN: No. No follow up questions. Just a couple of follow up comments for consideration. I just want to say again, reiterating that I think additional data of course is always good and I'm not pushing back on that at all. And of course, in your example, Kel, I think you're talking about the application of the exemption not being accurate, not that necessarily that a search had to be conducted to reach that conclusion, but pushing back a little bit, again, data can be helpful in maybe demystifying some of this. So, I agree with that. And then going back to the first recommendation, I appreciate the context. I also think I side on not really necessarily agreeing with that recommendation because I don't think it's going to be impactful, but I do strongly agree that even if the term Glomar is used, it should be used in connection with the neither confirm nor deny. So, thank you so much.
ALINA M. SEMO: Thanks Bobby. Thanks. Allan, you've been patiently waiting your turn.
ALLAN BLUTSTEIN: Thank you, Alina. This is Allan Blutstein from America Rising Corporation. I want to quickly commend the Subcommittee members for a very informative and well researched report. Just a few quick comments. I think I agree with Bobby about recommendation one and the use of the term Glomar response. Every practice area has its nomenclature. And I'm not sure that Glomar is really that more problematic than the use of the term Vaughn Index. There aren't a lot of these expressions in FOIA, and this is a seminal case and a fun entertaining background with Howard Hughes and a submarine. And I'm not sure it's necessary to torpedo it, to use a bad pun. The public understands what Miranda rights are, Brady violations.
I'd be sad to see this term phased out as long as, like Bobby mentioned, there's the appropriate context. Agencies and courts shouldn't assume that readers understand these expressions and the government has no shortage of abbreviations and acronyms and NCND doesn't exactly roll off the tongue. And I understand that it's used in Great Britain and some other countries, but I don't think we should change our nomenclature to... I mean, we should celebrate our differences. The rest of the world refers to football when we use soccer, they use the metric system and we don't. I just don't see that this is terribly problematic. I mean, I wouldn't die on this hill. It wouldn't be the end of the world, but I'm not sure it would be the end of the world if we drop this recommendation. Other than that, with respect to recommendation two, two A Roman numeral four and five, these seem to me, I'll defer to agency employees here, but agencies don't track this information for any other exemption, and I'm not sure it's what warrants special treatment for Glomar responses.
I'll leave it at that. And lastly, maybe this is just a concern about phraseology, but I'm not sure agencies should be giving legal advice or strategic advice about how requesters can circumvent exemptions. Sure, agencies should advise requesters that they can submit proof of death or a waiver, or if there's an Exemption 6 or 7(C) Glomar, but in terms of giving strategic advice, I'm not sure that's the agency's role. I'll end there. Thank you.
KEL MCCLANAHAN: So, this is Kel. I'm going to leave the last one alone, because that really wasn't my baby. James can talk more about the guidance, but to the idea of the two A five item that... and for those of you playing along at home who don't have the document, this is that the agency should report the number of Glomar responses that have not been upheld by a court. And two A four is that have not been upheld on appeal. The reason that we put five in is it was originally a one-part thing that said appeal or court. And we decided we needed to separate that out into two. But the reason we were talking about court in general, in the first place was... there are two ways of looking at the current use of Glomar over the last 30 years, one is that it's just fine and it's just the right amount.
The other is that it's being overused when it shouldn't be. And those of us who adhere to sort of the first camp of it's fine, then yes, there's no real need for any more information about it being overturned because it's probably being overturned the exact right amount of time, as low as possible. Those of us who believe that it is being overused, that it is being an issue that's being abused. And I will be here to criticize. I mean, James said we weren't here to criticize. I'm here to criticize. If the Glomar system is being abused and we or anybody else ultimately asks for some form of reform of it, which would be the next step. If the data supports our reasoning, then one of the things that we will have to grapple with is, well, you say it's being abused, but the agency says it's not.
And who are we, members of Congress, to sort of believe you over them? Whereas if we say it's being abused and it's being overturned a lot in court, then it's not just me, random person talking to Congress versus Bobby Talebian, it's me and five district court judges against Bobby Talebian. But on the other hand, if it turns out that it is not being reversed a lot in court, that could support the argument that it is being used the right amount. It could also signal, based on the other data, the possible outcome that, well even if an objective viewpoint looking at this, based on all the data we collected would say it's being overused. It's still not being overturned in court. Well, then that might mean that the court review needs to change. That the level of deference or the burden of proof or something like that needs to change.
If the court results aren't the same as our results, or Congress' results or whoever studies this data. So, either way, it's a point of data. Nobody asks for information about how many times (b)(3) has been overturned in litigation o r(b)(5) has been overturned in litigation or (b)(7) has been overturned in litigation because those aren't A: super hotly contested items all the time. And B: an instance where there is even less information than usual for people to judge on. Glomar when you get to court, many Glomar declarations say, we found that the fact of this, and I'll use a specific example. A CIA declaration that I thought was remarkable, and the court disagreed with me where the CIA declaration said, the fact of their existence or nonexistence of responsive records is classified because it could reveal intelligence sources methods, intelligence sources methods are such things as A, B, C, and D.
And that was it. It did not say that this piece of information was A, B, C, or D. It just said intelligence sources and methods are important. Here's four clear examples of low hanging fruit that everybody would agree with. Now give us Glomar.
And the court said, okay, I trust you. That is problematic in some of these cases, especially when we later get more information that said that that wasn't exactly an accurate representation. And I wouldn't say that if we were investigating (b)(5), we wouldn't say that they should probably do this as well. The reason we're asking for it for Glomar is because we happen to be looking at Glomar right now. We might look at something else that may be a trend, and now they have to report losses and litigation on all exempt seems down the road. I don't know. I'm not sure that would be a good idea. I'm not sure it would be a bad idea, but we're talking about Glomar today, and that's the one that is in desperate need of more information about how it's being implemented, both by the agencies and how it's being reviewed by the courts. That's my two cents.
BOBBY TALEBIAN: Hi, this is Bobby again, and I want to thank Allan for his comments, Kel for your response. One thing, and I wasn't looking into detail as far as line level of data that we would maybe want to collect on this topic. I'm keeping an open mind, but as far as any data on litigation that we already have, that's already freely available. You can pull that up. OIP reviews every case decision that's issued. We provide summaries of those decisions by topic, Glomar being one of them, and they're all tagged. So, you can search and pull up all the cases where Glomar is an issue, see where the court's landed on that. So that's not data that's hidden to us. And you can use that for any exemption, not just Glomar upholding or not upholding of Glomars.
ALINA M. SEMO: Jason had his hand up, had a question.
JASON GART: Yes. Jason Gart, History Associates Incorporated. So very interesting. Thanks, James, Kristin, Kel. Very interesting direct recommendation. I guess just one kind of historical comment, one futurist comment and then I guess a question. James, you had mentioned that Glomar is a submarine. It's actually the vessel, the exploration vessel, and it's huge obviously. And the submarine was a Soviet submarine, K1-29. But I think that's important because we talk about language and the importance of how you describe things. And I would say that, at least for me, who's not as up to date or up to speed on the actual legal issue. I think that the terminology... if you get a response as a requester and the response is neither confirm nor deny that describes what's happened to you as a customer, as someone that's put in a request and tried to get a response.
So, I think for me that's the language that should be used. And again, that's as a commercial requester. I say that as a commercial requester, someone who hasn't litigated. And then my second futurist question is Bobby, you mentioned that it's important, additional data's important. And I guess, what's your recommendation to gain... Kristin, how is that better information from the agencies. I assume you sent your questionnaire. It was prefaced with the fact that you're a Subcommittee, you're working with OGIS. And I would say that I think in your draft, you said you sent the questionnaire to 23 people and only six responses. I mean, again, I would say that's disappointing of those that work inside the federal government to not actually fill out the questionnaire and help in the process. So, what would this suggestion be to a future Subcommittee or future FOIA Advisory Committee on how to get better responses to help you actually build a better recommendation?
JAMES R. STOCKER: Sorry, this is James I can respond to that unless somebody else wants to take that. If I may, I'll just respond to sort of several comments at once. I'll start with Jason maybe, and then I'll go back to Allan who made some very good comments that deserve a response. So first, I'm a historian too and so I thank you for the corrective on that. It was actually the ship or the drilling platform that was looking for the submarine, not the submarine itself. So that's certainly true, but I also agree with your comment that it should be described as it is to the extent possible, and it is a neither confirm nor deny response. And that's why I prefer the topic. That's why I prefer that term. Allan expressed an attachment to the name, “the Glomar” and the story.
And I do understand that. As a historian I love stories, but I think there's a dividing line here on how people feel that I've observed when I've discussed the possibility of recommending a name change. It seems that attorneys and litigators are particularly attached to this comment in part, because it's so often used in court cases, whereas others seem less attached to the cases or less attached to the name, maybe because they're not dealing with the court documents around that. And so that could partially explain why some people maybe prefer the name Glomar. I just think it easier to use, a simpler term where possible, and yes, you're absolutely right. We use terms like Miranda rights and others that are terms of art, but people have a good understanding of what Miranda rights are.
I think if you look at pop culture, Miranda rights are everywhere. We have a good understanding of what they are and while Glomar occasionally gets attention, I don't think that it has that same level of recognition as some of these other concepts. So, I still think that there's a good argument for recommending that one particular term be used, even if I may not be able to convince other people with that. Jason also noted that it was disappointing that only six agencies responded. We were disappointed too. We do also recognize that we were asking for a lot of data and we were asking for it on a short turnaround period. But in a number of cases, we didn't even get a response to it. And in one case, one agency actually treated it as a FOIA request.
And basically, just assumed we were making a FOIA request and didn't even sort of pay attention to the text that said who we are and what we were asking for. So, yes, I agree that that was disappointing. In recommendation number four, we ask another government body to take over the investigation, whether one under the National Archives or outside of the National Archives. And we note particularly that we think it should be made mandatory. And I think that's the only way that you're going to get some agencies to respond to is if you make it mandatory. And that's why to really get answers from say, some agencies in the intelligence sector, you may have to have the intelligence community inspector general doing the investigation because a request from them cannot be ignored, or at least cannot be ignored as easily.
So, I hope that addresses that. Finally, just briefly, I'll admit that we may or may not want to be asking agencies to specify how to get around FOIA exemptions. I do understand that. I don't think that that's what we're asking for. I don't think we're asking agencies to help others to violate these exemptions. We're asking them to help people to get access to documents that they should have a legal right to. Right? So, for instance, if documents are unclassified, there have to be ways of accessing them to make sure that they get done. I'm reminded of, there's an article on the CNN website recently about a request regarding James Brown to the CIA. Basically some CNN journalists seemed to have filed a FOIA request with the CIA, for any documents about whether or not the agency conducted any surveillance on James Brown overseas, you know the singer.
And they Glomared it basically, while also saying that they had conducted a search of unclassified records, and they didn't find anything in their unclassified records, right? It was good that they did this search of their unclassified records, even while they felt that they needed to Glomar records about this individual in particular. Now whether or not they should be releasing records or doing more of a search or what kind of search of their classified records, that sort of another question, but the fact that they conducted a search of these unclassified records is something good and something to be encouraged.
I don't think that they treat all requests for records about individuals in that manner, unfortunately. And so, if there's a way that a requester can phrase their request to get a response that involves a search for records that may possibly be released, agencies should be advising about how to do that. And even more so in cases that don't affect national security. So, for privacy, for instance, or law enforcement investigations, things like that. We're not asking agencies to help anyone to violate the exemption. We're asking them to help get access to records that requesters have a right to.
KEL MCCLANAHAN: And this is Kel, I can sort of back up on some of that. So, it's important here that we know that even though we are the Classification Subcommittee, our recommendations are not for just Glomar, for classification matters. You know, we're talking about Glomar usage period. And while everyone knows that Glomar is used for classified material and Glomar is used for privacy material, and it's also used for other things, but the discrepancy often comes down to, for instance, how much information is given about how to satisfy the agencies need to not assert a Glomar for different exemptions.
For instance, the FBI, as much as I bash on them a lot, they're pretty good about saying upfront, we want you to give proof of death, a privacy waiver, or overriding public interest when you submit a third party request for records about somebody. That's a (b)(6) (b)(7)(C) thing. They're pretty good about giving that guidance. Other agencies are not always so good and even FBI is not always so good when it comes to other exemptions. Now use sort of what terminology you would use. For the longest time and it still goes on in some agencies, but many intelligence agencies that will reflexively Glomar a lot of things.
The dirty little secret is that they will Glomar something automatically if you ask for records about a person. But they will not because the subjects of who we surveil and who we are interested in, if 4.7 billion people filed FOIA requests, they'd be able to build a heat map of who we looked at and what our intelligence priorities are.
That's the argument that goes into the NSA, CIA, et cetera. But if you ask for records about an event that, that person was at the middle of, they won't Glomar it often. And this is something that they don't... I called it the dirty little secret, it's a poorly kept secret. I mean, they're pretty open about it in many cases. And I've been in fact told by FOIA officers... if you want to know one of my cases, I was going for records about the former head of the East German state police and secret police. And the agency basically told me, if you ask records about this guy, we're going to Glomar it, because we will always Glomar records for a guy, but if you ask for records about the fall of the Stasi on this day, that he was in the middle of, then we'll give you records about that or at least we'll conduct a search. So, guidance like that, if an agency has a policy that we automatically reject things because of one reason or another, then their website should say, "we have a policy of this, and here's the information you would need to give us in order for us to not trigger that policy."
ALINA M. SEMO: Okay, Tom Susman has a question or a comment.
TOM SUSMAN: Yeah. First, I noticed in the chat early on, one of the attendees, Freddy Martinez, raised the question about whether there's any possibility of splitting out, whether a Glomar denial is based on (b)(1), (b)(3), (b)(6), (b)(7), in terms of telling the requester, because frankly, in my personal experience is you don't win national security cases and that sort of then, goes to the litigation issue, which Kel may have an insight on, which is some of, many of the cases where the court has challenged a Glomar response result in zero documents, anyway. And my impression is that most of that's in the national security area, maybe some in law enforcement, but probably not much in privacy, but I just, that was something that I wanted to sort of get the Committee, uh Subcommittee members sense of.
KEL MCCLANAHAN: I'll bite. I don't understand what the question is or if there was a question.
TOM SUSMAN: Well, I think the first question was, does it make sense to require disclosure by the agency when it denies based on the Glomar response, exactly what exemption it would be relying on underneath, so that it gives you some idea of whether it's worth challenging?
KRISTIN ELLIS: I think... This is Kristin, at the FBI, I think it is already required at least in litigation, you have to tie a Glomar to an exemption. It might be that exemptions are grouped together, for instance, most agencies that assert a national security Glomar usually will cite (b)(1), (b)(3), if they're protecting intelligence sources and methods information, since both exemptions cover that. Same thing with a law enforcement agency protecting privacy information, they're usually going to cite (6) and (7)(C), but Glomar doesn't exist on its own. Glomar is an assertion of an exemption, it's just a unique way of asserting an exemption. So, if agencies are not doing that already, they absolutely should be, but there shouldn't be a circumstance under which it's just cited, without tying it to an exemption or more than one exemption.
BOBBY TALEBIAN: Absolutely, and I just want to... That requirement's no different administratively than it is in litigation.
ALINA M. SEMO: Michael Morisy and Patricia Weth. We both have their hands up. Michael, if you want to go first.
MICHAEL MORISY: Sure. Thank you so much. Thank you. This is Michael Morisy, on the FOIA Advisory Committee, I work at MuckRock. I think there's... I think this is a really helpful area to kind of dig into, and I really appreciate the working groups' efforts in this area. I do think that there's just immense confusion and uncertainty around Glomar, even by really experienced requesters. I think, as kind of mentioned, the agencies have actually seen this blow up in their face when there is no actual document probably underlined there and somebody misinterprets it. So, I think improving that language is, I think, a really big opportunity both to make requesters’ lives easier, but also to kind of help agencies actually do their job with minimal confusion among the public. That's why one of my favorite pieces of this recommendation is just improving sort of the language and pointing to the CIA's documentation around how they use Glomar.
I would love to see more agencies do that, not just on their reading rooms, which I think a very small number of requesters actually use, but starting to put more of that language in the response letter, as well. While I agree with Allan’s point about the beauty of the Glomar moniker, and I'd hate to see that completely go away, because I think it is an illustrative story. One thing I did find is that agencies don't necessarily just say, "oh, this is a Glomar rejection," but they will say, instead of neither confirm, nor deny, they'll say, "any responsive documents would be exempt, so we're not going to search," or they'll use different phrases for that. I do think that has an impact both on being able to research these issues, as well as requesters being able to find resources. If you can Google “neither confirm nor deny,” you’ll get some really helpful information.
If you Google, “any non-public records responsive to your request would be categorically exempt from disclosure,” you're probably going to get a lot fewer resources. So, I think pushing agencies to standardize how they address these exemptions, I think that would be worthwhile. I think that is something that would make it easier to kind of understand this issue going forward and also help requesters in the short term.
Then, finally, and this might be... I'm on the Process Subcommittee, so this might be just our kind of process perspective on things, but I think we do ask agencies to do just this enormous number of reports and I think that data is really helpful. I wonder if this is an opportunity to kind of look at, can we push agencies and particularly agencies’ FOIA processing systems to release more bulk data, so that rather than having to do all of these specialized reports, could we get more granular data about the number of exemptions that are applied on individual requests, so that we can start seeing sort of, maybe today it's Glomar, maybe tomorrow it's another issue, how often different agencies apply these and kind of do more advanced analysis, rather than just giving them another sort of aggregate report to develop and fill out going forward?
But I do like the gist of these recommendations. I do really like standardizing some of the language and particularly, giving agencies backing and support and a little direction in terms of putting together more readable, plain language responses, so that they can interpret what a Glomar is out of the gate. So, thank you again. I think this was a really, really helpful investigation and I really do hope we get some of these recommendations passed into our final report and recommendation to the... Yeah.
ALINA M. SEMO: Thanks, Michael. Kel has been waving at me, I think he wants to respond to Michael.
KEL MCCLANAHAN: Just one particular point, something that you raised that we didn't really discuss that much, and it might be worth a future discussion there, and this is the lawyer in me talking, there is a difference, a distinction between a categorical exemption and a Glomar response. While I do definitely agree now that you mentioned it, that this distinction needs to be made clear in an administrative letter, in a response letter, that is not what we're talking about here. So, in a categorical exemption, they're saying, we're not going to search because we would withhold everything. In a Glomar, they say, even if we have nothing, telling you we have nothing would be a... Would reveal that we were not watching Michael Morisy on the day that he committed this heinous crime.
So, that would reveal to him that he has been undetected, and he can escape crime, can continue to escape crime. So, it is... To a lay person, to sort of a normal, non-insane legal person, they are very closely related, and they may even seem indistinguishable, but from a legal standpoint, they are different. But I agree that they should definitely make clear that we are not issuing a Glomar response, we're just saying this is a categorical exemption, but that's sort of beyond the scope of this recommendation.
ALINA M. SEMO: Thanks, Kel. Patricia, you've been waiting so patiently.
PATRICIA WETH: Yes. Thank you, Alina. Patricia Weth, with EPA. First of all, I just want to thank this Subcommittee, James, Kristin, and Kel. This is, I can tell a lot of thought, a lot of time and energy went into it and it's really well thought out. I do have to say when Allan was talking, I felt like he was reading my mind because I echo all of his comments. For number one, recommendation, I don't see this as being that big of a problem. If it were the type of thing where agencies were, in their response letters, saying,” I Glomar this FOIA request,” that would be one thing, but agencies... Well, in my experience, no agency does that, they usually say they “neither confirm or deny” and will cite to the Glomar. So, I don't see that as being a problem, but one suggestion I have is you might want to take this number one and maybe merge it with your third recommendation, because I think that's a good recommendation, but it may get passed if you revise it.
This is where you suggest that federal government agencies, on their websites, explain what a Glomar response is. I do think that's a really good idea. Most agencies have a FOIA reference guide on their website and they explain the exemptions. I think it's a good idea to also explain what a Glomar response is, we neither confirm their deny, explain maybe a little bit about the Glomar case, but I think the way number three is written now, I would have concern about it getting past this Subcommittee because you might want to strike the language and where possible, recommendations on how to avoid such a request, such a response. I think... Anyway, these are just my suggestions.
For number two, where you're asking for information to be collected regarding neither confirmed or denied responses, I echo Allan comments regarding Roman numeral four and five. Regarding Roman numeral two and three, as somebody who's responsible for doing the annual report at EPA, and also formerly at the National Labor Relations Board, I'm very familiar with our annual reports and spend a good chunk of September, October, and November going over them. We don't do this for the exemptions, so I'm not sure how collecting this information, Roman numeral two and three, for neither confirmed nor denied would be helpful.
Lastly, the fourth recommendation that you have, I love getting guidance from OGIS and DOJ on all things FOIA related. So, I think that's always helpful and that is my two cents, so thank you for the time.
JAMES R. STOCKER: Thanks very much for that, Patricia. I wonder if somebody else could respond. I feel like I've been talking a lot, this particular meeting. Kristin, would you like to respond?
Well, I guess I could. So, Patricia, thanks very much for those comments. I appreciate the attention you paid to the detail in the report. On number one, I see how having an explanation on the agency website could be helpful, but the response I might give to that, another way of approaching this is that if agencies are already doing this, if they're already using neither confirm nor deny, then it won't be much of it asked, asked them to use this term consistently, right? So, there just won't be much to do, and that will really simplify things.
Then, it also has the advantage, as Michael mentioned, of standardizing language across government and I think that's, the suggestion that Michael made, is actually... It's a good one and it's actually one that we could maybe emphasize more in this recommendation if we were to revise it. I'm not sure if we're going to take a vote or not today, but we could certainly really focus it a little bit more on this idea of standardizing the way that we talk about this. So, I do appreciate your comment, but if it's not much of an ask, then it doesn't seem like something that would raise a lot of objections.
On number two, I do think it would be useful to track this more specific data about neither confirm nor deny responses. So, were they in whole, or were they in part, right? Because like we said, there are many used... Many times, this is used in conjunction with other types of responses. So, it may be a full denial and then, a partial Glomar, or it may be a release of some documents and then, a partial Glomar, as well.
And if we code them all the same way, whether or not they're partial or full, we won't really have a good understanding of what is happening. Now, we do recognize in this report that this is an ask for agencies and we recognize in particular that it will require things like updating software systems, right? So, you have your FOIA software and I don't know exactly how it works, but I'm sure that somewhere there's a box to tick that says, is this a full denial, is it a rejection, is it...? Somewhere in there, you'll probably have to add the Glomar and maybe more than one option will have to be chosen. And this may differ from agency to agency, so we don't want to be too specific about how this will work on an information technology level, but if we don't track this more granular data, we won't actually have a good sense of what's happening. So, thanks very much.
KEL MCCLANAHAN: This is Kel. The one thing I will add is, and it's not necessarily about this recommendation, but about sort of all recommendations, but it applies to this recommendation number four and five, or sorry... Yeah, item four and five. Patricia's argument, part of it is, well, this isn't something we track and I'm going to vastly oversimplify it. So, obviously no offense to Patricia who I work with very closely in the Legislation [Sub]committee, but if we tracked it, we wouldn't need a recommendation. I mean, my personal view of the role of this Committee in this recommendation and in all the other recommendations is to identify things that need to change and recommend that they change. The fact that you don't track this is sort of the thing we're identifying, we're saying we should track this, that these are things that should be tracked, these are things that should be reported.
To James's point, yes, this is going to impose a new burden on an agency, but the question is, is it an appropriate burden? I think our position, at least mine and James's position and probably Kristin's, as well, but I can't speak for her, is that it's not an inappropriate burden because of the need. Every agency burden has to be counterbalanced by the need for the burden and in this case, we think that the need to be more clear on how Glomar is used and how often it is upheld, outweighs the burden of now you have to report on something you didn't have to report on before, but that's just my thoughts on that.
ALINA M. SEMO: Okay. I'm watching our time. It's 11: 30 already, so I'm very mindful of that and it's been a really great discussion. I really don't mean to cut anyone off, I think Bobby wanted to just respond to something that Michael had said earlier. So, Bobby, do you want to just make a quick comment?
BOBBY TALEBIAN: Really quick, just to point out to Michael's comment, I appreciate your comments, Michael, that in addition to the annual report, agencies post the raw data. So, that's, I think somewhat of the bulk data you're referencing, line by line, every element of what goes to report by request. Of course, that wouldn't include Glomar because that's not being captured in the FOIA reports separately. Then, just very quickly, I will say I did appreciate in the white paper, that it was this reporting, additional potential reporting was not specifically tied, necessarily, at first or at all to the annual report. I think, I'm considering, I'm keeping an open mind, obviously that this recommendation's aimed at OIP, and in a lot of ways, what we do in the CFO report would maybe be a better vehicle to better understand the need justified and the burden as far as reporting, as well. So, I wanted to let you know that that was a thought of mine and I appreciate that you had approached that and appreciated the burden on agencies when coming up with this recommendation. Thank you.
ALINA M. SEMO: Okay, thanks. I'm going to ask this Subcommittee co-chairs, I know we've had a lot of discussion today, James and Kristin, are you ready to move forward with a vote today or do you want to absorb everything that's gone on today, review the transcript after the fact and re-present at the March 2022 meeting for a vote? What would you like to do?
JAMES R. STOCKER: So, this is James. I am open to reviewing the many, many comments that Committee members had. We did hope for a vote today, but there have been so many comments that I think we need to at least consider them, in a Subcommittee meeting before we have a vote.
ALINA M. SEMO: Okay. I appreciate that, thank you. All right, well, I'm going to ask the Technology Subcommittee co-chairs, Allyson, and Jason. How much time do you all feel like you need to present? Trying to get a gauge on whether we should take a break now, or maybe we could go another 15 minutes to break around 11:45.
ALLYSON DEITRICK: I think ten, 15 minutes should be plenty. Jason, what do you think?
JASON GART: Yeah, I think so, as well. We can keep it short.
ALINA M. SEMO: Okay, great. I don't mean to rush you, so if you need more time after the break, we can certainly do that, too. Michelle, can you advance to the next slide please? And another slide, and another slide. Okay, here we are. All right, Jason, and Allyson, you're on. I don't know who's presenting. Go ahead.
JASON GART: Yeah, I'm going to present. Jason Gart, History Associates Incorporated, I'm going to present this morning and Allyson and I worked closely on our presentation. So, the Technology Subcommittee has continued to meet every two weeks. Since our last meeting in September, we've been working on two recommendations for the full Committee. The first focuses on enhancement that agencies can make for websites to facilitate a better experience, the request for community. This would build upon... This builds upon a recommendation from the prior terms of the Advisory Committee, specifically recommendation 2020 01, where OGIS will assess information about the FOIA filing process available on agency websites with the goal of informing further OIP guidance on how agencies can improve the online descriptions of the process.
As we discussed in September, we believe FOIA websites should include some baseline features, a listing of the type of records maintained by the agency, but then also a list of the type of records that they do not maintain. We think they should be linked to... There should be links to agency record schedules and any applicable Capstone policies, also some guidance or best practices for writing a FOIA request for the requester, for those that might not be experienced doing so and possibly even with agency specific examples, and then some guidance or description of the types of requests that would be considered overly burdensome by the agency are not sufficiently specific. Again, to help the requester do a... Submit a better request.
We're certainly trying to balance these suggestions with the reality that each agency has different needs and that we don't want to prevent agencies from going above and beyond our own recommendations if they're too restrictive. So, one issue that's come up in the last three months is that our recommendations have been overtaken by recent events and overtaken or benefited, I guess, depending on how you see it, which announcement that EPA will be retiring the FOIA online platform at the end of fiscal year of 2023, as a result, 20 agencies will be looking to transition to new systems. We feel, the Subcommittee feels that we're in a unique position to provide recommendations that reflect both the interest of the community and the federal agencies in perhaps, picking that new system.
We will be working on some suggestions to the agencies or some guidance that we will then circulate to the broader Advisory Committee on considerations of what type of new systems, what type of basic functionality considerations, and what type of wish items should be considered.
Then, our thought is that this list of recommendations could then be used by the commercial developers, those in the commercial software field to help create, modify existing systems, or even develop new ones to meet, not just the needs of today, but the needs of the future. Ultimately here, and I think something we've talked about before is that the goal here is that agencies to really keep the user experience, the requester experience, the customer experience forefront in their websites, that we want it to be easy to use and we want there to be information on there to help streamline the process to help work with the requesters to get materials released sufficiently.
Then, the second recommendation that we are focusing on is best practices for the release of records in standardized ways. Again, this is something we discussed last time. Again, the Committee, the Subcommittee is investigating whether records should, should be released in native format. But we also understand that the need of classified national security records may require special protocols and some of the issues that we've discussed internally, and we will certainly be raising to you all, is that with dealing with classified materials, agencies prefer a flattened PDF when releasing records and not their native format. Most agencies release emails, PowerPoints, and PDFs, although some do Excel spreadsheets, just as-is. Should emails be released or should be provided in PDF, or just as plain text files?
We think this is an important issue for both the Technology Subcommittee and then, the broader Advisory Committee, because it hasn't been covered by prior Committees. We predicted this is going to be a bigger issue, especially as FOIA agencies, for Federal agencies especially as agency’s implement NARA’s directive to transition to a fully electronic environment on December 31st, 2022. This again, picks up on the previous conversation that Allyson and I raised about metadata and how critical it is and the feeling that it should not be as stripped away, unless absolutely necessary when materials are released.
We also look to our state level document releases for those that are in the FOIA or open records that they do release metadata. So, that's where things stand for the Subcommittee. I ask right now, Allyson, A. Jay,, Kristin, Roger, did I miss anything or is there anything else we want to, you want to raise or flag? David? And then, I open it for other questions from everyone. Thank you.
ALINA M. SEMO: Jason, I don't know if anyone else had any interference, I didn't hear everything Jason said. Did anyone else have trouble hearing Jason? Yes? I see some nods. Thank you.
ALLYSON DEITRICK: I can summarize what Jason had said. So, a lot of - our original conversations within the Subcommittee had been about what recommendations we would make to agencies to improve websites, to best serve the requester community, and also to help agencies if requesters are told, okay, these are the types of records we're keeping for how long, these are types of records that this agency does not keep and for minimizing unnecessary requests, that type of thing, but then with the announcement by EPA that they're sunsetting the FOIAonline system at the end of fiscal year 2023, I think it is, but that presented an opportunity for the Technology Subcommittee to work with the requester community and the agencies to come up with suggested options for bare minimums for agencies to consider, as well as some wish list items.
That could also be used by the software developers to meet those needs. Then, we were also still going back with one of the earlier recommendations to look at best practices for the way to possibly standardize the way documents are released, but also acknowledging that certain agencies have concerns about accidentally releasing information that might be embedded, that might not automatically come out, if we were to release something [inaudible]. Then, we were opening it up to the floor for other Committee members, if you had anything to add or Subcommittee members, if we missed anything or Committee conversation, in general.
ALINA M. SEMO: Okay, great. Thanks. Any Subcommittee members want to add anything to the Technology Subcommittee's report? A. Jay is shaking his head no. Okay. Anyone else have any questions for the Technology Subcommittee before we go to break? Going once, going twice? Well, we certainly look forward to your best practices and recommendations, perhaps you'll be ready to roll that out for prime time in March. So, we'll see how that goes.
Okay. So, with that, I think we're ready to take a 15-minute break. If we could try to keep it to 10, that would be really great, so we could try to get back on track, but maybe as a compromise, we'll say 12 minutes, between 10 and 12 minutes. So, let's take a break right now and we'll be back soon. All right, thanks everyone.
EVENT PRODUCER: All right, ladies and gentlemen, welcome back. We will be proceeding at 11.
ALINA M. SEMO: All right. Hello, everyone.
EVENT PRODUCER: Unmute yourself, everyone.
ALINA M. SEMO: Thanks, Michelle. Sorry, I didn't mean to speak over you. Welcome back everyone. Hopefully, we have almost everyone back on camera -- the Committee members. We're going to switch things up a little bit from our agenda. I did advertise at the beginning of our meeting that we're going to keep things a little flexible. I have asked the Process Subcommittee to present next and Legislation will go last, but definitely not least. So, with that, I am going to turn it over to Subcommittee co-chairs Michael Morisy and Alexis Graves.
ALEXIS GRAVES: All right. Perfect. Good morning everyone. I am Alexis Graves, the director for the Office of Information Affairs at USCA. I am the co-chair of the Process Subcommittee along with my esteemed colleague, Michael Morisy, and also a member of the first-person FOIA Working Group. I am just so very excited to share with you guys, the work, the recommendations, crafted by our First-person FOIA Working Group, which was led by our colleague, Roger. Other working members included Tuan who so graciously compiled the team's thoughts and notes and pinned the recommendations circulated. And finally, what's certainly not least, we cannot forget our resident FOIA guru, Tom Susman. I want to start first with acknowledging and thanking all of the agencies and the advocacy groups that really provided their insight about their handling of, and their challenges with first-person access requests. We very much appreciate their time and attention to this issue. And as always, their feedback. We very much look forward to continued work with all of these groups.
I also want to thank former Advisory Committee member, professor and author, Margaret Kwoka, whose work really served as the framework for the recommendations being presented today. I think most of us at this point in the Committee are familiar with Margaret's work and the phenomenal job she's really done with highlighting how FOIA, as she says, "it can suffer under the weight of its unintended uses." And so, as an example of this, as many of you know, there's no discovery process, right? In the immigration court system as there is with the federal district court system. So a lot of times immigration lawyers use FOIA to retrieve those records needed to defend their clients. And so with that, it should be no surprise that our recommendation for discussion today builds upon that one previously set by the 2018 to 2020 term.
And in that just so you guys have a little bit of context, that one recommended that OGIS and the Department of Justice Office of Information Policy, identify those records frequently requested under the FOIA and or Privacy acts, by or on behalf of individuals seeking access records about themselves for the purpose of establishing alternative processes for access. We really saw this initial recommendation really advancing or achieving really two important objectives. First and foremost, we thought that it would ensure the timely processing of records that involve one's life and liberty, as well as their property interests. But secondly, it could also help aid some of our agencies in freeing up some very, very limited resources as well. Our working group saw this recommendation really as an excellent start, really kind of that springboard to address the access issue. But we did also feel that it looked at it from the 50,000-foot view, right?
So this term we wanted to give this issue a little bit more life. We wanted to do a bit of a deeper dive and put forward some specific recommendations. And so as a starting point, just so you guys have a little bit of background, a little bit of context, we surveyed a few of the agencies identify by Professor Kwoka as really having large number of these first-person FOIA requests, as well as those requesters who routinely conduct business with those agencies. And so this included the Internal Revenue Service, the Social Security Administration, entities within the Department of Homeland Security, specifically the United States Citizenship... I want to make sure I get the acronym correct. And Immigration Services, USCIS. And then of course, a component within the Department of Justice known as the Executive Office for Immigration Review. And they go by the acronym EOIR. We were very, very pleased to learn that some of these agencies have already taken significant steps to kind of provide alternatives to filing FOIA requests, to facilitate prompt access to some of these more frequently requested first-person records.
And just so you guys have some examples of that, the IRS we learned has created this tax transcript, which is essentially this summary document of tax information relating to [inaudible] filings. And so this was a huge time and cost savings to IRS's FOIA program, as they no longer had to search for multiple records across multiple repositories to respond to these requests. Essentially, the singular report encapsulated virtually everything and is now also conveniently available to the public via... Excuse me... a self-service online account.
Another really great example was from our own Committee member, Linda Frye from the Social Security Administration. Linda had shared with us that SSA receives a large number of access requests from folks seeking their applications for Social Security cards, claims, files, genealogical information. And so, a lot of these requests are flagged upon receipt, and then they're sent to this cadre or a special team of agency workers that aids the SSA disclosure team with processing on a part-time basis. This cadre is trained by skill disclosure analysts and their work is also reviewed by the train analysts once it's completed. So just kudos to IRS and SSA for their proactive action in handling these first-person access requests.
And so switching gears, in our review of our agencies, our team also found some opportunities for growth. And so again, I want to thank both USCIS, and also EOIR for sharing insight on their processes for handling their first-person requests. And so within USCIS, the A-files were identified as a record that should have some alternative access outside of FOIA. And for those who may be unfamiliar with the A-file, essentially, it's a collection of records maintained on a person that documents the person's immigration history. They're usually created within an application or a petition for a long-term or permanent benefit is received, or when there is some type of enforcement action initiated.
USCIS, they shared with us that they understand the importance of the timely processing of these A-files. And they certainly understand that the delays really have, in processing, really have grave consequences. And so, they advised that they have made significant progress on their backlog of these A-files since the filing of a 2019 class action by several immigration advocacy groups. In this suit, there was an allegation of routine violations of the FOIA statutory timeline. In that case, the court found that the failure to timely process really undermines the fairness of immigration proceedings, particularly for the vast number of non-citizens navigating the immigration system. And so, the court did ultimately order an injunctive release against USCIS permanently adjoining it from failing to adhere to the FOIA statutory deadlines for adjudicating these A-file requests. And so USCIS was required to submit recurring compliance reports to document their progress with the A-file back logs.
I am pleased to report that in their most recent compliance report, USCIS advised that it had reduced its A-file backlog from 21,987 down to 244. So that's really a really huge victory for that team. I want to ensure that our colleagues and also my colleagues on this working group that USCIS continues down this path of success. We want them to win. So, we did ask that they reconsider implementing an alternative to first-person access request. Our thought was that while the class action addressed specific individuals with like liberty interests, it will most likely end up delaying those records requests. A broader public concern for which the FOIA was intended. USCIS did advise that there would be challenges in identifying an alternative. Specifically, if not being processed by the FOIA team, then... they couldn't come up with another other viable option.
And so again, we look forward to continued discussions with USCIS. We see them as valuable partners with respect to the crafting of these recommendations. Another agency that we had the pleasure of speaking with was EOIR. Again, they receive about 48,000 to about 60,000 requests annually. And about approximately 95% of these requests seek records of proceedings. They're known as ROPs [records of proceedings] of respondents before immigration judges. These ROPs really kind of include everything under the sun. Hearing notices, applications for relief, exhibits, motions, briefs, hearing tapes, and then of course orders and decisions of the judge. So just a lot of very, very valuable information in these ROPs. Traditionally, these ROPs were kind of housed in paper and all across the country, which as many of you guys know who are processing FOIA day in, day out, making retrieval quite a challenge.
Our team was really, really pleased to hear that EOIR with some of its partners were already well underway, rolling out an electronic system, known by the acronym of ECAS. And the system is set up to essentially access and manage and store and transfer ROPs electronically and permit self-service access to DHS and also a representative of non-citizens in proceedings before EOIR. ECAS will unfortunately not be made available to the 46% of respondents who are pro se. These individuals will need to continue to submit FOIA request through EOIR. Again, just wanted to give you guys a little bit of context and a little bit of information about the work that we've been doing. Let's go ahead and dive into the recommendations.
And so, I think recommendation one is fairly straightforward, but I will go ahead and just read it. They are records relied on by an agency that affect eligibility for benefits or adversely affect an individual in proceedings should be made automatically available and not require first-person FOIA practice. And so I will just say with that, while many of these individuals at stake here may not have formal due process claims to broader access, right, forcing these individuals to resort to FOIA, kind of really undermines due process within their proceedings, as well as making accurate agency determinations.
With respect to recommendation two: record access should not discriminate against pro se parties. We certainly understand that it's not advantageous to push one in the direction of moving pro se, for anyone lawyers included. It can be a challenge to really kind of navigate that legal system, right? Particularly when your first language may not be English. But the reality is, as I explained before, we have about 46% of folks and for a whole host of reasons going pro se. And so, we need to come up with a solution to accommodate this larger class of respondents. Maybe some of them are thinking about seeking counsel, but maybe they need some underlying paperwork before the attorney decides whether or not to take on their case. Again, we certainly don't want to compound this issue. And so that is kind of a rationale for recommendation number two.
Recommendation number three: Agencies should use technology to leverage their effort to make first-person agency requests more easily accessible outside of the FOIA. IRS and EOIR as I had just described are both really great examples of how technology can really positively change the direct degree of a program. And so for that reason, we applaud them both for making and supporting the investment and demonstrating to their colleagues and peers and their agencies and partnering agencies that these types of initiatives really do have a huge return on investment. As we are all being directed to move toward a completely digital infrastructure with the OMB and NARA mandate in 19-21. We really want to urge agencies to think about how to really capitalize on technology to make the retrieval of records for this first-person agency records more accessible to all.
Recommendation number four: Agencies that receive frequent first-person requests can benefit from identifying the most commonly requested records and developing procedures for processing such records to promote efficiency and good customer service. With all of the agencies we discussed today, it's clear that they've all really assessed their queue to identify those frequent requested first-person requests. It's also really clear that they understand the correlation between expeditiously processing these requests and also customer satisfaction. I think what is really inspiring though, with the group surveys, is that you can really come up with solutions and procedures to kind of effectuate change and better serve customers that aren't necessarily so crazy expensive. Right? I think SSA is a perfect example of that. I just think that it requires all of us to kind of dig deep, be creative in our thinking and again, go outside the box.
With recommendation number five: Other agencies that receive frequent first-person requests should consider the cost and benefits of moving to proactive systems for disclosure, such as that modeled by other agencies, such as the IRS and SSA. And so, there were other agencies identified, Professor Kwoka, where first-person requesters routinely request records under the FOIA that do relate to eligibility for benefits. And so, two of those were the Veterans Health Administration, as well as the Federal Emergency Management Administration, FEMA. And so, agencies like these really should consider doing some cost benefit analysis of moving toward an electronic system that would essentially allow for easier access to the records.
So that is recommendations. I want to make sure that I open it to my colleagues if they have any additional comments about these recommendations. And then I think we may have some specific comments, correct Alina? About these from some of the agencies that we partnered with.
ALINA M. SEMO: Yes.
ALEXIS GRAVES: Perfect.
ALINA M. SEMO: James has his hand up, but he's the first-person I see. And Bobby has his hand up too. James, go first, Bobby next.
JAMES R. STOCKER: Okay. Thanks so much Alexis for this presentation and for all the other members of the Subcommittee for their work on this report. It seems like an excellent report. You all have done extensive research and it's nice to see a document that has so much work that's gone into that. Speaking from the perspective of the Subcommittee on Classification that just did a project on Glomar [responses], I wish we had the kind of access that you all have seem to have gotten. I was one of the drafters of this recommendation based of course, on the work of Professor Kwoka. And I'm really thrilled to see you all taking it further, following up on it so quickly, and developing it in a specific manner. I just had a couple comments about the recommendations. I noticed the recommendation section is much shorter than the analysis, which is not necessarily a problem, and maybe you're still in the process of developing it.
But I think that a couple of the recommendations could really benefit from a bit more detail. Particularly recommendation number two, where you talk about how record access should not discriminate against pro se parties. Most of the content of the recommendation itself seems to focus on the practices of EOIR and while that's a good example, it might be good to be a bit more specific about how record access would not be discriminated against pro se parties. Is it making online forms that are easy to deal with, that clearly outline the cost structure? Is it...? What is it exactly? Is it having a presence outside of the agency beyond just like a website interface? In other words, how do agencies go about making it easier to people that are representing themselves and not relying on counsel? And I think a basic principle of Freedom of Information Act should be that you should not have to have an attorney in order to get access to that information, right? So the more detail you can go into there, the more suggestions you can offer, the better.
And then on recommendation number four, the phrasing of the recommendation struck me as interesting. You say that “agencies that receive first-person requests can benefit from identifying the most commonly requested records and developing processes for processing such records to promote efficiency and good customer service.” So that struck me more as like a best practice than a recommendation. And while that's not necessarily a problem, I think if you're going to make a recommendation, it might need to be a bit stronger. So you might have to say, “agencies that receive first-person request should benefit or should identify the most commonly requested records.” This of course was the original recommendation from the 2018-2020 [FOIA Advisory Committee] term itself, that they should identify those most common records and then create new means for accessing them. So in a sense, it's either a best practice or kind of repeats what the original recommendation was. So that one may need a bit more attention as well. But again, I really love the direction in which this is going and congratulate you all on the great work. Thank you.
ALEXIS GRAVES: Thank you, James. And thank you for both of those recommendations. We will definitely keep those under consideration.
ALINA M. SEMO: Great. Thanks Bobby. You had your hand up.
BOBBY TALEBIAN: Thank you. Thank you, Alexis, for the wonderful presentation and all the work of the Subcommittee. I really appreciate it. The one thing I want to note is, there's no question that having this information timely provided... It's important information for... and it serves a really crucial purpose and timely disclosure of that to the individual is something that we all want, but I think it would be beneficial to the recommendations in the white paper, to address some of the challenges. And you know, for some of these, no matter what, the records are going to require some level of review for sensitivities. Whether that be FOIA professionals or whether it be... Whether we're saying we're taking out of FOIA and it's still going to be FOIA professionals. So there's resources... I'm sure there's other challenges. Cause I don't think the agencies are not wanting to reduce the burden, provide these timely and, reduce the burden on themselves. So, I think in order for the recommendations to be helpful to the purpose it's trying to serve, I think the challenges should really be analyzed, addressed. And I really do appreciate the last recommendation as far as a cost benefit analysis. I think that's really helpful because of course we want to provide this information in the least taxpayer expensive way, in the most efficient way. I would agree with James, that I did find this recommendation number four a little bit redundant to the prior recommendation that identified commonly requested records that we've fulfilled. Thank you again, and I hope that's helpful.
ALEXIS GRAVES: No, that's very helpful. I think some of the agencies probably agree with you, that we should talk a little bit more about the challenges. Definitely, certainly, we will reconvene and talk about this. I think that's an excellent-
ALINA M. SEMO: Allan Blutstein has his hand up. Or is that from earlier, Allan?
ALLAN BLUTSTEIN: Yes. No, thank you. Allan Blutstein, America Rising Corporation. I join James and Bobby, commending the group for its work here, and the fact-finding is very impressive. A few comments on the recommendations as well. Recommendation 5 seems to be swallowed up by 1. I wonder if it's an alternative recommendation. If Recommendation 1 passes, I don't know that 5 is necessary. If you're confining 5 to agencies that provide benefits to the public, because Recommendation 1 appears to mandate agencies to make proactive disclosures, as opposed to just doing a cost-benefit analysis.
More on Recommendation 1: I'd be more comfortable if we were making recommendations to specific agencies, especially the ones you've discussed. This one is sweeping across the government. I'm not sure. Some of these terms are quite broad and vague. I don't know what is meant by a proceeding, administrative, civil, law enforcement. I don't know that the hundreds of agencies are even going to know that this applies to them, and benefits as well. I don't. All financial benefits. I just don't know what the scope of this is. It seems to go well beyond the few agencies that you've discussed. I'll leave it at that. Thank you.
ALEXIS GRAVES: Thank you Allan, I do appreciate that. If any of the working group members, if you have any comments, please, about the specific recommendations, or any of the wonderful comments we're receiving from our Committee members.
ALINA M. SEMO: I see Patricia, who had her hand up. Was that again, from earlier Patricia, or is this a new hand up?
PATRICIA WETH: This is a new hand up.
ALINA M. SEMO: Great.
PATRICIA WETH: Patricia Weth, from EPA. Again, I want to compliment the entire working group for all their work that they've done. This is something that is near and dear to my heart. I'm going to make one suggestion that I've noticed. One thought could be because in Recommendation D that you have, you talk about processes, different processes for processing records. One thought I'm going to share broadly is that a lot of agencies can release records in their proceedings if they were to change their regulations. I've seen a lot of agencies require first-party requesters to go through the FOIA process, instead of being able to receive the records in the particular proceeding that they're in. So, that's just a thought I thought to share with the working group. Thanks.
ALINA M. SEMO: Thank you, Patricia.
ALEXIS GRAVES: Thank you, Patricia.
ALINA M. SEMO: All right. Any other Committee members have any comments? Oh, Allyson just raised her hand.
ALLYSON DEITRICK: Yep. One thought is, has the Subcommittee looked at the impact of the CASES Act, which requires agencies to have certain information requests be submitted electronically? I didn't see anything in the recommendations. I'm not sure how much it would impact, but maybe something to further expedite this, or facilitate it, that these requests should be done electronically and not mailing in a form. That's all.
ALEXIS GRAVES: No, I think that's really helpful, Allyson. I know there was a very small conversation about that, but I think we should definitely revisit that.
ALLYSON DEITRICK: Great. Thanks.
ALINA M. SEMO: Okay, I see Michael Morisy has his hand up. Michael, go ahead.
MICHAEL MORISY: I was not involved in the specific drafting of these recommendations, so I can't take any credit for the wonderful work that went in here, but I do want to say in terms of the differences between draft Recommendation 1 and 5, I think one of the things that I see is that a lot of the problems with FOIA kind of start way before the FOIA offices. One of the hopes that I had, and one reason I was excited about that recommendation is it's forcing agencies to say, "oh, our FOIA budget's huge. Let's squeeze that," but then also look at, "Oh, you could spend a lot less money on this if you actually built out the systems to allow this proactive disclosure."
I think both pushing on those rights, and then pushing on some mechanisms, to get agencies to fix things upstream. That's one of the real challenges throughout the FOIA process, is how many things are broken before they get to the FOIA process itself? That's a really hard problem to fix, the rest of everything going on, and right on the system.
Regarding the CASES Act, one of the really great discussions we had earlier was talking with some agency teams that are working on creating better form systems, and better electronic submissions, and standardizing that process across the federal government. I think just getting more things in a standardized way and making sure this data is segregated up front whenever possible, would be really, really helpful. To Bobby's point about sometimes there's going to be reviews where you do have to disaggregate this data, that's true.
I also think this has been a known issue for a long time. We ask, under GDPR, every tech company in the world allows people to export all of their data. They found ways to un-commingle this stuff within a very short period of time after those laws were passed. The federal government has had the FOIA laws for quite some time now, making sure we're making this data easy to export, and making sure when we develop systems that are going to impact these rights from the beginning, we don't say, "Oh, we're surprised we're now getting FOIA requests for this," but find ways to do proactive disclosure. I think that's the public's expectations.
It's not the FOIA office's fault we haven't gotten there when it comes to first-party requests, but it is a problem. The public should expect more at this point of if you're trying to get immigration files, if you're trying to get your own IRS files, for the government to say, "Oh, there might be sensitive stuff in there, we're going to have to take a year, or months and months, to get it back to you," is a pretty bad excuse in 2021.
ALEXIS GRAVES: Thank you, Michael. We've got lots of stuff to take back to the lair here.
ALINA M. SEMO: Yeah. I see Kel has his hand up. Kel, can you promise to make it quick?
KEL MCCLANAHAN: I'll try. It's not really super-quick, because it's two points, but it's something that when we're talking about setting up new processes, it's very important to ensure that whatever process is set up for an agency, whether it be... Regards to the agency, have at least the same informational guarantees as FOIA, and at least the same rights, because what we don't want to see happen is what happens a lot. For instance, you can go and request your file from some OIGs without a FOIA request. You can just say, "I am the target of this investigation, or I am the complainant. I want a copy of the file. You can sometimes get that, and the redactions in there will differ wildly from what you would get if you filed a FOIA request for it. Often, they would redact things that you can't withhold in your FOIA. They'll say, "Well, you can't, and you go to court to get information." If there is any mechanism for withholding of information, any process for first-party request, must give the same limitations on exemptions, and same appeal rights, and same court rights as FOIA, or else you're taking a step backwards.
The second thing to the point of the person who said, "Some people treat it as a FOIA request," this happened a lot with consultations as well. Even if you have an agency that has an alternative method. For instance, you're doing a security clearance appeal, you're entitled to your investigative file by just asking for it, and the agency's supposed to give it to you. Even if you have an agency that does that, if they find a record that say belongs to ICE, they will refer that document over to ICE, and ICE will treat it as a FOIA request. This can't just be the agencies that get first-party requests. There must be a guarantee that if I, as an agency, have a first-party request system, then I'm either going to process other agency equities through that system, or it must guarantee that other agencies I do refer things out to, also treat it differently, or else you're going to end up with this sort of quagmire, where you're still stuck in FOIA, even though the agency you're dealing with is actually doing it right, because everybody else isn't.
ALEXIS GRAVES: Thank you.
ALINA M. SEMO: Thanks, Kel.
BOBBY TALEBIAN: I just wanted to... I appreciate, Michael, your comments. I just wanted to say that I was not framing it as an excuse. Obviously, what you've described is what we all want. I just want to emphasize that for this to be helpful as a recommendation, it's something the agencies are going to take action on. Addressing the challenges that they've faced is really important. Getting to the solutions. That needs to be a part of this process. I want to make sure that it was not necessarily framed as an excuse at all.
MICHAEL MORISY: I didn't mean to imply you were making excuses. I think everybody on the Committee does really understand those challenges. Again, this isn't a problem with the FOIA offices. This isn't a problem with the FOIA personnel, and FOIA programs. This is a problem with IT modernization, and data collection and places we could probably cut data collection, and everything else. Which goes way, way beyond the scope of things, under any specific individual's domain, except for maybe the Executive.
ALINA M. SEMO: All right. Thank you very much for all of those comments. To speed things along, I do understand there's at least one agency person who would like to speak, and I believe their line has been unmuted. Amy Bennett, do you want to go ahead?
AMY BENNETT: Yes. Hi. Thank you so much, Alina. I believe there might be one or two other agency people on the line. Fernando, I believe, was going to speak for ICE. You might want to see if he signed in. Then either Tammy Meckley, or somebody else from USCIS, was also planning on joining today. I want to thank you all so much for the opportunity to review and comment on this draft paper, and its recommendations. I'm responding with this proposal on behalf of the DHS Deputy Chief FOIA Officer, and the DHS Privacy Office. The DHS Privacy Office, under the leadership of the Chief FOIA Officer, has responsibility for overseeing DHS FOIA operations, and recommending methods to improve FOIA compliance. We share this working group's goal of providing better access to people who need their records from the Department of Homeland Security. I'm going to briefly share some of our major concerns with this paper, as drafted.
We are happy to follow-up with the working group members after this meeting, to discuss our concerns in greater detail, and to collaborate on how we can meet our goal. I'm going to focus my remarks on our concerns about these recommendations, with respect to access to immigration-related records in A-files. While we are happy that the working group did talk to USCIS, the paper and its recommendations fail to take into account the unique nature of A-files. A-files are the legal custody of USCIS, but they contain records that originate in several other agencies and other DHS components. Some of these records include sensitive law enforcement, and even national security information. The agreements and memorandums of understanding that the paper references the USCIS uses to process records, that originate in other agencies, are not simple agreements or arrangements.
For example, it took several years of negotiations between USCIS and ICE to reinstate a memorandum of understanding, enabling USCIS to process ICE pages and A-files after the inadvertent release of ICE law enforcement information. Second issue with the draft paper in its recommendation relate to process. First, there's no real clear distinction on what is meant by “providing access outside of FOIA.” We appreciate the IRS's self-service model. And some DHS components have been able to adopt similar models to give people access to certain record sets. For example, CBP provides access to information in the I-94 form for U.S. visitors. However, the example of SSA using non-FOIA personnel, through its Skillsoft portal to review and apply Privacy Act and FOIA exemptions, does not seem to fit in the same category.
While it does seem like a good way to expand the FOIA workforce, an agency employee is still doing FOIA work. Given the unique nature of A-files, and the sensitive law enforcement and national security information in these files, A-files similarly will still need to be reviewed prior to release. It may be possible to reformulate some of these records to separate out what can be released from what cannot, but some of these records cannot. They are not created in any sort of a way to make personal access to the records possible. They're investigative records, or they serve some other purpose. Other than the person whose information is in those records. DHS has explored shifting responsibility for providing access to A-files to other employees without success. For example, I understand ICE ran a pilot project exploring whether it's attorneys could make the records available to people in removal proceedings. ICE's attorneys were not able to pick up these responsibilities and the pilot was ended.
We understand the concern that given the volume of A-files requests, in the Nightingale Court order, the Department privileges these requests over other types of requests. First, I want to note that USCIS has a specialized team, the Significant Interest Group, that focuses on processing non-A-file requests. Other components that receive a large volume of first-party requests, including the DHS Privacy Office, have teams and processes in place to ensure that complex FOIA requests are not ignored. The DHS Privacy Office issues FOIA performance metrics for components that make it clear ignoring complex requests is not acceptable. We track and monitor the percentage of requests that are more than 200 days old and updated our metrics in this fiscal year to also request the components send out their responses to older requests.
Finally, we can't talk about this issue without also bringing up the dreaded topic of resources. DHS FOIA has particular expertise in processing records requests and applying exemptions. We have also worked continually to improve our processes and increase the productivity of our workforce. We know that there's more work to do, and we welcome suggestions for how to improve our performance. There is a real concern though, that moving responsibility for responding to A-files, about moving this responsibility outside of the FOIA office.
First, the resources needed to do the work will not stay in the FOIA office once the work leaves. Second, whatever office the responsibility is moved to will need time to develop the kinds of processes and expertise we already have in place, and end up costing taxpayers more, while providing less customer service. Finally, DHS FOIA will no longer have access to the resources necessary to train up our FOIA professionals and develop a workforce that has capacity to handle the kinds of difficult and complex requests we also receive.
Again, we really appreciate the opportunity to comment on the proposal today, and we really do want to work with you all on reformatting the recommendations in a way that is useful for everyone. Thank you.
ALEXIS GRAVES: Thank you, Amy. We really appreciate your comments
ALINA M. SEMO: Are there any other agency folks who want to chime in? Okay. Not hearing anyone else. Any other comments or questions from the Committee members to each other, or to any of the comments that have been offered so far? Or should we move on to the next Subcommittee presentation?
ALEXANDRA PERLOFF-GILES: Could I ask a question in response to that comment?
ALINA M. SEMO: Yes. Who is this?
ALEXANDRA PERLOFF-GILES: This is Alexandra Perloff-Giles [crosstalk 02: 31: 38]
ALINA M. SEMO: Oh, thanks.
ALEXANDRA PERLOFF-GILES: As the media representative, but also someone who does immigration law. What percentage of A-files do have material redacted before disclosure? Is that the majority, or is that an unusual case that there would be the need to redact or remove national security or other protective information?
AMY BENNETT: I believe last time I talked to USCIS, practically every A-file request has at least some information that needs to be redacted. Be it the name of an interviewing officer, or other kinds of information, but practically every A-file request does involve redactions.
ALEXANDRA PERLOFF-GILES: Thank you.
KEL MCCLANAHAN: Hi, this is Kel. No, this is my... I'm sorry, Alina just asked me a question in chat. The item I want to point out very briefly, before we move on to this, is to respond both to that answer, and to something that Amy had said before. To the most recent thing, question about the redactions, I want to caution everybody who's talking about a proposal like this to assume that all these redactions are valid. It is a dangerous idea to assume we shouldn't do a program because ICE redacts a bunch of stuff... To say we shouldn't do a program because ICE redacts a bunch of stuff, because it assumes that all of ICE's reductions are valid, and that the majority of things, where they redact things, they should be redacting them. This is, at least with ICE, I can say with expertise, if not voice the case. ICE, for instance, redacts a lot of stuff that if not properly redacted, and when challenge ensued, they often un-redact it. That is the first point I want to sort of caution, I want to make.
On the resources issue, I would like to say that "Yes, agencies need more FOIA resources." If DHS had enough resources to have a fully functional FOIA shop that did everything it needed to do, in a timely fashion, we probably wouldn't be asking for an alternative to get away from the tremendous FOIA backlog at DHS. This is going to be an issue one way or the other. I think if the question is giving money to DHS's FOIA office to do more FOIA stuff, and giving money to a separate office, or a separate division of DHS's FOIA Department to do for first-party requests, those are both involving giving money to DHS and other agencies. Don't go away. Sorry, my phone is ringing. That is going to be a problem regardless of what we talked about, but we should not be hung up on, "Well, don't do a program because it requires more resources, when the reason for the problem is that the resources aren't being used, or aren't being made available to the FOIA office."
ALINA M. SEMO: Okay. Thanks, Kel. All right. I'm not seeing any other hands. Roger, is that you?
AMY BENNETT: Alina?
ROGER ANDOH: Yes.
AMY BENNETT: Alina, could I briefly respond to some of Kel's comments?
ALINA M. SEMO: Sure.
AMY BENNETT: Okay.
ALINA M. SEMO: Then I'll let Roger go. Yes.
AMY BENNETT: Sure. Kel, with respect to the redactions, point taken. Our exemptions are challenged in court all the time. For us, that's another reason these records need to be kept in FOIA, where we can have a discussion in the court about whether or not exemptions are reasonable and appropriately taken. The other point on that is the flip side of the coin is an assumption that all of our redactions, not just here at DHS, but across the government, should not be made. I think that especially given the sensitivity of some of the information in A-files, that's a really dangerous path to go down.
Secondly, with respect to the comment about resources. We try to be really good stewards of the public's money, and we take our responsibility to provide access, those of people who are looking for their own records, and to other FOIA requesters, really seriously. At DHS Privacy, we have put together a three-year backlog reduction plan that really looks at what are the holistic problems with our operations and it's laid out a blueprint for how we can address those problems. We don't believe in just throwing money at the problem, because it's been shown over and over again that you can throw money at the problem for one year and fix it temporarily, but you're going to have a problem again, in the next one to two years.
We really are trying to have a thoughtful approach to how we can be good stewards of the taxpayers’ dollars and improve our responsiveness to FOIA request. Thank you for allowing me to respond.
ALINA M. SEMO: Sure. Okay, Roger. Go ahead.
ROGER ANDOH: This is Roger. I just wanted to clarify, to make sure we're clear that that working group was basically suggesting or recommending that all agencies identify commonly requested documents that might be much easier provided in an alternate process. Now, in those spaces, you're discussing A-files. The working group, [inaudible] USCIS is not suggesting that A-files as a whole, the whole A-file, should be considered as a first-party request, even though it is, and that that should have an alternative process. What we would recommend to USCIS would be within an A-file, looking for commonly requested records within that A-file that requesters are seeking. For example, you mentioned, and for, for CBP that's an example of a specific document people request for, which other than CBP coming up with the process would've had to be requested through the FOIA. So, that's basically what we’re trying to suggest to you is, look at documents that your agencies provide to requesters and say, “Hey, within what is Veterans Affairs, EOIR, EEOC, wherever. We have setting-specific documents which probably would have the least amount of redactions.” Okay? that we can release to requesters outside of the FOIA process. I know for example, I mean, that Tammy Meckley mentioned that USCIS’s set-up which allows people to submit forms electronically for certain benefits. That is a step in the right direction, because that provides people an opportunity to now have a portal where they have access to documents that they have submitted to the government, that they won't have to make a request for those documents. The issue is USCIS has not extended that myUSCIS portal to all forms. They've just started the process. So, yes, part of the recommendation is to push agencies into getting more resources, more funding, to get documents into electronic formats to make it easier to provide them to requesters. For example, ECAS is now a system that allows folks in removal proceedings, who are going before the Board of Immigration Appeals, to get access to their ROPs [Records of Proceedings]. Prior to that, they had to make a FOIA request for those documents.
Now, with ECAS, if you have access to ECAS, you don't have to make a FOIA request for ROPs. That is what we are talking about. And we say we are looking forward to working with DHS and other proponents with regard to how we can make our work a little better. Specifically with regard to the CASE Act, which I think we didn’t really focus on submissions, because I don't think the issue of paper submission is a problem. I think most FOIA requests are submitted online. I know for example USCIS has their portals, EOIR has a portal. So, I don't think paper submissions is an issue. I think the issue is, and again Michael said this, a lot of the problems happen before it gets FOIA. A lot of records are created in paper, demanded in [inaudible], which means that they're dispersed all over the place, which makes it difficult to collect them, makes it difficult to collect them, makes it difficult to process them, makes it difficult to release them.
So, we should be looking at how do we make sure that most records are in an electronic format, where you don't have to move papers around. Where it makes it easier for access to their documents. Because once we take care of those things, they're making disclosures, it'll be much easier.
AMY BENNETT: Again, Alina, if I could just briefly respond to the comments? Roger, we appreciate the clarification about the purpose, and we're happy to talk about specific files or forms that we can make better available to the public. We certainly have done a lot of work in that area. I'll say that we are generally providing access to all records, the first-party request, in about 30 working days. I'll also say that's not the way the recommendation is currently written. It talks a lot about USCIS, and in particular access to A-files through a non-FOIA purpose. That might be something that just needs to be clarified within the recommendation.
Secondly, with respect to your point about paper, that's a really good point. Certainly, it's in the government's interest to begin collecting and keeping paper in an electronic format. I would note though that the legal format for A-files in particular is paper, for a variety of reasons, including some of the people at the National Archives would be much better suited to speaking to other than me. That might be, if the Committee is interested in going in this direction, another area where a little bit more work needs to be done in terms of, "Why is the government keeping information in a paper-based system in the 21st century?" It's not just because we don't like change.
ALINA M. SEMO: All right, thanks, Amy. I saw that Tuan had his hand up, and then he respectfully took it down. Tuan, do you want to add anything to the discussion?
TUAN SAMAHON: I was going to say that I think technology provides a lot of opportunities, of course, as well as risks, but sometimes we can learn from newer countries, and smaller countries. I'm just thinking about Estonia, and what an amazing example it's been, where 99% of its services are available online, with documents being generated natively, electronically. Alexander Howard has posted several comments that are very helpful in the chat, including referencing the ability to get data that's very sensitive. Health-related data. Self-service portals really provide effectively a FOIA force multiplier, in the sense that the citizen is able to get access to this material and is able to help themselves. I do think that it is worth thinking about how going forward, portals might work. The other comment that Alexander had made was that perhaps we also need to think about how A-files are created, because, I don't know, again, if we have a repeated redaction need to remove the names of a particular interviewing asylum officers. I just wonder if there are alternative ways to generate the documents so that you don't have to create that work that you have to have later going and do again, I think there may be ways to expedite this and given Michael Morisy's point earlier about to GPR clients it seems like we can certainly do this.
ALINA M. SEMO: Okay. Thanks Tuan I really appreciate it. I'm interested in trying to wrap up this conversation only for today, because I think we need to continue. I think this will get carried over to our next meeting. Lots to think about Alexis and the working group and I want to thank both Michael and Alexis as the Subcommittee co-chairs for leading this and to be continued. So thank you very much for everyone's thoughtful comments. I want to give the Legislation Subcommittee a brief opportunity to do a quick report out before we turn to public comments. I understand A. Jay and David Cuillier wanted to give some comments. So A. Jay, do you want to go first?
A. JAY WAGNER: Sure, I think. I will be exceptionally brief. I will just give you the quickest overview of a survey that we have out there, I've just posted the link to it in the chat. It has been put together by myself, Dr. David Cuillier and Michael Morisy. There's been two rounds of sampling thus far. The first round of sampling, we worked with Michael and some MuckRock requesters. So we have certified or verified requesters responding and now we're into the second phase of the sample where we've tossed it out to anybody. So this is where I ask you folks, if you know any distribution methods to get this in front of people that have taken or submitted FOIA requests, whether state, local or federal it would be greatly appreciated.
This survey is designed to serve two purposes. Obviously, we are here to serve Subcommittee questions, but could also do a little bit of scholarly work as well for Dr. David Cuillier and myself. And we sought feedback and input from the Committee, and we received a lot of helpful notes from a number of the Committee members. Some of the subjects in the survey include OGIS’s authority. There's quite a few questions on fees, metadata concerns, FOIA logs, applying FOIA to the legislature and judiciary, first-person requesting websites across the board, lots of stuff that we're interested in across our various subcommittees.
There's also some scholarly stuff in there that David and I are interested in as far as our experiences, behaviors by requester category, demographics, government type, stuff of that nature. As I mentioned, it's still active and we're still looking to reach as wide of an audience as possible. We're not quite as far along as we'd like to be as far as number of respondents. So again, any help is greatly appreciated. I'm happy to answer any questions you may have regarding the survey, but that's about all I have as far as just a very brief recap.
ALINA M. SEMO: A. Jay, do you mind if I ask, is there a deadline for the survey? Does it close by a certain date?
A. JAY WAGNER: Yes. This current round we'll close on Monday, December 13th.
ALINA M. SEMO: Is there a chance that you might be able to extend that deadline?
A. JAY WAGNER: Absolutely.
ALINA M. SEMO: All right. Good to know. Thank you. David, are you on? Would you like to say a few words about the work you've been doing?
DAVID CUILLIER: Yeah. Can you hear me Alina?
ALINA M. SEMO: Yes. Absolutely.
DAVID CUILLIER: Okay, great. Thank you. Yeah, I'm David Cuillier, an Associate Professor at the University of Arizona, and President of the National Freedom Information Coalition. And I'm joined in this working group by A. Jay and Tom Susman and Patricia. Now, we've been gathering information this fall to examine FOIA oversight models in the states and around the world to see if there are ways we might be able to improve the oversight structure within the US FOIA system.
While this working group has been labeled as re-imagining or just, I think it's important to make it clear that we're not looking at the performance of OGIS or NARA or federal agencies. I can't speak for others, but I believe OGIS has been a benefit to the country and that the nine staff members work very hard. I can't imagine re-imagining Alina, Kirsten or anyone else at OGIS. So in fact, one thing that's emerged from our research is that OGIS does a lot with very little.
From the figures we've gathered so far on a per capita basis, OGIS is actually the most short-staffed office in the world. And that's even when compared to states, provinces, and cities. I mean, putting that in context, OGIS's staffing level is equivalent to FOI mediation agencies in Israel, and the Yukon territory. And staffing levels are greater among at least 40 other jurisdictions including Connecticut with 16 staffers, Philippines of 41, Peru 780, Brazil 2,200. I mean, surely, we could do better here. So far, we’ve talked with dozens of experts and gleaned a lot of research and we're seeing consistent themes when it comes to ideal structures. Particularly when it comes to an organization's independence, its authority, its resources, for example, more than 60 nations have oversight agencies that have the power to compel agencies to disclose records without a requester having to hire an attorney and going to court. And it's almost in all cases free.
In some cases, agencies are provided more protections and independence from the executive branch, including in their budget. And some models include remedies within the judiciary to streamline the system and reduce litigation, including in the state of Ohio for example, it seems to be working very well. A lot of really interesting practices out there we're looking at and we hope to share a draft report at the beginning of next year, January, spread it around, get feedback and discussion before the March meeting.
And we'd like to include the ideal model of what the perfect structure would look like. Understanding, that could be some challenges getting that applied in any timely fashion but would also probably include some short-term recommendations as well. While we work on this, we welcome further input thoughts from the Committee members, thoughts from anyone else. So if anybody wants to talk about this topic, I'd be happy to do so. Just reach out. Thank you.
ALINA M. SEMO: All right, David, thank you so much. I'm just going to quickly ask if anyone has any questions for either A. Jay or David. They've been doing a lot of great work. I don't see any hands up in the chat. So I've asked everyone on the Committee if they could stay a little past 1: 00 pm. I know we have some public comments that we would want to receive and most folks have the ability to stay a little past one. I believe Michael Morisy has to sign off at 1: 00 PM, so your homework assignment is to tune back in and read the transcript and watch the YouTube video later to see what you miss, same goes for anyone else [who has to sign off at 1:00 pm].
But at this time, I just want to turn my attention to public comments. We look forward to hearing from any non-Committee participants who have ideas or comments to share. We're capturing all oral comments in the transcript. Any member of the public may speak or otherwise address the Committee. And we're going to go ahead and ask Michelle now, our Event Producer, are there anyone... Is there anyone queued up on the telephone line? And would you be able to have... Would you be able to share instructions again, Michelle, as to how to call in on the telephone line, please?
EVENT PRODUCER: Absolutely Alina. So once again, ladies and gentlemen, as we enter into the public comments session, you can press the raise hand icon, which is above the chat panel, you'll see a little icon. And that's how you can ask via Webex audio, if you are on the regular audio line, you will need to press pound two on your telephone line. So that's how you would get into the queue and it looks like we do have somebody actually in queue, Alina, and we do have Alexander Howard.
ALINA M. SEMO: Okay. Alex, go ahead please.
ALEXANDER HOWARD: Hello everybody. Thank you so much for hosting this public meeting on FOIA. I can't tell you how much I appreciate your commitment to these issues and your commitment to hosting these forums in public for the entire country to be able to hear the debate back and forth. These issues are really complicated and the dedication you all have shown to engaging with them is admirable. And as we head to, I hope a season when the United States will be re-engaging on the United States commitments to the Open Government Partnership next year, it's worth noting that this Committee exists because of the second National Action Plan.
And I hope that as we move forward, that will be reified as something that is valuable. I know that there are some challenges though with respect to getting these recommendations before Congress in a way that's actionable and gets them to be incorporated into reform.
And I hope that you'll continue to be advocates internally and externally for agencies taking actions that don't require legislative action. And that I think is going to require a somewhat different public posture and just some feedback on public engagement, it would be wonderful if the co-chair of the Committee, the Department of Justice Office of Information Policy would promote the fact that these things are happening using social media press releases and otherwise encouraging all of the different stakeholders that exist to know that this is something that's out there. And for all of the different people who were involved in the process to be more engaged in it. I know that it feels somewhat lonely to show up at the Archives and see sparse attendance online, I think that's even more stark.
What I wanted to say today however, is a bit focused on something else, which is the sunsetting of FOIAonline for a lot of people, that is how they engage with the Federal Government and FOIA. They go to FOIAonline.gov and dozens of agencies use it. As confirmed by OGIS and by OIP at DOJ, this is something that's going to be sunset over the next coming months. And I hope that the Committee will use that as an opportunity to think about how FOIAonline should work in ways that it doesn't currently.
And I think today's discussion is a really useful articulation of that in terms of thinking about how and where access to people's personal files, personal data, can and should be available to them safely and securely online using a lot of existing pathways that are identified in chat. The thing that I think is a huge opportunity ahead of you all is to consider how and where foia.gov could and should work, if there were an application programming interface on it that enabled third party applications, a whole ecosystem applications created by non-profits or for-profit entities to be able to make and track FOIA requests that go into foia.gov and go to agencies.
This is something that can, and should I think be nurtured collaboratively through the different pathways that exist around data disclosures that exist elsewhere in the federal government. If you look at the communities of practice that exist around categories of data.gov, the same thing could and should be working at foia.gov that's been re-built with the people it serves by the Office of Information Policy and the GSA's 18F team using open standards based on a common schema for FOIA data that creates a much more open and collaborative process.
And I would hope creates a different role for the Federal FOIA Ombuds Office to help people through that process and see where they're getting stuck in the delivery of this as a service. And it's my hope that you all won't just stop with having a showcase and promoting a showcase to vendors that this is something you'll actually be building with the stakeholders who make FOIA requests to ensure that foia.gov isn't just a place to get FOIA stats.
It's a place that every American knows they can get information that is all about a government or about ourselves if our information is within government. And I want to put this out in front of you all as a challenge, we're going to have a great opportunity in this next year to talk about open government, talk about democracy, talk about technology that improves democracy as the President just talked about this morning, as this conversation we're having is global, and to learn from other nations where they've done this better and to learn from American states and cities that are doing this better, that are explicitly “connecting disclosures in FOIA reading rooms,” quote unquote, with the structured machine readable disclosures we're seeing in open data. And the end result should be someone being able to go to foia.gov, doing a search and have it go all across the reading rooms, go all across US data.gov and then be able to see what's out there and what's missing.
And for anyone to understand who's asked for these things before, instead of having logs be obfuscated and for Congress and GAO and the Ombuds offices and you all to have an ongoing, almost real-time dashboard, understand the state of compliance. And in theory, that should enable all of us to not have to wait for these governance processes to trickle through but, to be able to identify where and how there are stopping points in the process that are preventing people from exercising their rights and frankly, to see whether there are stopping points in the bureaucracy, which suggest that OIP should be pushing them much harder. Because I don't think anyone can argue with a straight face that what we have right now is good enough across the board. Thank you for [inaudible]. Take care.
EVENT PRODUCER: Thank you so much for your comment, we appreciate that. We are moving on to the next caller in queue.
BOBBY TALEBIAN: Before we move on, can I just respond to that-
EVENT PRODUCER: Your line is unmuted. You may go ahead.
ALINA M. SEMO: One second, Michelle. I think Bobby wants to respond.
BOBBY TALEBIAN: Yeah, a quick response.
EVENT PRODUCER: I'm sorry. Go ahead.
BOBBY TALEBIAN: Just don’t want to lose my train of thought on it while I look into the questions, I appreciate it. And Alex, it's good to hear your voice, I appreciate your comments. I just wanted to say so many of the things that you mentioned are things that we're working on. The 10X team that... And I mentioned this at the CFO Council. We're really happy that we with a 10X team in phase three to do exactly as you said, make it so that we're searching across agency FOIA libraries in one location on foia.gov and plugging in other places where records such as data.gov are available proactively. So the idea being that the requester goes to foia.gov, they can do a search, see what's out there across the government, even inform where they may make a request if that search doesn't surface, make it so that they're satisfied with the records they're looking for.
So, we are doing that work. I think there's a lot of work to be done, there always will be a lot of work to be done, but we're working positively to build on foia.gov and we started working to build on our practice disclosures and we're going to continue to support that. And also, just want to say that foia.gov of course, is not just the site to go and see FOIA statistics. Back in 2010 we launched it, that was the initial goal. But since then, we've added so many. There is so much more to the site, including standardized forms for making a request.
So, requesters can go and make a request from foia.gov from every single location and having landing pages for each agency that has specific information about their FOIA processing on that page so that it's all easily accessible. Their FOIA regulations, their FOIA teams’ books. I can go on and on. So, I wouldn't monopolize the time, but I just wanted to say, thank you for your comments. We certainly... That's the feedback we want to get because we want to improve foia.gov. We're not resting on our laurels, but a lot of this stuff is stuff we're working on.
ALINA M. SEMO: Bobby, thanks very much. Michelle, I understand there might be a couple of other callers who would like to offer some comments.
EVENT PRODUCER: Yes. We do have Freddy Martinez on the line. Freddy, you may go ahead.
FREDDY MARTINEZ: Hi everyone. Thanks for having us here. I'm Freddy Martinez. I’m a policy analyst at Open The Government. And we’re here, thank you for having us, because I think this is a unique place where we can discuss some of the challenges that we've been seeing with FOIA right now. I know that we've spoken individually with members of the Committee, members of the Subcommittee, OIP, OGIS and others, both publicly and privately about some of the things that we're seeing. First, I mean, I guess the place to start is that I think a lot of us in our community are surprised at the lack of commitment to transparency in FOIA. In the first year of the Administration, at least anything that we've seen publicly. For example, we've been waiting for almost a full year for a memo from the Attorney General on FOIA and how agencies should be complying with FOIA's perception of openness.
And while we appreciate that the White House gave independence to the Attorney General's Office. If you look back in 2009, Attorney General Holder had a memo out about a month into the administration, at the same time we saw President Obama had a day one memo on how agencies should be treating FOIA. And it's disappointing to see that we're almost a full year into a new administration and we haven't seen a similar movement. And we've talked about this previously in other venues, but I think we really want to see Attorney General Garland talking about how agencies should be maximizing proactive disclosure, reiterating that agencies have to treat discretionary exemptions as discretionary. Agencies should be directed to improve their customer service and the importance of communication especially, during remoteness.
The other thing that we really want to see is that the Department of Justice really takes a hard line on not defending agency officials back and back faith or in clear violation of the spirit of FOIA. For example, agencies seem to have a far different understanding over the word “reasonable,” as it appears in the FOIA throughout the text. And many times, it appears, and it seems to be quite different than what the dictionary definition of reasonable means. And we would hope to see that the DOJ and agency lawyers under a new administration would re-visit this policy.
So those are just some ideas that we really think should be at the forefront of a new administration and we haven't seen that reflected anywhere publicly. And the reason we bring these comments today is because we care deeply about the FOIA Advisory Committee's recommendation and hope that both Congress and the executive branch begin to seriously implement them. For example, we've hoped that OMB would more seriously implement the recommendation for adding line budget items for FOIA offices. This recommendation could be done through executive action, it doesn't have to depend on the White House, it doesn't have to depend on Congress, and we haven't seen any of those kinds of recommendations moving forward.
And then finally, just a few other things. One thing that we had also hoped would've improved in a new administration is communication about FOIA in general. I know Alex Howard talked about the sunsetting of foia.gov, but that also was not communicated well to the public. I think someone from the Subcommittee called it an announcement, but that description doesn't seem to fit. Many of us found out about the sunsetting through a list-serv. We didn't find out through any kind of official channels, any press release. In fact, when I heard about it, people were asking if this was true and we thought it was an innuendo. We thought it was people speculating because of how poor of a job the EPA did of communicating the reasons for the shutdown, what happens to open requests? What the new systems might be, when they'll be open? Etc. And so that's just one example of frustrations we're seeing in the community.
And then finally, we hope that Congress steps up in its role of providing oversight in FOIA. It's been about five and a half years since we've had open hearings on agency compliance with FOIA, the public's view of how FOIA is working or not working. And we hope that Congress will move more quickly on just comprehensive FOIA oversight reform and improvement in general. Thanks.
EVENT PRODUCER: Thank you for your comments.
ALINA M. SEMO: I really appreciate that, Michelle. I know we have one more caller in queue. Do we open up that-
EVENT PRODUCER: We have one more caller in queue. Caller your line is unmuted, you may go ahead.
BOB HAMMOND: Yes. Hi everybody. This is Bob Hammond. Can you hear me okay?
ALINA M. SEMO: Yes.
BOB HAMMOND: Hello?
EVENT PRODUCER: Yes.
BOB HAMMOND: Okay. I'm going to be extremely brief. The comments that I would make orally, I have placed into the panelist chat and also into YouTube and I sent them by email. So those are records that have been presented to the Committee. My understanding of the law is that they have to be included in the minutes. So, with that understanding, what I'd like to say is, most of my comments go to what's already been said. That the OGIS staff is magnificent. I mean, they're super people, but they are just so grossly underfunded that they cannot do their mission. You cannot mediate 4,600 cases in a year with three people. That's physically impossible.
OGIS isn't doing it because they're not able to. When Congress established the requirements for OGIS and OIP, they didn't add any additional funding. So, I'm trying to work with Congress and others on that common goal. And so, a lot of my public comments today show what happens when you're grossly underfunded. They're not meant to be mean to anybody, but I put them into the public domain because we just need to understand how grossly underfunded OGIS is. And I would say the same thing about OIP, Bobby doesn't complain a lot, but they're similarly just grossly underfunded for their compliance mission. So, with that, I want to thank you all. And many of my comments are posted and I put my email address on the cover slides of those it's foiacompliance at gmail dot com. So, if anybody who wants to contact me, please do it. I'll spend some time with you. Thanks very much. Great meeting.
ALINA M. SEMO: Thank you so much, Mr. Hammond. I believe Bobby wanted to address a couple of the comments that were made earlier. Bobby, do you want to go ahead and have the floor?
BOBBY TALEBIAN: Yeah, thank you, Alina, I just wanted to respond to Freddy, and I want to thank Freddy for joining the meeting and for his comments, I appreciate it. I just wanted to say that the Department fully supports furthering the purpose of the FOIA and all of the many of the principles that Freddy mentioned, particularly proactive disclosures like the Attorney General emphasized the importance in public statements, in his first full week, as Attorney General at our Sunshine Week event, emphasizing that without accountability, democracy is impossible.
The democratic accountability requires the transparency that FOIA makes possible. And recently our Chief FOIA Officers Council meeting, our public Chief FOIA Officer Council meeting, the Associate Attorney General of the United States emphasized or echoed that sentiment and emphasized the importance of FOIA. And in particular, being the CFO Council meeting the important role of leadership at agency in the CFOs, in all aspects of FOIA administration. That is to say, the administration, the department is committed to the government wide FOIA administration, and there's more to come and we look forward to and I look forward to continuing to work with Freddy, you and the requester community as we advance these principles.
ALINA M. SEMO: Okay. Thanks, Bobby. I really appreciate that. I am very thankful for everyone staying over a lot of time today. I know 1:17, I'm just going to quickly wrap up. I thank all the Committee members for all the great work that you've done so far. We're definitely in the home stretch for June of 2022 and I anticipate a really lively meeting in March of next year. While you're enjoying the holidays, please think about volunteering to be on the final report and recommendations working group, next spring. This group works on the final report that the Committee will be expected to vote on at the last meeting in June of 2022.
Last term, the working group met weekly beginning in March to craft the final report. See Patricia Weth for insider tips and the fact that she loved it and survived and lived to tell about it. And if you are interested, please let me know; so far, I have zero volunteers. So please consider this a holiday gift to me and Kirsten, if you can volunteer that would be great. Thanks for all of you joining us today. I hope everyone and their families remain safe, healthy, and resilient. We will see each other again, most likely virtually I predict, at our next meeting Thursday, March 10th, 2022, starting at 10: 00 AM. And if anyone has any other comments, I'm happy to listen. Otherwise, I would like to call this meeting to a close. Any Committee members have any other comments or questions? Okay. Hearing none, happy holidays, happy new year to all. And we stand adjourned. Thank you.