Transcript
FOIA Advisory Committee Meeting (Virtual Event)
Thursday, March 10, 2022
10:00 a.m. - 1:00 p.m. (EST)
Michelle Ridley [Event Producer]: Ladies and gentlemen, welcome. And thank you for joining today's Freedom of Information Act 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.
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With that I'll turn the meeting over to David Ferriero, Archivist of the United States. Sir, please go ahead.
David Ferriero: Thank you, Michelle. Greetings from the National Archives’ flagship building in Washington, D.C., which sits on the ancestral lands of the Nacotchtank peoples. I'm David Ferriero, Archivist of the United States, and it's my pleasure to welcome you to the seventh meeting of the 2020 to 2022 term of the Federal Freedom of Information Act Advisory Committee.
Two years have passed since the FOIA Advisory Committee last met in person, here in the main archives building, and the pandemic upended life as we know it. It appears that there's finally light at the end of the tunnel. I'm thrilled to report that we're welcoming researchers back into our research rooms on a limited, by appointment basis, as local public health metrics allow. And the National Archives Museum here in Washington is no longer requiring tickets or face coverings, based on guidance from CDC. Public, in-person events have yet to resume, but as we have shown again and again, since March 2020, the National Archives has met people where they are through a variety of virtual platforms, including the National Archives YouTube channel.
FOIA Advisory Committee members, today, I look forward to hearing from you about the work you've all been doing on final recommendations, on a wide range of issues relating to the administration of FOIA. I invite all of you, committee members and attendees alike, to tune in on Monday, March 14th at 1:00 PM Eastern time, when the National Archives celebrates Sunshine Week, a national initiative led by the News Leaders Association to educate the public about the importance of open government and the dangers of excessive and unnecessary secrecy. Philanthropist and National Archives' supporter David Rubinstein will interview Librarian of Congress Dr. Carla Hayden, and me about a wide range of topics, including the unique roles the National Archives and the Library of Congress play in documenting and preserving our nation's history, and promoting civic literacy and democracy. I hope you'll join us March 14th on the National Archives YouTube channel.
Finally, I look forward to joining you for April's FOIA Advisory Committee meeting, my last before retiring after 12 years as Archivist of the United States. Thank you, committee members, for your hard work tackling some of FOIA's toughest challenges. And I now turn the meeting over to Kirsten Mitchell. Kirsten?
Kirsten Mitchell: Thank you, David. I'm Kirsten Mitchell, the Designated Federal Officer for the FOIA Advisory Committee, and I will be chairing today. Alina Semo, the Director of the Office of Government Information Services, OGIS, and this committee's chairperson, is unable to be with us today due to unforeseen circumstances. I welcome all of you to this meeting of the FOIA Advisory Committee and ask for your patience as I step into the role of chair in Alina's absence. We have a terrific group of subcommittee co-chairs who will help lead the way. Also, helping today are my National Archives colleagues who are working behind the scenes to do everything from monitoring chat comments, to streaming the meeting live on the National Archives YouTube channel.
So, whether you are joining us on WebEx or on the National Archives YouTube channel, welcome. I've taken a visual roll call and confirmed we have a quorum. Committee member Tuan Samahon is unable to join the meeting today. Kristin Ellis and Kel McClanahan expect to possibly miss part of the meeting. And Bobby Talebian will be a few minutes late. I believe we are also waiting for committee member Dione Stearns, but we do have a quorum.
We have received written comments in advance of today's meeting, and they are being reviewed and evaluated prior to posting, to ensure they satisfy our posting policy for public comments. If you have submitted public comments and you do not yet see them on the website, please be patient, as we are running a bit behind. We will post public comments that meet our posting policy after remediating them to ensure that they are compliant with Section 508 of the Rehabilitation Act. I invite our committee members to review public comments we have received thus far if you have not already done so. Committee members, please let us know at any time if you have any questions or comments regarding the public comments.
To those of you who are joining us today, I want to note that the chat functions in Webex and on the National Archives YouTube channel are not the proper forums to submit extensive public comments. As a reminder, you may submit written public comments at any time by emailing FOIA-Advisory-Committee@nara.gov, and we will consider posting them on the FOIA Advisory Committee website in accordance with the posting policy. The chat function on both platforms should be used to ask clarifying questions or provide very brief comments or questions that we will consider reading aloud at the end of today's meeting. We will have a 15-minute public comment period at the end of the meeting, specifically for feedback on the recommendations that are currently being considered. Meeting materials, including the agenda, draft recommendations and information about the committee members are available on the committee's webpage. Click on the link for 2020 to 2022 FOIA Advisory Committee on the OGIS website at archives.gov/ogis. We will upload a transcript and video of this meeting as soon as they become available.
It's hard to believe that we've been meeting virtually for the past 24 months. It's not always easy in such a large group, to see committee members raising their hands, to ask a question or make a comment. I will do my very best to monitor committee members' hands being raised, but I 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. You can also chat me or Martha Murphy directly. Please keep any chats limited to housekeeping, procedural matters, and that sort of thing. No substantive communication should be made via chat, as those chats will not be recorded.
Committee members, if you need to take a break, obviously you may do so, but do not disconnect from audio or video. Simply mute your microphone and turn off your camera and send a quick chat to Martha and me to let us know if you'll be gone for more than a few minutes. A reminder to all committee members, please identify yourself by name each time you speak. I will endeavor to do the same. This will help us with both the transcript and the minutes.
Speaking of minutes, I emailed committee members the minutes from the December 9th, 2021, meeting under the Federal Advisory Committee Act's 90 day deadline. Alina and I had to certify the minutes to be true and correct, which we did last week, and we posted the minutes earlier this week. If there's something we missed, please let us know and we can go back and correct it. I want to give a brief shout out to our current part-time detailee, archivist Sean Heyliger, from the National Archives of San Francisco, who has been helping us with committee matters and did a great job pulling together the December minutes. Thank you, Sean.
Before we begin, a few quick notes about today's agenda. We will pick up where we left off in December with recommendations from the Classification Subcommittee regarding so-called Glomar responses, in which an agency neither confirms nor denies the existence of records. We will then move on to draft recommendations from the Technology Subcommittee, which are being formally presented to the full committee for the first time today. With regard to recommendations about the first-person FOIA requests that garnered robust discussion at December's meeting, we expect those recommendations to return to the full committee at the April 7th meeting. And we look forward to hearing today about some forthcoming recommendations from the Reimagining OGIS Working Group, which we also expect to be formally presented at the April 7th meeting, pending approval by the Legislation Subcommittee later this month.
And before we begin, I just want to say, I reserve the right to adjust the agenda times as necessary, so that we can keep discussion moving along without cutting it off too early. So, before turning it over to James Stocker and Kristin Ellis, I just want to say that your goal as a committee today is to deliberate on the recommendations presented, discuss any information you have about this, and finalize and vote on the recommendations. And I just want to remind you that the recommendations can be voted on either as a package or individually, and that is completely up to you all. So, I will turn it over to James Stocker for his presentation. Thank you.
James Stocker: Thanks very much, Kirsten. Good morning, everyone. I'm James Stocker of Trinity Washington University. I'm the co-chair of the Subcommittee on Classified Information. We're here today to present the revised recommendations on the issue of Glomar responses to FOIA requests.
I'd like to start with some words of thanks. First, a big thank you to all of our fellow committee members for their useful feedback during the December 2021 meeting. I'd also like to thank those federal agencies who took time to respond to the Glomar survey questionnaire that we sent out last summer. I'd like to give the special thanks to Bobby Talebian and Lindsay Steel of OIP, who took time out of their busy schedule to meet with me last month to discuss these recommendations. And then last but not least, I'd like to thank all the members of the FOIA community who took the time to react to our proposal. And I'd particularly like to say thanks to Lauren Harper of the National Security Archive, who submitted very useful and detailed comments in support of the recommendations.
We compiled a list of concerns that have been raised by all of these various groups and went through them fairly meticulously, I would say, in our mini subcommittee meetings over the last three months. And we hope that the changes that we have made have addressed some of them. In the end, the recommendations themselves have not changed very much. Most of the changes that we put into place affected the text of our report. We do hope to bring these to a vote today, but we are also open to discussing any remaining concerns. A quick reminder of why we are addressing this issue. Glomar responses are responses to FOIA requests, wherein agencies neither confirm nor deny the existence of responsive records, on the grounds that revealing the existence or non-existence of records would itself reveal information that is exempt from public disclosure under the FOIA. Such as, for instance, classified national security information.
Such situations were not anticipated by the Freedom of Information Act itself, yet there is a vast body of jurisprudence that provides them with a legal basis. Glomar responses are seen as particularly vexing by the requester community, since they provide no insight into the functioning of government. And yet, government agencies perceive Glomar responses as absolutely necessary tools, to fulfill their obligation to protect information that is critical to national security, law enforcement and privacy. So, Glomar responses, if anything, need more explanation, scrutiny and oversight than normal FOIA responses. But because they were not anticipated by the Freedom of Information Act, and because their very nature conceals their specific rationale from the public, these are currently lacking.
Our recommendations are as follows. And let's see, I don't know if there's a slide for each recommendation or not. There is? Okay. We can go to the first one then. First, that OIP issue guidance to government agencies, that they use the internationally recognized nomenclature of, "Neither confirm nor deny," to refer to Glomar responses. We recognize that in a vast majority of cases, this terminology is being used by agencies, but the term Glomar is also frequently used. And for the average uninformed FOIA requester, this may not be something that they're familiar with. And so, it may be a detriment to either filing follow-up requests, or to understanding their rights under the Freedom of Information Act.
So we can go to recommendation number two. Government agencies should be required to track and report annually to OIP the total number of NCND responses issued. Whether these NCND responses were in whole or in part, the relevant FOIA exemptions that justify NCND responses, and the number of corresponding cases in which these were used. So it could be justified by specific references to the FOIA. The number of NCND responses that have not been affirmed on administrative appeal, and the number of NCND responses that have not been upheld by a court in litigation. We also recommend that the DOJ should annually report aggregated data on NCND responses. So they should, in effect, collect the information in the first part of this recommendation, and then aggregate it for the whole of government and report it. We think that by presenting this information, the public will have a better understanding of how Glomar is being employed across government.
We can move on to draft recommendation number three. That government agencies post on their websites information regarding circumstances that will likely result in an NCND response, and where possible, recommendations on how to avoid such a response. We think that it's important for the government, to the extent possible, to identify common cases where this occurs and make the public aware of these circumstances. This can then help them to craft their FOIA responses in a way that is likely to be useful to them, because there are times in which the specific language used can have an impact on whether or not any information is produced.
There was a concern in the last full committee meeting that this recommendation would somehow provide or urge agencies to provide a way to circumvent their obligations under the law, or to somehow cheat and get access to information that they shouldn't have access to. We don't anticipate this being a problem, because we believe that the agencies will still fully be able to implement whatever obligations they have to protect sensitive information, such as national security information or law enforcement information. It's rather a way of helping requesters to avoid fruitless responses that end up wasting not only their own time, but the time of the FOIA officials and government agencies.
And now finally, recommendation number four. We recommend that a relevant organization review the use and practice of NCND responses across government and formulate a set of recommendations to ensure that these responses are being used in a manner consistent with the goals of the FOIA. We believe that it's important for a government information, sorry, a government agency itself with access to classified information, and authorization to view information that would be protected by privacy, to evaluate the way in which these NCND responses are being used. Because we, as a committee, do not have access to this information. So we are unable to say, for instance, whether specific uses of the Glomar response are justified or not. But we do think that it's important, for the sake of ensuring confidence in the requester community, that an organization be tasked.
We make some suggestions in the specific recommendation itself, OGIS or ISOO may be able to oversee this. But in certain cases, such as in regard to the intelligence community, it may be important for an organization within that community to investigate. So for instance, the Intelligence Community Inspector General, or perhaps the Government Accountability Office. So these are our four recommendations. As you see, they have not changed very much, except for a few words here and there from our last meeting. But we do want to take some time now to answer any questions that people may have, or hear any concerns that they may have, before taking this to a vote. Thank you very much.
Kirsten Mitchell: Thank you, James. This is Kirsten. I just wanted to note one thing. You mentioned ISOO. That is an office here at the National Archives, the Information Security Oversight Office. So, I just wanted to point that out. I also wanted to point out that Bobby joined us, but he had to step away momentarily and Dione has joined us on the phone. So, I just wanted to acknowledge that. And it's over to the committee. Concerns, questions, comments about what James has presented.
Okay, anyone? Allan was that you?
James Stocker: I think Allan raised his hand.
Kirsten Mitchell: Okay. Allan, thank you.
Allan Blutstein: Thank you. Yes. This Is Allan Blutstein from America Rising Corporation. I was wondering whether the subcommittee, whether it was at liberty to shed any light on its meeting with the Department of Justice about these recommendations? I guess it's unfortunate that Bobby has stepped away, but I don't know whether we should assume that DOJ has now endorsed these recommendations. So, that's really my question.
James Stocker: Well, sorry, this is James Stoker, but let me just say that we did have a meeting with OIP with Bobby Talebian and Lindsay Steel, and we compiled a list of comments that they had on the report. They overwhelmingly concerned the description of the problem, I would say, rather than the specific recommendations. However, I don't want to speak for them. And if, it might be a good idea to allow them to come back and tell us if they have any continuing concerns about this. But so that, I do understand the desire to get feedback from them.
Kel McClanahan: I can add a little bit of clarity to this. This is Kel McClanahan for those playing along at home. I wasn't in the discussion that James was referring to, that was with the two OIPs, but we did discuss this with Bobby at a subcommittee meeting. And, while I would probably go out on a limb and say, they're probably not in complete favor of all of this, very few of the points that Mr. Talebian was raising were, "Don't," opposition, I think it'd be fair to say. They were more degrees of how to parse the language, or how to address it, or how to sort of clarify exactly what we're getting at, rather than, "Oh, this is completely unrealistic. There's no way that we can get behind this."
But again, Bobby's not here. I don't want to speak too much for him, but I think that you will not hear much more opposition than you did at the last full committee meeting, when he voiced some opposition, he raised some questions. And I would just point out that even then, given the opportunity to oppose the previous draft, he didn't really say much about how awful an idea it was.
Kirsten Mitchell: Okay. And this is Kirsten. I just chatted Bobby to see if he was there, and unfortunately he is not. But Kel, I think your recollection of events is indeed correct. James, I don't know if you, I mean, we can keep talking about this and hope that Bobby pops back on. We can, whatever you think is best here.
James Stocker: Well, this is James Stocker again. What I might suggest is that, we hear any other comments and then try to see where we're at. Perhaps Bobby will rejoin us in the meantime.
Hello? Are you all there?
Patricia Weth: Hi, this is Patricia Weth. I know I made comments the last time that your committee presented this report. My comments are still the same, for number one, we would like for folks to veer away from the term Glomar and use neither confirm nor deny. In any final response letter that I've written, I've used both terms and cited the Glomar case. The only recommendation that I could see leaning towards is your third recommendation, but ... Oh, and I'm sorry, I should have said Patricia Weth with EPA.
But, regarding the third recommendation about having federal government agencies provide information on their websites regarding Glomar responses. I think the majority of agencies we usually have, I know my agencies have in the past, we usually have a reference guide on our FOIA homepage, and we explain the various redactions. We explain what a Glomar response is. So, I can understand wanting to ask agencies to maybe explain what a Glomar response is. But yeah, I guess my comments and not to take up time, but my comments from our full committee's previous discussion on this, my comments and concerns still stand.
James Stocker: Thanks, Patricia. This is James Stocker again. Can I just ask a question about it, your comments? Are you saying, for instance, that you don't believe that government agencies should have to track and report information about their use of Glomar exemptions, number two, and if so, why not?
Patricia Weth: Well, with the Glomar responses, usually it's the agencies will claim an exemption, as well. I know I've married it with Exemption 7(A) in the past. And we, it's you're probably very familiar with the FOIA Annual Report required by DOJ. They track, all of the exemptions that we make are tracked. It is such a thorough tracking of everything the agency does in their responses. I just, truthfully, to me, I don't see a reason for it. And, again, like I said, for number one, I've always cited to the Glomar case in my final response letters and used the terminology, neither confirm nor deny. So to tell agencies not to use the term, Glomar, that's going to be a tough one, because that's the case.
James Stocker: This is James Stocker again. Well, thanks very much for your response, Patricia. I can only say that I think you are underestimating the deep level of skepticism that exists out there in the public about the use of the Glomar response, is it just inspires a lack of trust. It provides no insight into the information requested, and there's this perception. And I stress that this is a perception because I don't necessarily personally believe that this is always or even frequently the case. But it gives the perception that the government simply doesn't want to respond to the request. And so for this reason, I think it is very important that the government be very transparent about how it uses this. And while you say that the FOIA Annual Report provides information on all sorts of aspects of how the Freedom of Information Act is interpreted and implemented, it does not provide that information about Glomar responses in particular.
So, all we are asking is that that information be reported, if not in the FOIA Annual Report, at least in some other reporting that's done. And ultimately, OIP will have a lot of influence over where that information is reported. But we, just on the subcommittee, I think very strongly felt that first, this information needs to be reported. Second, it's not too much of a burden, or at least shouldn't be too much of a burden to track this information and report it. And then, in regards to the fourth recommendation, well, we just think it's important that an authority within the government, with the power to investigate and to truly understand how this is being done, conduct such an investigation.
So, it was well hoped that this would not be anything objectionable. We're not asking the government to stop doing Glomars. We are recognizing that they are necessary, probably in the overwhelming majority of circumstances in which they're used. So, I hope you will consider supporting at least some of these recommendations.
On the change of the terminology, I do want to address that a little bit, because it is true that many government agencies use this term, "Neither confirm nor deny," right? And that's when they start using it, it gets confusing. So, that's why we're recommending that this term, NCND, be used because we think that ultimately it's clear. Now, it's possible this could be a best practice instead of a recommendation. If that would be more amenable, if there really is a lot of objection in the committee to this recommendation, it could be a best practice because it's something that we want agencies to do. But the world's not going to stop turning if we don't make that particular recommendation. But I really do think that these others are important. So thanks very much.
Kirsten Mitchell: So, James, this is Kirsten, Kristin would like to comment. And then I think I see Jason Gart raising his hand. So Kristin first.
Kristin Ellis: Thanks Kirsten. Thanks James. I just wanted to hop in on the data collection reporting piece, speaking as somebody coming from the government side, we know obviously we are more burdened to do that. I did not start from a position of thinking that this was a great idea, but I do think that there isn't data to support the notion that Glomar is being overused. Right? So I think in the requester community, there is a perception of overuse. I think on the government side, we don't perceive overuse, but there's no way to actually fill that gap to determine whether or not there is some sort of overuse because there is simply no data on the use of Glomar out there. And I'm speaking from an agency that uses it on a very routine basis and uses it in relation to lots of different exemptions.
I think that we cited Glomar using five or six exemptions in one case. So we use it and we use it a lot, but there isn't really actually any data about how often it's used and that data may not actually show anything because the fact that an agency uses Glomar a lot doesn't mean that it's using it inappropriately. It might be appropriate in every single case that it's using it, but we just don't know right now. There isn't really any sunlight shed on how often Glomar is used because the way that Glomar responses get reported in the annual report is not separate. So if you cite a Glomar, if you deny a request based on 7(A), that's going to show up whether you cited 7(A) Glomar or whether you just did a categorical denial under 7(A), the same thing with 6 and 7(C).
Attaching it to an exemption by itself doesn't actually give you a great data point. So I was convinced and came around to the notion that actually gathering some data is critical to answering the question that we started with when we started going down this path, which was, is there actually a problem or an overuse or something that needs to be addressed in relation to Glomar. Again, coming from the agency standpoint, I personally think the answer to that is no, but we don't have any data to back it up either way. So that's kind of where we came to and why we are making the recommendation, at least from my perspective as an agency representative.
Kirsten Mitchell: So thank you. This is Kirsten. I just want to point out that Kristin is from the FBI.
Kristin Ellis: Sorry. Sorry. [inaudible 00:35:35] FBI.
Kirsten Mitchell: So Jason.
Jason Gart: Yeah. Jason Gart, History Associates Incorporated. I just want to... Well, first of all, I think, terrific job to both of you on drafting this recommendation. James, you mentioned perception. And I think you're absolutely right. Speaking for someone that is from the requester community, and in fact, I don't really like that term requester community. I'm just a citizen using FOIA, right? And I think that anything we can do that increases transparency is important. And I think that perception is... There is a perception and that perception does carry weight. And I think for those of us that are not within the government, number one, Glomar is just strange that, what is this term Glomar? So why not just say what it really is? And number two, anything again, anything we can do to increase transparency to push away or pull away the curtain I think is useful. So I think none of these are earth shattering, and I think these are all intended to improve the process. So, thank you.
Kirsten Mitchell: Kel, did you want to say something?
Kel McClanahan: Yes. And this is Kel McClanahan. I was going to sort of draw the attention to the fact that Kristin, the FOIA litigation person from the FBI and Kel, the attorney who quite often sues the FBI, managed to come to the middle ground on this. It is really rather remarkable given where we started from, but to her point of the importance of data, this cannot be overstated. As a litigator, as someone who has clients, I often find myself having to explain to the client that things aren't necessarily as bad as they look or that what they might see as a big problem isn't actually as big of a problem as it is.
So I am kind of in the middle of the road on this when it comes to what we can actually point to. I agree with Kristin wholeheartedly that if the data comes back and the audit comes back and the agencies are being entirely forthcoming and entirely conscientious about how they're using Glomar, I will be happy to stop complaining about what I see as an overuse of Glomar. My anecdotal information is different than Kristin's anecdotal information, is different than James's, or Jason’s or anyone else's. It's all anecdotal, it's all a small piece of the elephant.
And if this recommendation yields nothing more than a complete understanding of what a good job the government is doing with Glomar, that will be something much better than what we have right now, which is no consensus because nobody knows what the data is. And so nobody can just blindly trust the other side that what they're saying is accurate. That's my two cents.
Kirsten Mitchell: Okay. Thank you, Kel. James, I'm not sure that Bobby is back, but he did chat to say in the event of a vote, if he were here, he would vote to abstain. So I just wanted to throw that out there. We don't have proxy voting or anything like that, but I wanted to let folks know that.
James Stocker: This is James Stoker. I just want to ask Allan if he still has concerns. Having met with, I can't speak for Bobby, but having met with his team, I did not hear any major substantive concerns regarding the recommendations. And we also did not receive any follow up feedback from him that would indicate that he had, or that OIP or DOJ had a major concern with any of these recommendations. Does that alleviate your concerns about this Allan is what I'd asked?
Allan Blutstein: Thank you for asking. Well, I should note that my concern [inaudible 00:40:55] recommendations three and four, but with recommendation one and only a portion of recommendation two, I simply have a preference not to ban the use of a word, knowing that it's been in circulation for 40 years. And I'm not a big fan of acronyms. I think the DC Circuit discourages the use and so that's a personal preference. Again, the world will not... the FOIA world will not crumble if recommendation one passes, just a personal preference. And with recommendation two, it's only the final two bullet points I'm somewhat skeptical about. Court decisions are publicly available and DOJ summarizes them on its website. And so I don't know why agencies across the board need to track that data and likewise with administrative appeals that it seems awfully burdensome.
And I'm not sure what insight would be gained if an agency reversed an initial Glomar response. It could be that circumstances changed that perhaps the requester submitted proof of death or a consent form, or there's been a public acknowledgement that warrants reversal. So I'm not sure that a reversal would mean that there's been abuse on the agency's part. But as a general matter, I agree more data is useful and I think DOJ, OIP agreed with that. So, those were my concerns.
Kel McClanahan: This is Kel, I'm going to weigh in briefly on that last point you just, well, not the very last point about DOJ, but the point about the appeal data and the litigation data. The appeal data, I guess, I have an issue with the idea of, because some cases might be legit or some cases might be, they submitted more information or something like that that we shouldn't collect data on it because by definition, if some data, if some of them are because of submission of new information or something, then some aren't, and we don't know whether it's going to be 90-10 or 10-90 or 50-50 on that until we get data.
As for the litigation issue, this is something the agency is trying anyway, for the most part and DOJ definitely tracks it. But by this argument, why is DOJ putting out a FOIA litigation summary when people can go and get the information from surfing PACER for the 40, 50, 70 district courts across the country that have FOIA cases. This is something that there's publicly available and then there's really publicly available. And the fact that you can find something by scouring all of the court sites, instead of having an agency who knows it. So if they were in the case, simply compiling it into a report doesn't seem like a terribly good reason to object to a reporting requirement. But that's my thought on that.
A. Jay Wagner: Yeah, Kel and I'll follow up with that as well. First of all, this is A. Jay Wagner and I think this is a really good recommendation. I think it can't be understated how dispiriting Glomar responses are for a requester. It definitely chills the requesting process. Once you receive a Glomar, it's game up, it's a black box and it's really hard to push back, it's really hard to challenge. That said there's obviously many good, legitimate reasons for it, but I think the importance of those last two bullet points on recommendation two are key. I think if you just quantify the number of Glomars that are issued each year, the agencies will say in each one was legitimate. I know that we can't do an in qualitative review of every Glomar response, but this at least gives us some substance on what these look like and how they're challenged and whether they are or are not legitimate.
And I think that review on recommendation four is especially important as well. Again, just quantifying these numbers, I don't think any agency is going to tell you anything other than we issued a thousand Glomars last year and each one was legitimate. So there needs to be a qualitative element to this. And I think you've done a very good job of finding an element or an effort to do that and go a little bit more in depth without being too invasive. But again, I think this is really something that continues to need to be addressed. It's been an enduring issue. And I think this is a small step in the right direction. I applaud the recommendation from front to back. I think it's helpful. I honestly think it continues to need more work in this area because I think from the requester community, again, a very big issue and really dispiriting and honestly, unless you're a lawyer yourself, it effectively ends the request. So I think we need to continue to think about how it's used and where we go from here. So thank you for your work on the recommendation. It's much appreciated.
Kirsten Mitchell: So thank you, A. Jay. Thank you, Kel. I'm going to call on Tom Susman because he has been waiting very patiently to ask a question. And I also want to say Bobby is back. So welcome back, Bobby. Over to you, Tom.
Tom Susman: All right, Tom Susman, a public member and I think this is a great recommendation and I guess one of the questions I had, I think maybe Patricia raised earlier that this should be a best practice rather than a guideline. And I was wondering what the difference is and guidelines aren't mandatory. And is there a hierarchy where guideline is stronger than best practice? Because if best practice would do the job and the agencies would feel more comfortable, that would be okay with me. My bottom line is that when the FBI representative says that she thinks that this is a good idea having the FBI and years gone by at a time and again, I'm all for it too.
Kirsten Mitchell: So thank you, Tom. I think I can answer that question. Best practices are just what they say, no requirement that they be done. I think a recommendation that OIP issue guidance certainly carries more effect than, hey, this is just a good idea from the advisory committee. So, really it's up to you all. What you all decide you'd like to do.
Kel McClanahan: This is Kel. I think the reason that we settled on guidance versus OGIS issuing of best practice is more for who will listen to it. There are agencies who will say, oh, OGIS, they just do mediation. We're not going to listen to them. But if OIP says you should do something, they still don't have to do it. But in the current environment in FOIA, in the government, OIP guidelines and OIP guidance is given a little bit of a bigger importance than OGIS best practices. I don't think that should be the case. There's a whole presentation coming up on some of the reasons why that should not be the case, but that's that. As far as do agencies have to follow one, not the other, no, it is purely a sort of getting the message through to people in terms that they will give it serious consideration.
Bobby Talebian: Hi, this is Bobby from OIP DOJ. First, I want to apologize for jumping in late. I had to be pulled away, but, and so I apologize if I... Can you hear me?
Kirsten Mitchell: Yes.
Bobby Talebian: I apologize if I'm repeating something or not, or I believe the recommendation for guidance was as to just the reference of neither confirmed nor deny. Is that right? Yeah. And so I really appreciate James and Kristin's work on this and really appreciate being able to meet with them. And I think these recommendations while we didn't necessarily agree with them completely, and I think one, we agreed to disagree with is maybe the first one, just because I don't know if there's evidence really of this being an issue, but also in principle, I think these are things that we can work with. And so I just wanted to just give my thoughts on it. And so I think we can take these and if not fully implement them the way the subcommittee envision, maybe in principle, get there.
James Stocker: This is James. Thanks very much for that, Bobby. But you may not realize it, but you have been the subject of considerable conversation over the past few minutes. And at least as I understood the concern as well, is this something that the DOJ is concerned about? So it's good to hear from you that there aren't any major concerns about any of these issues.
So let me also just say thanks to everyone for your comments on this. From what I'm hearing, there's possibly a concern from some people about recommendation number one, but I think we've only heard that from a couple of people. I wonder if we're not ready to vote on these right now. And then perhaps if number one does not pass for some reason, if there's more hidden opposition that we're not hearing, we can consider it as a best practice. Would that plan work for everyone?
Kel McClanahan: I second.
Kristin Ellis: This is Kristin. I'm fine with that.
James Stocker: Okay, great.
Kirsten Mitchell: Okay. So this is Kirsten. I don't believe we need a vote on whether we're going to vote, but we would need a motion. And I think what I hear you all saying is that you'd like to divvy these up and consider them individually. So we would need a motion on that.
James Stocker: This is James Stoker, a motion to consider these recommendations individually.
Jason Gart: Seconded, Jason Gart.
Kirsten Mitchell: Okay, great. All those in favor, say aye. [crosstalk 00:52:58]. Okay. And any opposed? Okay. Dave, was that a hand up to speak? No. To say aye. Yes, okay. Thank you. So I'll need a motion on each one of the recommendations and then we'll have a vote on each one of them. So if we could go back to slide one or the draft recommendation one, please, Michelle. Okay. So if someone wishes to make a motion.
Kristin Ellis: This is Kristin. I move to vote on recommendation number one.
Kirsten Mitchell: Okay. We technically don't need a second, but I'm happy to entertain one.
Allyson Deitrick: Can we go back to, sorry, this is Allyson. Can we go back to the Glomar recommendations? These are the technology subcommittee recommendations.
Kirsten Mitchell: Oh, I'm so sorry. Yes. Thank you. Glomar, thank you, Allyson. Having trouble speaking and reading at the same time here. So Michelle, if you could go back to Glomar or the Classification Subcommittee recommendation, number one. Yep. Perfect. Thank you.
Kristin Ellis: No, that's still the Technology Subcommittee draft.
Kirsten Mitchell: Yeah, it still is. There we are. Okay. So I heard a motion-
Jason Gart: Second.
Kirsten Mitchell: And I hear a second. Okay. So this is Classification Subcommittee, draft recommendation one, that OIP issue guidance to government agencies that they use the internationally recognized nomenclature of neither confirmed nor denied to refer to Glomar responses. All those in favor, please say, aye. [crosstalk 00:55:11]. Okay. Do we have any opposed? If you are opposed, please say nay. [crosstalk 00:55:18]. Okay. I'm going to have to... Speak up and tell me your name so I can get that recorded please. On the nays.
Patricia Weth: Hi Kirsten, Patricia from EPA, nay.
Kirsten Mitchell: Nay. Okay. Thank you.
Allyson Deitrick: Allyson Dietrick [inaudible 00:55:36], nay.
Kirsten Mitchell: Okay. Allyson Deitrick, nay. And there was one other.
Alexis Graves: Alexis Graves from USDA, nay.
Kirsten Mitchell: Alexis Graves from USDA, no. Okay. Anyone else?
Allan Blutstein: Allan Blutstein from America Rising Corporation.
Kirsten Mitchell: Okay. Allan Blutstein is a no. Okay. And then anyone else? No. Okay. Any abstentions?
Bobby Talebian: I abstain.
Kirsten Mitchell: Okay. Thank you, Bobby. So we have, the motion carries by a majority vote for passing draft recommendation number one. We have four nays or is it three? No, it's four nays and one abstention. So the record will show that. Let us please move on to the second one. Michelle, if you could go to classification ... Yes, exactly.
Kristin Ellis: I move to vote on draft recommendation number two.
Kirsten Mitchell: Okay. Kristin Ellis moves to vote on classification subcommittee draft recommendation number two, which I will not read. That is up on your screen.
Kel McClanahan: Second.
Kirsten Mitchell: Okay. And there's a second. Again, we'll go through this. All those in favor of classification subcommittee draft recommendation two, please say, aye. [crosstalk 00:57:37]. Okay. Do we have any opposed to this one?
Patricia Weth: Yay. Patricia Weth, EPA.
Kirsten Mitchell: Patricia Weth is a no?
Patricia Weth: Yes.
Kirsten Mitchell: [crosstalk 00:57:49]. Anyone else?
Matt Schwarz: Yes. Matt Schwarz from EPA.
Kirsten Mitchell: Matt Schwarz from EPA is a no. Okay. Anyone else a No?. Terrific. And then any abstentions?
Bobby Talebian: I'll abstain again.
Kirsten Mitchell: Okay, great. Let the record show that Bobby Talebian is abstaining. We have two nos, the rest yays, the motion carries. So thank you for that. Michelle, if we could go to the next slide, please. Okay. Classification subcommittee, draft recommendation number three, this is the one that government agencies post on their FOIA websites information regarding circumstances that will likely result in a neither confirm nor deny response and where possible provide recommendations and tips on how to avoid such a response from an agency. Is there a motion?
James Stocker: Motion to vote?
Kirsten Mitchell: Okay. Motion to pass the recommendation.
Patricia Weth: Kirsten, this is Patricia Weth, EPA.
Kirsten Mitchell: Yes.
Patricia Weth: May I suggest just a slight word change on this one? I'm wondering if it would be possible to just put a period at the end of neither confirm nor deny response. And if the subcommittee would agree to removing and where possible recommendations on how to avoid such a response, I don't know if the subcommittee would agree to that, but that would be one suggestion I have.
Kirsten Mitchell: Okay. Are you making a motion then to pass this recommendation with that edit?
Patricia Weth: I would, yes.
Kirsten Mitchell: Okay, great. Well, I will, then that motion is on the table for discussion. And just to be clear, the motion is that the committee pass this particular recommendation ending with neither confirm nor deny response period, and then strike where possible recommendations on how to avoid such a response.
Bobby Talebian: This is Bobby from DOJ. I'm obviously I'm going to continue to abstain given our role, but I strongly agree with Patricia, agencies really aren't in a position to advise how to avoid such a responsible, we can give as much education about role, more responses in our records as possible to educate the requester, but we can't advise requesters.
James Stocker: Sorry, others can chime in if they want to, but this is James Stoker. I just wanted to say that while I appreciate where this is coming from and I understand that this does not necessarily place government agencies in a comfortable position in having to give advice on how to avoid those responses are possible. I do think the term where possible gives the agencies a very large amount of leeway in deciding how to approach this question. So I would personally prefer to see that clause remain.
Kel McClanahan: This is Kel. I think that this concern infantilizes FOIA offices and agencies. I don't think that these offices and the people who will be writing this information on their website will read this and go, oh, no, I must tell the requesters how to circumvent my legitimate response so that I must release information to them that is properly exempt. I think we'll see this for what it is, which is what some agencies already do. Here is what you need to do if you don't want to get a Glomar response, you need to prove if it's for privacy, you need to get proof of death. You need to give consent form. You need to give public interest.
If it's something like classification or if to the degree that you can point to public disclosure of the information that you're looking for, please do. These are common things that no agencies are doing this, and they all must have concern. The concern is that if some agencies are doing this in all months, it's not that big of a lift, I don't think. And I don't think this is going to result in a whole bunch of how to get out of jail free cards while still committing crimes websites.
Bobby Talebian: Yeah. I don't think that's necessarily it. Honestly to me without the clause, I think everything you're aiming for, you're getting. Fully educating the requester on when agencies are going to issue Glomar response and when they're likely, for example, like you said, to provide a certain item I think that accomplishes it. It's just, the setting clause reads funny. We're recommending how to avoid a Glomar response. I could go, like I said, in principle, I think we can work with these recommendations. So, but I did want... I understand Patricia's concern.
Kristin Ellis: This is Kristin from the FBI again. And I will say that in the subcommittee when we were addressing this one as an agency representative, I had some [inaudible 01:03:55] with it. And in fact, I think the where possible language is a result of those discussions. There are certainly, I guess it depends on how you're looking at it, but Kel is not wrong in the sense that, for example, on FBI's website, we explain that you will get a Glomar response if you ask for third party records, unless you provide proof of death, consent, or an overriding public interest.
So we say the circumstance where you're going to get it, third party request. We also do give recommendations about how to avoid that. That's essentially what this is. I don't know that this is going to change what's on most websites, to be frank. Because if the notion is like a classification Glomar, there just aren't a whole lot of recommendations that agencies can make that will allow you to get the information that you're looking for without stumbling across the Glomar response, because the circumstances for that are just too varied. Unlike in a privacy Glomar situation where it's a very specific series of steps that you could go through where you can ultimately get at the information if you can give us one of three things.
So this was a compromise, I believe, by the subcommittee to encourage agencies to help requesters craft FOIA requests, which the FOIA does require us to do. So again, this was a topic of a lot of debate on the subcommittee. And I didn't love this, but I think that where possible, as James said, it's not mandating that the agencies do anything that is going to tie them up in a way that they can't then protect their equities. And I don't know that it's necessarily going to change a lot of what's on an agency's website.
Kirsten Mitchell: Okay.
Bobby Talebian: That's fair enough. And I appreciate you giving us insight into the discussions that went into this.
Kirsten Mitchell: So we have a motion on the table from Patricia regarding striking the and where possible recommendations on how to avoid such a response. The original motion was that the recommendation pass without that being struck. So I think we should go ahead with the full recommendation. And then if that fails, we could vote on the Patricia Weth amendment, if you will. And I'm sorry for any confusion that I may have caused there. Does anyone else have anything else to add?
James Stocker: This is James. I just want to say that that course of action sounds good to me.
Kirsten Mitchell: Okay, great. So I believe there is a motion on the table for the recommendation as is written and shown on the screen. Are we ready? Are you all ready to vote on this? Sorry, I'm trying to catch a glance of everyone to see if anyone has anything more they'd like to add. I'd like to keep things moving along, but I don't want to cut off debate. So does this sound like a good course, James? Okay, I see a nod. Okay. So classification subcommittee draft recommendation number three, that government agencies post on their website's information regarding the circumstances that will likely result in a neither confirm nor deny response and, where possible, recommendations on how to avoid such a response. So again, I'm going to ask all those in favor, please say aye.
James Stocker: Aye.
Kristin Ellis: Aye.
Speaker 2: Aye.
Speaker 3: Aye.
Kirsten Mitchell: Okay. And then any opposed?
Matt Schwarz: Nay.
Patricia Weth: Nay.
Kirsten Mitchell: Okay. I think I heard Patricia.
Alexis Graves: Nay. Alexis Graves, USDA.
Kirsten Mitchell: And Alexis Graves, USDA. Thank you for that. And I'm sorry, was there one more nay?
Matt Schwarz: Yeah. Matt Schwarz, EPA.
Kirsten Mitchell: Matt Schwarz, EPA. Super. Okay. Any other nays on this vote? I've got Alexis, Matt, and Patricia. Okay, great. And then any abstentions?
Bobby Talebian: I abstain.
Kirsten Mitchell: Okay. Let the record show that Bobby Talebian abstains. So this motion carries by majority vote on Glomar recommendation number three. So if we can move on to number four. Next slide, please, Michelle. That would be great.
Okay. And this draft recommendation is that a relevant organization review the use and practice of these responses and come up with a set of recommendations to ensure that they are being used in a manner consistent with the goals of FOIA. So this is the one about gathering more information. Do I have a motion?
Kristin Ellis: I move to vote on draft recommendation four. This is Kristin.
Kirsten Mitchell: Kristin. Okay. And is there a second?
Jason Gart: Second, Jason Gart.
Kirsten Mitchell: Jason Gart. Okay. Any more discussion about this one? Okay. Hearing none, all those in favor of Classification Subcommittee draft recommendation number four please say aye.
Jason Gart: Aye.
Kristin Ellis: Aye.
James Stocker: Aye.
Kirsten Mitchell: Aye or aye. Okay. Great. Any opposed? Okay. I don't hear any opposition. Any abstentions?
Bobby Talebian: This is Bobby. I abstain.
Kirsten Mitchell: Okay, great. So this recommendation passes unanimously with one abstention. So thank you for that. And thank you, James and Kristin, for your work shepherding these. Greatly appreciated. So we are now at the 11:15 mark. And next up is the Technology Subcommittee. We're slated for a break at 11:30ish. So I'm going to throw it out there for what the Technology Subcommittee would like to do here. Do you want to get started? Do you want to take a break now and then pick up at 11:30? What is your pleasure here?
Allyson Deitrick: This is Allyson. We were planning to go through each recommendation separately. So maybe do the first recommendation and then take a break if that works for people, or if it's easier to take a break now and come back and do it all at once. That's fine as well.
Jason Gart: Perhaps take a break. This is Jason Gart. Perhaps take a break, and then start fresh since we'll also hopefully be voting.
Kirsten Mitchell: Okay. Well that sounds like a plan. We've been at it for an hour and 15 minutes. I think we could all use a break. So I am going to break the meeting for just 15 minutes. And if you could come back right at 11:30, that would be great. If I see a lot of you are back by 11:25, I'll get started a little early, but I will see you back here soon. Thank you.
Kristin Ellis: Thanks, Kirsten.
(break)
Kirsten Mitchell: Welcome back. I’m Kirsten Mitchell and I am the Designated Federal Officer for the FOIA Advisory Committee. I am chairing the meeting today. So before we return to committee business, I understand that there are some folks who have questions about public comments. As I mentioned early in today's meeting, we've received some written comments. They're being reviewed and evaluated prior to posting to ensure they satisfy our posting policy for public comments.
If you have submitted public comments and do not yet see them on the website, please, please be patient. We are running a bit behind and we will post public comments that meet our posting policy after remediating them to ensure that they are compliant with section 508 of the Rehabilitation Act.
So we are now moving to the Technology Subcommittee. So I will turn it over to Allyson Deitrick and Jason Gart, who will present a package of recommendations from that subcommittee.
Kristin Ellis: Thank you so much, Kirsten.
Kirsten Mitchell: Over to you.
Allyson Deitrick: Thanks so much, Kirsten. My name's Allyson Deitrick from the Commerce Department. The Technology Subcommittee has been busy trying to figure out ways that we can provide recommendations to further enhance the FOIA process from the technology side. And we have three recommendations that we'd like the full committee to discuss today and potentially vote on if that's the way that the discussions lead. Hopefully we'll have as vigorous a discussion with our recommendations as we did with the Classification Subcommittee's recommendations.
So how we're going to do this today, Roger is going to discuss the first recommendation dealing with posting a minimum level of information to FOIA websites. Then David is going to discuss the recommendation two regarding establishing a working group to look at best practices for releasing records in native format, including metadata. And then A. Jay's going to discuss recommendation number three, regarding further recommendations that were previously submitted during the 2016-2018 term and how we think that they should still be further pursued. With that, I'm going to turn it over to Roger. Thank you.
Roger Andoh: Thank you, Allyson. My name is Roger Andoh. Last name is spelled A-N-D-O-H. So our first recommendation is we recommend that the Archivist work with the Department of Justice Office of Information Policy to encourage agencies to post a minimum level of information to their website beyond what is required by the FOIA statute. We list a few standardized elements that should be on agency websites. I'm not going to go through all of them. I'm just going to highlight five on the list.
All right. Number one is that one of the elements that we would like to see on every website is that each website should link to their current FOIA regulations and include an FAQ section where you provide this information in plain language. Another element that we would like to see on websites would be best practices for writing your FOIA request with examples on how to write a FOIA request. Three: accessible contact information for individuals with disabilities that they can use if they encounter inaccessible documents. A fourth element would be the description of the types of records, a request that we considered overly burdensome or not sufficiently specific.
The final one I'm going to touch on will be the average processing time for requests. The intent of this recommendation is to make agencies' websites more user-friendly and reduce the necessity for FOIA requests for records that have already been released. It's also intended to improve efficiency by allowing for FOIA officers to focus the resource on records that have not already been made available to the public.
The idea is not to have every FOIA website to look the same because we know that every agency has ... the look and feel of websites has to be in conformity with the agency's own standards. But the idea is that each FOIA website for every agency should have setting basic standardized information that should always be on every website, regardless of what agency you're looking at. That concludes my brief summary of recommendation number one.
Allyson Deitrick: Okay. David, do you want to discuss number two, and then we can come back to the recommendations as a whole?
David Cuillier: Totally your call. If you want to hit these one by one or go through happy to serve. What's your pleasure?
Jason Gart: Yes. This is Jason Gart, History Associates. Anybody have questions about the outline Roger provided on number one?
James Stocker: This is James Stoker from Trinity Washington University. So the only question that I had is, are there already a set of guidelines, say from the Department of Justice or from some other agency about what specifically should be posted on the website? Or is it just what the FOIA itself mandates?
Bobby Talebian: This is Bobby from DOJ. We do have guidance on our agency’s websites. And I appreciated the paper, I looked at the white paper acknowledging that there is the guidance. And also we have foia.gov where we satisfy a lot of what's being pointed out specifically. But I believe the intention of this is just to reemphasize and reinforce the importance of this.
Alexandra Perloff-Giles: Hi, this is Alexandra Perloff-Giles, the media representative. I'm curious what is meant by contact information, and if there was thought given to elaborating on including both phone and email address information, because that strikes me as one of the most important features of this recommendation?
Roger Andoh: This is Roger Andoh from CDC. When we refer to contact information, we certainly mean phone and your email address. In fact, most agencies already do provide. And I don't know OIP [inaudible 01:36:37] you have, for liaison contact information listed.
Thomas Susman: This is Tom Susman with a question, what's the argument against more standardization of the website, of the FOIA website portal itself? I notice you have... You want standardized elements, but you specifically say you are not recommending standardized websites, FOIA websites. Why not? Why should the public going from one agency to the other have to navigate a wholly different approach to FOIA request and finding FOIA information?
Allyson Deitrick: Tom, this is Allyson. We've discussed that too, because at first that was our thought, was that we should lean towards standardization across agencies. But with each agency having different topics that they cover and different needs and information that they want to convey to the requester community, we didn't want information that an agency thinks is important for a requester to have, to not be there because it doesn't fit in with the way the standardization is, recommendation would occur. So that's why we were looking more towards elements that should be included as compared to making everything look exactly alike.
A Jay Wagner: This is [inaudible 01:38:10] a big problem across all our technology concerns, is that there's a lot of unique situations and the different approaches to technology and FOIA generally across the government. But we ran into different approaches to technology, different software, different practices built out over years and years and years, so it was really difficult to think about standardization, absolutely on our mind though, Tom, when we were thinking through this.
Kirsten Mitchell: And this is Kirsten, that was A. Jay Wagner, who was just speaking.
Jason Gart: This is Jason Gart, and I just also had to... Allyson and A.Jay are absolutely right, and Roger. We spoke about this at length and the feeling was that there's a lot of different... Each of the websites have a lot of different looks and feels. And one website may look this way, one may feel and look this way, and we thought the best way to handle that, in the reality of that, we're not going to have just rebuilding these websites across every agency was to standardize the elements of information they should include.
Kirsten Mitchell: Allan, did I see your hand up?
Allan Blutstein: Yes. Thank you. This is Allan Blutstein from America Rising Corporation. My question is, of the 15 items that are listed, can you give a few examples of what is new from 2017 that was not in DOJ’s guidance?
Jason Gart: That's a good question. I would say one thing that... And again, I'd have to go back and check, but I think the average processing times and also the number 11 descriptions of types of records that would be considerably burdensome, not specifically specific. So I think number 10, which was the processing time, number 11, the burdensome issue, and then also... And Allyson can correct me or Roger can correct me, but I think the Capstone email policy as well on the email retention schedules. So making sure people understand that there's a Capstone email policy at certain agencies and you might want to target that. I also think that the guidance tips on how to best frame the question might not have been specified, but again, I'd have to go back and look.
Allan Blutstein: Thank you.
Kirsten Mitchell: Okay. Anyone else have any comments, questions? Alexis?
Alexis Graves: Alexis Graves, USDA. I'm sure you guys did a thorough review of agency websites as they currently exist, could you talk a little bit about the findings, maybe generally? Were there what you would call gold star agencies that do all of this information? Any insight into that process would be helpful.
Kirsten Mitchell: So this is Kirsten. I'm going to jump in here for a minute and take off the hat that I'm wearing now and put on my hat as compliance team lead. We conducted an assessment of agency websites, a pretty thorough one last year, and we gathered all the information but we have yet to analyze it, but we're planning to do that very soon I hope, and we are planning to share it with OIP. So hopefully, that will help them do whatever work OIP needs to do on this. So sorry if I interrupted anyone, I just wanted to put that out there. And then Allyson and Jason, you can speak to any specific sites.
Jason Gart: So this is Jason Gart. I'll jump in first. I'll say one thing that I think is important about the recommendation is on page two, where we recommend that agencies keep the user experience in mind when designing or updating their websites, and meet any requirements set forth by the Federal Web Council. I would say that if you look at websites, agency websites, and then look at commercial websites, just name your... Name a website of a commercial institution or a business or entity, I think there's a lot of areas that... A lot of ways that we can improve websites so that they really have the customer experience in mind.
And I know that's skirting your question a bit, but I would say that there's a lot of websites out there that are non-government, that actually really focus on the customer and ease of use, and understand that there's a user experience. I don't think there's a lot of agency websites, and I could be wrong, but I think that they're not really that much focused on the user experience. So again, that's just my comment.
Patricia Weth: This is Patricia Weth with EPA, and I really like this recommendation. I feel... I'm a person who likes lists, and I can check things off. And at my former agency, we had recently revamped the agency website and I relied heavily on the DOJ’s guidance and the DOJ self-assessment toolkit to help me upgrade my website. And when I'm looking over this list, and there were things that I didn't put, such as number four, giving a description about the Capstone email policy, I think that would be really helpful. And also I tried to give guidance on how to draft a good FOIA request, but it didn't actually give a hard example. And I think that's helpful as well, as another item I think you've had in here, how to fill out the FOIA request form. I think that would be helpful too.
So there's some additional really helpful tips in here that next go around I will be implementing. So thank you for this.
Kirsten Mitchell: Thank you, Patricia. I see that Michael Morisy's hand is up and so is Kel McClanahan’s. So over to you, Michael, and then to Kel.
Michael Morisy: Yeah, I just wanted to say, I really appreciate this recommendation in the posting of stuff and also how it's structured in terms of a best practice recommendation, but also is very specific in terms of that recommendation. I think one thing earlier it was asked, what's the difference between this and some of the prior recommendations about how websites should include more information? And I think there is a lot of overlap, but I think so much of this is really practical material that's accessible to the requester community, versus I think agencies have done a tremendous job in improving what they're putting on their websites. But a lot of it is very in the weeds or are tough to parse for first time requesters and things like examples of requests, what will and will not likely be a burdensome request, and strategies for that I think agencies a lot of times feel hamstrung in terms of, as we talked about earlier, the advice they can give requesters, and so providing this structure. And then hopefully revisiting this in a couple years and figuring out what pieces of this are challenging, I think will be really, really fruitful.
So thank you to the Technology Subcommittee for coming up with these basic really accessible strategies that I think will make better requests going to agencies and requesters feel more confident in the process.
Kirsten Mitchell: Thank you, Michael. Kel?
Kel McClanahan: Hi, this is Kel McClanahan. I very much am in favor of this recommendation. I'm always a big believer in the more information that helps requesters to get across what they are actually trying to get and how to get them is a good thing. Not only because it helps the FOIA officers understand exactly what it is they're looking for and it's written in FOIA officer language, but also so that if a fight does come up, say either on appeal or in litigation, you're not arguing about technicalities or something. You're actually arguing about something substantive, like if this information is exempt, was the best search conducted, et cetera. The one suggestion that I would make, and I would hope that the subcommittee would just adopt it on its own, is I would modify number 11 by splitting that in two, to say the types of records that we considered unduly, overly burdensome.
And I would say unduly, not overly because that’s what the court language normally calls it unduly burdensome, and then a description of the types of the records that would be considered not sufficiently specific are unreasonably described, because those are two completely different things. And they’re conflated all the time to the detriment of everybody involved in the argument. And so for instance, something is unduly burdensome if you request all records maintained by the agency, even though it’s clear what the person is asking for but it would impose a burden, whereas something could be very specific and not reasonably described by virtue of the way it’s phrased.
And so I think that due to that distinction and due to the fact that a lot of FOIA officers don’t understand this, “Oh, most requesters don’t understand this distinction.” And if you are going to be running into a case where you might be rejecting something for one or the other, if you’re trying to help the requesters and the FOIA officers have a meeting of the minds, it makes sense to spell out which is which in the website, so that you don’t have any talking past each other because you’re using different definitions. But without... I think that we should approve this as written, I think that we really should approve it with my suggestion, suggested amendment, but either way, I think it’s definitely an excellent recommendation.
Kirsten Mitchell: Okay. This is Kirsten. I just want to say that like the previous recommendations, you all can handle it one by one, so vote on recommendation one, two, and three, or as a package. So I'm going to leave that up to you all, Allyson and Jason. And I recognize we haven't yet heard about recommendation number two and number three.
Allyson Deitrick: I think it would make sense to vote on each recommendation separately.
Jason Gart: I agree. So I'll make a motion to vote on recommendation number one.
Allan Blutstein: Second the motion.
Kirsten Mitchell: Okay. So we have a motion that the committee approve technology subcommittee draft recommendation number one, that OIP encourage agencies to post on their FOIA website certain information beyond what is required by law. I heard a second, so I'm going to call for a vote unless there is more discussion.
Kel McClanahan: Well, just to clarify, is this with or without splitting 11 into two parts? We didn't hear from Jason or Allyson about my proposal.
Allyson Deitrick: So Kel, just to make sure, so I have your proposal would be to split up 11 and 12. So 11 would read description of the types of records that would be considered unduly burdensome by the agency, and then the new 12 would be description of the types of requests that are not reasonably described. And then the rest, the sub recommendations be remembered, is that correct?
Kel McClanahan: I'm sorry, I was muted. Yes, and then 12 would become 13. Basically, we would stick in at 11.5 to split 11 to two parts. So we would... In the final recommendation, we would move everything down a number after 11.
Allyson Deitrick: I also want to make sure that I had your language correct. Okay.
Kel McClanahan: I would change the second line that you said to match the first one to say would be considered not reasonably described by the agency, as opposed to which are not reasonably described, just to have parallel structure in between the two, but... Yeah, that's it.
Kirsten Mitchell: Okay. We do have a motion on the table, but I'm going to toss it back to Jason to respond to that. But I see... Before I do that, I see that Allan has his hand up, I believe.
Allan Blutstein: Yes. Thank you. As long as we're finagling with item 11, I wonder if we would... If the committee would also consider changing the word, "Would" to something else that would not bind the agency to necessarily rejecting a particular worded request?
Kel McClanahan: May?
Allan Blutstein: May or would likely, or something like that.
Kel McClanahan: Or traditionally? Something like that. I like, "Would likely be."
Jason Gart: "Would likely" How [inaudible 01:53:59]
Allan Blutstein: Yeah, that would work. Thank you.
Kirsten Mitchell: Okay. Jason, you have several ideas out there. Do you want to [crosstalk 01:54:14]
Jason Gart: I'll make the [inaudible 01:54:15] I'll make a motion to vote on recommendation number two, with the [crosstalk 01:54:21]
Kirsten Mitchell: Number one.
Jason Gart: Excuse me, recommendation... Motion to vote on recommendation number one with the textual edits suggested by Kel and Allan.
Patricia Weth: This is Patricia Weth from EPA. I heard the last recommendation, the change, but I wasn't sure of the first change, could I hear that the first change again was for item 11?
Allyson Deitrick: Okay. So Patricia, I can cover that. So Kel's original requests were to split up what we had proposed as sub bullet 11, description of the type of records that would be considered overly burdensome to the agency or not sufficiently specific, to break that into two separate items, one related to the burden, and the second one due to specificity. So it will be combining both Kel and Allan's edits, we have the new number or the current 11 reads, "Description of the types of requests that would likely be considered unduly burdensome to the agency." New number 12, "Description of the type of request that would likely be considered not reasonably described." And then the rest of the numbered sub recommendations would be moved to-
Kel McClanahan: By the agency?
Allyson Deitrick: Sorry, can you repeat that?
Patricia Weth: Thank you so much.
Kel McClanahan: You said, by the agency at the end of the new 12.
Allyson Deitrick: Thank you. I'll fix that.
Patricia Weth: Thanks for that, Allyson.
Kirsten Mitchell: Yes. Thank you. So is everyone clear what the motion is? I see a few head nods there. Okay. So I think we're ready for a vote to pass draft recommendation number one, from the Technology Subcommittee to reflect the changes that Allyson just went over. All those in favor please say, "Aye"
Roger Andoh: Aye.
All in unison: Aye.
Kirsten Mitchell: Okay. Is anyone opposed? Please say, "No." Okay. Super. I don't hear any in the negative. Do we have any abstentions?
Bobby Talebian: This is Bobby from DOJ and I abstain.
Kirsten Mitchell: Okay. Let the record show that the recommendation passes unanimously with one abstention from Bobby Talebian. So let's move on to recommendation, Technology Subcommittee recommendation number two. And I believe that is you Dave.
David Cuillier: Thank you, Kirsten. Yeah. My name is David Cuillier. I'm an associate professor at the University of Arizona school of journalism, and president of the National Freedom of Information Coalition. And this second recommendation deals with electronic records, and issues it has been coming up more and more over the years. So what I think we've encountered, we've learned that our technology is not keeping up and we think that should be addressed. When it comes to electronic records, a lot of requesters would like to see the metadata, that's the recorded data within the electronic record that shows when it was created, perhaps who created it, when it was changed, those sorts of elements that can be useful, particularly to journalists and others who are looking at how records are created and when. This can be embedded in emails, it could be embedded in databases.
So this is something that we think is really important. And what we found is I think we ran across agencies that have software that when they're processing records, it converts the electronic record to a flat file, a PDF takes out or moves automatically that recorded information. It essentially deletes recorded information from the record automatically, without any exemptions being applied. And we also learned that there's at least one agency that does not consider metadata part of the record, that does not see it as something that's disclosable. So we think, we recommend, this is our recommendation that the Archivist establish an executive branch working group. And within the next two years, try to determine how to deal with this metadata, best practices for releasing this information. And we believe there are certain elements that should be released if requested, subject to exemptions of course, such as the file name, unique identifier signed to the record, the title of the record, maybe the description or the creator, the creation date, those sorts of elements that are embedded in the metadata.
We understand there are some concerns in some agencies. Of course, there is information that may be exempt under the law, particularly national security metadata. You wouldn't want necessarily the author of emails that are sensitive perhaps divulged, but those are the issues we think that should be tackled. This has been tackled at the state level for more than a decade. There are lots of states that have already determined this to be part of the record and disclosable under the exemptions. So that's our recommendation. While not the most pressing problem in the public records world, according to our survey data, delays, fees, other things pop up on the top of the list, it is a huge issue, particularly with certain requesters who really need this information to make sense of what the government's up to. So that's the recommendation. Welcome comment, questions.
Patricia Weth: Hi, this is Patricia Weth from EPA. I had a thought, just going to throw this out and see if it's something that sounds appropriate for this recommendation. But as I was reading this, when you had suggested an executive branch working group, I remember in one of the past terms, a technology subcommittee was created under the Chief FOIA Officers Council. And a thought came to me that this working group maybe could be a records management subcommittee under the Chief FOIA Officers Council, that could perhaps handle this as well as maybe other records management issues.
I look to that technology subcommittee because when it was first created under the chief FOIA officers council, it was a subcommittee under the chief FOIA officers council and it flourished so well. It is now its own committee. And I envision perhaps, if this is what you all envision, I maybe envision something like that, that this records management subcommittee could grow under the Chief FOIA Officers Council. And then perhaps eventually become its own full blown committee, much like the technology subcommittee.
Jason Gart: Thank you, Patricia.
Patricia Weth: [inaudible 02:03:47] Kirsten, maybe you can explain it better than I did?
Kirsten Mitchell: No. No, I thought you explained it beautifully and I don't need to put Bobby on the spot, but Bobby is one of the co-chairs of the Chief FOIA Officers Council. So I wondered if he had any thoughts about this?
Bobby Talebian: Well, I think it's a great idea either as part of... The technology committee has grown a lot and there's a lot of working groups within the technology committee. So it could certainly be maybe something the technology committee may take on. It might be something we wanted to do as its own committee, but one of the things we endeavor to do in the CFO Council is build a relationships with other areas of interest and councils. We've done that, for example, the Chief Data Officer Council, I think there's a lot of room here to do that with records management, FOIA being so interrelated. So I think it's a great idea of taking it in for food for thought and something certainly I think we'll consider as far as building on work with the CFO Council. I think this is definitely a great area for the CFO Council to look into.
Kirsten Mitchell: Oh, thank you, Bobby. I understand some hands are raised, David. And I'm not sure who they are. Kel is one of...
Jason Gart: I see four people, Michael Morisy, Kel, Allan and Alexandra. So should we go alphabetically?
Kirsten Mitchell: Sounds good.
Jason Gart: All right. Sorry, Tom Susman. Maybe, we start with Alexandra.
Alexandra Perloff-Giles: Hi. Thanks, David. This is while we're wordsmithing. I think it's an excellent recommendation. I'm reading the sentence as a starting point for the working group, "Our recommendation is that the following file elements should be released to all requesters." And my view is that the primary concern is delayed, and to the extent this would be a more burdensome way of producing records and is only of interest in a minority of cases. It should be an option available to all records, but shouldn't be the default if it slows the process down. So that's to the extent that can just be a clarification that it'd be an option, but not the default, if it's indeed slower.
Jason Gart: That's a really good point. I agree with you on that. Are we going to wordsmith this a little, our recommendation is file elements should be released if requested or as an option.
Kel McClanahan: Or upon request?
Jason Gart: Upon request, on request, I like that. Okay. Yeah, satisfied with that Alexandra?
Alexandra Perloff-Giles: That sounds good to me. Thank you.
Jason Gart: Great. All right. Next up, I see Kel.
Kel McClanahan: Yes. So first off, is that in favor... I'm very much in favor. So far, y'all are two for two with me. So this should be not be seen as the metadata recommendation, because this reaches so far beyond metadata. And I can just give two examples. Number one, I get Excel spreadsheets all the time that are flattened into several thousand page PDFs with no rhyme or reason that's immediately visible as to where the columns go and whatnot, where just getting the Excel file would be a huge step up. And even inside it, when you get a PDF that's been created from an Excel file, you don't know which of the fields are... Which of the cells are typed in like the number 13 or that's actually a formula that pulls from other things. And so that's an example of the type of native that has nothing to do with metadata, that you would need to know. The same thing goes for emails, Word files, PowerPoint presentations. I lose track of the number of times that I'll get a PDF of an email or of a Word document. It'll say... Because it's written that way because we now write this way more information can be found here. It'll be underlined in blue. That means that's a hyperlink. If that's just printed to a PDF, we have no idea where that hyperlink goes. We know there's a hyperlink there, we don't know where it goes. And so this should be viewed as much broader a need than just the metadata issue. And even for the people who have issues with metadata, you should not vote against this because there is a lot of stuff in it that it encompasses besides that. The second thing is a little bit of wordsmithing, unless y'all had a good reason for not doing it.
You say establish an executive branch working group. I would say establish an executive branch working group or FACA [Federal Advisory Committee Act] committee. This is something that they need outside voices on, I think. And while I'm not sure to the extent that you can have a non-government person in an executive branch working group, I think that whatever this does or whatever group was formed needs to have people from outside the government being at the table. And so if there was a reason for not doing that, then I would like to know it. If not, then I would suggest that you stick that in there. There's a little interest.
Kirsten Mitchell: So quick question. This is Kirsten. Are you suggesting a separate federal advisory committee or are you suggesting a subcommittee of this, of the FOIA Advisory Committee?
Kel McClanahan: No, I would make it a separated advisory committee just because there are a lot of issues that the committee described here would be focusing on, that would require expertise that might not necessarily make the cut for this committee. And it would be a... It needs different skill set to come up with how I could do this, what could do this? We don't have a whole lot of scientists, engineers, computer scientists in this group. This would need to be policy people and the tech nerds.
Kirsten Mitchell: Okay. So before I kick it back over to David, I'm just going to say that, that's something that, at least putting on my OGIS hat, my National Archives hat, I think would need some study and it would be an enormous undertaking. Anyway, just throwing that out there and I'm picking it back over to you, David and I noticed Jason has his hand up too.
David Cuillier: Yeah. And we'll get to Michael Morisy as well here. Yeah Kel [crosstalk 02:11:20] You're, on your first point, Kel, you're absolutely right. And it is in that recommendation that they look at the native format issue because you're absolutely right. And I noticed, we did hear that E-FOIA does require agencies to provide it in the native form as requested, but obviously that's not happening. Right? Obviously, requesters are getting information converted from their native format into formats that aren't useful. And this is a huge problem out there. And so that needs to be addressed. And this working group should look at that. Because if that's not being followed, we have to figure out, well, why and what can be done about it? Again, I think we'd probably hear from some agencies that it is tied to their software, their software converts it automatically. Well, if that's the case, we need to address that and fix that.
So, and I'm seeing in the chat people saying, yeah, E-FOIA requires a native format if requested, to the extent that is possible. So maybe that's the squishy area that we have to talk about. Right? And work through. On your second point, Kel. Okay. So you're recommending that we have, I assume the next FOIA Advisory Committee term hash this out instead of an executive branch working group, is that your recommendation?
Kel McClanahan: No. Specifically not. I would say, because it would track you. Your recommendation is we recommended that the Archivist of the United States establish. And we would say, either A, an executive branch working group or B a FOIA advisory committee, or sorry, not FOIA advisory committee, a federal advisory committee, which would be that if the Archivist decided to go with B, he, or she would establish a new federal advisory committee. It may not be now as Kirsten suggested,it might need some study, but you're not saying you have to establish it within, I mean, two years is to me, plenty of time to study whether or not to do it. You maybe might want to stick it out to three or four if Kirsten had a really big objection to that, but it would be a separate committee with this as its focus rather than being sort of telling the next committee what to do. So, if those people... We here aren't necessarily in the weeds enough or have the appropriate skill sets to weigh in on how FOIA software works and interfaces with agency record systems, et cetera, et cetera.
David Cuillier: Okay. Is that an amendment then, Kel? Do you want to phrase that?
Kel McClanahan: Well, yeah, I would say it is an amendment I would suggest to say instead of... Well, after working group where you say establish an executive branch working group, take in or federal advisory committee.
David Cuillier: Okay.
Kel McClanahan: Within two years.
David Cuillier: So I would [crosstalk 02:14:37]
Kel McClanahan: It’s up to the Archivist to decide which one they want to do.
Jason Gart: David, do you mind if I just jump in?
David Cuillier: Yeah. Jump in, Jason.
Jason Gart: So this is Jason Gart, Jason Gart History Associates. I think, Kel, I understand your point and I kind of see where you're going. I think one thing that I would disagree on is about, you mentioned about the technology that the federal government may not have the technology to wrap their heads around this. And I'm just summarizing, I actually disagree with that. I think that within the National Archives, they are dealing with metadata. They are dealing with electronic records. There's a lot of knowledge there, and one thing that we pinned this recommendation on is that is NARA bulletin 20 1504. And if all of you haven't had a chance to review, that you should, it's in a footnote. And it provides the guidance. So that bulletin is the metadata guidance for the transfer of permanent records by agencies into the National Archives.
And they talk about the types of metadata that should accompany those transfers of permanent records to the National Archives. And that's kind of where we pulled these the starting point file elements. And I think that there's a lot of knowledge and understanding in the archival community at the National Archives about how to do this because of the transition within the National Archives and the federal government into a fully electronic record environment. So I think as long as we have, as Bobby suggested, a place for this working group, I think they'll be able to reach out and connect with the right people at the National Archives. The government agencies are already doing it. When they transfer their records into the National Archives, they have to meet some metadata elements. And I think all we're saying is, listen, if someone requests that record, do the same thing within the confines of, some stuff may be exempt.
Kel McClanahan: And if I could, I mean, you're right. That's why I said, or. I think that we are not well placed to tell the Archivist which is a better idea. I think that if we put in or then if the next Archivist decides that it can all be done in house, then that still meets our recommendation. If they decide that it needs outside input, that still meets our recommendation to how much work goes into creating [inaudible 02:17:20] committee, which I definitely appreciate, so the working group might be an interim step to that. I'm saying that we should at least acknowledge that there may be a need for something more than just an in-house working crew. And that we recognize that and our recommendation is that based on our learned understanding of the issues that is inferior to those of others, we are saying here's a menu to choose from. We think you should do A or B and it's your call, mister or missus future Archivist.
David Cuillier: Okay. So Kel, I guess if we want to follow parliamentary procedure, you're making a motion to add that language to the recommendation, yes?
Kel McClanahan: Well, no, I'm just asking you, like I did before with the other one to, if you voluntarily, they change it.
David Cuillier: Okay. I don't have strong sense of what everyone else thinks on this. I'm hearing conflicting comments. Michael, did you want to say something on this specifically?
Michael Morisy: Yeah, I do. Thank you so much, David. And this is Michael Morisy from MuckRock and hooray for tech nerds as somebody mentioned earlier, who can help figure some of these things out. David, you said earlier that this seemed to be a lower priority issue compared to sort of delays and sort of responsiveness among the requester's issues. But I do believe that actually setting a pretty high bar for sort of the ability for agencies to review and release documents in a native electronic format is one of the choke points in terms of FOIA processing. Because I think too often, each request is sort of a unique challenge for agencies in a way that you don't see in a lot of other areas, right? I think a few years ago, commercial entities in California and across Europe, for example, were forced to suddenly be able to kind of retrieve and output their customer data in a way that they weren't expecting.
And they grumbled about that and they certainly weren't happy, but now they've been able to build processes that support that. And you haven't seen the same embrace of this within government and I think if you tell agencies that it's when practical to release documents in their native digital format or include that metadata, then that's going to be sort of an unusual circumstance that each time they do it is a real challenge versus, I think in 2022, we should be stating clearly as a goal that it should be routine and easy, and that should be the expectation and if there's other things that need to be adjusted, let's do that. 17 years ago in 2005, the NSA put out a guide to safely redacting and sanitizing electronic documents in a way that preserved most of them metadata while not making sure that secrets were released, other sensitive information was released.
Today, you see almost no agencies actually follow those best practices. And I think that's because it's in the law, but it's also in the law in a very squishy way. And so, as a result, things haven't really improved to where they could be today. So I'm in favor of kind of keeping a fairly aggressive recommendation and not stating that this should be, if the requester asks for it, but how do we build a process so that every request doesn't create unique, extra work if people do want that data, but that's just there and built into sort of how we handle FOIA requests.
David Cuillier: Okay. Thank you, Michael. All right. So just to get this moving along here, Kel, you put in the chat, some good language. You're just adding on and we'll consider this an amendment and we'll take a quick vote just to so we can get moving. So Kel's amendment is to add in executive branch working group, comma, federal advisory committee, comma, or comparable group of subject matter experts. Any further discussion on this addition?
Patricia Weth: Hi, it's Patricia Weth from EPA. I just looked at last year's report and I think Michael Morisy can speak to this because it was his recommendation, but the way he had crafted it was that he had directed, he had recommended that the Chief FOIA Officers Council create a committee for cross agency collaboration and innovation, and he had laid out several things for them to do. And that's another example of having a committee, a subcommittee under the Chief FOIA Officers Council. And again, I think that might be helpful or might be along the lines of what you're thinking. I know that I have a colleague who serves on that subcommittee and I know that they've been making great strides.
David Cuillier: Okay. So Patricia, are you saying you don't want that phrasing that Kel's suggesting?
Patricia Weth: I'm not sure that if I see it, perhaps... I'm not sure about it. I just can't see it. And I'm looking back to what Kirsten said earlier that in order for a FOIA advisory or advisory committee to be formed, I guess, a study needed to be conducted, is that right, Kirsten?
Kirsten Mitchell: Yeah. So this is Kirsten. So what I had said was it's just an enormous amount of work to go into setting up a federal advisory committee. The Federal Advisory Committee Act, which you all hear me talking about quite a lot, has a lot of parameters for that and it's not as easy as just saying there shall be a federal advisory committee. It's also an enormous amount of work to... Once one is established, to staff it and manage it and so forth.
David Cuillier: I hear you, Kirsten. I think the amendment has a bunch of ors in it. So it leaves up to the Archivist, just to decide what makes sense. And if you all decide, that's not going to make sense, then this recommendation would give you the leeway to come up with whatever makes sense. Does that make sense? Okay.
Kirsten Mitchell: May I chime in here? I just point out that we're at 12:30 already and I do want to leave time for public comment.
David Cuillier: Right. Well, and that's why I want to get to this. So let's go ahead and take a vote on this amendment. Do we just give the archivist a lot of leeway here? Those in favor, say aye.
Patricia Weth: David, it's Patricia Weth from EPA. I'm so sorry, but I'm not sure the language that we're voting on.
David Cuillier: It says, we recommend that the Archivist establish an executive branch working group, federal advisory committee or comparable group of subject matter experts to do yada yada yada that's Kel's amendment.
Patricia Weth: Yes. And the yada yada yada is to study and create best practices for release of records in native format, including metadata.
David Cuillier: Yeah.
Patricia Weth: Yeah. I don't know about the, for me, the advisory committee. I don't know that's the right way to go for what you wish to accomplish here.
David Cuillier: Okay. All right. Any further comments before we take a vote on this?
Allyson Deitrick: And this is Allyson, if we're doing best practices and they're subject matter experts, I think that the advisory committee would include subject matter experts, unless they're being representatives. But I feel like it's duplicative of this advisory committee.
David Cuillier: Okay.
Allyson Deitrick: So I would delete the subject matter or comparable group of subject matter experts. I don't think it's necessary.
Patricia Weth: Patricia Weth from EPA. One suggestion I would just make, I remember last term, we voted for recommendations in the spirit of the recommendation and that way we allowed the subcommittee to go back and tweak the language as they wish. And I would just maybe suggest that we could vote perhaps on the spirit of this recommendation and allow the subcommittee to revise it after hearing these comments.
Allyson Deitrick: Should we then table this and bring this back up at the April meeting?
David Cuillier: Certainly can.
Kirsten Mitchell: Certainly can. Yes. And in the interest of time, that may be the best thing.
David Cuillier: Sure. I hate to bog down over something like this. I mean but if there's... Yeah, let's just do that. Does that make sense, co-chairs?
Allyson Deitrick: I move to a table this recommendation to the next meeting. [inaudible 02:28:03]
Kirsten Mitchell: Okay. All those in favor, say aye.
Michael Morisy: Aye.
David Cuillier: Aye.
Patricia Weth: Aye.
Kirsten Mitchell: Okay. Is anyone opposed?
Kel McClanahan: Nay.
Kirsten Mitchell: Who was that?
Kel McClanahan: This is Kel.
Kirsten Mitchell: Kel. Okay. You are opposed to tabling. Any abstentions? Okay.
Bobby Talebian: I don't think I need to [inaudible 02:28:29]
Kirsten Mitchell: I'm sorry?
Bobby Talebian: I said, I'm usually in abstention and I don't think I need to abstain from this, there's no conflict here.
Kirsten Mitchell: Okay, great. So the motion carries that technology recommendation number two is tabled until the next meeting on April 7th.
David Cuillier: Thank you all. We'll regroup and figure out this wording and bring it on back. Thank you.
Kirsten Mitchell: Okay. So as I mentioned, we are at 12:30, we still have one more technology recommendation to get through, and we still need to hear brief updates from both the Legislation Subcommittee and Process. So how quickly do you think you can get through number three or should that also be shifted to the April 7th meeting?
Allyson Deitrick: Our third record was further revising prior recommendations so it might make more sense to table it to the next meeting. We can highlight what we're changing and make that easier for the discussion to move forward.
Kirsten Mitchell: Okay. That sounds great. I don't believe we need a vote on that. We will just be certain to put it on the agenda for the April 7th meeting. If that's okay with everyone. And I think we, I was going too fast or maybe someone was going too fast, but I think we missed Tom. So I want to circle back to Tom.
David Cuillier: I think his hand is down. I don't think he wanted to talk, Kirsten.
Kirsten Mitchell: Okay, well he's not shy. So if he wants to speak, he will speak up. Okay. I understand that Alexandra's hand and Michael's hands are still up. Do they, any comment there?
David Cuillier: They're all down now.
Kirsten Mitchell: They're all down. Okay. I just didn't want to miss anyone. So I love this chat. I can't figure out how these hands worked. It is confusing, isn't it? So let's move on to the Legislation Subcommittee, which is chaired by Patricia Weth and Kel McClanahan. Both of them had, or Patricia has asked me to move directly to David. So I'm going to let you take the microphone, David, and talk a little bit about the reimagining OGIS working group.
David Cuillier: Thank you, Kirsten. It's Dave Cuillier again from the National Freedom of Information Coalition and the University of Arizona. I'll keep this really short. I mentioned before what we're working on and we're making pretty good progress. I think the working group is awesome. A. Jay, Tom Susman, and Patricia, and we've had great discussions in subcommittee meetings. Last week, we talked with the open records offices of Pennsylvania and New Jersey, and a lot of interesting insights into how things work here. And so we're hoping to wrap up this, these recommendations next week with the Legislative Subcommittee and forward those to the whole committee. We're basically zeroing in on some fairly, I think, substantial recommendations to improve the process through OGIS, including giving them the authority to make binding decisions.
So that is going to be probably a lot to discuss and work through to make something like that work. But it is coming together and we're kind of intrigued by where this could go. So that's kind of where it stands. And we thank everybody who's provided input, dozens of experts in the country and in the world, and we will be soliciting even more feedback from everybody. So thank you.
Kirsten Mitchell: Okay, great. Does anyone have any questions for David or comments or concerns? Okay. I don't see any, so Patricia and Kel, I'm going to ask you if you have anything else from the Legislation Subcommittee that you would like to report out on or bring up.
Kel McClanahan: I would say no, your honor.
Patricia Weth: [Crosstalk 02:33:53] I don't have anything.
Kel McClanahan: No, this was Dave's show today.
Kirsten Mitchell: Okay, great. So there was a little bit of crosstalk there, but I hear you both saying no, nothing more for today. So we will look forward to the re-imagining OGIS recommendations at the April 7th meeting. So now I'm going to turn it over to Alexis Graves and Michael Morisy, who are the co-chairs of the Process Subcommittee. And they will give an update on what is going on with that subcommittee. So over to you.
Michael Morisy: Oh, great. Thank you so much. And thank you for all these really thoughtful and exciting recommendations. I think they crossed over a lot. This is Michael Morisy. I think they crossed over a lot with some of the things that we've been thinking about within the Process Subcommittee and sort of where are some fundamental ways that we can get things working more smoothly. And what are some of the issues that we want to challenge? The process subcommittee has been digging deep into a wide range of issues focused on what pieces of the mechanics of FOIA can we work on that will help improve it for both requesters as well as FOIA offices. As you heard at the last committee meeting, a lot of that has been digging into first-party request processes, which are an outsized percentage of some agencies request queue, and what can be done to kind of make a process that would be easier or develop alternative processes that provide access to the people who need that information while also being more sustainable for those agencies themselves.
The first party working group has been continuing to refine that recommendation based on feedback and discussions with both agencies, as well as requesters involved in some of those areas. Beyond the first-party request process, we've also been looking at a range of other process areas. One that there's been a lot of great discussion within has been what subcommittee member Tuan describes as sharp FOIA practices, both on the agency and the requester side that seem to ramp up the contentiousness of the request process or lead to outsized challenges such as when agencies feel overwhelmed or monopolized by single requesters that don't engage over the substance of their request.
On the other side, we've also heard a number of examples of why requesters feel that they have to engage in practices such as filing the same request with multiple agencies or filing a large volume of requests or to file requests that feel, to the agency, particularly broad, but the requester feels compelled to do so because they've seen instances where one agency will deny a request another would provide documents to, or hyper literally kind of interpret a request in a way that the request or feel is designed to get out of providing the actual documents that they care about.
So we think that this is something that's complex. I think it's one thing that we heard some really interesting case studies from kind of both sides of the process and I think that gave us insights into the challenges. And it's one that it’s really hard to kind of put general policies around to kind of solve all of these different ways that the FOIA process can get hung up. One person's vexatious requester is often another person's intrepid reporter or activist, and something that seems routine to a member of the public may be impossible for an agency given how their record systems are actually constructed. There are however, a few things that we have identified as common areas that we believe that we'll be able to make recommendations on and put progress towards. We need to focus on behaviors and their impact versus vexatious requesters.
It's very easy for well-meaning general rules to quickly shut down legitimate and even crucial public records processes. And so we need to understand that these sharp practices individually increase solutions for preempting the practice rather than a policy that broadly declares that some individual is a vexatious requester. Like so many of the good recommendations for better guidance and requesters that were presented earlier today, one of those solutions is putting together better processes before the request even is filed, continuing to figure out how do we tell requesters here is what a good request looks like, here is what you can ask for, here are some tips in framing a request for subject matter materials so that it won't be turned back to you as burdensome. I think requesters are much more open and interested in that feedback if they can find it in an accessible, easily digestible way before they file versus six months after they filed, when they're negotiating with the FOIA office.
And clear guidance also to agencies. I think one thing that I was personally very surprised by is how many kind of common issues there are that agencies deal with on an individual basis, whether that's one requester filing hundreds of requests that feel vexatious or harassing or dealing with requesters that they can't get in touch with. It was surprising that there is so little sort of uniform guidance provided across agencies to kind of help them understand sort of what are their options? What does the law say they can do? And what are sort of resolution strategies that they don't have to reinvent on their own? Now there's a lot of reasons for individual agency flexibility. I think we've heard today, again, how different each agency's use cases are, but there are some standard challenging practices that an agency might not have dealt with before where sharing that knowledge, sharing that best practices, and also kind of helping have those discussions more publicly about what are best approaches for dealing with really challenging circumstances so that we can build a shared understanding of how the process should and can work. And many of the challenges and frustrations experienced in the FOIA process began well before a request is drafted, whether that's dealing with record storage methods that intermingle releasable and not releasable data, individual and often legitimate grievances with an agency where a person often feels that there's no avenue beyond FOIA to petition the government for a redress of grievances. And so FOIA becomes a proxy way to work through other issues that a requester has. And so figuring out sort of, "How do you address those? How do you ensure that FOIA is there to help inform the public and open up government, while also understanding that the reasons that people come to FOIA are very varied. And a wide range of legitimate uses and sometimes uses of FOIA that are not optimal for either the requester or the agency in terms of handling that backlog.
And then finally, one of the things that's kept coming up, and again, I was happy to see that some of these issues were addressed in some of the other recommendations, is just a continued need to educate requesters and the public. Agencies have done a pretty good job, I think, over the past few years of putting up more and more information on their websites and building relationships. I've seen so many agencies put together webinars or invite requesters in to kind of discuss their process and get feedback. But I think everybody agrees that there's more work to be done to help requesters understand what is a good request, what are the expectations going into the FOIA process and what they can do to have a more successful request process, as well as help agencies kind of understand the options they have and sort of how they can better address some of these common request types. Or to understand sort of why requesters feel that they need to resort to things that feel vexatious or extra burdensome from the requester community.
So those are some of the things that we've been exploring and talking about and working on recommendations and also discussions. And also looking at sort of what we want to tee up for maybe a future study within another area. So it was great to see so many of these things being tackled. And we're looking forward to presenting more information on first party requesting recommendations in the next session, as well as putting together other recommendations to tackle some of these areas in the coming months. Alexis, did I leave anything off?
Alexis Graves: Nope. I think you've covered it all. Thanks.
Michael Morisy: Thank you.
Kirsten Mitchell: Okay. Thanks for that update, Michael. Before we move on, I just wanted to see if anyone had any questions, comments, or concerns in response to what Michael has said. Okay, don't want to be moving along too quickly. So thank you all for your very hard work. There's a lot of work that got done today and a lot that remains to be done.
So we're at this point, we're planning to meet again monthly for the next three months. And I know that's a little bit off of our usual schedule, but we have full committee meetings scheduled for April 7th, May 5th, and then June 9th as this fourth term of the FOIA Advisory Committee winds down. The final meeting is the June 9th meeting.
And I also want to recognize and thank the volunteer committee members who will be on the working group to bring the final report together. That's Allan Blutstein, David Cuillier, Dione Stearns, and Patricia Weth. So the four of them Alina and I will be rolling our sleeves up to start work later this month to start pulling together a final report that the committee will eventually vote on at the last meeting on June 9th. So before I go to the next item on our agenda, I want to pause to see if any committee members have any questions or concerns regarding the upcoming schedule.
Okay, everyone looks happy. So we have now reached the public comments part of our committee meeting. And we look forward to hearing from any non-committee participants who have ideas or comments to share. Please begin your public comments with the particular recommendation you are commenting on. And just a reminder that the FOIA Advisory Committee is not the appropriate venue for concerns about individual FOIA requests. If you need OGIS's assistance you may request it, but we ask that you not do so through the committee email. And just a reminder that any oral comments that are made are captured in the transcript of the meeting, which we will post as soon as it is available.
So I think with that, I'm going to turn it over to Martha and our event producer in a minute. But I see we have a couple of questions that I'm going to ask. And this is from Alexander Howard. So I'm just going to read these out. "Congress mandated the creation and proactive disclosure of release of public records in an open machine-readable format with a default to openness in the administration. OMB is two years late on guidance. Has the absence of guidance on open government data hindered agencies and the administration of FOIA and release of trustworthy information in a pandemic?" So I am just going to throw that out there for any committee member who wishes to respond. Or to just tuck it away and hold it and think about it for a while.
Alexis Graves: I believe Michael Morisy raised his hand. [crosstalk 02:47:16]
Kirsten Mitchell: Okay, super. Michael?
Michael Morisy: Thank you, Alex, for raising that. I think that's another example of sort of, it's been really challenging on some of the follow through on these things. And I think that is a great thing to keep in mind as we're looking through these recommendations of sort of really understanding where these hold-ups have been on some of the open data efforts in the past, and also kind of making that a more regular process. And so thank you for raising that. And I think it's something that is worth, as we think about sort of future recommendations, sort of what can we do to kind of structure them so that they'll achieve their full ability.
Kirsten Mitchell: Okay, great. And Alex had one other question. Well, he actually has two other questions. I'll be very quick with them. "Why didn't OIP, the Office of Information Policy, record the public meeting on FOIA with OGIS in February?" I think what he is referring to is the meeting that the Chief FOIA Officers Council had with requesters. I believe that was on February 2nd of this year. I see Bobby nodding. Alex is asking if OIP can provide a read out of comments and actions taken in response.
Bobby Talebian: Thank you, Alex. And thank you, Kirsten. As I mentioned before, I think this was asked before, we try to have a range of different ways we conduct outreach and a lot of different platforms. Obviously right now through the [inaudible 02:48:59] and these public notes, also through the CFO Council meetings, both in public meetings and in ones here where we just wanted to reach out and get feedback. And the reason for that is we get different levels of candidness. And people feel more comfortable talking sometimes when it's not being recorded, or it's not a full on public meeting. And so we like to use... We're trying to leverage all different approaches to get the most information we can to fully inform both our role at OIP and OGIS's role with Alina, as well as the work of the CFO Council. So I don't think it wasn't necessarily done for any bad reason. It was specifically to get a different opportunity and a different platform to receive feedback and have discussion.
Kirsten Mitchell: Okay, great. Thanks Bobby. There's one other question Alex has about FOIA online, and we can respond to that, follow up with an email afterwards. I'd kick it over to Martha Murphy because I understand she's monitoring chat, and she and Michelle may open the phone lines. Martha?
Martha Murphy: Hi, this is Martha Murphy. I'm the Deputy Director at OGIS, and I think we should move on to the phone lines right now. So Michelle, if you could give instructions for folks who would like to make an oral comment, I'd appreciate that. Thank you.
Michelle Ridley [event producer]: All right, absolutely. So ladies and gentlemen, as we enter the public comment session, please limit your comments to three minutes. Once your three minutes expire, we will mute your line and move on to the next commenter. Once again, try to limit your comments to three minutes. And we will go ahead and open the first line that I see. Caller, go ahead. Your line is open. You may make your comment.
Bob Hammond: This is Bob Hammond. Can you hear me? Hello?
Michelle Ridley [event producer]: Yes, sir. Please go ahead. Yes, sir. Please go ahead.
Bob Hammond: My email address is foiacompliance@gmail.com. I have about 28 quick comments. The meeting minutes for the December 9th meeting were materially inaccurate. I've asked the committee to consider requiring minutes to be posted within 30 days for review. There are 12 major issues concerning FOIA material, false DOD quarterly FOIA annual reports, the attorney general and materially false statistical data, which omits several hundred open FOIA requests.
It appeals for agency number two, operation and/or destruction of records sought under FOIA failed NARA to accurately investigate such reports supported by irrefutable record evidence. And I cite the statute, "Grossly inadequate NARA funding for OGIS performance, statutory mandated FOIA [inaudible 02:52:03] mission and compliance missions leading to mission failure in both." Number four, grossly inadequate funding for DOJ OIP to inform it’s FOIA compliance oversight mission leading to a mission failure.
Number five, [inaudible 02:52:23] foiaonline.gov and what will become of those unique FOIA case records, record preservation generally and suitable replacement for FOIA online and MuckRock] portal capabilities should be included. Conduct of public FOIA meetings, including violations of law and failing to properly announce them. Federal register refusing to post comments and more.
I attended that stealth meeting and I sought the records of it under FOIA, expedited processing OGIS owns all records of that stealth meeting that was not recorded. Increased litigation, the number of FOIA cases on the dockets have more than doubled in the last decade. That's a failure of OGIS mediation. Over redactions, the use of redactions which are discretionary, remains excessive and often fails to comply with FOIA presumption of openness.
Number nine, excessive delays. FOIA requests may languish for years or even decades within agencies. And delays are worsening while agency FOIA volume continues to grow. Number 10, intentional misclassification of requests as complex. And delayed processing, allowing records to then be deleted or rendered less useful to current issues if they are finally released.
Number 11, transferring FOIA requests from one component which has the records to a higher headquarters, which does not have the records. Another manipulation to obstruct responses and to shield accountability. I say also internet search, US Navy mistakenly emailed reporter plans to dodge FOIA requests by Shadee Ashtari. And Navy reviews FOIA office after mistakenly sent email by NBC Washington.
Number 12, misapplication of FOIA privacy act statutes, and first-party requests unlawfully stating that records must be releasable under both, when the opposite is true. DOD false reporting, OGIS and DOD [inaudible 02:54:16] have not yet posted my public comment briefing. DOD massive false reporting, you can Google that. The briefing consists of information already on the OGIS website and other public comments, plus DOD's FY 2021 annual report citing massive errors in FY 2020 annual report. This happens in every year.
Michelle Ridley [event producer]: : Mr. Hammond-
Bob Hammond: Bobby, I've asked you.
Michelle Ridley [event producer]: : Thank you very much for your comment.
Michelle Ridley [event producer]: : Your time has expired, sir.
Bob Hammond: [crosstalk 02:54:44] back up again. Thank you.
Michelle Ridley [event producer]: Thank you.
Kirsten Mitchell: Okay. Thank you, Michelle. This is Kirsten. I understand that Tom Susman-
Michelle Ridley [event producer]: : Your line is now muted.
Kirsten Mitchell: I understand that Tom Susman has his hand up.
Michelle Ridley [event producer]: Your line is now unmuted.
Kirsten Mitchell: Tom Susman has his hand up.
Michelle Ridley [event producer]: : Apologies, that was me.
Tom Susman: Yeah. Okay. Yeah. I just wanted to say Mr. Hammond brought something up that I've been concerned with for a long time, but don't know quite what to do with. And maybe this is something the advisory committee could get involved with, and that is the issue of inaccurate minutes. We have transcripts and videos of our meetings. And it seems to me OGIS staff should be spending their time on mediation and investigation and opinion writing, and not writing up minutes. And so that's just my two cents. And should the occasion arise with amendments to the Federal Advisory Committee Act, that would be high on my list. Other than that, Mr. Hammond's emails come in on a regular basis to all the members of the advisory committee. And so we certainly have a chance to know his views on a regular basis.
Kirsten Mitchell: Tom, this is Kirsten Mitchell. Thank you for those comments. I'll just add that we give ample opportunity for the committee members to review the minutes. And we are always happy to go back and correct them if there are any corrections. And as you say, we have the video posted and the transcript. So Martha and Michelle, I'm sorry to interrupt, but back over to you.
Michelle Ridley [event producer]: All right, no problem. I do not see any additional hands raised for questions or comments.
Martha Murphy: Before we perhaps circle back, this is Martha Murphy, Deputy Director of OGIS. I would like to read a couple of the comments that Mr. Hammond put into the chat, which do relate to the recommendations that we had today. There was a discussion, I believe, about data collection for agencies regarding Glomar. The question was, "How would agencies show undue burden for data collection on Glomar? Is it based on limitations in technology, staff or the size of the backlog, or annual number of requests, appeals, and et cetera?" For those committee members who had a concern about that reporting, perhaps you could chime in with us.
(Silence) So perhaps no one really wants to comment on that specific issue. We're just going to move on to the next one, if that's okay with you Kirsten.
Kirsten Mitchell: That's perfectly fine. Please do.
Martha Murphy: Okay. In regard to metadata and the format of records being released, there was this comment, "A federal court in New York City ruled in February that some metadata is presumed releasable under the federal Freedom of Information Act. The first time a court has ruled that a federal government must provide metadata with associated electronic records requested under FOIA." And this was National Day Labor Organization Network, the US Immigration and Customs Enforcement Agency. Bobby, I don't want to put you on the hot seat here, but I was wondering if you wanted to comment on that ruling if there's anything you wanted to say about that.
Bobby Talebian: Not off the top of my head, I'd actually have to go back and look it, but I will be doing that now.
Martha Murphy: Okay. Thank you. I think there was a discussion about, if possible, being in the language of the act. And certainly, we're always looking at court records or court rulings to sort of elaborate on the interpretation of the law. Again on the issue of metadata and format, Mr. Hammond said that he requests records to be sent in any digital format in which they exist, such as PDF or Excel. And under the terms of the E-FOIA amendments of 1996, section five, "If a document exists in electronic format, it must be released in the format upon request." So I don't know if anyone wants to comment on that.
Kristin Ellis: This is Kristin. The summary that you just gave is not the entire content of that provision, because it does permit agencies to determine that something is not readily reproducible in the format requested. So yes, that is in there, but there is leeway for agencies to make determinations that something is not readily reproducible in the native format. So I just want to clarify that.
Kel McClanahan: And this is Kel. I'll agree with Kristin again, which is sort of remarkable. As previously noted, the issue here is that readily available or readily reproducible is often, but not always, interpreted by some of the more recalcitrant agencies as, "We don't want to." And there's been litigation on this. Some of it has gone pro agency. Some of it has gone anti agency. But it is definitely something that maybe a future committee might want to focus on, something like that. It's definitely room for clarification and perhaps reform. It's not quite as cut and dry as any of us would like, regardless of what side we're on.
Bobby Talebian: This is Bobby from DOJ. I think, I mean, the spirit of the law and I think an agency's intentions is to give the records to the requester in the format that is most useful. And certainly that's our guidance, especially when we post records online. But I think that really goes to the benefit of this recommendation of having a group examine it, share best practices, and when and what we can and can't release things in their native formats. So I think just all the comments, Kristin’s, yours and Mr. Hammond's, just go to the fact that it's be beneficial to have a working group work on this. And I really like the idea. I think the CFO Council would be a good avenue for us to go back and agencies to share practices.
Martha Murphy: There is one more comment from Alex Howard that was just posted. "Why didn't the committee discuss FOIA online in public when I asked about it? Would it consider a motion on whether to draft out a recommendation on replacing it?"
(Silence) If there's no comment right now, it's certainly something we could take back and consider. Kirsten?
Kirsten Mitchell: Yes, certainly. [crosstalk 03:02:35]
Martha Murphy: So thank you for your comment on that. I think that pretty much sums up the chat questions that's sort of related to the recommendations today.
Kirsten Mitchell: Correct. So do we have any new commenters on the telephone line?
Michelle Ridley [event producer]: Yes, we do have one additional comment on the line. Caller, your line is unmuted. Remember, you have three minutes. Thank you.
Bob Hammond: Hi, this is Bob Hammond again. And I have asked that OGIS include my comments in the meeting minutes for this. And like others who attended that stealth meeting where there appears to be no record, I sought those records via a FOIA expedited processing. OGIS owes them to me and I want them all.
I have a couple of comments for the tech committee recommendation number three on FOIA logs. In violation of law, DOD has not released its FY 2016 raw data. And the 2017 Defense Health Agency data does not contain any case numbers. DOJ, OGIS, what are you doing about it? DOD refuses to release DHA raw data sought under FOIA and refuses to release records of communication regarding corrections to past reports. DOJ has also refused to answer my FOIA request regarding that.
I sued [Walter Reed 03:04:13] for Walter Reed's FY 2013 FOIA raw data. Walter Reed produced a 16-page FOIA log that differed from the 17 page log cited in the Vaughn Index. And the FOIA officer admits to altering that record. BUMED indicated that the office had no record of a FOIA annual report submission from Walter Reed since fiscal year 2009. That is false. BUMED released the FY 2012 report and has advised NARA that they destroyed the FY 2013 log that I sought by FOIA regarding Walter Reed. NARA's unauthorized dispositions have been feckless and failed in its [inaudible 03:04:56] responsibility.
In my view, OGIS and DOJ have responsibility for FOIA compliance and have done nothing. OGIS refuses to mediate cases involving ongoing false reporting. And I mentioned under the terms the E-FOIA Act of 1976, if an agency exists in electronic format, it must be produced. My comments today are unusually harsh. If you read my past comments, they're very complimentary. But given only three minutes, I wanted to get some things in the record. So Bobby, and so has Alina, you've read my presentation on DOD's false FOIA reporting. Why is that not posted? Has nothing to do with not having time. Why isn't it posted?
Michelle Ridley [event producer]: : Mister, thank you so much for your comments. Your time has expired. Thank you for your comments. All right. [crosstalk 03:05:59] There are no additional comments.
Kirsten Mitchell: Okay, great. Thank you, Michelle. Martha, I'm going to kick it over to you one more time. Anything else from you?
Martha Murphy: Nope. That's all we've got. Thank you very much.
Kirsten Mitchell: Okay, thank you. Thanks to all. Thank you to all the committee members and those who joined us. Clearly, committee members, your commitment to FOIA is very apparent. And it was very gratifying to see your commitment to transparency and the fact that it can go a long way towards building trust and a shared understanding. A big shout out to all my National Archives colleagues who have helped, but especially you Martha. And we will all see each other again virtually at our next meeting, which is on Thursday, April 7th, beginning at 10:00 AM Eastern time. And before I adjourn this meeting, any questions, concerns, comments from any of the committee members? I'm seeing heads shake.
Roger Andoh: This is Roger, I have one. This is Roger.
Kirsten Mitchell: Yes.
Roger Andoh: I just have one concern about making sure that when we... I think you indicated that specific FOIA questions not be discussed at this meeting. And I would hope that we reread that at the next committee meeting, that specific grievances or specific requests with other agents should not be brought up. [crosstalk 03:07:41]
Kirsten Mitchell: Correct, yes. Thank you for that. And we will make a point of doing that at the next meeting, Roger. Very much appreciate that. So anything else? Okay. Well thank you all for everything, and we stand adjourned.
Roger Andoh: Thank you.
Kirsten Mitchell: Thank you.
Kristin Ellis: Thanks Kirsten. Thanks everyone.
Unidentified Speaker: Thanks everyone.
Bobby Talebian: Thank you all.
Michelle Ridley [event producer]: That concludes our conference. Thank you for using Event Services. You may now disconnect.