FOIA Advisory Committee Meeting (Virtual Event)
Thursday, April 7, 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 the screen. Please note all audio connections are muted, and this conference is being recorded. You are welcome to submit written questions throughout the meeting, which will be addressed at the Q&A session of the meeting. To submit a written question, select all panelists from the dropdown menu in the chat panel, then enter your question in the message box provided, and send. To ask the question via Webex audio, please click the raise hand icon on your Webex screen, which is located above the chat panel on the right. This will place you in the question queue. If you are connected to today's meeting via regular phone audio, please dial pound two on your telephone keypad to enter the question queue. If you require technical assistance, please send a chat to the event producer. With that, I'll turn the meeting over to Alina Semo. Alina, please go ahead.
Alina Semo: Thank you, Michelle. Good morning, everyone. As the director of the Office of Government Information Services, OGIS, and this committee's chairperson, it is my pleasure to welcome all of you to our seventh meeting of the fourth term of the FOIA Advisory Committee. I hope everyone who is joining us today has been staying safe, healthy, and well. I want to welcome all of our committee members today and express my gratitude for your continued commitment to studying the FOIA landscape in order to develop recommendations for improving the FOIA process government wide. I know you have put a lot of work in already, and we're now in the home stretch. I also want to welcome our colleagues and friends from the FOIA community and elsewhere who are watching us today, either via Webex or with a slight delay on NARA's YouTube channel.
Normally at this point in the meeting, you would be hearing welcoming remarks from the Archivist to the United States, David Ferriero. I am very sad to report that today is David's last meeting with us as Archivist as he gets ready to retire at the end of this month. We decided to engage him in a brief question and answer session, and he can share his wisdom with us. So with David's indulgence, can we get started? Oh, David you're on mute.
David Ferriero: Oh, good.
Alina Semo: Okay.
David Ferriero: Ready.
Alina Semo: So first question, I'm just going to fire them away like an interrogation squad, what are your proudest achievements as the Archivist of the United States for the last 12 and a half years?
David Ferriero: Well, just for some context, I came to Washington from the New York Public Library where I was Director of Libraries and, in retrospect, was a pretty cushy job. I was lured here by the promise of the Obama Administration that the National Archives had an important role to play in his Open Government Initiative, and that really resonated with me. And so I think I would point to the presidential memorandum in 2011, which tied good records management to open government. In fact, his message says the backbone of open government is good records management. Then that allowed me to deliver a directive to the agencies with OMB, setting out a set of promises and a set of tasks for the executive branch agencies.
It did a number of things. One of the things I'm proudest of is that it established the senior agency official responsible for records management, so it raised the profile of records management within the agencies, or it was supposed to. And it charged OPM with coming up with the classification series, the occupational series of records manager. It horrified me in a public meeting to discover there was no such thing as a records manager in the occupational series, so I'm proudest of that. It also, most importantly, it acknowledged electronic records. It established the shift from paper to electronic records. It's the first time since the Truman Administration that the White House has gotten involved in records management. I'm really proud of that.
The second thing I would point to is that the work that was done by a task force on racism here in the National Archives during 2020, with a set of recommendations, looking at internal processes in terms of recruitment, retention, advancement opportunities, looking at our exhibits and educational programs and a really important set of recommendations around how we describe our records, offensive language in our records. There's some very important work that's going on in that arena. So those are a couple of things.
Then we established sleepovers for kids 8-12 years old. I would point to that as something really exciting.
Alina Semo: Yeah, I wish I would've had kids that age, because I really wanted to wake up in the morning and have you cook pancakes. That would've been a real treat.
David Ferriero: So these kids sleep on the floor with an adult, with a parent or something, and sleep on the floor of the rotunda in the presence of the Charters of Freedom and they're just tingling with excitement.
Alina Semo: That's great. One of your many accomplishments during your, over 12 years at the National Archives was to establish this FOIA Advisory Committee. Why an advisory committee and what makes this group special in the FOIA landscape?
David Ferriero: This gives me an opportunity to thank you all for the work that you have been doing. For the past advisory committee members, this is important, one of the things that I inherited was OGIS and ensuring that OGIS was getting a level of support required to do their work. So this was an education opportunity for me also to learn about FOIA and recognize the importance to the American public of the work that all of you do every day to ensure that you have access to the records. The National Archives was established... Franklin Roosevelt signed the legislation that created the National Archives and his goal, he stated when he opened the presidential library in Hyde Park was that these records are important for the American people to hold their government accountable for its actions and to learn from the past.
And that has been my watch words since I started here and FOIA is one of those ways that the American people can hold their government accountable. So I've been a huge supporter, I think, of the work of OGIS and the advisory committee. And it also is important to me that, and everything that we do at the National Archives, every service we provide, we put the American public at the center of our planning and thinking, how easy is it? How difficult is it for the American people to get the information they need? And what can we do to break down those barriers? And the FOIA advisory committee is a wonderful example of how the American people has their voice heard in terms of how we organize our services.
Alina Semo: So everyone wants to know, David, will there be a 2022 to 2024 term of the FOIA advisory committee, a fifth term?
David Ferriero: I heard there is, yes. One of my last actions was to ensure that that happens. I don't see an end to this. I think there are enough issues and enough concerns and I think that it sends a message to the American public that this government is serious about access to information and their voice needs to be heard. This is an important way for their voice to be heard.
Alina Semo: What would you like to see the next term of the committee delve into?
David Ferriero: I'm really pleased with the set of issues that have already been dealt with. I'm really concerned about... I'm interested in and pleased to see the attention turned to Congress about access to the records of Congress. It's interesting, I've had 16 hearings on the hill for various subjects and all of them are records related and it's kind of ironic that I sit there answering from people whose records aren't FOIA-able. That it doesn't seem like that's a fair way of doing business. So the attention that the advisory committee has been paying to records of Congress, I think is important. You have seen in the press lots recently about the presidential records and FOIA ability of presidential records.
The Presidential Records Act, I would say, is worthy of some look by the advisory committee. It needs to be strengthened and you have a role I think, to play in that process and the FOIA law itself, we've over time amended that law. I would urge you to continue that process of looking at the law and figuring out ways to make it stronger, better, and take a look at exemptions. And I know that's on your list of priorities.
Alina Semo: What message...
David Ferriero: And one...
Alina Semo: I'm sorry, go ahead, David.
David Ferriero: One more thing.
Alina Semo: Sure.
David Ferriero: Huge agenda of the National Archives has to do with civic education. The folks, kids today and their parents don't understand roles and responsibilities. They don't know how the government works, all that kind of thing. It's an opportunity also, I think for education of the American public, about FOIA and their rights around access to information. So figuring out ways of plugging into the civic education initiatives that are going on around the country.
Alina Semo: That's great. I wrote all those down.
David Ferriero: Good.
Alina Semo: Follow up. What message do you have for the more than 5,000 FOIA professionals across the government whose job it is to respond to FOIA requests every day?
David Ferriero: First of all, thank you for the work that you do. I'm sure you don't get many thanks for what you do. I'm sure you get lots of criticism for what you do, but hear [it] from the archivist, how much I appreciate the work that you do every day against increasingly difficult odds. For many of you, the information technology infrastructure sucks and there isn't an acknowledgement on the hill or at OMB often about the technology needs and how this isn't a one-time event. It's a process that technology needs to be refreshed. New tools are available that need to be incorporated into your repertoire of information and the partnership that you have in your own agencies with the senior agency official, the IT folks, your legal counsel, even your inspector general, it's a robust relationship, team of people focused on making sure that we're following the law and making records available. So I'm really proud of the work that you do every day.
Alina Semo: So on the other side, what message do you have for the many FOIA requesters who submit FOIA requests to the government every year, over 800,000 this past year?
David Ferriero: I know, I know. I would urge you to be as specific as you can about what you're looking for. I urge you to take some time to understand what the process is, learn the process, so that you don't get caught in unrealizable expectations. Use the services of OGIS, that's why OGIS was established, to help you meet your needs. And I would say, educate your legislators as private citizens. You have an opportunity to talk to your legislators about FOIA and the needs that exist for support of FOIA.
Alina Semo: David, what do you think you're going to miss most about being the archivist of the United States?
David Ferriero: I think it's the opportunity to ensure that the records of the country are created and maintained and made available to the American public. And that happens in a variety of ways across the country, the staff of 2,700 people and 40 facilities focused on that mission. And I think the opportunity to work with that staff and think about ways that we can make that more efficient, better, easier. That's the exciting, that's how the excitement I have found on the job, I will miss that.
Alina Semo: So what's next for you after you retire? Are we going to see you joining us as an attendee at future FOIA advisory committee meetings?
David Ferriero: No promises, but I will certainly be looking for ways that I can, from the outside be supportive of the work. I'm not planning to run for office, but I will certainly... I'm not leaving this behind. I'm going to figure out ways that I can be helpful.
Alina Semo: All right. Well, thank you, David. I'm just extremely great for everything you've done for us. On behalf of the committee, I want to thank you for all the support you've given us, your willingness to advance. So many of the recommendations that we've already sent over to you, we will truly miss your leadership and your extraordinary support for improving the FOIA process. But we also know you're leading us in excellent hands, with the deputy archivist Debra Wall so we look forward to working with her as well. Okay. Are you going to stick around for a little bit and watch the meeting if you are able?
David Ferriero: I am for a little bit.
Alina Semo: I know you have a packed schedule, so appreciate any time you can give us. Thank you.
David Ferriero: Thank you.
Alina Semo: All right. Thanks again. So I want to move on to some housekeeping rules and announcements. Before we get our substantive meeting started, we do have a very busy agenda today. So let me just get through the quick announcements. Unfortunately, our committee’s designated federal officer DFO Kirsten Mitchell is unable to join us today. The archivist has appointed Martha Murphy, OGIS's deputy director, as the alternate DFO. Martha is going to help make sure that we stay on track today. Martha has taken a visual roll call and Martha, we have a quorum, correct?
Martha Murphy: That's correct.
Alina Semo: Okay. I want to report Dione Stearns and A. Jay Wagner are unable to join us today. And James Stocker will need to drop out for a brief time around noon for 15 to 20 minutes, but he promises to rejoin us. Okay. Few words about public comments. We are going to have a 15 minute public comment period at the end. We have received two sets of written comments in advance of today's meeting. And we have posted those on our website.
We have also shared those comments with all committee members in advance of today's meeting. I want to note that the chat function and WebEx or the NARA YouTube channel is not the proper forum to submit extensive public comments, but you may submit public comments at any time by emailing us at email@example.com, and we will consider posting them on the OGIS's website. The chat function on both platforms should be used to ask clarifying questions or provide brief comments or questions that we will consider reading out loud at the end of today's meeting. During our public comments period, the committee is specifically interested in feedback on the issues that we are discussing today. Meeting materials for this term, along with member's names, affiliations and biographies are available on the committee's web page.
Click on the link for the 2020 to 2022 FOIA advisory committee on the OGIS website. Please also visit our website for today's agenda, PowerPoint presentation, and lots of related meeting materials. As I mentioned earlier, we have a very packed agenda today. We have numerous recommendations that subcommittees are eager to present and perhaps even finalized and have the committee vote on today. As chairperson, I do reserve the right to adjust the agenda times as necessary. We will upload a transcript and video of this meeting as soon as they become available. A reminder to committee members, I have all of you up on screen so I will try to watch our verbal cues. It's not the same as being in person and watching you. So if I miss you, please chat me or Martha to let us know that you want to ask a question or you want to make a comment.
So please use the all panelist option from the dropdown menu, but also a reminder in order to comply with the FOIA... I'm sorry, the federal advisory committee act backup. Please only keep your communications of the chat function to housekeeping and procedural matters. No substantive comments should be made in the chat function as they will not be recorded in the transcript of the meeting. Committee members if you need to take a break at any time. Please do not disconnect from either audio or video. Instead, mute your microphone, turn off your camera and send us a quick chat, me and Martha to let us know how long you'll be gone and join us as soon as you can again. If all goes according to plan, the agenda right now has us breaking at 11:30 this morning. We may end up breaking a little earlier or a little later, depending on our pace.
And just a reminder, I'm guilty of this myself. But every time you speak, please try to identify yourself by your name and your affiliation. It helps with the transcript down the road. So we don't have any minutes of the last committee meeting to approve today. That was March 10th. Unfortunately, I was unable to be with you, but Kirsten Mitchell did a fantastic job chairing that meeting. They are being worked on by our part-time detailee, archivist Sean Heyliger from the National Archives at San Francisco. He's been preparing those minutes and I hope they will be available to circulate for approval by the time we meet again next month. The transcript from the March 10th meeting will also be posted on our website as soon as it becomes available and you can view the meeting on the NARA YouTube channel. So I just wanted to go over the voting procedures today very quickly, because I do anticipate we're going to be having some votes today.
So without further ado, any member of the committee can move to vote on any recommendation, the motion does not need to be seconded, although it seems like we like to do that so I'm happy to entertain them. The motion can pass by unanimous decision, which is when every voting member except abstentions, is in favor of, or opposed to a particular motion. A general consensus, which is when, at least two thirds of the total votes cast are in favor of, or opposed to a particular motion, and a general majority, which is when a majority of the total votes cast are in favor of, or are opposed to a particular motion. In the event of a tie, we will reopen discussion and the committee will continue to vote until there is a majority. So we may be here all night. Just kidding. Votes will be by voice. All those in favor will say, aye. Any opposed will say nay. Anyone who wishes to abstain will say, abstain. And we'll pause a moment to give Martha a chance to make sure she's recorded the vote for each recommendation.
So any questions before we move on from the committee members? Okay, not seeing any. We're now going to turn over to the discussion of the technology subcommittee. I know they went last, last time and they had recommendations left over that they would like to present to the committee for discussion and vote.
Michelle, may I please ask you to go to the next slide? And I'm not stealing Jason and Allyson's thunder. I just wanted to show that this is the first recommendation that the committee passed at the March 10th meeting. And today we're going to be discussing the remaining recommendations. So I'm going to now turn it over to Allyson Dietrick and Jason Gart, our co-chairs.
Allyson Deitrick: Thanks so much, Alina. This is Allyson Dietrick, Commerce Department. I'm going to go over recommendation two, and then Jason's going to handle three. So based on the conversations we had at last month’s meeting, we made some changes to this recommendation. One of the comments had been, instead of having a working group executive branch based to discuss the ways to deal with metadata at or native file releases. There were some suggestions to either have an advisory committee set up by the archivist or to have the Chief FOIA Officers Council have a working group. And we discussed this at our last meeting and decided that we wanted the Chief FOIA Officers Council to establish a working group to deal with metadata issues.
And we did as a bit of a compromise, encourage the technology committee of the Chief FOIA Officers Council to work with outside experts, including the requester community. So that's the way we came up with that one. And just as a refresher, some of the metadata fields that we think should be included, or at least looked at are the identifier file name, record ID, title, description, creator, creation date, and rights and restrictions held on that particular file.
Alina Semo: Michelle, may I please ask you to advance to the next slide so the committee has in front of them the... There we go. Thank you. Okay, were in business. Sorry, Allyson.
Allyson Deitrick: That's okay. Do we want to deal with, or discuss the first or rec TS two first and then move to TS three? Might be easier. [crosstalk 00:25:03]
James Stocker: This is James Stocker, could I ask a question about recommendation two?
Alina Semo: Sure.
James Stocker: Okay. So I noticed that the committee is recommending these seven categories of metadata. And I guess what I wanted to know is how this differs from NARA bulletin 2015.4, which I think requires the exact same seven categories of metadata. So basically, I guess my general question is, how does this recommendation differ from the NARA bulletin except that it advocates for recreation of a working group to discuss it?
Allyson Deitrick: I think it is the same seven fields. It is just because we feel that this is important, although not all requesters want metadata, some that do are very interested in it. And we see having the chief FOIA officers technology committee take the next step as a way to continue this conversation and look at ways and technology such as the archivist referred to, and just keep this discussion going forward.
James Stocker: This is James again. Well, thanks. Thanks very much. That clarifies that. I just, I feel like, what we need is a better understanding of what issues remain to be resolved. If in 2015 seven fields were recommended and we're sticking with the same seven fields, is there someone complaining that certain data is not being released? Or what is the challenge this is trying to address?
Allyson Deitrick: I think part of the challenge is the technological issue between the FOIA saying if requesters are requesting in metadata, that to the extent that an agency is able to provide it, they should, but a lot of agencies don't have that technological ability to release the metadata, or especially in the intelligence community, there are issues and concerns with potentially releasing classified information or information otherwise subject to an exemption. So we were looking at this issue, we realized that although not everybody has that issue, especially historians and all that, some of the other requester community members from the technology subcommittee chime in as well. But trying to just realize that it's not an issue for everybody, but for those who it is an issue for, be concerned, something that they're very interested in.
And I think some of the other comments from the last meeting were also, in addition to metadata, if there are flatten PDFs, you don't necessarily get hyperlinks. You see an underline that says file title X, but you don't know what file title X is or what the web address is to look at it yourself. So that was one of the other possibilities that had come up at the last meeting. I'll open that up to others who have comments on that.
Jason Gart: Yeah, this is Jason Gart History Associates Incorporated. You're absolutely right, James. The metadata that we want released, the file elements we want released, do align with NARA bulletin 2015.04. And the reason is because that actually was designed to make sure records that were accessioned into the National Archives, maintain the metadata. Right now, that's not being released to the requester community. They don't know how to release it to the requester community and we feel that this needs to be flagged. And the research has already been done. I mean, the bulletin in 2015.04 goes back to the Dublin, Ohio workshop in 1995, where they essentially said, here's what should be preserved in electronic records.
NARA is telling federal agencies, if you deposit materials in the national archives as electronic material, these are the metadata elements that need to be preserved. So we're saying that, well, if you release that same information to the requester community, here's the metadata elements that should be preserved. With the caveat that, of course you're going to be subject to the FOIA exemptions and that, there's going to be classified national security records that may need potential protocols or special protocols. So that's where we see... The issue is that it doesn't seem like it's been flagged, right? And we feel it's going to be more important as we progress. And we have agencies releasing emails as PDFs, which is, weird, right? It's not in its native format.
Kel McClanahan: Hi, this is Kel. I have a question for sort of when you were doing the research into this, and I think we talked a little bit about this in the last meeting, but something you just said piqued my interest. When you have a record that is transferred to the archives and accessioned that has metadata in it, and the archives makes it publicly available. If the metadata version, is the metadata in the archive version that you can go and get through sort of whatever the archive system is available to the public or is it stripped out there too as a current practice?
Jason Gart: So my experience has been that records do include metadata. So, and the Archivist of United States can correct me, but the AAD, which is essentially the set of electronic records that are accessible, they do have the metadata elements. In fact, some of the records I've seen go back to punch cards, right? In the National Archives. And you can even figure out what the different fields in the punch cards are, which are essentially the metadata. So, and that's the point. The point is that the federal government is going to an all electronic records environment and that metadata is an important part of that. So when we release things through FOIA, we being, I'm not in the government, but you all, you make sure you include that metadata with the caveats that there are some pieces that don't want released. And Kristin at FBI can talk about that because we had a lot of conversations about that and what it means that we don't want to release certain pieces of metadata and that's where we also speak to that.
Dave Cuillier: This is Dave Cuillier, University of Arizona. I move that we approve recommendation two.
Alina Semo: I have a second for that.
Kel McClanahan: I'll second.
Alina Semo: Thank you, Kel. All right, well let's take a voice vote. All those in favor of recommendation two, please say aye.
Dave Cuillier: Aye.
Jason Gart: Aye.
Kel McClanahan: Aye.
Tuan Samahon: Aye.
Kristin Ellis: Aye.
Alina Semo: All those opposed, please say nay. Don't hear any nays. Any abstentions?
Bobby Talebian: Hi, this is Bobby from DOJ and I abstain.
Alina Semo: I also am going to abstain given the fact that Bobby and I are both co-chairs of the CFO council, but we're happy to follow up on this recommendation. Martha, did you get all of that? Got a thumbs up.
Martha Murphy: Yes ma'am, I got it. We're good.
Alina Semo: All right. Great. Should we move on to the next recommendation? Michelle, next slide please. Great. So Allyson, just so you know, I'm responsible for this. I set it up in part one and part two, because there were two parts to this recommendation. So if you're unhappy, you can take it out on me. But anyway, go ahead. The floors back to you.
Allyson Deitrick: Jason.
Jason Gart: Thank you, Jason Gart, History Associates Incorporated. So this the third recommendation now coming out of the committee and this relates to something that I think was said when we first began, which is, what are the recommendations from the thought prior, from the prior committees, that haven't been pushed forward that have just kind of languished out there? And so there's two that we find very important and the first deals with 508 compliance. And we believe that the 508 compliance and collaborative tools working group at the technology committee of the Chief FOIA Officers Council continued research ways to assist agencies in making this requirement.
We see the opportunity with the changing of FOIA platforms as an opportunity for us, for that group to make recommendations or business requirements that could help FOIA processing vendors ensure that 508 compliance technology is incorporated into software solutions. So, the big thing for this and the thing that, I think, the committee brings to this is that we believe that within [a] two year period, following the release of this report, we want this to be implemented. So we want this to have an expiration date, so to speak. And Allyson, you're going to do the- [crosstalk 00:34:56] Oh.
Bobby Talebian: Sorry, go ahead.
Jason Gart: I was just going to pass it on Allyson. Go ahead.
Bobby Talebian: All right. Sorry. This is Bobby from DOJ, and it's actually not a substantive, but just a wording. I want to, I feel like we shouldn't say that there's a conflict between the proactive disclosure provisions and section 508. They both deal with important accessibility issues. It's just that 508 is dealing with accessibility for a specific community. There's challenges obviously, but I don't think there is an inherent conflict and they're both equally important. So I just don't like that language of there being a conflict between the two provisions.
Alina Semo: And with, Bobby, can we change it to inherent challenges instead of conflicts?
Bobby Talebian: Yeah, I think that works better. It's just, I don't see a conflict between the two provisions.
Alina Semo: Jason and Allyson. Is that acceptable to you? You fine with that?
Allyson Deitrick: I'm fine with that.
Jason Gart: Yeah. I ask A. Jay, Kristin, David. Roger.
Allyson Deitrick: I'm fine with that.
Roger Andoh: This is Roger. I'm fine with it.
Alina Semo: Okay. Do you want to, Jason, do you want to move to have this part one recommendation approved with that change? Subsequently, for challenge for conflict.
Jason Gart: Yes. Correct. So moved.
Alina Semo: Do I have a second?
Roger Andoh: I second, it's Roger.
Alina Semo: Thank you, Roger. Okay. Let's take a voice vote. All those in favor of the recommendation as it currently reads with the word conflict substituted with the word challenges, please say aye.
Roger Andoh: Aye.
Bobby Talebian: Aye.
Jason Gart: Aye.
Kristin Ellis: Aye.
Alina Semo: Anyone opposed to this? Please say nay. Okay. Any abstentions?
Bobby Talebian: Hi, this is Bobby from DOJ and I abstain.
Alina Semo: This is Alina Semo…[inaudible]. So I believe that recommendation has passed. Martha, are you good with gathering everyone's votes?
Martha Murphy: Yep. All good. Thank you.
Alina Semo: Great. Michelle, next slide please.
Jason Gart: Allyson, are you going to do this one?
Allyson Deitrick: You can do it or I can do it. It's up to you.
Jason Gart: No, that's fine. So this one is, relates to commercial portals. We recommend that FOIA.gov as well as other commercial portals allow for the full text searching of FOIA logs. Additionally, we want agencies to proactively publish FOIA logs and the agencies electronic reading rooms often referred to as FOIA libraries on an ongoing basis and at least quarterly. Unless the agency receives 50 or less requests per year. And then we provide some elements of, or fields that we believe would be most useful in those FOIA logs. The data request, the status of request fee, category, things of that sort. Again, this is not something we came up with. This is something that the prior FOIA advisory committee had recommended. It has not really, again, it is languished and we believe that within two years, following the release of the report, that this gets actioned.
James Stoker: This is James Stoker. So I have a question about the, I guess the last part of this recommendation where it says, unless the agency receives 50 or less requests per year, in which case annually or semi-annually would be appropriate. I wonder if that doesn't just complicate the recommendation unnecessarily. I'm, I don't know, this doesn't seem like a particularly onerous requirement and I could be underestimating the amount of work that goes into this. So maybe it would be better to have it, just stop it quarterly and require all agencies to do this. Is that a possibility or would there be some objection to that?
Allyson Deitrick: I think the fifth, that limitation was done to be consistent with other guidance. I think the OIP’s guidance on websites. So we were just trying to do it for consistency, but I don't have a preference one way or the other. Do other members of the technology subcommittee or the committee as a whole have any thoughts on that?
Kristin Ellis: This is Kristin. Oh, sorry. This is Kristin Ellis from the FBI. I don't necessarily have a problem with keeping it in or taking it out. It just strikes me that it could be unnecessary work if an agency receives in a quarter one request. I mean, yes, they could put it up as a log, but it just strikes me that publishing either annually or semi-annually when you're talking about only a handful of requests is more efficient, then publishing in a quarter that we didn't receive any FOIA requests this month. Or we got one and here's the log. I don't know that it onerous. I just don't know that it necessarily benefits anyone, really, to post that on a quarterly basis.
Kel McClanahan: This is Kel. I have a bit of a, it's not a, it's a question. So what's on the screen as the draft recommendation is not what's in the document as the recommendation. And so if we vote on this recommendation, are we voting on the document that's on the website as the PDF? Or are we voting on what's on the screen? Because at least on this one, they, this says agency should proactively publish FOIA logs, whereas, this one it's not exactly clear that this is recommending that they be required to have FOIA logs. And so like, and I'll use one example of, CIA does not maintain a FOIA log that you have to FOIA it periodically. And they basically create it from scratch periodically. That's not, it's not automatic and it's not anything like that. And so I wonder if this is something that we should put in. Was the intention, I guess my question is, was the intention of this recommendation to be a best practice for agencies to do it, or to be a recommendation that agencies have to do it? So that's a distinction for some agencies.
Allyson Deitrick: My interpretation, at least my thought was the recommendation for best practice. Especially if the technology lets individuals create their own logs, then the agency doesn't necessarily have to also proactively release it. But I think it was more of a best practice than a requirement.
Kel McClanahan: Is there a reason that you did not go for, we recommended that the OIP correct this happened, or that should be modified for this to happen. And you just went with, we encourage agencies to do this, which would really only reach the agencies that were already making FOIA logs.
Jason Gart: So this is-
Bobby Talebian: This is Bobby from DOJ, do you, I mean, when this is recycling or this is bringing back up a prior recommendation, was it a best practice then?
Jason Gart: Yeah, this is Jason Gart, History Associates. It was a best practice then, it's designed for consistency so that they could contain minimum sets of data in Excel, CSV files in preference to PDF, which was seen as very annoying to the requester community. And I think it's, at least the way we discussed it among the group. And again, David, A. Jay jump in, I, Kristin, was that this is, let's get them consistent. Let's allow for full tech searching and its best practices. And if you're at an agency that again, only has one request every month let's have a baseline level, so you don't have to, you just release it on an annual or semi-annual basis. So, and that's, I guess, was the background and what was kind of percolating in our minds.
Bobby Talebian: Is the, and excuse me if, I just don't recall the, I do recall this conversation as far as prior backer committee, but I don't have the, I don't recall exactly. Is the recommendation regarding FOIA.gov search ability, is that new or is that from the prior recommendation?
Jason Gart: I believe that's from the prior recommendation. Allyson?
Allyson Deitrick: I'm just trying to pull up the old recommendations. Give me one minute.
David Cuillier: Well you're doing that, Allyson, this is Dave Cuillier from the University of Arizona. Yeah. I think the, there's a spectrum here. I mean, there are some of us who believe that federal agencies should be required to post their logs in a searchable way. I mean, almost immediately as you see in some cities, counties, and other jurisdictions around the country. So there's some of us that, that's what we would want in this recommendation, but I think that's not going to be easy for everyone to swallow.
And some agencies are saying, we don't have the money for the tech and that sort of thing. It's going to take time to work out. So I think this is an acknowledgement of that and really intended to keep the conversation going. It was brought up previously. I think, what we're getting at here is we want this, this is a priority for a lot of the requesters out there that we really move to a system across the federal government where anyone can easily see what's being requested and the disposition of those requests. So I think that's kind of the intent here.
Patricia Weth: This is Patricia Weth from EPA. I think it, everything could be accomplished by maybe just slightly doing some wordsmithing on the recommendation. Maybe the recommendation using your language it could be, we recommend that agencies proactively publish FOIA logs, et cetera, et cetera. And then you could include and allow for full search, full text searching of FOIA logs. So you're recommending the agencies to proactively publish and if they have the technology available, allow for that full text searching of those FOIA logs, it's just a thought.
Bobby Talebian: This is-
Tuan Samahon: Tuan Samahon from Villanova Law. I just wanted to, on James Stoker's earlier point, suggest that maybe we strike all the language starting with the word, unless, the de minimis rule. For the reason that it would be easier to determine than what is going on with agencies, whether they actually are receiving 50 or less requests, or they're just refusing to follow the recommendation. And I know that places a certain burden on agencies that receive fewer requests, but at least it would be somewhat more clear than that sort of non, if, we wouldn't mistake. In other words, non-compliance with low volumes of requests.
Alina Semo: Jason, what would you like to do? Do you want to try to take these comments in and rewrite the recommendation and re-present at next month's meeting for a vote? But I know you've gotten some, lots of different feedback. Also, I just wanted to address Kel's comment from earlier. The slide actually reflects exactly what's in the white paper, same language, so I was a little confused when you noted that there was a difference, there isn't. But back to Allyson and Jason, what would you like to do?
Jason Gart: So Allyson, David, A. Jay, or A. Jay’s not here he's on vacation. I would say that this is a recommendation, at least the base is a recommendation that's already been passed. It's something that's been out there. It's something that hasn't, or hasn't been much movement on it. And our intent was to try to get it back in front of everyone's attention and add an expiration date. I think I'd be happy with going back and tweaking the language. I would all also, maybe, suggest that we, if it's okay with the committee, maybe we approve it with the caveat that we'll tweak it further, but at least let's keep it, let's move forward. But again, I, Allyson, Roger, David, I'm not sure, Kristin, what your thoughts are.
Roger Andoh: This is Roger. Jason, I agree with you. I think that at least I don't hear any dispute that this is necessary. So what we are talking about here is wordsmithing. So I don't think we should table this and bring it back with a vote. I think we should vote on it with the understanding that we will tweak the language. But I also had a question. Maybe Bobby can answer this. Because I'm just looking at right now. I'm not sure that FOIA.gov has access to other FOIA logs of agencies. And so if it doesn't, probably, this might be a, the FOIA.gov might be a site, a location where one shop stop, you come there and you have access to all the FOIA logs posted by every agency. So you don't have to go to CDC site or DOJ site or EPA site. You can just come to FOIA.gov and you can find [a] FOIA request that [was] submitted to an agency. You might find the same FOIA request submitted to multiple agencies.
Bobby Talebian: This is Bobby from DOJ. I'm sorry, go ahead.
Allyson Deitrick: Oh, sorry, Bobby. I was just going to say, I found the recommendations from the 2016-2018 term on the FOIA logs. And back then they were presented as best practices. And it just was to publish logs, ideally, ongoing, at least monthly, unless agency receives fewer than 100 requests per year, in which case annually or semi-annually. Then [it] listed, a of list of different information to include like fee waivers and exemptions. And then also encouraging that the log should be posted in Excel or CSV and not in PDF. So our recommendation was trying to take that a bit further in terms of getting the logs text searchable, and if they can be extracted. So that's a bit of the difference. And then also we lowered it from a hundred to 50 requests or less per year as compared to the 100,000 in the original recommendation. So if that provides some background on other comments or thoughts about how to proceed.
Kel McClanahan: So this is Kel. If that's the case and this is the changes to the original to the previous recommendation seemed to be relatively minor. I don't agree with Roger that we should vote on whether or not this is necessary. Because I think that this is not sufficient, that if we're going to make another recommendation, I think it should go above what the previous recommendation was. And so I think that, the previous recommendation was out there and agencies either followed it or they didn't. And I think that if we're going to make this recommendation, we should say, okay, now we're going to step it up and say, we recommended that FOIA.gov, the first line is the same. And then say, additionally agencies should be required to proactively publish FOIA logs. Because clearly anyone who was going to do this as a best practice, would've already done it as a best practice. And so, and if they had done that, we wouldn't be here revisiting it. So I think we should sort of take the next step for that. And that's not just wordsmithing, I think that's actually changing the meaning of the recommendation.
Bobby Talebian: This is Bobby from DOJ. So I, and Allyson, I appreciate that. Thanks Kel. hearing back what the recommendations was really helpful. We have been encouraging agencies to post FOIA logs. I think FOIA logs are an important way to inform the public of what types of records agencies have, especially if we're not able to post as much records in our, [inaudible 00:54:07] as we'd like. They do provide a level of resources and so my view on this is that we shouldn't let the perfect be the enemy of the good. And so I've encouraged agencies to post the logs in the ways they can, that would provide the information most efficient and effectively.
So I would say that regardless of building on the prior recommendation or going back to the prior recommendation, the level of flexibility would provide agencies, I think provides a better return. And then also as with regard to FOIA.gov being able to search across FOIA logs, we are currently looking a number of ways to improve FOIA.gov via recently put an RFI out to see if we can get, for example, a guided search, a guided feature on FOIA.gov where it might pull from maybe FOIA logs or what's posted in libraries or agency.
We don't know yet. So it's very, I guess, my point is, it's very early in the stages and I'm not sure what is technically feasible, particularly with how things are, in right now, in differently and so forth, but certainly something that we can consider the feasibility of seeing the value of it. But not something that today we could promise.
Kel McClanahan: And I think what we're actually on the same page here. I do not see my recommendation or my tweak as reducing flexibility because it doesn't. The only change would be that they should be required to publish FOIA logs in some format that the thing, the seven items or whatever, however many items were in here, A through J are still a best practice for what should go into it. It's still, they still have the discretion to choose what best conveys the information. The only thing that they wouldn't have the discretion to do is just not do it. And so I think we can all agree that them not doing it, if not conveying it in the way best suited for the conveyance of information.
Bobby Talebian: And I think that makes sense on a large scale as long as we're recognizing that the agency should have a level of flexibility. There as far as what a FOIA log is, I think that's really helpful. And I will say though, that we do have agencies, the with 50 or less, we have agencies that you can [inaudible] 10 or less. And so it probably doesn't make any sense for them and their FOIA logs might not be very helpful, but I think that's kind of small potatoes. I'm not really, not something I would, I can't remember the saying, but I, it's one way or the other.
Alina Semo: Allan, I just saw a chat from you that you had a question.
Allan Blutstein: Yes. Picking up on, thank you Alina, this is Allan Blutstein from America Rising. Picking up on where Bobby left off. I don't think we all need to necessarily agree on the 10 or so fields that should be in a FOIA log. But I was curious whether the disposition of the request was intentionally left off or whether it's covered in item G, in other words, if an agency found no records or withheld records or some other disposition, I think that would be useful. But I didn't see it in this list and was wondering about it.
Allyson Deitrick: I think one of the reasons we took that off the list was if a request had come in during the timeframe, but was not decided during that timeframe, it wouldn't have a disposition result.
Kel McClanahan: I would respectfully say that it should still be a field, but it should be a, if closed disposition. That way if it's, it would be pending or closed, no records closed exempt or [inaudible 00:58:12] for these partial release, whatever. But if it's pending, that field would be NA.
Alina Semo: All right. Not hearing anyone jumping up to make any more comments. I'm taking this back to Jason and Allyson. How do you want to proceed?
Linda Frye: Actually, Alina, this is Linda from SSA. I have a quick question.
Alina Semo: Sure.
Linda Frye: I don't know, maybe I'm just misreading this, but under the FOIA Improvement Act, we're already required to post the raw data. Now we always treated that raw data as our FOIA log. Are FOIA logs actually considered something separate from that? Because if they're the same item they're already required to be put out there. So I don't know, I'm just, I guess I'm coming back on, do we really need this? Or is it already, actually out there?
Bobby Talebian: This is Bobby from DOJ. There is a slight difference between the raw data and what we would consider a FOIA log. I guess the big part I think, was of most public interest is probably the subject of the request. That's not captured in the annual report, so it's not in the raw data. So FOIA log would show the requests or the types of topics that are being requested and potentially if they've been already released. So the benefit would be the requester could either maybe, if they're asking for records that have already been processed, so that's easier. That's an easy one for the agency, who like those types of requests. Or maybe just to better inform them the types of records that agency have. So that's the big difference between, as I see it, between a FOIA log and our, the incredible data that we do get from the raw data from the annual report.
Jason Gart: Yeah. This is a Jason Gart, History Associates. That's absolutely correct, the requester community, before we submit FOIA requests, we will search FOIA logs to see what's been released. So thus you do not have to go through the FOIA process. It helps keep things out of, it helps not having to go through FOIA. You can see what's released and you can ask the office to release that to you. So that, and that's a huge value. And a lot of the requester community uses that and relies on that.
Kel McClanahan: And this is Kel. I can add another added value to this, which is, I'll go to the FOIA logs or I'll have a client go to the FOIA logs and see if someone requested it and there was no records. If someone else just filed the request for these records and it came back a no records response, sometimes we don't file a request for it because it's going to, unless they have a reason to doubt the search. And so that's a win-win for everybody, that means the agency doesn't have to process that request for something that they already said, that they don't have any records for, which they would still have to conduct a search for. They can't just say, oh, we said last year that we didn't have any records, so we are going to say no records now. They have to still search for it. That adds to their backlog. So releasing FOIA logs is good for the agency, in some ways.
Linda Frye: Thank you all for the clarification. I appreciate it because now the recommendation definitely makes more sense to me now.
Alina Semo: So, I'm really mindful of the time because I know we have a packed agenda today. So, looking back to Jason and Allyson, what would you like to do? Do you want to move to approve this in the spirit and wordsmith it and re-present it next month? Do you want to hold off until next month? What path do you choose? What adventure would you like to choose?
Jason Gart: So, I'll just jump in, Allyson. You can correct me. But let's move to approve and within the spirit. And Allyson or David, Roger, you can say no, Kristin.
Roger Andoh: Yes.
Alina Semo: Okay.
David Cuillier: I'm fine with that. And Allyson... I'm sorry, this is Dave Cullier. Alina, procedurally and for this vote and beyond, is it okay... Are we fine with taking a vote on something even though maybe it has to be wordsmithed and brought back? And then-
Alina Semo: Yeah, we have done that before.
David Cuillier: And then come back and we can take another vote at the next meeting and if... Maybe things have shifted, maybe people may have had time to mull it. But there's nothing wrong with taking a vote on an idea now even if it's not perfect. And we can always come back later and vote. Just leave it as is or vote again. Okay, great. Thanks.
Alina Semo: Yep.
David Cullier: It'll help in our next stuff too.
Alina Semo: Absolutely. And we have done that in the past, so I think that works. So, who's going to make a motion to move forward in the spirit of this recommendation?
James Stocker: This is James Stocker. Just really quickly, I want to make just a quick suggestion. If you go back and revise this, not about the language, but about the text, I think it would be really useful if you would include the original recommendations and how they were worded, just so that we can see those two side by side, so that anyone in the future who goes to implement these recommendations will understand what has stayed the same and what has changed. So, having the exact text and maybe a reference number. I think each of the recommendations are numbered in some way. Just including all of that in the text would make it much easier for this to be implemented. Thanks very much.
Alina Semo: Makes sense. Thanks, James. So, do I have a motion?
Roger Andoh: Yes, this is Roger.
Alina Semo: What's the motion?
Roger Andoh: Move forward to vote on this recommendation.
Alina Semo: Not the wording itself, but the spirit of it, correct?
Roger Andoh: Yes, correct.
Alina Semo: Okay. Do I have a second?
Jason Gart: Jason Gart, second.
Alina Semo: Okay. Let's take a voice vote. All those in favor, please say aye.
Alina Semo: Okay. Those opposed, please say nay. Okay. Those who abstain, please voice your abstention.
Bobby Talebian: This is Bobby from DOJ, and I abstain.
Alina Semo: And I'm sorry, I wanted to vote aye. Martha, please mark me down as an aye. Sorry about that. So busy listening to everyone else's ayes. Okay.
Martha Murphy: Okay, we're good. I've got them all. Thank you.
Alina Semo: Great. Okay. Well, thank you, technology subcommittee. Great work. And I don't mean to move everyone along, but I do want to make sure we get in the process subcommittee our break. So, I'm going to turn it over to Alexis Graves and Michael Morisy and let you guys drive from here.
Alexis Graves: Great. Well, good morning, everyone. Today, we are going to have our esteemed colleague from the American Bar Association, Thomas Susman, present on what is our updated recommendations from our first-party working group. Before turning it over to Tom, I do just want to thank on behalf of the process subcommittee and the first-party working group, all of our committee members, for your just very thoughtful comments during our December committee meeting. And we, of course, appreciate those comments that we received from our colleagues at the Department of Homeland Security, as well. So, without further ado, I will actually turn it over to Tom.
Kel McClanahan: Tom, are you muted?
Alina Semo: Oh, you're muted. Not able to hear Tom. Michelle…
Michelle Ridley: Yeah, we're unable to hear Tom. Tom, you might need to dial on the regular audio because I think your laptop audio or PC is not working again.
Kel McClanahan: Tom will introduce this recommendation through interpretive dance.
Michelle Ridley: Yeah, Tom, I'm going to recommend that you dial in via regular audio. I'll send you that information if you need it, but we can move on while we wait on Tom, if you like.
Martha Murphy: While Tom is getting on, would someone else like to start us off, the first recommendation? Or do you want to wait for Tom?
Michelle Ridley: I'm sending Tom the information, so he should have it.
Alexis Graves: Alina, I'm not sure in terms of your schedule, when did you have the break schedule? Should we-
Alina Semo: 11:30
Alexis Graves: Oh, 11:30?
Alina Semo: So, we've got 20 minutes.
Alexis Graves: Okay.
Michelle Ridley: All right. I think Tom is on the line. Tom, can you hear us?
Alina Semo: Yes.
Thomas Susman: Yes. All right. Let me try to mute you here. All right. How do I keep the feedback from coming?
Michelle Ridley: Yeah, you'll need to make sure that your volume on your computer is turned down and that you are completely muted on WebEx audio, as well. So, make sure you turn your volume down.
Thomas Susman: All right. How's that?
Michelle Ridley: Much better. Thank you.
Thomas Susman: Okay. All right. As I started to say, the first FOIA request I ever made was from my own file from the FBI and I learned a great deal. It was quite remarkable. I hadn't realized I was such a party of interest through the years of the Bureau when I was a law clerk and working on Capitol Hill. I'm going to make a brief presentation. And because I'm sure there'll be lots of questions. Obviously our task force colleagues, Roger, Alexis, and Tuan were very active in interviewing and we had biweekly meetings and put a lot of effort in here. And so, I'm going to present it from a level and then we'll go into the specific recommendations, presuming that you have read our memorandum.
Former federal advisory committee member, Margaret Kwoka has actually done an extensive empirical research on who requesters are across the federal government. She wrote an article on FOIA, Inc, which is business requester, she wrote an article on first-person request, she wrote a book that has a great deal of information on first-party requests. And in all of these, she identifies media, business, and the first-person requesters and deals with each separately. But her findings in this last category were startling and I think probably one of the reasons why we focused on this issue. And that is that first-person requests are the single largest category of requests in the federal government. The Department of Homeland Security receives nearly half of all requests filed across the federal government, and most of those are first-person requests. And other agencies ranging from the Department of State, Veterans Health Administration, Justice Department, EEOC, Social Security have a large quantity of these first-party requests.
The prior advisory committee focused on this issue, and as our memorandum begins, have made a recommendation calling for OGIS and OIP to encourage agencies, basically, to identify common categories of first-party requests and establish more efficient approaches to responding. We looked at Social Security, IRS that has developed portals for obtaining information, IRS transcript, Social Security histories, Medicare, et cetera. So, there are efficient ways of doing this electronically that doesn't require a FOIA request or a response. I want to point out, I guess, not as an aside, but as a key issue that first-party requests should not be unwelcome by agencies. FOIA is often the only way that an individual can obtain a benefit or participate in a proceeding or even avoid expulsion from the country. And there are mechanisms for holding government accountable, as well as other kinds of requests. So, our subcommittee developed these four recommendations that we'd like to discuss and vote on separately.
I want to acknowledge that DHS was extremely generous with their time, both in discussions, and we received just yesterday some very useful suggestions to this report that you have and didn't have time, and frankly didn't want to burden you with having to have a replacement the last minute. But I want thank Amy Bennett and her colleagues at DHS for their efforts to provide us with some constructive guidance as we go along.
I want to end with one of our more recent developments, and that is the Justice Department's recognition that this issue is important and Attorney General Garland's March 15th memorandum, which Bobby probably has read before, which under the heading of removing barriers to access and reducing FOIA request backlogs, specifically says that The Justice Department's executive office of immigration review, which is one of the sub-agencies that we looked at, has long required individuals to file FOIA requests to obtain official copies of their own records of immigration court proceedings. We are now changing that policy and I encourage all agencies to examine whether they have similar or other categories of records that they could make more readily accessible without requiring individuals to file FOIA requests. So, thank you Attorney General Garland for anticipating our recommendation in that respect, and I think he nailed it on the head that it is going to be a more efficient and effective way of not only responding to the individual requests, or instead of responding to individual requests, but in the long run, saving time and energy of the government.
Recognizing that resources will be required to retool in these agencies with large numbers of first-party requests, we are not unmindful of the fact that the change process requires technology, training, evaluation, testing, et cetera. But I guess one of the reasons why we're re-plowing some of the field that had been plowed by the prior advisory committee is because not all that much has been done, and I guess we'd like to... We're going to keep recommending it until we see some progress.
So, that's my general overview. And if you want to go to the recommendation one, which is on the screen, and that's, as best as I can see, that's effectively the last recommendation we made and the Attorney General's recommendation that... No, I'm sorry. I'm thinking recommendation two, or three, that's restated. This one is that you shouldn't have to make a request where you know, where the agency knows a person is going to need the record. So, that's where we start. And let's open this for questions and comments, and perhaps one of the other members of the task force who did some in depth research would add to the commentary. Or not. Questions?
Alina Semo: All right. Don't be shy, anyone. Don't all speak [crosstalk 01:16:11].
Thomas Susman: All right. Do we want to vote on it? I'll welcome a motion to approve if there's not any discussion.
James Stocker: Sorry, this is James Stocker here. I just wanted to take a minute to thank the working group for all the great work that they've done on this. It's a fantastic report. As someone [who] helped work on that recommendation in the last committee term, I think you guys have taken this farther. You've gone into much more detail and you've done amazing research that we were not able to do. So, thank you for that. I think all four of these recommendations are fantastic. I do have a question for recommendation number four, but we can get there when the time comes. So, thanks very much.
Thomas Susman: Yeah. I expect there will be other questions on number four, but do I have a motion on recommendation number one?
Jason Gart: Jason Gart [crosstalk 01:16:59].
Alexandra Perloff-Giles: Movement to approve recommendation number one. This is Alexandra Perloff-Giles.
Alina Semo: Thanks, Alexandra. We have a motion. Do we have a second?
Jason Gart: Jason Gart, second.
Alina Semo: Thank you. All right, let's take a voice vote. All those in favor, please say aye.
Alina Semo: Martha, you got that? All those opposed, please say nay.
Martha Murphy: Who are they nays?
Kristin Ellis: Kristin Ellis, FBI.
Alina Semo: Allan Blutstein and Kristin Ellis. That's what I heard. Any other nays? Okay. Any abstentions?
Bobby Talebian: This is Bobby from DOJ, and I abstain. I will re-emphasize that... And I appreciate Tom mentioning the Attorney General's guidelines and removing barriers to access being a key focus of the department.
Alina Semo: Martha, are you good with [crosstalk 01:18:01]?
Martha Murphy: Yes. You are a yeah, correct, Alina?
Alina Semo: Yes. I'm an aye.
Martha Murphy: You're an aye. Sorry. Yay! Sorry, guys. Yes, we're all good. I've got it tracked. Thank you.
Alina Semo: So, I believe the first recommendation passes. Not unanimously.
Thomas Susman: Okay.
Alina Semo: Close enough, right, Tom? Do you want to go on recommendation number two?
Thomas Susman: Sure. So few things happen in Washington unanimously these days that I'm not even offended that we didn't get all the votes. Recommendation number two is a narrow one. As we did our research, we discovered that, for example, some of the progress made in providing a portal for direct access to information in immigration files necessary for proceedings were available to attorneys, but not to individuals. But alas, I guess half or more of the cases involve pro se parties worried about getting deported, and they have to go through a different process of FOIA requests for their records. And so, we couldn't qualify it more than to the extent feasible because in some cases it may or may not be, but we really are trying to focus the agency's attention on the fact that individuals not represented by lawyers should have access through whatever proactive disclosure or portals or automatic or electronic approaches that the agency develops. Any questions?
Kel McClanahan: Yeah, I have a question. So, reading your full document and what you just said, it appears that this is just immigration. You only talk about immigration in your discussion draft. But you just say agency in the recommendation. Is this intended to be used for elsewhere, as well? Because I can't think of where that would happen. Or is it just immigration?
Thomas Susman: Well, we confess not to have done a thorough government-wide inquiry into all of the first-party requests situations, and so while we know this is the situation with immigration, it could be elsewhere. Don't know the answer to that. But why narrow it now? And then someone will come up and say, "Well, wait a second, the veterans agency, or one of the other benefits agency has a similar restriction." Then we say, "Oh, whoops." I mean, there there's no harm, I guess, in making it general.
Kel McClanahan: In that case, I would recommend that rather than use this language, adversely impacting, which an agency may say, "Well, they're not adversely impacted," that you just say something like agencies should amend regulations, directives, policies, and guidance.
Thomas Susman: To affect [crosstalk 01:21:19].
Kel McClanahan: [crosstalk 01:21:19] equal treatment... to ensure an equal... Not equal treatment, but to ensure an equal process for both represented and unrepresented parties, or equal access process.
Thomas Susman: Equal access process. Let me hear from other members of the task force or subcommittee on that subject. But that actually seems to me an improvement, personally.
Kristin Ellis: This is Kristin Ellis from the FBI. So, I shockingly agree with Kel that what we're talking about is equal access. I'm a little concerned with the notion of creating a special category for pro se parties because there are a lot of pro se requesters who are very, very sophisticated and they don't need a counsel. They are, essentially, professionals at this. And so, I'm not sure that their ability to access records is adversely impacted any more than, say, the ACLU's or the Washington Post's because those folks are typically represented people. So, I'm not sure what problem we're getting at. I mean, I understand it's the pro se, it's the Joe Smith off the street pro se person who's never gone through the process before, but I don't think as a category pro se parties are necessarily universally impacted adversely by processes.
Tuan Samahon: This is Tuan Samahon, if I can just speak up. So, let's talk specifically about what was done in front of EOIR, the Executive Office for Immigration Review, they rolled out a portal, a FOIA alternative, called ECAS that would allow attorneys on behalf of their clients to simply access through ECAS the FOIA alternative, their transcripts of their proceedings. If you, on the other hand, are a non-represented person, you could not avail yourself of the benefit of the FOIA alternative. So, we're not saying that you couldn't file a FOIA request as a sophisticated hypothesized pro se requester. The point is that if you're going to provide FOIA alternatives, you make them available on equal terms to the individuals who can't afford an attorney. And as Tom mentioned, this principle is generalizable. We did not generally survey the whole of the federal government looking for instances where there's differential treatment with respect to pro se versus represented parties for alternatives. But we do think that it's the case that their access should not be sort of impaired.
I'm getting the sense that it's possible that EOIR, in responding and being in dialogue with us, may very well, very soon, change its own policies to make this available to parties that are not represented by counsel. And we also suspect that a lot of these individuals aren't necessarily sophisticated, I'll add, in the context of people in removal proceedings. These are people who are likely to be exactly the opposite.
Kristin Ellis: So, this [crosstalk 01:25:06]. Sorry, this is Kristin again. I don't agree with that. But I think that that's a very specific example in the realm of a very broad FOIA community. I mean, I think that it is valid to say that all requesters should have equal access to systems or... We shouldn't be creating different castes of people, whether they are a pro se requester or a represented requester, but I think that the example you gave is a very specific one that I, in my travels in FOIA and the federal government, have not seen such differentiation being made between types of requesters that way.
Tuan Samahon: This is Tuan Samahon. We agree that it was EOIR who made that distinction and introduced it, so I take your point. I don't think there should be any difference, and there certainly isn't with respect to FOIA access. Again, with respect to alternatives to FOIA access, we don't think there should be any distinction. We're just saying that agencies need to be mindful of this because they have drawn something by EOIR specifically has drawn such a distinction, creating a substantial burden. This is not a negligible category, right? So, most of their business, EOIR, is dealing with persons who are, in fact, pro se.
Bobby Talebian: This is Bobby from DOJ, and I can speak to this. So, EOIR did... Well first and foremost, if we're considering this recommendation, I agree that I think a broader language that looks to... Because no one, I think, would disagree that you want equal access with regard to any kind of alternative means or processes to get records, but EOIR has changed its policy. And so, as far as any person, any respondent, can access directly from the courts their records and don't have to make a FOIA request anymore. And so, that's been updated in their policies on their website. Specific to EOIR, I think this recommendation's already been accomplished.
Alexandra Perloff-Giles: This is Alexandra Perloff-Giles. I agree with Kristin that the pro se designation in FOIA generally is confusing. If I'm thinking of the journalists in the New York Times newsroom, I don't know if their counsels are not. Most of the time counsel doesn't get involved unless there's an issue. But I wonder if we could rephrase this to indicate that what we're getting at is pro se in the legal proceedings to which the FOIA records pertain as opposed to pro se in the FOIA requesting process. That seems like a meaningful distinction. So, whether it's immigration or any other kind of benefit to which the FOIA records pertains, that's what their pro se is, for purposes of this. I don't know if that's a feasible way of [inaudible 01:28:13].
Kel McClanahan: So, this is Kel. As the person who opened this can of worms, I think that I would be in favor of it with the language that I modified, basically that Kristin and I have basically miraculously agreed on, for just being more of a best practice, that they should make sure that they... Those who do have, or think of having in the future, an alternative process, don't do something like set up a portal system that you have to log into to get into. Which I have run into in the past, not in FOIA, but the EEOC used to have a thing that only lawyers could log in to the system to file briefs and read briefs and pro se people couldn't. But it's not unheard of.
But if that's the case, then passing it with that modification, the absolute worst thing that happens is it prevents someone from doing the wrong thing in two years and nobody needs fixing now. And the best case scenario is it fixes something somewhere that we don't know about. So, I don't see any harm in passing it. I guess I'm of the belief that we should recommend things that are good whether they have universal impact or not.
Thomas Susman: So, this is Tom Susman again. Stepping back with the comments that have been made, if we deleted adversely impacting access and simply inserted instead... Well, I'll read the whole thing. "To the extent feasible, agencies should amend any existing regulations, directives, policies, and guidance to provide equal access to records for pro se parties."
Kel McClanahan: Pro se is a term of art. I would just say... Since we're talking about equal, I would say equal for represented and unrepresented, to make sure that you're hitting both sides of it and there's to be no [crosstalk 01:30:32].
Thomas Susman: Okay. Represented.
Alina Semo: So, just so I'm clear, we're saying provide equal access to both represented and unrepresented parties? That's what we're proposing?
Thomas Susman: And by putting it that way, that also suggests that that's the underlying proceeding and not the FOIA request that we're talking about, per Alexandra's suggestion.
Alina Semo: And we're using-
Kel McClanahan: I would vote for that.
Alina Semo: And we're going to keep the word parties, though, not requesters, right?
Kel McClanahan: Entities. Or no, this is the first-party request. So, say, yeah, persons or individuals.
Alina Semo: Individuals. Tom, is that copacetic?
Alexis Graves: I'm okay with that.
Alina Semo: I heard someone say they're okay with that.
Alexis Graves: This is Alexis Graves, USDA.
Alina Semo: Yes.
Alexis Graves: I would be okay with the recommendations with those modifications, striking adversely impacting access for pro se and revising with the language.
Alina Semo: To provide equal access to both represented and unrepresented individuals? Is that what we're going with?
Alexis Graves: Yes.
Alina Semo: Okay. Anyone else?
Alexis Graves: Should we move to vote on that with that amended?
Alina Semo: Yeah. I would love that.
Alexis Graves: All right.
Michael Morisy: This is Michael from MuckRock. Just because of that discussion, I'm wondering if it should be one last tweak of any existing or proposed regulations, because there was a lot of discussion about forward looking things.
Alina Semo: [inaudible 01:32:29].
Jason Gart: Jason Gart, History Associates, agreed.
Tuan Samahon: This is Tuan Samahon from Villanova and the working group. I agree with both Mike's suggestion just now as well as Kel's.
Kristin Ellis: This is Kristin Ellis. Can somebody read back to me what the language will be?
Thomas Susman: This is Tom Susman. We might want to…I agree with Michael about the proposed regulations, but just dropping existing or proposed doesn't work because you don't amend proposed regulations. You develop proposed regulations. So I guess if we have a sense that's should be part of the language, it might take a little crafting to get it finalized, or maybe we can do it over the break this morning.
Alina Semo: [inaudible] again instead of proposed.
Kristin Ellis: So, can we just go back to…I don't disagree with Michael's recommendation by the way, but what the language after for that would... I don't... I am not tracking on what we're proposing now.
Kel McClanahan: Why don't we just type it in the chat?
Kristin Ellis: That would work for me too. I'm just trying to figure out what we're proposing.
Martha Murphy: Okay. I'm happy to type it in. If someone can read it to me, this is Martha, sorry.
Alina Semo: So the beginning, same Martha, to the extent feasible agencies should amend any existing. And we're not clear about whether we're going to stay proposed or future. So we'll leave that alone regulations, directives, policies, and guidance to provide equal access to both represented and unrepresented individuals.
Kel McClanahan: So this is Kel. I have a stupid question at the point, at this point, if we're, if this is a best practice anyway, why do we have it to the extent feasible? Why don't we just say, agencies should amend? And if it's not feasible, then they don't follow the best practice?
Alina Semo: Tom…working group.
Thomas Susman: This is Tom. I am okay with, to the extent feasible, simply because as we admitted, we have not exhausted, exhaustively cataloged every agency and potential practices that might be...this might be applied to. And so it makes me more comfortable.
Alina Semo: All right. So just like we did previously with the technology subcommittee, why don't we try to move ahead and to vote on the spirit and the language as we have it right now, maybe we'll continue to wordsmith a little bit more. Does that sound feasible, Tom?
Thomas Susman: So ordered.
Alina Semo: Okay. So do I have a motion to approve this recommendation with the language that we were proposing and perhaps some additional wordsmithing?
Tuan Samahon: This is Tuan Samahon, I so move.
Alina Semo: Thank you, Tuan. Do I have a second?
Jason Gart: Jason Gart, second.
Alexis Graves: Graves, USDA, second.
Alina Semo: I have a third. Very exciting. Thank you, Alexis thirds. Okay. Let's take a voice. Vote. All those in favor, please say aye.
Multiple: Aye. Aye.
Alina Semo: Anyone opposed? Please say nay. I don't hear any nays, any abstentions?
Bobby Talebian: Bobby I'm abstaining.
Allan Blutstein: This is Allan. I'm going to abstain.
Alina Semo: Allan is abstaining. Allan Blutstein, abstaining and Bobby is abstaining.
Martha Murphy: This is Martha, I’ve got all those. Thank you
Alina Semo: Okay. So I just want to note the time, it is 11:40, and I want to leave it up to Tom as to whether you want to try to keep going, or should we take a break.
Thomas Susman: I'm prepared to get, I think three ought to be relatively easy. There may be more discussion. We've already had a preview that there're going to be questions on recommendation four. So do we want to do, do we want to try to squeeze three in and then do a four right after the break?
Alina Semo: Yeah, that would be great. Let's go ahead and move on to three. Michelle next slide please.
Thomas Susman: And again, this is the one that seems to me a riff on the earlier advisory committees recommendations, quite general asking agencies to please examine your own situation and develop a plan for leveraging technology that promotes efficiency and customer service. So it's very broad and preparatory and we don't single any set of records or agencies out there to, it's best practice for all agencies.
Alina Semo: Any questions?
David Cuillier: Dave Cuillier, I move approval of recommendation three and for time’s sake I second my own motion.
Roger Andoh: I second the motion.
Alina Semo: I heard a second from Roger as well. Are we ready to take a voice vote? Does anyone have any questions about recommendation three? I'm not seeing any questions. I think everyone needs a break. Okay. So let's take a voice vote. All those in favor of recommendation number three, please say aye.
Thomas Susman: Aye.
Tuan Samahon: Aye.
Jason Gart: Aye.
Alina Semo: Anyone opposed? Please say nay, I don't hear any nays. Anyone up wants to abstain.
Bobby Talebian: I'm abstaining.
Alina Semo: That was Bobby Talebian abstaining.
Bobby Talebian: Yeah. Sorry.
Alina Semo: Anyone else abstaining? Okay. So I think we've passed this one as well.
Martha Murphy: And it is captured. Thank you. So should we move to break Alina?
Tom Susman: Yes. Break time.
Martha Murphy: Alina. We're not hearing you. You may be muted.
Michelle [Producer]: Yeah. Alina needs to unmute yourself.
Alina Semo: It would really be helpful if I were unmuted. I said good afternoon, everyone. Thanks and welcome back from the break. And I'm now going to turn things back over to Thomas Susman to finish up recommendation number four for the first party working group, Tom, over to you.
Thomas Susman: So as my initial introduction to this issue pointed out, DHS is the agency with the largest number of first person, first party requests, most of the immigration or, exclusion, or otherwise related to refugee status and so on. And we really looked hard at that because we heard from a lot of the lawyers who deal with the various sub agencies who believe this is one of the biggest problems that they have. The agency has tried to streamline process to speed up responses, but the parties tell us that it's not entirely successful. And so we really looked hard and tried to figure out what can we say and what can we do? Because we felt that something needs to be done. Now I'll say that DHS did a great job of convincing us that it was unlikely that we could figure it out as an advisory committee and the time available [inaudible].
And with the expertise we have, there are law enforcement records. There are national security records. There are records from different agencies. The state department, justice department, the paper records that some statutes actually statute, may actually require paper records, a diverse number of proceedings. And so not having any hair to pull out in frustration, we talked about, okay, how to, whom can we pass the buck? And so the recommendation is worded to suggest that there be outside assessment of, by an entity organization that does have some technological capacity that is to understand as it relates to A-files, which is the single most requested file that we were dealing with because it's used in all the various kinds of proceedings, 70 million files we talked about who could do this? It would require funding. Yes, it should be funded.
We'd like to take this recommendation to Congress and say, look, this is a big problem. And you should have, have HHS engage a contract agency. I, there are some out there I guess, that are doing FOIA related work now that have technology capacity, we ran across Midor in one of our forays, there are probably others, but this requires an in depth, thorough, probably long term study, but the consequences are great. And I mean, the number of people engaged in just moving records around and DHS is immense and the time and the energy and cost today. And so there's no sign that this is diminishing. There's no sign that any of the initiatives are going to change things quickly. And so you can call it punting, but we call it being practical about our own capacity to develop specifics. And therefore the recommendation simply is that an assessment should be initiated as it relates to the files. And we suggest in the discussion that probably should be a non-governmental entity with expertise in developing systems for records. And that's my overview.
Alina Semo: Okay. Questions, comments. I thought this was going to be a controversial topic.
Allan Blutstein: This is Allan Blutstein from America rising. My initial question is, who's paying for this. I mean, is, had DHS agreed to this? Would it be some, would it, would the money be coming out of someone else's budget?
Thomas Susman: Well, as I think I said this is Tom Susman, our preference would be for Congress to, if I were the FOIA angel, I'd say Congress should direct a study and fund it.
On the other hand, this is clearly costing DHS a great deal of money every year to deal with these files. And perhaps it could see its way to finding an ability we're not talking about nearly as much money as it takes to run the program. So it's one of these things where the efficiencies would pay off, but of course, agencies don't deal in out [inaudible]. So recognize the problem, suggest that there would need to be separate funding, but either the agency or congressionally authorized or appropriated.
Kel McClanahan: So this is Kel. I have a question about this, we’re talking about what they're looking into. Is it just what your recommendation says processes, workforce and technology. I'm assuming that this would not just be a tech vendor, a tech, someone who's has specific knowledge in technology research, technology development, because my understanding of this recommendation, or at least what you're going for, what they would be coming up with would include answers to the questions like with what staff what you're going. Are we going to hire new staff to handle these new requests under the A-file system or, or something? Is that correct? That you're talking about someone who basically come in and audit prospectively, what it would look, what it would take in order to do X, Y, Z in order to set the system up.
Thomas Susman: Yeah. This is Tom Susman. Yes. We want someone out to come in and audit what it would take. Now, obviously it would require the establishment probably of new systems, the training of staff. We're not, I have looked at a couple of A-files and it's pretty complicated stuff. And so the question would be well going forward, do they establish a system that segregates public from non-public, which is certainly possible to do, other agencies do that, which allows automatic access when the proceeding begins to either the immigrant pro se or council, not just through lawyers. As I said before, I'm not going to have a lot of specific answers because that's one of the reasons why we recommend an outside assessment. We see a problem, it needs to be addressed, and there are people capable of addressing it.
Kel McClanahan: When you say non-government, you just mean non-executive branch, or would this be something that you would envision maybe a GAO could do this, or maybe CBO to the degree that they're talking about for how much it would cost to do the program.
Thomas Susman: CBO won't do the assessment. And I don't know whether GAO, someone else may have an answer to whether GAO has the competence to do this kind of in-depth assessment, maybe? I don't know whether they do a lot of technology. Anyone else have any views?
Kel McClanahan: Well, they do audits of technology programs all the time, but this a little bit beyond their scope. My mention of the CBO perspective of design a system that would do X, Y, Z. I think that if GAO were to do it, they would do an assessment of basically what you've done. If it's a problem, and then what are alternative solutions, for what are the possibilities for fixing it? It wouldn't just be go forth and design the system.
Thomas Susman: We're trying very hard not to get into the micromanagement of what it should be done. I do think that your suggestion that maybe GAO could do it well since the recommendation simply says it should be initiated, it would be quite easy for us to, if my colleagues who were involved in the task force and subcommittee agreed to amend the commentary to say, the assessment would be performed by non-government entity with expertise, research, development, et cetera, or by the governmental accountability office, if appropriate or something, that's pretty simple in the commentary.
Kel McClanahan: Say non-executive branch entity instead of non-governmental.
Thomas Susman: If they think that they can get someone from inside of the executive branch at the GSA and their technology division, I don't want to micromanage this.
Alina Semo: I want to take a second. Welcome back, James Stoker. James, you had a question you wanted to raise or comment you wanted to make about number four. So now's a good time.
James Stoker: Thanks Alina. This is James Stoker. Well, my question may have already been answered. I asked what did the subcommittee mean by non-governmental entity? And I think that it's been clear that the subcommittee's open to a wide variety of different actors. So that does answer my question. Thanks.
Alina Semo: Okay, great. Thank you. All right. Any other questions or comments?
Jason Gart: Jason Gart, History Associates. Tom, do you have a sense of the universe of how much this assessment might cost when you're talking about, approximately 70 million records and might that be important because it kind of, I understand you don't want to micromanage it, but this could be a significant undertaking.
Thomas Susman: Well, we're talking about 70 million records in existence and increasing each year. And so it seems to me that the low hanging fruit element of this is creating a system unless we're expecting in the next century for the US to cut off access to all immigration, refugees, et cetera, asylum seekers, then this is going to be a continuing issue. So prospective only would be a practical way to start. And so, I would guess that would be a lot cheaper than trying to figure out how to digitize in an effective way for access the existing records that I understand are kept in Stone Mountain and they're tons and tons and tons of them. So no, in the end, but the short answer is, no, I don't know how much it would cost.
Jason Gart: Okay. Thank you. Yeah.
Tuan Samahan: Jason, this is Tuan Samahan our discussions focused on the pragmatics of not making the perfect enemy of the good and about prospective changes that could be helpful going forward. And we were looking at some of the things that IRS, for example, has been able to do in creating tax transcripts, by making databases, talk to one another and creating self-service portals. And again, the ideas that these A files are frequently requested. But, again there is a mix of materials in those A files that makes the process very labor intensive. And so the feasibility is to figure out, if the way we're taking data in can have an issue for it to be segregated in certain ways that could readily provide certain information in certain ways going forward. This is what the assessment is going to be. Say an outfit, whether you're talking about a Mitre or some other similar governmental contractor working with the executive branch streamlining, how they do this going forward. This would really in the long run, I think have some substantial cost savings as well as efficiencies in terms of turning around records quickly. That was the object.
Jason Gart: Just a followup question, I guess maybe this is to Alina or anyone else. I assume that with the transition to electronic records, the creation of new records would have to be digital born, or is that incorrect?
Alina Semo: I can't tell you. I'm not honestly sure about the answer a hundred percent. I would say it sounds logical what you're saying. They should be born digitally, but I'm not the records officer or the United States want to defer [crosstalk 02:11:44].
Thomas Susman: Alina, this is Tom Susman. When we discussed this with DHS, we were told that they have a requirement for keeping paper records for some historic reason. So obviously that would have to be addressed by Congress if it's legislated.
Alina Semo: Yeah. Thanks for the reminder, Tom. You're absolutely right. That's at least for DHS. Yes.
Jason Gart: Jason Gart, again. Does that mean that they should not also then meet the electronic records requirement? And again, this only helps you in the [crosstalk 02:12:28].
Alina Semo: I honestly don't know the answer, but I will note it and take it back to the folks who do know the answers to those questions. So I will circle back to you.
Alexis Graves: This is Alexis Graves, USDA. Jason, are you referring to the M-19-21 guidance?
Jason Gart: Yeah.
Alexis Graves: Okay. So yeah, obviously we've got that December 2022 deadline fast approaching. The reality is that a lot of the work, the inventories that would have to be done with respect to records management, couldn't be done obviously in the last two years while we were in a maximum telework posture. So, I do know, and it's struggle to meet that. So yes, we are moving closer to the target and we're doing everything that we can, but the reality is I think that [inaudible] confident saying that most agencies are not going to be able at this structure to be able to meet that.
Alina Semo: This is Alina Semo. Again, I don't think the answer though, to these, to these great questions, Jason would necessarily affect the recommendation, but great question. So, I've noted them and I will bring back some answers.
Jason Gart: Absolutely agree that my intent was not. I'm just trying to wrap my head around what an assessment like this would look like. And then the fact that, well, moving forward at a certain date, by law, I guess they should all be born digital in some form, which would then help, I guess, in moving forward in the ease of release. Right? But agreed, that's a separate conversation than this recommendation.
Alina Semo: All right. Any other questions or comments? Are we ready to vote on number four?
Patricia Weth: This is Patricia Weth from EPA. I have a question. I was just curious. Was the subcommittee able to speak with DHS regarding this assessment? And I was curious as to what their comments were.
Thomas Susman: This is Tom Susman. The answer is yes, we did. We had a very fruitful discussion on the subject and individual members spoke separately as well. We had a group session and as I say, the report in draft was circulated to them and we received back some comments. But I don't think it would be unfair to say that one of the reasons we persisted was that DHS has a lot on its plate and our discussions didn't suggest that they were going to be undertaking at their own initiative, any major changes in the foreseeable future. And I'm not saying that they don't recognize a problem. I think they do recognize a problem. Jim Holzer, who's the top guy over there used to be over at OGIS. He understands FOIA from the ground up.
And so, we felt that perhaps we would be helping them by making this kind of a recommendation, because it's unlikely that internal FOIA staff at DHS would be able to go to the higher ups and say, we need money to do a study because we need to do things severely differently. And just to follow up on the comment on the born digital issue going forward. Born digital doesn't necessarily mean born digitally in such a way that it is easily meshed with FOIA requirements. And, I think that's anticipated in the order, but we've seen too often new systems or records set up that could have from the start have been involved different fields some of which would be publicly available, even proactively and others not. And the agency, it's more expensive and more complicated, and the agency just didn't take the time to do it. So this might help in that as well. I'm done.
Patricia Weth: Patricia Weth from EPA. Thanks for that response. And I do remember very robust conversation at one of our committee meetings with DHS. And I have to agree with you. I myself have pulled out the report from this committee last term and pointed to different recommendations in order to implement best practices at my agency. So I think I can see this as being very helpful to DHS in that respect.
Alina Semo: Okay. Keeping an eye on the time. It's 12:22, I would still have a lot to get through. Any other comments or any questions that anyone wants to raise or do I have a motion on number four?
Matt Schwarz: Matt at EPA. Motion to vote on number four.
Alina Semo: Thank you, Matt. Do I have a second?
Roger Andoh: For a second, I do.
Alina Semo: Roger. Thank you for the second. Let's take a voice vote. All those in favor recommendation number four, please say aye [crosstalk 02:18:49].
Anyone opposed to it? Please say nay, anyone abstaining.
Bobby Talebian: I’m abstaining.
Alina Semo: I'm also going to abstain. Martha, did you get all of that?
Martha Murphy: Yes ma’am. Everything is tracked. Thank you.
Alina Semo: Okay. All right. So I believe this concludes the process subcommittees presentation for today. Tom. Thank you very much. Thanks again to the working group. You guys did a fabulous job. I'm going to keep things moving and turn it over to the legislation subcommittee. Patricia Weth and Kel McClanahan are the co-chairs. Patricia and Kel turning it over to you and you guys can drive from here.
Patricia Weth: Oh well, I'm Patricia Weth at the EPA. Immediately want to pass this over to Dave Cuillier who is head of the re-imagining OGIS working group. He has a potpourri of recommendations to discuss.
David Cuillier: Thank you, Patricia. Thanks for that. I'm Dave Cuillier, an associate professor at the University of Arizona School journalism and Board President of the National Freedom Information Coalition. The previous committee term recommended that Congress "strengthen the office government information services with clear authority and expanded resources," that was the recommendation. So we decided in this term, our working group would flesh that out a little bit with more specifics. So thanks to members, Thomas Susman, Patricia Weth and A. Jay Wagner for work on this. We gleaned dozens of previous writings and research listed and annotated in Appendix D of this report. I hope everyone's had a chance to look through and we've consulted with dozens of experts, including requesters and agencies and directors of FOIA oversight models in Connecticut, New Jersey, Pennsylvania, Ohio, and from some of the more than 80 nations that have alternative dispute resolution agencies, enforcement agencies, as it were. The list of those 40 some people are listed in Appendix A of this report. If you want to take a gander.
Now you can see in the report, the seven recommendations to Congress and [the] Archivist approved by the legislation subcommittee last month. I want to thank everyone who contributed to these ideas, which led to basically 15 iterations of this report. As we continued to gather information and revise, some of us wanted additional recommendations, some wanted fewer and many questions still need to be answered. In the end, I think we have some solid proposals for Congress and the Archivist to consider. Really I think it's a great starting point to get this discussion going. And it's not going to end today. We want to say that these recommendations are not an indictment of the people at OGIS. They've done a good job of the resources they've been provided. Also, it's not a criticism of the Archivist, Congress, courts or the Federal government overall.
Rather I think the takeaway is that we acknowledge the system doesn't work as well as it should, as well as it could be for requesters and agencies. We all know that and we can learn from what others have tried quite successfully I might add to save agencies and requesters time and money. And perhaps these recommendations could save taxpayers money by avoiding needless litigation. So as we go through each recommendation, I'll take copious notes, I'll update the report as needed. I've already received suggestions, corrections, things like that. So we're on the version, I think 16 now. And I'd like to mirror Thomas Susman's earlier comments on the A files. We don't have every single detail nailed down and I don't think we're going to get it all nailed down today, or even May or June. No doubt there'll be many insights and questions that need to be addressed.
That's why one of the recommendations is that the specific details be researched and fleshed out in a study, see page 16 of the report for just some of the topics that need further investigation. And we could certainly add more to the list. No doubt, I suspect each recommendation will be approved unanimously today and quickly, but there is a chance maybe we'll have to continue in May and I'd certainly provide an updated report with the wordsmithing if that happens. So with that, let's get started with number one. And we wrote these again, very succinct, the ideas, the committee we just want to get there.
So number one, Congress gives OGIS the authority to make binding decisions. This is probably the most important recommendation of them all is something we looked at really closely in these other jurisdictions. And we think overall, whether you know how it's done in the details, we'll have to figure that out. So open up to questions, discussion on this first recommendation.
Kristin Ellis: This is Kristin Ellis from the FBI. At what point in the process do you anticipate OGIS would be getting involved to make a binding decision? Is this request going through initial processing at the agency and then an appeal at the appellate authority and then to OGIS and then somebody could go to court?
David Cuillier: That's a great question, Kristin. And some of that discussed in the report, but there are different ways of approaching it. I think that has to be figured out. We don't have the definitive answer. We looked at Pennsylvania where a requester gets a denial. They're not happy with that. There are situations where they could choose, they could file suit immediately. Just like some organizations do today, right? After day 20. Maybe, we would want them to first do an administrative appeal and have that worked out with the agency before they would go to another situation. All of that, we don't have defined, but certainly needs to be worked out in conjunction with talking to more of the agencies I think, to include in that. So I hope that doesn't really answer your question other than there are different approaches to that.
Kristin Ellis: And as a follow up, when you say binding decision, OGIS looks at a request, determines that the agency, for example, improperly withheld information, does the agency have the ability to appeal that decision anywhere?
David Cuillier: Yes, absolutely. And that's clearly outlined in the report. I think we see that everywhere that courts are still the right place for the last resort. So if an agency feels that the decision's not good, they could certainly go to the courts to challenge it. And that's how it works in Connecticut, Pennsylvania, elsewhere, everywhere, really, for the most part. So absolutely as it turns out only 3% of decisions in those cases, in those states, are challenged in court. So something seems to be working well there, they seem be making decisions that most people tend to agree with, but certainly Kristin, that's a great question.
Kristin Ellis: Follow up to my follow up, and then I will let other people have opportunities. So would it be the agency suing OGIS over the decision or would it be the agency suing the requester?
David Cuillier: Boy, you're just nailing the questions that are so important and need to be answered. And once we work through for months on, that again is a question to be figured out. Certainly we don't want to set up a system where agencies turn around and sue the requester. And the requester, all of a sudden has to hire an attorney to defend himself or herself in court. That's not a good process at all and it would chill requesters, certainly. So we don't want that.
And then what do they sue OGIS? OGIS doesn't want that. So, we have to figure that out and we have to look more closely at how that's playing out in the states and all the other nations that do this. But I think from what I hear, that’s a nut that can be cracked, that we could come up with something to make that work. Good questions. I think you hit the biggies. Maybe we've settled. We've dispensed with those and we can just approve everything now.
Matt Schwarz: And this is Matt Schwarz with EPA.
David Cuillier: More question. Hi, Matt.
Matt Schwarz: Hi. How are you, David? First of all, thanks so much for all the research that's gone into this. It's just monumental amount of work that's been done and thanks to Kristin for her questions. She took care of most of my comments. So thanks for that. But I did have some concerns with this first recommendation. I do think that OGIS would have to exponentially expand in order to handle this across the government. I think honestly it would delay decisions for requesters as well, because there's the increased burden on agencies having to coordinate with OGIS, the FOIA folks that would cut into their time handling other requests. And then, I don't know how OGIS would handle this within the 20 day timeframe. So does that mean you would have to amend the FOIA [to] expand the 20 day timeframe? So I think there are a lot of questions here that could possibly be flushed out with recommendation six. So I'd be interested to see what those studies come back with before voting on this, to be honest.
David Cuillier: Thank you, Matt. I totally agree with you. That's why that number six there, by the way, that was added most recently with a suggestion from an agency. So thanks that agency input was important.
James Stoker: This is James Stoker. I had a couple of comments. First, just on this notion that OGIS will need to be expanded, absolutely. It would actually be dangerous to assign some of these capabilities to OGIS without expanding it greatly. I do think we have to keep in mind the fact that some of this stuff is already being done. So for instance, when cases are taken to court, we are actually bringing other people into this situation and incurring costs as well. So there is already massive amounts of funds being spent on reviewing these cases anyways, right? And transferring some of that to OGIS may actually make it a little bit cheaper because it might for instance [be] possible for some employees who are not lawyers to do that, right? Or not outside counsel, right? So the money is being spent reviewing these decisions no matter what.
I'm not convinced that expanding OGIS would be wasteful in any way. I also wanted to note that I was happy to see in the written report, a reference to international examples to the OAS’s model law and access to public information. For instance, I think there are other international examples that could be useful as well. Switzerland for instance, has an arbitration procedure, which is very, very interesting. We looked at it a little bit last year in the time volume, sorry, excuse me, last term in the time volume subcommittee.
So conducting these reports, it might be good. There's a feasibility study conducted, it might be good. Not only to look at what is happening on a state level, but what's happening internationally as well. Thanks very much.
David Cuillier: Thank you, James. You’re spot on. To your first comment, I think you nailed really the beauty of this idea. The core concept here is right now, the only recourse really to requesters, to file suit in courts. And so we've seen backlogs increasing litigation. We see a lot of requesters just walk away because they can't afford an attorney. And it's an expensive process. And we talked to people in the district. The district at Columbia, a circuit. And they said, wow, most of our cases really don't need to be here. They could be handled quicker, cheaper with, they don't need a federal judge to take care of it. And that's what they found in Ohio when they set up a system. So they're diverting the quick hit disputes away from the courts and getting them settled quickly. In Pennsylvania, most of the disputes are settled within 30 days and quickly with cheaper appeals officers who are skilled in public records law, but they're a lot cheaper than a judge and our court system.
So really perhaps that's what this system is about. It's faster turn it around, getting rid of a lot of that stuff and is cheaper for the taxpayer, cheaper for the agencies. Federal agencies spend 43 million a year defending themselves in court. That we shouldn't be relying on that as the sole remedy other than mediation that's still allowed now. Anyway, I just wanted to mention some of that because I think you've really hit on why this is important.
Kel McClanahan: This is Kel. One of the things that I can to bring to this discussion is, and someone mentioned it in the chat, but I can expound on that. A while back the DC circuit had a mandatory mediation policy. It was a pilot program. And they said that for all FOIA cases and all employment cases, but we won't talk about that. For all FOIA cases that got appealed to the circuit you had to go to mediation, you had to have at least one meeting. And it was a good idea in theory, that did not at all account for the fact that there was literally no incentive for the DOJ attorney or the agency to do anything because they'd already won the case. And so my personal experience, my experience of other lawyers and pro se people who went through this were that the mediations were basically waste, a waste of time, because the agency would go into them and they'd send the DOJ lawyer to the meeting, and then they would sit there and they would ask how will you compromise? And the lawyer would say we won't. And then that would be the end of the mediation. And, it got so bad that at one point an agency withdrew from mediation rather than answer the mediator's questions. And so they were able to do this because there was no cost to it. There was no ability to do anything, to force them to stay in the mediation or to have a binding decision. And so if you want there to be an ADR and alternative dispute resolution forum for FOIA at OGIS, ADR to function really needs both mediation and arbitration. And if you only have one, then it really doesn't accomplish that much, except for the very low hanging fruit.
David Cuillier: Thank you, Kel. All right. Any other questions, comments. We have seven recommendations. I certainly want to hear folks, I'm taking notes. Other thoughts?
Jason Gart: Jason Gart, History Associates. David we spoke about this yesterday. Well, first of all, I agree with everybody else that this is just very thoughtful and very well laid out. I differ with Kel, I think that the example is really the armed services board of contract appeals that's been around for 50 years. It's an ADR forum. It issues binding and non-binding decisions. It's neutral, it's independent, and it's the place that defense contractors and the government, that get into conflict, come to mediate, and they have accelerated processing for small claims, you don't have to represent yourself, you don't need an attorney, you can go there. I think that's what's lacking and it takes a huge amount of things out of the legal system and gets it cleared prior to that. It's something that's been very successful in the federal government, it's something that can be tweaked and used as a model for this. Again, just excellent work David, and your colleagues.
David Cuillier: Well, thanks Jason. Based on your comment, I added to page 16 a bullet point that part of this study needs to investigate other potential models too, all within the federal government existing. The copyright small claims court that's been created, there's a variety of these things that are already out there, and maybe that would be better, maybe making OGIS like one of those or creating a whole new agency, a whole new entity. Again, I don't think these recommendations as worded, binding Congress to do exactly as worded, maybe a study would say, "Well, that was great” but maybe we need to create this other thing instead, that seems to make more sense. But the main point of the recommendation was to create some entity that has binding authority, that diverts stuff out from the courts, and it could be what you brought up. Thanks, Jason. Any other thoughts?
Allyson Deitrick: Dave this is Allyson from commerce. Would this mediation, would it be a required step? Is it something that the requester could opt into if they want, how do you foresee that?
David Cuillier: Well, the way the report's frame now is OGIS would have two divisions. One would be mediation and the other would be adjudication, and that's how a lot of these other folks set it up. Maybe someone wants to go to mediation and that's fine and it gets settled that way. In Ohio, it starts that way, but if that doesn't resolve it and a lot of times that happens. So then, OGIS would have the ability to go straight to adjudication or perhaps the requester would want to go straight to adjudication. So again, that's one of those details that probably needs to be flashed out a little bit more, and there are different systems to set that up. But that's a good question. How those could work either or. There's some agencies where you have to pick as a requester, you have to pick mediation or you have to pick adjudication, or you have to pick litigation. Most of them are a little more fluid, we'd have to look at those closely.
Allyson Deitrick: Thanks.
David Cuillier: Thank you. Any other questions before, perhaps a motion on number one to get a sense of the mood of room. Any motion?
Jason Gart: So, move Jason Gart.
David Cuillier: Thank you, Jason. Second.
Kel McClanahan: This is Kel, I’ll second
David Cuillier: Thanks Kel for the second. All right. I don't know, Alina am I usrupring your power.
Alina Semo: That's okay. We'll go ahead and take a voice vote on number one. All those in favor, please say aye.
David Cuillier: Aye.
Jason Gart: Aye.
Patricia Weth: Aye.
Alina Semo: Okay. All those opposed? Please say nay. [crosstalk 02:40:03] Okay. We're going to have to break that down. I heard Kristin Ellis nay, Allyson, did you say nay?
Allyson Deitrick: Nay.
Alina Semo: Allyson Dietrich said nay. Did I hear another nay?
Matt Schwarz: Yeah. Matt Schwartz. EPA.
Alina Semo: I'm sorry.
Matt Schwarz: Matt Schwartz. EPA.
Alina Semo: Matt Schwartz. EPA was a nay. Okay. Patricia.
Patricia Weth: I was a yay.
Alina Semo: Okay. Just for wanted to check. Martha, did you get all of that? And I'm now going to ask anyone abstaining. "Oh, I'm sorry." Allan, please go ahead.
Allan Blutstein: I'm abstaining.
Alina Semo: You're abstaining. Allan is abstaining. Bobby. I'm assuming you're abstaining?
Bobby Talebian: I'm abstaining.
Alina Semo: Okay. Alina is also abstaining. Martha, how does that pass? How many votes do we have for aye?
Martha Murphy: I'm counting them right now. 12 yeses.
Alina Semo: All right.
Martha Murphy: Three nos, some abstains and some absences.
Alina Semo: Okay. So, is that give us a general majority?
Martha Murphy: Yes. Because we have 20-
Alina Semo: Well, we have 18- [crosstalk 02:41:28].
Martha Murphy: [inaudible 02:41:28] present and 12.
Alina Semo: ... 18 people are present.
Martha Murphy: Correct.
Alina Semo: 12 out of 18. So I believe this recommendation passes Dave.
David Cuillier: Okay, thanks.
Alina Semo: Right. Moving on?
David Cuillier: Move on to number two. I guess they're numbered all one, but so that means they are all approved.
Martha Murphy: I'm sorry, just on this slide. I apologize for that.
David Cuillier: No, no, no, I'm joking. It's all cool.
Martha Murphy: It was a PowerPoint problem.
David Cuillier: So number two, Congress gives the authority to review records in camera. So this actually came up in 2018 in proposed legislation, but it didn't get through Congress. And what we see around the world and in the states is this is really an important authority that should be given regardless of binding decisions or mediation. Now not everybody agrees with this, I think there's some folks who believe that, mediation requires some pure neutrality or some way and I think there's a lot of folks who talk about that, but we think that if there's a dispute where OGIS just feels really needs to look at the records to make a good decision and particularly if we're talking binding decisions, then they really need to be able to see the records. So, and there are several people in OGIS who have security clearance, that's how it worked in Canada. And so that's why we're recommending number two. Thoughts, questions. By the way, I suspect we'll have some concerns from the national security community on this. Although I haven't talked to them directly.
Kel McClanahan: This is Kel. I can say in support of, if that the idea that mediators have to be pure innocent souls is laughable, this is what happens all the time when you have a mediation or let's say you go to a magistrate judge, which is, if we're doing the binding decisions, we're sort of following the magistrate judge model. Then I've been to many mediations with magistrate judges who were not issuing binding decisions who were just serving as a settlement conference, who would go one or the other, they go to the satellite diplomacy back and forth between the parties. And the judge would come to me and say, "You're completely wrong here." This will not, if you try to push this in court you will lose. This is not a winning argument and so you should not in my opinion, stake your entire settlement on getting it because if they back off, you'll lose and they'll do the same thing to the other side.
So mediators need to be able to tell an agency or a requester that you're being dumb, this is not something that you're right about. This is a very weak argument or this is a very strong argument, which they can't do unless they see the records.
David Cuillier: Thank you, Kel. This is Dave. And a bunch of experts I talked to on this, a lot of the folks cited to the sources. They agree with what you're saying, Kel, sorry, go ahead. I interrupted.
Kristin Ellis: This is Kristen from the FBI and at the risk of overstating my scope of representation here as a member of the intelligence community, I can confirm Dave that in fact, the national security groups will have concerns about OGIS having access to in-camera review classified, including very highly classified records. Also, just from a law enforcement standpoint with law enforcement records that creates additional risk as well in our ability to do our jobs. So, I think that this is going to be a problem for folks that work in this area.
David Cuillier: I see your point. Other thoughts, questions on that.
Matt Schwarz: A follow up to that. This is Matt at EPA. Would it possible to reword this, to give OGIS authority to review records in camera, if there were a dispute, for example, under Exemptions 5, all privileges under Exemption 5, but not law enforcement records under 7 or national security records under 1. Have we considered that?
David Cuillier: We actually didn't talk about that, but maybe that's something that at, what do the other working group members think on that? There might be some compromise, thoughts. Anybody have thoughts on that?
Patricia Weth: Hi, David. It's Patricia Weth, from EPA. I like Matt's suggestion a lot, I'm wondering that, do you mind saying that again? I was taking notes.
Matt Schwarz: Sure. I thought if there are concerns from the intelligence community and from the law enforcement community, perhaps OGIS could sort of partition out, that OGIS has authority to review records that are withheld under specific exemptions, like Exemption 3 certain statutes, certainly exemption 5, exemption 6.
David Cuillier: Personally, my feeling is no. I think if anyone needs oversight the most in our country, it's the intelligence community, no offense to my comrades here. And it is even more important that someone has the ability to take a look and make sure that they're doing the right thing, but I'm just one vote and I'm open to other thoughts and/or amendments to this recommendation.
Patricia Weth: This is Patricia Weth from EPA, again. Matt, there was a portion in your suggested language where you said, I think you said, "excluding records, law enforcement and intelligence records." Was that? Am I capturing correctly?
Matt Schwarz: Yeah, that's right. So basically exemption 1, exemption 7. If there has to be a compromise, maybe we can do it on the basis of actual exemptions under which agencies are withholding records. I definitely understand David's concern, which I agree with, but I'm just wondering if this is a fair compromise.
Kel McClanahan: The reason that I would, besides the obvious that this is my bread and butter, the reason I would push back against this is that giving OGIS this authority, especially if you have the binding decision ability or even mediation would actually encourage people to go to OGIS over court. Because right now there is... while judges have the right to in camera review of any documents, they don't exercise it very often. And in fact, if you even ask for in camera review, the DOJ lawyer will throw 10 pages of briefs at you, about why in camera review is such a waste of time because, "Oh my God, we could not possibly do in camera review because look at this declaration." And so if a requester, if dealing with and it's even worse into national security case and law enforcement cases, if a requester says, “Okay, I can go to court and fight against a declaration where the words have been expressly chosen to defeat me or I can go to OGIS, where they will more likely than not look at the actual record.”
Well, I'll go to OGIS first, because then if OGIS tells me, "Yeah, you're not going to win this fight." Then maybe they don't go to court, and as to forget out from which is bad actors, which is good actors, I don't want to say that the intelligence community needs more oversight than anybody else like David said, but I will say that the cases where the information disparity and court is the greatest is B1, B7. And that is where the agencies are given a tremendous amount of deference by the court and something like OGIS is needed because absent OGIS, you're at the whim of a judge who feels like going against the DOJ line.
Alina Semo: I'm going to have to step in. Thanks Kel for that comment, I really appreciate it. Dave, I'm going to have to step in because I've polled folks and I've gotten some feedback, some folks have a hard stop at 1:00 PM today. I have a few folks who told me they can stay a little bit over, but we're definitely going to have to pick this up again in May. That's why I'm very glad we had this meeting today in April because I had a feeling we're going to still have to carry some things over to May. So we will pick up again with all of these proposals in May, if that's okay with everyone, Kel also wants to present something, he will present in May. But I want to be able to get in some public comments because I think that's important, and we usually reserve that right at the end, for those of you who can stay or a little past 1 o'clock to hear public comments, I would appreciate that. So with that, Michelle, please go ahead and give the instruction or anyone who wants to call in.
Michelle Ridley: Absolutely. So ladies and gentlemen, as we move to the public comments session, please limit your comments to three minutes. Once your three minutes expires, we will mute your line and move on to the next commenter. So once again, if you could limit your comments for three minutes, that would be great. Thank you.
Alina Semo: While we're waiting for people to queue up on the telephone line, I'm going to ask Jesse Hartman from OGIS. I understand there are a couple of comments or questions. It should be read out loud, Jesse, over to you.
Jessica Hartman: Hi. Yes. We have three comments for the committee to consider. One, "Please consider including a placeholder for next year's committee to review whether OGIS and/or DOJ, OIP should be able to make referrals to the office special counsel to deter egregious behavior." Number two, "Priority is adequate funding and authority for DOJ, OIP and their compliance oversight mission. Bobby is drowning, Bobby is really been drowning. Please consider including a recommendation to study OIP funding and authority." And the third we have is, "Will the committee consider recommendation, requiring agencies to amend past reports and raw data with narrative as to how error or false reporting has occurred." And that's all that we have in the comments so far.
Alina Semo: Thanks Jesse. Anyone on the committee want to offer any responses to those or not? You don't have to.
Bobby Talebian: I can quickly, I can quickly address the last comment we take very seriously, the accuracy, the reports, and often from year to year, we do see as you compare one year's reports, another some data discrepancy, we make sure things use footnote to explain those where we think it's most appropriate.
Alina Semo: Good. Thank you, Michelle. Do we have anyone on the telephone?
Michelle Ridley: Let's see. I do not see anybody in the regular audio queue. I think that someone was trying to get in on the WebEx audio. If you are joined, be a WebEx audio, ladies and gentlemen, be sure to click on the raise hand icon, that's above your chat box that will enter you into the queue. I do see, I believe Robert Hammond wanted to make a comment, so let's see how Robert is joined. "Oh, I see. He is on the regular audio." All right, Robert, your line is unmuted. You can go ahead.
Robert Hammond: This is Bob Hammond. Can everybody hear me?
Alina Semo: Yes.
Robert Hammond: Hello?
Alina Semo: Yes, we can hear you Mr. Hammond.
Robert Hammond: Hey, listen Bobby. The question I'm asking, you've got my presentation DOD massive false reporting, my correspondence to the secretary of defense, all that stuff. DOD has still not submitted its raw data for 2016, 2017, the DHA data has no case numbers to it and every single year, probably because I complain, they correct their past reports and put a footnote in and say the following agencies corrected these portions of the report. I think last year there were like seven areas where DOD did that. What I'm saying is this nonsense will go on forever. What I'm asking is they amend the prior report, whenever they say that, include the raw data, goes with that otherwise some requests will never get reported at all and explain what the problem was. Don't do it as a footnote, amend the report, post them both.
I didn't mean to get energized about that, but one of the few safeguards for requesters is the reports. I saw the recommendation to produce the contemporaneous logs, I like that, but that's what I'm asking for Bobby. Listen, I complain a lot, I put a lot of good comments about defense logistics agency. I think they are one of the premier agencies in the world when it comes to artificial intelligence records management, the whole works, those are in the chat line on YouTube, I hope they will agree to join your committee next year. They put RM and FOIA under their information operations area and they use information as a war fighter naval, so they're really good at it and I hope that they will consider investing the time and they have got an absolutely awesome staff.
I put some comments into the chat on YouTube and also in this committee, it's a lot of discussion about being able to compel the release of records and things like that. And again, the FOIA logs in May 27th and September, 2015, 2014, appeals of a B5 denial of my April 1st, 2014 FOIA request to Navy view med, seeking Walter Reed's FY2013 annual FOIA report, raw data and forwarding correspondence. I saved this FOIA request and my appeal have been bearing on the accuracy of FOIA reporting in the annual FOIA reports to the United States Congress and potentially integrity of FOIA request processes. After eight years and six years of litigation, I still do not have those reports and the raw data to share with you regarding whether Walker Reed, maybe DOD were cooking the books. What I have is a materially altered 16 page Walter Reed FOIA processing log, that does not comport with the 17 page log cited in DODs Vaughn index, which Walker Reed admits to altering during litigation. Copies of log-
Michelle Ridley: Mr. Hammond, your time has expired sir.
Robert Hammond: Anyway, there are a lot of great people in DOD and I hope that they step forward, DOD is awesome. They just need to step forward. Thank you.
Alina Semo: Mr. Hammond, thank you. And I know you've submitted written comments. Again, I've asked the committee members to take a look at those and they're also posted on our website. So thank you again. Do we have any other callers in the queue, Michelle?
Michelle Ridley: I'll do a quick double check. I don't see anybody in the WebEx audio queue nor do I see anyone in the regular audio queue, Alina.
Alina Semo: And then Jesse, do we have any other questions or comments either on YouTube or on the WebEx side?
Jessica Hartman: Nope, that is everything.
Alina Semo: Okay. Sorry to rush through all of this. I'm just very cognizant of folks’ hard stop times. I want to thank all the committee members for all their hard work. Thanks to Martha for being a great alternate DFO today. And thanks to the OGIS staff who've been supporting us today. We will see each other again, virtually at our next meeting, Thursday, May 5th at 10:00 AM Eastern time. Does anyone have any questions or concerns before we stand adjourned? Not hearing anything. Thanks again, everyone stay healthy and well and safe and we will see each other again on May 5th. We're adjourned. Thanks.
Michelle Ridley: That concludes our conference. Thank you for using event services. You may now disconnect.