Office of Government Information Services (OGIS)

Public Comments Submitted by Jason R. Baron on Sep 13, 2020

From: Jason R. Baron <jrbaron@umd.edu>
Date: Sun, Sep 13, 2020 at 11:10 PM
Subject: Comments on FOIA Advisory Committee 9/10/20 -- Revised (please substitute this text)
To: <alina.semo@nara.gov>, <kirsten.mitchell@nara.gov>

Alina, Kirsten:
 
It was a privilege to serve as a member of the 2018-2020 FOIA Advisory Committee.  I have now had the chance to review the videofeed of the first meeting of the 2020-2022 Committee, and have the following comments.  I have no objection to your sharing what I have to say with the entire Committee and/or otherwise placing these comments in the record.
 
  1. As Ms. Patricia Weth brought up during the meeting, there will be a significant missed opportunity should the current Committee fail to look seriously into how recommendations from the prior terms of the Committee are being implemented. In my opinion, the best way to do so, and one which would greatly help the mission of OGIS, would still be to form a separate committee or working group on implementation of those recommendations. Such a group would be able to devote their entire time to focusing on evaluating how those recommendations can be implemented, discussing the prospects for implementation with agencies, and essentially taking on the work of evangelists (the term "marketers" was alluded to) in support of adoption of those recommendations.  In particular, the 22 recommendations made by the 2018-2020 Committee were detailed and far-reaching.  They need to be considered seriously if progress on them is to be made over the next two years and beyond.   Delegating to only one or two people on each of the currently proposed subcommittees the task of reviewing only selected recommendations poses a substantial risk that the Committee, though well intentioned, will fail to move the ball much down the field.

    Regardless of how the "implementation review" function is carried out, one way of proceeding would be for OGIS and OIP to review those recommendations directed to them to take the lead in executing on, as well as for OGIS to coordinate with the Archivist on recommendations for NARA.  OGIS and OIP might also wish to take the lead on those recommendations directed towards CIGIE as well as the Chief FOIA Officers Council.  The remaining recommendations would be for Committee members to take the lead on, in whatever ways they see fit.  Any gaps in review can be assessed by OGIS and OIP, including ensuring that "mid-term" progress reports are presented in writing.

    I am well aware that it is always easier to make proposals than ensure their execution.  For this reason, I urge the Committee to take a very hard look at the work of the past FOIA committees, not only for implementation purposes, but to truly understand how certain issues already have been considered (e.g., search technology in both the Second and Third FOIA Committee final reports).  As the inscription outside the Archives says, "The Past Is Prologue."   It should not however be treated as a dead letter, to be ignored or shortchanged. 
     
  2. Considerable discussion was devoted at the meeting to whether the Committee should concern itself with the "litigation" aspects of the FOIA.   Having served with Alina in the Federal Programs Branch in DOJ's Civil Division, as well as having held the same job title as Alina at NARA (Director of Litigation), I very much wish to second her comments that DOJ attorneys in the civil service are absolutely committed to doing the right thing by requestors, in pushing agencies to disclose more information than they had at the administrative stages of the FOIA request, and to facilitate fair and reasonable settlements.  I also wish to point out that, except in cases of independent litigating authority, DOJ controls the conduct of litigation including having final authority over agency litigation positions.  See 28 USC 516.  There is only so much an agency and its attorneys can do to alter or oppose the course and conduct of litigation.

    Improving the FOIA process in terms of the adequacy of searches, the timeliness of responses, and the over-application of exemptions (such as (b)(5)) would, of course, be of enormous help in reducing litigation and its drain on agency resources. Some of these topics were addressed in the last Committee's final report, although not specifically tied to litigation. Committee members should take a look at the relevant recommendations on these subjects.

    There is, however, value in looking into the types of concerns that the public interest advocates on the present Committee (as well as public commenters) are raising with respect to the enormous challenges they have in moving the needle and obtaining successful outcomes in litigation. For this reason, I recommend that during this term the Committee hear specifically from the public interest community as invited speakers at future public meetings.  This would provide them with sufficient time at a public forum to express their views as to the biggest challenges they face as well as their day to day frustrations in dealing with agency staff.  Everyone is familiar with the leading groups in DC, including CREW, American Oversight, Judicial Watch, the National Security Archive, and others that routinely file FOIA requests.  While it may be uncomfortable to hear that in the view of some public advocates "FOIA is broken," it nevertheless would be extremely useful to understand all the reasons why this statement is continually made, and to consider how specific recommendations from the greater public advocate community should be taken to heart.   
     
  3. The issue of legislation to expand FOIA to include the Judicial and Legislative branches came up late in the last term of the Committee, although the Committee ran out of time to fully vet the issue for inclusion in the final report as a full-fledged recommendation.  I would urge current Committee members to keep in mind during their deliberations the definition of an agency in the Federal Records Act. See 44 U.S.C. 2901(14). In my view, it makes eminent good sense to consider whether the definition of an "agency" under FOIA should be codified in the FOIA statute in a way that is consistent with how an "agency" subject to the Federal Records Act already is defined. While such a proposal might not work for the lower federal courts, there are any number of Legislative branch components that create federal records within the scope of the FRA that arguably might also have their records plausibly made subject to FOIA.  Indeed, the Library of Congress under its own regulations already conforms its access policies to the "spirit" of FOIA.  See 36 CFR 703.1.  That would at least be a start.
     
  4. There was also discussion during the meeting as to what the right number of subcommittees (and sub-sub committees) should be. And there was a brief colloquy on a public commenter's question about whether the committee will be addressing aspects of NARA's implementation of FERMI on an earlier basis than waiting til a final report in 2022.  My recommendation would be that the current committee structure be made subject to time limits within the 2 year overall term of the Committee.  For example, one or more of the presently proposed subcommittees could commit to either wrapping up their work at the 1 year mark, or issuing one or more interim draft reports for early consideration by the Committee as a whole.  In that fashion, it may be possible to address newly arising issues in 2021, or giving a greater commitment to any issues that may have been neglected during the first year, should it be perceived necessary to do so.
     
  5. Mr. Housbrook, a public commenter, expressed strong views about the failure of agencies to follow the E-FOIA Amendments of 1996.   Although I believe agencies have in general given requestors what they have desired with respect to obtaining records in electronic rather than paper form, the point made with respect to PDF files (especially PDF files that have not been subject to OCR) is very well taken.  I urge the Committee to take a hard look at the recommendation made in the last Committee's final report regarding the need to respond to requests in machine-readable formats.   
Beyond that, I recommend that OIP in conjunction with OGIS, initiate a dialogue with DOJ's Office of Legal Counsel and with the Office of the Solicitor General, regarding the continued propriety of producing records in PDF format only.   To my knowledge, I believe the Solicitor General's office has taken the position that producing textual records in PDF format adequately suffices to meet the E-FOIA Amendment of 1996 requirements, and that requests for other electronic formats can effectively be ignored as unreasonable.  I am in complete agreement with the public commenter that this is a crabbed, if not wholly mistaken view of the law.   If this remains the present view of DOJ, I support the earlier point Mr. McClanahan was making during the meeting that this Committee could propose a legislative fix here, aimed at ensuring that agencies make reasonable efforts to produce agency records in native and/or machine readable formats when requested, and that a defense of agency efforts in their simply producing PDFs is not a valid interpretation of the 1996 E-FOIA.  This is an especially important point in light of how agencies will be responding to FOIA requests pertaining to the tens or hundreds of millions of e-mail records currently being managed in Capstone repositories (which are not stored in PDF formats but are almost universally converted to PDFs prior to release).
 
I applaud the work of OGIS, especially in overseeing along with OIP the considerable task posed of carrying out the implementation of all past FOIA Advisory Committee recommendations.  I look forward to learning more about the important work that everyone on the current Committee is engaged in.  If I can be of any assistance on questions members may have as to the recommendations of the prior Committee, please do not hesitate to contact me.    
 
Jason R. Baron 
Professor of the Practice 
College of Information Studies (iSchool)
University of Maryland, College Park 
jrbaron@umd.edu
301-204-2787 cell
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