FOIA Advisory Committee Meeting (Virtual Event)
Thursday, December 1, 2022
10:00 a.m. (ET)
Michelle [producer]: Ladies and gentlemen, welcome and thank you for joining today's FOIA Advisory Committee meeting. Before we begin, please ensure that you've opened the Webex participant and chat panels by using the associated icons located at the bottom of your screen. Please note, all audio connections are currently muted, and this conference is being recorded. If you require technical assistance, please send a chat to the event producer. With that, I will turn the meeting over to Debra Steidel Wall, Acting Archivist of the United States. Debra, please go ahead.
Debra Steidel Wall: Thank you so much Michelle and good morning everybody. Welcome to the third meeting of the fifth term of the Freedom of Information Act Advisory Committee. This month marks 15 years since Congress passed the Open Government Act of 2007, which created the Office of Government Information Services, OGIS, as the FOIA Ombudsman and located it here at the National Archives. Congress made a number of other important changes with the 2007 amendments, including introducing dispute resolution into FOIA administration. Today, 15 years after Congress envisioned a more collaborative FOIA process, dispute resolution is baked into the FOIA administrative process. Agency FOIA Public Liaisons are available to assist requesters at agencies throughout the federal government, including here at the National Archives where we have FOIA Public Liaisons assigned to all of our FOIA programs. OGIS and FOIA Public Liaisons across the government are very much partners in resolving and preventing disputes.
Despite a landscape that is less adversarial and more collaborative than it was a decade ago, challenges do remain and I'm pleased that this committee is collaborating to address those challenges. The committee's charter states that it fosters dialogue between the federal government and the requester community. That dialogue happens every time the committee meets, whether it's these quarterly public meetings or the subcommittee meetings that occur in between. I very much appreciate the different experiences and perspectives that the members of this committee bring to the table, creating the very dialogue referenced in the charter.
I understand that since September, the committee's three subcommittees have begun reviewing the committee's 51 prior recommendations to search for opportunities for additional exploration, and I really commend the committee for that and remind members of the charter's mandate that you all may recommend legislative action, policy changes or executive action among other matters while keeping in mind that the committee is advisory only. So the National Archives, while a champion on FOIA matters, we don't oversee other agency FOIA programs. However, since records management is at the core of our mission and of course records management and FOIA go hand in hand, NARA is pleased to take her leadership role in this area. So with that, I'm happy to turn the meeting over to the committee chairperson OGIS Director Alina Semo.
Alina Semo: Thank you so much, Debra. Good morning and welcome everyone. As the director of the Office of Government Information Services, OGIS and this committee's chairperson, it is my pleasure to also welcome all of you to the third meeting of the fifth term of the FOIA Advisory Committee. 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. Members, names and biographies were posted on our website. I am advised that committee member Benjamin Tingo is unable to join us today, but we have a full house and I'm very happy to welcome all of our committee members and also we'll welcome very shortly our panel members for today. I have a few housekeeping matters to go over and then we're going to get right into the meeting. First, Kirsten, I'm just going to check in with you. Do we have a quorum based on your visual roll call?
Kirsten Mitchell: We do indeed have a quorum.
Alina Semo: Okay, terrific. I want to remind everyone that meeting materials are available on the committee's webpage. Click on the link for the 2022 through 2024 FOIA Advisory Committee on the OGIS website. We will upload a transcript and minutes of this meeting as soon as they are ready in accordance with the Federal Advisory Committee Act, FACA. Kirsten and I have certified the minutes from the September 8th and September 14th meetings, which probably seems like a long time ago, but it was just not that long ago and they are posted now on the OGIS website in accordance with FACA. During today's meeting, I will do my best to keep an eye out for any committee member who is raising their hand when they have a question or comment. As I mentioned earlier, there's lots of tiles I've got to keep an eye out for today.
If I miss you, please also feel free to use the all panelists option from the dropdown menu in the chat function. If you would like to chime in with either a question or a comment, ideally chat to me or Kirsten directly. That way we can really hone in and recognize you. Also, I just want to remind everyone again in order to comply with both the spirit and intent of the Federal Advisory Committee Act, committee members should keep any communications in the chat function to only housekeeping and procedural matters. No substantive comment should be made in the chat function as they will not be recorded in the transcript of the meeting. If a committee member needs to take a break at any time, please do not disconnect from the web event. Instead, mute your microphone by using the microphone icon and turn off your camera by using the camera icon.
Please send a quick chat to me and Kirsten to let us know if you'll be gone for more than a few minutes. Join us again as soon as you can. We do have a packed agenda today. We do plan to take a short break at approximately 11:30 AM although I reserve the right to shift that time depending on how our agenda is flowing. And a reminder to all committee members, please identify yourself by name and affiliation each time you speak, it definitely helps us with the transcript down the road and the minutes, both of which are required by FACA. For those of you watching on YouTube, that chat is not on, but we do want to hear from you. If you have questions and comments related to the agenda of today's meeting, please send them to email@example.com. If you have questions on any other topic for the National Archives, you may direct them to firstname.lastname@example.org.
We have received and posted several written comments in advance of today's meeting. We do review all public comments and post them as soon as we are able and if they comply with our public comments posting policy. We have also alerted committee members and have invited them to view public comments on our website. If anyone wishes to submit any additional written public comments regarding the committee's work, you may do so by again emailing us at email@example.com and we will consider posting them to the OGIS website. In addition to the written public comments we have already posted, we will be inviting oral public comments at the end of today's meeting. As we noted in our November 7th, 2022, Federal Register notice announcing this meeting, public comments will be limited to three minutes per individual. Okay, any questions on housekeeping?
All right, I'm just looking. I don't see anyone nodding or waving at me. Now, onto our agenda. As we've already advertised, we are very lucky today to be joined by an expert panel who is going to be talking to us about complex FOIA requests and litigation. And I predict it's going to be a very lively discussion and I expect that all of our committee members are going to be engaged and asking lots of questions. After a short break, we will hear updates from our committee's three subcommittees, Implementation, Modernization, and Resources. And we will close the meeting with a short public comment period. So again, I'm going to pause any questions or comments?
Okay. Michelle, next slide please. And I forgot to tell you that earlier, so I apologize. Okay. So I am thrilled to have three experts who are well versed in complex FOIA requests and in litigation, Anne Weismann, Katie Townsend, and Ryan Mulvey, each of whom I will just briefly introduce. And again, I'm just thrilled to have all three of you joining us today. Anne Weismann is a public interest lawyer who most recently served as the Chief FOIA Counsel for Citizens for Responsibility and Ethics in Washington, CREW. She continues to serve as outside counsel and some of the group's litigation. She previously served as the Executive Director and Chief Counsel of CREW and as Executive Director of the nonprofit Campaign for Accountability. Before joining the nonprofit world, she served as Deputy Chief of the Enforcement Bureau for the Federal Communications Commission, as well as an Assistant Branch Director at the Department of Justice (DOJ) where she oversaw the department's government information litigation and was also my prior supervisor as well as Jason Baron’s. Anne is also a member of the very first term of the FOIA Advisory Committee or inaugural committee term 2014 to 2016 and served on two subcommittees, the Fees Subcommittee and the Oversight and Accountability Subcommittee.
Next I want to introduce Katie Townsend. She is the Deputy Executive Director and Legal Director of the Reporters Committee for Freedom of the Press. She oversees the Reporters Committee legal services portfolio, including its litigation, vetting and pre-publication review and amicus practices and supervises the legal work of the Reporters Committee team of staff attorneys and legal fellows. She regularly represents news organizations and journalists including documentary filmmakers, and public records, court access and legal defense matters. And prior to joining the Reporters Committee in 2014, she was a litigation associate in the Los Angeles office of Gibson Dunn & Crutcher, where she specialized in media and entertainment litigation.
And last but not least, I would like to introduce Ryan Mulvey, who is Policy Counsel at Americans for Prosperity Foundation (APF). He's been in that position since December of 2019. He previously worked as counsel at Cause of Action Institute and continues to volunteer in that position. Ryan's practice touches on various aspects of government oversight, civic engagement, and administrative and constitutional law. Ryan regularly lectures on federal government transparency matters, litigates cases under the FOIA and Administrative Procedure Act (APA), and provides amicus support at the district court, appellate court, and supreme court levels on various matters. Ryan is also president of the American Society of Access Professionals (ASAP) and a contributor to FOIA Advisor.
So with that, lots of great instructions. You can tell we have a great panel and I'm very happy to welcome all of you again. And the way we've worked it out is that I'm going to ask each one of you to just provide a brief introduction and some introductory remarks, and we would like to leave the bulk of our session available to our committee members to ask lots of questions. But I want to just kick it off by asking all three of you, all three of you have filed complex FOIA requests with a variety of federal agencies and have litigated complex FOIA cases. So I would like each one of you to please describe what obstacles you may have faced at the administrative stage and talk a little bit about your successes and failures in litigation. So with that, I'm actually going to kick it off by asking Anne to go first. I'm going in reverse alphabet order today.
Anne Weismann: Thank you Alina, and good morning. It's an honor to be asked to address such an esteemed group, many of you who I know as colleagues and former colleagues as well. As Alina mentioned, I've been dealing with FOIA for a good number of years. I've seen it from several perspectives and I've seen over the years, obviously a lot of administration changes and varying commitments to transparency in government. But there is one constant that I believe has run throughout and that is a critical underfunding of FOIA at agencies. And this has resulted in a critical lack of resources to deal with an ever growing number of FOIA requests that result in FOIA litigation. Now, I recognize that this problem writ large is probably beyond the scope of this committee, but it has had impacts that I do believe this committee should understand, appreciate, and consider addressing. From my perspective, these impacts result to a large extent from I think efforts by agencies because they don't have sufficient resources to reduce the number of FOIA requests that they have to process or deal with.
One of the issues that I've seen, I know this is probably very familiar to all of you, is the “still interested” letter, despite the fact that the Department of Justice has issued guidance on this stressing that it should be very sparingly used. It continues, at least in my experience, to be a practice that agencies resort to all too often. And it's particularly a problem for the kind of groups I represent, nonprofits, when it's an old request and we're given very little time to tell the agency whether or not we're still interested. And quite often the request originated from someone who's no longer at the organization. So it takes us some time to track it down and evaluate whether or not we're still interested. So that is one problem.
Agencies also, in my view, have conflated and overused both the unusual circumstances, safety valve and the FOIA, and also placing simple requests in the complex track. And again, I think the end result is that they result in a much longer delay for requesters. Unusual circumstances, as the name itself suggests, I think was intended to be a safety valve when it was in an unusual circumstance, but it has now become the norm. It's hard for me to think of any request I've filed over the last several years for which the agency has not invoked unusual circumstances. So it's the exception that truly has swallowed the rule. And with respect to simple versus complex, first of all, I think it's very unclear what guidance agencies are using in order to determine whether a request is simple or complex. It often appears to me that if they believe it meets the unusual circumstances, it necessarily means that it's a complex request. And again, the end result is it gets placed in a separate queue with a much longer wait period.
So I think these are concerns that need to be addressed. And I mean, I can give you some examples where there have been very straightforward requests that have taken years for an agency to process. For example, ODNI [Office of the Director of National Intelligence] took 13 years to produce use of force incidents, even though the data was readily accessible from a database and simply needed to be pulled out from it. And in a similar vein, Customs and Border Patrol, again took two years to produce data that simply had to be pulled from a database. Another overarching problem is really a lack of communication. Most agencies are good at sending an initial acknowledgement level letter, but after that it often is dead silent. Now, one of the organizations that I do work for, POGO, the Project On Government Oversight, is very diligent in following up on its FOIA requests, particularly when it's been given an estimated completion date.
And all too often, despite repeated requests for updates, they're met with complete silence. Now, these are the sorts of things that are factored in when we take a step back and say, "Do we need to litigate?" If we've heard nothing from an agency, despite many efforts on our part to find out the status, sometimes we conclude that the only way to make progress is to file a lawsuit.
Another concern I have is that agencies are claiming that requests do not reasonably describe the records that are being sought when in fact the problem really is that the agency may view it as a burdensome request with many sub parts that they simply don't want to deal with. And this is a real misuse. And I understand the temptation for an agency because if they deem a request is not reasonably describing, they treat it as an unperfected request and have no obligation to take any further steps.
Recently, I dealt with DHS (Department of Homeland Security) [and] they have a really remarkable regulation that gives them not only the unilateral discretion to determine that a request does not reasonably describe the records, but it also says that they don't even have to tell the requesters that they've made that determination. So this is in the area that I think has resulted in abuse, and all of these seem to be tools that agents are using to limit the number of requests they have to deal with. Now, on litigation, I'd like to just make a few remarks. I've been involved in litigation for many years and it really has changed in this key respect. For many years, what I litigated was the validity of an exemption that was claimed or the adequacy of a search. And now almost all of my cases are brought where there hasn't been a single document produced and I don't have a commitment from the agency as to when they will produce anything either.
And so, litigation now simply becomes more of a housekeeping thing. The courts in DC one of the first things they do after an agency has filed an answer, they issue an order that requires the parties, usually within 30 days, to file a status report that either sets out a briefing schedule or a production schedule. It's almost always the latter, because as I said, we've gotten nothing. And basically, what happens then is the court then babysits as the agency processes the documents and it referees any disputes we have on processing. And it's often years before we even get to the issue of exemptions and that delay really is tantamount to denial.
Let me also talk about what kind of thinking goes into the decision to sue, at least the organizations I work for, it's a very careful thought. We do not routinely sue on every FOIA request. It may seem like that to you, but that is most definitely not the case. And a lot of it is some of the things I've mentioned. If we have reached a point where we've gotten nothing from the agency, we can't even get a commitment from an agency as to when they will give us something, we reach a point where we unfortunately conclude that litigation is the only resort. This doesn't happen on the 21st day, it usually happens months and sometimes years after the request was filed.
I don't mean to suggest that litigation has never been successful, I have had some successes that I'm very proud of and I do think there are instances where as a result of a FOIA request, I have been able to provide the public with access to information that I think is very important in evaluating an administration's policies or actions. But it's very frustrating because it's so hard to get to the point where we are even talking about exemptions. I'd be happy to provide more specific examples, but I really do want to leave time for your questions. But I just want to leave you with this, and I'm sorry it isn't more optimistic, but my assessment based on the snags and problems I encounter at the administrative stage, and the fact that litigation is so rarely used now as a tool to actually litigate the legal merit, I think FOIA is broken.
I do believe there are legislative fixes that can help it, I think Ryan may be talking about those, if not, I'm certainly willing to. Unfortunately, as everyone knows, it's very hard to get legislation [out] of Congress right now, and I have not seen a single administration that has embraced statutory improvement to the FOIA. And I'm not optimistic that that can change. This is not to say I have no hope, but I think what we need is a fundamental reset. And I think when this committee looks at the issues of FOIA, it should be thinking beyond just kind of nibbling at the edges, and thinking about are there ways to fundamentally change the attitude and the approach. With that, I will stop and I look forward to all of your questions. Thank you.
Alina Semo: All right, great. Thank you Anne. Katie, over to you.
Katie Townsend: Great, thank you.
Alina Semo: [inaudible]
Katie Townsend: Thank you. And I'm so pleased to be here. Thanks for having me. As Alina indicated in her opening introduction, I work for the Reporters Committee for Freedom of the Press. And so we approach FOIA and public records work from the vantage point of journalists and news organizations. The Reporters Committee is itself a requester, it makes FOIA requests that are on issues and subject matter areas that are relevant to its mission, but it also, our lawyers, Reporters Committee lawyers, also represent individual journalists as well as news organizations and the Reporters Committee in litigation, in FOIA litigation. So I think I'd be remiss, and I think some of the things that I'll say will certainly piggyback on Anne's remarks, which I think is probably unsurprising to many. But one of the biggest issues I think we see, and one of the biggest problems we hear about from journalists and news organizations, I know this is going to be obvious, but I think I'd be remiss if I didn't mention it, is delay. The sort of general 20 business day deadline or the maximum 30 business day deadline for unusual circumstances.
Those deadlines, those statutory deadlines are routinely really systemically not complied with. And there's unfortunately, I think an accepted understanding at this point among agencies experienced FOIA requesters, requesters who are familiar with the process and courts as well once you're in litigation that those statutory deadlines aren't going to be complied with and are pretty much meaningless. That makes FOIA not really a useful tool for day to day deadline driven news reporting. And that's not to say that it can't be a powerful tool for journalism overall, but I think where we see it being used effectively, because of the delays, because of the time horizon on actually getting any records in response to a FOIA request, is in longer term investigative reporting projects. It also places journalists, and this goes to something that Anne already mentioned, it also places journalists who need access to records more urgently to inform the public, who need their request processed in the near term and can't sit and wait for months or years in a queue, in position of needing to have an attorney and needing to file a lawsuit just to get those requests processed.
I think we've seen in recent years, particularly in DDC [US District Court District of Columbia] arise in FOIA litigation. And I think, again, sort of piggybacking on what Anne said, that that seems to be driven in large part by delays by people simply wanting those requests to be processed and knowing that they need to get in litigation in order to do that. That places a particular burden, I would say, on freelance and independent journalists in particular. And to give you one example, I think a really concrete example of this, Reporte’s Committee attorneys have, including myself and my colleague Adam Marshall, who's on the FOIA Advisory Committee, as well as our colleague Gunita Singh, have been representing for a number of years now, an incredible journalist, Azmat Khan in FOIA litigation in the Southern District of New York. And when she came to the Reporters Committee, she was already an award-winning freelance journalist, she had unanswered FOIA requests at the Department of Defense (DOD) seeking information about hundreds of civilian casualty incidents from the US-led air war in the Middle East.
Now, through that years-long still ongoing litigation, Azmat obtained the thousands of Pentagon records that formed the backbone of the civilian casualty files. That's a series of front page New York Times articles that were published last December that I'm sure many of you have read, stories that are really in heart wrenching detail bear the human toll of the US coalition led airstrikes in Iraq, Syria, and Afghanistan. This is, I think, such a powerful prime example of public interest reporting. The month after that series began to run, the Defense Secretary issued a directive aimed at preventing civilian deaths, revamping the way the Defense Department conducts airstrike investigations. It had such an impact internally within the government that the day after Azmat and her New York Times colleagues were awarded the Pulitzer Prize in international reporting for the civilian casualty files, John Kirby, the Pentagon spokesman, congratulated her and the New York Times for that difficult reporting.
But if you go back in time and you look at the way the Department of Defense conducted itself, while Azmat was attempting to do that reporting, it's clear she was stonewalled. Now, she was stonewalled, of course, in connection with some of her on the ground reporting in the Middle East, but even looking at just the FOIA process, she had to sue for records to get the request processed, she was denied expedited processing, notwithstanding, I think the obvious, exceptional need and urgency of her requests. And even when she was in litigation, she encountered the kind of extensive withholdings that I think people who are familiar with FOIA practice expect to see now. So for example, she filed FOIA requests about the August, 2021 Kabul strike that had killed 10 civilians, including seven children. And of the 266 pages at the Pentagon initially located, only seven of those were partially released to her.
So I think Azmat's or reporting and her experience - I like to use it as an example because I think it's a really powerful illustration of the promise of FOIA, the power of FOIA to fuel important investigative reporting. At the same time, it's such a powerful illustration of so many of the problems that we're seeing on a day-to-day basis and even routine kind of FOIA requests.
I don't want to speak for too long, but the other issue I really wanted to highlight, because I think it's one that the Reporters Committee has been very focused on in recent years, is developing the law around the foreseeable harm standard. So for foreseeable harm provision, as many, I'm sure many of the people listening to this meeting and attending this meeting all know was added to FOIA as part of the FOIA Improvement Act of 2016. And it precludes or prohibits agencies from withholding under a discretionary exemption, records or information, portions of records for which it is not reasonably foreseeable that if the record were released, that there would be harm to the interest to be protected by the exemption. I think many of us, including myself, were really enthusiastic and thinking very positively about the potential impacts that the foreseeable harm provision could have at the agency level. So I will say in terms of successes in litigation, one of the ones that I think we're very particularly proud of at the Reporters Committee is the DC Circuit's July 2021 decision in [the] Reporte’s Committee and Associated Press against the Federal Bureau of Investigation.
That's really the leading case interpreting the foreseeable harm provision and what it means. That was a case that arose in the context of the Exemption 5 deliberative process privilege. And in that case, the panel, the DC Circuit, really made clear that the foreseeable harm provision is a separate important obligation on agencies that they must meet. And that the showing to demonstrate that, that provision has been complied with, the showing and litigation is actually a pretty significant bar. Agencies have to concretely explain how disclosure would, not could potentially, but would adversely impair in the context of the deliberative process privilege internal deliberations within the agency. The agencies can't just give the court a perfunctory statement that the disclosure of all the information they would be held, would again, in the context of deliberative process privilege for example, jeopardize the free exchange of information between leaders. That's not sufficient. What you need is a concrete focused demonstration of why disclosure of the particular type of information or material at issue in the specific context of the agency action at issue will actually impede agency deliberations, a very context specific inquiry. So we were incredibly pleased with this decision. We think it's a very powerful statement of what the foreseeable harm provision is meant to do.
I think the problem that we've seen, and one of the things I think I would certainly appreciate some of this committee's focus on is that it's been viewed, I think, on the side of the government and on agencies as a requirement that must be satisfied in litigation. In other words, it's not changing behavior within the agencies. What it's doing is just adding something additional to what the government thinks it needs to do to justify the very same withholdings it would've made before in litigation and that is not. And if you look back at Congress at the legislative history underlying the 2016 amendments to FOIA and particularly the foreseeable harm provision, that's not what Congress intended. What Congress was responding to was overuse of discretionary exemptions, especially the deliberative process privilege exemption under Exemption 5, the overuse of that exemption to withhold information that should be disclosed to the public. And the purpose of codifying and putting into the foreseeable harm provision was to stop that behavior at the agency level. And I think the problem is that we're not seeing that. What we're seeing is it being used in litigation certainly and sometimes successfully, we're able to rely on the foreseeable harm provision in litigation. But those records shouldn't have been withheld to begin with under the foreseeable harm provision.
And I think additional training, and to Anne's point, a real culture shift at the agency level to ensure that records are not required by law to be withheld, and their withholding would not result in any harm to the interest that the discretionary exemption is intended to protect against. Those records shouldn't be withheld to begin with. And that's going to require a lot of training and cultural shift at the agency level in order for I think that provision to do the work that was really intended to do and really should do, I think to benefit all requesters. There's a lot of other sort of challenges and things on my wish list that I could talk about when it comes to FOIA, but I certainly want to leave plenty of time for Ryan and for questions. So, thank you.
Alina Semo: Right. Thank you so much, Katie. I really appreciate it. Ryan, over to you.
Ryan Mulvey: We've discussed a lot. I agree with everything that Anne and Katie has said. I'd like to start first though by building on one of the points that Anne made about litigation and the fact that many FOIA cases have now become a matter of you file your lawsuit and then, you sit and wait and it's housekeeping, because you haven't even gotten any records. I think the situation is even worse than and led on with her initial description because courts, in my experience, at least very rarely order production schedules. So after your initial joint status report where you either propose a briefing schedule, which the court will inevitably accept or have dueling proposals for how production should proceed, the court rarely orders production. And I have seen agencies increasingly fail to meet these “coditory” deadlines, let's call them, right? The agency will say, "Well, we plan to produce the first interim production in 30 days" and then, that 30 days comes and goes and nothing happens.
And this is where I think the role of DOJ (Department of Justice) and let's perhaps call it a culture shift in DOJ, even in my time practicing FOIA, I've seen a shift. We used to like litigation, if only for the fact that DOJ was a quality check on agency counsel. And very often, DOJ would hold the agency’s feet to the fire to make sure that they were complying with FOIA, complying with production schedules and so forth. I think that's changing. I don't know if it's a difference in philosophy now in DOJ leadership about what it means to represent the government generally or under FOIA. But I have increasingly seen DOJ not want to negotiate with requesters, not be a check on the agency and increasingly offer, let's call it in a charitable way, creative arguments to the court about why a case shouldn't proceed. So whether that's trying to dismiss for lack of subject matter jurisdiction, which in the vast majority of FOIA cases is a ridiculous argument and I think the courts have finally put an end to that practice [or] whether it's moving to dismiss under 12b6 because a valid request hasn't been filed. And there we can get to the question of reasonable description as Anne was also discussing.
There was a recent case in the DDC, I think it's National Association of Minority Veterans versus VA, where the DOJ argued on behalf of the VA that negotiations during litigation about the scope of the request actually created a new FOIA request. And therefore, there's no relief to be provided. There needs to be a new lawsuit. I mean, frankly, that's a ridiculous argument and I don't want to say it's offered in bad faith, but it's disappointing to me to see that, that's what's happening in FOIA litigation.
Going hand in hand with that, I have noticed some commentary from the bench, mostly dicta, actually all dicta, which seems to suggest that the problem, the brokenness of FOIA is the requester community's fault. And Judge McFadden in the DDC, for example in American Center for Law and Justice versus Department of Homeland Security, last year, he threw the request out [under] 12b6 because it lacked a reasonable description of the records requested. And he said that the nonprofit world is filing lots and lots of requests and they're all over broad, they're all unreasonable and they're doing this because they have everything to gain and nothing to lose because they just want attorneys fees. They just want to mess with the agencies.
Now, let's set aside the question of whether the DDC bubble and the rest of the FOIA world across the whole country, whether there's some issue there that some difference in perspective that needs to be taken into account. I think the academic literature and Bernard Bell in Yale General and Regulations Notice and Comment blog had a nice response to Judge McFadden where he said, "Well, first of all, there's no evidence to back up any of these claims," but to the extent that the nonprofit requesters are filing broader requests, voluminous requests, it’s not because they have something to gain because they're going to have to go through all those records and they're not going to get compensated by the agencies. It's not difficult, it's not easy rather, to get fees because you not only have to show you're eligible but that you're also entitled and that you're a prevailing party. But they might be doing this because there is a deep distrust between the requester community and the agencies and there is an expectation that the agency is not going to comply with FOIA.
And I think there, just to comment further on Anne's point about reasonable description, this is something I am increasingly seeing at the administrative stage and in litigation, that two points on it. Agencies are first confusing, perhaps intentionally a request that seeks voluminous number of records, which is not unreasonably described and the OIP (Office of Information Policy) guidance is clear on this. And requests that really don't provide enough information to a professional at the agency with subject matter expertise to locate records with a minimal amount of effort, a reasonable amount of effort.
Agencies, it seems to me, don't want to admit that they have some responsibility to do some legwork at times, once they get a request, they literally construe it. They may need to do some research on their end to help find the records. The fact that they have to do that doesn't make the request unreasonably described. The second point there, I think there have been instances where agencies are increasingly demanding information from requesters as part of their description, particularly for electronic records in order to make the request valid. There was another case in 2018 in the DDC, Justice Jackson. Now, Justice Jackson, then the district court judge, issued the opinion it was MuckRock versus CIA [Central Intelligence Agency] where the CIA had a practice of requiring any request for email records to provide the to, from, date, and subject line. Which given the asymmetrical distribution of knowledge between an agency and a requester, it's going to be very rare that a requester could ever provide that sort of information. And that sort of approach to FOIA I think is certainly not... The judge said it wasn't according to the letter of the law, I would agree there, but it's also against the spirit of FOIA and how the statute is supposed to work.
Another issue that I have a lot of personal experience with having litigated it up to the DC Circuit is this rather new issue of what a record is under FOIA. So I think we've had a lot of case law over the past couple decades about an agency record and the question of control. But there's now an antecedent question of what a record is and to really understand how this is happening and how agencies are sort of gaming the system as it were, I think. You have to step back to some guidance that DOJ had put out in 2005 with respect to a practice called scoping.
So previously, when agencies received a request and they were processing records, if content within the record fell outside what the agency understood to be the subject matter scope of the request, it could be withheld. Now, they didn't call it withheld, it was scoped out. So there was no exemption applied, but the information was not released, it wasn't processed and that was not uncommon. In 2016, the DC Circuit in American Immigration Lawyers Association (AILA) versus Executive Office for Immigration Review said, "You can't do that. This is not permitted under FOIA. There's statutory exemptions and that's it. You have to release the record as a whole.” What I have noticed, and I think other requesters have as well, is that agencies instead of withholding information as non-responsive, claimed that those same blocks of information were separate records entirely. So what was previously non-responsive was now a non-responsive record.
And this manifests itself in various ways. So you could have an email chain where half the chain is redacted as non-responsive records, the individual message. So there's a debate about whether the whole chain is a record or not. If you have a multi-subject document with separate headings, is each section with a different heading, a separate record. Unfortunately, in 2017, OIP issued guidance on defining a record in the wake of AILA and its facilitated agencies continuing to do this sort of thing. So OIP advised agencies that they should look at the Privacy Act’s definition of a record or a part of its definition of a record, which talks about any collection of information. But that it also should look at the nature of the document during processing and the subject matter of a request. There's a lot of problem with all of that. In my case, Cause of Action Institute versus Department of Justice 2021, before the DC Circuit, we were dealing with questions for the record and OIP had redacted some of the individual questions and answers in the complete PDF document as separate records.
The court said, "You can't do that." Our policy and practice claim was dismissed for being unripe. So we didn't get a ruling on OIP's guidance as such. But I think that the general rule that came out of that decision was that what really matters is how an agency handles a record before receipt of a request. And yet, we still see really weird outcomes with agencies manipulating records while processing in order to withhold certain portions. It may be that they want, it's an administrative burden question and they want to try to avoid having to process content. But it could also just be a convenient coincidence that the same information that might be burdensome to process this information that the agency wouldn't want getting out because it doesn't view it as directly responsive to this sort of thing that the requester was looking for.
I want to leave time for our conversation, but the last thing I do want to say, which Anne hinted at me raising was legislative reform. And I think it's a place where the committee, I know it kind of dipped its toe into the waters of proposing to Congress in the past two committees I think, proposing how FOIA can be fixed, how the statute can be fixed. I think it's really important that that get done, that Congress not just tinker, but really do a major overhaul of the statute because FOIA is broken. It might be too much to ask the court to ask Congress to completely redo FOIA, to throw it out and start from scratch. I would love to see that happen and to be part of that process, as I'm sure many of you would. But I think at the very least, some of the areas where there could be improvement and we can delve into this deeper [if] people have questions, is changing how litigation works. So either liberalizing the availability of discovery or requiring agencies to lodge an administrative record. As FOIA kind of lives in a middle space practically litigation wise between the APA and regular civil litigation, reforming the employee sanction provision, which has never actually been used. Expanding proactive disclosure, requiring OMB to regularly update through notice and comment rulemaking the fee guidelines and government-wide fee schedule, considering making legislative branch and judicial branch agencies subject to FOIA. There's been a lot of talk about that with the Capitol Police Department and a personal favorite of mine, which if any of you joined AFP's FOIA discussion during Sunshine Week, it's creating an Article three specialty court that just deals with FOIA. But with that, I'll leave it open to questions now, Alina, ready for that.
Alina Semo: Now, that's Ryan. Thank you so much. Gave us a lot to think about, as did Katie and Anne. So I want to thank all three of you for that. And I know all of you are jumping out of your seats to ask questions, so does anyone want to go first?
Michael Heise: This is Michael. May I ask a question?
Alina Semo: Sure, please go ahead.
Michael Heise: This is Michael with the EEOC, which is a small agency as everyone probably knows. I'm really fascinated about the revising or overhauling the FOIA statute. I think that's really interesting and I guess, it's kind of two questions. First, Ms. Weismann, you had mentioned that you'd had some thoughts about how to reform. I know that Mr. Mulvey kind of listed some that he thought. My first question to Ms. Weismann, is there maybe two or three off the top of your head that you would think would be something a reform FOIA would have? And then, my second question to all three and also other folks on the committee, and this is something that's just very interesting to me and it might strike controversial to the requester community. But does the 20 day or 30 day timeframe reflect the current times in terms of processing? And if it doesn't, what number do you think does? If there is a number. Because I know some of you said it takes years and that almost sounds like there isn't a number. I'm really curious about that question. Thank you.
Carmen Collins: This is Carmen from the DOD. I'd like to be next, sorry.
Anne Weismann: Okay, let me jump in first. And I know that Katie and Ryan will also probably be eager to jump in. I mean, if I had a wishlist on FOIA reform, I mean, I share Ryan's view that I'd love to see the entire statute, we should start over. But recognizing that's not likely to happen, I do think there has to be reform to expand and clarify the role of courts. We've gotten some troubling decisions including one out of the DC Circuit about how limiting the court believes its role is and only providing relief to a specific requester as opposed to larger relief. I also think we are struggling, we who litigate see patterns and practices of behavior all the time and addressing it only to a single FOIA lawsuit is just not adequate. I think we need to get further clarification or expansion of a court's authority. So I think that is one way to and I agree with Ryan, I mean, I think there probably needs to be discovery. There needs to be an administrative record at least so that FOIA litigation more approximates other civil litigation.
As far as the statute, one of my biggest frustrations is I mean typically bring lawsuits that or bring requests, excuse me, that I believe are in the public interest. I mean, I work for public interest groups. These are not documents I want in my personal capacity. I think they touch on fundamental government policies and actions. And there is a very limited ability within the FOIA to raise and have a court consider the public's interest in the document. The foreseeable harm standard, I think in part, as Katie was explaining, and this is all in the legislative history, it was a reaction to the overuse by the government of exemptions, especially Exemption 5. But I don't think it goes far enough. And so, I would like to see a codification of some balancing test or way to ensure that courts will consider the public interest in the information as well as the governmental interests that are protected by the exemption. Because right now, I think the public is given really short shrift. And as far as changing the 20 days, I didn't see much difference, frankly when it was changed from 10 to 20. I don't think there is a number that's going to work. I think the problem is it's just fundamentally underfunded. I think there needs to be a line item funding for agencies. I think Congress and agencies need to treat it, the FOIA what it is, which is a statutory command, or wouldn't it be nice if you would share information with the public.
Katie Townsend: I'll jump into strongly second, some of the things Anne said, I'm a little bit biased. My colleague, Adam Marshall and I in 2018 proposed in a law review article in celebration of the 50th anniversary of FOIA, public interest balancing as a necessary, we believed amendment to FOIA for the reasons that Anne has highlighted, particularly pre-foreseeable harm. There was simply nothing a court could do if records fell within the scope of a discretionary exemption. Even if the court strongly believed it was in the public interest to release that information. That was simply nothing they could do for the foreseeable harm provision has changed that somewhat. But it doesn't incorporate the public interest in the way a balancing test for the public interest that I think is particularly important. And so, I would love to see that be part of any future legislative reform.
I want to underline something that I find particularly frustrating about FOIA. And often when I'm talking about FOIA to people who aren't familiar with it, I will say to them, take a look at this statute, read the statutory language. And if you read the statutory language, you would think that it results in the most possibly the most transparent system possible. Because the statute itself is, from my perspective, excellent and very requester friendly, that the statutory deadlines are not unreasonable. I don't think the 20 days statutory deadline with the additional 10 business days in unusual circumstances or maximum of 10 business days is, I don't think that those are unreasonable, but they're not overly lengthy. We're talking about de novo review when you're in litigation, which is unusual. So the court is purportedly giving no discretion to agency withholdings in the litigation. So at the litigation stage, there's so many aspects of the statute that are very, very pro-transparency.
I think where things start to fall apart is on the compliance with the law. And you can rewrite the law a million times. And if there's no compliance then, and by compliance I mean look, yes, at the agency level, and I agree fully with Anne, that there needs to be more resources. No, FOIA is an unfunded mandate. And that is that if we truly are serious about changing and fixing FOIA, I think Congress should think about funding it as opposed to just making changes to the statutory requirements. But also courts have a very significant role I think to play in this as well because agencies will not put the resources into funding FOIA compliance if courts are not requiring compliance once they're in litigation. And I think the way that FOIA litigation typically runs where you will, and Ryan already spoke to this, is sort of you're in the process and then there's a maybe 500 page processing per month kind of schedule that's put in place. None of that's really consistent with the statutory framework. And I think if we had judges who were more willing to hold the agency’s feet to the fire in terms of compliance and impose quite frankly much shorter processing schedules or faster processing schedules and things that forced agencies to put resources in, I think that that would help as well. So I think from my perspective, I'm less concerned about tearing apart FOIA as a legislative matter than I am about trying to get compliance with FOIA as it currently exists.
Ryan Mulvey: Just two quick things to add on the deadline being changed. I think Anne was hinting at this, but in my mind the deadline isn't there for the agencies anymore. The deadline is there for the courts and plaintiffs and it just serves a gatekeeping function. And I think even Judge Srinivasan, it might be in some DC Circuit decisions, has basically said as much. I think it was a policy and practice case from a few years ago. So I don't think changing it is going to do much of anything, frankly. The only other possible reform, because I think it had been deferred, but it was considered previously by the committee as a recommendation.
I think it would be an easy workable and an acceptable reform bipartisan basis that Congress to strengthen OGIS and to really give it more of an ombuds function that is not just about voluntary mediation, that then is also voluntary compliance with the outcome of the mediation. And you see this in some states under state laws where the attorney general's office will have [a] special division that does FOIA appeals and then will even enforce against an agency if it doesn't comply with the outcome of that appeal process. If OGIS kind of had a role like that where it was mandatory compliance with the outcome of whatever process OGIS is doing, I think that would be something welcomed certainly by the requester community.
Alina Semo: I see Dave Cuillier smiling, something he championed in the last term. Okay, so I've got three folks queued up. Carmen is first, then Ginger, and then Alex, in that order.
Carmen Collins: Morning, everybody. This is Carmen with the DOD. I'd like to thank all three of you for being part of this panel and really sharing your knowledge and expertise with our committee. I love that, this is what this is for, right. The whole purpose of us trying to understand the requester community and hearing frustrations, problems from the other side is extremely helpful to all of us, I believe. And with that being said, I wanted to hone in on a comment that Anne said in regards to still interested letters. I agree 100% that those should be used very sparingly, yet they are used. And you said that there was not enough time to respond, so I wanted to know what would be the appropriate amount because it's 30 working days, not including weekends or holidays. So that equates to what, about 40, 45 days for the requester to respond if they are interested. I do believe also different methods of reaching out to the requester should be made and that should be via mail and email, considering that they provided an address for any sort of communication.
And also, I wanted to ask, so that was my first question. What do you think would be an appropriate amount of time, days exactly? As well as you said that sometimes emails are sent to requesters actually, and you said they're no longer there so they can't respond. Or the email doesn't go through because the email address has been deleted. So shouldn't requests from organizations come from a distribution list that includes a lot of people. So therefore, there are questions as we're going through the case and processing it. If the agency has questions to ask about the request, shouldn't those emails just request if it is an organization, obviously for a single requester that couldn't be an option. So wouldn't that be a better way also for organizations to be kept aware, and if a still interested letter is sent, it doesn't get sent just to that specific request requester within the organization, rather to a distribution list. And that could help, I would think, mitigate the issues with not getting a response. I know for a fact that if an email address doesn't work for any reason, after we're processing the case, we look at the organization, and try to reach out, try to find who the person is, that is anybody, "Can you tell us what happened? Who would be the person that's taking over this?" Because we have several questions so we have a response.
Alina M. Semo: Carmen, I'm really sorry to cut you off, but we have several other people-
Carmen Collins: Sorry.
Alina M. Semo: Who want to ask questions.
Carmen Collins: Sure, sure. So those were my-
Alina M. Semo: [inaudible] got an opportunity to respond. Thank you so much.
Carmen Collins: No problem.
Anne Weismann: Well, you may have misunderstood, I wasn't saying the email address no longer worked, I was saying the problem is that because the person who wrote the request is no longer there, it simply takes time to track it down and evaluate it. We don't have a lot of knowledge, especially when it could be three or four years old. I think your idea of maybe having a more universal email address is a good one. I mean, I had an instance recently where we gave the name and work email address of the contact person, that person left, but their work email address was still monitored. On the day after they left, the agency sent an unreasonably described letter to that person at her personal email address. We never got it, they actually moved to dismiss it, which was a good example of Ryan's improper use of 12b6 or whatever.
But I agree, I don't know what the perfect time is, but this highlights something that I would like to see happen more generally, just even beyond the still interested, which is more of a dialogue. When an agency person calls me and says, "I got your request, I'm really confused." Or, "Do you realize by framing your request like this, this is what you're going to get?" And I can say, "Wait a minute, that's not what I want." I mean, it is so mutually beneficial, and I think...I understand you're under pressure to process a lot, but taking a little time to engage in a dialogue, whether it's, "Are you still interested? We'd like to talk to you about this." Or, "It's going to take a long time, but can we explain to you why it's a problem for us?" That would go a long way. So I really want to encourage agencies to have more of a dialogue with requesters.
Carmen Collins: Thank you, Anne.
Alina M. Semo: Thanks very much, and thanks for the question, Carmen. Ginger, you're up next, and we've got several other folks in the queue.
Ginger Quintero-McCall: Hi. Thank you all for joining us. And several of you touched on this a little bit, but I wanted you to expound on a little bit further. To what extent do you think that resources... Oh, sorry, I forgot to introduce myself. Ginger McCall, Demand Progress. Sorry. To what extent do you think that resources are a contributing issue to many of the problems that you're seeing? And if you do think they're a contributing issue, what, from your standpoint, do you think would be helpful toward fixing that problem? Thanks.
Ryan Mulvey: Let me just add something, 'cause I think Anne and Katie both mentioned the need for more resources. That entirely aside, I think a lot of the problems that might happen with FOIA come down to two causes. The first is just lack of communication between requesters and agencies. As president of ASAP, and having been around ASAP for a while, and I know some of you here have been involved with ASAP as well, a lot of times, there's... Each side is afraid to talk to the other, and if there were just more dialogue, and on the agency side, better customer service, and on the requester side, a little more understanding of what's going on at agencies, both with queues and in terms of... It's not like most FOIA officers can push a button and do a search themselves, they have to send out task memos, and then get... I'll get to that, and my second point, it's related to that.
But if there were just better dialogue, a lot of problems would be solved, and I don't think you need more money for that. The other is, there just needs to be a culture change on the government side with FOIA. All the FOIA professionals I have ever met are good people, and believe in FOIA. So don't let my comments about DOJ and litigation earlier suggest otherwise. People who work in FOIA believe in FOIA, but that doesn't mean that... They don't have the authority to make FOIA work well. And if a program office doesn't want to do a search for records, there's really not much the FOIA officer is going to be able to do.
And a lot of the delay comes from that, I think. Or, if they've censored a review or political review, a FOIA processes in place at an agency, and people from the comms shop or from agency front office who have nothing to do with FOIA are getting a say, or getting time to review, whatever that means, that that's not a matter of funding, that's a matter of culture. And I think improvement there could go a long way in making FOIA work better.
Katie Townsend: I'll second the point about communication that Ryan's made. I think especially a lot of the journalists that we work with are more than willing to have a conversation with a FOIA officer about potentially narrowing a request, if that makes sense, but they can't have that conversation if there's no communication. So I do think that that's a really important piece that has nothing to do with resources.
That said, if you're looking at agencies with really significant backlogs, really substantial backlogs, and they're understaffed, then that's a problem that no amount, I think, of communication is going to fix. And although we do need some fundamental changes, I think, within in the culture when it comes to responding to requests, and what to withhold, and all of that, I think that there are situations, particularly at agencies, like I said, with the FBI for example, with significant backlogs, where there needs to be more resources, personnel, put towards reducing those backlogs. I don't think there's any other way to do it to counteract the delay. And the delay, as we've already talked about, is what, in and of itself, spurs additional litigation that really shouldn't be necessary, if it's really just litigation being brought to get requests processed.
Anne Weismann: Let me just add, there are tools out there to help agencies, there are e-discovery tools, and new ones are being developed all the time. I know Jason Baron, who's on your committee, is more than familiar with this. Agencies need to think about this as it's an agency's responsibility to solve the problem, not just the FOIA office's obligation to solve the problem. And I think that access, and use of greater electronic discovery tools really can present a very useful answer. I've had cases where agencies don't have access to the e-discovery tools that they're litigating components do, or agencies that say they don't even have the ability on electronic records to do a deduplication. I mean, in this time and day, and where we are with electronic records and electronic record-keeping and tools, I just think that's completely unacceptable.
Alina M. Semo: Okay, thanks all of you. I really appreciate that. I think up next is Alex.
Alex Howard: Found the unmute button…Alex Howard, Digital Democracy Project. It's good to see all of you virtually, it'd be great to see you in person someday again soon. Thank you all for your perspective and insight here. It was absolutely wonderful to get to hear this, nerding out with you is a real pleasure. And thank you also for your past comments, Ryan, the colloquium you put together for Sunshine Week this year was terrific, and I wanted to ask you a couple of questions.
The first one's actually informational. There was a consultation on the Freedom Information Act at the White House Office of Science and Technology Policy held earlier this week, Bobby from OIP was part of it. Had any of you heard about that? So I would say that you all are leaders in open government and spreading Freedom Information Act in our community, I mean, you may not describe yourself that way, but I certainly see you that way. Are you aware that there's interest in receiving potential commitments from the U.S. Government as part of the next National Action Plan for Open Government, for the open government partnership? Have you heard anything about that in the last year?
Ryan Mulvey: The action plan I heard about from you, Alex.
Alex Howard: Okay.
Ryan Mulvey: But not the-
Alex Howard: Similar responses. I wanted to make sure, since you all had such substantive, constructive, detailed, and concrete ideas to improve the FOIA, that you knew that there's a consultation that will be open through Friday, that you can submit these comments to. And I will say, Ryan, that I sent the essays from your colloquium in. And that's true for anyone else who's listening, you can go to open.usa.gov, and you can submit comments. And OSTP has specifically asked the FOIA community and requesters to put this kind of information in.
And I wanted to suggest that you do that, along with other people, because it would be really useful to have those put into the record. And it's wonderful to hear all of the process suggestions you have. I wanted to ask about something specifically though that is different from technology, or modernization, or the statute, which is culture, which you just touched on. Why do you think there's a cultural issue around the Freedom of Information Act in the agencies? What's been missing in the last five years or decade that would change that? What would you recommend to us to recommend, and to the U.S. Government, to the extent people [are] listening, that could change that? What's the missing component on that?
Ryan Mulvey: I'm reminded that-
Anne Weismann: I think... Oh.
Ryan Mulvey: No, no, no.
Anne Weismann: Go ahead, Ryan.
Ryan Mulvey: No, no, please. You first.
Anne Weismann: I mean, this isn't an answer, but I think a start is that people in the government need to be trained about what FOIA is, and all of its laudatory goals. I mean, if you read, as I've had to do for too many lawsuits, if you read the legislative history, especially the early legislative history, when they were creating the statute and the kind of government and government transparency they envisioned, I mean, it started from the shared belief that open government was a fundamental value of our democracy. I mean, after all, the FOIA was first signed on the fourth of July, that wasn't an accident. It was done to stress that this is a prerequisite to a democratic society. And I think for people at agencies to better appreciate the role that FOIA plays in our democracy, we have to get a shared agreement, and belief, and understanding, and buy-in everybody that this is a really, really important statute.
Alex Howard: Thank you, Anne.
Ryan Mulvey: I think just two quick thoughts. I think that agency leadership needs to show respect for the FOIA office. I remember news stories from 2017, I think it was the Department of State, where people were being assigned to the FOIA office as a punishment, that's not... Or I think even earlier, back to the Department of Homeland Security, and the issues with whistleblowers from the FOIA office who were consigned to windowless basement offices for having told Congress about political review, and inappropriate interference with FOIA. That sort of stuff needs to stop. And in the same way, at the highest levels of government, perhaps down a little bit too to the middle highest, there's a complete lack of regard for the fact that the records of the government belong to the people. And I think perhaps with increasing technology that's been exacerbated. What I mean by that is, we're not in the days of, walk down the hall and talk to somebody in the office, we send a text on your work-issued phone, or you have an inter-agency text message system, or you use telegram, or I don't know, anything like that.
We have all these other ways of communicating informally instead of just talking, and we're creating records, but we don't want to accept that those records are records, and there's been a lot of abuse with that. And so I think that carries over then into a broader idea of, "Well, these are my records, why should I have to share them?" And if the higher ups in the agency don't believe that the records that they create, whether it's a tweet, or a disappearing messaging app message, if they don't believe that, how are middle level people at the agency supposed to... Or across the government supposed to feel? And so there's a trickle-down effect that way. Undoing that, I mean, I don't know if I have a solution for that, that's difficult.
Alex Howard: Presidential leadership?
Ryan Mulvey: Well, hold the highest levels accountable.
Alex Howard: Yeah. So you're saying that Presidents shouldn't designate public records as their own?
Ryan Mulvey: Well, I'll say this, I wish we had... This is not an attack on any one administration, I think we were a little disappointed that it took so long to get the Garland memo, and we were a little disappointed when we actually read it. I mean, there's good stuff in there, don't get me wrong. The whole immigration proceedings section, and first-person requests, that's going to be a big help if there's follow through on the agency's part. But it took a long time to get that, and if we had gotten a presidential statement, an AG memo on day one, and a commitment that we didn't have the last time we got a presidential memo and a memorandum in the Federal Register, if we had actual follow through, it would go a long way too in setting the tone for all FOIA across the government, I think.
Alina M. Semo: I want to keep things moving along. Stefanie, I believe you're up next.
Stefanie Jewett: Hi, thank you. Stefanie Jewett, Office of Inspector General at the U.S. Department of Interior. First, thank you all for joining us today, this has been very informative to hear your views. I just wanted to talk about a little bit, for a minute, just hear your views. As we all know, litigation has been dramatically increasing over the years, what you guys have spoken about, especially because of this missed time frame, so constructive denial litigation. From what we have seen, especially in the smaller agencies, requesters are skipping right over the appeals process, which is allowed, and going straight to litigation.
And I've heard some comments today that say things like, "It would be nice if the court's held our feet to the fire and production orders." However, most of the time, especially in government agencies and small ones like the IG offices, the ones processing the FOIA and the production order are the exact same ones who are handling and processing the FOIA requests and the backlogs. So what the litigation is actually doing is putting one case as a priority, at the detriment of all the other cases in the backlog, and getting us further behind. So I'd just like to hear your thoughts on lawsuits actually slowing down the FOIA process, and increasing agency backlog. And just hear your thoughts on what you think could resolve that issue. Thank you.
Katie Townsend: Well, I will jump in and say, I don't think litigation is the cause of the backlog. I think litigation is the result of the backlog. And I do think it's unfortunate, I think unfortunately for a lot of the, as I said earlier, journalists, and news organizations that we work with that have an urgent need to inform the public about matters of public concern, their only option to get their FOIA request processed in a reasonable way is to sue, because their request has been constructively denied. It's interesting that you mention the administrative appeals process, which of course, isn't necessary if there's been no determination, which in the statutory timeframe, but it is something that I know that we, at the Reporters Committee, for our own requests, have done in the past. In other words, submitted an administrative appeal, even though we're not required to do so, before filing suit. I know that there are other organizations that we've worked with who have utilized the practice of sending a letter prior to filing suit.
Unfortunately, those types of pre-litigation efforts don't tend to really move the ball much, or be successful. I'm very resistant to the notion that requesters should not sue, or that requesters by suing to assert their rights under the FOIA, are somehow making the backlog worse. I think that to the extent there's a backlog, and it's resulting in these kind of constructive denial lawsuits, to me that's a problem at the agency level that needs to be addressed through more increased resources at the agency level, to bring the backlog down.
Alina M. Semo: Anyone else? Ryan or Anne?
Ryan Mulvey: This isn't directly responsive to the question, but I think since the issue of small agencies came up, and I'm kind of thinking off the cuff here, but I wonder if there could be a way to come up with, free cross government resources for these smaller agencies to assist in things like processing of administrative appeals. It's kind of an amusing anecdote, but I once filed a request with a very small commission, I don't even remember what it was. They don't even have a website, so you wouldn't think they're subject to FOIA, but I was dissatisfied with the determination, and I was like, "Well, how do I file an appeal?" And the FOIA officer said, "Well, I'm also the appeals officer, I can tell you how it's going to go." And she didn't mean it, I don't think in a nasty way, it was kind of funny. But obviously, there's a problem, legally, I think, with that arrangement.
But in a situation like that, maybe there needs to be, whether there can be inter-agency agreements that a larger agency can handle appeals, or there can be some sort of new entity created to help manage some of the burden that small agencies with one or two FOIA officers have. There could be creative ways to help. I know that's not really responsive to your question, but I hope that insight is at least useful still.
Anne Weismann: And let me just add, I guess a question I would have is, how much are you taking advantage of proactive disclosures? If agencies were far more aggressive in proactively disclosing records, I do believe they would see a corresponding decrease in the number of FOIA requests. Especially when it's records that you know are likely to be requested. IG reports, it should be automatically posted. It shouldn't take a request to get them put online.
Alina M. Semo: All right, thank you so much. Catrina and Bobby are our two last folks in the queue. Just want to make sure no one else has a burning question. But over to Catrina next. Catrina, you're on mute.
Catrina Pavlik-Keenan: Hi, I'm Catrina Pavlik-Keenan, and I am the Deputy Chief FOIA Officer for the Department of Homeland Security. I want to thank you guys for sharing some of the insights that you had with us today. It was very, very informative. One of the things that I wanted to say was that, I actually agree with, one of the things, Ryan, getting to the basics is one of the things that we're doing at DHS. I'm going halfway through my second year, I think, almost halfway through my second year. So we're getting back to the basics of the communication, what you were saying, is talking to the requesters, and trying to figure out what we can get them, and how soon we can get it for them. And news media especially, and it's very important for you guys to get the articles that you've got, that you're looking for, and to get information out there.
We did a lot of proactive disclosure on the January 6th incident, and we're actually doing... We actually have a whole plan on proactive disclosure that the Secretary is actually 100% supporting. And so I want to say to you, you all are right when you say it has to come from the top, down. When Secretary Mayorkas came, I was one of the first people that he met when he first came to the department. And we had a long conversation about FOIA, and about how important it was, and about how these records are those of the public. And one of the things that I wanted to say though is that, Anne brought this up, I think.
It's very difficult, and I wish people would understand that we are not the...I've done FOIA literally half of my life. So like Alex, I'm a FOIA geek, I love it, I'm a nerd for it. I left it for 15 months one time in a previous life, and came back to it. But what I wanted to say was that it's very difficult for us to get the records, because the mission of the organization is that the mission of the organization, and FOIA is like a lot of people, and not so much in DHS, but in a lot of collateral offices, a lot of other agents, it’s collateral duty, and the agents... When you guys say it's numbers and you just pull it out of the system and everything, well, there's people that are pulling the numbers out of the system, nine times out of 10 are the agents that are actually also out in the field.
And I actually recently had an FPS (Federal Protective Service) conference with a bunch of agents and non-agents and we talked about that. And one of them actually said, "If you would support us having mission support people to do FOIA, instead of me having to do FOIA, and doing my mission job, which is really to be a gun toter, then we could get a lot more accomplished, both them and us." And so one of the things that I think we're starting to see, at least as Department of Homeland Security, is that our own mission critical people in the field are seeing that this is critical, and it's a mission that is important and has to be done, but it's also taking away from their mission, which of course, we can't do.
So the idea of resources, I wanted to let you know. I'm constantly asking for more resources at the Department of Homeland Security. And not just for me, I've actually helping...I just recently did a backlog reduction plan for TSA (Transportation Security Administration), for CBP, and for ICE (Immigration and Customs Enforcement), which is where I was at for 15 years of my career. And we are looking to get those backlogs down, that's the commitment that we have, and we have backlog reduction plans going for all the other components within DHS that we're looking to do.
What I ask of you all, if you could, is as much as you're out there talking and resources are important, we also need technology. My biggest thing is to get technology. We need people and technology, and teaching them both what FOIA is, and that's across the board. We're teaching people from the moment they walk into the door at DHS what FOIA is, and how important it is. And I think that that's something in all government agencies that everybody needs to do. But we need technology, we need resources, and we need data sets, data sets that actually can be useful to people.
And those are the things that we're trying to pull together, and have all three working together. And that's all I wanted to say. I agree with a lot of the things that you're saying. The one thing, Kate, what you were saying about the backlog in litigation, I have to agree with Stefanie, I have seen a huge increase in the backlog when litigations become a priority over the backlog, because resources from processing go to the litigation, because I don't have staff for both. So you're basically stealing from Peter to pay Paul, and it all is the same. So that's all I wanted to put out there for you guys.
Alina M. Semo: All right, thanks, Catrina. I'm going to move over to Bobby, because we're running out of time soon. Bobby, you're next.
Bobby Talebian: Good morning. I'll be really quick. I just want to thank all three of you. It's really helpful to get your perspective, and it really helps inform us on what you're seeing, your frustrations, and challenges. I think one of the themes, there's a lot, but one of the themes, communication, I couldn't agree more. And we stress communication in a lot of our guidance and our training, and have found agencies that have expressed it as a best practice, and explained how it's benefited them and their Chief FOIA Officer reports. At the ASAP [American Society of Access Professionals] meeting that I went to, I really enjoyed a panel discussion, which the requester panel explained some of the great examples of how communication was helpful, and how maybe it's not helpful when there's no communication.
And so we definitely stress that at the administrative level and in litigation. I can tell you, the last thing we want is to use our priceless resources and be in litigation with you. We'd much rather negotiate, and have a simpler request that we can process and get you the information that you want. So I had one question then one more point. The question I had for you is, what would you say is a way that we can work with you to make a complex request simple? Often there are requesters that are very helpful in communicating with agencies, and narrowing down the scope of the records they want, and understanding, based off the communication with the challenges of maybe a particular search is, and whatnot. And we've seen that very successfully in my office. I've also heard a lot of success in other agencies that have, like you know, one agency has a negotiation team reducing millions of pages of records that they needed to process. But that was my question.
The other thing I wanted to note was, and you had mentioned that the foreseeable harm standard was Congress responding to a perception of overuse of Exemption 5. I just wanted, the history of it, just wanted to bring... That the foreseeable harm standard was DOJ policy. And for a number of years, as it was policy, we would ask agencies, "Do you have a process for it? And give us examples of when you're releasing information as a matter of discretion, because of the foreseeable harm standard."
I believe Congress codified it so that the DOJ policy standard wouldn't shift back to one that wasn't a foreseeable harm standard. I can tell you that we very much consider it in our analysis, and the AG guidelines that we just released now ask agencies to, in their response letters, affirmatively say that they have considered the foreseeable harm standard when exemptions are applied. And also that FOIA request service centers, FOIA employee public liaisons, if a requester has a question about what is the exempt...why are you applying this exemption, or what's the foreseeable harm? That they should communicate that. But again, I just wanted to thank you all, and I would really love to hear your insight on what actually works when your agency is communicating with you, and we're able to make a complex request a little bit less complex, or hopefully simple.
Katie Townsend: I'll jump in there, I’ll push back a little bit on that. I mean, yes, yes, the foreseeable harm standard was part of the Holder memorandum, and it was related to when DOJ would defend in litigation, certain withholdings. That is, I think, fundamentally different. I mean, yes, that's the genesis of it, but I think that's fundamentally different from having a statutory mandate that is then enforceable under a de novo review standard in litigation. And Congress is intent, and I think the legislative history is pretty clear to simply do more than... That the foreseeable harm provision was intended to do more than simply sort of solidified, then DOJ policy. So I take your point, but I think I'd push back on that a little bit in terms of what the provision as codified in the Act does and was intended to do.
I appreciate very much your point about communication, and I do think that that is an area that is incredibly important, and I think especially for the sort of, I'll call them constituencies, the folks that we work with, the journalists and news organizations. I think oftentimes, time is of the essence in terms of the requests that we see journalists making. And that's true even of the longer term investigative projects that folks use FOIA for I think most effectively. They still are very often willing to have a conversation with a FOIA officer or a FOIA professional within an agency about concerns about the scope of a request or searching for certain types of certain record systems versus other record systems or things like that, that they can make both life easier for, I think the folks who are processing the request but also potentially speed up the process. That's something that the requesters that we work with are always very interested in doing. And so I think that having a willingness to do that is very helpful.
One of the things that we've done in our own request, I can think of some requests we've submitted recently is give agencies an option to give us information to the extent that they can pull that information, as opposed to giving us the underlying records themselves. So for example, we've done some, what I would call kind of research FOIA requests, aim to get more information about Glomar, neither confirm nor deny, responses at different agencies. And one of the things we've done is said, "In the event that it's easier for you to just tell us the information we're looking for, rather than try to find all your responses that use the words neither confirm or deny, we're willing to accept that because we just really want the information.”
And that kind of flexibility, some agencies feel like they can't do that, but we've had some agencies who have taken advantage of that. And I think that kind of flexibility on the agency side too can also be a really beneficial, kind of that two-sided discussion. But you can never do that unless you're having that discussion to begin with.
Ryan Mulvey: So if I could...
Anne Weismann: You go first Ryan.
Ryan Mulvey: Okay. Yeah, it's just real quick. I was going to say, there's really good guidance that OIP issued 1994, 1995. So foreseeable harm, the presumption of openness comes from the Holder memo, but foreseeable harm goes at least back to a memo that Janet Reno I think issued. And it was the same basic idea that the DOJ wasn't going to defend exemptions. And I agree with Katie that that's fundamentally different, but OIP... Or was it not called OIP back then? I think it was called something different. But DOJ issued guidance building that out and they went through at least the main Exemption 5 privileges, attorney-client, attorney work-product, deliberative process, and they put out a bunch of factors that ought to be considered as part of the foreseeable harm standard. Since codification of the presumption of openness, it seems to me that that guidance, there hasn't been new OIP guidance of the same sort, at least as far as I'm aware.
And I would like to see something like that come back because those factors aren't actually being considered anymore. I'll give you one example. Passage of time is one of the factors that's considered in the 1994 guidance, but agencies regularly argue now that passage of time doesn't matter for foreseeable harm. For example, with deliberative process because the only relevant passage of time is now the 25-year sunset provision. And we see new arguments now that for attorney-client privilege, that really there shouldn't be any foreseeable harm, that it's self evident, that the fact that the privilege applies in the first place ends the conversation. That is the foreseeable harm. And the same argument has been made with Exemption 4. It seems the case law is kind of going in favor of the requesters and is sort of resurrection of the substantial harm test that the Supreme Court eliminated, which is a fascinating discussion in and of itself. But I would love to see the old OIP guidance resurrected so that foreseeable harm is strengthened without needing to tinker further with the statute.
Bobby Talebian: Thanks Ryan. And we do have, I'm not saying that new guidance wouldn't be bad, but we do have more, even more recent guidance that lays it out after the Holder memo.
Anne Weismann: On your point about complex requests and working with the community, I wanted to identify a problem that I didn't mention at the outset but intended to. And that is the huge discrepancy and it typically happens in litigation, between an agency's initial estimate of responsive documents and the number of documents at the end of the day that end up being responsive. I've seen cases where there are estimates of tens of thousands and we end up, "Oh, it was really only several hundred." And I think this addresses in part the issue of complex, what makes it complex, what is going into an agency's initial assessment. It's a real problem because courts are not inclined to challenge. When we try to, they just accept it at face value, an agency's representation that it has a hundred thousand potentially responsive records and need so many years to process it. But I think agencies need to do a better and more accurate job of identifying responsive records because I just... I'd like to hear from all of you. I don't understand how a vast pool of documents gets reduced to something much, much narrower.
Are agencies doing deduplication? What search terms are they using? Are you talking to requesters about those search terms? I just feel like, and I feel like the incentive is on the agency to overstate, especially in litigation because that gives them a time cushion that they wouldn't otherwise get.
Bobby Talebian: Well. Yeah, I would say this is an area where I think communication is key, because I think there's a lot that goes into, and depending on when an agency is looking at the request and the information they have at that time, that really factors into whether they think a request is simple or complex. So the track should be fluid. So [at] intake, you might get a request that on its face looks simple or on its face looks complex, but after you do the search, you understand, "Well, this doesn't involve that many custodians" or "It's not that many records." And so that switches. I can tell you, the tracks for us are very important so that we keep the process going. We want it to work for us, but we definitely stress communication to explain to you at any point why something is simple or complex. And as far as why maybe something...and I don't know every specific case might be different, but I could think of one example where in doing initial search, we'll probably try to cast a wide net so that we can capture everything that could possibly be responsive and do a very thorough search. But then in reviewing those records for responsiveness, realized that a lot of them weren't responsive. And so that could be the reason for the discrepancy. But then again, I think that's where communication is key and I agree with you there.
Alina M. Semo: All right.
Katie Townsend: I wanted to mention something that I also intended to mention earlier but did not, and it goes to this question of responsiveness and responsiveness review. One of the things that we're seeing in litigation that I think is a frustration, it's not all agencies, but it's certainly a number of agencies that we've seen this with, is the conducting of once you're in litigation…if we're litigating, if we file a lawsuit and we're litigating a case where there hasn't even been a search conducted yet, at that point a search will be conducted and then the documents will be processed and reviewed. We're seeing situations where there will be a separate responsiveness review before there's any review for exemptions of withholdings. And that's something that I think has added an additional layer of delay in terms of our clients or our organization getting any records at all. In other words, there's this entire responsiveness review and then a turnaround, and then a secondary review.
So the same documents are getting reviewed twice, first for responsiveness and then for exemptions. And I've tried to wrap my head around why that's an efficient process. I think to my mind, you would review a document if it's responsive, that you would review it for exemptions at the same time. But I will note that as an issue that we have seen that I, for the life of me cannot understand why that's a good practice.
Alina M. Semo: All right, I just want to note the time. It's 11:47. We were scheduled to take a break at 11:30. I knew this was going to be a lively conversation. I've polled some of you by chat on the committee to ask if we could skip our break. I've gotten a bunch of thumbs up. I hope everyone else can agree to that because we do still have two folks in queue, Jason and Tom, both of whom promised to be quick. And then we'll move right into our subcommittee report. And also I want to remind everyone, Katie has a hard stop at noon. So Jason, you're up next.
Jason R. Baron: Thanks. Well, the reason I recommended this panel take place is because you all are extraordinary, so are the organizations that you're associated with and other public interest groups. And I would like to see the culture of the government honor public interest groups in their good faith efforts to have access to the people's records. I have two questions. One is, have you encountered problems if you've asked for electronic messaging communications apart from email? Because there are so many apps and texts that are out there. And what are agencies doing to respond on that point?
And then secondly, I think you all know that I've been associated with the Capstone email policy for NARA. The unintended consequences or maybe the known consequences have been tens of millions or even hundreds of millions of email records, and perhaps electronic messages folded in, in the future that are going to be a problem for agencies to process. Even very narrow specific requests are going to generate hundreds of thousands, if not millions of hits. And I'd like you all to think about and respond to a strategy that I believe would work, which is that you all in the public interest groups you represent, ask as an interim matter to have a sample of those hundred thousand hits and look at a hundred documents or 500 documents and see what redactions there are, and then make an evaluation as to what should be done with that request. I think that would be a more efficient process. So those are my two questions.
Ryan Mulvey: I'm happy to jump in first. Working backwards, I have often requested that agencies give sample sets to try to narrow requests. Usually, especially if it's in litigation, the answer is no, and the agency won't do it. I don't understand that. I sometimes have better luck if the agency wants me to exclude certain types of records because it thinks that they're not going to be responsive. But in terms of just in general where everything is responsive and we're trying to narrow down the keyword search or something like that, then I don't have very much success with that. It's only when they want me to agree to throw something out.
On the instant messaging, text messaging, electronic messaging, so I'll post the link. My organization, some of my colleagues did a report on this together, Cause of Action and AFPF, about agency compliance and the extent to which they have good guidance on treatment of electronic records in light of NARA's excellent guidance. It's been a few years since that report came out, so I don't know what might have changed since then, but generally what we saw was that agencies had deficient guidelines for treatment of these types of records and that when we were requesting them, we weren't getting them. And this was all before even the more recent problems with disappearing messaging apps and encrypted messaging apps and all of that sort of stuff. But I will post that link so that you can all take a look at the report.
Anne Weismann: On a related point, when I have asked, when there seems to be evidence that agency personnel are using private email accounts to conduct agency business, and we have asked that at least the employees be asked to search their private email accounts, agencies are refusing to do that. And I think there is some uncertainty and disagreement about what an agency's obligations are vis-a-vis an employee who uses a private email address to conduct agency business. So that's another area of concern that I have. And on your point about sampling, I think it's a good one. I will say that this isn't quite that, but I am often very open to doing what I call sort of staging a request, starting out with seeing what an agency has to a much narrower aspect of the request. And if that satisfies me, I make it clear I will go away. And if not, usually they want me to file a new request and I say, "Fine, just put me at the head of the line." And they say yes.
But certainly I think that trying to carve out a smaller subset is often the best way to at least get something, because something is better than nothing every time.
Katie Townsend: We've had some success actually. I would say minor success, I would say in litigation and working with agencies to narrow requests once in litigation by asking for samples and getting sampling. And we try to, I will say from our perspective at the Reporters Committee, our attorneys do try to make proposals that we think will benefit our clients and the agencies in terms of things like, not just as Anne said, sort of staging the way you make requests, but also trying to stage, releasing certain records before other records or processing certain records before other records, and doing sampling and those sorts of things to try to see if we can expedite, get us closer to the resolution of the case faster. So I think I'm always open and I think all the attorneys that work with me are very always open to discussing those things. And I think that goes right back to the point about communication. We talked a lot about communication in the administrative level with agencies and requesters, but I think having that kind of communication once you're in litigation can also be really, really beneficial to everyone involved.
I'd say on the sort of non-government email and other kinds of communications point, it's difficult. There is some case law on this. So there's the CEI (Competitive Enterprise Institute) [vs] OSTP (White House Office of Science and Technology Policy) case in the D.C. Circuit, but it really looks at an agency, former agency head, so really people high up in the agencies. It's really hard to know what you don't know. And so it's really difficult to say whether or not when we make a request for sort of all communications, whether we're not we're getting all communications or whether that's just going to be an email search. And it's difficult unless you have some indication from say other records that have been released to you that there are other kind of communication systems being utilized... That was the case in the OSTP case...for you to know. And so I think that it's difficult. I would be uncomfortable even saying we haven't had a problem with that because it's difficult to know kind of what the scope of that is without really knowing what the scope of that is.
Alina M. Semo: All right, thanks. So Tom, you're up next and you're our closer. So go ahead please.
Tom Susman: Thanks. Tom Susman. Great insights, great examples, great recommendations. Quick personal view. Legislation, heavy lift. Culture change, very heavy lift. That's just based on only 50 years of experience before you. One of the things, I think a number of you, Ryan and Anne had both mentioned things that OIP could do and I think I'd like to sort get you to further focus on those after, perhaps to supplement the record because we do have Bobby as a permanent participant of this committee. And so we have a captive audience. The term OGIS hasn't come up this morning. And yet, all of you have talked about the procedural problems, delay, no answers, no negotiations, no communications. And OGIS expertise isn't in applying exemptions, it is in working with agencies and requesters to try to facilitate expedition and responsiveness of the process. And especially Anne, you mentioned a lot of the problems you have getting any response at all, have you ever tried OGIS to be of assistance? And what's been your experience and should I put that on the shelf of moderately heavy lift?
Anne Weismann: That's a very fair question and I will admit I haven't in those instances where it's simply trying to get a response from the agency. As I mentioned, like POGO for example, I don't do it, they have someone on staff who will periodically call or write or email an agency and say, "What's the status?" And they get no response and they get no response. We could turn to OGIS. I feel like OGIS then would have to get involved in an awful and large number of requests. I've always viewed OGIS as more available. It's not that they're not available for this as a recent... When maybe it's the administrative level, you're really stuck on a legal issue that you think the agency is just not seeing correctly. But it's a fair point. I don't know if OGIS wants to get involved on a day to day basis with all of these requests, but if they have the resources, it's certainly worth considering.
Tom Susman: Certainly. This is Tom again. It certainly seems to me that as opposed to litigation, that's what OGIS was originally established, is to try to diminish the need to litigate these issues and we ought to at least give them a chance.
Ryan Mulvey: So I had mentioned OGIS actually earlier with reference to some of the committee's deferred recommendations from past terms and I think there's a lot of potential with OGIS, and I think the OGIS staff are wonderful, but there are limitations to what OGIS can do. I don't use OGIS. I did, when it first started. The mediation stuff, I tried it, and I got a great outcome in one case, and then the agency just never...they didn't do anything, so I had to sue anyway, right? Because OGIS can't enforce. Nothing's really binding with the mediation. So unless that changes, and agencies aren't going to want to see that, and OGIS as it's currently staffed and funded, I think it's fair to say would be incapable of taking on that sort of role. It would need to be tripled, I don't know, not even tripled.
It'd need to increase 10 times to be able to handle that sort of docket. It would just be a completely different type of organization. I'd love to see something like that. Again, maybe that's non-exclusive to the regular administrative appeal process and litigation and all that. But there would need to be a lot of change. Where I think an easier reform where OGIS could have a...it already has authority to issue advisory opinions. I'd love to see that beefed up and to see a lot more, even to the point where members of the public, there's a formal process for them to request regardless of whether they're in an active dispute, to request guidance, be issued government wide, and to see that sort of process. But that might start a turf war with OIP, I understand. So that needs to be worked out in the statute, but I think there's a lot of potential with OGIS.
Alina M. Semo: Okay. Well on that note, I know that as I said, Katie has a hard stop at noon. We've still got reports that we need to hear from our subcommittees. I just want to thank our wonderful panel. I think we're going to have to have you guys back because there's still probably a number of questions that folks haven't had a chance to ask. So please consider that possibility. And please, committee members join me in a round of applause for our great panel. Thank you. I really appreciate it. Okay, I'm going to...
Anne Weismann: Thank you for having us.
Alina M. Semo: Thank you Anne. Appreciate it. Thanks Katie and thanks Ryan. Okay, I'm going to keep moving. Michelle, could we please go to the next slide? Skip the break slide. So we're going to hear some subcommittee reports now that we've got our three subcommittees. I am just extremely pleased with all the work that's already begun among the three subcommittees. I just want to commend all the committee members for signing on to join at least one subcommittee. I think Michael Heise gets the prize, he's a member of all three. So we should call him after that as a shining example. But I know a lot of you have done a lot of work already and I just want to thank you for that. So I'm very excited about what lies ahead. So with that preamble, let me turn it over please to David Cuillier and Catrina Pavlik-Keenan for the Implementation Subcommittee to give a report. And I believe the next slide, Michelle, is their mission statement that they've been working on.
David Cuillier: Thank you Alina. Yeah, I'm Dave Cuillier, I'm an associate professor at the University of Arizona in journalism and thank you all and what a great discussion today. Outstanding. Our subcommittee has gotten rolling and it's a little different than I think a lot of subcommittees in the past in that we're really going to take a look at what's happened over the past bunch of terms from the start, and assess and see what's been accomplished and what still needs to be followed up on. So we are starting to develop working groups. Hopefully I'll have those in the next month and rolling. Go and go ahead to the next slide.
And it's hard to say what we'll end up with because it could change as we go, but those are just some of the things that maybe we hope to finish the term with. We'd like to summarize everything for ourselves and future terms and everybody else. We have 51 recommendations that have been put forth since the start of this committee. And so that's something that is worth boiling down. I think we also would like to highlight some of the positive outcomes of this work over the years and what agencies might want to take notice of and see that their fellow agencies have used successfully, and make recommendations for what still has to be done.
OGIS has done a great job putting these 51 recommendations on its dashboard, on its website, and some of those things are noted as complete, some still in progress. We want to take a really close look to see if things are done to what folks would think would want to be finished. So that and maybe foster more dialogue and getting this out there. That's kind of a summary of where we're headed. And of course it could change as we go. I think as we look at certain issues, some things may rise to the top. Anything I missed, Catrina or others? We have 10 subcommittee members, so a beefy subcommittee. It's going to be fun. Anything I missed? All right, thank you everybody. Good times.
Alina M. Semo: Okay, thanks very much Dave. Kirsten, did you want to proceed with the comment?
Kirsten Mitchell: Sure. This is Kirsten Mitchell, Designated Federal Officer. I just wanted to point out that we have published two assessments and the dashboard is not yet updated. And both of these were in response to prior FOIA Advisory Committee recommendations. One is 2020-01, our assessment of Agency FOIA Websites. We published that this week. And the other one, 2020-07, was about FOIA in Agency Performance Plans. That I believe we published at the end of September. And as I said, the dashboard has not yet been updated, but we will work on that very soon. So thank you.
Alina M. Semo: Okay, great. Thanks for that update. Okay, let's shift gears to the Modernization Subcommittee. We have Jason Baron and Gorka Garcia-Malene, our two co-chairs. I don't know who's going to be doing the speaking. So over to both of you. Jason or Gorka?
Jason R. Baron: I think Gorka is going to go first.
Alina M. Semo: Go ahead. Gorka, you're on mute. You are still on mute.
Michelle [producer]: Gorka you are unmuted, you may go ahead.
Alina M. Semo: Nope, still on mute. Wonder what's going on. Michelle, maybe you could work on that. Jason, can you step in?
Jason R. Baron: Sure. You could put up the slide. Jason Baron, I'm a professor of the practice at the University of Maryland's College of Information Studies. If you want to put up our mission statement, that would be good.
Alina M. Semo: Next slide please. Thank you.
Jason R. Baron: Well, we have had two working groups within the subcommittee.
Gorka Garcia-Malene: Sorry about that. Can you hear me?
Jason R. Baron: Do we have Gorka?
Gorka Garcia-Malene: Yeah, sorry about that.
Alina M. Semo: We hear you.
Gorka Garcia-Malene: I was not on mute, but I guess here we go. All right. Good morning everyone. Jason, do you mind if I barrel through?
Jason R. Baron: Go right ahead.
Gorka Garcia-Malene: All right. Well again, good morning. My name is Gorka Garcia-Malene. I'm the FOIA Officer here at the National Institutes of Health and I co-chair the Modernization Subcommittee with Jason Baron, who was just speaking a moment ago. Since the last Advisory Committee meeting on September 14th, the Modernization Subcommittee has accomplished quite a bit. In that time, we have met five different times to get the subcommittee off the ground. We've explored potential projects on how to improve FOIA from each of our valuable and varied vantage points. And we've decided to organize our efforts around two working groups. And the first one is a Process Working Group that's led by Adam Marshall of the Reporters Committee for the Freedom of the Press, and Michael Heise, who is the Equal Employment Opportunity Commission. And the second working group that we're organizing our work around is the Technology Working Group, and that's led by Ben Tingo of AINS. At this time, our working groups are evaluating, and prioritizing several well defined, very specific projects that they want to work on during this early part of the Advisory Committee term.
In addition, we prepared our mission statement, which we can see. I think it's on the slide now. Yes, there it is. Sorry for the noise in the background. In brief, as you can see from the slide, we seek to upgrade the administration of FOIA by focusing on two main areas. That's examining current gaps in technology, and technology has come up quite a bit, quite a bit just during this meeting. So, we understand the importance of the technology and FOIA, and what we look to do is explore ways in which the interaction with the FOIA requester community can be revamped, and improved, as well.
So, it's those sort of two main areas. Gaps in technology, and outreach and conversation with our requester community to improve FOIA. So, for the purposes of enabling the FOIA Advisory Committee to recommend changes, the subcommittee intends to take several actions. The first one is conducting a review of the current status of government FOIA technology initiatives. In other words, it's hard to advance if we don't understand the context, right? We'll also be engaging with a requester community, and soliciting feedback on whether agency adoption of specific technologies would have a positive impact on the FOIA process. Right? So, try to get the public, and just outside stakeholders, to give comments on what technologies would actually help them.
And we also intend to examine the improvements that can be made in specific areas like determination letters, large request best practices, default search protocols, and agency response timeframes. And really, the key here is that we really are already, at this early stage, working with well defined ideas, well defined projects. And right now what we're doing is prioritizing what to do first.
So, we're meeting again tomorrow to move these projects forward. And I just want to take this opportunity to thank all of you who are involved in the Modernization Subcommittee. You're dedicating a lot of time to these efforts, and I think we're off to a great start. So, that's our report. Jason, did I miss anything?
Jason R. Baron: Yes, thank you, Gorka. That was great. I want to say something that as Alina knows, and many of you know, the FOIA Advisory Committee really had its origins in the second US Open Government National Action Plan that recommended the establishment of a FOIA Modernization Advisory Committee. And so, I was pleasantly surprised that the word "modernization" was there from the start. And let me just read you what that action plan's recommendation was. It said, "Improvements to FOIA administration must take into account the views, and interests, of both requesters and the government. The US will establish a FOIA advisory committee composed of government, and non-governmental members of the FOIA community to foster dialogue between the administrator, and the administration, and the requester community, solicit public comments, and develop consensus recommendations." We've done a great job through the years, with Alina's leadership, to make recommendations. David said there are 51 recommendations.
What I think our Modernization Subcommittee would like to do, in addition to thinking about additional recommendations, is to really focus on the citizen engagement part, the dialogue with the requester community. I know Alex Howard has pushed that in subcommittee, and I support it wholeheartedly. The outreach from this advisory committee as a whole, to the requester community, and to get a dialogue in that way, I think is something that we should have in mind during this term. And so, on the subcommittee, we are thinking about an outreach that consists of, perhaps, interviews, a survey, and a general quest to the public at large for comments. And I would say to all those listening, watching, that we do seek your input this term as part of what you believe modernization of the FOIA would entail. And we will be conducting that outreach along with all of the other activities that Gorka mentioned.
Alina M. Semo: All right, thank you very much Jason. If that concludes your subcommittee report, I'm going to move to, last but not least, the Resources Subcommittee, Ginger Quintero-McCall and Paul Chalmers are our co-chairs. Ginger, and Paul, over to you.
Ginger Quintero-McCall: Thank you Alina. First of all, we are, in fact, the subcommittee with the least number of members. So, we would love to have a few more. I heard a couple people speak to the resources issue during this meeting. Some of you seem to have a particular zeal, or passion for it, so please feel free to join us.
We met to brainstorm some ideas about where to begin. And we thought that the most useful place to begin would be to conduct a survey of FOIA officials in the government. We want to look at people at a variety of levels of leadership. So, we are working with Alina and her office to brainstorm a list of officials that we will then go and do one-on-one interviews with. We had done this before in a previous iteration of the FOIA Advisory Committee, and we found it to be fruitful. So, we think this would be a good place to start, and potentially to follow up with the survey. But first, to start with these interviews with more open-ended questions. Over the next few weeks, we're going to start brainstorming questions, and then we're going to begin conducting the interviews.
We talked in our meeting about what can we do about resources legislatively, what can we do via OMB memo or executive order. But first, we want to try to gather some more information before we start thinking about where we would want to make recommendations. So, that is our plan going forward. Paul, did you have anything to add to that?
Paul Chalmers: Yeah, I was going to say that we heard from the panelists today that resources are an issue, and I think most of us who are on the government side know that resources can definitely be a challenge due to, in large part, prior work by prior iterations of the committee. There are some things that are available. There's now a job series of government information specialists that are available to do FOIA work. There are technologies that are out there, and we've got another subcommittee that's looking into technology as well. And the challenge is, figuring out what do specific agencies need in order to meet their needs, and is there something that we can do to help them figure that out. And then to go get what they need.
So, that's kind of how, I think, one of the challenges is, that this subcommittee will be looking into. We're more than willing to hear what anybody has to say if they've got some constructive suggestions along either of those lines of thought.
Alina M. Semo: Thanks, Paul. And thanks, Ginger. I definitely want to echo Ginger's comments. They could definitely use a couple more volunteers, so don't be shy. And Ginger's doing a great job of trying to coordinate the next meetings. And not to put you on the spot, Ginger and Paul, but you guys are working on a mission statement that hopefully will be available maybe early next year.
Ginger Quintero-McCall: Yeah, I'm going to take a stab at it today or tomorrow. Sorry, I've been sick.
Alina M. Semo: Perfect. I'm so sorry, but that's perfect. Thank you very much. I want to just ask, do any of the committee members have questions for any of the subcommittees? Anything that spurred any questions that might have come up as everyone was presenting? Michael?
Michael Heise: Thank you. This is Michael Heise of the EEOC. The three folks that spoke to us today, they mentioned this changing the culture, and which I found really fascinating, and I'm not sure, okay, here's my question. What subcommittee would a culture change be in? I mean is it resources? Is it modernization? Is it implementation? It's fascinating to me though, because I'll just say, just real quickly, I think it's probably super hard to change any culture, but it's not impossible. And sometimes changing the law, they had talked about a fundamental overhaul. Sometimes changing the statute can change the culture or at least precipitate the change. I mean that's true with anything I think.
And sometimes changing the amount of resources made available. So, augmenting the wherewithal of an agency to do its mission, with respect to FOIA, could also change the culture. So, I'm just wondering what subcommittee would... I think of such a big, fascinating issue like culture change, if that were to become a recommendation out of the whole committee, what subcommittee would have jurisdiction over that? I think it's kind of an important thing to address. Anyway, that's it.
Alina M. Semo: Michael. Great question. Can I ask the co-chairs? Anyone want to weigh in on that?
Ginger Quintero-MCall: I think that sounds like an implementation issue, but I don't know. What do others think?
Kirsten Mitchell: Alina, this is Kirsten. Alex Howard has put in the chat that he might suggest that a cultural change might be a priority or mission for the entire committee. So, I just wanted to get that read into the record.
Paul Chalmers: This is, oh, go ahead Alex. I'm sorry.
Alex Howard: Yeah. Alex Howard, Digital Democracy Project. I was being naughty about putting something in the chat instead of getting in there, and saying it. I really am still finding my way along in terms of how this committee should work or be constituted, etc. But it did strike me that culture is an overarching priority that theoretically we all might be invested in. That said, I would plus-one what Ginger said about implementation. 'Cause I'd said, "Say implementing a Freedom of Information Act is really about culture change." It's certainly true about open government writ large, and I was very grateful to Jason for noting that this committee's existence is the result of the second National Action Plan for Open Government back in the Obama administration. When there was leadership from the top that said open government was something that's so important to us that we want to create an entity that has civil society next to FOIA officers hosted at [the] Archives with DOJ being part of it, to have an ongoing place to push on FOIA. And I think it's one of the most concrete outcomes from an open government plan that I can point to, and that the thing that we might all be looking to and asking is, why haven't we been involved in the open government plan co-creation process for the United States government over the last year? I think we all could collectively be pushing on the administration for it to lead on culture change knowing that the 12 of us with theoretically OIP, and OGIS abstaining, probably can't do that on her own, although I'm looking forward to working with you to see what we can do.
Alina M. Semo: All right. Thanks, Alex. I think Gbemende, did you want to make a comment?
Gbemende Johnson: Yeah, really quick. I agree with Alex that I think culture kind of permeates all of the subcommittees, but thinking about what Anne said as well, I can definitely see it also playing a part with resources. Not to give resources more work, but it seems like there have been practices adapted because of a lack of resources that agencies are trying to find ways to work to deal with this that are causing challenges, and difficulties. And I think that's common with organizations, they lack strategies, when they lack resources, that build into the culture of how they look at incoming requests. So, definitely make a push for resources.
Alina M. Semo: Okay. All right. Ginger and Paul, you guys will take that under advisement, and discuss it at the next subcommittee meeting. Thank you so much. I really appreciate that. If I don't have anyone else jumping up, and down, I'd like to move to the last part of our meeting to [the] public comments section. I'm just looking around. No one is waving at me, so that's good.
Jason R. Baron: Well, I'd like to make a comment, Alina.
Alina M. Semo: All right, Jason, quickly please.
Jason R. Baron: Jason Baron. I think Michael's point is well taken, and our speakers today are talking about a transformative change in FOIA. I see no reason why the committee, as a whole, couldn't discuss this issue as a segment in a future public meeting to, for with homework, which is that we all think about culture change, and that we all discuss it publicly.
Alina M. Semo: Okay. Jason has issued a challenge to everyone. So, we can certainly put it on the agenda for our next committee meeting in March of next year. But I do encourage the subcommittees to also discuss this issue because I think it's important. Thank you.
Okay, just want to move things along. We've reached the public comments part of our committee meeting. We look forward to hearing from any non-committee participants, at this point, who have ideas or comments to share, particularly focused on the topics that we've discussed today. All oral comments are captured in the transcript of the meeting, so we will post the transcript as soon as it's available. Oral comments are also captured in the NARA YouTube recording, and are available on the NARA YouTube channel for later viewing. Just a reminder, public comments are limited to three minutes per person.
First, I want to ask my colleagues, Dan and Kirsten, to let me know and let all of us know if we've received any questions or comments via Webex chat, during the course of our meeting, that need to be read out loud.
Kirsten Mitchell: So Alina, this is Kirsten. We've had quite a number of chat comments from our dedicated attendee, Mr. Hammond. He's submitted quite a number of written public comments to the advisory committee, and those comments are posted on the OGIS website. The only other thing I will say, before turning it over to Dan, is that just as a reminder to everyone tuning in, working groups of the FOIA Advisory Committee consist of advisory committee members.
So, that's all I have.
Alina M. Semo: Thanks Kirsten. Dan, anything else?
Dan Levenson: We had a comment from Andrea, who works for a large water utility. This commenter suggested that a platform, or portal, from which FOIA requesters could get information, would be a good idea, would be useful for their job. This is an idea referenced by Carmen Collins, and the commenter suggests that the FOIA platform, or a graphical user interface for communication, could include uploading documents, and timelines as well as the status of requests.
Alina M. Semo: Okay.
Carmen Collins: Just to intercede, this is Carmen with DOD, I did not suggest that. Just to clear that. I think, I don't know, I was speaking maybe, but I don't believe I did. Just to make sure.
Dan Levenson: Excuse us. I'm sorry.
Carmen Collins: No problem at all.
Alina M. Semo: Okay, thanks very much. Dan, anything else?
Dan Levenson: That's all we have captured.
Alina M. Semo: Okay. Michelle, can I ask you to provide instructions to any of our listeners who would like to make comments via telephone?
Michelle [producer]: Yes, absolutely. To present an oral comment via Webex audio, please click the raised hand icon on your Webex screen, which is located above the chat panel on the right, to place yourself in the question queue. If you are connected to today's webinar via phone audio, please dial #2 on your telephone keypad to enter the comment queue.
As we enter the public comment session, please limit your comments to three minutes. Once your three minutes expire, we will mute your line, and move on to the next commenter. Each individual will be limited to three minutes.
Alina M. Semo: Okay. Thank you, Michelle. Do we have anyone waiting to be heard on the telephone lines?
Michelle [producer]: Yes, we do. Go ahead, and unmute. Caller, your line is unmuted. You may go ahead.
Bob Hammond: Yes, good morning. This is Bob Hammond. So, life is good, family, new puppy at home, grandkids excited about Christmas. Meanwhile, FOIA is on life support, and is going the wrong direction due to complete lack of FOIA compliance oversight by DOJ, OIP, and OGIS. And no mediation whatsoever by OGIS, despite their misleading inaccurate reports to Congress and President.
Bobby, and Alina, please provide full funding figures to this committee. US Associate Attorney, Vanita Gupta, and Acting Archivist Debra Wall, please find money now, or certain functions need to go elsewhere. Agencies should include line item budgets in their annual budgets, which holds agency heads accountable. I've talked to Congress, they're very excited about seeing that. Put it in there, say what you're going to do with it, and we'll see if you get it next year.
Without effective oversight, certain agencies engage in massive false FOIA reporting, violations of law, and fraud. Annual FOIA reports that raw data, and foia.gov data, are massively false, and unusable for any purpose, including GAO testimony to Congress.
Bobby Talebian, yes or no, no filibuster. Is it DOJ's policy not to defend agencies where no foreseeable harm is articulated? Yes or no?
Bobby Talebian: That is in the agency’s guide. That is the department's policy.
Bob Hammond: And see my multiple public comment presentations of foreseeable harm standard? I'm extremely interested in working with the committee on this.
Bobby, new subject. Is there any circumstance where an individualized tracking number is not required for a FOIA request that will take more than 20 days to process? Your website says individualized tracking numbers are mandatory. Yes or no?
Bobby Talebian: Individual tracking numbers are required for any request that needs, that goes beyond, is not responding, within 10 days, as a matter of administrative…. So, we ask that they provide a number for each request.
Bob Hammond: Got it. Not ask, it's mandatory and it's in the FOIA statute. Absent OGIS mediation, cost of litigation ensued, and it's on the rise. I have been in court seeking Walter Reed National Military Medical Center's FY 2013 annual FOIA reports for nearly seven years, with no end to litigation in sight, unless all involved parties reach agreement on the 21st. This includes Walter Reed, and Navy BUMED FOIA Officers, that's B- U- M- E- D, Judy Bizzell, and Della Garcia, Walter Reed's Mail Services Supervisor, Nikki Gully, and DOD’s FOIA officer.
Alina, new subject. Yes or no, no filibuster. Is Navy required to provide me estimated completion dates for my FOIA request, and appeal? Yes or no?
Alina M. Semo: If you have requested an estimated data completion, yes. The statute requires that the agency provide you an estimated data completion.
Bob Hammond: Okay, so Ms. Semo, you unlawfully recuse mediation without even contacting…
Michelle [producer]: Mr. Hammond, thank you very much for your comment. Your three minutes have expired, sir. Thank you. All right, we are moving on to the next commenter in queue, if you're ready. Caller, your line is unmuted. You may go ahead and make your comment.
Steve Buckley: Thank you. This is Steve Buckley. I want to make sure you can hear me.
Michelle [producer]: Yes, we can hear you.
Steve Buckley: Okay. Thank you very much. Yes, Steve Buckley. Former federal employee, 25 years in DC. Over that time I worked at five different federal agencies, and a lot of it had to do with public engagement. The idea being that citizens who were being affected by government decisions, infrastructure projects being one example, need to be informed, and engaged in that decision making process. And so, I'm a NEPA nerd. Somebody was saying earlier they were a FOIA geek. To me, it's peanut butter in chocolate. They go together. And being informed, and engaged go hand in hand. You can't be one, and not the other. So anyway, I wanted to endorse, and reemphasize what Alex Howard said earlier about an opportunity, a window of opportunity here, which opens occasionally for open government. The National Action Plan version 5.0 is being drafted, and comments are due tomorrow, I guess by close of business, maybe 11:59 PM Eastern Time, whenever.
And so anyway, open.usa.gov is the link to that. I would say go there to the session public engagement. There's a link there to the session on Tuesday, and if you scroll down, you'll actually find an email list, a public email list. And I would encourage anyone here who is listening, who has any thoughts on how transparency, and FOIA, and so forth, complement the whole open government ecosystem, to put their thoughts there, and also read other people's thoughts, including Alex's there, as far as what's going on with open government. Like I said, it's a Google email list, so anybody can join, anybody can read it, and so forth.
So, that's really the key to find out what's going on. Ironically, with the open government movement, which had been in hibernation, essentially, up until about a month ago when apparently somebody in the White House decided to throw a bunch of bodies at it. And so, they're on a lickety-split timeframe to put something out before the end of the year as far as a draft, I guess as far as the final goes.
So, that's my thoughts. I appreciate what you're all doing, and I'll put something in the chat as far as a more direct link in case people get lost. Going to open.usa.gov. Thank you very much.
Alina M. Semo: All right, thanks, Mr. Buckley. Michelle, do we have anyone else in queue who has not already spoken?
Michelle [producer]: Yes, we do. Yes, we do. Thank you, Mr. Buckley. And now we're moving on to the next caller. Mr. Garland, your line is now unmuted.
Chad Garland: Thank you. Chad Garland here in my personal capacity on a matter of public concern, which is namely a Defense Department policy that directs FOIA officials to deny records requests from individuals who do not show proof that they have a federal agency's permission to make the request. This is the latest turn in a 30 year history of DOD denying the FOIA rights of these individuals merely because of the newspaper where they work. At least five DOD memos, since 1991, state that while any person may file a public records request, a representative of a federal agency may not. It thus unilaterally, and without qualification, excludes the staff members of the Stars and Stripes newspaper from asserting any FOIA right of access, citing the fact that the newspaper is a part of DODs components. The Stars and Stripes newsrooms are staffed by federal employees who operate under the authority of the First Amendment, and whom DOD regulations require be treated as members of the free press without regard to their federal employment status.
That is, they are, for all intents and purposes, members of the public when engaged in news gathering. And when off duty, as with all other federal employees, they operate in their personal capacity. As of March, 2021, a DOD memo provides that Stars and Stripes employees may request records under the FOIA in an individual capacity, but it directs officials to deny their requests if the individual is listed as a staff member on the newspaper's website, or has self-identified as a staff member in any internet forum, unless the individual volunteers proof that their federal employer gave them permission to engage in outside employment. It does not matter whether the individual claims to be employed by Stars and Stripes or any outside organization. And the policy applies whether or not the individual seeks media request or privileges, or regardless of their express, and explicit certification that they are seeking records under their own personal FOIA rights,
DOD is specifically, and exclusively targeting Stars and Stripes reporting staff, and does not have any similar policy affecting any other DOD personnel. This not only clearly imposes identity based rules that the FOIA does not authorize, but it violates DOD's own regulations that prohibit subjecting Stars and Stripes personnel to laws, and directives that do not equally affect all DOD personnel.
The employees DOD targets differ from all others only in that regulations require them to be treated as members of the free press, not government officials. Thus, this policy discriminates against employees because they're journalists. Part of a category of requester, Congress expressly designed the FOIA to assist. DOD has declined to defend this policy when challenged in court earlier this year. If the memos are still on its FOIA resources page, which suggests the discriminatory policy remains in effect, it must be rescinded. But to ensure FOIA compliance, and transparency, I believe all agency rules, at all agencies, should affirm that when invoking FOIA, federal employees must be treated as any person asserting their private rights unless their request explicitly states otherwise. Thank you.
Alina M. Semo: Okay, thank you so much. Michelle, do we have anyone else waiting to be heard who is not already given us public comments?
Michelle [producer]: We do not have anyone else in the queue at this time.
Alina M. Semo: Okay. All right. I know we're running a little bit over time. I'm very respectful of our committee member’s time, and other commitments. So, I just want to wrap up. Thank all the committee members for all their hard work up until now, and in the future. I want to thank everyone for joining us today. Hope everyone remains safe, healthy, and resilient. I want to wish all of you happy holidays, and a happy new year. And please do mark your calendars. Our next meeting is probably, sorry, Alex, virtually in this space on March 2nd, 2023. Again, a Thursday. We're going to begin at 10:00 AM Eastern time.
But I do hope the subcommittees will be very busy in the interim and will be rolling up their sleeves, and considering a lot of these issues that we talked about today. So, any questions from anyone? Not hearing any questions, we stand adjourned. Thank you very much.