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September 14 - Minutes (Certified)

The Freedom of Information Act (FOIA) Advisory Committee convened virtually at 10:00 a.m. ET on September 14, 2022. 

In accordance with the provisions of the Federal Advisory Committee Act, Public Law 92-463, 5 U.S.C. App. §§ 1-16, the meeting was open to the public from 10:00 am to 12:00 pm ET and livestreamed on NARA’s YouTube Channel.

Meeting materials are available on the Committee’s website at https://www.archives.gov/ogis/foia-advisory-committee/2022-2024-term.

Committee members present at the virtual meeting:

  • Alina M. Semo, Director, Office of Government Information Services (OGIS), National Archives and Records Administration (NARA) (Committee Chairperson)
  • Jason R. Baron, University of Maryland
  • Paul Chalmers, Pension Benefit Guaranty Corporation
  • Carmen A. Collins, U.S. Department of Defense
  • David Cuillier, University of Arizona 
  • Allyson Deitrick, U.S. Department of Commerce 
  • Gorka Garcia-Malene, U.S. Department of Health and Human Services 
  • Alexander Howard, Digital Democracy Project
  • Stefanie Jewett, U.S. Department of the Interior Office of Inspector General
  • Gbemende Johnson, University of Georgia
  • Adam Marshall, Reporters Committee for Freedom of the Press 
  • Luke Nichter, Chapman University 
  • Catrina Pavlik-Keenan, U.S. Department of Homeland Security
  • Ginger Quintero-McCall, Demand Progress 
  • Thomas Susman, American Bar Association 
  • Bobak Talebian, U.S. Department of Justice, Office of Information Policy
  • Eira Tansey, University of Cincinnati
  • Benjamin Tingo, AINS
  • Patricia Weth, U.S. Environmental Protection Agency

Committee members absent from the meeting:

  • Michael Heise, U.S. Equal Employment Opportunity Commission

Others present or participating in the virtual meeting:

  • Kirsten B. Mitchell, Committee’s Designated Federal Officer, NARA
  • Kimberlee Ried, Committee’s Alternate Designated Federal Officer, NARA
  • Robert Hammond, public commenter
  • Chris Carvajal, Webex event producer 

Welcome and Administrative Updates 

Ms. Semo welcomed the Committee and reminded attendees that meeting materials are available on the OGIS website. In addition, she reviewed the process for how the attendees should recognize themselves when speaking and how to use the chat function. She wrapped up the housekeeping items and touched on the process the Committee would follow for the public comments portion of the meeting. 

Ms. Semo noted her appreciation for the submission of the Committee members’ ideas for subcommittee priorities. A document, Committee Member Suggested Priorities Spreadsheet, was distributed prior to the meeting and posted to the OGIS website outlining the ideas submitted by Committee members. Each idea was categorized into broad buckets in order to develop consensus which resulted in four broad areas including: a review of past Committee recommendations; FOIA funding and fees; FOIA process issues; and technology. Ms. Semo further noted that this does not preclude the Committee from determining other areas on which to focus later in the term. She also noted a desire to keep the number of subcommittees to three or fewer. 

Committee Discussion of Priorities for the 2022-2024 Term and Selection of Subcommittee Co-Chairs

Mr. Marshall asked his fellow Committee members to explain their interest in FOIA funding and fees. Ms. Pavlik-Keenan explained her interest is specific to agency funding of FOIA programs, and Ms. Weth noted that the Legislation Subcommittee of the 2020-2022 FOIA Advisory Committee term examined some areas of funding and fees through working groups, and produced a report documenting the research. 

Mr. Garcia-Malene noted his desire to explore the topic of vexatious, or frequent, requests. Ms. Quintero-McCall also noted her interest in this topic and that in the first term of the Committee (2014-2016) some research had been done on vexatious requests. Ms. Pavlik-Keenen and Mr. Tingo also noted their interest in this topic. 

Ms. Jewett stated that her interest in FOIA funding and fees was in relation to technology as a resource for FOIA processing. Mr. Susman noted that “resources” might be a good large all-encompassing category and that he favored “implementation” as another subcommittee area to focus on, looking at the past Committee recommendations as well as “process/technology.” 

Mr. Cuillier shared with the Committee a document he created that categorized some of the Committee members' areas of interest. Multiple Committee members discussed the various categories and areas within this document. (NOTE: The final version of Mr. Cuillier’s document is posted on the OGIS FOIA Advisory Committee 2022-2024 term meeting webpage.)

Mr. Baron stated his desire to further examine past FOIA Advisory Committee recommendations and spend time delving into where the work with those stands. Ms. Semo summarized his comments by confirming that he wanted to establish subcommittees around past recommendations, FOIA improvements, and technology. Ms. Quintero-McCall agreed with Mr. Baron in regard to examining past recommendations as its own area for the Committee to consider. Ms. Johnson expressed concern about making sure this work does not duplicate past work by the Committee’s previous terms. 

Mr. Howard stated that the fact that FOIAonline.gov is going away is an opportunity for the Committee to engage with the requester community and the public to aid in informing recommendations. 

Mr. Tingo noted that he agreed with Mr. Cuillier’s approach in grouping the areas of interest and that he thought that there could be overlap with previous recommendations.

Mr. Garcia-Malene pointed out that a previous term of the FOIA Advisory Committee recommended forming a Technology Committee as a part of the Chief FOIA Officers Council. And he noted that the Technology Committee has been in existence for three years and has several working groups examining a number of technology-related issues. He questioned whether some of what is being discussed is too duplicative. Mr. Cuillier stated that it might be worthwhile to look at working groups within the subcommittees to be most effective and have the most impact. 

Ms. Tansey asked if there was an appetite among the members to look at the question of expanding FOIA to the legislative and judicial branches and where does it fit into the possible subcommittees being discussed? 

Mr. Talebian suggested looking at “process” and “resources” as areas for the subcommittee formation but to be cognizant of not duplicating work. He also stated that it might be good for the Committee to consider some aspects of the frequent requester area to further research and examine. Ms. Semo stated that it was a challenge in the last term to coordinate the discussion of the Committee’s Technology Subcommittee and the Technology Committee of the Chief FOIA Officers Council. 

Ms. Quintero-McCall stated she wished to withdraw her suggestion of technology as a subcommittee. She noted that focusing on resources would be a better use of time. 

Mr. Tingo noted his agreement with Mr. Garcia-Malene’s comments as well as Ms. Tansey’s comments, the latter with regard to examining the expansion of FOIA. Mr. Susman stated that there have been repeated efforts with civil society and bipartisan groups to push toward applying FOIA to the legislative branch but he does not think that much traction will be gained anytime in the near future. 

Ms. Deitrick noted that during the 2020-2022 FOIA Advisory Committee term one of the working groups researched FOIAonline and the fact that it is sunsetting, but was not able to make any recommendations. She stated her agreement in looping a technology focus into other subcommittees for this term and that she is not in favor of having a prior recommendations subcommittee. 

Mr. Nichter noted he was also interested in the issue Ms. Tansey raised about expanding FOIA, especially with regard to certain types of records and/or record categories. He also stated he wanted the Committee to be careful about how the term “vexatious requester” is used. 

Mr. Baron stated that the Committee needs to acknowledge that the biggest issue is that FOIA itself does not work for the public. He noted that modernization of the government within the realm of electronic records will have a significant impact on FOIA and how requests are managed. He suggested that an “implementation” or “improvement” subcommittee might be the right area for Committee members who are interested in funding and resources. 

Ms. Semo noted activity in the chat box and that Mr. Susman favored “modernization” as a subcommittee, as did Mr. Howard and Mr. Baron. 

Ms. Johnson asked about the status of a survey being conducted by the Chief FOIA Officers Council to FOIA professionals and if the survey could touch on challenging requests and/or requests termed as vexatious . Ms. Semo noted that the Council’s COCACI (Cross-Agency Committee on Innovation and Collaboration) did launch a survey that closed on August 31, but that the question of overly burdensome requests was not on the survey. 

Ms. Pavlik-Keenan suggested that everyone on the Committee re-examine the previous 51 recommendations on the Committee’s recommendations dashboard as there is already crossover and duplication in some areas, and that the Committee should focus on what has been proposed and make more progress in those areas. 

Ms. Jewett stated she wanted to look at how to raise the profile of FOIA within agencies and asked that the Committee think about looking at the increase in FOIA litigation and the resources needed to address the backlogs that create litigation. She noted that she supports a “resources funding” subcommittee and a possible technology focus as electronic records are the future and resources are needed. Ms. Pavlik-Keenan noted that raising the profile of FOIA was noted in a previous Committee recommendation. 

Mr. Cuillier shared his screen to show the Committee where the subcommittees were starting to form as he took notes based on the Committee members’ comments. Ms. Quintero-McCall asked a clarifying question about what “implementation” meant to the various Committee members. Mr. Susman offered clarification. Multiple members of the Committee agreed that Implementation, Modernization, and Resources made the most sense in terms of the three subcommittees.

Mr. Baron expressed concern that the list of topics under the Modernization Subcommittee  may be too ambitious as 14 subtopics were listed. Ms. Semo noted the importance of the working groups to try to tackle the subtopics. 

Mr. Tingo asked whether it makes sense for the Committee to do some deep diving into the previous terms’ recommendations to ensure a more cohesive approach and not risk duplication of work across the subcommittees. Ms. Semo noted that she always asks each term to review previous recommendations and that subcommittees are encouraged to study where agencies are in implementing recommendations. 

Mr. Howard advocated for inviting the Office of Management and Budget (OMB) to the table to ensure Cross-Agency Priority goals include FOIA. 

Mr. Susman noted that the Committee’s Designated Federal Officer Kirsten Mitchell, was in attendance at all subcommittee meetings of the last term and aided in cross-coordination. 

Ms. Semo thanked everyone for their comments and input and requested a voice vote on approving three subcommittees: Implementation, Modernization, and Resources. All members in attendance voted affirmatively. 

Ms. Semo solicited Committee members for co-chair roles for the three subcommittees, and requested that each subcommittee be co-chaired by one government member and one non-government member. Mr. Baron and Mr. Garcia-Malene volunteered to co-chair the Modernization Subcommittee. Mr. Cuillier and Ms. Pavlik-Keenan volunteered to co-chair the Implementation Subcommittee. Ms. Quintero-McCall and Mr. Chalmers volunteered to co-chair the Resources Subcommittee. 

Ms. Semo opened the meeting to public comments.

Public Comments

Ms. Semo asked Ms. Mitchell and Ms. Ried for public comments from the chat. Ms. Mitchell noted a question about “vexatious requesters” and why Committee members were using that term. Ms. Mitchell noted that Mr. Talebian addressed this concern earlier. Ms. Ried noted a comment about limiting the scope and focus of the subcommittees.

Mr. Hammond expressed concern about the disabled chat function on the National Archives YouTube channel. He stated he has submitted a complaint to the National Archives’ Office of Inspector General. He also noted concerns about lack of funding for FOIA as it relates to staffing, backlogs, etc. across multiple agencies and requested that the onus be placed on OMB. Last. Mr. Hammond stated he does not believe that OGIS has mediated any cases in years.

Closing Remarks and Adjournment

Ms. Semo thanked the Committee and asked them to consider volunteering for one or more of the subcommittees. She reminded the Committee of the next meeting on Thursday, December 1, 2022, at 10:00 am ET. 

Mr. Baron inquired about next steps regarding the subcommittees. Ms. Semo clarified that the OGIS staff would communicate with the Committee members in setting up subcommittee and working group meetings. 

Ms. Semo adjourned the meeting at 11:59 am ET. 

 

I certify that, to the best of my knowledge, the foregoing minutes are accurate and complete on November 28, 2022.

/s/ Kirsten B. Mitchell 

Kirsten B. Mitchell

Designated Federal Officer,

2022-2024 Term

 

/s/ Alina M. Semo

Alina M. Semo

Chairperson,

2022-2024 Term 

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