December 1 - Minutes (Certified)
The Freedom of Information Act (FOIA) Advisory Committee convened virtually at 10 a.m. ET on December 1, 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 a.m.to 12:38 p.m. 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
- Michael Heise, U.S. Equal Employment Opportunity Commission
- 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
- Patricia Weth, U.S. Environmental Protection Agency
Committee members absent from the meeting:
- Benjamin Tingo, AINS
- Eira Tansey, University of Cincinnati
Others present or participating in the virtual meeting:
- Debra Steidel Wall, Acting Archivist of the United States, NARA
- Kirsten B. Mitchell, Committee’s Designated Federal Officer, NARA
- Daniel Levenson, Committee Alternate Designated Federal Officer, NARA
- Anne Weismann, former Chief Counsel, Citizens for Responsibility and Ethics in Washington (CREW)
- Ryan Mulvey, Policy Counsel, Americans for Prosperity Foundation
- Katie Townsend, Deputy Executive Director and Legal Director, Reporters Committee for Freedom of the Press
- Robert Hammond, public commenter
- Steve Buckley, public commenter
- Chad Garland, public commenter
- Michelle Ridley, Webex event producer
Welcome and Administrative Updates
Acting Archivist of the United States Debra Steidel Wall welcomed everyone to the third meeting of the 2022-24 term of the Freedom of Information Act (FOIA) Advisory Committee. The Acting Archivist discussed the evolution of the FOIA statute and historic improvements to FOIA. She acknowledged that the Committee is working to address remaining challenges and reminded members that the Committee is authorized to make legislative, executive, or policy recommendations and that the Committee is advisory only.
Chairperson Alina Semo welcomed members and those in attendance.
Ms. Semo confirmed with Ms. Mitchell that there was a quorum for the meeting.
Ms. Semo confirmed that minutes from Sept 8 and 14 minutes had been certified and posted on the OGIS website.
Ms. Semo reminded those in attendance that no substantive comments should be made in the Webex chat function. Although the NARA YouTube chat was not on, comments were welcome via email. Ms. Semo noted that written public comments that comply with policy will be posted and that oral public comments would be limited to three minutes per individual.
Panel: Complex FOIA Requests and Litigation
A panel of three presenters with expertise in complex FOIA requests and litigation presented and responded to Committee member questions. The three panelists were Anne Weismann, former Chief Counsel, Citizens for Responsibility and Ethics in Washington (CREW); Ryan Mulvey, Policy Counsel, Americans for Prosperity Foundation; and Katie Townsend, Deputy Executive Director and Legal Director, Reporters Committee for Freedom of the Press
Obstacles at the Administrative Phase
Ms. Weismann made several observations, including constant, critical underfunding for FOIA; agency abuse of statutory tools such as overuse of “still interested” letters and “unusual circumstances” provisions; lack of communication between agencies and requesters; and the need for litigation as a routine part of the FOIA process, rather than litigating the legal merits.
Ms. Townsend’s observations from the viewpoint of journalists and news organizations included that delay is the biggest issue and that FOIA is useful to well-funded media organizations for longer-term projects. Constant delays prevent FOIA from being useful for day-to-day, deadline-driven news reporting. Ms. Townsend also observed that the foreseeable harm standard has great potential to curtail the overuse of discretionary exemptions; however, agencies still need a cultural shift towards disclosing more records.
Mr. Mulvey described agencies’ lack of compliance with court-ordered deadlines and what he called bad-faith practices by some agencies. He also said that the Department of Justice used to be a quality check on agencies’ counsel but it no longer serves that role. He also discussed scoping FOIA requests, particularly those seeking a large number of records. Mr. Mulvey spoke about legislative reform. Congress is unlikely to completely redo FOIA, he said, but should consider improvements including changing how litigation works, expanding proactive disclosure, making legislative and judicial agencies subject to FOIA, and creating a judicial branch FOIA court.
Questions to Panel
The panel answered questions from Committee members about potential improvements to the FOIA process.
Mr. Mulvey and Ms. Weismann suggested that the entire statute should be redone. Ms. Townsend stated the statutory language itself is excellent and requester-friendly; however, the problems arise with compliance.
All panelists spoke about the need for better FOIA enforcement and recourse either through the courts or through the executive branch. They spoke about a lack of communication between requesters and agencies, a need for a government-wide culture change to prioritize FOIA, as well as the need for resources and technology.
All three panelists suggested that changing the statutory response time would do little to improve FOIA.
Mr. Howard asked about the cause of cultural issues at agencies around FOIA.
Ms. Weismann suggested that, as a start, people in government should be trained in FOIA and its laudatory goals.
Mr. Mulvey stated that agency leaderships need to show respect for FOIA offices.
Ms. Pavlik-Keenan stated that FOIA is adjacent to the mission of agencies, including Department of Homeland Security (DHS) component agencies, and that DHS law enforcement officers should be supported by mission-support personnel to deal with FOIA.
Ms. Jewett asked the panel for their opinions about requesters who skip appeals process and go straight to litigation thereby getting their case prioritized to the detriment of all other cases.
Ms. Townsend responded that litigation does not cause the backlog; rather litigation is the result of the backlog.
Mr. Mulvey mentioned the appearance of conflict of interest when, at small agencies, the FOIA officer is also the appeals officer.
Ms. Weismann stated that increased proactive disclosure would yield fewer FOIA requests.
Mr. Talebian asked how the government can work with requesters to make a complex request simpler.
Ms. Townsend stated that journalists are open to communication but that many FOIA professionals simply do not have the time to interact with requesters.
Mr. Mulvey spoke about historic Attorney General guidance spelling out factors that agencies should consider under foreseeable harm, and suggested that the guidance be resurrected.
Ms. Weismann stated that there is a discrepancy between initial estimates of the number of responsive documents and final number of responsive documents. Agencies should do more to identify responsive records up-front.
Mr. Baron asked about non-email electronic messaging as records, emphasizing that even simple requests could start generating voluminous hits if such electronic messages are searched.
Mr. Mulvey responded that he sometimes has good luck by excluding types of records (such as chats and texts), but that generally agencies have deficient guidelines around these messages.
Ms. Weismann spoke about issues surrounding federal employee use of private email to conduct official business.
Ms. Townsend stated that it’s hard to know what you don’t know and requesters cannot determine whether the agency is searching all electronic communications or just email.
Mr. Susman noted that culture change is even harder than legislation change and asked the panel whether it had ever used OGIS services.
Ms. Weismann stated that she sees OGIS as being helpful at the administrative level to bridge the gap between two points of view on legal issues.
Mr. Mulvey stated that OGIS has potential, and wonderful staff, but there are limitations to what OGIS can do with its authorization and resources.
Ms. Semo thanked the panel and opened the floor to the subcommittee reports.
Dr. Cuillier stated that the Subcommittee would assess previous recommendations to determine what’s been accomplished and what is pending. The Subcommittee will create a list of accomplishments and highlight positive outcomes of the work of the Committee. The Subcommittee will also foster more dialogue across the government.
Dr. Cuillier noted that the Subcommittee’s goals could evolve over the course of the term.
Mr. Garcia-Malene reported that the Subcommittee formed two working groups, the first focusing on process and being led by Mr. Marshall and the second focusing on technology and being led by Mr. Tingo.
Mr. Garcia-Malene shared the Subcommittee’s mission statement and spoke about upgrading the administration of FOIA in two areas: gaps in technology, and interaction with the requester community.
Mr. Garcia-Malene stated that the Subcommittee will review current FOIA technology initiatives, identify FOIA technology gaps, and specific communication areas where there is room for improvement.
Mr. Baron reminded that the FOIA Advisory Committee was set up pursuant to the Second Open Government National Action Plan (NAP) recommendation that “FOIA administration would take into account the views and interests of both requesters and the government.” He read from the NAP, noting that the Committee was established “to foster dialogue between the administration and the requester community, to solicit public comments, and develop consensus recommendations.”
While the Committee has done a great job over the years, Mr. Baron said the Subcommittee would like to focus on citizen engagement and dialogue with the requester community.
Ms. Quintero-McCall noted that additional members would be welcome to the Subcommittee.
Ms. Quintero-McCall stated that the Subcommittee plans to survey FOIA officials across government about resources and will identify what can be accomplished via OMB memo versus legislation to inform potential recommendations. The Subcommittee will develop a mission statement by early 2023.
Committee members discussed the idea of culture change and which subcommittees should address the issue or whether the entire Committee should address the issue. Mr. Howard suggested that examining culture change should be a priority for the Committee.
Dr. Johnson stated that culture may be driven by resources: agencies facing a lack of resources may adopt certain practices to comply with statute.
Mr. Baron concluded by stating the Committee as a whole should discuss culture change in a future public meeting after the members have prepared.
Ms. Semo agreed that culture change could be added to the agenda for March and encouraged subcommittees to discuss culture change in the meantime.
Ms. Semo opened the meeting to public comments and stated that comments are limited to three minutes per individual.
Ms. Mitchell acknowledged that there were many chat comments from an individual who also submitted written comments which OGIS posted on its website. She also reminded everyone listening that only Committee members could serve on Subcommittee working groups.
Mr. Levenson read a comment submitted via chat from an employee of a public water utility advocating for improved FOIA portals. Specifically, the commenter stated that such a portal should include an interface for communication with requesters as well as a way to check status of requests.
Ms. Ridley opened the floor to callers.
Mr. Hammond commented, stating that both OIP and OGIS need funding to conduct oversight. He stated that agencies should include line-items for FOIA in their budgets. He asked Mr. Talebian to confirm policies related to foreseeable harm and litigation, and tracking numbers for FOIA requests. Mr. Talebian confirmed. He asked OGIS to confirm that agencies are required to provide an estimated date of completion (EDC) upon request. Ms. Semo confirmed.
Mr. Buckley, a former federal employee at five agencies, stated that citizens need to be informed and engaged in decision-making processes. He emphasized the administration’s work on the National Action Plan and suggested to all that they visit OpenUSA.gov to review and comment on ideas for the plan.
Mr. Garland commented in his personal capacity stating that the Department of Defense (DoD) has conflicting policies with regard to DoD-operated Stars and Stripes newspaper, and that Stars and Stripes personnel are categorically denied FOIA rights in ways that other DoD employees are not. He said that Stars and Stripes employees should be treated as members of the public for FOIA purposes. Mr. Garland added that DOD is targeting Stars and Stripes reporting staff in a way that other DoD staff are not singled out with regard to FOIA.
Ms. Ridley confirmed there were no additional callers.
Closing Remarks and Adjournment
Ms. Semo thanked the Committee members and attendees.
Ms. Semo reminded the Committee that the next meeting will be held on March 2, 2023 at 10 a.m. ET
Ms. Semo adjourned the meeting at 12:38 p.m.
I certify that, to the best of my knowledge, the foregoing minutes are accurate and complete on December 16, 2022.
/s/ Kirsten B. Mitchell
Kirsten B. Mitchell
Designated Federal Officer,
/s/ Alina M. Semo
Alina M. Semo