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June 8 - Minutes (Certified)

The Freedom of Information Act (FOIA) Advisory Committee convened virtually at 10 a.m. ET on June 8, 2023. 

In accordance with the provisions of the Federal Advisory Committee Act (FACA), 5 U.S.C. §§ 1001-1014, the meeting was open to the public from 10 a.m. to 12:30 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/meetings/foiaac-6-8-2023.

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)
  • 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 
  • Lauren Harper, National Security Archive
  • Michael Heise, U.S. Equal Employment Opportunity Commission
  • Alexander Howard, Digital Democracy Project
  • Gbemende Johnson, University of Georgia
  • Jason R. Baron, University of Maryland
  • Luke Nichter, Chapman University
  • Eira Tansey, Memory Rising
  • Catrina Pavlik-Keenan, U.S. Department of Homeland Security
  • 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:
  • Paul Chalmers,  Pension Benefit Guaranty Corporation
  • Stefanie Jewett, U.S. Department of the Interior Office of Inspector General
  • Adam Marshall, Reporters Committee for Freedom of the Press
  • Benjamin Tingo, OPEXUS (formerly AINS)

Others present or participating in the virtual meeting:

  • Dr. Colleen Shogan, Archivist of the United States, NARA
  • Kirsten B. Mitchell, Committee’s Designated Federal Officer, NARA
  • Daniel Levenson, Committee’s Alternate Designated Federal Officer, NARA
  • David Bloom, MITRE Corporation 
  • Dr. Eliot G. Wilczek, MITRE Corporation
  • Gretchen Gehrke, public commenter
  • Michelle Ridley, Webex event producer 

Welcome from Archivist of the United States

Dr. Shogan welcomed attendees to the fifth meeting of the 2022-24 term of the FOIA Advisory Committee. She noted that she is one month into her tenure and recently embarked on a tour of NARA facilities nationwide, and focused on reducing the pandemic-related backlog for veterans’ records, one of her top priorities. She emphasized the National Archives’ mission of strengthening democracy through access to public records.  She noted the 56th anniversary of FOIA’s enactment and quoted President Lyndon Johnson: a “democracy works best when people have all the information that the security of the Nation permits ... an open society in which the people’s right to know is both cherished and guarded.”

Dr. Shogan stated that she looked forward to reviewing recommendations the Committee approves.

Welcome and Updates from the Chairperson

Ms. Semo welcomed Dr. Shogan, Committee members and attendees to the fifth meeting of the fifth term of the FOIA Advisory Committee.

Ms. Semo introduced a new Committee member, Lauren Harper of the National Security Archive, who Acting Archivist Debra Steidel Wall appointed in March 2023 to fill a vacant non-government  seat on the Committee. Ms. Semo announced that several non-government members have changed jobs but will remain on the Committee: Eira Tansey is now with Memory Rising and David Cuillier is in the process of moving to the University of Florida.

Ms. Semo confirmed with Ms. Mitchell that there was a quorum for the meeting. 

Ms. Semo confirmed that minutes from the March 2, 2022, meeting had been certified in accordance with the FACA and that they, along with the transcript, have been posted on the OGIS website.

Ms. Semo reminded those in attendance that no substantive comments should be made in the Webex chat function and asked Committee members to identify themselves by name and affiliation when speaking. Ms. Semo noted that comments were welcome via OGIS’s public comments form.  Ms. Semo also noted that written public comments that comply with the OGIS’s public comments policy will be posted and that oral public comments at the end of the meeting would be limited to three minutes per individual as per the Federal Register meeting notice.

Ms. Semo introduced David Bloom, Senior Data Management And Business Process Analyst at MITRE Corp., and Eliot Wilczek, Records And Knowledge Management Engineer at MITRE. 

Briefing on FOIA Reference Model

Dr. Wilczek introduced the FOIA Reference Model, a business process and information tool for FOIA that  was developed by MITRE’s independent research development program. It is intended to reflect the entire scope of work within the FOIA process.

Dr. Wilczek gave a high-level overview of MITRE before introducing the reasons for deciding to focus on FOIA. MITRE observed that FOIA processing can be labor intensive, under-resourced  and agency specific. MITRE’s work can help measure FOIA processes and activities in a way that can identify and enable opportunities for improvement since agreed-upon FOIA business standards can help agencies. Such standards provide a common language that can empower agencies to be more informed and precise in their conversations with stakeholders. Standards can  also help agencies identify efficiencies and gaps in agency FOIA business processes and workflows, help ensure that FOIA staff training is consistent and comprehensive, and enable thorough and systemic evaluation of FOIA technology.  

Dr. Wilczek reported that MITRE started work on the FOIA Reference Model in 2021 and engaged with the Chief FOIA Officers (CFO) Council's Technology Committee in 2022.  The CFO Council created a working group which published a white paper about the reference model that is posted on the CFO Council website. (It is available here: https://www.foia.gov/chief-foia-officers-council/foia-reference-model-white-paper-april-19-2023). 

MITRE published the FOIA Reference Model in January 2023. Overlapping that work, in November 2022, the Department of Justice Office of Information Policy (OIP) was designated as lead to develop FOIA business standards based, in part, on the reference model. OIP and the Federal Integrated Business Framework (FIBF) working group will continue to draw on MITRE’s reference model to develop the FIBF FOIA business standards. (Business standards using the FIBF enable the government to better coordinate on the decision-making needed to determine what can be adopted and commonly shared. They are an essential first step towards driving economies of scale and leveraging the government’s buying power.)

OMB will eventually review and approve business standards and incorporate them in federal requirements such as the General Service Administration (GSA)’s Multiple Award Schedule (MAS). (Under the MAS program, GSA issues long-term governmentwide contracts that provide federal, state, and local government buyers access to commercial products, services and technology at pre-negotiated pricing.)

Mr. Bloom spoke next and explained that a “reference model” shows how functions are  divided and relate to one another. A reference model provides a common taxonomy and structure for describing business operations. It is about business processes; not technology. There are hundreds of FOIA activities that the model identifies. 

Mr. Bloom presented a slide-deck with diagrams to show some aspects of the model.  (The slides are available here: https://www.archives.gov/files/ogis/foia-advisory-committee/foia-rm-briefing-to-foia-ac-2023-06-08.pdf). There is no one governmentwide workflow for FOIA, so the diagrams in the model focus on key-dependencies between different activities within the FOIA process.

Mr. Bloom said that the model describes roles that FOIA professionals fulfill when responding to a FOIA request. Each agency likely assigns the roles to staff in a unique way. The reference model includes 26 processes and data models that describe the kinds of data one could expect to see in a case and also the kind of data that one would expect to manage the process. The reference model also includes identified controlled vocabularies.  

The model highlights some important data exchanges. Some data exchanges are already occurring between FOIA.gov and pay.gov. The model identifies other important exchanges.  

The model also addresses analytics such as artificial intelligence (AI), machine learning, and human language technology that will likely add value to the FOIA process. For example, AI and machine learning could help identify likely exemptions and redactions.  Mr. Bloom noted that another project underway at MITRE is a FOIA assistant tool in which AI could help with routing on intake, tagging, and redacting in various ways. Mr. Bloom described how the model breaks down FOIA activities, roles, and other taxonomies, containing 300 activities, over 50 distinct roles, over 400 user story requirements, 30 data classes, and 60 controlled vocabularies. This taxonomy can inform acquisition efforts. 

Mr. Bloom noted that the model can allow an agency to define more queues or sub queues. The model touches on disclosure in several ways. For example, a process called “pre-request support” may perhaps preempt the need to even submit a request. Other actions the model addresses are scoping and sizing a request; tagging where AI and machine learning could review responsive records; managing records; and managing fees. Mr. Bloom noted that the model  is intended to reflect the entire scope of FOIA activities, including fees, referrals and consultations, managing user accounts, among other activities. He explained that the model is not sequential  but rather shows the alternatives from any given place in the process. The model also identifies common services that have the potential to be shared among agencies.

Mr. Bloom and Mr. Wilczek answered Committee member questions. Mr. Howard asked if the model was empirical or aspirational.

Mr. Bloom answered that the document speaks to that. The intent is to be a super-set of all possible capabilities to allow each agency to make decisions that are appropriate for that agency. It idealizes the process and depicts a process that does not have duplication or redundancy.

Mr. Howard asked about the relationship between FOIA.gov and data.gov. He also asked about whether MITRE considered including in the model the requirements of the Open Government Data Act or enterprise data inventories maintained by agencies.

Dr. Wilczek responded that the FOIA Reference Model did not include those statues, nor did it specifically address those particular requirements.

Mr. Baron asked how MITRE will work with agencies in the future and if MITRE was open to the FOIA Advisory Committee’s observations and recommendations, especially about an improved model in a second version.

Dr. Wilczek responded that MITRE works with individual agencies through specific units, and the FOIA model will help those units. Future improvements for the reference model would depend on future work with federal partners.

Mr. Talebian spoke about the intersection of MITRE’s work with that of the Chief FOIA Officers Council and noted that the Council will seek public comment this summer on the FOIA Business Model.

Ms. Semo asked if there were additional questions; hearing none, she thanked the presenters and introduced the Subcommittee reports.

Subcommittee Reports

Modernization Subcommittee

Mr. Garcia-Malene reported on two items that the Subcommittee has been working on: a proposed draft recommendation for more transparency regarding the use of FOIA Exemption 5 and a draft model FOIA determination letter. 

Mr. Garcia-Malene briefed first on the Exemption 5 project, specifically on how agencies communicate the application of the three most common Exemption 5 privileges: deliberative-process, attorney-client, and work-process. The recommendation is that “the Office of Information Policy issue guidance stating that whenever an agency withholds information pursuant to Exemption 5, the agency should identify the corresponding privilege(s) invoked. If the withholding takes the form of a redaction, the identification of a privilege should be made part of the redaction label; if a record is withheld in full, the agency should identify privilege(s) in its determination letter.” 

The recommendation would help requesters make better informed decisions, choosing, for example, not to sue over attorney-client privilege, Mr. Garcia-Malene said.

Mr. Talebian thanked the Subcommittee, noted that identifying privileges is an important practice, and encouraged the Committee to pass the recommendation. 

Ms. Johnson asked if the Subcommittee had researched examples of agencies already identifying all Exemption 5 privileges that could serve as a model.

Mr. Garcia-Malene responded that the National Institutes of Health (NIH) tries to provide as much specificity as it can when labeling redactions. Sometimes the specificity can slow things down, he noted. When that happens, NIH  reverts to merely citing the exemptions without detail.”

Ms. Semo read a comment into the record from a Nuclear Regulatory Commission FOIA processor who thinks a widespread practice of citing specific Exemption 5 privileges would create efficiencies.

Ms. Harper stated that there would also be a benefit to informing requesters about the sunset requirements of Exemption 5. (The FOIA statute states that “the deliberative process privilege shall not apply to records created 25 years or more before the date on which the records were requested.”)

Mr. Garcia-Malene responded that such information could  be part of the recommended model determination letter.

Ms. Pavlik-Keenan asked if the Exemption 5 recommendation was being put forward as a requirement or a best practice. Mr. Talebian clarified that the recommendation is for OIP to issue guidance, which he committed to doing. 

Mr. Baron asked if it was appropriate to take a vote.

Ms. Mitchell reviewed voting procedures, stating the three possible vote outcomes: unanimous, general consensus (with 2/3 of votes cast), and general majority (majority of votes cast).

Mr. Susman moved for the committee to vote on the Exemption 5 recommendation, and Ms. Deitrick seconded.

The motion carried unanimously with a vote of 15-0, with Mr. Talebian abstaining and four members absent.

Mr. Baron next briefed on the model agency determination letter posted on the FOIA Advisory Committee website, available here: https://www.archives.gov/files/ogis/documents/transmittal.attachmentb.final_.pdf. The Subcommittee’s goal is to receive public comments and present a revised letter for a vote at the next Committee meeting on September 7, 2023.

Mr. Baron acknowledged that some agencies already use a very good letter template while other agencies have room for improvement. This model would demonstrate a comprehensive list of information that agencies should include in the letters, explanations of “partial” grant/denial and “full denial,” and examples of how agencies can cite which Exemption 5 privilege is being used.  He requested a 30-day period for agency FOIA professionals and the public to comment on the letter.

Mr. Garcia-Malene confirmed that Mr. Baron explained this project comprehensively and that he had nothing to add.

Mr. Baron discussed the period for public comments and Ms. Semo clarified that using “business days” is consistent with FOIA, and without objection, set the 30-day deadline at July 20, 2023. (OGIS staff later reset the deadline to July 28, 2023, to allow more time for comments during a period with two federal holidays.)

Mr. Heise opined that the letter is clear and suggested that even full grants should inform of appeal rights.

Mr. Talebian supported soliciting public comments. He stated that OIP has issued guidance for agencies to provide context to the requester and noted that doing so is more practical in some cases than others.  Requesters know generally how an agency conducts the search. This recommendation is intended to create efficiency with fewer appeals, but Mr. Talebian argued that this level of detail would slow down the process, and there is a balance to give as much information without slowing down the process.

Mr. Nichter seconded Mr. Heise’s suggestion of appeal rights for full grants, citing a separate reason: he sometimes received a full grant because the agency interpreted the request more narrowly than he intended.

Ms. Harper suggested that a parallel effort, likely outside the scope of this letter, would be to recommend that agencies publicize their internal structure on the FOIA websites with information like organizational charts and major record repositories. This would contextualize the adequacy of the search.

Ms. Mitchell noted OGIS’s public comments portal as the method for providing comments on the letter to the Committee.

Mr. Baron previewed another proposal that the Subcommittee discussed: a letter to Chief FOIA Officers about FOIA.gov interoperability. The Subcommittee discussed that a letter should be sent to agencies regarding the August 2023 deadline set by the Office of Management and Budget for FOIA case management systems to be interoperable with foia.gov. He also noted the decommissioning of FOIAonline and best practices for communicating with requesters when agencies switch FOIA request portals. Mr. Baron asked for Ms. Semo’s consideration and input on the best forum for sending it rather expeditiously, given the August deadline and the decommissioning of FOIAonline.

Mr. Howard expressed ongoing concerns with the sunset of FOIAonline and stated a desire for OMB staff to brief the Committee on steps they are taking to modernize and support that effort as mandated in the FOIA improvement Act of 2016. 

Mr. Baron acknowledged that Mr. Howard’s encouragement was instrumental in getting the Subcommittee to make this proposal.

Ms. Semo solicited questions for the Subcommittee. Hearing no questions, she turned the floor over to the Resources Subcommittee.

Resources Subcommittee

Ms. Johnson reported on the business of the Subcommittee. The Subcommittee expects to wrap up the interviews with FOIA professionals prior to the September 7, 2023 Committee meeting. Interviews are ongoing, but an early finding is a consensus on the importance of retaining qualified FOIA professionals. 

A voluntary Subcommittee survey will be administered to FOIA professionals at the American Society of Access Professionals (ASAP) National Training Conference June 27-29, 2023. The survey contains 25 questions and takes approximately 10 to 15 minutes to complete. 

Ms. Johnson also reported that the Subcommittee has discussed the issue of a FOIA repository for records released under FOIA. A FOIA repository was put forth in a previous Committee recommendation and has become salient again with the decommissioning  of FOIAonline. A repository could make the search process easier for requesters and allow them to access a wide variety of documents in one portal. The Subcommittee has identified some challenges to address as a next step: ownership, the development and maintenance of technology, and what is necessary to allow for an efficient search. 

The Subcommittee has also discussed FOIA funding. FOIA does not generally have line-item funding. Thus, FOIA programs compete with other agency priorities for funding. The Subcommittee wants to explore the degree to which line-item status for FOIA would improve the allocation of funds to FOIA and, along with it, administration and implementation. The Subcommittee also is interested in exploring to what degree line-item funding would change the agency culture around the way in which FOIA is perceived as a priority. 

Ms. Harper complimented Ms. Johnson’s presentation and confirmed it was sufficiently detailed and appropriate.

Ms. Semo solicited questions for the Subcommittee. Hearing no questions, she turned the floor over to the Implementation Subcommittee.

Implementation Subcommittee

Mr. Cuillier briefed that a one-page Subcommittee summary had been posted on the Committee’s webpage on the OGIS website. The goal is to have a full report by September 2023. Subcommittee members have been reviewing the past 51 recommendations to identify which need more work. Future Subcommittee work includes a survey, interviews with agencies, and gleaning data from agencies’ Chief FOIA Officer and Annual FOIA reports.

Ms. Semo solicited questions.

Mr. Baron asked if government members on the Committee would take the MITRE documents to people at their agencies to check about evaluating and implementing. 

Ms. Pavlik-Keenan stated that DHS works closely with MITRE, and in the past they have looked at modernizing workflows in FOIA.

Mr. Garcia-Malene reported that because of the pandemic-related workload, NIH currently has no bandwidth to work with MITRE right now but will in the future.

Ms. Weth stated that EPA is trying to get the approval to work with MITRE to test out the FOIA assistance tool.

Mr. Talebian reported that OIP will try to work with the tool and is interested in implementing MITRE's work.

Mr. Heise reported that he has had several meetings with MITRE where they introduced the FOIA assistance tool product.

Mr. Baron stated that he looks forward to further reports on machine learning and AI from the Modernization Subcommittee.

Mr. Howard requested that OGIS review agency websites and reading rooms to follow up on its  website report. Ms. Mitchell reported that OGIS plans to follow up on the website report but could not commit to a time. Mr. Howard suggested crowdsourcing the data. He appreciates the work OGIS did, wants to collaborate on a collective understanding and suggested that the data used for the report be shared.

Ms. Mitchell reported that OGIS published the spreadsheet which documents all of the data collected and used in the report. She also noted that OIP is looking at FOIA websites as part of the FOIA.gov interoperability issue.

Ms. Harper volunteered the help of the National Security Archive if civil society assistance could be useful.

Mr. Talebian reported that OIP will issue its report on FOIA.gov interoperability soon and gave a preview on interoperability status across government. DOJ and OMB continue to work with agencies to be compliant. He does not anticipate significant issues, especially given  the progress made to date.

Ms. Semo solicited questions or comments for the Subcommittee. Hearing none, she moved to public comments.

Public Comments

Ms. Mitchell stated that Committee chat comments have been read into the record and reiterated the comment from the Nuclear Regulatory Commission FOIA professional about the Exemption 5 privilege issue that a global policy of citing the specific privilege would create efficiencies across government.

Mr. Levenson confirmed that there were no additional chat comments.

Ms. Gehrke commented that there have not been sufficient opportunities for public comments on the decommissioning of FOIAonline. She encouraged the Committee to ensure that agencies do not retreat from FOIA accountability and to encourage agencies to invest in good technology. She had three specific requests for FOIA programs: to recommit to the philosophy of “a release to one is a release to all;” to make records more accessible by using zip files, standardized naming convention, and legends; and to improve search functions.

Mr. Howard thanked the commenter and stated that EPA representatives involved with the decommissioning of FOIAonline came to the Committee in its last meeting in March and were accountable for the decision and shared quite a bit of their thinking about the decommissioning. He also stated that the Committee had previously discussed a “release-to-one-release-to-all” policy. The transition away from FOIAonline is an opportunity to implement better FOIA processes.

Mr Heise stated that at the EEOC, the vast majority of their FOIA requests are for “charge files” which are bound by statutory confidentiality and a “release-to-one-release-to-all” policy would not work for those records. Releasing such records publicly would be illegal.

Ms. Ridley introduced a caller who was unable to comment because of technical difficulties.

Ms. Semo encouraged the submission of comments via the online public comments portal.  She read a chat comment from Mr. Howard into the record: The fact that EEOC cannot do this with charge files does not mean that agencies across the federal government cannot do so with responsive records as has been happening with FOIAonline.

Ms. Ridley stated there were no other callers in the queue.

Closing Remarks and Adjournment 

Ms. Semo thanked Committee members and reminded attendees about the OGIS Annual Meeting on Tuesday, June 13, 2023.

Ms. Semo reminded the Committee that the next meeting would be on Thursday, September 7, 2023 at 10 a.m. Eastern time.

Ms. Semo adjourned the meeting at 12:30 p.m.

 

I certify that, to the best of my knowledge, the foregoing minutes are accurate and complete on July 3,  2023. 

/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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