Office of Government Information Services (OGIS)

December 7 - Minutes (Certified)

The Freedom of Information Act (FOIA) Advisory Committee convened virtually at 10 a.m. ET on December 7, 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 12:26 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-12-7-2023.

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)
Jason R. Baron, University of Maryland
Paul Chalmers, Pension Benefit Guaranty Corporation
Carmen A. Collins, U.S. Department of Defense
David Cuillier, University of Florida
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 Health and Human Services 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
Eira Tansey, Memory Rising
Benjamin Tingo, OPEXUS
Patricia Weth, U.S. Environmental Protection Agency
Committee members absent at the virtual meeting:
Thomas Susman, American Bar Association
Bobak Talebian, U.S. Department of Justice, Office of Information Policy

Others present or participating in the virtual meeting:

Dr. Colleen Shogan, Archivist of the United States, NARA
Daniel Levenson, Committee’s Alternate Designated Federal Officer, NARA
Matthew Scarlatas, public commenter
Michelle Ridley, Webex event producer

Welcome from Archivist of the United States

Archivist of the United States Dr. Colleen Shogan welcomed everyone to the seventh meeting of the 2022-24 term of the FOIA Advisory Committee. The Archivist acknowledged Pearl Harbor Remembrance Day. She spoke about how the mission of the National Archives to provide access to records aligns with the mission of this Committee: to preserve records of the past and ensure they are available to the public. Records management is fundamental to openness , transparency, and the functioning of FOIA; and this Committee is instrumental in finding innovations in those areas. She said that ten years after the Second Open Government National Action Plan set forth a commitment to create this Committee, the Committee has issued four reports containing 52 recommendations. She stated that she looks forward to reading the findings of this term and reviewing the recommendations. The Archivist acknowledged the hard work of OGIS that made possible the 52 recommendations and the work of the Committee overall.

Welcome and Updates from the Chairperson

Chairperson Alina Semo welcomed members and those in attendance.

She reminded attendees that the Committee operates under the Federal Advisory Committee Act (FACA), which requires open access to meetings and operations. She confirmed that meeting materials, to include certified minutes and transcript of the September 7, 2023 meeting were posted on the OGIS website.

She stated that there would be no speakers at this meeting with the entirety of the meeting consisting of reports from the three Subcommittees.

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

Ms. Semo reminded those in attendance that no substantive comments should be made in the Webex chat function because they will not be recorded. She 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, and that those that comply with the policy will be posted; and that there would be a public comments period at the end of the meeting during which oral public comments (limited to three minutes per individual) may be presented.

Ms. Semo introduced the first Subcommittee: Implementation and handed the floor to its co-chairs, David Cuillier and Catrina Pavlik-Keenan.

Implementation Subcommittee Report

David Cuillier and Catrina Pavlik-Keenan, co-chairs

Dr. Cuillier introduced his report and reviewed the mission of the Subcommittee: to review the 51 recommendations from the first four terms of the Committee and assess where they stand. The Subcommittee does not assume that the recommendations lead to change, but will note if they can demonstrate causality. The Subcommittee will create a report that captures its findings about what has been done and what is yet to be done to fulfill the recommendations. The Subcommittee has grouped the existing recommendations, pulling from OGIS, OIP, and Chief FOIA Officer reports. He stated that in the final seven months of the term, the Subcommittee will: seek further input from the Committee and public; have further discussions with OIP and OGIS; interview both agency staff and requesters; and draft the final Subcommittee report with its proposed recommendations. The Subcommittee plans to have the proposed recommendations ready for the full Committee by the March 5th meeting.

Dr. Cuillier stated that OGIS’s dashboard of FOIA Advisory Committee recommendations was very helpful to keep track of the 51 recommendations from the four previous terms and the one recommendation that the Committee has already made this term. He stated that OGIS’s “Completed” category is technically accurate because it correctly captures whether the entity tasked in the recommendation has acted – Dr. Cuillier cited the example of OGIS writing a letter to Congress, which would fulfill OGIS’s task — but the Subcommittee is interested in assessing if the issues gained traction with decision makers (e.g. Congress).

Dr. Cuillier reported on the survey that the Implementation Subcommittee undertook. The survey received responses from 22 Chief FOIA Officers out of 120, which is an 18% response rate. The results likely skew toward the agencies that are “FOIA-friendly.” Most respondents (91%) reported following OGIS’s Reading Room guidelines. The Subcommittee may look into that more deeply. Additionally, 91% of respondents reported providing simple explanations on how to file a FOIA request. Again, the Subcommittee may choose to independently verify, but these results serve as a starting point for future research. The complete survey summary will be provided on the website for this meeting (https://www.archives.gov/ogis/foia-advisory-committee/2022-2024-term/meetings/foiaac-12-7-2023).

Dr. Cuillier spoke about “gaps” — areas where the survey indicated agencies have room for improvement. The first result was on providing “Glomar” responses (neither confirm nor deny the existence of records) online, 64% respondents did not, 27% responded that it was not relevant for their agency, and only 9% did. This indicates that agencies are not following the relevant recommendation from the Committee.

Mr. Marshall stated that the Reporters Committee for Freedom of the Press has been surveying Glomar requests across the federal government and plans to publish the findings in early 2024.

Dr. Cuillier spoke about the second ‘gap’ finding: FOIA performance standards being included in all agency employees’ appraisals, where 86% of respondents did not comply. He noted that the Subcommittee would have to determine whether or not to double down on this area.

Ms. Pavlik-Keenan stated that her opinion is to double down on this recommendation. FOIA is a law that all federal agencies must comply with, and all employees must keep records appropriately so that FOIA offices can meet the mandate.

Mr. Chalmers stated that if the Subcommittee doubles down on including FOIA performance standards in all appraisals, there are a number of practical issues to consider. He gave the example that a supervisor conducting the review would need to understand how to give the rating. He noted that this would be more complex at larger agencies than at smaller ones.

Mr. Heise commented about all the “gaps.” He believes that Glomar is an important issue to focus on, and it would be an interesting metric to determine how often the Glomar response is invoked. There is a difference between the intention of agencies to provide information and the technological ability to track metrics. On including FOIA performance standards: most agency employees who create content want to focus on their jobs rather than on FOIA. A FOIA Office’s job is to reach out to creators and get responsive documents, so the FOIA professional’s job is easier when the creators are on the same page about FOIA. To the extent that agency leaders can create a culture where creators understand the importance of FOIA, it would be a game-changer. The culture change could be supported by a performance metric.

Mr. Howard noted that because only about a fifth of agencies responded, there is likely to be some selection bias. Mr. Howard suggested that the Committee offer a way forward for agencies alongside the recommendations. He noted that a valuable metric would be to ask FOIA requesters if they were satisfied with the results. He cited the White House website as an example of following up with visitors to measure satisfaction. The type of user feedback that many websites routinely collect could inform FOIA programs. He noted that the more that FOIA is seen as the responsibility of all government employees, the better the administration of FOIA. Also, the more that first-party requests are pulled out of FOIA, the better the government will serve the public. Mr. Howard noted that three quarters of respondents said they did not apply AI to improve FOIA processing, and that he is very interested in learning more about the one quarter that said yes. He would like the Committee to help agencies share experience and best practices in applying AI.

Ms. Weth spoke about including FOIA performance standards in all employee appraisals. She believed that FOIA is everyone’s responsibility, but she stated that she didn’t know if including FOIA performance standards in appraisals would have the intended effect. She stated that her opinion is that the best approach would be to have leadership support and promote the importance of FOIA, coupled with better training. Ms. Weth stated that when the Secretary of a Department where she previously worked sent out a memo on the importance of FOIA, she saw a big shift in how non-FOIA professionals viewed FOIA. She noted that during Sunshine Week certain agencies host week-long events to highlight the importance of FOIA.

Dr. Cuillier noted that two thirds of respondents reported that they are not looking at shifting commonly requested records out of FOIA, which had been the topic of several recommendations over several terms.

Dr. Cuillier noted that 77% of respondents reported not using AI to improve FOIA processing.

Ms. Pavlik-Keenan noted that the Department of Homeland Security (DHS) would launch a study on first-party FOIA requests, which came as a recommendation from the Homeland Security Advisory Council’s report to the Secretary of DHS. DHS is also looking at creating processes with AI and machine learning to help reduce administrative FOIA functions that would allow FOIA professionals to focus on the analytical part of their job. DHS is working to create a chat-bot to assist requesters in making requests. Since federal FOIA programs are underfunded, they will have to leverage technology to keep up with the growing number of requests. It will help the customer experience and will help the processors do more.

Mr. Howard acknowledged the importance of the work DHS is doing, particularly because of the immigration records at U.S. Citizenship and Immigration Services. It would be a tremendous win for everyone in the FOIA community. He acknowledged the progress that the Department of Justice (DOJ) has made in creating a FOIA Wizard.

Dr. Cuillier spoke about the challenges the Implementation Subcommittee has seen around previous recommendations. Dr. Cuillier noted that there have been challenges with recommendations about: Congress enacting a FOIA-like law for some legislative records. OGIS did its part, but afterward nothing happened; 508 compliance –to make records accessible to visually/auditorily impaired individuals; a single centralized FOIA platform– a simple, one-stop shop for requesters; strengthening OGIS or another alternative resolution body by giving enforcement powers.

Ms. Tansey asked if the Subcommittee could share insight into the differences between small agencies and large agencies from the survey responses.

Dr. Cuillier noted that he would further analyze the data by agency size because it would be informative.

Mr. Heise noted that he agreed with strengthening OGIS. He asked about the ramification of creating a FOIA-like law for Congress: for example, if there were a constructive denial under that framework, how would courts determine the will of Congress when one legislative agency claimed an exemption. Mr. Heise noted that 508 compliance is important, but it is not easy to make records compliant; he noted that this may be a question for the Resources Subcommittee. He noted that a centralized FOIA platform is fascinating. The federal government is not a monolith, and agencies have different needs. He notes that it might be possible to have multiple centralized platforms where groups of agencies with similar types of records could use the relevant system.

Ms. Harper addressed Mr. Heise’s comment about the FOIA-like law for legislative records, noting that the discussion of the previous term was more focused and specific than his concern. She said that the bigger question is whether Congress would enact any law.

Dr. Cuillier referred listeners to the report from last term for the details of the recommendation on a FOIA-like law for the Legislative Branch.

Ms. Semo noted that the debate on this particular recommendation occurred shortly after the January 6, 2021, incident at the U.S. Capitol. At that time, there was a lot of interest in access to the records of the Capitol Police. Members of Congress would not likely want to submit to a FOIA-like law, but if the potential law focused on legislative agencies there would not be the Constitutional issues that Mr. Heise raised.

Mr. Howard noted that certain legislative agencies already make records public. He stated that the Capitol Police department is one of the top ten largest law enforcement agencies in the country and should be subject to transparency legislation. He noted that 46 states and the District of Columbia have FOIA-like laws that apply to their legislative branches, and the United States Government should do the same. He stated that 508 compliance happens automatically if records are created compliant from the beginning. He stated it would be a fruitful direction to look into how Ombuds function in other countries to get ideas for improvement to OGIS. He stated that the sunset of FOIAonline was the end of the consolidated national FOIA portal, and FOIA.gov should get additional features to increase usefulness. It will become the central FOIA portal because of the decommissioning of FOIAonline. He stated that the Committee should look at interoperability of the FOIA platform with all the case management systems and FOIA libraries and elevate the development of FOIA.gov as something OMB should fund and oversee.

Ms. Harper stated that there are tangible ways to improve the FOIA platform to make it less confusing and cumbersome to the public. She suggested every agency highlight FOIA.gov on their website, and the government centralize the sign-on for all agency FOIA sites.

Mr. Heise noted that the Modernization Subcommittee should think about what Mr. Howard had noted: a recommendation that agencies create records that are 508 compliant from creation.

Dr. Cuillier noted that 95% of respondent agencies reported being aware of the FOIA Advisory Committee; only half of respondents were aware of the Committee’s recommendations. He noted that it might be a subject for a potential recommendation: what can the Committee, NARA and OGIS do to ensure the work is seen and heard.

Dr. Cuillier concluded the Implementation Subcommittee’s report.

Ms. Semo introduced the Modernization Subcommittee.

Modernization Subcommittee Report

Jason R. Baron and Gorka Garcia-Malene, co-chairs

Mr. Garcia-Malene introduced the Modernization Subcommittee report and acknowledged the hard work of the members of the Subcommittee. He noted that an early success is that the full Committee passed a recommendation (2023-01): that OIP should issue guidance that when an agency invokes Exemption 5, it should identify which privilege is being invoked with the identification of the privilege being part of the redaction label, or part of the determination letter when records are withheld in full.

Mr. Garcia-Malene introduced Mr. Marshall to give an update on the Subcommittee’s proposed Model Agency Determination letter.

Mr. Marshall noted that a determination letter is an agency’s substantive response to a FOIA requester. He stated the premise of the project is that good communication between agencies and requesters can reduce administrative burden and improve trust in government. The Subcommittee drafted an initial Model Determination letter and sought feedback, receiving comments over several months from civil society groups, federal agencies, and members of the public. Since the last meeting, the Subcommittee reviewed all the comments and incorporated many into the working draft of the Model Determination Letter. The Subcommittee would continue work to finalize the letter.

Mr. Garcia-Malene thanked Mr. Marshall and noted that the Modernization Subcommittee is also working on other recommendations. He noted that Mr. Baron is working on two recommendations: early engagement with requesters and negotiated search protocols. He noted that Mr. Howard is working on a recommendation on enhancing agency engagement with FOIA requester communities.

Mr. Baron noted the importance of sharing the deliberations of the Subcommittees in a public meeting. They are reporting on work that may or may not be put to the full Committee for a vote in a future meeting. Mr. Baron noted that he has worked in government and in academia, so he has been on both sides of FOIA requests. His perspective informs the recommendations he suggests.

Mr. Baron presented a potential recommendation that is under consideration: "We recommend that OIP issue guidance to federal agencies stating that within a reasonably short time frame after a request has been filed, either as part of an acknowledgment letter or in a separate correspondence, agencies should offer requesters the opportunity to discuss their requests with an agency representative, for the purpose of clarifying, narrowing, and expediting the request."

Mr. Baron noted that many agencies already do this in some capacity. He cited the Department of Justice's Chief FOIA Officer report, in which DOJ says that as part of its standard FOIA process its processors proactively reach out to requesters concerning complex or voluminous requests to clarify or narrow the scope of requests so requesters may receive their response more quickly. He stated that the intent of this recommendation is to broaden the practice so that all agencies would make an effort to reach out proactively to all requesters. This would be a way to open dialogue and create more transparency. Mr. Barron acknowledged that government agencies would push back against the commitment of time and resources this recommendation implies, but the possibility of clarification and narrowing requests would balance out the resources even if only a minority of requesters took agencies up on this offer.

Mr. Heise stated that he liked the recommendation and made three points. First, he noted his objection to the term "expedite" because it is a term of art, and a requester might misunderstand that the agency is considering an expedited track. He suggests that the Subcommittee consider another word. Second, Mr. Heise explained that at his agency, EEOC, they already reach out to requesters because a majority of the requests they receive require clarification. Requesters outside the government do not always know how to formulate requests optimally; however, some types of requests are clear from the beginning. Mr. Heise stated that should be reflected before making a recommendation that would create an expectation that processors would have to reach out to requesters even when the request is clear. His final point was parallel to that idea requesters being too intimidated to proactively reach out to clarify or narrow the scope of their request. Some FOIA processors may be similarly intimidated about speaking to requesters.

Mr. Baron acknowledged and agreed with Mr. Heise's points.

Ms. Weth stated that she agreed with Mr. Heise's points, and that this recommendation is a best practice that she has used in several offices. She stated that a conversation up front with a requester is helpful to ultimately deliver what the requester wants. She stated that if FOIA processors were intimated about speaking on the phone, a conversation to clarify or narrow the scope could occur via email. She stated that she supports this recommendation.

Mr. Nichter commented that, assuming the proposal is made to benefit requesters, the key word is opportunity. When an agency contacts him to check about reducing the scope, he feels pressure to reduce. He stated that he does not always want to feel that pressure, but other times he would be happy to reduce the scope. He would not want this recommendation to become an additional hurdle nor slow down requests.

Mr. Baron stated that the recommendation is an opt-in, only if a requester wants to narrow the scope.

Mr. Howard noted that the dialogue at this meeting is representative of the dialogue they often have at the Subcommittee meetings. He is grateful for the opportunity to learn from the FOIA professionals; he has learned a tremendous amount about their dedication. He stated that the recommendation under consideration gets to something important: to ensure the public's right to know, FOIA professionals must understand the structure and functions. A dialogue creates an opportunity to increase a requester's knowledge of government and their trust in government. He stated that often the FOIA process may devolve into an adversarial process, and this recommendation will be beneficial to the extent that dialogue can prevent litigation. Mr. Howard stated having a human reach out from the agency would be beneficial. This may create a significant burden for agencies that receive a significant number of requests, but that speaks to the work of the Resources Subcommittee's work to get more resources.

Ms. Jewett asked for more background on why the Subcommittee found this to be an issue. She asked whether agencies that process huge amounts of requests would have a rigid timeframe. She expressed a concern that this recommendation could slow down the process and create inefficiencies. She said that her agency, for example, already reaches out to requesters to seek clarification when necessarily.

Mr. Baron stated that all members of the FOIA Advisory Committee bring with them significant experience, and this recommendation is informed by that experience. He stated that it seems likely that only a small percentage of requesters would avail themselves of the opportunity to reduce the scope of their request, but that the government should be transparent in allowing requesters to have this conversation. He invited additional comments about this recommendation.

Ms. Harper responded to Ms. Jewett's question. The issue that Ms. Harper's organization has encountered when trying to contact FOIA processors is that there is not always a human being who responds. Ms. Harper confirmed there is an issue that this recommendation seeks to address.

Ms. Deitrick acknowledged Ms. Jewett's concern that this recommendation could lead to inefficiencies. She stated that for this recommendation, the Subcommittee had considered the balance between being more open and communicative without making the process more difficult or lengthy.

Mr. Nichter stated that he appreciated that this recommendation sought to ensure requesters had an opportunity to communicate with a human being at an agency. He stated that in his experience it is not alway possible for a requester to communicate with a person.

Mr. Heise stated that in his experience requesters appreciate hearing from a human being. From his perspective, some requests are highly communicative, while others are non-communicative, occasionally to the point of insisting their request is clear as written. He stated that almost every request at his agency needs clarification, so it makes their job easier to have the conversation. The conversation gives them clarity on what the requester wants, which makes processing more efficient.

Ms. Semo called a ten-minute break.

Mr. Baron presented a second potential recommendation, which stated: "We recommend that OIP issue guidance to federal agencies encouraging the option of providing requesters, at their request, an early, interim response consisting of a small sample of documents found as the result of searches conducted and subsequently reviewed for partial or full withholding."

Mr. Baron stated that the Subcommittee will amend the wording to clarify that the recommendation only pertains to complex requests. Giving a small sample will, in many cases, reduce the burden on agencies. Requesters who have an early look at a small sample of documents responsive to their request can clarify their request ahead of further efforts to process. There are hundreds of thousands of keyword hits in complex requests, and this proposal would prevent processing for release documents that the requester does not want. The agency would provide the sample as an interim response, and requesters would have a window to confirm they are still interested in the remaining material. This recommendation is not intended to be iterative nor to cause agencies the burden of endless samples. Agencies are not obligated to change the search parameters. No appeal rights would be triggered by the interim findings, and the agency would be able to continue its process.

Mr. Baron stated that, as a requester, he has invited agencies to use this protocol, and several have taken him up on the invitation. In those cases, he has found that the sample yielded sufficient insight, and he did not need the agency to process the remaining documents. He acknowledged that it may not always happen that way, but in many cases this protocol will be helpful.

Mr. Nichter commented that there may be agencies already doing this. He cited the FBI, which sends pre-processed records that have already been reviewed for previous requests. The FBI puts the onus on the requester to confirm the continued interest in additional records. Mr. Nichter wondered to what degree this is being done. He noted that sometimes agencies produce a sample of records that are not what he, as a requester, wants and he expressed concern that in those cases, this practice may allow agencies to close the request without providing the records that the requester was looking for.

Mr. Baron noted that he has seen agencies that provide interim responses. He has encountered resistance in suggesting this protocol. This guidance would suggest that agencies offer this option in complex cases.

Ms. Weth noted that she considered this recommendation obviously helpful. She has done this in the past and found it helpful to the requester and the agency.

Mr. Heise stated that in his view the recommendation should be longer and capture the changes Mr. Barron mentioned when presenting the recommendation. Mr. Heise wants to ensure that this recommendation does not invite abusive or inefficient practices, because any reduction in efficacy slows the process for all involved. The phrasing of the recommendation should make clear that its purpose is to narrow the request so that requesters get what they want and agencies can close the request faster. The recommendation should leave no room for agencies to misunderstand it as allowing unlimited modifications to search parameters.

Ms. Weth noted that FOIA processors communicate with requesters and memorialize those conversations in email. She has found that when using interim sampling, the requester is always in control to determine how to proceed. The email documentation of phone conversations ensures there are no surprises about what was agreed upon.

Mr. Heise clarified that he has found interim responses helpful in general, but has seen situations where requesters interpret ambiguity in policy or recommendations in ways that are unhelpful to FOIA processing.

Dr. Johnson asked for clarification on what would trigger appeal rights.

Mr. Baron clarified that if an agency closed out a request, appeal rights would be triggered. It's when the search continues that no appeal rights would be triggered.

Mr. Baron turned the floor to Mr. Howard.

Mr. Howard showed a slide that read, "We recommend that agencies expand their public engagement activities focused on improvising the FOIA process." He noted that this is an early discussion of a recommendation around improving the relationship between agencies and requesters and increasing proactive disclosures. He noted that FOIA has been heavily used by business to understand regulatory agencies. Focusing on proactive disclosure of frequently requested records would free up resources used to meet all the commercial requests so FOIA processors could process more complex requests from watchdog groups and the press. Congress created FOIA out of concern over government secrecy. Mr. Howard noted that this recommendation would benefit everyone, specifically noting that public engagement would benefit first-party requesters and watchdog groups.

Mr. Howard noted that the Subcommittee has had preliminary discussions about approaches. Those discussions have touched upon many ideas: agencies that do scientific research and disclosure agencies are working to proactively disclose information. The President's Council on Science and Technology's useful guidance made recommendations for increasing public engagement with the idea that proactive communications make information public before people have to make FOIA requests. The Office of Management and Budget issued guidance on broadening public participation in the regulatory process. A FOIA Advisory Committee recommendation could take shape recommending that the Administration and Congress build upon existing past and present commitments the U.S. Government has made in its open government and engagement plans. Sunshine Week is an appropriate moment to engage with the public. The opportunity to celebrate openness as a national value is a core part of restoring trust in government. Encouraging educational bodies to teach young people how to use the FOIA is also important. It's important to create opportunities for dialogue for people across the country, not only centered in the National Capital Region.

Mr. Garcia-Malene presented a slide with two potential recommendations that the Modernization Subcommittee is working on. The first potential recommendation encourages agencies to use email rather than postal mail for correspondence with requesters. The second recommends that agencies develop requests for information (RFI) about the purchase of e-discovery tools and services.

Mr. Marshall noted that they are looking into why so many agencies are still using postal mail rather than email.

Mr. Baron noted that in September's meeting, there had been a briefing from the State Department on machine learning for declassification work. Other agencies do not need to wait for final results from that work before issuing their own RFIs for e-discovery. There is a wealth of knowledge about machine learning in the private sector, and the recommendation would encourage agencies to be informed about the tools that exist to enable possible procurements.

Mr. Garcia-Malene noted that the Subcommittee will continue to work on these recommendations and that he is excited to bring finalized versions to the full Committee in the near future.

Ms. Semo introduced the Resources Subcommittee.

Resources Subcommittee Report

Paul Chalmers and Gbemende Johnson, co-chairs

Dr. Johnson presented findings from the Resources Subcommittee's interviews and surveys. The interviews focus on technology, training, and financial and staff resources. The Subcommittee has conducted interviews with 12 high-level FOIA Officials from ten Cabinet level Departments and two Independent Agencies, and a survey at the American Society of Access Professionals conference that received approximately 150 complete responses.

The results of the interviews are not surprising: FOIA work is challenging; agencies' staffs are overworked; there is no time for activities that are not processing. In terms of staffing, FOIA offices don't only need more people; they need staff with appropriate skills and critical thinking ability. Staff has concerns about the ability to advance in their careers, and the officials have concerns about turnover, and there are vacancies remaining from the pandemic. The survey found that 78% of respondents reported needing more resources. Sixty percent of respondents reported that staff was the greatest resource need. A slight majority of respondents noted that they had considered leaving their positions. The results about FOIA training for all employees indicated that there is variation from agency to agency, with some agencies providing FOIA training to all new executives. Seventy-eight percent of respondents to the survey indicated that they had received adequate training. They stress trying to get personnel to recognize that FOIA is everyone's responsibility.

Mr. Chalmers noted that there have been more than 12 interviews, but the rest have not yet been memorialized. He then reported on potential recommendations that the Subcommittee is contemplating. Based on the data they have collected, they've put together several clusters of potential recommendations. One key widespread issue is the difficulty hiring and retaining qualified personnel. One cluster of recommendations seeks to help managers fill positions. One recommendation that is likely to go to the full Committee is that FOIA professionals should be a “direct hire” position rather than a “competitive hire” position. The government does that for job types that are hard to fill, such as with IT professionals. Mr. Chalmers noted that FOIA professionals are as important as IT professionals. A second recommendation that the Subcommittee is exploring is to adjust the career ladder for FOIA professionals so that there is more advancement potential. They might recommend that career ladders go to higher GS grades. A third recommendation they are considering is to make it easier for federal agencies to bring in contractors to support FOIA processing, specifically by adding FOIA to the GSA schedule for contracting for goods and services.

A second cluster of recommendations the Subcommittee is considering is about training. One recommendation would make FOIA training mandatory across government both for new employees and as part of annual training.

Another area the Subcommittee has looked at is about a centralized platform for federal agencies. There were mixed results from the outreach; some agencies wanted such a platform while others did not. Agencies found that FOIAonline was not customizable, which means many agencies did not want to use it. Agencies that have classified or sensitive records do not want to be on the same cloud-based system as agencies without classified information. Agencies recognized that there could be economies of scale for a centralized system.

There was not a lot of interest from agency FOIA personnel about the possibility of a line item for FOIA in the budget.

One issue is that many agencies have employees engaged in remote work, which helps retention. Back-to-office mandates have the effect of encouraging staff to look for other employment. For classified FOIA processing, remote work is not possible, which makes hiring for those positions more difficult. The Subcommittee is contemplating potential recommendations to address that issue.

Mr. Howard thanked the Subcommittee for their work. He noted that the State Department's passport processing significantly reduced their backlog by aggressively hiring and using overtime.

Ms. Semo noted that the results of the Subcommittee's outreach efforts would be made public.

Public Comments

Ms. Semo opened the floor to public comments and stated that all oral comments are captured in the transcript of the meeting. Oral comments are also captured in the NARA YouTube recording, available on the NARA YouTube channel.

Ms. Semo reminded participants that public comments are limited to three minutes per person. She asked Mr. Levenson if there had been any relevant questions or brief comments via Webex chat.

Mr. Levenson read into the record two questions from academia posed to the committee members. First: Are there plans to deposit datasets in data.gov or mandates that agencies share their data via data.gov? Second: Will FOIA libraries be phased out over time as centralized FOIA portals are developed?

Mr. Howard noted several speculative ideas: On the second question, online FOIA reading rooms are mandated by law, so they will not go away. On the first question, it depends on whether FOIA logs are open data sets with metadata. There is a future where government sites could automatically compile FOIA records if they're in a machine readable format. The Office of Management and Budget needs to issue guidance based on the legislation. There is a lack of capacity in harmonizing FOIA with open government data mandates because of lack of resources.

Mr. Levenson read comments from a commenter into the record. The commenter noted agency specific deficiencies in FOIA funding and processes and has recommendations. The commenter was concerned that an agency altered its FOIA policy in the CFR and questioned whether the public comment period complies with the Administrative Procedures Act, disagreeing with the agency's determination that public comment is unnecessary before finalizing because the amendments are administrative and internal. The commenter offered to assist DOJ OIP in producing a template with model language that agencies can copy and paste into their policy manuals. He asked OGIS to develop a near-term plan to audit every agency FOIA policy manual. The commenter requested agency top-line budgets for FOIA. He observed that despite FOIA staffs’ desires to serve the public interest, leadership thwarted release of embarrassing or threatening records. The commenter voiced support for one centralized FOIA platform and for strengthening OGIS - or another alternative resolution entity - by granting it enforcement powers. He also suggested transferring OGIS’ and DOJ OIP’s FOIA compliance oversight to GAO so that NARA could use resources for mediation. GAO would put some teeth into FOIA compliance oversight. He suggested that OGIS needed more mediation staff to address the rising number of litigation cases and costs and he called for more OGIS compliance reviews.

Ms. Semo noted that the power point presentation is available on the website.

Ms. Ridley did not see commenters in the queue.

Mr. Levenson read additional questions from the chat into the record. A question posed to all federal agencies: how many employees are currently on their FOIA teams? How is it that FOIA processing times are supposed to be 20 working days? Another commenter asked if NARA would make the recording available later.

Mr. Levenson answered that the meeting is live-streamed on YouTube on the National Archives YouTube channel and will be available for later viewing.

Mr. Scarlatas commented that he was interested in the FOIA regulation changes moving forward. He noted that he had a FOIA response that was highly redacted about a criminal arrest. He asked about the credibility of FOIA when deadlines are not being met.

Ms. Semo spoke as the FOIA Ombudsman and told the requester to reach out to OGIS.

Ms. Ridley did not see additional commenters in the queue.

Ms. Weth answered a previous public comment by suggesting that to research how many FOIA professionals are at each agency, the commenter can check the annual FOIA reports for each agency.

Mr. Heise noted that the EEOC FOIA staff who process charge files do an outstanding job.

Closing Remarks and Adjournment

Ms. Semo asked if there were any final questions or comments from the Committee members. Hearing none, she reminded the Committee that the next meeting would be on Tuesday, March 5, 2024 at 10 a.m. Eastern time.

Ms. Semo adjourned the meeting at 1:00 p.m.

I certify that, to the best of my knowledge, the foregoing minutes are accurate and complete on January 26, 2024.

/s/ Daniel F. Levenson

Daniel F. Levenson

Alternate Designated Federal Officer,

2022-2024 Term

/s/ Alina M. Semo

Alina M. Semo

Chairperson,

2022-2024 Term

Top