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March 6 Minutes — (Certified)

 

The Freedom of Information Act (FOIA) Advisory Committee convened virtually at 10 a.m. ET on March 6, 2025.

In accordance with the provisions of the Federal Advisory Committee Act, as amended, 5 U.S.C. Chapter 10 (codified at 5 U.S.C. § 1001, et seq.), the meeting was open to the public from 10 a.m. to 11:27 a.m. Meeting materials are available on the Committee’s website https://www.archives.gov/ogis/foia-advisory-committee/2024-2026-term.

Committee members present at the 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
  • Nieva Brock, U.S. Department of Defense
  • David Cuillier, University of Florida
  • Whitney Frazier-Jenkins, Pension Benefit Guaranty Corporation
  • Elizabeth Hempowicz, American Oversight
  • Scott Hodes, Department of Homeland Security
  • Shelley Kimball, Johns Hopkins University
  • Margaret Kwoka, The Ohio State University 
  • Frank LoMonte, CNN
  • Marianne Manheim, Department of Health and Human Services
  • Deborah Moore, Department of Education
  • Joan Moumbleaux, Environmental Protection Agency
  • Ryan Mulvey, Americans for Prosperity Foundation
  • Richard Peltz-Steele, University of Massachusetts
  • Melissa Pickworth, Department of Health and Human Services
  • Bobak Talebian, U.S. Department of Justice, Office of Information Policy
  • Sarah Weicksel, American Historical Association
  • Nick Wittenberg, Armedia

Others present or participating in the meeting:

  • Kirsten B. Mitchell, Committee’s Designated Federal Officer, NARA

  • Alexander Howard, open government advocate and public commenter

Welcome and Updates from the Chairperson

Ms. Semo welcomed attendees to the fourth meeting of the sixth term of the FOIA Advisory Committee. She noted that this meeting followed three very productive meetings, which are available on the National Archives YouTube channel. Certified minutes and transcripts from those meetings were posted online. 

She noted that each of the Committee’s three subcommittees would present updates. The subcommittees were set up to look at implementation of previous terms’ recommendations; to develop concrete recommendations for statutory reform of FOIA; and to examine the challenges of the frequency and volume of FOIA requests. Ms. Semo acknowledged the diligent planning and deliberations of the subcommittees.

She noted that the meeting operates under the Federal Advisory Committee Act (FACA) and is public in accordance with FACA requirements, and that the FOIA Ombuds blog was featuring a series of posts with short profiles of Committee members.

She noted that there was one vacancy on the Committee due to Kevin Bell of the Federal Energy Regulatory Commission departing government service. She thanked Mr. Bell for serving.

Ms. Mitchell confirmed a quorum, noting that all 19 members were in attendance.

Ms. Semo encouraged members to use the raised hand icon and asked for Webex chat to be procedural matters only since the chats are not recorded in the transcript of the meeting.

There was no planned break, but if the need arose, Ms. Semo would call for one.

She noted that members of the public may submit comments via the online Public Comments form. Comments that comply with the public posting policy would be posted as soon as possible. The one comment received so far had been posted to the website. The timeframe for today’s meeting would be flexible with a public comment period at the end of the meeting.

Ms. Semo turned to the agenda.

 

Subcommittee Reports

Implementation Subcommittee Report

Co-chairs: Mr. Baron and Ms. Manheim

Mr. Baron noted that the Subcommittee continues the work of last term’s Implementation Subcommittee to look at how agencies have implemented the Committee’s 67 recommendations.

Dr. Moore noted that in November, the Subcommittee established a Barrier Analysis Working Group to identify the barriers preventing agencies from implementing the recommendations. They decided to hold focus groups with agency FOIA professionals, and come up with questions and a list of recommendations that were in-scope for this effort. They considered all 67 past recommendations and narrowed the list to 20 that they considered  “in-scope” including recommendations that explicitly called for agency action and those that implicitly suggested agency action. They sought to include the broadest cross-section of agencies possible: large, medium and small, and ones with both centralized and decentralized FOIA programs.

She noted that the Subcommittee worked with the Volume and Frequency Subcommittee that were considering outreach to avoid duplication of effort. They used contacts from FOIA.gov, and sought additional contacts from the members, to ensure the outreach was as broad as possible. They would assure participants that any comments would not be attributed to them.

She explained that the design of the focus groups would adhere to certain parameters. Each group would have four or five members, plus one moderator and one note taker. The moderator and note taker would receive specific training. The groups would last 60-90 minutes, and findings would be reported in a non-attributable manner. They would analyze the outcome, looking at trends and areas that give rise to recommendations and at reporting on implementation of recommendations that would appear in the Chief FOIA Officer reports..

She noted that they were working to identify implementation strategies and best practices, which along with the focus groups would inform future recommendations. She thanked the working group members.

Mr. Baron invited Subcommittee members to comment.

Ms. Manheim noted that she had been impressed with the work so far including the plan of action. Subcommittee members had tried several other things, including looking at previous winners of Department of Justice FOIA awards to mine their work for general best practices. She also noted that the working group would look at artificial intelligence in FOIA administration.

Mr. Baron noted that the Subcommittee asked that OGIS staff preserve the records of the Subcommittee to ensure that there is a record of what the Subcommittee has done thus far this term. He turned the floor back to Ms. Semo.

Ms. Semo asked if Dr. Kimball had anything to add. 

Dr. Kimball noted that the Subcommittee would analyze responses to the new questions in the 2025 Chief FOIA Officers (CFO) reports gauging agencies’ knowledge of the Committee’s work and its recommendations. 

Mr. Talebian noted that agencies would start posting the reports during Sunshine Week [March 15-21].

Ms. Semo noted that Dr. Moore was having technical difficulties and could not be seen on camera. 

Ms. Semo asked for additional comments for the Implementation Subcommittee; hearing none she turned the floor to the Statutory Reform Subcommittee.

 

 Statutory Reform Subcommittee Report

Co-chairs: Ms. Frazier-Jenkins and Mr. Mulvey

Mr. Mulvey noted that the Subcommittee would submit its progress report to OGIS before the end of the day to be added to the other two Subcommittees’ reports already posted online. He reported that the Subcommittee has been looking at recommendations to Congress to improve FOIA and has established three working groups. The Transparency Obligations Working group is  looking at reform of 5 U.S.C. §§ 552 (a)(1) and (a)(2) [FOIA’s proactive disclosure provisions] and the nine statutory exemptions. The Enforcement Model Working group is looking at OGIS,  the possibility  of an independent information commission, and the judicial review process. The FOIA Processing Working Group is looking at the mechanics of how requests are processed.

Ms. Fraizer-Jenkins reported that the Processing Working Group has met several times and has been evaluating possible changes to the structure of FOIA fees. Some agencies report that the current fee structure is a problem for agencies. These areas of working group research include allowing agencies to keep their FOIA fees to fund FOIA programs rather than going to the General Fund at the Department of the Treasury. She noted that she thinks at least one agency currently has that model. The working group has been exploring revising FOIA to allow agencies to charge for faster processing of requests that are backlogged, which would provide resources for FOIA programs. The current statute does not address the processing of electronic material, and most agencies are seeing requests for electronic material; so the Working Group is looking at possibly amending the statute to accommodate the cost increase for large electronic records sets. The Working Group would conduct further evaluation for how FOIA programs could address the need for resources.

Mr. Mulvey thanked Ms. Frazier-Jenkins. 

He gave special thanks to Mr. LoMonte for compiling the work of the Transparency Obligations Working Group. Mr. Mulvey noted that the Transparency Obligations Working Group would look at material subject to FOIA’s mandatory disclosure provisions and the scope of the nine exemptions. While  the two other working groups are looking at mechanics of disclosure, this Working Group is looking at what must be disclosed or withheld. He noted that there are no findings or recommendations yet, so nothing reported should be taken as the final ideas of the Committee or the Subcommittees. 

The first category of this Working Group’s research deals with process. This group would look at an agency’s affirmative disclosure obligations, such as the type of material that would be subject to Reading Room posting. There are lots of types of material that many requesters are interested in, and proactive posting would likely result in fewer requests and improve agency backlogs. Records of this type include FOIA logs, organization charts, interagency/intergovernmental agreements, reports or other material provided to Congress that aren’t already required, and information about the largest contacts or grants at each agency.

Mr. Mulvey explained that the Working Group has looked at the need to statutorily resolve the circuit split between the U.S. Court of Appeals for the D.C. Circuit and the Ninth Circuit about the power of a court to oblige an agency to comply with reading room posting. The Working Group has been looking at alternatives to FOIA for high-demand requests such as the IRS stand-alone system for accessing one’s own records, and the Veterans Health Administration system for accessing one’s own medical records. There is also the question of access to immigration records. Providing an alternative to FOIA for these types of records could help with processing burdens at agencies. The Working Group members have looked at the proactive disclosure of FOIA logs at all agencies, which many requesters have expressed an interest in and which could reduce requests.

He continued by noting that the Working Group is also exploring many ideas, such as adding sunsetting provisions to other exemptions and whether the sunset provision for the deliberative process privilege needs to be reformed; whether the definition of a record needs to be tweaked in response to the D.C. Circuit’s decision in American Immigration Lawyers Association v. Executive Office for Immigration Review; extending the application of FOIA beyond the executive branch to certain types of legislative and judicial branch records; whether FOIA should be applied to government-funded non-profits, enterprises, self-regulatory agencies, and other bodies that are involved in regulations and other records in non-government hands. 

Another category of ideas the Working Group is exploring is exemption reform. Examples include better guidance between discretionary and non-discretionary exemptions and further guidance on the foreseeable harm standard. The Working Group is also considering exemptions that should no longer exist, such as Exemption 2, or exemptions that should be added or expanded such as Exemption 5. The Working Group is also looking at the variety of withholding statutes under Exemption 3.

He noted that another area of exploration of the Working Group is the way FOIA review can be reformed beyond the current system of judicial review. There may be alternatives  like having an independent information commission—apart from OGIS—that has authority to settle disputes. The working group may explore the functioning of the Office of Special Counsel (OSC) and inspectors general vis-a-vis FOIA. The group might explore topics such as the creation of a special Article III [of the U.S. Constitution] FOIA court with non-exclusive jurisdiction;  the requirement for lodging of administrative complaints;  the availability of discovery in FOIA;  the remedial authority of a court; the attorney fee and litigation cost provision [of FOIA]; the employee sanction provision; and the role of courts to refer to OSC.

Mr. Mulvey asked if members of the subcommittee had anything to add or correct; hearing no comments, he turned the floor back to Ms. Semo.

Ms. Mitchell noted that Dr. Cuillier had his hand raised.

Dr. Cuillier noted that Committee meetings were useful in order to hear what the other Subcommittees were doing. He noted that the cost issue comes up every term because agencies need funds to carry out their mission. Often, agencies turn to copy fees as a solution; however, copy fees dissuade the public. The average FOIA request costs $261 to process. He estimated that anything over $100 would dissuade the public. Copy fees bring in approximately 1 percent of the cost of a FOIA program. The chilling effect might not be justified by the income. He would be happy to provide the research he cited. He noted that state and local governments have looked into this solution to solve the problem. 

Ms. Brock noted that she understood Dr. Cuillier’s position and noted that the agencies where she had worked had never charged copy fees, but video redactions are becoming more and more expensive. As video becomes more requested, agencies are starting to charge copy fees on those. She asked for his opinion on whether that was a happy medium.

Dr. Cuillier acknowledged that police departments have struggled with reviewing and releasing video and have found solutions. He noted that it’s important for agencies to be funded to have records management technology for redactions, and it’s not reasonable to charge requesters $5,000 for a video. Requests for video could quickly become unduly burdensome. It’s not fair to saddle an agency with a large volume of requests, nor is it fair to other requesters. In his experience, a “happy medium” ends up unhappy for requesters. He said he looked forward to talking through that.

Ms. Brock addressed the review of the deliberative process exemption and suggested partnering with the Volume and Frequency Subcommittee because if the deliberative process exemption is removed, there would be many more responsive records released. She noted that the deliberative process exemption applies to many of the iterative drafts and reduces the volume of records that need to be processed.

Mr. Mulvey noted that cross discussion among the Subcommittees before bringing anything to the full Committee was worthwhile. The Working Group is aware that certain ideas would be more provocative than others, particularly to government members. The Working Group is open to all ideas.

Mr. Baron noted that the Statutory Reform Subcommittee had presented an ambitious agenda of statutory reform proposals. He made a process point, noting that there would be limited time in the term. In the past, there have been interim recommendations, so he asked that the work of the Working Groups be staggered so they could present proposed recommendations to the full Committee earlier rather than later, especially the provocative ones. It would give members more time to consider and debate, rather than waiting until the final stretch of the term.

Mr. Mulvey noted that the Subcommittee members already planned to stagger presentation of the proposals to the full Committee. They had anticipated the concern and don’t want to rush anything by waiting until the end.

Ms. Manheim asked how any proposals were going to affect the many agencies that are not represented on the Committee, and noted that there may not be time in this term to do comprehensive research on every agency’s perspective. She asked whether the Department of Justice has been involved with that process in the past.

Mr. Talebian responded that typically when Congress has considered amendments to FOIA, agencies have been able to respond via the interagency commenting process.

Ms. Hempowicz noted they have started having these conversations as a Subcommittee. As an advocate from the outside, she felt that agencies have a lot of input in the final text of FOIA statutory reform. The Subcommittee is recommending language for Congress’s consideration, and agencies would have a lot of say. The recommendation would be a starting point for Congress. She noted the Committee shouldn’t let the perfect be the enemy of the good.

Ms. Semo noted that the meeting was progressing quickly, and turned the floor to the Volume and Frequency Subcommittee. She asked other Committee members, particularly government members, to consider joining this Subcommittee.

 

Volume and Frequency Subcommittee Report

Co-chairs: Mr. Wittenberg and Ms. Brock

Mr. Wittenberg noted that the Subcommittee is small and thanked the Subcommittee members, especially Dr. Kimball for being the liaison with the Implementation  Subcommittee. The Subcommittee has been looking at making processing more efficient because the number of requests increases daily. They had been planning to do a survey about frequent and high-volume requests  to launch during Sunshine Week or at the conference of the American Society of Access Professionals in May. [The latter was later cancelled in light of restrictions across the federal government.]  The Subcommittee also plans to examine technology, especially generative AI. 

Dr. Kimball gave further detail on the survey planning. They wanted to develop the survey for both FOIA professionals and requesters and any suggested solutions for both agencies and requesters. The survey will ask both sides about their ideas of burdensome requests. The Subcommittee looked at work from earlier terms to ensure they were not duplicating effort. They plan to recruit through independent agencies; they’re working with the Implementation Subcommittee. They plan to use these results to understand what people in the FOIA world find particularly difficult, to understand how agencies manage the caseload, and to identify bottlenecks. From there, they will identify best practices. They’re working with the Barriers to Implementation Working Group [of the Implementation Subcommittee]  to avoid duplication of effort. If focus groups do not come to fruition, the plan is to move the questions in the qualitative survey. She hopes the work they are doing sounds interesting enough to attract new members to the Subcommittee.

Mr. Wittenberg noted that members have been enjoying the work.

Ms. Brock added that they wanted to be helpful, useful, and pleasant for all. They do not want to simply reduce requests, or sacrifice quality for speed. The ultimate goal is to maintain high standards and accountability in the administration of FOIA. 

Mr. Wittenberg reiterated that the Subcommittee is doing well and would appreciate further members.

Ms. Semo noted that two Subcommittee reports had been posted and the third would be posted online as soon as it is available.

Ms. Kwoka asked if anyone, especially the government members, had comments on the impact from the challenges and changes to workforce policy on the availability or capacity of respondents. Is there a concern that the Committee won’t get robust participation? All the initiatives are valuable, and she hoped that the Committee could accomplish them.  She invited comments on how to facilitate as much participation as possible in the current environment of rapid government downsizing.

Ms. Brock stated that her comments are her own, and should not be attributed to her agency. She noted that it is a concern, but not something they can worry about at this point. Things are changing rapidly, and will eventually settle down. The Committee is trying to stay steady. 

Ms. Manheim noted that changes are happening agency by agency, and that she and her colleagues go to their leadership for guidance.

Ms. Mitchell returned to the search for volunteers for the Volume and Frequency Subcommittee. She had received an email from a non-Committee member volunteering to join and noted that only Committee members can serve on a Subcommittee. 

Ms. Brock thanked the sender of the email for offering assistance.

Ms. Semo noted that there were other ways the person could contribute.

Dr. Cuillier asked about the affiliation of the person.

Ms. Mitchell noted that the person was a contractor on FOIA issues and that she appreciated the person’s attendance.

Dr. Cuillier noted that there’s nothing to preclude Subcommittees or working groups from inviting people to voice opinions.

Ms. Mitchell noted that Subcommittees had invited speakers to previous meetings.

Dr. Cuillier noted it would be especially helpful to hear from FOIA officers who are troubled with large and burdensome requests.

Ms. Semo checked whether Ms. Kwoka was satisfied with the information.

Ms. Kwoka acknowledged that her question was unanswerable, and appreciated hearing from Committee members. She noted that hearing from outside people would help make results more robust.

Ms. Semo noted that anonymity helped with the process. She turned the floor to Mr. LoMonte.

Mr. LoMonte noted that the Subcommittees have done a lot of meaty and substantive work over the past few months. He wanted to ensure that work is captured and memorialized beyond the transcript of this meeting. By way of housekeeping, he wanted to have a vehicle to receive any reports that are underway.  

Action Item: Mr. LoMonte moved that, “the Subcommittees be given an additional 30 days to submit more formalized written versions of today’s reports as a supplement to the record of this meeting, which are to become a part of the official record and to be shared on the Archives’ website along with the Committee’s other work product and preserved and retained in accordance with FACA [the Federal Advisory Committee Act].”

He noted that the proposed deadline would be Monday, April 7 to account for the weekend.

Ms. Semo thanked him for calculating 30 days.

Ms. Brock seconded the motion.

Ms. Semo asked if anyone wanted to have a discussion. Hearing no comments, she opened the vote.

The motion passed 19-0.

Ms. Semo asked if other members had questions for the Subcommittees. Hearing none, she opened public comments.

Public Comments

Ms. Semo noted they look forward to hearing from the public and that oral comments would be limited to three minutes per person.

Mr. Howard identified himself as an open government advocate based in D.C. He thanked NARA for hosting the public meetings of the Committee. He asked why not—instead of seeking to charge watchdogs and the media—double down on commercial requesters. He noted concern that fees might be used to limit the public’s ability to request records. He also expressed concern that the Committee is considering recommending raising fees rather than recommending investing in software for redacting video. He suggested the Committee survey local police departments to find the technology they use for video redactions. To evaluate how fees inhibit the right-to-know, he suggested the Committee speak with open government advocates. Cost savings could come from agencies proactively releasing records such as FOIA logs. The Committee might look into whether agencies are complying with the “rule of three” that requires posting of records that are requested three or more times. Records that the media asks for should already be released, he said. Another area of focus might be to look at withholdings after the Supreme Court’s ruling in the Food Marketing Institute v. Argus Leader case. It would be good to hear Committee members’ thoughts about whether a White House office is subject to FOIA. Agencies were previously making large amounts of information public, but many websites have been taken down. Thus more FOIA requests are necessary. He asked for confirmation on whether cuts to federal workers have affected FOIA officers.

Ms. Semo asked if any members wanted to comment on Mr. Howard’s comments.

Ms. Kwoka thanked Mr. Howard for the comments. She offered thoughts on two points. On fees for commercial requesters, she noted that based on her research, she is personally not necessarily opposed to a modest increase in fees for commercial requests. Her worry is that the larger the differential between fee types the more requesters would mask their identity. This would cause agencies to spend time to find out the true nature of the requester’s identity, and the administrative burden could be increased. She noted that there might be a happy medium in this concern.

 The second point she noted was on website blackouts and removal of information: there is already litigation on this issue. It will play out in the courts in the coming months. It is something that the Committee could potentially help. The Statutory Reform Subcommittee is looking at litigation reform. Can they propose any statutory amendments that would be helpful. She noted that FOIA’s language on reading room requirements are pretty thin, and they were considering that issue. She thanked Mr. Howard again for his comments.

Ms. Semo confirmed with the event producer that there were no additional hands raised. She thanked Committee members, and noted that anyone could submit public comments at any time via the public comment portal. The next meeting is scheduled virtually for Thursday, June 12, 2025.

She asked if members had final comments, and hearing none, she adjourned the meeting at 11:27 a.m.

 I certify that, to the best of my knowledge, the foregoing minutes are accurate and complete on April 28, 2025. 

/s/ Kirsten B. Mitchell

Kirsten B. Mitchell
Designated Federal Officer,
2024-2026 Term

/s/ Alina M. Semo

Alina M. Semo
Chairperson,
2024-2026 Term

 

 

 

 

 

 

 

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