Transcript

FOIA Advisory Committee Meeting  

Thursday September 11, 2025 

10 a.m. (ET)

Kirsten Mitchell: Good morning and welcome to the September 11, 2025, federal Freedom of Information Act Advisory Committee Meeting. I'm Kirsten Mitchell, this committee's Designated Federal Officer. Please note that this meeting is virtual, and is being recorded. I am confirming that we have a quorum with 15 members present in accordance with the Committee's Bylaws. Please be advised that Margaret Kwoka will be joining us around 10:20 a.m. Because this is a public meeting, we ask members to keep their cameras on, but I want to note that Nieva Brock is not able to have her camera on this morning. 

We are once again using a new-to-us virtual meeting platform, so we ask for your patience as we navigate on this newer platform. Thank you to the audio/visual team at the National Archives (NARA) for livestreaming this meeting on the National Archives YouTube channel where it is being broadcast with a slight delay. NARA AV team - thank you for your behind the scenes support. Thank you to Dan Levinson, Alternate Designated Federal Officer, as well, who is also joining us today. And with that, I now turn the meeting over to Jay Trainer, Chief Operating Officer for the National Archives and Records Administration. Jay, over to you. 

Jay Trainer: Thank you, Kirsten. Good morning. I am Jay Trainer, Chief Operating Officer here at the National Archives and Records Administration. Welcome to our fall meeting of the Freedom of Information Act (FOIA) Advisory Committee. This committee exists to foster dialogue between federal government FOIA professionals and the requester community, and allows members to study, deliberate, and recommend ways to improve FOIA administration. 

One year into the committee's two-year term, I'm pleased to report that much study and deliberation has already occurred, and as we will hear today, several recommendations are taking shape. Each day at agencies across the government, FOIA professionals work to fulfill the more than 1 million FOIA requests that are sent to federal departments and agencies. An efficient and effective FOIA process relies on many factors to succeed. Good records management, excellent leadership, and sound management among them. But the process also relies on trust between those who process FOIA requests and those who make the request. Trust in the government has increased since last year. According to the nonpartisan Partnership for Public Service, 33% of Americans surveyed said they trusted the government in 2025, up ten percentage points from 2024. Much work remains, but each interaction between a FOIA professional and a requester, whether an email, a letter, or a phone call, offers an opportunity to build this trust even more. Each and every day, NARA's Office of Government Information Services (OGIS) works to build trust in the FOIA process by working with agencies and requesters to help prevent and resolve disputes and by reviewing FOIA compliance. Earlier this week, OGIS marked its 16th anniversary as the FOIA ombuds. 

Before turning the meeting over to committee chairperson Alina M. Semo, I want to acknowledge today's date, the 24th anniversary of the attacks on September 11th, 2001. The horrific events that attacked our nation's collective security and freedom also sparked countless FOIA requests to agencies large and small across our government. Nearly a quarter of a century later, those FOIA requests remind us of the importance of records to our nation's collective history and fabric. I now turn the meeting over to Alina. 

Alina M. Semo: Thank you, Jay. Really appreciate your remarks and thank you for joining us today. And Kirsten, thank you for all the preliminary work and all the behind the scenes work you've been doing. 

Good morning, and welcome to everyone who is watching us, both on the NARA YouTube channel and our Zoom platform. It is also my pleasure to welcome you to our sixth meeting, our fall meeting, of the 2024-2026 FOIA Advisory Committee term. Meeting materials including the agenda for today and slides are available on the FOIA Advisory Committee page of our OGIS website, www.archives.gov/OGIS. A quick note about the committee's current term, members hit the ground running in September 2024 forming three subcommittees. We will hear reports from each of the three subcommittees today. Those subcommittees are working to examine the challenges arising from the increasing volume and frequency of FOIA requests, develop concrete recommendations for statutory reform of the FOIA, and increase the adoption and implementation of past FOIA Committee Advisory recommendations. 

Before we hear reports from the subcommittees, we are very excited to welcome today two of our current committee members, David Cuillier and Shelley Kimball, along with their United Kingdom colleague, Ben Worthy, who are here to share with us their work on vexatious requests. More on that in one minute. I just want to make sure we get through some housekeeping notes first.

I also want to commend all three subcommittees and all of their working groups who have been meeting regularly since our last meeting on June 12th. I want to express my gratitude for all the hard work that the committee members have done and have put in thus far. And I am very much looking forward to hearing the report outs today. 

So, some housekeeping notes before we launch into our agenda. Let's see, this meeting is public in accordance with the Federal Advisory Committee Act (FACA), which requires open access to committee meetings and operations. In accordance with FACA, we have already posted both minutes and transcripts for our March meeting. I'm sorry, for our June meeting, and there, you will also find committee members' biographies. Please also visit and follow our blog, the FOIA Ombuds. In the past, we have featured individual biographies and Q&As with some of our committee members, I don't think we've captured everyone yet, so, if we haven't gotten to you yet, committee member, we will come and get you. 

During today's meeting, I want to encourage committee members to use the raise hand icon at the bottom of your screen when you wish to speak or ask questions. The raise hand option is even better than using the host and panelist option from the dropdown menu in the chat function when you want to speak or ask a question, but you may also use that function to let me or Kirsten know that you need to step out or you need to walk away from the camera for a more extended period of time. 

In order to comply with the spirit and intent of the FACA, we ask that you please use the Zoom chat function for housekeeping and procedural matters only. Do not enter any substantive comments in the chat function, as they will not be reported in the transcript of the meeting. I referenced this earlier, if you need to take a break please do not disconnect from the web event, instead, mute your microphone by using the microphone icon at the bottom of your screen, turn off your camera, by using the camera icon, and please send a quick chat to me and Kirsten to let us know when you'll be back. 

An important reminder to all committee members and to myself because I always forget, please identify yourself by name and affiliation each time you speak. It helps make the transcript process go much more smoothly. Members of the public who wish to submit written public comments to the committee may do so using our public comments form, which is available at www.archives.gov/OGIS/public-comments. We review all public comments, and if they comply with our public comments posting policy, we post them as soon as we are able. We will have a public comment period at the end of our meeting today. And I want to stress that we will remain flexible with our schedule today and see how the pace is going. If we need it, we can take a short break, I'll poll committee members to see how they're feeling, or we can continue to muddle through and soldier on and continue without a break and perhaps we can end a little bit early. But I will ask committee members how they feel. We'll have to take an actual vote on that, I suppose. As we noted in the Federal Register Notice announcing this meeting, just want to remind everyone, public comments will be committed to three minutes per individual. 

So, at this time, I am excited to turn to the substantive part of our agenda, house the keeping notes are over, and I am very pleased to introduce our three speakers today. Two of them are already very familiar to the committee, and to folks who are watching us today. David Cuillier of the Brechner Center for Freedom of Information at the University of Florida and Shelley Kimball of Johns Hopkins University. I do not believe they need an introduction. They are awesome and they will possibly introduce themselves, as well. But I am also happy to introduce their colleague, Ben Worthy, who is joining us from the United Kingdom. David, Shelley, and Ben's fourth colleague on this research project they'll be discussing today is an alumni of our committee, professor Suzanne Piotrowski at Rutgers University, who unfortunately is not able to join us today. 

Some quick background on Ben. He is a Reader in Politics and Public Policy at Birkbeck College, University of London. I have to rely on AI [artificial intelligence] to help me understand what a reader means, and so I'm confessing that. Ben, you'll let me know if the AI actually got it right or wrong. But the AI short version is, it's a senior academic rank, a reader in politics and public policy in the UK is roughly the U.S. equivalent of a tenured associate professor. The bottom line from AI is that someone with this title is a high level research-leading scholar in politics and public policy, trusted to shape both the discipline and real-world policy. Ben has written extensively on issues around transparency and freedom of information in the UK and elsewhere, including authoring the book "The Politics of FOI" in 2017. He's recently run a two-year Leverhulme project assessing the impact of voting data platforms, and written on open data, lobbying transparency and local government openness. He's Director of The Center For British Political Life and sits on the UK Open Government Network. I think we're all in for a treat in listening to today's panel on Vexatious Requests: Mitigating harm to agencies and while protecting the flow of civic information. So, with that, I will turn things over to David, Shelley, and Ben. Thank you. 

David Cuillier: Thank you, Alina. Glad to see everybody. I'm David Cuillier from the University of Florida and we're excited to talk about this today. And we hope to elicit some ideas, suggestions, responses, because we're not done with our work, and so, your input's really valuable. I'm going to run through some PowerPoints, we're going to run through PowerPoints, hopefully around 20 minutes or so, to give a lot of time for discussion and that sort of thing. In the PowerPoints, I'll have links, I'll have QR codes, links to studies we've produced so far, that you can tap into if you want. And that file is on the FOIA Advisory Committee website, so you can download it and have it, so you don't have to scribble things down or look at your screen. So, I'm going to share screen right now and get this going. 

All right. Very cool. So this is a study, as Alina said, four of us are working on. We've been working on for, shoot, almost a couple years now, and we hope to wrap up in June. And the main point is, we're trying to figure out, how do we mitigate that disruption to government agencies from what they, you know, different people call different words, vexatious, unduly burdensome, you name it, while at the same time, protecting the free flow of information. And, you know, this is an issue that came up a couple years ago, following the several years, particularly in 2022, of folks flooding election offices with public records requests. Basically trying to get information to see, was the election stolen or not? And this flood of requests was said to really burden a lot of offices. And so, there were efforts to do something about it, including passing laws that would ban vexatious requests, even fine people were doing it. We were concerned about some of these laws just being thrown out there, so, we decided, you know, we need to look at what really is the best way to do this? Let's put some thought into it, before we just start passing reactionary laws. And this project is funded in part by The Democracy Fund, they've been helping out, because they care about democracy. 

What we've done in the past time here, we've looked at all previous research, literature, we've looked at the…how all the states handle this issue and their laws and their case law. We have looked at public records requests logs from all around the country, including at the federal level, because, of course, we're hearing that's an issue at the federal level, as well. We participate in a survey of election officials in the U.S. A survey of records custodians in the UK. Interviews and we've been talking to experts, as well, on our advisory panel. So, we're just a deep dive into this. 

And so, what have we found so far? One, everybody calls it different things, and there are different terms, there's different definitions, it's all over the map. And, you know, there are different ways of conceiving vexatiousness, it can be workload, just too much work, it can be overly broad, vague requests. A lot of folks talk about intent, you know? That people are out to bug and harass agencies. And so, that's an interesting concept that we'll talk a little bit about. So, you know, that's an interesting issue. And we also looked at how the states have been handling this, pretty much everywhere uses fees to a large extent, to have large requests go away. They'll say, sure, you want all that information, we'll give it to you, but it will be $200,000. And that either forces the requester to hone it or walk away. Some states and their laws allow time extensions. Some allow folks to deny or ignore requests that are vague, unreasonable in scope and various terms for it. In Nevada, the term is extraordinary, if a request is extraordinary, then that's an issue. And then we do have in the U.S. a growing interest in the ability for the government to fine or ban a requester who is deemed vexatious. We're going to talk a little bit about that. 

So, first, I think it's useful to hear, well, what are we hearing from public officials on this? I think it's, you know, I come from the requester side of things, so, I think it's important to hear viewpoints on the other side of the counter, so, Shelley, can you talk a little bit about this survey that was conducted? 

Shelley Kimball: Sure, thanks, Dave. A little bit about the methods here. We added a series of quantitative questions to the Reed College Elections and Voting Information Center’s local election official survey. It was fielded in the fall and winter of 2024, and this is a survey that goes to election officials across the country in jurisdictions of a variety of sizes and geographic locations in the U.S.

So, our goals in these questions were to understand the depth and breadth of this issue, as well as to test a little bit, some of the solutions that we were considering, to kind of see what local election officials preferred and what they were experiencing. So, participants were clear that they are trying to manage more requests than in previous years. And that the requests are taking more time to fill. So, here, you can see that 64% agreed that public records requests are taking more time to fill than they did in 2020. But we also wanted to understand if this is like an iceberg effect as one scholar put it, where a small amount of requests takes up a large proportion of the burden. So, next slide, please, Dave. Thank you. 

So, you can see here, it looks like that's true. 72% said that they strongly agreed or agree that a few requests disproportionately consume a significant amount of time. Additionally, in another question, 62% reported that unduly burdensome requests significantly impeded their work. Next slide, please, Dave. 

So, here’s where we tested some of those solutions. We culled this series of recommendations from the literature, from what we knew from the state analysis, from conversations with the expert panel. And so we asked participants of this survey to rate this list to see what they preferred. So, it will be interesting to compare this with some of Ben's work coming up, but what you see here is that they primarily supported charging fees as a way to manage unduly burdensome requests. The other solutions, in order, were improving technology, educating citizens, training staff, outrightly denying requests, proactively posting material, fining requesters, banning requesters, and increasing staffing levels. Some insights into the interviews explain a bit more of this, is that the interviewees described using fees as a way to test whether the requesters really wanted that information. So, if they have a big bill to pay, will they really come get that documentation? Will they really come [to] collect those records? With technology, they saw it more as an integration into some of the other solutions, assuming that it would be an effective way to streamline their processes. In the balance, the highest opposition levels in this survey, meaning those who strongly disagreed or disagreed, were to those more punitive solutions. So, the banning requesters, the fining requesters, those outright denials. What was really interesting about this particular group of solutions was that those who reported in the survey that those heavy workloads are taking up a disproportionate amount of time, or that their work is being impeded by them, those are who are kind of the more stressed about this situation, they were more likely to choose those more punitive solutions. So, that gave us a bit of a wide look, but as Dave mentioned, we also explored the solutions developed in the UK. So, Ben, I'm going to hand it over to you to explain that part of the work. 

Ben Worthy: Thank you so much, Shelley, and thank you, everybody, for asking me to be here. So, I want to reflect a little bit on what's been happening in the United Kingdom, based on what we know already from various kind of scrutinies and reports about the UK, but also as Dave said, we did a poll of FOI offices across UK local governments and got 81 responses. So the really important thing to know about the UK freedom of information law is that when the law was passed and came into force in 2005, there was a section, as you can see here, 14-1, which said that authorities do not have to comply with the request if the request is vexatious. Just one really important thing to note, it was explicit that it is about the request being vexatious, but not the requester. Now it becomes a little bit more mysterious when we dig deeper into this - next slide, Dave. 

So, at the time that the law was passed, the law was silent on what exactly vexatious meant, but we can see here that the information commissioner in the UK, the first level of appeal in the UK, defined it now as a disproportionate, manifestly unjustified, inappropriate or improper use of freedom of information. There's a really important decision from the second level of the appeal system in 2013, around Dransfield and it said there were four different areas that FOI offices need to think about. The burden being imposed on a public authority; the motive of the requester, now this is really interesting, of course, because the actor…this was about requests and not requesters; the value or serious purpose of the request, again, the kind of hints at motive; and then any harassment or distress to the staff. The ruling was also very clear in that this couldn't be seen as hard and fast rules that cover all authorities, but that each request had to be understood in its own context in history. Next slide, Dave. 

So, the good news first. The good news is that the number of requests labeled vexatious has been very low. For UK central government, the latest figures from 2023-2024 say it runs at about 3%. That's actually very high as an average, because when you look across government departments, it's far, far lower than that. Even better news is for local government level when most FOI requests go it’s even lower, much lower, we estimate, than 1%. And for the next slide, there's slightly less good news. As is right under a freedom of information regime, the ability to prove and argue for a vexatious request is a very high burden and officials have spoken about how it is, in itself, rather a burdensome and difficult process to demonstrate and prove the request is vexatious. This is correct, of course, freedom of information regime should be applicant blind. It does become a little more difficult, as you move into it, because as I hinted earlier, proving a request is vexatious can be complex and involves discussing the motive of the applicant, and more importantly, freedom of information offices and others that we speak to and read up on, thought that actually the term vexatious itself was quite difficult and problematic. Because if you are engaged in a discussion with a requester and you label their request vexatious, that often inflames the situation even further. And actually it's for this reason that a number of information commissioners in the UK have said that actually they think that vexatious is underused in the freedom of information law, possibly because there might be more convenient and less contentious ways of dealing with requests. Next slide, please. 

And in yet more kind of slightly good news, despite the existence of the vexatious request section, there is still perceptions of a wider burden around freedom of information, and, in fact, UK FOI offices had even stronger views that a small proportion of requests took up a great deal of time, 90% said they had to spend more time with FOI requests and almost 80% of saw that a few requests take up a great deal of time. The estimates of how many requests were burdensome vary and the average was around 20%. And it is important to note that the effect of burdensome requests and also vexatious requests is very disproportionately spread. Central government departments which are much larger can deal with them much more easily than other smaller bodies like police forces and certain higher education universities, which have struggled with very particular kind of vexatious requests. Next slide, please. 

So, here's the interesting part around solutions. Most of these broadly match with their colleagues in the United States about what kind of things they supported as possible solutions. The one interesting standout difference here is that UK FOI offices were much less keen on fees for requesters. And when they talk about fees, they're normally thinking about up-front fees. And I'm happy to discuss this further in the discussion, but from my point of view, it seems that the freedom of information in the UK is to all intents and purposes free to use. There is no up front fee for requests. There is the ability for authorities to charge for costs and processes, but that seems to be very rarely used. And I think more importantly, the debate about whether to introduce an up front fee has been had on numerous occasions in the UK, and pretty roundly defeated. So, I think there is a kind of perception among FOI advocates and offices that fees is something that wouldn't work as it should, and won't really do the thing that you hope to do. Next slide. 

Just finally, while we were asking these questions, we also asked a quick question about whether any FOI offices have had a freedom of information request that they thought was written by or drawn upon artificial intelligence. And as you can see, around a third of FOI offices said yes, around a third said no, and almost 1 in 5 were not sure. And I think this comes with a pretty heavy caveat, which is, there is no formal system for knowing if a request has had any kind of AI assistance. So, next slide. 

So, just to conclude, when we did ask those FOI offices who did feel they had AI-assisted FOI requests, [they] said they identified them in a few different ways. Firstly, they were identical or very similarly worded, or they arrived in a short space in time. There was no sign that there was any tsunami of AI FOIs coming in, but there was surges around particular times, you can see, during 24 hours, or in a few hours in a day. In terms of volume, again, they seem to be pretty low estimates, varied from 0.1% to the highest, which was 10%. And so far, and I think I do emphasize so far, FOI offices in the UK have been using Section 8 of the UK FOI Act, which means that a requester has to prove that they are a real person. So, it seems that FOI offices were responding to these suspect AI FOIs by asking the person if they were real, if they didn't respond, then the request didn't have to be processed. 

Just two final thoughts on this issue. One is that FOI offices were also keen to point out that there was a positive side to the use of Artificial Intelligence. This could improve requests, make them more accurate, make them clear and actually help them, and also secondly, the solution here depended very much on the quality of the AI assistance that was available. This could be a very different picture even in a few years time, as AI improves. Thank you, and I think back over to Dave. 

Shelley Kimball: Sorry, Dave, I'll take this one. So, in our work, we were also really interested in the Connecticut FOI commission. It's an independent commission until which agencies would file petitions to sort of move that vexatious request or requester over to an independent agency for them to adjudicate how to manage this. So, the law was amended in 2017 on a template from something they were seeing in Canada. The petitions, when they're filed, have to be very specific, explain why the agency needs relief, because they don't want this to be kind of a knee jerk reaction to the average frustrating request. These petitions would not take into account motives or the level of distress. Instead, the agency has to demonstrate that there is a history of vexatiousness in the number of requests, the scope, the language, and a pattern of conduct that is abusive to the right of accessing information. There have only been a few petitions filed. In the very beginning, they were kind of unsure about whether they'd be this wave of petitions from agencies, but there really hasn't been. And of those petitions, there are fewer that the commission then takes up for a hearing. But I wanted to tell you about two cases that have gone all the way through the process. In these two cases, requesters have been banned from making requests to these agencies for a year. 

So, in one case, the requester had a history of repetitive, duplicative, voluminous, and harassing requests; and then in another city, the requester was labeled as vexatious because of repeated requests that were deemed accusatory and offensive. So, Dave, I'll hand it back to you to talk through some of the potential solutions. 

David Cuillier: Great, thank you, Shelley. And by the way in Utah, where they adopted something like this, they also have labeled one person vexatious, I think banned for a year. Tennessee where this was instituted, I believe hasn't had anybody, and I think that is being sunsetted. So, this isn't widespread at this point, although, in the last legislative sessions in the spring, we did see a half dozen proposals pop up and I suspect there will be more this coming spring. So, more people are going to look to these kinds of solutions. Especially given what we're hearing with greater use of, like, mass requests hitting agencies. Particularly in Pennsylvania, that's becoming an issue, so this is only going to be an issue that gets a little more attention. 

So, what do we do about it? Well, we don't know for sure. And this is a draft. And this is why we need your input. So, tell us where we're going off track here. Or tell us if we're missing something. But clearly, you know, there's some ways, I think most people can agree that additional training, not only for staff, but the public and requesters can help, so that's pretty simple. More resources, technology, you know it's interesting the election officials said more staff was their lowest ranked solution, and I think if you talk to federal FOIA officers, they'd say it's their number one, probably. You know, more money, more resources, more staff, particularly now, where a lot of federal FOIA offices have been gutted. And I suspect the election officers, when they're responding to that question, were thinking, well if I'm going to get more staff I'm not going to put it into public records, you know. I'm going to put it to real needs. So, but we're not quite sure. 

Certainly, the use of AI can…has a lot of promise in helping agencies streamline their search for records, and possibly redaction, as well. Proactive posting, of course, you know, the more we can get records and data out there online, where people can find it, it means we don't need to deal with requests, large requests. So, you have to keep working towards that and improving our records management systems across all levels of government. 

A recommendation from the last FOIA Advisory Committee was that agencies have front-end discussions with requesters - and we think this is a great idea. In fact, it should be required by law, as it is in many countries. I think Ben, in the UK, custodians are required by law to assist requesters in crafting good requests. And if they want it, you know. If they don't want any help, then they shouldn't be forced on them, but doing it on the front end, I think, just makes sense. 

You know, there are different concepts we run across, we're intrigued with, like express lanes and zippering. Express lanes, which we see at the federal level, expedited review. Simple requests are supposedly done quicker than complex requests. Or zippering - you have someone who has requested, submitted 20 requests or more, well, deal with their first one, then somebody else's. Then deal with their second one, then somebody else's. On and on and on. So, there might be ways of processing techniques that could help. 

Staggered dissemination. So, hey, you want all that information, sure, let's do it in phases, which, you know, I think the courts already do. When someone sues for a bunch of records, often the courts will set up a timeline. Ok get this batch first to them and then get these records to them in the priority of the requester. So that has promise. 

We're intrigued with differential copy fees. There's a lot of debate here, and we're still wrangling this. We don't like fees in general as a solution for this. Even though agencies rely on them for this and we just don't like it. Because we see it abused everywhere. We see agencies using that discretion often to get inconvenient or embarrassing requests to go away. So, perhaps we come up with a system where corporate requesters, they go ahead and pay fees for these large requests, and I think a lot of companies, from what we hear, are willing to do so, they make money off this information. So they're willing to pay for it. But any other requests that deal with the public interest, even first person requests, records that I might want to get about myself for my own things. Perhaps they should be free. As they're treated in a lot of other countries. And so, I think that's really something to explore. 

And then, finally, we do see value in an independent commission setup. Maybe not for banning or fines, that's still under debate, but certainly, these independent commissions have a lot of value, you know, past terms of this committee have recommended independent commissions with enforcement authority. They could conduct the training. They could help agencies provide better technology. You know, there's just so much benefit. And perhaps they can also not only step in and enforce the law, in addition to the ability to go to court, but they also could step in and maybe say, hey, this request is way uncalled for, this is way out of line, and there's got to be a better way. So we are intrigued with the commission, I don't think we…I think there's a lot of possibilities. I think what matters, we think, is how you write up the criteria, and how you implement it. There's also less favorable approaches and this will wrap up here with this slide and get to comments and discussion. 

Again, not big fans of search and redaction fees. We think that's problematic in the United States. We're not fans of the vague laws that have been approved and proposed across the country to allow a custodian to ignore a request if it's unreasonable in scope or many other vague criteria. We're also seeing time extensions being put into law. There was one state that was proposing a time extension of six months, renewable. That is a long time, I think. Quotas and caps. We also think are artificial and get in the way of valid requests that may be large, but important. Fines and jail time, we talked about that. And some folks have brought up forcing requesters to sign affidavits that they are not doing this to harass, that they're doing this in good faith. That, of course, has dangerous ramifications of being weaponized. There's growing interest in prohibiting anonymous requests, or what's perceived as AI driven requests. We think there's a lot of problems there, as well. Most notably, I think there's a lot of confusion out there on what's AI creating? In fact, as we talk to people who have been accused of doing this, we find that they're not using AI to send out 100 requests, they're just using scripts that they wrote, programming scripts that have nothing to do with AI, that have been around for years. So, I think we really have to look closely at how this is being done before we just create laws banning AI or other procedures. 

So, that's some of our thinking, and we really want to hear from folks, where are we getting it right, where are we getting it wrong? Feel free to take a look at those papers that we've written to this point. And then we're going to produce a final report this winter, we'll put it out on the web, we'll put it out for everyone to see. And then probably update it as we get feedback and learn more. So, thank you, all, for your time. And happy to open it up to discussion. And we will take notes and learn from you. So, I don't know, Kirsten or Alina, do you want to be the moderator, the gavel holder on this? 

Alina M. Semo: I'm happy to do it, but you can do an excellent job. 

David Cuillier: That's very kind of you.

Alina M. Semo: I can let you do it. 

David Cuillier: Okay. Margaret…oh by the way, one thing I didn’t mention, we do have a working group in this term's committee on volume and frequency. I should have, oh no it’s a subcommittee, sorry. I should have brought that up. Shelley's on it, I'm on it, we got…who else is on it, shoot, I don't have the list..

Shelley Kimball: Nick and Nieva. 

David Cullier: Nick and Nieva. So we may throw out some recommendations for this committee to consider recommending to the National Archives, the Archivist and Congress what have you, so I had to mention that. Margaret, go ahead. Sorry. 

Margaret Kwoka: Thank you so much. And this is just, like, such an interesting and informative set of findings from this study, so, I really appreciate all the work that went into this and taking the time to present this to us. My question is about fees. So, I think the word -- and I -- this is because I think fees are just a really prominent part of discussions about reforming FOIA in the United States generally, and I sometimes…I've been in my own head, I come from the requester perspective, I don't love fees, but I also sometimes think the word fees is doing different kinds of work, and I think one of the things that we might do is sort of tease apart what is the goal of fees, and then, you know, what are the methods of, you know, not just the amounts, be you the methods of fees, so…and I'm thinking about this, because, you know… 

One goal of fees could be, as you've taken, you know, in the course of this project, to deter, you know, vexatious or requests, whatever it is we're calling them now, and, you know, it could be like, to cut down on these particularly burdensome requests. Another version of fees, of course, the goal could simply to be recoup a certain amount of costs that is required to administer the program, which, you know, I would prefer we just fund it, but I understand there's real challenges in terms of resources. Or maybe there are other goals to be had out there, you know, to sort of just to, you know, I think charging fees to commercial requesters could be seen as sort of just declining to provide a public subsidy for a private business, right? Like, we are just going to make that a net neutral, like, you pay your way because you're making money off it and other people don't. We can imagine fees with different goals. 

And fees are structured differently. So, like, the kind that you're talking about that seems very, that I agree feels very problematic, simply because, and I'm not saying this isn't an across the board thing at all agencies, but it has the potential for being sort of abused in the sense of the way that we tend to do it here in the U.S., where the fees, it's like, you submit you your request, and the agency says “our estimated fees is…” and they come up with some like staggering number and this deters you from pursuing your rights under FOIA, or under state open records laws. And also the agency might come up with a staggering number and it may be true or not true, and the way they estimate these things are not transparent themselves and those sorts of things. But the other way of doing fees is something that I think you've mentioned Dave, which is like a fee per request. Now, like I’m not advocating for this, but it’s a very different model of fees. Or for certain types of requesters a fee per request, or after your first ten requests a fee per request, a nominal fee. That might have a really different kind of effect. It may do nothing for some of our high volume requesters who are well-funded. Like, I don't know if that would do anything, if it was $5, $10 a request, whatever it is, after your first ten requests. But I just wanted to know and so that was a very long-winded question, in which I'm trying to see if you all thought about fees, like, not just fees generally, but like, the differing structures of fees, and the different goals they might achieve, and how we might think about, what are the most problematic kinds of fees and are there any subsets of these kinds of fees or kinds of goals that we're getting at that are either less problematic or even potentially beneficial in some ways. So, thanks for indulging in long-winded... 

David Cuillier: Thank you, Margaret. It's David Cuillier again. Excellent comments and questions, all of which we're still debating. Suzanne Piotrowski has some ideas, particularly on a flat fee, and we'll get to Nick and Jason here, but Ben, I think it would be interesting, can you chime in briefly about the experience Ireland had when it implemented a flat fee.

Ben Worthy: Yeah, so, the UK hasn't implemented one, but one of the reasons it hasn't is because it had a lot of discussion about what happened in Ireland when they had a regime that was free, introduced a flat 15 Euro fee in 2003 and kept it running until 2014, until a later government took over. And actually, Margaret, this goes to a lot of what you were saying here. There was some confusion about what exactly the government wanted. The government planned to do this to stop the vexatious requests, and also we’re talking about other archives but the suspicion of some commentators is that they wanted to dampen down freedom of information requests. So, did it deter vexatious requests? There isn't much evidence of that, but what it did do was actually lead to an overall drop in FOI requests, by about 75%. 

When you count, this is when you count non-privacy related requests because under the Irish system, you combine freedom of information requests and requests about personal information, so, it's slightly different. Did it recoup any costs? There was an estimate it brought back 1.6% of the costs that FOI created. So there wasn’t much impact there. The kind of conclusion that came over to the UK from the discussion was that it's just too blunt a tool. It deterred journalists, which you can take your own views as to whether that's a good thing or not. It deterred, for example, legislators, but it was felt it had a dampening effect on all requesters. And then there was a complication that anybody that wanted to get around the system could do so, and also, there needed to be some exemptions built into it, and then you have a discussion about who is exempt from the fees? So, the kind of conclusion in the UK is that it's just too blunt an instrument to function or do the things that you want unless you just want to deter fees overall. 

David Cuillier: Yeah, and interesting Ben, just to add, they got rid of it, eventually, right, in Ireland? And it never recovered. Still, the journalists didn't submit requests, the kind of residual effect across the country. So, yeah, those experiences, I think, are valuable for us to learn from. While like in Canada, they're passing flat fees left and right in all their provinces, but all of this is to be explored, so, yeah, let us know if you have thoughts on that, anybody. Thank you. Nick Wittenberg. 

Nick Wittenberg: Thank you, thank you, Nick Wittenberg. I'm co-chairing the Volume and Frequency [Sub]committee with the amazing Nieva Brock. Shelley and Dave, always love this and all the amazing work that you do and great to have Ben with the information, I hope he's heard of Daniel and Richard Susskind who have done a lot of work with AI and the law, it would be great to kind of see the interplay, potentially, with freedom of information and kind of the technology, obviously, I'm personally biased to using technology. I think Margaret at the Ohio State University pointed at this, in maybe one of her points, but it would be interesting to explore, is there a possibility with fees to put into technology? Because I think as we're moving so fast, you know, put the fee into training. We always have these amazing systems and not everybody has the training, you know, to, and I know there's acts of Congress that, what we can do and typically the fees go to Treasury, but it would be nice to improve that aspect of it, because Dave's amazing colleague at University of Florida at the College of Law has an amazing e-discovery program that has a number of top lawyers and judges at, and I think it's no surprise that Dave is at a great institution and that Shelley is as well. So, that's kind of my interest is that this study can help is how can we make sure that whatever the technology is, that folks, processors, and even requesters, you know, have that type of playing field, where they can get better access to education, in addition to the amazing programs that ASAP [American Society of Access Professionals] and DOJ [Department of Justice] do on the substance of FOIA. But just something to raise the bar a bit. 

Darvid Cuiller: Thank you, Nick. That's great. Appreciate that. Yeah, we'll look at that. And see those issues..nexus. Jason, you had your hand up earlier, would you like to chime in? 

Jason Baron: Sure. Can you hear me, David? 

David Cuillier: I sure can. Good to see you. 

Jason R. Baron: Hello, everyone. Jason Baron, Professor of the Practice at the College of Information at the University of Maryland. I have four points. The first two, I really appreciate Dr. Worthy, your comments on the UK experience. In the U.S., there's no statutory provision in the FOIA for a vexatious, as defined, and so, there is a question on the table for this committee, and for David, for your reports, with respect to whether a statutory definition is something to be considered. It certainly should be noted that there is none in the U.S. I worry about the law of unintended consequences. 

My experience as Director of Litigation at the National Archives for 13 years and before that at the Justice Department is that there were certainly some requesters that were making vexatious requests of agencies. That number was 0.1% of all requests. And so, I want to be very clear here that I think on behalf of public interest committee that it would be very narrowly defined in terms of a category in the U.S. of what it considers vexatious, and I would hope that people would just at least note that point. With respect to motive, second thing Dr. Worthy, is that motive is not part of the American tradition of FOIA, for 60 years. One can file any request and no one questions one's motive. There are situations with justifying fees or exceptional circumstances where you get into intention, but in the general run, you know, agencies are not questioning the motive of people or the value of requests, they're certainly looking at other factors. And with respect to that, my third point is that there's a slippery slope here in conflating vexatiousness with a request that is unduly burdensome. 

I appreciate that you have done great work here in distinguishing those two, but those two categories are increasingly of concern to me, as agencies confront the volume of electronic records that exist, for example, my favorite example is the Capstone archiving that takes place, where in each agency, certainly cabinet departments and large agencies in this government, millions, tens of millions, and in the near future, hundreds of millions of emails are being preserved for at least seven years for everyone's email in a Capstone agency, and permanently for a designated number of Capstone officials. If one files a FOIA request that has language in it which necessitates a search against Capstone repositories, it will necessarily be the case that there's a large volume of records to be searched. And my concern is that the law has moved, I think, in the wrong direction, in that it used to be the case when I was litigating cases at the Justice Department that there was no cap, per se, on what constitutes a burdensome request, or an unreasonable request, it's a search, if it was reasonably described. But there are one or more cases, more recently in the D.C. courts, that would perhaps say that some number, whatever it is, 500,000 records, or a million records, or whatever the number is, is per se, unduly burdensome. I'd like a conversation from this committee, and maybe acknowledgement in the report, that the absolute value of the number is not, you know, unduly burdensome, and to recognize that in the future, increasingly, with as volumes go up by 10x or 100x at an agency, a greater percentage of requests will necessitate larger searches. 

And so, to deal with this, we actually, as a committee, recommended last term in recommendation 2024-03, for agencies to engage with requesters who have arguably burdensome requests on agencies, to do a sample. To have an iterative process. We set out a protocol for agencies to work with requesters, so that it isn't burdensome on agencies, rather than a per se response in an initial determination that the request is going to necessitate a search of millions of records and therefore is burdensome. So, I think that point needs to be noted. The Justice Department has repeatedly been on record through the years as asking for agencies to work with requesters and we made a more pinpoint specific recommendation last term with respect to complex or large requests. 

My last point is with respect to technology. I put on my professor hat. It is the case that many educators are using technology to uncover whether students are submitting essays that were in part or in whole created by an AI app. Whether it's ChatGPT or otherwise. And what I have to say about that is, the state of technology, for example, Turn It In and other apps, is pretty poor. Despite the vendor claims. We could all, it turns out that experiments have been done where people, like professors, put in essays that they themselves have written and are told it's 30% AI, and so, the false positives are there. And I want to note that going forward, that if an agency thinks that it can use software to detect AI and FOIA responses, there is a problematic question, and I think that might be noted, as well. Those are my remarks. 

David Cuiilier: Thank you, Jason, those are excellent remarks. I've taken notes, and we'll definitely account for -- for those comments, I think. I don't know, Alina, I know we're hitting up against 11:00, can we go a little longer? 

Alina M. Semo: Sure, if folks are willing, I think, yeah, let's keep going. I think it's a great discussion. Does anyone have any other questions? Oh, Liz? Liz's hand is up. 

Liz Hempowicz: Yes, hi, Liz Hempowicz here from American Oversight and a member of the requester community. I will be brief, because Jason, I can't say it any better than you did, but just want to underscore a lot of what Jason said, and I wanted to, David, thank you for making the…for highlighting that staffing was not kind of one of the top responses among the among one of the groups surveyed, the election offices, and some of the reasons for that, because I do think going back to the point, Jason, that you were making about the burdensome requests versus vexatious requests and the importance of getting those definitions right, I think kind of the…when we're talking about the federal government and the agency part in creating the context of the burden, I think is a really important element here that sometimes gets lost, and I really do, Ben, I appreciate you also making the point from Ireland about the danger in approaching with too blunt an instrument for some of these problems that maybe feel different on the side of the FOIA offices than they do, than they look on paper when you look at the data, how many of these requests fall into these categories and what it looks like. So, thank you for all of this. It was incredibly helpful. 

David Cuillier: Thank you, Liz. Yeah, definitely. And that is an important point you bring up, you and Jason. You know, some people can say, well, if it's just this huge request, it's going to take forever, they shouldn't have to do it. But no. There are times where the people, the government should do it. The Miami Herald submitted 200 requests to the city of Miami, trying to get at all sorts of information, and ultimately exposed widespread corruption. That wouldn't have happened if it weren't for their unduly burdensome requests. So, sometimes, you know, we can't just say burdensome is vexatious and should not be allowed. So, yeah, you're all spot-on, at the same time, how do you deal with something of that magnitude all the time routinely? Though we find it's not routine. Ben, go ahead

Ben Worthy: I'd add of piece of information that I know you like me repeating, Dave, which is -- yes, the UK law has Section 14-1, which is about vexatious requests, but I want to tell everybody, it has a Section 16, which creates a duty on a public official to, and I quote, advise and assist requesters with their requests. And this is the kind of flip positive side to this, and some FOI offices say that's a key part of the act, too, that we have a duty to help the requester with the request when it comes in, and in some senses, that's part of this process, as well, and kind of really positive part of the UK Freedom of Information Act, that I don't think exists in the federal level or different state. 

David Cuillier: That's outstanding. And again, another recommendation from last term's committee. So, very cool. I think Jason Leopold would appreciate getting assistance from the Department of Defense in crafting his requests. I think they should bend over backwards to help him. Sure they would love that. Anyway, Marianne.

Marianne Manheim: Hi, I'm Marianne Manheim, I’m from National Institutes of Health Heart,  Lung and Blood Institute and Sleep Disorders. And my question is for you, Ben actually, and how many of these become lawsuits? What's the timeline there? Because what happens here is, we cannot get to these in time because of how voluminous they are and they sue us on day 21. And everyone starts negotiating scope on day 21 because they don’t necessarily want to even talk to us at that point. I'd like to know how much of that is part of this, and if that went into your research, as well. 

Ben Worthy: Thanks, Marianne. I don't know the statistics, but what happens, the process in the UK is that a public authority issues a refusal notice under 14-1 and then it is up to the requester to decide if they want to appeal it to the two levels of appeal, and beyond that, it could potentially go to the court. So, it wouldn't automatically become a legal issue because it's a long way of the appeal system. Some cases have been taken up, but it's not automatic and doesn't always happen. Interestingly, when a notice is issued, the public body doesn't have to explain why it's issued it, though the information commission advises that you do give reasons for your decision. So, it isn't automatic, but it does happen, and then, of course, the question is that it becomes even more of a process for the public body. 

Marianne Manheim: Thank you. 

David Cuillier: Well, thank you for that, all of you, I'm guessing we should probably move on. Alina, I assume, and, again, please email, put my email in the chat, or any of us. Any thoughts, tips, suggestions, things that we should take into consideration as we congeal this over the next month or so. So, thank you all. Appreciate your time. 

Alina M. Semo: Thank you very much. We really appreciate your time. Perhaps we could have you back in March after you've finished your paper in the winter, and have you present on your final findings. I think that would be really fascinating. So, thank you, again, and Ben, thanks for your time. You are welcome to hang around and take notes about the rest of the meeting. You might find some of the other things interesting. 

I'm just going to poll our committee members, anyone interested in taking a short break or would you like to power through? What's the sentiment? Rick is going like this, meaning power through.  

Frank LoMonte: Power through sounds good. 

Alina M. Semo: Okay, all right. So, at this point, we are going to hear from each of our three subcommittees to share the work they've been doing since our June meeting. Our hope is that the presentations will spark conversation, questions, and discussion among all committee members, just like what we just had. I also want to direct everyone's attention to materials that we have posted on our website for today's meeting. In particular, a draft set of recommendations that will be offered by one of our three subcommittees for further discussion today. So, first up, we're going to hear from Volume and Frequency Subcommittee, co-chaired by Nick Wittenberg and Nieva Brock. And Nick, I believe you are presenting, correct? We have lost Nick.

Nick Wittenberg: That is correct. And thank you to Alina for the introduction [inaudible] so anyways, Nieva Brock has done a great job as co-chair. We had a lot of different meetings about this and I think what Dave and Shelley did was a wonderful way, I think, to dovetail into what we've been doing, and I think we want to use, you know, best technology for our government agencies so we can reduce the backlogs that are out there. And so, that's something I'm super excited about, and, again, I think with the staffing and training….[inaudible} 

Alina M. Semo: Having some technical difficulties on Nick's part. When you come back, just come back on camera, let us know you're back. Can I turn to Shelley, who was going to present a little bit on some of the work that part of the subcommittee has been doing? Would you mind sharing that with everyone, Shelley? 

Shelley Kimball: Not at all. Kind of carry forward with a little bit of some of our other tasks that we've been working on. So, we are developing a survey for FOIA professionals to understand [the] kind of the challenges of the volume and frequency of requests. And so, we are in [the] process of getting that approved and ready to send out. Of note, we did add a question that will compare with Ben's work on AI, and whether participants are receiving AI-generated requests, and how they know that they are AI-generated and pinpoint those areas that are concerning from the FOIA professionals perspective. But I see Nick is back, so, I will hand back to Nick. 

Nick Wittenberg: Sorry about that, dropped out. Definitely think I've had a wonderful time with our group, and I think it's one that I think -- it's -- we want to look at further -- I think we had the discussion last week about potentially next spring doing another technology showcase, which would be exciting, because I think technology's moving so fast. And then, how can we enhance our government professionals in using those programs out there, because, you know, hopefully maybe it's a dream, but volume and frequency would be a thing of the past because a lot of this is just data. And I think maybe Dave, you touched on this, but we are, you know, requesting information that is only going to explode with video, and it doesn't matter if it's from a FOIA, inspector general investigation, government litigation, something like that, so, how can we use all of government-type thinking to help make this excitement with AI a reality for information that is open to the public, not classified, and not protected by the exemptions that are out there. So, that is something I look forward to working with, with Dave and Shelley, who have been very helpful on our subcommittee, as well with my co-chair Nieva, we've been looking at a lot of opportunities out there, and I think that's one that's great to have AI and not have it be burdensome, but stifle the innovation out there, so government officials can use it. Dave or Shelley, did you have anything additionally to add? 

Alina M. Semo: Okay, thank you so much, and Nieva, if you have anything to add, chime in, otherwise, we'll move on. Just going to pause for a minute. And as I always pause, I just want to make sure that other committee members don't have any questions for this subcommittee. 

Nieva Brock: Thank you, Alina. I have nothing to add. 

Alina M. Semo: Ok. Thank you, Nieva. Appreciate it. Any questions or comments for volume and frequency? Okay. Next up, we're going to hear from the FOIA Statutory Reform Subcommittee, co-chaired by Ryan Mulvey and Whitney Frazier-Jenkins. And I'm going to turn it over to you, Ryan and Whitney, you have the floor. 

Ryan Mulvey: Thank you. So, as a reminder, Ryan Mulvey, Americans For Prosperity Foundation, sorry. As was mentioned at the outset of today's meeting, the Statutory Reform Subcommittee's principal purpose is to develop concrete recommendations for how Congress can amend the FOIA to improve requesting experience, to address agency processing challenges, and really, in our modern digital world, to achieve a goal of, or to ensure that we're achieving a goal of open and transparent government. 

We have a number of draft proposals that have been shared with the committee, the full committee today, that have been posted in the materials section for the meeting. I, at the outset, want to be very clear that these are not subcommittee-approved recommendations, and they are not ready for a vote. We're happy to have conversation on the proposals now. I think. But we wanted to be transparent in where we're at. These…six of the seven proposals that you have have come out of the Transparency Obligations Working Group, which is headed by Margaret [Kwoka]. The other is one that was spontaneously developed and proposed at the subcommittee level, which is…that's the proposal relating to making this advisory committee a permanent or nondiscretionary federal advisory committee. 

So, none of these, again, have been approved, we are still in the process of workshopping and debating and editing and hopefully, at some point soon, we will be able to reach agreement as a subcommittee on what we would endorse for the full committee's consideration, but given the expressed interest of members in the past, to seeing these ideas sooner rather than later, and particularly since proposing statutory reforms at this level of detail is something that I think is new to the advisory committee, we wanted to have those ideas out there now, so that anybody who is not a member of the subcommittee, but would like to participate, or otherwise give their feedback, that they could. So, I mentioned the FACA recommendation. Real quick, I'll just go over the other six, and then Whitney, if there's anything you'd like to add, you can do so, otherwise, I'll just leave it to all of you to delve into the seven pages of outstanding justification that we have so far been thinking about. 

So, the first of these recommendations would be to expand the categories of records that are subject to affirmative disclosure. The second would be to build upon prior and reiterate, I think, a prior recommendation of the committee to make FOIA logs affirmatively available. The third is to make reading room claims, to clarify the remedial authority of courts to order compliance with reading room provisions, so (a)1 and (a)2 of the FOIA. The fourth is to create incentives for agencies to find alternative ways of processing requests outside of FOIA. Fifth deals with 508 compliance, that's the Rehabilitation Act, an issue that's been repeatedly addressed by this committee. And then six, it has to do with what we've termed empowering agency officials, particularly with respect to posting in the reading room. 

So, the details of all of those proposals and where we're at is online. The last thing I would just say before keeping quiet, is that there have -- we have reached out to the Implementation Subcommittee, because there had been an idea expressed at the last full meeting that we have a special intersubcommittee working group, if you will, to find where there is overlap between these proposals and past proposals, to make sure we're all rowing in the same direction. And I lied, I have one more point. 

There are more proposals that are at the working group stage, both with Margaret's Transparency Obligations Working Group, and Dave's working group on enforcement models. So, those are still in the hopper, they will be coming, but we are always welcoming more members, please, come join us if you're interested in talking about these at a more detailed level, as part of one of our working groups. Whitney, do you have anything to add? 

Whitney Frazier-Jenkins: No, I just wanted to reiterate that we wanted to share these to get as much feedback as we go back and re-shop some edits to make formal recommendations. But that's all I had. 

Ryan Mulvey: Great. And I think it would be fair, since six of these seven proposals are coming from the working group led by Margaret…Margaret, do you have anything that you'd like to add, too, before Alina opens the floor? 

Margaret Kwoka: Yeah, thank you so much, Ryan and Nieva for…I’m sorry, Whitney, my screen is so small, I appreciate everyone's comments, and also the framing of this, this is very much, you know, for discussion only, and that is the spirit in which it's offered. The only thing I wanted to offer, also I think there might be questions, of all the things you could work on, why these things? How did you come up with this list? And I just wanted to say a little bit about the working group's methodology, sort of our approach to this was to first gather as many sources as we could of prior recommendations for reforms to the FOIA statute that were out there. That included every prior recommendation that we could find from the prior iterations of the FOIA Advisory Committee, and that would implicate a statutory change, and also from other government sources, like GAO [Government Accountability Office], the Administrative Conference of the United States (ACUS), where recommendations have been made, including recommendations that come from bodies like ACUS that are, you know, half government members and half public members. And then, also from civil society, and other legislative proposals that have been, you know, introduced by not, or considered by Congress, but not moved forward. 

So, we really were trying to get, like, the broadest tent possible of all of the sort of reforms that were coming from these different sort of expert bodies. And then, we were looking to try to cull those down to both a sort of, like, comprehensive in the sense of covering all of the major issues, but also, what is really necessary and advisable. And that's how we came up with the lists. I just wanted folks to know, this isn't sort of a necessarily - it's not like a pet project list of those of us on the working group, we did do a lot of research and reading to sort of try to come up with a list and this group is, represents about a third of our total sort of ideas in progress. Which is focused the document describes on affirmative disclosure, as the major topic groups. I just wanted to describe the methodology, so people understood where these things were coming from, and to the extent that they come from prior recommendations of this body of other governmental bolds, that's usually noted in the descriptions of the document itself. Thank you so much for the opportunity. Ryan and Whitney, to say something about it.  

Alina M. Semo: All right. I'm just going to open up the floor to either any other subcommittee members that want to comment or any other committee member? There's a lot of material there and I know everyone has read it and memorized everything in the extensive written product. By the way, excellent written product, I just want to thank everyone for their hard work. 

Kirsten Mitchell: This is Kirsten. Frank has his hand up. 

Alina M. Semo: Thank you so much, Frank was in the corner of the screen. Frank, go ahead please. 

Frank LoMonte: Hi, good morning, Frank LoMonte with CNN. I'm a member of the Kwoka working group, and I really just want to underscore the eagerness of everybody on the working group to hear in particular from the people that are watching this call that work on the government side. We're very mindful that some of these recommendations are ambitious and purposefully so, and we have certainly gone out of our way to be transparent and not to hide the ball in any way. 

We've floated a draft version of these as early as our March meeting, and that version was posted in the meeting materials in March, we discussed them again in June. We are discussing them again in September. And recirculating an improved version, thanks to input from a lot of the people on this call, and so, my ask of those of you who are observing the meeting today, particularly who work on the government side, as well as the requester side, is please take advantage of this generous amount of lead time to weigh in, so that we do not have any remorse or recriminations at the end of the process that people were surprised by the product. There should be no surprises. You know what we're working on. And we truly, truly are eager to hear from you. 

Alina M. Semo: Great, thank you so much, Frank. Jason Baron, go ahead. 

Jason R. Baron: University of Maryland. Picking up on Frank's point, I was going to make the point that in the prior term, the committee did more than just an ask, we went out with a request to have the public at large send in responses to one of our recommendations regarding (b)5 and sorry, about initial determination letters, and we received many good comments from both public interest community and there were at least one or more from the government. I'm not sure what the process would be for government representatives, either on this committee or at large, to weigh in, whether they have authorization to do so, on behalf of their agency, that's a question perhaps that we can have further conversation with offline, but certainly, I would urge that the OGIS Ombudsman blog, and any other means that sort of parallel to what we did last term to go out for comment on these what I consider very good recommendations, and I do want to applaud the good work of everyone on this subcommittee for that. 

And my second point is, I want to take Ryan up on his suggestion that we work collaboratively with [the] Implementation Subcommittee, I want to extend the same invite to Nick and Nieva. I think it's important for our committee, our subcommittee, to be hearing from the other subcommittee. That was envisioned in the first iteration of the recommendation for last term, which is to have [a] kind of standing Implementation Subcommittee as a look to see what everyone is doing, what past recommendations were, and proposals. And so, I encourage that dialogue. Thanks. 

Alina M. Semo: Thank you so much, Jason. I believe David Cuillier is next, followed by Nick. I hope I'm getting that order correct. Go ahead David.

David Cuillier: Thanks, Alina. David Cuillier, University of Florida. Great job Margaret, Ryan, and everybody, Frank, that worked on this, really astounding and so early on in the term, so, thank you for that. And I also agree that it's critical that we get input, I love that this deliberative process is open and transparent. I can't imagine any government that would say deliberative process should be secret. You know, so just an editorial comment, because this is how we find out how the sausage is made and how government works. 

While some people may want to submit comments, public comments to the link that's provided in the chat by Kirsten, thank you, there may be some people who may not want to submit comments publicly, particularly government folks. Is there a way that maybe they have personal opinions about some of this that they want to submit to someone individually, say, directly to Margaret, or that sort of thing? That don't represent their agency's viewpoints, but they still, you know, this is America, and they have a First Amendment right to express themselves, and if they want to do so would that be appropriate, Alina for people to just email or contact Ryan or Margaret directly, or Frank?  And of those, who should they contact?

Alina M. Semo: Great question.  I don't think I've ever been asked that question before and I'm going to ask Kirsten whether she can think quickly on her feet and whether FACA, the Federal Advisory Committee Act prevents that from happening. I would imagine that it can certainly happen. We can share email addresses for everyone that you've suggested and folks can reach out directly. I think that's perfectly fine. 

Kirsten Mitchell: Yeah, this is Kirsten Mitchell, the Designated Federal Officer. And I agree, I think the question here is whether Margaret and others want their email address out there. I can't share it, but that sounds like it's doable. The other thing I wanted to say to all the people who are watching us on the National Archives YouTube channel is that I posted a link in the virtual meeting platform for public comments. We welcome public comments at any time. The address is www dot archives dot gov forward slash OGIS forward slash public dash comments. So you can and it looks like Margaret has just chatted that she has no problem sharing her email. But she notes that she is also a public employee, subject to state open records laws. If it's okay, I will go ahead and read out Margaret's email address. It's Kwoka, KWOKA.1, the numeral one, at osu dot edu. Thank you, Margaret.  And with that I'm going to be quiet and turn it over to Nick who has been patiently waiting. 

Alina M. Semo: Before we get to Nick, I just also want to add, Frank LoMonte just shared his email address. He's also happy to receive email. His email address is Frank, FRANK Brechner, David, you have to talk to him about that, BRECHNER at gmail dot com. I just wanted to make sure we got that in as well. And now over to be Nick Wittenberg. Go ahead, Nick please. 

Nick Wittenberg: Yeah I definitely think this speaks volumes to the Advisory Committee. We have an amazing professor from Ohio State doing some really deep work into and then Frank from CNN and then Ryan who had a case in front of the Supreme Court and I think that brings some exceptional work to this and I just wanted to underscore Jason's comments about getting together. FOIA Advisory Committee subcommittee liaison just so we can all connect the dots and see whether it's proposals or different things and how maybe, for example, volume and frequency integrate technology and I definitely appreciate Jason's comments on that because that's really helpful.

Alina M. Semo: All right. Thank you so much, Nick. Anyone else have comments or thoughts or questions? I'm looking around for hands. Other than Nick's I think he just forgot to put his down. That's okay. Frank, is that you raising your hand, or no? No?

Frank LoMonte: It is not.

Alina M. Semo: Just double checking. Okay.  Well, I know that everyone's going to go home and do some homework and really thoroughly read everything that has been put out. Very, very grateful for the great work product. I know a lot of work and thought has gone into this, and as Ryan has pointed out, I think it's, you know, ripe for discussion and a great opportunity to hone all these ideas. And there's more to come. The working group has definitely a number of other ideas. Ryan and Whitney, anything over to you guys, anything else you want to add?

Ryan Mulvey: That's everything I have. Thanks, Alina.

Alina M. Semo: Sure. Thank you. Whitney?

Whitney Frazier-Jenkins: Yes, Alina, I don't have anything to add. Thank you.

Alina M. Semo: Okay, great. Thanks. So with that, I'm going to turn to our final group, our subcommittee implementation presentation, which is co-chaired by Jason Baron and Marianne Manheim. So really happy to hear from the Implementation Subcommittee right now. Jason and Marianne, over to you.

Jason R. Baron: I think I'll start off, Marianne, and please weigh in. I really appreciate the efforts that have been made by the subcommittee members to date. I'm going to defer first to Deborah Moore and then to Rick Peltz-Steele to give updates. I'm going to weigh in on one issue, and Marianne can weigh in as well with any comments. So Deborah? 

Deborah Moore: Oh, sorry about that little technical problem there. Hello, everyone. I'm Deborah Moore, I’m the Chief FOIA Officer in the Department of Education. Thanks for the opportunity to update you all today on the progress that the Barriers Analysis Working Group has made since our last meeting.

So a bit of background to get everyone back up to speed of what we're about. The goal of our working group is to uncover what's preventing federal agencies from implementing the FOIA Advisory Committee recommendations that have been directed at them for action. We've identified 20 recommendations that are directed to agencies, and we want to learn what can be done to enable those agencies to implement the recommendations that they haven't yet put into place. We also hope to learn from agencies what practices and strategies have worked for them, for those recommendations they've been successful in implementing. And as I've talked about at prior meetings, we determined the best approach for capturing this information is through a series of focus groups, made up of federal FOIA professionals who have visibility on agency FOIA operations.

We plan to ask them a set of questions covering which of the 20 FOIA Advisory Committee recommendations they have implemented and which they haven't, what barriers are preventing them from implementing those recommendations they haven't already put into place, what strategies worked or didn't work for those recommendations they've been successful at implementing, and what are some decisions, actions or changes within or outside of their agencies that could help them implement recommendations. Focus groups will include approximately four participants in each group and managed by a moderator and a note taker who are all members of the Implementation Subcommittee. Note takers and moderators will be trained later this month to ensure that we all are using the same procedures. So that brings us to where we are now.

Since our last meeting we have really concentrated on recruitment, on securing a sufficient number of participants is always a challenge for any focus group project, and we strongly believe that it's going to be very important to gather as many varied of perspectives from federal FOIA professionals as possible, including those who are currently active in the field as well as those who work in the field within the last three years. So we began building our outreach list of FOIA federal professionals with a full download from FOIA.gov, and from there we cleaned the list of duplicates and outdated contacts and augmented it with additional contacts that OGIS provided. Thank you, OGIS.

We ended up with a list of more than 400 unique email addresses. On August 20, we sent out the first outreach email to those on the list. And the messaging contains in it a request for recipients to also forward it on to others outside of the agencies who meet the parameters of the focus group, so we wanted to be able to extend our reach through that method. And then when we got bounce-back messages we used that information to both clean our list and also reach out to new contacts provided in the messages. We also conducted additional recruitment through other channels, like LinkedIn postings and working with OGIS to have them further the message on through platforms and venues that they have access to.

So our outcome, we are pleased to report that we received more positive responses than anticipated from our first outreach effort. We had approximately 45 people sign up within the first two weeks, which is really quite remarkable. Then on September 4th we sent out our planned reminder email to those who hadn't responded and as a result, we now have 70 FOIA professionals signed up to participate. We are extremely pleased with this outcome.

Next steps. We have set up a working calendar of 14 focus group slots with moderator and note taker assignments, and we will add more slots as necessary. The focus groups will take place in the beginning of October and run through November. And we are currently in the process of assigning those who have agreed to participate to different focus group slots, after which each moderator will reach out to those members. That communication will contain their assigned date and time with an option to change, if needed. It will also have in it in that communication a list of in scope recommendations and the list of questions that will be covered in focus groups.

Then once the focus groups conclude, we will compile and analyze the data and then draft any recommendations we would like to propose to the subcommittee for consideration. So just to wrap up, I want to thank you all for the time and also very heartfelt thanks to OGIS and to my co-working group members, Shelley Kimball and Sarah Weicksel. Thanks

Jason R. Baron: Thanks, Deborah. Rick? 

Rick Peltz-Steele: Thanks, Jason. I'm Rick Peltz-Steele at the University of Massachusetts Law School.  We've been - I'm going to share with you something that has not actually directly related to the business of the subcommittee but I'll explain how it came to be. Right now as background, the Office of Federal, pardon me, Federal Procurement Policy, that's a tongue twister, and the Federal Acquisition Regulatory Council, FAR, are engaged in an initiative the administration calls Revolutionary FAR Overhaul. So this is an overhaul of the rule book for federal procurement, which is a vast document. And it's described this way, I pulled some language, it says “this initiative will return the FAR to its statutory roots, rewrite it in plain language and remove most non-statutory rules. In addition, non-regulatory buying guides will provide practical strategies grounded in common sense while the goal being faster acquisitions, great competition and better results.”

So it happens that in 2020 NARA recommended to [the] Office of Management and Budget (OMB), which is receiving comments on the FAR overhaul now to OMB that FAR part 39 which I'll describe in a moment, be revised to recognize FOIA obligations. And that is to adopt system design specifications that facilitate FOIA compliance and search and retrieval. Our understanding also is that OGIS drafted a business case that was submitted to OMB in 2020, recommending that federal agencies consider access in the procurement process again and that was submitted to OMB with the intention of consideration by the FAR Council. And probably most importantly to this group, the FOIA Advisory Committee recommendation 2018-03, which is on the website, specifically recommended transparency by design for which agencies require electronic record management tools, software, mail software, related information technology.  

So the overhaul project is moving very, very fast.  And by the time it came to our table in the subcommittee, it was I think a Thursday or a Friday, and it happens that part 39 was on the table for the overhaul, and the comments for part 39 were due on the following Monday. Now part 39 deals specifically and is of special interest to us with the acquisition of information and communication technology. So it was impossible at that very short turnaround time frame for the subcommittee to initiate any action that would then go to the Advisory Committee and so on.  

Nevertheless, academic members of the subcommittee who are Jason, Shelley Kimball and myself, and importantly, if less formally, Frank LoMonte advised us in this in his capacity as a former academic but couldn't be a signatory. But we also recruited academics on the Advisory Committee, namely David Cuillier and Margaret Kwoka, and we pulled together a comment on our own behalf as academics to advise OMB and thereby the FAR Council of recommendation 28-03 and the related efforts that I described to urge incorporation of FOIA considerations in the overhaul with regard to acquisition of information and communication technology. So we submitted that comment to OMB on July 28, and I've copied that comment to the public comments which are right now at the top of the OGIS list for submitted on, or posted on 9/9 so if anyone wants to have a look at that comment.

We also recommended that barring, given the nature of the design here to trim down the regulatory requirements, understanding that in this way we're sort of suggesting adding something but something that would increase sufficiency overall. We recognized in our recommendation that it could be something that's incorporated into the regulations or it could be something that's incorporated into these new ancillary instruments of buying guides and either way would be a positive development. So that is something again it's not [the] business of the subcommittee directly owing to the time frame but we took it on as academic members of the Advisory Committee in our own names. And I appreciate everyone who participated in a very fast weekend turnaround to make that happen. Thanks, Jason.

Jason R. Baron: Great. When those of us that are speaking are done, any questions to Deborah and Rick. I'll go, Marianne and then I'll give you the last word. Another topic that our subcommittee has been discussing and which was discussed at the last public meeting was the incorporation of a question to be retained in the annual Chief FOIA Officer reports that OIP, the Office of Information Policy at [Department of] Justice, requires agencies to submit last term a recommendation 2024-14 was approved which said that the DOJ OIP should include one or more specific questions in annual Chief Officer Reports requesting agencies to report on activities that they have implemented consistent with selected FOIA Advisory Committee recommendations.

Through the efforts of former member of this committee, Bobby Talabian who headed OIP until earlier this year, OIP adopted that recommendation, went forward. We are very grateful to Bobby and to OIP for doing so. It was included in question 12 under Section 2 of the OIP report with the last round, Section 2 was ensuring fair and effective FOIA administration, and DOJ said in question 12 that the Federal FOIA Advisory Committee comprised of agency representatives and members of the public was created to foster dialogue between agencies and the requester communities, solicit public comments and develop recommendations for improving the administration, since 2020 the FOIA has issued a number of recommendations with a hyperlink to all our recommendations. Please answer the questions, one - is your agency familiar with the FOIA Advisory Committee and two - has the agency implemented any of its recommendations or found them to be helpful? If so, which ones? Our committee looked at the responses. There were any number of responses from agencies discussing their implementation of from one to I think the highest was 14 recommendations but discussed in the report. There may have been others that were implemented.

We believe as a subcommittee as we expressed last time that it's important for OIP to add this or at least to retain this question in whatever form they wish. I wanted to just put on the record here that point and hopefully there's a consensus this time, of course if there are any objections, we certainly wish to know. We have not put it forward in a formal recommendation after informal discussions with OIP since they are still deliberating and frankly, we want them to sign off before a formal recommendation is had. We have worked very cooperatively with OIP in past terms. I've been a member for the last four, at least two prior terms, and we've always sought their input. We hope that we can continue to have conversations with them so that this recommendation could be formalized. Of course, we are not meeting again until December, and the next report is going to be prepared and put out. And so I'm speaking on the record here and hopefully in a public way to point to our, what I believe is a consensus that they should retain this question.

I think there's a larger point that I just want to say in addition beyond question 12 which is the mission of the Implementation Subcommittee, is to ensure at least to find out and to make progress on how the government is implementing the 60 plus recommendations that have, that appear on the OGIS dashboard and that we have had approved. In the past, in past reports, there has been expressed concern that there are a lot of recommendations from this committee, the Advisory Committee as a whole. And going forward there will be more this term, and so I think it's very important to have some kind of accountability and oversight that is driven by this Advisory Committee, at least by looking at, reviewing, discussing and finding ways that our past recommendations can be better implemented.

The work of Deborah Moore and Shelley and Sarah on the working group for the barriers working group is really of paramount importance. I think it will be extremely useful in connection with whatever final subcommittee report we put out this term, and we will also be looking at the next round of CFO reports for this year when they are produced in the, and published by OIP in the spring to get a sense of where government agencies are in implementing our recommendations in what I will say from my personal opinion is a very difficult climate for FOIA personnel, given resources and everything that's going on. So I look forward to the work that Deborah, Shelley and Sarah and others will be doing for the subcommittee, and I hope DOJ will incorporate question 12 going forward. With that, Marianne, is there anything else you would like to add?

Marianne Manheim: No. I think you covered it, Jason.

Jason R. Baron: Okay. Thank you. So questions, comments?

Alina M. Semo: Before we get to that, I wanted to give Sarah an opportunity to talk a little bit about the oral history project working group that is kind of loosely perhaps under the Implementation Subcommittee umbrella or hanging out somewhere under the umbrella of the full committee. But Sarah, can I turn it over to you for a minute just to brief everyone on that?

Sarah Weicksel: Absolutely. Hi everyone, I'm Sarah Weicksel, the executive director of the American Historical Association. The oral history project working group is exploring precisely that an oral history project that would seek to preserve the historical experiences of federal FOIA professionals. This project would help us to understand the history and evolution of FOIA over time, and serve to preserve institutional memory. 

The oral history process would be conducted according to the professional standards and guidelines that govern the work of oral historians. So our working group is now exploring our next steps, as this is not something that the Advisory Committee has undertaken in the past.  But we are looking forward to having former federal FOIA professionals participate in the project and to sharing more information with the Advisory Committee as we get our work under way. Thanks.

Alina M. Semo: Great. Thank you so much. Opening up the floor to comments and questions for the Implementation Subcommittee. Margaret, go ahead, please. 

Margaret Kwoka: I just wanted to say, like a huge thank you to this subcommittee for this really like, comprehensive and thoughtful approach to gathering information about this topic. Deborah, the sort of system you laid out, the amount of work that it must have taken to sort of recruit all these folks is an incredible series of you know live sessions with FOIA professionals to discuss these issues. I just think we're going to learn a huge amount and I really was just wanting to say that I think this is incredibly valuable and important and I really am grateful to all of you for your time. So thanks.

Alina M. Semo: Okay. Thank you. Anyone else. I am looking around for hands, I don’t see any other hands. I also just wanted to add, a thought occurred to me as we were given out email addresses earlier and also to help Deborah and Shelley and Sarah's working group as well. Folks can actually also send an email to foia dash advisory dash committee at NARA dot gov. That's our committee's email address. If you're interested in volunteering to be a participant in the study that Deborah described today, please let us know in that fashion as well. You can also send us any comments you might have in connection with the Statutory Reform Subcommittee, that presentation that we heard earlier. So that's another method of reaching us and letting us know of your interest.  And so for all of our federal friends out there that are watching us, thank you, Kirsten, for putting it in chat, and for those of us on the NARA YouTube channel. Again, foia dash advisory dash committee at NARA dot gov. Okay, David Cuillier, go ahead, please. 

David Cuillier: Building on that, just asking if anyone on the federal government side wants to join this committee since we do have some vacancies, is there a call going out soon? Or anybody listening, can they reach out to you? Just curious of the status of that.

Alina M. Semo: So we're still waiting for, to hear about whether we can fill, we've got, as we talked before, we have four vacancies currently, and we would love to be able to fill three of them. And we're waiting for approval to go forward with that. We would put out a Federal Register Notice and let folks know in that manner. The fourth slot is occupied by the Director of OIP or their designee. And since there is no current director, that seat will have to remain vacant until that changes. So stay tuned. Hopefully we'll have more information on that soon. 

All right. Just looking around. But really, really great discussion today. I am very grateful for everyone's work. I feel like I've learned a lot. I took three pages worth of notes. So thank you to everyone. Just want to pause for a minute make sure no one else has any other thoughts before we go on to the last part of our meeting. 

Okay. All right, well thank you so much. So we have now reached the public comments part of our committee meeting. Definitely ahead of schedule which is great because that way I can give the gift of time back to all of us. We look forward to hearing from any non-committee participants who have ideas or comments to share, particularly about the topics that we have discussed today.

All oral comments are captured in the transcript of the meeting which we will post as soon as it is available. Oral comments are also captured in the NARA YouTube channel recording and are available on the NARA YouTube channel, perhaps in perpetuity. As a reminder, public comments are limited to three minutes per person. And at this time because we're using this new Zoom platform, I am going to turn things back over to Kirsten, and she will run things from here, I understand. Right, Kirsten?

Kirsten Michell: Yes. Thank you, Alina. So if you wish to make a public comment, please raise your hand so that we can unmute you. If you are dialed in through telephone audio, you can press star nine on your telephone to raise your hand and join the comment queue. Once you are unmuted, please state your name and affiliation. And as Alina said, you will be given three minutes to speak. 

So it looks like we have a commenter, Kevin Bell. Go ahead, Kevin. Your line is un-muted.

Kevin Bell: Hello, everybody. It's me, one of your vacancies. Today's meeting opened of course with a comment on the Partnership for Public Service’s annual polling on trust in government, celebrating a new stratospheric 33%. And our challenge as administrative professionals working in the trenches is that the Partnership acknowledges in that survey data the public thinks that government means elected officials and political appointees and that trust is how you like them personally. This prevents them from fully understanding the role of the federal civil service and the work it does on behalf of the American people and the FOIA experts within that civil service in particular. I think if they knew better the dedication that you all have to the work, if they knew the FOIA Advisory Committee and its government members the way that I do, that number would be much higher, at least, maybe as high at 45%.

I myself have 100% confidence in the government members of this committee. However, to shoulder the added burden both in the committee where they're increasingly outnumbered by the public members and their home agencies. And I dialed in today to remind you that you have my deepest respect and I really appreciate the work that you're doing, even if I'm not there to say so as often anymore. Of course over a little over a year ago I was sitting amongst y'all and was convinced I was absolutely over my head. So if there’s one thing that the last year and the last six months in particular has done for me it was to cure my lingering millennial imposter syndrome that I still had lying around.

So while I'm sad to no longer be at the table, I'm pleased to rejoin the requester community later this month with another former Advisory Committee alumnus Ginger Quantero McCall when we open our new free information group and put the committee's recommendations to the test. I just wanted to call in and thank everybody for the dedication and hard work that still goes into it. I know that it's difficult balancing the competing obligations that you have as a government member of the committee and I wanted to wish everybody the best of luck with the remainder of the term. It sounds like everything is really shaping up in ways that I think that at the time that I was leaving we were all hopeful that it would but it looks like at least in some respects things are at least going to turn out okay for now. So thanks, all. 

Alina M. Semo: Thank you so much, Kevin. We hope to see you and wish you the best of luck working with Ginger who is also an alumni of our committee. She served on two different terms so it should be a great partnership. You'll have to let us know how you're doing on that score. Sorry, Kirsten, didn't mean to interrupt you but go ahead.

Kirsten Michell: No. Yeah, that's okay. It doesn't look like anyone's hands are up at the moment but while we're waiting, I would like to remind everyone that they can submit written public comments at any time on our FOIA Advisory Committee web page, and we can put the link in the chat. It's basically archives dot gov forwardslash ogis forwardslash foia dash advisory dash committee forwardslash public dash comments. So please go to that site and consider written public comments.

So I am looking through. It doesn't look like any of our attendees have their hands up. So if we just want to give a few seconds.

Alina M. Semo: Sure. I think it's really hard to comment after Kevin presented such wonderful comments to all of us.

Kirsten Michell: A hard act to follow.

Alina M. Semo: Very hard act to follow. Don't be intimidated though.

Kirsten Michell: Okay, yeah, I do not see any other hands raised.

Alina M. Semo: Okay. Well, we do hope folks will consider reaching out to individual committee members as per our discussion today. We really value your feedback. We very much want your participation in various projects that we outlined today. So please reach out to us and let us know of your interest. I'm going to pause for a second, just to make sure no committee members have any other parting thoughts that they would like to share. No. Everyone wants to go to lunch, probably. That's probably where we're at.

Okay, so I think we're going to wrap up this committee meeting. I want to thank all committee members for participating in our six meetings thus far. Thanks for hanging in there. A big thank you for all the wonderful creative discussions that have been going on, among and between subcommittees and working groups. It is very evident that everyone is working hard and we're all determined to improve the FOIA process through proposed ideas and recommendations so I am very grateful for that. I also want to issue a big thank you again to our six co-chairs of our three subcommittees and I want to make sure that no one else has any questions.  

But we will next meet on Thursday, December 4th, 2025. I believe that will be virtual, but we will announce whether it's going to be virtual or in person. I know there's been some requests from committee members to meet again in person, so we will try to see if we can make that happen.  If I don't see any other hands up, I am going to wrap up the meeting. I want to thank all of you for joining us today. I hope everyone and their families remain safe, healthy and resilient. And hearing no other questions or comments, we stand adjourned. Thank you.