Transcript
Dan Levenson: Good morning we will get started in a few minutes after allowing more participants to join. Good morning, welcome to the June 11, 2026 federal Freedom of Information Act Advisory Committee meeting, the penultimate meeting of the 2024-2026 term. I’m Dan Levenson, this Committee's alternate Designated Federal Officer. Kirsten Mitchell the Committee’s Designated Federal Officer is unable to be with us today. Please note that this meeting is being recorded and streamed through the National Archives (NARA) YouTube channel and is a public meeting in accordance with the Federal Advisory Committee Act (FACA).
I can confirm that we have a quorum with 16 members present in accordance with the Committee's bylaws. Deborah Moore is unable to join us today. We also want to note that Sean Glendening is unable to attend this meeting; however, the Committee's charter calls for the OIP (Office of Information Policy) Director or their designee to be on the Committee. So we have another Sean, Sean O'Neill, here to represent OIP. Sean is OIP’s Chief of Staff and his participation in the meeting has been cleared by NARAs Office of General Counsel.
Because this is a public meeting we ask members to keep their cameras on however, Nieva Brock is unable to have her camera on today. The meeting materials including the agenda, the slides, and draft recommendations are available on the FOIA Advisory Committee page of the OGIS (Office of Government Information Services) website www.archives.gov/ogis. Thank you to the audiovisual team of the National Archives for their behind the scenes support. And I will now turn the meeting over to Alina Semo, Director of the Office of Government Information Services and this Committee's Chairperson.
Alina M. Semo: Good morning, everyone. If we could advance to the next slide. I am very happy to welcome everyone today. I am Alina Semo, Director of OGIS and the Chairperson at the FOIA Advisory Committee for this term. It is my pleasure to welcome you to the penultimate meeting, the tenth meeting of our sixth term. Since our last meeting on May 7 Committee members have continued to dedicate their time, expertise, and energy to examining some of the most challenging and important issues facing the FOIA community. I'm extremely grateful for their ongoing commitment and engagement.
As a reminder the Committee's work is being carried out through three subcommittees - Volume and Frequency Subcommittee, Implementation Subcommittee, and Statutory Reform Subcommittee. I know all of these have been very hard at work and today we have updates on their discussions with their recommendations they would like to advance and ultimately we will be taking a vote on each of the seven recommendations that are before the Committee today.
I would like to take a minute, chairperson privilege, and getting ready for today's meeting, I actually did an inventory to see where we're at. So we have actually passed four recommendations already. This Committee has been very ambitious and very active. We have passed SR-1 and we have passed SR-2 and by my count as well as SR-3. SR stands for Statutory Reform and we have also passed SR-7. Everyone in agreement with that? Statutory Reform has been very active, thank you. We will hear recommendations from the other two subcommittees as well as Statutory Reform today. Before we launch into our meeting agenda I have a few housekeeping items to cover.
In accordance with the Federal Advisory Committee Act we have now posted both the minutes and the transcripts from our April 2nd and May 7th meetings. On our website you will find Committee members biographies and please also visit and follow our blog the FOIA Ombuds. 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 a question. The raise-hand option is perhaps better than using the host/panelist option from the drop-down menu in the chat. When you want to speak or ask a question. But Dan and I will try to monitor both. If you want to also use the chat function to chat me or Dan directly you are welcome to do that on housekeeping matters. An important note to both Committee members and also participants that are joining us today, in order to comply with the spirit and intent of the Federal Advisory Committee Act please use the Zoom chat function for housekeeping and procedure matters only. Please do not enter any substantive comments in the chat function as they will not be recorded in the transcript of the meeting.
If any Committee member needs to take a break during the course of the meeting please do not disconnect from the web event. Instead mute your microphone by using the microphone icon and turn off your camera by using the camera icon and please send a quick chat to me and Dan if you're going to be gone for more than a few minutes and join us again as soon as you can. An important reminder to all Committee members and myself as well please identify yourself by name and affiliation each time you speak. It really helps make the transcript more clear, in addition, our minutes will also be easier to put together.
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 do 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 covered comment period at the end of our meeting today. As we noted in our Federal Register notice announcing this meeting, public comments will be limited to three minutes per individual.
Any questions on housekeeping? I go over the same rules every time, so hopefully by now everyone has memorized them. We have a lot to discuss today. Each of the subcommittees as I mentioned before has one or more recommendations to present for discussion and ultimately for committee vote. When we are getting ready to vote I will ask Dan to go over the rules again just so everyone will be reminded about what the rules are. And I also want to remind you that after this meeting we have just one more meeting scheduled which is July 16, during which we will vote on the final report that the working group is putting together. And I just want to express my thanks to the working group Shelley and Frank and Sarah. I very much appreciate your efforts. And they know you are going to put together a fabulous report. Before I turn over the meeting to the first subcommittee, Volume & Frequency, I am going to ask Dan, our alternate DFO, to provide a few updates. Over to you.
Dan Levenson: Thank you, Alina. So at the May meeting, the DFO, Kirsten Mitchell, explained that the government members on the FOIA Advisory Committee represent their agencies, but non-government members represent a specific stakeholder group. The bylaws state that “any federal employees appointed to the Committee will serve on the Committee in their official capacity and exercise their own individual best judgment on behalf of the government in Committee deliberations free from any conflicts of interest.” So Ryan Mulvey asked what it means for the Committee's government representatives to exercise individual judgment and Kirsten answered the question via email to the Committee members, but since this was asked in a public meeting I'm providing the answer here as well.
Government numbers who serve in their official capacity are appointed for the FOIA expertise and experience and they are expected to rely on that expertise and experience as they participate on the Committee. At the same time they are participating on the government's behalf. As such their professional experience and FOIA guidance from DOJ or their agency guides them in their deliberations and other Committee work. They are to put the U.S. government's interest before their own personal interests. I hope that answers the question.
And we are expecting votes today and I just want to remind members that any Committee member including the chairperson may move that the Committee vote the bylaws require no second but it is habit. If a voice vote is not unanimous or it's unclear who is voting which way, I may do a roll call.
And a quick update on nomination for the 2026 to 2028 term. The nominations period closed on June 1st and the nominations are in the review and appointments will be coming out later this summer. We have published a schedule of our meetings for the 2026 to 2028 term on the FOIA Advisory Committee page of our website. So please have a look and mark your calendars. And with that I turned the mic back over to Alina.
Alina M. Semo: Thank you very much. Any questions before we get started on our recommendations? I do not see any hands. Okay. First up we will hear from the Volume and Frequency Subcommittee co-chaired by Nick Wittenberg and Nieva Brock. Nick and Nieva you have the floor.
Nick Wittenberg: Thank you so much Alina and I will turn it over to Nieva in a minute but I want to thank Shelley for all the work she's been doing for our subcommittee. It has been really impressive and an honor to work with her so I will turn it over Nieva if you have any comments as well,
Nieva Brock: This is the Nieva from the Department of War. I want to mention that I truly appreciate Shelley carrying the water here. Shelley and Dave have been amazing and it's been wonderful serving on this Committee with you. And with that said I would like Shelley to take over the discussion on our recommendations. Thank you Shelley.
Shelley Kimball: Thanks, thanks all, it's been a pleasure. Next slide please, thank you. Previously we had presented to all of you two recommendations but we decided to move forward with just this one. The other recommendation had focused on the next term of the FOIA Advisory Committee asking them to use the data from the Implementation Subcommittee and our Volume and Frequency survey data to focus on some priority areas that we found. We decided to move that into narrative in our subcommittee report and then also in the final report. So that left us here with this recommendation. Our recommendation is that federal agencies should align standard staffing levels and technological resources to meet the increasing levels of FOIA requests by analyzing existing backlogs, the volume and complexity of requests, and the workload assigned to employees. Specifically, agencies should consider the total work that includes requests and backlogs and the capacity for employees to respond to these requests.
So in previous meetings we had provided you with data that we had collected in the survey. And our subcommittee goes over that in great detail so I'm just going to briefly outline some of our reasoning as a reminder. We know that there have been deep cuts in staffing agencies and that backlogs continue to rise. We saw the recent Freedom of Information Act ombudsman 2026 Report for Fiscal Year 2025 that came out showing us clearly but we also found in our survey responses that participants were calling for increased staffing and more efficient technology to manage requests but they also felt that there was a lack of understanding about the workload necessary to meet the needs of the requesters.
So we are recommending that agencies review all of these elements to ensure that FOIA teams are properly supported and prepared to respond to requests in a timely manner. I am happy to answer any other questions from the Committee.
Alina M. Semo: I don’t see any hands Shelley
Shelley Kimball: Marianne has her hand…
Dan Levenson: Marianne has her hand…
Alina M. Semo: Oh, I’m sorry. Marianne, yes please, go ahead.
Marianne Manheim: Hi, Marianne Manheim, NIH. I just have a basic question about the history of the already existing 67 recommendations over theirs. Have we never had another recommendation properly staffing and funding FOIA that is already out there? Is this really the first time, that’s how in reading this... Or does that actually already exist in some form? I feel like that would've been something someone said 10 years ago but I do not know. I feel like every road leads to the same recommendation, right Shelley, right? It seems like we are there all of the time. So I just wondered if this is one more way of us saying, properly staff and fund technology for FOIA. I just…we keep throwing at recommendations sometimes and I'm like we are going to ignore this one out to, right? I just want to see or maybe we won't, I hope we don't ignore recommendations but does saying it over and over in some way or maybe it's never been said before but… I just do not know the history enough off the top of my head of all of these recommendations to see how this will actually make a difference other than just saying it again. And making major changes or anything like that. I mean, the right sentiment absolutely but I just don't know how many times we keep saying it in different ways. That’s all.
Alina M. Semo: I did a really quick search of our dashboard which I invite everyone to go look at on our website. I searched the word “staffing” so we have four staffing recommendations on the last term but they are very specific. The labor of that has been turned over to the COCACI [Committee on Cross Agency Collaboration and Innovation], which is one of our two committees of the Chief FOIA Officers Council. Nothing comes to mind immediately Marianne. I understand why you're expressing the sentiment that you are. I certainly appreciate that but maybe Dan or Kimberlee our other alternate DFO with us today if they see anything else please chime in. I do not see anything else immediately.
Kimberlee Ried: Alina, this is Kimberlee the other alternate DFO we have Recommendation 2020-13 which states “agencies will review their FOIA-related technological and staffing capabilities within two years to identify resources needed to respond to current and anticipated FOIA demands.” We actually have marked that recommendation as completed because agencies have reported in the 2022 and 2023 Chief FOIA Officer Reports on this question, this recommendation, and we have been tracking it in OGIS Annual Reports data, as well. We have a note here that says “we will continue to encourage agencies to review FOIA staffing and technology.”
Shelley Kimball: If I could add, Shelley Kimball, Johns Hopkins University. I think one of the things that make this one unique as well is the fact that we are kind of in a whole new world when it comes to FOIA staffing and technology after these drastic cuts in some agencies for staffing. And also showing that agencies are still telling us that this is an issue. We saw it in the focus groups, we saw it in the survey data and then in the recent reports it's also showing that it is still an issue.
Dan Levenson: I see that Nick has his hands up.
Nick Wittenberg: This is probably for the DFO's or for Alina, does it make sense that we make the recommendation again? So we’re making these recommendations to Congress cuz they’re very excited to read this report, to reiterate, I think that is just my question for more technical interests.
Alina M. Semo: I want to be clear that I understand your question. You're asking whether OGIS will transmit this recommendation to Congress? Is that what you're asking?
Nick Wittenberg: No, I’m saying do we make this recommendation? So even though it's made in the past, does it make sense to make a proposed recommendation again. Like Shelley was saying it is kind of different from previous recommendations. And I don’t know if it's like litigation where you can re-incorporate by reference type of theory. But you know, I kind of think it is my opinion that we make the recommendation again and it’s not repetitive or redundant.
Alina M. Semo: No, no res judicata here. Okay.
Dan Levenson: Jason has his hand up as well.
Alina M. Semo: Thank you. Jason, yup.
Jason R. Baron: Jason Baron, University of Maryland. I just want to note that for completeness completeness Recommendation 2020-20 has that we recommend that Congress directly address the issue for funding of FOIA offices to meet legal obligations. And I understand that we have another recommendation this term with respect out of the Statutory Reform [sub]committee, But we definitely have addressed resource issues in the two recommendations that were mentioned here. And we have, Marianne, addressed in our final reports from the Committee for any number of terms the issue of resources. So it is definitely something that has been a true line for this Advisory Committee.
Marianne Manheim: Thank you everyone for helping to answer that.
Alina M. Semo: Anyone else? I do not see any other hands up. Shelley, do you have anything else you want to add?
Shelley Kimball: No.
Alina M. Semo: Nick and Nieva do you want to drive the vote forward?
Nick Wittenberg: Nieva, I’ll let you call the vote.
Nieva Brock: What do you mean by call the vote? Do you want me to say shall we vote?
Nick Wittenberg: Or if there’s a motion to vote.
Nieva Brock: All right, I make a motion to vote to accept the VF-1 as a recommendation for this term.
Dan Levenson: Is there a second?
Nick Wittenberg: I will second it.
Dan Levenson: All right, that’s Nick.
Alina M. Semo: All those in favor please say aye.
Group: Aye
Alina M. Semo: All of those opposed, nay? Dan, I don’t hear any opposition.
Dan Levenson: Are there any abstentions?
Alina M. Semo: I was just going to ask, any abstentions?
Dan Levenson: No abstentions. Passed unanimously.
Alina M. Semo: Great job Volume & Frequency. Let's keep moving. Next up we are going to hear from the Implementation Subcommittee co-chaired by Jason Baron and Marianne Manheim. Marianne and Jason you have the floor.
Jason R. Baron: Yes, Alina, but I did have my hand up at the end…
Alina M. Semo: I am sorry I missed it. I apologize.
Jason R. Baron: I will take the privilege of having the baton passed to me. Can I ask the Volume and Frequency Subcommittee a question? In your final report - it's not about the recommendation so you can take that slide down. You can move on. The report of the subcommittee talks about how some individuals in response to the survey talked about the need for clarification in the FOIA statute itself concerning artificial intelligence and requests generated by AI means. And having the statute itself clarify that only people, humans, should be able to file requests. I am not supportive of that but I was curious as to whether - I'm not supportive of the statutory change - but I am curious as to whether the subcommittee seriously considered the implications of what the responders were saying and thought about a recommendation on the subject of AI generated requests.
Shelley Kimball: I’ll respond, Shelley Kimball, Johns Hopkins University. That we had put in that second recommendation as sort of ideas for the next turn to consider. We felt that it was a huge concept to kind of work through and because the data came in so late because there were so many delays it was something that we did talk about very briefly but we just did not have the time to tackle something that complex. So we were hoping that the data that we put in the subcommittee report would then become fodder perhaps for the next term.
Jason R. Baron: Thank you for that and let me just put a marker down that I think in our final report coming out of the Committee this term that that point should be highlighted. Okay. Allina, do I have the floor?
Alina M. Semo: As always.
Jason R. Baron: Again, Jason Baron. Marianne and I have really valued the work of everyone on the Implementation Subcommittee. There are three recommendations we have and I'm going to turn it over to Shelley Kimball to walk through the recommendations for everyone.
Shelley Kimball: Thanks Jason, and in an effort to make this not so much me talking today I will do one then I will pass off to Sarah and Frank to help me out. So next slide please I will do the first one. The recommendations that you will see from us today we had a chance to discuss before you have seen them all before so I will give a brief underscoring of the reasoning here. On this first one this is where we are recommending a collaborative group through networking group through COCACI and this emerged directly from our focus groups this session we found that participants really needed and wanted some way to connect professionally to talk about the work that they are doing, share best practices and along the line we spoke to different agencies to see how to shape this and Deborah spoke with COCACI who also expressed an interest in developing this idea.
So our recommendation you see here is to increase collaboration and connection among federal agency FOIA professionals and Chief FOIA Officer Council’s Committee on Cross Agency Collaboration and Innovation Resources Working Group assisted by the Office of Government Information Services and the Office of Information Policy, as appropriate, should establish a process for creating and maintaining small, self-governing cohorts of federal FOIA professionals interested in collaboration, support and sharing of best practices. Again, open to any questions or discussion.
Alina M. Semo: See any hands? So everyone is fully satisfied. Thank you Shelley. Do you want to hand it off to Sarah or Frank?
Jason R. Baron: Are we taking a vote on each one?
Alina M. Semo: I guess we can do it that way absolutely. Let's take a vote on the first recommendation assuming there are no other questions. Do I have a motion?
Marianne Manheim: Motion to vote
Alina M. Semo: on…
Marianne Manheim: Proposed Recommendation I-1.
Alina M. Semo: Thank you, Marianne, do I have a second?
Jason R. Baron: Second.
Alina M. Semo: All of those in favor please say aye.
Group: Aye
Alina M. Semo: Anyone opposed, nay. Any abstentions? I am checking in with Sean O'Neill. Sean it has been habit in the past for OIP to abstain from some recommendations. Are you voting aye? I just want to make sure we’re taking your vote into account.
Sean O’Neill: Yes.
Alina M. Semo: Great, thank you. I appreciate that clarification. Great, good job. Thank you. Next.
Shelley Kimball: Thanks all, I will pass to Sarah for the next recommendation.
Sarah Jones Weicksel: Good morning everyone, Sarah Weicksel, American Historical Association. Can we move to the next slide please, thank you. This recommendation was based on our data gathering which showed that increasing agency awareness of Committee recommendations is the single most important step toward increasing implementation of those recommendations. And in attempting to write a recommendation to address this we felt that leveraging an existing public reporting mechanism such as the annual Chief FOIA Officer report would represent a low cost and low effort way to reach all of the agencies and increase their awareness and implementation of Committee recommendations. That is a bit of a background for the Proposed Recommendation I-2 which is in an effort to increase the awareness and adoption of FOIA Advisory Committee recommendations the Department of Justice Office of Information Policy should require status reporting from agencies on implementation of recommendations either through questions in annual Chief FOIA Officer reports or through another appropriate publicly available reporting mechanism. Are there any comments or questions?
Alina M. Semo: Sarah, I do not see any hands, but perhaps people need more coffee.
Dan Levenson: Nieva has her hand up.
Alina M. Semo: Who has their hand up?
Dan Levenson: Nieva.
Alina M. Semo: I could not see that. Thank you, Nieva, go ahead please.
Nieva Brock: Good morning again, Nieva Brock, Department of War. I am wondering what is the ultimate success, what does success mean for you here? If the OIP does ask about the recommendations is an expectation that they are implementing the recommendations or that we are just reporting on whether we aren’t? What’s the teeth in the recommendation? If there are any.
Sarah Jones Weicksel: Shelley would you like to address that?
Shelley Kimball: Sure, and I see…I don’t know if Jason has a question, but I know this was really important to him. So for us having that reporting is really important just generally to understand what is happening within agencies and how they are responding to these requests. We also found that question 12 in the Chief FOIA Officer Reports was a really strong area for awareness for FOIA professionals. So just even having it there sent them toward learning more about what we are doing and reading through our recommendations so I see it as a twofold but I would love to hear if anyone else from the subcommittee would want to weigh in also?
Nieva Brock: That's great information thank you.
Alina M. Semo: I know Jason and Liz also have their hands up. I don’t know who was first.
Dan Levenson: Liz was first.
Alina M. Semo: Okay thanks, Liz go ahead please.
Liz Hempowicz: My question is how this would intersect with the dashboard of recommendations and the status there. So if something is marked complete is it, would be asked about or would this just focus on recommendations that are deemed still open? Sorry Liz Hempowicz from American Oversight.
Dan Levenson: Thank you.
Jason R. Baron: Can I take that on, Alina?
Alina M. Semo: Yeah that’d be wonderful. Thank you.
Jason R. Baron: University of Maryland, Liz this is not a dashboard related recommendation actually your question is really focused on the next recommendation that we will talk about but where we are trying to improve public understanding of the dashboard recommendations. But this goes to OIP's CFO reports. This Committee has tremendously valued what the Office of Information Policy has done over the years. There have been other recommendations going back several terms where OIP has essentially moved forward with questions to agencies about technology and about training and other subjects where taking the ideas from this Committee and incorporating them in some form in the CFO and reports the questions to agencies.
Not this past cycle but one cycle before in the reports in the spring of 2025 there was a specific question 12 that was put to agencies based on a prior recommendation of this Committee. And that question 12 generated more than 150 references to Committee recommendations that agencies had been considering and in many cases implementing consistent with recommendation. So we noted that in our subcommittee report and then we noted that in this latest round in the 2026 CFO reports that have been published by OIP there were only a few, there was no question 12 pointed directly to our Advisory Committee’s recommendations. It was just left to agencies to talk about whatever they wished and the question set. There were some optional questions and only a few instances where the references to the work of the FOIA Advisory Committee so there was a tremendous drop off. And I believe and I think our subcommittee believed in putting forward the strict condition that it would be extremely useful for OIP to tie in the work of this Advisory Committee directly more expressly into those annual reports. A lot of information was gained and it's an informational exercise. We are not purporting to require any kind of implementation as such. That is the responsibility that when the Archivist approves recommendations that OIP can consider whether to effectuate our recommendations but the informational value of having something like question 12 continue in the future is just in my view incredibly valuable so that is what this recommendation is going to.
Nieva Brock: I’m sorry, I want to thank you both for the responses. Very helpful.
Alina M. Semo: Liz, go ahead please, sorry.
Liz Hempowicz: So it would be more general pointing to the recommendations rather than anything else. That makes sense, thank you.
Jason R. Baron: Well Liz, this is Jaron Baron. In a prior term we gave OIP options whether it was open ended question 12 about all recommendations or to focus as they wish on specific recommendations and requiring agencies to respond back. So it is really at OIP's discretion. I believe that a question 12 that is open-ended in general netted a tremendous response from agencies so I would be in favor of that but I don't believe that this Committee should dictate or micromanage what [the] Office of Information Policy does. This recommendation leaves open for them to go forward with a question that they can fashion in their own way.
Alina M. Semo: Thank you for all of those questions and answers. Any other hands? I’m looking, I'm looking, I’m looking, I do not see any other hands. Jason, Marianne would one of you like to make a motion on the second recommendation?
Jason R. Baron: I will move for the Committee to vote on approving recommendation I-2.
Alina M. Semo: Do I have a second?
Marianne Manheim: Second.
Alina M. Semo: Thank you Marianne, I think I also have another second.
Nieva Brock: It was Nieva.
Alina M. Semo: Nieva Thank you, we have two seconds, Dan. I hope you noticed that. Let's vote all of those in favor of passing proposed recommendation I-2 please say aye.
Group: Aye.
Alina M. Semo: Any opposed please say nay. Any abstentions?
Sean O'Neill: Yes, I abstain.
Dan Levenson: The recommendation passes 15, with one abstention. 15-0 with one abstention.
Alina M. Semo: okay
Sarah Jones Weicksel: Thank you, I will pass it over to Frank.
Frank LoMonte: Morning everyone, Frank LoMonte with CNN representing news media requesters. Could we advance to Recommendation I-3, please?
Jason R. Baron: Frank, I’m having trouble hearing you.
Frank LoMonte: I’m sorry, I’ll speak up and get closer. Could we advance to Recommendation I-3, please? That should be the next slide. Thank you. One of the insights that emerged from the focus group process having small group interactions with FOIA professionals was that people working in the field found the existing collection of 67, now in excess of 70 after this term recommendations, to deal with on the NARA website to be somewhat overwhelming and not the most user-friendly to navigate.
In conjunction with conducting the focus group meetings Deborah and Shelley went through the 67 recommendations and were pretty readily able to call out 20 of them that were specifically directed to agency professionals as opposed to say Congress or OGIS or another actor, right. So 20 of the 67 were within the ability of agency FOIA professionals to act on and influence. And once they were presented with that 20 that seemed much more manageable and actionable to them so this recommendation builds on that experience with the focus group encouraging OGIS to create a resource for agency use presenting the past FOIA Advisory Committee recommendations and easy to access manner. We have included in the draft report for the subcommittee a couple tables that build on the work that Implementation did last term trying to categorize these in a way that makes them less overwhelming.
And in anticipation, I’ll go ahead and answer Liz's question here. On the selection of 20 does not distinguish between ones that were marked completed or not completed on the existing taxonomy if you look on the website. If you look on the website, there are some recommendations marked as completed today. When completed really means substantial progress has been made toward completion but that does not mean that there is not room for agencies to continue to improve acting on them. One of them is affirmative disclosure recommendation so while great progress was made as noted on the website there is room for agencies to continue acting on those. That’s one that I think you can arguably say will never be fully completed, it will always be an ongoing recommendation so that one appears on the list of 20 are part so we intentionally try to not be prescriptive about what this will look like and leave flexibility for OGIS to apply their own creativity and skill to it but the idea is to encourage greater adoption and utilization of these good recommendations.
Alina M. Semo: Thanks Frank. Any questions about I-3? I do not see any hands. We will pause one more minute. Everyone is good? Do I have a motion for I-3 to be passed by the Committee today?
Frank LoMonte: I will move approval of the Recommendation I-3.
Alina M. Semo: Thank you, Frank. Do I have a second?
Jason R. Baron: Second.
Alina M. Semo: Thank you Jason, all those in favor please say aye.
Group: aye
Alina M. Semo: All of those opposed please say nay. Any abstentions? I will go on the record, Alina is abstaining. Thank you.
Dan Levenson: The motion passes 15 to zero with one abstention.
Alina M. Semo: Okay. We are moving along briskly today. I love it. Anything else from the Implementation Subcommittee? Great work, everyone. Jason, Marianne, anything else?
Jason R. Baron: No, thank you, Alina…
Marianne Manehim: I was just going to say thank you to our subcommittee. They’ve been absolutely wonderful and it put so much work into all of this. It's been a joy, honestly.
Alina M. Semo: Okay, thanks Marianne. Alright, let's move on to the FOIA Statutory Reform Subcommittee. If Ryan Mulvey and Whitney Frazier-Jenkins would like to have the floor, I’m going to hand the baton over to you.
Whitney Frazier-Jenkins: Good morning, we have three recommendations to discuss. I anticipate there’ll be a lot of discussion regarding them. Two of them SR-4 and SR-5 we brought for discussion at the last Committee meeting so I will turn it over to Ryan to introduce the specific recommendations.
Ryan Mulvey: Thank you Whitney, Ryan Mulvey, Americans for Prosperity Foundation.
Alina M. Semo: I’m sorry I need to interrupt for a second. Did we go to the next slide? Just want to make sure we are on the correct slide.
Ryan Mulvey: We are on the cover slide for this Statutory Reform Subcommittee.
Alina M. Semo: Okay, I apologize for interrupting. When you are ready to say next slide to talk about the first recommendation…
Ryan Mulvey: That is quite alright, next slide we can jump right into it. As Whitney mentioned two of these you have seen before. In fact, one of them I think you have seen twice before and this is the third time that it is coming before you. Of the recommendations that have previously been discussed and shared with the full Committee there have been some modifications that were made in light of previous full Committee discussions and discussions at the subcommittee working group levels and also cross working group and in that respect I would like to thank Sean Glendening at OIP and Jason Baron for engaging with Statutory Reform Subcommittee on trying to find ideal language that everyone can feel comfortable with.
With Proposed Recommendation SR-4 the first of the three recommendations we have on the table today I would like to just highlight the changes that are reflected in the version that is posted in which you all have. There are three things I think that I would like to highlight before opening - oh no, we are still on the last one - opening the floor for discussion. The first is that we have in the actual bolded recommendation made no change. But we had previously made clear that while we were preferring the FOIA court be located in Article 3 that Article 1 is properly set up such a tribunal could be a workable alternative to an Article 3 court.
The explanatory language for the recommendation however, still indicates a preference for an Article 3 court. The two other issues which were the point of major discussion last month are firstly whether or not the FOIA court should have jurisdiction to hear non-FOIA claims. We previously had language suggesting that records management statutes or other transparency related statutes Congress could consider given the FOIA court jurisdiction to hear claims arising from. We’ve now in footnote 8 restricted that particular recommendation to Privacy Act claims. Which I think makes a lot of sense. It is seen as Privacy Act requests are often processed under FOIA and there is a greater relation between the Privacy Act and the FOIA statute then there is between say FOIA and the Presidential Records Act or the Federal Records Act. So footnote 8 is one major change.
The other is 9 and as you might recall there was great discussion over whether or not the jurisdiction of a specialty court should be exclusive or concurrent. Meaning whether if someone brings a FOIA claim in a court they have to go no matter what to the FOIA court to bring that claim. Or whether they would still have the ability to bring it either under the current venue options that are in the FOIA statute or to use the example that was discussed in the case of say Presidential Records Act case that has a FOIA claim built in - does that case have to go to FOIA court or does the plaintiff have to bring two lawsuits? There is a lot of complexity in that and there has been a lot of discussion. There are pros and cons to either approach. It is ultimately a policy call. And the working group that is behind this recommendation sought to take no position on that but rather to highlight for Congress for its decision-making it were ever to take up this recommendation to highlight that this needs to be resolved, that it's a complex issue, and that either site again there are pros and cons to either approach. Our hope is that by removing this from the explanatory language and not taking a position either way we can accommodate as many views as possible. Because, and this is something that I have shared with those who have been discussing this recommendation, we think that there is across-the-board support for the idea of having some sort of specialty tribunal that hears FOIA cases. And that there would be great benefit from having that sort of entity set up by Congress. With that I will open the floor to any questions or comments or discussion.
Alina M. Semo: Ryan, you were absolutely convincing.
Ryan Mulvey: yeah…
Alina M. Semo: Okay.
Ryan Mulvey: Jason has his hand up.
Alina M. Semo: Jason, thank you.
Ryan Mulvey: You spoke too soon Alina…
Alina M. Semo: I know…I’m so sorry.
Jason R. Baron: Ryan, I think you have done a great job in service to the Committee as a whole in taking everyone's competing views into account. I am going to surprise everyone here and say that I have no substantive changes to propose. I think footnote eight takes care of my concerns that the recommendation not foreclose or the Committee not foreclose having Presidential Records Act claims or constitutional claims that are married up in a complaint with the FOIA account being driven to the FOIA court. That was my concern. I wanted to keep open the possibility that when Congress considers this that there would be either jurisdiction in a federal district court for those kind-of combined counts or concurrent jurisdiction. You have summarized all of that very well. I will just add that I think this recommendation would get the overwhelming support of federal district court judges in the U.S. District Court for the District of Columbia. That is a natural audience for this given what we see happening and I think it is a good recommendation going forward. So I appreciate the work Ryan you and others on the Statutory Reform [sub]committee have done in shaping this in a way that satisfies at least my concerns. I will not speak for everyone but well done.
Ryan Mulvey: Thank you Jason, this is Ryan again. I also want to call out Dave Cuillier because one footnote that we did add here which I did not mention because it's not really substantive to the recommendation but reflects some of the methodology. Dave reached out to judges and the Administrative Office of the U.S. Courts and this recommendation had been shared with them and unsurprisingly Jason you are correct. The judges on the DDC and the Administrative Office speaking on behalf of judges was very supportive of the idea of moving most FOIA claims, at least, pure FOIA cases, off the dockets of the courts of general jurisdiction and into a more specialized expert court.
Alina M. Semo: Thank you Dave, we really appreciate that. Any other questions? Comments? On SR-4? Okay, I do not see any. Dan I miss anyone? I don't think I did.
Dan Levenson: No. I do not see any hands up.
Alina M. Semo: Ryan and Whitney do you want to make a motion?
Whitney Frazier-Jenkins: I will move that we adopt recommendation SR-4.
Alina M. Semo: Okay, do I have a second?
Ryan Mulvey: Second.
Alina M. Semo: That was Ryan seconding, thank you. All of those in favor of SR-4 recommendation please say aye.
Group: aye
Alina M. Semo: Anyone opposed please say nay.
Marianne Manheim: I abstain.
Alina M. Semo: I haven’t gotten to the abstentions yet.
Marianne Manheim: Okay, great.
Alina M. Semo: I just want to make sure we don’t have any nays.
Marianne Manheim: I didn’t know if anyone was opposed, okay. Sorry, I wasn’t sure.
Alina M. Semo: I don’t hear any nays. Anyone abstaining? Marianne Manheim and Sean O’Neill. I have two abstentions.
Dan Levenson: Two abstentions.
Alina M. Semo: Anyone else?
Dan Levenson: Okay, this recommendation passes 14 to 0 with two abstentions.
Ryan Mulvey: Okay, next slide please. Okay, SR-5. This is what we ended last month's meeting on. As folks were dropping like flies from the call. We have a fuller body here to discuss it today. I will keep my comments brief since not much has changed. In fact, of the three parts reaffirming the de novo standard specifying remedial authority with reading room claims, those two have not been changed. There was some additional explanatory language on the third standing issue. Kind of to reflect or respond to the conversation and comments that were made at the last meeting. I will leave it at that and welcome discussion or questions on this proposal. Unless David or Margaret you had anything you wanted to add before we do that?
Alina M. Semo: I see them shaking their heads no. Just wanted to reflect that. Nieva, I see your hand up.
Nieva Brock: Yes, this is Nieva Brock, Department of War. I want to restate that my comment from the last meeting was that this does not seem to rise to a level of a congressional act. To reaffirm, specify and reinforce things. So that was my comment. Thank you.
Alina M. Semo: Thank you. Duly noted.
Dan Levenson: Margaret?
Margaret Kwoka: I wanted to reply specifically about number two. The problem with number two is that only Congress actually can fix this because it is a question of statutory interpretation that the circuit courts are divided on. So there is a current disagreement about what the statute means and I think by definition as a result only Congress can change the statute to resolve any of the ambiguity that the courts have decided exists in the language. So I wanted to just because I worked more on that one then the others I wanted to weigh in specifically about that. In fact, I think there is literally no other way to resolve it other than a Supreme Court case that deems that the statute to mean a certain thing. But we have not seen even cert petitions on this question. And right now the circuits are divided. So this is exactly the kind of thing where Congress has written a statute that has unintentionally introduced ambiguity that Congress is the only actor positioned to solve it.
Alina M. Semo: Margaret, thank you. That was Margaret Kwoka from Ohio University State School of Law.
Margaret Kwoka: Yes, sorry about that, that’s me.
Alina M. Semo: Anyone else? I see Sean's hand is up. Sean O’Neill go ahead please.
Sean O’Neill: Yeah, I'm going to abstain from this vote. But as to number three there I'm not sure that’s a real problem that needs solving right now. We’re not seeing much of a trend in the courts on that front, so I just want to note that. Number one, I think even if the statute did not speak to the de novo standard I think the courts would still have…be giving deference in a lot of areas such as national security because of separation of powers and other reasons. So I am just not sure that there is a real fix here necessarily that can be made to the statute to override some of that. So I just wanted to note those couple of things.
Dan Levenson: Liz?
Liz Hempowicz: Let’s get to Sean and Nieva’s point–sorry, Liz Hempowicz from American Oversight–that it is not unusual for Congress to have to reaffirm what was meant by statute when the practice does not line up exactly with what was intended. To Sean's point about that deference I think it will unlikely to make it into the statutory text. There might be some useful legislative history if Congress were to take this up and really look at this issue with fresh eyes now.
Alina M. Semo: Alright, I see Jason’s hand up???. Go ahead please.
Jason R. Baron: Jason Baron, University of Maryland. I would like to complement the group that drafted these. The drafting in the commentary to this is of the finest quality. It is law review-like in nature. It shows how wonderful you all are in terms of being good lawyers. I think this is a curious set of recommendations because while I think they are harmless, I would say the word anodyne. It seems to be satisfying some set of issues that lawyers could love but this Committee I sincerely doubt that anyone on this Committee would have come into this, other than the lawyers drafting this, would have come into this term thinking that any of these issues are serious systemic problems in FOIA administration of the type that virtually all of our other recommendations from this Advisory Committee have sought to make progress on.
So we are asking agencies to implement various policies and we are asking different bodies whether it is the Chief FOIA Officer's [Council] to form a technology subcommittee to solve technology issues or to go to CIGCE [Council of the Inspectors General on Integrity and Efficiency] with that recommendation and yes, we have had statutory recommendations previously including one from this term and ones that I think go to agency administration of the FOIA resources and otherwise. These recommendations particularly two and three seem to be the type of things that extremely esoteric intellectual law review articles can debate that are out there. I do not see them and I support what Sean said, I do not see the case being made that these are serious issues that affect the administration of FOIA throughout the government. And I agree, but this Advisory Committee has not really ever to my knowledge made recommendations on circuit splits. That we are trying to in some certiorari business act as a Supreme Court shadow trying to resolve circuit splits and FOIA law to have statutory changes.
So in my view these are all interesting proposals. The way that I come out is that while I am not going to vote against the recommendation I think it would be a stronger recommendation if as a Committee we only adopt point one, which is to reaffirm the statutes to de novo standard which I think we all do understand is an important foundation in the statute to give judicial review a robustness and not be overdetermined by agency, how agencies come out given whatever level of scrutiny they have. So I like one more than two and three as a real-world issue that is appropriate for Congress to consider amending the FOIA statute on and if this were just, should amend FOIA judicial review to reform the statutes de novo standard I think everyone would get it on this Committee. And the audience, the greater audience, would get it. That's a good thing for this Committee to do. As for the others by preference again, I'm not going to object to it but my recommendation or my suggestion is that the final report recognize that there is a circuit split or that there is some cases out there that in the point of three that are requiring a heightened injury, in fact standard that may not be appropriate and that we essentially put it over like we're putting over like other kind of ideas like AI or otherwise to another term to see if there is a further development in the law.
So that is where I come out but I would need support on this Committee with others weighing in even beyond the comments we have heard to perhaps carry the day on what I am saying and Ryan and others feel free to push back on what I am saying. We did get some support for my remarks also in public comments. That's where I come out.
Alina M. Semo: Jason, thank you. Ryan, go ahead please.
Ryan Mulvey: I appreciate your feedback Jason. And at least with number three to your point and to Sean's I think we always recognize that there has not been a huge shift in the case law. But there has certainly been discussion in cases and again I would point with reading room claims to Judge Rao’s concurrence in the campaign for accountability [Campaign for Accountability v. DOJ, No. 24-5163] case. That there is this disagreement among jurists about the impact of TransUnion on informational standing which directly relates to FOIA. There has not been huge amount of case law but at least from the requester community it is a concerning thing to see line attorneys at DOJ try to move to dismiss FOIA cases for a lack of standing because informational injury by itself, the procedural entry of not receiving a response, a timely response, for example, is inadequate. That being said, personally if it would garner more support to the rest of the recommendation to remove three to report language I could be accommodating on that, I think. I speak for myself, not for the subcommittee or the working group.
On number two I think that of the three this is the one that is the most appropriate. I can think of maybe putting aside differences between Courts of Appeals on the standards of review method not the de novo standard review but the review of the lower court's opinion with review of summary judgment decision might be, setting that aside there are three big areas of splits in FOIA - (b)3 and whether the Open Government Act, the requirement to cite to the FOIA in (b)3 is an entrenchment. Whether or not certain communications with Congress satisfy the (b)5 threshold. And then lastly whether or not there is remedial authority or what is the nature of the remedial authority with reading room claims. Those are the three. This really goes to a split that gets to a very fundamental understanding of what the statute is supposed to say.
So in that sense even though there's not a lot of reading room cases it really sticks out to me as something that is worthy of Congress intention. I think that is why ACUS [Administrative Conference of the United States], which admittedly is a lot of law professors and admin law geeks of course but that is why they address it and they have government and requesters come together to support exactly the same thing that we are proposing. To me two is the most important one to tell you the truth, in my mind.
Alina M. Semo: Thanks Ryan. Margaret, thank you for your patience and I apologize if you had your hand up before Ryan but go ahead.
Margaret Kwoka: I did not, Margaret Kwoka, Ohio State University, otherwise known as one of the people writing the esoteric law review articles. I appreciate your comments Jason and I just, I did want to push back on a couple points. Also let me say I want to second and endorse all the things Ryan just said and I think number two is also the most important of these. And I want to suggest although not make a motion because I think under Roberts Rules that cuts off discussion but that we potentially sever these for separate votes or in somehow something like that in the idea that perhaps some make garner more support than others.
I do think number two is particularly both appropriate and important. On the appropriate prong I would say I do not think that this converts us into a body that is trying to sit as a Supreme Court stand-in resolving circuit splits. This is not a constitutional question. So this is not a question in which the Supreme Court is the ultimate authority on interpretation. In fact, the courts in this instance are interpreting the statute and are just trying to figure out what Congress meant. So making the recommendation that Congress clarify what it meant by specifying that remedial authority, I think is completely appropriate. And it would be different perhaps if we were talking about some sort of constitutional question but given the statutory interpretation, all the courts are trying to do in these instances is try to figure out what did the statute mean. What did Congress mean, so we can recommend that Congress specify what it means and I think to the extent that we have a Statutory Reform Subcommittee having recommendations that explained to Congress what areas where they can, in fact, clarify the statute in a way that is helpful to the administration of the statute is important.
The second thing I will say is I will bring up the ACUS plan also. Yes, Ryan there's a bunch of esoteric admin law professor types there's also half government members so that recommendation passed overwhelmingly out of the Administrative Conference of the United States which is a body of 60 people half of whom are sort of high-level folks in agencies. Including general counsels and whatnot of departments. So this is the kind of recommendation that I think is entirely appropriate out of this body and I do think that even if the number of cases are small the impact is large so, for example, the Executive Office for Immigration Review (EOIR) now publishes the full corpus of decisions out of the Board of Immigration Appeals which because of reading room litigation and that has been transformative in terms of immigration practice is my understanding through immigration lawyers having access to those decisions which are orders or opinions of an agency under (a)2 and should have been published all along. So, and even if the number of cases is small the effect can be quite big on FOIA administration and on transparency and on the public's access to some of the most important government documents which are the documents that embody agency decisions that affect members of the public.
So I just wanted to highlight that I think number two is entirely within our competency, is not merely of interest to law professors but, in fact, the FOIA community and also the community of constituencies across agencies that need access to government records. And that there is nothing, in fact, the right place for us to intervene is to make a recommendation to Congress. So maybe we could sever these and maybe will still won’t come to agreement but I’m going to put that out there for perhaps the subcommittee co-chairs to consider how to proceed on a vote when we get to that point in this discussion. Thanks.
Alina M. Semo: Thanks Margaret. Jason has his hand up again. Go ahead Jason, please.
Jason R. Baron: Margaret you’ve…this is Jason Baron, University of Maryland. You have made, Margaret, you have made a very persuasive case and so has Ryan and pointing out issues that are of importance with respect to the second recommendation. What I would say is that the points that you have made just now supplement, complement, amplify on the commentary to this recommendation that was in the subcommittee report. So assuming this passes at least the second recommendation I would really urge the final report of this Advisory Committee to incorporate…look at the transcript of what has just occurred in this meeting and incorporate some of that. Because ultimately I still stick on my meta point that this Committee through several terms that have been noted we have lots and lots of recommendations and there is an Implementation Subcommittee because well there is concern about the limitation of 70 plus recommendations.
My concern is that these points that with all of your points well taken, still I think end up adding to a forest of recommendations and particularly in batch that the Archivist if confirmed or the Acting Archivist will have to decide on. So we need to bring our best arguments in the final report in support of why these are important. And I will leave it there. I guess where I now come out is that we can sever this. I would recommend that points one and two, the sub-recommendations one and two be carried forward with this and with respect to the third recommendation that we can note it in our final report but not as a recommendation so that we adopt one and two and that we say with respect to whatever concerns we have to is an emerging case law that we need to recognize and perhaps opine on in a recommendation for next term. That is where I come out. Thanks.
Alina M. Semo: Okay, thanks Jason. I’m just going to comment as chairperson we have never had this happen before. Margaret, thank you for raising new issues. Fun, fun ride here of splitting up recommendations, a recommendation rather into some parts and voting on them separately. I have asked our ADFOs if there's anything in FACA that prevents us from doing that. Dan, Kimberlee, would you be able to speak to that?
Dan Levenson: I just reviewed a couple of points on FACA and I don't think there's anything that would prevent us. I’ve also reviewed the charter and the bylaws and I believe both are silent on this issue. There does not seem to be anything preventing us from doing that.
Alina M. Semo: Okay.
Kimberlee Ried: I concur with Dan, Alina. I am not seeing anything either. So it's up to the Committee how they would like to proceed.
Alina M. Semo: Right, absolutely. Thank you so much Dan and Kimberlee. Jason you have your hand up again, go ahead please.
Jason R. Baron: Well I, Jason Baron, I don't want a law of unintended consequences. There has been very good work on the subcommittee's part and the drafters of all three of these, that is what I started with. I would wish that there not be a vote that’s a negative vote with respect to any of these. That is that it could be over interpreted as somehow the Committee did not think that they were worthy of even discussion or that they were bad ideas to be objected to.
I would like to propose, is that it's 11:17 that we take a break. This might violate a FACA rule, I was going to suggest that the drafters from the subcommittee have a conversation about whether to withdraw number three and just have a vote on number one and two. I will withdraw that, if that’s not appropriate for the overall public meeting that kind of conversation. We have those conversations as subcommittee members. I would defer to Alina and our designated representative on that. I just think that it would be, the severability is okay. I would like to counter that and just have a proposal that we adopt the sense of this recommendation for one and two and with that language included. And that we get a positive vote from the Committee with simply the language of one and two in and a recommendation and that the sense of the Committee would then be without a vote that the third recommendation be incorporated into a final report.
Alina M. Semo: OKay, Thank you, Jason. Margaret, go ahead please.
Margaret Kwoka: I've been trying to read the tea leaves of this conversation amongst those who worked on this also and Jason, your comments and actually I suspect that the working group that put this forward at least, I can't speak for the subcommittee necessarily, but that we could - one way to do this would be potentially to entertain a motion to amend Jason if you wanted to make a motion to amend and maybe that motion could be a motion to amend to remove paragraph three from this bolded text and instead incorporate that into the final report as an issue for future study. I don't know, then I think we vote on that motion to amend or because I don't like it is quite trivial enough to be a friendly amendment or maybe we could accept as a friendly amendment and then vote that and I would be happy to support that or second that motion.
Jason R. Baron: For the record and past terms we have edited the language of recommendations without a formal motion.
Margaret Kwoko: Right.
Jason R. Baron: But I think that that is an alternative mechanism and I would make that motion if Alina wished me to do so.
Alina M. Semo: It's not just up to me. I really want to defer to Ryan and Whitney. But I think everyone feels like they need a comfort break and it will give us an opportunity to mull things over so if we could take about a ten-minute break and come back at 11:30 I think that would be very helpful. If the working group wants to stay on and chat about this for a minute they do not need the CFO or ADFO to be on. So I believe that’s up to everyone.
Dan Levenson: I would suggest the working group not use this forum since this forum will be public. Or could potentially be public.
Alina M. Semo: Right. Perhaps you could email each other separately as to how you want to proceed. Let's take a ten-minute break and we will come back at 11:30. Does that sound good to everyone? Don't turn off the video. Just turn off the video camera icon. If we could go to the next slide please.
(break)
Alina M. Semo: Okay. Whitney is back. Jason is back, thank you. Sean is back, thank you I think we have got everyone, right Dan.
Dan Levenson: Yes.
Alina M. Semo: Yeah, I think we do. Okay, well welcome back everyone. Lively discussion going on today. And I'm going to ask Ryan in particular, but Ryan and Whitney as subcommittee co-chairs. What your preference is about how you want to drive forward with this particular recommendation.
Ryan Mulvey: This is Ryan, Whitney and I and the rest of the working group that drafted this recommendation have consulted. And I think we're agreed that the best approach would be rather than voting to sever and then voting separately. We can just amend as a group as we've done in the past with the recommendations in explanatory language. The idea being to move three to the subcommittee report and ultimately the final report. As an issue for further issue of interest and further study for subsequent terms.
Alina M. Semo: Okay, that sounds good.
Ryan Mulvey: So get the red marker out and.
Alina M. Semo: Yep. Dan, are you able to do that on screen? Oh, here he does. He's already prepared. Thank you. So we're going to strike 3. And Frank and Shelley and Sarah, we have a lot of work to do on the future considerations section of the final report, right?
Frank LoMonte: Noted.
Alina M. Semo: Yeah.
Ryan Mulvey: I would, on that point I would, I would, as a separate note because for the folks at home. And also the members who have looked at the OGIS website and the meeting materials. Whitney and I, the report from our subcommittee is not complete only because we were waiting to see how these three recommendations would go. So our report will be finalized in short. In short order but I just wanted to throw that in there. Also we need to change in 2 ways before the call and at the top here.
Alina M. Semo: Right. Okay.
Jason R. Baron: And the semicolon and the word and come out for a period.
Ryan Mulvey: Yeah, and moved up, I guess, to the….
Alina M. Semo: After standard.
Ryan Mulvey: Yeah, this would, I guess this, the last it's not on the screen here, but this amendment would also mean taking this the last page roughly bottom of page 3 and all of page 4 from the full recommendation with explanatory language would be cut and paste into the report.
Jason R. Baron: Well, Ryan, that's…
Ryan Mulvey: Into our subcommittee report and then what the final report yes
Jason R. Baron: Oh, into yours yeah, into your subcommittee report. That's…
Ryan Mulvey: Yeah.
Alina M. Semo: Hey, Dan, can you please add and after the standard in line for number one?
Dan Levenson: Standard. Oh, and. Thank you.
Alina M. Semo: Yes, please. Thank you. Alright, does that seem okay, Ryan and Whitney…
Jason R. Baron: Okay.
Alina M. Semo: as subcommittee co-chairs.
Whitney Frazier-Jenkins: Yes.
Alina M. Semo: Okay, great. Thank you and thanks for resolving that very quickly, I really appreciate that. Are we ready to vote on SR-5. Do I have a motion?
Ryan Mulvey: So moved.
Alina M. Semo: Okay, so.
Margaret Kwoka: I second.
Alina M. Semo: Thank you, Margaret. Just so we're all clear, we're voting on what is up on the screen currently. The SR-5 version, not the version that was circulated earlier. All those in favor of this version we have up on the screen currently, please say aye.
Group: Aye
Alina M. Semo: Anyone opposed? Please say nay. Okay, any abstentions?
Scott Hodes: I abstain.
Nieva Brock: Nieva, I abstain.
Sean O'Neill: I abstain.
Whitney Frazier-Jenkins: I abstain.
Alina M. Semo: Okay, so there are several abstentions. Let's make sure we note those.
Dan Levenson: I heard Nieva abstaining. Sean previously confirmed that he would abstain. So. And then I heard several others, but.
Nieva Brock: Yes.
Sean O'Neill: Oh yep.
Dan Levenson: Altogether. Who were they? Whitney?
Alina M. Semo: Yeah.
Whitney Frazier-Jenkins: This is from PBGC. I'm abstaining.
Alina M. Semo: And Alina is abstaining.
Scott Hodes: Scott Hotus, USCIS abstains.
Dan Levenson: Okay. And Scott. So, Nieva abstains, Whitney abstains, Sean abstains, Scott abstains, and Alina abstains. Five abstentions and 11. Yes, so the motion carries 11 to 0 with 5 abstentions.
Alina M. Semo: Okay.
Ryan Mulvey: This is Ryan, I'll turn it over to Dave for the unless Whitney you had anything you wanted to mention before we turn it over to Dave for the last one.
Whitney Frazier-Jenkins: No. Turn it over to Dave.
Alina M. Semo: And before Dave starts, Dan, can you turn off your screen? Stop sharing. That would be helpful.
Dan Levenson: I can try. One second. Okay.
Ryan Mulvey: Hmm.
Alina M. Semo: Okay, that'd be great. Dave, over to you.
David Cuillier: All right, thank you. Yeah, Dave Cuillier, University of Florida. Thank you all. This has been a pleasure these past two years. I love it. And so I think this is the last recommendation we're doing today, yes?
Dan Levenson: Yes.
Alina M. Semo: Correct.
David Cuillier: Awesome. Well, four years ago, we had a recommendation on the Committee to have the Archivist, NARA, commission a study to look at pros and cons costs and benefits of new systems for assisting the FOIA process. Specifically, we're talking about new actions with appropriate funding for OGIS to deal with disputes, make binding recommendations, various other elements that were approved in the recommendation. And all of those depended on studying, you know, to see if it would be good or not. Well, I think OGIS and NARA, they've worked hard to try to find the funding for that study, but it hasn't come about and no surprise given the budgets and federal agencies today. So we came back at it this term. With another recommendation building on it in three important ways.
One is we make it clear Congress should appropriate the funding for this study. If Congress wants to pass an unfunded mandate of FOIA and it really believes in it and we believe they, most members of Congress do, we hope. That they should put up the money to figure out how to make it work better. And so we shouldn't put it on the Archivist to come up with the 1 million dollars or whatever it would cost to do such a feasibility study. So that's really important.
Number two we make it clear that to leave it open on who does the study. It doesn't have to be OGIS or NARA. It can be another, it could be ACUS or OMB (Office of Management and Budget), an outside entity, whatever Congress wants. And we also, number 3, leave it wide open on the different types of structures they might want to study. So not just giving OGIS additional powers, but it could include creating a whole new entity. We heard pros and cons to that this term. It could include, giving duties to OGIS, it could include, reinforcing and funding better all the entities that currently do a lot of this. Well, there's GSA (General Services Administration), OMB, GAO (Government Accountability Office), OIP, OGIS, etc, etc. So really that's all this is, is it, shoot, Congress, please step up and put the money forward to see what we can do about coming up with a better way of making things work for the process.
And a lot of the ideas are driven by research that's been conducted in the past four years by Margaret Kwoka. Her detailed examination hanging out in Mexico City for 9 months studying their processes. Not to mention 80 other countries that have alternative ways of dealing with FOIA. And the states as well. So, we think there's a lot we can learn from that and we would really love it if Congress would step up and and and figure out what might make sense and we don't know what that might look like ultimately, but we gotta start somewhere. That I think is the recommendation. Margaret, Ryan, anybody else, Margaret, probably did you want to add anything?
Margaret Kwoka: Thanks Dave, Margaret Kwoka, Ohio State. I will add just that, we have done, sort of, we've gone through a lot of iterations of this recommendation. And in sort of some of them we considered just simply making the recommendation about how to sort of consolidate and augment the functions that we are talking about. I just want to highlight that these are mostly sort of oversight type functions. So this is, you know, and many of which are being done in some form or another somewhere, right, but not done sort of to the level or systemic capacity that we want and we think there's value to considering consolidation and augmenting those functions.
So for example you know having you know like studying the feasibility of creating you know endowing an entity like OGIS or something else with the capacity to host a single system platform both for users and back end for agencies, you know, technologically for FOIA administration across the federal government. That requires, I think, more information than we are able to gather about the costs and technical barriers and whatnot and that's why a study about that is so important. It includes you know auditing functions which are currently sort of like you know, OGIS does some things that look like they're not audits their assessments, sorry Alina, there's a different word, something like that. Yeah. Okay, but then like GAO does audits, right? And like inspectors general might do what we have parts of government that are doing something that looks like I'm gonna use the word audit very loosely, not like necessarily an audit audit, but like a something like an audit, but not a systemic way of doing that kind of work over FOIA operations. You know, and so it's sort of piecing together these various functions. And thinking about, you know, a study that can really look at. You know, what makes sense as a holistic question, not just taking piece by piece. It would be great to have you know more auditing or a better portal or a whatever right and so kind of figuring that out and I'll say you know it was the the research that I did that Dave is referencing on a Fulbright grant in Mexico was, of a system that has, now in fact been constitutionally abolished, unfortunately, in Mexico as part of a huge constitutional set of reforms that affected a lot of different government functions. And reduced the sort of independence of some independent bodies and also the judiciary. There's like lots going on in there and I think was not an indictment of how well the system was working, but was, rather sort of a shift in the political winds about, you know, sort of, larger political trends.
So that system relied on basically a commission style system and it was one of the stronger commission models in the world. A commission, an information commission, is usually sort of a generic term used for sort of an independent or quasi-independent body that has the sorts of oversight functions that will include, you know, administrative appeal adjudication usually that will include a posting portal, that will include auditing that will include, you know, promoting sort of public information, public education, even doing school curricula, advertising, providing services to requesters sort of a whole host, it's sort of like a full 360 roundabout, set of wrap-around kind of FOIA vision. And so the question is really just how you know, whether and how some sort of re-imagining of consolidating and augmenting those types of functions and which ones they are would be included or not included were not prejudging. Where it would be housed, we're not prejudging. Whether these are feasible in our own structure, we're not prejudging.
Like, in my own work, I have suggestions about that. Other people have suggestions about that in their work. We're not prejudging which of these ideas is right, but just to say that, you know, frankly, a lot of this sort of depends on figuring out what, you know, what things will cost and how we can do them and how it works best given our environment. And that's what the study is meant to do. So that was a long winded way of augmenting and probably just reiterating everything that Dave said much shorter and clearer than I did so thanks for giving me a minute.
David Cuillier: No, well said that had to be said, Margaret. Thank you.
Alina M. Semo: Okay, thank you for all of that, Margaret. I appreciate it. And Dave, thank you. I'm looking for any hands. Any questions or comments from the rest of the Committee? I'm not seeing any. Do you all think we're ready to vote on this?
Dan Levenson: Jason has his hands up.
Alina M. Semo: Oh, I'm sorry, Jason. Yes, thank you.
Jason R. Baron: Well, I feel an obligation, Jason Baron, University of Maryland. I feel an obligation to complement the work here that's been done. To acknowledge it and I understand from Margaret and David that you're not taking a position as such, leaving all possible possibilities, whatever, all options open as to what a feasibility study would end up recommending. But could you discuss for a moment how/what possibilities exist in your mind for what this study might end up recommending. Are you suggesting that functions performed by OIP be segregated out? Functions from OGIS or I read this as OGIS could be eliminated in favor of some new independent information office. Tell us what possibilities exist. That would end up being in a you know a different universe than the one that we existed now for FOIA administration.
David Cuillier: Thank you, Jason, for that Dave Cuillier and Margaret, I bet you'll wanna chime in on this one. But yeah, I mean, I have a lot of ideas. I think Margaret does. What we've looked at around, the country and world, but you know, the more I've looked at this some more, I realize you know, I'd like to see a study you know, really dig in and see what it ends up with. I don't know what the outcome would be, but I think it needs to be. I mean, look, OGIS been around what, 15 years…what something like that, 17 years. Now's a,
Alina M. Semo: Yes
David Cuillier: yeah, and it's a great agency I know we note in the report that its budget is flatlined that whole time, but yeah, this workload is increased exponentially I mean, it's just, so I think it's a good time to take a look and take stock of how This is all working and and see if there's a way of tweaking it. Or completely revamping it. I mean, I think we can learn from a lot of others. And see, maybe there's a better way of doing this. I think having some entity that has some independence is helpful from the executive branch, but you know some freedom to be able to provide advice and to agencies, but also to help agencies, help them with their technology. I think it's wrong that we leave it up to agencies to find the platform that'll work for them. That may or may not work well. To pay for it. To maintain it. And then you have all these different agencies doing different things. It just seems like there could be better ways. And so I'm hopeful that a deep dive look could really flesh that out within the context of the U.S. federal government. Which is unique compared to other, you know, entities in the world. Um Margaret, did you want to add to that?
Margaret Kwoka: Yeah, thanks. Margaret Kwoka, Ohio State. Yeah, I mean I can tell you Jason a little bit about like you know my dream. To the extent that's helpful. But I think, you know, one thing is I think, you know, from my perspective, endowing OGIS with more authority, but not authority alone and resources that go with that authority like is the most important part of that is the preferable route. I understand I don't want to speak for anybody else. My understanding, you know, it seems like I haven't gotten the sense that OGIS is eager for a reform that looks like that necessarily right now. I don't know how much of that is sort of resource constraints and how much it is other things. There's some sort of positional things.
The reason that I think creating a new body is going to be a heavy lift is A) I think politically that's a heavy lift right now to create any new administrative body; second, protecting the independence of independent agencies right now is you know, something that is being hotly litigated in the courts and I would say independence is hard to come by and frankly the Archives while doesn't it doesn't have the formal sort of independence markers that some so-called independent agencies have acted quite independently in most instances, like is a strong voice in terms of its mission, that is you know, sort of independent of politics in most instances, I think. And so, you know, it doesn't seem like an inappropriate spot to me. But the ways in which it would differ would be sort of, you know, an order of magnitude in terms of resources because the responsibilities in my view could be in order of magnitude bigger very profitably. I think OGIS is doing amazing work and augmenting it would be my preference if we were talking about you know me alone and so you know one way to do that I think like, here are some of the things that could happen, right?
So when I say one single FOIA portal, I think sometimes it sounds trivial, like, okay, there will be like a website. Like, all you want is like a new website where people can submit requests. But actually the way I've seen this work and this is not just Mexico, there's other countries that do this too, is that these portals act as the backend infrastructure for the agencies to track and process, to refer and manage to queue up and no deadlines for, right, and to keep a permanent, you know, a record of everything that happened, you know, vis-a-vis requesters. So for example within an agency that you know, the single portal system that a requester can go and request to anywhere and it will get sent off and they can log in and see all their requests they've made and all the deadlines and all of their communications that's happened and all of the releases, etc. But on the backend, the agency personnel can say, oh, like the FOIA office at a particular agency could say, oh, this is actually…these records would be in this program office and they could use that portal to refer the request to a program office and give them an internal deadline to get back with responsive records so that they could then process that in the FOIA office. It could be potentially used to refer requests between agencies. It would keep a record and then when you had an appeal or litigation, the full record would be available of all the communications between the request or the agency.
An OGIS-like entity or it's equivalent you know or it's or it's independent and new entity that we're talking about whatever it could take administrative appeals instead of those going up to the agencies. So administrative appeals could go to them for example and that full record would be there and they could have an adjudicative function obviously to be appealed to court if they don't like it. But more than that, I think they could also do things like, you know, training of not just FOIA office personnel but all government employees who have touch points on the FOIA process. Part of promoting the responsibility of FOIA is something of all government employees and not just FOIA officers. I think that would be an option.
Public education, I think, you know, promoting the use of the statute, you know, I saw like, you know, these kinds of entities advertising at public festivals and on the sides of buses and sort of explaining you know you have transparency rights this is how you can get access to information. So you know it's sort of like the world is your oyster and we've tried to list some of the possibilities in the explanatory text of what could be looked at. But I think it is time to think about, and I think you know one thing that I really was struck by is just you know one thing that I really was struck by is just you know there are a lot of models out there and of course there's good work. You know, one thing that I really was struck by is just, you know, there are a lot of models out there and of course there's good work being done by folks who know what's happening around the world and at the state level. But I think sometimes Congress is myopic about like, well, we've always done it this way and we were the first and this model has been exported around the world. It doesn't mean that we haven't innovated beyond that and they could take on some of these issues and figure out, you know, can we find a model that would work here like that.
Alina M. Semo: Thank you, Margaret. I see a couple of different hands up. I see Nick and Jason. I'm not sure who was first. Do you wanna do that?
Jason R. Baron: Let Nick go.
Alina M. Semo: Okay, Nick, go ahead, please.
Nick Wittenberg: Thanks, Jason. No, I really like Margaret's comment. And I think this proposal because somebody's been in the trenches. I still think moving that data down Pennsylvania Avenue is very challenging. And especially as we get into video and other complex solutions it's only going to get more complex. I think the challenge also becomes agencies, cyber protection profiles, and shared services. But I think we've, you know, the private side has been doing this….so in addition to Margaret's great study. This is obviously something we can do to make it easier whether it's a referral or if it's a congressional oversight or if it's a privacy request it's the same piece of information but moving it down the agency to Congress for requesters has become increasingly hard. With systems divided in siloed fashions that sometimes are proprietary and don't talk to one another. So anything I think will give some type of intermediary as well as give the agency choice about what they need. But just to have that connected tissue among the data would be, I think a huge, huge win.
Alina M. Semo: Okay, thank you, Nick. I appreciate that, Jason. Go ahead, please.
Jason R. Baron: I really appreciate, Jason Baron, I really appreciate the further commentaries, explanations, and discussion in response to my prior question. I'm not going to be, I hate to be a gadfly on this Committee and I really would be delighted if others, who haven't spoken or who have but you know, to go and tell us what you believe this recommendation may or may not do to improve or disrupt the current administration of FOIA. It seems to me that this is a Christmas tree wish list. It's not just a feasibility study that is limited to OGIS or to some aspects of FOIA administration, but it really goes to everything. It's sort of an everything is possible in the future including the elimination of OGIS and the separation of functions of OIP in its current form and and it has a lot of great ideas in the commentary but I would have wished for, again, I'm not, and nobody is going to like this comment, but I really would have wished for this recommendation as well thought out as it is to have been put forward to the Committee a year ago or 6 months ago or three meetings ago, whatever to have a private set of discussions among subcommittees as well as a public discussion about the great ideas that are in here and the dangers to in terms of disruption of the current system to, yeah, in terms of all options being presented.
I think it's a bit of a Trojan horse. I've used different metaphors here. It's an all encompassing ticket for Congress to do lots of things to the current system that, in terms of recommendations and ultimately statutory revisions, that may or may not be ones that are acceptable to some members of this Committee or the larger FOIA community. And so it's a little like having a, I mean a feasibility study for a constitutional convention to change the U.S. Constitution and we don't know what 50 amendments would be proposed. And so I appreciate the work that's been done. But given that it's being presented today with not really kind of robust discussion of what's the devil in the details in the commentary that goes to what it is that Congress might be doing. I'm a little uncomfortable with suggesting such a broad based, having a broad based recommendation that would lead to the possibility of OGIS and OIP being transformed into some other entity and I assume that both components will abstain but I can't speak for Alina and Sean.
I just don't know what to make of something that is potentially much more than a feasibility study. It seems to me like a roving commission to change everything we know about FOIA administration in the United States in favor of some other international model or otherwise. And again, there are lots of good ideas here, but it is not something that is narrowly tailored in the way that we're proposing it. We're giving an open slate to whoever's running that entity that comes out of this, the feasibility study assigned to some committees, adhoc task force with maybe some of us on some advisory group or whatever. I don't know what the future would hold for this recommendation coming forward. It's not, it sounds like a feasibility study, but it's really not narrowly tailored as such. And so I appreciate the opportunity to make my comments here. I would be really interested in what others have to say about what this recommendation means to you in terms of FOIA administration at your agency.
Alina M. Semo: Anyone want to comment on that gauntlet having been thrown down by Mr. Baron?
Marianne Manheim: It’s Marianne Manheim, I have my hand up.
Alina M. Semo: Oh, I'm sorry. Thank you, Marianne.
Marianne Manheim: I will, I am from NIH and I will just give some of the feedback I've had before thinking about this and thinking about it now. And yeah, it's the deconstructing of this, and the road here that we've been on that makes me question how vast this actually is as Jason has described. I mean just thinking about where we go to, again, recommendation after recommendation, improve funding and supplying support to OGIS. Continue to do this, this is one, this is where this kind of started. And this is a never-ending thing. And then I also from an agency standpoint have real concerns in some way with first looking at every country which is not our own which have very different systems even though they might have very good things and pieces that you take out of there that are important that we should be looking at. But trying to apply that to us, I mean, I was even emailing Margaret the other day because I was just like your example actually got tossed away, like the Mexico, like it might have been good but it's not even there, so there's that. So it was just like one of those moments like the footnote actually was like wait are we going to try to do that, so there was some of that when I was looking at it. And yet, all of these countries do have different sizes, different ways of looking at things and when we're using the words like better this is better it's different, but we're different so some of that again we should all be trying to improve. That's why we're here at this Committee.
But on the IT [information technology] front our agencies are also quite different and have different IT needs. So it isn't as simple, just like we can go through this whole feasibility study and then you're going to talk to different agencies and you're going to come back to that again. And so we do need better technology. What we might not need all the same thing. And again, maybe you want a feasibility study to figure that one out. But, I do think that this is very large where the real issue is to me, OGIS still needs more support to get through their mission, which would cover a lot of what we're trying to do here.
Alina M. Semo: Thank you, Marianne. Ryan, go ahead, please.
Ryan Mulvey: Ryan Mulvey, AFP Foundation. I mean, I think on that last point, Marianne, we could point to the number of outstanding, not outstanding, the number of past recommendations which are mentioned, in this, in this recommendation that have been made with respect particularly to OGIS. I actually, you know, to push back slightly on Jason on your point, which I think is fair, on pages 4 and 5, and maybe this can be the explanatory language can be clarified a little bit, I think the the idea is that the entity that is conducting this feasibility study, it's supposed to focus on the previous recommendations and these seven topics. Which were the, if you look back at last month's version of this or SR-6 were the seven proposed reforms to OGIS or another entity, I think was the phrasing that we had. And there were seven things that in our discussions with multiple stakeholders and members of this Committee, government side included, I think people thought were valuable to think about. So the idea of having, you know, FOIA.gov is a redirection website working towards having, you know, an actual proper portal that functions government-wide is a worthwhile goal. And something that needs further study.
I think also just as a general point, the one thing I appreciate here, even though I know I will tell you, on the working group, Margaret, Dave, and I don't agree on everything. Like we disagree about independence and you know, some of the issues that come up with trying to you know move certain agencies that you know isolate them from the exact for you know there's disagreements there. What is so nice about, I think, the current drafting here is that this idea is about empowering Congress. So note that this isn't Congress giving OGIS money to do a study.
This is Congress, you need to have your own subject matter expertise. Congress, you need to go out and study what's going on. And you need to have your own data points as it were for approaching FOIA reform. And I think that's a valuable thing to kind of push for Congress to undertake. If nobody else is getting that impression that that's the purpose of this, maybe there can be some massaging of the explanatory language again, but in my mind that's what I think we were going for. And I think that's, again, an important thing to help empower Congress to be making, to have the knowledge at its fingertips for undertaking FOIA reform. Thank you.
Alina M. Semo: Thanks, Ryan. Any other thoughts or comments or responses? Do what Ryan just said. Dave and Margaret, anything else you wanted to add?
David Cuillier: Margaret, did you have any? Go ahead, Margaret.
Margaret Kwoka: Margaret Kwoka, Ohio State. Yeah, I'll just briefly say, I mean, I think I just, I want to underscore Ryan's point that, you know, this recommendation originally was in fact up to endow OGIS with the authority to do those seven things and the concomitant funding to do them. And we eventually and I think there was you know, I think there was some support for the idea that we should just make an affirmative recommendation about what should be done to those seven areas should be given to OGIS as points of authority and funded concomitantly. You know over discussions we were convinced that you know, that there was enough divergence of opinion about exactly where and how and which of these things were the right things to do. That further study would be a benefit and this body has already made a recommendation for a feasibility study four years ago as Dave mentioned.
And so now that recommendation of course was not directed at Congress. That's why this is different. It's not the same recommendation. But I do, I don't just because we all can imagine things or pull research from everywhere, it doesn't mean I think that this is absolutely a free for all. Because it's a recommendation that Congress commissioned the study that we previously recommended and that it addressed these seven areas in particular because those were the ones that you know, our original conception was simply to make the recommendation that Congress actually legislate those seven things. And instead of doing that, we're making the recommendation that Congress study these seven things. And so I don't think it's you know, I don't think this is a huge sort of, you know, potential power grab or unintended consequences. I think this is what I mean, Dave's amazing work two terms ago, I think this is the natural culmination of that is to, you know, now that we've been unable to get feasibility study done and funded any other way to go straight to Congress to ask for it. So I think this is a completely appropriate and logical next step from there and one that we worked, I don't know what OGIS’s position is on it I'm not gonna say they support it but we worked very closely with OGIS staff and talking about like how to approach this because of concerns about simply moving forward with a substantive recommendation about endowing this authority.
Alina M. Semo: Thanks. Go ahead.
David Cuillier: Yeah, I think, think you're right. Oh, I'm sorry. Go ahead, Alina.
Alina M. Semo: No, no, no, go ahead, David.
David Cuillier: Well, I was gonna ask, Alina, I don't know, would you wanna make any comments about this? I mean, we heard you out, we heard, OGIS out, we conferred. And I think we modified the ultimate recommendation to fit with what you all were thinking. I don't know, did you want to comment on that?
Alina M. Semo: Sure. And, and yes, I agree with Margaret and Dave, thank you. Both of you have been very accommodating as has Ryan so I do want to thank you on behalf of OGIS for that. We did vote in favor of a feasibility study in the term that it was proposed and OGIS did make a number of efforts to try to get funding. Unfortunately, we were unsuccessful. We kept getting turned down. And, we felt a little frustrated with that because we just weren't able to make that recommendation come to fruition.
So this was born in part out of that discussion and informed by that experience, I would argue. And, I do very much appreciate the working group's willingness to consider OGIS's concerns and comments and to us this seemed like, as Ryan said, the best way to approach this which is to put the onus on Congress to actually try to conduct the study. As opposed to putting the onus on us because we did not do so well in trying to do it on our own and we are hopeful that Congress can have better success. And certainly they can, yeah, they certainly have the ability to allocate the funds to themselves to conduct the feasibility study. So that's where we're generally coming out on that.
David Cuillier: Thank you for that, Alina, Dave Cullier again. So yeah, I mean this is taking different forms. I think we talked about, and we ended up with this because you know, this is just taking the next step. It's just let's figure this out. Jason, I totally understand. It always makes me nervous when you hand something to a legislature, a congress, and open that door. Who knows what you're gonna end up getting in the end? So yeah, that that worries me a lot. But, if we're all involved, hopefully in watching that and helping guide in some way. Hopefully they'll do a good job. They could do a study and nothing could happen, you know. I mean, who knows. But it's the next step. And I think that's what's important here is we gotta keep moving the ball forward. Because if we don't it just dies and we keep doing the same thing over and over and over without really taking a look at what's possible. I don't know, I just think it's a pretty simple recommendation with a little downside but hopefully can move things forward but I could be wrong. Jason?
Jason R. Baron: Anyone else?
Alina M. Semo: No, I think you're the only one with the hand up.
Jason R. Baron: Well, I'll continue to lobby for others to weigh in. Here's my suggestion. When I read the commentary, I thought it was going beyond David what was simply recommended for reimagining OGIS. If it's cabined in a way that reflects the wonderful work that you've done previously in prior terms to sort of flesh out, you know, the possibilities within government. And I then again, if OIP is not objecting and OGIS is not objecting on the record, then who am I to object? I mean, feasibility studies are good. I wish, you know, I wish NARA implemented your prior proposals.
I guess where I come out on this one is similar to where I came out on previously on another recommendation which is that the final report not be too ambitious in this commentary. The commentary here has been so well done in terms of fleshing out, you said, David that this is a simple proposal. Well, it is a simple proposal that we're looking at on the screen, but the commentary goes well beyond the seven points. That is essentially said and in addition you know Congress can look at these seven points. It isn't central to the commentary. The commentary in its prefatory remarks opens up the possibility of real, structural reform in ways that I don't think have been discussed by this Advisory Committee and of course depending on the staffing of any feasibility study in the future you know it might go in one direction or another.
And so in I would suggest and it's only you know my suggestion the final report drafting committee can do what they wish. I would suggest that the commentary on this be conformed and perhaps made more of a modest effort than what to me is suggesting as you know and all things considered including OIP and OGIS being a transformed recommendation. So I would put the burden on the final reporting committee to final report committee and then of course we could have that discussion next month as to that, but in my experience on this Advisory Committee final reports are voted up or down without serious discussion of editing line by line and so there's that. Maybe a suggestion that the final report committee send around a draft of whatever comment accompanies this recommendation to the three subcommittees to have another look at in a forum that's not the final public meeting.
These are all suggestions on my part. They're not motions and they're not recommendations. I respect the work. I especially respect the work David that you've done previously and and now here but I think it's, it's something that has not been fully considered by this Advisory Committee in a way where every person on the Advisory Committee is reading the commentary and commenting publicly on it in a forum like this in this public meeting. Thanks.
Alina M. Semo: Okay. Thank you, Jason. Anyone else? Okay, I don't see any hands up. What does the subcommittee want to do with this recommendation? Would you like to move forward to a vote? Ryan, sorry, go ahead. Thank you.
Ryan Mulvey: Ryan AFP Foundation. Procedurally, this is gonna, I'm re-raising an issue that a couple months ago I think in March we had discussed but just or in April just so I fully understand we are voting on what is on the screen. So the subcommittee in its, in the coming week when we approve our report, we are, it is within our purview to adjust the explanatory language. Correct.
Alina M. Semo: You're suggesting based on Jason's feedback you got today.
Ryan Mulvey: Well, I'm a little confused because with respect, Jason, I seem to, I know your position was that the bolded stuff is what's on our screen is the recommendation but previously, you had mentioned the explanatory language contained in what was posted for the Committee's consideration when a vote is taken on the recommendation was influential or somehow relevant to a proper understanding of the recommendation, which is why we had previously adjusted or agreed conditionally to adjust language, as I recall...before moving to a vote. If we choose to vote affirmatively on this, if it passes, like are you asking that it be passed with a stipulation that there be a re-work of the explanatory language? I guess I'm trying to understand exactly, procedurally how we would be proceeding here.
Jason R. Baron: Ryan, it's Jason. Well, my comments are just my comments. They're not formal in any way and I'm not asking the Committee to do anything other than hear what I'm having to say and of course it's part of the transcript. I was confused about the subcommittee not having a final report versus a final report, the final report of the entire committee. What I'm suggesting is that in the final report of the entire committee those drafters take a look at the commentary that comes out of the subcommittee and perhaps conform it to not having such open ended language coming out of the final report as part of the commentary. So, Ryan, you know, our tradition here and to vote on bold print recommendations and subcommittees put forth commentaries and then those commentaries are usually abridged in the final report. Otherwise the final report would sometimes reflect a hundred pages.
So certainly when I have taken a lead responsibility to be editor of two past final reports, I never thought I was bound by the wording of a subcommittee's commentary and my fellow colleagues on the final reporting, you know, they, we do our best to reflect what it is that the subcommittees have said. But we're not bound by the wording of a commentary, we're only bound by the vote of the bold print recommendation.
Alina M. Semo: And, this is Alina. I just want to add to Jason's comment. Certainly, Ryan, it's within the purview of the subcommittee to either modify its commentary or leave it the way it is when you pull together your final subcommittee report; that's certainly your prerogative.
Jason R. Baron: And because I haven't been clear enough because this is just sort of you know ad hoc extemporaneous remarks, I'm happy Ryan and everybody too have a further conversation. Because it's certainly fair to ask me what I'm objecting to in terms of the prefatory remarks to the seven points. And I think there's some language that, you know, if I had the chance to weigh I would, you know, do some redlining or whatever. But I'm not fundamentally objecting to this, I'm just posing the question to the full Committee and wishing to hear everybody on the Committee talking in a public meeting about what they think about the proposal. That may be a wish that will go unfulfilled.
Alina M. Semo: Well, I'm not seeing any hands, Jason. Oh good, Margaret, go ahead please.
Ryan Mulvey: Margaret has her hand up.
Alina M. Semo: oh good, Margaret go ahead please.
Margaret Kwoka: Margaret Kwoka, Ohio State. I am not a new voice Jason so I am not in fact fulfilling your wish to have more voices added to this conversation. But I will say I think that we, first off, I want to say I personally welcome your actual redline types of thoughts about the commentary. I think it would be helpful and I think, I suspect all of us who worked on this would be very open to discussing how we can make the commentary clearer about the intent because I think to the extent that we're having a discussion that has clarified anything, obviously we would prefer those clarifications to be memorialized accurately and so I'm happy to have that conversation.
The second thing I was gonna say is I think that there's been a real tension for us in this work between two sort of slightly orthogonal views, one, right, like there has, the more specific we are about exactly what should happen, the more prescriptive it sounds. And I think there's been a desire for us to not prejudge the outcome of such a study. And so if it's a study of these things specifically in this particular model that suggests that we think that should be the model and these should be the things. And, then some folks who think that maybe those aren't the things and this isn't the model say, well, we shouldn't prejudge this and say that those are the things. And so I just wanna, like, name that tension because I think we have been trying to accommodate like we had a much more prescriptive version and we were trying to accommodate. Views that maybe there were other options out there that were preferred. And that should be considered in this. And that's something that I think we're going to have to grapple with in this explanatory text regardless, right? And so I just want to, I just wanted to name that because the more specific we get about what is being studied, the more it sounds like we think this is the thing that should happen, study it. And so that comes with sort of like an implicit judgment call in there.
Alina M. Semo: Thanks, Margaret. I see Rick's hand is up. Rick, go ahead, please.
Rick Peltz-Steele: Well, I'm fearful I don't have anything really constructive to say, but Jason laid down a challenge that we must participate and I'm not one to shy away from a challenge. So I'll say that. I just want to say, you know, as an observer, really, I feel to this subject being I still feel new, even though I'm about to go off our Committee that there has always struck me there's something of a gap between what OGIS and the Advisory Committee are able to do and what needs to be done. And that gap is sort of in having the resources to do the kind of big picture, meta inquiry into what is possible and what can change. And that's what I like about the recommendation because it seems to just sort of be going at that gap and saying look this sooner or later, this needs to be filled. Let's think big and find out what the possibilities are with the appropriate resources.
I do of course share Jason's reservation and I to my mind Dave put it best in terms of just, you know, anytime you're handing instructions over to a legislative entity you don't know what's what's gonna happen. So I'm afraid that's not perhaps constructive only to say that I had I do have support, I don't want Jason to think I was asleep, that's all I do support for the for for the recommendation and and caution about the implementation of it and if that can be corralled with text in the commentary then great. Thanks.
Alina M. Semo: Alright, thanks Rick. Anyone else? I don't see any other hands up and no one else is accepting Jason’s gauntlet that has been thrown down. Okay. Ryan, Whitney, are you prepared to move forward with this recommendation, should we take a vote?
Whitney Frazier-Jenkins: Whitney PBGC, I think that we should move forward with voting. So I would make a motion to adopt SR-6.
Alina M. Semo: Okay. Okay, so moved. Do I have a second?
Ryan Mulvey: Second.
Margaret Kwoka: I second it.
Alina M. Semo: Thank you, Ryan, and thank you, Margaret, for the second. All those in favor, please say aye.
Group: Aye.
Alina M. Semo: All those opposed, please say nay. Any abstentions?
Jason R. Baron: I’ll abstain.
Nieva Brock: Nieva abstains.
Alina M. Semo: Okay. Alright, hold on. I've heard lots of different people. Right.
Dan Levenson: Alright, so Jason is abstaining. Hi, it's Dan. I’ll do a roll call of the extension. Jason abstains, Nieva abstains. Whitney, did I hear an abstention?
Whitney Frazier-Jenkins: No.
Dan Levenson: Okay, Sean, did I hear an abstention?
Sean O'Neill: Yes.
Dan Levenson: Okay, Liz?
Scott Hodes: Scott.
Dan Levenson: Scott abstains, okay? Alina, did you abstain?
Alina M. Semo: No. I voted aye.
Dan Levenson: You did not. Okay, were there any so I have 4 abstentions?
Marianne Manheim: Marianne abstained.
Dan Levenson: Thank you, Marianne. Alright, I have 5 abstentions. Jason…
Liz Hempowicz: I did not abstain, Dan. This is Liz. I heard you say my name, I wasn’t sure…
Dan Levenson: Oh, I was just going down and I thought
Liz Hempowicz: Okay, okay.
Dan Levenson: I should stop skipping people and start affirmatively verifying. So I have five abstentions. That is Jason, Nieva, Sean, Scott, and Marianne. And everyone else was an aye. Is that correct? Okay.
Alina M. Semo: Everyone seems to be shaking their heads so that’s a good sign.
Dan Levenson: Alright, so motion passes 11 to 0 with five abstentions.
Alina M. Semo: Okay, thank you. Great work, everyone. Any other comments from Ryan and Whitney for your subcommittee?
Ryan Mulvey: Wait could you clarify that vote count? Wasn't the last vote, 11 to 0 to 4. How is it 11 to 0 to 5 now? Or am I misremembering?
Dan Levenson: I think the last one was 11 to 0 to 5 as well.
Ryan Mulvey: Oh, it was okay. Apologies.
Alina M. Semo: Yeah.
Kimberlee Ried: Yes, Kimberlee Ried, the alternate DFO I am tracking the votes on our spreadsheet. The previous vote SR-5 Ryan moved Margaret seconded.
Ryan Mulvey: Just wanted to double check. Okay.
Kimberlee Ried: It passed 11 to 5 with 5 abstentions. SR-6, Whitney moved, Ryan seconded. It passed 11 to 0 with 5 abstaining.
Ryan Mulvey: Thank you.
Dan Levenson: Sure thing.
Alina M. Semo: Ryan, anything else?
Ryan Mulvey: Not unless, I don't have anything, no.
Alina M. Semo: Okay, just wanted to double check Whitney. Are we good?
Whitney Frazier-Jenkins: I don't have anything else. Thank you.
Alina M. Semo: Okay, thanks very much. Well, great work everyone. I think we should all pat ourselves on the back. Do a little flat hand clap. I think everyone has worked very, very hard. I very much appreciate all the commentary that has gone on today. I think it's all been very valuable. I've taken a lot of notes. I think the working group for the final report has a lot to work on. We thought it was going to be easy, but perhaps not so much. So, we will endeavor to do our best and I know I've taken some notes. So hopefully with everyone's notes we will capture everything that was discussed today. So, if anyone doesn't have anything else they want to bring up on the Committee, I'd like to turn to our last part of our meeting, which is the public comment section. Do I have permission to do that? Seems like, yes, I'm getting nods. Okay. Thank you for putting up that next slide.
We have now reached the public comments part of our Committee meeting. We look forward to hearing from any non Committee participants who have ideas or comments to share particularly about all the topics that we discussed today, which were a lot. 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 recording. And are available on the NARA YouTube channel. And as a reminder, public comments are limited to three minutes per person.
So at this point, I am going to turn things over to Dan to check in to see if we've had anything that's come up in chat even though we're not supposed to put anything substantive in chat. Some folks do. So I just wanted to double check with you on that.
Dan Levenson: I do not see anything substantive in the chat.
Alina M. Semo: Okay. Dan, anything else?
Dan Levenson: Okay. So I just wanted to note that written public comments are welcome at any time. You can visit archives dot gov forward slash ogis forward slash public dash comments to submit your written public comments through our public comment portal. And if anyone wishes to make an oral public comment, please raise your hand so that we can unmute you. If you were dialed in through telephone audio you can press star 9 on your telephone or raise your hand to join the comment queue. So I'll give everyone a moment for that. Okay, I do not see anyone in the queue. So Alina, did you have anything else to add?
Alina M. Semo: Well, let's give folks just one more minute in case anyone else wants to chime in.
Dan Levenson: Okay.
Alina M. Semo: I know we don't have that many attendees with us today on the Zoom for Government call so perhaps many of our viewers are watching us on the NARA YouTube channel so they are not able to comment. But anyway, I just wanted to give just one more second. But I also don't want to belabor this meeting because we're getting close to 1:00 pm. I would love to give the gift of time back to all of you, to recognize all the hard work that you Committee members have put in.
So okay, so let's go ahead and start wrapping up before we adjourn. I genuinely want to offer a very heartfelt thank you to all of our Committee members. Unbelievably, we have now completed 11 public meetings. But we all know the real work has happened between those meetings. And there has been an incredible amount of work happening across the subcommittees and working groups and I'm very grateful for all the collaboration and thoughtful discussion that has been taking place. Really what has impressed me the most is not only the quality of the discussions during our public meetings, but also the tremendous amount of work taking place between meetings within the subcommittees, within the working groups and through countless conversations and collaborations and the level of engagement this term has been remarkable.
I continue to be impressed by everyone's energy, creativity and thoughtfulness that each of you brings to these discussions and we have all tackled some very difficult issues. Challenged one another respectfully. And we have remained focused on finding meaningful ways to improve the FOIA process. So again, a great debt of gratitude to everyone. I especially want to extend a special thank you to our six subcommittee co-chairs. Your leadership has been essential to keeping efforts moving forward. And you have created space for productive and engaging discussion. So thank you to Ryan and Whitney and Nick and Nieva and Jason and Marianne. I think I got all that right off the top of my head. On behalf of OGIS, again, thank you for everyone's commitment. Everyone's expertise and everyone's willingness to volunteer. We know you're all volunteers. You're volunteering your time. And you have many other things to be doing and I think we're all very grateful for the volunteer time you've given in service of government transparency. And we are very fortunate to have such an engaged and dedicated Committee term. So I thank you again. Any questions or comments before we adjourn? I'm just looking around. I don't see any hands.
Okay, I just want to remind everyone our final full Committee meeting is scheduled for Thursday July 16, 2026 at 10:00 a.m. The working group who's drafting the final report is endeavoring to wrap everything up and have it posted. I'm looking at Shelley. I'm looking at Frank. I'm looking at Sarah by July 9. That is our target. That would give the Committee members a full week before the meeting to actually look at the report, digest, make any comments, propose any edits, etc. So just keep that date in mind. We're actually working backwards from that date. I know Shelley, to try to get internal deadlines or a little bit sooner than that, but I just wanted to put that deadline out there for Committee members to know what they're going to be anticipating.
So with that, I don't see anyone else jumping up and down or raising their hands. So I want to thank everyone for joining us today. I hope everyone and their families remain safe, healthy and resilient. And not hearing any other questions or comments, we stand adjourned. Thank you. Bye everyone. Have a great day.