Transcript

FOIA Advisory Committee Meeting  

Thursday, May 7, 2026

10 a.m. (ET)

Kirsten Mitchell: Good morning. Let us allow a few seconds here for our attendees to join the meeting, and then we will get started. Good morning, and welcome to the May 7, 2026, federal Freedom of Information Act Advisory Committee meeting.  I'm Kirsten Mitchell, the Committee's Designated Federal Officer. Please note that this meeting is a virtual meeting that is being recorded and streamed on the National Archives' YouTube channel; however, you are watching, welcome. This meeting is public in accordance with the Federal Advisory Committee Act (FACA), which requires open access to Committee meetings and operations. I am confirming that we have a quorum with 16 members present in accordance with the Committee's bylaws. Rick Peltz-Steele is unable to join us and Sarah Weicksel has to leave at 11:00 a.m., but we are pleased to have her for the first hour.

Because this is a public meeting, we ask members to keep their cameras on.  However, Nieva Brock and Liz Hempowicz are unable to have their cameras on today. Meeting materials, including the agenda, slides, and draft recommendations are available on the FOIA Advisory Committee page of the website, archives.gov. Thank you to the AV team at the National Archives for all their behind the scenes support and thank you, also, to Dan Levenson, an alternate Designated Federal Officer who is joining us today. And I now turn the meeting over to Alina Semo, Director of the Office of Government Information Services, and this Committee's chairperson. Alina, over to you.

Alina M. Semo: Thank you, Kirsten.  Good morning, and welcome, everyone. I am Alina Semo, both Director of OGIS and this Committee's chairperson. It is my pleasure also to welcome you all to the ninth meeting of the sixth term of the FOIA Advisory Committee.  We last met on April 2nd, 2026, and as a reminder to everyone, three subcommittees that been hard at work, Statutory Reform, Volume and Frequency, and Implementation.  And we will hear report outs from each of the three subcommittees today, and I expect a lively conversation about some of the recommendations that are being moved forward.

A few housekeeping items before we move forward. Thank you for changing the slide.  In accordance with the Federal Advisory Committee Act, we have posted the minutes for April 2nd meeting and the transcript from the March 5th meeting. The transcript from the April 2nd meeting will be posted as soon as it is ready.  On our website, you will find Committee members' biographies, and please also visit and follow our blog, the FOIA Ombuds. Our latest post has details about the nominations process for the 2026-2028 FOIA Advisory Committee term.

During today's meeting, I want to encourage Committee members to use the raised hand option icon at the bottom of your screen when you wish to speak or ask a question.  The raised hand option is even better than using a host and panelist option from the drop down menu and the chat function when you want to speak or ask a question, but you may also use that question and chat me or Kirsten directly. We'll be monitoring that.

An important note to both Committee members and all Zoom participants. In order to comply with the spirit and intent of the Federal Advisory Committee Act, please use the Zoom chat function for housekeeping and procedural 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. Mute your microphone by using the microphone icon and turn off your camera by using the camera icon. Please send a quick chat to me and Kirsten to let us know if you'll be gone for more than a few minutes and join us again as soon as you are able. An important reminder to all Committee members.  Please identify yourself by name and affiliation each time you speak. It helps make the transcript more clear, as well as our minutes.

Members of the public who wish to submit written public comments to the Committee may do so using the public comments form available at www.archives.gov/OGIS/public comments. We review all public comments, and if they comply with our public comments posting policy, we post them as soon as we are able. We will have a public comment period at the end of our meeting today. And as we noted in our Federal Register Notice announcing this meeting, public comments will be limited to three minutes per individual.

We have allocated the bulk of our meeting time today to hear from each of our three subcommittees to share their work since the April meeting. Our hope is that the presentations will spark conversation, questions, and discussion among all Committee members, so I encourage all members not to be shy. And I also just want to welcome Richard Peltz-Steele.  Thank you so much for joining us, Rick.

We have come to the point in the Committee term where we are having monthly meetings, as everyone knows. After this meeting, we have just two more meetings scheduled, which is a little sad, June 11 and July 16. And we are asking that subcommittee reports be largely written by the June 11 meeting. So subcommittee co-chairs, just a heads up. Hopefully that's doable for all of you. Kirsten, back over to you.

Kirsten Mitchell: Great. Thank you, Alina. And I wanted to note that earlier I announced a quorum with 16 members, but since then, as Alina noted, Rick Peltz-Steele has joined, so we now have a full attendance with 17 members. So welcome, Rick.

I just wanted to give a few really quick updates before we get into Committee business.  The first is that a question arose recently regarding member representation on the FOIA Advisory Committee, and specifically the questioner wished to know why government members on the Committee represent their agencies, but nongovernment members represent a specific constituency rather than their employers. That is a great question, and if one person has that question, chances are others do as well.

Under the Committee's charter and in accordance with the Federal Advisory Committee Act or FACA, the FOIA Advisory Committee will be composed of representative members and regular government employees. So representative members represent a specific stakeholder group. Margaret Kwoka, for example, represents the interests of academia, while Frank LoMonte represents the news media FOIA fee category and so on. Regular government members are full time permanent employees of the government department or agency and they will present the agency's interest, not those of a particular identifiable group. So that, I hope, explains why when a government member is voting, he or she is representing the interests of their agency while a non-government member is voting, he or she is representing the interests of a particular constituency.  

I thought this was a good time to bring this up, because we are seeking nominations for the 2026-2028 term of the Committee. The charter was renewed in late April and we seek both self nominations and nominations of others through June 1st. Please read our latest blog post, OGIS’s latest blog post, the FOIA Ombuds, for details.

And finally, just a quick reminder, since we do expect some votes today that any Committee member, including the Chairperson, may move that the Committee vote. The bylaws require no second, but it is habit since we're parliamentary creatures.  And if a voice vote is not unanimous or it's unclear who is voting which way, I may do a roll call vote. So with that, I turn the mic back over to Alina.

Alina M. Semo: Ok, thanks, Kirsten. That was a lot of great information. I want to pause for a second and make sure no Committee members have any questions about anything Kirsten just went through. I'm looking. I'm looking. I'm looking. I don't see any hands up.  I see a hand up.  Ryan, go ahead, please.

Ryan Mulvey: Ryan Mulvey, AFP Foundation. Kirsten, I understand that. Could you elaborate in the bylaws what it means, then, because I mentioned for government members, but not for non-government members? Specifically, for the government members, they represent the interests of the government, but under the bylaws, you're supposed to exercise individual best judgment. Could you explain what it means to exercise individual best judgment on behalf of the government?

Kirsten Mitchell: That is a really excellent question, Ryan, and I don't know that I'd want to answer that without consulting with our FACA attorney. But I am certainly happy to do that and get back to you.

Ryan Mulvey: Thank you. I think that was more part of the conversation that might have prompted your clarification here, what the concern was.

Kirsten Mitchell: Right. In full disclosure, I missed that particular discussion since I was away, but I did hear the second discussion, which sort of prompted this question. But just to make sure I understand what you're asking, your understanding, what does that mean for a government member to exercise best individual judgment as a representative of their agency?

Ryan Mulvey: Yeah. I think that's a fair summation.

Kirsten Mitchell:  Okay. And just so you know, at the beginning of each term or upon appointment of a federal member, our ethics attorney, who is also our FACA attorney at the National Archives, does a briefing with the government member. So I am certain if that answer exists, and I'm happy to get the answer and pass it along.

Alina M. Semo: Thanks, Ryan. We'll work on that at the next Committee meeting. Any other questions about this topic before we move into the heart of our meeting? I’m looking, I don’t see any hands.

Jason R. Baron: Margaret has a hand up.

Alina M. Semo: Margaret? It was a very faint hand. Margaret, go ahead please.

Margaret Kwoka: Margaret Kwoka. I shared Ryan's question. I want to re-up that, also, partly because I think it would just be helpful for all of us to understand, you know, that it doesn't necessarily mean an agency has voted for something, that an individual representing an agency's interests has voted for something. But I would say related to that, you know, one of the things that I've really benefited from is our government members not just current positional experience, but the experience they bring over the arc of their careers, which often involves sort of multiple FOIA related positions, including at different agencies. So I know some of our government members have served in FOIA related roles at multiple agencies and bring that wealth of experience and knowledge to the table, and I just want to be sure that it's clear that we're not trying to sort of slice and dice their experience and say, oh, well, you're only wearing this hat right now, but frankly, what all of us bring to the table is a long history of experience, and I think that's true for our government members, too, and using you know, I would want to share Ryan's question. It feels like that piece of, you know, your individual best judgment comes from that career long experience, wherever that service may have happened. So I just wanted to voice that view, which may or may not be a question. Sounds less like a question now that I've said it out loud, but thanks for indulging me.

Alina M. Semo: Thanks, Margaret. I took some notes and Kirsten and I will report back, so we really very much appreciate your feedback. Okay. Any other hands on this topic?  Just want to make sure. I don't see any. Okay. All right everyone ready to buckle in for an interesting ride? Here we go. First 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. Next slide, please.

Jason R. Baron: Thanks very much, Alina. Marianne and I, I'll just say one thing here and then defer to you, and then we'll go on to the substance of the proposed recommendations. I just want to thank all of our subcommittee members for their really hard work. We have been looking from various perspectives the ways in which prior recommendations of this Committee in prior terms have been effectuated, implemented, otherwise acknowledged in various ways. And everyone on this Committee has really stepped up to provide input. We will have a subcommittee report, Alina, by the next meeting and it'll reflect our work as a whole. Marianne, do you want to say anything by way of an introduction before we go on to the recommendations?

Marianne Manheim: No. I just want to echo what you said. I mean, just from the way the subcommittee has done all this work and worked with so many great FOIA people to come up with data that we could really use to move this along to get to these recommendations is quite impressive. Everyone has really worked amazingly together.  To kind of go back through the last year and a half, to pull it all together as much as we can, I really appreciate it.

Jason R. Baron: With that, I'm going to turn this over to Deborah and Shelley and anyone else who wishes to talk and we'll have a discussion here of our proposals.

Deborah Moore: Okay, thank you, Jason and Marianne. Good morning. I'm Deborah Moore, Department of Education. This morning, the members of the Barriers Analysis Working Group are presenting three draft recommendations that stem from our focus group findings and are supplemented by the additional efforts of the Implementation Subcommittee. We're presenting them today for initial discussion so that we can gather feedback, but our aim is to present a refined recommendation and written and explanatory justification at the June meeting that will benefit from what we hear today.

Alina M. Semo: Sorry to interrupt you. Should we go to the next slide?

Deborah Moore: Sure. Yeah.

Alina M. Semo: Thank you.

Deborah Moore: That's an excellent segue, because we are going to walk you through today, Shelley and I are each going to walk you through one of the three recommendations. After we've gone through all three, the first one I'll do, then we'll take your thoughts, your questions, your feedback. So I'm presenting this one, which is our recommendation for the establishment of a FOIA professional collaboration network.

So although in the focus groups, no specific question was aimed at determining a need for FOIA professionals to connect, we received a clear demand signal from participants.  The concept emerged organically in every focus group. Some of the evidence for this desire for greater connection, camaraderie, and best practice, sharing and included the following: focus group participants spontaneously connected during the groups; they shared contact information and advice; and they made plans for future collaboration during focus group sessions. Some focus group participants asked us if the focus groups could be continued after the single session that they were participating in. Despite the timing of the recruitment, they wanted during a difficult time in the federal government where workers were contending with staffing cuts, shifting responsibilities, and a government shutdown. Despite all that, the call to participate in focus groups received a very strong response with participation rates exceeding our expectations. So that fact itself speaks volumes about the desire of FOIA professionals to connect.

In terms of already existing options for FOIA professionals to connect, there are some groups and opportunities such as the Chief FOIA Officer Council's Technology Committee that serve to connect many early and mid-career FOIA professionals interested in that area, but those focus groups are - I'm sorry - those groups focus on particular areas of particular topics for discussion. We still believe there remains a need for a broader inclusive group or system that reaches across all professional levels and interest areas with the goal of increasing connection and collaboration.

Given its cross agency collaboration focus, the Chief FOIA Officer Council Committee on Cross Agency Collaboration innovation, known as COCACI, is well situated to serve as a central organizing body for the effort. However, to reduce burden on COCACI members and because trust and mutual support often flourish more easily in smaller groups, we're recommending that COCACI's role be to build a network that enables smaller groups of FOIA professionals to form and connect. So as opposed to overseeing or attending meetings, COCACI's role would be to coordinate membership in these small, self governing groups. 

In initial discussion with COCACI co-chairs, I learned that COCACI is not only receptive to this idea; they'd already been considering how better to connect FOIA professionals and were exploring different options. They were eager to hear from us what best practices we could share from our experience as connecting FOIA professionals in focus groups.

However, regardless of whatever organization implements this process for connecting FOIA professionals, we believe the guiding principles behind its design should be simplicity, flexibility, and transferability to maximize maintenance and continuation.

Improving cross agency collaboration, connection, and communication ultimately will lead to increased FOIA Advisory Committee recommendation adaptation as FOIA professionals facing similar barriers to implementation will share information on successful strategies for overcoming. So that is the first recommendation, and thanks for listening. I'm going to pass it over to Sarah for the next one.

Sarah Weicksel: Thank you, Deborah. Our second recommendation that we have here is, of course, also from our focus groups, which showed that increasing agency awareness of FOIA Advisory Committee recommendations is arguably the single most important thing that we can do to increase implementation of them. Increasing agency awareness recommendations has largely fallen to the Office of Government Information Services, which does not have a means or comprehensive reach to ensure that all federal agencies are fully aware of Advisory Committee recommendations. In response to the Advisory Committee's Recommendation 2024-14, the Department of Justice's OIP [Office of Information Policy] included in the FY2024 Chief FOIA Officer Report, a question asking agencies to indicate the status of their implementation of FOIA Advisory Committee recommendations. Now, although the question was not included in the FY2025 report, its increase in FY2024 yielded useful information and demonstrated that agencies were not overburdened by the requirement to provide this information and actively made agency FOIA professionals more aware of Committee recommendations.

During our focus groups, most participants stated that they were not aware of FOIA Advisory Committee recommendations and they did not make changes within their agencies because of the Committee. The few participants who were aware of the recommendations said they knew about them because of the 2024 Chief FOIA Officers Report or because they had previously been members of the FOIA Advisory Committee themselves.

And of focus group participants who were aware of Committee recommendations, many noted this pointing to existing Committee recommendations better equip them to advocate for and provide substantiation for needed changes and resource requests to agency decision makers. So this also provides FOIA professionals an opportunity to collaborate and connect with agencies who have successfully implemented recommendations.

And then finally, leveraging an existing public reporting mechanism such as the annual Chief FOIA Officer Report represents a low cost, low effort way to reach all agencies and increase their awareness and implementation of FOIA Advisory Committee recommendations. And so that is kind of the background to this particular recommendation. And I will now turn it over to Shelley Kimball.

Shelley Kimball: Thanks so much, Sarah, I'm Shelley Kimball, Johns Hopkins University.  Next slide. Oh, we are on the current one. Sorry. So this third recommendation is also an organic finding from our focus group research. When we began the focus groups, we were trying to evaluate how familiar participants were with our recommendations. As Sarah mentioned, we found that they really weren't that familiar. As part of preparing them for the focus groups, we had provided them with a streamlined chart of recommendations just to kind of get the conversation rolling, so this recommendation here is also another avenue for improving awareness of the recommendations.

So a little bit of background. We do have a dashboard, the FOIA Advisory Committee Recommendations Dashboard, that tracks our recommendations, but it's really aimed at whether or not these have been implemented and completed, but we found, also, that regardless of whether or not the recommendations are open or closed, completed, not completed, they can be valuable to FOIA professionals.

So the focus group participants in these conversations said they had difficulty searching for actionable recommendations on this dashboard. And so when we gave them that smaller chart that really focused on what agencies can do, which recommendations were aimed specifically at agency implementation, they said that it was really more effective for them. It made it seem more applicable. It was more realistic, more manageable for them. And so that's really where this idea comes from.

We also note that not every agency recommendation is relevant to a particular agency and conversely, other recommendations that may be aimed at a particular agency could be relevant to someone else. So being able to really search and find in a more functional manner, we think would make implementation easier for FOIA professionals. And so having some kind of way to present these recommendations that focus on applicability for FOIA professionals would increase visibility, usability, and agency adoption.

So internally as a subgroup, we've been working on examples and options for categorizing and presenting these recommendations to make them more applicable, and so our plan would be to provide these examples as appendices to our final report in an effort to ease the potential burden of building this out.

Jason R. Baron: Thanks, everybody. It's Jason R. Baron. I'd like to suggest that we go back to the first of the three and just so we have just sort of order here, and if there are questions to any of us, please raise them for this one, for the first recommendation, and then we'll go through it. Is that a good plan Deborah? Sarah? Shelley?

Deborah Moore: That sounds fine.

Alina M. Semo: Jason, this is Alina Semo. Just want to intercede and just ensure that these are proposed recommendations. We're not voting on them today. Correct? We're just soliciting Committee feedback and questions and discussion. Correct?

Jason R. Baron: That's correct.

Alina M. Semo: Okay, thanks.

Nieva Brock: Well, let me start. This is Nieva from [the] Defense Intelligence Agency.  I just want to say that regarding recommendation one, I have also heard similar desires through the folks who work in DOD (Department of Defense), DOW (Department of War), as well as the IC (Intelligence Community), and I think this is a really great way to memorialize the desire of FOIA professionals to collaborate, support, and really create a community of interest.

Alina M. Semo: Did everyone have coffee this morning? Just making sure. Okay.  Margaret, go ahead, please.

Margaret Kwoka: Margaret Kwoka, Ohio State. I just want to say a real thank you and one up to all of you. The ways in which the focus group process that you all use to generate ideas and understand the hurdles to implementation I think was really generative and impressive and I can see how much work went into it. And these recommendations seem very thought out and your comments about them I think only strengthen them. So I'm sure that the examples and explanatory text in the report is going to, you know, reflect all of that. My only question is why we can't vote today? I don't know. Maybe that's directed to Jason. It seems like you have reached the point at which you have these, I mean, if there are concerns about them and we have discussions and we need for the reform in the back, sure, but with three meetings left. I would say these feel very developed and I just wanted to hear from the Committee about whether they feel they're not ready for a vote or whether they're simply concerned that there might be Committee feedback that they require additional changes, in which case, you know, obviously we could send them back, but I would favor, you know, reaching finality if we're able to on whatever we're able to today, because I know there's plenty of work left to do in the remaining two meetings.

Jason R. Baron: I'm going to take a co-chair's privilege, Deborah, in responding.  Margaret, I really appreciate and I'm sure everyone in the Committee appreciates your positive take on the effort, and I 100% agree that the Barriers Working Group has done tremendous work. The fact is that we were poised to provide commentary on these recommendations, but we ended up deciding not to place commentary for the recommendations for today because of some issues to still work out. And in my experience on this Committee, I think it's appropriate for the Committee as a whole to see the commentary that goes with the recommendations so that there's a comfort level that there's really nothing in the combined product that would raise any questions. As you all will find out, I have some questions about commentary with the recommendations for other groups and so I just think it's procedurally correct to not force a vote, simply on the recommendational language itself without context. Now Deborah?

Margaret Kwoka: Thanks for that, Jason. I appreciate that. That’s helpful.

Deborah Moore: This is Deborah from [the] Department of Education. Let me apologize.  I don't know why my screen is suddenly black, but I'm still here. Yeah, Jason is right.  Originally, the explanatory language we were thinking about including, but it just we weren't ready with that. It wasn't as tight as we wanted it to be. I'm fine with us voting without it, but I also understand the need to have it all together. The other benefit, I think, there is to not voting today, is we can hear the commentary and the questions and everything if we're going to bring this forward, and that might end up tweaking the language a little bit. I think it's a good thing to benefit from today's meeting and then we'll be ready in June.

Jason R. Baron: Other comments on number one? Okay. Everyone is free to comment as we go along. Why don't we go to the next one?

Alina M. Semo: Does silence mean everyone loves it? Ok, I’m seeing some nods.

Jason R. Baron: Is Sean here today?

Alina M. Semo: Sean is here.

Jason R. Baron: Sean, my understanding was that you were certainly not objecting to going forward with having us vote on this recommendation at a public meeting. I don't mean to put you on the spot. I'm very much in favor, the reporting out of what we're doing, and you know, in this general, I'm in favor of OIP highlighting the work of this Committee in various other ways, because I think we do a lot of good work here with the 70 plus recommendations that as of this term will be in existence. Anyway, if you have anything to say, because this is directed at OIP. I certainly appreciate it.

Sean Glendening: Sean with OIP. My understanding is this question was on the report, then taken off. That occurred to me prior to being in this role. I'm not sure what the impetus was behind that. It's something that we're looking into as to why that was taken off. At this point, OIP has no position on this, because I just don't know what the impetus behind taking it off was.

Jason R. Baron: Okay. I think it's very helpful to have it in. In the past, OIP did adopt some specific recommendations that we had to put into the report. So they were already embedded a little bit. This overarching question of how agencies have implemented our recommendations was in the report for one year and then taken out. Marianne, go ahead.

Marianne Manheim: Hi, Marianne Manheim, NIH and co-chair on this committee. One thing I will just add to this, this doesn't necessarily mean bringing back the question. It means possibly a different format to that, does it not? Because it could be more thorough to go through all of the recommendations. Is it something more specific like just bringing back the question? Because I think we might need clarity on that as well.

Jason R. Baron: Deborah?

Deborah Moore: My thinking is the recommendation itself should be open enough so that there's room for OIP, if that's where this ends up, to have the flexibility to put it in as the question it was before or perhaps in a different format. At one point the subcommittee had discussed the possibility of having some sort of response sheet so that agencies could indicate clearly which ones we had implemented or something like that. In my mind, that's for OIP to determine how they want to proceed. My position is that I don't think the recommendation should be as prescriptive as spelling out what it needs to look like.

Marianne Manheim: Hi, Marianne again. Going back to that, Deborah, thinking about some of the previous, the report when we did do it, some of them were one or two and some agencies were a whole list of them. So I mean, again, like you're going to leave it to OIP. Hi, Sean. It might be something to give more direction as well on our feedback in terms of how it worked out in implementation to have a better result maybe.

Jason R. Baron: Well, we'll put this all in our commentary as open. My position is that we should not constrain Sean, your office, in a particular way of proceeding. We will be very happy if there's an acknowledgment of our Committee and the recommendations in whatever form you wish to go forward with, and it's your discretion as to how to actually put this into effect. And we'll have commentary to that effect.

Sean Glendening: Sure.  I think it would be helpful to see that commentary before voting for it.

Jason R. Baron: Okay. Anyone else? If not, we'll go on to the third recommendation. Nieva?

Nieva Brock: Yes, hi. I just wanted to state that I understand and agree with the premise, but I think just as written stating something is easy-to-access manner, it just seems so broad and not fully defined, and I realize that is often done in the commentary and not in the actual recommendation, so that makes it hard for me to really envision what it is that you'd like to see actually happen. Thanks.

Jason R. Baron: Shelley, maybe we can talk about what we envision, because I think that's an excellent point made.

Shelley Kimball: Sure. So this is actually something that, among our [sub]committee, we've worked pretty hard on all the ways that we could sort of re-organize it. And primarily, we have been building charts. We've envisioned perhaps a page on the website, perhaps blog posts that parse these out a little more. There are a lot of possibilities, but foundationally we plan to provide first the example we used for our focus groups, which is a pretty simple list categorized by function, and then also of another system that we're developing. It's really driven by categorizing the function of these recommendations, specifically the ones that are aimed at agencies generally.

Nieva Brock: Well, thank you.

Jason R. Baron: Well, Deborah, Shelley, Sarah? Thank you so much for the presentations.  I don't see any other hands going up, and so we will continue to work on the commentaries and present this as part of our subcommittee report. And so we'll go back to Alina.

Alina M. Semo: Thanks everyone for all of your hard work. Just to clarify, we're going to be seeing some further commentary on all three recommendations between now and our next meeting, and we will plan to vote on these three recommendations on June 11.  Correct?

Jason R. Baron: Correct.

Alina M. Semo: Ok, just want to make sure we're all on the same page. Got it. Any other questions for the Implementation Subcommittee? I'm not seeing any hands. Even less dark ones, lighter ones. Okay. Are you all ready to move on? Next slide, please. So we're going to move on to the volume and frequency subcommittee. We're going to hear the report out from Nick Wittenberg and Nieva Brock, our two co chairs. Nick and Nieva, you have the floor.

Nick Wittenberg: Thank you so much, Alina. Thank you to our co chair, Nieva, who does a wonderful job. And some meetings I cannot attend. I want to turn over to Shelley, who is an all star and has been working on a draft with us and other members have been viewing it. Shelley, if you have a few minutes, can you please share the draft you've been working on?

Shelley Kimball: I'd be glad to. Thanks, Nick. Next slide, please. I want to start today with sharing the results of the survey that we fielded. As you might remember, we fielded a survey during the last week of January through the last week of March. The survey was a mix of qualitative and quantitative questions and built into two parts. The first part explored volume and frequency of group requests, especially those that may be vexatious or unduly burdensome and the second part evaluated perceptions of AI generated requests.

The qualitative or open ended questions were coded first in an open coding process, meaning I read everything everyone sent in, tagged, and described all of the elements of those responses, and then I grouped those up into commonalities, so you'll see that today. And just to know, if you see a chart for percentages, those were the closed ended questions. And if you see a list of concepts and ideas, those were the open ended questions. But I'm going to repeat some of the questions as we go so you can kind of see what participants were responding to.

In this process, we really wanted to lean into letting participants tell us their perceptions and experiences with no real preconceived ideas, we really got some great information from our participants. We had 211 total responses and 193 were eligible. Just a reminder, eligibility was limited to FOIA professionals or those who are currently in service or who had left service within the past three years. So you can see that all agency response sizes were represented, so we really broke this down by the number of requests received, and so you can see a good mix there. Next slide, please.

So this was one of the first questions you can see was a quantitative closed question, and we asked, do you have concerns about the volume of records your agency processes? And just to note on timing as well, these participants had been through a series of government shutdowns and the changes to staffing across the FOIA professional landscape, and so this was fielded right, there were two shutdowns right in the midst of all of this, just to give a little context as I go.

But you can see that the majority of participants had some level of concern about the volume of records their agency processes. 38% were extremely concerned. That's the top line. And then 29% were moderately concerned. That's the second line. The bottom line was 7% or not at all concerned. So we can take from that, there is concern about the volume that FOIA professionals are facing. Next slide, please.

So here's an example of those open ended questions where you'll see I'll give you lists of concepts that I culled from all of the responses. So the question here was what are the most significantly challenging forms of FOIA requests your agency faces, particularly in terms of resource allocation and maintaining response times? So what we saw were that specific records that are difficult to process are making this challenging, of course.  The most cited example that participants gave were requests for emails, those kind of all emails in this block of time that talked about this topic.

Requests that are vague or overbroad were difficult, voluminous. Those are things that we see really consistently through the body of literature for many years. We had some that said they felt like those requests that were not in good faith. So the way they might have defined that was nonsensical, politically motivated, something that they thought had no public interest value, and then there was one specific requesting group that was cited often within the responses for repetitious, voluminous requests. So they were kind of placing that not in good faith on that group.

Generally, lack of resources to respond. Now, this is a theme you'll see throughout from beginning to end. And again, knowing that the context of time when this was fielded definitely impacts these kinds of questions, but what we were asking for, and these are things you'll see along the way, was increased staffing, increased effective technology to help process these requests, and then time. Just not having enough time to answer all the requests that they're getting.

I did give myself a little time note here. When we fielded this end of January, through end of March, that first government shutdown [of 2026] was January 31 to February 3 the second partial February 14 to April 30. So it definitely has some play here. It also meant that all of these results were a little later for us than we intended, because we kept trying to dodge those issues. Some of the other challenging forms of requests were just generally complex requests, multi part, or mass requests where they were getting large requests or repeated requests from a lot of people asking for the same thing. Next slide, please.

So in this question, we asked, what are the qualities found in requests that reach the level of vexatious or unduly burdensome? What are the higher levels of frustration? These were some of the themes that emerged: Requests that were broad in scope, that are voluminous and that are vague. This was the most common cluster, meaning these are the ones that tended to come together when people responded. Any requests that are multi agency, multi custodian requests that have an expansive timeframe, I would like all of these records for the past, you know, two years. Complex, multipart that have kind of a processing burden included, things that were duplicative or that they felt were organized campaigns for requests from groups or agencies. And then any kind of noncooperative, bad faith behavior from the requester would fall into this category.  Next slide, please.

So then we asked, what specific strategies, procedures, technologies, policies, or collaborative approaches have you implemented to ensure that these requests don't delay the processing of more straightforward or urgent ones? These requests being those vexatious, unduly burdensome requests. There was a lot of discussion here about triage practices, how they're kind of moving requests along tracks. So whether there's multitracks, depending on the request, dual track of easy, complex, something that we're often calling super simples, is which I love using the language I'm learning from these responses. If it's super easy to respond, just get it out the door. Some said first in, first out is a process for them. And then others had just internal rules that they were following to manage these requests.

Using technology to search and review, working with requesters. So this was really another theme I was seeing throughout was picking up the phone, contacting the requester to try to figure out if they could limit the scope or make it more specific.  Somehow explain the effects of a complex request on the agency, so really reach out to those requesters. Some respondents say that there are no planned strategies or solutions, so there's just a general frustration. We don't know what to do with them and we're not really managing them in any specific way.

And then the last one here was staffing management. So that would be things like bringing in contractors or sending requests to certain experts within the agency to respond to. Some were saying working overtime, coming in on weekends. And so putting that all under the umbrella of staffing. Next slide, please.

So then this next question was how does your agency address the strain caused by excessively challenging FOIA requests? So here you see working directly with requesters to kind of limit their request. And that isn't like a don't request. It's more like let's put this in a form that makes it a little more efficient for us to respond to. Some of the successful strategies they shared was they said they're just doing the best they can with what they have. Hiring more staff or contractors. Strategizing with other offices. So sometimes in these results, we're seeing an alignment with a focus group result. So connecting up with other FOIA professionals to talk about best practices. And having leadership that is supportive and realistic. This is another theme that I was seeing throughout with sort of the internal culture of the agency supporting the FOIA process.

The next one was really I see this as just a symptom of frustration. Just saying they let it all fall into the backlog. They just feel like they can't keep up, so it's just going to slide right into that backlog.

The next theme was internal streamlining. So aggregating when allowable, using precise search terms, perfected requests and proactive disclosure as ways to kind of streamline the process. Again, here we had a theme of no strategies. Like we don't have a good process in place here. And throughout, I was seeing that even though we are asking this question of how do you address the strain, they were responding back saying what we need to address the strain is... so needing resources, staffing, time, that kind of thing.  Again, triage and tracking. There were stories here about how staff was struggling, and so it was common enough to rise up to a theme here. Just how it feels to respond to these requests when so much is going on.

And then those expressing a frustration with lack of leadership or support within our agencies. Over in the focus group project, we are seeing some of this, too, in the fact that FOIA wasn't perceived as being mission critical or that leadership didn't really understand this process. So that was showing up here to a limited understanding of how and why the backlogs are there and building and what it would take to clear them away.  So I think that's a good segue to the next slide.

These are going to be suggested solutions for unduly burdensome requests. So asking what you think or what the participants thought would be great solutions. So you can see just visually, we got a lot of ideas. Having better technology. Things like being able to automate review, processing and release. Some kind of tech to filter in or block, and some of the examples of what they wanted to filter material and block were duplicates, things that are AI generated, things that are unduly burdensome. There were a lot of calls to update the FOIA statue itself. Modernizing it. Limiting the kinds of requests that can be submitted. Vague, burdensome, repeated as examples. Clarify and define elements, especially this idea of unduly burdensome. Training and guidance for requesters, helping them learn to narrow the scope. Understanding the effects of burdensome requests and asking them to be specific in their requests.

Some asked for or suggested increased fee usage. So charging more with complicated voluminous requests. Charging a nominal fee to submit a request so that it would kind of push back on the repeated, you know, many requests in a short amount of time.

Here, increasing staffing, providing official guidance, clarifying standards, developing definitions, standard using responses, and here again, leadership support for all of these processes. They suggested augmenting internal processes, isolating requests in the process, finding a more organized record management system and then rolling production of these requests and these responses. And there were some punitive suggestions banning unduly burdensome vexatious requests. Finding those who submit them and then denying them outright.

So next slide and I'll move into what we learned about AI generated requests. This slide is a little hard to see so I'd explain by color here. The yeses to the question are have you received requests AI generated? Yeses are blue, and that was 46%. I don't know is in orange, 50%. Just not sure if they're AI generated. And 4% saying no. We purposely put the I don't know in here, because we know that it can be difficult to figure out what they are, and we also wanted to have an understanding of sort of the level of recognition, and one thing to note about the way we built this survey was at this juncture, if someone said no, they had not received AI generated requests or they didn't know if they had received them, they didn't get the following questions about these AI generated requests. So these questions that follow that I'm going to explain here come from a smaller pool, but they're very specific, because these are the people who said they had received AI generated requests. Next slide, please.

So if they said yes, I have received AI generated requests, we said what percentage of these requests do you believe are perceived to be AI generated? And the highest grouping was 10% or fewer. So they're saying there were not a ton of them. No one really went above that 75% line you see at the top. So still, our participants are telling us it's the minority of requests they perceive to be AI generated. Next slide, please.

So this is one we've talked about quite a bit within our group. Well, how do they know if it's AI generated? So some of the things that indicators for FOIA professionals and whether or not these requests are generated by AI. Language indicators. Things like identical language or wording, jargon, formality. Throwing the kitchen sink in the request that doesn't need to be there. Some said the speed and timing of receiving these requests. Overnight they're receiving so many requests or in a tiny amount of time a ton of requests from the same requester.

The format of the request, that the same process in filling the request is explained or having a lack of specificity in the request itself. Some said requester's reputations, that they know requesters who are using AI, and some said it's specifically the records being requested are what's indicating to them that these are AI generated. Interestingly, among the participants, one person said that they ran the request through an AI detection software and it came back as AI generated. In another one, the requester outrightly said, oh, it's AI generated. So I think this is something that will be interesting to watch and grow. Next slide, please. 

So the next question we had for them is how would you prefer to manage AI generated requests? What strategies or policies would you like to see in place? So here, these ran the gamut from banning them completely using technology to screen them out and get rid of them completely. Some said using technology, like Captcha to make sure there's a person involved. Some said specifically requiring human requesters and authenticating that in some way that we are human. Some had internal processes to bundle and aggregate these, and then again, working with requesters and then we had requests to amend the statute requiring human requesters, limiting the number of requests, increasing the efficiency process, and being realistic about time.

So this, in a nutshell, is everything to share at this point about the survey results. Next, taking all of this, I'm going to present two potential recommendations from our subcommittee for your thoughts, and so just as a reminder, we're a really small team, so we're looking forward to feedback about these potential recommendations. My plan was to share them today as an introduction, see how we do, and then consider revisions and bring them back at our next meeting. Next slide, please, and I'll show you draft recommendation number one. 

This one is focused on staffing. One thing I should note, because we were moving back this data collection method to respond to so much that was going on in the FOIA landscape, we got the data later than we intended. So we turned it around really quickly, but we're kind of just taking the high points here from all that I just showed you. So we saw here a lack of resources and staffing as a consistent concern, and we thought this might be an appropriate recommendation, and because of the unprecedented loss of FOIA personnel in the past 17 months and also seeing increases in requests for information. So we're recommending that federal agencies align current staffing levels to meet the increasing levels of FOIA demand, analyzing agency FOIA, Privacy Act, and appeal backlogs, the complexity of incoming requests and the processing capacity of employees against their assigned workload. So all of this is really in alignment with what participants were telling us. Specifically, agencies should staff their FOIA operations to eradicate existing backlogs and ensure capacity for timely responses to incoming requests. I'm going to share the second one next, and then we can kind of open for conversation.  So next slide, please. 

So the second one really is the result of the fact that this term has pushed all of us to being later in our work than we intended. So we are proposing here that the next Advisory Committee leverage this data, both hours, the survey and the focus group data, to identify priority areas for improvement in the FOIA process, such as leveraging inefficiencies within the software procurement process, strengthening the culture of FOIA's support within agencies, evaluating the potential for artificial intelligence to aid and response efficiencies, and modernizing the FOIA statute. So these are things that we are seeing pretty consistently across the board.

Because of the data collection being pushed back, one of the outcomes was that we felt we really didn't have enough time to work with all of the rich data that we've collected, and to consider ways to really use this toward FOIA efficiency. So we're proposing this recommendation for the next term to kind of pick up the mantle and use our data while also spotlighting some directions for potential later recommendations from those new terms. I want to stop talking now and kind of open it for conversation. Jason?

Jason R. Baron: Jason Baron, University of Maryland. Can you go back to the first recommendation? So I do have a lot to say about the prior slides, but just on this recommendation, how does it relate to the recommendation that we are also considering for funding federal FOIA offices that Deborah has presented in past meetings?

Shelley Kimball: It's a great question, and this is really something that our team, we spoke at length about this. Ours really focuses on the agencies themselves. And in fact, I did share this with Deborah and conferred to make sure there is a distinction between the two. Deborah, please feel free to jump in as well. But hers was focused on Congress and funding, where ours are focused on internally the agencies aligning their staffing levels and making sure that all of these pieces are part of that alignment. And team members, please do feel free to jump in it as well.

Nieva Brock: Right. This was a very robust conversation on our team, because we also agree with the other recommendation. I think one of the things was even if Congress didn't further fund or fund better the FOIA process, we nevertheless have this requirement and this obligation to make this happen, to actually decrease our backlogs and the agency should take ownership of that requirement, not just rely on additional funding.

Kirsten Mitchell: This is Kirsten Mitchell.  I wanted to note that was Nieva Brock.

Nieva Brock: My bad. Sorry.

Kirsten Mitchell: That’s okay. I noticed that Deborah, Sean, and Ryan all have their hands up.

Alina M. Semo: I think Ryan was next, then Sean, then we'll hear from Deborah.

Ryan Mulvey: Ryan Mulvey, AFP Foundation. I guess I have more a methodological question that struck me as you were going through some of the results of your study, and that's whether you made an effort, and maybe it's just not reflected here, to drill down on the difference between AI being used in the construction of requests or the drafting of requests and AI being used in the submission of requests? Because that seems to me to be a very different use of AI. There may be an intersection. Right?  Somebody could be using AI both to draft a request or series of requests and submit them in quick succession, but those are very different things, so I'm curious whether you clarified that with your interviewees? Well, yeah. Because in the solutions and the problems that might be presented, you know, it frames the conversation a lot differently, depending on what exactly you mean by AI being used here.

Shelley Kimball: I'll start then if anybody else in the committee wants to join in. When we developed the questions, we really kept it relatively vague on AI generated, because we wanted to hear what they thought it was, how they were defining it, how they perceived it and their experiences with it. And so we really wanted to know the full gamut of what that means to a FOIA professional.

Nick Wittenberg: I'll jump in here, Shelley. You just mentioned, that could even include not using certain programs. It could have spell check. So I think that's the nice thing about Shelley's survey. It was kind of open. We had good discussion in a previous committee meeting about where we want to kind of take this, but then how do we ensure that our professionals are being to dig through and reply to the most, but thanks for this point.

Kirsten Mitchell: And that was Nick Wittenberg.

Nick Wittenberg: Thank you, sorry.

Alina M. Semo: Sean, I think you were next.

Sean Glendening: Sean Glendenning with OIP. With the findings and recommendations that you made through this looks like this very extensive survey, 100% agree with it. We are seeing the same things. We've been discussing the same things here in OIP. So appreciate you, you know, getting that data, pulling together that information. We're looking at exactly the same things. Right? How do we address these issues? Because I think a lot of FOIA shops are seeing them. I just want to echo your findings, tell you we're fully behind that. We agree.

On draft recommendation number one, you know, I think OIP is just like every federal agency. We've always in favor of getting more staffing, more money, just like every single office. Right? And it just kind of raises the question, do we spend that additional budget on staffing or on better technology? And we want to do both, right. And so I think with the better technology, we can better utilize the staff that we have now. Always tough to convince Congress to get more money to fund FOIA staff, but if we can use that staff better through better technology, and I think it's kind of a two-fold approach. So I think the recommendation is good, but just keeping in mind the hope is that the tech gives us more efficient staff than we have now to get through some of these backlogs. Thanks.

Alina M. Semo: Thanks, Sean. Deborah, you have your hand raised.

Deborah Moore: Deborah Moore, Department of Education. I just want to echo what Shelley said regarding the difference between the two, that both seem to be about funding, but really are happening at different points, but both of those points are really necessary for the outcome as we want it to happen. Both Congress and the agencies need to be encouraged to do this.   

I also wanted to highlight that this wouldn't be the first time that there's an adjacent, two adjacent Advisory Committee recommendations. We see that very often where the same issue is echoed. And I think that just adds to the demand signal that this needs to be addressed. So I'm in support of both of them.

I did have one really small question for you, Shelley. One thing I didn't understand, again it’s a small thing. Back on slide 16, you have this point, isolate requests in process, and I wasn't sure exactly what that meant, what you were talking about. I don't know if you had more detail on that.

Shelley Kimball: Yeah. Thanks for that question and thanks for also your comment on the adjacent request and demand signal. Isolating the requests in process is where they would hold the certain unduly burdensome requests, like isolate them in some way why would they're responding to them. So sort of putting them in a holding pattern.

Deborah Moore: OK  thank you.

Shelley Kimball: Sure. Thanks.

Kirsten Mitchell: Marianne has her hand up

Marianne Manheim: Hi Shelley, I just had a most basic question. Marianne Manheim, NIH. My most basic question was what was the agency representation? Did you get a cross section from big, small, multiple people from one agency? I'm just curious how you like, with these results, they're obviously not surprising, but at the same time, I'm just wondering, because some agencies, it would have been possibly way higher.  You know what I mean? So just curious how you did this?

Shelley Kimball: Thanks for that question. Shelley Kimball, Johns Hopkins University. We purposely did not collect identifying information, and so we just asked agency size so that we felt like that was the best context for these responses. So in case we were seeing any kind of weird sort of disparate responses, we could drill down. Is it because it's a really small agency or is it because it's a huge agency? But much like in our focus group project, we wanted to make sure that we were protecting the confidentiality as much as possible on the participants, so we did not ask their agencies. We did not track emails, identities, anything like that. And in fact, in the beginning, we did have kind of like a note at the top sort of cautioning against using identifiable information. Very rarely did they explain the exact agency they came from.

Alina M. Semo: Thanks, Shelley. Jason Baron go ahead, please.

Jason R. Baron: Jason Baron, University of Maryland. A lot of good work has been done here. I have no issue with the recommendations themselves. I want to make, I think, three points. First thing is that when drafting commentary on this, I really would ask that the subcommittee go back to look at recommendations from the last term, two of which seem to be very applicable. The first is 2024-02, OIP should issue guidance encouraging agencies to proactively offer requesters the opportunity to discuss their request with an agency representative. I'm fully aware that there is a discussion last term about the resources that agencies can devote to this, but if you put in an initial acknowledgment letter or otherwise that an opportunity that the agency is offering to have requesters talk to representatives, then you could narrow or clarify requests routinely, or at least give them the option of doing so.

Another recommendation that seems applicable is 2024-03, OIP should issue guidance encouraging agencies to provide requesters an interim response consisting of a small sample of documents here. Here, goes to a question that was embedded in your slides, which is some kind of inference or implication that voluminous requests are, per se, burdensome and in a world of capstone email archives where agencies have literally millions of emails, some tens of millions and in the future hundreds of millions, it will be necessarily the fact that many requests will be voluminous in terms of the number of hits if you're using keywords or if you're using some more advanced technology, the number of potentially responsive documents. I don't consider that to be a vexatious request. There would be many well meaning requests that necessitate searches across very large repositories of electronic records and there will be a need, in my mind, to have an agency engage with a requester and you can do so with a sampling process where you review 100 documents rather than 100,000 hits. So I would recommend really that there's a reference back to at least those two recommendations. That is my first point and probably my second as well.

Let me go on to AI. I can absolutely state, I believe this to be the case, that there will be very few requests in the future that are not partially AI generated; that is, we are moving to a world where every professional is using gen AI apps for some background purposes and drafting purposes for whatever we're doing. Of course, there are a thousand cases out there of lawyers being sanctioned for putting in hallucinatory cites. So there is a big cautionary flag to this, but the mere fact that one might use this goes to Ryan's point, I think, in part. The fact that you're using AI technology, we all are going to be using AI technology in one form or another for drafting requests and otherwise. I thought that the focus here was agencies finding themselves being flooded with requests that in some fashion AI has been used to do something which really does pose a resource burden. And so I'd like the committee to tease that out.

I do have a third point, which is that pointing to the future, at least in terms of my writings and others, I see a future with AI being really important for agencies to use. To have, for example, a chat bot that talks to requesters to try to draft requests and limit them and clarify and facilitate transparency as to where an agency is in the process. I really support the second recommendation for a future term of this Committee looking at an agentic AI process that stream lines, takes human review only for the purposes of quality control, but allows AI, well known AI software to help facilitate removing backlogs in the process. And so I'm very supportive of the second recommendation. I just want you to take into account some of these points that I've just made.

Alina M. Semo: Shelley? Rebuttal? Feedback? Comments?

Shelley Kimball: I'm actually taking notes. I appreciate the references to the previous recommendations. To me, it was sort of a point back to our implementation group recommendation of finding these and making sure that they are used well. And so I appreciate you giving me the numbers for them. And the commentary will reflect some of the things that you have offered here.

Alina M. Semo: Thanks, Shelley. I see Nick's hand is up next and then I believe I saw Ryan's? Am I wrong about that? Maybe someone put their hand down. Go ahead, Nick.

Nick Wittenberg: One, a huge thank you to Shelley for everything she did to get some survey out there, from getting approvals to getting everything, data, questions, and coordinating them, and that is I mean, to see the number of participants we had was extremely helpful. Also, I like Jason's points, since he was one of the architects of the capstone project and how the future of now is just data. Reminds me of the movie Sneakers, where data will be ruling. Kind of goes a little bit further than what Sean was saying. This is my commentary with our other kind of recommendations from our other subcommittees: How do we, one, hire in not such a siloed fashion, and the same with the technology we have out there. You may not be using a solution for FOIA only, but also for congressional requests, because it could be the exact same information, the exact same email. It could be in a litigation, whether it's affirmative or in defense, and it could be something, you know, potentially from Ryan and his group as well. So it's definitely one I think our other subcommittee work points out. As Sean was saying, we need to hire good professionals of course as well as equip our professionals with good technologies, but sometimes the solution for a question could be literally down the door at an office with somebody, a professional doing a different type of work. But I think Shelley's work really speaks volumes to what our community needs out there.

Shelley Kimball: Alina, you’re on mute.

Alina M. Semo: Thanks, Nick. Any other hands on Shelley's excellent presentation? All right. Nick and Nieva, I'm going to turn things back to you to wrap up.

Nick Wittenberg: No additional comments. Thank you, Shelley, for doing that. Looking forward to moving this along to really have some solutions for folks. Nieva, do you have comments?

Nieva Brock: Yes, thank you, Nieva Brock, Defense Intelligence Agency. I want to thank Shelley for this outstanding work and this great data collection. I mean, it's wonderful to have recommendations, but to have data on which to base a recommendation is just so outstanding, and we were waiting for almost two years to get this, and thank you for your tenacity in getting it done for us.

I also want to mention, Jason, I really appreciated your comment about using AI in ways not necessarily just to review FOIA requests, which is really where agencies seem to be thinking, I noticed, on using AI to actually review and search terms and such in order to find records, but you've approached the idea of AI to be using it in the foreground by communicating with the requesters through their chat bots, and I really thought that was outstanding approach. And I'm actually going to bring that to my agency for their consideration. Thank you.

Jason R. Baron: Well, thanks. I will be happy to forward papers I've written on the subject. I just think it's a great recommendation for the second one to go forward in the next term for the Committee really to decide. Wouldn't it be great if we could eliminate backlogs by a greater use of AI? That's the proposition for maybe the next term of the Committee.

Nieva Brock: That sounds wonderful.

Alina M. Semo: Thanks, Jason. Thanks, Nieva. Any other hands? Okay.  I think we're ready to wrap up, but I'm wondering how folks feel about a 15-minute break at this point in the meeting? Do we need a comfort break just to clear our heads?  Or do you guys want to soldier through?

Marianne Manheim: A five-minute break would be good.

Alina M. Semo: How about ten, Marianne?  We'll all come back at 11:38 a.m.  Does that sound good to everyone?

Nieva Brock: Sounds good.

Alina M. Semo: Thanks for the thumbs up.

[Break]

Alina M. Semo: Welcome back, everyone. Almost everyone is back. Nieva and Liz, I know you're off camera. I just want to make sure you're back.

Nieva Brock: I'm back.

Alina M. Semo: Great, thank you so much. And Liz?

Liz Hempowicz: Liz is back, too. Thank you.

Alina M. Semo: Thank you so much for checking in. We're waiting for Ryan. There's Ryan. Thank you. And Nick, and do we have Nick? Nick is back, everyone is back. Wonderful. Thank you so much for that lively first half of our meeting, and I appreciate the fact that we took a short break. Last, but certainly not least, is the FOIA Statutory Reform subcommittee, co-chaired by Ryan Mulvey and Whitney Frazier-Jenkins. So I'm going to turn the floor over to Ryan and Whitney.

Whitney Frazier-Jenkins: Good morning. We have several recommendations to discuss this morning. I think it's best if we go in order and give the specific working groups the opportunity to kind of give an overview. The first recommendation is SR-2, which deals with funding. We discussed this at the last meeting and took back the feedback and Deborah made some revisions. I don't know, Deborah, if you would like to give an overview of the updates?

Deborah Moore: Sure. Happy to. Deborah Moore, Department of Education. Thanks, Whitney. I appreciate the opportunity to take another look at the recommendation, which as you know seeks to address the persistent problem of ensuring adequate funding for agency FOIA offices by requesting Congress to include in its annual appropriation language explicit direction to agencies to fund their FOIA operations sufficiently. This version includes changes that reflect the feedback received at our last Committee meeting. The changes are designed to make the recommendation more outcome based as opposed to prescriptive and formula based, underscoring that the expected outcomes are reduced backlog, increased efficiency, and avoidance of litigation.

Specifically, the bulleted recommendation itself now includes language to emphasize that agency workforce size is a starting point for consideration. With that number, then adjusted to account for other influencing factors. This additional clarity regarding how baseline funding is calculated using a five year agency personnel average adjusted by influencing factors, works to distance the recommendation from being formula based calculation and more towards an outcome based consideration process.

The revision also addresses the need to protect high performing agencies from having their funding reduced due to a lack of backlog. New language specifically highlights that one of the influencing factors should be a consideration of the agency's overall performance against prior years' funding levels so that in instances where agencies' allocated resources in prior years have kept pace with demand, that funding balance is preserved.

Additionally, there's a few stylistic changes in the draft to increase flow, precision, and clarity, and some existing information is repositioned to improve readability. However, these adjustments don't change [the] meaning. Overall this version aims to improve clarity and readability, strengthen the justification for required FOIA funding, and provide a more structured explanation of the funding model while maintaining the original policy intent.

Whitney Frazier-Jenkins: We can open it up if there's any questions or further discussion. Marianne has her hand up.

Marianne Manheim: Marianne Manheim, NIH. The way it's written here, and I've read through the rest of it, when you say the FOIA function, this could be used for technology as well as staffing or is it looking at staffing first and technology or how do, like, if everyone is pushing technology right now, does this kind of push technology over staffing?

Deborah Moore: Thanks, Marianne, for the question. Deborah Moore, Department of Education. This doesn't aim just for staffing. This is because as we've talked about and Sean pointed out earlier in the meeting, the FOIA function is much bigger than just the number of people sitting in chairs. And the explanatory language talks about how it needs to be for training, for technology, for all of those types of things that make the whole operation go forward. So yeah, this is not limited to funding staffing, but funding the FOIA functions writ large. Thanks for the question.

Alina M. Semo: Any other hands? I don't see any other hands. I just want to make sure we've covered all the questions. Ryan and Whitney, I'm going to defer to you, but do you think we're in a position to take a vote on this recommendation?

Whitney Frazier-Jenkins: Whitney Frazier, Pension Benefit Guaranty Corporation. I think the Committee wants to move this forward for a vote.

Alina M. Semo: All right. So do I have a motion?

Margaret Kwoka: So moved.

Alina M. Semo: Thank you, Margaret. Do we have a second?

Ryan Mulvey: Seconded.

Alina M. Semo: I heard a couple of seconds, Ryan and Marianne. All those in favor, please say Aye.

Group: Ayes 

Alina M. Semo: Rick, did you have your hand up? Do you have a question?

Rick Peltz-Steele: That was my affirmative vote. I didn't follow instructions.

Alina M. Semo: That's okay. Thank you for confirming that. I wanted to make sure. All those opposed, please say nay? Anyone abstaining? Okay.  Kirsten, did you get all of that?

Kirsten Mitchell: I did. I believe that this recommendation, SR-2, which will now be 2026-03, has passed unanimously, 16-0. I did not hear any no votes and I did not hear any abstentions, and as a reminder, Sarah had to leave us earlier.

Alina M. Semo: Okay. Great. Thank you so much. And thanks for all the hard work of the Statutory Reform Subcommittee. Ryan and Whitney, back to you.

Whitney Frazier-Jenkins: The next recommendation is SR-4. Would anyone from the working, Enforcement Working Group like to kind of go over and give an intro for this recommendation regarding establishing a FOIA court?

David Cuillier: I'm sorry, Ryan. This is Dave Cuillier, University of Florida. I think this is really a great one for Ryan to talk about. We didn't confer ahead of time. But Ryan, you're the expert on this. Would you like to handle this?

Ryan Muley: Yeah. I'm happy to do that, Dave. Ryan Mulvey from AFP Foundation. I didn't want to step on your toes since you're the head of the working group out of which this recommendation came.

So the problem that this recommendation seeks to resolve, is we've seen a massive increase in FOIA litigation. That trend has not dissipated, along with the regular increase in the number of FOIA cases that are being filed. It's also the case when we have the statistics and the narrative language backing up the recommendation that really the vast majority of these lawsuits are filed in the DDC [U.S. District Court for the District of Columbia]. And yet the judges of the DDC, as again we explore in the explanatory language, have not been shy about being frustrated with the number of FOIA cases that have taken over their docket. 

Anecdotally, we seem to have gotten feedback both obviously from the requester community, but also even on the government side that judges are not always giving FOIA cases their utmost attention.  And that's something that we think ought to be resolved. And one of the ways to do that and to help relieve general District Courts of the number of FOIA cases on their docket is to redirect those courts in those cases, excuse me, into a new specialty Article III court that would at least hear FOIA claims, but as we explain in the full recommendation or, rather, the explanatory language, it could also entertain claims related to other access statutes, like the Privacy Act or even APA [Administrative  Procedure Act] claims brought to enforce records management statutes, like the Federal Records Act.

So again, the idea is to have a specialty court that only hears FOIA. It's not unprecedented for there to be specialty Article III courts, the Court of International Trade, and FISA [Foreign Intelligence Surveillance Act] would be two examples, and then of course there are Article I tribunals with specialty jurisdiction, many of which operate effectively like Article III courts. So I'm happy to address anything further. There are a few open questions that would need to be answered by Congress, which we address in here, for example, whether or not the jurisdiction of this specialty court would be exclusive as opposed to concurrent, meaning whether people could still go to a court of their choosing or if everything would be routed here.

I think the last thing I would say, and Dave, you may be able to supplement this, since you're the one who did it, we understand from limited interaction with the Administrative Office of the U.S. Courts that they are supportive this idea at least one judge, I don't know if you spoke to more than one, Dave, you can elaborate, there seems to be interest from judges, too, about this idea.

Kirsten Mitchell: This is Kirsten Mitchell, the Designated Federal Officer. Pardon me for jumping in.  I know there are at least two hands up from Jason and Rick. I just wanted to note for all the viewers that with Article III, that's the judicial branch, just for those folks who are not as steeped in constitutional matters, and I also wanted to reference, Ryan, you had mentioned APA, the Administrative Procedure Act. So I just wanted to explain that acronym.

Ryan Mulvey: Thank you, Kirsten. I didn't mean to alienate anybody with lawyer talk.

Kirsten Mitchell: It's fine. People aren't as steeped in these matters as you all are.  With that, I'd lower my hand. I don't know who was next.

Ryan Mulvey: If I may, as co-chair, let me give Dave first an opportunity as the working group head in case he wants to add anything before we I think Rick might have been first and then Jason.

David Cuillier: Thanks for a good job. David Cuillier, University of Florida. I think you covered it well. My interactions with people about this idea, it was four years ago, so I reached out to these folks in the past month and haven't heard back. At the time, folks in the federal courts were supportive of this idea and concept. Also, I should note Ryan, Margaret, and I chatted with Sean Glendening yesterday or the day before and went through some of this as well. And Sean could speak for himself on how he feels about it.  We tried to incorporate as many folks' input and concerns, and I think we got there, but let's hear from everybody else. And thank you again, Ryan, for all your work on this.

Ryan Mulvey: Rick, I think you were first.

Rick Peltz-Steele: Thanks, Ryan. I just had a question. I'm certainly in support. I wondered about I know, like, earlier when we discussed one of the proposals coming out of Implementation, I was tempted to say that the reason that's not specified in response to Nieva's question I think to Deborah Moore, and I'm sorry, Rick Pelz-Steele, University of Massachusetts Law School, the reason we didn't specify some items in the draft recommendation was to sort of allow discretion in how it would be fulfilled. And of course that's always a difficult line to say how much do you want to be constraining in the recommendation language versus not. And it might be the nature of the problem here. So looking at the draft material in support of the recommendation, I saw mention of the Article I tribunals and my understanding is that, for example, the Copyright tribunal [Copyright Claims Board] has had some success. I wondered, is there a deliberate option to constrain to Article III option versus Article I option? I didn't see excluding Article I in terms of how Congress might respond to the recommendation. Thanks.

Ryan Mulvey: Sure. This is Ryan Mulvey, AFP Foundation. And Margaret, please feel free to chime in here as well. This is something that has been raised. It's something that we, as Dave mentioned, we spoke with Sean from OIP, Sean Glendening the other day, and this was a topic of conversation. I think for those of us in the working group, there are a few reasons why Article III courts make more sense. I think just practically, you know, FOIA is already used to being adjudicated in Article III courts, so moving it to a different tribunal might be confusing to folks on the Hill who have to go about creating a new court. 

I think that there are certain aspects of litigation in Article III courts, like the applicability of the Federal Rules of Evidence and the Federal Rules of Civil Procedure that are important and that aren't necessarily going to apply in an Article I setting. Article I courts also aren't all created equal, so some of them are very much like Article III courts, but others, like PTAB, which is I think the Patent and Trademark Adjudication Board, the one that you mentioned, that's not like a regular court. It's not, for example, like the court of federal claims. It's much more like an agency adjudicatory board, which is not, those are not Article I courts. Those are within the executive branch.

So you know, especially since anything that's coming out of having Article I FOIA court, it's going to appeal to an Article III court anyway. What's the point of putting it in an Article I court? And I think my last thought, which is particularly near and dear to me, post Loper Bright [Loper Bright Enterprises v. Raimondo], given we have a lot of legal questions presented in FOIA cases and there's a lot more interpretation that's going on, that's really the province of the judiciary and not an Article I court, so at the end of the day, I think in terms of the broader constitutional structure, you know, of our government, it makes sense to have FOIA courts sitting in Article III. It's probably even more specific reasons you can give, because I think Scott Hodes mentioned in one of our subcommittee meetings, sometimes people have FOIA claims that are included with all sorts of other federal claims, and then if you have an Article I court hearing a FOIA case, you might have issues with whether they could hear those sorts of lawsuits, whereas you wouldn't necessarily have that problem with a specialty Article III court that might have supplemental jurisdiction in the unique instances where a non-FOIA claim is thrown into a complaint.

Alina M. Semo: I appreciate that. Rick, hopefully that answers…I want to just acknowledge, I'm sorry, Margaret. One second. I know Jason's hand is up, but Margaret also needs to leave by 12:10, so Jason, would you mind yielding the floor to Margaret. 

Jason R. Baron: Yes. I was going to yield anyway.

Margaret Kwoka: I agree with everything Ryan just said. And I think another one last piece and I think is important is that the hallmark of Article III courts is lifetime tenure and salary protections that we have for Article III judges that guarantee their independence. These are Constitutionally required under Article III for all judges who are Article III judges. And that type of independence is particularly important in cases where necessarily one of the litigants is, in fact, the government. Right? As an executive branch agency. And so having the kind of independence and protections for judges deciding disputes that are about at base accountability of government actors I think is particularly important, but I think all of the points that Ryan just made, I think if we were to frankly, I think it's more administrable also for Congress to simply say Article III court, you know, specialty court was in the judiciary standing up a new institution is maybe a heavier lift and requires sort of a greater number of individual decisions about how that Tribunal will work, as opposed to sort of an off the shelf option where the defaults of how Article III courts work and run and are administered would still apply. Thanks so much for letting me jump in, Jason. I appreciate it.

Ryan Mulvey: Go ahead, Jason.

Alina M. Semo: Sorry Ryan.

Jason R. Baron: Jason Baron, University of Maryland. This and other recommendations from your group are beautifully written. Lawyers would love them. They have lots of footnotes. They're like mini law review articles. So I have two points to make.  

One is somewhat curiously in light of another recommendation you have, which is SR-5 and point 2 of that with remedial authority of the courts where you point out a split in circuits, there is an embedded issue with respect to whether a FOIA court would eliminate issues of undetected intercircuit conflict with respect to FOIA litigation. There are both pros and cons. You talk about consistency. You have a reference to that in here, but I know that some litigants prefer to have circuits where they can go to where another circuit has had adverse precedent, and so there is a con to this, which is to allow for, you know, the common law to develop in ways that may produce inconsistent results, but ones that some litigants would appreciate. That's not my major concern.

My concern, which has been brought up partially in the Article I versus III discussion and Ryan, your points about exclusive and concurrent jurisdiction, the fact is that I would strongly oppose this court having exclusive jurisdiction of Federal Records Act, Presidential Records Act (PRA), Privacy Act, Government and Sunshine Act cases. We have, and Liz can speak to this, American Oversight, CREW [Citizens for Responsibility and Ethics in Washington], the Freedom of the Press Foundation, American Historical Association have all sued this administration over a Presidential Records Act issue and White House record keeping where a PI [preliminary injunction] motion before Judge Bates will be heard on May 13th. I, for one, would think that it's very appropriate for a regular federal district court to hear issues that may have a constitutional dimension to them, and I would not want a FOIA court to be deciding those issues. So I'm absolutely against exclusive jurisdiction.

I also have an issue with concurrent jurisdiction, and on that score, I would much prefer that the language here does not suggest that in the normal course cases that bring up these issues could be decided by the FOIA court. I understand that there may be some ancillary jurisdictional reasons on account of a complaint, but I really would wish that this Committee would seriously consider the positive reasons why federal district courts, apart from a specialized court, would continue to have jurisdiction over these other statutes and judicial review arising in that. And I don't want to put Liz on the spot, but I would really appreciate hearing from others in a public interest community as to what they believe, whether this proposal should be cabined to FOIA claims versus all of these other possibilities?

Liz Hempowicz: I'll be put on the spot. Liz Hempowicz, American Oversight. I agree with that, Jason, on that last point. I was thinking about in PRA cases, are FOIAs relevant to it in terms of standing, but it is not a FOIA case. So it wouldn't occur to me that that would be the kind of case that would be limited to this FOIA court if given exclusive jurisdiction. I do think there's a strong argument for litigation that is outside of the just routine FOIA enforcement to not be limited to a FOIA court.

Jason R. Baron: Well, you could amend your case, Liz, to include FOIA claims that American Oversight has or any of the other public interest groups has, and I wouldn't want the Justice Department to then move that the case now has a FOIA claim to it, FOIA count and that it should be in a different specialized court. I don't think you’d want that either.

Liz Hempowicz: Correct. How does this envision FOIA if there is litigation that includes FOIA, but is not limited to FOIA?

Ryan Mulvey: This is Ryan Mulvey, AFP Foundation. The recommendation intentionally does not take a position on that. It doesn't take a position on concurrent versus exclusive jurisdiction. And it doesn't take a position on whether the court should be given the authority to hear cases with these, you know, tangentially related statutes. You might be reading too much into it, Jason, in that respect, and maybe that's my fault for mentioning that possibility in my opening comments. But I think there are reasons to not be opposed to that. I mean, an Article III judge is an Article III judge, and I don't think we would expect Congress is going to, no Senate is going to confirm individuals to sit on an Article III FOIA court who somehow are incapable of deciding Presidential Records Act issues or general APA issues, which are really what are going to be at hand in the litigation to which you're referring. But if we can, I mean, remember, we're voting on the recommendation, which is what’s on the slide, not the commentary, as you pointed out, Jason. I think in terms of if that were to pass, massaging the language particularly because is agnostic as to what Congress should actually do on those particular questions, we can be rephrased in a way to make it clear that there might be some issues with doing it in a particular way, if that makes sense. Margaret 

Margaret Kwoka: Yeah. I was just going to say I personally also think concurrent jurisdiction is the appropriate way to go, and I don't think that undermines the efficiency aims of a Court like this, because as Ryan said, the data demonstrate that the vast, vast majority of these cases are being brought in DDC anyway, and this court, as an Article III District Court, appeals would go pursuant to the DC Circuit [U.S. Court of Appeals for the D.C. Circuit]. So I don't think for me, these are the kinds of details that, you know, necessarily would need to get worked out, but as Ryan says, you know, I don't think we have to resolve them to support the idea that a specialty court would be an advisable position, and so I think I would be happy, as Ryan is, to sort of go back in our explanatory texts and just make more clear what is not being decided here in that regard maybe as some comfort as to what we're actually voting on a recommendation for.

Jason R. Baron: I hear you. I guess, and yes, it is commentary, but it's important as a substantive gloss, I would be much more comfortable not being agnostic; that this Committee would take a position that we are not suggesting exclusive jurisdiction for these claims brought under these statutes; that we come at this by saying that we might consider concurrent jurisdiction, but not suggest otherwise. I think it's a Pandora's box that's been opened here, and I'm afraid of unintended consequences of Congress ever listening to this Committee and going forth and saying that we have opened the possibility of exclusive jurisdiction, which really, really would be antithetical, in my mind, to open government. I hear you, Ryan, about Article III courts, but I do not believe that specialized courts should be deciding constitutional issues, including one that is, you know, front and center before us. I know it's not tee’ed up as a FOIA case, but it is a very important case. And we lawyers can have a conversation offline about DC precedent going back to Armstrong [Armstrong v. Executive Office of the President] and [U.S. District Court Judge] Patricia Wald's decision about standing and whether or not there's another circuit out there that might be holding something different, something that you might actually wish to have in terms of the ability to have a lawsuit about the President's authority to issue some type of recordkeeping and manage their own records.

So there is, in here, the idea that we're holding open as a Committee even the possibility of exclusive jurisdiction over these other statutes. To me that is something that we should all pause over. And so, I suppose, I'd want to have some kind of commitment made by the subcommittee to seriously consider what I'm saying and perhaps add language that would be that we are not it's not holding open the possibility of exclusive jurisdiction for this court over other statutory claims.

Ryan Mulvey: This is Ryan, AFP Foundation. I think we can do that. Again, the footnote on concurrent versus exclusive jurisdiction is expressly about FOIA claims, not about the other statutes and claims that might and the potential expansion of authority to hear those claims. So we can either massage in the footnote or massage in the line about expanding, you know wait, let me pull it up. For example, it could say to the extent there are other laws related to open government, transparency, or public access, we have the list after the em dash, that either provide for judicial review or can be enforced through the Administrative Procedure Act. Congress might consider expanding the subject matter jurisdiction of the specialty court concurrently to hear those claims. Put it there. Expand the subject matter's jurisdiction to have concurrent jurisdiction to hear these particular claims, which might otherwise be brought in a district court of general jurisdiction.

Jason R. Baron: We can talk about the language. I would prefer a clause like without depriving federal district courts of their jurisdiction over the statutes, and then what you said. So we can work this out. If you're okay with that, I think this is a good recommendation. I'm just very concerned about the points that I made.

Ryan Mulvey: Yeah. I would just note, though, to speak on behalf not that I'm one of them, but to speak to the competency of specialty Article III judges, perhaps one of the biggest constitutional questions of the current term of the Supreme Court on the IEEPA [International Emergency Economic Powers Act] tariffs came through a court of exclusive jurisdiction, which is the Court of Federal Claims, and I thought that they were able to deftly deal with the constitutional questions that arose in that case. So I don't agree with you that these judges wouldn't be able to hear, but I think we can reach a compromise in massaging the text so that everybody is happy, as it were.

Alina M. Semo: Ryan, this is Alina. Just so I'm clear, are we talking about massaging the text of the recommendation itself?

Jason R. Baron: No, no.

Alina M. Semo: The commentary? Just wanted to clarify that.

Ryan Mulvey: If anybody on the subcommittee is opposed to what Jason and Margaret and I are proposing, please let your voice be heard, but otherwise, I think, Jason, if you send us something, I'm sure we will be amenable to it and it won't be a problem sticking into the commentary.

Jason R. Baron: Great.

Alina M. Semo: I don't see any other hands, Ryan. Do you want to move forward with a vote on this recommendation?

Ryan Mulvey: If there's a motion.

Alina M. Semo: May I have a motion, please?

Frank LoMonte: This is Frank LoMonte with CNN. I move approval.

Alina M. Semo: Thank you, Frank.  Do you have a question?

Scott Hodes: I have a question, point of order. You're making a motion to vote on this, but the commentary is going to be edited?

Ryan Mulvey: Yeah. The commentary is not part of the recommendation.

Jason R. Baron: So the procedural point here is that if people are uncomfortable with the resolution of the wording of a commentary, the one thing that, you know, in past terms is just defer the entire package to a later vote, where people see the commentary and they can discuss it. I'm not opposed to a vote here. There is another way to be, which is to abstain from voting, because one doesn't want to be compelled to accept something that has a commentary that is still up in the air.

Ryan Mulvey: The commentary receives a vote anyway. Right? Because we have to vote on the report?  

Alina M. Semo: At the end of the day, yes.

Ryan Mulvey: Yeah. So to the extent I suppose, Scott, you're voicing a concern about who knows what crazy way Jason and Ryan might change the commentary, I think there's a check there.

Kirsten Mitchell: This is Kirsten, the DFO. Just a point of order. We have a motion on the table from Frank. And I think Alina called for a second.

Alina M. Semo: I did. I just want to make sure Scott is comfortable with what he's heard in terms of being able to vote comfortably. 

Sean Glendening: I would echo, this is Sean, what Scott said. I'm not comfortable voting without seeing commentary. Specifically, I would want to leave the option for Article I jurisdiction here.

Alina M. Semo: Ryan?

Ryan Mulvey: That would mean we have to change the recommendation, because the recommendation is for Article III. I mean, we could have something in the commentary, I suppose, that says that's an alternative, but the recommendation that was moved says Article III FOIA court.

Sean Glendening: I would want to see commentary before voting on this.

Jason R. Baron: Sean, what you're suggesting, though, is the language of the recommendation, you would hold out for a possibility of saying a new Article I or Article III court. That may not be the position of the subcommittee, and so it's worthy of, you know, further conversation, I suppose. That's not my issue. It's your issue.

Sean Glendening: Right. I would want to leave the option for Congress to create either one.

Jason R. Baron: Or just not say it? Create a new FOIA court and then have the commentary provide both options? Would that be satisfactory, Sean?

Sean Gledending: That would be.

Jason R. Baron: Right. Except that you, I'm your advocate, Sean, you would be holding out that there would be the option of an Article I court, and I don't know, Ryan, whether the sense of the subcommittee is that you think that that's an appropriate option.

Ryan Mulvey: This is Ryan Mulvey, AFP Foundation. How has that worked? So that obviously is a more substantive amendment, that is an amendment, as opposed to massaging the commentary. I think that sort of amendment is something that the Committee would need to discuss since they have voted out this draft recommendation, not a different one. I don't know if there's been an on-the-floor amendment in the past, but I guess that would be helpful to know.

Alina M. Semo: It has happened in the past.

Kirsten Mitchell: This is Kirsten, the DFO. We have had on-the-floor amendments to some of the recommendations. This one, I will say, I'm happy to do whatever, but I will say this one is a pretty big one. Alina?

Alina M. Semo: This is Alina. I was just going to also say, having heard some concern about the commentary and how that would be reflected, Ryan and Whitney, would you guys be okay if we held this over until the June meeting for voting so we can continue to work this out in subcommittee?

Ryan Mulvey: I don't have a problem with that.  I also have no problem moving forward to a vote. I think as a point of order, there's a motion on the floor. So we need to revoke his motion.

Alina M. Semo: I was going to do that next. Frank, are you willing to withdraw your motion or do you want to proceed with a vote?

Frank LoMonte: Frank LoMonte with CNN. If the sense of the Committee is, it's better to see the commentary, and I have some thoughts about the commentary that I'd like to contribute as well. I'm happy to withdraw it and work with the group in the next month.

Ryan Mulvey: Works for me.

Kirsten Mitchell: Thank you.

Alina M. Semo: Alright, motion withdrawn. Ryan and Whitney, back to the drawing board. The subcommittee will meet and we'll work out some additional language.

Ryan Mulvey: Very good.

Alina M. Semo: Should we move on to the next SR recommendation?

Whitney Frazier-Jenkins: Yes.

Alina M. Semo: Great.

Whitney: Frazier-Jenkins: Ryan, would also like to cover this one?

Ryan Mulvey: I kind of wish we would do seven before we did five. Is there an opposition to that? Because I have a feeling that five is going to elicit more conversation than seven. Maybe I'm wrong.

Jason R. Baron: It will, Ryan.

Alina M. Semo: Let's go to seven. Thank you.

Ryan Mulvey: Okay. So this is Ryan. So I'm going to just give me a second to pull this up.  Okay. So as reflected in the draft commentary that goes with this draft recommendation, this particular recommendation really builds on the work of two Committees beginning back in the 2018-2020 term. The Committee had, I don't believe it was a formal recommendation, but it had made an observation that they believed future Committees should give consideration to extending FOIA to parts of the legislative and judicial branches. Subsequent to that, in the 2020-2022 term, there is a unanimously approved recommendation, 2021-01 dealing with the extension of FOIA-like, not extension, the creation of FOIA like procedures for certain parts of Congress, including the Capitol Police. I think that, more than anything, was the entity that had really inspired the work of the Committee. There is a very well written subcommittee report that really dove into the legislative branch and transparency into the legislative branch and why a FOIA-like process would be a benefit.

This recommendation that the subcommittee has proposed re affirms 2021-01 as to the legislative branch and recommends that something similar be done also for the judicial branch. As you'd see in the commentary, the idea here is that the recommendation would only extend to the administrative agencies that exist in the legislative and judicial branches. So courts, judges, legislators in Congress, senators, representatives would not become subject to FOIA. Committees in Congress would not become subject to FOIA.  Rather, their support agencies would. And I’m happy to get into that if you would like, but I think you get where we're coming from.

I would recognize that there's a good chunk in here that was inspired by Jason's comments I think over two terms or it might have been two comments in the same term, but I think there is some usefulness to his idea of using the Federal Records Act as sort of a start for thinking about how FOIA might, again, not expand, because we're talking about a new FOIA like process, but how FOIA like statutes might be conceptualized in the coordinate branches of government. And I think I'll leave it at that.  Jason?

Jason R. Baron: Thank you so much. Jason Baron, University of Maryland. Thank you so much, Ryan, for the mention. I think it's a brilliant recommendation. So I think it keyed to trying to get consistency between the FOIA and Federal Records Act makes imminent sense. I support this recommendation wholeheartedly. I just have one very pedantic comment, which is when you list legislative components, I would like a footnote saying that there are these more obscure legislative components. There's about ten others that are out there that are offices that have, you know they fall within the legislative branch. They're not the major ones that you've listed, and I assume you're excluding them.

Ryan Mulvey: Well, we tried to focus just on the major ones that have been the topic of conversation. If you have a list of ones you want that aren't here that you want identified, I'm okay with that.

Jason R. Baron: It would be at most a footnote. So I'm very supportive of the recommendation.

Ryan Mulvey: Is there a chance you have that list prepared that you might be able to drop into the chat so that people can see it? Are we not so lucky….

Jason R. Baron: I can try to do so. I don't have it right here.

Ryan Mulvey: Okay.

Alina M. Semo: Any other questions with regard to SR-7? I'm not seeing any hands. I'm looking around. Everybody to vote on SR-7? Do I have a motion to vote on SR-7?

Rick Peltz-Steele: So moved.

Alina M. Semo: Thank you, Rick. I have a motion from Rick. Do I have a second?

Liz Hempowicz: Seconded.

Alina M. Semo: Thank you, Liz. All in favor, say aye.

Group: Aye 

Alina M. Semo: I didn't mean to cut you off, Whitney. Those opposed, please say nay?   Any abstentions?

Sean Glendening: Abstain.

Alina M. Semo: Kirsten, do you need a roll call?

Kirsten Mitchell: I don't believe I do. I just want to point out, Margaret had to leave, so she has left. I heard 14 in favor with one abstention, and the one abstention being Sean Glendening.

Alina M. Semo: That's what I also heard.  I heard no opposition.

Kirsten Mitchell: Correct. The motion carries.

Alina M. Semo: The motion carries and the recommendations pass, great job Statutory Reform Subcommittee. Back to SR-5.

Kirsten Mitchell: Before we go to SR-5, unfortunately, Sean and Nick will both have to depart here in the next little while.

Alina M. Semo: What is a little while?

Kirsten Mitchell: A couple of minutes. Around 12:30.

Alina M. Semo: Is that going to be a problem voting on SR-5?

Kirsten Mitchell: No. We'll just keep an eye on the quorum situation.

Ryan Mulvey: This is Ryan. I will just preview at least my own view. I don't expect we'll vote on this today, because I think that there needs to be fuller conversation. So the fact that we've lost Margaret, who I know has many thoughts on this, and that if Sean is going to be stepping out and Nick as well, nobody should feel like we're going to try to push this through without fulsome conversation.

I know there are probably people who have lots of thoughts, so maybe it's better just to kind of be very brief. This recommendation started as something much longer and has been, what's the best word… We have tried to perfect it and to narrow the sort of proposals about judicial review to include those on which we had the greatest amount of agreement. The three ideas are firstly that Congress in some meaningful way should reaffirm the statute’s de novo standard. We recognize that the statute already says de novo, but I think in the commentary, there's some explanation for why we're suggesting that.

The second is to specify the remedial authority of the courts, in particular the authority of the court to provide relief with reading room claims as has been mentioned already by Jason earlier in the commentary we had discussion of the current jurisdictional split on what courts can do. And in the last is that Congress should attempt to reinforce informational standing for FOIA claims, which I recognize is a very lawyerly topic and can be quite complicated. And I'll also say, because I know it might be something that Jason brings up, I think Margaret and I, when we were talking about this, is are aware of the possible limitations on what Congress can do to create standing by statute, and so we're cognizant of that, but think given discussion post TransUnion [TransUnion LLC v. Ramirez] that it makes sense to at least have Congress try to do that, even if it proves unsuccessful. But with those brief thoughts, I'll open the floor, I guess.

Alina M. Semo: Rick, go ahead, please.

Rick Peltz-Steele: I'm supportive, and I find this fascinating. I'm curious and sort of interested in having it on the record with regard to the standing question. Has this been a problem to date or is this just something we fear and anticipate? Thanks.

Ryan Mulvey: This is Ryan Mulvey. So the DC Circuit, at least, has said for regular [5 U.S.C. § 552](a)3, so regular FOIA cases where you request and you get denied, that the Public Citizen [Public Citizen Litigation Group] case has not been overturned by TransUnion. There has been a suggestion by Judge [Neomi] Rao, and I think there are others on the court who would agree with her that when it comes to other types of FOIA claims, like policy and practice claims, which are technically not even claims in the statute. Right? They've kind of developed in the DC Circuit out of a mutinous exception, out of policy and practice claims, reading room claims, that TransUnion does apply and the procedural injury that comes from the denial of access isn't enough. There is a district court case that is sort of like from the requester's perspective a worst case scenario where they've said you need to have more than procedural injury rather than for a FOIA claim. There's a motion for reconsideration that’s been pending about a year. I think that's in the [U.S. Court of Appeals for the] Sixth Circuit. So that could go up.

It's not that so far it seems that things are maybe okay, except for reading room and policy and practice, but in the future, it could get worse. So we do think it's something that's at least worth highlighting for Congress in some way, because it could be, depending on how decisions go, how the case law goes, be very bad for those who think there should be robust judicial review under the FOIA.

Rick Peltz-Steele: I really appreciate that Ryan. And apologies, Rick Peltz-Steele, who asked that question. Thank you.

Alina M. Semo: Thanks, Rick. I appreciate it. I think Jason's hand was up next and then Nieva.

Jason R. Baron: I'd defer to Nieva. I've been talking too much.

Nieva Brock: Thank you, Jason. I was going to defer to you. This is Nieva Brock, Defense Intelligence Agency. I was looking at the way this was drafted. I understand the sentiment behind the recommendation. From what I see, you're asking Congress to reaffirm, to specify and reinforce, whereas it appears that there may be other means to do that rather than the legislative change. And just from my experience here in DOD, Congress is very loath to even consider creating law or changing law, if there's some other way to address a matter. And when I was looking at this, I was thinking, and sorry, Sean Glendening, to bring you into this again, but it just seemed like something that perhaps OIP could take on as an action in their teaching and reinforcing of information policy. It's just a thought. Thank you.

Alina M. Semo: Thanks Nieva, I believe we've lost Sean, so we'll carry that comment over to the next meeting for discussion.

Nieva Brock: Thanks.

Alina M. Semo: Jason, go ahead, please.

Jason R. Baron: Well, these are fascinating points that are being raised that I sincerely doubt very many Committee members, not only this term, but any term on the FOIA Advisory Committee would have considered to be the kind of systemic FOIA problem that agencies confront on a daily basis and that are worthy of bringing to Congress at this time. And so I don't quite see this as I think they may be good points as points of law, but as conceded by the commentary in the third point, that one is considered to be somewhat arcane. Maybe I should address the third point, because we've had a discussion most recently on that, and then I will talk about de novo.

On the third point, Ryan, there is really, you said, the DC Circuit is generally not disfavorable to the point you're making. That's the circuit for most FOIA claims. I only saw one case from Tennessee that's not reported anywhere, other than Westlaw, and I could only obtain a summary of the case online this morning without immediate access to Westlaw, and it was not clear to me that even in that case that the proposition that somehow there's a failure of injury, in fact, and standing. It may well be that it's just not well pled by the plaintiff. So we could have, again, a conversation among lawyers about that. I just think to underscore Rick's point, I don't see this, the third of the recommendations, as rising to a level where this Committee either understands the TransUnion issues that are being raised sufficiently to vote today on it or frankly that it just doesn't rise to the level of a Committee recommendation to Congress. It does seem obscure to me.

On the first point, I don't have any problem with the second point with the split in the circuits. I will say that I think it's on a very narrow issue and I don't think there's generally, you know, too much of a concern about it, but I have nothing against the second’s remedial authority point.

On the first point, on de novo, again, I think lawyers could enjoy having a three to four hour conversation on this point. There is an issue in my mind of a conflation between the independence of a court to decide something and the deference that's being afforded to an agency. My understanding of de novo review, and I think everybody's understanding, most people's understanding, is that when an agency decides to withhold documents under Exemption 4, 5, 6, 7, whatever, the court is not bound by that determination, the final determination of an agency, either at the initial stage or on appeal. They can decide for themselves what the exemption, the applicable exemption and what portion of documents are covered by that exemption. All of that is very straightforward and I'm not sure it needs to be reaffirmed.

The more interesting point that you're bringing up is a deference point, which is, you know, something that can be discussed. You don't mention Loper Bright in this, and maybe you should, because it's supportive of your idea. I know footnote nine talks about a Chevron less world [post Loper Bright Enterprises v. Raimondo] and that is what we are in. I don't see too many examples. I see some examples where there's deference to agencies, but I'm not sure you've made your case of an outcome to determine a difference where de novo review would lead to a different result than without deference to agencies as opposed to deference. So all I want to say is that I think these are interesting points. I'm not sure that they are compelling for this Committee to ask Congress to do something, and I just heard Nieva and I support this point as well. There may be other lesser remedies than a congressional statutory change to address these. So that's what I have to say.

Alina M. Semo: Okay. Kirsten, I see your hand up.

Kirsten Mitchell: Indeed. I just want to cut through some of the jargon that's here for those who are watching, for those who don't know. De novo review, de novo is a Latin term for anew or from the beginning. FOIA, and other legal context. It means reviewing cases without deference to prior decisions. You may have gotten that from what Jason and the others were saying, but I just wanted to point that out.

Alina M. Semo: Okay. Thank you. Ryan, I defer to you, but we're running against the time that we had allotted for subcommittee presentations, and we're almost ready to move to public comments. Would you mind if we just held this over until the next meeting for additional discussion? We can start right off with that if you'd like.

Jason R. Baron: My filibuster worked.

Ryan Mulvey: Well, there was no filibuster. This is Ryan Mulvey. If you remember, at the outset I had mentioned that I think this isn't something to vote on today. But if I might have an opportunity just ever so briefly to respond to Jason. I think you are right. I don't think it's a matter of conflation, though. That deference is used in different ways, even in the legal space when we talk about what courts are up to and certainly in the FOIA context. I would refer you to the extensive academic literature, some of which we cite, the Stanford Law piece on deference, conservation. Margaret's piece on deferring security. There really is quite a bit of literature that explains how courts kind of shirk, I think, at least in my view, their de novo responsibilities when it comes to evaluating agencies, exemption claims particularly under exemption one and exemption three.

I mean, the only other two quick thoughts are I would be interested not necessarily, Jason in your personal view, but in others' view, too, of what counts as rising to the level of worthiness for the Committee's consideration as a recommendation? I mean, I happen to think that these particular issues in the requester community, certainly in the requester's community's outreach to the Hill are standard fare. So I think a lot of people, at least, on that side do care about these issues, even if they're issues that don't come up too, too frequently. But I look forward to, I invite everybody, maybe we'll have a subcommittee meeting to talk about just this, and I think it would be useful to have Jason, certainly you and others who might be interested in this to attend.

Alina M. Semo: Thanks, Ryan. As long as we don't reach a quorum, I think we should be fine.

Jason R. Baron: Just invite lawyers.

Alina M. Semo: On behalf of the nonlawyers on the Committee, I take a little bit of umbrage at that. Okay  I think we're ready to move on. As I suspected, we were going to have a lively conversation on many recommendations. I believe we have accomplished that.  So I want to thank everyone for your hard work. And I want to thank everyone for your wonderful presentations and great commentary and great questions that you've been asking of each other. They've also been extremely thoughtful and well thought out and reasonable in the greater sense of the word.

But we have now reached the public comments part of our Committee meeting. And we do look forward to hearing from any non Committee participants who have ideas or comments to share, particularly on the topics we have discussed today. And there certainly have been a lot of topics. 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. Just as a reminder, public comments are limited to three minutes per person. I am now going to turn things over to Kirsten to guide us through the public comments period.

Kirsten Mitchell: Thank you, Alina. So I just wanted to let everyone know that written public comments are welcome at any time, so if you're watching this on the YouTube stream, either now or at a later time, you can submit written public comments on.  Please visit archives dot gov forward slash OGIS forward slash public dash comments. If you wish to make an oral public comment, please raise your hand so that we can unmute you, and if you are dialed in through telephone audio, you can press *9 on your telephone to raise your hand and join the comment queue. Once you're unmuted, state your name and affiliation and you will be given three minutes to speak, as Alina said. So, I am looking to see if we have any hands raised. It does not look like we do, but we can…   

Alina M. Semo: Kirsten, do we have any comments in chat that need to be read out loud?

Kirsten Mitchell: No. I will say that Jason, I can read something that he put in the chat.  I can read that aloud. This was during the conversation about FOIA like disclosure for judicial and legislative offices. He put in a list of, in the chat, of some of the components that this would apply to. I know some of them are in the report, in the subcommittee report, others may not be. Please bear with me while I read these. I'll read them as quickly as possible: Architect of the Capitol, Congressional Budget Office, Copyright Office, Government Accountability Office, Government Publishing Office, Library of Congress, Congressional Research Service, Office of Congressional Workplace Rights,  Open World Leadership Center, Stennis Center for Public Service, U.S. Botanic Garden.  U.S. Capitol Police, U.S. Capitol Visitor Center, U.S. House of Representatives, and U.S. Senate. And one thing I just wanted to clarify about this is this would not apply to individual congressmen's offices and constituent communication and that sort of thing.  

Jason R. Baron: Can I just say this is a list that comes from one statute. And I'll talk to Ryan and others on this subject about it. There are actually several different statutes involved and they're slightly different in components. So it's just a very interesting little area of the law.

Kirsten Mitchell: Yes. Your point is that records are defined differently in different areas on the law…

Jason R. Baron: My point is components of the legislative branch are defined either as slightly differently in different pieces of legislation.

Kirsten Mitchell: While I was reading those, it gave folks a chance to raise their hand, and I don't see any raised hands in the chat here.

Alina M. Semo: I think we just wowed everybody in our enthusiasm and content of our meeting today, that they have been rendered speechless. Okay. I'll just take a beat, just looking at Committee members that are still hanging in there. Anyone have any questions or concerns or comments about today's meeting and what we need to do between now and June 11? Okay. I think everyone is pretty clear. Why don't we wrap up our public comments section of the meeting since we have not heard from anyone.  Again, we invite folks to submit public comments if you go back one slide. Sorry. Yep.  There is the website that you can go to to direct your public comments in writing, and we always welcome public comments and we'll post them as soon as we are able, if they comport with our public comments policy.

Now we can go to the last slide. I appreciate that. So mark your calendars. Our next meeting is Thursday, June 11. I think we have a little bit of work to do between now and then, but that's great. I want to thank all of the Committee members for participating in all nine public meetings that we've had so far. Big thank you for all the creative discussions we've had and all the great questions we're asking of each other. Everyone is definitely working hard to improve the FOIA process, and I very much appreciate that.

I wanted to thank in particular the six co-chairs of our three subcommittees. You've been doing a great job of keeping everything flowing. And with that, I want to thank everyone else who is watching us today on the NARA YouTube channel or on Zoom for Government for joining us. And I hope that everyone and their families remain safe, healthy, and resilient. And our next full Committee meeting, as I said, is Thursday, June 11, 2026, starting at 10:00 a.m. Any other outstanding questions or comments?  Okay. So with that, we stand adjourned. Thank you, everyone. Have a great day. Bye-bye.