2021 Annual Open Meeting Transcript
NOTE: This is the unedited transcript of the Office of Government Information Services Annual Open Meeting on May 12, 2021 which we received directly from the transcriber. We are posting the transcript in this form to make it available as soon as possible.
National Archives and Records Administration
Office of Government Information Services (OGIS) Annual Open Meeting
May 12, 2021
EVENT PRODUCER (MICHELLE RIDLEY): Ladies and gentlemen, welcome and thank you for joining today's 2021 Annual Open Meeting. Before we begin, please ensure that you have opened the WebEx participant and chat panels by using the associated icons located at the bottom right-hand side of your screen. Please note all audio connections are currently muted, and this conference is being recorded. You are welcome to submit written questions throughout the meeting, which will be addressed at the Q&A session of the meeting. To submit a written question, select all panelists from the dropdown menu in the chat panel then enter your question in the message box provided and send. If you require technical assistance, please send a chat to the event producer. With that, I will turn the meeting over to David Ferriero, Archivist of the United States. Sir, please go ahead.
DAVID S. FERRIERO: Good morning and welcome to the Fifth Annual Meeting of the Office of Government Information Services, the federal Freedom of Information Act ombudsman. I join you from my office in the flagship building of the National Archives in Washington, DC, which sits on the ancestral grounds of the Nacotchtank peoples. Acknowledging the indigenous lands upon which the National Archives was built in the 1930s is important in our role, creating and nurturing a lens for viewing our nation's history. As Felicia Garcia of New York University noted in 2018, "Land acknowledgments are important to respecting and recognizing indigenous peoples as well as the times of past to future." The length between past and future is enshrined on one of the four monumental statues placed on either side of the two entrances of this great building. The inscription reads, "What is past is prologue," and reminds us of the important role that land acknowledgments and government records can play in informing a better future for our great nation.
This is the second, OGIS second annual meeting to be held virtually since the COVID-19 pandemic forced the National Archives to close their physical doors to our research rooms, record centers, presidential libraries and museums in March 2020. Our work of making access happen has continued virtually across the country. National Archives employees have continued to demonstrate creativity, initiative and commitment to moving our mission forward throughout the pandemic. And I'm pleased to announce that beginning May 15th, the Rotunda of the National Archives Building here in Washington will be open for viewing of the charters of freedom with limited capacity from 10 AM to 2 PM on Saturdays and Sundays. Reserve time entry tickets on creation.gov.
In its role advocating for federal FOIA process that works for all OGIS has been particularly active in the virtual space. In the early months of the pandemic, OGIS shifted seamlessly to online meetings to close out a third term of the FOIA advisory committee, a group of 20 FOIA experts from inside and outside government tasked with making recommendations to me to improve the FOIA process. Last summer, the committee sent me 22 recommendations, many of which OGIS is hard at work on. Under the leadership of OGIS, the fourth term of the FOIA advisory committee has met virtually three times, including its inaugural meeting in September 2020. While the complete shift from in-person meetings was not something contemplated before the pandemic, we are pleased that attendance at these meetings and OGIS' other events has risen in the last year. By expanding its reach, particularly to those with an interest in FOIA outside the Washington, DC area, OGIS has welcomed through the virtual dialogue those outside the beltway whose voices are not regularly heard in the conversation about FOIA.
Finally, please continue to stay safe, be well and take care of one another. I look forward to seeing all of you at the next meeting of the FOIA advisory committee on June 10. And I now turn the meeting over to OGIS' director, Alina Semo, to update us on the OGIS's activity for the past year. Alina?
ALINA M. SEMO: David, thank you very much. I really appreciate that. Good morning, everyone. My name is Alina Semo, and as the director of the Office of Government Information Services, it is my pleasure to welcome all of you to our fifth annual open meeting. I hope everyone who is joining us today has been staying safe, healthy and well. Shortly, I will go through some basic housekeeping rules and set some expectations for today's meeting, but first, some background on why we are holding this virtual meeting today.
As the archivist noted in his welcoming remarks, Congress tasked us with meeting annually to share our important work, and we have been doing so since 2017. This year, we have timed our meeting to coincide with the publication of our 2021 annual report to Congress and the President for fiscal year 2020. Hot off the press, we have published our report on our website at www.archives.gov/ogis. In a few minutes, I will be sharing an overview of fiscal year 2020, a year like no other. The PowerPoint for today's presentation is accessible on the OGIS website, again, at archives.gov/ogis.
Throughout this meeting, we will be monitoring the chat function on WebEx. We are also simultaneously live streaming on the NARA YouTube channel and also monitoring the chat submitted on that platform. We will be taking questions during the public comments period following my presentation, but as you think of comments that you would like to offer, please feel free to type them using the chat function on either platform. We will also open our telephone lines on WebEx during the public comments period to give attendees the opportunity to comment orally.
Prior to today's meeting, we received a number of public comments that we have posted on our website. We direct everyone's attention to our website, again, archives.gov/ogis/outreach-event/annual-open-meeting, and invite you to review the submitted comments. We will also accept any additional written public comments via email. Please send them to ogisopenmeeting, all one word, @nara, N-A-R-A, dot.gov, G-O-V.
An important reminder with regard to your comments. Please be aware that this is not the right time or venue to ask questions about a specific FOIA request or specific issue you are experiencing that is unique for you. Public comments we receive that pertain to particular cases will receive a direct response from our office and will not be posted on our website. While we are happy to have all points of view shared, please respect your fellow attendees and keep the conversation civil and on topic.
Also, we are recording today's session and we will post a video and transcript of this event on the OGIS website as soon as it becomes available. The video of the meeting will also be accessible later on the NARA YouTube channel. Next slide, please.
Let me start by saying a few words about who we are and what we do and our role as the FOIA ombudsman. As the FOIA ombudsman, we serve as the listening ear for the FOIA process. We report on the FOIA landscape and make recommendation for improving the FOIA process in a variety of ways. The FOIA statute gives us two very clear mission. First, we are responsible for reviewing agency's FOIA policies, procedures and compliance of the statute and identifying procedures and methods for improving FOIA compliance. And we do so in a variety of ways, including targeted agency assessments, more general issue assessment through our work on the FOIA advisory committee, which I chair and which I will discuss a bit later this morning, and our work co-chairing the Chief FOIA Officers Council. I invite you to visit the compliance section of our website and there, you will find the 14 agency specific assessments and eight issue assessments we have conducted to date.
Second, we are charged with providing mediation services to help resolve disputes between requesters and federal agencies as a nonexclusive alternative to litigation. As I would discuss shortly, we received over 4,100 requests for assistance in fiscal year 2020. The first thing to know about our dispute resolution program is that we do not dictate solution or tell agencies they have to turn over records. Our mediation services are completely voluntary, and we have had both agencies and requesters participate or decline to participate. Most often, we act as a facilitator to help agencies and requesters better understand the issues and the other party's position.
The statute specifically says our mediation services are nonexclusive alternative to litigation. We do try to prevent litigation by explaining the FOIA process, how research was conducted or an explanation of the records withheld under particular exemptions, but there's nothing in the statute that prevents the requester from filing a lawsuit after going through our process. Generally, once a case is in litigation, we do not get involved.
A lot of times, the explanations we provide lets the requester better understand the agency's response, so we look to the agency to help us provide more detailed explanation. A number of requesters have told us after they've worked with us that they understand why the information was withheld or why the agency search did not locate any record.
Our other activities as illustrated on this slide include outreach, regular meetings with our stakeholders, participating in a range of training and teaching activities. A word about our training. Up until the pandemic, we had been providing in-person training to help the agency's FOIA professionals prevent and resolve disputes without the need to involve OGIS. Our training program on dispute resolution skills for agency FOIA professionals has been extremely well regarded and in demand over the years. And in this past year, we were able to offer two in-person sessions of FOIA dispute resolution skills for FOIA professionals, one agency-specific one and one inter-agency session. However, the pandemic has caused us to retool and focus on providing training using an online virtual experience platform. We look forward to being able to roll out that training in the not too distant future and being able to connect with more agency FOIA professionals, particularly those who live outside the capital region. So please stay tuned for that. But in short, as the FOIA ombudsman, we advocate for fair FOIA process for all. Next slide, please.
We published our last annual report on March 16, 2020 as the COVID-19 pandemic forced maximum telework across the government. Although the fiscal year was nearly half over by the time this pandemic forced more than 5,500 FOIA personnel across the federal government to begin working from home, there is no doubt that the pandemic is the story of fiscal year 2020. The COVID-19 pandemic challenged FOIA requesters and agency professionals government-wide in unimagined ways. The shift to full-time telework separated many FOIA professionals from paper records, subject matter experts and in several instances, agency FOIA processing systems. Through it all, OGIS worked to provide excellent dispute resolution and ombud services and continued to strongly advocate for fair process for all. This report and today's meeting fulfills the FOIA mandate that we report on our activities and any recommendations we have to improve the FOIA process. I am proud to report that not only did OGIS move seamlessly from in-person to virtual work in March 2020, our office of nine employees continued to provide excellent ombud services to requesters and agency FOIA professionals in an extraordinarily challenging time. Next slide, please.
Before I outline our work, OGIS' accomplishments in fiscal year 2020 are doing no small part to our National Archives colleagues who assisted our team in tackling a range of work, from responding to request for OGIS assistance to assessing various FOIA issues to helping manage the critical administrative functions of the FOIA advisory committee. On this slide and the next two slides that I will ask our event producer to please turn to next slide, please, and next slide, please, I would like to give our special thanks to Robert Bennett, Meredith Doviak, Jennifer Dryer, David Fort, Annette Green, Jessie Kratz, John Hyrum Martinez, David Mengel, Brittany Parris, Oliver Potts, and Kimberlee Ried. Their assistance helped OGIS shine in a particularly challenging year, and we are truly grateful for their work on behalf of team OGIS, so thank you. Next slide, please.
As I mentioned earlier, we have timed our meeting today to coincide with the publication of our 2021 annual report to Congress and the President for fiscal year 2020, and we have just published our report on our website, archives.gov/ogis. By the end, you'll have memorized that website. I would like to share some highlights from our annual report during this unprecedented last year.
Despite the challenges of the pandemic, we are very proud of the customer service OGIS provided, so let me discuss several accomplishments this past year. First, our small but mighty mediation team handled 4,169 requests for assistance from both FOIA requesters and agencies. At the same time, we were able to shrink our backlog of requests for assistance by 83% between the end of fiscal year 2019 and the end of fiscal year 2020. 83%, that's quite an accomplishment.
We published our 14th agency assessment of the FOIA program at the US Nuclear Regulatory Commission that included 10 recommendations that the agency can implement in order to improve FOIA compliance administration. These recommendations included reform of its administrative appeals process to conform with DOJ guidance, providing requesters with appeal rights even for full release responses, and updating its FOIA regulations, FOIA management directives and FOIA desk guide to ensure that they are plainly written and reflect current processes and statutory requirements. OGIS will check back with the NRC to determine what progress it has made in response to our recommendations.
And by the way, a quick plug. If any other agencies watching us today are interested in having OGIS come and conduct and agency-specific assessment, please let us know. Drop us an email at email@example.com, and we are happy to work with you. We're also happy to customize our agency-specific assessments and focus on particular areas that you might be interested in.
Fourth, we published a package on FOIA's estimated date of completion, EDC, requirement that included an assessment, an advisory opinion and a FOIA Ombuds Observer. The FOIA statute mandates that agencies provide an estimated date of completion by which the agency expects to provide a response to the requester. Our issue assessment reflected months of research and review of hundreds of OGIS cases. We found that agency responses to request for EDCs are met as our online tools agencies use to provide requesters with EDCs and status information. We also found that agencies face difficulty when trying to calculate EDCs and some use data to provide status information but not EDCs. Our accompanying advisory opinion stated that if a FOIA requester is able to establish that an agency has a pattern or practice of failing to provide EDCs, a court may find that the agency has violated FOIA. And the accompanying FOIA Ombuds Observer provided tips for requesters who seek estimates on when agencies will complete processing of their request.
We published that EDC package at a time where the pandemic was turning FOIA processing on its head across the federal government because we strongly believe that its core message was more relevant than ever, that it is essential for agencies to communicate with requesters about the status of their request. The EDC package was a result of OGIS fulfilling a quintessential ombudsman function. In our role as the FOIA ombudsman, OGIS serves as a listening ear, an advocate for the FOIA process, and the EDC package illustrates that role.
Fifth, for the fourth consecutive year, we partnered with our colleagues in the Office of the Chief Records Officer, the CRO, to ask several questions in the records management self-assessment, the RMSA. The RMSA is an annual survey to determine whether federal agencies are complying with statutory and regulatory records management requirements. Our partnership with the CRO's office has allowed us to expand our review of the agency FOIA policies and procedures by asking targeted questions that help us identify potential compliance issues that merit further exploration. Results from several RMSA surveys have provided us with the foundation for additional OGIS assessment. Next slide, please.
OGIS' dispute resolution work provides us with a unique window into the FOIA processing agencies across the federal government. During this past year, we watched with interest the impact of the COVID-19 pandemic on both how agencies were processing FOIA requests and the types of requests agencies were receiving once work from home and stay at home became the rule rather than the exception. OGIS observed that many agency FOIA programs were doing their best to adjust their operations in response to the impact of COVID-19. We heard success stories of FOIA programs in certain agencies that manage to make a relatively seamless transition from full-time in office to 100% or close to 100% telework.
We also heard of challenges that other agency FOIA programs faced, particularly those agencies in the intelligence community, the IC. Processing classified records in response to FOIA requests requires working with records that are stored in and retrieved from classified systems of records or from secure physical space within an agency. As IC agencies adjusted to their processes in response to the pandemic, they were forced to prioritize mission critical functions over non-mission critical work such as FOIA. Compounding the challenge faced by the IC is the fact that most process FOIA requests on classified computer system. IC agency FOIA staff generally do not have access to classified systems in a telework environment, and the IC deployed limited staff to their onsite FOIA offices early in the pandemic. These factors significantly limited the ability of IC agencies to log in and acknowledge any requests, process pending requests and provide the status of delayed requests.
We observed a number of ways that the pandemic affected the FOIA process. For example, we saw a sharp increase in delays. The number of submissions related to delayed FOIA requests increased approximately 50% in the second half of fiscal year 2020. We also received anecdotal information about process disruptions across the government. While the move to remote work limited access to paper records and social distancing in the workplace created challenges for every federal FOIA program, agencies that created and controlled records related to the pandemic faced the added burden of an increase in FOIA requests in fiscal year 2020.
For example, the Centers for Disease Control and Prevention, CDC, reported that by May 2020, the agency had received more records requests than it had received in all of fiscal year 2019. Not surprisingly, many of these requests were for records related to the government's COVID-19 response and in a normal year may have been eligible for expedited processing. In May 2020, OGIS hosted a webinar presented by the CDC FOIA program managers to discuss how they were working to make COVID-19 records available and what they needed from the requester community to make the agency requester partnership as successful as possible.
Customer service became more important than ever during the pandemic for both OGIS and FOIA programs across the government. We're tasked to re-engineer their processes to provide optimal customer service during the pandemic. We spent the latter half of fiscal year 2020 working with agencies to help set requesters' expectations regarding their FOIA requests. On June 15, 2020, we published an assessment on whether and how agency FOIA websites alerted requesters to the pandemic's effect on FOIA processing. Our report found that two months into the pandemic, although some FOIA websites alerted requesters to changes in their FOIA processing due to this pandemic, the majority, nearly 63% did not alert requesters to the pandemic's effect on FOIA processing.
Next slide, please. I believe we have a slight technical difficulty. I'm checking in with our event producer. Waiting for slide 11.
EVENT PRODUCER (MICHELLE RIDLEY): This slide has advanced.
ALINA M. SEMO: Okay. I'm personally not seeing it but hopefully everyone else is. Yeah.
EVENT PRODUCER (MICHELLE RIDLEY): Hopefully everyone will see it. Please let me know if you cannot see the slide.
ALINA M. SEMO: Okay. Thank you.
One of several ways that OGIS tries to improve the administration of FOIA is through our work on the FOIA advisory committee, which I chair. The committee brings together members of the FOIA community from inside and outside of government to collaboratively identify the greatest challenges in the administration of FOIA and develop recommendations for the archivist of the United States. There have been three complete terms of the committee thus far; 2014 to 2016, 2016 to 2018, and 2018 to 2020. One of OGIS' accomplishments in fiscal year 2020 was to manage the appointment of the 2020 to 2022 term of the FOIA advisory committee and to host the inaugural meeting virtually in September of 2020. The current committee term, 2020 through 2022, is in full swing and four subcommittees, legislation, process, classification and technology, are all actively engaged and meeting on a regular basis. We hope all of you can join us for the next meeting on Thursday, June 10th, starting at 10 AM. Registration information is on our website. Next slide, please.
The 2018-2020 term of the committee held four public meetings in fiscal year 2020, including two meetings that convened online, the first ever such meeting since the committee's establishment in 2014. The committee's three subcommittees, record management, time/volume and vision, met between full committee meetings and drafted proposed recommendations to the archivist. And despite the move to a full-time virtual environment in March 2020, the committee in June 2020 approved a written report with 22 recommendations for improving the FOIA process. OGIS delivered the recommendations to the archivist in July of 2020. As of today, the committee has made a total of 30 recommendations to the archivist and has advanced over 35 best practices. They cover a broad range of topics, all designed to improve the FOIA process and access to government documents. Here on this slide, we have grouped them by general category. Next slide, please.
So again, Michelle, I'm just going to say I am unable to view the slide, but hopefully our audience and attendees are able to view, so I'm going to continue. We should be on slide 13. Is that correct?
EVENT PRODUCER (MICHELLE RIDLEY): Yes, that is correct. And ladies and gentlemen, please do let me know if you cannot see the slide.
ALINA M. SEMO: Thank you. We have created a terrific recommendations dashboard in order to keep track of the great work the committee has done since its inception in 2014, and I have included the link here. We've got some great feedback on it so far, so please keep all the feedback coming. We will continue to update the dashboard periodically as we make progress on the recommendations. Next slide, please.
During this past year, we published two assessments to submit the recommendations made by the second term of the FOIA advisory committee, the 2016 to 2018 term. The first FOIA performance standards for non-FOIA professionals, and the second, preparing documents for posting on agency websites. Our annual report formally relays the results of its first assessment, FOIA performance standards for non-FOIA professionals, to Congress and the President in accordance with the recommendation of the 2016 to 2018 term of the FOIA advisory committee. OGIS work in fiscal year 2020 leaves one recommendation from the 2016 to 2018 term that pertains to 508 compliance still in progress. Next slide, please.
As I just mentioned a few seconds ago, the 2016 to 2018 term of the FOIA advisory committee recommended that OGIS examine the use of FOIA performance standards for non-FOIA professionals to ensure compliance with FOIA and submit those assessment results and any recommendations to Congress and the President. Our annual report formally submits to Congress and the President three findings and four recommendations directed to executive branch agencies as a result of our assessment. First, what we found, our first finding is that agencies largely communicate FOIA responsibilities to employees including non-FOIA professionals. Based on that finding, we made one recommendation, agencies should continue to highlight efforts and successes surrounding efforts to inform non-FOIA professionals of their obligations under FOIA.
Our second finding, agency implementation of FOIA performance measures for non-FOIA professionals vary. Barriers include competing priorities and limited resources. Based on that finding, we made two recommendations. One is that agencies should involve all key stakeholders in implementing performance measures, keep communications open, evaluate steps taken and encourage inter-agency sharing of lessons learned. The second is that agencies should formally recognize that FOIA is everyone's responsibility and create, implement and/or refine performance measures that address the FOIA responsibilities of employees who have no explicit FOIA duties.
The third finding is that there is no one size fits all approach to implementation. Agencies that have implemented some degree of performance measures for non-FOIA professionals have used model performance standards, an example, appraisal element created new measures and/or used a blended approach. Based on that finding, we've recommended that agencies should be flexible, review existing examples for performance standards and appraisal elements and modify as applicable. I invite everyone to look at our assessment report in more detail on our website. Next slide, please.
So we should be on slide number 16. The first is our recommendations to Congress in our annual reporting here. In our annual report, we are submitting two categories of recommendations to Congress. The first, FOIA and Section 508 of the Rehabilitation Act. And the second, congressional FOIA oversight. So let me break that down further.
The first category, FOIA and Section 508 of the Rehabilitation Act, is a renewed recommendation that OGIS first made to Congress in its annual report two years ago. OGIS recommends that Congress pass legislation to provide agencies with sufficient resources to comply with the requirements of both FOIA and Section 508 of the Rehabilitation Act of 1973 as amended, especially as they relate to proactive posting of large numbers of records. In our 2019 annual report on fiscal year 2018, we made this specific recommendation to Congress and included three possible legislative options. We continued to observe agencies struggling with balancing the requirements of both statutes, and we have renewed our recommendation in our current report.
As we noted in our 2019 annual report, the FOIA Improvement Act of 2016 amended FOIA to require the agencies to proactively release certain records, including any record that has been requested three or more times. Section 508 of the Rehabilitation Act requires, among other things, that all records posted to agency websites be accessible to people with disabilities, unless doing so would pose an "undue burden" on the agency. In order for a document to be accessible, it must meet specific requirements. These requirements include that the text be machine readable and that any charts, graphs, pictures or tables in the document are tagged and described in a way that enables the screen reader to accurately describe a document to a visually impaired individual.
The procedures and tools often used by agencies to process records for public release under FOIA strip away meta data and other features that make those records accessible and Section 508 compliant. Agencies often lack the resources to remediate these records to meet Section 508 requirements. This conflict between current FOIA processing technology and Section 508 compliance prevents a number of agencies from proactively disclosing records. Some agencies rely on their IT staff to ensure 508 compliance. Other agencies leave that task to FOIA professionals who are already fully occupied reviewing and releasing records responsive to other requests. And some agencies contract out those services. Currently, we know of no software solution that can fully automate the process of making records 508 compliant.
Both the first term, 2014 to 2016, and the second term, 2016 to 2018, of the FOIA advisory committee identified the potential conflict between proactive disclosure requirements and Section 508 compliance as a major technological, logistical and resource challenge that needs to be addressed. During the committee's first term, the subcommittee studied the issue. The second term produced a specific recommendation to the archivist of the United States that legislation is needed to clarify agency Section 508 requirement, especially as they relate to proactive posting of large numbers of records by ensuring that agencies have sufficient resources to meet both accessibility and proactive disclosure requirement.
In connection with that committee's recommendation, we have provided Congress with three possible non-mutually exclusive legislative option. We provided it in our report two years ago, and we are providing it again in our current report. And we therefore renew our recommendation that Congress look into the feasibility of the three options or consider other viable solutions to this problem.
Our second area of recommendations to Congress involves congressional FOIA oversight. The 2018 to 2020 FOIA advisory committee made two specific recommendations that OGIS is conveying to Congress in its annual report. Recommendation number 2020-19 or number 19 is that Congress engage a regular and robust oversight of FOIA, hold more hearings, establish regular and coordinated communication with agencies, and strengthen OGIS with clearer authority and expanded resources. And recommendation number 2020-20 or recommendation number 20 is that Congress address funding for agency FOIA programs and ensure that agencies have sufficient resources to comply with the FOIA.
With respect to recommendation number 19, while OGIS supports regular and coordinated communication between Congress and federal agencies, having more hearings and formal inquiries may not necessarily achieve the intended result of robust well-funded and carefully considered FOIA programs. Oversight in the form of additional hearings and inquiries risks imposing additional burdens on agency FOIA programs that are already straining to respond to FOIA requests. We do believe that increased oversight should start with the US Government Accountability Office, GAO, just as the FOIA statute contemplates. As a result, OGIS recommends in its annual report that Congress consider asking GAO to pinpoint either systemic or specific compliance issues that Congress could then address in a more targeted surgical fashion either through hearings or additional inquiry.
With regards to strengthening OGIS with clear authority and standard resources, we do note that the FOIA advisory committee was unable to come up with a specific set of recommendations or a vision as to what the "new and improved" OGIS might look like. We agree that our nine-person office is understaffed and underfunded, and we appreciate the committee's urging to "significantly expand the funding and staffing for this important office." But precisely how to strengthen OGIS authority on FOIA matters will require additional careful contemplation.
With respect to recommendation number 20, we fully support any congressional efforts to increase funding for agency FOIA programs that demonstrate the need and can document how they will use increased funding to improve FOIA process, including decreasing backlogs and increasing efficiency and effectiveness. We know in particular that the 2018 to 2022 FOIA advisory committee recommended that agencies "conduct a comprehensive review of their technological and staffing capabilities within two years to identify the resources needed to respond to current and anticipated future FOIA demands." And that was recommendation number 13. Such a review we believe would put agency FOIA programs on a firm footing for asking your agency leadership and Congress for more resources. In our annual report this year, OGIS recommends that Congress ask GAO again to conduct a study of the funding for agency FOIA programs to determine whether agencies have adequate funding to comply with FOIA and respond to requests in a timely manner, and what additional resources agencies in fact need in order to improve the FOIA process overall?
Finally, we note that the current term as a FOIA advisory committee, the 2020 to 2022 term, has established a legislation subcommittee to focus on aspects of FOIA and government transparency that are most appropriate for action by Congress. Whether through statutory changes, appropriations or oversight, including the design and authority of OGIS, we expect the legislation subcommittee to make additional legislative recommendations to the full committee that may then be presented to the archivist in the committee's final report in 2022. Next slide, please.
We should be on slide number 17. So that concludes my prepared remarks for today's annual meeting. And at this point, we have now reached the public comments part of our annual meeting. Congress has instructed us that in conducting our meeting that it's open to the public on the review and reports by the office, we shall allow interested persons to appear and present oral or written statements at the meeting. As I mentioned at the start of today's meeting, we have received a number of public comments that we have posted on our website. We direct everyone's attention to our website, again, archives.gov/ogis/outreach-event/annual-open-meeting, and invite you all to review the submitted comments. If appropriate, we will respond to individual comments at a later date. We are not however prepared to respond to those public comments today, but we do invite everyone to review them and review the public comments that have been submitted to date.
We will also continue to accept any additional written public comments via email, so please send them to ogisopenmeeting, all one word, @nara, N-A-R-A, dot-gov, G-O-V. An important reminder with regards to your comments, please be aware that this is not the right time to ask questions about a specific FOIA request or a specific issue you are experiencing that is unique to you. And while we are happy to have all points of view shared, please respect your fellow attendees and keep the conversation civil and on topic.
At this time, I am turning to my event producer and to my colleagues in OGIS to help with the chat comments that have come in. First, I'm going to ask our event producer, Michelle, to be opening up our telephone lines and provide instructions again to our listeners for how to provide oral comments via telephone. Michelle?
EVENT PRODUCER (MICHELLE RIDLEY): Absolutely. So ladies and gentlemen, as we enter the public comments' session, please press #2 on your telephone keypad if you would like to enter the question or comment queue. Once again, pressing #2 to enter the comment queue.
ALINA M. SEMO: Okay. Thanks, Michelle. I'm now going to ask OGIS' deputy director, Martha Murphy, please say hello to everyone, and ask you whether we have received any comments via chat during the course of the meeting so far. I have not been able to focus on that, so I've been relying on you.
MARTHA WAGNER MURPHY: Hello, everybody. So first off, I just want to say that in the chat, I actually posted the link to the public comments, so if you'd like to see what has already been submitted previously, you can see it there. Mr. Hammond has said that he would like to say something so he has called in and will be speaking and I'll let him address the comments that he previously posted. And other than Mr. Hammond, I do not have any other comments on the chat right now and have not received any, so far, from our YouTube chat item.
ALINA M. SEMO: Okay. So Michelle, at this time, do we have any callers pending on the telephone?
EVENT PRODUCER (MICHELLE RIDLEY): There are currently no comments in queue, but if Mr. Hammond would like to un-mute his line, you can press #2 on your telephone keypad. And the same goes for the rest of the audience, pressing #2 on your telephone keypad will enter you into the comment queue. And it looks like we have someone in the queue. Caller, your line is un-muted. You may go ahead.
Bob Hammond: Hey, good morning, everybody. Can you hear me okay?
ALINA M. SEMO: Yes. Good morning.
Bob Hammond: Okay. Yeah. Hi. This is Bob Hammond. And was noted, I submitted a number of public comments today, but first, I just want to start off with one of my favorite quotes, and that is it is better to light one small candle than to curse the darkness. That's what I'm trying to do. I need your help, and I'm asking for your help. I want to give a shout out to OGIS and DOJ-OIP. As Ms. Semo said in one of her remarks, one of the roles of OGIS is to keep the process fair. That's an essential safeguard. DOJ-OIP, through their compliance inquiries, has a similar role. I read all your work products. They're excellent. As Ms. Semo noted, OGIS and OIP in my view are severely understaffed compared to your vast responsibilities, and I rely on you and I need your help.
For my part, I plan to write a letter to the appropriate committees of Congress, emphasizing the importance of your work and the need for more resources. In my view, FOIA is an essential government function. As to backlogs, Ms. Semo noted that they're making progress on those. In my view, I would rather have a response take a little bit longer but be thorough and not have it be quicker. As I told Ms. Semo in one of my emails, as a career finance guy in addition to information technology, federal procurement, logistics, I can tell you that in the budget world, doing more with less gets you less. Reporting backlogs is not necessarily a bad thing if you can show that you're boiling the ocean with your limited staff and still can't keep up. So I guess my point there is nobody likes backlogs. The agencies don't like backlogs in their FOIA processing, but it's better to do it right and if you have a backlog, in my view, that's justification to go in and ask for more funding, and I intend to support those efforts.
I want to just touch on a couple of my public comments. I'm hoping to have some briefings at future meetings. I've invited FOIA online to prepare a brief. I hope they'll do that. They have an excellent product, and I think everybody would want to see that.
Ms. Semo touched a little bit on Section 508 compliance and websites and all those things. One of my comments has to do with that very issue, and it's a real simple fix so I'm hoping that I can get an advisory from OGIS and maybe DOJ. The issue for me is I often get responses in PDF format where the redactions are in small red font against a black background. I happen to be red-green colorblind as a lot of people are, but as an example, I've got one from the Marshals Service and it was 5.5 font, and I can't read that in any case, and the issue is the color, the contrast and the font size. So I'm hoping that OGIS and DOJ can put out an advisory and say, "Hey. This is the issue. If you want to use black as a background, use a white font and it should be 12 point." I think that's a quick win, something you guys can take credit for.
Another issue that is in my public comments, and first I want to tell you, I love the guys at EPA. They're really good, but they got caught up in this one because they gave me a similar response, not quite as bad with the font size but there was another issue. On the appeal, rather than follow the only correct way to do that, they skipped a step. If there's an appeal and you want to release something, you have to grant the appeal, remand the request back to the requester. He has to account for that additional time and processing the remand. And then when I get a response, I'm entitled to additional appeal rights. That's the only correct way to do it.
To their credit, EPA was very quick. They acted on my appeal, had good reason for the redactions when I could finally read them, and they indicated that they were going to release a new document where the font size and everything was corrected. But when you think through that, what actually happened, they gave me that administrative appeal on one day, and I said, "Hey. I don't have that release document," and the next day, they released it.
So if you're looking at FOIA reporting, the initial request was closed, the appeal was closed, and then I got a response. Okay. So you can't track that accurately in FOIA reporting. Now, EPA's was very minor. They declared my request moot. Moot, meaning they had solved the problem and so my appeal was no longer valid. An issue that I'd like to have addressed at the next meeting, if we can't resolve it here, is that there is no such thing as moot. There are some agencies that abuse that. I don't have to tell you who they are. You can look at the annual FOIA reports. But when there's an appeal, the appeal has to be adjudicated on the facts that exist at the time of the appeal. Anything that happens after that doesn't render an appeal moot.
I think that, in my view, is inaccurate reporting. This one was a simple thing with an ADA thing. I see the biggest abuses being in B6, which is an area that every time there's an audit, B6 abuse comes up. And if an agency has done something wrong, they made a mistake, they redacted something under B6 and the appellate authority doesn't grant the appeal, the agency is just going to keep doing that because nobody told them they're doing it wrong. And then just as important, you're depriving the Attorney General, Congress and the public the right to know that an agency did an improper B6 redaction. So that's longer than I thought that would take.
I had been communicating back and forth with EPA. I think you have a rep on the line. I hope I said that fairly, and did I leave anything out? Okay.
The other thing with just a minute is that I really do want to give a shout out to FOIA online. I think they've got an absolutely superb work product. I put a comment in the chat line also as a shout out to MuckRock. That's a public portal. It's a commercial. But it's excellent. One of the things that they've done, I think they've solved the issue with release to one, release to all. I see in the reports, there's an emphasis on releasing the data in the FOIA portals. And what MuckRock does is they allow their requesters simply to embargo the request. If I make a request and I don't want it viewable to the public, I click a button and it styes embargoed forever if I don't want to make it public or for as long as I want to do that. News agencies like that because if they're working on a story, they want to protect their scoop, but once they're done, they open it up and then everybody collaborates.
So I would encourage a discussion of that perhaps at the next meeting. In my view, the information in the FOIA portals where requests have already been made, records have been released or they had been denied, I think that's just a valuable resource. And I'd like to see that opened up in a way that protects the privacy of the requester if he wants to do that but also gets the information out into the public. So I'm not going to go any further into the public comments. You can read them. And I hope to have a couple of briefings at the June meeting. That's all I have. Thank you.
ALINA M. SEMO: Thank you very much, Mr. Hammond. We really appreciate all of your comments and the last absorbed. So let me ask Michelle or event producer if there are any other callers on the line waiting to offer any comments.
EVENT PRODUCER (MICHELLE RIDLEY): There are currently no additional questions or comments in queue.
ALINA M. SEMO: Okay. Martha, turning it over to you.
MARTHA WAGNER MURPHY: Yeah. One item came up on our YouTube chat. Since you wrote our advisory opinion on the estimated dates of completion last year, have you noticed a change in the number of ombuds request about agencies refusing to get them?
ALINA M. SEMO: Well, I'm not exactly sure how to answer that, Martha. I'm going to also look to you to help. I think that the pandemic has definitely affected some agencies' ability to provide EDCs. I conducted their assessment. I don't think we've done an empirical analysis as to whether they've gone up or down. Martha, your thoughts?
MARTHA WAGNER MURPHY: So I would agree. I would say the number of requests we had about delays generally has gone up as we would expect, but we have not yet done any kind of analysis to determine whether the number of requests they're receiving to give an EDC has increased. I do believe that when we reach out to agencies, we are getting estimated dates of completion generally when we need to; however, the challenge has been that the agencies sometimes cannot get access to their records because the records are paper records, and it is very difficult for them to know when they will be able to be back in the building and do that. That has complicated this issue as well. So I think the answer right now is we don't know, but we're happy to look into that and see if we can get back to you. These are difficult times to be making those assessments.
ALINA M. SEMO: That's a really good question. Thank you. Okay. I'm just going to pause for a second. Martha, any other chat questions that have come in?
MARTHA WAGNER MURPHY: No, nothing more have come in so far.
ALINA M. SEMO: Right. Okay.
MARTHA WAGNER MURPHY: Nothing from YouTube and nothing on our chat here.
ALINA M. SEMO: Okay. All right. Michelle, just one last time?
MARTHA WAGNER MURPHY: I'm sorry. We just had one come in. Again, Mr. Hammond has added one more thing.
ALINA M. SEMO: Okay. Sure. Go ahead.
MARTHA WAGNER MURPHY: I'd like to see visitor counters on NARA, OGIS and DOJ-OIP websites that are visible to the public. Many are free. Perhaps DOJ and OGIS already have them but they're not publicly viewable. I would recommend differentiating unique visitors if feasible and distinguishing by domain. It's important to know who's accessing published reports such as the FOIA advisory committee term reports, etc. to see if they're reaching our target audience and then tailor meetings to meet the user community interest. While DOJ-OIP and NARA, OGIS certainly needs this information, I believe it would be of interest to the public as well. Thank you.
And Mr. Hammond also said that he would invite briefings of FOIA STAR and foia.gov at future open meetings as matters of significant public interest. Not a criticism of DOJ-OIP. As best as I can tell, DOJ-OIP I'm sure [inaudible 00:59:56] does not ever see either application.
ALINA M. SEMO: Okay.
MARTHA WAGNER MURPHY: I summarized that to a certain degree. And then one comment from a different requester. When will we be able to respond to the public comments from today?
ALINA M. SEMO: I can tell you that it's definitely going to be not today, but we are definitely absorbing them and we will try to do so in the not too distant future. So bear with us and stay tuned and keep an eye on our website. Everything we do, we post.
MARTHA WAGNER MURPHY: Exactly.
ALINA M. SEMO: Okay. Michelle, can I turn to you and check in to see if there are any other callers?
EVENT PRODUCER (MICHELLE RIDLEY): There are no additional comments or questions on the line.
ALINA M. SEMO: Okay. Martha, we're good?
MARTHA WAGNER MURPHY: Yes, we're good.
ALINA M. SEMO: Okay. All right.
MARTHA WAGNER MURPHY: No more questions or comments as of right now. Thank you.
ALINA M. SEMO: I know we're ending an hour earlier than anticipated, but that's not a bad thing. I would love to give everyone back an hour of their time. I'm sure you can find other things that you could be doing in the next hour as well. So next slide, please. This should be on slide number 19.
So despite all of the challenges presented by the COVID-19 pandemic in fiscal year 2020, the past year has tested OGIS' resilience and that of FOIA programs across the government. That's absolutely their statement. And as I have outlined today, OGIS remains resilient and well-positioned to continue our work as advocates for the FOIA process.
I would be remiss if before we end, I did not thank the terrific OGIS staff for their amazing work each and every day. The work of the OGIS team has continued to further two of NARA's four strategic goals, making access happen and connecting with customers. So thank you to my entire OGIS staff. You're absolutely amazing.
Thanks to all of you who have joined us for our annual meeting today. I hope everyone and their families remain safe, healthy and resilient. And we will see some of you again, hopefully all of you again, at our next FOIA advisory committee meeting which is on June 10th, starting at 10 AM. Thanks everyone. Have a great day.
EVENT PRODUCER (MICHELLE RIDLEY): That concludes our conference. Thank you for using Event Services. You may not disconnect.