2022 Annual Open Meeting Transcript
This is the unedited transcript of the Office of Government Information Services Annual Open Meeting on June 29, 2022 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
June 29, 2022
Michelle Ridley (Event Producer): Ladies and gentlemen, welcome. And thank you for joining today's OGIS 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 of your screen. Please note all audio connections are currently muted and this conference is being recorded.
To present a comment via WebEx audio, please click the raise hand icon on your WebEx screen, which is located above the chat panel on the right. This will place you in the comment queue. If you are connected to today's webinar via phone audio, please dial pound two on your telephone keypad to enter the comment queue.
If you require technical assistance, please send a chat to the event producer. With that, I will turn the meeting over to Alina Semo, Director, Office of Government Information Services. Alina, please go ahead.
Alina Semo ... Director of the Office of Government Information Services. It is my pleasure to welcome all of you to our 6th 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. Michelle, if you could flip to the next slide, and set some expectations for today's meeting. But first some background on why we are holding this virtual meeting today.
In the FOIA Improvement Act of 2016, Congress tasked us with meeting annually to share our important work and we have been doing so since 2017. This year, our meeting follows last month's publication of our 2022 Annual Report to Congress and the President for Fiscal Year 2021.
We published our report on our website on May 26th, 2022. And in a few minutes, I will be sharing an overview of fiscal year 2021. The PowerPoint for today's presentation is accessible on the OGIS website, www.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 open our telephone lines during the public comment period to give attendees the opportunity to comment orally. I want you to know if you're watching us via NARA on YouTube, you will not be able to provide oral comments during our public comments section. You can only provide oral comments via telephone if you have registered via WebEx.
As we noted in our Federal Register Notice, each individual caller will be limited to three minutes each. Prior to today's meeting, we received a number of public comments that we are still in the process of reviewing and posting. We will also accept any additional written public comments via email. Please send them to firstname.lastname@example.org.
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 a specific issue you are experiencing that is unique to you.
While we are happy to have all points of view shared, please respect your fellow attendees and keep the conversation civil and on topic.
We are recording today's session and we will post a transcript of this event on the OGIS website as soon as it becomes available. The video of the meeting will also be accessible for later viewing on the NARA YouTube channel.
Next slide, please.
So The Year in Review - Fiscal Year 2021.
Next slide, please.
With the May 26th, 2022, publication of this 2022 OGIS Annual Report to Congress and the President, I mark my 6th year as OGIS Director. 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.
Fiscal year 2021 continued to pose a number of challenges for the FOIA process due to the ongoing COVID-19 pandemic.
Next slide, please.
Let me say a few words about who we are and what we do in our role as the Federal FOIA Ombudsman. In our role as the FOIA Ombudsman, OGIS serves as a resource for information and assistance about the FOIA process.
By listening to stakeholders and observing the FOIA process in action, we help to resolve disputes as a non-exclusive alternative to litigation. By allowing our case work and assessments to serve as a FOIA barometer and studying a range of FOIA issues, we fulfill Congress's mandate to review FOIA policies, procedures, and compliance, and identify procedures and methods for improving compliance to FOIA.
By speaking about systemic change in a variety of ways, we are fulfilling Congress's mandate to identify procedures and methods for improving compliance with FOIA. This past year, our office handled 4,200 requests for assistance from both FOIA requesters and agencies.
We have published several assessments that are available on our website. These include processes agencies use to make documents available on their websites; records requested frequently by or on behalf of individuals seeking records about themselves; and how agencies have been using their FOIA websites to communicate with FOIA requesters about pandemic-related delays.
Throughout the COVID-19 pandemic, the top concern of requesters and FOIA processors has been delays, and we have experienced a sharp increase in the number of submissions related to delayed FOIA requests. We have increasingly encountered requesters who are angry and frustrated with the federal government in general and the FOIA process in particular.
We are also hearing anecdotal stories of FOIA professionals experiencing frustration and burnout. We see the primary challenges in FOIA today continuing to be a lack of resources, confusion about the FOIA process, and a lack of communication between requesters and agencies.
Next slide, please.
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 improvements.
We have completed four two-year terms as a committee thus far. As of today, the committee has voted and passed a total of 51 recommendations and has advanced over 35 best practices.
OGIS is in the process of finalizing the final report and recommendations that the committee approved earlier this month to be delivered to the acting Archivist of the United States in the near future. We will also post the final report on our website. Stay tuned.
Next slide, please.
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 on the slide. We will continue to update the dashboard periodically as we make progress on the recommendations.
In particular, we will be updating the dashboard to reflect the additional 21 recommendations made by the most recent term of the committee. The updates will also reflect progress on recommendations from prior terms.
This is a great opportunity to let everyone know that earlier this month we issued a call for nominations for the next committee term, the 5th term. While the deadline to either self nominate or nominate another individual is actually tomorrow, June 30th, 2022, we have decided to extend the deadline to Friday, July 15th, 2022. The committee charter states that we need at a minimum three cabinet level agency representatives and three non-cabinet level agency representatives. We particularly need additional government nominations. So please consider applying.
On the non-government side, the committee charter states that we need two representatives of organizations that advocate on FOIA matters; three individuals representing the interests of FOIA requesters who qualify for each of the three FOIA requester categories: commercial, news media, and all other; one individual representing the interests of historians and history related organizations; and one individual representing the interest of academia. So please apply.
Slide eight. Next slide, please.
Recommendations to Congress. We relied on our 2022 Annual Report to convey the first recommendation of the 2020 to 2022 FOIA Advisory Committee term that was voted on and passed in 2021, and that is that Congress adopt rules or enact legislation to establish procedures for affecting public access to legislative branch records in the possession of congressional support offices and agencies modeled after FOIA. More about that in our second panel today.
In our annual report, we also reviewed four recommendations to Congress that we have made in prior annual reports, the first adopting rules or enacting legislation to establish procedures for... I'm sorry. I already stated that one.
Passing legislation is the next one that we actually reviewed to provide agencies with sufficient resources to comply with the requirements of both FOIA and section 508 of The Rehabilitation Act of 1973, especially as they relate to proactive posting of large numbers of records. This continues to be an issue that we see.
We also asked Congress to ask GAO to pinpoint systemic and/or specific compliance issues at agencies that Congress could then address in a targeted fashion, either through hearings or additional inquiries.
And we also asked Congress to ask GAO 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 need in order to improve the FOIA process overall.
Next slide, please.
So I want to ask my fellow panelists who are going to be joining us to please come on camera. And I want to just introduce this panel that we're going to move on to next.
As I have shared in several venues over the last months, including my testimony before the Senate Judiciary Committee in March, we continue to see a sharp increase in the number of OGIS submissions related to delayed FOIA requests.
Specifically, we saw the number of requests for OGIS assistance involving delays jumped 73% in fiscal year 2021. The majority of requesters are seeking our assistance with delayed requests that asked for and were unable to obtain an estimated date of completion, an EDC.
OGIS issued an assessment on FOIA's requirement that agencies provide a requester with an EDC upon request in the earliest days of the pandemic. Our assessment found that agencies were challenged even before the pandemic began to provide EDCs, and that agencies' responses to such requests were mixed.
We also issued an advisory opinion, stressing the importance of compliance with FOIA's EDC requirement and the FOIA Ombuds Observer, providing requesters with tips for obtaining an EDC. All of these can be found on our OGIS website.
Clearly the pandemic has taken what was already a significant issue and compounded it. Increasingly as OGIS staff works on requests for assistance involving delays, we are hearing from agency FOIA staff that they are unable to provide an estimated date of completion for a variety of reasons.
So I am very excited to be able to explore that topic today. And I am thrilled to be joined by three very accomplished FOIA professionals to discuss this important topic.
First, Mike Seidel, who is currently the Chief of the Record Information Dissemination Section (RIDS) in the Information Management Division at the FBI. Nancy Chavannes-Battle, who is currently the Deputy Chief FOIA Officer with the Privacy and Records Management Office of the United States Postal Service. And Greg Bridges, who is currently the Chief of the Disclosure Branch Records Management Division at the Federal Emergency Management Agency (FEMA) at DHS.
So welcome to all three of you. I know I pivoted very quickly after my remarks, so I was very happy to see you were waiting in the wings. I really appreciate it.
And we talked today about the fact that we're going to just have a chat among the four of us, so we could try to help our agency professionals that are watching us today and our requesters that may be watching us today with this topic of EDCs.
So in no particular order, I'd like to ask each one of you, if you could talk a little bit about what your agency's approach is to computing EDCs? Who wants to kick it off?
Michael Seidel: Good morning, Alina. I'm happy to get it rolling.
Alina Semo Great. Thanks, Mike.
Michael Seidel: Good morning, ladies and gentlemen. Again, I'm Mike Seidel. I'm the Chief of the FBI's FOIA program. And I'd like to kind of address that question in two parts. Let's talk briefly about methodology and then frequency.
So in terms of methodology, we look across our program into our different track sizes. Like many agencies, we're a multi-track processing program, and we have four tracks. We have a small track, a medium track, a large track and an extra large track.
So within each of those tracks and our tracks, by the way, are based on page size. For instance, our small track is one to 50 pages. Medium track is 51 to 950 pages. So we look within each of those tracks and we compute the average number of days it takes to complete a request.
And we get that information out of our automated system. It's called the FOIA document processing system. So we'll look at those dates within those queues of the dates that requests were open. We'll do the math and compare them to the dates they were closed. And we'll come up with that average number of days it takes to complete a request within that queue.
Now, in terms of frequency, we do that on a semi-annual basis; every six months, if you will.
Alina Semo: So Mike, I remember when I was at the FBI, we had a backlog manager. Those were the old days. I guess it's much more sophisticated now.
Michael Seidel: Well, we're busy as you know, Alina. For the benefit of everyone on the call, we're a large program. So we deal with a high volume of incoming requests, both daily, monthly, and yearly. We're averaging a volume about 30,000 incoming requests a year. And certainly something I'll talk about a little bit more in when we talk about maybe the challenges that computing an EDC provides to an agency.
Alina Semo: Great. Thanks, Mike. Nancy, do you want to go next? Talk about your agency's approach to computing EDCs. How does the postal service do it?
Nancy Chavannes-Battle: Sure. Good morning, everyone. I'm Nancy Chavannes-Battle, Deputy Chief FOIA Officer at the Postal Service. Our agency is decentralized, so we're unique from most agencies. We have two RSC Centers, Request Service Centers, one is the headquarters, and one for the field. And each of these RSCs determines where the requested records may be located.
So three of the things that we look at when we're trying to approach computing the estimated date of completion is how long would it take us to locate the records, to review and get back the records, and depending on where the records are located, it might be located [in] more than one place. We might have something in the field, something in headquarters.
Secondly, emails. If records involve email communications, it involves additional time to review because we have to make sure there's no attachment, what needs to be released and what can be released.
And also, if more than one department is involved, additional time will be needed; and especially if it's a news media requester, we have to go to communications. Communications officer has to review it and the Law Department has to review it.
Alina Semo: That's a lot of moving parts, Nancy. It sounds very complicated. Greg, can I turn to you and have you talk a little bit about FEMA's approach to computing estimated dates of completion?
Gregory Bridges: Sure. Hi everybody. I'm Greg Bridges. I'm the Branch Chief for FEMA's FOIA office. And our approach isn't too different from Mike and Nancy's as far as calculating the time it takes us to do our part of the process. We also rely heavily on the time, the date, the received date and the closed date, and kind of using that as a gauge as well; the review times that it could take for records.
But then in addition to that, we also work with our programs to get an estimate of how long it would take them to complete the search, which we also factor into the timeline.
We try to encourage them to really rely on their familiarity with the records, to get the page volume, to get an estimate. For us, when it comes to responding to a disaster, everyone is a little different, there's different challenges.
And when we know a highly publicized disaster is on the horizon, I think the last one was probably the Texas power shortage, we kind of start working with the regions to kind of get an idea of what types of records are going to be produced, how big the volume they think it's going to be.
So that way, when reporters and people start asking for this information, we can kind of start engaging in that discussion with them on how long we think certain things are going to take.
So using those combinations is how we really work to get an estimate. And it really just comes down to having something to back it up or something to justify why we picked that particular date.
Alina Semo That sounds really very proactive on your part that you're actually reaching out when you know disasters are coming up. So that sounds really very effective.
Gregory Bridges: Yeah, it helps for situations where when we have disasters, a surge of requests can come in at one time.
Alina Semo Right.
Gregory Bridges: So it's helpful to have that information up front because you're going to be having those conversations constantly with different requesters. So getting ahead of that really helps us out to really manage how we're going to respond to all these things and pick those dates.
Alina Semo That's very helpful to hear. Thank you.
Mike, I know you said you were going to pivot to challenges that you have faced in implementing EDCs. So I would love to hear from you first.
Michael Seidel: Well, thanks again, Alina. So from the program management perspective, I think the greatest challenge is, the challenge that we've experienced is that frequency of the measure. That's why I talked about our methodology. We take that data snapshot semi-annually. So really in terms of how do we better serve the requester community and the public is what is the right frequency, right?
If you take that snapshot too frequently, we found because of our increased volume and our increased litigations, if we take that frequency snapshot too frequently, there's too many peaks and valleys. And we found that's not helpful to requesters.
On the opposite side, if it's too lengthy, it's really kind of stale. It's not useful in that regard. We want something that's both as accurate as we can make it, but that is not so frequent that there's too many peaks and valleys.
So I think that was our greatest challenge. So where do we land? So based on our experience, we found that given our volume, if we did it too frequently, like monthly, too many peaks and valleys, that was not helpful information in providing really a realistic expectation to the public.
Annually was not frequent enough, right? Too stale. Again, it's not really providing a useful tool or really a useful discussion piece with requesters because it was too still. So we landed on semi-annually and that seems to be serving us well in terms of what's the right frequency for our program.
Alina Semo: Great. That's really helpful to hear. Thank you. Nancy, do you want to chat with us a little bit about challenges at the Postal Service in implementing an approach to calculating EDCs?
Nancy Chav annes-Battle:Thank you, Alina. Two of the challenges that we really face in our office since we're decentralized is to make sure that's the right department. If it goes to the wrong department, or if it needs to go to another department, additional department besides more than one department, we need to know. So that might help the time that we need to complete a request.
So we have to make sure that we communicate with the coordinators. We have four coordinators in our office and in our districts. So we have to make sure we communicate with the right one, and if we need to send it to somebody else, we do that.
Secondly, emails are challenges. We get a lot of emails. I don't know if your office gets a lot of employee requests with emails, sometimes 10,000 emails. And sometimes we have to ask the requester to narrow the scope, the search terms. And getting them to do that sometimes is hard, because they want what they want and trying to pull it for them, tell them that if they want it at a reasonable time that we would need to narrow the scope.
And what we do a lot too in our office too, is we do partial response or some partial response. And to let them know that we are working on it and that we are trying to give it to them on a certain time, not six or seven or a year later sometimes. So we do work with them. We try to work with the requester as much as we can so we can get to the completion date, as we state in our letter.
Alina Semo: Nancy, I'm just curious. I don't know what the number is, but there's an incredible amount of local facilities that are part of your world. How many facilities in different locations are you dealing with?
Nancy Chavannes-Battle: We have at least 30,000 post offices. So depending on what they're asking for, where they want, we might have to deal with each one and we have coordinators to check with different districts. So we just had to reorg, our district had a reorg. So each section has a district.
So it's hard to sometimes to locate exactly where the record is located. And that's the first and most important thing. Once we know where the record is located, we're able to provide an exact date.
Any policies and procedures come up to headquarters. Headquarters handles most policies and procedures. So we have no issue with that. But it's just sometimes if it's going to more than one department, we can figure that out and make sure that we communicate with the requester and make sure that we're providing them what they want and what they're asking for.
Alina Semo Well, that's definitely a big challenge, 30,000 locations. I could definitely see that. Greg, let's pivot over to you. Talk to us a little bit about the challenges you face in implementing the EDCs.
Gregory Bridges: Internally, I think the major issue is just getting people comfortable with the concept of doing an estimate. I think a lot of times they feel like they have to give an approximate date or I think a common one is, how do I know how long it'll take without going through the records? You know?
Alina Semo Right.
Gregory Bridges: And just getting them to understand how to do the estimate, what to base it on. One thing we ask them is, "If you worked on nothing else, how long would it take you to complete this?" Or, "If you started the search today, what date do you think you can get it back to our office?" So that way, if you can't give us the actual days, we can kind of gauge the estimated response date based off of the date that you provide.
For the requesters, it's really getting them to understand why the date may take so long as we do. Oftentimes, I think you guys at OGIS just call it the magic file cabinet where you do a spin in the chair, you pick up the folder, everything's ready to go and redact it. And it just goes out the door, you know? Or they think email searches work like searching through Gmail.
Explaining to them like that is sometimes I think a big challenge, especially requesters who are really under the impression that it's not going to take as long as we are saying it's going to take and they don't understand that. That's usually a big challenge there, but that's usually just most of the time, if you can justify the date and explain why it takes that long, that really helps. But if you just throw the date out without justification, then that's when it really becomes a problem.
Alina Semo: Greg, some great points that you just made about both internal and external challenges. I think it's very, very helpful. And one thing you touched on actually helps us pivot to the next question I was going to pose to all three of you. But Greg, I'll get started with you. How do you deliver realistic news to requesters to help them manage their expectations?
Gregory Bridges: Well, as understanding as the requesters can be. No. I would say that you just be as transparent about the situation as possible. I think it helps when discussing the EDC specifically to know what is the part of the process that's the heavy lift? What's the part that's taking the most time? Because then, if you can explain that to a requester in a way that they understand, that really helps them. It sometimes gives you an opportunity to reduce the scope or maybe discuss everything that's being requested.
Sometimes requesters think what they want is easy. And we've all had the requesters that ask for way more than what they want, because for some reason, they're hesitant to say specifically what they want. Once they have that timeline, that may force them to reduce it because sometimes requesters like the media or law firms, they want those records back by a certain time.
And so if you can come in and identify the pinpoints or work with the program offices to identify new search terms that can help the scope go down quickly. You know, one of the things we do at our agency is explain to requesters why searching for all of the emails with the word hurricane during hurricane season might produce more records than you're actually looking for.
So having that background, having an estimate on the volume and the work it'll take, as much of that information that you can have as possible before you've discussed this with the requester will be very helpful. You don't have to have all of it, but you just have to be able to lay out your timeline.
Also, if you're not sure about this date, there's nothing wrong with telling a requester, "We think it's going to be ready by this date. If we don't think we can meet that date, we'll definitely reach out."
But you have to reach out. If you're saying the 25th, by the 20th or the 24th, you should have an idea of if you can meet the 25th. And if you know you can't let the requester know before the 25th, you know, that shows proactivity, that shows that your request is on the forefront. And that is really the main gripe of a lot of requesters: they don't want to be forgotten about. So even if they don't like the date being extended, at least they know that you're actively working on it. And even if you have to extend it, then that could be another opportunity to narrow the scope. Always keep trying to do that. So I think if you can do that with a requester, you're not going to satisfy all of them, but the majority of them will still be willing to work with you, whether they're happy about the situation or not.
Alina Semo Some great points, Greg. Communication is so key and something OGIS always stresses. Thanks for all of that. Nancy, a hard act to follow up, but could I ask you the same question that I have just asked Greg about how you deliver realistic news to requesters and help manage their expectations?
Nancy Chavannes-Battle: It's a hard act to follow, but I agree with Greg. Communication is number one, communication. We try to break down how many records we locate and how long we think it's going to take us. But sometimes realistically it might take us longer. We try to communicate with them, and I think that's the biggest thing. And we do it before the due date... And at my office, it's that five days before a case is due, we contact the coordinators to ask to provide us a status update. And when they do, if we need to do an extension letter or contact the requester, then we go ahead with that. We don't wait until it's overdue or the request is back to us. So we communicate and now in the scope, we have to keep going back and forth, so they feel comfortable.
So a lot of times they don't know what they're looking for. And so for any and every record, you're going to get thousands of records that you might not need. So we try to work with them. We have to take up the phone, talk to them, explaining what exactly I'm looking for, and then try to help them. So we do that. So I agree with Greg a hundred percent: communication, communication, communication. Without that, we're not able to reach them. And they want it yesterday, of course. They want you to produce the records yesterday. So we have to communicate and we have to explain the record we locate. They think we might only have a few, or we're trying to give them a hard time, but that's far from the truth. We're trying to be transparent. We're trying to provide the record they're looking for.
Alina Semo: Right, Nancy, thank you so much. Mike, over to you. How do you deliver realistic news to requesters and manage their expectations along the way?
Michael Seidel: Thanks again, Alina. I'll try not to sound like a broken record here, given the great information that Greg and Nancy provided, but a lot of similarities in the concepts there: communication, active engagement with requesters and linkage to the overall program picture, our negotiation program, I think are the keys that we focus on. On communication, in our standard acknowledgement letter that all requesters receive, one of the things that we provide is a link to fbi.gov. Call it our FOIA status link or FOIA status tool, if you will, and it's heavily used by requesters. So you can go to that link, you can enter your request number, and it's going to give us some information about your request in terms of what stage your request is, is it an initial search stage, is it in processing, and that's helpful information. But that link also directs requesters to our Public Information Officer and that's really where the magic happens. We find that a lot of our requesters engage with our Public Information Officer to get more information about the requests. And that's where the discussion about the EDCs really happens.
Just throw out a few stats for you so far, just so far this fiscal year, we've received here at the FBI over 14,000 requester contacts via email and over 1,100 phone calls about their requests. So our robust PIO team will discuss with requesters that EDC. So we'll give you the number and we'll be transparent about it. It's certainly one of our larger queues, that number is going to be large, and people might not understand why that number is so large. And so we'll talk about our methodology, here's how we take our snapshot. Please understand that we're a large program, your request is important to us, but just note that we assign to a processing queue and we process on our first in, first out basis, and we're providing you the best estimate of time that we can give you, based on the data we have available. And of course, then we talk about, are you interested in negotiation? And we find that most requesters are. They didn't even know that was an option. Hey, you requested this entire file, this entire file is 2,000 pages. What are you really looking for? Maybe we could help you find what you're really looking for in the process, get you to a smaller processing queue, which means you'll get the information faster.
And so we have that discussion with requesters and it usually happens during that discussion about the EDC: well, here's the estimate, let's talk about how we got there and what your options are. Then certainly, requesters are entitled to everything, and that's often part of that discussion. The statute requires that. You're entitled to it all, if you want it. But we certainly want to have that discussion, we want to engage with requesters about, is there something that we can do for you that maybe would resolve this case and give you what you really want faster.
Alina Semo So I thought you were going to call out, but I'm going to call it out. One of the best kept secrets at the FBI and [the] RID, which is the negotiations team. I think it's a great model. I warmly recommend it to any other agency that I talk to. I think it's just a great way to focus in on a particular talented group of GISs who are focused and determined on trying to help narrow requests. Can you talk about that for a minute, Mike?
Michael Seidel: Well, sure thing. If a requester is interested in that discussion, we find that many are, it will go to our negotiation team and our negotiation team will review the file and organize the information for that discussion. And then we'll have that discussion. We'll engage about, what are you really looking for? Maybe are you looking for specific events in this file? Are you looking for a certain date range? Are you looking for a particular interview? I mean, we can have that interactive discussion and narrow down the page range. And that's really the gist of it. Of course, we're a very diverse program in the range of information we see. The Bureau is both a law enforcement and intelligence agency. So we have a broad range of records and that requires some work by our team to do some research up front, to know about the information that we're talking to the requester about, but really that exchange is where the benefit, the best practice happens.
And we're finding more and more that we're landing in that win-win spot where the agency is getting a benefit to processing less pages. And that's really good stewardship, right? We're not processing unwanted pages. The individual requester is getting benefit because they're getting what they really want faster. And many requesters didn't realize that was an option. And I would say that too, there's a larger benefit to the entire FOIA community in that when that exchange happens, we're able to serve more members of the public. So since we're not processing unwanted pages, we're able to serve more requesters and give more requesters, more information, more frequently,
Alina Semo: Just to a clarification question whether this FBI model you've described for EDCs, does that include not only average times, but also is it subdivided by categories of records? How precise does it get?
Michael Seidel: As I discussed it's across that queue size. So we're trying to take a snapshot of the average time within that queue. One of our challenges, because our information is so diverse and wide ranging, it's very difficult to assign a specific time to a specific category request. And certainly we still deal with the environmental factors, where we get these peaks in values or incoming volume in our litigation demand. So we take that snapshot so it's just pure data.
Alina Semo Okay, great. Thank you so much. I'm going to give you a break, Mike.
Michael Seidel: Thank you.
Alina Semo Back to Greg for a minute to see if we can talk a little bit about what advice you would give to agencies that are struggling to compute and provide an EDC. And as I highlighted earlier, unfortunately, OGIS is finding that there are a number of agencies who are in that boat. So talk to them, and what would you tell them?
Gregory Bridges: I would tell any agency struggling with it, your experience with the process is your biggest tool when it comes to estimated response date. Regardless of what agency you work at, at a certain point of time in working in that FOIA office, you will eventually have seen all of the common records that are requested. A contract is a contract, a report is a report, email communication is email communication. So start monitoring the challenges that you typically come across with those sets of records. And then that can maybe help you understand what you have to face when it comes to working records.
So, for example, if you're dealing with a contract, submitter notice is going to be in play. It's a 50 page contract. You may have to work with the submitter with that information, factor that into your timeline. How long does it usually take to get a response back from a submitter with that size contract? Not that particular contract, but that kind of contract. Or if it's email communication, what are they discussing? Is it internal communication? Is it external communication? Are they communicating with somebody outside the federal government? If it goes outside of the federal government, a lot of exemptions are no longer valid. So take that into consideration as well, and kind of use that as your estimate. But then also go to the requester, let them know what you're basing that off of, and then leave room to say, Hey, if we think this data's a little off, we'll go back to the requester. And then also put all of your requests on some type of schedule. Don't wait, don't identify an EDC just for the purpose of getting a requester off your back. If you put all of your requests on the EDC, that can also help you factor in how long it'll take you to work on a particular request, because you're considering your current workload. That's something you have to consider too.
So it really comes down to just monitoring your work, relying on your experience with the records and then just staying in communication with the requesters is when you think you're going to be off. There's nothing wrong with being off on the estimate, as long as you can justify why you did it, and you let the requester know before. If you can do that, then most requesters will work with you on that. But assuming that you have to be approximate or assuming that you got to get it right the first time you let the requester know, that actually puts you in a bad position.
But your experience with the records is what you want to rely on. Even if you don't know it now, then start monitoring that now. And for each individual staff member, don't assume that if one staff member gets it out in 20 days, that the next staff person will as well. Base it off of the average time that it takes that person. If you know who's going to be working on it, base it off of theirs. If you don't know, get an average for your team. And that's really where the managers can come in and really help with that by monitoring response times and how well your team can put information out the door. So if you got that going for yourself, you can at least do the estimate. You may not do the approximate date, but that's not necessary for an estimate. So as long as you can keep that and stay on top of those things, you should be good there.
Alina Semo Okay. Some great advice, thanks for it. Nancy, same question to you. What advice do you have for other agencies who are struggling to provide EDCs?
Nancy Chavannes-Battle: First and foremost, be realistic when obtaining the records and communicate again with the requester. Also the offices should break down what increases the time. They could be referring to other offices, like in our office, we have to go through corporate communication if it's the media. The law department, there needs to be review. So that's going to take time, especially when it includes numerous records. So we have to accounted for that. So also if it's email... In our office, we have a standard [for] how to calculate the number of hours that will take each specialist to go through an email. We have a standard calculation. So then when we get certain amount of emails, we will run the calculation and we'll let the requester know it's going to take us this long, this amount of time for us to provide the response to email.
And then again, we ask them if they want to narrow the scope. So I think there needs to be a standard in their department, how each specialist is
[inaudible 00:45:37]... like Greg says, you're not going to all do it the same way. I mean the same hours and time, but if you're standardizing how you do it, then we'll all be on the same page. So I think it's very important for an impartial response when needed... Sometimes we say 20 days and might not take 20 days, it might take six months. We all know, we've all been there, that it's taken a while. So I mean we think provide an impartial response, standardized within your department and also just break down what you feel would increase the time to provide response or provide [inaudible 00:46:25] from providing a response or an issue you might encounter when you're trying to provide it.
Alina Semo: Okay. Thanks very much, Nancy. Mike, same question to you. What advice do you have for other agencies who are struggling?
Michael Seidel: Sure. Three items. The first one would be automation. Is your methodology automated? If not, it ought to be. So we take that data snapshot I talked about and we're able to do that in automated fashion. So that gives us the numbers that we need fairly quickly. So automation is really key. The second one is really the engagement I talked about and that really goes to staffing. So do you have an adequate Public Liaison/Public Information Officer staff to engage with requesters. Then finally is negotiation. So link it to negotiation. Let me provide you a few more on that. So the negotiation process I described to you, so far this fiscal year, our program has reviewed almost 8 million pages in that process and we've eliminated over 6 million from processing, based on that discussion and to achieve that win-win I talked about.
Alina Semo Wow, that's really very impressive. I'm going to pivot to the next question I was going to pose to all of you. Going to ask Nancy, maybe she could field this first, getting buy-in from agency FOIA leadership. I'll just preface my question by just highlighting the fact that in our assessment, we found that support from agency leadership is crucial to success in meeting FOIA statutory requirements, including providing EDCs. So talk to us a little bit, Nancy, about getting an agency, FOIA leadership buy-in, agency leadership from the top.
Nancy Chavannes-Battle: First, we communicate with our general counsel, our VP when we need a sense, or if we need aid in providing update upgrades, we first meet with our general counsel and then he provides, he sends out emails to other agency heads and they follow.
And nothing that we do for our training, training is very important. A lot of employees don't realize how important FOIA is and the important part it plays in their role every day and each one of them to become... To get a FOIA at any time. So we make sure that we provide the training and we show them what we need and why it's so important for them to assist us and respond when we contact them. So by going to our VP or general counsel and other managers that allows for them to assist us when we need any assistance with a FOIA, with an update, with a system we've [inaudible 00:49:37]. So any training that we need to go to, they're very helpful, they provide us, they support us for anything that we need. So we have a great team. We have a great team at the Postal Service to assist us and provide what we need to the requesters, and if we need assistance or anything else when it comes to FOIA.
Alina Semo: Great. Greg, can I ask you the same question? How do you get buy-in from your leadership? And I know you're one of 22 agencies within DHS as well, so you have a larger framework to work with as well. Talk to us a little bit about that.
Gregory Bridges: I think kind of like what Nancy said, a relationship with OGC is very helpful for us, and not just the attorneys that work directly with us, not the FOIA attorneys, but also the program attorneys, because what they can do is kind of add legitimacy, especially when you're dealing with senior managers who aren't familiar with the FOIA process and you're coming into their program, trying to tell them why they need to make our work a priority against their work, so that really does help. I think when it comes to senior leadership, it really is just understanding what that particular manager or leader cares about when it comes to the FOIA process. Do they care about being in compliance? Some do, some don't. Oftentimes they care about not getting in trouble, they care about not having to spend money. They care about not having to get sued. So it's really when you go to them and use them, because often we use the senior managers as enforcers or trying to get them to compel their staff to comply, touch bases on the part of the process that would most concern them.
Coupled with the support of OGC can really help to get them to move and understand the urgency and why we get them. Because usually by the time we have to get them involved in stuff, we need their assistance in some way. So it helps if you do have a good working relationship with them already, that makes it easier, but in the times where you don't, appealing to them based on their actual concerns, upward with OGC usually helps. And not just your FOIA attorneys, their program attorneys, that's the thing. Don't just come in with the FOIA attorneys, come with their program attorneys, because those are the people that they're most familiar dealing with. They understand the program in a way the FOIA folks and your FOIA attorneys don't. So having their buy-in when you go to your senior leadership just helps legitimize the concern and really can compel them to take the type of action you need them to.
Alina Semo Yeah, that's really helpful. I'm going to pivot to Mike and ask the question in a slightly different way. Relying on my years of experience at the FBI, there's always a big struggle between the FBI's primary mission, collecting information, and FOIA, releasing information. How is it that you manage that and how do you get buy-in from FBI leadership to make sure that everything gets done the way it should?
Michael Seidel: It all boils down to education, Alina. I think it's a constant process, probably in many agencies, the constant process of educating everyone in the agency and particularly leadership about what our statutory obligations are. This is a statutory program, in terms of EDC, that's a statutory requirement. We're required to provide this to requesters if they request such. So it's really that education, right? And there are many facets to education, but I think if I had to distill it all down to the discussions that we would have here with other agencies, it's educating everyone on those obligations. And, well, those obligations come with price tags, right? We have to have resources to meet these obligations. So I think I just kind of leave it there, as education's the key.
Alina Semo: Okay. I still like my idea of getting the t-shirts that say, "FOIA is everyone's responsibility," that I think all the FOIA teams should be wearing, walking around the building. That's my vote. So my last question, and I know we're getting ready to wrap up very shortly, is what benefits you have seen from the approach each of you have adopted in terms of EDCs. Have you seen benefits and what would you say they are? Nancy, do you want to go first?
Nancy Chavannes-Battle: Oh yeah. Thank you. Both requests [inaudible 00:54:18] our records, our efforts provide the record, the high quality customer service. And it gives them confidence knowing that we're trying to be transparent and we're not trying to hide anything, and we're trying to work with that. And most of the time with that, it helps us to complete the estimated EDC, the EDC date that we provide. It allows us to give them what they're asking for and what they're looking for on time.
And it's not us communicating with them and letting them know where we stand. Nobody in my office minds being on the phone and talking to every requester, we don't mind staying on that phone, we don't mind emailing them to let them know that we're here to work with you. What can we do to assist you? If you need a narrow scope or out-of-scope. We use our website a lot. We list many records, frequently requested records we put on our website, we tell them where to go. We walk through with them. So we want them to know that we are here to be transparent, we're here to provide the service that they're looking for. And we all know that Postal Service is on the news a lot, so we try to make it seamless so they still feel like they're going to get what they ask for. So I think we benefited by knowing that we are there for them and we are there to provide what they want.
Alina Semo: That's very helpful, thanks. Greg, what about you? Would you be able to address a little bit about benefits you've seen from your proactive approach? It sounds like you take a very proactive approach to addressing incoming FOIA requests and providing EDCs.
Gregory Bridges: Yeah. We really started implementing these new procedures back in 2018, and since 2018 we've only been sued twice in those four years. Two of the fiscal years, we actually didn't receive any litigation. And then as far as the number of appeals, out of anywhere from 1,200 to 1,700, depending on the year, we've received no more than 45 appeals on any one of those given years. So I think that speaks to the quality of our responses and it isn't because we don't have the same watchdog groups, the same reporters, the same freelance journalists that all the other agencies get. We all know who they are. We're not going to name, we all know who they are though. So it isn't because we don't get those kind of people, it's because of implementing this new procedure and really establishing these response dates. That's a part of setting the expectations with the requesters. So immediately, once we got it going and got people familiar with it, we really started to see appeals and challenges to our final responses reduced significantly.
Alina Semo: Right. Those are great examples. Mike, can I pivot to you and see if you could address the benefits you've seen over the years with your approach?
Michael Seidel: Well, sure. I'm just going to double down on two of the themes that I've talked about, and it's the stewardship of our finite resources that we receive, and really establishing the rapport with requesters. And that's led to the number I just gave you, again, this fiscal year we've eliminated over 6 million pages of unwanted processing, so that allows us to serve the public better. So that's really how it all works together: automate, resource your staff to deal with the public, to talk to your requesters, frankly, and talk to them about your program. We find that a lot of requesters appreciate that. Not everybody's happy, they appreciate the frankness. Here's the reality, if you really want all those records, you're entitled to them, but here's what the number is based on our first in, first out queue. Let's have that discussion about what you really could use or what you really need. And if we can get there, let's work together to get there. So stewardship of resources and requester rapport.
Alina Semo: Okay, great. Thank you. Very, very helpful comments from all three of you today. I am extremely grateful for all the information you've shared with us. Definitely the struggle to estimate processing time is real, but I do want to add, and I think Greg actually referenced it earlier, EDCs are just an estimate. They don't have to be set in stone. And it's a great opportunity to set expectations, open negotiations with a requester as Mike has also described, and Nancy has also discussed. So any other parting comments, Greg?
Gregory Bridges: I was getting ready to say, this whole concept of EDC shouldn't just be for the requesters, this is something that you should be incorporating into your processes. You should be establishing EDCs just for your office's knowledge. It'll help you gauge your output, what can you expect to go out the door. So even though this does benefit the requesters in a big way, it can also benefit your office from managing your request in a big way too. So, don't do this for the purpose of the requests, incorporate this into your normal processing of all your records and it will definitely benefit you probably even more than a request in a lot of ways.
Alina Semo: That's really helpful. Mike, any parting thoughts?
Michael Seidel: Well, I just wanted to thank you for the opportunity to speak here today to everyone. I think I've pretty well covered everything I need to say today Alina. Thanks again for this opportunity.
Alina Semo:Thank you, Mike. I really appreciate your time. Nancy, any parting thoughts?
Nancy Chavannes-Battle: No, thank you. Thank you for giving us the opportunity to share our experience. I appreciate it and it was a great experience. Thank you.
Alina Semo: Thank you very much to all three of you. I'm clapping. Everyone else in the audience is clapping. Really appreciate your time.
We're going to pivot now to our next panel. Mike and Greg and Nancy you're welcome to stick around and listen about the great work of the FOIA Advisory Committee. I'm going to turn things over now to my colleague, Kirsten Mitchell. And I get a tiny break, right Kirsten?
Kirsten Mitchell: Tiny break.
Alina Semo:Tiny. Okay. I'm going to stay on camera though.
Kirsten Mitchell: Great. Thank you so much Alina. And thank you, Nancy and Greg and Mike, that was really informative and interesting. And thank you again.
Next slide please. Great, thank you.
So I'm Kirsten Mitchell and I'm the designated federal officer for the FOIA Advisory Committee. As Alina mentioned earlier, the National Archives established the committee in 2014 as a way of bringing together representatives of both agency and requester communities to examine and make recommendations for solving some of FOIA's toughest challenges.
One of the things that makes the committee special is that it allows OGIS to hold space for important conversations about FOIA's challenges. That builds trust and establishes a shared understanding that is the foundation for building solutions and fulfilling Congress' mandate that OGIS identify procedures and methods for improving FOIA compliance. So the committee is really a very big part of OGIS's activities, along with helping the more than 4,000 people that Alina talked about.
So I am thrilled to have four FOIA Advisory Committee members here with us today to discuss the committee and its important work. These members are: Alexis Graves, who is the FOIA officer at the U.S. Department of Agriculture, Thomas Susman, Strategic Advisor for Governmental Affairs and Global Programs at the American Bar Association, Bobby Talebian, Director of the Office of Information Policy at the U.S. Department of Justice, and Alina Semo, who needs no introduction. But in addition to directing OGIS, Alina also chairs the FOIA Advisory Committee. And Alina and Bobby are the two members of the Committee who are on the Committee by virtue of their positions. Everyone else, as Alina alluded to earlier, are nominated. Then the Archivist of the United States appoints those seats or those positions. In this case, it will be Acting Archivist of the United States, Debra Steidel Wall.
Tom, let's start with you. You have served on three of the committee’s four terms, and I understand that you have also re-reviewed the reports, the final reports of all four terms. So I'm curious, what are some of the themes and why was the fourth term different from the others and how?
Tom, you may be on mute?
Thomas Susman: Yes, there we go. I want to take a quick point of personal privilege to commend the previous panel because each of the members used the keyword in dealing with requesters, which I have been for over 40 years now, and that is "communication." And I'll single out the FBI. Long before anyone had any thought of estimated time of completion, I had a request and I would get a phone call every couple of weeks from one of the program people in the FOIA office saying 'We're still working on it. We don't know when we're going to find the information or when we're going to be able to go through it, but we want you to know we're still alive, basically.' And I have always felt that is the way to deal. I wasn't a journalist, I wasn't on deadline, I wasn't in litigation, but I felt that was the way to deal with requesters to avoid litigation and avoid frustration. So thank you very much all three of you for stressing that issue.
Okay. Advisory committees. Let me say that in my many years of dealing with the Freedom of Information Act, I still found that participating in the Advisory Committee provides an incredible learning experience. Having an array of both public sector and government officials with interest, expertise, and commitment provides a level of excitement and education that goes beyond developing the recommendation. So I want to start with that and urge any of those who are watching this or will be listening: apply for the next Advisory Committee. I realize that they'll make it more difficult for me to get on with all the competition, but it is truly a rewarding experience.
Onto the details. So there are recurring themes in all of the advisory committees. The first one just had a single recommendation on fees and I'll come back to that. But the recurring themes are accessibility and Section 508 and Alina mentioned recommendations that OGIS has made to Congress to try to help address those issues.
The second is technology, including search technology. And Mike stressed that issue in dealing with both the Records Management and also estimating the time of completion. FOIA oversight by both Congress and OGIS enhancing online access, and that includes proactive disclosure. And that's a theme throughout, because I think both on the government side and the private sector, any information that can be made available online, proactively, in advance of a request is that much less work the agency has to go through, and that much easier it is for the public to be able to understand what's going on in the agency and find information especially. And this last committee really focused on first person requests and I'll come back to that, but online requests, including proactive disclosure.
And finally, training and raising the profile of FOIA within agencies, sort of a 30,000 foot need for continuing to make sure that new government officials, as well as FOIA program officials, understand what FOIA is all about and have the same respect for it that most of the rest of us, and probably all of those who are tuned in today.
All right, the first Advisory Committee on which I didn't serve, I said had a single recommendation on FOIA fees. The second one made seven recommendations, the third 22. And at the end of that term, I was on those second two, it's 30 recommendations. I felt a little bit like the Patent Commissioner in 1899, who wrote President McKinley, a letter saying, 'You can close the Patent Office. Everything that needs to be invented has been invented.'
The truth is our Advisory Committee came up with 21 recommendations and broke ground in doing so. And I'm convinced that the next Advisory Committee, and I'll end with a couple suggestions, will do even better.
So let me mention the unique nature of recommendations of the 2020 to 2022 Advisory Committee. Access to Legislative Branch records, which Alina mentioned. We had a little bit of a debate early on about whether the Advisory Committee had jurisdiction to recommend legislation to Congress relating to its own record keeping and public access, and decided we did. And we'll probably carry that further in the next Advisory Committee because there's discussion that perhaps the Judicial Branch also ought to be, at least studied for the issue of access to records for the administrative office in the judicial center, not courthouses or judges' offices.
Classification and the Glomar response. That issue was one that challenged litigators and national security experts and lawyers. And there are some robust recommendations in that area, perhaps a little in the weeds for most civil society requesters, but nonetheless, pretty interesting recommendations. I'm not going to go into details because they're all on the website publicly available. And I urge you to read them in detail.
I mentioned first person requests, and I want to emphasize that, because it turns out it didn't take much time to focus attention on the fact that the agency with the largest number of requests is the Department of Homeland Security. And the largest percentage of those requests relate to individual requests for information about themselves. And among those, immigration-related, asylum-related files are the ones that get asked for the most. And that proved to be a challenge to this advisory committee.
We had a lot of experts talk to us, and I think that the recommendation was not micromanaged, but really took a big picture suggestion that there ought to be a closer, more intensive study of the situation that ought to be done by someone outside the government. You know, a think tank or, or organization that has expertise in both technology and FOIA. And DHS would benefit from having that kind of a deep dive into how better to serve the public that causes such a backlog and requires so much time and energy and takes up so much space in Iron Mountain for all the records. And we hope that can be done in the future.
And then reimagining OGIS, that was a new one. I mentioned oversight previously, and Alina did a nice job with the diagram showing us all the various things OGIS as Ombuds does. All quite useful and quite effective. But the working group that looked at OGIS decided that perhaps there could be yet a next step in empowering OGIS to look at records that are the subject of their mediation and ultimately, to make decisions on disclosure. And we recommended further study because there are a lot of potential unintended consequences, and I think certainly Alina and Kirsten know that my view for decades has been that the future of effective administration of the Freedom of Information Act in the United States is likely to be at office. So empowering OGIS in the future is something that we felt very strongly about.
The first Advisory Committee in 2016 recommended that the Archivist recommend to OMB updating fee guidelines. Okay, where do we go from here? Each of the advisory committees after the first one admonished the next one: pay attention to implementation. Okay.
Well, OMB finally did, after it was sued a number of years later and responded to only half of the recommendations made by the Advisory Committee. So we're talking almost eight years later, still unfinished business on FOIA fees.
Then there's section 508 accessibility. Every Advisory Committee discussed that issue. OGIS has made recommendations to Congress on that issue. Congress, not surprisingly, has done nothing. Unfinished business.
Then there's a recommendation in 2018 that the Federal Acquisition Regulation should require agencies when acquiring management and related software to consider features facilitating FOIA access technology as a previous panel discussed. OGIS prepared a business case and marked completed on its dashboard. Well, I think we'll revisit that dashboard in the future because completed means that OGIS has simply referred the recommendation to the appropriate agency or Congress in one case, but not that anything further has been done. And so I think that first order of business for the next Advisory Committee should be a deep dive into implementation. And also pick up the slack on technology and records management and really stress depth rather than breadth.
I think that it, the next committee has its work cut out for it, but I was really proud to have participated with the distinguished colleagues, including Alexis and Bobby and Alina, and Kirsten on the panel, and hope that we can see some of our recommendations fully implemented in the months and years to come.
Kirsten Mitchell: Great. Well, thank you, Tom. That was a good overview of the four terms thus far. I've taken some notes and we're going to come back to some of these things that you've noted, but I'd like to bring Alexis, Bobby and Alina into the conversation. Alexis, this was your first term on the Committee. It was Bobby's second term and Alina's third term. So if we could go in that order: Alexis, Bobby, and Alina. And talk a little bit about what Tom said. And Alexis, I suspect you're going to talk about the first party requests. If you could talk a little bit about that and your experience, and then we'll go to Bobby and Alina.
Alexis Graves: Perfect. Thank you for having me Kirsten and Alina. Alexis Graves. I'm the Director for the Office of Information Affairs at the United States Department of Agriculture. Couldn't agree more with all of the comments from my colleague, Tom.
Just a couple of other quick thoughts, particularly about this term. So I think the Committee members, particularly the Process Subcommittee, we were really committed to expanding upon, refining prior recommendations. And in some instances, giving prior recommendations a bit more teeth, so kind of picking up on that work from prior terms. And this of course was the case with the first party working group and the recommendations created from that working group.
We expanded upon recommendation 14, from the 2018-2020 term. For those who may not be familiar with that earlier recommendation, basically it was an ask of OGIS and OIP to have agencies identify common categories of records frequently requested under the FOIA and/or Privacy Act either by or on behalf of individuals seeking records about themselves. So of course the purpose was to establish an alternative process or, maybe in some instances, processes to provide access much more expeditiously.
And so the first working group, we really set out to find the categories of information that were frequently being requested, honed in on the area of immigration, and then set out to meet with the agencies heavy on the immigration records to determine a course forward. I think we charted a new territory by providing a recommendation aimed at hopefully improving processes within one particular agency. And so unbeknownst to us, I think we were kind of setting the framework for future committees on how to develop and how to execute a recommendation that is agency specific.
I think, certainly, there were quite a few lessons learned along the way. One of which is that certainly if you're going to do an agency specific recommendation, you have to start really early in the term. Two years goes by really quick. And there's certainly a lot of conversations that you have to have before you're actually putting pen to paper. I think agencies really should be very open and excited about this new direction of the committee. Look at it as another tool in your tool belt to possibly bolster some of the discussions you're probably having with folks, senior leaders on budget and resources.
And certainly my advice would be: allow the FOIA Advisory Committee to be your champion. I also think that this particular committee was invested in creating recommendations that could trigger immediate action by agency officials. So I think we definitely saw this with the Technology Subcommittee recommendations, number seven and number ten, because those were both aimed at improving agency websites. I love, love, love the simplicity of these recommendations. They are essentially a to-do list, an action list. I'm a girl who loves a good flow chart, a decision tree, a to-do action item list. And I think a lot of other FOIA professionals really appreciate this too. So those were just some of the common trends and themes I saw.
Kirsten Mitchell: That's great. Thank you, Alexis. Bobby.
Bobak Talebian: Thank you, Kirsten. And thank you for moderating and inviting me to the panel. And thanks to my fellow colleagues on the FACA. It's good to be here with everyone.
I echo many of Tom and Alexis' comments, but especially the first thing Tom mentioned, is that one of the things I enjoy most about, especially this committee, is the sharing of perspectives. I feel there's a lot of learning on both sides. I specifically sat on a number of the classification in Glomar and some of the process. You could see each side, the agency side and the requester side have these different perspectives coming in that we may not each be aware of. And that was really helpful in the discussions, and not just the recommendations, but just learning what both sides are experiencing and what they're thinking. I think it's a really invaluable process part of the process that largely occurs in the subcommittees, in those discussions. And a lot of great work.
I think each committee, what I've seen, has built on not just the work or the prior committees, but has become even more robust in the number of issues that are being tackled and you can see because the number of recommendations escalate as there's a new committee. And I think over the years the Committee's done a really great job of focusing on some of the really core areas of FOIA, which we all believe is critical and helpful for improving government FOIA administration, proactive disclosures, FOIA website. That's huge. At the Department of Justice, proactive disclosure has been a big part of what we've tried to push this policy and also the process and technology. And of course training, and that's critical to what we do at OIP and very invested in.
I will push back a little bit on the dashboard. I think some of those recommendations aren't as easy, and that's why there's a lot in progress, especially those that are aimed specifically for OGIS to do something or OIP to do something. But we are working on them. And I know a number of them. There's a lot of recommendations, so I don't have it off top of my head, but for example, the standard operating procedures, we've issued guidance on that. We're asking agencies every year: do you have up to date, not just standard operating procedures, do you have standard operating procedures and are they up to date? Because of course that's important too. And how often are you updating them? But examples like that, I look forward to building on the recommendations.
Many of them provide suggestions for what OIP and OGIS should look at and work on. And I very much value that. In my work, I want to hear all the different perspectives of agencies and FOIA requesters and the FOIA requester community. And we do that a number of ways, but the FACA's a really incredible tool to get that feedback from an equal share of very passionate requesters and very passionate agencies, which is also a reason I enjoy working on the FACA. I guess I'll stop there and hand it over to Alina.
Kirsten Mitchell: So before Alina jumps in, I just wanted to thank you Bobby, for bringing up the whole issue of learning. That's been one of the really very satisfying things to watch as both sides learn about, you know, the requesters learn more about agency work and agencies learn more about requester work. It's been interesting to watch, and it's been a great privilege to help facilitate those discussions. So over to you, Alina.
Alina Semo: Thanks, Kirsten. Hard acts to follow. I really don't want to take up too much more time to say: Tom, Alexis, Bobby ditto. I especially really want to just take a second to thank Bobby. He's been an incredible partner, in not just the FOIA Advisory Committee process itself, but also in helping implement many of these recommendations. I am extremely grateful for that partnership. Definitely deserves a huge round of applause. We couldn't do it without you. Sometimes OGIS just feels a little overburdened, because we've got all these responsibilities, but OIP has been an amazing partner in making sure as many of these as possible are getting implemented. So just a big thank you to OIP and to Bobby in particular.
Bobak Talebian: Thank you so much Alina. I can't tell you how much I appreciate our partnership and working with your office and your team. So thank you so much.
Kirsten Mitchell: Great. So this has been touched on a little bit, this next question, and Alexis did a nice job with talking about this, but I wondered what some of the challenges to coming up with these recommendations are. The challenges and considerations in formulating them. And I think I'll kick it back over to you, Tom, because you also briefly touched on this when you talked about the congressional records, legislative records, recommendation. But what are some of the challenges and considerations? Talk about the sausage making, if you will.
Thomas Susman: Sure. And that is the beauty of having such diverse membership on the committee. All of us know a lot about our area, whether it's national security information or processing FOIA or the media requesters or historians. And also the agency people, by and large, have extensive expertise with their agency and sometimes others that they may have worked in. But few of us have the breadth to make general recommendations that really are addressed to all agencies and be certain that we're not missing something.
And I will say that I've been on a lot of boards, commissions, committees, this last two years probably had more meetings and involved more time than anything I've been on. And part of it was because to meet that challenge of coming up with 21 recommendations, covering everything from Glomar to first person requests to legislative records required a tremendous education.
And so we had subcommittees, probably too many. We had four subcommittees. I was on two and sort of audited another one. And they met every two weeks rain or shine, whether they had anything to meet about or not. Then there were task forces or working groups under the committees. And the working groups not only met regularly, but had guest speakers from the agencies, from outside expertise, from academia. So the challenge was, I think, feeling comfortable that you know enough to make a recommendation, that's going to have credibility across the board and therefore needing to have education for all the members of the committee to come up to that level of confidence, to be able to vote "aye", when a recommendation comes up for a vote. And we did it, didn't we Alexis and Alina and Bobby? I mean it worked.
Kirsten Mitchell: So Alexis, do you have anything to add about the sausage making?
Alexis Graves: Yeah. Just to give people a little bit of flavor of the process, I'm going to talk from the perspective of the Process Subcommittee. Kirsten, you probably remember, but we started with a very, very ambitious agenda. I think we may have had 20 plus topics on the table for consideration for recommendations. And then, we took those topics and put them in buckets categories, attempted to map them back to existing recommendations. We ultimately decided some of those buckets or categories of information were probably better suited for other subcommittees. So maybe technology or legislation. Some we put aside if there wasn't enough interest among the existing members, and then others were explored, but because of time constraints, unfortunately no recommendation came to fruition.
As far as the drafting process for our recommendations, I had no idea what went into this. But we went through multiple and multiple iterations, lots of wordsmithing over the course of weeks, months. And equally, if not more important, you then, of course, want to ensure that you've done sufficient research to help create and develop the underlying analysis that supports your recommendations. So it is an incredibly detailed process. I think the biggest challenge is time. I know when I initially started, I thought, "Two years, that's plenty of time." But as you begin to explore certain topics and learn more about certain topics, you realize that that two year period in some instances only really allows you [inaudible 01:28:34].
Kirsten Mitchell: Bobby?
Bobak Talebian: Obviously I know we're talking about challenges, but one thing that I would say, I think, mitigated a lot of the challenges and really worked well, I think better than any of the years of the subcommittee, is that the subcommittees and the working groups really did grind and make that sausage really well before it came to the committee. I think that was extremely helpful, so that the discussions in the full committee were much more well informed and smoother. I thought that really stood out to me with this term of the committee.
Kirsten Mitchell: Alina, did you want to add anything?
Alina Semo: . I just had one comment that I just want to add to everything else that everyone said, again, a ditto. But I also just want to say for me as chair, the challenge has continued to be something that I continue to struggle with. Tom knows about this. I've talked about it with him many times in the past as to what the overall scope of the recommendations can be since the recommendations are, by charter, directed to the Archivist of the United States.
And how much further can we ask the archivist to go beyond his authority, which, of course he does not control FOIA writ large for the federal government. His responsibility is focused, of course, on records management for the federal government. So that's always been a little bit of a struggle. Tom has managed to take us out of that box and I think has helped us formulate the recommendations in such a way that they are broader, but still able to be effectuated. But I will say that was definitely a struggle for me that I always feel like I need to look out for... I'm wearing multiple hats. I have to wear the hat of the chairperson, but also looking out for the interest of the Archivist of the United States.
Thomas Susman: If I can get a word in, going back to the origin of OGIS, there was a question of where it should be within the federal government. Should it be in the Justice Department? Well, the Justice Department already has an Office of Information. Okay. That's fine. Should it be in GAO? That's a congressional that might be good for an ombuds role, but Congress was uninterested in expanding its own legislative authority jurisdiction. Should it be in GSA, cross government? No, that's bricks and mortar. They're not interested in information. And the Archives, that's the repository of records and information in the federal government and has a level of independence. And so I think that's why, ultimately, the National Archives was chosen as OGIS's home. And frankly, thanks to the Archivist and OGIS's director, you've exercised your authority with independence.
And so I think that's one of the reasons that those of us on the advisory committee have pushed the envelope perhaps a little bit in your perspective, because we think that OGIS really does have the broadest view in terms of coming up with new ideas and pushing recommendations. The Justice Department certainly has a lot of authority, but Justice Department also comes with, I think, the handicap of being identified as the agency that defends agencies when they're sued for denying information under the Freedom of Information Act. And I realize that's a balance that Bobby certainly has done a great job of providing a level of independence from the litigators. That's important. But in any event, I just want to observe that I'm hoping that future advisory committees will continue the view that OGIS just really has a broad responsibility across government.
As you know, in most countries, the ombuds role function is a parliamentary function, so that it is independent from pressure from the agencies. OGIS just doesn't have that luxury. But so far, you've done a hell of a great job of exercising what authority you have and gaining the respect of agencies in doing so. And I also want to comment, we've all talked about the number of meetings, the number of... What a phenomenally committed group this advisory committee was. Everybody showed up on those calls and we were Zooming from people who were in the cars or whatever. But staying abreast, keeping up with doing the writing, doing the research, making the phone calls. And it was just miraculous because everyone had a day job, and yet invested a tremendous amount of time and energy and intellectual energy in the process. I'm sure Alexis agrees, that's what made it wonderful for us to have that level of collegiality.
Kirsten Mitchell: So thank you for that, Tom. You actually set up a nice segue to my, my next question to Alina, and that is that there are several recommendations aimed at reimagining OGIS. Ultimately, the big one was that this whole idea of reimagining OGIS needs further study and that the Archivist of the United States should commission someone, we don't know who, to further study this issue. So Alina, I'm wondering what your responses are to the recommendations, and does OGIS need reimagining?
Alina Semo: So this requires me, of course, again, to take off my chairperson hat, put on my OGIS director hat, which I actually did have the opportunity to do at our most recent and final meeting in June. So my immediate answer is no. I don't believe that we need reimagining. Our approach from the very first day that we opened our doors as the FOIA ombudsman is we believe we have been serving at the capacity consistent with what Congress envisioned for us to do when we established the office. Several of the recommendations intended to reimagine OGIS are of concern to us, as I've articulated before. These recommendations would erode and significantly shift away from our role as the FOIA ombudsman that we've staked out for the last 12 or so years. Some of the proposed functions and duties would interfere with our role as ombudsman is what I've argued in the past. And it would turn us into an enforcer and an adjudicator, which we have not been up until now.
We are definitely supportive of recommendation number six, Kirsten, to which you alluded, described earlier, which would ask the archivist to commission a feasibility study, incorporating input from requesters and agencies to more deeply explore the costs and benefits of reimagining our office. An NGO or another nonprofit organization of some sort could definitely undertake that kind of a study and delve deeper into the pluses and minuses. There's definitely a lot more to uncover, and I'm excited to see that the next term of the committee may actually continue to consider that, as much as I remain fearful of whether I'll still have a job when we're all done, but I'm going to hang in there. An important caveat to all of this though is that we have not yet had a chance to present the acting Archivist with the Committee's final report and recommendations. We will be doing that in the not too distant future. We have no idea how far the recommendation will advance, that recommendation number six, but we at OGIS certainly very much are in favor of it. So hopefully that answers some of your question, Kirsten.
Kirsten Mitchell: Yes. Thank you so much, and thank you for also adding that these recommendations have not been presented yet to the acting archivist, nor have they been put on our dashboard, but that's all on our dance card for this summer. So I want to return to something that a couple of you alluded to, and that was talking about all the hard work of this committee, this prior term of the committee and all the frequent meetings. I'm afraid people out there who are listening might think, maybe they had thought about nominating themselves or someone else and heard that and said, "Oh, I don't want to get involved with that." What would you say to someone who's on the fence about whether they should submit a nomination?
Alexis Graves: I'll take that one first.
Kirsten Mitchell: Okay, thanks.
Alexis Graves: Yeah, no worries. Honestly, if you are passionate about records access, I cannot stress it enough, please, please nominate yourself. This is an opportunity to bring those issues, those topics that are near and dear to your heart to the forefront. This experience is also a really, really great vehicle for networking and establishing some really great professional connections. But most importantly, and I think my colleagues alluded to this earlier, but you will acquire new perspectives that can positively impact how you lead and support your current and also your future FOIA professionals. It has been, honestly, an absolute pleasure to serve as a committee member, and honestly, it has been one of the highlights of my professional career. So if you needed a nod or a push, this is the push to nominate yourself.
Kirsten Mitchell: I promise I did not pay Alexis and neither did Alina. Bobby, Tom, anything to add to that?
Bobak Talebian: I would echo all that. And just say, especially if you're passionate about FOIA agencies or requesters, you want your voice to be heard during these discussions. And like I said, hearing the different perspectives has been invaluable, so we want to get as many of those different perspectives as possible. And even if the recommendations aren't something that relate to your agency, there is a lot of great connections that are made, especially at the subcommittee level. And there's a lot of great cross collaboration with, for example, the CFO Council. And so it's an incredible opportunity. And so I would, yeah, highly recommend. We want NARA to get as many nominations as possible so that we can pick from a good group.
Kirsten Mitchell: Yeah. Thank you. And CFO Council, that's the Chief FOIA Officers Council, which Bobby and Alina co-chair. Tom, did you have anything?
Thomas Susman: Yes. I would only say that, as you and Alina both know, I've strongly recommended that the number of committees, subcommittees, task forces, working groups and meetings be cut for the next... And so for those of you thinking about, is it going to really take as much time? Because Alexis and Tom have been talking about all the meetings and time, I'm expecting things to be a little more manageable. On the other hand, I agree with everything Alexis and Bobby said. Look, it's an incredible opportunity for anybody. And I'm hoping that it'll get back into in person meetings, because in some ways, all of this Zoom has made it too easy to get together and spend too much time, whereas when you're in person, you've got a finite time. You want to get it done. And I think more likely to be able to focus attention when the committee meets in person. But I think that as everyone has suggested, there's still a lot of work to be done.
Alina Semo: I just want to echo Bobby's point, which I thought was really excellent about some of the FOIA Advisory Committee recommendations have actually flow directly to the CFO Council, the Chief FOIA Officers Council. And as a result of that, we have two committees that the CFO Council has formed, both the technology committee and the committee on cross agency, collaboration, and innovation, COCACI. I can't believe that I remember that whole acronym. So I was very excited to be able to be able to implement that. And Bobby and I are very excited to continue to lead those efforts. That's just been a really tangible, positive outcome of some of the great committee work that has been done.
Tom, I will say, yes, I agree. There were definitely a lot of meetings. In part, we let the first meeting of this committee term organically decide what subcommittees they wanted to break up into. And so it turned out there were four subcommittees this time, which was more than usual, and that probably added to the volume and the number of meetings. I think Kirsten and I are hopeful that we can keep it to a more workable two or three subcommittees in the next term. Working groups obviously can form at any level, and there are great opportunities for cross-subcommittee and cross-working group collaboration. There was definitely a lot of that happened this past term as well. We definitely hope that we will get some great nominations, but this is not a commercial for that. It is definitely a tribute to all the great work that this cast committee term has done to the prior committee terms as well. So thank you to everyone for all the great work you've done.
Thomas Susman: And Alina, as a commercial, go to the OGIS website, tap on advisory committees on the side link, and it is a wealth of information, not just their final reports, but committee documents, notes, minutes of meetings, papers that were written by members, presentations by guests, et cetera, plus we've talked about the... Why have I lost the word? The...
Kirsten Mitchell: Dashboard?
Thomas Susman: Dashboard, right? That thing in a car. Right. The dashboard. It really provides one stop shopping for everything that's gone in the past and all of the recommendations for the future.
Kirsten Mitchell: Although it is in need of an update. And as I said, that's on our summer dance card. So before we sign off or at least move to the next phase of the meeting, is there anything anyone would like to add? Any final words, thoughts? Okay. I'm-
Thomas Susman: Thank you. And thank Alina and Bobby for... When Alexis and I talk about we were at maybe two committee meetings or three task force or whatever, y'all have to cover all of them. Plus, Alina has to run the ship when the committee meets and keep everybody under control and keep us coloring within the lines. Kirsten is a manager of... I can't imagine how many emails you get through the transom of these issues. Y'all have done a wonderful job of managing and administering, keeping the advisory committee on track.
Kirsten Mitchell: Well, thank you.
Alina Semo: We really appreciate it.
Kirsten Mitchell: And it's a bit like hurting cats, and I say that in a fond way because I love cats. But anyway, thank you.
Bobak Talebian: Thanks to both Alina and Kirsten, especially your leadership, Alina, on the backup.
Alina Semo: My pleasure, thank you. Well, Alexis, you're going to reapply, right? Not to put you on the spot, but you're thinking about it, right?
Bobak Talebian: Me or Tom?
Alina Semo: No, Alexis.
Bobak Talebian: Oh, Alexis.
Alina Semo: Yeah. I'm putting her on the, on the line.
Alexis Graves: Well, I was just sharing with Kirsten, I said we have a major initiative that we're deploying. But if you will have me at another term, I would love to serve on another term.
Alina Semo: Okay. All right. Keep your-
Alexis Graves: If you’ll have me.
Alina Semo: Yep, absolutely.
Kirsten Mitchell: Okay. Well, thank you so much, Bobby and Tom, Alina and Alexis for being in this conversation with me. I've really enjoyed it, and I am turning it over to Alina.
Alina Semo: Great. Thanks again. Thanks again, Kirsten. You did a masterful job as always. If I could ask Michelle please to advance to the next slide, we are now reaching the public comments. Part of our annual meeting. I am proud to say that we're pretty close to on time. So that's great news. Congress has instructed us that in conducting our meeting that is open to the public on the review and reports by the office, we allow interested persons to appear and present oral or written statements at the meeting. We will open our telephone lines up momentarily to give attendees an opportunity to present oral statements. As I noted at the top of the meeting, if you're watching us via our YouTube, you will not be able to provide oral comments during our public comments section.
As we noted in our Federal Register notice, each individual caller will be limited to three minutes each. An important reminder with regard to oral comments, this is not the right time or venue to ask questions about a specific FOIA request or set of requests or specific issues you're experiencing with the particular agency that are unique to you. We are happy to have all points of view shared, but please respect your fellow attendees and keep the conversation civil and on topic. So at this point, I'm going to turn to our event producer. Michelle, if you could please provide instructions again to any of our attendees for how to provide oral comments via telephone.
Michelle: Absolutely. So ladies and gentlemen, as we enter the public comment session, as Alina indicated, please limit your comments to three minutes. Once your three minutes expires, we will mute your line and move on to the next commenter. Each individual, again, will be limited to three minutes. All right. So we're moving to the first commenter in queue. Caller, your line is unmuted. You may go ahead.
Bob Hammond: Hi, this is Bob Hammond. Can everybody hear me?
Alina Semo: Yes.
Bob Hammond: Hello?
Alina Semo: Yes, we can hear you, Mr. Hammond.
Bob Hammond: Yeah. Great. Thanks. And listen, I first like to echo everything that Tom said. The FOIA Advisory Committee this year was absolutely awesome. Committee members, Dave Cuillier, the whole team. I appreciate the recommendation for proactively posting FOIA logs. There is massive, massive error in the annual reports. It's just massive. And if you force the logs to be publicly posted, that will be discovered in real time, and Alina and Bobby can do their FOIA compliance oversight jobs much better than they are. We got into public comments late, so I want to ask that we have the full 15 minutes. If there's nobody behind me, let me talk. If my time runs out, I'm going to call back in. I've submitted 17 public comments. Some of those got posted as late as this morning, others didn't. And I admit I submitted some of those late. But I posted in the YouTube chat how to get those. You can review them at documentcloud.org. Just select view public comments and search by user: Robert-Hammond 106693, and perhaps OGIS will get those posted.
I have been asking the same question for the last three meetings, and I have some additional ones this time. In my view, the biggest problems in FOIA are a lack of oversight compliance and a complete and utter lack of mediation. I don't fear that that's the bad people. It's a lack of funding. NARA has not funded OGIS. The OGIS budgets have gone down. Back in, I guess, it was 2000, I don't know, 13, they had three mediators and they were doing three to 400 mediation requests per year. I expected Alina to defend her report saying she closed 4,100 cases this year. That's impossible. She still has three mediators and the money has gone down. They need more money. The problem is that they never ask for it. They don't ask for it in public and they don't ask for it in the budgets. I've submitted the same question, and I'm going to ask Alina. One word answer, what is the dollar amount that you need for FY 23 to effectively accomplish your compliance, oversight, and mediation missions? What's the dollar amount?
Alina Semo: Mr. Hammond, we're not answering questions at this time. We are accepting statements, oral or written. Thank you.
Bob Hammond: Yeah. So you don't answer questions. You don't ask for money. I spent two years trying to get you money and you won't even tell the American public how much money you want, how much money you need. You're grossly underfunded. Bobby, may I ask you that same question?
Michelle: Mr. Hammond, thank you so much for your comment. Your three minutes has expired. We're moving onto the next caller. Thank you.
Bob Hammond: Dialing back in, dialing back.
Michelle: All right. So let me see if there are any additional callers. All right. I don't see any additional calls at this time, but I know that we wanted to go to the chat box.
Alina Semo: Right. So thank you, Michelle. Martha, our deputy OGIS director, I'm going to ask if there have been any chat comments that you would like to read out loud.
Martha: So there are lots in the chat, but I am not seeing any general comments that don't speak to specific individual issues or comments that have already been submitted via written public comment. However, I do want to urge everyone to take a look at the public comments that we have published on our website. And as Alina mentioned, there will be more published in the coming week or so. Thank you.
Alina Semo: Yeah. Michelle, if you could go to the next slide, please. This is just to remind everyone if you want to submit additional written public comments, please submit them to this email address, email@example.com, and we will consider posting them. And at this time, I am going to wrap up. As we have indicated, we are only allowing three minutes per individual. Michelle, we don't have any other callers waiting in queue other than Mr. Hammond, correct?
Michelle: Yes, that is correct.
Alina Semo: So at this time, I just want to thank, again, our panelists. It was a great discussion that we had on two very different topics, but both equally important. Despite all the challenges presented by the ongoing pandemic, I'm happy to report that OGIS has remained 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 that they do 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. I want to thank all of you today for joining us for our annual open meeting. I hope everyone and their families remain safe, healthy, and resilient. And thank you, have a great day.
Michelle: That concludes our conference. Thank you for using Event Services. You may now disconnect.