Second Annual Open Meeting Transcript
Note: Audio was disconnected for the first 5 minutes or so.
May 18, 2018.
Unfortunately the mediation team is unable to be here today as is our staff assistant Theresa Brady and attorney advisor. Our deputy director is currently vacant, but we are able to assist I am pleased to have the opportunity to outline our fiscal year 2017 to work with you today. Our annual report is available on our website. I am going to begin today by discussing our res dispute resolution program. I will cover our compliance work and highlight the trends we are observing. Next we will discuss outreach and collaboration effort and development of recommendation to improve the FOIA advisory by the FOIA committee. I will talk about the request your opinion about the dispute resolution services by the FOIA public liaison. We are going to wrap up by talking about our expectations for the coming year. After my presentation I will invite our panelists to talk in greater detail about the work of the FOIA advisory committee this year. After the panel we will open the floor for public statements. As most of you know we have experiences on dramatic and sustained increase for demand resolution services for the enactment of 2016. Are you prove ‑‑ particularly in the earlier stages benefits of by giving us the opportunity to better understand the agencies policy and practices and the interaction between agencies throughout the process. Remember the request for assistant to reenact the ‑‑ as a result of our team effort the staff was able to close more than double the piece ins fiscal year 2017 than 2016. On the second chart on the slide in front of you we are not able to provide some of those with complex issues as quickly as we would like F. you are interested in the program I encourage you to look at the quarterly customer service posted on our website. As you will see from the metrics posted from the first two quarters of 2018 we continue to see a sustained increase for our services compared to before the passage of the ‑‑ act of 2016. We are not for sure that we put systems in place to simple requests in a timely fashion, but our backlog of cases more than 80 days old continue to grow. We do expect implementing additional strategies will help us reduce our backlog in the coming quarter. OTIS has offered free dispute operation training for free FOIA government officials since March of 2010. We continue to provide training biannually to help FOIA professionals help involve and dispute. Our training program and dispute resolution skills for FOIA professionals is extremely well regarded and in fiscal year 2018 registration for both sessions filled up within 24 hours of their announcement. We are providing agency-specific training sessions at the request of a various agencies including NARA as well as the Department of state and the U.S. citizenship and immigration services. We have a number of events on our agency-specific resolution training session but our dance card is never too full so we have welcomed any other interest in any other agency. We had a very busy 2017 with custom and immigration enforcement, and the protection bureau and the Department of homeland security chief officer. Ice and CBP followed our usual methodology. We reviewed agency materials including written policy and procedures and introduced FOIA professionals and accept the sample of case filed. We made targeted recommendations with the goal of improving the FOIA improvement. The assessment was slightly different while this assessment was based on a real policy and procedures and interviews. We measured the performance of the DHS privacy officer who served as the chief officer against the chief FOIA officer with respect to implementation oversite and customer service. We are also very excite that had fiscal year 2017 mark it had beginning of the great collaboration with NARA chief records officer who through our participation in the annual reference management self-assessment. The 2016 R NSA and allowed us to gather near comprehensive data with FOIA policies and procedures of all of the 117 agencies subject to FOIA. Agencies response to these questions create add baseline of the understanding of the relationship between FOIA officers and federal agency and for the systems agencies do or do not have in place to eye If I that can be practically release it had questions and responses have furthered our respective on observations on our agency compliance report using program management and use of technology and communication with requesters. It leads us nicely into a short discussion generally. We recognize there's no one size fits all to administer a FOIA program. Each agency records are unique and accept management and recordkeeping and record retrieval patrol sis we are going to ‑‑ this program not only shares three characters properly manage the resources they have. They use technology effectively and three they communicate well with requesters in terms of management or assessments continue to show that good management practices including clear standard operating procedures helps improve assurance that the staff have a sure understanding of their roles and FOIA program contributes to two successes. We have also observed that investment in technology. Including Technology to improve tracking and E-discovery tools that duplicate records inform discussions about the request help agency reduce their backlog, and respond to requesters in a more timely fashion. We have observed that agencies use their technology and FOIA process successfully when they have sufficient IT support. Finally we note that improving the qualities of communication with the requester decreases the likelihood of the dispute and reduces the risk of litigation. They can made at a low or no cost to the agency. Since OGIS opened their doors there's a components of the review of policy and procedures between passage of the act of 2016 and end of fiscal year and OTI S reviewed updated regulations in the federal register by 50 Departments and agencies in fiscal year 2018. We have reviewed nine additional regulations and look forward to the remaining organizations once they are published. Moving onto outreach and collaboration work we were very happy to be able to launch our website in May 2017 we joined in our family and the relaunch came with an updated URL that help it is public better understand our place within the national archives family. In addition to the fresh look, the back end of the website got an update gives our new website better navigation tools and make it responsive to mobile devices we are looking for ways to improve our website and encourage you to e‑mail us any suggestions. In fiscal year 2017 we also organized the annual sunshine week at the national archives. We are pleased to share with the audience the conversation the archivist of the United States, and library of Congress about the role of open constitution and open government. The 2017 sunshine week celebration featured well known advocates includes Ralph Nader discussing FOIA at 50 the 50th year anniversary of the freedom of education act and the individuals using technology and innovative ways to open government. We also held our first annual meeting right here in this venue and we are thrilled to host the meeting of the chief FOIA officers counsel in the July of 2017. During that officers council meeting agency personnel offered feedback, and we developed in coordination with the department of justice information policy OIP which alerts requesters to the availability of dispute services as well as the availability of the public is on and FOIA service centers for the meeting we also organized a panel to talk about ways of improving customer service. The panel included OTI S dispute regulation team leave and agency FOIA public liaison and requesters. The panel was moderated by the director of OIP. Moving on OTIS recommendations as we reported last year members of the 2016‑2018 term were very busy. They were very lucky to have four members of this committee to join us today in a few minutes the committee brings together FOIA professionals collaboratively identify the greatest challenges and develop recommendations for the office to the United States. At the end of fiscal year 2017 the committee was still in the process of developing and improving the recommendations to the archivist and on April 17, 2018 they were still in the process, they concluded the work on April 17, 2018, and they approved our final report and recommendation. The report which is available on our website includes the number of unanimously supported recommendations to improve with the administration of FOIA including the recommendation they published a list of best practices identified by the committee. We look forward with working with the archivist on these recommendations.
The remainder of the clear 2018. I wanted to talk about how OGIS allows us to identify potential issues and how we can use our tools to address these issues to illustrate this I am going to talk specifically about an increase in requester confuse about dispute resolution services offered by O T I S and agency FOIA liaison, FFPL. The FOIA improvement act heightens the visibility to availability of dispute resolution services. Shortly after the law enactment we notice add large amount of materials and calls intended for agencies that we identify the source of this confusion is unclear or in precise agency correspondence with requesters and in response we took several steps we hope better explain the agency public liaison in our social media and other forums and aimed to reduce requester frustration by enjoying the sufficient use of FOIA resources when our dispute resolution team noticed letters that are ‑‑ we directly contacted the agency to talk about how they could improve the quality of their communication. You also worked at OIG to develop joint language for agencies to use in their response letters and that as I mention earlier they gathered feedback on the language and publicized it's availability during the session or the chief officers counsel in July of 2017. We also integrated discussion about the laws your requirement to alert requesters of dispute resolution services and into our training session and stressed the importance of clear communication. We also created a hand out that describes who we are and what we do. The hand out includes a chart that describe it is kind of assistance we can provide versus the assistant agency FPL's are able to provide at various points in the administrative ways in the process. You can find this out and the resources section of our website. We are shared it widely via our blog and our twitter. As a result of these combined efforts I am happy to say our dispute resolution team has notice add decrease of the materials. We definitely have more work to do on this issue and we look forward to exploring however tools can help improve understanding of the process and efficient administration of the FOIA. I wrap up my presentation I want to give you an idea from OGIS for the remainder of the year 2018. First we have a number of public events coming up and we hope you can join us. They are going to be right here in the MC GOWAN Theater. We will host the next meeting of the chief counsel. We will host a forum on immigration record with the U.S. citizenship and immigration services and other agencies that work on immigration records. We are also already planning for the next time the FOIA advisory committee and we will kick off our new term with the first meeting on September 6, 2018 right here ton stage and June 1st is the deadline for nominations and this is please reply early and check for these and other events. Our next report is the assessment of the U.S. postal service. We expect to issue of substance ton use of interest letters of your relief in fiscal year 2016. One of the benefits of this assessment is we look at policies and procedures from several ‑‑ that broadens our compliance. Our first issue assessment will look at the following agency correspondence notifying the requesters of dispute resolution. I am also very to talk about the rollout of the educational vehicle that we are calling the FOIA observer hopefully we will think of a catchy phrase. ‑‑ issue an advisory opinion that can facilitate the requesters and agency. OGI S intends to modified advisory opinion power to issue opinion that is the most common dispute and complaints and trend that is we uncover through our dispute resolution practice and they are most likely to lead to litigation. Our plan is to build a body of advisory opinions available online for both requesters and agencies to consult that will help head off disputes before they fester or lead to litigation. Thank you all for your undivided attention and continued while I am wrapping up my presentation I would like to ask our panelists to start coming to the stage. I have further information on the screen so you know how to contact us in a variety of ways and I ask that you hold any questions until the end we have reserved time for public comment following our panel presentation. Again you can e‑mail any statements or comments to OGI S at NARA.gov. Our live stream viewers can submit comments using the chat box. She will summarize any substantive comments we receive during the public comment period thank you. I want to welcome the 2017‑2018 FOIA committee members. All of them worked very hard. They are kind enough to join us today. Of all the work that we did and start publicizing on the great recommendations that we made to the archivist and the number of best practice that is we want to wisely disseminate. I want to briefly give‑‑I think this worked out a little bit of an order in which everyone will talk about the section of the report and we are going to try to make this pretty lose and open. We will welcome questions at the end or perhaps during the middle of our discussion if you just can't wait. So first to my very right at your left is Tom Susman who is the director of the he join it had ABA after 27 years as a partner in the law firm and before that he was chief counsel to the Senate subcommittee on administrative Tom's involvement with FOIA began as a member of the Department of justice in 1968 he advised federal agented sis regarding the new law. If I do dare say sometimes people refer to as the grandfather of FOIA which is an honor. I think you should take that as an honor. He was there from the very beginning and the principal staff lawyer of the 1974 FOIA amendment. Should I continue with every bod boy yeah? I will a JD from the University of Texas School of Law and he was an editor and chief of the law review.
Sarah Kotler is a director of Food and Drug Administration of FOIA. She's overseen a 70 % reduction in FOIA's backlog. Improved processing efficiencies across the agency, and increase the number of records and worked with the requester of community to improve the FDA toy yeah program. Prior to joining the division of freedom of information Sarah was an attorney with the FDA office of chief counsel and an attorney of private practice, holds a BA and JD from Harvard law school. SEAN Moulton is joining us as the current open GOVERNMENT program manager at POGO to build a more open and accountable administration. Before joining POGO he worked on government and accountability issues with special attention to FOIA issues and spending transparency and environmental right to no policy. He has authored many reports testified before Congress and submitted Congress on proposed regulations and helped launch websites. He has led the center for open government work for 13 years he worked at friends of the earth and EPA he's been everywhere. SEAN was inducted that was part of your bio. You let me skip that you were inducted in 2007 from the University of Maryland. Logan Perel to my immediate right your left is an attorney advisor with the office of chief counsel foreign assets control at the Department of Treasury. He worked previously for the office of general counsel at the Department of homeland security where he provided legal advice and Department intelligence enterprise an information safeguarding effort including FOIA and privacy act related to the Department's intelligence activities. He previously served as assistant counsel to inspector counsel and privacy act matters. Logan holds a BA from the University of Florida and the JD national NLM from the Georgetown University law center. Thank you for allowing me to read that I appreciate it. I think as we talked, Tom, if I may let you have the floor first you are going to share with us some insights about the proactive disclosure work that the committee has done.
>> I do want to start by saying that it would be very exciting and an honor to be part of the advisory board. It's remarkable that a group equally divided between government participants and public sector requesters, media, business not shrinking violates any of us and to reach a consensus at the end on some consequential recommendations and I think is remarkable and accomplishment. I think we are all quite proud of. Just to tell you how we got to these various subcommittees for a brief background the advisory committee met on the stage and we were all sitting around a U shape table and we started by trying to brainstorm what are the issue that is we should be addressing? I think Amy Ben fete brought out a white board and people went up and put what are the issues and we had lots of different issues. Early on we sort of di decided we wouldn't look at legislative proposals in part because that was less likely to be fruitful given Congresses remarkable track record of legislating these days. But also because Congress had just finish add FOIA reform bill a year before and was unlikely to revisit it quickly. It turned out for those collating the various results and putting together a summary of where we wound up the three subcommittees emerged proactive disclosure and search and basically I guess efficiencies in administration. I was on the proactive disclosure subcommittee and in some ways our work was a bit like the full committee in terms of choosing our issues. We started with the pretty obvious one and that is section 508 of the rehabilitation act. I say pretty obvious because the previous committee a two year committee on which I did not serve struggled with the issue of proactive disclosure in section 508 and reached no conclusion and so we thought well let's give it another try perhaps we would not succeed. Perhaps we would have some possibility of moving the ball forward, so that was one of the important issue that is we took on from the first meeting and then the next step was to figure out okay fine we have got this issue and I will come back to what the recommendation was but what elsewhere do we go with proactive disclosure. The answer is let's try to be very specific and very practical and give the agency something they can work with not only like the white board with the postage we began the process of surveying the communities out you know the nonprofit groups advocacy groups you know what do you think should be proactively disclosed and I was running through my folder and in preparation for this we just got lots of different charts and e‑mails coming in and you know that here's one communication with Congress, FOIA logs and visitors logs, and federal advisory committee information, and you know one thing after another OGI S had made recommendations about categories of records that included significant on‑line records released under FOIA and reports to Congress. We had a long list and it's a spreadsheet was set up, and again we went through the process of okay let's try to figure out some criteria it's not totally so it doesn't look totally subjective and so we came up with a list of things that we got for example with a large amount of redaction would be necessary would be highly burdensome and it's very useful to have this information public. We went about this process and members of the subcommittee on proactive disclosure voted and we had some that were obvious that yes of course you know we should include we had some that were eliminated pretty quickly office of legal counsel, and the agency-specific engaged in litigation so off the list. And we struggled with some in the middle and I will get into more detail all right so let me get to specifics section 508. It turns out that you know that is a problem and everyone on both sides recognize it's a problem because it's potentially conflicting laws and you have the freedom of information act make this public on request unless there's an exception and then you have not and exception statute but a different regimen completely that says when you make information or post information it should be accessible to the disabled okay. So what happens when their information that the agency should be posting but it's not accessible or worse yet what happen ifs it's already up on the web and not accessible. Now, case law didn't help and we had a presentation from the access board not terribly helpful. We did some research on the subject and surveys various agencies and concluded that the one key to striking that balance was language in the in section 508 that said we are making this information accessible is an undue burden on the agency not defined but an undue burden than the agency does not have to make it accessible to put it up or leave it up online. We focus on the undue burden standard we were caution to not give legal advice by Sean or I think those of us in the requester community would like to have perhaps put our finger on the scale and more disclosure despite 2 lack of accessibility and the fairly clear. We leave it to agent by agency and we leave to general counsel but we stress don't take information down to make it accessible that issue came up perhaps in the last year in one of the agencies if you are got a large quantity of information and one of our members is a historian at George Washington University very concerned about historical documents. It would have taken a lot of effort and energy to make accessible and put them up and leave them up and let the public know that there are if a person who has site impaired would like access that they can contact the agency and then remediation can be done on a specific bases. I thought we did a pretty good job of providing assistance to the agency. On the subject of the long list you know you can read and I definitely urge you all to go to the report and look at it. It's got you know unclassified agency reports to Congress, organization charts and directories, records schedules, statement of administration policy and role bill memorandum, FOIA logs, one thing after another. When we got through with that list we tried to capture our criteria and so we put best practices identifying category it is ones we identified clearly don't represent the full universe, and so consider whether routine activities that you know are useful where it has legal effect and it would be important regarding enforcement whether redaction is needed, and you know does it lead to an understanding of the agencies activities especially in enforcement area you know consumer choices and information. Lots of very good criteria that when an agency is trying to decide if it's worth doing this or not it can make that decision. One of the issues that we spent a lot of time are FOIA logs because we understand the technology sometimes can be a problem with that and we do believe that is an important those are important information to provide the public. One area that did not get a consensus and wind up on compromise, and I will end with that one is that the issue of agency contact directories. In some of the earlier reports it's clear that there are at least half a dozen agency in some agency Department's that had full employee directories with contact information available to the public online and in the early days of FOIA in the 07's I remember some of it. There's some litigation over the defense Department directory. The plaintiff is because there was no consideration of an unreasonable invasion of personal privacy based on having a telephone number you can call to reach someone in government who's being paid by our tax dollars. On the other hand I think there were agency representatives who felt that it was intrusive to privacy and that they had discussion with some technology people who felt that the wholesale publication on‑line of agency staff e‑mailed would facilitate expanding, spoofing or hacking or whatever and their security people were very concerned about that. So our conclusion was basically organization charts need to be public and you have to have a window into each office so that you can contact somebody and so the head of an office not just the Department level and the pointed officials but those who have responsibilities for serving the public you need some way to get in and it doesn't have to be a hundred percent of all the staff that was our conclusion and compromise and it worked well. In the end the subcommittee unanimously made a set of recommendations to the advisory committee and they are all in our report.
>> Great thanks. I saw you nodding a lot is there anything you want to add?
>> I think Tom did a great job of summarizing both the process and it was a lot of common ground I was impressed and I think encouraged that even people coming at the FOIA process from completely different perspectives and group that is want the information and I wouldn't say groups that don't want you to have the information but the one that is have to do all the work to get it for you we found a lot of areas that is we agreed on. There were contentious one there is where one that is didn't even make it through that kind of voting process that Tom is talking about. They were seen as too burdensome and not enough benefit was another thing. You know or there was some obvious conflict privacy or something else that we thought would be difficult to get around in terms of a simple proactive disclosure recommendation.
>> Sarah I think you are next. I think you are going to talk about efficiencies?
>> I think I was going to talk about ‑‑ let me back up for a moment one of the three subcommittees that Tom mentioned was the efficiencies and practices. I was on the practice disclosure committee as well and truthfully on day‑to‑day on efficiency practices was near and dear to my heart. I was interested to see what that subcommittee was able to do and they use a very detailed methodology of collecting data and crunched a lot of numbers and looked at various agencies were doing and came up with a group of agency that is they could of different sizes they could get data and information from and then conducted interviews and survey with those agencies. There's specific recommendations on the report. I was personally pleased to see that I felt my agency was already doing some of these thing. Working with requesters early in the process to clarify and make sure everyone is on the same page in terms of expectations of a request. Or things like making sure that people who work in FOIA in a particular agency can back each other up and maybe have different types of teaming structure so you are not in a situation where someone is out of the office for the period the requester is left those kinds of things but also at the same time making sure people make specialized in a certain area as well. They are very different way that is one can go about structuring FOIA offices they were also practices involving had a best make IT decisions or things having to do with records or tension. If FOIA for my perspective those are all very good ideas but I think for most of us it's easiest to implement ideas that are within our control, so for the way it's set up at my agency the records Department and the ID people I am not part of their organizationally and they are very helpful and nice people and want to help succeed and clearly not their mandate, so for me the best practice ins terms of communicating with requesters and how to organize FOIA teams and how to back each other up and those are the best practice ifs I am not already doing them I can do them tomorrow. I can make that happen as best I can and direct people to do them. Whereas practices about you know obtaining certain type of product that is' something a little outside of my area I can try my best to make it happen. I don't have control of that as part of the processor again my IT people are wonderful and very helpful but I can't always say this is the way we want to do it. We want to post all of these things to more row and make them 508 compliant and get them up there tomorrow. I think for me that's what it came down to I know that to the extent we currently aren't going to do that I want to try my best and I think we will have more success like posting the FOIA logs that is something I can believe make happen. It does involve people outside of my immediate purview where there might have been other recommendation that is would be a heavier lift without you know someone championing the idea from another part of my agency. That really calls to mind something that keeps recurring as a challenge and that is what you mention FOIA records management, and IT being in different silos in the agency and at least you are talking to them and which is important, but for example coming back to proactive disclosure a lot of the challenges lie with the IT acquisition of platforms to be able to make these disclosures, and we have seen in certain examples justice Department and the foreign agents registration data and that if the wrong decision is made you the option is really you can't readily be made available even from a FOIA request, but with ease without reprogramming for example, and so I think there is a message there and perhaps one ought to go down and make a note of for the future of how to get the IT people more engaged at the front end with the FOIA and records reSEction people because you have with the electronic records the same set of issue which is now as soon as I mention IT I am going out in my Department because my age begins to show my lack of familiarity with a lot of technology, but I have written it as a problem. I just want to jump in on that two things. One on the 508 compliance one of the real ironies we found in looking into this was that a lot of these documents were 508 compliant and they are inside the agencies and are 508 compliant in case agency has people that need readers or things like that and in the processing of these documents to release them to the public or to I should say a requester they that 508 compliant is stripped away. If their electronic records the process by they redact and make sure those redactions can't be undone strips away all the metadata and all the 508 compliant and so they start out 508 compliant in releasing them we make them less accessible. It was a true irony and it was because of the Tom saying the IT system that is we had that's how they worked. That is how they did that and it was one of the emphasis was to figure out a way to preserve through that FOIA process and preserve that 508 compliance in the future and obviously when you kind of give IT people a task someone is going to figure it out so I don't think this is insurmountable challenge this is one that I think the IT community hasn't really known that they needed to solve for government, but the other thing I wanted to pick up on the resources and efficiency committee with Sarah and I did want to underscore that we did we dug through a lot of the FOIA performance data to try to identify agencies of sort of varying sizes mostly large and sort of medium that had done some great performance and you know either process the lot or brought their backlog down over a period of years and then when we went to them and basically were saying how did you do it? What were the key steps and for the different agencies it really was a wide variety of things they did, there wasn't one magic bullet and it was a series of steps, technology was one of them and that's a big scene through those big practices management turned out to be than a little bit critical and that surprised me. Some agencies aren't using sort of this multi-track still of complex requests versus simple requests and some agencies have more than those two and there's expedited three tracks but some agencies use more than that to help make sure that everything keeps moving and that the backlog doesn't get stacked up by that's going to take so long to process. In terms of staff. The subcommittee someone through tout idea but maybe you can have a and open contract for FOIA assistance to a lot of requests like the state Department at one point and other agencies have experienced and you need to bring on people for a short period of time the idea was either to have an open-ended and definite delivery contract that any agency could tap into contract yourselves and start that process which could take months or do sort of a get that personnel much faster.
>> I also really like that idea because we actually had looked into that in the past can we get contractors that's something related idea that you all came up with what you program staff through some kind of FOIA detail. I think number one it helped the relationship between the program staff and person enacting them to understand that part of the process but also they then might be people who could help out in a situation where suddenly you needed some new people to help out issue in you might find someone who turned out and really liked FOIA is this something you can get into and people who enjoy it and don't want to give up the position they had and a do it on an as needed basis. The program the preparing information searched what it takes to find process and release information it might actually change the way they manage their own information to make it easier that message would start getting back to more of the agency and thereby making the FOIA Department a processing easier going forward. One of the things we didn't tackle it was underlying everything we talked about but was resources just we were always thinking about how can you be efficient with the resources you have. How much resources does and agency need and how do you prove that and how do you get those resources and so we really focus on managing the resources how much do you get and how much do you get we left as each agency is going to figure that out right now. I do think it's one of those larger questions if you are not getting enough resources as a FOIA Department you can be efficient as possible and you will still continue to fall behind. I am writing it down. The I wanted to bring up it was and I think it's going to lead into Logan’s comments I don't think there's a magic bullet out there in terms of technology there's big pieces that will help them manage their information there's two different way there is' the library of information that is being requested then there's also managing your request and you know there should be agency should be figuring out better ways to do both. And better systems you know that to manage requests coming in we really would enable agencies to give people better answers maybe even access to sort of on‑line electronic updates from where they are where they are request is and how long it's going to take and the estimated time of completion all of that is out of their hand and the requesters get that automatically. The other thing that is really great is that some of these systems actually enable you to track the number of pages that are being processed and it turned out to be a real management tool from some agency that is it wasn't just about closing requests but one person could close out 20 requests but if they were very simple requests it might be only a hundred pages if they closed out and another person might work on one requests during that same time period but process thousands of pages and so coming up with that kind of common denominator and using that then to figure out why were some requests taking longer and why were some pages harder to review than others and then again figuring out how you allocate your resources for future requests was interesting to me, but then the much I think the much larger thing and we had presentations. I will let Logan talk about this. How do you more quickly find the information that people are requesting because that in and of itself seems to be such a time sync for the agencies, and for many agencies it's out of the FOIA Department hands, but it's already there. We came up with four recommendations and through three of them technology is the driver and the fourth was on the accountability side. Technology costs all the committees really that we focused on and same thing for research. We sent out from effort we are going to identify the best source of technology and pup pump it up and appraise it. We tried to undertake that effort and couldn't get past step one what technology are people using. We weren't able to locate any public information from every FOIA searches and that became one of our main recommendations that this information needs to be collected and published and the agencies can use it can be a point of reference and either this group and the next version of this committee or DOJ or some other group can review all of the different technology and get recommendations about what's working back on how to get more efficient to everyone. Technology just again based on everything everyone else said. Another thing we saw a need from the more interagency working groups bringing the FOIA folks to getter with the chief information they need cross-pollinate and overlap that the FOIA folks so that they can come in with ideas together they have a CIO counsel to modernize the federal IT system chief FOIA officers will there's no overlap they are not talking to each other currently that's one of our recommendations. the third one I am talking about we touch on the acquisition process, agency bring in technology to carry out their mission where you are at the FDA worrying about FDA or economic sanctions on foreign functions or foreign people. There's not a spot procuring systems on how to make that data treatable for FOIA purposes the agencies I dealt with were mission focused and our procurements are what do I need to get the job done. Is there a way to search this by topic can I pull out information by persons the members of public are able to access it. Is this information explorable? I have to print this database in code, how do we actually process this and provide it to the public? The front end for systems our goal is not the requirements can be sent in on the front end, and the fourth thing I want to touch on is we identify the best practice that we are able to come up with and preach is something that DOJ has implemented which was FOIA performance standards for individuals that are responsible for FOIA searches. In some agencies FOIA search capabilities are FOIA offices that have great access. In some agencies individual custodians who hold the records are required to go through the records office admin who is responsible for searching for the entire office. The one common thing we found these folks are not being accountable it's not worked into their annual performance plans everyone in the federal government who's required to a do a FOIA search is held accountable every year. We are going to see improved processing of FOIA searches folks are being measured and graded and willingness and ability to get those searches done regardless of where they work in the agency. We are hoping to see that implemented without the accountability I don't think they are going to see the process improvement. On the technology begun, I just want to point out if it's across all areas that we looked at processing and getting the records and making them available and making them 508 compliant without implementing the FOIA technology and making it better and integrating it into everything the FOIA professionals can do. You can't administration the FOIA or the public or it's even frustrating to the FOIA professionals who don't have the technology that get the mission done.
>> I want to mention that when the issue is a search and the problems go beyond the requester and that set of information being requested. I think thinking back one of the reasons we focused on that as a subject for a subcommittee was the existence for those who follow the law. So many lawsuits involve challenges to the adequacy of the search when you don't have a search that's efficient, broad enough or deep enough. A lot of these wind up going to court and even when the agency prevails often in the process finds additional information and provides additional information a great deal of government's FOIA and the cost of litigation is due to challenges to the adequacy of the search from the front end there were statistics a few years ago not on the exceptions and more often than not. Over 50 % on adverse because the searches are not I don't know if you can hear me now. I heard you talk about some of the things are the easiest to implement from the committees report can I turn that out and what are the hardest and most challenging one that is you think would be to implement. Those things require financial resources are going to be more difficult and that will be technological issue it is most and that's across agency and those of you who are on the public and or private sector know the challenges not something that just affects us in the government. Also, as I mention it had ones where we don't have FOIA professionals have control I love the idea of having performance metrics or accountability in employee performance evaluations I am very fortunate that some parts of my agency have done that. By that's really a personnel issue while one I can advocate all day long and other cans too it's not entirely within our control. I am seeing a trend toward that is positive. Those things that we don't have control over. That said I think there's many things that we can do in the FOIA that actually don't cost a lot of money and that are within our control I think that every FOIA office needs to assess its strength and weaknesses and say what are the things that we can focus on that are within our control. One of the complaints we are getting is that I don't know requesters aren't get called back enough on their status. Updates quickly you can say okay this is the rule all calls and e‑mails are going to be returned within 24 hours and you are going to be evaluated based on that. It doesn't really cost anything and that I think it would be fairly easy toker Vale people on you are getting complaints or you are not. Let me first say one of the easiest things to do which we haven't talked about and sort of intimated we they just do audit of agency practices and makes recommendations on how to improve efficiency without additional resources and I looked at the summaries and phenomenally useful stuff and in fact so good the Department of Justice said they should do the same thing. I think that's really extremely important for agencies to understand you are not in there alone and you don't have to pick up the report and figure out how to do it. You can use OGI S that's been deeply engaged developing in all of these proposal so they are impractical and in that respect the recommendation is to the archivist in some case it is archivist will recommend in most cases they are telling OGI S this is your responsibility to help implement that's the point on the resources issue Sarah there's also the long-term short term. And this is not agency problem this is really well, human nature but also a Congress problem. Of not wanting to invest the extra money in technology that will take more than a year or two to you know justify its cost and technology may not be the right necessarily the right place to talk about this because it changes so fast. None the less it does seem to me that a lot of these thing that is we talked about are worth and investment because they will be cost saving and that goes back again you find that OGI S this is your form. You know part of those of us who were involved in advocating for creating OGI S it will be money saving for the government. Both in terms of preventing or avoiding litigation by the disputed resolution function and by saying the government costs by the efficiency of advising function. So both of those are long-term matters.
>> Thanks for the ‑‑ appreciate it. You were shaking your head a lot?
>> I think Sarah and Tom are on the right track I anything that's going to require money. I would focus in as frustrating as it will be to save us. I think the 508 will be the issue that is the toughest. It's going to require money and technology to solve but it's also going to require some sort of you know legal opinion kind of decision on agencies part and there's a risk involved as we have heard from others and agencies are and I don't mean to say this is a bad thing agencies are risk-averse and so they are going to be very cautious on this as someone who wants them to do more proactive disclosure I don't want to see 508 become that imped meant to it. It's frustrating this is one of those thing that is we are going to have to wait and see I am hoping that these recommendations will move the ball forward a bit but you know I still think there's a lot of uncertainty out there for it
>> What about a legislative fix?
>> A legislative fix could be exactly what we need to clarify as Tom said exactly thousand strike that balance. What is undue burden? They can solve a lot of problems by clarifying that. Unfortunately Congress is risk averse as well. They don't have the same lawsuit risk but they have sort of a public perception risk of you know choosing between these two different things they are both public good ins a lot of ways you don't want to be seen favors you don't want to be the one I don't want to disclose more information public and say that it's 508 compliant if it's not it doesn't go out. You can say no we want that information out to the public now you are not taking into consideration people with disabilities you look like a bad guy again. It would be great if that happens but I am not going to hold my breath on this. It's the hardest. It's easiest which suspect too cute I think every recommendation on our 30 page report. If we can get the members of the public to agree on those recommendations and members of large cabinet agency and OGI S and OIG on 30 pages of recommendation every agency should be able to pick up that report and figure out a way to implement something. I think certainly in the best practices section we didn't mix those up. This came from case studies examples, agency that is we knew were doing these things so every single FOIA officer can pick up that list and look at that list and 20 of them are too hard those ten can pick up the resources and other people out there who have done this and tell you how to do it and how to implement it in your agency. So I think it's doable. We have seen it be done. In terms of the hardest thing to implement obviously money and change I think legislation is hard to implement. I think we see Congress take ago very long time in between FOIA updates and every time there's FOIA legislation there's been no real changes overall for structure of FOIA and which hasn't necessarily adapted with technology and the way records are being handled and stored by agencies and I think maybe looking at ways to wholesale overhaul but it might be the most useful to put the government and accessing government records. They do sound easy. It reminded me from the ancient past. You have a problem with FOIA office I recall in the late 70 ohs that I talk to a group of the American society of access professionals as a requester on a panel in saying the most important tool for you in carrying out your job isn't the photocopying machine this was precomputer days. It isn't the black marker for redacting it's the telephone for contacting that is a constant refrain from requesters the justice Department certainly all justice Department guidance all OGI S recommendations say stay in touch I am sure they have the same experience I mean I can give and agency lots of leeway it took the FBI a year and a half to come up with a memorandum that I knew existed because I have seen it when I was on the Hill. And they just couldn't find it that happens record retention and FOIA sometimes you know but I got frequent calls back we got a new place to look we are going to be trying this some of the things are out in stone mountain or where ever it's going to take us awhile and they came up with it and I was very happy with the whole process and I like the opportunity to applaud that publicly you know by contrast I had and experience with NIH it just you know was missing in action you know. They didn't acknowledge receipt and I finally got hold of someone they asked can I send a third copy in again and it just it was so frustrating again on a fairly simple request. So there's no question that those of us who often make like more difficult for the government FOIA offices can be mollified in great deal just by hearing your voice for saying we feel your pain. We understand your problem. Do you understand how big this issue is? I had that before when I represented commercial requesters and businesses agency called back EPA do you realize it's going to cost a hundred thousand dollars of search fees you want us to search for this information on certain chemicals on every office. Sure if it turns out that you take a regulatory action that we see contemplated based on the information it's going to put a number of company's out of business and they are willing to spend a hundred thousand dollars to determine that regulatory action is justified. We sat down and worked out scheduled and payments and disclosures and sometimes it comes to that but it all requires communication.
>> Right that's why it's important for these big retractable issues like 508 and genre sources and you have to focus on one part of your brain. We need to be better at calling people back. We need to be better at using e‑mail and everyday technology to help us things like that and make it easier for visitors to submit a request online and make sure your FAQ's on your website are up to date, and things like that's really not that hard to do and doesn't solve all the same problems but it does help in some situation ins our high‑tech world my agency has been sued by a requester who was upset that no one was calling them back. I don't blame them I am not happy we got sued about it. It was something that was entirely preventable and that something that wasn't because of 508 or complicated FOIA issue it was because someone kind of wasn't getting what they needed from the program office, and didn't know what to say and chose not to back and that's never a good result of that. We shouldn't have the easy fixes while we are trying to work on that we have a few more minutes and I am going to open up to audience questions you can cue up one of the things I gave you fair warning. I do think we ought our national archives take and opportunity that your new advisory committee to assess progress and to see if agencies need help on anything a little more attention to the technology issues because the follow up is important I say that because you know the first advisory committee labored for two years very smart people from and came up with one clear recommendation that is the office of management updates the fee guidance. Which was only out of 20 years or something not quite 20 years old. And it went into a black hole I mean the archivist you know transmit it had recommendation and that's the result the silence you hear. I think we have a responsibility not to let that good work go to waste and to move forward and I use that as a way of suggesting that it's maybe time for the archivist to ask the director of office of management and budget what happened?
>> As we talked about earlier we are very committed to continuing to get the good word out on this report. I know there was a lot of hard work that went into it. We want to take every opportunity we can chief office every council meeting coming up soon in July and we want to spread the word to the FOIA officer that is come and watch us on live stream. I think Tom's suggestion of doing a check in every six months is a great idea and maybe the next committee can also incorporate that as part of their process as well. Sarah, it looks like you want to say something?
>> You were just looking very intense. (Laughter)
>> I don't want to put this all on OGI S I definitely seeing POGO getting involved. I think people ton committee have a responsibility to be advocate for the recommendation that is we have come up with and certainly POGO is going to do something around these and you know keep the drumbeat going. I also think that OIP has been involved in both of the FOIA advisory committees and they collect a lot of information and this might not all rise to the same level of information they collect you know on either their chief FOIA officer reports or the data reports that they do quarterly and annually some of it should make its way in there you know either explicitly are you doing exactly this recommendation or the questions more pointedly trying to get at the general ideas that these recommendations are covering. I think that makes sense too and we should push OGI S to include them. So on proactive disclosure what about a baseline that someone OIP OGI S or NARA would ask the agencies this summer send the list that we have, the list they are in a grid and send them down which of these are you doing now completely which are you doing partially and do you have any problems with doing them in the future and do you have a potential time frame for doing these in the future and if the answer to any of those is no why? Draw a baseline and we can come back and would have something to you know some agencies quit they are not it's sort of like the disclosure of staff contact information. It's hard really we agreed to not make that a big issue. It's hard to see why interior can't. So having that potential for peer pressure or at least comparison it might be a useful way of pushing the accountability use transparency they don't move it forward.
>> We set the standard what the standard would be I would consider OGI S for the agencies to assess those standards the general can conduct the audit against these standards are implementing them and congressional subcommittees the over site over and see if those FOIA programs are doing it. I think we have laid the groundwork the there's standards and implementation to see if that's against them and audited and held to account because the committee to your ad hoc can't do that but when there's an old GAO report the agency had their meeting quarterly with the head of GAO and say why you haven't implemented this ten years ago. It gets attention and things get moving those are a few options I would put out there and encourage to happen if we could.
>> I appreciate the fact that we are not alone. Thank you for all the support we have a very small staff we need all the support we can get. Any questions from the audience? Please come up to the Mic maybe you can introduce yourselves? Hello?
>> Hi. I'm Rick I am with the reporters for the freedom of the press. I may raids this in public comment period I want to ask anybody ton panel apart from interactions from OGI S have you seen a privacy act as a barrier either in the referral, consultation process and you developed 30 pages of recommendations was that ever a problem or maybe the answer is simple.
>> That's an agency question a problem in terms of can you give us an example of what you are thinking?
>> I will give you one example was a news outlet submitted a FOIA request for the document that they knew existed. That led to a Lincoln investigation where they found the source. And I just wonder you know the Justice Department say that is if an agency gets a request in and it has or finds document that is are equities of another agency they should go through that process including that information the request information about the request to the other agency and the improves efficiencies all of these wonderful things but with OGI S it tends to be this position you need to go through a privacy act waiver. You know that's the standards are the same. I can speak from OGI S perspective and this is something that we advocated with the senate judiciary in terms of our dispute resolution program and we don't have thorn with certain agencies when we get a request who come ins to ask for our help we need to ask them for a privacy waiver to advocate on behalf and in our compliance program is also an issue if we go to assess and agency where we do not have a thorn when we ask to look at a sample of five hundred case files we have got to go and ask each individual subject of each case file for privacy waivers it seems very realistic. I know that's been a continuing issue for us. It's come in other parts of the FOIA process. Thanks. We will think about it for the next term so thank you for asking the question. Recently my new position on the FOIA position as well as for the agency. I am going to ask in front of everybody I am handling a case that was appealed. it was a privacy act slash FOIA in the course of the case not to get complicated it became an investigation for other means so as part of the appeal we are explaining to this person for FOIA he what has the right to contact OGI S we explain under B 7A but be aware for privacy concerns but be aware for privacy concerns OGI S does not support that for FOIA purpose yes, but this is this requester allowed to come to you from a privacy act interest. I want to make sure I am privately acting properly for him. I want to ask this in case everybody else has a question. Awe u we do not handle pure privacy if it's mixed FOIA and privacy act issue they are certainly welcome to come to us and we are happy to help them. Most requests that aren't forms for example of that are likely to be nixed or they should be nixed back when I was making a lot of requests you would always mix them because you get the time limits of the FOIA and the exempts five information from privacy act, so from the requesters perspective you get maximum benefit out of the law by having it mixed. I would hate to see that cause a problem with disclosure because it's supposed to be facilitate disclosure. We are required to process under both.
>> Anyone else have any questions?
>> I just wanted to emphasize in staying in contact with requesters it helps so much. I had a question about the submission process I notice that had on the IT side agencies had tried to set up different platforms to varying degrees of success. The common element is none of them work very well. HHS is consistently crashing, HUD's magically loses account information and deletes accounts since they aren't used in some undetermined period of time. And my favorite is the Air Forces only works if you are on a DOD server which was amazing to discover. I was wondering kind of what work is being done with the agencies to improve these platforms?
>> I'm not sure I'm in the best position to answer that. There's a big rollout of the national FOIA portal by the Department of justice they worked in conjunction with OMB to get that to the path. I think the hope is that all of these agency portals are going to be become compatible in some way. I am going to show my age just like Tom did. I don't know all the intricacies of IT at lingo but they are all supposed to be interoperable that's the right word we are supposed to use. We are just getting started. So I know we have heard from requester that is have that concern with different agency withs server that is go down and they are unable to even lodge a FOIA request we are definitely aware of that we keep trying to spread the word I know the Department of justice is working actively to fix those problems as the next iteration of the portal that goes forward. I realize it's not perfect.
>> Sometimes things are blamed on technology that can be resolved by talking too. I had a request for a database at the Justice Department that finally had to go to court before we won. But the they kept saying there are fields that are non‑disclosable and we kept saying you know identify those for us and I represent add client at a University with a very good IT Department who worked with them and our smart people could talk to your smart people about how best to get the information out that we want. Absolutely not that wasn't allowed. We wound up going to court and the judge said why can't you program it to disclose the disclosable fields? So that was four years later?
>> I will just note ton portal that my agency has had a portal for six years now we get 75 % of our incoming requests for that on‑line portal and that's great it makes life easy in some ways we do take requests like that and overnight actually we now get so few like sometimes they get logged faster so anything that comes in today is going to get logged on Monday we get so many more on the on‑line submission that it take as few days to get to them so while I understand and we have a couple situations where people called and said something is going on and can't figure out what it is. Sometimes it's like fax it over and we will try to figure out the problem in the meantime let's get your requests moving don't get so frustrated with the technical issue that we don't get your request in the door. Sometimes you might have to go the old fashion route but do notify we sometimes don't know if there's a problem so it's helpful if someone says it seems to be wrong. Do you get complaints within the agency it's much too easy to make requests? Because we on the outside especially when you are talking about the states and foreign country that is are setting up systems that are new best practices ought to behave electronic requests and they say oh no it's too easy here right? Is that something? I am sure everyone will love to get fewer than the 10,000 requests we get every year and I am not hearing that as,
>> You are used to it.
>> I think from doing the folks you know work on this they can ask for this?
>> Yes. Right, this right? Yes. High I'm Dan I work for a smaller components of DOJ I manage the FOIA program for my components and I am just going back to the discussion about searching and appeals on searches and I find myself responding to or giving the back gunshot wound on appeals this describing our search and I am wondering if the committee do they look outside government or do they ask outside of government agency ins their process regarding searches like would they for example maybe look to the American library association, and reference librarians skills for asking questions about search practices and if FOIA professionals might use some of those ALA reference interview skills maybe that might help on the back end you know it might cut down on litigation and appeals on searches, so that's my question. I wonder would the committee consider looking outside for skills and things like that. Guidelines.
>> I think it's a great suggestion we didn't look at it. The next committee we will have them focus on it. I think it's a great idea. We were focused in on the government and we had stopped doing that before going outside. In 10,000 people are another agency maybe ten people will think that's a great idea for next time to take on. The one area we did get outside input was on electronic searches and we had you know legal presentation on how in court discovery of large quantities you can use algorithms and AT and all of this sort of stuff to be able to facilitate the search which is probably not that applicable in most agencies but the fact that it can be done now it's very expensive still it can be done to get you through millions of records. I would love to see it to do a training to best practices with searches and documenting your administrative record on a new record response. We at our agency have tried to do a lot of that if someone is going to say we don't have any record it's got to be documented on a certain form but your idea is something that could absolutely part of that because getting aid in a field on a new records response on a search issue and finding out that while we don't know what was done so now we have to start over is very frustrating. Yes please. I am josh investigator with think progress. I ask this question with the Department of defense in mind but I imagine it's an issue other large agencies well and that's where you have sort of a large complicated agency with decentralized FOIA offices and you end up having to make ten phone calls and send a request or places and wait two months just before you get the right office. It can be for a record that exists you don't know exactly what subcomponents maintains that record. Do you see that as an issue or have a way for it on that end? It was definitely for the best practices one of the things that we recommended was you know whenever possible centralized both processing, but also the records themselves so that they can be searched more easily or more broadly, so or this kind of round Robin where it keeps getting forward and some components says that's not us we are going to send you who we think has it and we get the request, and they say no it's not us either. I don't know that we addressed those kind of complications or forgetting the term for when they forward it referrals and so maybe those are something that we can look at or depending on what the next round looks at can look at those. I see that happen all the time because I think FOIA offices are siloed and not in the business of doing agency mission I think someone mentioned earlier is having folks rotate in and out and having that would probably reduce that I didn't, I added the DOD issue this week where folks wanted to send something to Africa command that's Europe command I said ‑‑ they said how did you know that well I knew. Having that knowledge shared in the FOIA office. I think it happens across agency all the time. It happens to us. We find it frustrating as you do we are going to have to refer this to the Department of justice I am like what part you know I think it's the civil rights division I have to call 8 different people because I don't want to send your request to the wrong person after I taken part in making your life more difficult because these agencies are so big and we understand our own usually it's just as it sometimes very sympathetic for those who don't have a government experience. I am facing the bureaucracy I am part of it. I understanding where you are coming from. I think having centralized points of receipts and having people do your TRIAGing a FOIA request that are very knowledgeable about your agency or particularly if you are a Department to say I am just the FDA is not cabinet level agency I can understand places like defense that would be very difficult and maybe that's something like for whoever get there is or whatever point of receipt they have there to make sure those people are best trained to understand what goes where and understanding that some requests I have been at the FDA for 15 years I can look at a request and say I have no idea what that is. Sometimes I don't I would say a vast majority of the request I would say people should know where it should go. I think OIP has a guidance on subject a few years ago that comes back to one of my favorites keeping the requester informed about what's happening inside so you are not just sitting there staring at a black hole while the agencies are referring and for good reason because sometimes it's not clear the requester probably couldn't have found out on your own which of the places to go and officials like Sarah are doing you a figure out what to do and making that call back to say the reason this is taking so long is because we don't believe we're the right place and we referred this so such and such and now separate question comes up and when the we are not going to under and the that's a separate set of issues I think informing the requester along the way is clearly important. I do want to give a shoutout to DOD that they recently issued one unified set of FOIA regulations we are seeing all the subcomponents we are sending their FOIA regulations at least they are going in the right direction to try to at least achieve that through a centralized FOIA reg so that's helpful.
>> I want to thank every single one of our panel members it's been really informative and hopefully fun for you. I hope you will come back and consider being on the next term there's still time to nominate yourself to June 1st no pressure. Thank you, everyone, for listening to us so politely I really appreciate your time.
>> Thank you.