 Welcome, and thank you for joining today's FOIA Advisory Committee meeting. Before we begin, please ensure that you've opened the WebEx participant and chat panel 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. If you require technical assistance, please send a chat to the event producer. With that, I will turn the meeting over to Deborah Sidelwald, Acting Archivist of the United States. Deborah, please go ahead. Thank you so much, Michelle, and good morning everybody. Welcome to the third meeting of the fifth term of the Freedom of Information Act Advisory Committee. This month marks 15 years since Congress passed the Open Government Act of 2007, which created the Office of Government Information Services, OGIS, as the FOIA ombudsman and located it here at the National Archives. Congress made a number of other important changes with the 2007 amendments, including introducing dispute resolution into FOIA administration. Today, 15 years after Congress envisioned a more collaborative FOIA process, dispute resolution is baked into the FOIA administrative process. Agency FOIA public liaisons are available to assist requesters at agencies throughout the federal government, including here at the National Archives, where we have FOIA public liaisons assigned to all of our FOIA programs. OGIS and FOIA public liaisons across the government are very much partners in resolving and preventing disputes. Despite a landscape that is less adversarial and more collaborative than it was a decade ago, challenges do remain, and I'm pleased that this committee is collaborating to address those challenges. The committee's charter states that it fosters dialogue between the federal government and the requester community. That dialogue happens every time the committee meets, whether it's these quarterly public meetings or the subcommittee meetings that occur in between. I very much appreciate the different experiences and perspectives that the members of this committee bring to the table, creating the very dialogue referenced in the charter. I understand that since September, the committee's three subcommittees have begun reviewing the committee's 51 prior recommendations to search for opportunities for additional exploration. And I really commend the committee for that and remind members of the Charter's mandate that you all may recommend legislative action, policy changes, or executive action, among other matters. While keeping in mind that the committee is advisory only, the National Archives, while a champion on FOIA matters, we don't oversee other agency FOIA programs. However, since records management is at the core of our mission, and of course records management and FOIA go hand in hand, NARA is pleased to take her leadership role in this area. So with that, I'm happy to turn the meeting over to the committee chairperson, OGIS director Alina Simo. Thank you so much, Deborah. Good morning and welcome, everyone, as the director of the Office of Government Information Services, OGIS. And this committee's chairperson, it is my pleasure to also welcome all of you to the third meeting of the fifth term of the FOIA advisory committee. I also want to welcome our colleagues and friends from the FOIA community and elsewhere who are watching us today, either via WebEx or with a slight delay on NARA's YouTube channel. Members' names and biographies are posted on our website. I am advised that committee member Benjamin Tingo is unable to join us today, but we have a full house, and I'm very happy to welcome all of our committee members. And also we'll welcome very shortly our panel members for today. I have a few housekeeping matters to go over, and then we're going to get right into the meeting. First, Kirsten, I'm just going to check in with you. Do we have a quorum based on your visual roll call? We do indeed have a quorum. Okay, terrific. I want to remind everyone, meeting materials are available on the committee's webpage. You can find the link for the 2022 through 2024 FOIA advisory committee on the OGIS website. We will upload a transcript in minutes of this meeting as soon as they are ready in accordance with the Federal Advisory Committee Act back up. Kirsten and I have certified the minutes from the September 8th and September 14th meetings, which probably seems like a long time ago, but it was just not that long ago. And they are posted now on the OGIS website in accordance with backup. During today's meeting, I will do my best to keep an eye out for any committee member who is raising their hand when they have a question or comment. As I mentioned earlier, there's lots of tiles I've got to keep an eye out for today. If I miss you, please also feel free to use the all panelists option from the drop down menu in the chat function. If you would like to chime in with either a question or comment. Ideally, chat me or Kirsten directly. That way we can really hone in and recognize you. Also, I just want to remind everyone again in order to comply with both the spirit and intent of the Federal Advisory Committee Act. Committee members should keep any communications in the chat function to only housekeeping and procedural matters. No substantive comment should be made in the chat function as they will not be recorded in the transcript of the meeting. If a committee member needs to take a break at any time, please do not disconnect from the web event. Instead, mute your microphone by using the microphone icon and turn off your camera by using the camera icon. Please send a quick chat to me and Kirsten to let us know if you'll be gone for more than a few minutes. Join us again as soon as you can. We do have a packed agenda today. We do plan to take a short break at approximately 1130 a.m. although I reserve the right to shift that time depending on how our agenda is flowing. And a reminder to all committee members, please identify yourself by name and affiliation each time you speak. It definitely helps us with the transcript down the road and the minutes, both of which are required by FACA. For those of you watching on YouTube, the chat is not on, but we do want to hear from you. If you have questions and comments related to agenda of today's meeting, please send them to foya-advisory-committeeatnara.gov. If you have questions on any other topic for the National Archives, you may direct them to public.affairsatnara.gov. We have received and posted several written comments in advance of today's meeting. We do review all public comments and post them as soon as we are able, and if they comply with our public comments posting policy. We have also alerted committee members and have invited them to view public comments on our website. If anyone wishes to submit any additional written public comments regarding the committee's work, you may do so by again emailing us at foya-advisory-committeeatnara.gov, and we will consider posting them to the ODA's website. In addition to the written public comments we have already posted, we will be inviting oral public comments at the end of today's meeting. As we noted in our November 7, 2022 Federal Register notice announcing this meeting, public comments will be limited to three minutes per individual. Okay, any questions on housekeeping? All right, I'm just looking. I don't see anyone nodding or waving at me. Now on to our agenda. As we've already advertised, we are very lucky today to be joined by an expert panel who is going to be talking to us about complex FOIA requests and litigation, and I predict it's going to be a very lively discussion, and I expect that all of our committee members are going to be engaged in asking lots of questions. After a short break, we will hear updates from our committee's three subcommittees, implementation, modernization, and resources, and we will close the meeting with a short public comment period. So, again, I'm going to pause any questions or comments. Michelle, next slide, please, and I forgot to tell you that earlier, so I apologize. Okay, so I am thrilled to have three experts who are well-versed in complex FOIA requests and in litigation. Anne Wiseman, Katie Thompson, and Ryan Mulvey, each of whom I will just briefly introduce, and again, I'm just thrilled to have all three of you joining us today. Anne Wiseman is a public interest lawyer who most recently served as the Chief FOIA Counsel for Citizens for Responsibility and Ethics in Washington crew. She continues to serve as outside counsel in some of the group's litigation. She previously served as the Executive Director and Chief Counsel of crew, and as Executive Director of the Nonprofit Campaign for Accountability. In joining the nonprofit world, she served as Deputy Chief of the Enforcement Bureau for the Federal Communications Commission, as well as an Assistant Branch Director at the Department of Justice, where she oversaw the department's government information litigation and was also my prior supervisor, as well as Jason Barron's. Anne is also a member of the very first term of the FOIA Advisory Committee or inaugural committee term, 2014 to 2016, and served on two subcommittees, the FEE subcommittee and the Oversight and Accountability subcommittee. Next, I want to introduce Katie Townsend. She is the Deputy Executive Director and Legal Director of the Reporters Committee for Freedom of the Press. She oversees the Reporters Committee's legal services portfolio, including its litigation, vetting and pre-publication review and amicus practices, and supervises the legal work of the Reporters Committee's team of staff attorneys and legal fellows. She regularly represents news organizations and journalists, including documentary filmmakers and public records, court access and legal defense matters. And prior to joining the Reporters Committee in 2014, she was a litigation associate in the Los Angeles office of Gibson Dunn and Crutcher, where she specialized in media and entertainment litigation. And last but not least, I would like to introduce Ryan Mulvey, who is Policy Counsel at Americans for Prosperity Foundation. He's been in that position since December of 2019. He previously worked as counsel at Cause of Action Institute and continues to volunteer in that position. Ryan's practice touches on various aspects of government oversight, civic engagement and administrative and constitutional law. Ryan regularly lectures on federal government transparency matters, litigates cases under the FOIA and Administrative Procedure Act, and provides amicus support at the district court, appellate court and supreme court levels on various matters. Ryan is also president of the American Society of Access Professionals and a contributor to FOIA advisor. So with that, lots of great introductions. You can tell we have a great panel and I'm very happy to welcome all of you again. And the way we've worked it out is that I'm going to ask each one of you to just provide a brief introduction and some introductory remarks. And we would like to leave the bulk of our session available to our committee members to ask lots of questions. But I want to just kick it off by asking all three of you. All three of you have filed complex FOIA requests with a variety of federal agencies and have litigated complex FOIA cases. So I would like each one of you to please subscribe what obstacles you may have faced at the administrative stage and talk a little bit about your successes and failures in litigation. So with that, I'm actually going to kick it off by asking Ann to go first. I'm going in reverse alphabetic order today. Thank you, Alina. And good morning. It's an honor to be asked to address such an esteemed group. Many of you who I know is colleagues and former colleagues as well. As Alina mentioned, I've been dealing with FOIA for a good number of years. I've seen it from several perspectives. And I've seen over the years, obviously a lot of administration changes and varying commitments to transparency in government. But there is one constant that I believe has run throughout. And that is a critical underfunding of FOIA at agencies. And this has resulted in a critical lack of resources to deal with an ever-growing number of FOIA requests that result in FOIA litigation. Now, I recognize that this problem writ large is probably beyond the scope of this committee, but it has had impacts that I do believe this committee should understand, appreciate, and consider addressing. From my perspective, these impacts result to a large extent from, I think, efforts by agencies because they don't have sufficient resources to reduce the number of FOIA requests that they have to process or deal with. So one of the issues that I've seen, I know this is probably very familiar to all of you, is the still-interested letter. Despite the fact that the Department of Justice has issued guidance on this, stressing that it should be very sparingly used, it continues, at least in my experience, to be a practice that agencies resort to all too often. And it's particularly a problem for the kind of groups that I represent, non-profits, when it's an old request, and we're given very little time to tell the agency whether or not we're still interested. And quite often, the request originated from someone who's no longer at the organization, so it takes us some time to track it down and evaluate whether or not we're still interested. So that is one problem. Agencies also, in my view, have conflated and overused both the unusual circumstances, safety valve in the FOIA, and also placing simple requests in the complex track. And again, I think the end result is that they result in a much longer delay for requesters. Unusual circumstances, as the name itself suggests, I think was intended to be a safety valve when it was an unusual circumstance, but it has now become the norm. It's hard for me to think of even any request I've filed over the last several years for which the agency has not invoked unusual circumstances. So it's the exception that truly has swallowed the rule. And with respect to simple versus complex, first of all, I think it's very unclear what guidance agencies are using in order to determine whether a request is simple or complex. It often appears to me that if they believe it meets the unusual circumstances, it necessarily means that it's a complex request. And again, the end result is it gets placed in a separate queue with a much longer wait period. So I think these are concerns that need to be addressed. And I mean, I can give you some examples where there have been very straightforward requests that have taken years for an agency to process. For example, ODNI took 13 years to produce use of force incidents, even though the data was readily accessible from a database, it simply needs to be pulled out from it. And in a similar vein, Customs and Border Patrol, again, took two years to produce data that simply had to be pulled from a database. Another overarching problem is really a lack of communication. Most agencies are good at sending an initial acknowledgement level letter, but after that it often is dead silence. Now, one of the organizations that I do work for, POGO, the Project on Government Oversight, is very diligent in following up on its FOIA request, particularly when it's been given an estimated completion date. And all too often, despite repeated requests for updates, they're met with complete silence. Now, these are the sorts of things that are factored in when we take a step back and say, do we need to litigate? You know, if we've heard nothing from an agency, despite many efforts on our part to find out the status, sometimes we conclude that the only way to make progress is to file a lawsuit. Another concern I have is that agencies are claiming that requests do not reasonably describe the records that are being sought, when in fact the problem really is that the agency may view it as a burdensome request with many subparts that they simply don't want to deal with. And this is a real misuse, and I understand the temptation for an agency, because if they deem a request as not reasonably describing, they treat it as an unperfected request and have no obligation to take any further steps. Recently I dealt with DHS. They have a really remarkable regulation that gives them not only the unilateral discretion to determine that a request does not reasonably describe the records, but it also says that they don't even have to tell the requesters that they've made that determination. So, you know, this is an area that I think has resulted in abuse, and all of these seem to be tools that agencies are using to limit the number of requests they have to deal with. Now on litigation, I'd like to, just like a few remarks, I've been involved in litigation for many years, and it really has changed in this key respect. For many years, what I litigated was the validity of an exemption that was claimed or the adequacy of a search. And now almost all of my cases are brought where there hasn't been a single document produced, and I don't have a commitment from the agency as to when they will produce anything either. And so litigation now simply becomes more of a housekeeping thing. The courts in D.C., one of the first things they do after an agency has filed an answer, they issue an order that requires the parties, usually within 30 days, to file a status report that either sets out a briefing schedule or a production schedule. It's almost always the latter, because as I said, we've gotten nothing. And basically what happens then is the court then babysits, you know, as the agency processes the documents, and it kind of referees any disputes we have on processing, and it's often years before we even get to the issue of exemptions. And that delay really is tantamount to denial. Let me talk about what kind of thinking goes into the decision to sue. At least the organizations I work for, it's a very careful thought. We do not routinely sue on every FOIA request. It may seem like that to you, but that is most definitely not the case. And a lot of it is some of the things I've mentioned. If we have reached a point where we've gotten nothing from the agency, we can't even get a commitment from an agency as to when they will give us something. You know, we reach a point where we unfortunately conclude that litigation is the only resort. This doesn't happen on the 21st day. It usually happens months and sometimes years after the request was filed. I don't mean to suggest that litigation has never been successful. I have had some successes that I'm very proud of. And I do think there are instances where as a result of a FOIA request, I have been able to provide the public with access to information that I think is very important in evaluating an administration's policies or actions. But it's very frustrating because it's so hard to get to the point where we are even talking about exemptions. I'd be happy to provide more specific examples, but I really do want to leave time for your questions. But I just want to leave you with this and I'm sorry it isn't more optimistic. But my assessment based on the snags and problems I encounter at the administrative stage and the fact that litigation is so rarely used now as a tool to actually litigate, you know, the legal merits. I think FOIA is broken. I do believe there are legislative fixes that can help it. I think Ryan may be talking about those if not, you know, I'm certainly willing to. Unfortunately, as everyone knows, it's very hard to get legislation out of Congress right now. And I have not seen a single administration that has embraced statutory improvement to the FOIA. And I have no, I'm not optimistic that that can change. This is not to say I have no hope, but I think what we need is a fundamental reset. And I think when this committee looks at the issues of FOIA, you know, it should be thinking beyond just kind of nibbling at the edges and thinking about other ways to fundamentally change the attitude and the approach. With that, I will stop and I look forward to all of your questions. Thank you. All right, great. Thank you, Anne. Katie, over to you. Great. Thank you. Thank you. And I'm so pleased to be here. Thanks for having me. As Alina indicated in her opening introduction, I work with the reporters committee for freedom of the press. And so we approach FOIA and public records work from the vantage point of journalists and news organizations. The reporters committee is itself a requester. It makes FOIA requests that are on issues and subject matter areas that are relevant to its mission. But it also our lawyers, reporters committee lawyers also represent individual journalists as well as news organizations and the reporters committee in litigation, in FOIA litigation. So I think I'd be remiss and I think some of the things that I'll say will certainly piggyback on Anne's remarks, which I think is probably unsurprising to many. But one of the biggest issues I think we see and one of the biggest problems we hear about from journalists and news organizations, I know this is going to be obvious, but I think I'd be remiss if I didn't mention it is delay. The sort of general 20 business day deadline or the maximum 30 business day deadline for unusual circumstances. Those deadlines, the statutory deadlines are routinely really systemically not complied with. And there's unfortunately I think an accepted understanding at this point among agencies experienced FOIA requesters, requesters who are familiar with the process and courts as well once you're in litigation, those statutory deadlines aren't going to be complied with and are pretty much meaningless. That makes FOIA not really a useful tool for day-to-day deadline driven news reporting. And that's not to say that it can't be a powerful tool for journalism overall, but I think where we see it being used effectively because of the delays, the time horizon on actually getting any records in response to FOIA request is in longer term investigative reporting projects. It also places journalists, and this goes to something that Anne already mentioned, it also places journalists who need access to records more urgently to inform the public, who need their request processed in the near term and can't sit and wait for months or years in a queue in a position of needing to have an attorney and needing to file a lawsuit just to get those requests processed. I think we've seen in recent years, particularly in DDC, a rise in FOIA litigation, and I think again sort of piggybacking on what Anne said that seems to be driven in large part by delays, by people simply wanting those requests to be processed and knowing that they need to get in litigation in order to do that. That place is a particular burden, I would say, on freelance and independent journalists in particular. And to give you an example, I think a really concrete example of this, Reporters Committee attorneys have, including myself and my colleague Adam Marshall, who's on the FOIA advisory committee as well as our colleague Neeta Singh, have been representing for a number of years now an incredible journalist, Osma Khan in FOIA litigation in the Southern District of New York, and she came to the Reporters Committee. She was already an award-winning freelance journalist. She had unanswered FOIA requests at the Department of Defense seeking information about hundreds of civilian casualty incidents from the U.S.-led air war in the Middle East. Now, through that years long still ongoing litigation, Osma obtained the thousands of Pentagon records that form the backbone of the civilian casualty files. That's a series of front-page New York Times articles that were published last December that I'm sure many of you have read stories that are really in heart-wrenching detail bear the human toll of the U.S. coalition-led airstrikes in Iraq, Syria, and Afghanistan. This is, I think, such a powerful prime example of public interest reporting. The month after that series began to run, the Defense Secretary issued a directive aimed at preventing civilian deaths, revamping the way the Defense Department conducts airstrike investigations. It had such an impact internally within the government that the day after Osma and her New York Times colleagues were awarded the Pulitzer Prize in International Reporting for the civilian casualty files, John Kirby, the Pentagon spokesman, congratulated her and the New York Times for that difficult reporting. But if you go back in time and you look at the way the Department of Defense conducted itself while Osma was attempting to do that reporting, it's clear she was stone-walled. Now, she was stone-walled, of course, in connection with some of her on-the-ground reporting in the Middle East. But even looking at just the FOIA processes, she had to sue for records to get the request processed. She was denied expedited processing, notwithstanding, I think, the obvious exceptional need and urgency of her requests. And even when she was in litigation, she encountered the kind of extensive withholdings that I think people who are familiar with FOIA practice expect to see now. So, for example, she filed FOIA requests about the August 2021 cobble strike that had killed 10 civilians, including seven children, and of the 266 pages that the Pentagon initially located, only seven of those were partially released to her. So I think Osma's reporting in her experience. I like to use it as an example because I think it's a really powerful illustration of the promise of FOIA, the power of FOIA to fuel important investigative reporting. At the same time, it's such a powerful illustration of so many of the problems that we're seeing on a day-to-day basis and even routine kind of FOIA requests. I don't want to speak for too long, but the other issue I really wanted to highlight because I think it's one that the Reporters Committee has been very focused on in recent years is developing the law around the foreseeable harm standard. So for foreseeable harm provision, as many, I'm sure many of the people listening to this meeting and attending this meeting all know, was added to FOIA as part of the FOIA Improvement Act of 2016, and it precludes and prohibits agencies from withholding under the discretionary exemption records or information portions of records for which there is no, for which they do not, it is not reasonably foreseeable that if the record were released that there would be harm to the interest to be protected by the exemption. I think many of us, including myself, were really enthusiastic and thinking very positively about the potential impacts that the foreseeable harm provision could have at the agency level. So I will say in terms of successes in litigation, one of the ones that I think we're very particularly proud of at the Reporters Committee is the DC Circuit's July 2021 decision in Reporters Committee and Associated Press against the Federal Bureau of Investigation. That's really the leading case interpreting the foreseeable harm provision and what it means. That was a case that arose in the context of the Exemption 5 deliberative process privilege. In that case, the panel, the DC Circuit really made clear that the foreseeable harm provision is a separate, important obligation on agencies that they must meet and that the showing to demonstrate that that provision has been complied with, the showing in litigation, is actually a pretty significant bar. Agencies have to concretely explain how this disclosure would, not could potentially, but would adversely impair in the context of the deliberative process privilege internal deliberations within the agency. Agencies can't just give the court a perfunctory statement that the disclosure of all the information they would held would, again, in the context of deliberative process privilege, for example, jeopardize the free exchange of information between leaders. That's not sufficient. What you need is a concrete, focused demonstration of why disclosure of the particular type of information or material at issue in the specific context of the agency action at issue will actually impede agency deliberations, a very context-specific inquiry. So we were incredibly pleased with this decision. I think it's a very powerful statement of what the foreseeable harm provision is meant to do. I think the problem that we've seen, and one of the things I think I would certainly appreciate some of this committee's focus on, is that it's been viewed, I think, on the side of the government and on agencies as a requirement that must be satisfied in litigation. In other words, it's not changing behavior within the agencies. What it's doing is just adding something additional to what the government thinks it needs to do to justify the very same withholdings it would have made before in litigation. And that is not. And if you look back at Congress at the legislative history underlying the 2016 amendments to FOIA, and particularly the foreseeable harm provision, that's not what Congress intended. What Congress was responding to was overuse of discretionary exemptions, especially the deliberative process privilege exemption under exemption five. The overuse of that exemption to withhold information that should be disclosed to the public. And the purpose of codifying and putting into the act, the foreseeable harm provision, was to stop that behavior at the agency level. And I think the problem is that we're not seeing that. What we're seeing is it being used in litigation, certainly and sometimes successfully, we're able to rely on the foreseeable harm provision in litigation. But those records shouldn't have been held to begin with under the foreseeable harm provision. And I think additional training and to Ann's point, a real culture shift at the agency level to ensure that records that are not required by law to be withheld and they're withholding would not result in any harm to the interest that the exemption is in, the discretionary exemption is intended to protect against, those records shouldn't be withheld to begin with. And that's going to require a lot of training and cultural shift at the agency level in order for, I think, that provision to do the work that was really intended to do and really should do, I think, to benefit all requesters. There's a lot of other sort of challenges and things on my wishlist that I could talk about when it comes to FOIA, but I certainly want to leave plenty of time for Ryan and for questions. So thank you. Thank you so much, Katie. I really appreciate it. Ryan, over to you. We've discussed a lot. I agree with everything that Ann and Katie has said. I'd like to start first, though, by building on one of the points that Ann made about litigation and the fact that many FOIA cases have now become a matter of, you file your lawsuit and then you sit and wait, and it's housekeeping, right, because you haven't even gotten any records. I think the situation is even worse than Ann led on with her initial description because courts, in my experience at least, very rarely order production schedules. So after your initial joint status report where you either propose a briefing schedule, which the court will inevitably accept, or you propose or have dueling proposals for how production should proceed, the court rarely orders production. And I have seen agencies increasingly fail to meet these hordatory deadlines, let's call them, right? The agency will say, well, we plan to produce the first interim production in 30 days. And then that 30 days comes and goes and nothing happens. And this is where I think the role of DOJ and let's perhaps call it a culture shift in DOJ. Even in my time practicing FOIA, I've seen a shift. We used to like litigation, if only for the fact that DOJ was a quality check on agency counsel, and very often DOJ would hold agencies feet to the fire to make sure that they were complying with FOIA, complying with production schedules and so forth. I think that's changing. I don't know if it's a difference in philosophy now in DOJ leadership about what it means to represent the government generally or under FOIA. But I have increasingly seen DOJ not want to negotiate with requesters, not be a check on the agency, and increasingly offer, let's call it in a charitable way, creative arguments to the court about why a case shouldn't proceed. So whether that's trying to dismiss for lack of subject matter jurisdiction, which in the vast majority of FOIA cases is a ridiculous argument, and I think the courts have finally put an end to that practice, whether it's moving to dismiss under 12B6 because a valid request hasn't been filed, and there we can get to the question of reasonable description as Anne was also discussing. There was a recent case in the DDC, I think it's National Association of Minority Veterans versus VA, where the VA, DOJ argued on behalf of the VA that negotiations during litigation about the scope of the request actually created a new FOIA request, and therefore there's no relief to be provided. There needs to be a new lawsuit. Frankly, that's a ridiculous argument, and it's, I don't want to say it's offered in bad faith, but it's disappointing to me to see that that's what's happening in FOIA litigation. Going hand in hand with that, I have noticed some commentary from the bench, mostly dicta, actually all dicta, which seems to suggest that the problem, the brokenness of FOIA is the requester community's fault, and Judge McFadden in the DDC, for example, in American Center for Law and Justice versus Department of Homeland Security last year, he threw the law, the request out 12B6 because it lacked a reasonable description of records, of the records requested, and he said that the nonprofit world is filing lots and lots of requests, and they're all over-broad, they're all unreasonable, and they're doing this because they have everything to gain and nothing to lose because they just want attorneys' fees, they just want to mess with the agencies. Now, let's set aside the question of whether the DDC bubble in the rest of the FOIA world, across the whole country, whether there's some issue there, some difference in perspective that needs to be taken into account. I think the academic literature, and Bernard Bell in Yale General and Regulations Notice and Comment Blog had a nice response to Judge McFadden where he said, well, first of all, there's no evidence to back up any of these claims, but to the extent that the nonprofit requesters are filing broader requests, the luminous request, it's not because they have something to gain, because they're going to have to go through all those records and they're not going to get compensated by the agencies. It's not difficult, it's not easy, rather, to get fees because you not only have to show you're eligible, but that you're also entitled and that you're a prevailing party, but they might be doing this because there is a deep distrust between the requests for community and the agencies, and there is an expectation that the agency is not going to comply with FOIA. And I think there, just to comment further on Ann's point about reasonable description, this is something I am increasingly seeing at the administrative stage and in litigation that two points on it. Agencies are first confusing, perhaps intentionally, a request that seeks a voluminous number of records, which is not unreasonably described, and the OIP guidance is clear on this, and requests that really don't provide enough information to a professional at the agency with subject matter expertise to locate records with a minimal amount of reasonable amount of effort. Agencies, it seems to me, don't want to admit that they have some responsibility to do some legwork at times. Once they get a request, they liberally construe it, they may need to do some research on their end to help find the records, the fact that they have to do that doesn't make the request unreasonably described. The second point there, I think there have been instances where agencies are increasingly demanding information from requesters as part of their description, particularly for electronic records, in order to make the request valid. There was another case in 2018 in the DDC, where Justice Jackson, now Justice Jackson, then a district court judge issued the opinion it was Muck Rock versus CIA, where the CIA had a practice of requiring any request for email records to provide the two from date and subject line, which given the asymmetrical distribution of knowledge between an agency and a requester, it's going to be very rare that a requester could ever provide that sort of information, and that sort of approach to FOIA I think is just, it's certainly not well, the judge said it wasn't according to the letter of the law, I would agree there, but it's also against the spirit of FOIA and how the statute is supposed to work. Another issue that I have a lot of personal experience with having litigated it up to the D.C. Circuit is this rather new issue of what a record is under FOIA, so I think we've had a lot of case law over the past couple decades about an agency record and the question of what a record is under FOIA control, but there's now an anteceding question of what a record is, and to really understand how this is happening and how agencies are sort of gaming the system is it where I think. You have to step back to some guidance that DOJ had put out in 2005 with respect to a practice called scoping. So previously, when agencies received a request and they were processing records, if content within the record fell aside, what the agency understood to be the subject matter scope of the request it could be withheld. Now they can call it withheld. It was scoped out, right? So there was no exemption applied, but the information was not released. It wasn't processed. And that was not uncommon. In 2016, the D.C. Circuit and American Immigration Lawyers Association versus Executive Officer Immigration Review said you can't do that. This is not permitted under FOIA. There's the statutory exemptions and that's it. You have to release the record as a whole. What I have noticed, and I think other requesters have as well is that agencies instead of withholding information as non-responsive claimed that those same blocks of information were separate records entirely. So what was previously non-responsive was now a non-responsive record. We had this manifest itself in various ways. You could have an e-mail chain where half the chain is redacted as non-responsive records, the individual message. So there's a debate about whether the whole chain is a record or not. If you have a multi-subject document with separate headings is each section with a different heading a separate record. Unfortunately in 2017, OIP issued guidance on defining a record in the wake of ALA and it's facilitated by agencies continuing to do this sort of thing. So OIP advised agencies that they should look at the Privacy Act definition of a record or a part of its definition of a record which talks about any collection of information, right? But that it also should look at the nature of the document during processing and the subject matter of a request. There's a lot of problem with all of that. In my case a cause of action Institute versus Department of Justice or the DC Circuit we were dealing with questions for the record and OIP had redacted some of the individual questions and answers in the complete PDF document as separate records. The court said you can't do that. Our policy and practice claim was dismissed for being unright. So we didn't get a ruling on OIP's guidance as such but I think that the general rule that came out of that decision was that what really matters is how an agency handles a record before receipt of a request and yet we still see really weird outcomes with agencies manipulating records while processing in order to withhold certain portions. It may be that they want, it's an administrative burden question and they want to try to avoid having to process content but it could also just be a convenient coincidence that the same information that might be burdensome to process is information that the agency wouldn't want getting out because it doesn't view it as directly responsive to the sort of thing that the request was looking for. I want to leave time for our conversation but the last thing that I do want to say which Anne hinted at me raising was legislative reform and I think it's a place where the committee, I know it kind of tipped its toe into the waters of proposing to Congress in the past two committees I think proposing how FOIA can be fixed, how the statute can be fixed. I think it's really important that that get done that Congress not just tinker but really do a major overhaul of the statute because FOIA is broken. It might be too much to ask the court to ask Congress to completely redo FOIA to throw it out and start from scratch. I would love to see that happen and to be part of that process as I'm sure many of you would and I think at the very least some of the areas where there could be improvement and we can delve into this deeper people have questions is changing how litigation works right? So either liberalizing the availability of discovery or requiring agencies to lodge an administrative record because FOIA kind of lives in a middle space practically, litigation wise between the APA and regular civil litigation reforming the employee sanction provision which has never actually been used expanding proactive disclosure requiring OMB to regularly update through notice and comment rulemaking the fee guidelines and government wide fee schedule considering making legislative branch and judicial branch agencies subject to FOIA there's been a lot of talk about that with the Capitol Police Department and a personal favorite of mine which if any of you joined AFPF's FOIA discussion during Sunshine Week it's creating a specialty court an Article 3 specialty court that just deals with FOIA but with that I'll leave it open to questions. Now I'll leave it ready for that. Now that's Ryan thank you so much give us a lot to think about as did Katie and Anne so I want to think all three of you for that and all of you are jumping out of your seats to ask questions so does anyone want to go first? This is Michael may I ask a question? This is Michael with the EEOC which is a small agency as everyone probably knows I'm really fascinated about the the revising or overhauling the FOIA statute I think that's really interesting and I guess it's kind of two questions first Ms. Wiseman you had mentioned that you had some thoughts about how to reform I know that I know that Mr. Mulvey kind of listed some that he thought my first question to Ms. Wiseman is is there maybe two or three off the top of your head that you would think would be something that the reform FOIA would have and then my second question to all three and also other folks on the committee and this is something that's just very interesting to me and it might strike controversial to the Requestor community but does the 20-day or 30-day timeframe reflect the current times in terms of processing and if it doesn't what number do you think there is if there is a number because I know some of you said it takes years and that almost sounds like there isn't a number I'm really curious about that question thank you this is Carmen from the TOD I'd like to be next sorry okay let me jump in first that I know that Katie and Ryan will also probably be easily jumping I mean if I had a wishlist on FOIA reform I mean I share Ryan's view that I'd love to see the entire statute just yeah we should start over but recognizing that's not likely to happen I do think there has to be reform to expand and clarify the role of court you know we've gotten some troubling decisions including one out of the DC circuit about how limiting the court believes its role is only providing relief to a specific requester as opposed to larger relief I also think we are struggling we who litigate see patterns and practices of behavior all the time and addressing it only to a single FOIA lawsuit is just not adequate I think we need to get further clarification or expansion of a court's authority so I think that is one way to and I agree with Ryan I mean I think there needs to be probably needs to be discovery you know there needs to be an administrative record at least so that FOIA litigation more approximates other civil litigation as far as the statute I mean one of my biggest frustrations is that I often bring I typically bring lawsuits or bring requests excuse me that I believe are in the public interest I mean I work for public interest groups these are not documents I want in my personal capacity I think they touch on fundamental government policies and actions and there is a very limited ability within the FOIA to raise and have a court consider the public's interest in the documents you know the foreseeable harm standard I think in part as Katie was explaining and this is all legislative history it was a reaction to the overuse by the government of exemptions especially exemption 5 but I don't think it goes far enough and so I would like to see a codification of some balancing test or way to ensure that courts will consider the public interest in the information as well as the governmental interest that are protected by the exemptions because right now I think the public is given really short shrift and as far as changing the 20 days I didn't see much difference frankly when it was changed from 10 to 20 I don't think there is a number that's going to work I think the problem is it's just fundamentally underfunded you know I think there needs to be a line item funding for agencies I think Congress and agencies need to treat it before what it is which is a statutory command not a you know wouldn't it be nice if you would share information with the public I'll jump into strongly second some of the things Ann said I'm a little bit biased my colleague Adam Marshall and I in 2018 proposed in a law review article in celebration of the 50th anniversary of FOIA public interest balancing as a necessary we believed amendment to FOIA for the reasons that Ann has highlighted particularly pre foreseeable harm there was simply no nothing a court could do if records fell within the scope of a discretionary exemption even if the court strongly believed it was in the public interest to release that information there was simply nothing they could do but I think that pre foreseeable harm provision has changed that somewhat but it doesn't it doesn't incorporate the public interest in the way a balancing test for the public interest that I think is particularly important and so we would I would love to see that be part of any future legislative reform I want to underline something that is I find particularly frustrating about FOIA and often when I'm talking about FOIA it's people who aren't able to look at this statute read the statutory language and if you read the statutory language you would think that it results in the most possibly the most transparent system possible because the statute itself is from my perspective excellent and very requester friendly that the statutory deadlines are not unreasonable I don't think the 20-day statutory deadline with the additional 10 business days and unusual circumstances or a maximum of 10 business days is I don't think that those are unreasonable but they're not overly lengthy we're talking about de novo review when you're in litigation which is unusual which is unusual so there's no discretion the court is purportedly giving no discretion to agency withholdings the litigation there's some at the litigation stage there's so many aspects of the statute that are very very pro transparency I think where things start to fall apart is on the compliance compliance with the law and you can rewrite the law a million times and if there's no compliance then and by compliance I mean look yes at the agency level and I agree fully with Anne that there needs to be more resources FOIA is an unfunded mandate and that that is that if we truly are serious about about changing and fixing FOIA I think Congress should think about funding it as opposed to just making changes to the statutory requirements but also courts have a very significant role I think to play in this as well because agencies will not put the resources into funding FOIA compliance if courts are not requiring compliance once they're in litigation and I think the way that FOIA litigation typically runs you know where you will and Ryan already spoke to this sort of you're in the process and then there's a maybe 500 page processing per month kind of schedule that's put in place none of that's really consistent with the statutory framework and I think if you if we had judges who were more willing to hold agencies feet to the fire in terms of compliance and impose quite frankly much shorter processing schedules or faster processing schedules and things that force agencies to put resources in I think that that would help as well so I think from my perspective I'm less concerned about tearing apart FOIA in terms of as a legislative matter than I am about trying to get compliance with FOIA as it currently exists just two quick things to add on the deadline being changed I think Anne was thinking about this but in my mind the deadline isn't there for the agencies anymore the deadline is there for the courts and plaintiffs and it's just it just serves a gatekeeping function and I think even Judge Sreenivasan it might be in some DC circuit decisions has basically said as much I think it was a policy in practice case from a few years ago so I don't think changing it is going to do much of anything frankly the only other possible reform because I know I think it had been deferred but it was considered previously by the committee as a recommendation I think it would be a work an easy well a workable and an acceptable reform a bipartisan basis that Congress to strengthen OGIS and to really give it more of an ombuds function that is not just about voluntary mediation that then is also voluntary compliance with the outcome of the mediation but is and you see this in some states under state laws where the attorney general's office will have special you know division that does FOIA appeals and then will even enforce against an agency if it doesn't comply with the outcome of that appeal process if OGIS kind of had a role like that or it was mandatory compliance with the outcome of whatever process OGIS is doing that would be I think that would be something welcomed certainly by the requester community okay I see Dave Collier smiling something he championed in the last term okay so I've got three folks queued up Carmen is first then Ginger and then Alex in that order morning everybody this is Carmen with the DOD I'd like to thank all three of you for being part of this panel and really sharing your knowledge and expertise with our committee I love that this is what this is for right the whole purpose of us trying to understand the requester community and hearing frustrations problems from the other side is extremely helpful to all of us I believe and with that being said I wanted to hone in on a comment that Ann said in regards to still interested letters I agree 100% that those should be used very sparingly yet they are used and you said that there was not enough time to respond so I wanted to know what would be the appropriate amount because it's 30 working days not including weekends or holidays so that equates to what about 40 45 days for the requester to respond if they are interested I do believe also different methods of reaching out to the requester should be made and that should be via mail and email considering that they provided an address for any sort of communication and also I wanted to ask so that was my first question what do you think would be an appropriate amount of time days exactly I wanted to ask you said that sometimes emails are sent to requesters they are no longer there so they can't respond or the email doesn't go through because the email address has been deleted so shouldn't request from organizations come from a distribution list that includes a lot of people so therefore there are questions as we're going through the case and processing it if the agency has questions to ask about the request shouldn't that email those emails just request if it is an organization obviously for a single requester that wouldn't be an option so wouldn't that be a better way also for organizations to be kept aware and if a letter is sent it doesn't get sent just to that specific requester within the organization rather to a distribution list and that could help I would think mitigate the issues with you know not getting a response I know for a fact that if an email address has some work for any reason you know after we're processing the case we look at the organization you know and try to reach out try to find who the person is that is you know anybody right can you tell us what happened can you who would be the person that's taking over this because we have several questions so we have a respond I'm really sorry to cut you off but we have several other people who want to ask questions sure sure so those were my an opportunity to respond thank you so much no problem well you may have misunderstood I wasn't saying the email address no longer worked I was saying the problem is that because the person who wrote the request is no longer there it simply takes time to track it down and evaluate it we don't have a lot of knowledge especially when it could be three or four years old I think your idea of maybe having a more universal email address is a good one I mean I had an instance recently where we gave the name and work email address of the contact person that person left but their work email address was still monitored on the day after they left the agency sent a unreasonably described letter to that person at her personal email address we never got it they actually moved to dismiss it which was a good example of Ryan's you know improper use of 12v6 or whatever but I agree I mean I think I don't know what the perfect time is but this highlights something that I would like to see happen more generally just even beyond the still interested which is more of a dialogue you know when I am able when an agency person calls me and says I got your request I'm really confused or do you realize by framing your request like this this is what you're going to get and I can say wait a minute that's not what I want I mean it is so mutually beneficial and I think I understand you're under pressure to process a lot but taking a little time to engage in a dialogue whether it's are you still interested we'd like to talk to you about this or you know it's going to take a long time but can we talk about and explain to you why it's a problem for us that would go a long way so I really want to encourage agencies to have more of a dialogue with requesters thank you Anne thanks very much and thanks for the question Carmen Ginger you're up next and we've got some other folks in the queue hi thank you all for joining us several of you touched on this a little bit but I wanted you to expand a little bit further do you think that resources sorry I forgot to introduce myself Ginger McCall demand progress sorry to what extent do you think that resources are you know a contributing issue to many of the problems that you're seeing and if you do think they're a contributing issue what from your standpoint do you think would be helpful toward fixing that problem thanks let me just add something because I think Anne and Katie both mentioned you know the need for more resources that entirely aside I think a lot of the problems that might happen with FOIA come down to two causes the first is just lack of communication between requesters and agencies you know I have as president of ASAP and having been around ASAP for a while as I know some of you here have been involved with ASAP as well you know a lot of times there's each side is kind of like afraid to talk to the other and if there were just more dialogue and on the agency side better customer service and on the requestor side a little more understanding of what's going on at agencies both with cues and in terms of you know it's not like most FOIA officers can push a button and like do a search themselves right send out tasker memos and I'll get to that at my second point it's related to that but if there were just better dialogue a lot of problems would be solved and I don't think you need more money for that the other is there just needs to be a culture change on the government side with FOIA right so I have met all the FOIA professionals I have ever met are good people and believe in FOIA right so don't let my comments about DOJ litigation earlier suggest otherwise people who work in FOIA believe in FOIA but they don't have the authority to make FOIA work well and if a program office doesn't want to do a search for records there's really not much the FOIA officer is going to be able to do and a lot of the delay comes from that I think or if there's a sensitive review or political review of FOIA processes or a place in an agency and people from the comms shop or from agency front office who have nothing to do with FOIA are getting a say or getting time to review whatever that means that's not a matter of funding that's a matter of culture and I think improvement there could go a long way in making FOIA work better I'll second the point about communication that Ryan's made I think especially a lot of the journalists to have a conversation with a FOIA officer about potentially narrowing a request if that makes sense but they can't have that conversation if there's no communication so I do think that that's a really important piece that has nothing to do with resources that said if you're looking at agencies with really significant backlogs really substantial backlogs and they're under staffed then that's a problem that no amount I think of communication is going to fix and although we do need some fundamental changes I think within the culture when it comes to responding to requests and what to withhold and all of that I think that there are situations particularly at agencies like I said with the FBI for example with significant backlogs where there need to be more resources personnel put towards reducing those backlogs I don't think there's any other way to do it and the delay as we've already talked about in and of itself spurs additional litigation that really shouldn't be necessary if it's really just litigation being brought to get request process let me just add there are tools out there to help agencies there are e-discovery tools and new ones are being developed all the time I know Jason Barron who's on your committee is familiar with this agencies need to think about this as it's an agency responsibility to solve the problem not just you know the FOIA office's obligation to solve the problem and I think that access and use of greater electronic discovery tools really can present a very useful answer I've had cases where agencies don't have access to the e-discovery tools that they're litigating components do or agencies that say they don't even have the ability on electronic records to do a deduplication I mean in this time where we are with electronic records and electronic record keeping and tools I just think that's completely unacceptable okay thanks all of you I really appreciate that next is Alex found the mute button Alex Howard digital democracy project it's good to see all of you virtually I'd be great to see you in person someday again soon thank you all for your perspective and insight here it was absolutely wonderful to get to hear this FOIA nerding out with you is a real pleasure and thank you also for your past comments Ryan the cloak when you put together for Sunshine Week this year was terrific and I wanted to ask you a couple questions the first one is actually informational there was a consultation on the Freedom Information Act the White House Office of Science and Technology Policy held early this week Bobby from OIP was part of it had any of you heard about that so I would say that you all are leaders in Open Government Freedom Information Act in our community I mean you may not describe yourself that way are you aware that there's interest in receiving potential commitments from the U.S. government as part of the next national action plan for Open Government for the Open Government partnership have you heard anything about that in the last year the action plan I heard about from you Alex okay I wanted to make sure since you all had such substantive constructive detailed and concrete ideas to improve the FOIA that you knew that there's a consultation that will be open through Friday that you can submit these comments to and I will say Ryan that I sent the essays from your colloquium in and that's true for anyone else who's listening you can go to open.usa.gov and you can submit comments and OSTP has specifically asked the FOIA community and requesters to put this kind of information in and I wanted to suggest that you do that along with other people because it would be really useful to have those put into the record and it's wonderful to hear all of the process suggestions you have I wanted to ask about something specifically though that is different from technology or modernization or the statute which is culture if you just touched on why do you think there's a cultural issue around the Freedom of Information Act in the agencies what's been missing in the last five years or decade that would change that what would you recommend to us to recommend and to the U.S. government to the extent people listening that could change that what's the missing component on that. I'm reminded no no no no no please first. This isn't an answer but I think a start is that people in the government need to be trained about what FOIA is and what it was intent and all of its laudatory goals I mean if you read as I've had to do for too many launches if you read the legislative history especially the early legislative history you know when they were creating the statute and the kind of government and government transparency they envisioned started from the shared belief that open government was a fundamental value of our democracy I mean after all the FOIA was first signed into law in July 4th that wasn't an accident you know it was it was done to stress that this is a a prerequisite to a democratic society and I think for people in agencies to better appreciate the role that FOIA plays in our democracy you know we have to get a shared agreement and belief and understanding you know buy-in from everybody that this is a really really important statute. Thank you. I think just two quick thoughts I think that agency leadership needs to show respect for the FOIA office I remember news stories from 2017 I think it was the department of state where people were being assigned to FOIA office to the FOIA office as a punishment you know that's not or I think even earlier back to Department of Homeland Security and the issues with whistleblowers from the FOIA office who were consigned to windowless basement offices for having you know told Congress about political review appropriate interference with FOIA like that sort of stuff needs to stop and in the same way the highest at the highest levels of government perhaps down a little bit too to the middle highest there's a complete lack of regard for the fact that the records of the government belong to the people and I think perhaps with increasing technology that's been exacerbated what I mean by that is like walk down the hall and talk to somebody in the office we send a text on your work issued phone or you have an interagency text message system or you use telegram or I don't know anything like that we have all these other ways of communicating informally instead of just talking and we're creating records but we don't want to accept that those records are records right and there's been a lot of abuse with that and so I think that carries over to a broader idea of well these are my records why should I have to share them and if the higher ups in the agency don't believe that the records that they create whether it's a tweet or disappearing messaging app message if they don't believe that how are middle level people of the agency supposed to or across the government right supposed to feel and so there's a trickle down effect that way undoing that is not I mean I don't know if I have a solution for that that's difficult well hold the highest levels accountable yeah so you're saying that presidents shouldn't designate public records as their own well I'll say this I wish we had you know this is not an attack on any one administration I think we were all a little disappointed that it took so long to get the Marlin memo and we were a little disappointed when we actually read it I mean there's good stuff in there don't get me wrong the whole immigration proceedings section in first person request that's going to be a big help if there's follow through on the agency's part but it took a long time to get that and if we had gotten a presidential statement an AG memo on day one and a commitment that we didn't have the last time we got a presidential memo and the AG state memorandum in the federal register if we had actual follow through it would go a long way too in setting the tone for all of way across the government I think I want to keep things moving along Stephanie I believe you're up next hi thank you Stephanie Jewett office of inspector general at the US department of interior first thank you all for joining us today this has been very informative to hear your views I just wanted to talk about a little bit for a minute to hear your views as we all know litigation has been dramatically increasing over the year sort of what you guys have spoke about especially because of this missed time frame so constructive denial litigation from what we have seen especially in the smaller agencies requesters are skipping right over the appeals process which is allowed in going straight to litigation and I've heard some comments today that say things like well it would be nice if the courts like held our feet to the fire in production orders however most of the times especially in government agencies in small ones like the IG offices the ones processing the FOIA in the production order are the exact same ones who are handling and processing the FOIA request in the backlogs so what the litigation is actually doing is putting one case as a priority at the detriment of all the other cases in the backlog and getting us further behind so I'd just like to hear your thoughts on lawsuits actually slowing down the FOIA process and increasing agency backlog and just hear your thoughts on what you think could resolve that issue thank you I will jump in and say I don't think litigation is the cause of the backlog I think litigation is the result of the backlog and unfortunately I think for and I do think it's unfortunate I think unfortunately for a lot of the as I said earlier journalists and news organizations that we work with that have an urgent need to inform the public about matters of public concern their only option to get their FOIA request processed in a reasonable way is to sue because their request has been constructively denied there are instances it's interesting that you mentioned the administrative appeals process which of course isn't necessary if there's been no determination which in the statutory timeframe but it is something that I know that we at the reporters committee for our own request have done in the past in other words submitted administrative appeal even though we're not required to do so before filing suit I know that there are other organizations that we've worked with who have utilized the practice of sending a letter or prior to filing suit unfortunately those types of efforts pre litigation efforts don't tend to really move the ball much or be successful I mean I just I'm very resistant to the notion that requesters should not sue or that requesters by suing to assert their rights under the FOIA are somehow making the problem making the backlog worse I think that to the extent there's a backlog and it's resulting in these kind of constructed denial lawsuits to me that's a problem at the agency level that needs to be addressed through more increased resources at the agency level to bring the backlog down anyone else Ryan or Ann this isn't directly responsive to the question but I think since the issue of small agencies came up and I'm kind of thinking off the cuff here but I wonder if there could be a way to come up with frost government resources for these smaller agencies to assist in things like processing of administrative appeals it's kind of an amusing anecdote but I once filed a request with a very small commission I don't even remember what it was they don't even have a website so you wouldn't think they're subject to FOIA but I was dissatisfied with the determination and I was like well how do I file an appeal and the FOIA officer said well I'm also the appeals officer I can tell you how it's going to go and she didn't mean it I don't think in a nasty way it's kind of funny but obviously there's a problem legally I think with that arrangement but in a situation like that maybe there needs to be whether there can be interagency agreements that a larger agency can handle appeals or there can be some sort of new entity created to help manage some of the burden that small agencies with one or two FOIA officers have there could be creative ways to help I know that's not really responsive to your question but I hope that insight is at least useful still and let me just add I guess a question I would have is how much are you taking advantage of proactive disclosures if agencies were far more aggressive in proactively closing records I do believe they would see a corresponding decrease in the number of FOIA requests especially when it's records that you know are likely to be requested like IG reports it should be automatically posted it shouldn't take a request to get them put online all right thank you so much Katrina and Bobby are our two last folks in the queue I just want to make sure no one else has a burning question but over to Katrina next Katrina you're on mute I'm Katrina Petlutinen and I am the Deputy Chief FOIA Officer for the Department of Homeland Security I want to thank you guys for sharing some of the insights that you had with us today it was very informative one of the things that I wanted to say was that I actually agree with one of the things Ryan getting basic one of the things that we're doing at DHS I've taken over I'm going halfway through my second year I think so we're getting back to the basics of the communication what you were saying is talking to the requesters and trying to figure out what we can get them and how soon we can get it for them and news media especially it's very important for you guys to get the articles that you're looking for and to get information out there we did a lot of proactive disclosure on the January 6th incident and we're actually doing we're going to be we actually have a whole plan on proactive disclosure that the secretary is actually 100% supporting and so I want to say to you, you all are right when you say it has to come from the top down when Secretary of New York came I was one of the first people that he met when he first came to the department and we had a long conversation about FOIA and about how important it was and about how these records are to the public and one of the things that I wanted to say though is that and for up to the top I think it's very difficult and I wish people would understand that we are not the I've done FOIA literally half of my life so like Alex I'm a FOIA geek I love it, I'm a nerd for it I've left it for 15 months one time and a previous life I came back to it but what I wanted to say was that it's very difficult for us to get the records because the mission of the organization is that, the mission of the organization and FOIA is like a lot of people and not too much in DHS but a lot of collateral offices, you know a lot of other agencies, it's a collateral duty and the agent you know when you guys say like it's numbers and you just pull it out of the system and everything, well there's people that are pulling the numbers out of the system 19.10 or the agents that are actually also out on the field and I actually recently had a SDS conference with a bunch of of agents and non-agents and we talked about that and one of them actually said if you would support us having mission support people to do FOIA instead of me having to do FOIA and doing my mission job which is really to be a gun toad or then we could get a lot more accomplished, both them and us and so one of the things that I think we're starting to see at least with Department of Homeland Security is that our own mission critical people in the field are seeing that this is critical and it's a mission that is important and has to be done but it's also taking away from their mission which of course we can't do so the idea of resources I want to let you know I'm constantly asking for more resources at the Department of Homeland Security and not just for me, I've actually helping I just recently did a background reduction plan for TSA for me and for Health ICE which is where I was at for 15 years of my career and we are looking to get those backlogs down as a commitment that we have and we have a backlog reduction plan going for all the other components within DHS that we're looking to do. What I ask of you all if you could is as much as you're out there talking and resources are important we also need technology. My biggest thing is to get technology and teaching them both what FOIA is and that's across the board we're teaching people from the moment they walk into the door at DHS what FOIA is and how important it is and I think that's something in all government agencies that everybody needs to do but we both need technology, we need resources and we need data sets data sets that actually can be useful to people and those are the things that we're trying to pull together and have all three working together and that's all I wanted to say and if you guys I agree with a lot of the things that you're saying the one thing you were saying about the backlog, the litigation I have to agree with Stephanie I have seen a huge increase in the backlog when litigation has become a priority over the backlog because resources from processing go to the litigation because I don't have staff for both so you're basically stealing from here to pay Paul and it all is the same so that's all I wanted to put out there for you guys Thanks Katrina I'm going to move over to Bobby because we're running out of time soon Bobby you're next Good morning, I'll be really quick I just want to thank all three of you this has been really it's really helpful to get your perspective and it really helps inform us on how we're seeing your frustrations and challenges I think one of the themes there's a lot but one of the themes communication I couldn't agree more and we stress communication in a lot of our guidance and our training and have found agencies that have expressed it as a best practice and explained how it's benefited them in their chief board officer reports at the recent ASAP we're not the recent ASAP meeting that I went to I really enjoyed a panel discussion which the request for a panel explained some of the great examples of how communication was helpful and how maybe it's not helpful when there's no communication and so we definitely stress that at the administrative level and in litigation I can tell you the last thing we want is to use our our priceless resources for communication with you we would much rather negotiate and have a simpler request that we can process and get you the information that you want so I had one question that I was doing one more point the question I had for you is what would you say is a way that we can work with you to make a complex request simple often there are requesters that are very helpful in communicating with agencies around the scope of the records they want and understanding based off the communication with the challenges and maybe a particular search is and what not and we've seen that very successful in my office I've also heard a lot of success in other agencies that have like one name that has a negotiation team reducing millions of pages of records that they needed to process but that was my question was and you had mentioned that the foreseeable harm standard was Congress responding to a perception of overuse of exemption 5 I just wanted the history of it just wanted to bring it up that the foreseeable harm standard was DOJ policy and for a number of years as it was policy we were ask agencies do you have a process for it and give us examples of when you're releasing information about a matter of discretion because of the foreseeable harm standard I believe Congress codified it so that the DOJ policy standard wouldn't shift back to one that was in a foreseeable harm standard and I think I can tell you that we very much consider it in our analysis and the aging guidelines that we just released now ask agencies to in their response letters affirmatively say that they have considered the foreseeable harm standard when exemptions are applied and also that FOIA request service centers and FOIA public liaison if a requestor has a question about what is the why you're applying this exemption or what's the foreseeable harm that they should communicate that but again I just wanted to thank you all and I would really love to hear your insight on what actually works when an agency is communicating with you and we're able to make a complex request a little bit less complex or hopefully simple yeah I'll jump in there just to push back a little bit on that I mean yes yes the foreseeable harm standard was part of the Holder Memorandum and it was related to when DOJ would defend in litigation certain withholdings that is I think fundamentally different I mean yes that's the genesis of it but I think that's fundamentally different from having a statutory mandate that is then enforceable under a de novo review standard in litigation so I think you know and in congress's intent and I think the legislative history is pretty clear to simply do more than that the foreseeable harm provision was intended to do more than simply sort of solidify than DOJ policy so I think it I mean I take your point but I think I'd push back on that a little bit in terms of what the provision as codified in the act does and was intended to do I appreciate your very much your point about communication and I do think that that is an area that is incredibly important and I think especially for the sort of I'll call them constituency the folks that we work with the journalists and news organizations I think often times time is sort of of the essence and in terms of the requests that we see journalists making and that's that's true even of sort of the longer term investigative projects that folks use FOIA for I think most effectively they still are very often willing to have a conversation with a FOIA officer or a FOIA professional within an agency about concerns about the scope of a request or searching for certain types of certain record systems versus other record systems or things like that that can make both life easier for I think the folks who are processing the request but also potentially speed up the process I mean that's something that the requesters are very the requesters that we work with are always very interested in doing and so I think that having a willingness to do that is very helpful one of the things that we've done in our own request I can think of some request that we've submitted recently is give FOIA agencies an option to sort of give us information to the extent that they can pull that information as opposed to giving us the underlying records themselves so for example we've done some what I would call kind of research FOIA requests aimed to get it more information about GLOMAR and either confirm nor deny responses at different agencies and one of the things we've done is said in the event it's easier for you to just tell us the information we're looking for rather than try to find all your responses that use the words neither confirm nor deny we're willing to accept that because we just really want the information and that kind of flexibility some agencies feel like they can't do that but we've had some agencies who have sort of taken advantage of that and I think that kind of flexibility on the agency side too can also be really beneficial kind of that two-sided discussion but you can never do that unless you're having that discussion to begin with so if I could you go first okay yeah this is real quick I was going to say there's really good guidance that OIP issued 1994-1995 so foreseeable harm the presumption of openness comes from the Holder memo but foreseeable harm goes at least back to a memo that Janet Reno I think issued and it was the same basic idea that the DOJ wasn't going to defend exemptions and I agree with Katie that that's fundamentally different but DOIP was it not called OIP back then I think it was called something different but DOJ issued guidance building that out and they went through at least the main exemption five privileges attorney client attorney work part of the liberal process and they put out a bunch of factors that ought to be considered as part of the foreseeable harm standard since codification of the presumption of openness it seems to me that that guidance there hasn't been new OIP guidance of the same sort at least as far as I'm aware and I would like to see something like that come back because those factors aren't actually being considered anymore I'll give you an example passage of time is one of the factors that's considered in the 1994 guidance but agencies regularly argue now that passage of time doesn't matter for foreseeable harm for example with the deliberative process because the only relevant passage of time is now the 25 year sunset provision and we see new arguments now that for attorney client privilege that really there shouldn't be any foreseeable harm that it's self-evident that the fact that the privilege applies in the first place ends the conversation that is the foreseeable harm and the same argument has been made with Exemption 4 it seems the case law is kind of going in favor of the requesters and a sort of resurrection of the substantial harm test that the Supreme Court eliminated which is a fascinating discussion in and of itself but I would love to see the old OIP guidance resurrected so that foreseeable harm is strengthened without needing to tinker further with the statute Thanks Ryan and we do have I'm not saying that new guidance wouldn't be bad but we do have more even more recent guidance that lays it out after the older Pema On your point about complex requests and working with the community I wanted to identify a problem that I didn't mention at the outset but intended to and that is the huge discrepancy and this typically happens in litigation between an agency's initial estimate of responsive documents and the number of documents at the end of the day that end up being responsive I mean I have seen cases where there are estimates of tens of thousands and we end up oh it was really only several hundred so and I think this addresses in part the issue of complex you know what makes it complex what is going into an agency's initial assessment I mean it's a real problem because courts are not inclined to challenge when we try to they just accept the face value an agency's representation that it has a hundred thousand you know potential responsive records and needs so many years to process it but I think agencies need to do a better and more accurate job of identifying responsive records because I just also I mean I'd like to hear from all of you I don't understand how you know a vast pool of documents gets reduced to something much much narrower you know our agency's de-duplication what search terms are they using are you talking to requesters about those search terms I just feel like and I feel like the responsive is on the agency to overstay especially in litigation because that gives them a time question that they wouldn't otherwise get I would say this is an area where I think communication is key because I think there's a lot that goes into and depending on when an agency is looking at the request and the information they have at that time you know that really factors into whether they think a request is simpler complex so it's actually the track should be fluid so at intake you might get a request that on its face looks simple or on its face looks complex but after you do the search you understand well it didn't involve that many custodians or it's not that many records and so that switches I can tell you the tracks for us are very important so that we keep the process going we want it to work for us but we definitely stress communication to explain to you at any point why something is simple or complex and as far as like why maybe something like and I don't know every specific case might be different but I could think of like one example where you know in doing initial search we'll probably try to cast a wide net so that we can capture everything that could possibly be responsive and do a very thorough search but then in reviewing those records for responsiveness realize that you know a lot of them weren't responsive and so that could be a reason for the discrepancy but then again I think that's where communication is key and I agree with you there I wanted to mention something that I also intended to mention earlier but did not and it goes to this question of responsiveness and responsiveness review one of the things that we're seeing in litigation that I think is a frustration it's not all agencies but it's certainly a number of agencies that we've seen this with is the conducting of once you're in litigation so often if not if we're litigating if we file a lawsuit and we're litigating a case where there hasn't even been a search conducted yet at that point the search will be conducted and then there will be the documents will be processed and reviewed we're seeing situations where there will be a separate responsiveness review before there's any review for for exemptions of withholdings and that's something that I think has added an additional layer of delay in terms of our clients or organization getting any records at all in other words there's this entire responsiveness review and then a turn around and then a secondary review so the same documents are getting reviewed twice first for responsiveness and then for exemptions and I would think I've tried to wrap my head around why that's an efficient a process I think to my mind you would review a document that's responsive you would review it for exemptions at the same time but I will note that as an issue that we have seen that I would that I for the life of me cannot understand why that's a good practice all right I just want to note the time it's 11 47 we were scheduled to take a break at 11 30 I knew this was going to be a lively conversation I pulled some of you by chat on the committee to ask if we could skip our break I've gotten a bunch of thumbs up I hope everyone else can agree to that because we do still have two folks in queue Jason and Tom both of whom promised to be quick and then we'll move right into our subcommittee reports so and also I had more to remind everyone Katie has a hard stop at noon so Jason you're up next thanks well the reason I recommended this panel take place is because you all are extraordinary so are your the organizations that you're associated with and other public interest groups and I would like to see the culture of the government honor public interest groups in their good faith efforts to have access to the people's records I have two questions one is have you encountered problems if you've asked for electronic messaging communications apart from email because there are so many gaps and texts that are out there and what are agencies doing to respond on that point and then secondly I think you all know that I've been associated with the capstone email policy for NARA the unintended consequences or maybe the known consequences has been tens of millions or even hundreds of millions of email records and perhaps electronic messages folded in in the future that are going to be a problem for agencies to process even very narrow specific requests are going to generate hundreds of thousands if not millions of hits and I'd like you all to think about and respond to a strategy that I believe would work which is that you all in the public interest groups you represent ask as an interim matter to have a sample of those 100,000 hits and look at 100 documents or 500 documents and see what redactions there are and then make an evaluation as to what should be done with that request I think that would be a more efficient process so those are my two questions I'm happy to jump in first working backwards I have often requested that agencies give sample sets to try to narrow request usually especially if it's in litigation the answer is no and the agency won't do it I don't understand that I sometimes have better luck if the agency wants me to exclude certain types of records because it thinks that they're not going to be responsive but like in terms of just a general where everything is responsive and we're trying to narrow down the keyword search or something like that I don't have very much success with that it's only when they want me to agree to throw something out on the instant messaging text messaging, electronic messaging so I'll post a link my organization some of my colleagues did a report on this Together Cause of Action and AFPF about agency compliance and the extent to which they have good guidance on treatment of electronic records in light of NARA's excellent guidance it's been a few years since that report came out so I don't know what might have changed since then but generally what we saw was that agencies had deficient guidelines for treatment of these types of records and that when we were requesting them we weren't getting them and this was all before even the more recent problems with disappearing messaging apps and encrypted messaging apps and all of that sort of stuff but I will post that link so that you can all take a look at the report on a related point when I have asked there seems to be evidence that agency personnel are using private email accounts to conduct agency business and we have asked that at least the employees be asked to search their private email accounts I mean agencies are refusing to do that and there is some uncertainty and disagreement about what an agency's obligations are vis-a-vis an employee who uses a private email address to conduct agency business so that's another area of concern that I have and on your point about sampling I think it's a good one I will say that this isn't quite that but I am often very open to doing what I call staging a request starting out with seeing what an agency has to a much narrower aspect of the request and if that satisfies me I make it clear I will go away and if not usually they want me to file a new request and I say fine just put me at the head of the line and they say yes certainly I think that trying to carve out a smaller subset is often the best way to at least get something because something is better than nothing every time we have had some success I would say minor success in litigation and working with agencies to narrow request once in litigation by asking for samples and getting sampling and we try to I will say from our perspective our attorneys do try to make proposals that we think will benefit our clients and the agencies in terms of things like not just as Ann said staging the way you make requests but also trying to stage releasing certain records before other records or processing records before other records and doing sampling and those sorts of things to try to try to see if we can expedite get us closer to the resolution of the case faster so I think I'm always open and I think all the attorneys that work with me are always open to discussing those things and I think that goes right back to the point about communication not just we talked a lot about communication in the administrative level with agencies and requesters but I think having that kind of communication once you're in litigation can also be really beneficial to everyone involved I would I'd say on the sort of non-government email and other kinds of communications point it's difficult there is some case law on this so there's the CEI against OSTP case in the DC circuit but it really looks at an agency former agency head so really people high up in the agencies it's really hard to know what you don't know and so it's really difficult to say whether or not when we make a request for sort of all communications whether or not we're getting all communications or whether that's just going to be an email search and it's difficult unless you have some indication from say other records that have been released to you that there are other kind of communication systems being utilized that that was the case in the OSTP case for you to know and so I think that it's difficult I would be uncomfortable even saying we've had a problem or we haven't had a problem with that because it's difficult to know kind of what the scope of that is without really knowing what the scope of that is All right, thanks so Tom you're up next and you're our closer so go ahead please Thanks Tom Sussman great insights great examples great recommendations quick personal view legislation heavy lift culture change very heavy lift that's just based on only 50 years of experience before you one of the things I think a number of you Ryan and both mentioned things that OIP could do and I think I'd like to sort of get you to further focus on those perhaps to supplement the record because we do have Bobby as a permanent participant of this committee and so we have a captive audience the term OCHIS hasn't come up this morning and yet all of you have talked about the procedural problems delay, no answers no negotiations, no communications and OCHIS expertise isn't in applying exemptions it is in working with agencies and requesters to try to facilitate expedition and responsiveness of the process and you mentioned a lot of the problems you have getting any response at all have you ever tried OCHIS to be of assistance and what's been your experience should I put that on the shelf of a moderately heavy lift that's a very fair question and I will admit I haven't in those instances where it's simply trying to get a response from the agency as I mentioned like POGO for example I mean they have I don't do it, they have someone on staff who will periodically call or write or email an agency and say what's the status and they get no response and they get no response we could turn to OCHIS I feel like OCHIS would have to get involved in an awful large number of requests I guess I've always viewed OCHIS as more available not that they're not available for this it's like a recent when maybe at the administrative level you're really stuck on a legal issue that you think the agency is just not seeing correctly but you know it's a fair point I don't know if OCHIS wants to get involved on a day-to-day basis that you request but if they have the resources it's certainly worth considering this is Tom again it certainly seems to me as opposed to litigation that's what OCHIS was originally established is to try to diminish the need to litigate these issues and we ought to at least give them a chance I had mentioned OCHIS earlier about, with reference to some of the committee's deferred recommendations from past terms and I think there's a lot of potential with OCHIS and I think the OCHIS staff are wonderful but there are limitations to what OCHIS can do you know I don't use OCHIS, I did when it first started the mediation stuff I tried it I got a great outcome in one case and then the agency just never thought they didn't do anything so I had to sue anyway because OCHIS can't enforce nothing's really binding with the mediation so unless that changes and agencies aren't going to want to see that and OCHIS as it's currently staffed and funded I think it's fair to say would be incapable of taking on that sort of role it would need to be triple, I don't know, not even triple it would need to increase 10 times to be able to handle that sort of docket it would just be a completely different type of organization I'd love to see something like that again maybe that's non-exclusive to the regular administrative appeal process and litigation and all of that but there would need to be a lot of change where I think an easier reform where OCHIS could have it has authority to issue advisory opinions, I'd love to see that beefed up and to see a lot more even to the point where members of the public, like there's a formal process for them to request regardless of whether they're in an active dispute to request guidance of the issued government-wide and to see that sort of of that sort of process but that might start a turf war with OIP I understand that needs to be worked out in the statute but I think there's a lot of potential with OCHIS okay well on that note I know that as I said Katie has a hard stop at noon, we've still got reports that we need to hear from our sub-committees I just want to thank our wonderful panel I think we're going to have to have you guys back because there's still probably a number of questions that folks haven't had a chance to ask so please consider that possibility and please members join me in a round of applause for our great panel thank you really appreciate it thank you for having us thank you Anne, appreciate it thanks Katie and thanks Ryan okay I'm going to keep moving Michelle could we please go to the next slide skip the break slide so we're going to hear some sub-committee reports now that we've got our three sub-committees and just extremely pleased with all the work that's already begun among the three sub-committees I just want to commend all the committee members for signing on to join at least one sub-committee I think Michael Heiss gets the prize he's a member of all three so we should call him out for that as a shining example but I know a lot of you have done a lot of work already and I just want to thank you for that so I'm very excited about what lies ahead so with that preamble let me turn it over please to Dave Collier and Katrina Pavlikina for implementation subcommittee to give a report and I believe the next slide Michelle is their mission statement that they've been working on thank you Alina I'm Dave Collier I'm an associate professor at the University of Arizona in journalism and thank you all what a great discussion today outstanding our sub-committee has gotten rolling and it's a little different than I think a lot of sub-committees in the past in that we're really going to take a look at what's happened over the past a bunch of terms from the start and assess and see what's been accomplished and what still needs to be followed up on so we are starting to develop working groups hopefully I'll have those in the next month and rolling go and go to the next slide and you know it's hard to say what we'll end up with because it could change as we go but those are just some of the things that maybe we hope to finish the term with you know we'd like to summarize everything for ourselves and future terms and everybody else I mean we have 51 recommendations that have been put forth since the start of this committee and and so that's something that is worth boiling down I think we also would like to highlight some of the positive outcomes of this work over the years and what should be what agencies might want to take notice of and see that their fellow agencies have used successfully and and make recommendations for what still has to be done OGIS has done a great job putting these 51 recommendations on its dashboard, on its website and some of those things are noted as complete, some still in progress we want to take a really close look to see if things are done to what folks would think would want to be finished and maybe foster more dialogue in getting this out there that's kind of a summary of where we're headed and of course it could change as we go I think as we look at certain issues some things may rise to the top anything I missed Katrina or others, we have 10 subcommittee members some beefy subcommittee it's going to be fun anything I missed alright thank you everybody good times okay thanks very much Dave Kirsten did you want to proceed with a comment sure this is Kirsten Mitchell designated federal officer I just wanted to point out that we have published two assessments and the dashboard is not yet updated so we, and both of these were in response to prior FOIA advisory committee recommendations one is 2020-01 our assessment of agency FOIA websites this week and the other one 2020-07 was about FOIA in agency performance plans that I believe we published at the end of September and as I said the dashboard has not yet been been updated but we will work on that very soon so thank you great thanks for that update okay let's shift gears to the modernization subcommittee we have Jason Baron and Gorka Garcia-Malina our two co-chairs I don't know who's going to be doing the speaking so over to both of you Jason or Gorka I think Gorka is going to go first go ahead Gorka you're on mute you are still on mute still on mute what's going on Michelle maybe you could work on that Jason can you step in sure you can put up the Jason Baron I'm a professor of the practice at the University of Maryland College of Information Studies if you want to put up our mission statement that would be good thank you well we have two working groups within the subcommittee sorry about that Gorka yes sorry about that I'm not on mute here we go Jason do you mind if I barrel through go right ahead alright well again good morning my name is Gorka Garcia-Malina I'm the FOIA officer here at the National Institute of Health and I co-chair the modernization subcommittee Jason Baron who is just speaking a moment again since the last advisory committee meeting in September 14th the modernization subcommittee has accomplished quite a bit in that time we've met five different times to get the subcommittee off the ground we've explored potential projects on how to improve FOIA from each of our valuable and varied vantage points and we decided to organize our efforts around two working groups the first one is a process working group that's led by Adam Marshall of the reporters committee for the freedom of the press and Michael Heiss who is for the Equal Employment Opportunity Commission and the second working group that we're organizing our work around is the Technology Working Group and that's led by Ben Tingo at this time our working groups are evaluating and prioritizing several well-defined very specific projects that they want to work on during this early part of the advisory committee term in addition we've prepared our missions there which you can see I think it's on the slide here there it is in brief as you can see from the slide we keep to upgrade the administration of FOIA by focusing on two main areas that's examining current gaps in technology and technology has come up quite a bit just during this meeting so we understand the importance of technology and FOIA explore ways in which the interaction with the FOIA requestor community can be revamped and improved as well so it's those two main areas and outreach and conversation with a requestor community to improve FOIA so for the purposes of enabling the FOIA advisory committee to recommend changes the subcommittee intends to take several actions the first one is conducting a review of the current status of government FOIA technology initiatives in other words it's hard to advance if we don't understand the context we'll also be engaging with a requestor community and soliciting feedback on whether agency adoption of specific technologies would have a positive impact on the FOIA process so try to get the public and just outside stakeholders to give comment on what technologies would actually help them and we also intend to examine the improvements that can be made in specific areas like determination letters large request best practices default search protocols and agency response time frames and really the key here is that we really are already at this early stage working with well-defined ideas well-defined projects and right now what we're doing is prioritizing what to do first so we're meeting again tomorrow to move these projects forward and I just want to take this opportunity to thank all of you who are involved in the modernization subcommittee you're dedicating a lot of time to these efforts and I think we're great to we're off, excuse me to a great start so that's our report Jason, did I miss anything? Yes, thank you Gorka that was great I want to say something that Alina knows and many of you know the FOIA advisory committee really had its origins in the second US open government national action plan that recommended the establishment of a FOIA modernization advisory committee and so I was pleasantly surprised that the word modernization was there from the start and let me just read you what that action plans recommendation was that improvements to FOIA administration must take into account the views and interests of both requesters and the government the US will establish a formal FOIA advisory committee comprised of government and non-governmental members of the FOIA community to foster dialogue between the administrator and the administration and the requester community solicit public comments and develop consensus recommendations we've done a great job through the years with Alina's leadership to make recommendations David said there are 51 recommendations what I think our modernization subcommittee would like to do in addition to thinking about additional recommendations is to really focus on the citizen engagement part the dialogue with the requester community I know Alex Howard has pushed that in subcommittee and I support it wholeheartedly the outreach advisory committee as a whole to the requester community and to get a dialogue in that way I think it's something that we should have in mind during this term and so on the subcommittee we are thinking about an outreach that consists of perhaps interviews a survey and a general quest to the public at large for comments and I would say to all those listening watching that we do seek your input this term as part of what you believe modernization of FOIA would entail and we will be conducting that outreach along with all of the other activities that Gorka mentioned all right thank you very much Jason if that concludes your subcommittee report I'm going to move to last but not least the resources subcommittee Ginger, Katera McCall and Paul Chalmers are our co-chairs Ginger and Paul over to you Thank you Alina first of all we are in fact the subcommittee with the least number of members so we would love to have a few more I heard a couple people speak to the resources issue during this meeting some of you seem to have a particular zeal or passion for it so please feel free to join us we had to brainstorm some ideas about where to begin and we thought that the most useful place to begin would be to conduct a survey of FOIA officials in the government we want to do to look at people at a variety of levels of leadership so we are working with Alina in her office to brainstorm a list of officials that we will then go and do one-on-one interviews with we had done this before in a previous iteration of the FOIA advisory committee and we found it to be fruitful so we think this would be a good place to start and potentially to follow up with a survey but first to start with these interviews with more open-ended questions over the next few weeks we are going to start brainstorming the questions and then we are going to begin conducting the interviews we talked in our meeting about what can we do about resources legislatively what can we do via OMB memo or executive order but first we want to try to gather some more information before we start thinking about where we want to make recommendations so that is our plan going forward Paul did you have anything to add to that yeah I was going to say that we heard from the panelists today that resources are an issue and I think most of us who are on the government side know that resources can definitely be a challenge due to in large part prior work by prior iterations of the committee there are some things that are available there is now a job series of government information specialists that are available to do FOIA work there are technologies that are out there and we have another subcommittee that is looking into technology as well and the challenge is figuring out what do specific agencies need in order to meet their needs something that we can do to help them figure that out and then to go get what they need so that is kind of high I think one of the challenges is that the subcommittee will be looking into more than willing to hear what anybody has to say if they have some constructive suggestions along either of those lines of thought thanks Paul and thanks Ginger I definitely want to echo Ginger's comments they could definitely use a couple more volunteers so don't be shy and Ginger is doing a great job of trying to coordinate the next meetings and not to put you on the spot Ginger and Paul but you guys are working on a mission statement then hopefully we will be available maybe early next year I'm going to take a stab at it today or tomorrow sorry I've been sick I'm so sorry thank you very much I want to just ask do any of the committee members have questions about any of the subcommittees anything that spurred any questions that might have come up as everyone was presenting Michael thank you this is Michael Heiss of the EERC the three the three folks that spoke to us today they mentioned this changing the culture and which I found really fascinating and I'm not sure okay here's my question what subcommittee would like a culture change be in I mean is it resources is it monetization, is it implementation it's fascinating to me though because I'll just say real quickly I think it's probably super hard to change any culture but it's not impossible and sometimes changing the law they talked about a fundamental overhaul it can change the culture or at least precipitate the change I mean that's true with anything I think and sometimes changing the amount of resources made available so augmenting the wherewithal of an agency to do its mission with respect to FOIA could also change the culture so I'm just wondering what subcommittee would I think such a big fascinating issue like culture change if that were to become a recommendation out of this the whole committee what subcommittee would have jurisdiction over that I think it's kind of an important thing to address anyway that's it Michael great question can I ask the co-chairs anyone want to weigh in on that I think that sounds like an implementation issue but I don't know what the others think Alina this is Kirsten Howard has put in the chat that he might suggest that a cultural change might be a priority or mission for the entire committee so I just wanted to get that read into the record this is oh go ahead Alex I'm sorry yeah I have Alex Howard digital democracy project I was being naughty about putting something in the chat instead of getting in there and saying it I really am still finding my way along in terms of how this committee should work or be constituted etc but it did strike me that culture is an overarching priority that theoretically we all might be invested in that said I would plus one what Ginger said about implementation because I said say implementing a freedom of information act is really a about culture change it's certainly true about open government at large and I was very grateful to Jason for noting that this committee's existence is the result of a second national action plan for open government back in the Obama administration when there was leadership from the top that said open government was something that's so important to us that we want to create an entity that has civil society next to FOIA officers hosted at archives with DOJ being part of it to have an ongoing place to push on FOIA and I think it's one of the most concrete outcomes from an open government plan that I can point to and that the thing that we might all be looking to and asking is why haven't we been involved in the open government plan co-creation process for the United States government over the last year I think we all could collectively be pushing on the administration for it to lead on culture change knowing that the 12 of us with theoretically OIP and OGIS abstaining probably can't do that on our own although I'm looking forward to working with you to see what we can do All right thanks Alex I think Mende did you want to make a comment? Yeah really quick I agree with Alex that I think culture kind of permeates all of the subcommittees but thinking about what Ann said as well I can definitely see it also playing it apart with resources not to give resources more work but it seems like there have been practices adapted because of a lack of resources that agencies are trying to find ways to work to deal with this that are causing challenges and difficulties and I think that's common with organizations they adapt strategies when they lack resources that build until the culture of how they look at incoming requests so definitely make a push for resources All right Ginger and Paul you guys will take that under advisement and discuss it at the next subcommittee meeting thank you so much I really appreciate that If I don't have anyone else jumping up and down I'd like to move to the last part of our meeting to public comments section I'm just looking around no one is waving at me so that's good Well I'd like to make a comment Alina All right Jason quickly please Jason Baron I think Michael's point is well taken and our speakers today are talking about a transformative change in FOIA I see no reason why the committee as a whole couldn't discuss this issue as a segment in a future public meeting to with homework which is that we all think about culture change and then we all discuss it publicly Okay Jason has issued a challenge to everyone so we can certainly put it on the agenda for our next committee meeting in March or next year but I do encourage all of committees to also discuss this issue because I think it's important Thank you Okay just want to move things along we've reached the public comments part of our committee meeting we look forward to hearing from any non-committee participants at this point who have ideas or comments to share particularly focused on the topics that we've discussed today All oral comments are captured in the transcript of the meeting so we will post the transcript as it's available Oral comments are also captured in the NARA YouTube recording and are available on the NARA YouTube channel for later viewers Just a reminder public comments are limited to three minutes per person First I want to ask my colleagues Dan and Kirsten to let me know and let all of us know if we've received any questions or comments via WebExChat during the course of our meeting that need to be read out loud So Alina this is Kirsten we've had quite a number of chat comments from our dedicated attendee Mr. Hammond He's submitted quite a number of written public comments to the advisory committee and those comments are posted on the OGIS website The only other thing I will say before turning it over to Dan is that just as a reminder to everyone tuning in working groups of the FOIA advisory committee consist of advisory committee members So that's Kirsten Hi We had a comment from Andrea who works for a large water utility This commenter suggested that a platform a portal from which FOIA requesters could get information would be a good idea would be useful for their job This is an idea referenced by Carmen Collins and the commenter suggests that the FOIA platform or a graphical user interface for communication could include uploading documents and timelines as well as the status of requests Mr. Interceed I did not suggest that just to clear that I don't know if I was speaking maybe but I don't believe I did just to make sure Excuse us, I'm sorry No problem at all Thanks very much Dan, anything else? That's all we have captured Michelle can I ask you to provide instructions to any of our listeners who would like to make comments via telephone Yes, absolutely To present an oral comment via WebEx Audio please click the raise hand icon on your WebEx screen which is located above the chat panel on the right to place yourself in the question queue If you are connected to today's webinar via phone audio please dial Pound 2 on your telephone keypad to enter the comment queue As we enter the public comment session please limit your comments to 3 minutes Once your 3 minutes expires we will mute your line and move on to the next commenter Each individual will be limited to 3 minutes Okay, thank you Michelle Do we have anyone waiting to be heard on the telephone lines? Yes, we do Go ahead and unmute Caller, your line is unmuted You may go ahead Yes, good morning This is Bob Hammond Life is good, family New puppy at home, grandkids excited about Christmas Meanwhile, FOIA is on life support and is going the wrong direction due to complete lack of FOIA compliance oversight by DOJ, OIP and OGIS and no mediation whatsoever by OGIS despite their misleading and accurate reports to Congress and President Bob and Alina Full funding figures to this committee U.S. Associated Attorney Vidita Gupta and Acting Archivist Deborah Wall Please find money now where certain functions need to go elsewhere Agency should include line item budgets in their annual budgets which holds agency heads accountable I've talked to Congress, they're very excited about CNN Put it in there, say what you're going to do with it and we'll see if you get it next year Without effective oversight certain agencies engage in massive false FOIA reporting violations of law and fraud annual FOIA reports, their raw data and FOIA.gov data are massively false and unusable for any purpose including GAO testimony to Congress Bobby Kulavian Yes or no, no filibuster Is it DOJ fallacy not to defend agencies where no foreseeable harm is articulated Yes or no That is in the A.G.'s garland That is the department's policy See my multiple public comment presentations of foreseeable harm standard I'm extremely interested in working with the committee on this Bobby, new subject Is there any circumstance where an individualized tracking number is not required for a FOIA request that will take more than 20 days to process Your website says individualized tracking numbers are mandatory Yes or no Any of your tracking numbers are required for any request that goes beyond it's not responding within 10 days As a matter of administering so we ask agencies to provide they provide a number for each request Got it, not to ask it's mandatory and send the FOIA statute absent OGIS mediation cost of litigation ensues and it's on the rise I have been in court seeking Walter Reed at the Military Medical Center's FY 2013 annual FOIA reports for nearly 7 years with no end to litigation in sight and that's all involved parties' reach agreement on the 21st This includes Walter Reed and Navy View Med FOIA officers that's BUMED Judy Bezel and Dela Garcia Walter Reed's male services supervisor Miki Gully and DOD's Chief FOIA officer Alina, new subject Dela Buster, is Navy required to provide me estimated completion dates for my FOIA request and appeal Yes or no If you have requested an estimated data completion Yes, the statute requires that the agency provide you an estimated data completion Okay, so Ms. Sima you unlawfully refuse mediation without even contacting Navy Thank you Alright, we are moving on to the next commenter in queue Caller, your line is unmuted you may go ahead and make your comment Thank you This is Steve Buckley, I want to make sure you can hear me Okay, thank you very much Yes, Steve Buckley I former federal employee 25 years in DC over that time I worked at federal agencies and a lot of it had to do with public engagement the idea being that citizens who are being affected by government decisions infrastructure projects being one example need to be informed and engaged in that decision making process and so I'm a MIPA nerd somebody was saying earlier that we're a FOIA geek I mean it's a peanut butter in chocolate they go together and being informed and engaged go hand in hand you can't be one and not the other so anyway I wanted to endorse and reemphasize what Alex Howard said earlier about an opportunity a window of opportunity here which opens occasionally for open government the national action plan version 5.0 is being drafted and comments are due tomorrow I guess by closing business maybe 11.59 pm eastern time whenever and so anyway open.usa.gov is the link to that I would say go therefore to the session public engagement there's a link there to the session on Tuesday and if you scroll down you'll actually find an email list a public email list and I would encourage anyone here who's listening who has any thoughts on how transparency and FOIA and so forth complement the whole open government ecosystem to put their thoughts there and also read other people's thoughts including Alex there as far as what's going on with open government it um like I said it's a google so anybody can join anybody can read it and so forth that's really the key to find out what's going on ironically with a open government movement which had been in hibernation essentially up until about a month ago when apparently somebody in the White House decided to throw a bunch of bodies at it and so they're on a lickety split time frame to put something out before the end of the year as far as the draft I guess as far as the final goes so that's my thoughts I appreciate what you're all doing and I'll put something in the chat as far as a more direct link in case people get lost going to open.usa.gov thank you very much alright thanks mr. Buckley Michelle do we have anyone else in queue who is not already yes we do thank you mr. Buckley and now we're moving on to the next caller Mr. Garland your line is now unmuted thank you Chad Garland here in my personal capacity on a matter of public concern which is namely a defense department policy that directs FOIA officials to deny records requests from individuals who do not show proof that they have a federal agencies permission to make the request this is the latest turn in a 30 year history of DOD denying the FOIA rights of these individuals merely because of the newspaper where they work at least five DOD memos since 1991 state that while any person may file a public records request a representative of a federal agency may not it thus unilaterally and without qualification excludes the staff members of the Stars and Stripes newspaper from asserting any FOIA right of access citing the fact that the newspaper is a part of DOD's components newsrooms are staffed by federal employees who operate under the authority of the First Amendment and whom DOD regulations require be treated as members of the free press without regard to their federal employment status that is they are for all intents and purposes members of the public when engaged in news gathering and when off duty as with all other federal employees they operate in their personal capacity as of March 2021 a DOD memo provides that Stars and Stripes employees may request records under the FOIA in an individual capacity but it directs officials to deny their request if the individual is listed as a staff member on the newspaper's website or has self-identified as a staff member in any internet forum unless the individual volunteers proof that their federal employer gave them permission to engage in outside employment it does not matter whether the individual claims to be employed by Stars and Stripes or any outside organization and the policy applies whether or not it violates their rights or privileges or regardless of their express and explicit certification that they are seeking records under their own personal FOIA rights DOD is specifically and exclusively targeting Stars and Stripes reporting staff and does not have any similar policy affecting any other DOD personnel this not only clearly imposes identity based rules that the FOIA does not authorize but it violates DOD's own regulations that prohibit subjecting Stars and Stripes personnel to laws and directives to all DOD personnel the employees DOD targets differ from all others only and that regulations require them to be treated as members of the free press not government officials thus this policy discriminates against employees because they are journalists part of a category of request Congress expressly designed the FOIA to assist DOD has declined to defend this policy when challenged in court earlier this year yet the memos are still on its FOIA resources page which suggests discriminatory policy remains in effect it must be rescinded but to ensure FOIA compliance and transparency I believe all agency rules at all agencies should affirm that when invoking FOIA federal employees must be treated as any person asserting their private rights unless their request explicitly states otherwise thank you Michelle do we have anyone else waiting to be heard who has not already given us public comments we do not have anyone else in the queue at this time okay all right I know we're running a little bit over time I'm very respectful of our committee members time and other commitments so I just want to wrap up thank all the committee members for all their hard work up until now and in the future I want to thank everyone for joining us today hope everyone remains safe healthy and resilient I want to wish all of you happy holidays and a happy new year and please do mark for calendars our next meeting is probably sorry Alex virtually in this space on March 2nd 2023 again on Thursday we're going to begin at 10 a.m. eastern time but I do hope the subcommittees will be very busy in the interim and will be rolling up their sleeves and considering a lot of these issues so we talked about today so any questions from anyone not hearing any questions we stand adjourned thank you very much