 Ladies and gentlemen, welcome. And thank you for joining today's 2020-22 FOIA Advisory Committee meeting. Before we begin, please ensure that you have opened the chat panel by using the associated icon located at the bottom of your screen. Please note all audio lines have been muted, and we are currently recording this conference. You are welcome to submit written questions throughout the meeting, which will be addressed at the Q&A session of the meeting. To submit a written question, select all panelists from the drop-down menu in the chat panel, then enter your question in the message box provided and send. If you require technical assistance, please send a chat to the event producer. I'll be taking over to David Berrio, archivist of the United States. So please go ahead. Good morning, and welcome to the second meeting of the fourth term of the Freedom of Information Act Advisory Committee. I'm joining you today from 700 Pennsylvania Avenue. Once again, and for the fourth time in 2020, the committee meets virtually as we soon enter our 10th month of physically distancing ourselves from one another. Today, December 10th marks the 72 years since the United Nations adopted its Universal Declaration of Human Rights. Nearly two decades before Congress passed the Freedom of Information Act, the UN declared in 1948 that everyone has the right to freedom of opinion and expression. That right, the UN declared in Article 19, includes the quote, freedom to speak, receive and impart information and ideas through any media and regardless of frontiers, end quote. That freedom is so well enshrined in our American FOIA statute. I'm pleased that the committee will discuss today the intersection between FOIA and classified records, an issue of great importance to the National Archives and ripe for examination by the FOIA Advisory Committee. Bill Fisher of the National Declassification Center here at the National Archives and John Powers of our Information Security Oversight Office, ISU, are joining us today to give overviews of the work of their offices and how this work relates to government transparency. Over the past 18 months, ISU has engaged with a diverse group of stakeholders and subject matter experts from federal agencies, Congress, and civil society groups to gather their recommendations on data collection reform. The desired outcome is to end outdated and ineffective data and information collections about information security programs government-wide. This year, despite the pandemic, ISU is piloting a new questionnaire that consolidates and streamlines data collection. The process for reform mirrors the collaborative work that is the hallmark of the FOIA Advisory Committee. I'm also proud of the work of the National Declassification Center in D.C. to systematically declassified records, including last year's culmination of the U.S. Declassification Project for Argentina, the largest government-to-government declassification project in United States history. The project resulted in the declassification and release of more than 11,600 records relating to human rights abuses committed in Argentina between 1975 and 1984. While not tied directly to FOIA, this historic release of records affirms the National Archives commitment to transparency and illustrates how the NDC and ISU bring together people and processes to improve declassification and public access to historical records. As I said at the FOIA Advisory Committee's kickoff meeting in September, much work is ahead for you, but I'm pleased that the committee's four subcommittees looking at national security classification, FOIA process, legislation, and technology have begun work and are charging their course for the next 18 months. Finally, as the hours of daylight grow shorter and time separated from colleagues and loved ones grow longer, I extend best wishes for peace and resilience in this season of light. Please take good care and stay safe. And I now turn the meeting over to the committee's chairperson, Alina Cimo. Thank you so much, David. Good morning, everyone. As the director of the Office of Government Information Services, OGIS, and this committee's chairperson, it is my pleasure to also welcome you to the second meeting of our fourth term of the FOIA Advisory Committee. I would also like to introduce the committee's designated federal officer, BSO Kirsten Mitchell, the flu that holds us all together. She's going to help me stay on track today, as she always does, and you'll be hearing from Kirsten shortly with some important updates. I believe we have everyone joining us today, so I want to welcome all of our committee members. I hope everyone who is joining us today, both on the committee and in our audience, have been staying safe, healthy, and well. I want to express my gratitude for the committee member's commitment to studying the current FOIA landscape and developing consensus recommendations for improving the administration of FOIA across the federal government, particularly under more difficult circumstances of 2020 and, unfortunately, ongoing into 2021. Today, in the interest of time, I would like to dispense with the roll call today and just say a group hello to everyone. Hello. As I mentioned earlier, all 20 committee members are here today. I also would like to welcome our colleagues and friends from the FOIA community who are watching us today, either via WebEx or NARA YouTube. We do have another very busy agenda today, so I will keep my opening remarks brief and do my best to make sure we stay on track so we can end on time. Despite today's ambitious agenda, we will leave time at the end for public comment. We look forward to hearing from any non-committee members who have ideas or comments to share. We will open up the telephone lines for the last 15 minutes of our meeting. And OGIS' deputy director, Martha Murphy, will be monitoring the WebEx chat function throughout the meeting. OGIS' attorney advisor, Sheila Portanovo, will be monitoring the NARA YouTube chat function. So if any one of you have any questions or comments, please feel free to chat them at any time. And you may also submit public comments, suggestions and feedback at any time by emailing FOIA-advisory-committee at NARA.gov. And we will post them to the OGIS website. I have some housekeeping rules before we get started on our substantive meeting. Meeting materials for this term are available on the committee's webpage. Click on the link for the 2020 to 2022 FOIA-advisory committee on the OGIS website. Please also visit our website today for the agenda for today. We will upload a transcript and video of this meeting as soon as they become available. Members' names, affiliations, and now biographies, we've added those recently, are now posted. So as I said earlier, I will dispense with a formal roll call, but we can report that all 20 of us are accounted for today. Michael Morrisby, I believe, has just joined us recently. Hopefully his audio is on. I also just want to let everyone know Alex is great. He has to leave at 12.20 today. So we've agreed to give her the floor first on part of our agenda since she has to leave a little bit early. So as everyone knows, we've been holding our meetings virtually since March. The virtual environment has advantages for many of us, including what we have started to all refer to as business on top and party on the bottom. I'm guilty of that myself today. The disadvantage for me and Kirsten is that we will not be able to see you, the committee members raising their hand or eagerly leaning forward, ready to make a comment or ask a question at any given step in time. We're trying our best to monitor all faces at all times. So we will be looking for nonverbal cues, but we just want to remind everyone to be respectful of one another, try not to speak over each other, although I realize that may be inevitable at times. I want to encourage all committee members to also use the all-panelist option from the drop-down menu in the chat function if you have a question or would like to make a comment, or you can also chat me or Kirsten directly. We'll be monitoring the chat function. But in order to comply with both the spirit and intent of the Federal Advisory Committee Act, FACA, please be sure to keep your communications in the chat function to housekeeping only, no subs into comments, as they will not be recorded in the transcript of the meeting. Also an important reminder, because I'm guilty of this myself, if you need to take a break, please do not disconnect from either audio or video web event. Instead, put your phone on mute and close your camera or turn off your camera. Send a quick chat to me and Kirsten to let us know if you'll be gone for more than a few minutes and join us again as soon as you can. Don't do what I normally do, which is I just hang up, and then I have to start the whole cycle all over again. It's very painful. We have noted a 15-minute break at 11.20 on our agenda. We hope that we can keep to that. We'll break a little bit earlier or later, depending on how our pace is going. And also a reminder to all of our committee members, please remember to identify yourself by name and affiliation. Each time you speak, I know it's hard to do that. I myself always forget that as well. I'm trying to remind myself as well, but it helps us tremendously with the transcript and the minutes, both of which are required by the Federal Advisory Committee Act. So before we move on, next I would like to have us look at the meeting minutes for our first meeting from September 10th. We need to approve those minutes from that meeting. Kirsten has circulated all of those minutes to the committee members. Later today, Kirsten and I will certify the minutes to be accurate and complete, which we are required to do under the Federal Advisory Committee Act within 90 days of our last meeting. So at this time, would you not believe we had any comments or questions or concerns about the minutes from any of the committee members? Kirsten's shaking her head, no. Do I have a motion to approve the minutes in their current form? Tom, thank you. Tom, I just don't want to make my motion. Do I have a second, even though one is not required? I'll take a second. This is Roger Yates. Thank you, Roger, for your second. All present in person, in favor of approving the minutes, please say aye. Aye. Thank you. Is anyone opposed? No one opposed. Therefore, the minutes are approved. Thank you. That was very painless. Okay. At this time, I am now going to turn the meeting over to Kirsten, who will provide some updates on task committee recommendations. And I'm going to turn to our event producer, Michelle, to ask her to display our dashboard. Thank you. Okay. Thank you, Alina. This is Kirsten. Those of you who watched the FOIA advisory committee closely know that since 2016, the committee has made 30 recommendations to the archivist for improving FOIA administration across the government. The health committee members and the public track the status of these recommendations. We created this dashboard tool on the FOIA advisory committee page of the OGIS website. Michelle, our event producer, has pulled it up on the screen. Thank you, Michelle. The dashboard provides brief descriptions of each recommendation, actions taken to fulfill each, and links to reports, correspondence, and other related materials. A couple of quick notes. Thank you, Michelle. I think you can stop scrolling. For the recommendations marked complete, OGIS and indeed the current FOIA advisory committee recognize that opportunities may exist for additional work. For the recommendations not completed, they are marked either in-process or pending. The in-process recommendations we are actively working on, while the pending recommendations we have not formally launched, but expect to do so as early as January 2021. We plan to regularly update the tracker, and keep it up to date. We will also announce big updates on our FOIA ombudsman blog, and on Twitter. Our Twitter handle is at FOIA underscore ombuds. A shout out to my colleague, Crystal Lemelon, who turned this from idea to reality. We think it's a great tool for transparency and accountability. It's already made my job easier. So I invite everyone to please check it out. We shared it with the committee members a week or so ago, just before we made it public. So please check it out, but not right now. We're about to hear some interesting information about FOIA and classified records. So I will turn it back over to Alina to introduce our National Archives colleagues, Bill Fisher and John Powers. Over to you, Alina. Kirsten, thanks very much. I really appreciate that. And, yes, I really want to thank very much Kirsten and Crystal Lemelon, and my terrific ODA staff, who's been putting in a lot of work, not only on this dashboard, but everything they've done this year. So thank you very much. I am very pleased to welcome my colleagues from two of our, what I like to call, sister offices, the National Declassification Center, NDC, and the Information Security Oversight Office, ISOO, Bill Fisher, and John Powers. I refer to them as our sister offices because ISOO, NDC, and OGIS are organizationally all situated under the umbrella of agency services here at the National Archives. I want to give a shout out to our executive for agency services, Jay Treanor, for his continued support of all of our programs. William P. Fisher, otherwise known as Bill, with appointed director of the National Declassification Center in February 2019. Prior to this appointment, Bill served in number of positions at the Department of State, involving records management, declassification, and other information access programs. Most recently, having served as the deputy director of the Office of Information Programs and Services at the State Department. Prior to joining the Department of State in 2008, he served in a variety of archival roles in NARA from 1998 to 2008. Bill circled back to his favorite home agency. He holds a BA in history from the University of Montana, an MA in history from Montana State University, and something I just learned by looking at his bio the other day, a PhD in history from the Catholic University of America. So from now on, I will be calling him Dr. Fisher. John Powers serves as the associate director for classification management at the Information Security Oversight Office, ISOO, where he also serves as the senior staff officer for the Interagency Security Classification Appeals panel. That's a mouthful. The acronym, as we love to have in the government, is ICETAP, and the Public Interest Declassification Board, known as KITIP. I know John will explain those acronyms in his presentation today. In his 29 years of work at the National Archives, John has served in many roles and positions, almost all focused on declassification, public access to government information, and transparency. A quick personal note, I first met John when I was still working at the Department of Justice, working on the Nixon tapes case, and John was working at the Nixon project a long time ago. From 2015 to 2018, he served as the Director of Access and Information Management at the National Security Council. John holds a BA in International Relations from the College of William & Mary and an MA in US History from George Mason University. Both Bill and John will try to stay through the end of the meeting today to answer any questions, but in the event either one of you gets pulled away, gentlemen, please know we will post any questions that we receive and your answers on our website at a later time. So, with those introductions, thank you again very much for joining us, and I'm turning it over to you, John. Okay. Can everybody hear me? I hope. Yes. So, thank you for having me, Ogison. Welcome to everybody virtually. I'm here today. I'm representing our director, Mark Bradley, who is on a book, a virtual book tour today for his book that just came out about a month ago. Let me give you a little thanks to the OGIS staff for putting this together, and I'll thank you in advance for your comments and questions, and I'm looking forward to staying throughout the meeting today to answer your questions at the end. I am, this is probably the eighth meeting I've done from my bedroom, which happens to be the quietest place in our house with two kids virtually learning a wife that is also on WebEx right now, and I also have a very big dog who is barking at a construction crew outside our front door, so hopefully that's not going to interrupt us all. Next slide, please. Let's go to the next slide after that. So, I wanted to give you a little bit of a history of that. I see, first of all, that we began our, we were created in 1978 under executive order 1-2-1-2-0-0-6-5 by President Carter. We were initially part of the White House and began life in the new executive office building office and then moved to the National Archives in the mid-1980s. We are indeed a very small office with a very large portfolio, and almost all of that focused on managing government information. We are a little bit unique, though. We receive our policy guidance from the National Security Advisor, and we do work very closely with the National Security Council on matters relating to information security and information management. And in fact, our director is appointed by the Archbishop of the United States with the approval of the National Security Advisor, so a unique position there as well. That said, organizationally within the National Archives, like our OGIS, we report to the Executive for Agency Services. I've just put a little bit down here about our organizational structure. We have two directorates and operations directorate that works on several information security items, including controlled unclassified information, the National Industrial Security Program for contracting agencies, and our state, local, tribal, private sector information sharing program, SLTPS is the acronym for that. And I lead a small directorate called the Classification Management Directorate, but I also think has a fairly big mission here that includes going out to agencies and reviewing their declassification programs, managing and doing all of the work that's started with the ICESCAP, the information, and also staffing the Public Interest Declassification Board. Next slide. I wanted to give you an idea just of how big our portfolio is. We actually have five executive orders that we either are primarily responsible for or have a role in. The key for all of these, though, is that they are all focused on managing information. For the purposes of this presentation, you're in luck. I'm only going to focus on one small part of that, which is EO 13526, our Classified National Security Information Program. Next slide, please. I put this up just for reference, and there will be a few more of these slides for reference, but I felt that this was for you all to see, especially some of you who are FOIA folks who may not know about ISOO, what exactly our mission, vision and values are. I quickly just draw your attention to our mission statement. That is what we do. We are dedicated to it, all 19 of us on staff. Next slide. Who exactly are our primary responsibilities? Well, we're responsible for developing and implementing directives. We work closely with the National Security Council and affected agencies for interagency process. Once executive agency, once executive orders are signed, the next item is how to implement them, that give direction to agencies on what they're supposed to do and what those orders mean. So we actually have four implementing directives that we work with every day, once they have been written. The fourth one that's not on here is 32 CFR 2004, which is the National Security Industrial Program. The other big item I'll talk with on this slide is our oversight in inspection role, although we are smaller than we have been. We do try to go out to agencies, look at their programs, see what they're doing right, what they're doing wrong, try to help them improve their programs. That is our overall goal here. I think it really is to try to help agencies be better. We collect data and I think the archivist did talk a bit about that we are in the process of reforming and modernizing the data that we collect from agencies in a combination of results from both our oversight on site, our oversight on collecting and analyzing the data we then report on the results and we do that in a number of different ways individually with the agency through our annual report on our blogs and also through our IC notice program on our website. Next slide. We have a whole lot of other responsibilities that go with those executive orders which includes kind of again, I'll focus on two here. But we do an awful lot of work with every one of these is still very active despite COVID and the pandemic. They are also all virtual also on WebEx with the exception of the interagency security classification appeals panel which typically meets in a classified environment. We have figured out a way to work in skiffs and work across to keep our business going. Our job there is to serve as the administrative and program support staff. Our director serves as the executive secretary and we do everything that is related to the panel itself. On the bottom I'll talk a little bit about the public interstitial classification board where our director also serves as the executive secretary that is by statute and our staff provides all of the administrative and program support for them as well. Next slide. The biggest part of our work I think is our oversight role and going back to what I said earlier it is really important here we are all trying to help agencies improve their programs in the case of the classification management directorate we are trying to help them improve the accuracy of their classification and declassification decisions in the case of our operations directorate they are trying to help them improve their safeguarding and how they are protecting their classified information. Next slide. I put this mainly up for reference I'm not sure how many of you deal with classification day in and day out but there are rules for what you can classify how, when, what, where essentially and that is all spelled out in section one of the executive order so I will leave it at that on the bottom part of it though how we monitor how those agencies are doing with that we do that through our onsite inspections we do that through data requests and we analyze their responses we collect information from them every five years through a fundamental classification guidance review process which we require all agencies to review every one of their classification guides to see if they are still accurate to see if they are still updated if they need updating that process should include not just classifiers original classifiers and derivative classifiers it should include users it should include subject matter experts and also typically we ask that it include declassifiers and FOIA professionals as well to give a perspective on what is going on in the FOIA declassification world that may impact what should or should not go in an updated classification guide then the last thing that we do regarding classification is we really do try to help agencies include their own security education and training programs okay next slide this is a reference again for those of you that are not involved in this every day I just used a government term that can be very confusing an original classification authority and a derivative classification so this is the difference between the two of them so I'll just that's for your reference next slide let me talk a little bit about declassification which I've spent most of my career working on and the rules for that what, where, when, how and why all are found in section 3 of the executive order in this executive order there are I put down a few items that are for the very first time were included in the executive order that included that all information was subject to declassification and importantly for historians it allowed the president's daily briefs to be reviewed for declassification which previously the CIA said they could not be it allowed for declassification of artifacts so there are new declassified artifacts in museums both at the Air Force at the CIA and in other places to showcase some of the work that they've done historically it did tighten the criteria for declassification and it importantly also set limits so it's something that you for both that was exempted at 25 those exemptions ended at 50 or they ended at 75 depending on you had to ask for a new request after each certain time threshold and of course for Bill it created the National Bee Classification Center with the goal of trying to bring all of the classification agencies under one roof as they prepare to make records public and I really think importantly one of the things that has been helpful for the declassification center and I'm sure Bill will probably talk a bit about this here is one section of the order said was really designed to try to limit unnecessary referrals something that ISU found in its very early declassification assessment in the late 2000s this part of the order was really meant to help we streamline the reviews that were conducted by multi-agency records. I talked a few seconds earlier we began our declassification assessment program back in 2007 it's been successful we think that agencies have dramatically improved the quality of their reviews that they are exempting information they should exempt they are not exempting information they should not exempt they are by far not missing embedded equities that they should be referring to other agencies mostly intelligence agencies and then the third thing that we really noticed is that they are definitely limiting the number of referrals so there are far fewer unnecessary of viewers clogging the declassification center system that's not to say everything is perfect the reviews are still past failed but certainly we have seen a market difference from that next slide please now I want to talk a little bit about the ICE TAP the Interagency Security Calculation Appeal Panel we have four functions this also is slightly different from the earlier versions it first came into being in 1995 or 1994 in the Clinton order and has been a successful mechanism to serve as the final arbiter of what should or should not be classified either if you are requesting a record be declassified through mandatory declassification review or if you are challenging the classification of a record that is inside your agency the four functions that we have are to be the final authority on classification challenges and by approving exemptions for declassification at 25, 50 and 75 years that typically means a declassification guide that we work with agencies again every five years these are required updated the process has increasingly been much longer than before they are again to account for this 25, 50 and 75 year differences the last thing I will say on this slide here is the bylaws so the way that we work the way that the members of this panel work are all codified in 32 CFR 2003 which you can find on the ICAP website and I will put that up at the end next slide this is just a reference panel a reference slide is who sits on the ICAP and who is served as the final arbitrators they are high level officials at all of these agencies the two kind of anomalies here are the National Archives sits as a member it does not have original classification authority but it certainly has an interest through its national declassification center and through the National Archives mission to make government records available so the president did give the archives a seat at the table to make decisions the second thing is that eliminated the CIA is a permanent member of the ICAP it only participates in certain instances and that is when its information is the subject of the appeal that said the director of national intelligence does have the final say over the intelligence community that is both in this executive order and of course that's where its authority will kind of lies next slide our activity well I can go back a lot longer but I thought I just focused on the last three years here although we have not publicly released the 2020 information we will do that through our annual report but I will go ahead and give you the news here and let the cat out of the bag but I wanted to talk a little bit about first I'll start with the declassification guide process it was significantly longer than the last time and the liaisons from the agency decided that they wanted to have much more robust declassification guides from the agencies this time around so they strengthened the language by requiring agencies to use standardized language so there wasn't any confusion about what could or could not be exempted in that cross agency we also really tightened the definitions by we I mean the ICAP members decided to tighten the language of what you could exempt and for how long so you would not automatically get a pass at 25 and have the same exemption at 50 if you wanted to exempt at 50 or at 75 years of age the thresholds were much stronger both in the executive order but in practice here as well the other thing for the first time we recognized that agencies and this came out of the I2 analysis part that we had done in the last few years we noted that agencies were on some occasions have the exact same information and yet they were treating it differently so the ICAP required those agencies to work together to come up with a joint declassification portion of the declassification guide that covered that information so that those agencies were treating the same information the same way so as you can see we started this in 2018 we did finish it until towards the end of 2019 and then with the with the passage of time a new program came up where we did make an addendum to one guide now I would say what has happened because of COVID is we did not get very far on our mandatory declassification appeals initially the archives was closed the national archives was closed all around the country including at archives one where we are based and at archives two where the national declassification center is based most of the agencies we work with were also closed early on and slowly got back up to speed it wasn't until August that we kind of figured out how we could work in a classified setting limit folks exposure to health concerns but still start the process working again we have already closed from October to December the 10th we have already quadrupled the number of cases that we have closed in all of 2020 so how does this body meet normally outside of a pandemic normally they meet twice a month they meet for four hours at a time and they go over cases that way we've had no classification challenges the last three years and I may get a question or two about that towards the end the other big item though that we have noticed and this really started in the early 2000s late 2000s an exponential increase in our backlog which went from under 100 cases at the beginning of 2000 to where we stand today of about 1300 most of these cases come to the ice cap because one year has passed and the agency has not acted on the request in contrasting with FOIA under the Freedom of Information Act agencies have 20 days to respond in NBR that time frame is extended to a year and still over 90% of the cases that come to the ice cap come to the ice cap because the agencies have not met the time threshold next slide please so I wanted to talk a little bit about our annual reports and I want to talk about our recent ones because they have been different from what we historically have done as a 20 to 30 page report and status update about all of our programs that we've shortened them they are reports to the president they do go to the president from being at the National Security Council I can tell you that they do make their way to the president we believe very strongly our director believes that it is time for us to modernize our information management and information security policies and practices all the executive orders leading up to today they are still based on cold war practices and policies that is not how the government operates today we've said in these last three reports we think that it's an imperative both to national security and our democracy we've said that it's going to require sustained white house leadership we recognize that any kind of a revolutionary change is going to be very difficult and we also know that it's going to require significant investments in technology and that those investments are going to have to be closely coordinated across agencies so systems can talk to one another and that they are using technology to identify each other's equities both for classification and declassification now we've also just as part of that process like the archivist did mention this we have started to realize that also the information that we collective outdated and we also were a little unsure of the accuracy is it really how difficult and how accurate is it to classify the number of derivative classification decisions when you have multiple electronic formats and agencies using many different classified communications methods to create disseminate and use classified information so we've been trying to work with our agencies we've also gone out to some of the civil society groups to talk a little bit about what metrics are meaningful for agencies how good what metrics can we come up with that will help you improve your program we're working with OMB to figure out how we can include costs that are accurate and actually measure information security programs and of course for congress we really do have gone out to say what's meaningful for you as you conduct and want to look at independently conduct oversight of these programs now I mentioned a few seconds ago that the order does need changing and there are several challenges that I sue has historically talked about but certainly in the last few years that we've talked about in our report to the president that there is a continual challenge over classification despite a strengthened fundamental the classification guidance review program there are still in that the effect of that over classification is that it limits information sharing that does have the potential to cost harm to our government we have noted that while security education and training programs have improved in agencies there still are compliance issues especially when it comes to the original classification authorities who tend to be agency leaders are very busy classification is not their day job their mission is their day job but they still must receive detailed training every year in almost 85% of agencies that deal with classified information have yet to implement a performance management critical element in there their staff that use classification day in and day out I sue does the NDC does but not many other agencies do and then the last thing I'd say which is very important and this makes a little bit of sense because declassification programs are by nature they're 25 years behind what's going on today so Bill Fisher is going to talk to you about paper and the challenges of working with multiple equity records in paper because we are still at the dawn of the digital age when it comes to declassification but very fast we are going to have a exponential growth of digital records that are going to need to undergo declassification and I super found that declassification programs across the government are ill prepared to deal with that on the next slide next slide I'm going to switch over and talk to on another half here to talk about the public industry classification board it was established by Congress in 2000 as a memorial in tribute to Senator Daniel Patrick Moynihan it's been re it's been re-legislated at least five times before finally becoming permanent independent board and commission in this year's last year's national defense authorization act the functions remain the same I'm going to focus just on one which is the goal of the board to improve classification declassification and public access to government information during the time that they've been active although the law was first passed in 2000 first appointments weren't made until 2005 and the board didn't start meeting until the end of 2006 since then they've written five reports to the president they have engaged in a number of other issues with the White House to help them work on classification matters at the moment although they are allotted nine members we have five they are Alyssa who's our acting chair they are John Tierney and Trey Gowdy two former congressmen Michael Lawrence and Ben Powell who were just appointed by the president and we still have three presidential vacancies and one congressional vacancies senate majority leader McConnell our office the small it is we do provide all of the administrative and logistical support for this board and Mark Bradley our director does serve as the executive secretary next slide I did want to talk about the most recent report and several of you I think have probably heard about the report was published in May late May we had a public meeting on it in June it is titled a vision for the digital age modernization of the U.S. national security classification and declassification system and it really did it was meant to serve as a roadmap to help agencies overcome antiquated cultures and antiquated policies to design more modern processes and to get the government to think seriously about modernizing the system it decided to put the report into three sections those recommendations that could have an immediate impact and you will note here that one of the recommendations was to empower the NDC they felt that they really did want the NDC to have more authority independent authority especially since they are working with historical records to move the records through the process the other recommendation is for the secretaries of defense energy and the office of the director of national intelligence three very big agencies with very big budgets who are very interested in information security and classified national security information management and they the board wanted to direct have the president direct these folks to work with the arguments of the United States to develop a plan they can modernize their own classified systems and their records management programs so that once their records do get to the national archives it will be far easier for them to review and declassify their electronic records the last two are the strategic policy changes the controversial one they did recognize the importance of having an executive agent I see the executive agents for several information security executive orders so they realize very quickly that it is important to have someone be in charge that in today's world where information seamlessly crosses between agencies it is imperative that there be standards beyond just the IC beyond just the department of defense that we needed to branch out beyond the silos and they really wanted the president to designate an executive agent and then a hearing committee that would help guide the executive agent implementing a new system with new policies and procedures and of course the last part of the here I've talked about the importance of transitioning to going for more automated classification and declassification procedures next slide so I wanted to talk to one of the questions I heard that you all might be interested in asking how to do about the future I think the reports speak for themselves here the I2A reports the last two years and I will say the next upcoming report which will cover FY 2019 it will talk about the need for modernization I'm sorry FY20 it will focus on that it really is the executive order it was revolutionary almost when it was signed in 2009 with some of the changes were very significant but that order is 11 years old we don't work that way anymore the government doesn't work that way you don't work that way anymore electronic communications is our life this executive order the current one talks about documents it talks about how you store records in states that is not how we work today we need to modernize our policies to match how we work so that we are protecting information we have to we're disseminating it to those that need it and we are declassifying it timely so that our citizens can be informed again previewing what will be in the the next annual report that will be it I know this is a FOIA FACA committee I'm sure that you all are familiar with the Office of the Director of National Intelligence IG FOIA report from 2018 so the challenges are not just outside the IC the challenges are also within the IC and there is a recognition that even within FOIA which I think is very closely aligned with declassification that there are new policies and processes that they need they still lack technology and the secure communications that many other folks do these are going to be essential for whatever happens for the future and of course I just talked a little bit about what the PIDB thinks about the future and the need for modernization next slide the last slide so I thank you for indulging me for the last 25 minutes or so I wanted to quickly give you a few plugs here you can find more information on our website if you have not subscribed to our blogs we have several including the ICU blog which we've just started the CUI blog which is ongoing and has started along before included a few email addresses and also for the public interest classification board if you want to read their five previous reports to the president they can all be found on our website they also have a blog that we are robustly we try to post every week and we did post today that we are inviting the members are inviting public comment what should a new executive order look like I know that many of the folks in the civil society community have already submitted their report to president Biden Biden president elect Biden and it does include many of the recommendations from the PIDB and it does highlight some of the challenges that ICU has put in its recent annual reports but we really would value your participation we're happy to post them on the blog please use the blog and that way if you want to remain private we also can receive your information via our email website so thank you very much for listening to me and hopefully you didn't hear a dog barking or a construction crew going thank you all right thanks very much Don for your presentation I'm going to now roll it over to Bill I know there are a few questions from our committee members and I've asked everyone just to we'll bear until Bill presents and then we'll open it up to questions from everyone Bill, yours have the floor all right great thank you Alina and it's always a pleasure to follow John Powers I think John is probably one of the strongest promoters of there so anyway and I have to also come in that last slide I don't know if that's an innovation of yours John but I haven't seen it before I like it so anyway folks good morning and I just want to begin by thanking you for this opportunity to speak today and participate in this meeting it's a great opportunity for me to share a little bit about the National Declassification Center and the role we play in overall government declassification efforts so thank you Alina, thank you committee for extending the invitation it's a great opportunity I also I just I want to throw this out there I thought it was very fitting that John and I but especially myself followed the archivist David Ferriero this morning because I'm thinking the National Declassification Center was one of archivist David Ferriero's first act as archivist almost 11 years ago now he after the executive order was promulgated in December of 2009 one of his first official acts was to establish the NDC on December 30th of 2009 so if you do the math you can see that earlier in this year we celebrated our 10th anniversary and Mr. Ferriero played a key role in that and then considering that Mr. Ferriero also established this FOIA advisory committee I thought he provides a great nexus point it's our common interest in declassification, accountability transparency and so I just thought it was very fitting given the history of both of our entities, organizations and the archivist to be speaking here this morning so it's a great honor to follow him as well and be able to speak a little bit about this organization that he had such a key role in establishing Speaking of Executive Order 13526 John covered it very well I just thought it would be worthwhile mentioning that the vision of the NDC our motto our mission is really rooted in EO 13526 our motto our mission is releasing all we can protecting what we must this is what we strive for in our daily activities in our processes and in our functions and it's rooted in the Executive Order that's what gives us our marching orders and it provides our vision and I think it's worth noting with the example to the Executive Order it's well stated so I can't improve upon it but it mentions our democratic principles require that the American people be informed of the activities of their government nevertheless throughout our history the national defense has required that certain information be maintained in competence in order to protect our citizens our institutions so on and so forth right there is the vision for the NDC and that you can see is reflected in our mission which is releasing all we can protecting what we must we have this dual function that we strive to fulfill in all of our processes and all of our procedures and it guides us it's the guiding principle of our work it's been the guiding principle of the last 10 years the first 10 years of the NDC and it's the guiding principle that's taking us into the future I would also like to note that the overall mission of the National Archives is the public access to the historically valuable records of the United States Government and the top strategic goal or the first strategic goal in our strategic plan is making access happen so as you can tell the vision of the order the mission of the NDC all supports that overall NARA mission of releasing all we can so when we strive for releasing everything we can and protecting that sliver of information that must remain confidential we are supporting NARA's overall mission of making access happen I would also like to point out that and John alluded to this that this is not just a NARA enterprise but this is an overall interagency enterprise that we participate in and the executive order helps shape that and influence that so I want to also give credit to our interagency partners who are vital to this process NDC would not be able to do what it does we would not be able to fulfill our mission we would not be able to release we would not be able to make access happen if it weren't for the participation collaboration cooperation of interagency partners who are situated with us when we're on site in College Park as well as the network of contacts we have with agencies so it's very important to also recognize the role that our partners play in this process because they're vital and we work well together so with that sort of high level opening here I think what I'd like to do now is I'll turn to this high level process map I just threw this out there as a reference to illustrate our process and what we do at a very high level I like to think of our process as a we have a macro process and we have a micro process the top half of the slide really refers to our macro level process and the bottom half refers to our micro level process but regardless of whether whatever we're talking about it's still all aimed at releasing all we can protecting what we must and it's a quality assurance system so I'll begin up in the upper left hand corner in the light green box where it talks about classified records accessioned into NARA as you probably already know NARA is the nation's record keeper so as the nation's record keeper the role that we play in this is that we are the record keeper not the custodial unit but the unit responsible for all of the classified permanent records being accessioned into NARA not just one agency not just one record series from agency but the whole universe of classified permanent records which gets to my point about the macro level we at the NDC and at the National Archives have a responsibility for all of the permanent historically valuable records that are accessioned into the National Archives and so we have this responsibility to perform quality control checks and review and protect and release that entire universe of information so we begin our process with that in mind and the first thing we do when we receive record transfers accessions is to assess the quality of what we're getting because this will be determined how we end up evaluating each particular accession and how quickly it can make it through the process so this assessment is basically a review of the documentation a physical check of the records to make sure and ensure that a proper review was conducted by the originating agency and very importantly that the particular review that or the particular accession had a valid Kyle Lott review conducted which relates to nuclear information RD, FRD so before we can move on we must ensure that a valid Kyle Lott review was conducted in most cases at this point in time a particular accession transfer I'm going to refer to it as a D-class project moves immediately to a sample evaluation for quality control it's the rare exception that begins as a page by page review and that would only happen if there was not a valid Kyle Lott review conducted if we discovered some sort of error or problem with this particular project that forced us to conduct by page review of this material but that's a rare exception the standard the norm is that our evaluation will be a sample of that particular project I must also point out at this point that this is also an inter agency operation at this point so we partner up with the agencies that are on site in College Park and conduct that sample if there are no errors discovered or missed equities that sample project will move on then to the next stage if there are errors discovered and the errors are widespread and systematic enough for that particular project unfortunately it will have to go back for a page by page review however again that is still the rare exception once a project makes it through this evaluation stage for quality control it then goes into a DOE quality assurance review queue this is a queue established by the Kyle Lott amendment and it's how the Department of Energy implements their role in this process to ensure that these records have undergone a proper thorough review and that there is not an inadvertent release of RD FRD material the DOE quality assurance review could also be a sample, an audit of a few records, a few documents or it could be page by page depending on the subject matter the agency and really what they're looking at the types of criteria that they would be approaching this from once the material makes it through the DOE quality assurance review it then moves on to the next stage of the process it's the box there that says indexing and withdrawal I like to refer to this as the liberation stage because this is where if I use the example of a one box project this is the stage where in that one box of records if there is only one document in that box which continues to be exempt from release it's withheld it has a tab around the document that one document is removed from the box set aside put in a withdrawal box sent to the classified stack information about the document is recorded in our tracking and control system a withdrawal notice is inserted in the box that serves as sort of the holy grail for requesters in order to be able to identify and find and request that document but the other documents in that box which have gone full through the full D class evaluation process are then eligible to be moved to an open stack they're liberated and allowed to move to an open stack for public access so this is a very important part of the process if those documents those documents that are ready for the public open shelves they've been declassified they move to the right and however you will notice that I do have this point about other access restrictions I don't want to scare you and make it sound like nothing is going to be released however I must note that in some series of records and some documents in some boxes some projects there are also other access restrictions on some of these records so I just want to make you aware of that those could be law enforcement it could be some sort of statutory exemption it could be personal privacy it just depends that's not necessarily the norm but I just wanted to make you aware of that and if there are other types of access restrictions on those records as far as FOIA and special access staff works with requesters on gaining access to those records but at that point I've washed my hands of this it's not a declassification declassification issue any longer it could be some other special access restriction for records that are withheld during the process they go to what I'll call north of that indexing and withdrawal box to our interagency referral center this is an innovation that predated the executive order but was spelled out in the executive order that is another fantastic interagency operation that we conduct which allows reviewers from other agencies to review documents that were withheld during the automatic declassification process for potential release once they come up in their queue. At this stage of the game there's further records end up being released and those will then be refiled in their original series in open stacks and made available for researchers and those records that must remain exempt or withheld refiled in our classified stacks withheld boxes until they come up for release once again. So that's the high level process for at the macro level for the large scale annual reviews and transfers of classified records. The bottom half of the slide gets that more of the micro level and this is the access request from the public role here and how does the public how do researchers get access to individual specific documents that have been withheld. We have two basic routes FOIA or MDR but before I get to that I just wanted to mention the first box of the shoots is indexing on demand. This is an innovation of the National D-Class Center that allows the public to play a very key role in shaping the decisions about prioritizing what will be indexed and released based on researcher interests and requests. So this is really the part the public plays a key role in helping to determine what is going to be prioritized for release by the NDC. And I think it's also important to just to mention once again that the reason we build this in after the DOE Quality Assurance Review is because as the Nations record keeper we at the NDC have a responsibility to ensure the quality of the basic review of all of the classified permanent records coming into the National Archives. We can't neglect this agency or that series of records. We have to do this for all of the records because we have this responsibility for these records to the American people. However at the point the records go through evaluation and DOE Quality Assurance Review it's a natural breaking point which allows us then to focus on what's of most interest to researchers and requesters so that they can play a role. There is a cue for indexing and withdrawal and rather than just taking in projects first in first out as we annually publish a list of projects that are available for indexing and withdrawal or indexing on release on demand on our website which allows requesters to visit, scroll through, identify a project of interest to them which then will shape the ultimate cue for indexing and withdrawal. This allows us to prioritize based on that indexing on demand list. So record projects D-Class projects that have no interest they will sit on the shelves until there is an IOD request for them or that we get to them in the cue however projects that do have researcher interest will get prioritized. This helps in two ways. The first is that there may only be one document tabbed in that box that must be indexed in order to release 90% of the material in the box so that accelerates and speeds up what we can get to that particular researcher or requester and then for the one document that continues to be withheld we then have the FOIA or MDR route for that particular researcher to request that one document so it allows us to get a lot of material out then provide the means for the interested party to request the document of particular interest or documents whatever it is. So under FOIA and MDR we work closely again with our interagency partners the FOIA-MDR shops for our partners are not located in the MDC these are generally speaking part of an agency's overall information access program so agencies don't have their basic FOIA or MDR shops located within the MDC so we take documents that are withheld in our holdings and then we consult with the agency that has the equity which that is the box to the right agency review when we consult with those agencies those agencies conduct their line review and they redact release whatever the case may be and they return the results to us and then we communicate those results to the requester and there it could be denied in full release in full release in part whatever but it's a line by line review conducted which allows for redactions so that's our arching process at a very very high level I didn't touch on lots of nuances say or details about the process but I wanted to ensure that you had a good high level picture of how we fit into the National Archives the overall scheme of things the executive order and also to ensure that you had an understanding of our role in terms of at the macro level of all of these records but then at the micro level trying to get individual records to requesters and researchers I should also point out that up until this point we have been really a shop focused on federal records however over the last year or two there's been a change in that and now the NDC will be responsible for the declassification of our residential records as well that process of moving classified presidential records to the NDC for declassification was disrupted severely by COVID we were in the process of moving collections from various libraries into our facility for D-class that was disrupted by COVID and it's also obviously disrupted by any of those records however moving forward I would like to note that the NDC will be responsible for the D-class process at the macro and micro level for federal records as well as presidential records so with that I'll stop here Alina and then I'm also available with John for any questions and again thank you very much for this opportunity thank you so much we really appreciate that we already have three committee members very eager to ask you questions I know we're running up against our break times so let's keep that in mind but I definitely want to encourage all of these questions to be asked it's a great opportunity Cal McLeanahan is first up after that that's who's been queued up so far anyone else have any questions they want to ask please chat me and Kirsten James also have a question James you're fourth up Cal just to also let everyone know by the way James reminded me earlier that he has to jump off at 11.45 am so Kristen Ellis his co-chair on the subcommittee for classification will be giving the report out so anyway with that Cal go ahead please well if James is about to have to jump off soon why don't we ask his question first that would be wonderful thank you James I mean thank you Cal James do you want to go ahead yes sure absolutely can you hear me now yes okay great give me any okay good so first let me say thank you all for the very informative and stimulating presentation that I think it provides a very nice overview of the functions of your offices and give us a lot to think about as we go about our work I have a lot of questions I'm going to try not to ask them all but I think the a couple of things that she said really drew my interest so you gave some suggestions for the reform of the executive order on classification I was curious so who is going to write the new executive order if and when it's rewritten and then another slightly more specific question I wanted to ask related to the tracking of information on classification and declassification requests I was curious how you track that information and also whether you track information related to the use of Gromar exemptions in response to request for national security information this is an issue that our subcommittee on classification may look into and we're interested in gathering information about that thank you very much Bill you might need to field that right now because John was all got kicked off the audio John is calling back in okay Bill would you mind taking a crack I'm back John is back although I missed the question if it was directed towards me yes so James can you summarize just very quickly on the executive order you mentioned that there is a possibility of it being rewritten who will lead that process and how will it work and then we'll ask another question about tracking information about the numbers of classification and declassification requests and also whether or not you track the use of the Gromar exemption okay let me do the first one first all the executive orders in the implementing directors are done through an interagency process that is led by the national security council through its normal policy making process specifically for this executive order it's going to involve senior leaders from those agencies that have an interest in this Department of Defense Office of Secretary of National National Intelligence Department of Energy Department of State Justice FBI National Archives ISU so there are a whole lot of folks that will participate in that if and when it does happen so that process can take anywhere from six months to a year and a half it depends on how we can how the interagency process is working its way through and also the direction that you are given from through the national security council structure so those are a few things second question has to do with are we tracking the number of classification decisions and I'm assuming you're referring to mandatory classification review the answer is not at the moment we have completely stopped our kind of data request on that as we start to work through with agencies as to what we think we want to do that will help them improve the program talking with civil society groups and stakeholders this is one of those data points that we do expect to continue how many NBR requests do you receive in a year how many do you complete how many are carried over things like that on the automatic declassification front up until 2017 we were capturing that information as well as the NBR information the third question you asked had to do with are we tracking GLOMARS we do not we only track whether at least up to that point we were tracking only whether an agency had exempted information had exempted the record under automatic declassification or they had declassified their equity or if they had referred to another agency so we do not track the granularity of a level do you mind if I follow up and ask whether you think you should be tracking that I'm sorry if someone else is going to respond I apologize well it's certainly something we can kind of take up so I guess I haven't seen too many GLOMARS the difference I mean I think that you would get it is not really a government wide issue as it is a very specific intelligence community issue and really that is a CIA issue primarily we certainly I think we'll look into it I encourage you to put that up on the the PIDB's blog as well so there's something that both the PIDB can look at and we can also take a look at and see whether we think it's worth doing okay thank you very much can I just ask one other question I'm sorry that I've been up all eyes before you mentioned the categories of redacted and formally redacted records which is an older set of security classifications as I understand it that are no longer used should we still be around I mean would it make sense for there to be legislation or something like that to change the classification does that make your work easier or would that just sort of complicate things so first thing is I did put in the chat for all what Bill mentioned with FRD and RD RD and FRD refers specifically to the 1954 Atomic Energy Act as amended which classifies restricted data as scientific information relating to the development of nuclear weapons and then removed from that category 1954 that was the amendment was something that they ended up calling formally restricted data which had to do with the application of nuclear weapons including storage sites how you actually design the weapon systems to carry a nuclear weapon so a little bit different now the current if you're talking about the old old exemption category restricted I would say that the orders already in previous orders actually I want to say the 2000 and three order or maybe even the order from Bill Clinton that eliminated that category and it said that that information was declassified so if it is a restricted category that information dates back from World War 2 and it's already taken care of the order also does in does talk about OADR which is originating authority declassification required which means that you had to go back to the originating agency or you could not determine a declassification date and all of those also have been superseded by this executive order which says it doesn't matter how the records are marked they are all subject to automatic declassification at 25 years unless you have an exemption for it and even those that are exempted those that are exempted their exemptions expire age 50 unless you've asked for additional permission to extend it beyond that that may be a little bit too detailed for you but I hope that's good Thank you very much for your responses James Stoker again but I was actually referring to the restricted informal restricted data which my understanding is that they are things that Congress needs to legislate and so basically what I'm wondering is if the existence of those two categories to deal with nuclear weapons related information if these are categories that should be effectively changed in other words should they just be made top secret or something like that so that they can be dealt with within the normal channels of declassification or if that would not necessarily help the declassification of information Well I guess I will give John Powers opinion on this and Bill please feel free to join in it is a law it's from 1954 very old part of the Cold War especially that I mean it does make some sense to legislatively protect very specific scientific information science is science it's not going to change over time on the technology on how you build an atomic weapon and perhaps that is a very good thing that we don't let everybody see Now the category of formerly restricted data I think just the term itself is very confusing to everybody I wish that there was different term that they used I know that the Department of Energy has its own implementing regulation 32 CFR so 10 CFR I forget the the specific citation but there are processes within that implementing directive on how the public can request this information be removed from FRD or RD status I don't know that how the Department of Energy has actually worked those processes I think that there are some reforms that should be helpful in that in trying to modernize the how one goes about declassifying formerly restricted data including a new term this is my view and I would say that Bill again I'll let Bill come in here when they do the Kyle Zott National National Defense Authorization Act amendment which happened in 1999 I believe or 1998 that requires every agency certify through that it has reviewed its records with from declassifiers who have passed Department of Energy training that they have certified that there is no RD or FRD in those records now when the QA the quality assurance takes place I would think that 95% of the records that were found that were missed which is still a very very small percentage are FRD designations either that they're marked or they're unmarked and that is where I think that there probably could be a bit of discussion about how to reform that unfortunately it's a law and I would say that it is very very difficult to change a law but that is something that it might be worthwhile to explore and perhaps Bill Fisher would like to say a quick word or so this is Alina unfortunately Bill has audio difficulties and he's dropped off he's trying to get back in so as soon as he's back maybe he'll jump in so James are you are you satisfied with your questioning are you done for now or? Absolutely and I just want to say thanks to both the speakers again for all their work and for coming today very very quickly. James please put that up on the PIDB slides. I will thank you very much. Great so Cal over to you. Hi John and when Bill is still watching, hi Bill again I echo James's thanks for this very educational thing for many of the panel members who don't deal with national security information I'm sure this was very enlightening. I'm going to sort of use the attorney thing and ask you a question that I already know the answer to John simply because it is something that the classification subcommittee is looking at that everybody would benefit from a greater explanation and that is since we are the FOIA subcommittee we are the FOIA committee we are dealing with FOIA directly and not as much sort of how to do MDR and how to do declassification how does MDR in every agency not just you know NARA handle information that would be protected by a FOIA exemption what's the interaction between those two? Well the executive order is very clear on this section 3.5C I believe requires that records that are requested under MDR to review the agency review those records for public release which means that they are reviewing for classification the records have to be classified in the first instance for them to be a mandatory declassification review request but agencies must also review for the other FOIA categories so that the very end of this the requester is getting a public release document that has been redacted for if it has been redacted at all and I would say that in the past we found out that over 90% of the records that were requested under MDR actually are declassified so people seem to be getting what they want at least from the more recent past but if there is a redaction they are supposed to cite the reasons for those redactions so it will be the typically on MDRs they will cite the executive order using a 25X category and then numbers 1 through 9 depending on the reason for the exemption and if there are any FOIA exemptions they are supposed to cite the FOIA exemptions that go with it and if I can just follow up this is something that we talked to Bill Carpenter way back when when he had a round table if you file an appeal to ISCAP of a decision where they have made a with something under FOIA how do you have that appeal? Perhaps if it is a recent FOIA exemption if the requester has there are a couple of different things if it is the same requester and the document or the record was exempted or redacted using a B1 exemption in the past two years if the record has been reviewed in the past two years it is a time saving thing in recognizing that agencies are pretty strapped for both FOIA professionals and declassifiers but that is why at the beginning of this process we at requesters must choose either FOIA or NDR now what I would say is that the ISCAP will not look at other FOIA exemptions they are concerned totally with the application of the B1 exemption the 25X category or the 50X category or the 75X category is it being correctly decided and applied not quite sure if that answers your question but maybe that will start It gets most of the way there the point I was trying to get at and you did explain it is that if for instance you follow an NDR request for CAA for something that is an attorney's memo that they will say we're not going to grant this under 3.5C because it's covered by the attorney client privilege FOIA exemptions and B5 if you appeal that to ISCAP ISCAP will say we have no jurisdiction to regulate the B5 we can only adjudicate the AD classification decision or not that is correct on the crazy chance if the CIA using your hypothetical example the ISCAP will look and will decide if the CIA didn't make that initially case they will decide what is and what is not classified in that record so if that would potentially allow the FOIA requester then to use the judicial process or adjudicating that FOIA restriction that is not a B1 and thank you and I have one small question and then we can probably go to break if Alina signs off on that we get a request like that where it is classified but it is also exempt under B5 will say will the agency process the record for declassification even if they might not release it for other reasons so that at least going forward it will be an unclassified privileged document in my view the agency should process that all of their reasons for why they are withholding a record whether it is exemption 1 or exemption 5 or other exemptions under MDR certainly if it goes up to the ISCAP they are going to make a decision on whether that record is classified or not outside of that it is the purview of the agency the other example I will give you has to do with RD or FRD RD or FRD information is almost always found within a record that contains other national security classified information that is not RD or FRD so the interagency security classification appeals panel is going to make a decision on all of the information that is not RD or FRD but it will leave it to the Department of Energy and Department of Defense in the case of FRD we will decide how to deal with that information thank you very much very helpful despite what Cal said we are not able to go to break yet because we have two other esteemed committee members who are queued up to ask questions Swan you are up next unless you think questions have already been asked that you were already attending to ask so in part I will limit my question here but my question was about Executive Order 13 526 Section 5.3C also which operates as sort of an election of remedies you can get executive MBR process which while ultimately discretionary bound by executive standards it is likely to be more generous than the alternative or you can get the judicial process that you could sue under FOIA court's exemption which is a very differential to the government and the courts decidedly do not follow the philosophy of releasing all we can protecting all we must if you go into litigation so this provision feels a bit punitive so given MDR and ICAP appeals have enormous backlogs in terms of President-elect Biden contemplating an order I wonder if we can't get some change here perhaps a compromise where a requestor could sue without losing executive ICAP process provided you've been waiting good faith long enough I wonder if this might sort of at the same time because we're all interested in sort of disclosing all we can protecting that which we must I wonder if we might not see some change there I think that's a very good question I hope that you do please put that forward I agree I think I sue's analysis of agency MDR programs and I'm sure it does follow what is going on in the FOIA world too and that is that offices are overwhelmed with priorities and what I will also say is MDR is an executive lawyer FOIA is a law and when we go out to talk to agencies and when the PADB went out to talk to agencies what they heard is they're going to try to prioritize a little bit the FOIA since there are legal ramifications for non-action or adverse decisions and even then they're still locally behind that is the same with MDR locally behind on that too how you can get to that with a 1300 plus case backlog and there can be multiple documents or multiple documents at the moment because we haven't gotten to electronic records yet than the ICAP that's a very very good question and I certainly putting on my what the future should hold at we'd be very interested in hearing your ideas on that please do send those along thank you okay thanks Tom are you still with us? I am two questions we have two subcommittees looking at the issue of training relating to FOIA and yet you had mentioned earlier training is required for classification but there's a real compliance problem and so I'm wondering if there's a role that the advisory committee can play in trying to if you have some ideas we don't have to do this now but how to get some enforceability to the training requirements which the result of absence of training is almost always going to be overclassification I mean one possibility would be no training within 18 months it's supposed to be trained every year training in 18 months and you lose your classification authority or I'm sure that there are other ideas that one could come up with so that's sort of one issue that I'd like to sort of put on the table the second is there's also a legislation subcommittee of this advisory committee and I recall during the 70s a big battle between the congress when they were considering competence of classification legislation the branch said no no no you can't do that constitutionally that's an executive function and so I guess this may be a bigger question than you want to address right before the break but what's the role that congress can play I mean should we be even considering recommendations to congress in the classification area or is the administration likely to take a historic position that will do it by executive order in congress should not intervene thank you hello am I on yes great questions and so I would say I cannot speak for the administration I seem to have lost my audio here but I can't speak for the administration what I would say is that as far as legislation goes the challenge of undoing legislation seems to be harder than an executive order and that's just my personal view we are still dealing with the effects of a 1954 atomic energy act amendment on RD and FRD information that is the challenge for historians and that we hear about at the archives at ISOO and in the PIDB specifically almost weekly the other thing I would say is that so first of all regarding your training thing is the executive order does have punitive actions for what happens if you do not receive your training or original classification authorities in theory at least according to the order if they have not taken their training their yearly training they are supposed to lose their ability to classify records that's the that's the order it says it already now what ISOO has found is that and not so much for the derivative classifiers but rather for the OCA some of those folks agency head get the agency the heads of assistant secretary under secretary level who are typically the three star generals those folks are usually quite busy and we do have concerns about the quality of the training that they receive that they are perhaps done too quick they're not as detailed as they should be that said we also are not really staffed to go out to every single OCA and even though that they are far fewer OCA's today than there were 10 years ago and that's a good thing we think we don't have quite the staff to go out and do that we do offer template slide decks for the person who is responsible for an agency information security program the senior agency official who is responsible for the program that they can use the training that we have and just kind of modify whether or not that actually happens that's the question the derivative plus the classifiers we feel pretty good about the training that they receive but the original ones we're not quite so sure based on some of the few interviews when we were going out to agencies and actually doing on-site inspections and part of our process included an interview with one or two OCA's and one of the questions we'd ask is when did you do your training and the answer was I don't know that we knew we had a corrective action and a finding to put in our response I don't know if I've answered your question or not maybe perhaps a little bit and I'm happy to kind of continue this discussion either through your subcommittees or otherwise too Tom you're good back on Tom just gave me a thumbs up so thank you there will be that Bill Fisher has rejoined us on audio but we're going to give him a little bit of a break what we may call on him to do is revisit some of the questions that were posed today all of the questions that were posed today by all of our committee members and ask whether he has anything to add to John's great answers John thank you so much for hanging in there with us we really appreciate it let's all take a 15 minute break I know we're a little behind schedule so let's all try to come back at noon can I give you a 10 minute break instead of 15 minutes that would be really great and we'll continue our great meeting that we're having so everyone 10 minute break please come back at noon thank you make sure we're back online we're recording and our audience is watching us can you confirm that please yep we are all set well thanks I'm sorry to give everyone a really short break from the computer anytime you need to but I appreciate the fact that everyone's hanging in there Bill thank you so much for your participation we know you have to drop off a little bit so we are going to grill you with all the questions that were asked and ask of you if there's anything you want to add later after the meeting and we'll post any additional thoughts you have to tack on to John Powers great answer so you're not off the hook entirely but thank you sorry if you have technical problems so at this point in our meeting I would like to turn to the part of our agenda where we hear on the progress of each of our four subcommittees I am extremely grateful to all four subcommittees none of them have wasted any time since our last meeting everyone has rolled up their sleeves and started digging in to figure out mission and direction so thank you very much for that I did suggest that our first meeting each subcommittee focus on a mission statement of some sort that may help move the ball forward I understand that although some of those mission statements are ready some are still in progress so as soon as all four subcommittees are ready for prime time we will post them all on our website so stay tuned for that but I'm excited to hear from all four subcommittees I think the committee will hear all the great work that's been going on the committee members are on multiple subcommittees which I think is actually great benefit because they can lend their voice to things that they're hearing that's going on in each of the various subcommittees so I really want to encourage that Tuan it's still not too late for you to join the classification subcommittee that's my pitch so over to Kristen Ellis unfortunately James Stoker who is our co-chair on the classification subcommittee I have to sign off but Kristen will carry the weight today so Kristen over to you thank you Alina hi everyone so as Alina said James and I are the co-chairs of the classification subcommittee and James had to drop off so he's left me in charge and that may be dangerous the classification subcommittee has drafted a mission statement as Alina said I think that everyone is not ready for prime time they haven't been posted yet as a general proposition the classification subcommittee is planning to investigate the role of classification in the FOIA process certainly the classification of information is critical to national security but as both John and Bill talked about earlier it can impose obstacles to the public ability to access certain information and so we are going to explore that in a lot of different fashions we think during this term to that end our most recent discussions have focused on possible priorities for the subcommittee to work on and we came up with a list of seven potential priorities right now the subcommittee is four people me, James, Kell and Luzna and so we have limited resources limited time to explore all seven so we decided to try to prioritize the priority list and determine that we could work on a couple of items at a time and maybe at the end of this we will have touched all seven or we will have really touched on an issue with just focusing on one or two that really we think are critical to this work so maybe we will only get to two of them. To that end we identified we also considered that it might make sense to have a more broad longer term item that we work on and then smaller more concrete more time limited items that we could do out on more quickly that may inform the bigger process so we went through our list of seven potential things and came up with two that we want to focus on initially one concrete one more broad and the concrete item is how Glomar responses are administered across the government and for folks that don't work too much in the classification area in FOIA a Glomar response is basically just an agency refusing to confirm or deny whether the responsive records exist. Glomar was actually a classified CIA ship and there was a case about that which resulted in it being called Glomar. So we want to focus on how Glomars are administered in the government and is there any sort of consistency across the agencies regarding youth which there may not be because different agencies have different reasons for invoking Glomar. As I think the presentations earlier today and Cal's question to John I believe indicate it seems that it's a data point that's not being collected right now in the government. So this is largely going to be a research item to see if we can move our hands around the use of Glomar and how it's being used in the extent to which it's being used in the government. Then the second item the more long term we think item is how agencies can proactively declassified documents to better meet the concerns of the request of community. So again I think this dovetails a lot with what John and Bill were talking about but how can is there a way how is there a way to make information more accessible proactively versus through the MDR process or through the FOIA process. So that one is broader and it's probably going to require a number of different avenues to figure out if there's a way to accomplish that. So our next subcommittee meeting is after the holidays and we will continue the work in discussions where very early stages follow this. So my time here is short that's pretty much all I have to report out from the subcommittee activities so far. Unless somebody has questions or Alina Kirsten if you need me to address anything else. I'm certainly very good. I just want to ask your subcommittee members, Kell, Lubna anything you either one of you would like to add. This is Lubna nothing to add well stated Kristen thank you. Thanks Lubna and Kell I hope that thumbs down was not I just completely screwed that up but you're good. I have lots of things to add later but not today. Okay. The work continues. Thank you so much Kristen for that report. Michelle next slide please. The next subcommittee that's going to report for us is the process subcommittee. The co-chairs are Linda Fry and Michael Morsey and Linda and Michael I don't know which one of you is going to present so I'll let you take it from here. I can go ahead and present. Basically we have been meeting every other week and at this point we've started on our mission statement but I don't know that it's 100% finalized yet and we've identified eight recommendations from the prior committees that we want to further explore and see the likelihood or difficulty in trying to get some more of these implemented to help the FOIA process flow. Michael do you have anything else to add? Yeah I think that covers it. I have a draft of our mission statement that was still sort of a working mission statement so far but I think I'll just go through a well-functioning system of public records is a cornerstone of informed democracy and so this subcommittee examines the current FOIA processes as a nation would their tools in order to further improve our field we'll identify how prior recommendations have and have not had their intended impact highlighting both successful pilots and progress while noting blockers and impediments to progress. We'll also look at how we can build a shared understanding of FOIA's purpose and process which brings together the goals of their cluster and the processing communities as well as identify applicable inspiration from state and international practice. We'll pay particularly close attention to the FOIA process through three particular lenses the use and adoption of technology the independence and impartiality of the process and structural incentives to set the groundwork for lasting improvements for the field. The FOIA has the word process about 50 times in it but I guess that's relevant for our committee. Okay, Michael, thanks very much and Linda, thanks very much. Any process subcommittee members have anything to add? I just want to personally say thank you to the process subcommittee for taking on this probably not so thankful task of looking back to prior recommendations on behalf of OGIS we are very grateful for that help I think that's very, very valiant of you and very much appreciated, so thank you. All right, so hearing nothing else from anyone on process if we could go to the next slide, Michelle, please. I invite now the technologies of committee co-chairs to present and let us know what they've been up to. Allison Dietrich and Jason Gart are co-chairs Allison and Jason, I don't know who's going to go first but I figure it out. This is Allison, I'm going to go first. So we finished our mission statement, vision statement and we're going to be exploring the applicability of technology-driven solutions to improve and streamline the FOIA process as well as review prior advisory committee recommendations. So we're currently in the process of going through the technology aspects of the prior committee's work and seeing which ones that we think we can take to the next step, which ones we can add to and fully execute as well as seeing what new priorities and goals that our group has and we're looking to do both short term and long term impacts as well. Jason, do you have anything to add? No, that covers it, thank you. I do want to note that the technology subcommittee has been coordinating with the technology committee of the chief way officer's council so we're trying very hard not to overlap but there are so many issues that need to be looked at so again I'm also very grateful for your work and trying to follow up on recommendations from the past committee terms that we've had so thank you for that. Anyone else on the technology subcommittee have anything to add or anyone on the committee have any questions? I've seen a lot of no's. Moving on, last but not least, turning next slide, Michelle, to Patricia Weck and our subcommittee co-chairs for the legislation subcommittee and I'm asking that as a question mark, are you legislative or legislation? I just want to clarify. That's a good question, yes. I'm not entirely sure. I think legislative is better but we were sure. That sounds kind of thinking through. Yeah, yeah, yeah, legislative sounds good and Cal you said you were going to go ahead and present so over to you please. So our subcommittee is a little bit of an odd duck here where we're more of an operational approach to rather than being a particular subject matter like technology or process or something like that. We're looking at issues that we've decided are particularly ripe or susceptible to legislative fixes to legislative reform or even to exploration to see if legislative reform is necessary. We originally had 13 items that we went through. Some of them were from old recommendations, some of them were from recommendations from other committee members and narrowed it down to four. We don't really have a not even ready for prime time. We don't have a ready for the midnight show mission statement yet because we decided because of the nature of our subcommittee we are making six months planned basically and so what we are talking about now, what I'm talking about now is what we're planning on doing for the next six months and then we're going to do a whole new six month plan that may be something completely different or may carry over some matters. So we voted on all 13. We had a lengthy discussion of them and we settled on four topics that are relatively briefly expanding FOIA or some FOIA like process to certain parts of the legislative and judicial branches like GAO or capital police or administrative office of the U.S. courts in the greater interest of greater transparency to those agency like entities that would be amenable to that kind of transparency. Finding ways to improve and give greater authority to and in all ways make OGIS more effective, more resilient able to do the things that those of us who are here when OGIS were created sort of envisioned for OGIS to do to address that bugaboo funding appropriations getting money for FOIA offices or FOIA programs or finding ways to make more bang for your buck in FOIA programs so that if you don't get more money at least you can be more with it. And the last one is another perpetual argument how to improve fees. How do agencies assess fees? How do they charge them? How do they use them? Should they have them? If they should? Should they uniform? Etc. All things fee-related. Those are basically our four topics that we're going to look into. Hopefully have something done on at least a few of them. It's not all of them come six months from now. And then we will recalibrate and decide where to go from there. And I'm good unless anyone has questions or Patricia wants to say something. I'll just follow up and say as Cal mentioned those are our four working groups expanding the scope of FOIA, strengthening OJIS, FOIA funding and FOIA fees. Shameless plug is any of these sounds of interest to you and you would like to join our subcommittee and these working groups. The water's warm so jump right in. Thanks Patricia. Perfect plug. I really appreciate that. And thanks Cal for the presentation. I just want to I'm looking at everyone. Does anyone have any questions for any of the subcommittee co-chairs before we move on? I'm seeing no one jumping up and down. Okay. So at 12.20 we were supposed to lose Alexis and I'm hoping maybe I can catch her for five minutes and we're unfortunately a little behind schedule today and I'm going to have to just cut short part of our agenda. But since it's a very very important topic I really would like to say that I'd like to get it started today and continue and carry it over to March when our next meeting occurs because unfortunately whether we like it or not the pandemic continues to stay with them. So just a quick couple remarks and then I'm just going to turn the floor over to Alexis when this year began I don't think any one of us could have imagined the year I'm holding the way it has and we all know that COVID-19 has had a profound effect on all of our lives. But in particular today I wanted to just focus our discussion among our committee members so we can learn more from each other about how the pandemic has impacted the FOIA process at federal agencies and how in turn that has translated to the requester community. We know that on March 17, 2020 OPM ordered maximum flexibility across the federal government to move to full-time work from home environment effective lot of FOIA offices, especially in the intelligence community. O just found itself in a unique position to observe FOIA administration across the government. So we published a quick review of that. We looked at how agencies were informing FOIA requesters about what was happening as a result of the pandemic. A snapshot between May 15 and June 9, 2020. And in the midst of that review Kudos to OIP. OIP issued their guidance for agency FOIA administration a lot of COVID-19 impacts on May 28, 2020. And it stressed four important things. FOIA statutory time limits remain unchanged. Requesters I'm sure might have heard that. Importance of clear and effective communication with requesters, encouraging agencies to take proactive disclosures and leveraging technology to maximize efficiency. Just a shameless plug for OJS we're actually going to undertake another review of agency websites and we hope to publish another quick snapshot in time report in the near future. So with that I'm just going to turn it over to Alexis. Maybe she could share with us a few things that have been going on in her agency before she has to jump off. Can you hear me okay? Yes. Perfect. So we immediately put a notice banner on our landing page which I think was very helpful for requesters. You know, we of course encouraged electronic submissions to the extent possible in lieu of mail and staff. We also encourage people to consider outscoping those portions of the request that are asking for hard copy records with the understanding of course that many people were of course teleworking and unable to do or perform those searches. So we have found that requesters requestor community has been very amenable actually to outscoping portions of their request of course with the caveat they will come back once the pandemic is over to request those other portions. But I think the majority of our records are electronic now so most of what they're asking for can be accessed through those electronic searches. One of the big things for us initially was stopping and I'm sure this hit every agency but we really had to think about core hours and how we do schedules for our analysts. Everybody has families and so we wanted to make sure that we were being mindful of that and so we actually extended our core hours and so we were also very flexible with our schedules. We have some folks who will work a few hours in the morning, take a midday break and then work in the evening so we have folks working as early as 5.36 a.m. and they might conclude their day at 7. So once that flexibility was afforded and approved by our general counsel I think that we began to see that continuity of operations again. One of the things that we are still trying to figure out before we solve is the idea of these checks and so to the extent that we can waste these we have been doing so but again you know that does require someone to come into the office and so we've been kind of just round robbing the idea of folks coming into the office to pick up checks, look for checks and making sure those will get off to the treasury. Again we are looking for solutions to expedite that process. Overall I found that our agency and the types of records we are one of the fortunate ones we don't have a lot of classified records so it really lended itself to telework and I am actually pleased to report despite all of the challenges this year we recently had a realignment where our staff offices were realigned under Office of General Counsel and all of our staff offices this year despite the challenges realized reductions in the backlog so I'm very pleased and proud of that but again I think this has us starting to think about how we do our business operations and what's the most effective. Okay Alexis thanks that was really helpful do you need to jump off or we'll need to jump off. Okay thank you so much happy holidays and thank you for sharing all of that. Thank you. So initially thank you I was going to ask Roger to kick us off but I gave Alexis the force and she had to leave but Roger would you like to share with us a little bit about what's going on at the CDC especially because I'm sure you are under a lot of scrutiny a lot of requesters want records about what's going on at the CDC especially during the pandemic. Thank you Elina and good afternoon everyone we've done a couple of things I think one we did provide some updates to our website basically encouraging requesters to submit their request electronically because we have basically two avenues by which they can submit their request and it's entered into our system so it's a much more efficient way to do so we discouraged Whiskey said that you know don't submit request by mail because there's no one there to pick it up and people have had quite a few come in not that many and so we have one of our staff members who goes I think for the first six or seven months we had no one go to the office but we recently had a student intern come on board and he has caught up with all the staff on the office so we'll be able to handle that we also be able to find a solution to getting payments for fees electronically so that people can send in checks by the realities we very rarely charge in fees anyway and so that's not really a big issue for us we certainly have seen because of the role of CDC's at 20 in the pandemic we've seen a significant increase in our FOIA request for 2020, the FY20 CDC typically averages around 1,100-1,200 requests the first time in FY20 we ended up with very close to 2,500 requests so that's close to 100% increase in our in the number of requests that we receive and the vast majority of the requests that we work on are related to COVID so basically we are the COVID processing agency for the for the nation the majority of the requests that we get it's everything all about COVID most of the requests that we receive are also complex in nature because all these COVID records involve multiple agencies and the White House and so processing the documents and getting them out the door has not been as prompt and as timely as we would like we've seen an increase in our FOIA backlog from a low of less than 20 at the end of April 19 to somewhere in the region of over 300 which is something that we don't want to see but we're working to try and get it down but we certainly have changed some of our processes to make sure that we can much more efficiently move cases along I think around June I think I can speak to this CDC engage with OGIS so that we can engage with our before they engage with our requesters and we had I think close to a hundred participants both from the request to community reporters and just the general public to give them an opportunity here from CDC what we're doing with regard to handling COVID request and how they could help us help them and I could say that I think since that webinar we've seen a change in our communication and the willingness of requesters to work with CDC in terms of providing responses to our request they're much more willing to work with us and that has been very helpful we've also seen an dramatic increase in the use of technology to assist us in looking for documents before FY20 I think probably only about 15 maybe 20% of our request were conducted by the FOIA office most of the sets were conducted by custodians but as of early November over 7,000 CDC staff assisted with the with the response which means that we don't have the luxury of going to custodians and asking them to assist with such for documents so fortunately because we had eDiscovery 2 was available it has certainly helped us ramp up utilizing that eDiscovery 2 sets for documents and certainly that has definitely helped us out a lot because without that I think we'd be completely buried we've definitely had our staffing issues but we've managed to secure some COVID resources to 10 employees who are going to be with us up to 4 years and that has certainly helped we recruited a student in time to help us with initial intake and that also has been helpful and we are working to see if we can get a contracting place to assist us with processing FOIA requests so we can move these cases out quickly and lastly what I want to say is that as a result of our inability for request timely we've seen an increase in our litigation cases and therefore that's another thing that we haven't to deal with hopefully I think that we have done to a much better place now that we have a much better processing place and we're moving in the right direction that I think that a year from now will be a much better place than we are right now in terms of timeliness of responses to request refining processes and better communicating with requesters even better providing a lot more interim responses to FOIA requesters and asking them whether that will enough to close that request especially if some of the other records that they're waiting for might be involved for example UP documents hopefully we think that some requesters might go you know what, which you give enough is enough would be willing to close that request if anybody has any questions or at any point they'll be happy to answer. All right, Archer, thank you so much. That's really helpful. So just to be fair and balanced I want to look to our committee members who are on the requesters side that is the beauty of this committee that we have a balance of of both. Anyone on the requesters side want to lay in about their experiences during COVID Mr. McClanahan So I have actually been asked by a couple of different people to mention the experiences of various litigants and various requesters with various agencies that sort of go across the agency or across multiple agencies to find out how widespread this is. One of the big ones that we have experienced is the agencies that will sort of do the rotating staff or they'll have staff come in on certain days or even certain weeks or the people who can't come in don't come in because they're either safe or they have to stay at home or something like that. They might not be able to work with classified information. But some agencies are still keeping the what I'll call assignment cues where let's say that Alina Simo is a FOIA and she is in charge of my request. If she stays home my request goes into a general pool that people won't look at until they're done with all the requests that they're already assigned. And so requesters are getting basically sidelined or thrown to the side by complete accident simply because the FOIA analyst that's handling their request isn't there that week or that month or can't access classified records or something like that. So that is one concern I've heard from some people. The other concerns that sound like they're going away so I'd like someone like Lubner or Christian to sort of talk about this when they get around to it is when you're talking about classified records and you're talking about a lot of agencies had problems with work from home analysts not being able to see classified records. That appears from the outside to be less of a problem than it was maybe six months ago but I would like someone who actually works in an intel or law enforcement agency to talk about that and how they're fixing that problem. Great question, Cal. I don't want to put Lubner or Christian on the spot but I'd love to hear from your perspective what's happened on your end. Okay, this is Lubner. I'm happy to speak to that. Obviously I think Cal's comment is spot on which is it's less of a problem now than it was six, seven, eight months ago with regards to DIA that's been one of the biggest problems that we've had to try to tackle in terms of dealing with FOIA requests is that most of the information that people are, you know, requesters are seeking are on the classified systems but we have had a significant portion of our FOIA specialists at home teleworking for a variety of different reasons. We're dealing with situations of folks certified as high risk. An agency has a policy in terms of how we deal with that and we're dealing with also trying to accommodate folks who have families at home kids at home who are working and trying to figure out how to balance telework with mission and then we also are certain restrictions in terms of the agency's reconstitution plan and the percentage of employees who can actually be physically on site. So those of all, you know, kind of evolved over the last couple of months where we're better now the FOIA office is in a better posture now in terms of at least being able to have a certain amount of people in the office every single day but obviously they're not anywhere up to 100% full operating capacity and that's just consistent with the agency's reconstitution plan in terms of how to keep the workforce safe and the safety protocols that we have in place. So it continues to be a challenge but I think it is less of a challenge than it was at the beginning when we had almost the majority of folks on telework but given the nature of the document that we work with not being able to have everybody in the office all the time is going to necessarily impact the ability to process with the same speed or an efficiency that we did before and then again as it all sorts intelligence agency we also work very closely with other agencies because most of the records that we have contain other agency equities and those agencies have their own limitations so that just kind of builds on top of it. I know that we've made some efforts to try to improve upon the type of work that the folks that are teleworking can do in terms of intake processing initial responses communications with the requesters things that we are able to try to telework the agencies working to allow the FOIA specialist to be able to do that and hopefully that will help us to become a little bit more efficient. Hopefully that answers Kel's question over. Great, thank you so much. Kristen do you want to talk a little bit about what's going on in your neck of the list that would really be helpful? Sure. So I violated Alina's rule at the beginning. I'm Kristen Ellis and I'm at the FBI. We I think consistent with this sort of luminous experience it's less of an issue for us right now but I will say that as of Monday the FBI FOIA shop has dialed back to a 50% capacity because of impacts from COVID starting in April we've gone back 100% and we've had to dial that back. You know the challenge for all of this for anybody that works in an agency that works on classified systems is that our systems are typically built around the classified system because it can handle everything. It can handle unclassified as well as classified whereas the unclassified system can only handle unclassified. So the portal while you can submit an electronic request it gets routed ultimately through to the classified system our FOIA document processing system is on the classified system the vast majority of what we do evolves from a classified system and for security reasons we can't just downdraft that information to leave it unclassified to work on a known classified system with it because that still classified information that is not immediately identifiable in the document so basically from our perspective this all drives around people and the ability of people to physically be in an office which has been obviously for pandemic purposes the major impediment we're continuing to work through this our FOIA office is continuing to explore whether there are technological solutions to any of this and if so if they're feasible in terms of purchasing technology implementing technology getting it through security protocols and all of that we're just doing our best to continue the flow of the work from our perspective we also hate being shut down because we already were in the hole in terms of the backlog not working makes that backlog worse and we don't want a worse backlog as I think Roger was talking about CDC's litigation flow going up FBI's definitely was already very very high and adding to it doesn't help anybody so we're trying to be creative and solutions but our hands are very much tied just because of the security aspect of it we're continuing to try to get as many pages out to as many people every month as possible but I think that this is a long-term government-wide problem that needs to be addressed because I think most of us were caught on our heels when we couldn't go to work we have continuity of operations plans but a lot of those are based on folks in DC not being able to work but maybe folks in California being able to work the problem was nobody could go to the office and so we didn't have backups and we didn't really have a great plan for how to work that when all of us work on classified systems in the FBI generally speaking I think that's not a great answer but that's where we're at right now is we shut down our FOIA shop shut down completely in March for about 6 weeks it then went back online in varying degrees we're now dialing it back because of the amount of infection and exposure that we're experiencing and I think that we're going to continue to see the up and down in the event flow until we get the situation with the pandemic under control okay, thanks Kristen so I'm looking at our time and I know that there's a lot of other folks that would love to talk about this topic and I would like to ask for the rest of the committee members to defer and save their thoughts for our next meeting I really would like to continue this discussion I think it's a very important one and hope that all of you agree but I also want to end this meeting on time today so we are at 12.43pm and at this point I thought I would turn to the public comment section of our meeting if that's okay with everyone okay, I'm seeing some now thank you Dave for nodding so at this point we are we have now reached the public comments part of our committee meeting and we do look forward to hearing from any non-committee participants who have ideas or comments to share and we have posted and we will continue to post on the FOIA Advisory Committee webpage on the OGIS website any written comments we receive any oral comments are captured in this transcript of the meeting and we will post those as soon as they are available Michelle our event producers I could ask you to please open up our telephone lines and provide instructions that would be great absolutely ladies and gentlemen over the phone line please press Pound 2 on your telephone keypad to enter the comment queue once again pressing Pound 2 will enter you into the queue and at this time do we have any calls online anyone want to ask any questions through I do see one person on the phone would like to ask a question caller your line is unmuted you may go ahead hello this is Robert Hammond can you hear me hello yes Mr. Hammond good afternoon oh yes now I'm sorry for the inconvenience there I submitted a document for public comment and I don't know if anybody has had the chance to read it but the first part was the question in the 2016 FOIA legislation it required a single portal for submitting and I was wondering I was thinking that might be FOIA online but I'm not sure and maybe it's FOIA.gov but does anybody know what the answer is to that and how that project is coming this is excuse me this is Bobby from the department of justice so the national FOIA portal that was part of the 2016 amendment that is FOIA.gov FOIA online is a shared service that agencies can use as a case management system that also has a public facing portal similar as other case management systems that are out there that either agencies have built or procuring that also may have a public facing portal but the intent of the amendments were to have in addition to that not to disrupt a single place where a request can go and make a request directly from that website to any of the agencies subject to the FOIA and so we launched that in I think 2017 or 2018 we launched the national portal on FOIA.gov where you can go and each agency has their own landing page a key part of the portal is interoperability with agencies case management systems and agencies we had a directive to agencies, a joint OMB DOJ directive that absent an exception being granted that agencies be fully interoperable with the portal by the end of this fiscal year and we're working with agencies to do that. A lot of agencies are already interoperable and when you go to FOIA.gov you will see a form a standardized form but one is also customized to the agency where you can submit your request to an agency from the portal it also has a lot of information about the agency's FOIA program including their FOIA libraries their average processing time their FOIA regulations their FOIA reference handbook and so that is that FOIA.gov is where the national FOIA portal is. If I can have just a second to follow up on that I've used them both FOIA.gov is basically an API that connects to somebody else's application. So from a requesters perspective all that does it gives you a place to submit your request. FOIA online on the other hand you get a login it pre-records all the stuff you normally use for a FOIA thing and you can view the status for your request if it's open, if it's closed and those sorts of things and I'm sure you don't have time to address it during the meeting I like FOIA online I really do but there are several deficiencies from the perspective of the requester in that and a couple of those things the agencies set by default to embargo and make not viewable to the public the requesters name the request itself and all the correspondence and that defeats the purpose of the web page I mean release to one release to all so maybe you guys can get a chance to take a look at the recommended changes that I have for that one get it to the right committee and hopefully somebody will take a look at that. Thank you. Thank you. I'll just quickly add on just that of course the individual portals that you might have additional functionality but the idea with the portal is that we'll continue to see building on it so that we can integrate with agency systems to add additional functionality such as viewing record and things like that so the vision is that eventually all the functionality of the national portal increases to meet the type of functionality that's out there for what individual agencies are using for their portals if they are using the portal. Thank you, sir. We do have another question in the queue. Let's go ahead and listen to that caller. All right, very good. Hopefully your line is unmuted. You may go ahead. Hello, this is Alex Howard. Thank you for continuing to hold these discussions during this state of pandemic. I hope that you'll make the recording of this discussion available to the public on the archive's YouTube channel as soon as it's feasible and described at the beginning to make this public meeting accessible. I asked several questions in the chat prior to when I raised my hand because I wasn't sure if the queue would get to me but the principal one at the top would be grateful if you could address the others regards the suspension of freedom of information law practices and offices across our country. Obviously the focus from the federal government will focus on the agencies but there are quite a few people from civil society as well. What we see here on the civil society side is state and city government suspending FOIA during the state of emergency for nine months and given the scale of death and disruption gone going right now we can expect to last winter. What should be the stance of agencies with respect to the FOIA? What should be the stance of others? What provisions can be made to ensure that public access to trustworthy information in the pandemic is not cut off, I should say particularly given that we see significant disparities between what governors, secretaries and even presidents say in public and what epidemiologists and public health officials are saying in private. Thank you again for hosting this meeting in a virtual context enabling us to continue to have these discussions.