 Welcome. And thank you for joining today's conference, Freedom of Information Act Advisory Committee meeting. Before we begin, please ensure you have opened the WebEx Chat panel by using the associated icon located on the bottom right corner of your screen. Please note that all audio connections are muted at this time until the Q&A portion of the call. The instructions on how to ask verbal questions will be given at that point. You may submit written questions throughout the presentation and these will be addressed. To submit a written question, select all panelists from the drop-down menu in the chat panel, enter your question in the message box provided and send. If you require any technical assistance, please send a chat to the event producer. With that, I'll turn the conference over to David Ferriero, Archivist of the United States. Please go ahead. Thank you. Good morning and welcome to the fifth meeting of the 2020-22 term of the Federal Freedom of Information Advisory Committee. I join you once again from my office at the National Archives Building in downtown Washington. This committee is one of the four active federal advisory committees that provide countless hours of advice and guidance to the National Archives on a wide variety of issues that touch federal records and information oversight. Two days from now, we Americans will observe the 20th anniversary of the attacks of September 11, 2001, events that forever changed the fabric of our nation. September 11 sparked countless FOIA requests to agencies large and small from the FBI and federal agency administration to the State Department and the National Institute of Standards and Technology, among many others. Below the records of the Independent and Bipartisan 9-11 Commission are not subject to FOIA because the commission was part of the legislative branch. The National Archives has legal custody of the commission's 570 cubic feet of records. Many remain classified but are the subject of an executive order of the President signed last week directing the Justice Department and other agencies to review, declassify and release documents related to the FBI's 9-11 investigations. Not classified in public and available online in the National Archives catalog are summaries of more than 1200 fact-finding interviews conducted by the 9-11 Commission staff. As we approach the anniversary of 9-11, I invite you all to visit the catalog at catalogdarkarchives.gov where you can access these and many other permanent records of the U.S. government. Since the last FOIA advisory committee in June, the National Archives has added to the catalog a harmful language alert to advise users that historical records and their descriptions may contain harmful wording reflecting outdated, biased, offensive and possibly violent views and opinions. The National Archives is working with staff, communities and fear institutions to assess and update descriptions that are harmful and to establish standards and policies to prevent future harmful language and staff-generated descriptions. That work is the direct result of a task course on racism that I convened in 2020 to identify and recommend solutions to issues stemming from structural racism within the agency. As the keeper of this nation's founding documents, we have a special responsibility to the ideals that all peoples are created equal, that people have equal protection under the law and that there is a common good that includes us all. More information including the task force's final report is available at archives.gov. When the FOIA advisory committee last met, local public health metrics were allowing the reopening of many of our federal record centers and presidential museums and libraries in 17 states and the District of Columbia. Unfortunately, local public health metrics across the nation are forcing us to close or cut back on physical access to many facilities to protect the health and safety of visitors, customers and employees during the ongoing COVID-19 pandemic. Here at the National Archives flagship building, we are still able to allow viewing of the Declaration of Independence, the Constitution and the Bill of Rights to those who reserve time entry tickets on reservations.gov. As we look to the past and observe the 20th anniversary of the 9-11 attacks, it is helpful to remember this great nation's resilience. That resilience will continue to serve us as we go as we weather the ongoing pandemic. Stay safe, be well, and I'll turn the meeting over to our committee chairperson, Alina Sima. David, thank you so much. Good morning, everyone. As the director of Office of Government Information Services, OJIS and this committee's chairperson, it is my pleasure to welcome all of you to the fifth meeting of the fourth term of the FOIA Advisory Committee. I hope everyone who's joining us today has been staying safe, healthy, and well. I want to welcome our committee members today and express my continuing gratitude for your commitment to studying the FOIA landscape in order to develop recommendations for improving the FOIA process government-wide. I also want to welcome our colleagues and friends from the FOIA community and elsewhere who are watching us today either via WebEx or with a slight delay on NARA's YouTube channel. Some housekeeping rules and announcements. First, I would like to introduce our fearless committee's designated federal officer, the FO, Kirsten Mitchell. Kirsten, are you waving? Okay. She is going to help make sure that we stay on track and that we end today by 1 p.m. Our captioning provider has a hard stop at 1 p.m. today, so we will need to end promptly at that time. Kirsten has taken a visual roll call, confirms we do have a quorum. Kirsten, is that correct? I believe everyone who has joined us except for one committee member who is now just joining us, I will not call out his name. Everyone is here, Alina. Everyone is here. So this is great. Congratulations to Linda Fry, who has been named Acting Division Director of the Social Security Administration FOIA team, which is great for her and for SSA but it means that she has had to step away from co-chairing the process of committee with Michael Morrissey. The good news is that Alexis Graves of the U.S. Department of Agriculture has stepped into Linda's place to co-chair the process of committee. We are happy that Linda remains on the committee. Thank you, Alexis. We really appreciate all the work you have up in front of you. A few words about public comments. We have received several written comments, submissions in advance of today's meeting. We have reviewed them all carefully, evaluated them prior to posting them to ensure they satisfy our posting policy for public comments, which is available on the FOIA Advisory Committee website. We have posted these public comments after remediating them to ensure they are compliant with Section 508 of the Rehabilitation Act. I want to specifically invite our committee members to review the public comments we have received thus far if you have not already done so. I also want to note that the chat function in WebEx or the NARGIGI channel is not the proper forum to submit extensive public comments. We may submit public comments at any time by emailing FOIA-advisory-committee at narah.gov, and we will consider posting them to the OGIS website. The chat function on both platforms should be used to ask clarifying questions or provide brief comments or questions that we will consider reading out loud at the end of today's meeting. We will also open up the telephone lines at the end of the committee meeting to receive any oral comments. We are particularly interested in soliciting feedback from members of the public on the issues that the four subcommittees are currently considering. We will be hearing more about those later today from the subcommittee co-chairs. Committee members are interested in hearing your ideas and feedback so that they may integrate these into their internal discussions as they develop recommendations for this term. Again, comments can be submitted at any time by emailing FOIA-advisory-committee at narah.gov dashes in between. Meeting materials for this term, along with members' names, affiliations, and biographies are available on the committee's webpage. Click on the link for the 2020-2022 FOIA-advisory Committee on the OGIS website. Please also visit our website, www.archives.gov, or with slash OGIS, for today's agenda. We will upload a transcript and video of this meeting as soon as they become available. Also a reminder that the FOIA-advisory committee is not the appropriate venue for concerns about individual FOIA requests. If you need OGIS assistance, you may request it, but we ask that you do not do so through the committee's email. It's hard to believe that we've been meeting virtually for the past 18 months while the virtual environment has allowed most committee members to attend with greater ease, regardless of their geographic location. The disadvantage for me and Kirsten is that we are not always able to see committee members raising their hands, or eagerly leaning forward to ask a question or make a comment, so as we would if we were meeting in person. So I will again be doing my best to monitor committee members' non-verbal cues during our webcast, but we will all need to be respectful of one another, try not to speak over each other, although I realize that is inevitable at times. I also want to encourage committee members to use the all-panelist option from the drop-down menu in the chat function when you want to speak or ask a question. You may also chat me or Kirsten directly. As a reminder, however, in order to comply with the spirit and intent of the Federal Advisory Committee Act, committee members, please keep any communications in the chat function only to housekeeping and procedural matters. No substantive comments should be made in the chat function, as they will not be recorded in the transcript of this meeting. Committee members, if you need to take a break, please do not disconnect from the audio, video, the web event. Instead, mute your microphone and turn off your camera by using the camera icon. Send a quick chat message to me and Kirsten to let us know if you'll be gone for more than a few minutes. Join us again as soon as you can. We have noted a 15-minute break at 11.20 on our agenda, although we may break a bit earlier or later depending on our case today, so we will play that by ear, but everyone, I promise we will get a break. A reminder to everyone, I am very guilty of this myself, but please identify yourself by name and affiliation each time you speak today. This will help you to reach down the road with both the transcript and the minutes, both of which are required by the Federal Advisory Committee Act. I am established to announce that Kimberly Reid's last advisory committee meeting is today. As committee members recall Kimberly, who works at the National Archives in Kansas City, Missouri has been detailed for the last year to help OGIS with administrative support for the committee. In addition to helping Kirsten with a lot of logistics to make these public meetings happen, Kimberly has also managed to meet the advisory committee member post on the FOIA ombudsman blog and has researched some FOIA funding issues to one of the subcommittee working groups. Thank you to Kimberly for all of your work. We are very grateful and we will definitely meet you. Kirsten emailed members the minutes from the June 10th meeting that Kimberly prepared. Under the 90-day deadline laid out in the Federal Advisory Committee Act, she and I have to certify and post the minutes earlier this week, so we will dispense with any approval or seconding of the minutes, even though I know that's really fun. So we have certified the minutes to be termed correct, but committee members, if we miss something, there's anything we need to correct, please let us know and we will correct it. As we turn to the main body of our agenda today, a brief update on past committee work. I am pleased to report that OJIS recently receded recommendation 2020-14 by publishing an assessment on commonly requested categories of first-party records. The report and three recommendations are available on our website. The assessment looks at two broad categories of records that requesters seek about themselves. Those records, such as employee and personnel records maintained by all agencies and records that are unique to an agency's mission. Thank you to our National Archives colleague, Jennifer Dwyer, who was temporarily assigned to OJIS earlier this year and conducted the analysis for this report. And stay tuned. Work by OJIS and OIP continues. We are regularly updating the recommendations dashboard and a thank you to Dr. Lemonland on the OJIS staff for keeping our dashboard up to date. Okay, any questions on housekeeping matters that I just covered from committee members before I go on? No, thank you. I'm seeing those. Okay, so at this point I know we're about five minutes early, so that's great. I am going to turn to the next stage of our agenda. We have our guest speaker today. I'm very pleased to welcome Professor Richard Peltzfield, the University of Massachusetts School of Law and Dartmouth, Massachusetts. Professor Peltzfield teaches tort law, comparative law, and media law, including free speech, access to information, definition, privacy, and copyright. Before joining the law school faculty at what's politically known as UMass in 2011, he practiced commercial law in Baltimore and Washington, D.C. and taught law for more than 13 years. He is the author or co-author of qualitative and quantitative research articles in law and mass communication journals, as well as book chapters, a treatise in the law and mass communication field, a casebook in tort law, and a casebook in freedom of information law and policy. Professor Peltzfield earned his bachelor's degree in journalism and Spanish from the Washington and Lee University and his law degree from Duke University. He is active in international media and law and policy and has presented papers in Europe, Asia, Africa, and South America, and is published in international and foreign journals. Professor Peltzfield serves in various capacities through the American Bar Association including the legal education committee of the section of international law. Finally, Professor Peltzfield publishes a blog that he considers his states to illuminate on the law of tort, as well as on other topics of interest to him, journalism and mass communication, civil rights, sports, comparative law, social and economic development, and transparency and accountability. The title of his blog is The Savory Tort, which I must say sounds very tasty. We have agreed, I believe that we've agreed that after the presentation, committee members will have the opportunity to ask questions if that's okay with you, Professor. Okay? Great. So, without further ado, over to you, Professor Peltzfield. Thank you. Thanks so much, Alina. That was an extremely generous introduction. If you'd asked me, I would have given you a ten-word version. We'd be on with it. I'm just thrilled to be with you today. I'm grateful for particularly the support of Tuwan among your number. I want to mention because he's been so supportive of my interests. I have to offer I wouldn't be efficient in my use of your time, but I have to start with one disclaimer, which is that I want to share some foundational ideas theory with you today, and that is not really mine. So, the research that I am working on and that I'm pursuing is built on that, but I don't want to take credit for others' ideas and the important groundwork here. So, in the slides that I prepared, you're going to see some attributions to the people whose ideas I'm shamelessly taking today. Stealing is the word I'm trying not to use. So, I appreciate your understanding of that, though, with the natural further disclaimer, they're all mistakes are undoubtedly mine. So, I appreciate Alina of whoever's coming next slide for me. I thank you in advance and we can go to the next slide. So, again, we're laying a broad groundwork here, so I'm going to take you back to 1791 and if we can think about what is FOIA and where does it come from? Where does access go? To use the sort of global term would be ATI, access information, or FOI. The classical notion of human rights is sometimes called political rights or blue rights is what we're most familiar with from the Bill of Rights. And we've got, of course, our favorite First Amendment with its free speech, with its free exercise clauses, for example, we found some privacy in there between the Fourth Nights and other amendments. And these rights are all, again, in the classical notion, they animate our Constitution. They're really well expressed as negative rights, so they're things about which it's really easy to say Congress shall make no law, because that's what we want. We want liberty vis-a-vis the state. Access to information has always been a little bit of a tough sell-in. It's not the same. It's not about being left alone. It's actually about the opposite. It's about civic engagement while people reaching out to be involved with government. And I think that's why, it's not just me, I and others think that's why we get confusion. We get doctrines like Brandsburg behaves, Hoochensky KQED, which give us the sort of general rule that the First Amendment does not provide a right to news gathering. It does not provide a right to access the information. But then we get these odd little exceptions like Richmond Newspapers and Press Enterprise, where there's a public right to be present in a courtroom. And we have trouble reconciling these. So we can go to next slide. Thanks. So another way of looking at this in these classical liberty-based political rights, blue rights, is that the people have rights vis-a-vis the government. And this is really the genesis of our state action doctrine in constitutional law. The rights are only valid as against the government. There are negative rights to be left alone vis-a-vis the government. This is what elsewhere in the world is called verticality. Human rights operate only vertically of the person versus the state. And we struggle with this. This has been, this understanding has been, at times, limiting in our American experience. The Civil Rights Act, since reconstruction, we've had trouble sort of rationalizing how do we deal with problems that are not vertical, problems that are horizontal when people's rights are being adversely affected by fellow citizens. And I won't detail the evolution of that, but this is why today we look for bases for something like the Federal Housing Act. We look at the 13th Amendment, the Commerce Clause, the Stending Clause because we have to find these sort of ways to work around our state action limitation. The next slide. So we shoehorn, if I can use the term, we shoehorn ATI or FOI into this framework as a civil right that we create by statute vis-a-vis the state. And that's great. We create a statutory right that is equally effective as a First Amendment right vis-a-vis the state. It fits within the state action doctrine. FOI is not the only such mechanism. Common law is really important. The First Amendment gets a little bit of action, but essentially this is how we hobble it together in the same way that we have worked on the problems in civil rights. The next slide. But in the, just like the Civil Rights Act, I should say FOIA has struggled with problems, problems of horizontality expressed in this vertical system. So when private actors sort of do the government's bidding, what we've done is devised ways to try to apply the right of access to them generally by casting them as quasi-governmental actors. So we do that through tests like power. Are you doing something that government does? Are you funded by the government? And that way we say, well, for this purpose you are the government. And so that comports with our state action vision. It allows us to extend access to information by re-describing them this way. And you all know better than I, we've probably done this more thoroughly. I don't want to be normative and say effectively, but thoroughly at the state level, the states have a lot of innovations. I won't go to the next slide, but I think Alina is trying to tell me to keep moving. But we have not done it as well. Now we're going really far ahead, so we want to go back a couple of years. Can we go back? Uh-oh. Thank you. That's perfect. Appreciate it. So we have these extensions to these quasi-governmental actors at state and federal levels, perhaps more so at the state and at the federal level. But I want to go back, take us back to basics again and say maybe this initial conception, like the state action adoption, maybe that's not the right way or the only way of looking at things. And indeed, political science, political science people, the Ph.D. are much smarter than I am. They've been working on this all through the 20th century. You came up with different ideas about what ATI or FOI is to understand it as a civil right or a human right. And one of the different ways of looking at rights is to describe them in terms of power. And there are others, but I'm going to focus on the power model because I think that's helpful for us. And when you recast these rights in the power framework libertarianism doesn't describe everything. The sort of liberty ethos of the American tradition doesn't describe all rights well in the liberty framework. Think about something like the voting rights act, the voting rights at all. They again require citizen engagement. You can't describe that as a right to be left alone. It's a right to keep government out of your business. But power makes more sense. If you look at things in terms of power, the people, they take power, they transfer it, they give it to, assign it to the government for certain functions. And then you can see that for example in the 10th amendment that the reservation to the people of that which they did not pay best themselves transferred to the government. And you can see I think about I guess the Republican guarantee clause in the Constitution also put it there. So we can go to the next slide. And so what we create then is a tension in the power model. A tension by the balance between the power of government and the power of the people. And we have to keep these two things in balance so that we have just the right amount of liberty that we want in our society. These are collective interests. And I don't mean to here to suggest they're the same size. One could be bigger, the other could be bigger. But the important thing is that there's a tension and a balance. And we maintain it the way we want it to be. The way our Constitution is designed. But so a peculiar thing happens in the 20th century that it is the advent of the administrative state. And that changes the power dynamic because government gets really, really bigger. And we need accountability mechanisms then so that the people can be at that level. So the people can hold the administrative state accountable. And that's where we get the Administrative Procedure Act. Which you know of course is the genesis of FOIA. So next slide. FOIA becomes the restoration in the 20th century of that balance between a larger, more active government and the people. Correcting what has been called a democratic deficit. And restoring the appropriate balance between these two things. At the same time, we see eMERGE an idea of thinking about AGI or FOI as what UNESCO and others have called an enabler right. That it is important, it is a human right, civil right, but it's not per se rather it's a right that is necessary to facilitate the realization of other rights. So an enabler human right. Which I think is synchronous with this concept of power share. Next slide please. So then we see another shift though late in the 20th century. And this is not the only one, but Roberts describes this as structural pluralism. Let's go back one note. We hit two. We'll be there in just a second. So we've got the one forward to get our structural pluralism, but then we'll stop. There we go. And one more I think. Super, thanks. And we'll stop there for just a sec. So we've got in part motivated by our libertarian impulse. We had this sort of move back of privatization in 20th century. And we had this again Roberts call structural pluralism. We could say it was part of privatization, but we had the emergence of these new entities hybrid things, quasi-governmental actors, the transfer of government authority from funding of government functions into private or quasi-private sectors. Sometimes like in loans, the creation of the quasi-private entities by public authority. So to deal with all this structural pluralism now we can just jump one on with the slide. To deal with that we saw new development in the way FOIA, particularly again at the state level, in the way FOIA grappled with structural pluralism. And you can debate how effective it was at doing so, but we see a lot of angst in these a lot of hand-wringing over how are we going to have accountability for these quasi-governmental actors. In my class in FOIA just yesterday they brought it up, not me, that we wanted to talk about university foundations that support private foundations that support public universities. What do we do with that? How do we ensure accountability? And that precipitates this very difficult discourse about how do we classify these things? How do we decide when they cross this line into requiring accountability? And not to mention, as a political matter, it brings about resistance from private sector actors who say I have interest here, that you can't just trample with your supposed need for transparency and accountability. But I want to take us now, let's travel halfway around the world and go to our next slide and think about an entirely different experience. So different country, different culture, different 20th century experience. We have apartheid in South Africa, well into the late 20th century. And if you're sitting there in the demos, you're the people who are under this system, you view, your world view of government is very different. And it does not so much draw a bright line between private and public sectors, because they're all in on apartheid. And so there is just as much anxiety and outrage and concern over the implication of private action within the apartheid regime as there is public action. And no wonder then we have a democratic deficit, but we also see in the late 20th century so-called information poverty, where you have these extremes in society in the conventional sense of poverty, but also in every other sense, in the democratic sense, in the ability to participate in government and in transparency and the ability to see what government is doing and to hold government officials accountable and information poverty. So next slide please. So no wonder then when apartheid comes to an end, the new constitution of South Africa, the people who sit down to write that, they take on these challenges and they include as you all know is common today the human rights of access to information in the constitution, both in the internal constitution of 1993 and the permanent constitution of 96. By 2000 they implement that constitutional right through the promotion of access to information act, TIA, like our FOIA, but TIA does something different. And what TIA does as you see here in its two parts of section 11 and in section 50 it goes after all of the former oppressors, if you will all of the actors who the people of the new constitutional regime believe need to be held to account, that is public sector and private sector, as well as our section 11 dealing to a function test with the quasi-governmental actors in between. And so we get we get this different vision and South African scholars have recognized that this is the power model. This is the people reasserting power against the authorities who take it away from them, who enterprise them. And so TIA in this model makes a lot of sense. It's about empowering and informing people. So we can go to the next slide. If we go back then to what we looked up before in our model, you'll remember that in our conventional classical model, we have this red stroke down the center in the end. That was where light of access went up to these state action doctrines, just like under civil law. You couldn't go beyond that, as it were. You couldn't go to a horizontal application of that concept. But if you go to one more, we'll have a new image at the bottom. And if we look at it in a sort of a South African approach, our power approach, will appear in just a second. There we go. Perfect. Thank you. So if we look at it in this approach, the so-called red line, the state action doctrine, it's not an end point. It's a point, I describe it as a point of inversion. It's a point at which the light of access to information starts hitting friction. So you have a frictionless right of access to information in the state action doctrine. It doesn't stop. Accountability doesn't stop. The need for transparency doesn't stop. But now it starts to meet resistance. When you start to move the application from the vertical to the horizontal, you start to impinge on the liberty interest of private actor custodians or respondents. And so the farther you reach into that private sector, the more their liberty interests push back. The higher section 50 developed a sort of a balance to deal with that problem. It said a record is required that is access to a record for a requester is required for the exercise of protection of a light. And so there's two really important components there. There has to be a light asserted. And then there has to be a necessity to produce the record in furtherance of that light. If you're thinking, I think that sounds like First Amendment strict scrutiny. Yeah, exactly. So what you have here is sort of a constitutional test inverted so that you have a narrow tailored incursion into the private sector premised upon a human right need. And that's essentially the model of section 50. One more slide please. If I can show you just briefly, this is where I think things get really interesting and in fairness, your interest might play Peter out, which is fine. But if you'll stay with me for just a moment with it. This is not unique to South Africa anymore. The pie in South Africa was in 2000, again model in the 96 and 93 constitutions. The African human right system adopted a model law with slightly different language in 2011. It has now been, I've read, it has now been enacted in five countries. I have not verified that myself. But five other countries with some form of that. I do know it's in Kenya. I've looked at that a little bit. You see a different formulation in Kenya. And again, you see some variation in the language required, may assist right versus right or fundamental freedom. And that has generated differences in how the rights are interpreted. I'll show you in a moment. But this is growing. And that I think is the salient takeaway is that there's something appealing about this, particularly in Africa, where we have a developed largely a developing world context where people have an experience that's not so great with accountability and government. And they're looking to reassert people's rights to attain accountability. One more slide, please. So under, really under Tuan's leadership at Villanova in a symposium, I started really digging into what this thing looked like on the ground in South Africa. And I will tell you, in the first instance, it might not strike you as what you would expect. Nor even appealing as a doctrine. One of the quirks here is that, of course, you might know, South Africa has sort of a famously expansive constitution and its articulation of rights. And the South African Supreme Court is famously progressive in interpreting those rights. And so as a result, we've got some other broad application. And some of the sort of modest uses of higher section 50 have been ways we might not think about as human rights issues in the United States. One of the interesting ones to me as a courts professor is pre-litigation discovered. So people went in and said, look, I don't know whether I can sue the hospital over this medical negligence, because I don't know what happened. But I have a light of access to the reports for redress of grievance under my constitution. And in order to exaggerate that light, I need to see the internal medical report that the hospital produced. And the court said, that makes sense. So it's not, this isn't kind of the most high pollutant, you know, high end sophisticated, that's so terror-use of the right. But it's on this high section 50 model. Also a fairness in administrative hearings. I want these records from a private sector custodian. Because otherwise, I can't get a fair shake in this administrative hearing. Also in criminal law. I want the police with me. Because I need to know more about what was going on behind my incarceration. Electoral rights. And my divergent results, but no question that this thing applies, even in shareholder values. I need to know what my holdings work. Because I have a right to sell it and be remunerated. And so I need to know how they value me. So if you go on one more slide, please. I was a little, to be frank, a little less interested in those applications. I'm really interested in what we Western Hemisphere think about in terms of human rights terms. Where could this be applied in this sort of socioeconomic development and classical human rights framework? And there's some interesting action there too. Of course, there is a right to a healthy environment in the South African Constitution. A so-called green right. And you have a case of our sell-in-middle fabricator or manufacturer or steel producer versus all environmental justice where the private actor was compelled to produce an environmental toxicity report based on the claim that otherwise I can't exonerate my right to a healthy environment. You have use in anti-corruption, an area close to my heart because it involves I'll say soccer. The world's football FIFA. And all our promises were made. I'm sure some of you remember over the 2010 World Cup and what it would mean for South Africa. And some journalists such as the mail-in guardian said, you know, we're not seeing all that prosperity. I'd like to know a little more about that. The FIFA World Cup Organizing Committee, of course, is one of these classic private entities organized by a public authority. And M&G said, we have higher section 50. We want access to that. And they were given access in part. So next slide, please. So that I'm taking you down sort of my road of interest in where this goes. And I want to learn more about it. I can tell you a little more about it if you have questions. But let me bring it back home. We have this in the United States. This concept of access and the private sector transparency for accountability of private actors, well, far into it. We have what I would describe as sectoral extension of the idea. When I first started talking to other law faculty about this, the business people, whom I, like, forgive me, but makes my eyes glaze over, but the business law people who are very educated in their vein said, oh, yeah, this is SEC regulation, right? This is Sarbanes Oxford. Like, oh, okay. I see, right? So this is, in a way, this is sectoral affirmative, required transparency from the private sector for the purpose of public accountability. And we have, for example, the Toxic Release Inventory, right? It's kind of a famous example, I think successful example of statutory affirmative transparency in, apart from FOIA, in our federal code. At the state level, of course, we have the finance budget control test. I mean, one way is to look at those in the classical sense, that we're just getting a look at quasi-governmental functions or quasi-governmental actors. But, you know, what they're really trying to do, I'd say, is just keep that power dynamic in balance. And so they are sort of reaching out in the direction of private actor accountability. There are, I just chose one, there are other works to be sure, but one administrative law review article here 2019 looked at public contracting. And I know you all have had some discussions about privatization in the justice area. You've got like the Cardin bill, which says we should have transparency flow through public contracting. That, again, is sort of anchored in the classical model, but I think it's after the same objective of transparency and accountability from a private actor. And kind of what struck me about the amount of Rooker pieces, they also talk about sort of premising access on public impact. Maybe in addition to tools like function and funding, maybe we should be looking at, does what you do have a tremendous public impact? And that would be a premise by which you trigger certain transparency obligations. That strikes me a lot like vol versus seller middle. Or even like the toxic release inventory. When there is this event that implicates public health, you have been triggered into a public transparency and accountability. And I think that's an interesting idea. I've thought, you know, how do you sort of bring this South Africa notion to practical application within US FOIA? I've not thought deeply about it to be fair. That others have thought more about it than I. But I thought, well, you could continue with the intersex whole, more like the TRO. When there is some triggering event that clearly implicates what we call civil rights, then you have a transparency and accountability mechanism. Another one I find very compelling is now there's a lot of property lease statue events going on in Virginia. You have sort of this civil rights reduct, maybe that doesn't. South Africa has the right to truth, and that's been used in the FOIA framework to say I need access to those private records and I need to know what happened. I need to know the truth of how this private actor was implicated in apartheid. Maybe that's a model that we could fall. So those are just ideas that we have. Again, you guys are the US FOIA experts and I defer to you, but I hope that I've been able to share something that's worth chewing over. Thank you for the opportunity. Thank you, Professor. We really appreciate all of that. I want to pause and invite thoughts, comments, questions from our committee members. Juan, I know you have something to ask or say. I think Kel was raising his hand. Oh, I'm sorry. Thank you. Well, no, he can go first. Kel, go ahead. So I have just a very sort of in the weeds question, but when you're getting into sort of American how the FOIA system works, this is something that you can't escape, which is how would it play out in your opinion or in your mind of how you would envision what would happen when it comes to litigation? Like how specifically, who would be representing the private entity that someone is trying to get records from through an expanded FOIA? Would it be a private law firm hired by that company or would it be the DOJ? Because we're talking about government adjacent documents. They have to fight for doing anything, whether they have to be code counsel. How would this play out in sort of the public, private relationship between the government and that entity? That's a really insightful question, Kel. And I really would rather you keep talking about it because the more you said, the more ideas I got on how we could do it, but you cited an important issue. And in fact, one of the interesting things in the South Africa model is there was a question about standing. We have, of course, the problem in constitutional law of environmental standing, which we're not too keen on. And that was a problem because 10 NGOs go and litigate this. And South Africa has generally resolved the question in favor of the NGOs, but that also is going to the very unusual constitutional model. I don't think that would necessarily comport with ours barring the creation of a statutory right, such as FOIA does, some kind of private right of action. But that doesn't answer the sort of policy question of who should. And I think that's the sort of more compelling question. Immediately, I have two responses. One is one of the things I like about the PiSection 50 approach is you have that premise in a rights require. So if you translate that into our standing model, that means you have to suffer an injury or you have to have at least an injury that's more than speculative. And so that would be a qualifier. I don't know if it's a good one or not, but it's equal that narrows the field. Another approach, of course, you know, you just made me think of the sort of OGIS, like an administrative approach that's viable to, I'm sure Alina would like more to do. And another way of thinking though is I'm so, you know, I don't know if it's sort of good to mention the work of Professor Pozen in this crowd. He's been very critical of FOIA. But you know, he's got a lot to commend his work. And he's taken what I describe as a consequentialist approach, which is to say, you know, let's just look at what we're going to accomplish with this. And, you know, he's really big on affirmative disclosure as of now. And so the TRI is in the affirmative disclosure mode. You know, I think that's a more limited response. There are a lot of technical hurdles that go along with affirmative disclosure. You all know better than I. But that, you know, that at least is sort of it's not the same as PIA section 50. It's not litigation. But at least it responds in the same way as we recognize the need for transparency and accountability in the private sector. And then maybe you need some kind of enforcement mechanism through OGIS if someone thinks that affirmative disclosure requirement is not being complied with. But you know, there's a menu. There's a menu of options. And it kind of just depends how aggressive you want to be in bringing it about. So Tom, I see you're raising your hand. But Twan, I think you wanted to go first, correct? I'm actually listening. So if Tom wants to go, that's great. I'm still a lot into that. Alright, Tom, over to you. Yeah, Rick, I'm curious what kinds of information have been obtained from the private sector using this law? Because I recall probably a decade after it went into effect, I remember reading some academic material saying that it really hadn't been used at all. And then, and so we're looking, this committee is looking at it sectorally, I think. And Congress is too. I mean, that is, you know, I think Congress's focus has been on private prisons, for example. The state legislation focuses often on contracting out of government functions, as I think the terms used. That always seemed to me sort of intuitive. When you go beyond that, and of course, South Africa, I recall also there was a big focus on human rights violations by the private sector as a basis for opening their records. Has that ever been used? I mean, where's that taking us? I'm always curious about these wonderful laws like Afghanistan's Freedom of Information Law. They, you know, look great on paper, but just never seem to work. But you said, I said it just yesterday, and I won't name the country I use, but I said to my class, you know, to be clear, having it written down doesn't mean it is. And it's all about what you do with it. And we were actually talking about our point, and it's, you know, difficulties in implementation. But you're right. I mean, one thing to recognize, you know, just sort of off the top. And I glossed it over for the sake of time. But that South Africa law has been around for a while. And even before 2000, the court held that one was able to bring a direct action under the Constitution. So really, we have litigation dating back to 1993. And yet in those years, you can collect in your hand the number of cases that have actually used Section 50 that have actually referred to grounded their actions in rights. And a lot of them, as I showed you, a lot of them are what we would regard frankly as trivial. They're in, you know, international shareholder disputes and family companies, that sort of thing. And, you know, there's been probably an equal amount of literature about why does South Africa's Taya not work. And that, you know, that goes to a lot of reasons that you might suspect dysfunctions in government. And without, you know, delving deeply, you know, I'd say the happy news, I guess, is that those are kind of collateral to what it's supposed to do in theory. So if you could solve the mechanical issues, you your doctrine is there. Admittedly, we could at some point say the same thing about our point, too. You know, we have a lot of execution issues that are the reason of the creation of oceans. But, you know, that doesn't answer your question more directly how has it been used. I did indicate it's been used in an environmental case. One thing I'll tell you I love about that case is just makes me grin is the if you'll forgive the tangent, but the custodian or the private respondent came into court and argued in the alternative that record doesn't exist. But if it does exist, we want to know how you found out about it. Which this interesting argument to make turns out the record does exist. So that was, I think, a very effective use. It wouldn't necessarily comport with environmental standing in the United States. The MNG case, you know, I mentioned also another one that, you know, sort of perhaps instructive are cases in which it has been tried and not worked. One of the difficulties has been integrating prior section 50 with other transparency mechanisms. And the courts have held, I think, properly that section 50 simply can't overtake and overshadow all other transparency mechanisms. And so if there's a parallel mechanism, such as accountability in the financial sector that applies to the records, you can use section 50 to subvert that and get something that that mechanism by design keeps confidential. But then what is sought in that vein is interesting. Because then you do see people trying to seek financial accountability records. You know, think about, you know, I was student last year, right? It's a terrific paper on I hate to call it, I don't want to call anyone out in a public meeting. But, you know, it's a terrific paper on sort of insider trading in Washington connected with COVID. I didn't know half the stuff that was in this paper it arranged me as a taxpayer. That to me is a great possibility. But if there's a parallel disclosure mechanism, that's going to have to operate first. But that kind of thing, I think anti-corruption is a powerful use where there's a potential. The law in Kenya was used in an anti-corruption vein as part of a journalistic probe. And there it hit actually to Kell's question. It hit a standing problem. In a Kenyan court, and it's a little difficult to separate the politics of it from the law of it. I'm not going to try. But the Kenyan court held that you can't use this mechanism as a bootstrap. So you can't come in and say I have a right to be a journalist and therefore I can have anything I want. And that unfortunately was kind of the argument that the requester was making in this anti-corruption probe of the judiciary in Kenya. But the idea of what the requester was after was, I think, good and promising. But it needed to find an appropriate plan. And it just couldn't be a general citizen right like Koyer. So anti-corruption I would put in the table. One of the exciting things to me is about where the potential is. And I just admittedly have a feeling that maybe I need to learn to sell better to others. But if this is growing on the African continent it strikes me that there is a need. It's responding to some perceived deficiency. And so I'm not deterred by it's lack of, or it's seen use. Yes. I think what we need to do is start exploring, researching and understanding it. And start pushing its boundaries to see what it can do. Alright I'm looking around other committee members. Anyone else have any questions? Only because I called on you earlier. Rick, for the presentation which is helpful to give us some theoretical background to thinking about this. As Tom mentioned, we've been thinking about this problem somewhat sectorally looking at those places that are most immediately adjacent to the government. So as you might say, quasi-governmental entities performing things that we could say that are classically traditional governmental functions like incarcerating people and so the operation of private prisons. And it strikes me also that under your theory you think about it being sort of more of a compelling interest and that you've got great deprivations of individual rights and as we might be concerned about that. I mean other sectoral areas that we might possibly be interested in or others might be interested in could include things like privately contracted military forces and their conduct and that it may be more controversial because it touches on subjects regarding national security. But again to the extent of talks about abuses that might be conducted and might not otherwise be sort of obtainable. So I was wondering then since one of the traditional extensions of the American constitutional state action doctrine has been to state traditional governmental functions do you think that the other sort of extensions of the state action doctrine of private parties it would make sense to also have transparency track in those directions. I'm thinking of Brentwood Academy and Williamson Parking Authority and entanglement just in terms of trying to articulate a broader theory of when we should consider extending transparency obligations to entities that are again adjacent to government. That's absolutely fascinating to me too. I had not thought about it. The idea of sort of using the public accommodation doctrine to extend transparency and accountability I think is terrific. I mean I really forgive me I'd have to think that through some more about what the implications would be and would that generate some collateral consequences that would concern us but a short answer yes. That's actually a terrific idea. I mean to be clear some of you who are academics I share the luxury of being able to give you my eye retail perspective and then dump it in your lap to find a practical use for it. And so yay me but the advantage of that is I've been so sort of consumed with looking at how to research this thing I haven't dive deeply into how you make a reality but certainly I don't think we're going to move the United States office of state action doctrine soon. So the question is how do you build the notion of accountability into our existing framework and I think what you suggest is apt in that way. You know your mention of national security and sort of pushback because I think it is a practicality important to recognize the political angle and the pushback from private sector. I should know perhaps that section 50 in the Act has exemptions that parallel those available to the public sector. So there is a competitive advantage exemption. There's a trade secrets exemption. There's a national security exemption for a state contractor. So you have them all you're not totally abandoning throwing open the doors of private interference. A lot of what people would like to access is going to be covered by exemption. So that's just forgive me it's not right on point with what you asked but you know certainly I think it's promising approval on how to extend within our framework which includes sectoral regulation and thinking probably about state action. One thought I have is I mean the closer it looks like these are functions contracted out by the government, the private sector are much more comfortable with the idea that there be some reciprocal obligation with respect to transparency. I guess where I'm a little bit more concerned is where there is a private sector actor that makes decisions that obviously are to the broader political community but you know really isn't getting necessarily any direct contracted benefit with the government. So I mean if for example you know there's been some complaints from conservatives more especially who traditionally have always protected a private sphere of action when it comes to Twitter however you know there's we're going to make an exception and sort of you know almost convert Twitter into common carriage you know you can't need platform and there might be some interest right in sort of extending obligations of transparency to Twitter. We get as much transparency as Twitter cares to make right now as a matter of voluntary disclosure but if someone wanted to actually know what considerations went into you know sort of cancelling someone's accounts of spending someone's account I could see and be concerned a little bit that this could make certain company targets of harassment in the same way that agencies often feel harassed by certain actors and so I think the mechanics of that procedure you know some of the questions Kel raised and sort of how to protect against abuses in some ways need to be well articulated before you start talking about extending too far obligations of transparency to the private sector because otherwise I think you can absolutely not put it beyond those who are like directed contracted beneficiaries of large s on the one hand understandably having reciprocal obligations of transparency. Two quick reactions which I'll try to make quick one is you know and you have been thinking about this with Twitter and your special state action one thing I find fascinating in the current debate we have over internet regulation in section 230 they say everybody all of a sudden is interested in the company count action. It's like this is something that was sort of off the table for decades and we just sort of we had to explain it to students in the first classroom this was even a thing and now it's like oh that and so that's sort of fascinating how these things come and go but in that date I point out one thing I find interesting as far as the liberty pushback in the section 50 model is that we still have on the books something like California's access to private shopping centers where that 14th amendment interest of the private property does push back but can be overcome by the first amendment interest or the state interest I should say first amendment balance and so I think that that's even an example of that very balance in the context you suggest and that balance being drawn successfully in favor of exercise of the right visa visa private interest now to your point though valid point and observation about politics there's I think there's a very real danger of something like this being politically weaponized especially in today's climate and that wouldn't that would be detrimental to transparency and accountability. There is a South African case involving I don't know how to characterize it a dispute over campaign finance essentially which it's an NGO versus a political party called the DASA versus ANC but it was arguably what you're describing it was arguably we've got this cool law let's use it to go after our ideological and you already had so to Tom's question this was a perhaps viable use of the thing so Kel's question the court had already established it already sort of created a standing problem for itself with a broad standing doctrine and then when it came to be the court said no wait now we have the parallel law of campaign finance you can't subvert that and work around it and so kind of wiggle this way out of the problem but it does illuminate the danger and so absolutely yes such a thing has to be carefully drawn with those concerns at the risk of shutting down this great dialogue and I don't need to shut it down at all because I think it's an ongoing dialogue Kel promises that he has one very quick question and then I want to he says it's very small then I would like to move on but Kel go ahead so something that on this entire conversation you just had with Juan maybe start thinking and this is going to sound like a rhetorical question and I promise it's not given that you were emphasizing that at least in probably the most likely model we would have here that you would have to have suffered some kind of harm in order to figure this right why what would you get through this that you would not get through suing the people for that harm and getting like discovery what does this add to the table that's a great question Kel because it could be rhetorical and it could be practical you unfortunately for me you indicated it's not rhetorical so I have to briefly respond and that's I think it kind of depends what you want to achieve both as a matter of policy and having the law and also for the claim so what and I think that's a compelling thing here rice is diversity a range of objective when you look at the right to truth case let's why oh that's why it was a researcher he wants access so that he can understand history that is a right if you will that I think we all would agree theoretically is served well by play up by the very very business of not but not one that is exonerated anywhere in statute otherwise and so that's sort of an end unto itself other people use it as a means to an end so the hospital case I suggested you've got pre litigation interest where I don't know whether I have a claim so I unless I have pre litigation discovery I don't know whether I was wrong and so there it's very mechanical very workman like as to what it's accomplishing and arguably you could do it better through a civil procedure but there it is so it's you know it's a really thought provoking question because on a deeper level it sort of asks you what you want to accomplish by creating the system in the first and when you and that goes to them when you talk about required which one's qualified will we allow bootstrapping will we allow mail and guardian investigations of corruption or is that too general of standing you know those are the kind of policy questions you would have to answer and you could set up sort of to my first answer your first question it can be done from a menu of options depending on what your desire thank you all right well thank you so much professor we really appreciate your presentation we really appreciate your time and give us a lot to think about so thank you very much thank you all so much and for the work you do appreciate it thanks okay committee members I'm moving along in and we are up to the point where we're going to be starting our subcommittee report so everyone roll up your sleeves everyone has been very busy in the subcommittees so I am very pleased to know that everyone's been doing a lot of hard work we're going to hear reports from each of our four subcommittees we have asked that each subcommittee bring at least one issue that they're working on that they would like to discuss with the entire committee if everyone is aware of that so with that I'm going to turn to the legislation subcommittee first co-chairs Patricia Watt, Carla Clanahan would you please go ahead and give us an update on the work of your subcommittee sure and this is I'm not actually going to talk much except to sort of tee up the other speakers the only thing that's beyond the scope of what they're going to talk about is we've sort of completed our own working group that on first party requesters that we're going to be working hand in hand with the process of the committee on that and sort of coming at it from two different directions trying to compliment each other but today what we're going to do is have two of our working group members giving presentations on sort of the work that they have been doing where we have a FOIA working group and an empowering OGIS working group and so the heads of those working groups are going to talk about their stuff and then I'm going to shut up and watch like the rest of you all so Dave do you want to go first? Thank you Kathy I appreciate that and thanks Patricia we started up a working group relatively recently and examining and examining mediation enforcement models in the states and other nations we want to see if there are processes that might help the FOIA process work better while OGIS continues to do its best with the limited resources it has and we support OGIS we suspect there might be ideas out there worth considering and suspect additional funding will probably be needed so we're looking at we're talking to a lot of people interviewing people gathering data this month we'll synthesize that information and the recommendations for the subcommittee and then for the full committee with a goal of having a proposal to consider at the December 9th meeting coincidentally there's an excellent group looking into enforcement models including federal for perhaps OGIS coming out of Yale and they're going to present some of their thoughts October 1st at the Yale media freedom and information access clinic access and accountability summit I'm going to go ahead and throw that link in the chat in case anyone wants to check it out it's a great gathering a lot of good sessions planned also relevant to this discussion and our inquiry services as a committee the national freedom information coalition summit September 28 30th is also going to talk about this and we'll include Margaret Cuoka and others about how to fix FOIA and I just plunked that in the chat as well in case anybody listening is interested in attending either of those I think they're both relevant to this working groups work we welcome any suggestions big and small for ways of improving FOIA process through OGIS or even other means right now we're in the brainstorming phase so you know all ideas are welcome or more realistic tweaks you know we'll probably come up with several recommendations so anyone who wants to talk to me or the working group directly feel free to reach out to me I put my email in the chat as well we want to hear all ideas so far we've compiled about a list of 10 blue sky ideas as we look at possibilities for the future so should be interesting thank you thank you Callum Patricia I just realized you probably want me to step in so I think Callum is up next thank you Callum the fee working group has explored several additional proposals since the full committee last met one new issue under consideration is whether FOIA fees collected by agencies should be diverted from the US Treasury where they are currently required to be deposited under the miscellaneous receipt statutes in fiscal year 2020 federal agencies collected about 2.1 million dollars in FOIA fees and Congress can spend this money as it sees fit for non FOIA related purposes so today two ideas have been raised for the use of this pot of money one would be to increase the budget of the Office of Government Information Services who services of course benefit requesters and agencies alike the second idea I think credit goes to Tom Sussman here is that a information technology fund would be established that agencies could dip into to improve their FOIA operations my recollection from our discussion is that both of these proposals were viewed favorably but that there were fewer applications to using this pot of FOIA fees for the information technology fund an additional issue that we're studying is whether FOIA requesters in the all other category should receive more than two free hours of search time for example perhaps doubling that amount of four hours which is what the Massachusetts currently provides free of charge it's not readily apparent however how many requests by all other requesters currently require between two and four hours of search time and so ideally we'd like to obtain data from agencies about this before making any recommendation lastly I'll mention since committee members have asked about this from time to time the group is still considering the possibility of recommending eliminating all fees for all requesters as well as eliminating fees for all requesters except for commercial requesters really appreciate that the committee members from other subcommittees have any thoughts or comments about those two working groups or have any questions for the working groups well it seems you guys are doing a great job so if something could work I don't hear anyone asking any questions okay Cal and... thank you for finding that out yeah so my question is with the last one if you eliminate these why we want the special commercial requesters are you guys also considering looking at the Massachusetts requests how would agencies deal with the Massachusetts requesters so that happens that's a real thing the issue and I'm not on the working group but to speak to what they've talked about but fixations requesters has come up sort of in passing in some discussions it is itself a very very very very tricky issue as you can imagine because you know one person's you know hearted in journalists is another person's fixations requester and so I did not speak to the committee on this I personally think that there are plenty of ways for agencies to deal with actually what you would call a fixations requester without making that a thing because like if it doesn't reasonably describe the record saw it or if it's unduly burdensome you know these are things that are allowed especially unduly burdensome simply submitting lots and lots of requests there's nothing inherently wrong with that and I don't think that should really come into the mix but there are lots of tricks agencies that have that are legitimate or sometimes illegitimate but that they can do in order to avoid most of the problem without actually adding a new category of who's allowed to submit requests how often are you allowed to do it but that's just not to make sense okay thank you tell and thanks Roger for that question anyone else have questions for the legislation subcommittee I'm not seeing any raised hands do you want to mention what happened to the last recommendation in response to your question tell yes so the first recommendation of this committee from 21-01 has been sent to the archivist he has accepted the recommendation and we are currently working through the process of trying to send it through formal channels working with OMB on that to send it over to Congress and we invite everyone to look at our dashboard for summary of the recommendation and there's an underlying summary of the reasons for that recommendation very very well done paper that's about seven days long thanks go alright any other questions is everyone ready for a short break I'm seeing some nods it's hard to be online for all this time okay so let's take a break it's 11 23 am we're just three minutes behind schedule if I could please ask everyone to get back at 11 38 am that would be great so please stop your video and meet yourself and I'll see you back in 15 minutes thank you just had a quick instructions about sending the question in the chat so if you want to submit a question in the chat panel please make sure you select all panelists from the drop down menu in the chat panel enter your question in the message box provided and send kindly do not send it to all attendees thank you I now turn it back over to Alina please go ahead alright well welcome back everyone on the committee I think we're all back waiting for a couple folks to turn on their cameras but hopefully everyone is engaged we at least have a quorum so we're moving on to presentations from our other three subcommittees and next up is the classification subcommittee co-chairs James Stoker and Kristen Ellis James or Kristen I don't know who's giving the report out today so I'll turn it over to you hi it's Kristen from the FBI and I am giving the report out hi Alina on behalf of my co-chair James Stoker and our committee members Lubna Hadid and Cal McClellan I'm going to provide our update so just a reminder to everyone our mission statement in the classification subcommittee is that classification of information while critical to protecting national security can pose major obstacles to the public's ability to obtain information about government operations into the FOIA so our subcommittee is looking at the impact of classification on the FOIA process the use of particular exemptions to justify withholding national security information and ways to improve communication between agencies in the public regarding classification as part of our work the subcommittee has been exploring the role of national security Glomar responses in FOIA and just for everyone's clarification and national security Glomar responses one where an agency neither confirms nor denies the existence of responsive records because doing so could itself reveal classified information as an initial step in our work we sought to compile baseline information about the use of Glomar responses by agencies the annual FOIA report that agencies are required to prepare doesn't collect a report statistics on the use of Glomar or related information regarding Glomar so this led us to sending a survey out to federal agencies that were most likely to be using national security Glomar we want to thank those agencies that participated in a questionnaire by responding to it in whole or in part unfortunately the net result of that survey was not sufficient to establish any sort of baseline about the use of Glomar responses in those agencies so while having that baseline data would have been helpful to informing our recommendations in shaping our work we've continued to explore ways to shed light on the use of national security Glomar responses the following are topics that we've been discussing and exploring as our work moves forward so we've been discussing whether to recommend that government agencies use the internationally recognized nomenclature of neither confirmed nor deny NCND versus calling these Glomar responses just a little backstory Glomar refers to a court case about a CIA ship called the Glomar Explorer so that's where the word came from it doesn't really have any particular meaning outside of the FOIA context the next thing that we were looking at is whether to recommend that agencies track data on NCND responses that they issue including the total number of responses issued and the relevant exemptions that are relied upon because when an agency is relying on a Glomar response it has to attach it to a FOIA exemption in the national security realm that's typically exemption 1 and or exemption 3 we're further looking at whether to recommend that agencies provide information to requesters on their website regarding circumstances that will or may trigger an NCND response and possible recommendations about how to avoid such response or to structure the request in a way that results in a substantive response versus a non-response we're looking at whether to recommend that the executive order on classification which currently is Executive Order 13526 includes specific guidance to reduce to a minimum level possible to use NCND responses and finally we're looking at whether to recommend that when an agency makes a determination that the fact of the existence or non-existence of information is itself classified which is what normally triggers one of these responses that it must record that determination somewhere with proper classification marking pursuant to the Executive Order so that the classification of that fact can be reviewed and challenged and ultimately subject to the classification requirements under the Executive Order so those are the topics that we've generally been talking about we have not reached consensus yet on whether or not to make any of these recommendations and that's where things stand with our subcommittee Okay, James, anything you want to add? No, I don't think so. I think that Kristen did a great job of summing up the many discussions that we've had. I would also note that in addition to the GLOMAR issue we started to discuss the possibility of looking at the relationship between the Freedom of Information Act and MDR requests to understand how those two processes interact with each other. So that's a possible second topic for us to continue to pursue after we wrap up our investigation of GLOMAR Alright, thank you. Any other subcommittee members want to chime in on anything that has been reported about? No. Any committee members have any thoughts or comments or feedback for the work that the classification subcommittee is doing? I'm seeing on those or maybe no. Okay. Alright, well thank you for that report Kristen, I appreciate it. James, thank you for all the work that you guys have been doing. I really appreciate it. And I am now going to move on to the process subcommittee unless I'm not hearing any objections moving on. So Michael Morrissey, Alexis Graves are co-chairs. I don't know who's giving us an update today. I will turn it over to all of you and Michael or Alexis, go ahead please. Hi, Michael Morrissey, professional affiliation with Muckrock. Yes, so we've been really kind of busy over the last few months when we started with the subcommittee we've been really looking kind of retroactively in terms of sort of some of the prior recommendations, their implementations and also their impact based off that kind of early foundational work of things we've been collaborating with some of the other subcommittees on and has been led up by David is putting together a survey to also kind of get a sense from the requestor community as well as the processing community in terms of what is the actual impact of these reforms then. I think one of the things that as a process committee we're really interested in is where does the sort of theory and the hypothesis of what's going to fix FOIA how has it actually worked in the past because there's been a lot of really great recommendations as it just has tracked a lot of those recommendations that have been put into practice but I think a lot of folks would agree that there's still room for improvement within the overall FOIA process. So having an understanding of sort of these prior process improvements and how they've kind of moved forward was of real interest to us as a subcommittee. Starting over the past few months we've now started kind of looking forward as well. I think one of the things we want to do as a subcommittee was kind of look at some of the broad areas of where some of the FOIA process issues really get stuck or things that seem to be kind of unresolved tensions within the FOIA process and what are some of the recommendations and then areas that we can use to kind of move past that. I'm going to briefly talk about just kind of the four key areas that we are looking at going forward and I think I want to mention these but also for anybody who's out there listening or kind of watching this retrospectively we're really interested in kind of feedback that is targeting these four areas. So if you have suggestions or examples or you kind of seen interesting regulatory or process changes that help address these four key areas we would love for you to submit a public comment specifically about these and have that pass on to the process subcommittee so that we can incorporate that guidance and potentially talk with you more and get more details about ways that we can tackle these areas. The four areas that we're looking at very pertinent to today's presentation was FOIA and contractors and privatized data as more information and more government services get privatized. How should FOIA's regulatory regimes and also processes be addressed? I think one of the things that we were looking at not to step on the legislative toes too much was also are there things that can be baked into contracts, baked into agreements, baked into RFPs from the get-go that don't even necessarily include changes to the law like best practices that say this data must be made available on demand or available proactively and how can we change our sort of procurement processes to be more transparent by default. The second area that the process subcommittee is looking at in coordination with the other subcommittees is FOIA fees and sort of what is the role they played and I think there are some really important tensions. FOIA fees are from the agency's perspective a really critical negotiating tool when trying to kind of talk with requesters and kind of work with them on narrowing the scope of perhaps very broad requests and so looking at sort of what are ways that we can kind of improve that FOIA process and there's been some really great discussions there. The third area is clarity and consistency of request processing. I think we've seen some agencies who've done absolutely fantastic jobs in terms of processing requests in a really manner and comprehensive manner and other agencies have kind of struggled to kind of have those same practices implemented. We realize that each agency has its own unique context and each request is its own unique entity but I think there are a lot of both concerns within the requestor community but also opportunities within the processing community to better share best practices and come up with a more consistent and clear FOIA processing guidelines and systems and just processes in place within the FOIA processing and then the final area that the process subcommittee is looking at is kind of and this was Tom's term just sharp FOIA practices. I think there's increasingly felt both within the requestor community but also the processing community that there's been some things that are very concerning or seem to kind of kind of dug their heels on in certain issues that are potentially very damaging to the whole FOIA process as a whole. Requestors are very concerned about the politicization of FOIA processing in terms of sort of political interference in responses but also things like the increasing use of open American stays to kind of delay or kind of make some FOIA tactics no longer useful and agencies are increasingly concerned about just the amount of litigation as well as sort of other vexing requests or what they perceive as vexing requests that are straining agencies resources and making it harder to negotiate around requests and have a smoothing working request process. None of these are simple issues. I think there's a lot of nuance and a lot of challenging discussions that need to be had and I think the FOIA advisory committee being half requestors and half folks from the agency processing community is the perfect venue to really start having discussions in a meaningful way. So just to quickly recap we are very very interested in feedback and suggestions and ideas around FOIA and privatized data, FOIA fee issues, clarity and consistency of the request processing and sharp FOIA practices please submit any ideas and other opportunities or even just examples that we should be considering to the public feedback. But now I want to hand it over to Roger who's going to talk a little bit about some of the committee's ongoing work looking at an older issue which is first party FOIA requests and sort of their outsized presence within many agencies in terms of slowing down or kind of overwhelming their FOIA processes. So Roger do you want to share a little bit about sort of what that working group has been digging into? Yes thank you so much Michael. That first party working group consists of myself, Tewan, Tom, and Alexis. And we've looked at multiple working agencies that we want to bring forth but the one that I want to discuss today is about due process in these computer rights. The federal government guarantees that no person shall be deprived of life living or property without due process of law. In addition to the courts, there is a demand to provide persons with a due process of law guarantee by the federal government versus Audrey. When notice and a name for opportunity ahead are passes due to a process which is in the EHSJF that's due process. That means versus central Hanover Park by contrast. Very often the multiple access of opportunity to be heard requires access to information in records among the party to the agencies action. And this evidence, these records that we have found are held by agencies. We find that the feedback within the advocacy of other disclosure mechanisms often requires parties to engage in first party work practices. So our recommendation is that across all agencies, records that are relied on by any agency, that advocacy affects an individual to meet or might be available to them. In the judicial context, a lot of disclosure is not coming. In the criminal context, Genesis, United States, and the United States, Maryland require disclosure same as yours, in the civil context, the federal social procedure. So this is something we are looking at really closely and I think we are going to come up with a paper soon and I heard at some point turns up to two and a half years but we think that this is something that's entirely meaningful impact across all agencies which is basically that if you are going to rely on any records, that's going to obviously affect an individual. We should make those records available to the person without forcing them to make a point for these records. Tomorrow I'm going to say, do you want to turn it in or add anything else? Add, Roger, that we are certainly working with various agencies, some of these agencies where they receive a large number of first party requests and so we want to make sure that the comments that we push forward, the recommendations that we push forward are meaningful and solution oriented and so I'm looking forward to continue to work with those agencies and this group with respect to pushing forward some recommendations. Okay, great. Thank you so much, Roger, for that report. Michael, I don't want to take away from your presentation so I'm just going to open it up to anyone else who wants to ask any questions or make comments on what you all have presented so far. Kristen, Ellis. Thanks, Kristen Ellis, FBI. Alexis, you had mentioned that you're working with other agencies or with a number of agencies on this first party recommendation. I'm wondering if you can let us know what agencies or just generally, are you talking to agencies within, for example, the law enforcement community, the intelligence community because a recommendation along the lines of what Roger is talking about could be intensely problematic to people that work in sort of my end of FOIA. Yeah, absolutely, Kirsten. We are actually looking and speaking with some of the ones that have immigration records. Alright, any other questions so far? Hey, Alina. Yes. This is Kirsten. Dave Cullier raised his hand. Oh, thank you. Sorry, Dave. I didn't notice you. Dave, go ahead. Oh, that's great. Great. Yeah, Dave Cullier from the University of Arizona. I just want to also mention that the survey we're doing out of the subcommittee is with A.J. Wagner as well from Marquette and we welcome input. We would like to survey folks who have used FOIA FOIA requesters and we're going to finalize our draft survey in about a week distributed among committee members to make sure we hit topics that can address issues that we're all working on. So we welcome feedback as well as from the public. So if you'd like to submit public comments on things that you think we should know about how requesters feel about the process, let us know. We'll run it through human subjects approval from our universities and then get that out in the next month probably. And kudos to A.J., by the way, he acquired a $5,000 grant from his university to help improve the response rate for our survey which will make it a little more credible and useful. A.J., and thanks to Michael Morse as well for his assistance in helping. So welcome any feedback. Thank you. Great. Thank you. Anyone else have any questions so far? Michael, I'm going to turn it back over to you. Any other presentations from the process subcommittee? Nope, that I think covers our update for this meeting but we would love to hear your feedback here. Thank you. I'm curious to know if we're dropping that public comment link. Okay. Alright, I'm going to move on to the third item on our agenda, the third presentation. I'm sorry, last. I'm still on third. Our last presentation, last but not least, is the Technology Subcommittee. And our co-chairs Allison Dietrich and Jason Gart are going to be presenting to us today. Again, I'm not 100% sure who's going to speak. So Jason and Allison over to you guys. Yeah, thank you Alina. Thank you Alina. I'm going to go first and then hand it over to Allison. Jason Gart, History Associates Incorporated. Good afternoon everyone. As we previously reported in our prior briefings to the FOIA Advisory Committee, the mission statement of the Technology Subcommittee for the 2020-22 term is to explore the applicability of baseline standards and best practice recommendations to ensure that federal agencies have up-to-date access and impartial information on the functionality and operation technology solutions for the selection and implementation of new foreign schools. Today Allison and I would like to focus the discussion on two recommendations that the subcommittee is currently exploring. I'll discuss first and then Allison will provide an overview of the second. So this first recommendation pertains to or relates to best practices and minimum requirements covering online content of agency FOIA portal website. Our view of the view of the subcommittee is that most of the agency websites could be improved both in two ways, one by being more customer friendly and then the second by being standardized across all the different agencies. This is supported by several ongoing things that are occurring. The prior recommendations by our predecessors and the other in prior terms of the FOIA Advisory Committee, the FOIA Improvement Act of 2016 and then OGIS is also working on this issue. For us agency websites or agency portals should have some minimum items and these pieces would help to make what we feel the process more transparent. One would be to link to a description of records that are maintained by the agency. Another might be information on FOIA fee categories and explanation of FOIA's non-exemptions contact information for the FOIA officers and the FOIA public liaison requirements for those requesters that are seeking expedited processing some type of agency information on the average processing time for request both simple and complex record requests and then accessible contact information for individuals with disabilities if they're having trouble encountering inaccessible documents. And then finally some type of status bar so that each requester understands where they are in the process of their particular FOIA request. We also intend to implement as part of our recommendations a kind of self-check for future committees for the next term so to speak and that is what would constitute success so in our recommendation we're going to also say this is what we envisioned and this is what we think would be would constitute success in the future 35-10 years down the line and that can be as simple as the hope that within one or two years 80% of agencies meet these minimum requirements so that's kind of the first recommendation and then I'll turn it over to Alex for the next one but I'm happy to answer questions or give additional thoughts. Thanks Jason my name is Alison Dietrich, Commerce Department and the second topic that we're considering making a recommendation on and I hedge it a bit because it's about some wisely debate within our subcommittee so we're curious what the other FOIA committee members think of it and public comment as well and that's regarding the metadata associated with documents that are provided in FOIA request and should the FOIA committee and hence the FOIA committee make a recommendation about encouraging metadata releases with documents or only upon request and it's balancing the needs for full information with especially the intelligence community, law enforcement communities trying to avoid inadvertent disclosure, information national security, potential controlled and classified information beyond what it's entitled to also especially when there's embedded information that's not immediately inherent in the document and then it's embedded to be inadvertent disclosure that way. So we've had some lively discussions about the pros and cons and difficulties it could cause for different agencies to process so we're curious what the committee and the public have to say about that. Thank you. Dr. Allison's comment about the fact that we've had a couple of very lively subcommittee meetings to talk about metadata and I think it's an important topic we would love to hear from other committee members as to their reaction and thoughts about metadata and accessibility under FOIA to metadata of documents. Not all at once. This is Lubna, the CIA. Quick question just so that I can be clear is the proposal then or the recommendation under consideration is to make metadata available through the FOIA process excuse my technical ignorance but I'm just kind of trying to understand what is exactly the proposal that's being put forward or being discussed. Sorry, we're trying to figure out should we even make a recommendation regarding metadata. So we're curious if agencies have certain concerns or if they're already doing it not doing it what the public's thoughts are just trying to balance the need for disclosure and transparency with the need to protect information. So we're trying to figure out is this something that the subcommittee and the committee should even make a recommendation on is there any consensus? I would say open and say that I would just jump. This is Jason Gard, History Associates. So our understanding is that metadata is currently not released to requesters due to the limitations of the processing platform. So the system currently just strips out metadata during the processing of materials for release, at least by some agencies. In researching this issue we've found that metadata has not been covered by prior committees. We feel it's going to be a bigger issue for the agencies in the near term as federal agencies transition to fully electronic documents. We also feel that metadata is critical. It's part of the document. The National Archives has guidance on what metadata should be attached to electronic records that are submitted that are deposited into the National Archives by federal agencies. It's been a very, I think, great conversation over the last month or so as we can discuss this. There are certainly some important things that we need to understand about the potential ramifications to the national security community and the law enforcement community. This is what we're wrapping our head around. Our group is very small. I think it's six of us. It's Roger, David, AJ, Allison and Kristen. So we're the smallest group here. We certainly welcome your thoughts and comments on if you think this is something to go down. I just want to speak for myself. I think I just had a temporary technological glitch and everyone froze for about 15 microseconds. And James and I missed the last part of what you said. But did anyone else experience that as well? I'm seeing some nods. Thank you for the sympathy. Could you just repeat the last part of what you just said? The last part, and I apologize, the last part was just that we are a small group. There are six of us. David, AJ, and Kristen, Allison, Roger. And we certainly, you know, we want to hear your thoughts on whether you think that this is an issue that we want to drive forward with. We think there's something here that should be explored further. But certainly there's only a small group of us. So what is the broader group thing? If you're talking, we can't hear you. You're on mute. Well, user error. Yeah, thanks, Alina. I don't want to hog the questioning on this. But again, my lack of technical knowledge, can someone explain that when we're talking about metadata, what exactly are we referring to? What is that encompassed, please? Just so that I can kind of understand what the pros and cons might be of that. Thank you. Yeah, that's a great question. And I will say that all of us in the Technology Committee are very honest that we're not technologists. We're probably not the most technologically sophisticated. But based at a very high level, you know, where the document was created, when it was created, who created it, how it was created, who edited it, file pathways, things of that sort. So the underlying structure to the actual electronic record. And to see this off further, this is where it gets a little bit dicey with. There's certainly pieces there that we would want to be very careful with releasing as part of a forward request that might dealt with the national security law enforcement issue. Thanks, Jason. And has there been any thought or discussion given to whether that type of information would fall under an exemption relating to the records that reflect like the decision-making process because if you're talking about how it's editing it, how it's been edited, things like that, that's part of that process to reaching the final product. So there may be some issues to consider as well as any others, especially speaking from an intelligence community perspective. But that's one that also pops the mind that I recommend there be some discussion about. Thank you. Great point. Thank you. I mean, to the extent the metadata might say include information about, because I know if you do like Control-Z or Command-Z, you can see what the past iterations of the document were if there is any kind of track change information, I think that might qualify as deliberative material, wouldn't it? In some sense. That would raise some concern there. So yes, again, it depends on how you are defining metadata. This is Kristen. I don't know that we've had an in-depth discussion about it, but I think the expectation is that certainly metadata may be information that is exempt, including deliberative information, but also other sensitive information. So I think we haven't quite gotten as far as what we would do with the metadata but my conclusion was that it is or should be subject to the FOIA is still exploring. This is Bobby from the Department of Justice and just if there is some case law around it, I just have to refresh my mind on it right now, but that's something that probably be a starting point to look at. I just want to add also one of the other areas of discussion has been the burden on agencies that would be imposed in having to process not just the document itself that would be responsive to FOIA requests but the underlying metadata. If we're talking along lines of a Kristen just mentioned, applying exemptions. So we've discussed that a little bit. We've touched on that briefly, but again, just invite folks to think about that and really and if you have any other thoughts please share them with the subcommittee. And Bobby, I'm going to turn back to you. You have wanted to ask the question about one of the earlier recommendations from the subcommittee on technology, correct? Yes, thank you, Bobby again. So I just wanted, I was curious of how the committee went about examining the agencies websites that should be on there. That's one question I had, but then I also wanted to offer a comment as far as standardizing agency websites because that's something that we really consider when we issue our guidance on FOIA websites. And I think that there's a balance there where standardization is certainly helpful when there are certain things that we highlight that should be standardized, but we don't want to pull agencies back from adding additional detail or things that are specific to their agencies or the way to design a website that would be really helpful to agencies. So I'd offer State Department's website as an example which they have a really helpful format as far as walking through requesters as far as what they're seeking and how to best request it. And that model might not be conducive for another agency. So we wouldn't want one agency having a lesser website because for the sake of standardization. But in addition to that I'd offer looking at the guidance where we point out what things that should be standardized and many of them are some of the things that we believe that we mentioned here as far as the practices. But a lot of that too we've tried to incorporate in the review as the real standard website for agency FOIA administration, which is FOIA.gov. So there we've really standardized to have agency specific information on really standardized agency landing pages. That include a lot of the helpful things that I agree we want to make sure is fully accessible to the request or community. As far as descriptions of the types of records, links to the reference guides, regulations, all the contact information for the FOIA public liaison, the processing times for simple and average requests and so forth. And we're still working on it. So we're excited to launch a new engagement with AT&F to build on the functionality and things like status and article certainly things that we're going to be looking to. So I just wanted to offer the idea of standardization is good, but there's a balance there as far as we don't want it to limit agencies FOIA websites. But then also I think FOIA amendments to 2016 took this into account where Congress wanted agencies to be able to maintain their own websites while also having the National FOIA as a single website for agencies including the administration. Those are my hopefully helpful comments for the subcommittee and that I was also interested in how we went about looking at agency websites to come up with those recommendations. Yeah, Jason Garth, head secretary, that was very useful. At AT&F we had AT&F brief group on I guess two occasions now at least one. Basically we went through the prior recommendations of the subcommittee and then also some of the FOIA advisory committee survey questions that was previously done. And again these are not the final these are, this is like some of the benchmark things that have started to percolate off of what we want. But I absolutely agree and I think the subcommittee would probably also agree that we definitely do not want to this is baseline, this is like minimum requirement and we don't want to be, you know, think the websites and the portals that do work now and that are thoughtful and user friendly, we want to keep that and we want to bring the other agencies up. And also, and the other thing that was really interesting with the conversations with AT&F was just, you know, to make it more consumer friendly to have, you know, know where you are in the process, know where to click, have things that kind of aren't, you know, one of the things we saw in the surveys is that people feel they have to click through and go all around and make it much more just ease of use. But absolutely great comments, Bobby, thank you. Thank you Jason and so since you've met with AT&F we actually just started a new engagement to help with our next phase of FOIA.gov. So it sounds to me like it might be a good meeting to have with this committee and AT&F as far as their own education interviews to get your insight as we start working on FOIA.gov. Obviously the agency websites are separate. But again, also, if you haven't, I'd also take a look at our guidance on the agency FOIA websites as we're looking into this topic. Okay, great, thank you. Any other questions or thoughts about the technology subcommittees work? And that's not you raising your hand, right? Okay, double checking. Looking around, Kirsten is raising her hand. Yeah, I just wanted to thank Bobby for that update and remind everyone that a prior recommendation 2020-01 pertained to review of agency websites which one of our National Archives colleagues has completed reviewing a good chunk of agency websites. And we'll be putting together an assessment in the next fiscal year, which is, what, two, three weeks away. And we'll be sharing that with Bobby and his team at OIP. And of course with the public and all of the committee members. Thanks. Thanks for that, Kirsten. Okay. Any other comments or thoughts that has occurred to anyone? Having heard all of this subcommittee presentation, I have a question. Everyone's doing great work. I'm very, very grateful if we're going to help with some great recommendations. Hopefully not 22 of them, though. At least that's what the archivists would prefer, keeping the number a little bit lower. But I'm not here to spice up any rate of thinking outside the box thinking. Okay. So I believe we are now at the towards the end of our agenda. And we're actually running a little ahead of schedule, which is great. I would love to give a few minutes back to everyone, because I know how busy everyone actually is. We have now reached the public comment part of our committee meeting. So at this point we look forward to hearing from any non-committee participants who have ideas or comments to share. Any oral comments are captured in the transcripts of the meeting, which as I mentioned at the beginning of the meeting we will post when it becomes available. Any member of the public may speak or otherwise address the committee in accordance with regs that govern all federal advisory committees as soon as the guidelines permit. So I'm going to ashray us to our event producer to give instructions about accessing our telephone lines that we will make available for everyone who wants to weigh in orally. And I'm also going to call upon OGIS Deputy Director Dr. Murphy to let us know if we've received any questions or comments via chat. We've been monitoring both the WebEx and the NARA YouTube chat. So Shreya, first let me turn to you. If you could give instructions please on opening up telephone lines and letting folks call in. Sure, Alina. As we move to the comment section, if you're using the WebEx audio, you may enter the comment queue by using the WebEx raise hand icon located just above the chat panel. You'll hear a beep tone when your line is unmuted. At that time please state your name and comment. If you're just on the phone line and not using the WebEx audio, please dial pound 2 on your phone to enter the comment queue. You'll hear a notification when your line is unmuted. At that time please state your name and comment. I do see one call in the queue. Okay. Let's go ahead and take that call. Okay, sure. Caller, please go ahead. Our line is unmuted. Yes, hi. This is Bob Hammond. Can you hear me okay? Yes. Okay. This is a great presentation today. Particularly interested in the technology committee. Today I want to address just one issue that I've been granted a loop in time and that is OCHIS funding. I want to follow up on a commitment that I made to help seek additional funding for the Office of Government Services in their important dual missions of compliance and mediation services to resolve disputes between persons making FOIA requests and administrative agencies per statute. I know that this committee has been seeking ways to get additional funding for OCHIS that was mentioned today and there was also a recommendation number 19, Congress strengthen the Office of Government Information Services with clear authority and expanded resources. As an initial matter, as you all know, the FOIA Advisory Committee reports the archivist to the United States. The Office of Government Information Services serves the committee and OCHIS staff provides administrative and logistics support. And as we all know, the Honorable David S. Fierro is the Archivist of the United States. To the people doing the day-to-day work, I stand with you on the enormous need for more resources, more help. Many of this meeting may not know that OCHIS has just two people assigned to the compliance team. It's Kirsten B. Mitchell and Krista Lemelan and just three people assigned to the mediation team. Karen McGuire, Wayne Bacon, and Jessica Hartman. In correspondence and in past meetings, I commented that from my experience in the budget world, when you tell leadership that you're doing more with less, you get less. And so I said I would rather, from my request, to take longer and be more thorough. And because of the extremely important bill missions of OCHIS, I made a commitment to advocate for additional OCHIS funding including writing to members of Congress. It was time to make good on my promise, so I looked at the OCHIS SquarePorts to Congress and the President to learn what I could that might be helpful. I learned that in FY 2020 OCHIS processed 4169 requests for assistance. I thought this is good stuff. I can divide three staff members into 4169 requests for assistance and make a strong case. And I think that most of you would agree that it's impossible task for Kerry, Dwayne, and Jessica to do the quality of work that in their heart they want to do. They need more help. But then I read a report to Congress and the President that OCHIS has decreased our backlog by 83% from the end of FY 19. Decreased our backlog by 83%. Then I learned from NERIS FY 2020 budgications that NERIS only an increase of $77,000 from 2020 to 2021. There is a rate of inflation and you won't get additional money if you don't ask for it. In my view, that's likely enough to cover salary and paper clips. When I made that promise to advocate for more OCHIS resources, it was from my heart. The other teams and front lines, if I want to stand with you, I can help you. No one on this committee will help you in my view. If Congress and the President do step up when they're presented with facts with significant problems affecting our citizens, boy, it's important. I'm reminding the recent order affecting our veterans. This may not be a good analogy, so please don't take it literally. All the reports said that the veteran patient backlogs were decreasing. Senior executives were getting fat bonus. While the reality on the ground was that veterans were waiting weeks and months for appointments, becoming sicker and sadly in some cases passing away. When the reality on the ground became known, Congress and the President stepped up, provided substantial additional funding and passed the Veterans Choice and Accountability Act of 2017 allowing veterans to see a local private doctor in certain cases and the VA would pay for it. Again, there was substantial additional funding. Carrie, Dwayne, and Jessica, I stand with you in your urgent need for more resources and more help. But what caused the case backlog to go away? Did something happen to make part of the case flow go away? Are agencies, DOD, refusing to engage in dispute resolution, have requested to become disillusions and quit relying on OGIS? Is OGIS closing cases without dispute with resolution? Is OGIS processing cases in the order received? On that last issue just a few days ago, I received a curious letter from OGIS, addressing three cases that were themselves only days old while I have open cases dating back to 2018. DOD has stated they're not required to include the mandatory right to alternative dispute resolution in adverse determination of letters. And OGIS director agreed with that deep position until just days ago in a limited retraction to one of those days old requests. The facts are overwhelming. All public DOG and OGIS documents and the statute itself states that mandatory rights, DOJ and OGIS have posted model letters. In 2020, DOD issued a change to the Code of Federation and their FOIA processing. Among other presentations my presentation, mandatory right to dispute resolution has not been posted although it meets the OGIS posted guidelines. Then I learned from OGIS reports to Congress and the President in FY 2019 OGIS handled 4,649 requests. 4,649. As FY20, OGIS received only 4,062 requests. What caused that workload to go away? What is ground truth and how are the backlog being cleared? And importantly, what are the quality of the work that the mediation team would in their hearts strive to do? Here are my recommendations. I believe that this committee, OGIS compliance and DOJ OAP must address the issue of DOD's change to 32 CFR part 286, which does not contain the mandatory right of OGIS dispute resolution and does not appear to comport with laws, regulations and policies. Note that DOD instruction 5145.05 requires DOD to actively promote the use of ADR and eliminate barriers to the use of ADR, which contradicts 32 CFR part 286.2. I personally believe that an OGIS processes, performance metrics, and raw data is in order. It's important that the compliance and mediation team workers DOAP evaluated fairly and rewarded for quality work and helping, and I quote, through all disputes between persons making 4 requests and administrative agencies. I believe that OGIS should resume hosting response letters and logs and include anonymous surveys and response letters to ascertain the effectiveness in executing 4A dispute resolution. In private sector, they use them extensively to keep their customers. Mediation team could be rewarded for quality work. Prior to September 22, 2016 OGIS posted logs of its dispute resolution cases and letters which contain a statement and a link. We appreciate your feedback. Please visit and that gives a website for SurveyMonkey to take a brief anonymous survey on the services you receive from OGIS. I also believe that the Archivist of the United States should reallocate funding within NARA to support the OGIS mission. And I had one other comment from Ben. I'm just going to interrupt you. I don't want to interrupt your great narrative about all the great work that OGIS is doing and I very much thank you for that. I know Dave Collier spoke earlier about the reimagining OGIS working group. I'm sure he's taken all of these comments into consideration and will continue to discuss those. David, do you want to respond to anything that's being said or do you want to take them under advisement and continue to work with you? Well, I really appreciate those comments, Bob. Thank you. And I hope that you send them our way so we can really digest those. I think you're absolutely right. I mean, some of the facts gathered by Makomorosi and others show that Pennsylvania's Office of Open Records, for example, has 20 people and OGIS has eight. And Pennsylvania handles 2600 cases, OGIS 4600, 4,000. So it's crazy. I mean, Pennsylvania has, you know, population of 12 million. OGIS is serving 330 million. We got to fix that. So by all means, Bob and others, send your feedback and we will take it seriously and provide ideas beyond just asking for more money, which will probably be a top consideration. What else can OGIS do to make the system better? So, thank you, Bob. There is FY2020 congressional budget justification As I said, OGIS saw an increase of only $77,000 bear the rate of inflation. NERA got everything that it asked for, including 377 million, 823 thousand dollars with only $1,212 for OGIS. And as I said, I think that's barely enough to cover salary and paper cuts. So that goes to my initial recommendation that within NERA that some of that money be reprogrammed. I just think it's, as you mentioned, it's just astounding that you have a little over a million dollars to service the American company. No, I agree, Bob. And, you know, Pennsylvania dedicates 3.3 million. Connecticut 1.7 million. I mean, it's just totally out of whack. So, please send those comments. I know others probably want to comment today, but thank you because it's critical. And think bigger. You know, should OGIS get a direct line budget from Congress? I mean, let's look at other models out there and other systems that might work better. I mean, nothing wrong with NERA, no offense, but you know, there are other models for, I mean that's how Connecticut's office is set up. It's a direct line item budget from the legislature. So it can't be tinkered with the executive branch. Not that NERA is tinkering again, but those are the things we're looking at. So yeah, please send those comments and I would like to chat further. Great, thank you. Triath, do we have any other telephone callers at this time? I do not see any further callers in the queue as of now. I do see one that came in just now through WebEx. Okay, I'm going to ask that caller to hold because I would like to just turn over to Martha for a minute and see whether we have any WebEx on our YouTube chat comments or questions. Martha, go ahead please. Yes, we do. We did receive some comments that are unrelated to the FOIA advisory committee. We're not going to read those out today, but as appropriate we will be responding directly to individuals. Mr. Hammond actually noted that the chief FOIA officer's council statute mandates the posting of all attendees, government and non-government. Will he ask will we adopt the same protocol for posting all attendees to the FOIA advisory committee? We spoke a little bit during the break about this. We're going to look into this. We don't have an answer for you today, but thank you for raising that comment. We've also received some comments concerning accuracy of our previously posted meeting minutes. We're going to ask for folks if you have a concern about our minute accuracy to please directly contact us about those specifics. We have the ones who are in the comment if anyone else has any concerns and we will review the accuracy of the minutes. So thank you very much. One question was will NARA post a participant chat log from WebEx? It has not been our practice to do so. We don't plan to do so as of right now. We did get a question about privatized data. The individual noted that they have concerns that their organization has its own private data that cannot be easily withheld despite the potentially failing effect the release of this information would have on their business. This is someone who is a FOIA professional. Bobby, I think you had some comments or thoughts on that. Thank you, Martha. I believe the agency is subject to the FOIA and has available to it all the exemptions that the other agencies have for protecting sensitive information. I encourage that agency represented by the job tariff where you can provide individual data on the material that is of concern. So 202-514-FOIA would be happy to help. Thank you, Bobby. And then the last chat comment I have is from Mr. Hammond. He would like to please be included in any of the surveys that were mentioned. And, David, I think you had a response to that, Mr. Collier. Sure. I think we're ahead of this two phases. First phase, that will be very targeted as a sample to capture a representative reflection of the entire community and then maybe open it up to anybody and anybody in their dog through all the FOIA listservs and you name it. And maybe we can even have a link from the OJIS website, the committee website. We'll figure that out. But by all means, anybody who will want to provide their feedback will give them that opportunity. Thank you. Great. Alina, we just got one more if you'd like me to read the last one from Alex Howard. With respect to the technology did the subcommittee find FOIA officers are aware of the Open Government Data Acts requirement? There are Chief Data Officer and Chief Data Officer Council and GSA resources to convert PDFs to structured data. That was a comment that came in. Jason, Allison do you want to comment on that? Is that something that you want to talk about as the next subcommittee meeting? I think it's something we'll take under advisement and look into for the next meeting. Thank you. Martha, any other questions? That's all for right now. Okay, Shreya, back to you. Any other callers waiting on the line? Yes, I do see one call in the WebEx queue. Okay. Collier, please go ahead. Your line is unmuted. Hi, this is Tom Malton with the Project and Government Oversight. Long time listener, first time caller. Hi, Tom. I wanted to just, I guess, put an idea in the subcommittees. First off, I think you've got some great subcommittees and really interesting work going on wrestling with some terrific issues. So I'm looking forward to the recommendations. But I do think a previous commenter who was talking about resources, which is extremely valid, but I think the other thing that occurred to me as I was listening was the question of oversight for implementation as we talk about any of these sort of new standards, whether it's websites or fees or different process as this committee puts out these ideas about sort of a minimum standards or policies that should be followed. I think one of the overarching weaknesses in the U.S. FOIA system is that there isn't a clear decider on someone to do enforcement. Obviously both OGIS and OIP do a lot of really great work mediating and trying to resolve any problems that come to their attention and sort of encouraging agencies to do better. But I would say that as these committees move forward with some of these recommendations that they consider those challenges and also in addition to these process and technology recommendations that we come up with in classification review that they think about. I don't know that there's a great answer here but they think about what might be a good improvement in sort of that oversight and that sort of enforcement to get consistency across the agencies. There's a lot of really good agencies trying very hard to do their FOIA well and then there are agencies that maybe don't have the resources or see it as a lower tier item and we wind up getting a less consistent application and I will stop there but thank you very much. Thanks very much for that Sean. Comments or feedback from committee members on comments. Sorry to speak again Alina but just saying that's what our working group is going to focus on Sean so please send us your suggestions. That's a big issue but an important one that I think the request or community in particular is really keyed on. Thank you. Thank you. But I would just say and I do realize that you guys are focusing on that with this sort of re-envisioning but barring that change in how things are done now I'm suggesting that given the system we have now kind of a more limited role of enforcement how can we do a better job if that remains sort of status quo. What can we put in place for the technology if we come up with some website minimum standards is there going to be a role for OIP given its current configuration things like that so I want my cake and eat it too so to speak. I have just one thing to say on that and this is Kale I'm not on video because I think it is worth noting that you talk about the classification the classification that in the realm of classified information and access to it you know everything goes up to the president and you know if you file an MDR request and it is denied you then go to appeal it to the agency then you go to ICAP and then ICAP at least on paper makes a recommendation to the president and if they recommend for instance that they make a decision that they be released the agency can go over their head to the president and make it release this information and that they would send quite a message if someone whether it be in the executive branch or the legislative branch were to basically say look we recognize that the reason that the president has the final say in everything about classified information that we tell them what a high priority of classified information is wouldn't it be nice if access to information were an equally high priority that just naming someone who would be the final decider would send a huge message about how important FOIA and transparency is to the government. Okay, thanks Kale. Appreciate that comment. Marcia just double checking if you have any other comments on the chat functions either WebEx or YouTube. Nope, we are not seeing any other comments right now. Thank you. Alright, thank you. Shreya's any other callers waiting in queue? I do not see any other callers in the queue as of now. Okay, thank you. Last opportunity for committee members to share any thoughts or comments about what you talked about today. No, I'm not seeing anyone raising their hands. Okay, so again, I thank you throughout. I'm going to thank you again. All the committee members have been doing great job so far and your anticipated work for the upcoming year. I know we're in the home stretch now. So we're going to be definitely getting busier, not less busy, but thanks for all the hard work you've been putting in. I'm very grateful. Thanks to everyone for joining us today. I hope everyone and their families remain safe, healthy, and resilient. We will see each other again on video. I predict it's going to be virtual. Sometimes folks ask me that, but at the rate we're going and you've heard the archivist opening remarks. The pandemic is not easing up in many areas of the country. I predict we will meet once again virtually on Thursday, December 9th, 10 a.m. to 1 p.m. eastern time. And with that, I'm just going to ask any other questions or concerns. Okay, everyone. Did I hear someone on the line? Or is that maybe someone doesn't have their line muted? Okay, so with that I am going to say we stand adjourned. I hope everyone has a great day and stay safe, everyone. Take care. Thank you. Bye.