 All right. Good morning, everyone. We're going to get started. If I could ask everyone to settle in, we've got a great agenda today, pretty packed, and don't know restroom breaks. So if you need a restroom, you're right down the hallway. But good morning. Welcome to the 2019 meeting of the Chief Way Officers Council. I am Alina Simo, Director of the Office of Government Information Services here at NARA. And I am co-chair of the Chief Way Officers Council. My co-chair, Melanie Piste, Director of the Office of Information Policy at the U.S. Department of Justice, is unable to be with us today, sends her regards, and will be ably represented by her colleague, Bobby Tulavian, who I will introduce later in our program. We are so happy to have many of you joining us here in person today, as well as virtually on the National Archives YouTube. I want to note that we will be monitoring the live stream. So if anyone has any questions while they're watching us virtually, by all means raise them and we'll try to get them answered. Before turning the podium over to the archivist of the United States, David Ferriero, for welcoming remarks, a few words about the Council, which Congress created with the passage of the FOIA Improvement Act of 2016, to develop recommendations for increasing FOIA compliance and efficiency, share best practices and innovative approaches and work on initiatives to increase transparency and FOIA compliance. The statute mandates that the Council meet publicly at least once a year, so we welcome any members of the public who are here in attendance today. We are glad you were able to join us. We will have time for public comments at the end of our agenda. At this time, please join me in welcoming David Ferriero, the archivist of the United States. And despite the fact that there is no bathroom break, there is a bathroom right down here in the green room, so you don't have to leave the building. So good morning and welcome to the National Archives. It's nice to have you with us again or for the first time. This is your first meeting. Two of NARA's four strategic goals are to make access happen and connect with customers, which dovetail nicely with the statutory responsibilities of chief FOIA officers. Chief FOIA officers, many of whom are here with us today or joining us virtually on the National Archives YouTube channel, are responsible for overseeing the implementation of FOIA, including disclosure and customer service. In creating the Council, Congress established a community for disseminating FOIA information and recommending changes to increase compliance and efficiency. Today's agenda includes a report from the Council's technology subcommittee created in September 2018 and comprising FOIA professionals from 11 departments and agencies who are working to assess the FOIA IT landscape to identify best practices and recommendations for agencies. This is a particularly timely topic as agencies work toward a fully electronic government. Last month, NARA and the Office of Management and Budget jointly issued a memorandum titled Transition to Electronic Records with guidance on managing federal records. Excellent records management practices help ensure an efficient and effective FOIA process. I look forward to the update from the Council's technology committee, which was created in response to a recommendation from another important group in the FOIA landscape, the FOIA advisory committee. A group of 20 FOIA experts from inside and outside the government who I appointed to study FOIA and recommend to me improvements to the administration of the statute. The FOIA advisory committee is more than halfway through. It's 2018-2020 term and meets September 5th right here in McGowan Theater. I'll now turn the meeting over back to Alina. Thanks for being here. Thank you again, David. Next, it is my pleasure to introduce Kirsten Moncada, who is currently the Privacy Branch Chief for the Office of Information and Regulatory Affairs in the Office of Management and Budget, Executive Office of the President. That's quite a mouthful. OMB for short. Kirsten leads OMB's Development and Coordination of Privacy Policy, Guidance, and Oversight across the federal government under the Privacy Act, Paperwork Reduction Act, E-Government Act, and Federal Information Security Modernization Act. While some of us were furloughed this past winter, Congress passed and the President signed into law on January 14th, 2019, the Foundations for Evidence-Based Policymaking Act of 2018. As part of that new legislation, the Open Public Electronic and Necessary Government Data Act, or the Open Government Data Act, amended 44 USC 3511 to include new responsibilities for our office, OGIS. We are required to collaborate with the Director of OMB and the Administrator of GSA to develop and maintain an online repository of tools, desk practices, and schema standards to facilitate the adoption of open data practices across the federal government. We have already launched our partnership with OMB and GSA and look forward to working with them to fulfill the congressional mandate. We are very lucky that early in her federal government career, Kirsten worked at the Office of Information and Privacy back then as an attorney advisor and as a result has a special place in her heart for the Freedom of Information Act. Kirsten contacted me early this year to discuss the implications of the Evidence-Based Act on both the FOIA and the Privacy Act, and I am happy that she can join us today to shed some light on these issues. So please welcome, please join me in welcoming Kirsten to the stage. Thank you, Alina, for that lovely welcome. As Alina said, my heart is still in the FOIA community. I started my federal career in FOIA, and for a good 50% of it was in OIP, and 50% of it is a long time because I just got my 30-year pin. So I'm delighted to be here. As Alina said, I'm here to talk to you about the Foundation for Evidence-Based Policymaking, a law that just recently came into play, and a law that really requires the coordination of information professionals throughout federal service. So let's just to ground set, if you've looked at this act, which I'm not sure that many have, but if you have, it is quite intense, and there is no way in the time I have allotted you that we can get into it in depth. But what I hope to do this morning is just to give you, at a high level, to tell you what it is, why USG FOIA officers should care about it, and to give you an outline of OMB's phased implementation and guidance plan. So one thing I didn't ask is, how do I advance the slides? Is there a, is it, I didn't think so. Ah, there's a drawer. It is? Oh, is it that? It looks like a walkie-talkie. It does. Okay, cool. Thank you. Thank you. Okay. So just a little bit of background. In 2016, Congress established the Commission for Evidence-Based Policymaking. And that commission was charged with studying data inventory, database security, data infrastructure, and statistical protocols as they relate to federal policymaking. In September 2017, the commission reported its findings, and it had 22 recommendations to improve federal evidence-building. And Congress took 11 of those, incorporated them into the, what we call the Evidence Act, because it's a long name, the Foundations for Evidence-Based Policymaking Act, which was, as Alina mentioned, signed into law this January. And what the Evidence Act really does is emphasizes coordination and collaboration to advance data and evidence-building functions in federal government. And among other things, it mandates a systematic rethinking of how we manage government data, and how we do so to better facilitate access for both evidence-building and for public consumption. So it does this by mandating three things, federal evidence-building activities, which it takes care of in Title I, open government data in Title II. And in Title III, mandates confidential information, protection, and statistical efficiency, which many of you may have heard of before, SIPC. It's been law for some time, but wasn't actually codified. It was a note previously. Okay, so I'm hoping already you see why you may care about this as a FOIA professional. But as chief FOIA officers, it's really Title II that I'm going to focus on to tell you about a little bit about why we should care. So this talks about Title I. These are, you know, the generic slides. Okay, so what is important for you guys as chief FOIA officers? What does this act do? Title II is also known, as Alina mentioned, as the Open Government Data Act. This may be familiar to you. There were several bills floating around in Congress, different versions. And eventually Title II was put into the Foundations for Evidence-Based Policymaking Act and was incorporated therein. So what does it do? It requires assets to be opened by default. It requires agencies to have open data plans as part of their strategic information resource management plans. It requires agencies to appoint chief data officers to have comprehensive data inventories. And at this point you may be like, wait a minute, some of this sounds familiar. Yes, it should sound familiar because some of these requirements you'll recognize from existing policy, both OMB circular A130 and OMB memorandum M1313, the Open Government Policy. It also establishes a chief data officer council. And if your antenna aren't already up, let me point out that in creating the data inventory, as agencies determine which data assets should be public data assets, the Act incorporates the FOIA standard in terms of what needs to be made available and what does not. So obviously your expertise is going to be important as agencies go forward in their implementation of this Act's requirements. So what is OMB doing? So we also are required to do some things in the Evidence Act. Certainly meeting the requirements of the Act is going to require ongoing focused effort by agencies. And to assist agencies in implementing the Evidence Act, OMB is required to issue guidance. And we recognize of course that implementation is necessarily going to build on some of the activities that agencies are already doing, but again it's going to require some coordination in new ways to accomplish the objectives. So what we are doing is basically, and you can see this thing, events have overtaken at this point, OMB is providing iterative and coordinated guidance to agencies in four phases. The first phase is learning agendas, which are the Evidence Building Plans. It addresses those, it addresses personnel, and it addresses planning. Phase two is to address open data access and management. Phase three, data access for statistical purposes. Phase four, program evaluation. So where are we in this process? Phase one guidance was issued on July 10th. The approved slides have not been updated. It is, the guidance is available on the OMB website. What phase one includes again is learning agendas and evidence, which are the Evidence Building Plans that agencies are required to have. It talks about personnel. It talks about the new chief data officers, which agencies were required to designate by July 13th. So perhaps some of you have already met or come in contact with your chief data officers. Some agencies already had them, to be sure. And chief data officers, it talks, this memo, also the phase one guidance, talks about the chief data officers' responsibilities. It expands upon the statutory requirements and talks about what the chief data officer is supposed to do. And to me, one of the most important things that the Evidence Act does is emphasize coordination and collaboration. As the information landscape has become more exciting with more opportunities, it also has become more challenging. And we have so many different fields and expertise in the information environment. As Alina mentioned, I was in OIP when FOIA and privacy were all under one umbrella. Now most agencies have privacy either tied with civil rights or tied with civil liberties or could be somewhere else. And similarly, we have records management issues. We have information security. We have all kinds of niche specialties within information. And what the Evidence Act does that I think is extremely important is it really emphasizes the importance of coordinating and collaborating. And as I mentioned, because of the FOIA standard that's incorporated into the Evidence Act, FOIA expertise is going to be very important. And so the act really does emphasize coordination and collaboration. And indeed, with regard to chief data officers, you'll see in the OMB guidance, it requires that they coordinate with other agency officials who are responsible for using, protecting and disseminating data. And it certainly lists as people to be consulted, considered chief FOIA officers in that mix. Similarly, it establishes other officials, evaluation officials, statistical officials, and also requires agencies to have data governance boards, which again, when it lists people that agencies should be thinking about on their governance boards, chief FOIA officers are on their lists. And it requires agency plans and that sort of thing and it details those. Phase two guidance, the open data access and management, which of course is where the public data assets come into play in the FOIA standard. We're working on that guidance right now. It will address making data open by default, the data inventories and those data inventories, how they become part of the federal data catalog. And it will also address the repository of tools and best practices that Alina mentioned. So as noted earlier, the act really does emphasize coordination and collaboration. And it was very important to me that the FOIA community be aware of this and that you guys know so that if your chief data officer hasn't reached out to find you, you can reach out to find them and let them know who you are and where you are. I look forward and I know OMB looks forward. We're engaging with different communities in helping agencies implement the requirements of this act. And we really look forward to engaging with the FOIA community as we issue this guidance and agencies begin to implement it. In the meantime, I'd encourage you to go on the OMB website. Take a look at the phase one guidance. A lot of it you may say, well, this has to do with evidence building or evaluation activities, but you'll at least see it does establish the chief data officer responsibilities and the governance board, things that you should be interested in. And it also provides a more detailed description and timeline of the OMB phase guidance implementation plan. So please take a look at that. Be on the lookout for our phase two guidance. And as I said, we'll be looking forward to engaging with all of you. And certainly I should have mentioned the chief data officer's council that's established by the act is also directed to work with other councils like this one. So again, look forward to coordinating and collaborating with all of you. Okay. That was easy. I hope to best. If you think of any other questions in the meantime, hopefully Kirsten will stick around for a little bit. Otherwise, I know where to find her. Next, it is my pleasure to introduce Bobby to labian from the office of information policy at the US Department of Justice. Bobby is chief of the FOIA compliance staff at OIP. His team assists OIP and its responsibilities to oversee and encourage government-wide compliance with the FOIA and US Department of Justice's FOIA guidelines. First up, Bobby is going to talk about looking ahead to 2020. He's going to discuss the new reporting guidelines for the 2020 chief FOIA officer reports that I saw OIP rolled out on Friday. So please join me in welcoming Bobby. Thank you, Lena. It's so great to be here with my FOIA colleagues or FOIA colleagues in the room and on YouTube across the government. So briefly what I wanted to highlight for today's council meeting was the new 2020 FOIA guidelines that OIP posted just recently on Friday. Since 2010, agencies have been using the CFO report to provide a number of great examples of how we're improving FOIA each year and trying to strive to meet the challenges, the current challenges of FOIA. As in prior years, the report this year will continue to focus on, or the report for 2020 rather, will continue to focus on five key areas of FOIA administration. Applying a presumption of openness, ensuring that we have effective systems for responding to requests, increasing proactive disclosures, utilizing technology in FOIA and improving timeliness and reducing backlogs. I can tell you that my team really enjoys reading all your reports every year. So thank you for that. So as in the prior years, the requirements for the chief FOIA officer reports will differ depending on the volume FOIA request agencies receive. Looking at the fiscal year 2018 ANO FOIA report, our most recent ANO FOIA report, agencies that received over 50 requests, we're providing a template with questions that address each of the five key areas. For agencies that were receiving 50 or less requests new this year, we're encouraging them to report to us if there's any initiatives or anything in the FOIA landscape that they would like to report to us on that's not provided to us in the ANO FOIA report. As far as deadlines, for those agencies that received more than 50 requests, we ask that you provide your draft report to us by January 17. For those agencies that are received 50 or less requests and would like to report, we'd like to have those reports by February 14. So as we've done in prior years, we will hold a refresher training on both reports. We have not nailed down the dates yet, but for the ANO FOIA report, we're expecting that to be early October. And for the chief FOIA officer report, we will have some training on in sometime in December. New and exciting for the ANO FOIA report, for those of us who are in the agencies responsible for providing that report. This summer, we've been working with our technology experts in the Department of Justice to provide a new tool, upgraded tool that will hopefully help with both the process, make it easier lessen the burden on agencies in providing the report to us, compiling their reports, as well as improve data quality. So we'll, we're currently like right now in the midst of developing that. And as we get further along this fall prior to the fiscal year ending, we'll provide more information on that. And of course included in our refresher training. So those are the big updates for reporting, any reporting questions, I'd be happy to take those. And of course, if you have any questions on reporting, please feel free to call us at 202-514-FOIA, ask for a member of the FOIA compliance team. Thank you. The other hats that I wear is chairperson of the FOIA advisory committee that David Ferriero mentioned earlier, a deliberative body that fosters dialogue between the federal government and the requester community, solicits public comments and develops recommendations for improving FOIA administration and proactive disclosures. The committee, which reports to the archivist of the United States, issued seven recommendations in April 2018 along with over 43 best practices. Specifically in the area of improving FOIA searches, the committee recommended that the archivist addressed the lack of public information about current methods and technologies, agencies used to search for responsive records, by recommending that this council work with the chief information officers council, the CIO council to explore the technological issues related to searches and to promote best practices and software. At our meeting in 2018, we solicited interest in forming this subcommittee or committee, we keep flip-flopping back and forth, and we requested volunteers and thus the technology subcommittee of the CFO council was formed in September of 2018. Members of the subcommittee hail from 11 different agencies, large and small, cabinet level and independent, and have a significant amount of expertise in FOIA and technology issues and or have been grappling with these issues at their respective agencies. Before turning the stage over to the technology subcommittee co-chairs, I am happy to announce a little plug for OGIS. We just published a report on leveraging technology in FOIA searches that dovetails with the subcommittee's work. It is available on OGIS's website, www.archives.gov, forward slash OGIS, under the OGIS highlights on the main page. I am very pleased to welcome the co-chairman of the technology subcommittee today. Eric Stein is the director of the Office of Information Programs and Services at the State Department. His office is responsible for the department's records management, FOIA, Privacy Act, classification, library and other records and information access programs. I am already exhausted just from reading that Eric. Eric is a career member of the senior executive service. Michael Sarek is the Veterans Health Administration, VHA, FOIA director. He leads a FOIA program with over 300 FOIA Privacy Act officers handling 25,000 plus requests across 151 facilities worldwide. In addition to his work on the CFO technology subcommittee, Michael was recently appointed as the vice-chair of the American Bar Association's government information and right to privacy section. I am very grateful for the hard work that the subcommittee has put in for the last 11 months and look forward to hearing Eric and Michael's discussion of the work the group has been doing. And they're going to answer questions and solicit feedback. So without much further ado, Eric and Michael, you're up. All right. Good morning. Good morning. Thank you. My name is Eric Stein. And I'm Michael Sarek. Good morning. We are the co-chairs of the technology subcommittee and we've been meeting for about the past 11 months to discuss technology in FOIA and records and different uses and way to improve technology used for the FOIA throughout the government. As we wait for our slides to come up, I'm very happy to say the 11 members of our committee come from rich, diverse groups and backgrounds. We have small agencies, large agencies, agencies that deal with classified information, strictly unclassified information, a lot of already publicly available information. But a lot of the issues and problems that we're facing have been the same regardless of whether you're a small or large agency. A lot are very different. So what we're going to go through today is a series of slides in our presentation showing what we've been doing, what we've been tasked to do, the different venues in which we saw feedback. And today is one of those venues. So as was noted, if you have any questions for us or feedback, that's part of the presentation today. So with that, I'm going to turn it over to Mike. So again, it is a real thrill to be here today. This morning with everybody in the FOIA community really is a great thrill to be here and an honor to be here in McGowan. I had the privilege of working with Eric over the last nearly year. And we've come a very long way in terms of understanding what the scope of FOIA technology is across the federal family. Almost, not quite. Okay, well that's okay. We can do it without thoughts. Okay, so as we mentioned in September, we got together and we started and as Eric also mentioned, we have 11 different agencies represented. You're talking about 10% virtually of all the agencies that handle FOIA. So we have a really diverse group and a really rich group in terms of contributions. We've been meeting usually twice a month. And we've also had kind of outreach sessions. We did a really well-attended and well-received session at ASAP just the other week. So we had three primary objectives. So the first one is to study the use of FOIA technology throughout the federal family. Who's doing what? What technology do you have? And that was really illuminating to kind of piggyback on Bobby's comments about the chief FOIA officer reports that go out. There's a question, I think it was question 14 last year, because I've read 118 of these, to kind of assess where you're at. And as you can well imagine, the spectrum for use of technology in the federal family is really far and really wide. Some agencies are celebrating and rightly so celebrating the addition of a double-sided scanner. Like that's a technology improvement. And for some agencies, that's fantastic. That's really critical. That's going to help them perform their mission in a better way. While other agencies are experimenting with and beginning what I personally feel is the future of FOIA, artificial intelligence work. So it's really interesting to see the whole scope. You know, when you have a diverse federal family and you have diverse inputs and different ideas, where the field is. So that was the first step. And I'll hand it over to Eric to talk about. We had the obligation to identify and highlight the best practices and then make realistic recommendations that can be implemented across the FOIA practitioner spectrum. So I'll let Eric share some of the highlights of the best practices. So for the best practices, as Mike noted, Mike also really enjoyed reading all of the 100 plus reports. Our whole subcommittee actually went through all of the reports. We went and spoke to several of your employees or some of you in the audience about the issues at your agency. And we found, at first we started looking at, well, maybe technology, we look at the size of an agency or the volume of records involved. And we found that, well, that didn't really get us any new information or anything useful or helpful. So as we looked around at best practices, we found that the maturity of IT practices and infrastructure in the agency made a big difference with regard to FOIA programs. And we also found that records matter. And so while we're an IT committee, our work is focused on IT, really focusing on records has been a key part of making sure that FOIA programs can work. Where are the records? How are they stored? How are they managed? Have we moved to electronic record keeping, the new mandate? These are the issues we've really been focused on. So records management matters. Another key finding that we found is that having senior level support and champions also matter, whether it's the head of an agency, senior officials like yourself in the room or those of you watching. These things make a big difference in the administration of FOIA programs. We haven't even gotten to IT yet, but these were kind of the key guideline principles in the work that we've done. So now we get more into some of the IT. We started looking at, well, what were some of the best practices, some of the things that agencies are proud of? And as Mike noted, you have some agencies that are moving forward with major efforts to digitize records, leverage artificial intelligence, technology-assisted review, machine learning. We had other agencies that were happy that they recently, and this is no joke, received a new multifunctional device that can scan documents faster to digitize them and do reviews. So you see there's a very broad range. So in trying to take this universe of information to still it down to something useful, it's been a challenge to figure out what are the best practices and how does it affect different groups. So what we've also found is that records folks and FOIA folks weren't always in touch with one another, and the proximity of technology shops to a FOIA operation really matter as well. So some of you have FOIA, your FOIA operations have IT components to them or close liaisons with your CIO shop or whoever provides support to your agency or organization. Others didn't have that same connection or have less frequent interaction with them. So starting the dialogue and working with those IT folks really make a big difference, and these are the things we're starting to hone in on on our recommendations. Mike? Sure. And our recommendations largely, I'll just share two of them for helping move the field forward. The first recommendation is to level the playing field, and the second recommendation is to lend a hand. So we'll talk about both of those. What we found by talking to FOIA officers across the federal family and across the spectrum was that an agency will purchase a commercially available off the shelf a COTS product, and they'll pay one price. And another agency will buy the same product and pay an incredibly different price, either high or either lower. We may not have the same functionality. So the first recommendation is to have these commercially available, commercially off the shelf products, these COTS products on the GSA schedule. Same with records management software. A lot of agencies have difficulty starting from ground zero. It's really hard to get started on making technological improvements and embracing some of these things. The variety of systems out there is overwhelming. We have legacy systems. Some people use the popularly available commercially off the shelf available FOIA products, and they use them for different reasons. Some people are price driven, and they go and they try and get a price, and it's on the moon. And they can't make that argument to leadership that, hey, we need this if we're going to be an effective FOIA program here in 2019. So having that on the GSA schedule along with records management type software on the GSA schedule eliminates that first step, right? This product is already been vetted. This has already gone through the requirements to be listed on the GSA schedule. So that's an important first step to kind of getting buying. And the second big recommendation takeaway is to lend a hand. Lots of folks, it's so hard to start, right? January 1st, it's really easy to start your diet, right? January 7th, a little bit tougher. So lending a hand, helping people out, having a venue or resource for folks. If you're at agency X and you know that your agency to comply with the DOJ guidance on improving and embracing technology in your FOIA programs, you need to be taking these affirmative steps. But how do you start? Like what is the first step? How do you strike the match that's going to light the fire to get your agency moving? So having a body, either the body that we currently have or a body that is established by perhaps OGIS or OIP, where people can go to and have that kind of tech talk. There's tremendous fear for some people. Some people aren't technologists. Some people just don't like technology. They don't know how to embrace it. They don't know how to approach it. It's a scary kind of thing. What am I going to do to put these records on the cloud? What's going to happen to them? I don't have it in my hands. I don't have this file that I can see. But we all know that the future of FOIA is not that. We all know the future of FOIA is not a green folder with case notes stapled into it, right? We all know that it's a digital future. And it must be a digital future because NARA is not going to take any paper. So it must be as nice as David is. He's just said no more paper. So we really appreciate that. And really with Kirsten's presentation as well, we're talking about the nexus of all of these initiatives kind of coming together. We have this obligation to move forward on the Evidence Act and other initiatives. And they all kind of come together. So that's the second big recommendation so far. Now in a few minutes we're going to be asking you for your recommendation. So hopefully we can round that out because everybody knows you have to have three, right? So we only have two. So we need your help to get to that magical third. So a couple other points. We realized that one size is not going to fit all. So we are looking at our final deliverable being some sort of paper that will come out that will keep short. So people will have a chance to go through it, digest it. But we really want to provide meaningful feedback. We received feedback recently at ASAP and as well as from various agencies. They're like, that's great. I'm struggling right now. I'm drowning in FOIA work. I want to do all this IT stuff you're talking about. But I'm a one person shop and I'm FOIA part time. Or I'm FOIA in records and privacy. And I don't have the time. So we're even working through those issues and recommendations. Well, not directly technology. There could be work already done in tools that could be helpful to you in the work that you do. The other thing that you mentioned interoperability. Developing tools that are interoperable. That was also a best practice we identified. There are a handful of software packages being used by FOIA programs. We won't go into listing them. You know what they are probably. But we found that agencies use them differently. So even just having a common practice. We use this tool for redaction. We use this tool for case processing. We don't use these two tools at the same time. Why not? And not judgmental question. Why not? Looking at, well, we haven't considered how to connect our records to our case processing system. What would that take? And a lot of the times we're not even there yet. We don't know. So as Mike said, we're looking at ways to provide meaningful practical solutions where we can say, hey, we're here to help. If you want to reach out to whatever body ultimately takes over this work. And that's been a real focus. And I think one of the major findings and accomplishments of this group. Yeah, absolutely. And again, we're welcoming feedback from our experts. This is an incredible collection of FOIA talent in one room. So we are very welcoming of feedback. And just right here today, what can be done to assist agencies with FOIA and their IT tools to execute requests? Because at the end of the day, a FOIA professional's job is to move requests, right? The public wants the information. It's our job to provide it to them as quickly as possible in a reasonable timeframe. And we're all working with lots of requests, limited staff. And one way to get past that hurdle of lots of requests and limited staff is to use technology as a force multiplier to fully embrace it. So instead of having a system over here and a system over here that don't necessarily talk to each other, having two systems or having one system that kind of does that all or making sure that those systems are completely interoperable is key. Moving forward. Yeah, and this forum creates a unique opportunity because we've been spending a lot of time with federal agencies. At ASAP, we had exposure to a broader base and here as well today, a broader audience. Because also hearing from the other side, the public matters as well. And getting that feedback because we can come up with solutions that work for us. But at the end of the day, we're also here to comply and respond to these public requests the best that we can. Absolutely. And as we mentioned, we've researched every FOIA agency. Every one that does FOIA, we've researched and we said, okay, what do you do? How do you do it? How can we help improve it? And having that global view of what's going on in the FOIA community I think has been really helpful in informing our work and the work of the committee. But here we're at the portion where we need your help, right? We're here to solicit your feedback and your ideas so we can bring them to the committee, ultimately bring them to Alina and the larger committee. And make these recommendations and not just make these recommendations. I think Eric and I and all 11 members of the committee or subcommittee are committed to not just making these recommendations but ensuring these recommendations are put in place, right? Nobody wants to spend their efforts and their waking hours and sometimes their late hours drafting reports that aren't reasonable, that can't be easily implemented. So at this point, we would like to really open it up for folks to if you have questions or if you have comments, suggestions. We'd love to hear them. It's a very open body. Of course FOIA is an open community. So we'd really like to give you guys the opportunity to come down, grab the mics and engage us in this dialogue. Please. Open invitation. Please. For NARA here. Actually, it's more of a comment and a question for you guys too. If you could, based on your survey of what all the agencies are doing with AI, with artificial intelligence, give a rundown of where and how it's working best and to what extent is it really being leveraged for increasing efficiency and review and identifying sensitive information that needs to be redacted, that kind of stuff. Sure. Great question. And that's the reason for this graphic, right? FOIA is going to be, FOIA of the future is going to be a combination of a really smart FOIA professional and it's going to be computer based too, right? There's going to be this predictive coding and predictive redaction that's going to go on. Most agencies that we've surveyed that are doing any AI work at all are in the kind of the formative stages. There's a product, again, we're not going to mention products, but there's a product upgrade coming to one of the popular FOIA packages. That's going to begin to implement that. So you'll be able to do, for example, put together a string and they'll find that string for you. But again, as we all know, FOIA is a line by line discipline, right? You know, even when we get into this promise land, which we're all hoping for, this force multiplier of AI, and I'm fully on board with this and really want to work hard to make sure that this happens in the community, it's still always going to, I think, in my view, going to require a line by line review. Jason Barron at the recent ASAP conference had a really, really good point about this. In the private sector and the law firms, they're looking at rooms filled with banker boxes of data, not anymore. They used to, right? And now they're able to, over a weekend, he said, get through that conference room filled with banker boxes, and that kind of image of a law firm filled with information in just a weekend and advise their clients. If they can do it on K Street, there's no reason that we can't do it here on Constitution Avenue. And I would just build on that point. What we found is that it's in the records programs. We're actually seeing uses of these tools more than FOIA right now. Primarily, there are open-based, open-text coding available. There are tools, but it's in the records world. We're seeing the testing of this workout, particularly proximity searches, locating records. And then you get into other than, say, metadata standards. Do they have any metadata associated with the records? How do we make those conversions? So it's in the records world right now. And I think the next phase is to integrate that work being done in the records world, mature it, and then make it interoperable with the FOIA community and all the other ones as well. This goes hand-in-hand with Chief Data Officer work and a lot of other initiatives that are out there. Please, thank you. And thank you for the question. Thank you. Wait too short for this. Hi, I'm Nicole Squales. I'm from the Overseas Private Investment Corporation. So we're really small. We get like 60 requests a year. And so I guess one of my comments or questions is whether you guys are, and I'm assuming you are, considering some of the small resource agencies, our 60 requests compared to 6,000 or 60,000, of course. But it's still proportionately just as difficult for us because we have fewer people working on those fewer requests and we get just as complex requests. And so we feel just sort of as overwhelmed with our lower volume. We'd love to participate in a lot of these technologies and things like that. But a stumbling block we've always sort of run into is their price for like the agencies that process 2,000, 3,000, 4,000 requests. And so we haven't ever really been able to even get into a serious discussion about these kind of things because our agency won't justify it for 60 requests. So yes, as I mentioned earlier, we started looking at agency size, which is a really simple way to start. We found that while that was one factor to definitely consider, we focus more on the problems and the IT maturity and infrastructure at agencies. This is something we've taken under consideration. One of the things we didn't mention before, we found that agencies, particularly ones in situations like yours, have never made a budget request, had never put forward, never worked a partner with someone. So we're hoping that whatever recommendations we come up with could help to provide those avenues where agencies even work together, particularly if you're a smaller agency, to find a way to get some of these solutions. Because you said you have similar burdens, or actually you might have a bigger burden because you're such a smaller operation, whereas those of us who have larger FOIA shops and record shops have more resources to do that work. I like it ordered that way better. For sure, if you're doing a small number of requests and you only see, we're going to talk about it shortly and really looking forward to that discussion, if you only do maybe two or three or six contracts a year in that 60, it makes it, I think, inarguably harder to do. But one of the reasons that we want to see if we can get things on the GSA schedule is because then that legwork, that meeting that the person at Fill in the Blank organization might not even call you back. They're like, oh, we do 60 things and they say, well, they'll never buy this product, so why am I going to send a rep out? For the GSA schedule, that first hurdle has been cleared for you, right? And so you can move forward in that way. Whichever product you think best suits OPICS needs, and that'll be for your determination. But having that core set of requirements, right? In the committee, we've learned different agencies have gone through and they've set up requirements, you know, Eric shop did and NIH as well. We were able to look at their requirements, kind of the core competencies that they require from those COTS products. It's been very, very illuminating. And hopefully that work will assist, you know, agencies that are in your exact position in that 60, 100, whatever it is, requests that you guys handle, you know, per year. Yeah. And this gets to the challenge of some people are intimidated by the answers too. We start talking about AI and I have problems right now when we solve. So as Mike said, we're really trying to make sure we span the whole government and provide recommendations that will be helpful to broad audiences. Any of them from your shop to the larger ones. That's a quick follow-up to that. Is there any way for us to sort of get a look at the kind of data that you guys have crunched like a summary across agencies? Because it would be interesting, I think, to see sort of what everybody else similarity size is doing. Absolutely. Yeah. Right. When we do the report, Alan, I can easily add that as an appendix. That'd be really interesting. Yeah. It's basically a combination of question 14 times 118, more or less. And some of the agencies, even some of the agencies with the smaller report that Bobby was mentioning due on Valentine's Day, that's very nice. So when you send your Valentine's Day report to Bobby, you know, in February, if you have a chance to add, you know, that question, you know, talk about your technology in there, you know, there's a lot of optional parts in there historically. So yeah, we'll definitely, we'll, I appreciate this, the suggestion and we will absolutely add that as an appendix. Thank you. With the permission of Alina. Please. Is it okay that I talk here? Absolutely. Please. I'm Michael Binder. I'm a member of the subcommittee, the technology subcommittee. I'm with the Air Force Declassification Office. Strictly speaking, we're not a FOIA organization. We just do a lot of review of FOIA and it's all classified FOIA. And my question is who's going to decide? Who's in charge? I see a lot of similarities to the Manhattan Project, where there was one guy in charge, General Leslie Groves, and he made decisions, he decided. And in other meetings, we've talked about who's going to be the champion at the top. You've talked about champions within each agency, but there has to be somebody who's a champion at the top. So we're doing an automation project. We've got money from the Small Business Innovation Research Program, so it's not our money. And we can go to phase one and phase two, but then when we get to phase three, that's going to be our money. And so we get a result. Well, who gets the result? How do I convince another agency? Well, this is the best way to go. A lot of agencies are doing little projects, but there's nobody coordinating it. And I don't know if the CFO Council is supposed to be doing that, or if it's somebody within NARA, or if it's somebody in OIP, or if it's somebody in OGIS, but I see people kind of pointing elsewhere. They say we don't have money, and who's going to be the general Groves for this? So in general, I mean, we follow OIP guidance. We work with OGIS. And you just mentioned D-Class. I mean, that involves another part of the archives at ISU. I think we're seeing chief data officer requirements. We have a lot of factors and variables to consider. So I'm not sure there's going to be one champion, but maybe even like a team of champions here that'll be dedicated to overall success, but then also focused on their individual responsibilities. I think the other point you raised about agencies and progress, well, agencies have defined success or know what their issues are. It's easy to say I found a solution to this problem, therefore it's going to work for all of you. That's not really a good solution, though. So it's helpful when agencies have found solutions, but I think one of the things that this group has brought value to in the meetings you've heard this, it's just raising awareness of these issues among federal agencies and then finding the right way and the right avenues to address those problems, whether it's through OIP, a part of the National Archives, whether you work with OMB, GSA, or others, or even sometimes just troubleshoot within your own agency. So I don't think we have a specific answer to who's going to be the champion of them all, because I think that there are different initiatives, but I think these are the issues, raising awareness matters. Right, and I think the real power in the committee's work in terms of the level of playing field and lend a hand is right exactly in, is encapsulated in your question here. It's that lots of times if there's not someone to point to, right, like the authority that you can point to, like, hey, OIP says do this, right, then people say, well, I don't really have to do this, so I'm not going to allocate that phase three money, which is the hardest money, right, the study you can maybe get away with, a pilot maybe, but the full implementation, if you're talking about, I'm sure on your scale, tens of millions of dollars, you know, at a very large agency doing that kind of work, I liken it to when I was in school, I came home and told my mom I needed a TI something or other calculator, right, and she's like, how much is that? I'm like, well, I think it's $100, and that's when $100 was $100, right, and then I said, she said, no, Michael, I think you should go for business math, you know, so, you know, she kind of said go in that direction. When I came home the next, I went to the guidance counselor, saluted, and you know, went to the guidance counselor and said I'm going to do business math, and said, well, Michael, you're not going to graduate. Well, guess who was at the mall that night, right, we were at the mall buying a TI something calculator, so when you have that external person to point to, right, or that external body that you're talking about is very useful, and that's part of the lend the hand of the methodology of the recommendations that we're making to either keep the body as established, constitute a new body, something that you can go to and kind of get this guy, and these are the standards. So right now, let's say we're finishing up with one contractor, we're going to have a final report. Who do I give that to beyond the Air Force? I would certainly, if it's unclassified, you can share it. It's unclassified. Yeah, you can share it. You know, certainly share it with, I would certainly start with Bobby and Alina and our committee as well, for sure. So I've got multiple parties to send it to. Well, emails free, right? So what I'm hearing is an agenda item for our next meeting. Exactly. But it's a fair point and also gets into another point on training. When we train government information specialists in the 306 series, people who work on FOIA starting to get familiar with technology and comfortable with terms like this, that's going to be an important part of this as well. So what we might end up having in some of our recommendations are a list of tools because there's a lot of information out there already and pulling it together to make sure people are generally aware of what the tools and capabilities are out there. Are there any other questions? Yes, there's a question from online. Great. And the question is, in your research, have any agencies stood out in embracing technology in the FOIA space? Oh, VHA and state, clearly. Clearly. No. There's a lot of good work that's going on in this space. Even members of our own committee, Cindy Caffaro at Interior, is transitioning from a legacy system to a commercially available off-the-shelf ACOTS product. And the amount of work that she's putting in is just incredible and transformative. When you're looking at technology, looking at all of them, I would have to say there's lots of great work being done all across the federal family. The Securities and Exchange Commission has done some fantastic work. Barry Walters Group has done some really, really good work in this space and having portals and having really... They really embrace... They lean in on FOIA and they lean in on the technology and they use it to have some of the best processing times in the federal family. They've won the Muck Rock three years in a row and there's a reason for that. They've really leaned in on the tech side. What are the requirements? Am I talking about your FEAR Records program for your FOIA program? Understanding what exactly are you trying to do? How does it work in your agency? Some agencies are centralized. At State, we're a centralized FOIA program. Many agencies are decentralized. Requests are processed by individual components of different agencies. So in looking at the tools and the technology, again, there's not one size fits all, but we found that agencies that have actually had a serious discussion about, from start end to end, from beginning to end, here's what we need to do and then what technical tools are available to meet those requirements. Those are the places where we found the better implementation of technology and technical solutions. For tech committee, we're very pleased that we had a question online. This is really nice. We feel really good about that piece. We certainly welcome your further comments. You can certainly... We're very findable. If you think of something, I wish I'd ask that question. Otherwise, you can reach out to Eric Stein or Mike Sarich directly. We'll provide our information so it's available. We want to thank you for your time this morning. Before you leave. Don't clap yet, because they're not done. The other half of this mission was for you to interact and talk to the CIO council. Would you be able to cover that a little bit and tell us about what the plans are? Have you already chatted with them informally? If you could address that. We were fortunate enough to brief a group of very senior CIOs throughout the government on a lot of the points you already heard. It was an incredible opportunity because there are initiatives underway and work being done that we had found in our vacuum but in our own universe of research that was already being considered and thought about. I don't think we want to go any further than that other than to say there are very senior levels of government looking at these problems and coming up with real practical and terrific opportunity and I want to thank OGIS and OIP for putting us in touch with the CIO council and I don't think our work is done with them yet because I think we're going to go back and brief them again but their feedback during that time and we're very mindful of their time will help steer us in a positive direction. It really does highlight how interconnected we all are here in terms of how tightly the CIOs are focused on their needs in their agencies in this space so we really do have their attention and we're really grateful again for putting us together with them and hopefully we'll have some really great things to come. Now you can clap. Thank you so much. Thank you very much. Thank you. I'm surprised everyone is so shy. This was a great opportunity to core all these guys in and ask them lots of hard questions. They'll be around and available so don't be shy. At this point I would like to invite Bobby back up to the stage so he can share with us information and insight about the recent U.S. Supreme Court rolling and Food Marketing Institute versus Argus Leader Media. When FOIA geeks like us we get very excited when there's a Supreme Court rolling of any kind so this is always a big lots of conversation starters in the FOIA community. This is exemption four so we have a lot of questions regarding implementation of exemption four so hopefully Bobby will discuss the impact of the rolling and fields and questions. So don't be shy. Here's Bobby. All right, back again. So as Alina pointed out we wanted to talk a little bit about the big news in FOIA. It doesn't happen often when the Supreme Court weighs in on a FOIA issue. In fact it's about eight years ago as many of you probably remember the drastic change to exemption two with Milner and the court weighing in on whether corporations like AT&T had privacy interests under exemption six. So really exciting to have a Supreme Court decision on exemption four of the FOIA and then recently what the court looked at was what the term confidential meant under exemption four and overturned standards applied generally by the government for over 40 years. If many of you are familiar with exemption four over those 40 years we would know that the most challenging part and maybe the most contentious or most case law developed an exemption four is with this standard. And that standard is the standard provided to us by the DC Circuit in National Parks and called it the National Parks Test where if information commercial information that's commercial financial information that's been provided to the government sectioned exemption four in confidential if releasing it would impair the government's ability to receive similar information or would cause likely cause substantial competitive harm to the submitter. Before getting into the court's findings there's a lot of unique facts and procedural history to this case so I thought I'd briefly touch on that. The request here actually the requester here was Argus Media which is a South Dakota newspaper company and what they were requesting from USDA was supplemental nutritional assistance program data commonly referred to this is what replaced food stamp information food stamps and so what USDA did in response to this request was provide the name and locations of grocery retailers that participated in the SNAP program and also interestingly that proactively disclose at a national state and regional level as well as the different types of grocery retailers this type of data regarding how much these how much has been redeemed under the program however what they withheld in this request was individual as to each grocery retailer how much SNAP program SNAP benefits they redeemed so and the district court level they were withholding this under exemption 3 at the district court level the court found that this information was protected by exemption 3 Argus Media appealed that to the ace circuit which found that while the exemption 3 statute USDA was relying on was a qualified exemption 3 statute it did not reach this data so the court reversed that decision remanded back to the district court and on remand a USDA then argued that based on a long history it was promising to keep this information private which was codified in their FOIA regulations and the expectation that that set that that information would be protected that exemption 4 was the right exemption to protect this information under so the district court had a two day bench trial to determine whether that information met this standard under national parks that it would if disclosed substantial competitive injury to the submitter and after and during that two day bench trial USDA had witnesses that testified that the grocer retailers really closely hold this information and explained the different ways competitors could use that information to gain an advantage however ultimately the district court determined that any likelihood that there would be competitive injury was speculative at best and therefore rejected the withholding of that information under exemption 4 so at this point USDA determined that they're not going to further appeal this decision and they informed the submitters of that decision and here comes in comes FMI so FMI is a trade association that represents grocery retailers and they intervene and appeal to the 8th circuit but here on their appeal to the 8th circuit they asked the court to disregard the standard of the national parks for determining whether something is confidential and to look to the ordinary meaning of what that term is and protecting allowing the agency to allowing the protection of this information under exemption 4 the 8th circuit rejects that position and determines that while there was evidence and harm before the district court that there was not sufficient evidence for it to overturn that decision so FMI now petitions the Supreme Court for review and is granted cert a number of organizations including the Department of Justice file amicus briefs in fact a number of us at OIP went and stood in line to try to go see this exciting oral arguments and I think there were so many people from the amicus community that provided the amicus that filled the court that we couldn't get in so we got into the 3 minute line and were able to catch snippets of it but the court was left to here decide what is the term confidential what does the term confidential mean for exemption 4 and is there a textual basis for how national parks defines confidential under exemption 4 so the court first points out that there is no definition of the term confidential in FOIA so what it must do is look to see what the ordinary meaning of that definition was at the time the FOIA was enacted because exemption 4 was never amended since the enactment of the FOIA so they looked to the dictionary definition of that term at that time and what they found first was that the term means what it means now what it meant then which is that something is confidential if it's kept private or secret then looking at a number of dictionary definitions from the 1960s they cited to black's law dictionary Webster's Oxford they decided that they found that there's two conditions that might be necessary in order for information to be considered confidential first information remains confidential if the person who provides it the submitter customarily keeps it private or at least holds it close hold second information might be considered confidential only if the person that receives it so in our case the government provides an assurance that it will continue to keep it private the court looked at each condition separately first it looked at the first condition and determined well this condition has to always be met and very logically explained that it doesn't seem right that information would remain confidential when the owner of that information is freely disclosing it itself so as to the term confidential this standard always has to be met next it looks at that second condition to determine well if information that's privately that's kept private and customarily not released by the submitter does it lose confidentiality if there's no promise that it will be kept private by the government and as it turns out the court said well we don't need to resolve this question because in this situation as I mentioned USDA had a long standing policy that was codified in their regulations providing a promise that it would kept private so very easily that standard was met too in this case so what the court determined is that at least where the submitter maintains that information as private and it's customarily not released and the government and prior to the government under an assurance of privacy the information will continue to be confidential for exemption purposes of exemption four so where we're left with there are some questions surrounding the perimeters of that and OIP is currently actively working on guidance that we hope to provide soon that will provide workable rules to apply the new landscape the new standard that the court has provided under exemption four while we're formulating that guidance for case specific questions for requests that are pending appeals that are pending we encourage you to reach out to us through the FOIA counselor service line so we can address those and provide advice as we are formulating the guidance have that number up here 202-514 FOIA your specific examples and the questions that you have will really help formulate our guidance it provides us a little insight to make sure that we're thinking about all aspects of this and we've already reached out to agencies to get some examples so that was just a brief overview of exemption four this is a big change in exemption four it does change a significant part of the standard for a big part of where a lot of exemption four cases fall and so please do reach out to us there's general questions I'd be happy to discuss them here but also I am happy to stick around to right after the after our event is there any discretion do you think or was your formulating your guidance of what agencies can do so if I mean if it's unclear about what the tradition is does an agency have discretion still to disclose even if it could meet that test disclose and give notice and then still force kind of the reverse FOIA litigation that's traditional under exemption four could the agency still propose to disclose give notice to the submitter and then still force them to do a reverse FOIA lawsuit to prevent the government from disclosing so that's a question that we're grappling with right now as we're formally the guidance so I don't want to get ahead of that but as for the submitter notice process I always say that's something as we're working towards the new exemption four you may want to look at your FOIA regulations because different agencies have worded those regulations differently and so for some it might be broader than than others but again if you have any questions specific to that we can definitely handle what we've done at OIP is put together a small team of exemption four experts so that we are consistently doing all these different fact patterns and giving consistent advice and informing our guidance not here because I can talk to the counselor line but just a really concrete question is when do you guys expect to have the guidance out so we know like that you know this is something agencies really want to get some firm guidance on as soon as possible so hopefully I mean we're hoping like in the month range or if not sooner but we're really this is something we're focusing on actively and trying to give it very thoughtful consideration and if our agency does a lot of before I mean like probably 55 out of our 60 requests our B4 yeah is this something that we can contact you guys with and sort of get more involved in like so I think the best thing would be to just give us a call and we'll set up a time to just have like a comp we can have all of our our heads kind of way in it because we've been sort of just holding yeah no no need to hold to give us a call and then we can work through those and like I said that's really going to help us with our guidance as well to know how this touches because you know people have beef a lot of people have before but having a lot of different context it's not always procurement it's a lot of different things so it'll really help us for my guys know how this is going to hit all the different types of exemption for material okay thank you absolutely hello I'm Stephanie Garner from the EEOC and I have on my desk at least one contract well I shouldn't say contract training prepared by a contractor that's one thing I also have some expert witness an expert witness report which was not made part of the trial and I have requests for both of those normally I would use before to withhold them so you're saying until you get guidance out I have to disclose them what do I do with them give us a call so I can get kind of deeper into specifically what type of information you're considering we can see how we think it falls within your standard and what the best action would be while the guidance is being formulated okay thank you absolutely thank you alright we've reached nearly the end of our meeting I know we're going to end early so I'm going to give back to everyone at least 30 minutes today we have left time at the end for public comments before I get to that I just want to ask folks who are here and folks who are watching us online any other questions or ideas for the next meeting I'm always soliciting ideas for topics that we can cover that the FOIA community is interested in and if you can't think of anything right now please don't hesitate to email us but I would love to get that kind of feedback because we want to make these meetings meaningful and helpful to everyone alright everyone it's Monday I realize that so if there are any members from the public who are here in attendance today who would like to come up to the mic and ask any questions or make any comments I want to invite you to do that at this time again very quiet okay if there are no other questions or comments I declare this meeting adjourned of this council meeting thank you so much for your attendance today and we will see you soon take care