 we have water for you. Good morning and welcome back. It's nice to have you back in my house. This Freedom of Information Advisory Committee meeting marks the halfway point of the committee's two-year term. I understand the three subcommittees time volume, vision for a future FOIA and records management have been busy holding conference calls on a regular basis, asking questions, delving into data and discussing ideas for improving the administration of FOIA. And I'm pleased to welcome back Margaret Quokka, an assistant professor at the University of Denver Sturm College of Law, who present her research on how requests from individuals seeking records about themselves dominate some FOIA programs. Professor Quokka is no stranger to this committee. In 2016 I appointed her to the second term of the committee and thanks to her hard work along with her 19 fellow committee members I received seven recommendations and 43 best practices in a detailed final report in April 2018. I recommend improvements, the recommended improvements focused on search, technology, accessibility and performance standards. I look forward to an ongoing thoughtful discussion and vigorous consideration of several recommendations from this term of the committee which ends in June 2020. Before turning the meeting over to Aline Simo, a side note earlier this month in celebration of the 100th anniversary of the 19th amendment, the National Archives opened an exhibit rightfully hers, American Women in the Vote, which tells the story of the relentless struggles of diverse activists to secure voting rights for all American women. Well not directly related to one another, it's worth noting that the women's suffrage and FOIA in their own ways play important roles in our democracy. Thank you to the committee for your work toward improving FOIA. I hope you'll take a few moments after today's meeting to visit rightfully hers upstairs. And if not, you can't make it today, it's open through January 3rd, 2021. So thank you. And I turn it over to Alina. Thank you, Deva. Good morning, everyone. Thank you for joining us for our fourth meeting of the 2018-2020 term of the FOIA advisory committee. Whether you're here in person, thank you for coming in person via telephone or via live stream. I do know we have five members on the phone and hopefully I'll check in with them very shortly and hopefully they're all there. But I am excited to kick off our fourth meeting. It is hard to believe that we're already halfway at the halfway mark. And I know there's been a lot of work going on in between the meetings and I am so very pleased with all the great work that's going on in the subcommittee. So thank you, everyone, for your really hard work. So Emily Creighton could not be here with us today. Bradley hopefully will speak for her. And on the phone, we have James Jacobs. Yes? Hello. Hello. Joan Kaminer. Hi, Joan. Ginger McCall. Hello. Hi, Ginger. Michael Morrissey. Hello. And Suzanne Piatrowski. Hello, everybody. Okay. Thank you for checking in. I will do my best to remember to keep checking in with you. And I have to remind myself there's a delay between the mics going off and the phones coming on. So I constantly have to do that to myself, too. So we have a robust agenda today and I will do my best to keep it moving. I guess we could do that. Why don't we have everyone introduce themselves? We haven't done that in a little while. So Chris, can we start with you? Sure. Chris Knox from Deloitte. Thanks. Was that Catelius from Securities and Exchange Commission? Kevin Goldberg, Legal Counsel to the American Society of News Editors. Ryan Law Department of Treasury. Abbey Mosheim, Consumer Product Safety Commission. Bradley White, Department of Homeland Security. Kirsten Mitchell, National Archives. Not a member of the committee, the designated federal official. Melanie Peste, Department of Justice. Tom Sussman, American Bar Association. Elyse Steven, Cause of Action Institute. Patricia Wef, National Labor Relations Board. James Stoker, Trinity Washington University. Sarah Kotler, United States Food and Drug Administration. Jason Barron, a drinker, Biddle and Wreath and formerly at the National Archives. Okay, thanks everyone. I have a few housekeeping notes. I just wanted to go over my usual spiel, as most of you know, the FOIA Advisory Committee, which reports to the archivist of the United States, provides a forum for public discussion of FOIA issues and to offer some members of the public an opportunity to provide their feedback and ideas for improving the FOIA process. We encourage public comments, suggestions and feedback that you may submit at any time by emailing FOIA dash advisory dash committee at narra.gov. At the end of today's meeting, as we always do, we will have time for public comments. An ODA staff member, Sheila Portanovo, our attorney advisor, is monitoring live stream throughout the meeting. So if you have any comments or questions, please feel free to submit them in writing and we will read them out loud during the public comment period. We are live streaming this meeting and we'll also make the video transcript of meeting materials available on the committee's webpage as soon as possible. Just bear with us, it takes a little while. To promote openness, transparency and public engagement, we post committee updates and information to our website, blog and on Twitter at FOIA underscore ombuds. Stay up to date on the latest OGIS and FOIA advisory committee news, activities and events by following us on social media. Information about the committee, including members biographies and committee documents are available on the FOIA advisory committee webpage and on the OGIS website. We have discussed this in past meetings. I just thought it would be important to reinforce a few important reminders from our sponsors, the AV folks. They help us run everything smoothly. And there are some cheat cheats by the microphones to remind everyone what to do and what not to do. The do's are please say your name before speaking every single time. That helps our person who's keeping track of minutes. Please bring the microphone in front of you and hold 8 to 10 inches from your mouth before you speak. Please move the microphone back when you're finished speaking. Keep wireless devices to a minimum and away from the microphones. And for those committee members, as I mentioned, the tip sheets are around the table. This meeting is being closed captioned. By following in these instructions, we're going to help make the public meeting more accessible to all. And thank you for following those rules. We have a couple more housekeeping items before I introduce our guest speaker today. First, we need to approve the minutes from the March 20th meeting, which Kirsten sent around by email. I don't believe we had any comments that we received or any edits. She and I have either certified or will certify shortly the minutes to be accurate and complete. We're required to do that under the Federal Advisory Committee Act within 90 days of our last meeting. Do I have a motion to approve the minutes? Okay, no second required. I'm always happy to take one. Thank you, Ryan. Those on the telephone. Any objections? Okay, all in favor? All right. And those on the phone again, anyone opposed? All right, so by popular demand, we have now passed our minutes. So we also got a request to send around a tentative schedule for the final report and recommendations of this committee. And we we did it in such a way that we worked our way backwards from the final meeting, which is going to be in June of 2020. And Kirsten circulated to everyone. We're very open to comments and and thoughts about whether it needs to be adjusted in any way. And we haven't heard from anyone yet. But that doesn't mean that the floor still not open for committee members to comment and and give us suggestions and feedback on it. But it's a pretty ambitious schedule. I think everyone has had a chance to look at it. But of course, the idea is that by our final meeting, which is June 4 2020, which seems a long way away, but it'll be here before you know it, we will have our final meeting where we will finalize and vote on the final report and recommendations. I'm always looking for volunteers to be on a small working group to put the report together. That seemed to work very well last term as well. So if you're at all interested in that, please see me during the break or after the meeting and let me know if you're interested. There is nothing in the committee's charter or bylaws that prevents a subcommittee from making a recommendation to the committee on a rolling basis. We like rolling releases. So we like rolling recommendations. So as chairperson, I want to allow for ample opportunities for the committee to hear ideas from the subcommittees, consider them and have time to deliberate. So feel free to do that at any time. And as I said, we walked backwards from June 2020 and with an eye towards finally presenting the subcommittee recommendations by March 5 2020 meeting. So I think that's all I have in terms of housekeeping. And I am now ready to any questions before I go on questions, questions on the phone. Okay. So we're ready to introduce our speaker for today, Professor Margaret Quoka. I am very pleased to welcome her back. As David said earlier, she is back because she is no stranger to the FOIA advisory committee. She was on the second term of the FOIA advisory committee, the 2016-2018 term. And she actually co-chaired with Sarah Kotler, not to call you out, the proactive disclosure subcommittee. And while she's here, I urge you to pick her brain about ideas, approaches. She's lived through one full term of the committee. She survived. So chat with her if you want to get her feedback. Her PowerPoint presentation is included in your packets. And we will also be posting it on the FOIA advisory committee website. Margaret is currently an associate professor at the University of Denver, Sturm College of Law, where she teaches administrative law, civil procedure, federal courts, and national security law. Her research interests center on government secrecy, FOIA, procedural justice, and judicial review of agency actions. She has written numerous articles examining the current state of FOIA and possible reforms which have appeared in the Yale, Duke, Boston University, and UC Davis law reviews, as well as the New York Times. She has testified in Congress on government transparency. Various federal court decisions have cited her academic work, and she's regularly quoted in the national media concerning FOIA. Before joining the University of Denver, Margaret taught at the John Marshall Law School in Chicago and at George Washington University School of Law. Prior to joining academia, Margaret was an attorney, a public citizen litigation group, where she focused on FOIA litigation. She clerked for Judge Michael Murphy on the U.S. Court of Appeals for the 10th Circuit and Chief Justice Philip Raposa, Massachusetts Appeals Court. Margaret earned her law degree from Northeastern University School of Law and her bachelor's degree in biology, I noted, from Brown University. And just so you don't think the Margaret's focus is only on FOIA, I wanted to mention I happened to Google and noticed that last fall she received the Pro Bono Achievement Award from the Animal Legal Defense Fund, recognizing her exemplary efforts on behalf of animals. Yeah, Margaret. Today, Margaret presents on her latest research, First Person FOIA, which documents how individuals seeking records about themselves dominate the FOIA landscape at some agencies. Her research is published in the Yale Law Journal article in June 2018 and is posted on the FOIA Advisory Committee website. I also want to quickly add that Margaret is working on a book, which is to be published sometime this year, I think, Questamark. She hopefully can address that maybe, entitled, Saving the Freedom of Information Act, which I thought is what we're all trying to do. So if there are any pearls of wisdom, Margaret, you want to share with the committee, we're all yours. So with all of that, please join me in welcoming back to the FOIA Advisory Committee, Professor Margaret Cuoka. Thanks so much for that lovely introduction, Alina. And although I appreciate your efforts to make me seem more well-rounded with the work for ALDF was also FOIA-related. It's really nice to be back. I appreciate the invitation. And I just wanted to say that, although I have about 20 minutes of comments prepared, you should feel free to interrupt me at any time. There's no problem at all if you have questions or comments that you want to make as I go along, though I'm looking forward to our discussion afterwards as well. So for those of you that know me, you know that I've spent the past several years working on a series of research projects that was prompted by kind of a combination of three basic observations, all of which will not surprise you. One is that journalists constantly complain that FOIA simply isn't as useful as they want it to be in reporting the news, even though they were thought to be the prime intended users of the law. The second is, despite the loud complaints we get about FOIA's failings, the federal government's now receiving over 800,000 requests a year. So there must be someone whose interest it is serving well enough to keep them coming back for more. And then finally, my third observation is that the costs associated with FOIA and the relative paucity of news media requesters have caused significant criticisms of the law as not adequately fulfilling its basic goals. And so I have delved into this by trying to uncover detailed data from agencies across the federal government examining who is using FOIA and what are they trying to get. So to preview a little bit of the findings of my research that I'll detail today, the typical requester now is not the New York Times. It's someone like JP, an individual that the government is trying to deport. JP is a lawful, permanent resident, colloquially known as a green card holder. He had a brief run in with the law, the criminal justice system nearly a decade ago. In that incident, a public dispute broke out between him and a friend. He was 20 years old and for the first time in his life found himself in jail for the night. And he remembers going to court, talking to some lawyers, signing some papers. He spent the weekend there and no more. He's got no records from the incident. Since then, he stayed out of trouble, finished college, started a family, and now he's received a notice to appear, which is the charging document in immigration court. And it claims that he's removable because he was convicted of assault. He hires an attorney to defend him against deportation. His attorney says that he has to find out whether the conviction really was for assault and if so, if that's the only conviction on his record. Sometimes the federal government interpreting 50 different states, criminal penal codes and criminal justice records gets conviction information wrong. Sometimes if it's just a simple assault and that's all that's on his record, he may be eligible for relief from removal. And so it's imperative that his attorney see the records that the government is relying on to defend the case. So the attorney will immediately file a FOIA request. It's natural to wonder why would JP need to use FOIA. After all, the records that JP needs are literally sitting on counsel's table across from him in immigration court, in that very courtroom in which he will appear to defend his case. But in immigration proceedings, like in many other agency proceedings, they don't have any mechanism for obtaining discovery. And so FOIA is the only option for people like JP. And of course JP is not the person that Congress had in mind when they designed FOIA. Rather, it really was journalists. This is a law designed for their needs, not for individuals trying to get their own records. And when I say that the news media was the kind of intended beneficiary of FOIA, it's probably more accurate to say that the news media essentially drafted the law. In 1953, here we go. In 1953, Harold Cross wrote a book called The People's Right to Know. In his capacity as the advisor to the American Society of Newspaper Editors, which was the most prominent journalism organization at the time. And in the book, Cross called on Congress to legislate a right to access public records at the federal level. He himself subsequently became the legal advisor to the special subcommittee in the House of Representatives that was tasked with drafting the law and journalists mostly staffed the committee. So journalists were crafting the very contours of the law, not just its vision. But that vision was equally important to Congress and it's one that this body of course is very familiar with. The whole idea of a public records access law designed for journalists is that the news media would use the law to inform the public about government activities, thereby enhancing the public's ability to participate in democratic governance and hold elected officials accountable. And the legislative history with FOIA is repeat with references for the need to have an informed electorate as vital to a democratic society. So in contrast to that vision, if this is others studies not mine, though my data is very consistent with these findings, this is a sample of studies that have attempted to quantify news media requesters. There's a striking consistency in recent studies that news media are only making a tiny fraction of requests my findings are similarly situated with these results. And so if it's not news media and watchdog groups, who is it? And even superficial investigations of the data reveal an obvious truth. FOIA is largely used for purposes other than promoting democratic accountability. So my research reveals two prominent groups of requesters that dominate the landscape. First are commercial requesters whose use of FOIA as part of their profit making enterprises is a topic that I've previously presented onto this body and have written about before. Today I'm going to focus on the second group of requesters. These are requesters like JP who are turning to FOIA by the hundreds of thousands. They're using FOIA as the title of my article suggests in a first person manner that is seeking records about themselves, be it their own law enforcement records, their own medical files, their own immigration files, their own family histories and so on. And to understand the dynamics of first person FOIA requesting, I conducted case studies at a number of agencies whose data on FOIA usage I mostly obtained by myself filing FOIA requests. And this is the principle list of agencies I ended up studying and where I only studied certain components I've listed them though those components do make up the vast majority of requests at their parent departments. At each of these agencies, first person requesting dominates the landscape. You can see the percentage of first person requests represented in green all others are represented in blue on this chart. At this point you may be thinking to yourself, the labels somehow disappear on this slide and I apologize for that. Let me detail that those three on the left are all components of DHS so if you, these are actually in the order. So they're Citizenship and Immigration Services, Immigration and Customs Enforcement, Customs and Border Protection, and then Veterans Health Administration, Social Security and the EEOC follow. You may be thinking to yourself, oh well those three other agencies are really small FOIA operations but that's actually just not the case. At this point the Department of Homeland Security is receiving over 45 percent of the federal government's total requests and so those three components of DHS which are on the left, columns one two and three, are outsized for that reason. The other agencies listed there are still within about the top 12 agencies by volume. They just look small in comparison because DHS dwarfs everyone else at this point. But more than just the numbers, my study, a couple of these, the data gathering with interviews of mostly attorneys who make first-person requests on behalf of their clients to find out what role FOIA is playing at each of these agencies. So all of these labels somehow disappeared, which is really unfortunate. But I will say so here I've got these, this is a DHS request. These are by component so you'll see that Citizenship and Immigration Services on the right that's ICE is in blue and that's CBP is in orange there and so you can see that those three components make up the vast bulk of the requests that DHS receives and almost all of them are by non-citizens requesting their immigration records, though the reasons are varied. So JP's story explains one of the reasons. Individuals request their records because they're in removal proceedings and they have no other access to discovery. Not only are the records sought under FOIA in these circumstances critical for information about past convictions as with JP, but also allow a lawyer to obtain prior statements the client may have made to immigration officials to reconcile any inconsistencies or to prepare for cross-examination on the stand. And without FOIA immigration attorneys explained to me they're essentially litigating in the dark. Probably much more often though than in remove removal proceedings is a relatively smaller percentage of these requests probably much more often than that. Individuals are seeking their immigration records as part of their bid for an affirmative immigration benefit such as an application for a new or different kind of visa or an application for naturalization. So these requests serve two primary purposes. One is to provide details about the applicant's immigration history to ensure that there's nothing that would prevent the person from obtaining the benefit that they seek before filing the application. And the other is to ensure consistency in that application with the past records if it is filed. The second purpose, a separate purpose of making a FOIA request in this context is to obtain a document that the government holds but which the applicant needs to submit with their application. So for example someone who's applying for a green card from within the U.S. has to prove that they lawfully entered the country. They may no longer have that documentation or someone may need to file a previously submitted family-based petition or with their application to adjust their status. And so they'll use FOIA to get these documents from the government that they need to submit with their application. So despite the kind of outsized presence or volume of requests related to immigration, first person FOIA requests are hardly constrained to that context. Let me talk briefly about the other agencies included in my study although I'm afraid that I'm afraid to hit the button and see the missing labels again and there they are. But at the department I will try to describe this. At the Department of Veteran Affairs I studied the Veterans Health Administration which accounts for 86 percent of all VA requests. So this is the largest component by far. Of the 26,000 in change the year I studied at the very least 77 percent of the requests are first person in nature because they were filed both under FOIA and the Privacy Act, the latter of which provides a right of access only to your own records. The reasons for first person FOIA requests at the VA are more varied than DHS but similarly demonstrate the private nature of the interest served. So if you could see the labels this would break down the subject matter of requests at the VHA. Medical records are the green category dominating. This is 67 percent of all requests at the Veterans Health Administration. Frequent requesters looking for medical records include individuals for sure but also insurance underwriting firms which are essentially making first person requests as the representative of the individual seeking a policy. One frequent requester is also a law firm that specializes in social security disability law which would be most often requesting their own clients medical files in support for a claim for benefits. Another group of individuals more than 500 in the fiscal year that I studied in 2015 are families of deceased veterans who are seeking a type of military separation document that's required for accessing a military funeral benefit. Beyond medical records the next largest group of requesters in this category are for uniform offense reports which is a type of police report essentially for incidents that occur on VA property and the logs reveal that folks basically want copies of the statements that they made to VA police or reports of incidents that the requester was involved in. I'll mention that by way of reference the VHA in this entire year received only 352 news media requests amounting to 1.3 percent of the total request that year. I will also briefly talk about the Social Security Administration which appears to have a particularly unique FOIA practice as you would have been able to see from this chart. The two largest categories are for SS5 forms or NUMIDENT records that's the SS5 is green, NUMIDENT is blue. Those are both records about original applications for a social security number. As best I can tell from the evidence I've been able to piece together it appears that individuals are primarily making these requests who are doing genealogy research about their own family histories. So in the strictest sense of the term this might not be a first-person request because they're asking about some other individual but if we think about this a bit more broadly it's clearly information about the requester they're seeking it's their own family history. In addition I think we can you know this category also falls within first-person requests in the sense that the interests served are largely not about government oversight or accountability. And then finally at the EEOC there's another prime example of first-person requesting. The EEOC that year received over 17,000 requests and a full 95 percent of those requests were for what is designated as a charge file. That's an investigative file that is created when someone files a charge of discrimination under one of the various statutes that the EEOC administers like Title 7 and the ADA. By statute the only person who can seek a charge file under FOIA is the person who filed it and some limited circumstances the responding party. And it can only be filed during the 90 days after the EEOC has completed its investigation and the charging party has been given its notice that has the right to sue. The employer or respondent can only request that file if they actually do sue. So that's a very small subset of those requests would be from them. And so by definition nearly all of these requests are first-person requests. When a person files a charge of discrimination the employer or respondent must file its position statement which is basically like a brief arguing its version of what of the events that are complained of. And the position statement will often also include various exhibits like the employer's EEO policies or the employee's personnel file concerning their performance or behavior. And like with immigration proceedings the charging party has no right of access to those documents through any sort of administrative discovery during the investigative process at the agency. So as a result employment attorneys that I spoke with confirm that they file a FOIA request immediately upon having a new client walk in the door or as soon as they obtain a notice of a right to sue from the agency. So from this primary research about the various first-person uses of FOIA federal agencies I believe that there's a significant mismatch between first-person FOIA requesters needs for their own records which are very real and in many cases extremely important. But there's a mismatch between that need and the way that FOIA is able to meet that need and certainly a mismatch between that need and what FOIA was intended to do. So there's three basic problems I think with with using FOIA for en masse first-person requesting. The first is that it undermines actually the due process interest of the requesters in many cases. I'll talk about each of these a bit but I'll preview. The second is that I actually think in many cases these are inefficient ways of information delivery for the agencies and the third is that it oftentimes I think is undermining FOIA as an effective transparency tool. So let me talk about each of those a little bit. The first is as I described a significant amount of first-person FOIA requesting serves as a means for means for private individuals to arm themselves when they're subject to some sort of government enforcement action or seeking to make their best case for a government benefits. They're in some sort of agency process or proceeding. Gaining access to information in these instances can promote fairness in the proceedings accuracy in the outcomes of government decision-making and what others in this field other scholars have labeled a sort of due process like benefit even if it's not technically a due process right as as courts would define it. And so FOIA may be serving extremely important interests in these regards. But I think my research shows that it's serving these interests poorly. One big problem is tideliness. So both immigration attorneys and employment attorneys explain the problems of having to go through FOIA to obtain documents. In essence sometimes the information simply doesn't come in time to be useful to the client's case. So these quotes are representative. There's been times this first attorney says where guys have been removed and then a FOIA result comes back and my strategy would have been different. Troubling thought. Or this from an employment lawyer they got a notice of a right to sue and they want to file a lawsuit and then basically I won't consider it unless I can review the EEOC's file. This attorney said that he simply sometimes won't take a client or a case because there isn't enough time by the time he's consulted to get the results of the FOIA request before the deadline to file a lawsuit. Another problem in this context is that when information is withheld or redacted few clients or their attorneys have the resources to fight a collateral battle over records. So this attorney said lawyers can't afford to take time and energy to litigate FOIA issues on the side of the case that they're already litigating for their client. And so relevant information may never reach the individual whether those withholdings are right or wrong can't be tested. And then finally as this lawyer's frustrated statement says sometimes attorneys or pro se litigants end up having to move forward without the information that they need. And so this of course increases the likelihood that an individual is unable to access benefits to which they're entitled or is unable to defend against enforcement proceedings where significant interests are at stake. So apart I'm going back to my three part mismatch. Apart from due process failures which are on the individual side FOIA also I think is oftentimes in these circumstances an inefficient mechanism for the agency if we look at their their processes overall. So for example at immigration agencies the person who is in removal proceedings has to file a FOIA request with the main FOIA office which then has to assign that request to a FOIA officer for processing and that person will inevitably come back around and look to and find the same sets of records that the trial attorney has on their desk in immigration court. So this not only duplicates work in some sense but also means that the judge in immigration proceedings in immigration court can't resolve any disputes that arise over the records. And many attorneys noted that when they haven't received a response to their FOIA request they will use that as a basis for continuance in immigration court and so thereby potentially holding up the underlying proceedings and using greater agency resources in that regard as well. And I can certainly I think there are some reasons why the agency hasn't moved in that direction. I'm happy to answer questions about that but and there are various other examples like that that you can find going through these agencies and then finally I whoops sorry I think that on this third point first person uses a FOIA particularly because of their volume I believe are undermining FOIA to some degree as a transparency tool. So as my research documents first person requests do advance important interests but they're primarily private interests and not the public interest in government oversight. And so certainly there are public benefits to first person requesting. Let me not let me not be unclear about that. For example there is a general public interest in fair and accurate determinations by agencies but these types of interests don't go to the heart of FOIA's imagined purpose about informing the public about government activities. And in fact the agencies that receive a deluge of requests that serve primarily private interests may be less responsive to those requests that do implicate government accountability. So news media watchdog groups private citizens using FOIA for oversight purposes may be essentially crowded out due to resource constraints and because the FOIA offices are so overwhelmed with other requesters and I think the potential for such crowding out is underscored by the perennial concerns about delay as the prime reason why FOIA falls short of serving its intended mission. And so I wanted to end by briefly touching on a few solutions that I think we could consider. These are I will say there is no one size fits all approach across the federal government but rather than any effort to limit FOIA rights which I think would be a serious mistake for various reasons that I'm happy to elaborate on as well. I believe much more promising reforms seek to reduce the need to resort to FOIA by requiring or incentivizing agencies to meet other information needs more head on. That is finding tailored mechanisms outside of FOIA that would deliver this to their to the constituent population. So this approach could I think reduce maybe even vastly the number of FOIA requests that are made and free up FOIA offices resources to better serve FOIA's core mission and potentially would serve the private interest better as well and could lead to some agency efficiencies. So the obvious example that you're already thinking of now that you've been hearing me is discovery in some agency proceedings like removal proceedings, EEO investigations, some benefits applications could these could alone eliminate the need for large swaths of FOIA requests. It could also improve the fairness of those proceedings and could empower those most familiar with the records to deal directly with any disputes over access. Another possibility in some contexts is to eliminate the need for individuals to request records only to then include them in an application they're submitting right back to the same agency. So if the agency already holds certain records that the applicant needs and knows they exist the applicant could for example have a process to designate that they're relying on a record the agency already has. This dynamic exists to some as to some request that immigration agencies social security and the veterans administration. So this is what I call request and return and there are individuals who are held up in their bids for for example naturalization by a year or more waiting for a document that they are just going to return to that same agency. Another promising avenue for meeting the needs of first person requesters head on is actually affirmative disclosure. So this might sound kind of nonintuitive because these are personal records that have private information. But for example online access to medical records something that's already very common in the private sector could be an opportunity for eliminating the request for tens of thousands of medical records a year at the VA. The VHA is already revamping its electronic health record system patient portals common to the industry may alleviate some of that burden. And then finally there are some agencies that are already creating separate request processes for certain records that are often needed by individuals. So for example the IRS has a completely separate system for requesting your own tax returns. None of those requests go through the FOIA office. They're not processed by a FOIA officer. They're not counted as a FOIA request. More agencies could use this strategy for routine documents that really aren't the kinds of requests for imagining that is to say there is no reason you cannot submit a FOIA request for your own tax returns by the way. You certainly can and no one of the IRS is saying that you can't do that. But there's a separate process that's much more efficient and straightforward and so everyone avails themselves of that opportunity. So for example the Social Security Administration has what appears to be almost a completely separate process for getting SS5 and NUMIDENT records those original applications for Social Security numbers. But nonetheless counts every one of those requests as a FOIA request. I actually think that it would be meaningful to separate out what is and isn't FOIA. For our conversations about resources, our conversations about volume, our conversations about FOIA policy. And I think it muddies the waters over any debate about whether FOIA resources are being well spent when we're including those sorts of separate processes within the FOIA ambit and counting every one of them as a FOIA request. So with that I'm going to stop and I will look forward to your questions and comments. Tom. Tom Sussman. Great research. Very helpful. A few comments. First is you talked about in treating these as FOIA requests that muddies the water and my recollection is that was the intent from the agency perspective because going back these have to be joint FOIA Privacy Act requests because unless they join the Privacy Act then there's a fee, there's exemptions, things that don't apply in a Privacy Act request. But you join it with FOIA because of the time limitation and the enforcement mechanism. But at some point my recollection going back is that the agency said, aha, we can undermine the transparency purposes of FOIA by having all of these tremendous numbers of requests that we have to do, get more resources, show that we're complying more because we do routinely give this information out. So I think going back to anything that invokes privacy shouldn't be FOIA just as a simple, I mean Justice Department could give this as a reporting guideline. Would then allow you to do more accurate research and allow us to figure things out. That's one point. The second is there's the criminal justice analogy of the Brady Act, young woman decision. So if you're facing a criminal prosecution and the prosecutors don't turn over the file, you win. That would be a pretty easy way to deal with things like immigration where you have to wait for a year before getting any results or get deported while you're waiting for your file. This is what you would call due process reinforcing. And then the final question, we've known about these issues for a long time. We have VA representatives and immigration representatives on this committee. Why have agencies and the executive generally been so resistant to these special cues, special processes, proactive measures to be able to do a more efficient job? It seems so intuitive to those of us hearing your analysis that you sort of wonder, why are we doing things the old way? Thanks so much for those comments, Tom. Let me say something briefly about each of them. In terms of the first one, kind of the intentional muddying of the waters, I can't speak to intent the way you can, I think probably, from where I'm standing, but I can say that, for example, Europe, which just adopted GDPR, has a completely separate process for requesting your own records. So almost all European countries have a different law about FOIA and the Privacy Act, but they're actually different. It means that when you're having a conversation about open records requests, freedom of information, nobody's talking about these kinds of requests. And when I have done some presentations about this work in Europe, they all just look completely confused. And I think it really speaks to the fact that there is a way to separate these things out, and I think it would be useful for us to start to work on that project. Some of the examples that I'm using are even easier, though, than what you're suggesting. So for example, at the Social Security Administration, when you're asking for your SS5 records, there's a standard fee, there's a separate website request process, there's separate information you submit. It just doesn't look like a FOIA request. It's not billed as a FOIA request, they're not counting hours, it's just every one that you get is X number of dollars, it's not very about just like 20 bucks or something, right? And so they have a routinized way of dealing with it, they just are counting it all, right? So I think some of these are really easy to separate. We can start with the lowest hanging fruit, some of them are more complicated. I'm not saying this is administratively simple at this point of where we are, but I do think it is a worthwhile project and it's something that we're seeing as the trend across the world. On the Brady question, of course the Supreme Court has never held that in civil proceedings there is a due process right to discovery, much less than agency proceedings and so as a formal matter, a Brady-like rule simply doesn't exist right now. That is not to say that we haven't had strong recommendations for administrative discovery coming out of ACIS and other bodies, and many agencies that have successfully adopted administrative discovery proceedings knowing that it is in fact possible. Why agencies aren't moving in this direction? Again, I hesitate to speak on behalf of others who would know these answers better. I think that these are, from my understanding, these are types of strategies that agencies are thinking about. I think there are some very, especially in FOIA offices. I think oftentimes part of the problem is there's a budgetary problem, right? You take money that used to be FOIA money and now we need like more money for trial attorney time and more money for immigration courts. I know at DHS in particular the concern over overburdened immigration courts is so strong because we're having years backlogs for people with asylum claims to get a hearing at all that putting more work on the trial attorneys and the immigration judges is something that would truly need a resource investment. Now, if we look at the budget overall, would that resource investment maybe be smaller than what we're doing now? I think there's an argument that it could be, but I think there are, there are, from what I'm told, there are administrative hurdles to getting to that sort of solution. That is not to say that I don't think that they're not worth pursuing. And certainly, I think this is an area where where, where, you know, even Congress could have a role to play in some of these solutions because those mandates or even budgetary allocations can make a huge difference. This is Melanie Peste from Justice. I just wanted to address the first point about the tracking of first party requests separately from FOIA requests. If we have had since 2007 a really clear delineation specifically along the lines that only when the Freedom of Information Act is utilized in any way in the processing of a request is it counted for purposes of the annual FOIA report. Before that, the exact opposite had occurred in agencies like VA, for example, used to report that they had millions of requests because they were counting all the requests that they got from veterans for their medical files where they were purely being processed under the Privacy Act. So I had the same concern that we're talking about here that that's skewing the FOIA statistics and so we drew a line between requests that are processed entirely under the Privacy Act. If FOIA is not touched at all in the processing of the request, it does not get included in the annual FOIA report. I think what's, what is trickier here in the US versus European countries is that of course our Privacy Act is so narrow and has big exceptions. So even though you're a first party request, if it's a law enforcement file, for example, it could be totally exempt from access. So those requests become FOIA requests. And then the search limitations are quite different under the Privacy Act versus FOIA. So a lot of requests end up being processed under both Privacy Act and FOIA. So that's why it's, it's trickier for us. Yeah, and I think Melanie's comments really highlight the need for some of these areas may really require a congressional intervention. Right. I mean, I think some of these things, to be clear, agencies can be doing on their own. But I think there are other areas where there really might be a need for additional legislation. Bradley White, and I want to make it clear before I go any further. I'm speaking for myself and definitely not the Department of Homeland Security here. That said, I did seven years at ice. So I'm incredibly familiar with these immigration records that you've talked about. And we most definitely apply both the FOIA and the Privacy Act to these records. And while I know that the processes at ice and USCIS would love to see that constantly increasing workload go down, there's still the issue of the information that is exempt. And so forgive me for my ignorance here. I haven't done discovery in ever. But would there be a mechanism in some kind of discovery process and immigration proceeding to exclude information that is exempt from the FOIA? Because within those immigration records, there is a ton of information that people just can't get. You can have a regular immigration file that may have your application for benefits or may have something else, but it could also have the report created for the immigration enforcement operation that caught a person. There's tons of other information included in that file beyond just your individual records. But because a person was caught up in a particular operation, all that other information winds up in the file. I can tell you, we've seen immigration files that take up three or four Redwells that go this high. And whenever you see that, you know there's a ton of sensitive stuff in there that definitely cannot go out. So while reducing the workload would be great, there still needs to be a mechanism to protect this information. And there is a place for FOIA there. Yeah. Absolutely. So in regular civil discovery in federal court or in state courts across the country, privileges are applied routinely to certain privileged information. Now those privileges in civil discovery are mostly developed by common law. So we have kind of attorney-client privilege or work-product privilege or patient-doctor privilege, those sorts of things. Those are litigated routinely in discovery processes and I don't think there's any reason that rules could not be crafted to have privileges that apply particularly in these contexts. So for example... Well, but I'm not speaking about privileges. That's exemption five. I'm speaking specifically about law enforcement sensitive information. So the way the agents approach a situation, the way they take someone down, the use of informants, all those things wind up in an A file. Yeah. And so that wouldn't be covered by a traditional privilege. Correct. So I think in this particular context and let me not wade too far into waters that are maybe out of my depth, but I will say in this particular context, I think what... There's various ways you could imagine a discovery right. So for example, DHS could promulgate its own rules, right now. There's nothing stopping them from creating its own rules about discovery and immigration court which could delineate each category that would be exempt or could simply wholesale incorporate the FOIA exemptions into their discovery rules. All I meant to do by way of analogy was to say that we already have some information that's exempt from discovery in civil proceedings in other contexts. Those things are litigated with the use of a privilege log or a log of exemption in federal court, essentially from discovery. It looks not very different from, say, Avonindex. And so you could use the same mechanisms to have the producing party, the trial attorney and immigration court redact those things that they think are withheld, explain them if there's a contest and then have the immigration judge make a decision just as a civil judge would, right? A judge in a civil case would. So I think there's and you could have an appeals process for that just like you do also in civil discovery. So I think there's no logistical reason why the security exemption concerns that the department, I think, rightfully has could not be incorporated into a discovery regime if either wholesale by incorporating the FOIA exemptions or by promulgating their own rules about what information won't be available in civil discovery. To my mind, it would probably be better to just incorporate the FOIA exemptions partly because at that point you won't then end up with people also making a FOIA request because they know they'll get the exact same information under either process. Kevin Goldberg, American Society of News Editors twice removed from Hal Cross but apparently a long way to go in terms of accomplishment. I guess my question is and I apologize if I missed this. You cut off at basically three agencies. Why did you choose that cut off and were there others that were sort of close or was it, was it in part because there was a huge gap to the other agencies that had the same first person request percentage? Because I guess the next question is if we decide this is very important and I do think it is I think one of the reasons that I really enjoy this is it's things we all kind of knew but it quantified them really well. It's which I had never seen before. Where do we go next if this is really something we're going to pursue? Yeah, absolutely. Thanks. So I started by going through the entire list of agencies and their components separately for trying. I will just be transparent. I was looking to study those agencies where there's lots of first person requesting. Right. So I did a separate study where I was looking to study agencies where there were lots of commercial requesting. So my goal was to find those agencies knowing that they were out there. So based on the work of the agency I tried to make intuitive guesses about who would what agencies would have a lot of first person requesting and I made requests for data at those agencies. I think in this study and I can go back and look at the exact number I may be submitted about 25 requests. The question was about usable data that came back. So I can say since that time I have found other good examples across the federal government because for the book that Alina mentioned that I'm working on which will not be published this year. But I appreciate the optimism. I've been trying to tell a more complete picture about who's requesting across the federal government. So for that research I've filled in these last couple of projects with another 80 some requests. I'm up to about 50 agencies of data now across the federal government. And so I can tell you that there are other good examples. State for example has actually and you find pockets of immigration everywhere suggesting the need for some serious look at immigration procedural reform. But regardless state for example you see this is too preliminary for me to be like maybe cited about it but because I'm still staring at this data maybe about half of them are first person and state is huge. Right. So I've got a couple others that I can't pull off the top of my head but I will say that this is a project that I'm working on fleshing out the rest of in the hopes that in the hopes that I'll be able to tell as complete a picture as I'm able to about who's requesting across the federal government. I will also say that just with DHS alone I think we can safely say that first person requesting is the biggest single cohesive group of requesters across the federal government and is more than half. Just just looking at these agencies alone. I'm just going to make a really quick comment that I'm going to let Jason go next. So I just want to point out to everyone and we're not tooting our own horn but we actually see a lot of first party requesters come to OGIS for assistance. So as a result of that we actually were in touch with USIS in particular their FOIA officer and she suggested that we pull together an immigration forum and we hosted one right here in McGowan last fall. It's available on YouTube NARA YouTube where we actually invited several a variety of different agencies who actually get immigration related requests. So we had we had State Department we had all the usual players we had USIS we had ICE we had CBP we had State Department we had HHS and but we were really our purpose was to try to educate requesters right who are scrambling trying to figure out how do I get access to my information and where do I go because it's such a complex web. We also published FOIA Umbuds Observer which is available on our website which kind of explains to requesters and to everyone in the public this is where I go if I want this kind of document but we definitely see that very very often in our work in OGIS. The only other comment I was going to make I wrote a note to Melanie but I this is the one experience I can share as a longtime litigator of civil litigation versus FOIA litigation the big difference in civil litigation is there's a great vehicle called the protective order and we don't have that in FOIA litigation and we definitely I think need to explore that a little more and in different contexts because I think it really makes a big difference. I see a lot of heads nodding so that's good. Jason over to you. Thanks I want to pick up on Kevin's point and ask a process question about your own research in your excellent article I note it was published in the Yale journal in June 2018 and footnote 74 I'd like to read with my apologies for anyone here including our DHS representative at the footnote you said I filed FOIA requests with each of these agencies on April 16, 2016 USCIS acknowledged the request but never responded ICE responded by directing me to the publicly available version of their logs on their website I feel I filed an appeal on June 23, 2016 to which no response was ever received CBP responded by directing me to the publicly available version of their logs on their website and then you filed a June 18, 2016 request to which no response was ever received this thus as of this writing none of the three provided data beyond what is publicly available on the website and thus however imperfect and incomplete I resorted to reliance on public data this leads me to note that we can all appreciate the irony of a FOIA researcher filing FOIA requests and not getting information about FOIA statistics let me ask three questions first, did you ever hear from any agency that you filed a FOIA request for second, have you used OGIS to facilitate your research and three, since you are a expert litigator given your experience why wouldn't you file a lawsuit against DHS or any other agency that's not responding in a timely fashion those are all excellent questions no, I never got data from these three I do have a lot of requests you know for logs mostly I'm requesting FOIA logs so over the years I've now had quite a few of them so it's difficult I actually have a research assistant who does nothing but my requesting for me so she just does manages my request and follows up and bugs people and appeals and things like that so why not fight every one of them at some point it's just time you know so I try to give I give myself a year long timeline so for any new project I'm starting I give a year before I'm trying to get data to where I start requesting and I cut it a year so at a year I say I'm giving up now I've done everything I can do I did not go to OGIS I did go to some people inside the agency who I know personally and tried and failed and then I do a lot of nagging I do administrative appeals lawsuits are just time consuming and I have a job that I did sue the I got pro bono representation and a public citizen representative and a lawsuit against the IRS which I won I'm still getting data sort of and it's just it's difficult I think I will say this I think that overarching this is that agencies do not keep their data in one form or format they don't all keep the same fields they don't all keep the same data they don't use the same formats they can't produce it in the same ways I ask for a lot of fields there's a lot of things I'm interested in about the FOIA logs most of which agencies have to keep in some way or another but it's not all in one database often or they can't pull it in one database or they can't produce it in a way I can read it so I think there's a big technology barrier in some cases and the other thing that's true is that and I when I was on this body last term pushed for a recommendation that was eventually adopted that agencies keep and publish a uniform version of their FOIA logs I know that this sounds like just my personal project but I actually think that if we all had better data on who is using FOIA and what and we could aggregate across the federal government and it was being kept in the same way that would vastly increase our understanding about where we have opportunities for improvement and so that's actually something that Congress could legislate like a requirement that FOIA reports include the actual logs and to have certain fields that are included within that I think would make a huge difference for all of our understandings about how this process works so I don't want to kind of blame any particular agency I really think that right now they keep the data they're required to report very well and then the rest of the data that they keep is kept for their own internal purposes and it's sometimes very difficult for them to produce it to the public or I simply don't end up in success this is this is Melanie Pasta again from DOJ I just want to just it went in response really to Jason's comment I think it's important to remember DHS since DHS was the example used from the footnote you read they process hundreds of thousands of FOIA requests every year so it's not like they're just sitting around not doing anything under FOIA and it's they are processing hundreds of thousands of requests and the basic premise under FOIA is that we do them first in, first out so anytime somebody says well did you did you do this did you do that are you it sounds like you're implying well there should be a way to jump jump the line if you make a make a make noise or and obviously if you file a lawsuit an unexpected consequence of that I think a negative consequence is that it can make you go to the front of the line but of course that's not fair to all the hundreds of thousands of people at DHS who are waiting for their record so we have to be careful when we just talk about well you had a long delay it is unfortunate obviously it's the biggest problem in FOIA we all recognize that's why we have this committee but it's not a question of is there something you can do to somehow jump in front of everyone else because that's not right either Patricia before I get to you I just want to give the folks on the phone an opportunity to chime in I don't want you to think I forgot you so Ginger, James, Joan, Michael or Suzanne any questions or comments yeah hi this is J. Michael Morrissey I'm sorry after you Jen no go ahead Michael yeah this is super super helpful research and I think like some other people said I think was something that kind of echoed a lot of what we've seen but kind of maybe didn't have the numbers to kind of back up one of the things I've kind of noticed is that there has been a few attempts I think like the FDA I think they just actually had another announcement just this past few months where they started proactively releasing more material requested by requesters the first party requests but this one you know sort of frequently commercially request information that now instead of requesting people can just go to a portal and download proactively I'm curious if some of these sort of alternative resolution mechanisms do you think that it could be a successful path forward or if you think there would be some challenges if there was some inducement for agencies to set up sort of alternative paths beyond FOIA and say hey first go through this path and see if it gets you what you want maybe it's quicker maybe it's hopefully automated on the agency's side while not reducing the sort of requesters right to if you're just satisfied with that response then to file a formal FOIA request for appeal I mean I guess instead of sort of saying okay this is no longer part of FOIA this is part of alternative mechanism but you still retain your FOIA rights is that something that you you've thought about terms of sort of that balance of letting people not give up rights but then really encouraging people to use an alternative mechanism and is there any sort of ideas you have to make that successful yeah that's a great a great question because I think it goes goes to the heart of certainly an anxiety I have about how we might change things which is that I I don't actually think it's the right way to go to limit anyone's ability to file a FOIA request if that is the route that they prefer I do think that we can make routes that are so much better that nobody will prefer it in those particular situations and so I don't actually think we should ever be in the situation of recommending that we first have to go jump through certain hoops and then you can file a FOIA request but when I talk to people who are doing this kind of first person requesting so mostly lawyers who have you know volumes of clients they're requesting their own clients records so those are you know on behalf of their first person requester they don't prefer FOIA they just don't have another option and so I do think that if there was another option now would there be an adjustment time where everyone's like do we get the same thing do we not get the same thing should I try and do both just to be sure yes I do think it will take time right for people to trust that an alternative system is giving them the same information that they could get under FOIA that they're getting everything that it really is better but I don't think people want a separate process if they don't need one I think they want clarity on how to get you know I'm thinking of social security right now where there's just like a separate way to request SS5 documents it doesn't seem like there's any reason for anyone to like write a letter and send it to like FOIA at ssa.gov right nobody wants to do that because there's an easy way of getting the thing that they want with a flat fee that they know what it is and it's very clear so I think in my mind your suggestion does raise some anxiety for me about the idea that we might reform in a way that precludes people from filing a FOIA request because there is an alternative process or makes them go through certain hoops first before they can do it I just think we can do this in a way that nobody will want to when there's a better alternative I hope that answers your question was there anyone else on the phone who had a question for Margaret no okay Patricia did you have this James I had a question but it was similar to Michael's stuff I'll just say thank you Margaret for your research it was really fascinating thanks Hi Margaret Patricia went from National Labor Relations Board it's very nice to meet you in person because your FOIA request came into my agency and I can now give you a personal apology for how because it took us a really long time and your name was on my you know top 10 oldest so it killed me it killed me that it took us so long to get to it but it kind of goes along to what Jason was asking you know there were just some technology issues and staffing and we did the best that we could so anyway it's nice to just thank you just tell you in person I'm sorry I have more data now yeah I mentioned when I said I think that there are real there are real barriers because this information is not kept uniformly and I think that this is an area where I think it was fantastic that this body was able to adopt a recommendation for the uniform production of these types of this type of data I think it's something where actually this would be a very easy and appropriate way for congress to also just legislate a reporting requirement that would that would ensure uniformity because right now there's no way to coordinate across agencies about how we're keeping this information right I will also be happy to provide a a set of slides with the labels so that you can distribute it after Alina I apologize for sorry about the whatever technological glitch caused that I apologize Margaret Ryan from Treasury so first thank you for the the shout out for IRS I have to IRS instituted a process several years ago to encourage access to tax records directly from the IRS outside of the FOIA process I think it's a good it's been a good and I from my observations been a challenging challenging to implement but it has resulted in a decrease in the number of FOIA requests for tax records okay one thing I would suggest encourage you to look at so you've you've focused in your research on who's submitting requests I think it's important also to look at who is processing those requests as well with IRS FOIA requests are processed at the field office that the tax records are located by the individuals that have access and have the file in front of them my experience at DHS similarly you know files are kept in one location they're processed primarily by FOIA staff at the agencies and so it would be helpful to understand where in agencies records are being processed and who is doing that work and then similarly any change you make to the process for going outside of the FOIA process you know we have to ensure that you know people have additional reasons you made the point earlier about immigration attorneys adding to their workload I think that is a big concern and then lastly on a legislative front I was glad to hear you say there's a role for Congress here and the privacy act does not afford access rights to non-citizens and so their only right of access is through the FOIA and so I think I know that DHS through policy had extended access rights to non-citizens I don't believe it's I'm looking at my colleague at DHS I don't believe that's the policy currently so that is an area I think right for for Congress to look at thanks those are all very helpful comments okay anyone else before we let Margaret go Tom Sussman again just before you go you and I've had this exchange a few times but you in your introduction you always talk about the origin of the FOIA and intended for use by media and you measure present out of value productivity by media use but and your first article of course slam business users I think you have a good point a little hard I think you have a good point in terms of recovery of fees but my reading of the legislative history is that the issue of secret law and protecting businesses whose information request was a large part of their original history so it was it was certainly contemplated by Congress that there would be businesses would benefit from and use a Freedom of Information Act and I frankly you missed that completely in your first article so I think we so first off I agree that the legislative history has references to business use of FOIA to discover kind of policy government actions government enforcement I do believe in my first article I acknowledge that some businesses may be using it in that oversight way but that my research shows that businesses are largely using it not for oversight purposes not to discover what government is doing but to discover what each other are doing and so I think that absolutely businesses could be using it in its intended way and once in a while they do but mostly they're not now on the other hand I think there's lots of good reasons to allow business to to promote to have businesses have access to these records it may improve competition it may improve the marketplace it may even you know there there are some government oversight purposes it may allow them to participate as they should be able to in the democratic process of rulemaking of commenting of whatever else may be happening in an agency but largely those businesses are closely holding that information for their own private benefit and not for a public oversight benefit and so in my first article what I tried to expose which you and I may still differ on and I'm okay with that is that I believe again this is sort of a mismatch issue businesses are largely using it for reasons not imagined and and in fact largely may not be this may not be the best way of getting this information to them and I think that affirmative disclosure played an outsized role in that regard because business information doesn't have the kind of personally identifiable information that might invoke privacy concerns and so there's a lot of opportunities I think in the commercial arena for for agencies to promote information delivery in other ways that is not to say that I think that they're so I don't think that I I'm certainly not against business use of FOIA in any way I just think it's not working very well as an information delivery mechanism one off requesting was meant to be kind of an idiosyncratic thing right you hear about something there's a story out there there's a scandal out there there's something you're curious about the news is trying to uncover what's going on what is this agency doing saying these are the records I want makes perfect sense in that context when you're writing a letter every day saying give me another of the same form that I got yesterday but in a different you know enforcement incident or whatever it is isn't doesn't make sense right and so I agree absolutely that businesses can be using it in a way that was intended by Congress and it's just not what we're seeing as as volume once in a while sure but the volume of these requests is not driven by that this is Tom Sussman again not to prolong the discussion but for the first decade decade and a half until agencies lost all these cases relating to enforcement manuals advisory opinions guidance documents secret law for you that's how businesses mostly use for you and all of that's now proactively disclosed so they don't need to use it anymore and I agree with you entirely on the competitive issue so I just wanted to say that I think it served a purpose in a lot of litigation where the courts had to order Justice Department IRS SEC FTC to make its secret law public and now it's all public and I think that that's a perfect example of a success story in terms of being able to preclude the need to rely on FOIA for things that the public has a strong interest in okay great Margaret and if she sticks around during the break perhaps you could go and ask her some other questions so we're at our 1115 a little past 1115 we're going to take a 15 minute break I want to remind everyone there are restrooms immediately outside the theater also downstairs next to the Charter's Cafe where you can also purchase food or drink but you may not bring it back to McGowan Theater please come back promptly at 1135 and we stand adjourned for recess all right I think we're going to get started again so if I can invite our committee members to return to their seats that would be great we're missing Ryan so you know where Ryan went oh he's coming back great okay so welcome back everyone everyone had a good break thank you again to Margaret she was fantastic that was a great presentation so we wanted to a lot a lot more time today than we normally do for subcommittee reports I know there's been a lot of activity folks have been very very busy extremely grateful for that oh and Melanie where's Melanie does anyone see Melanie she just popped out okay well I'll just talk very slowly so we're going to hear from each of our three subcommittees today and this is Kirsten's order it's no particular order I think we're going to try to shuffle it around but vision goes first and then records management and then time volume the subcommittee co-chairs will update us on the work that the subcommittees have done in the interim Melanie I'm talking very slowly to give you a chance to come back where they are as of today and raise any and all issues they want the committee to discuss and hear about and and consider so this is a great opportunity for us to do that when we're all together by the way do we have folks back on the phone ginger checking in yep I'm here great James no James going to want yes I'm here oh good thank you Joan are you here yes I'm here okay Michael Michael Morrissey no Michael okay hopefully he'll join us again Suzanne are you still there I sure am okay great thanks okay Michael please check in when you come back so the vision subcommittee report I'm going to turn it over to Chris Knox and Joan you guys will decide who's speaking okay thank you Chris Knox I'm gonna kick off and then hand it off to to Joan we met shortly after the last full committee meeting and committed to a bi-weekly cadence for our subcommittee we made I would say the majority of those we weren't able to make the the last one or two of them due to vacation schedules we decided the best path forward after we finalized our mission prior to the last sub at the last committee meeting we decided the the best path forward was to take that mission and break it into its logical five sub components and then assign an individual leader for each one of the sub components one of them actually got rolled into another so we ended up with four sub components I'm gonna list them and announce the leader and then ask that each one of them give an update on the on the sub sections so the first one was raising the priority of FOIA within the executive branch that's led by Joan the second one was reconsidering the model of OGIS within the FOIA community that's led by Patricia the third one which rolled into Jones is increasing accountability for FOIA and transparency that ended up getting combining with raising the priority so the the now third one is managing expectations between agencies in the request or community that's led by Kevin and then stressing the need for increased and continued financial support for agency and FOIA programs that's led by Michael so I'm gonna turn it over to Joan to give an update on the on the priority sub subsection and everybody let me know the first subgroup they're raising the priority and increasing accountability and we've had a few meetings and we are working to establish a set schedule going forward we had a very successful last meeting in which we discussed and set certain levels that we see the priorities falling at particularly in the public level congressional executive branch agency and staff at this meeting we also discussed our information gathering approaches and the decision in the end was that we would dovetail with other subcommittees written surveys as well as potential interviews at the ASAP conference the participants from various subcommittees met with ASAP unfortunately I was unable to participate on that call so I will let the other subcommittees brief out on the results of that conversation but particularly for our group we would utilize of the written questionnaires as well as these potential in-person interviews to target these different certain levels that we've established and you know collect information hoping to ensure that we don't have any duplicative question or information gathering by working closely with the other subcommittees additionally we develop certain subject areas that we are looking for when we're gathering this information this includes but it's not limited to the FOIA report training and qualifications request or status FOIA public liaisons and records management and then lastly we will continue particularly in our upcoming meetings to develop specific questions but with that as I've mentioned before we're going to take a close look at what is already been set by the other subcommittees and see what we can utilize from what other groups are gathering and that's that's it if there's any questions I can answer them questions from anyone so we'll move on to reconsidering the model of OGIS Patricia for relations board so to begin our project we needed to lay the foundation regarding our knowledge of OGIS so we reviewed the OGIS annual report as well as the Sunshine Week the event celebrating OGIS's 10-year anniversary we also had a meeting with OGIS then Tom Sesman was kind enough to link us with Toby Mendel the Executive Director of the Law and Democracy Center who was just a font of information and he gave us guidance as to some international models for us to look at so currently currently what we're doing is we're looking at international FOIA ombudsman models we're looking also at state FOIA ombudsman models as well as federal agency ombudsman models so we're going to look at all three of those and you know, compare our research and so that's where we are on that project. Thank you. Now, managing expectations. Thanks. Yeah, we fell a little bit behind to the point where I feel like I'm going to after this have those dreams again where I'm back in school and the exam's coming this time I promise I'll be wearing clothes. The good news is my committee is probably tapping into the ASAP process as well because we had talked about obviously managing expectations requires deter you know identifying what some expectations are before you manage them. So we had kind of especially because I'm part of the time volume subcommittee that is the sub subcommittee of that that you'll hear about that is doing some of these surveys realize that we could do utilize the same process. We have not come up with our questions yet but the good news is we absolutely have a deadline to do so. So I will be reconvening my my group within the next week to start writing these questions. Thank you. Was Michael able to join on the phone? Michael? Don't hear him. This is Joe and I can give you an update from the last time we had our full group since Michael hasn't had a chance to rejoin us. John that would be great. Thank you. Great. I don't think he has. So it's just apologies this is the update from the beginning of May. But at that time this group was working at scheduling their ongoing meetings and Michael was developing pulling together preexisting information and he was drafting a consolidated document that they can use to work off of. Just to note this group was also working very closely with the time volume on recommendations for increased resources. So that's another aspect of our subcommittee that's working closely in conjunction with the other group. So maybe if he comes back on later he might have an additional update but that was the update from approximately a month ago. So I'm sorry Liz it just give me one second this is Alina I just want to ask a quick clarification. Maybe we should just brief the rest of the committee on what we mean when we say we're going to go through ASAP because that sounds like such a shortcut and I feel like some folks don't know what that means. Should we talk about that? Sure. And I wasn't able to join the last Oh okay well Kevin we'll talk about that. Kevin were you on that? I suppose I can talk about that. What we're talking about is the ASAP training conference which is Kirsten from July 22nd through 24th. Right. So there were as you'll as you'll hear more about in the time volume subcommittee and maybe I'll just I'll just kind of preview a lot of that now anyway and just not retread that ground when we get there. You know we had done in time volume a series of questions and they were sort of threefold they two were sort of you know the scalable question of to both agency officials and separately requesters which are you know on a scale of very much not very important very important or don't care you know or you know extensive problem whatever you know kind of pick one answers and others were more open-ended questions and we're going to try to figure out a way to work with ASAP especially on the agency officer side to to you know use them as a vehicle to reach as many agency officers as possible at one time and we ran into a couple hiccups there after meeting you've already heard them that a couple of these subcommittees have met with Claire Shanley and others from ASAP to discuss this it became apparent that we couldn't just sort of send this out through the FOIA advisory committee I believe for paperwork reduction at purposes or just through ASAP because there were some other logistical problems there so what we decided was we would take this back and make it more of a an open-ended written type question we would reduce the total number of questions at least on the time volume subcommittee I'm working on reduce the number of questions and make them more open-ended and kind of just commit to being at on site at ASAP when it meets here in DC to have access to as many access professionals as we could in one place it may it may not be an entirely scientific process but I think we've realized that we're also moving this from more of a a scientific quantifiable to more of a quantitative questioning to a qualitative questioning where we're going to come out with I would hope some themes that we will then build into recommendations but it's not the ASAP I definitely want to be clear it is not the ASAP survey it is using ASAP as a means of getting access to as many people as possible in one place in one time and again the timing of it could not be better because it forces us to have a deadline that is soon will require action and of course have us coming out I think with a good body of research with a lot of time to go forward and move on great thank you Lizette this is Lizette could tell you so I just wanted to follow up on what Joan said Michael Morris these committee we did meet I'm on that one with Patricia as well and we started talking about just preliminary issues surrounding issues financial more financial support for FOIA programs and we're going to be scheduling the next meeting soon but we did we're able to touch base and there is a lot of overlap with the committee that I'm on the the vision and subcommittee in terms of looking at you know managing volume of requests and within the time limits that we have so I all speak about that one more when we get to that okay great any other questions from the committee for this subcommittee vision this is Ginger I have a question sure go ahead can you hear me yes okay great first I apologize for not being more active in things for the last few months I've had some personal stuff going on that some of you may be aware of but I am back now and I had a few thoughts on a couple of things that were just said first on the question of oh just this role and what other offices are doing especially around the country other FOIA ombuds offices I would be happy to connect with people offline about that because in as part of starting my own office here in Oregon I have done a fair bit of research on it and I do have some good contacts with folks who are at other similar ombuds offices around the country so if that would be helpful please feel free to reach out to me and second I had a few questions on the ASAP survey first the presence at the ASAP conference what is that going to look like is it is it going to be like a table at the conference or a panel what were the plans for that yeah ginger this is Kevin Goldberg first of all thanks for offering up that research I was just talking with Patricia about that I'm on her sub-sub-committee and as I've been calling them and we were just talking about some of that and that sounds like it would be really helpful as to what we're trying to do to cut through to the core yeah again with regard to ASAP it's not a panel I would say it's probably again it's an easy shortcut to call it the ASAP survey I would say it is our survey utilizing ASAP just so we we are clear about it which I think means you know I think what we really talked about as Claire has been gracious enough to offer us and Kirsten as the president of the organization has been gracious enough to offer us probably a table at the event where we can just sort of be there and hey you know hey we really need some help and this could help improve your jobs and stop by and talk to us I think one thing I'll preview now that we may want to talk about here is we've all done a really good job of I think within our or our individual groups that are trying to do this survey of cutting our questions down to a minimum I think you know I will talk again about time volume or maybe even completely preempt that to say that Sarah has been writing the requestor side and I which I don't know if we're going to be able to run through the ASAP event because there may not be enough requestors there we might be looking to Mike Morris Michael Morrissey and others about reaching out to the requestor community through their sites but I've been doing the agency questions and I think we had sort of three sets of almost eight or nine each you know and certainly about 25 questions and we've cut it down to less than 10 but of course if we have too many different individual surveys going through subcommittees we're right back to an untenable portion so we obviously have to manage that across all of the three subcommittees or any of these subcommittees that are using ASAP as their vehicle but it's definitely a table okay yeah I think that's really great if you need someone to sit at that table for some portion of time I would be happy to because I'm going to be at that conference for the full conference it may also be useful to connect with the panelists at the conference so they can plug the table and just remind people to go out and fill out the survey I'll make sure I do it on the panels that I'm on but maybe Kirsten could help to coordinate that so others can do it as well to maximize the amount of that's awesome yeah I'm happy to do that and I've carved out my schedule I think or at least blocked off my calendar to say is as long as I can be sitting there that those days just plunk myself down as well great great yeah let me know if you'd like some company because I'd be happy to do it I'd love it all right Ginger anything else nope that's it for now thank you okay anyone else have any questions for the vision subcommittee going once going to Tom do you have any comments because you're on the vision subcommittee okay so moving on to records management we have a robust presentation that Ryan is going to kick us off with going to kick it off here okay Ryan from treasury so thank you for the opportunity to provide the committee with an update on our work on the records subcommittee so I first wanted to let everyone know that the records subcommittees met formally twice since our last full committee meeting and our work continues in this area and we're scheduled to meet on Thursday of next week as I mentioned during the last full committee meeting or I think Jason mentioned during the last fully full committee meeting we met with the federal records officers network which is a group of federal employees that are records officers it's a diverse group of folks different grade levels different agencies some at the bureau level or they're like a lower agency level and some at headquarters level and they meet regularly to discuss records management issues and so we approached them and met with them on April 9th provided them an update on the work of the FOIA advisory committee about what our goals were and what were we all working toward and specifically we wanted to start a conversation with that group about records management and FOIA and to get their feedback about how records management and FOIA could work better together to improve both the administration of the FOIA and then also the public's ability to identify and access records and information so we asked a number of questions quickly ran out of time to collect all of the responses but the fron has sent out our questions to their member base and we hope to get the results of of those questions soon and we're actually Jason and I are returning to the fron meeting next Tuesday or next Tuesday to discuss with them those questions again to get their feedback and we look forward to providing an additional update on kind of what we learned there and so some of the survey some of the questions we asked kind of expanded on the records management self-assessment that NARA and that I believe I just participated in and developing this year we asked questions like what agencies can do in what ways can agencies do a better job to make it easier for FOIA requesters to understand where records are located or where they might exist in the agency we asked questions around we're asking again we're asking records management folks do they believe their FOIA officers are aware of how email is preserved at your agency we asked a question which we'll talk about in a second was asked in the chief FOIA officer report what improvements can or should be made to your agency's search capabilities with regard to records also we asked about whether those records management folks felt that they that NARA had a role or do they have a role in educating FOIA professionals about records resources within the agency so we've asked a number of questions we're really interested to see the response I believe we got some feedback from the FRON leadership that we've gotten a few responses hopefully we'll get some more before the before their before the meeting next Tuesday so we look forward to updating committee on on the work there as well we also Jason I wanted to talk third about the results of several surveys that we conducted of agency chief FOIA officer reports is you may know the previous FOIA advisory committee made a recommendation that OIP add a question to the chief FOIA officer report and that question was is your agency leveraging technology to facilitate efficiency in conducting searches including searches for email if so please describe the technology used if not please explain why and describe the typical process used instead and so we have taken a I believe non scientific kind of approach and just grabbed a bunch of answers to the chief FOIA officer report to this question and Jason was going to talk a little bit about our observations there thanks Ryan so I think it's excellent Melanie that DOJ took up the recommendation of the prior FOIA advisory committee and added this question in section four of the chief FOIA officer report I spent a happy Saturday reading all of the reports not all of them are in yet of the 2019 reports but a lot are and they make for a fascinating reading the the survey that is one of the handouts that here we got online is simply my attempt to cut and paste the answers to basically every cabinet agency and most not all of the at least of the larger independent agencies and other agencies that are not cabinet departments so it's not a hundred percent it's just it is what it is it's just a cut and paste I encourage everyone on this committee to take a look at the entries and see what you think I don't want to prejudice anyone's own evaluation but let me make the following observation which is that I applaud the efforts of agencies to report that they're using e-discovery software to perform searches of electronic records at their agencies and you can see numerous examples in these reports where agencies have made steps initial steps towards using software that I believe the committee has heard in the past about and I certainly have been an advocate of what is obvious to me in looking at the reports is that the government has a long way to go with respect to what is the coming wave of digital records we have several hundred agencies or components of the government that have adopted the NARA capstone policy on email there will be tens if not hundreds of millions of emails across the government that are in capstone repositories what the e-discovery community that I have been a part of for the last decade or so have been advocating is using advanced search technologies that go beyond keyword searching to deal with this enormous volume of electronic records that in the e-discovery world are routinely searched and so what is missing and what I'm hopeful to have a conversation about is whether this committee can be a forum whether it's from our records management perch or otherwise is to have a a dialogue with agencies about how they can go further along the path and be more mature in their use of existing tools and technologies that are in the marketplace they may not have experienced the need yet for searching across millions of emails for the typical foyer request that's not the typical foyer request that agency receives but the future is coming and because the repositories are growing I think it's there's a a role for us to play in giving advice and try to foster a dialogue so I would urge people to take a look at this not really a survey it's just a it's just a summary of what those responses were and if you have thoughts let us know shall I go on to training or you want to say something Ryan can I just ask one thing Jason for everyone who's on the committee does everyone know what capstone is don't want to put anyone on the spot but if you don't know what it is I'm happy to say that narrow adopted a a new email policy which is voluntary for agencies to adopt but hundreds of agencies have and what it accounts for is it's a different way of record retention about email it's email is signaled out where senior agency officials have their emails designated as permanent at a capstone agency or those capstone accounts are permanent records and everyone else's email at an agency is governed by a general record schedule 6.1 which accounts for it says seven years as the default for program records and so it is a way of capturing a huge body of government records in the form of email and attachments and I think our committee has several recommendations that relate to the fact that the government is very much still in the email business and needs to provide access to what are growing repositories of these records are there other questions about our work here in this area and you want on the phone have any questions okay so this is Ryan again so we'll a fourth I wanted to we also conducted a survey of agency training resources for records management and FOIA staff and that's also in your handouts today and Jason was going to talk a little about observations there well the handout that is here is also from Melody's chief FOIA officer report and what I did is in this case on the front page is just the top page it's just my attempt at merging together or just listing a series of the kind of FOIA training that's out there and that a lot of it is conducted by DOJ and some of it is by other groups that are out there and it is across the board there seems to be a tremendous amount of training going on across agencies I particularly wanted to single out two examples and I put them here because I thought they were interesting one was labor reporting the Department of Labor reporting that as part of FOIA training they had an individual counsel who has a title that includes the Federal Records Act which was something that I was looking for specifically for this Records Management Committee to see whether FOIA and Records Management were being talked about and then I also wanted to applaud DHS for what I considered across the board to be the most fulsome comprehensive set of training courses that are reported anywhere across any of the government and so Bradley I think you should deserve some credit here for the work that DHS has done in training now having said that those who know me knows that I always save the best for last which is that I my criticism of the report so that what's and what is animating a recommendation from the Records Management Committee is that there's a tremendous amount of training but I think that FOIA officers would benefit from a course that is created this is my own view not the committee's view but we're going to it's part of our talking about talking through recommendations a course that would be aimed at FOIA professionals throughout the government that DOJ and NARA OGIS can talk about and whoever takes the lead but a and in that course it would be FOIA professionals learning about Records Management so that they can do a better job of doing an adequate search across agency collections including digital collections including capstone so I think it would be I mean particularly a benefit for FOIA officers to understand capstone but you know there's a broader realm of issues here and so what was absent from the training was any kind of but what I saw was a Records Management module in FOIA courses they may actually be there but I didn't see it listed and we can have that conversation going forward so it'd be one of our recommendations to do a more robust training in whatever form that DOJ and NARA can do before we move on to the last point there are any questions on training I mean not in their heads okay lastly we wanted to sure I have a quick question yes sorry I know it's an outside group training but did you take a look at the offerings from ASAP at the National Training Conference I think that they cover some record retention issues Kirsten would probably be more well versed in this than I am though they are ASAP is listed here and but I defer to Kristen Kristen on on you know what that entails this is Kirsten there are records management tracks if you will and offered every year at the NTC the National Training Conference so it does happen I can't tell you what will be offered this year this is Melanie doesn't NARA it's NARA as the records management agency itself offer training you guys know I would imagine oh of course it does NARA must offer training of course it does on records management the issue for me for the focus here was are they are they themselves offering any kind of course or module within a course that is focused on the FOIA community learning about records management we had conversations with the representative from the chief records officer and from Lawrence Brewer's office and my understanding is that there isn't such a module that has been developed by NARA I myself taught lawyers for any number of years in a specific NARA records management course for lawyers the case for agency counsel and it was I think a well-received vehicle I understand there are changes to the general NARA program of training that have been announced but but nevertheless I we're previewing here a recommendation from our committee that a more robust training for the FOIA community on records management is something that we would recommend all right and this Ryan again are there any other questions on the phone okay lastly we wanted to provide a little little preview of some of the kind of draft recommendations that we have been discussing and these are still being deliberated and we welcome the full committee's input on these well we'll discuss them verbally today and Jason I didn't discuss how we're going to divide these up so I'll I'll we have eight separate kind of draft recommendations currently I'll grab the first one Jason to start so we were looking at again we're looking at records management how it can improve administration the FOIA and so one area that we looked at was section G of the FOIA 552 G which requires agencies to make available certain information to assist requesters in filing for a request like a FOIA got like a guide or instruction manual for that it requires agencies post list of systems and information systems and that sort of thing and so as part of our review of this we've looked at agency websites and kind of done a non-scientific survey of some of the cabinet level and mid-size agencies and to get a sense of how agencies are complying with this element I'll note that DOJ issued guidance I think at the end of 2017 on updating agency websites which had some additional guidance here and so it's been our view some agencies do it very well some agencies there's room for improvement and so we're looking as the subcommittee at this at this more closely and kind of our draft recommendation right now is that agencies should publish enhanced documentation of their internal records management policies and practices as part of their part of fulfilling section G of the FOIA so that may include providing or providing access to or links to agency record schedules so requesters can identify what records the agency maintains records file plans records management guidance given to agency staff information about agency record systems and so for example some agencies post lists of their privacy act systems of records and in some instances we couldn't find the non-privacy act system equivalent what records and what systems do agencies keep outside of privacy act records record systems and then also information about their management of email by capstone and so this is just one area we're looking at potentially to recommend that DOJ supplement guidance or potentially a legislative fix as well Jason you want to take two well we've covered two which is that we will we're talking about recommendation involving training and so we'll we've covered that I'm sorry to interrupt you this is Alina can we just go back to one for a second so I just want to say for my part I have I have not read five five two G in a while so it was intriguing to hear that recommendation and and that thought process and I just wanted to make sure that everyone was aware of exactly what G said do you have it on your iPad by any chance I don't have a connection I could pull it up oh no that's okay I just thought maybe you had it Hampton no I don't I just found it's sort of an obscure part of FOIA that we normally don't read but in terms of a legislative fix what were you thinking about so this is Ryan so I I took a look into legislative history and tried to find when this language was added I believe it was added very early on in in FOIA and I don't believe it's been updated you know it wasn't it did the language I don't believe changed in the recent amendments and so I think I think it you know I think the time would be good to look at this into to to potentially add it add additional language and clarity about what expectations are for agencies I think similarly now that we have a government wide effort the government wide FOIA portal and also the idea act which passed recently which requires agencies to standardize their websites we have an opportunity to potentially make some changes in this area so that it's standard the standard is is set across the government for what is provided to requesters to enable them to make request to the government it's the existing provision that FOIA handbooks and indexes and other yeah a documentation is is made available to the public but I think that the it could be made more robust with some further best practices here so I Melanie Peste I don't I don't want to get ahead or let me just add a suggestion as part of your you're looking into this when we were doing research for the national FOIA portal one of the things we found with our research with the requestor community was that the universal way that people look for information is just sort of the Google model they just type in a topic and they don't and because we all live in a world world where that's what you do when you want to look something up we want to be I think it makes me think that we need to be careful that the provision about the major information systems that you have to list in your FOIA reference guide is how useful is it going to be I mean there's a requirement now and agencies have to have it as part of the FOIA reference guide but I think practically the requestor community doesn't necessarily want to go and look and figure out like what record system what is a record system and I just want records on X wherever you have it agency it's not my job to figure out what system it's in so my only suggestion to the subcommittee is to sort of factor in the user experience in terms of usability and usefulness of the information we will thank you Melanie sure thanks and it's I think Ryan's and my thought that after a couple more iterations within our own subcommittee we'll be able to report out these recommendations in written form for the next hearing next public meeting and then we should have a conversation going forward so we're we're just previewing it here how many more minutes do I have Alina oh you have so many more minutes well okay a few all right so I'm not going to take too long I'm just going to as a teaser say here's here are the other recommendations we're talking about one is to have NARA and OGIS at DOJ issue best practice guidance on what constitutes an adequate search for FOIA purposes of email including capstone the fourth recommendation is NARA, OGIS and DOJ to issue best practice guidance on compliance with record keeping access requirements for records in the form of electronic messaging on commercial networks within the meeting of 44 USC 2911 these are both traditional email services on commercial networks like Gmail but also a range of more ephemeral messaging apps with some of them with built-in capability of self-destruction the next recommendation is for tighter integration of FOIA access issues into various records management initiatives at NARA and otherwise we could see expanding the annual agency self-certification survey to include additional questions to agencies about electronic record repositories and I won't beat the drum about capstone but we have a bunch of subparts on that we want to have a continuing conversation with NARA about Fermi the federal electronic records modernization initiative and its universal requirements and building in access requirements into that model that's that NARA is going forth with we want to possibly talk about A-130 and incorporating FOIA access in some further way to what OMB has done the next recommendation comes from a conversation and our invites to the inspector general community that we had earlier as part of this round in this committee and that we are discussing whether the archivist should make some kind of request to SIGI the council of inspector generals on government integrity and efficiency to consider prioritizing or making the examination of access to federal records a cross-cutting project or priority area for agency inspectors general and there was a lot of conversation at that prior meeting about what whether individual IG offices there could be some point of contact established for FOIA and for records management and so we want to develop our thinking on that two more to go and these two I wish to expressly say that that we want to work with the vision subcommittee on and so that we're dovetailing and not overlapping and being redundant one is a a recommendation that goes to the newly enacted foundations of evidence-based policymaking act which incorporates the open government data act creating CDO or chief data officer positions at each agency increasingly in the future we're in a CDO open government data open government data world but I think we would like to have a conversation about marrying up FOIA and open data in a way that would be useful and to make sure that CDOs throughout the government are aware of their existing laws and regulations on FOIA and records management that's something that I think we want to talk about with the vision committee and second and last in our recommendations sort of a joint thing to talk about further is that we're talking about whether the archivist should take the lead or that there be a government initiative in promoting research into using artificial intelligence technology to improve the ability to search through government electronic record repositories and to segregate sensitive material in government records including but not limited to material otherwise within the scope of the nine FOIA exemptions I must say that this is a my own particular soapbox that I believe that we are entering a world of dark digital data that government records that are not accessible because of PII and other sensitivities and so I think it is within the mandate of this committee to think about how to improve both records management and FOIA by using AI technology and this initiative could include using research components of NARA of GSA of NIDER-D which is the networking and information technology research and development program with coordination with OMB with CDO councils with OSTP with NIST with Chief Privacy Officers with DOJ with any interested components of government who want to be sort of at sort of thinking about state-of-the-art initiatives on AI I know there's executive order and there's lots of interest in AI why not have an intersection here with this committee and have a recommendation about AI and FOIA so with that those are what we're thinking about and I will commit we'll we'll put these down in writing and send them around and if there's time in some other either on September 6th or at some future time to have a the full conversation with all committee members in advance of actually drafting a subcommittee report we'd be happy to have that dialogue Chris did you want to this is Chris Knox you mentioned coordinating with the vision subcommittee for the final two I think that's probably best under our priority and transparency sub sub section and that's led by Joan so it might make sense for a member of your subcommittee to join that that group to coordinate I'm sure we can find someone this is Joan Kaminer I will invite you to our next Joan can you repeat that please oh sorry I'm sorry I'm sorry I'm sorry I'm sorry oh sorry can you hear me now we can whoever that's going to be from the records management subcommittee okay I'll make sure you have the information that you can decide if you should participate okay any of the other members of the records management subcommittee you want to comment or say anything more than what has already been said looking over here to this distinguished corner Bradley okay all right so let's move on to time volume last but not least I know Emily is not here today so I guess Bradley it falls on your shoulders to brief us Bradley White DHS I want to apologize in advance my voice is anything funny I'm not fighting allergies and I'm losing so with that said I'm going to ask some of my I'll call them action teams instead of sub sub committees some of the action team leaders to step in we originally started off with seven action items and after a discussion we wound up combining the last four which related to identifying people in the requested community and in the government community that we would survey which is what Kevin's going to talk about later our first action item related to tracking progress of past recommendations which we had really good presentation I believe in our last committee meeting about that and we will again today exactly so I'm going to move on the second action item regarded sorry related to analyzing complex requests and we were really happy to receive help from Carrie Talashay-Smith right with OGIS to help on that and we received her information a while ago and I have to say I was actually surprised with the data and I think that comes from just being stuck within my DHS bubble where we've seen our complex requests increase steadily over time so I thought that that was something that would go on excuse me that would go across the government but it actually looks like less than half of federal agencies have seen an increase in complex requests but what really interested me is the request so a number of agencies have seen their complex requests go down by about 56 percent but the ones that have seen their complex requests go up and DHS is definitely in that number that increase has gone up by 251 percent I don't know if there's anything we can kind of extrapolate out to the greater government from that yet we haven't really gone into all that data but I found that really really interesting and then our third group was on international research looking at international models related to the management of high volume time crunches with FOIA happy to welcome James Stocker to that group so thank you for joining us we appreciate that your expertise and after that I'm going to turn over to Kevin to talk about our survey stuff yeah well the good news is I've basically given you that report we have now narrowed down our questions for the time volume portion that are going to be sent to requesters and agency officers with an eye to it again at least with the agency side officer side trying to pin down as many responses possible during the ASAP the ASAP conference in July Kevin this is Alina I don't want to put you on the spot but would you be able to preview any of the questions if you'd let me boot up my computer I could no you know well Sarah wrote a lot of the requesters you're putting two people on the spot to be fair we've got a few many iterations of the survey I've tried to remember what's left a lot of questions out because of the way we've used it but I primarily being on the FOIA officer side I primarily design the questions with input of course that would be asked of requesters because I always want to know what are these requesters thinking right whereas Kevin who comes from the other side took the lead on drafting the questions for the agencies because he's probably thinking what in the world are these agencies thinking and so I really just started with what I generally want to know and I know some of the questions are definitely geared to sort of what level of research does a requester do before he or she makes a FOIA request again there is probably broken down into a variety of questions originally but we tried to make it fewer questions and more open so it might say something along the lines now of what if any research might you do before you make a FOIA request that things that might come to mind or I check the agency's website you know I see if the logs are posted and what other requests on this subject have been handled before because if I were making a FOIA request that's what I would do but I also have a lot of inside knowledge that many FOIA requesters don't have so it was sort of what are you for me when I design the questions is what are you doing before you make a FOIA request what kinds of things do you do when you have a pending FOIA request do you call and check on status do appeal if you don't get an answer do a constructive denial and then what would drive you to bring a lawsuit involving your FOIA request so for me it sort of went through those the questions go through the stages of before, during and potentially after what you would do yeah and I was able to pull up some of the agency survey questions I won't go through them all one by one but I would say that that they kind of deal with pressure points or frustration points it may be a little venting opportunity for some people here but you know what is an impediment to your agency's control of processing FOIA request then we have what are common areas of confusions among requesters in that sort of couple things in that vein a couple of things regarding the tracking software whether people think the tracking in you know review software works one about interaction with OGIS and how it's working for them and of course some of these this brings up the idea of will they be blind answers right well I think we're going to leave it up to people I think we want to gain as much information from the responder in responding as possible you know at least with regard to the size of the agency and the volume of requests we don't want we certainly have learned if I've learned one thing obviously and we already knew it anyway through the last nine months of this it's not every agency is the same right you know what so it's kind of like how's your tracking software working how are your interactions with requesters working what kind of guidance do you feel you're getting enough guidance from other areas of government and internally and then my final the final question which we had written up and I cannot help but ask it is if you had a magic wand to fix for you what would you do with it can't wait to see some of those great thank you yes sure this is James Stoker I just wanted to ask by blind do you mean are you getting the option to the whether or not to identify themselves yeah by name I mean I think there could be different levels of that and and I understand it's not scientific to do this but I do think you know there will be there there is a need for people to not identify themselves maybe not identify their agency but we really would love for people to give us as much information as possible at a minimum I think we do need to be able to know obviously and we probably will because I'll be wearing name tags I assume but we do need to know or be able to identify in conjunction with the responses especially for purpose of reporting back here and maybe including in the full report when we quote people if we want to do that directly you know it's a high volume agency it's a it's a intelligence agency it's something along those lines is going to be necessary but we're trying to offer flexibility as a follow-up question will you I don't know if you need to ask them to sign some sort of release or anything like that I know we may be getting a little bit formal here but coming from academia whenever we do any sort of questionnaire we usually have to run it by kind of an ethics committee and I don't mean to kind of you know lay impediments in the way but just well it's good that we get them out of the way now right no I think that's an excellent question this is Kirsten and Claire Shanley who's the executive director of ASAP is I'm sure already on it but if she's not I will ask her to be on it yeah yeah I this is Melanie I think to sort of just piggyback on that I think it will be important for people to understand that it's a voluntary thing sure purpose for which the questions are being asked yeah that's good to know I mean maybe I don't know if we want to go a full actual waiver release that they'll sign but certainly the voluntary nature is of course we will be sitting I assume kind of in vendor row right you know at the conference and they'll know they can start that nobody's forced him to sit down with us we're going to be asking we'll probably be like those folks on the street asking for money for charities you know would you spend some time on FOIA we'd really love your home yeah exactly well that's a good point somebody was that just said maybe we need to bribe people give candy out or something like that I can't believe I just use the word bribe in a federal government office but so it's not a bribe we will we will entice them to come sit down with us Hi this is Abbie Moschheim and I just wanted to report a little more on what international models has been doing so we welcome James to our group and Ginger came back and since our last meeting Patricia and I met with or over the phone anyway with our very own Tom Sussman and we also met with Toby Mendel of the Center for Law and Democracy to try to focus on some countries to do research on to compare our law with and what we could learn from those countries and we've come up with a list I'm not sure that we've settled on this list but this is what we have so far Mexico Canada India Chile Argentina Afghanistan and Sri Lanka and then we had a sub-sub committee call I think that was last week looking at how to approach researching the laws and James came up with a great idea of first coming up with a list of questions that we would have in mind while going through the laws and so he is working on that excellent list right now and then we'll meet again to divvy up the work and dig in and get started This is James Stoker I just wanted to ask if there are any questions that other sub-committees or other sub-sub-committees are looking at that might benefit from an international perspective you could reach out to me and let me know what kind of information you're interested in and then maybe in our process of doing research we can try to address that question as well now the list could get really big and we have a lot of cases in mind at least at the moment so we may be a little bit limited in how much we can do but we'd certainly love to know if anyone's work could benefit from that so thanks Great thanks for that offer that's great Any other questions for time and volume sub-committee anyone on the phone Oh, Lizette Alina Yes I'll speak a little bit about what we're doing on the complex Can you speak a little more about that? Sure This is Lizette and I will talk a little bit about the action committee on the time and volume sub-committee that's looking at the complex requests that Brad spoke of were mentioned earlier so I am working with Patricia with on this and the goal here is to see if we can come up with recommendations based on what we've seen with agencies that have a high volume of complex requests so our roadmap for that has been to collect excuse me a lot of data thanks to research fellows at the presidential library that Alina and Kirsten recommended to us who gave us basically a survey or canvassed all the annual reports and looked at the numbers over a five-year period that's a lot of data and so what we decided to do is cross-reference that with the summary of chief boy officer reports we like the greens and the reds it helps to kind of focus where you know where success stories are and where there's room for improvement and so doing that will help us we're thinking identify we don't want to get too too in the weeds with the number of agencies we're looking at since we are a year away from when we need to produce our product but maybe a top three or top five of success stories both in managing their complex requests and maybe where there was room for improvement and with that trying to talk to these agencies whether we use the questions that the others have developed maybe we use ASAP as a vehicle or some other format to speak with the agencies to see if we can derive some best practices or lessons learned and then taking what we learn from that discussion and formulating some kind of recommendations for the for this group obviously but also for other agencies to use as they they can okay great thank you any other sub subcommittees of the time volume subcommittee want to report out and this is actually very helpful this is how how work gets done Tom oh I thought you were raising your hand okay all right well I want to keep on schedule so we're two minutes out actually from being off schedule are you proud of me Kirsten so I want to invite Martha Murphy up is Martha still here yeah thought she ran away I saw her going up the stairs Martha's going to give us a report slash update on the committee recommendations from past FOIA advisory committees and take any questions there we go I'll try to be quick as you know the first recommendation we're calling complete the the CFO technology subcommittee has been established and they're using the chief FOIA officer reports to assess the IT landscape identify best practices and then they're going to make recommendations for agencies based on their their IT capabilities they recognize that some agencies are bigger have bigger systems some are smaller so they're going to try to cater their recommendations to different types of agencies and we are currently helping to arrange for the subcommittee to present before the CIO council in July I'm Martha I also just want to add I've invited them to come and brief our our committee here a little bit later the CR they said they're not quite ready yet but I think it would be really important to cross-pollinate hear what they're doing because they've they have a very active member base and the two sub the two subcommittee chairs are very active so I think they have a lot of information they can chair absolutely with the second recommendation Jason I see you did some work going through but we had our student actually look at all of the reports and compile information we just need to go through and sort of clean it up a little bit and then we'll be forwarding it on so I'll be a little more comprehensive we are on schedule we should be getting for this is the recommendation that NARA as far council representative we're going to send a business case on to the far council and I just spoke to her the earlier this week we're hoping to get our business case to the council and be in GSA within the next couple of weeks so we're still on schedule for this one and I'm sorry I'm kind of flying through so if anybody has any questions just stop me there's been no real change to recommendation number four or five we're just still hoping to get to the fourth quarter of 2020 recommendation number six this is complete again and number seven as well nothing's changed with this one finally the last recommendation from the 2014 to 2016 term OJIS has now forwarded a proposed red line version of the change to the regs and we are currently awaiting reply or action so we added a little image there maybe to help understand where we are we're leading that horse to water that's all I thought anyone have any question you really flew through that Martha I just want to make a comment this is Alina comment about recommendation number six we did actually include it in our annual report that we sent up to Congress and to the president and we made several suggestions of ways to start approaching this issue but I think as many of the subcommittee and committee members know this is a very thorny issue that has a lot of aspects to it that I think are quite difficult this is section 508 compliance and how it intersects with proactive disclosure responsibilities under FOIA and we've had the first advisory committee looked at this issue the second advisory committee looked at this issue I don't think any one of the subcommittees is looking at it right now which is fine but I think it really needs some more careful study and a really good understanding of what's actually going on at the agency level that I don't think we necessarily have what the second advisory committee gathered was some anecdotal evidence that they were able to incorporate in bringing this recommendation about but we certainly advanced in our report and we've talked it up to folks on the Hill but I think it's there's a long way to go we need help thank you okay if there are no other questions from the committee I know Melanie wanted to just briefly update us on what's going on at OIB I Melanie Peste I have a fun update we have just published literally this morning our summary of the annual FOIA reports for fiscal year 18 so all the data all the agency annual FOIA reports are in cleared in the data uploaded on to FOIA.gov so that was a big obviously a bigger challenge this year with the shutdown than prior years I want to just give you what all of us expected the number of incoming requests went up yet again it's like people cannot get enough for FOIA we are up to 863,000 requests which and actually and well and they'll just tell you compare but we also agencies also overall increase their processing of requests so once again agencies keep upping their game and doing better each year agencies overall processed 830,000 requests and when you look at how many requests were received last fiscal year it was 818 so if the incoming had stayed the same the processing of 18 would have surpassed the incoming and we would have seen backlog reduction but we just no matter how much the agencies process more each year we seem to be in a cycle where the incoming yet again trumps the processing so it's a really interesting trend that just keeps continuing the exemptions that were most commonly used remain the same as they always have been that over 50% of the exemptions used are 6 and 7c for personal privacy 7e is the third most used exemption we also talked a little bit during the course of this discussion today about the difference in the difference in agency size and how the proportionality of who gets the most requests so once again we had five agencies that got 70% of all FOIA requests DHS with almost 400,000 requests last year they were 395 so it's just staggering DOJ was next we were 96,000 so we're heading to the 100,000 the sixth digit DOD was afterward with the next one with 57,000 NARA with 52,000 and then USDA was our fifth largest agency this year which is that they are a new entrant into the top five in whether that's a good thing or a bad thing and then the one thing that was also a nice highlight was that agencies were able to reduce the amount of time that they took to process simple track requests so that helped show that our focus on that our attention our negotiating with requesters to get simple track requests is reaping rewards agencies are able to process those in a faster amount of time so that was a really nice statistic so the data's all available as I said on FOIA.gov any questions for Melanie anyone on the phone okay so we're right on schedule we are now at the point where we're happy to take any public comments I would like to Ashila if there's anything on livestream that needs to be reported she's shaking her head no everyone is just glued to their computer screens and just can't think of anything to say do we have anyone from the audience here that would like to come up and offer any comments to the committee no okay well that was easy um so um I think we're all very excited about all the work that's going on and I think it was great to hear from each other about what is going on our next meeting is Thursday, September 5th at 10 a.m. right here on McGowan Theatre I want to invite everyone to visit the OGIS website and social media we're going to post all this information up there from today's meeting and I'm just going to ask anyone on the committee if there are any other questions before we adjourn otherwise we'll stand adjourned any any oh I'm sorry Kirsten is asking me to remind everyone to return their NARA folders as they are they've become quite a scarce resource and they're fairly expensive to reproduce as we have learned so we are reusing them if there are no other questions or concerns oh Jason has a question or a concern just a question Alina do you have or Kirsten do you have any ideas for speakers or for people who are going to be invited to give presentations to us through the remaining time that we're together so I did mention that I thought the technology subcommittee co-chairs I'm putting them on the spot but I would like for them to come and brief us but I think otherwise we have a pretty open slate we do certainly need to leave room for lots of work time at the last two meetings so but if you have any suggestions it sounds like maybe you do perhaps you could let us know I would yeah I do think that we do need to leave work time and so if this is precluded by it then so be it but I I would be interested in hearing from some lawyer advocates from the public interest community of what they find as challenges in filing lawsuits against the government and we can talk offline about some of our favorite people who are out there who are experts at this and I'd like to invite them to to come I'm not going to put Lee on the spot but we have Lee on the on the committee he can more than happy to to gather a Lucian all people obviously yeah when you gather a panel I'd be it's more than happy to participate okay anyone else all right everyone we stand adjourned thank you again for your time I'm giving you back about 10 minutes all right great thanks