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With that, I'm going to turn the meeting over to Davis Berrio, Archivist of the United States. So please go ahead. Good morning and welcome to the second meeting of the fourth term of the Freedom of Information Act Advisory Committee. I'm joining you today from 700 Pennsylvania Avenue. Once again and for the fourth time in 2020, the committee meets virtually as we soon enter our 10th month of physically distancing ourselves from one another. Today, December 10th marks the 72 years since the United Nations adopted its Universal Declaration of Human Rights nearly two decades before Congress passed the Freedom of Information Act, the UN declared in 1948 that everyone has the right to freedom of opinion and expression. That right, the UN declared in Article 19, includes the quote, freedom to speak, receive and impart information and ideas through any media and regardless of frontiers, end quote. That freedom is so well enshrined in our American FOIA statute. I'm pleased that the committee will discuss today the intersection between FOIA and classified records, an issue of great importance to the National Archives and ripe for examination by the FOIA Advisory Committee. Bill Fisher of the National Declassification Center here at the National Archives and John Powers of our Information Security Oversight Office, ISU, are joining us today to give overviews of the work of their offices and how this work relates to government transparency. Over the past 18 months, ISU has engaged with a diverse group of stakeholders and subject matter experts from federal agencies, Congress and civil society groups to gather their recommendations on data collection reform. The desired outcome is to end outdated and ineffective data and information collections about information security programs government-wide. This year, despite the pandemic, ISU is piloting a new questionnaire that consolidates and streamlines data collection. That process for reform mirrors the collaborative work that is the hallmark of the FOIA Advisory Committee. I'm also proud of the work of the National Declassification Center in D.C. to systematically declassified records, including last year's culmination of the U.S. Declassification Project for Argentina, the largest government-to-government declassification project in United States history. The project resulted in the declassification and release of more than 11,600 records relating to human rights abuses committed in Argentina between 1975 and 1984. While not tied directly to FOIA, this historic release of records affirms the National Archives' commitment to transparency and illustrates how the NDC and ISU bring together people and processes to improve declassification and public access to historical records. As I said at the FOIA Advisory Committee's kickoff meeting in September, much work is ahead for you, but I'm pleased that the committee's four subcommittees, looking at national security classification, FOIA process, legislation, and technology have begun work and are charging their course for the next 18 months. Finally, as the hours of daylight grow shorter and time separated from colleagues and loved ones grow longer, I extend best wishes for peace and resilience in this season of light. Please take good care and stay safe. And I now turn the meeting over to the committee's chairperson, Alina Simo. Thank you so much, David. Good morning, everyone. As the director of the Office of Government Information Services, OGIS, and this committee's chairperson, it is my pleasure to also welcome you to the second meeting of our fourth term of the FOIA Advisory Committee. I would also like to introduce the committee's designated federal officer, DSO, Kirsten Mitchell, the blue that holds us all together. She's going to help me stay on track today, as she always does, and you'll be hearing from Kirsten shortly with some important updates. I believe we have everyone joining us today, so I want to welcome all of our committee members. I hope everyone who is joining us today, both on the committee and in our audience, has been staying safe, healthy, and well. I want to express my gratitude for the committee member's commitment to studying the current FOIA landscape and developing consensus recommendations for improving the administration of FOIA across the federal government, particularly under more difficult circumstances of 2020 and unfortunately ongoing into 2021. Today, in the interest of time, I would like to dispense with the roll call today and just say hello to everyone. Hello. As I mentioned earlier, all 20 committee members are here today. I also would like to welcome our colleagues and friends from the FOIA community who are watching us today either via WebEx or NARA YouTube. We do have another very busy agenda today, so I will keep my opening remarks brief and do my best to make sure we stay on track so we can end on time. Despite today's ambitious agenda, we will leave time at the end for public comment. We look forward to hearing from any non-committee members who have ideas or comments to share. We will open up the telephone lines for the last 15 minutes of our meeting and OGIS's deputy director, Martha Murphy, will be monitoring the WebEx chat function throughout the meeting. OGIS attorney advisor, Sheila Portanovo will be monitoring the NARA YouTube chat function, so if any one of you have any questions or comments, please feel free to chat them at any time. And you may also submit public comments, suggestions, and feedback at any time by emailing FOIA-advisory-committee at nara.gov. And we will post them to the OGIS website. I have some housekeeping rules before we get started on our substantive meeting. Meeting materials for this term are available on the committee's webpage. Click on the link for the 2020 to 2022 FOIA-advisory-committee on the OGIS website. Please also visit our website today for the agenda for today. We will upload a transcript and video of this meeting as soon as they become available. Members' names, affiliations, and now biographies, we've added those recently, are now posted. So, as I said earlier, I will dispense with a formal roll call, but we can report that all 20 of us are accounted for today. Michael Morrissey, I believe, has just joined us recently. Hopefully, his audio is on. I also just want to let everyone know, Alex is great. He has to leave at 12.20 today, so we've agreed to give her the floor first on part of our agenda, and she has to leave a little bit early. So, as everyone knows, we've been holding our meetings virtually since March. The virtual environment has advantages for many of us, including what we have started to all refer to as business on top and party on the bottom. I am guilty of that myself today. The disadvantage for me and Kirsten is that we will not be able to see you, the committee members raising your hand or eagerly leaning forward, ready to make a comment or ask the question at any given second in time. We're trying our best to monitor all faces at all times. So, we will be looking for nonverbal cues, but we just want to remind everyone to be respectful of one another, try not to speak over each other, although I realize that maybe inevitable at times. I want to encourage all committee members to also use the all-panelist option from the drop-down menu in the chat function. If you have a question or would like to make a comment, or you can also chat me or Kirsten directly, we'll be monitoring the chat function. But in order to comply with both the spirit and intent of the Federal Advisory Committee Act, FACA, please be sure to keep your communications in the chat function to housekeeping only, no substantive comments, as they will not be recorded in the transcript of the meeting. Also, an important reminder, because I am guilty of this myself, if you need to take a break, please do not disconnect from either audio or video web event. Instead, put your phone on mute and close your camera or turn off your camera. Send a quick chat to me and Kirsten to let us know if you'll be gone for more than a few minutes and join us again as soon as you can. Don't do what I normally do, which is I just hang up and then I have to start the whole cycle all over again. It's very painful. We have noted a 15-minute break at 11.20 on our agenda. We hope that we can keep to that. We'll break a little bit earlier or later, depending on how our pace is going. And also a reminder to all of our committee members, please remember to identify yourself by name and affiliation. Each time you speak, I know it's hard to do that. I myself always forget that as well. I'm trying to remind myself as well, but it helps us tremendously with the transcript and the minutes, both of which are required by the Federal Advisory Committee Act. So before we move on, next I would like to have us look at the meeting minutes for our first meeting from September 10th. We need to approve those minutes from that meeting. Kirsten has circulated all of those minutes to the committee members. Later today, Kirsten and I will certify the minutes to be accurate and complete, which we are required to do under the Federal Advisory Committee Act within 90 days of our last meeting. So at this time, I do not believe we had any comments or questions or concerns about the minutes from any of the committee members. Kirsten is shaking her head, no. Do I have a motion to approve the minutes in their current form? Tom, I just want to make my motion. Do I have a second, even though one is not required? I'll take a second. Thank you, Roger, for your second. All president and person in favor of approving the minutes, please say aye. Thank you. Does anyone opposed? No one opposed. Therefore, the minutes are approved. Thank you. That was very painless. Okay. At this time, I am now going to turn the meeting over to Kirsten, who will provide some updates on past committee recommendation. And I'm going to turn to our event producer, Michelle, to ask her to display our dashboard. Thank you. Okay. Thank you, Alina. This is Kirsten. Those of you who watch the FOIA Advisory Committee closely know that since 2016, the committee has made 30 recommendations to the archivist for improving FOIA administration across the government. To help committee members and the public track the status of these recommendations, we created this dashboard tool on the FOIA Advisory Committee page of the OGIS website. Michelle, our event producer, has pulled it up on the screen. Thank you, Michelle. The dashboard provides brief descriptions of each recommendation, actions taken to fulfill each, and links to reports, correspondence, and other related materials. A couple of quick notes. Thank you, Michelle. I think you can stop scrolling. For the recommendations marked complete, OGIS and indeed the current FOIA Advisory Committee recognize that opportunities may exist for additional work. For the recommendations not completed, they are marked either in process or pending. The in process recommendations we are actively working on while the pending recommendations we have not formally launched, but expect to do so as early as January 2021. We plan to regularly update the tracker and keep it up to date. We will also announce big updates on our FOIA Ombudsman blog and on Twitter. Our Twitter handle is at FOIA underscore ombuds. A shout out to my colleague, Crystal Lemelan, who turns this from idea to reality. We think it's a great tool for transparency and accountability. It's already made my job easier. So I invite everyone to please check it out. We shared it with the committee members a week or so ago just before we made it public. So please check it out, but not right now. We're about to hear some interesting information about FOIA and classified records. So I will turn it back over to Alina to introduce our National Archives colleagues, Bill Fisher and John Powers. Over to you, Alina. Kirsten, thanks very much. I really appreciate that. And yes, I really want to thank very much Kirsten and Crystal Lemelan and my terrific OJA staff who's been putting a lot of work, and not only on this dashboard, but everything they've done this year. So thank you very much. I am very pleased to welcome my colleagues from two of our what I like to call sister offices, the National Declassification Center, NDC, and the Information Security Oversight Office, ISOO, Bill Fisher and John Powers. I refer to them as our sister offices because ISOO, NDC, and OJA are organizationally all situated under the umbrella of agency services here at the National Archives. I want to give a shout out to our executive for agency services, Jay Trainer, for his continued support of all of our programs. William P. Fisher, otherwise known as Bill, was appointed director of the National Declassification Center in February 2019. Prior to this appointment, Bill served in a number of positions at the Department of State involving records management, declassification, and other information access programs, most recently having served as the deputy director of the Office of Information Programs and Services at the State Department. Prior to joining the Department of State in 2008, he served in a variety of archival roles in NARA from 1998 to 2008. So Bill circled back to his favorite home agency. He holds a BA in history from the University of Montana, an MA in history from Montana State University, and something I just learned by looking at his bio the other day, a PhD in history from the Catholic University of America. So for now on, I will be calling him Dr. Fisher. John Powers serves as the associate director for classification management at the Information Security Oversight Office, ISOO, where he also serves as the senior staff officer for the Interagency Security Classification Appeals Panel, that's a mouthful. The acronym as we love to have in the government is ICECAP, and the Public Interest Declassification Board, known as KITIP. I know John will explain those acronyms in his presentation today. In his 29 years of work at the National Archives, John has served in many roles and positions, almost all focused on declassification, public access to government information, and transparency. A quick personal note, I first met John when I was still working at the Department of Justice, working on the Nixon tapes case, and John was working at the Nixon project a long time ago. From 2015 to 2018, he served as the director of access and information management at the National Security Council. John holds a BA in international relations from the College of William and Mary, and an MA in US history from George Mason University. Both Bill and John will try to stay through the end of the meeting today to answer any questions, but in the event either one of you gets pulled away, gentlemen, please know we will post any questions that we receive and your answers on our website at a later time. So with those introductions, thank you again very much for joining us, and I'm turning it over to you, John. Okay, can everybody hear me? I hope. Yes. So thank you for having me, and welcome to everybody virtually. I'm here today. I'm representing our director, Mark Bradley, who is on a book, a virtual book tour today for his book that just came out about about a month ago. Let me give you a little thanks to the OGIS staff for putting this together, and I'll thank you in advance for your comments and questions. And I'm looking forward to staying throughout the meeting today and answer your questions at the end. I am, this is probably the eighth meeting I've done from my bedroom, which happens to be the quietest place in our house with two kids virtually learning a wife that is also on WebEx right now. And I also have a very big dog, big dog who is barking at a construction crew outside our front door. So hopefully that's not going to interrupt us all. Next slide, please. Let's go to the next slide after that. So I wanted to give you a little bit of a history about ICU, first of all, that we began our, we were created in 1978 under executive order 12065 by President Carter. We were initially part of the White House, and began life in the new executive office building office and then moved to the National Archives in the mid 1980s. We are indeed a very small office with a very large portfolio. And almost all of that is focused on managing government information. We are a little bit unique though, we receive our policy guidance from the National Security Advisor. And we do work very closely with the National Security Council on matters relating to information security and information management. And in fact, our director is appointed by the Archive of the United States with the approval of the National Security Advisor, so a unique position there as well. That said, organizationally within the National Archives, like our OGIS, we report to the executive for agency services. I've just put a little bit down here about our organizational structure. We have two directorates and operations directorate that works on several information security items, including controlled, unclassified information, the National Industrial Security Program for contracting agencies, in our state, local, tribal, private sector information sharing program, SLPPS is the acronym for that. And I lead a small directorate called the classification management director that I also think has a fairly big mission here that includes going out to agencies and reviewing their declassification programs, managing and doing all of the work associated with the ICAP, the information, the Interagency Security Classification Appeals Panel, and also staffing the Public Interest Declassification Board. Next up, looks slide. I wanted to give you an idea just of how big our portfolio is. We actually have five executive orders that we either are primarily responsible for or have a role in. The key for all of these though is that they are all focused on managing information. For the purposes of this presentation, you're in luck. I'm only going to focus on one small part of that, which is EO 13526, our classified national security information program. Next slide, please. I put this up just for reference, and there'll be a few more of these slides throughout here for reference, but I felt that this was important for you all to see, especially some of you who are FOIA folks who may not know about ISOO, what exactly our mission vision and values are. And I quickly just draw your attention to our mission statement. That is what we do. We are dedicated to it all 19 of us on staff. Next slide. Who exactly are our primary responsibilities? Well, we're responsible for developing and implementing directives. We work closely with the National Security Council and effective agencies through interagency process. Once executive agency, once executive orders are signed, the next item is how to implement them. Give direction to agencies on what they're supposed to do and what those orders mean. So we actually have four implementing directives that we work with every day once they have been written. The fourth one that's not on here is 32 CFR 2004, which is the National Security Industrial Program. The other big item I'll talk with on this slide is our oversight and inspection role. Although we are smaller than we have been, we do try to go out to agencies, look at their program, see what they're doing right, what they're doing wrong, try to help them improve their program. That is our overall goal here. I think it really is to try to help agencies be better. We collect data, and I think the archivist did talk a bit about that we are in the process of reforming and modernizing the data that we collect from agencies in a combination of results from both our oversight on site, our oversight on collecting and analyzing the data. We then report on the results, and we do that in a number of different ways individually with the agency, through our annual report on our blogs, and also through our IC notice program on our website. Next slide. We have a whole lot of other responsibilities that go with those executive orders, which includes kind of, again, I'll focus on two here, but we do an awful lot of work with every one of these is still very active despite COVID and the pandemic. They are also all virtual, also on Webex, with the exception of the Interagency Security Classification Appeals panel, which typically meets in a classified environment. We have figured out a way to work in skips and work across to keep our business going. Our job there is to serve as the administrative and program support staff. Our director serves as the executive secretary, and we do everything that is related to the panel itself. On the bottom, I'll talk a little bit about the Public Interest and Classification Board, where our director also serves as the executive secretary, that is by statute, and our staff provides all of the administrative and program support for them as well. Next slide. The biggest part of our work, I think, is our oversight role. Going back to what I said earlier, it is really important here. We are all trying to help agencies improve their programs. In the case of the Classification Management Directorate, we are trying to help them improve the accuracy of their classification and declassification decisions. And in the case of our Operations Directorate, they are trying to help them improve their safeguarding and how they are protecting their classified information. Next slide. I put this mainly up for reference. I'm not sure how many of you deal with classification day in and day out, but there are rules for what you can classify, how, when, what, where, essentially, and that is all spelled out in Section 1 of the Executive Order. So I will leave it at that. On the bottom part of it, though, how we monitor how those agencies are doing with that. We do that through our on-site inspections. We do that through data requests, and we analyze their responses. We collect information from them every five years through a fundamental classification guidance review process, which we require all agencies to review every one of their classification guide to see if they are still accurate, to see if they are still updated, if they need updating. That process should include not just classifiers, original classifiers and derivative classifiers. It should include users. It should include subject matter experts. And also, typically, we ask that it include declassifiers and FOIA professionals as well to give a perspective on what is going on in the FOIA and declassification world that may impact what should or should not go in an updated classification guide. Then the last thing that we do regarding classification is we really do try to help agencies improve their own security education and training programs. Okay. Next slide. This is a reference, again, for those of you that are not involved in this every day. I just used a government term that can be very confusing, an original classification authority and a derivative classification. So this is the difference between the two of them. So I'll just, this is for your reference. Next slide. Let me talk a bit about declassification, which I've spent most of my career working on. And the rules for that, what, where, when, how and why, all are found in section three of the executive order. In this executive order, there are, I put down a few items that are, for the very first time, were included in the executive order that included that all information was subject to declassification. And importantly, for historians, this allowed the president's daily briefs to be reviewed for declassification, which previously the CIA said they could not be. It allowed declassification of artifacts. So there are new declassified artifacts in museums, both at the Air Force, at the CIA, and in other places to showcase some of the work that they've done historically. It did tighten the criteria for exempting information, and it importantly also set limits. So it's something that you, for both that was exempted at 25, those exemptions ended at 50, or they ended at 75, depending on you had to ask for a new request after each certain time threshold. And of course, for Bill, it created the National Declassification Center with the goal of trying to bring all of the classification agencies under one roof as they prepare to make records public. And I really think importantly, one of the things that has been helpful for the Declassification Center, and I'm sure Bill will probably talk a bit about this here, is one section of the order said was really designed to try to limit unnecessary referrals, something that ISOO found in its very early declassification assessments in the late 2000s. So this part of the order was really meant to helpfully streamline the reviews that were conducted by multi-agency records. I talked a few seconds earlier. We began our declassification assessment program back in 2007. It's been successful. We think that agencies have dramatically improved the quality of their reviews, that they are exempting information, they should exempt. They are not exempting information. They should not exempt. They are, by far, not missing embedded equities that they should be referring to other agencies, mostly intelligence agencies. And then the third thing that we've really noticed is that they are definitely limiting the number of referrals. So there are far fewer unnecessary reviewers clogging the National Declassification Center's system. That's not to say everything is perfect. The reviews are still past sale, but certainly we have seen a marked difference from that. Next slide, please. Now, I want to talk a little bit about the ICE CAHPS, the Interagency and Security Capsification Appeals Panel. We have four functions. This also is slightly different from the earlier versions. It first came into being in 1995 or 1994 in the Clinton order and has been a successful mechanism to serve as the final arbiter of what should or should not be classified, either if you are requesting a record be declassified through mandatory declassification review or if you are challenging the classification of a record that is inside your agency. The four functions that we have are to be the final authority on classification challenges and by approving exemptions for declassification at 25, 50, and 75 years. That typically means a declassification guide that we work with agencies again every five years. These are required, updated. The process has increasingly been much longer than before. They are, again, to account for this 25, 50, and 75-year differences. The last thing I'll say on this slide here is the bylaws. The way that we work, the way that the members of this panel work, are all codified in 32 CFR 2003, which you can find on the ICAP website. Now I'll put that up at the end. Next slide. This is just a reference panel. A reference slide is who sits on the ICAP and who serves as the final arbiter. They are high-level officials at all of these agencies. The two anomalies here are the National Archives sits as a member. It does not have original classification authority, but it certainly has an interest through its National Declassification Center and through the National Archives mission to make government records available. So the President did give the Archives a seat at the table to make decisions. The second thing is that eliminated, the CIA is a permanent member of the ICAP, it only participates in certain instances, and that's when its information is the subject of the appeal. That said, the Director of National Intelligence does have the final say over the intelligence community that's both in this executive order, and of course that's where its authority will kind of lies. Next slide. Our activity, well I could go back a lot longer, but I thought I'd just focus on the last three years here. Although we've not publicly released the 2020 information, we will do that through our annual report, but I will go ahead and give you the news here and let the cat out of the bag. But I wanted to talk a little bit about, first I'll start with the Declassification Guide process. It was significantly longer than the last time, and the liaisons from the agency decided that they wanted to have much more robust Declassification Guides from the agencies this time around, so they strengthened the language by requiring one agency to use standardized language so there wasn't any confusion about what could or could not be exempted in that cross agency. We also really tightened the definitions by we, I mean the ICAP members, decided to tighten the language of what you could exempt, and for how long? So you would not automatically get a pass at 25 and have the same exemption at 50. If you wanted to exempt at 50 or at 75 years of age, the thresholds were much stronger and they were both in the executive order, but in practice here as well. The other thing for the first time, we recognized that agencies, and this came out of the I2 analysis part that we had done in the last few years, we noted that agencies were, on some occasions, had the exact same information, and yet they were treating it differently. So the ICAP required those agencies to work together to come up with a joint portion of the Declassification Guide that covered that information so that those agencies were treating the same information the same way. So as you can see, we started this in 2018, we didn't finish it until towards the end of 2019, and then with the passage of time a new program came up where we did make an addendum to one guide. Now I would say what has happened because of COVID is we did not get very far on our mandatory Declassification Appeals. Initially, the Archives was closed, the National Archives was closed all around the country, including at Archives 1 where we are based, and at Archives 2 where the National Declassification Center is based. Most of the agencies we worked with were also closed early on, and slowly got back up to speed. It wasn't until August that we kind of figured out how we could work in a classified setting to limit folks' exposure to health concerns but still start the process working again. We've already closed from October to December the 10th. We've already quadrupled the number of cases that we have closed in all of 2020. So how does this body meet normally outside of a pandemic? Normally they meet twice a month, they meet for four hours at a time, and they go over cases that way. We've had no classification challenges the last three years, and I may get a question or two about that towards the end. And the other big item though we have noticed, and this really started in the early 2000s or in the late 2000s, an exponential increase in our backlog, which went from under 100 cases at the beginning of 2000 to where we stand today of about 1300. Most of these cases come to the ICAP because one year has passed and the agency has not acted on the request. In contrasting with FOIA, under the Freedom of Information Act agencies have 20 days to respond in NDR, that time frame is extended to a year, and still over 90% of the cases that come to the ICAP come to the ICAP because the agencies have not met the time threshold. Next slide please. So I want to talk a little bit about our annual reports and I want to talk about our recent ones because they have been different from what we historically have done as a 20 to 30 page report and status update about all of our programs that we really have we've shortened them for they are they are reports to the president they do go to the president from being at the National Security Council for three years I can tell you that they do make their way to the president. We believe very strongly our director believes that it is time for us to modernize our information management and information security policies and practices. The all the executive orders leading up to today they are still based on cold war practices and policies that is not how the government operates today. We've said in these last three reports we think that it's an imperative both to national security and our democracy we've said that it's going to require sustained White House leadership we recognize that any kind of a revolutionary change is going to be very difficult and we also know that it's going to require significant investments in technology and that those investments are going to have to be closely coordinated across agencies so systems can talk to one another and that they are using technology to identify each other's equities both for classification and declassification. Now we've also just as part of that process of the archivist did mention this we have started to realize that also the information that we collect is outdated and we also were a little unsure of the accuracy is it really how how difficult and how how accurate is it to classify the number of derivative classification decisions when you have multiple electronic formats and agencies using many different classified communications methods to create disseminate and use classified information so we're trying to work with our agencies we've also gone out to some of the civil society groups to talk a little bit about what metrics are meaningful for agencies how to what metrics can we come up with that will help you improve your program we're working with OMB to figure out how we can include costs that are accurate and actually measure information security programs and of course for congress and for the public we really do have gone out to say what's meaningful for you as you conduct and want to look at independently conduct oversight of these programs now I mentioned a few seconds ago that the order does need changing and there are several challenges that ISU has historically talked about but certainly in the last few years that we've talked about in our report to the president but there is a continual challenge of over classification despite a strengthened fundamental the classification guidance review program there are still and that the effect of that over classification is that it limits information sharing that does have the potential to cause harm to our government we have noted that while security education training programs have improved at agencies there still are compliance issues especially when it comes to original classification authorities who tend to be agency leaders are very busy classification is not their day job their mission is their day job but they still must receive detailed training every year and almost 85 percent of agencies that deal with classified information have yet to implement a performance management critical elements in there for their staff that use classification day in and day out ISU does the NDC does but not many other agencies do and then the last thing I'd say which is very important and this makes a little bit of sense because declassification programs are by nature they're 25 years behind what's going on today so bill bill fisher is going to talk to you about paper and the challenges of working with multiple equity records in paper because we are still at the dawn of the digital age when it comes to declassification but very fast we are going to have a exponential growth of of digital records that are going to need to undergo declassification and ISU has found that declassification programs across the government are ill prepared to deal with that onslaught next slide I wanted to switch over and talk to on another hat here to talk about the public industry classification board it was established by congress in 2000 as a memorial in tribute to senator dingo patrick moan ham um it's been re uh it's been uh uh re-legislated at least five times before of finally becoming a permanent independent board and commission in this year's net or last year's national defense national defense authorization act the functions remain the same I'm going to focus just on one which is the the goal of the board to improve classification declassification and public access to government information during the time that they've been active although the law was first passed in 2000 first appointments weren't made until 2005 and the board didn't start meeting until the end of 2006 since then they've written five reports to the president it have engaged in a number of other issues with the white house to help them uh work on classification matters at the moment although they are allotted nine members we have five um they are elissa starzak who's our acting chair um they are uh john tirney and tragaudy two former congressmen um michael um laurence and ben powell who were just appointed by the president and we still have three presidential vacancies and one congressional vacancy senate majority leader mcconnell um our office the small as it is we do provide all of the administrative and logistical support for this board and uh mark radley our director does serve as the executive secretary um next slide i did want to talk about the most recent report and several of you i think have probably heard about uh the report it was published in in may late may we had a public meeting on it in june it is titled a vision for the digital age modernization of the u.s national security classification and declassification system and it really did it was meant to serve as a roadmap to help agencies overcome antiquated cultures and antiquated policies to design more modern processes and to get the government to think seriously about modernizing the uh the system it decided to put this report into three sections those recommendations that could have an immediate impact and you'll note here that one of the recommendations was to empower the nbc they felt that they really did want the nbc to have more authority independent authority especially since they're working with historical records to uh to move the records through the process um the other recommendation is for the uh the secretary of defense energy in the different office of the director of national intelligence three very big agencies with very big budgets who are very interested in information security and classified national security information management and they uh the board wanted to direct have the president direct these folks to work with the arkansas united states to develop a plan for how they can modernize their own classified systems and their records management programs so that once their records do get to the national archives it will be far easier for them to review and declassify their electronic records um the last two are the strategic policy changes um the controversial one they did recognize the importance of having an executive agent i see the executive agents for for several information security executive orders so they realized very quickly that it is important to have someone be in charge that in today's world where information seamlessly crosses between agencies it is imperative that there be standards beyond just the ic beyond just the department of defense that we needed to branch out beyond the silos and they really wanted the president to designate an executive agent and then a steering committee that would help guide the executive agent in implementing a new system with new policies and procedures uh and of course the last part of the year i've talked about the importance of transitioning to going for more automated classification and declassification procedures uh next slide so i wanted to talk to one of the questions i heard that you all might be interested in asking how to do about the future um i i think the reports kind of uh speak for themselves here the the iso any reports the last two years and i will say the next upcoming report which will cover f y 2019 it will talk about the need for modernization i'm sorry f by 20 uh it will focus on that it will it it really is the executive order it was revolutionary almost when it when it was signed in 2009 with uh with some of the changes were very significant but that order is 11 years old we don't work that way anymore the government doesn't work that way you don't work that way anymore electronic communication is our life today this executive order the current one talks about documents it talks about how you store records in states that is not how we work today we need to modernize our policies to match how we work so that we are protecting the information we have to we're disseminating it to those that need it and we are declassifying it timely so that our citizens can be informed uh so i i i i again previewing what will be in the the next annual report that will be it i know this is the foyer faca committee i'm sure that you all are familiar with the uh uh office of the director of national intelligence i g foyer report from 2018 uh in it so the challenges are not just outside the ic the challenges are also within the ic and that there is a recognition that even within foyer which i think is very closely aligned with with declassification that there are new policies and processes that they need they still lack technology and the secure communications that many other folks do these are going to be essential for whatever happens for the future and then of course i just talked a little bit about uh what the pidb thinks about the future and the need for modernization um next slide the last slide so i thank you for indulging me for uh for the last 25 minutes or so um i wanted to quickly give you a few uh of plugs here uh you can find more information on our website uh if you have not subscribed to our blogs we have several uh including the icu blog which we've just started the cui blog which is ongoing and it started a long before i've included a few email addresses and also for the public interest declassification board if you want to read their five previous report to the president they can all be found on our website they also have a blog um that we are robustly uh we try to post every week and we did post today that we are inviting that the members are inviting public comment what should a new executive order look like i know that many of the folks in the civil society community have already submitted their report to president biden elect president uh biden uh the elect president elect biden and it does include many of the recommendations from the pidb and it does highlight some of the challenges that icu has put in its recent annual reports but we really would value your participation if you have ideas we're happy to post them on the blog please use the blog and uh that way if you want to remain private uh we also can can receive your information via our email website so so thank you very much for uh for listening to me and hopefully you didn't hear a dog barking or a construction crew going thank you all right thanks very much time we really appreciate that great for our presentation i'm going to now roll it over to bill i know there's a few questions from our committee members and i've asked everyone just to forbear until bill presents and then we'll open it up to questions from everyone bill uh you're happy for it all right great thank you alina and uh it's always a pleasure to follow john powers i think john is probably one of the strongest promoters of declassification and transparency out there so anyway and i have to also commend that last slide i don't know if that's uh an innovation of yours john but i haven't seen it before i like it so anyway folks uh good morning and i just want to begin by thanking you for uh this opportunity to speak today and participate in this meeting uh it's a great opportunity for me to share a little bit about the national declassification center and the role we play in overall government declassification efforts so thank you alina thank you committee for extending the invitation it's a great opportunity uh i also i just i want to throw this out there i thought it was very fitting that uh john and i but especially myself followed the archivist david fario this morning because i'm thinking the national declassification center was one of archivist david fario's first act as archivist uh almost 11 years ago now he after the executive order was promulgated in december of 2009 one of his first official acts was to establish the n dc on december 30th of 2009 so if you do the math you can see that uh earlier in this year we celebrated our tenth anniversary and you know our mr fario played a key role in that and then considering that mr fario also established this foyer advisory committee i thought he provides a great uh nexus point it's our common interest in declassification accountability transparency and so i just thought it was very fitting given the history of both of our entities organizations and the archivist uh to be speaking here this morning so it's a great honor to follow him as well and be able to speak a little bit about this organization that he had such a key role in establishing speaking of executive order 13526 john covered it very well i just thought it would be worthwhile mentioning that the vision of the n dc our motto our mission is really rooted in eo 13526 uh our motto our mission is releasing all we can protecting what we must this is what we strive for in our daily activities in our processes and in our functions and it's rooted in the executive order that's what gives us our marching orders and it provides our vision and i think it's worth noting in the preamble to the executive order uh it's well stated so i don't want i can't improve upon it but it mentions our democratic principles require that the american people be informed of the activities of their government nevertheless throughout our history the national defense has required that certain information be maintained in confidence in order to protect our citizens our institutions so on and so forth so right there is the vision for the n dc and that you can see uh is reflected in our mission which is releasing all we can protecting what we must we have this dual function that we uh strive to fulfill in all of our processes and all of our procedures and it guides us it's the guiding principle of our work it's been the guiding principle of the last 10 years the first 10 years of the n dc and it's the guiding principle that's taking us into the future i would also like to note that the overall mission of the national archives is the public access to the historically valuable records of the united states government and the top strategic or the first strategic goal in our strategic plan is making access happen so as you can tell the the vision of the order the mission of the n dc all supports that overall nara mission of releasing all we can so when we strive for releasing everything we can and protecting that sliver of information that must remain uh confidential we are supporting nara's overall mission of making access happen i would also like to point out that and john alluded to this that this is not just a nara enterprise but this is an overall interagency enterprise that we participate in and the executive order helps shape that and influence that so i want to also give credit to our interagency partners who are vital to this process the n dc would not be able to do what it does we would not be able to fulfill our mission we would not be able to release we would not be able to make access happen if it weren't for the participation collaboration cooperation of interagency partners who are uh situated with us when we're on site in college park as well as the network of contacts we have with agencies so it's very important to also recognize the role that our partners play in this process because they're vital and uh we work well together so with that sort of high level opening here i think uh what i'd like to do now is i'll turn to this high level process map i just threw this out there as a reference to illustrate our process and what we do at a very high level i like to think of our process as a we have a macro process and we have a micro process the top half of the slide really refers to our macro level process and the bottom half refers to our micro level process but regardless of whether whatever uh we're talking about it's still all aimed at releasing all we can protecting what we must and it's a quality assurance system so i'll begin up in the upper left hand corner in the light green box where it talks about classified records accessioned into nara as you probably already know nara is the nation's record keeper so as the nation's record keeper the role that we play in this is that we are the record keeper not the custodial unit but the but the unit responsible for all of the classified permanent records being accessioned into nara not just one agency not just one record series from agency but the whole universe of classified permanent records which gets to my point about the macro level we at the ndc and at the national archives have a responsibility for all of the permanent historically valuable records that are classified that are accessioned into the national archives and so we have this responsibility to perform quality control checks and uh review and protect and release that entire universe of information so we begin our process with that in mind and the first thing we do when we receive record transfers accessions is to assess the quality of what we're getting because this will be determine how we end up evaluating each particular accession and how quickly it can make it through the process so this assessment is basically uh you know a review of the documentation of physical check of the records to make sure and ensure that a proper review was conducted by the originating agency and very importantly that the particular review that are that the particular accession had a valid kyle lot review conducted which relates to nuclear information rd frd so before we can move on we must ensure that a valid kyle lot review was conducted in most cases at this point in time a particular accession transfer i'm going to refer to it as a d-class project moves immediately to a sample evaluation for quality control uh it's the rare exception that begins as a page by page review and that would only happen if there was not a valid kyle lot review conducted if we discovered some sort of error problem with this particular project that forced us to conduct another page by page review of this material but that's a rare exception the standard the norm is that our evaluation will be a sample of that particular project i must also point out at this point that this is also an interagency operation at this point so we partner up with the agencies that are on site in college park and conduct that sample if there are no errors discovered for missed equities that sample project will move on then to the next stage if there are errors discovered and the errors are widespread and systematic enough for that particular project unfortunately it will have to go back for a page by page review however again that is still the rare exception once a project makes it through this evaluation stage for quality control it then goes into a DOE quality assurance review queue this is a queue established by the kyle lot amendment and it's how the department of energy implements their role in this process to ensure that these records have undergone a proper thorough review and that there is not an inadvertent release of rd frd material the DOE quality assurance review could also be a sample an audit of a few records a few documents or it could be page by page depending on the subject matter the agency and really what they're looking at there the types of criteria that they would be approaching this from once the material makes it through the DOE quality assurance review it then moves on to the next stage of the process uh it's the box there that says indexing and withdrawal withdrawal uh i i like to refer to this as the liberation stage okay uh because this is where if i use the example of a one box project this is the stage where in that one box of records if there is only one document in that box which continues to be exempt from release if it's withheld it has a tab around the document that one document is removed from the box set aside put in a withdrawal box sent to the classified stack information about the document is recorded in our tracking and control system a withdrawal notice is inserted in the box which serves as sort of the holy grail for requesters in order to be able to identify and find and request that document uh but the other documents in that box which have gone full through the full d-class evaluation process are then eligible to be moved to an open stack they're liberated uh and allowed to move to an open stack for public access so this is a very important part of the process if those documents uh those documents that are ready for the public open shelves they've been declassified they moved to the right and however you will notice that i do have this point about other access restrictions i don't want to scare you and make it sound like nothing is going to be released however i must note that in some series of records in some documents in some boxes some projects they're all ours there are also other access restrictions on some of these records so i just want to make you aware of that those could be law enforcement it could be some sort of statutory exemption it could be personal privacy it just depends uh i that's not necessarily the norm but i just wanted to make you aware of that and if there are other types of access restrictions on those records uh nara's foya and special access staff works with requesters on gaining access to those records uh but at that point i've washed my hands of this it's not a declassification declassification issue any longer it could be some other special access restriction for records that are withheld during the process they go to uh what i'll call the north of that indexing and withdrawal box to our interagency referral center this is a uh an innovation that predated the executive order but was spelled out in the executive order that is another uh you know fantastic interagency operation that we conduct which allows reviewers from other agencies to review documents that were withheld during the automatic declassification process for potential release once they come up in their queue uh at this stage of the game there's further records end up being released and those will then be refiled in their original series in open stacks and made available for researchers and those records that must remain exempt or withheld will be refiled uh in our classified stacks in with held uh withhold it withheld boxes until they come up for release once again so that's the high level process for at the macro level for the uh large scale uh annual reviews and transfers of classified records the bottom half of the slide gets that more of the micro level and this is the access request from the public uh role here and how do does the public how do researchers get access to individual specific documents that have been withheld uh we have two basic routes foyer or mdr but before i get to that i just wanted to mention the first box coming out of the shoots is indexing on demand this is an innovation of the national d-class center that allows the public to play a very key role in shaping the decisions about prioritizing what will be indexed and released based on researcher interests and requests so this is really the part where the public plays a key role in helping to determine what is going to be prioritized for release by the ndc and i think it's also important to uh just to mention once again that the reason we build this in after the doe quality assurance review is because as the nation's record keeper we at the ndc have a responsibility to ensure the quality of the basic review of all of the classified permanent records coming into the national archives we can't neglect this agency or that series of records uh we have to do this for all of the records because uh we have this responsibility for these records to the american people however at the point after it go the records go through evaluation and doe quality assurance review it's a natural breaking point which allows us then to focus on what's of most interest to researchers and requesters so that they can play a role there is a q for indexing and withdrawal and rather than just taking in projects first in first out what we do is we annually publish a list of projects that are available for indexing and withdrawal or indexing on release on demand on our website which allows requesters to visit scroll through identify a project of interest to them which then will shape the ultimate q for indexing uh and withdrawal this allows us to prioritize based on that indexing on demand list so record projects d-class projects that have no interest they will sit on the shelves until there is an iod request for them or that we get to them in the q however projects that do have researcher interest will get prioritized uh this helps in two ways the first is that there may only be one document tabbed in that box that must be indexed in order to release say 90 percent of the material in the box so that accelerates and speeds up what we can get to that particular researcher or requester and then for the one document that continues to be withheld we then have the foya or mdr our route for that particular researcher to request that one document so it allows us allows us to get a lot of material out plus then provide the means for the interested party to request the document of particular interest or documents whatever it is so under foya and mdr we work closely again with our interagency partners uh the foya mdr shops for our partners are not located in the nbc these are generally speaking part of an agency's in overall information access program so agencies don't have their basic foya or mdr shops located within the nbc so we take documents that are uh withheld in our holdings and then we consult with the agency that has the equity which that is the box to the right agency review when we consult with those agencies those agencies conduct their line by line review and say redact release whatever the case may be and they return the results to us and then we communicate those results to the requester and there it could be denied in full release in full release in part whatever but it's a line by line review conducted which allows for redactions so that's our overarching process at a very very high level uh i didn't touch on lots of nuances say or details about the process but i wanted to ensure that you had a good high level picture of how we fit into the national archives the overall scheme of things the executive order and uh also to ensure that you had an understanding of our role in terms of at the macro level all of these records but then at the micro level trying to get individual uh records to requesters and researchers i should also point out that up until this point we have been really a shop focused on federal records however over the last year or two uh there's been a change in that and now the nbc will be responsible for the declassification of presidential records as well that process of moving classified presidential records to the nbc for declassification was disrupted severely uh by covid we were in the process of moving from collections from various libraries into um our facility for d-class that was disrupted by covid and it's also obviously disrupted our ability to be able to start to process any of those records however moving forward i would like to note that the nbc will be responsible for the d-class process at the macro and micro level for the for federal records as well as presidential records so with that i'll just uh i'll stop here alina and then i'm also available with john for any questions and again thank you very much for this opportunity so thank you so much we really appreciate that um we already have three committee members very eager to ask you questions i know we're running up against our break time so um let's keep that in mind um but i definitely want to encourage all of these questions to be asked it's a great opportunity cal McClanahan is first up uh after that to one and after that tom sussman that's who's been queued up so far if anyone else has any questions they want to ask please chat me and kirsten james also has a question james you're fourth up all right um cal and just to also let everyone know by the way james reminded me earlier that he has to jump off at 11 45 a.m so um kirsten i'm sorry kirsten ellis his co-chair on the subcommittee for classification will be giving the report out so um anyway with that uh cal go ahead please well if james is about to have to jump off soon why don't we let him ask you his question first that would be wonderful thank you james i mean thank you cal james do you want to go ahead uh yes i'm sure absolutely um can you hear me now yes okay great you can hear me okay good good all right so first i want to say thank you all for the very informative and uh stimulating presentation it was a lot of information but i think it provides a very nice overview of the functions of your of your offices and gives us a lot to think about as we we go about our um our work i have a lot of questions i'm going to try not to ask them all but i think the um kill a couple of things things that you said uh really drew my uh drew my interest so you you gave some suggestions for the reform of the executive order on classification um i was curious so who's going to write the new executive order isn't when it's uh rewritten and then um another slightly more specific question i wanted to ask related to the tracking of information on classification and declassification uh requests i was curious how you track that information and also whether you track information related to the use of glomar exemptions in response to uh request for national security information this is an issue that our subcommittee on classification classification may look into and we're interested in gathering information about that thank you very much bill you might need to feel that right now we go john was all got kicked off the audio yeah john is calling back in okay bill would you mind taking a crack at the least part of uh i'm back park button oh good john's back although i missed the question if it was directed towards being yes so james sorry can you summarize sure uh so just just very quickly so on the on the executive order you mentioned that uh that there is a possibility of it being rewritten who will lead that process and uh and how will it work and then i'll ask another question about tracking information about uh the numbers of classification and declassification requests and also whether or not you track the use of the glomar exemption okay i'll move in the first one first all the executive orders in the implementing directors are done through an interagency process that is led by the national security council through its normal nsc policy making process typically for this executive order it's going to involve senior leaders from those agencies that have an interest in this partner defense office of the secretary of national uh national intelligence department of energy department of state justice fbi national archives iso so there are a whole lot of folks that will participate in that uh if and when it does happen so that process can take anywhere from six months to a year and a half it depends on how we can how the interagency process is working its way through and also the direction that you are given from uh through the national security council structure so those are a few things um second question had to do with are we tracking the number of declassification decisions um and i'm assuming you're appearing to to mandatory declassification review um the answer is not at the moment we have completely stopped our kind of data can data request on that as we start to work through with agencies as to what we think we want to do that will help them improve the program talking with civil society groups and stakeholders this is one of those uh data points that we do expect to continue of how many nbr requests do you receive in a year how many of you complete how many are carried over uh things like that on the deep automatic declassification front up until 2017 we were capturing that information as well as the uh mdr information um the third question you asked had to do with are we tracking glomars we do not we only track whether at least at that up to that point we were tracking only whether an agency had exempted information uh had exempted the record under automatic declassification or they had declassified their equity uh or if they had referred it to another agency that was it so we do not track it that to that granularity of a level uh do you mind if i follow up and ask whether you think you should be tracking that i'm sorry if uh it's someone else who's going to respond plan apologies well it's certainly something we can kind of take up um so um i guess i haven't seen too many glomars the only difference i mean i think that you would get um it is not really a government-wide issue as it is a very specific intelligence community issue and really that is a cia issue uh primarily um we certainly i think we'll look into it i i encourage you to put that up on the uh the pidb's blog as well so there's something that the both the pdb can look at and we can also take a look at and see uh whether we think it's it's it's worth doing okay now thank you very much can i just ask one other question i'm sorry that's i've monopolized the before uh so you you mentioned the categories of redacted and formally redacted records which is an older uh you know set of set of security classifications as i i understand it um that are no longer used should these still be around i mean uh would it make sense for there to be legislation or something like that to change the classification would that make your work easier or would that just sort of complicate things so first thing is i did put in the chat for all when bill mentioned with frd and rd rd and frd refers specifically to the 1954 atomic energy act as amended which classifies restricted data as scientific information relating to the development of nuclear weapons and then remove from that rd category 1954 that was the amendment was something that they ended up calling formally restricted data which had to do with the application of nuclear weapons including storage sites how you actually designed the weapon systems to carry a uh a nuclear weapon so a little bit different now the current if you're talking about the old old exemption category restricted um i would say that the the orders already in previous orders actually i want to say the 2000 and in three order or maybe even uh the the order from uh from bill clinton that eliminated that category and uh it said that that information was declassified so uh if it's if it is a restricted category that information dates back from world war two and it's already taken care of the order also does in uh does talk about oad r which is originating authority declassification required which means that you had to go back uh to the originating agency or you could not determine a declassification date and all of those also have been superseded by this executive order which says it doesn't matter how the records are marked they are all subject to automatic declassification at 25 years unless you have an exemption for it and even those they're exempted those that are exempted their exemptions expire at age 50 unless you've asked for additional permission to extend it beyond that that may be a little bit too too detailed for you but um i hope that's that's good uh but no thank you thank you very much for for your responses james stoker again um but uh i was actually referring to the restricted informal really restricted uh data uh which you know my understanding is that uh they are things that congress needs needs to legislate and so basically what i'm wondering is if the existence of those two categories to deal with nuclear weapons related information if if they if these are categories that should be effectively changed in other words should they just be made top secret or something like that so that they can be dealt with within the um you know the normal channels of declassification or if that uh would not necessarily help uh the the the declassification of information well i i i guess uh i would give john powers opinion on this and bill uh fisher please feel free to join in uh it is a law it's from 1954 very old heart of the cold war um especially that i mean it does make some sense to to legislatively protect very specific scientific information science and science it's not going to change over time on the technology on on how you build an atomic uh weapon and perhaps that is a very good thing that we don't let everybody see now the category of formally restricted data i think just the term itself is very confusing to everybody um i wish that there was a different term that they used uh i know that the department of energy has its own implementing regulation 32 cfr 10 cfr i forget the the uh the the specific citation but there are processes within that implementing directive on how the public can request this information be removed from frd or rd status um i don't know that it is a that how the department of energy has actually worked those processes i think that there are some reforms that should be uh helpful in that in trying to modernize the how one goes about declassifying formerly restricted data including a new term this is my view um and i would say that bill again i'll let bill come in here when they do the kyle lot national national defense authorization act amendment which happened in 1999 i believe or 1998 that requires every agency certify through that it has reviewed its records with from declassifiers who have passed department of energy training that they have certified that there is no rd or frd in those records now when the qa the quality assurance takes place i would think that 95 of the records that were found that were missed which is still a very very small percentage our frd uh designations either that they're marked or they're unmarked and that is where i think that there probably could be a little bit of uh uh discussion about how to reform that unfortunately it's a law um and i would say that that it is very very difficult to change a law but uh that is something that it might be worthwhile to explore that perhaps bill uh fisher would like to say a quick word or so and this is alina unfortunately bill had some audio difficulties and he's dropped off um he's trying to get back in so as soon as he's back um maybe he'll jump in um so james are you um are you satisfied with your questioning are you done for now or absolutely and i just want to say thanks to both of the speakers again for for all their work and and for coming today very great and james please put that up on the pdb's blog i will thank you very much all right great so cal over to you hi john and when if bill is still watching hi bill uh again i echo james's thanks for this very educational thing for for many of the panel members who don't deal with national security information uh i'm sure this was very enlightening i'm going to sort of do the attorney thing and ask you a question that i already know the answer to john simply because it is something that the uh the classification subcommittee is looking at and i think that everybody would benefit from a greater explanation and that is since we are the foyer subcommittee we are the foyer committee we are dealing with foyer directly and not as much sort of how to do mdr and how to do declassification uh how does mdr in every agency not just you know nara handle information that would be protected by a foyer exemption what what's the interaction between those two sir uh well the executive order is very clear on the section 3.5c i believe um requires that records that are requested under mdr the review of the agency review those records for public relief which means that they are reviewing for classification the records have to be classified in the first instance for them to be a mandatory declassification review request but agencies must also review for the other foyer categories so that the very end of this the requester is getting a public release document that has been redacted for uh if it has been redacted at all um and i would say that uh in the past we found out that over 90 percent of the records that were requested under mdr actually are declassified so people seem to be getting what they want uh at least uh from from the more recent past um but if there is a redaction they are supposed to cite the reasons for those redactions so it'll be the the the the typically on mdr they will cite the executive order using a 25x category and then numbers one through nine depending on the reason for the exemption and if there are any foyer exemptions they're supposed to cite the foyer exemptions that go with it and if i can just follow up this is something that we talked to bill carpenter way back when uh when he had a a round table if you file an appeal to icecap of a decision where they have uh made a withheld something under foyer will icecap adjudicate that appeal so perhaps if it is a recent foyer exemption uh if the requester has um uh there there are a couple different things if it's the same requester and the document where the record was exempted or redacted using a b1 exemption in the past two years if the record has been reviewed in the past two years that's the same requester they don't have to to to do it to do it um it's a time saving uh thing and recognizing that um uh agencies are pretty strapped for both foyer professionals and declassifiers um but that is why at the beginning of this process you we at requesters must choose either foyer or ndr um now what i would say is that uh the icecap will not look at other foyer exemptions uh they are concerned totally with the application of the b1 exemption the 25x category or the 50x category or the 75x category and all right is it being correctly was it correctly decided and applied um i'm not quite sure if that answers your question but maybe that's a start uh it gets most of the way there that the the point i was trying to get at and you did explain it is that if for instance you follow an ndr request ca for something that is an attorney's memo that they will say uh we're not going to grant this under 3.5c because it's covered by the attorney client privilege to do foyer exemptions and b5 if you appeal that to icecap icecap will say we can't we have no jurisdiction to adjudicate the b5 what we can only adjudicate the ad classification decision or not is that accurate correct that is correct so they would have said on the crazy chance if the the cia using your hypothetical example the the the icecap will look it will decide if the cia didn't make that initially case they will decide what is and what is not classified in that record now um um if uh it that would potentially allow the foyer requester then to use the judicial process for adjudicating that foyer restriction that is not a b1 and thank you and i have one small small question and then we can probably go to break um if alina signs off on that if they get a request like that where it is it is classified but it is also exempt under a b5 will say will the agency process the record for declassification even if they might not release it for other reasons so that at least going forward it will be an unclassified privileged document that in my view the agency should process that and they should be citing all of their reasons for why they are withholding a record whether it's exemption one or exemption five or other exemptions under mdr certainly if it goes up the field up to the icecap they are going to make a decision on whether that record is classified or not um outside of that it's the purview of the agency the other the other example i'll give you has to do with rd or frd rd or frd information is almost always found within a record that contains other national security classified information that is not rd or frd so the interagency security classification appeals panel is going to make a decision on all of the information that is not rd or frd but it will leave it to the department of energy and the department of energy and the department of defense in the case of frd to decide uh how to deal with that information all right thank you very much so it's very helpful all right so um despite what cal said we are not able to go to break yet because we have two other esteemed committee members who are queued up to ask questions swan you're up next unless you think questions have already been asked that you were already attending to ask so in part i'll um i'll limit my question here but um my question was about executive order 1350 uh 13 526 section 5.3c also uh which operates as a sort of an election of remedies you can get uh you know executive mdr process which while ultimately discretionary bound by executive standards it is likely to be more generous than the alternative or you can get the judicial process that you know you could sue uh under uh FOIA but you'll get the court's exemption one germs prudent switches you know very deferential to the government and the courts decidedly do not follow the philosophy of releasing all we can protecting all we must if you go into litigation this provision feels a bit punitive um so uh given mdr not an ice cap appeals have enormous backlogs um in terms of you know a president elect biden contemplating an order i wonder if we can't get some change here perhaps a compromise where a request or two without losing uh executive uh you know ice cap process provided you've been waiting good faith long enough i wonder if this might uh sort of at the same time because we're all interested in sort of disclosing uh all uh we can protecting that what we should we must i i wonder if we might not see some change there um i think that's a very good question um i i i hope that you do uh please please put that forward um i i agree i think i do analysis of agency nbr programs and i'm sure it does follow what is going on in the foyer world too and that is that um offices are overwhelmed with priorities and what i will also say is mdr foyer is a law and when we go out to talk to agencies and when the pdb went off to talk to agencies what they heard is they're going to try to prioritize a little bit the foyer since there are legal ramifications for non-action or uh uh or adverse decisions um and even then they're still woefully behind that is the same with the with mdr they're woefully behind on that too um how you uh can get to that with a 1300 plus case backlog and there can be multiple documents or multiple i'd say documents at the moment because we haven't gotten to electronic records yet in the icap um that that's a very very good question and i i certainly uh putting on my what what the future should hold at we'd be very interested in hearing your ideas on that so please please do uh uh send those along thank you okay thanks tom uh tom are you still with us and i am and the lesson thanks tom sussman uh two questions uh we have two subcommittees looking at the issue of training relating to foyer uh and yet the uh you had mentioned earlier john you that training is required for classification but uh there's a real compliance problem and so uh i'm i'm wondering if there's a role that the uh advisory committee can play in trying to if you have some ideas we don't have to do this now but uh how to get some enforceability to the training requirements which the the result of um absence of training is almost always going to be over classification i mean one possibility would be no training within an 18 month it's supposed to be trained every year no training in 18 months and you lose your classification authority or i'm i'm sure that there are other ideas one could come up with so that's that's sort of one issue that i'd like to sort of put on the table the second is there's also a legislation subcommittee of this advisory committee and uh i recall during the 70s the big battle between the congress when they were considering competence of classification legislation and the executive branch said no no no you can't do that constitutionally uh that's an executive function uh and so i guess this may be a bigger question than uh you want to address uh right before the break but yeah what's what's the role that congress can play i mean should we be even considering recommendations to congress in the classification area uh or is the administration likely to take a historic position that uh will do it by executive order in congress so you know you should not intervene thank you hello am i on yes um great questions and i so so i would say is i cannot speak for the administration i seem to have lost my audio here um but um i i'd say that i can't speak for the administration what i would say is that as far as legislation goes um the challenge of undoing legislation seems to be harder than an executive order uh and that's just my personal view we are still dealing with the effects of a 1954 uh atomic energy act amendment on rd and frd information that is a challenge for historians uh and that we hear about at the archives at isu uh and in the pidb specifically uh almost uh weekly um the other uh the thing i would say um is that so first of all regarding your training thing is the executive order does have punitive actions for what happens if you do not receive your training in or original classification authorities in theory at least according to the order if they have not taken their training they're yearly training they are supposed to uh lose their their ability to classified records that's the uh that's that's the order it says that already now what isu has found is that uh and not so much for the derivative classifiers but rather for the oca some of those folks that agency head deputy agency head the heads of uh uh assistant secretary under secretary level who are typically the the three star generals those folks are usually quite busy and we do have concerns about the quality of the training that they receive that they are perhaps done too quick they're not as detailed as they should be um that said we also are not really staffed to go out at it to every single oca and even though that they are far fewer oca today than there were 10 years ago and that's a good thing we think um uh we don't have quite the staff in to go out and do that we do offer kind of uh template slide decks for uh the person who was responsible for an agency um information security program the senior agency official who's responsible for the program that they can use the training that we have uh and just kind of modify it to fit their agency um whether or not that actually happens that's the question the derivative club declassifiers we feel pretty good about the training that they receive but the original ones we're not quite so sure based on some of the the few interviews when we were going out to agencies and actually doing onsite inspections and part of our process included an interview with one or two oca and one of the questions we'd asked is when did you do your training uh and the answer was i don't know that then we knew that we had a corrective action and a finding to put in our in our response um i don't know if i've answered your question or or not maybe perhaps a little bit and i'm happy to kind of continue this discussion uh uh either through your subcommittees or otherwise too um you're good well i'm back on all right um i think uh tom just gave me a thumbs up so thank you um it could very well be that bill fisher has rejoined us on audio but we're going to give him a little bit of a break uh what we may call on him to do is revisit some of the questions that were posed today all the questions that were posed today by all of our committee members and ask whether he has anything to add to john's great answers john thank you so much for hanging in there with us we really appreciate it let's all take a 15 minute break i know we're a little behind schedule actually way behind schedule so let's all try to come back at noon uh can i give you a 10 minute break instead of 15 minutes that would be really great um and uh we'll continue our our great meeting that we're having so everyone 10 minute break uh please come back at noon thank you i just want to make sure we're back online we're recording and our audience is watching us can you confirm that please yep we are all set okay well thanks i'm sorry to give everyone a really short break you know you can run away from the computer anytime you need to but i appreciate the fact that everyone's hanging in there uh bill thank you so much for your participation we know you have to drop off a little bit so we are going to grill you with all the questions that were asked and and ask of you if there's anything you want to add later after the meeting and we'll post any additional thoughts you have to tack on to john powers is a great answer so you're not off the hook entirely but um thank you and i'm sorry if you have technical problems so uh at this point in our meeting i would like to turn to the part of our agenda where we hear on the progress of each of our four subcommittees i am extremely grateful to all four subcommittees um none of them have wasted any time since our last meeting everyone has rolled up their sleeves and started digging in to figure out mission and direction so thank you very much for that um i did suggest at our first and our first meeting back in september that each subcommittee focused on a mission statement of some sort that may help move uh the ball forward i understand that although some of those mission statements are ready some are still in progress so as soon as all four subcommittees are ready for prime time we will post them all on our website so stay tuned for that uh but i'm excited to hear from all four subcommittees i think the committee will hear all the great work that's been going on i know some of the committee members are all multiple subcommittees which i think is actually great benefit because they can lend their voice to things that they're hearing that's going on in each of the various subcommittees so i really want to encourage that twan it's still not too late for you to join the classification subcommittee that's my pitch so over to christin ellis unfortunately james stoker who is our uh co-chair on the classification subcommittee have to sign off but christin is going to carry the weight today so christin over to you thank you alina um hi everyone so as alina said james and i are the co-chairs of the classification subcommittee um and james had to drop off so he's left me in charge and that may be dangerous um the classification subcommittee has drafted a mission statement um as alina said i think that since everyone is not ready for prime time they haven't been posted yet as a general proposition the classification subcommittee is planning to investigate the role of classification in the FOIA process um certainly the classification of information is critical to national security but as both john and bill talked about earlier it can impose obstacles to the public ability to access certain information and so we are going to explore that in a lot of different fashions we think um during this term to that end our most recent discussions have focused on possible priorities for the subcommittee to work on and we can't right now the subcommittee is four people me james kell and luvna and so we have limited resources limited time to explore all seven at least at once so we decided to try to prioritize um the priority list and determined that we could work on a couple of items at a time and maybe at the end of this we will have touched all seven or we will have um really touched on an issue with just focusing on one or two that really uh we think are critical to this work so maybe we'll only get the two of them uh to that end we identified the we also considered that it might make sense to have a more broad longer term item that we work on and then smaller more concrete more time limited items that we could get due outs on more quickly that may inform the bigger process so we went through our list of seven potential things and came up with two that we want to focus on initially one concrete one more broad and the concrete item is how glomar responses are administered across the government and for folks that don't work too much in the classification area in toya a glomar response is basically just an agency refusing to confirm or deny whether the responsive records exist um but glomar was actually a classified cia ship and there was a case about that which resulted in it being called glomar um so we want to focus on how glomars are administered in the government and is there any sort of consistency across the agencies regarding youth which there may not be because different agencies have different reasons for invoking a glomar as i think the presentations earlier today and kel's question to uh john i believe indicate it seems that it's a data point that's not being collected right now in the government so this is largely going to be a research item to see if we can go our hands around the use of glomar and how it's being used in the extent to which it's being used in the government then the second item the more broad longer term we think item is how agencies can proactively declassify documents to better meet the concerns of the requester community so again i think this dovetails a lot with what john and bill were talking about um but how can is there a way how is there a way to make information more accessible um proactively versus through the mdr process or through the foyer process um so that one is broader and it's probably going to require a number of different avenues to figure out if there's a way to accomplish that um so our next subcommittee meeting is after the holidays and we will you know continue the work in discussions we're at very early stages all of this so um my my time here is short that's pretty much all i have to report out from the uh subcommittee activity so far um unless somebody has questions or alina kirsten if you need me to address anything else i'm certainly very good i just want to ask your subcommittee members cal luvna anything you either one of you would like to add this is luvna nothing to add uh well stated christin thank you thanks luvna and cal i hope that thumbs down was not i just completely screwed that up but that you're good right no i'm good i i have lots of things to add later but not today okay the work continues thank you so much christa for that report uh michelle next slide please the next uh subcommittee that's going to report for us is the uh process subcommittee uh the co-chairs are linda fry and michael morsey and linda and michael i don't know which one of you is going to present so i'll let you take it from here um i can go ahead and and present um basically we have been meeting every other week and um at this point we've started on our mission statement but i don't know that it's 100 finalized yet and we've identified eight uh recommendations from the prior committees that we want to further explore and see um the likelihood or difficulty in trying to get some more of these implemented to help help the FOIA process flow michael do you have anything else to add yeah i mean uh i think that that covers it i could i have a draft of our uh mission statement that was still sort of a working working mission statement so far um but i think uh i'll just go through it a well functioning system of public records is a cornerstone of informed democracy and so this subcommittee examines the current FOIA processes as a mason would their tools in order to further improve our field will identify how prior recommendations have and have not had their intended impact highlighting both successful pilots and progress while noting blockers and impediments to progress we'll also look as holistically at how we can build a shared understanding of FOIA's purpose and process which brings together the goals of their cluster and the processing communities as well as identify applicable inspiration from state and international practice we'll pay particularly close attention to the FOIA process through three particular lenses the use and adoption of technology the independence and impartiality of the process and structural incentives to set the groundwork for lasting improvements for the field so i think that has the word process about 50 times in it but i guess that's relevant for our committee okay michael thanks very much and linda thanks very much um any process subcommittee members have anything to add i just want to personally thank you um through the process subcommittee for taking on this probably not so thankful task of looking back to prior recommendations um on behalf of ojas we're very grateful for that for that help i think that's you know very very um valiant of you and and very much appreciated so thank you all right so uh hearing nothing else from anyone on process if we could go to the next slide michelle please i uh invite now the technology subcommittee co-chairs to present and let us know what david up to alison detrick and jason garth our co-chairs alison and jason i don't know who's going to go first or i'll let you guys figure it out this is allison i'm going to go first so we uh finished our mission statement vision statement and we're going to be exploring the applicability of technology driven solutions to improve and streamline the FOIA process as well as review prior advisory committee recommendations so we're currently in the process of going through the technology aspects of the prior committee's um work and seeing which ones that we think we can take the next to the next step which ones we can add to and fully execute as well as seeing what new priorities um and goals that our group has and we're looking to do both short term and long term impacts as well jason do you have anything to add no that covers it thank you um i i do want to note that um the technology subcommittee has been coordinating with the technology committee of the chief way officers council so we're trying very hard not to overlap but there are so many issues that need to be looked at so again i'm also very grateful for your work and trying to follow up on recommendations from the past committee terms that we've had so thank you for that anyone else on the technology subcommittee have anything to add or anyone on the committee have any questions i'm seeing a lot of nos okay um okay so moving on last but not least uh turning next slide michelle please to patricia weth and cal McClanahan our subcommittee co-chairs for the legislation subcommittee and i'm asking that as a question mark are you legislative or legislation i just want to clarify that's a good question yes okay i'm not entirely sure i think i think legislative is better uh but you know we're trying to think in through yeah yeah legislative sounds good and cal um you said you were going to go ahead and present so over to you please so uh our committee or our subcommittee is a little bit of an odd dot here where we're more of an operational uh approach to rather than being a particular subject matter like technology or process or something like that we're looking at issues that you know we've decided are particularly ripe or susceptible to legislative fixes to legislative reform or even to exploration to see if legislative reform is necessary uh we originally had 13 items that we went through some of them were from old recommendations some of them were from old were from recommendations from other committee members and narrowed it down to four we don't really have a not even ready for prime time we don't have a ready for the midnight show mission statement yet because we decided because of the sort of the nature of our subcommittee uh we are making six months planned basically and so what we are talking about now what i'm talking about now is what we're planning on doing for the next six months and then we're going to do a whole new six month plan that may be something completely different or make it carry over some matters so we voted on all 13 we had a lengthy discussion of them and we settled on four topics that are relatively briefly uh expanding FOIA or some FOIA like process to certain parts of the legislative and judicial branches like GAO or capital police or administrative office of the US courts uh in the greater interest of greater transparency to those agency like entities that would be amenable to that kind of uh transparency uh finding ways to improve uh and give greater authority to uh and in all ways make OGIS more effective more um resilient nimble able to sort of do the things that those of us who were here when OGIS were created sort of envisioned for OGIS to do uh to address that bugaboo funding you know appropriations getting money for FOIA offices or before FOIA programs or finding ways to make more bang for your buck in FOIA programs so that if you don't get more money at least you can be more with it and the last one is another perpetual argument how how to improve fee fees how do agencies assess fees how do they charge or how do they use them should they have them if they should should they be uniform etc etc uh all things fee related those are basically our four topics that we're going to look into hopefully have something done on at least all on at least a few of them if not all of them sound six months from now and then we will recalibrate and decide where to go from there and I'm good unless anyone has questions or Patricia wants to say something um I'll I'll just follow up and say um as Cal mentioned those are our four uh working groups um expanding the scope of FOIA strengthening OGIS FOIA funding and FOIA fees um shameless plug is any of these sound of interest to you and you would like to join our subcommittee and these working groups um you know the water's warm so jump right in thanks for Patricia perfect plug I really appreciate that and thanks Cal for the presentation I just want to I'm looking at everyone does anyone have any questions for any of the subcommittee co-chairs before we move on I'm seeing no one jumping up and down okay so at 1220 we were supposed to lose Alexis and I'm hoping maybe I can catch her for five minutes um and we're unfortunately a little behind schedule today and I'm going to have to just cut short a part of our agenda but since it's a very very important topic I really would like to say that I'd like to get it started today and continue and carry it over to March when our next meeting occurs because unfortunately whether we like it or not the pandemic continues to stay with us um so just a quick couple remarks and then I'm just going to turn the floor over to Alexis when this year began I don't think any one of us could have imagined the year unfolding the way it has um and we all know that COVID-19 has had a profound effect on all of our lives but in particular today I wanted to just focus our discussion among our committee members so we can learn more from each other about how the pandemic has impacted the FOIA process at federal agencies and how in turn that has translated to the requester community we know that on March 17th 2020 OPM ordered maximum telework flexibility across the federal government to move to full-time work from home environment effective a lot of FOIA offices especially in the intelligence community O just found itself in a unique position to observe FOIA administration across the government so we published a quick review of that we looked at how agencies were informing FOIA requesters about what was happening as a result of the pandemic a snapshot between May 15th and June 9th of 2020 and in the midst of that review Kudos to OIP OIP issued their guidance for agency FOIA administration in light of COVID-19 impacts on May 28th 2020 and it's stressed four important things FOIA statutory time limits remain unchanged requesters I'm sure wanted to hear that importance of clear and effective communication with requesters encouraging agencies to make proactive disclosures and leveraging technology to maximize efficiency just a shameless plug for OJS we're actually going to undertake another review of agency websites and we hope to publish another quick snapshot in time report in the near future so with that I'm just going to turn it over to Alexis maybe she could share with us a few things that have been going on in her agency before she has to jump off yes thank you can you hear me okay yes perfect um so we immediately put a notice banner on our landing page which I think was very helpful for requesters you know we of course encouraged electronic submission to the extent possible in lieu of mail and fax we also encourage people to consider outscoping those portions of the request that are asking for hard copy records with the understanding of course that many people were of course teleworking and unable to do or perform those searches so we have found that requesters requestor community has been very amenable actually to outscoping portions of their request of course with the caveat they will come back once the pandemic is over to request those other portions but I think the majority of our records are electronic now so most of what they're asking for it can be access through those electronic searches one of the big things for us initially was stopping and I'm sure this hit every agency but you know we really had to think about core hours and how we do schedules for our analysts you know everybody has families and so we wanted to make sure that we were being mindful of that and so we actually extended our core hours and so we were also very flexible with our schedules you know we have some folks who will work a few hours in the morning take a midday break and then work in the evening so you know we have folks working as early as five thirty six a.m. and they might conclude their day at seven so once that flexibility was afforded and approved by our general counsel I think that we began to you know be that continuity of operations again one of the things that we are still trying to figure out or resolve is the idea of these checks and so to the extent that we can wait sees we have been doing so but again you know that does require someone to come into the office and so we've been kind of just round robbing the idea of folks coming into the office to pick up checks look for checks and making sure those those get off to the treasury again we are looking for solutions to expedite that process overall I found that you know our our agency and the types of records I we are one of the fortunate ones we don't have a lot of classified records so it really lended itself to telework and I am actually pleased to report um despite all of the challenges this year we recently had a realignment where our staff offices were realigned in their office of general counsel and all of our staff offices this year despite the challenges realized reductions in the backwalk so I'm very pleased and proud of that um but again I think that you know uh has us starting to think about how we do our business operations and what's the most effective okay alexa thanks that was really helpful um do you need to jump off or yeah I will need to jump off okay thank you so much happy holidays and thank you for sharing all of that thank you um so initially thank you initially I was going to ask roger to kick us off but um I gave alexa the force that she had to leave but roger would you like to share with us a little bit about what's going on at the cdc um especially because I'm sure you are um under a lot of scrutiny a lot of requesters want records um about what's going on at the cdc especially during the pandemic sure thank you alina and good afternoon everyone um we've done a couple things um I think one we did provide some updates to our website and basically encouraging requesters to submit their request electronically um because we have basically two avenues by which they can submit their request and it's entered into our system so it's a much more efficient way to do so we discouraged uh we basically said that you know don't submit requests by mail because there's no one there to pick it up we still have had quite a few come in not that not that many and so we have um one of our staff members who goes I think for the first six or seven months we had no one go to the office uh but we recently had a student intern come on board and he has caught up with all the mail in the office so we'll be able to handle that and we also be able to work find a solution to getting payments for fees electronically so that people don't have to send in checks um by the realities we very rarely charge in fees anyway and so that is not really a big issue for us uh we certainly have seen uh because of the role of cdc to playing in the pandemic uh we we've seen a significant increase you know for your request for 2020 f y 20 um cdc typically averages around 1100-1200 requests and for the first time in f y 20 we ended up with very close to 2500 requests so that's that's close to a hundred percent increase you know in i now in the number four request that we see and the vast majority of the request that we work on are related to COVID so basically we are the COVID processing agency for the agency for the for the nation basically all the credit the majority request that we get it's everything all about COVID and um most of the requests that we receive are also complex in nature because all these COVID records involve multiple agencies um and the White House and so processing the documents and and and getting them out the door has not been as prompt and as timely as we would like we've seen an increase in our void backlog from a low of less than 20 in at the end of f y 19 cube somewhere in the region of over 300 which is something that we don't want to see but we're working to try and get it down but we certainly have changed some of our processes to make sure that we can much more efficiently move cases along um i think around june um i mean i think i can speak to this CDC engage with OGIS so that we can engage with our you know before they engage with our request list and we had i think close to a hundred um participants from both from the request the community reporters and just members of the general public to give them an opportunity here from CDC what we're doing with regard to handling COVID request and how they could help us help them and i could say that i think since that webinar we've seen a change in our communication and the willingness of requesters to work with CDC in terms of providing responses to our request they're much more um willing to work with us and that has been very helpful we've also seen an an electronic dramatic increase in the use of technology to assist us in in looking for documents before f y 20 i think probably only about 15 maybe 20 percent of our fire requests were conducted by the fire office most of the sets were conducted by custodians um but i said the end i said early november over 7 000 cdc staff assistant assistant with that with the with the response which means that we don't have the luxury of going to custodians and asking them to assist with schedule for documents so uh fortunately because we had um e-discovery 2 was available it has certainly helped us ramp up uh usually that utilizing that e-discovery to set for documents and certainly that has definitely helped us out a lot because without that i think we'd be completely buried uh we've definitely had our staffing issues but we've managed to secure some COVID resources for two 10 employees who are going to be with us up to four years and that has certainly helped we recruited a student intern to help us with initial intake and that also has been helpful and we are working to see if we can get a contract in place to assist us with um processing fire requests so we can move these cases out quickly uh and lastly what i want to say is that as a result of you know as our inability to respond to fire requests timely especially this COVID we've seen an increase in our litigation cases and therefore that's another thing that we having to deal with that hopefully i think that we have done to a much better place now that we have a much better process in place and we're moving in the right direction that i i think that you know a year from now we'll be a much better place than we are right now in terms of timeliness of responses to request we find our process even better communicating with requesters even better um providing a lot more interim responses to fire requesters and and asking them whether that will be enough to to close our request especially if some of the other records that they're waiting for might be involved for example UP documents hopefully we think that some requests might go you know what which is given off is enough for what we're willing to to close our request if anybody has any questions or now at any point i'll be happy to answer all right roger thank you so much that's really helpful so to be fair and balanced i want to look to uh our committee members who are on the requester side that is the beauty of this committee that we have a balance of of of both anyone on the requester side want to weigh in about their experiences during COVID uh mr. McClanahan so uh i i have actually been asked by a couple of different people to mention experiences of various litigants and various requesters with with various agencies that sort of go across the agency or across multiple agencies to find out how widespread this is one of the big ones that we have experienced is the agencies that will sort of do the rotating staff or they'll have staff come in on certain days or even certain weeks or you know the people who can't come in don't come in because they're either sick or they have to stay at home or something like that they might not be able to work in classified information but uh some agencies are still keeping the what i'll call assignment cues where let's say that Alina Simo is a FOIA officer and she is in charge of my request if she stays home my request goes into a general pool that people won't look at until they're done with all the requests that they're already assigned and so requesters are getting basically sidelined or thrown to the side by complete accident simply because the FOIA analyst that's handling their request isn't there that week or that month or can't access classified records or something like that so that is one concern i've heard from some people the other concerns that sound like they're going away so i'd like someone like Lubner or Christian to sort of talk about this when they get around to it is when you're talking about classified records you know and you're talking about a lot of agencies had problems with work from home analysts not being able to see classified records you know that appears from the outside to be less of a problem than it was maybe six months ago but i would like someone who actually works in an intel or law enforcement agency to talk about that and how they're fixing that problem great question cal i don't want to put lubner or christian on the spot but would love to hear from your perspective what's happening on your end okay uh this is lubner um i'm happy to speak to that um obviously i think i think cal's comment is the spot on which is it's less of a problem now than it was six seven you know eight months ago um with regards to to di a you know um that's been one of the biggest uh problems that we've had to try to tackle in terms of dealing with FOIA request is that um most of the information that people are you know requesters are seeking are on the classified systems but we have had a significant portion of our FOIA specialists um at home teleworking for a variety of different reasons you know we're dealing with situations of folks who have self-certified as high risk an agency has a policy in terms of how we deal with that then we're dealing with also trying to accommodate um folks who have families at home kids at home who are working and try to figure out how to balance telework with mission um and then we also are certain restrictions in terms of um the agency's reconstitution plan and the the percentage of employees who can actually be physically on site so those of all you know kind of evolved over the the last couple of months where we're we're better now the FOIA office is in a better posture now in terms of at least being able to have um a certain amount of people in the office every single day but obviously we're they're not anywhere up to 100 full operating capacity and that's just consistent with the agency's reconstitution plan in terms of how to keep the workforce safe and the safety protocols that we have in place so it continues to be a challenge but I think it is less of a challenge than it was at the beginning when we had a you know almost a majority of folks on telework but given the nature of the documents that we work with um you know not being able to have everybody in the office all the time is going to necessarily impact the ability to process um with the same um with the same you know speed or an efficiency that we did before and then again as an all-source intelligence agency we also work very closely with other agencies because most of the records that we have contain other agency um equities and those agencies have their own limitations so that just kind of built on top of it I know that we've made some efforts to try to improve upon the type of work that the folks that are teleworking can do in terms of you know intake processing you know initial responses communications with the requesters you know things that we are able to try to can do from telework the agency is working uh to allow the FOIA specialist to be able to do that um and hopefully that will help us to become a little bit more more efficient um hopefully that answers Cal's question over great thank you so much um Kristen do you want to talk a little bit about what's going on in your nephron list that was really helpful sure um so I violated Alina's rule at the beginning I'm Kristen Ellis and I'm at the FBI um we I think consistent with with sort of Luzma's experience it's less of an issue for us right now but I will say that as of Monday the FBI FOIA shop has dialed back to a 50 capacity because of impacts from COVID starting in April we had gone back 100 percent and we've had to dial that back you know the challenge for all of this for anybody that works in an agency that works on classified systems is that our systems are typically built around the classified system because it can handle everything it can handle unclassified as well as classified whereas the unclassified system can only handle unclassified so our the portals while you can submit an electronic request it gets routed ultimately through to the classified system our FOIA document processing system is on the classified system the vast majority of what we do evolves from a classified system and for security reasons we can't just down draft that information even if we believe it's unclassified to work on a known classified system with it because that risk still of classified information that is not immediately identifiable in the document so basically from our perspective this all drives around people and the ability of people to physically be in an office um which has been obviously for pandemic purposes the major impediment we're continuing to work through this our FOIA office is continuing to explore whether there are technological solutions to any of this and if so if they're feasible in terms of purchasing technology implementing technology getting it through security protocols and all of that um we're just doing our best to to continue the flow of the work from our perspective we also hate being shut down because we already were in the hole in terms of a backlog not working makes that backlog worse and we don't want a worse backlog um as I think Roger was talking about CDC's litigation load going up um FBI is definitely was already very very high and adding to it doesn't help anybody so we're trying to be creative in solutions but our our hands are very much tied just because of the security aspect of it we're continuing to try to get as many pages out to as many people every month as possible um but I think that this is a long-term government-wide problem that needs to be addressed because I think most of us were caught on our heels when we couldn't go to work we have continuity of operations plans but a lot of those are based on folks in DC not being able to work but maybe folks in California being able to work the problem was nobody could go to the office and so we didn't have backups and we didn't really have a great plan for how to work that when all of us work on classified systems in the FBI generally speaking so I mean I think that that's not a great answer but that's sort of where we're at right now is we shut down our FOIA shop shut down completely in March for about six weeks it then went back online in varying degrees we're now dialing it back because of the amount of infection and exposure that we're experiencing and I think that we're going to continue to see the up and down in the oven flow until we get the situation with the pandemic under control okay thanks Kristen so um I'm looking at our time and I know that there's a lot of other folks that would love to talk about this topic and I would like to ask for the rest of the committee members to defer and save their thoughts for our next meeting I really would like to continue this discussion I think it's a very important one and and hope that all of you agree but I also want to end this meeting on time today so we are at 12 43 p.m. then at this point I thought I would turn to the public comments section of our meeting if that's okay with everyone okay I'm seeing some nods thank you Dave for nodding so at this point we are we have now reached the public comments part of our committee meeting and we do look forward to hearing from any non-committee participants who have ideas or comments to share just a reminder we have posted and we will continue to post on the FOIA advisory committee webpage on the OGIS website any written comments we receive any oral comments are captured in this transcript of the meeting and we will post those as soon as they are available Michelle our event producer if I could ask you to please open up our telephone lines and provide instructions that would be great absolutely so ladies and gentlemen if you would like to make a public comment over the phone line please press pound two on your telephone keypad to enter the comment queue once again pressing pound two will enter you into the queue okay and at this time do we have any calls online anyone want to ask any questions through I do I do see one person on the on the phone would like to ask a question okay caller your line is unmuted you may go ahead caller please unmute your phone or device your line is unmuted you may go ahead hello this is Robert Hammond can you hear me hello yes Mr. Hammond yes ma'am I'm sorry for the inconvenience there I submitted a document for a public comment and I don't know if anybody's had the chance to read it but the first part was the question in the 2016 FOIA um legislation it required a single portal for submitting and I was wondering I was thinking that might be FOIA online but I'm not sure and maybe it's FOIA.gov but does anybody know what the answer is to that and how that project's coming yes this is excuse me this is Bobby from the Department of Justice so the the national FOIA portal that was part of the 2016 amendment that is FOIA.gov FOIA online is a shared service that agencies could use as our case management system that also has a public facing portal um such the same similar as other case management systems that are out there that either agencies have built or procuring that also may have a public facing portal but the intent of the amendments were to have in addition to that not to disrupt a single place where a request can go and make a request directly from that website to any of the agencies subject to the FOIA and so we launched that in I think 2017 or 18th we launched the national portal on FOIA.gov where you can go and each agency has their own landing page a key part of the portal is interoperability with the agency's case management systems and agencies we had a directive to agency the joint OMB DOJ directive that absent an exception being granted that agencies be fully interoperable with the portal by the end of the fiscal year and we're working with agencies to do that a lot of agencies are already interoperable and when you go to FOIA.gov you will see a form uh a standardized form but one is also customized to the agency where you can have submit your request directly to the agencies from the portal also has a lot of wealth of information about the agency's FOIA program including their FOIA libraries their average processing time their FOIA regulations their FOIA reference handbook and so so that is that FOIA.gov is the is the is where the national FOIA portal is okay if I can have just a second to follow up on that that I've used them both FOIA.gov is basically an API it connects to somebody else's application so from a requesters perspective all that does it gives you a place to submit your request FOIA online on the other hand you get a login it pre-records you know all the stuff you normally use for a FOIA thing and you can view the status for your request if it's open if it's closed uh and those sorts of things and I'm sure you don't have time to address it during the meeting but I submit I like FOIA online I really do but there are several deficiencies from the perspective of the requester in that uh and a couple of those things the agencies set by default to embargo and make not viewable to the public the the requesters name the request itself and all the correspondence and that defeats the purpose of the web page I mean release to one release to all so maybe you guys can get a chance to take a look at the recommended changes that I have for that one get it to the right committee and and hopefully somebody'll take a look at that thank you thank you I'll just uh just quickly add on to just uh that uh of course the individual portal things there you might have additional functionality but the idea with the portal is that we'll continuously building on it so that we can integrate with agency systems to add additional functionality such as viewing records and things like that so the hope the vision is that eventually all the functionality of the functionality of the national portal increases to meet the the type of function that's out there for what individual agents are using for their their portals if they are using a portal thank you sir we do have we do have another question in the queue let's go ahead and listen to that caller all right very good fully aligned is unmuted you may go ahead hello this is alex Howard thank you for continuing to hold the discussions during this state of pandemic I hope that you'll make the recording of this discussion available to the public on the archives youtube channel as soon as it's feasible along with the closed captioning described at the beginning to make this public meeting accessible I asked several questions in the chat uh prior to when I raised my hand because I wasn't sure if the queue would get to me but the principal one at the top would be grateful if you could address the others regards the suspension of freedom of information law practices and offices across our country obviously the folks from the federal government will focus on the agencies but there are uh quite a few people from civil society as well and what we see here on the civil society side is state and city government suspending FOIA during the state of emergency which has now lasted four nine months and given the scale of death and disruption gone going right now we can expect to last the winter what should be the stance of agencies with respect to the FOIA what should be the stance of others what provisions can be made to ensure that public access to trustworthy information in the pandemic is not cut off comma I should say particularly given that we see significant disparities between what uh governors secretaries and even presidents saying public and what epidemiologists and public health officials are saying in private thank you again for hosting this meeting in a virtual context enabling us to continue to have these discussions Alex thanks very much does anyone on the committee want to address uh Alex's thoughts all right this is it's about you yeah guys I'm not sure what that is either let me mute uh the last person you know what guys I am going to wrap up everyone apologize everyone I'm not sure where that sound is coming from but I am I am trying to see if muting everybody's muted right