 Going live in. This meeting is being recorded. Ladies and gentlemen, thank you for joining today's Freedom of Information Act Advisory Committee meeting. Before we begin, please ensure that you have opened the WebEx participant and chat panels by using the associated icon located at the bottom of the screen. Please note all audio connections are muted and this conference is being recorded. You are welcome to submit written questions throughout the meeting which will be addressed at the Q&A session of the meeting. To submit a written question, select all panelists from the drop-down menu in the chat panel, then enter your question in the message box provided and sent. To ask the question via WebEx Audio, please click the raise hand icon on your WebEx screen which is located above the chat panel on the right. This will place you in the question queue. If you are connected to today's meeting via regular phone audio, please start pound two on your telephone keypad to enter the question queue. If you require technical assistance, please send a chat to the event producer. With that, I'll turn the meeting over to Alina Simo. Alina, please go ahead. Thank you, Michelle. Good morning, everyone. As the Director of the Office of Government Information Services, OGIS, and this committee's chairperson, it is my pleasure to welcome all of you to our seventh meeting of the fourth term of the FOIA Advisory Committee. I hope everyone who is joining us today has been staying safe, healthy, and well. I want to welcome all of our committee members today and express my gratitude for your continued commitment to studying the FOIA landscape in order to develop recommendations for improving the FOIA process government-wide. I know you have put a lot of work in already and we're now in the home stretch. I also want to welcome our colleagues and friends from the FOIA community and elsewhere who are watching us today, either via WebEx or with a slight delay on NARA's YouTube channel. Normally at this point in the meeting, you would be hearing welcoming remarks from the Archivist of the United States, David Ferriero. I'm very sad to report that today's David's last meeting with us as Archivist as he gets ready to retire at the end of this month. So we decided to engage him in a brief question and answer session and he can share his wisdom with us. So with David's indulgence, can we get started? David, you're on mute. Sounds good. Ready. So first question, I'm just going to fire them away like an interrogation squad. What are your proudest achievements as the Archivist of the United States for the last 12 and a half years? Well, just for some context, I came to Washington from the New York Public Library where I was director of libraries and in retrospect was a pretty cushy job and I was lured here by the promise of the Obama Administration that the National Archives had an important role to play in his open government initiative and that really resonated with me. And so I think I would point to the presidential memorandum in 2011 which tied good records management to open government. In fact, his message says the backbone of open government is good records management and then that allowed me to deliver a directive to the agencies with OMB setting out a set of promises and a set of tasks for the executive branch agencies. I did a number of things, one of the things I'm proudest of is that it established the senior agency official responsible for records management so it raised the profile of records management within the agencies or it was supposed to. And it charged OM, OPM with coming up with the classification series, the occupational series of records manager. It horrified me in a public meeting to discover there was no such thing as a records manager in the occupational series. So I'm proudest of that and it also, most importantly, it acknowledged electronic records. It established the shift from paper to electronic records. It's the first time since the Truman administration that the White House has got involved in records management so I'm really proud of that. And the second thing I would point to is that the work that was done by a task force on racism here in the National Archives during 2020 with a set of recommendations, looking at internal processes in terms of recruitment retention, advancement opportunities, looking at our exhibits and educational programs and a really important set of recommendations around how we describe our records, offensive language in our records. There's some very important work that's going on in that arena. So those are a couple of things. And then we established sleepovers for kids 8 to 12 years old. So I would point to that as something really exciting. Yeah, I wish I would have had kids that age because I really wanted to wake up in the morning and have you cook pancakes. That would have been a real treat. So these kids sleep on the floor with an adult with their parent or something and sleep on the floor of the rotunda in the presence of the Charter of Freedom and they're just tingling with excitement. That's great. One of your many accomplishments during your over 12 years at the National Archives was to establish this FOIA advisory committee. Why an advisory committee and what makes this work special in the FOIA landscape? So this gives me an opportunity to thank you all for the work that you have been doing and for the past advisory committee members. This is an important, one of the things that I inherited was OGIS and ensuring that OGIS was getting the level of support required to do their work. So this was an education opportunity for me also to learn about FOIA and recognize the importance to the American public of the work that all of you do every day to ensure that you have access to the records. The National Archives was established, the Franklin Roosevelt signed the legislation that created the National Archives and his goal and stated when he opened the Presidential Library in Hyde Park was that these records are important for the American people to hold their government accountable for its actions and to learn from the past. And that has been my watchword since I started here and FOIA is one of those ways that the American people can hold their government accountable. So I've been a huge supporter I think of the work of OGIS and the advisory committee. And it also is important to me that that and everything that we do at the National Archives, every service we provide, we put the American public at the center of our planning and thinking. How easy is it? How difficult is it for the American people to get the information they need and what can we do to break down those barriers? And the FOIA advisory committee is a wonderful example of how the American people have as their voice heard in terms of how we organize our services. So everyone wants to know, David, will there be a 2022 to 2024 term of the FOIA advisory committee, a fifth term? I heard there is, yes. One of my last actions was to ensure that that happens. I don't see an end to this. You know, I think there are enough issues and enough concerns and I think that it sends a message to the American public that this government is serious about access to information. And their voice needs to be heard. This is an important way for their voice to be heard. What would you like to see the next term of the committee delved into? I'm really pleased with the set of issues that have already been dealt with. I'm really concerned about. I'm interested in and pleased to see the attention turned to Congress about access to the records of Congress. It's interesting. I've had 16 hearings on the Hill for various subjects and all of them are records related. And it's kind of ironic that I sit there answering questions from people whose records aren't FOIA-able. It doesn't seem like that's a fair way of doing business. So the attention that the advisory committee has been paying to records of Congress I think is important. You have seen in the press lots recently about the presidential records and FOIA ability of presidential records. The Presidential Records Act I would say is worthy of some look by the advisory committee. It needs to be strengthened and you have a role, I think, to play in that process. And the FOIA law itself, you know, we've over time amended that law. I would urge you to continue that process of looking at the law and figuring out ways to make it stronger, better, and take a look at exemptions. And I know that's on your list of priorities. What message do you have? I'm sorry, go ahead. One more thing. What? Huge agenda of the National Archives has to do with civic education. The folks, kids today and their parents don't understand roles and responsibilities. They don't know how the government works, all that kind of thing. It's an opportunity also, I think, for education of the American public about FOIA and their rights around access to information. So figuring out ways of plugging into the civic education initiatives that are going on around the country. That's great. I'll write all those down. Good. Follow up. What message do you have for the more than 5,000 FOIA professions across the government? How it is to respond to FOIA requests every day. First of all, thank you for the work that you do. I'm sure you don't get any thanks for what you do. I'm sure you get lots of criticism for what you do. But here from the archivist, how much I appreciate the work that you do every day against increasingly difficult odds. For many of you, the information technology infrastructure sucks. And there isn't an acknowledgement on the Hill or OMB often about the technology needs and how this isn't a one-time event. It's a process that technology needs to be refreshed. New tools are available that need to be incorporated into your repertoire of information. And the partnership that you have in your own agencies with the senior agency official, the IT folks, your legal counsel, even your inspector general. It's a robust relationship team of people focused on making sure that we're following the law and making records available. So I'm really proud of the work that you do every day. So on the other side, what message do you have for the many FOIA requesters who submit FOIA requests to the government every year? Over 800,000 this past year. I know, I know. I would urge you to be as specific as you can about what you're looking for. I urge you to take some time to understand what the process is, learn the process, so that you don't get caught in unrealizable expectations. Use the services of OGIS. That's why OGIS was established to help you meet your needs. And I would say educate your legislators. As private citizens, you have an opportunity to talk to your legislators about FOIA and the needs that exist for support of FOIA. David, what do you think you're going to miss most about being the archivist in the United States? I think it's the opportunity to ensure that the records of the country are created and maintained and made available to the American public. And that happens in a variety of ways across the country. The staff of 2,700 people in 40 facilities focused on that mission. I think the opportunity to work with that staff and think about ways that we can make that more efficient, better, easier. That's the excitement I have found on the job and I will miss that. So what's next for you after you retire? Are we going to see you joining us as an attendee at future FOIA advisory committee meetings? No promises, but I will certainly be looking for ways that I can from the outside be supportive of the work. I'm not planning to run for office, but I will certainly, I'm not leaving this behind. I'm going to figure out ways that I can be helpful. All right, well, thank you, David. I'm just extremely grateful for everything you've done for us on behalf of the committee. I want to thank you for all the support you've given us. Your willingness to advance so many of the recommendations that we've already sent over to you. We will truly miss your leadership and your extraordinary support for improving the boy process. But we also know you're leaving us in excellent hands with the deputy archivist, Deb Wall. So we look forward to working with her as well. Okay, are you going to stick around for a little bit and watch the meeting if you're able? I am for a little bit. I know you have a packed schedule, so I appreciate any time you can give us. Thank you. Thank you. All right, thanks again. So I want to move on to some housekeeping rules and announcements before we get our substantive meeting started. We do have a very busy agenda today. So let me just get through the quick announcements. Unfortunately, our committee's designated federal officer, DFO Kirsten Mitchell is unable to join us today. The archivist has appointed Martha Murphy, OGIS's deputy director as the alternate DFO. Martha is going to help make sure that we stay on track today. Martha has taken a visual roll call and Martha, we have a quah, correct? That's correct. Okay. I want to report Dion Stearns and A.J. Wagner are unable to join us today. And James Stoker will need to drop out for a brief time around noon for 15 to 20 minutes, but he promises to rejoin us. Okay. A few words about public comments. We are going to have a 15 minute public comment period at the end. We have received two sets of written comments in advance of today's meeting, and we have posted those on our website. We have also shared those comments with all committee members in advance of today's meeting. I want to note that the chat function in WebEx or the NARA YouTube channel is not the proper form to submit extensive public comments, but you may submit public comments at any time by emailing us at FOIA-advisory-committee at NARA.gov, and we will consider posting them on the OGIS website. The chat function on both platforms should be used to ask clarifying questions or provide brief comments or questions that we will consider reading out loud at the end of today's meeting. During our public comments period, the committee is specifically interested in feedback on the issues that we are discussing today. Meeting materials for this term, along with members' names, affiliations, and biographies are available on the committee's webpage. Click on the link for the 2020 to 2022 FOIA-advisory committee on the OGIS website. Please also visit our website for today's agenda, PowerPoint presentation, and lots of related meeting materials. As I mentioned earlier, we have a very packed agenda today. We have numerous recommendations that subcommittees are eager to present and perhaps even finalize and have the committee vote on today. As chairperson, I do reserve the right to adjust the agenda times as necessary. We will upload a transcript and video of this meeting as soon as they become available. A reminder to committee members, I have all of you up on screen, so I will try to watch your verbal cues. It's not the same as being in person and watching you. So if I miss you, please chat me or Martha to let us know that you want to ask a question or you want to make a comment. So please use the all-panelist option from the drop-down menu. But also a reminder in order to comply with FOIA, I'm sorry, the federal advisory committee act back up. Please only keep your communications and the chat function to housekeeping and procedural matters. No substantive comments should be made in the chat function as they will not be recorded in the transcript of the meeting. Committee members, if you need to take a break at any time, please do not disconnect from either audio or video. Instead, mute your microphone, turn off your camera and send us a quick chat. Me and Martha to let us know how long you'll be gone and join us as soon as you can again. If all goes according to plan, the agenda right now has us breaking at 11.30 this morning. We may end up breaking a little earlier, a little later, depending on our pace. And just a reminder, I am guilty of this myself, but every time you speak, please try to identify yourself by your name and your affiliation. That helps with the transcript down the road. So we don't have any minutes of the last committee meeting to approve today. That was March 10th. Unfortunately, I was unable to be with you, but Kirsten Mitchell did a fantastic job sharing that meeting. They are being worked on by our part-time detainee, Archivist Sean Heiliger from the National Archives at San Francisco. He's been preparing those minutes, and I hope they will be available to circulate for approval by the time we meet again next month. The transcript from the March 10th meeting will also be posted on our website as soon as it becomes available. And you can view the meeting on the NARA YouTube channel. So I just wanted to go over the voting procedures today very quickly because I do anticipate we're going to be having some votes today. So without further ado, any member of the committee can move to vote on any recommendation. The motion does not need to be seconded, although it seems like we'd like to do that, so I'm happy to entertain them. The motion can pass by unanimous decision, which is when every voting member except abstentions is in favor of or opposed to a particular motion. A general consensus, which is when at least two-thirds of the total votes cast are in favor of or opposed to a particular motion. And a general majority, which is when a majority of the total votes cast are in favor of or are opposed to a particular motion. In the event of a tie, we will reopen discussion and the committee will continue to vote until there is a majority. So we may be here all night. Just kidding. Votes will be by voice. All those in favor will say aye. Any opposed will say nay. Anyone who wishes to abstain will say abstain. And we'll pause a moment to give Martha a chance to make sure she's reported the vote for each recommendation. So any questions before we move on from the committee members? Okay, not seeing any. We're now going to turn over to the discussion of the technology subcommittee. I know they went last last time and they had recommendations left over that they would like to present to the committee for discussion and vote. Michelle, may I please ask you to go to the next slide? And I'm not stealing Jason and Allison's thunder. I just wanted to show that this is the first recommendation that the committee passed at the March 10th meeting. And today we're going to be discussing the remaining recommendations. So I'm going to now turn it over to Allison Dietrich and Jason card, our co chairs. Thanks. Thanks so much, Alina. This is Allison Dietrich Commerce Department. I'm going to go over recommendation two and then Jason's going to handle three. So based on the communication conversations we had at last month's meeting, we made some changes to this recommendation. One of the comments had been instead of a working having a working group executive branch base to discuss the ways to deal with metadata or native file releases. There's some suggestions to either have an advisory committee set up by the archivist or to have the chief FOIA officers council have a working group. And we discussed this at our last meeting and decided that we wanted the chief FOIA officers council to establish a working group to deal with metadata issues. And we decided as a bit of a compromise, encourage the technology committee of the chief FOIA officers council to work with outside experts, including the requester community. So that's the way we came up with that one. And just as a refresher, some of the metadata fields that we think should be included or at least looked at are the identifier, file name, record ID, title, description, creator, and rights restrictions held on that particular file. Michelle Mann has asked you to advance to the next slide. So the committee has in front of them the, there we go. Thank you. Okay, I'm in business. Sorry, Allison. It's okay. Do we want to deal with or discuss the first or back to us to first and then move to TS three might be easier. Can I ask a question about recommendation to. Sure. So I noticed that the committee is recommending these seven categories of metadata. And I guess what I wanted to know is how this differs from Norah Bolton 2015 for which I think requires the exact same seven categories of metadata. So, basically, I guess my general question is, how does this recommendation differ from the Norah Bolton, except that it advocates for a creation of a working group to discuss it. I think it is the same seven fields. It is just because we feel that this is important, although not all requesters want metadata, some that do are very interested in it. And we see having the chief fully officers technology committee take the next step as a way to continue this conversation and look at ways and technology, such as the archivist referred to and just keep this discussion going forward. This is James again. Well, thanks. Thanks very much. That clarifies that I just, I feel like it needs a what we need is a better understanding of what issues. Remain to be resolved. If in 2015 seven fields were recommended and we're sticking with the same seven fields. Is there someone complaining that, you know, certain data is not being released, or what is the challenge this is trying to address. I think part of the challenge is the technological issue between the FOIA saying if requesters are requesting metadata that to the extent that an agency is able to provide it, they should but a lot of agencies don't have that technological ability to release the metadata or especially in the intelligence community, there are issues and concerns with potentially releasing classified information or information otherwise subject to an exemption. So we were looking at this issue, we realized that although not everybody has that issue, especially historians and all that some of the other requests are community members from the technology subcommittee chime in as well. But trying to just realize that it's not an issue for everybody but for those who it is an issue for it's a big concern and something that they're very interested in. And I think some of the other comments from the last meeting were also in addition to metadata. If there are flattened PDFs you don't necessarily get hyperlinks you see an underline that says file title X but you don't know what file title X is or what the web address is to look at it yourself. So that was one of the other possibilities that had come up at the last meeting. I'll open that up to others who have comments on that. Yeah, this is a Jason Jason guard history associates incorporated. You're absolutely right James. The, the, the metadata that we want released the file elements we want released do align with narrow bulletin 2015 oh four and the reason is because that actually that was designed to make sure records that were sessions into the National Archives. Maintain the metadata right now that's not being released to the request or community they don't know how to release it to the request or community. And we feel that you know this needs to be this needs to be flagged and the researchers already been done. I mean, the, the bulletin 2015 oh four goes back to the double in Ohio workshop in 1995 where they essentially said here's what should be preserved in electronic records. You know, narrow is telling federal agencies if you deposit materials in the National Archives is electronic material these are the metadata elements that need to be preserved. So we're saying that well if you release that same information to the request or community. Here's the metadata elements that should be preserved. With the caveat that of course you're going to be subject to the full exemptions and that you know there's going to be classified national security records that may need potential protocols or special protocols. So that that's that's where we see the issue is that it doesn't seem like it's been flagged right and we feel it's going to be a more important as we progress. And you know we have agencies really seeing emails as PDFs which you know is well weird right it's not in its native format. Hi this is Cal I have a question for sort of when you were doing the research into this and I think we talked a little bit about this in the last meeting but something you just said piqued my interest. When you have a record that is transferred to the archives and accession that has metadata in it and the archives makes it publicly available. Is the metadata version is the metadata in the archives version that you can go and get through sort of whatever the archive system is available to the public or is it stripped out there too as a current practice. So my experience has been that records do include metadata so on the and the archivist the United States can correct me but the ad which is essentially the set of electronic records that are accessible. They do have the metadata elements in fact some of the records I've seen go back to punch cards right in the National Archives and they even have you can even figure out what the different fields in the punch cards are which are essentially the metadata. So and that's the point the point is is that the federal government is going to all electronic records environment. And that metadata is an important part of that. So when we release things through for we being I'm not in the government but you all you make sure you include that metadata. With the caveats that there's some pieces that you don't want released and and Kristen at FBI can talk about that because we had a lot of conversations about that. And what it means that we don't want to release certain pieces of metadata. And that's you know that's where you know we also speak to that. This is Dave Kulier University of Arizona. I move that we approve recommendation to have a second for that second. All right well let's take a voice vote all those in favor of recommendation to please say I. All those opposed please say nay. Are you any mayors any abstentions. Bobby from DOJ and I abstain. I also am going to abstain given the fact that Bobby and I are both co-chairs of the CFO council but we're happy to follow up on this recommendation. Martha did you get all of that. Yes ma'am I got it. They're good. All right great. Should we move on to the next recommendation. Michelle next slide please. Great. So Allison just so you know I'm responsible for this I set it up in part one and part two because there were two parts to this recommendation. So if you're unhappy you can take it out on me. But anyway go ahead the floor is back to you. But Jason. Thank you Jason guard history associates incorporated. So this the third this is the third recommendation now coming out of the committee. And this relates to something that I think was said when we first began which is you know what are the recommendations from the prior. Committees that haven't been haven't been pushed forward that have just kind of languished out there languished out there. And so there's two that we find very important and the first deals with 508 with 508 compliance and we believe that the 508 compliance and collaborative tools work. And the second recommendation group at the technology committee of the chief FOIA officers council continued research ways to assist agencies in making this requirement. We see the opportunity with the changing of FOIA platforms as an opportunity for us for that group to make recommendations or business requirements. And that could help FOIA processing vendors ensure that 508 compliance technology is incorporated into the software solutions. So you know the big thing for this and the thing that I think the committee brings to this is that we believe that within two year period following the release of this report. We want this to be implemented so we want this to have an expiration date so to speak. Okay. I was just going to pass it on to Allison. Go ahead. All right. It's actually not a substantive but just a wording. I want to fly. I feel like we shouldn't say that there's a conflict between the proactive disclosure provisions and section 508. They both deal with important accessibility issues. It's just that you know 508 is dealing with accessibility for a specific community. There's challenges obviously but I don't think there is an inherent conflict and they're both equally important. So I just don't like that language of there being a conflict between the two provisions. Bobby, can we change it to inherent challenges instead of projects? Yeah, I think that works better. I don't see a conflict between the two provisions. Jason and Allison, is that acceptable to you? I'm fine with that. Yeah. I ask AJ, Kristen, David, Roger. I'm fine with that. Okay. Jason, do you want to move to have this part one recommendation approved with that change? Substance aware challenge for conflicts? Yes, correct. So moved. I have a second. I second. Thank you, Roger. Okay, let's take a voice vote. All those in favor of the recommendation as it currently reads with the word conflict substituted with the word challenges, please say aye. Aye. Anyone opposed to this? Please say nay. Okay, any abstentions? Hi, this is Bobby from DOJ and I abstain. Okay, and this is Alina Semel. So I believe that recommendation has passed. Alina, are you good with gathering everyone's votes? Yep. All good. Oh, thank you. Great. Michelle, next slide, please. Allison, are you going to do this one? You can do it, or I can do it. It's up to you. No, that's fine. So this one relates to commercial portals. We recommend that FOIA.gov as well as other commercial portals allow for the full text searching of FOIA logs. Additionally, we want agencies to proactively publish FOIA logs in the agency's electronic reading rooms often referred to as FOIA libraries on an ongoing basis and at least quarterly unless the agency receives 50 or less requests per year. And then we provide some elements or fields that we believe would be most useful in those FOIA logs, the data request, the status of request fee category, things of that sort. Again, this is not something we came up with. This is something that the prior FOIA advisory committee had recommended. And we believe that within two years, following the release of the report, that this gets actioned. This is James Stoker. So I have a question about the, I guess, the last part of this recommendation where it says unless the agency sees 50 or less requests per year, in which case annually or similarly would be appropriate. I'm not sure if that doesn't just complicate the recommendation unnecessarily. I don't know. This doesn't seem like a particularly onerous requirement and I could be underestimating the amount of work that goes into this. So maybe it would be better to have it just stop it quarterly and require all agencies to do this. Is that a possibility or would there be some objection to that? That limitation was done to be consistent with other guidance. I think the OIP's guidance on websites. So we're just trying to do it for consistency, but I don't have a preference one way or the other. Do other members of the technology. So committee or the committee as a whole have any thoughts on that? This is Christian. Oh, sorry. This is Christian from the FBI. We don't necessarily have a problem with keeping it in or taking it out. It just strikes me that it could be unnecessary work if an agency receives in a quarter one request. I mean, yes, they could put it up as a log, but it just strikes me that publishing either annually or semi-annually when you're talking about only a handful of requests is more efficient than, you know, publishing in a quarter that we didn't receive any FOIA requests this month, or we got one and here's the log. I don't know that it's onerous. I just don't know that it necessarily benefits anyone really to post that on a quarterly basis. This is, Kel. I have a bit of a, I think it's a question. So what's on the screen as the draft recommendation is not what's in the document as the recommendation. And so if we vote on this recommendation, are we voting on the document that's on the website as the PDF or are we voting on what's on the screen because at least on this one, they, this is agency should proactively publish FOIA logs. Whereas this one, it's not exactly clear that this is recommending that they be required to have FOIA logs. And so, like in our users, one example, CA does not maintain a FOIA log that you have to FOIA it periodically and they basically created from scratch periodically that it's not automatic and it's not anything like that. And so I wonder if this is something that we should put in, what's the intent, I guess my question is, what's the intention of this recommendation to be a best practice for agencies to do it or to be a recommendation that agencies have to do it? Because that's a distinction for some agencies. My interpretation, at least my thought was the recommendation for best practice, especially if the technology lets individuals create their own logs, then it's like the agency doesn't necessarily have to also practically release it. But I think it was more of a best practice than a requirement. If there are a reason that you did not go for, we recommend that the OIP directs this happen or that the statute be modified for this to happen. And you just went with, we encourage agencies to do this, which would really only reach the agencies that were already making FOIA logs. So this is. Do you mean when this is recycling or just bringing back up a prior recommendation? Was it a best practice then? Yeah, this is Jason Gartt History Associates. It was a best practice then. It's designed for consistency so that they could contain minimum sets of data in Excel, CSV files, in preference to PDF, which was seen as very annoying to the requested community. And I think it's at least the way we discussed it among the group. And again, David, AJ, jump in, Kristen, was that, you know, this is, let's get them consistent. Let's allow for full text searching and it's best practices. And if you're at an agency that again only has, you know, one request every month. Let's have a baseline level so you don't have to just release it on an annual or similar annual basis. So that's, I guess, was the background and what was kind of percolating in our minds. Excuse me, if I could just recall the, I do recall this conversation as far as prior factors to me, but I don't have the details, you know, I don't recall exactly. Is the recommendation regarding FOIA.gov sex searchability, is that due or is that from the prior recommendation? I believe that's from the prior recommendation, Allison. I'm just trying to pull up the old recommendations. Give me one minute. While you're doing that Allison, this is Dave Cullier from the University of Arizona. Yeah, I think the, there's a spectrum here. I mean, there are some of us who believe that federal agencies should be required to post their logs in a searchable way. I mean, almost immediately as you see in some cities, counties and other jurisdictions around the country. So there's some of us that that's what we would want in this recommendation. But, but you know, I think, you know, that's not going to be easy for everyone to swallow. And then some agencies, you know, are saying we don't have the money for the tech and that sort of thing is going to take time to work out. So I think this is an acknowledgement of that and really intended to keep the conversation going. It was brought up previously. I think what we're getting at here is we want this content. This is a priority for a lot of the requesters out there that we really move to a system across the federal government where anyone can easily see what's being requested in the disposition of those requests. So I think that's kind of the intent here. This is Patricia with from EPA. I think it everything could be accomplished by maybe just slightly doing some word smithing on the recommendation. Using your language, it could be we recommend that agencies proactively publish flay logs, et cetera, et cetera. And then you could include and allow for full search, full text searching of flay logs. So you're recommending the agencies to proactively publish and, you know, if they have the technology available, allow for that full text searching of those flay logs. It's just a thought. This is a quid. I just wanted to on James Stoker's earlier point suggest that maybe we strike all the language starting with the word, unless the de minimis rule for the reason that it would be easier to determine than what is going on with agencies, whether they actually are receiving 50 or less requests or they're just refusing to sort of follow the recommendation. And, you know, I know that places a certain burden on agencies that receive fewer requests, but at least it would be somewhat more clear than that. We would mistake, in other words, non-compliance with sort of low volumes of requests. Jason, what would you like to do? Do you want to try to take these comments in and rewrite the recommendation and represent at next month's meeting for a vote? I know you've gotten some lots of different feedback. Also, I just wanted to address Kell's comment from earlier. The slide actually reflects exactly what's in the white paper, same language. So I was a little confused when you noted that there was a difference. There isn't. But back to Allison and Jason, what would you like to do? So Allison, David, AJ, or I would say that this is a recommendation. At least the base of it is a recommendation that's already been passed. You know, it's something that's been out there. It's something that hasn't been much movement on it. And our intent was to try to get it back in front of everyone's attention and at an expiration date. I think I'd be happy with going back and tweaking the language. I would also maybe suggest that we, if it's okay with the committee, maybe we approve it with the caveat that we'll tweak it further. But at least let's keep it, you know, let's move forward. But again, Allison, Roger, David, I'm not sure, Christian, what your thoughts are? This is Roger. Jason, I agree with you. I think, I think that, at least I don't hear any dispute that this is necessary. So what we're talking about here is just words and methods. So I don't think we should table this and bring it back. But I think this is what we'll do with the understanding that we will tweak the language. I also had a question. I also had a question. Maybe Bobby can answer this because I'm just looking to right now. I'm not sure the FOIA.gov has access to other FOIA logs of agencies. And so if it doesn't, probably this might be a, the FOIA.gov might be a site, a location where one shop, you know, stops. You come there and you have access to all the FOIA logs posted by every agency. So you don't have to go to CDC site or DOJ site or EPA site. You can just come to FOIA.gov and you can find FOIA request that was submitted to an agency. You might find the same FOIA request submitted to more agencies. This is Bobby from DOJ. I'm sorry, go ahead. Oh, sorry, Bobby. I was just going to say I found the recommendations from the 2016-2018 term on the FOIA logs. And back then they were presented as best practices. And it just was to publish logs, ideally at least month, ongoing at least monthly unless the agency received fewer than 100 requests per year, in which case annually or semiannually then listed a list of different information to include like fee waivers and exemptions. And then also encouraging that the logs should be posted in Excel or CSV and not in PDF. So our recommendation was trying to take that a bit further in terms of getting the logs text searchable and if they can be extracted. So that's a bit of the difference. And then also we lowered it from 100 to 50 requests or less per year. As compared to the 100 that was in the original recommendation. So if that provides some background on other comments or thoughts about how to proceed. So this is kind of, that's the case. And, you know, this is the changes to the previous recommendation seem to be relatively minor. I don't agree with Roger that we should vote on whether or not this is necessary because I think that this is not sufficient. That if we're going to make another recommendation, I think it should go above what the previous recommendation was. And so I think that, you know, the previous recommendation was out there and agencies either followed it or they didn't. And I think that if we're going to make this recommendation, we should say, okay, now we're going to step it up and say, we recommend the first line is the same and then say additionally agencies should be required to proactively publish FOIA logs. Because clearly anyone who was going to do this as a best practice would have already done it as a best practice. And so, and if they had done that, we wouldn't be here revisiting it. So I think we should sort of take the next step for that. And that's not just wordsmithing. That's actually changing the meaning of the recommendation. This is Bobby from DOJ. So I, and I appreciate that. Thanks, Kel. Hearing back with the recommendations was really helpful. We have been encouraging agencies to post FOIA logs. I think FOIA logs are an important way to inform the public of what types of records agencies have, especially if we're not able to post as much records in our FOIA libraries as we'd like. They do provide a level of resources. And so my view on this is that we shouldn't let the perfect be the enemy, the good. And so I've encouraged agencies to post the logs in the way they can. That would provide the information most efficiently, effectively. I would say that regardless of, you know, building on the prior recommendation or going back to the prior recommendation, the level of flexibility we provide agencies, I think provides a better return. And then also as regard to FOIA.gov, being able to search across FOIA logs, we are currently looking at number of ways to improve FOIA.gov, to see if we can get, for example, a guided feature on FOIA.gov, where it might pull from maybe FOIA logs or what's posted in libraries or agencies. We don't know yet, so I guess my point is it's very early in the stages and I'm not sure what is technically feasible, particularly with how things are posted right now differently and so forth, but surely something that we can consider the feasibility of, seeing the value of it, but not something that today we could promise. And I think we're actually on the same page here. I did not see my recommendation or my tweet as reducing flexibility because the only change would be that they should be required to publish FOIA logs in some format, that the seven items or whatever the however many items were in here, A through J, are still a best practice for what should go into it. They still have the discretion to choose what best conveys the information. The only thing that they wouldn't have the discretion to do is just not do it. And so I think we can all agree that them not doing it, if not conveying it in the way best suited for the conveyance of information. And I think that makes sense on a large scale as long as we're recognizing that agencies should have a level of flexibility there as far as what a FOIA log is. I think that's really helpful. And I will say that we do have agencies because we have agencies that you can clear a ten or less. And so it probably doesn't make any sense for them. And their FOIA logs might not be very helpful, but I think that's kind of small potatoes. I'm not really, not something I can remember saying, but it's one way or the other. Alan, I just saw a chat from you that you had a question. Yes, picking up on, thank you, William. This is Alan Blutstein from America Rising, picking up on where Bobby left off. I don't think we all need to necessarily agree on the ten or so fields that should be in a FOIA log. But I was curious whether the disposition of the request was intentionally left off or whether it's covered in item G. In other words, if an agency found no records or withheld records or some other disposition, I think that would be useful. But I didn't see it in this list and was wondering about it. Alan, I think one of the reasons we took that off the list was if a request had come in during the time frame but was not decided during that time frame, it wouldn't have a disposition result. I would respectfully say that it should still be a field, but it should be a if-closed disposition. That way, if it's pinned, it would be pending, or closed, no records closed, exempted for these partial release, whatever. But if it's pending, that field would be in A. All right. Not hearing anyone jumping up to make any more comments. I'm taking this back to Jason and Allison. How do you want to proceed? Actually, Alina, this is Linda from SSA. I have a quick question. Sure. I don't know. Maybe I'm just misreading this. But under the FOIA Improvement Act, we're already required to post the raw data. Now, we always treated that raw data as our FOIA log. Our FOIA logs actually considered something separate from that because if they're the same item, they're already required to be put out there. So I don't know. I'm just, I guess I'm coming back on, do we really need this or is it already actually out there? This is Bobby from DOJ. There is a slight difference between the raw data and what we consider a FOIA log. I guess the big part, I think, of most public interest is probably the subject of the request. That's not captured in the annual report, so it's not in the raw data. So FOIA logs would show the requester, the types of topics that are being requested, and potentially if they've been already released. So the benefit would be the requester could either maybe, you know, if they're asking for records in an urban process, that's easier. That's an easy one for the agency. We like those types of requests. Or maybe just to better inform them of the types of records that the agency has. So that's the big difference between, as I see it, between the call log, the FOIA log, and the incredible data that we do get from the raw data from the annual report. Yeah, this is Jason Gart, History Associates. That's absolutely correct. The requester community, before we submit FOIA requests, we will search FOIA logs to see what's been released. So thus, you do not have to go for the FOIA process. It helps keep things out of, it helps not having to go through FOIA. You can see what's released, and you can ask the office to release that to you. And that's a huge value, and a lot of the requester community uses that and relies on that. And this is Kel. I can add another added value to this, which is, I'll go to the FOIA logs, or I'll have a client go to the FOIA logs and see if someone requested it and there was no records. You know, if someone else has filed the request for these records and it came back in no records response, sometimes we don't file a request for it, because unless we have a reason to doubt the search. And so that's a win-win for everybody, because that means the agency doesn't have to process that request for something that they already said they don't have any records for, which they would still have to conduct a search for. So we can just say, oh, we said last year that we didn't have any records, so we're going to say no records now. They have to still search for it that adds to their backlog. So releasing FOIA logs is good for the agency in some ways. Thank you all for the clarification. I appreciate it, because now the recommendation definitely makes more sense to me now. Right. I'm really mindful of the time, because I know we have a packed agenda today. So looking back to Jason and Allison, what would you like to do? Do you want to move to approve this in the spirit and wordsmith it and represent it next month? Do you want to hold off until next month? What path do you choose? What investor would you like to choose? So I'll just jump in, Allison. I don't know if that's correct me, but let's move to approve and within the spirit. And Allison or David, Rodney, you can say no. Christian. Yes. Okay. I'm fine with that. And Allison, I'm sorry. I'll stay cool here. Alina, procedurally and for this vote and beyond, is it okay? Are we fine with, you know, taking a vote on something, even though maybe it has to be wordsmith and brought back. And then come back and we can take another vote at the next meeting. And if, you know, maybe things have shifted, maybe people have had time to mull it. But there's nothing wrong with taking a vote on an idea now, even if it's not perfect. And we can always come back later and vote, just leave it as is or vote again. Okay. Great. And we'll be back on our next stuff too. Absolutely. And we have done that in the past. So I think that works. So who is going to make a motion to move forward in the spirit of this recommendation? So this is, this is James Docher. Just really quickly, I want to make just a quick suggestion if you go back and revise this, not about the language, but about the text. I think it would be really useful if you would include the original, the original recommendations and how they were worded. Just so that we can see those two side by side. I think that anyone in the future who goes to implement these recommendations will understand what has stayed the same and what has changed. So having the exact text and maybe a reference number, I think each of the, the recommendations are numbered in some way. Just including all of that in the text would make it much easier for this to be implemented. Thanks very much. Makes sense. Thanks James. So do I have a motion? Yes, this is Roger. What's the motion? Move for us to vote on this recommendation. Not the wording itself, but the spirit of it, correct? Yes, correct. Okay. Do I have a second? Jason Gard, second. Okay. Let's take a voice vote. All those in favor, please say aye. Aye. Aye. Aye. Aye. Aye. Aye. Aye. Aye. Aye. Aye. Aye. Aye. Aye. Aye. Aye. Aye. Aye. Aye. Aye. Aye. Aye. Aye. Aye. Aye. Aye. Aye. Aye. Aye. Aye. Aye. Aye. Aye. Aye. Aye. Aye. Aye. Aye. Aye. Aye. Aye. Aye. Aye. and let you guys thrive from here. Well, good morning, everyone. Today, we are going to have our esteemed colleague from the American Bar Association, Tom Sussman, present on what is our updated recommendations from our first-party working group. Before turning it over to Tom, I do just wanna thank, on behalf of the process subcommittee and the first-party working group, all of our committee members, where you're just very thoughtful comments during our December committee meeting, and we, of course, appreciate those comments that we received from our colleagues at the Department of Homeland Security as well. So without further ado, I will actually turn it over to Tom. Tom, you're muted. Tom, you're muted. Not unable to hear, Tom. Michelle, and the others. Yeah, we're unable to hear, Tom. He might, Tom, you might need to dial in on the regular audio, because I think your laptop audio, PC is not working again. Tom will introduce this recommendation through interpretive dents. Yeah, Tom, I'm gonna recommend that you dial in via regular audio. I'll send you that information if you need it, but we can move on while we wait on Tom, if you like. While Tom is getting on, did someone else like to start us off? First recommendation, or do you wanna wait for Tom? I'm sending Tom the information, so he should have it. Alina, I'm not sure in terms of your schedule. When did you have the break schedule? Should we, you know? 1130. So we've got 20 minutes. Okay. All right, I think Tom is on the line. Tom, can you hear us? Yes. Yes, all right. Let me try to mute you here. How do I keep the feedback from coming? Yeah, you'll need to make sure that your volume on your computer is turned down and that you are completely muted on Revex 40-O as well. So make sure you turn your phone down. All right, how's that? Much better, thank you. Okay, all right, as I started to say, the first four-year request I ever made was from my own file from the FBI. And I learned a great deal. I was quite remarkable. I hadn't realized I was such a party of interest through the years of the Bureau when I was a law clerk and working on Capitol Hill. I'm gonna make a brief presentation and because I'm sure there'll be lots of questions, obviously our task force colleagues, Roger, Alexis, and Tuan were very active in interviewing and we had bi-weekly meetings and put a lot of effort in here. And so I'm gonna sort of present it from a high level and then we'll go into the specific recommendations presuming that you have read our memorandum. Former Federal Advisory Committee member Margaret Cuoco has actually done extensive empirical research on who requesters are across the federal government. She wrote an article on FOIA Inc, which is business requesters. She wrote an article on first person requests. She wrote a book that has a great deal of information on first party requests and in all of these she identifies media, business and the first person requesters and deals with each separately. But her findings in this last category were kind of startling and I think probably one of the reasons why we focused on this issue. And that is a first person request are the single largest category of requests in the federal government. The Department of Homeland Security receives nearly half of all requests filed across the federal government and most of those are first person requests. And other agencies ranging from the Department of State, Veterans Health Administration, Justice Department, EEOC, Social Security have a large quantity of these first party requests. The first, the prior advisory committee focused on this issue and as our memorandum begins, I made a recommendation calling for OGIS and OIP to encourage agencies basically to identify common categories of first party requests and establish more efficient approaches to responding. We looked at Social Security, IRS that has developed portals for obtaining information, IRS, transcript, Social Security, history, Medicare, et cetera. So there are efficient ways of doing this electronically that doesn't require a FOIA request or a response. I wanna sort of point out, I guess, not as an aside but as a key issue that first party requests should not be unwelcome by agencies, FOIA is often the only way that an individual can obtain a benefit or participate in a proceeding or even avoid expulsion from the country. And there are mechanisms for holding government accountable as well as other kinds of requests. So our subcommittee developed these four recommendations that we'd like to discuss and vote on separately. I wanna acknowledge that DHS was extremely generous with their time both in discussions and we received just yesterday some very useful suggestions to this report that you have and didn't have time and frankly didn't wanna burden you with having to have a replacement at the last minute but I wanna thank Amy Bennett and her colleagues at DHS for their efforts to provide us with some constructive guidance as we go along. I wanna end with sort of one of our more recent developments and that is the Justice Department's recognition that this issue is important and Attorney General Garland's March 15th memorandum which Bobby probably has read before which under the heading of removing barriers to access and reducing FOIA request backlogs, specifically says that the Justice Department's Executive Office of Immigration Review which is one of the agencies, sub-agencies that we looked at has long required individuals to file FOIA request to obtain official copies of their own records of immigration court proceedings. We are now changing that policy and I encourage all agencies to examine whether they have similar or other categories of records that they could make more readily accessible without requiring individuals to file FOIA requests. So thank you Attorney General Garland for anticipating our recommendation in that respect and I think he nailed it on the head that it is gonna be a more efficient and effective way of not only responding to the individual request instead of responding to individual request but in the long run saving time and energy of the government, recognizing that resources will be required to retool in these agencies with large numbers of first party requests. We are not unmindful of the fact that the change process requires technology, training, evaluation, testing, et cetera. But I guess one of the reasons why we're replowing some of the field that had been plowed by the prior advisory committee is because not all that much has been done and I guess we'd like to, we're gonna keep recommending it until we see some progress. So that's my general overview and if you wanna go to the recommendation one which is on the screen and as best as I can see, that's effectively the last recommendation we made and Attorney General's recommendation that, no, I'm sorry, I'm thinking of recommendation two or three that's restated. This one is that there shouldn't, you shouldn't have to make a request where you know where the agency knows a person is gonna need the record and so that's kind of where we start and let's open this for questions and comments and perhaps one of the other members of the task force who did some in-depth research would add to the commentary or not. All right, don't be shy anyone. I'll speak up. All right, do we wanna vote on it? I'll welcome a motion to approve if there's not any discussion. Sorry, this is James Stoker here. I just wanted to take a minute to thank the working group for all the great work that they've done on this. It's a fantastic report and someone helped work on that recommendation in the last committee term. I think you guys have taken this farther. You've gone into much more detail and you've done amazing research that we were not able to do. So thank you for that. I think all four of these recommendations are fantastic. I do have a question and recommendation number four but we can get there when the time comes. So thanks very much. I expect there will be other questions on number four but do I have a motion on recommendation number one? Jason Garret, please. Through recommendation number one this is Alexandra for all sides. Thanks Alexandra, we have a motion. Do we have a second? Jason Garret, second. You, all right, let's take a voice vote. All those in favor, please say aye. Aye. Aye. Aye. Martha, you've got that. All those opposed, please say nay. Nay. Nay. Okay. Who are the nays? That was FBI. Allen Blutstein and Kristen Ellis. That's what I heard. Any other nays? Okay, any abstentions? This is Bobby from DOJ and I abstain. I will re-emphasize that I appreciate mentioning the Attorney General's guidelines and the various acts of being key focus of the department. Martha, are you good with? Yes, you are a yay, correct Alina? Yes, I'm a I. You're an I, sorry. Yay, sorry guys. Yes, we're all good, I've got a track. Thank you. Yeah, I believe the first recommendation passes. Not unanimously, close enough, right? Tom, do you want to go on to recommendation number two? Sure, so few things happened in Washington unanimously these days that I'm not even offended that we didn't get all the votes. Recommendation number two is a narrow one. As we did our research, we discovered that for example, some of the progress made in providing a portal for direct access to information and immigration files necessary for proceedings were available to attorneys but not to individuals. But alas, I guess half or more of the cases involved pro se parties worried about getting deported and they have to go through a different process of FOIA requests for their records. And so we couldn't qualify it more than by to the extent feasible because in some cases it may or may not be but we really are trying to focus the agency's attention on the fact that individuals not represented by lawyers should have access. I'm curious that this is just immigration. You only talk about immigration in your discussion draft. So is this, but you just say agency in the recommendation. Is this intended to be used for elsewhere as well? Cause I can't think of where that would happen or is this just immigration? Well, we confess not to have done a thorough government wide inquiry into all of the first party request situations. And so while we know this is the situation with immigration, it could be elsewhere. Don't know the answer to that, but why narrow it now and then some will come up and say, well, wait a second. You know, the veterans agency one of the, or one of the other benefits agency has a similar restriction. And then we say, oh, whoops. I mean, there's no harm I guess in making it general. In that case, I would recommend that rather than use this language adversely impacting, which an agency may say, well, they're not adversely impacted. You know, that you just say something like agencies should amend, you know, regulations, director policies and guidance. To ensure equal treatment to ensure an equal, not equal treatment, but to ensure an equal process for both represented and unrepresented parties or equal access process. Equal access process. Let me hear from other members of the task force or subcommittee on that subject. But that actually seems to me an improvement personally. This is Kristen Ellis from the FBI. So I shockingly agree with Cal that it should, that what we're talking about is equal access. I'm a little concerned with the notion of creating a special category for pro se parties because there are a lot of pro se requesters who are very, very sophisticated and, you know, they don't need a counsel. They are essentially professionals at this. And so I'm not sure that their ability to access records is adversely impacted any more than say the ACLU's or the Washington Posts because those folks are typically represented people. So I'm not sure what problem we're getting at. I mean, I understand it's the pro se, it's the Joe Smith off the street pro se person who's never gone through the process before, but I don't think as a category pro se parties are necessarily universally impacted adversely by processes. This is Tuan Samohan, if I can just speak up. So let's talk specifically about what was done in front of the or the executive office for immigration review. They rolled out a portal of FOIA alternative called eCAS that would allow attorneys on behalf of their clients to simply access through eCAS, the FOIA alternative, their transcripts of their proceedings. If you, on the other hand, are a non-represented person, you could not avail yourself of the benefit of the FOIA alternative. So we're not saying that you couldn't file a FOIA request as a sophisticated, hypothesized pro se requester. The point is that if you're going to provide FOIA alternatives, you make them available on equal terms to the individuals who can't afford an attorney. And as Tom mentioned, this principle is generalizable. We did not generally survey the whole of the federal government looking for instances where there's differential treatment with respect to pro se versus represented parties for FOIA alternatives. But we do think that it's the case that their access should not be sort of impaired. I'm getting the sense that it's possible that you are in sort of responding and being in dialogue with us may very well, very soon change its own policies to make this available to parties that are not represented by council. And we also suspect that a lot of these individuals aren't necessarily sophisticated. I'll add the context of people in removal proceedings. These are people who are likely to be exactly in the office. Sorry, this is Kristen again. Don't disagree with that. But I think that that's a very specific example in the realm of a very broad FOIA community. So I mean, I think that it is valid to say that all requesters should have equal access to systems or, you know, there shouldn't be, we shouldn't be creating different casts of people whether they are a pro se requester or a represented requester. But I think that the example you gave is a very specific one that I in my travels in FOIA and the federal government have not seen such differentiation being made between the types of requesters that way. This is what's now on the Bill of Novel Law. We agree that it was Eor who made that distinction and introduced it. So I take your point. I don't think there should be any difference and there certainly isn't with respect to FOIA access. Again, with respect to alternatives to FOIA access, we don't think there should be any distinction. We're just saying that, you know, agencies need to be mindful of this because they have drawn something, they by Eor specifically, has drawn such a distinction, creating a substantial burden. This is not a negligible category, right? So most of the business Eor is dealing with persons who are in fact pro se. This is Bobby from DOJ and I can speak to this. So Eor did, first and foremost, if we're considering this recommendation, I agree that I think a broader language looks to no one, I think, would disagree that you want equal access with regard to any kind of alternative means or processes to get records. But Eor has changed its policy. So as far as any person, any respondent can access directly from the courts, their records and don't have to make a FOIA request anymore. And so that's been updated in their policies on their website. And specific to you where I think this recommendation's already been accomplished. This is Alexandra from Prolox Giles. I agree with Kristen that the pro se designation FOIA generally is confusing if I'm thinking of the journalists in the New York Times newsroom. I don't know if they're counsels or not. Most of the time, counsels don't get involved unless there's an issue. But I wonder if we could rephrase this to indicate that what we're getting at is pro se in the legal proceedings to which the FOIA records pertain as opposed to pro se in the FOIA requesting process. Like that seems like a meaningful distinction. So whether it's immigration or any other kind of benefit to which the FOIA records pertain, that's what their pro se is for purposes. So this is, as the person who sort of opened this can at once, I think that I would be in favor of it with the language that I modified, basically that Kristen and I have basically miraculously agreed on for just being more of a best practice that they should make sure that those who do have or think of having in the future an alternative process don't do something like set up a portal system that you have to be a lawyer to get into which I have run into in the past, not in FOIA but the EEOC used to have a thing that only lawyers could log in to the system to file briefs and read briefs and pro se people couldn't, well it's not unheard of. But if that's the case, then passing it with that modification, the absolute worst thing that happens is it prevents someone from doing the wrong thing in two years and nobody needs fixing now and the best case scenario is it fixes something somewhere that we don't know about. So I don't see any form in passing it. So I guess I'm of the belief that we should recommend things that are good, whether they have a universal impact or not. So this is Tom Sussman again, let me, stepping back with the comments that have been made, if we deleted adversely impacting access and simply inserted instead, well I'll read the whole thing, to the extent feasible agency should amend any existing regulations, directives, policy and guidance to provide equal access to records for pro se parties. Pro se is a term of art, I would just say since we're talking about equal, I would say equal for represented and unrepresented, to make sure that you're getting both sides of it and there's no question of equalization. Okay, represented. So just a long clear saying, provide equal access to both represented and unrepresented parties, that's what we're proposing. And by putting it that way, that also suggests that that's the underlying proceeding and not the FOIA request that we're talking about. Right. For Alexander's suggestion. I'll vote for that. And we're gonna keep the word parties though about requesters, right? Entities, oh no, this is the first part of the request. So say you have persons or individuals. Individuals, Tom, is that copacetic? What? No, I heard someone say they're okay with that. This is Alexis Graves, USDA. Yes. I'd like to see the recommendations with those modifications, striking adversely and impacting access for pro-stay and revising with the language. Provide equal access to both represented and unrepresented individuals. That's what we're coming with. Yes. Okay. Anyone else? Could we move to vote or not? With that? No, I would love that. This is Michael from Muck Rock. And just because of that discussion, I'm wondering if it should be one last week of any existing or proposed regulations, because there was a lot of discussion about sort of forward-looking things. Jason Garth, History Associates, agreed. This is Juan Samuha from the Filanova and the Working Group. I agree with both Mike's suggestion this now as well as Cal's. This is Kristen Ellis. Can somebody read back to me what the language will be? Well, this is Tom Sussman. We might want to... I agree with Michael about the proposed regulations, but just dropping in existing or proposed doesn't work because you don't amend proposed regulations. You develop proposed regulations. So I guess if we have a sense that that should be part of the language, it might take a little crafting to get it finalized. Or maybe we can do it over the break this morning. How about future instead of proposed? So can we just go back to... I don't disagree with Michael's recommendation, by the way, but what the language after that would... I am not tracking on what we're proposing now. Why don't we just type it in the chat? That would work for me too. I'm just trying to figure out what we're proposing. Okay, I'm happy to type it in if someone can read it to me. This is Martha, sorry. So the beginning is to say, Martha, to the extent feasible, agencies should amend any existing and we're not clear about whether we're gonna say proposed or future. So we'll leave that alone. Regulations, directives, policies and guidance to provide equal access to both represented and unrepresented individuals. So this is, Cal, I have a stupid question at this point. If this is a best practice anyway, why do we have it to the extent feasible? Why don't we just say agencies should amend and if it's not feasible, then they don't follow the best branches. Tom? I mean, this is Tom. I'm okay with the extent feasible and simply because as we admitted, we have not exhaustively cataloged every agency and potential practices that this might be applied to and so it makes me more comfortable. All right, so just like we did previously with the technology subcommittee, why don't we try to move ahead and vote on the spirit and the language as we have it right now, maybe we'll continue to wordsmith a little bit more. Does that sound feasible, Tom? So ordered. Okay, so do I have a motion to approve this recommendation with the language that we were proposing and perhaps some additional wordsmithing? This is Twan, Samohandai, so moved. Thank you, Twan. Do I have a second? Jason Gart, second. Grace, USDA, second. I have a third, very exciting, thank you. Alexis, thirds. Okay, let's take a voice vote. All those in favor, please say aye. Aye. Aye. Aye. Anyone opposed, please say nay. I don't hear any nays. Any abstentions? Bobby, I'm abstaining. This is Alan, I'm going to abstain. Alan is abstaining. Alan is abstaining and Bobby to leave the end of abstaining. This is Martha, I've got all those, thank you. Okay. So I just want to note the time, it is 11.40 and I want to leave it up to Tom as to whether you want to try to keep going or should we take a break? I'm prepared to go. I think three ought to be relatively easy. There may be more discussion. We've already had a preview that there are going to be questions on recommendation four. So do we want to try to squeeze three in and then do a four right after the break? Yeah, that would be great. Let's go ahead and move on to three. Move to the next slide, please. And again, this is the one that seems to me a riff on the earlier advisory committee's recommendations. Quite general asking agencies to please examine your own situation and develop a plan for leveraging technology that promotes efficiency and customer service. So it's very broad and precatory and we don't single any set of records or agencies out there too. It's good, best practice for all agencies. Any questions? Dave Kulier, I move approval of recommendation three. And for time's sake, I second my own motion. I second the motion. I heard a second from Roger as well. Are we ready to take a voice vote? Does anyone have any questions about recommendation three? I'm not seeing any questions. I think everyone needs a break. Okay, so let's take a voice vote. All those in favor of recommendation number three, please say aye. Aye. Aye. Aye. Anyone opposed, please say nay. I don't hear any nays. Anyone wants to abstain? I'm abstaining. That was Bobby to leave you in abstaining? Yes, sorry, Bob is in music. Anyone else, abstaining? Okay, so I think we passed this one as well. And it is captured, thank you. So should we move to break, Alina? Great time. This meeting is being recorded. Alina, we're not feeling that. I think you're on mute, Alina. Yeah, Alina, you need to unmute yourself. It would really be helpful if I were on muted. I said good afternoon, everyone. Thanks and welcome back from the break. And I'm now going to turn things back over to Tom Sussman to finish up recommendation number four for the first party working group. Tom, over to you. So as my initial introduction to this issue pointed out, DHS is the agency with the largest number of first person and first party requests. Most of them immigration or exclusion or otherwise related to refugee status and so on. And we really looked hard at that because we heard from a lot of the lawyers who deal with the various sub-agencies who believe this is one of the biggest problems that they have, the agency has tried to streamline process to speed up responses, but the parties tell us that it's not entirely successful. And so we really looked hard and tried to figure out what can we say and what can we do because we felt that something needs to be done. Now I'll say that DHS did a great job of convincing us that it was unlikely that we could figure it out as an advisory committee and the time available and with the expertise. There are law enforcement records. There are national security records. There are records from different agencies, the State Department, Justice Department. They pay for records that some statutes actually, statute may actually require paper records. Diverse number of proceedings. And so not having any here to pull out in frustration, we talked about, okay, to whom can we pass the buck? And so the recommendation is worded to suggest that there be an outside assessment of, by an entity, an organization that does have some technological capacity that is to understand as it relates to the AFILES, which is the single most requested file that we were dealing with because it's used in all of, I guess, the various kinds of proceedings, 70 million files. We talked about who could do this, it would require funding, yes, it should be funded. We'd like to take this recommendation to Congress and say, look, this is a big problem and you should have HHS engage a group contract agency, there are some out there, I guess they're doing FOIA-related work now that have technology capacity. We ran across MITRE in one of our forays. There are probably others, but that this really requires a in-depth thorough, probably long-term study. But the consequences are great and I mean, the number of people engaged in just moving records around and the HHS is immense in the time and the energy and cost today. And so there's no sign that this is diminishing, there's no sign that any of the initiatives are going to change things quickly. And so you can call it punting, but we call it being practical about our own capacity to develop a specifics. And therefore the recommendation simply is that an assessment should be initiated as it relates to the A-files. And we suggest in the discussion that that probably should be a non-governmental entity with expertise in developing systems for records. And that's my overview. Okay, questions, comments? I thought this was gonna be a controversial topic. This is Alan Blutstein from America Rising. My initial question is, well, who's paying for this? I mean, has the HHS agreed to this? Would it be some, would the money be coming out of someone else's budget? Well, as I think I said, this is Tom Sussman. Yeah, our preference would be for Congress to, you know, if I were the FOIA angel, I'd say Congress should direct a study and fund it. On the other hand, this is clearly costing DHS a great deal of money every year to deal with these files. And perhaps it could see its way to finding an ability we're not talking about, you know, merely as much money as it takes to run the program. So it's one of these things where the efficiencies would pay off, but of course, agencies don't deal in out years. So recognize the problem suggests that there would need to be separate funding, but either the agency or Congressional authorized or appropriated. So this is Cal, I have a question about this. We're talking about what they're looking into. Vendor, someone who's a specific knowledge in technology research, technology development, because my understanding of this recommendation or at least what you're going for, what they would be coming up with, would include answers to the questions like, with what staff, you know, what you're going in, are you gonna hire new staff to handle these new requests under the AFIL system or something? Is that correct that you're talking about someone who basically come in and audit, prospectively what it would take in order to do XYZ in order to set the system up? Yeah, this is Tom Sussman, yes. I mean, we want someone out to come in and audit what it would take. Now, obviously it would require the establishments, probably of new systems, the training of staff. I mean, we're not, I have looked at a couple of AFILs and I mean, it's pretty complicated stuff. And so the question would be, well, going forward, do they establish a system that segregates public from non-public, which is certainly possible to do. Other agencies do that, which, you know, allows automatic access when the proceeding begins to either the immigrant pro-say or counsel, not just through lawyers, I mean, as I said before, I don't, I'm not gonna have a lot of specific answers because that's one of the reasons why we recommend an outside assessment. We see a problem, it needs to be addressed and there are people capable of addressing it. When you say non-government, do you just mean non-executives to do this? Or maybe CBO to the degree that they're talking about sort of how much it would cost to do the program? CBO won't do the assessment and I don't know whether GAO, someone else may have an answer to whether GAO has the competence to do this kind of in-depth assessment. Maybe, I don't know whether they do a lot of technology. Anyone else have any views? Well, they do audits of technology programs all the time. But this is a little bit beyond the scope. I mean, in my mention, you'd be asking them to sort of perspective design a system that would do equity. I think that if GAO were to do it, they would do an assessment of basically what you've done. If it's a problem and then, and what are alternative solutions for what are the possibilities for fixing it, it wouldn't just be go forth and design a system. You know, Kel Thompson, we're trying very hard not to get into the micro-management of what it should be done. I do think that your suggestion that maybe GAO could do it, well, since the recommendation simply says it should be initiated, it would be quite easy for us to, if my colleagues who were involved in the task force and subcommittee agreed to amend the commentary to say, you know, the assessment could be, would be performed by non-government with expertise and research development center, or by the governmental accountability office, government accountability office, if appropriate, or something that's pretty simple in the commentary. Well, how about just a non-executive branch entity, just non-governmental? You know, if they think that they can get what is, you know, someone from inside the executive branch at the GSA and their, you know, technology division, I don't want to, I don't want to micromanage this, you know. I want to take a second to welcome back James Stoker. James, you had a question you wanted to raise or a comment you wanted to make about number four. So, now's a good time. Thanks, Linda, this is James Stoker. Well, my question may have already been answered. I ask, what did the subcommittee meet by non-governmental entity? And I think that it's been clear that the subcommittees have been to a wide variety of different actors. So, that does answer my question. Thanks. Okay, great, thank you. All right, any other questions or comments? Jason Gart, history researchers? Do you have a, Tom, do you have a sense of the universe of how much this assessment might cost when you're talking about, you know, approximately 70 million records and might that be important because it kind of, I understand you don't want to micromanage it, but this could be a significant undertaking. Well, I mean, we're talking about 70 million records in existence and increasing each year. And so, it seems to me that the low-hanging fruit element of this is creating a system, unless we're expecting in the next century for the US to cut off access to all immigration refugees, et cetera, asylum seekers, then this is going to be a continuing issue. So, prospective only would be, you know, a practical way to start and not, and so I would guess that would be a lot cheaper than trying to figure out how to digitize in an effective way for access to existing records that I understand are kept in Stone Mountain and there are, you know, tons and tons and tons of them. So, no, but the short answer is no, I don't know how much it would cost. Okay, thanks. Thank you, yeah. And Jason, this is Twan, Sam, on our discussions focused on the pragmatics of sort of not making the perfect, the enemy of the good and about prospective changes that could be helpful going forward. And we were looking at some of the things that IRS, for example, has been able to do in creating tax transcripts by making databases talk to one another and creating self-service portals. And again, the idea is that these A-piles are frequently requested, but again, there is a mix of materials in those A-piles that makes the process very labor intensive. And so the feasibility is to figure out, you know, the way we're taking data in can, you know, ab initio sort of be segregated in certain ways that could readily provide certain information in certain ways going forward. You know, this is what the assessment is going to be, and say an outfit, whether you're talking about a MITRE or some other similar governmental contractor working with the executive branch streamlining how they do this going forward. This would really, in the long run, I think have some substantial cost savings as well as efficiencies in terms of turning around records quickly. That's the object. Just to follow up question, I guess maybe this is even to Alina or anyone else. I assume that with the transition to electronic records, the creation of new records would have to be digital born, or is that incorrect? I can't tell you I'm honestly sure about the answer, 100%. I would say it sounds logical what you're saying. It should be born digitally. But I'm not the records officer, where the United States really wanted to verify that. Alina, this is Tom Sussman. When we discussed this with DHS, we were told that they have a requirement for keeping paper records for some historic reason. So obviously that would have to be addressed by Congress if it's legislated. Yeah, thanks for the reminder, Tom. You're absolutely right. That's at least for DHS, yes. But does that mean, Jason Gardigan, does that mean that they should not also then meet the electronic records requirement? And again, this only helps you move. I honestly don't know the answer, but I will note it and take it back to the folks who do know the answers to those questions. So I will circle back to you. This is Alexis Graves, USDA. Jason, are you referring to the M1921 guidance? Is that? Yeah. Okay, so yeah, obviously we've got that December 2022 deadline staff approaching. The reality is, is that a lot of the work, the inventories that would have to be done with the records management couldn't be done, obviously in the last two years, while we were in a maximum Pella World War posture. So I still know that I can kind of meet that requirement. So yes, we are moving closer to the target and we're doing everything that we can. But the reality is, I think that most are still confident in saying that most agencies are not gonna be able at this structure to be able to meet that. This is Alina Simo again. I don't think the answer though to these great questions, Jason, would necessarily affect the recommendation. But great question. So I've noted them and I will bring back some answers. Mike, and I absolutely agree that my intent was not, I'm just trying to wrap my head around what an assessment like this would look like and then the fact that, well, moving forward at a certain date, they should all, by law, they should all, I guess they should all be born digital in some form, which would then help, I guess, in moving forward in the release, in the ease of a release, right? But agree, that's a separate conversation in this recommendation. All right, any other questions or comments? Are we ready to vote on number four? This is Patricia Weth from EPA. I have a question. I was just curious, was the subcommittee able to speak with the DHS regarding this assessment? And I was curious as to what their comments were. This is Tom, yes, Tom Sussman. The answer is yes, we did. We had a very fruitful discussion on the subject and individual members spoke separately as well. We had a group session. And as I say, the report was, in draft was circulated to them and we received back some comments. So, but I don't think it would be unfair to say that one of the reasons we persisted was that DHS has a lot on its plate. And they didn't, our discussions didn't suggest that they were going to be undertaking at their own initiative any major changes in the foreseeable future. And I'm not saying that they don't recognize a problem. I think they do recognize a problem. Jim Holzer, who's sort of the top guy over there used to be over at OGIS, he understands FOIA from the ground up. And so I just, we felt that perhaps we would be helping them by making this kind of a recommendation because it's unlikely that internal FOIA staff at DHS would be able to go to the higher ups and say, we need money to do a study because we're doing things, we need to do things severely differently. And just to follow up on a comment on the born digital issue going forward, born digital doesn't necessarily mean born digitally in such a way that it is easily meshed with FOIA requirements. And so that's, I think that's anticipated in the order, but we've seen too often new systems or records set up that could have from the start been involved different fields that would, some of which would be publicly available even proactively and others not. And the agency, it's more expensive and more complicated and the agency just didn't take the time to do it. So this might help in that as well. Thank you so much for that response. And I do remember a very robust conversation at one of our committee meetings with DHS. And I have to agree with you, I myself have pulled out the reports from this committee, in the last terms and pointed to different recommendations in order to implement best practices at my agencies. So I think I can see this as being very helpful to DHS in this respect. Okay, keeping an eye on the time, it's 12, 22. I would still have a lot to get through. Any other comments, burning questions that anyone wants to raise? Or do I have a motion on number four? Does Matt have an EPA motion to vote on number four? Thank you, Matt. Do I have a second? Roger, I second. Roger, thank you for the second. Let's take a voice vote. All those in favor of recommendation number four, please say aye. Aye. Aye. Anyone opposed to it, please say nay. There aren't any nays. Anyone abstaining? How do you think DSA abstains? I'm also going to abstain. Martha, did you get all of that? Yes, ma'am, everything is tracked, thank you. Okay, all right, so I believe this concludes the process subcommittees presentation for today. Tom, thank you very much. Thanks again to the working group. You guys did a fabulous job. I'm gonna keep things moving and turn it over to the legislation subcommittee, Patricia Webb and Cal McClanahan are the co-chairs. Patricia and Cal, I'm turning it over to you and you guys can drive from here. Oh, well, I'm immediately, Patricia Webb, EPA, immediately wanna pass this over to Dave Gruyere, who is head of the reimagining, OGIS working group, is a co-pry of recommendations to discuss. Thank you, Patricia. Thanks for that. I'm Dave Gruyere, an associate professor at the University of Arizona School of Journalism and board president of the National Food and Information Coalition. The previous committee term recommended that Congress, quote, strengthen the office government information services with clear authority and expanded resources. That was the recommendation. So we decided in this term, our working group would flesh out a little bit more with more specifics. So thanks to members, Tom Sussman, Patricia Webb and A.J. Wagner for work on this. We gleaned dozens of previous writings and research listed and annotated in appendix D of this report. I hope everyone's had a chance to look through. And we consulted with dozens of experts, including requesters and agencies and directors of FOIA oversight models in Connecticut and Jersey, Pennsylvania, Ohio and from some of the more than 80 nations that have alternative dispute resolution agencies, enforcement agencies as it were. The list of those 40-some people are listed in appendix A of this report if you want to take a gander. Now you can see in the report the seven recommendations to Congress and Archivist approved by legislation subcommittee last month. I want to thank everyone who contributed to these ideas which led to basically 15 iterations of this report as we continue to gather information and revise. Some of us wanted additional recommendations. Some wanted fewer. And many questions still need to be answered. In the end, I think we have some solid proposals for Congress and the Archivist to consider. Really, I think it's a great starting point to get this discussion going. And it's not going to end today. We want to say that these recommendations are not an indictment of the people at OGIS. They've done a good job of the resources they've been provided. Also, it's not a criticism of the Archivist, Congress, the courts, or the federal government overall. Rather, I think the takeaway is that we acknowledge the system doesn't work as well as it should, as well as it could be for requesters and agencies. We all know that. And we can learn from what others have tried. Quite successfully, I might add, to save agencies and requesters time and money. And perhaps these recommendations could save taxpayers' money by avoiding needless litigation. So as we go through each recommendation, I'll take copious notes. I'll update the report as needed. I've already received suggestions, corrections, things like that. So we're onto version, I think, 16 now. And I'd like to mirror Tom Sussman's earlier comments on the A-files. We don't have every single detail nailed down. And I don't think we're going to get it all nailed down today or even May or June. No doubt there'll be many insights and questions that need to be addressed. That's why one of the recommendations is that the specific details be researched and fleshed out in a study. See page 16 of the report for just some of the topics that need further investigation. And we can certainly add more to the list. No doubt, I suspect each recommendation will be approved unanimously today and quickly. But there is a chance, maybe we'll have to continue into May. And I'd certainly provide an updated report with the wordsmithing if that happens. So with that, let's get started with number one. And we wrote these, again, very succinct. The idea is the committee, we just want to get there. So number one, Congress gives OGIS the authority to make binding decisions. This is probably the most important recommendation of them all. It's something we looked at really closely in these other jurisdictions. And we think overall, whether how it's done and the details, we'll have to figure that out. So open up to questions, discussion on this first recommendation. This is Kristin Alice from the FBI. At what point in the process do you anticipate OGIS would be getting involved to make a binding decision? Is this request going through initial processing at the agency and then an appeal at the appellate authority and then to OGIS? At what time then somebody could go to court? That's a great question, Kristin. And some of us discussed in the report, but there are different ways of approaching it. I think that has to be figured out. We don't have the definitive answer. We looked at Pennsylvania, where a requester gets a denial. They're not happy with that. They could, you know, there's situations where they could choose. They could file suit immediately, just like some organizations do today, right, after day 20. Maybe we would want them to first do an administrative appeal and have that worked out with the agency before they would go to another situation. You know, all of that we don't have to find, but certainly needs to be worked out in conjunction with, you know, talking to more of the agencies, I think, to include in that. So I hope that doesn't really answer your question other than there are different approaches to that. And as a follow-up, when you say binding decision, OGIS looks at a request, determines that the agency, for example, improperly withheld information. Does the agency have the ability to appeal that decision anywhere? Yes, absolutely. And that's clearly outlined in the report. I think we see that everywhere that there is, you know, courts are still the right place for the last resort. So if an agency feels that the decision is not good, they could certainly go to the courts to challenge it. And that's how it works in Connecticut, Pennsylvania, elsewhere, everywhere, really, for the most part. So absolutely, as it turns out, only 3% of decisions in those cases in those states are challenged in court. So something seems to be working well there. They seem to be making decisions that most people tend to agree with. But certainly, Kristen, that's a great question. Follow-up to my follow-up, and then I will let other people have opportunities. So would it be the agency suing OGIS over the decision, or would it be the agency suing the requester? Boy, you're just nailing the questions that are so important and need to be answered. And once we worked through for months on, that, again, is a question to be just figured out. Certainly, we don't wanna set up a system where agencies turn around and sue the requester. And the requester, all of a sudden, has to hire an attorney to defend him or herself, or herself in court. I mean, that's not a good process at all. And it would chill requesters, certainly. So we don't want that. And then what? Do they sue OGIS? Do they, you know, OGIS doesn't want that. So we have to figure that out, and we have to look more closely at how that's playing out in the states and all the other nations that do this. But I think from what I hear, that's a nut that can be cracked, that we could come up with something to make that work. Good questions. I think you hit, I think you hit the biggies. Maybe we've settled, we've dispensed with those and we can just approve everything now. Hi, this is Matt Thorns with EPA. More questions? Hi, Matt. Hi, how are you? First of all, thanks so much for all the research that's gotten into this. I mean, it's just a monumental amount of work that's been done. And thanks to Kristin for her questions. She took care of most of my comments. So thanks for that. But I did have some concerns with this first recommendation. And I do think that OGIS would have to exponentially expand in order to handle this across the government. I think, honestly, it would delay decisions for requesters as well. Because just, you know, there's the increased burden on agencies having to coordinate with OGIS, the FOIA folks that would cut into their time handling other requests. And then, you know, I don't know how OGIS would handle this within a 20-day timeframe. So does that mean you'd have to amend the FOIA and expand the 20-day timeframe? So I think there are a lot of questions here that could possibly be flushed out with recommendation six. So I'd be interested to see what those studies come back with before voting on this, to be honest. Thank you, Matt. I totally agree with you. That's why that number six there. By the way, that was added most recently with a suggestion from an agency. So thanks, that agency input was important. This is James Stoker. I had a couple of comments. First, just on this notion that OGIS will need to be expanded. Absolutely. It would actually be dangerous to assign some of these capabilities to OGIS without expanding it greatly. I do think we have to keep in mind the fact that some of this stuff is already being done. So for instance, when cases are taken to court, we are actually bringing other people into this situation and incurring costs as well. So there is already massive amounts of funds being spent on reviewing these cases anyways. And transferring some of that to OGIS may actually make it a little bit cheaper because it might be, for instance, possible for some employees who are not lawyers to do that, or not outside counsel. So the money is being spent at reviewing these decisions no matter what. So I'm not convinced that expanding OGIS would be wasteful in any ways. I also wanted to note that I was happy to see in the written report a reference to international examples to the OAS's model on access to public information, for instance, I think there are other international examples that could be useful as well. So what someone, for instance, has an arbitration procedure, which is very interesting. We looked at it a little bit last year in the time volume, sorry, excuse me, last term in the time volume subcommittee. So in conducting these reports, it might be good not only to look at, there's a feasibility study conducted, it might be good not only to look at what is happening on a state level, but what's happening internationally as well. Thanks very much. Thank you, James. Your spot on to your first comment, I think you nailed really the beauty of this idea. I mean, the core concept here is right now the only recourse really to requesters to file suit in courts. So we've seen backlogs increasing litigation. We see a lot of requesters just walk away because they can't afford an attorney. And it's an expensive process. And we talked to people in the District of Columbia, a circuit, and they said, wow, most of our cases really don't need to be here. They could be handled quicker, cheaper with, they don't need a judge, federal judge to take care of it. And that's what they found in Ohio when they set up a system. So they're diverting the quick head disputes away from the courts and getting them settled quickly. In Pennsylvania, most of the disputes are settled within 30 days. So, and quickly with cheaper appeals officers who are skilled in public records law, but they're a lot cheaper than a judge and our court system. So really that's what this system is about. It's faster turnaround, getting a lot of that stuff. And it's cheaper for the taxpayer, they're cheaper for the agencies. Federal agencies spend 43 million a year defending themselves in court. We shouldn't be relying on that as the sole remedy other than mediation that's still allowed now. Anyway, I just wanted to mention some of that because I think you really hit on why this is important. This is Kel. One of the things that I can bring to this discussion is, and someone mentioned it in the chat, but I can sort of expound on that, a while back the DC circuit had a mandatory mediation policy. It was a pilot program and they said that for all FOIA cases and all employment cases, but we won't talk about that. For all FOIA cases that got appealed in the circuit, you had to go to mediation and you had to have at least one meeting. And it was a good idea in theory that did not at all account for the fact that there was literally no incentive for the DOJ attorney or the agency to do anything because they'd already won the case. And so my personal experience, my experience of other lawyers and pro-state people who went through this were that the mediation's were basically waste, a waste of time because the agency would go into the, they'd send the DOJ lawyer to the meeting and then they would sit there and they would ask sort of, how will you compromise? And the lawyer would say, we won't. And then that would be the end of the mediation. And it got so bad that at one point an agency withdrew from mediation rather than answer the mediator's questions. And so they were able to do this because there was no cost to it. There was no ability to do anything to force them to stay in the mediation or to have a binding decision. And so if you want there to be an ADR and the Alternative Dispute Resolution Forum for FOIA at OGIS, ADR to function really needs both mediation and arbitration. And if you only have one, then it really doesn't accomplish that much except for the very low hanging fruit. Thank you, Kel. All right. Any other questions, comments? We have seven recommendations. I certainly want to hear folks, I'm taking notes. But other thoughts. Jason Gardner, sir. Yeah, and we spoke about this yesterday. Well, first of all, the group, this is, I agree with everybody else that this is just very well free, very thoughtful and very well laid out. I differ with Kel. I think that the example is really the armed services for the contract appeals. It's been around for 50 years. It's an ADR forum. It issues binding and non-binding decisions. It's neutral, it's independent. And it's the place that defense contractors and the government that get into conflict come to mediate. And they have accelerated processing for small claims. You don't have to represent yourself. You don't need an attorney. You can go there. And I really, I think that that's what's lacking and it takes a huge amount of things off of out of the legal system and gets it clear prior to that. So, it's something that's been very successful in the federal government. It's something that you can be tweaked and used as a model for this. So again, just excellent work, David and your colleagues. Well, thanks, Jason. And based on your comment, I added to page 16 a bullet point that part of the study needs to investigate other potential models to all, like within the federal government existing. So the copyright small claims court that's been created. There's a variety of these things that are already out there. And maybe that would be better. Maybe making OGIS like one of those or creating a whole new agency, a whole new entity, you know. Again, I don't think these recommendations has worded like buying Congress to do exactly as worded. Maybe a study would say, well, that was great, but maybe we need to do create this other thing instead. That seems to make more sense. But the main point of recommendation was to create some entity that has binding authority that diverts stuff out of the courts. And it could be what you brought up. Thanks, Jason. Any other thoughts? Dave, this is Allison from Commerce. So with this mediation, would it be a required step? Is it something that the requester could opt into if they want? How do you foresee that? Well, the way the reports frame now is, OGIS would have kind of two divisions. One would be mediation. And the other would be adjudication. And that's kind of how a lot of these other folks set it up. So maybe someone wants just to go to mediation. And that's fine. It gets settled that way. In Ohio, it starts that way. But if that doesn't resolve it, and sometimes that happens, a lot of times that happens. So then OGIS would have the ability to go straight to adjudication or perhaps the requester would want to request straight to adjudication. So again, that's one of those details. It probably needs to be fleshed out a little bit more. And there are different systems to set that up. But that's a good question, how those could work either or. There's some agencies where you have to pick as a requester. You have to pick mediation or you have to pick adjudication or you have to pick litigation. Most of them kind of are a little more fluid. So we'd have to look at those closely. Okay, thanks. Thank you. Any other questions before perhaps a motion on number one to get a sense of the mood of the room? Any motion? So moved. Jason Gart. Thank you, Jason. Second? Second. Okay, Cal. Thanks for the second. All right. I don't know, Alina, am I usurping your power? Yeah, that's okay. We'll go ahead and take a voice vote on number one. All those in favor, please say aye. Aye. Aye. Okay, all those opposed, please say nay. Nay. Okay, we're gonna have to break that down. I heard Kristen Ellis say nay. Allison, did you say nay? Allison Dietrich said nay. Did I hear another nay? And Matt Schwartz, EPA. I'm sorry? Matt Schwartz, EPA. Matt Schwartz, EPA was a nay, okay. Patricia? I was a yay. Okay, yay, okay. Just wanted to check. Okay, Martha, did you get all of that? And I'm now going to ask anyone abstaining. Oh, I'm sorry, Alan, please go ahead. I'm abstaining. You're abstaining, Alan is abstaining. Bobby, I'm assuming you're abstaining? I'm abstaining. Okay, Alina is also abstaining. All right, Martha, how does that pass? How many votes do we have for aye? I'm counting them right now, 12 yeses. All right, so three nos, some abstains and some absences. Okay, so that's not, is that give us a general majority? Yes, because we have 20. Well, we have 19 present and 12. 18, 18 people are present. Correct. 12 out of 18. Okay, so I believe this recommendation passes, Dave. Okay, thanks, well, move on to number two. I guess they're numbered all one, but so that means they are all approved. Yeah, I'm sorry, just on this slide. I apologize. No, no, no, no, I'm joking. I guess I'll. It was a problem. So number two, Congress gives OJC authority to review records in camera. So this actually came up in 2018 in proposed legislation, but it didn't get through Congress. And what we see around the world and in the States is, this is really an important authority that should be given in, regardless of binding decisions or mediation. Now, not everybody agrees with this. I think there's some folks who believe that mediation requires some pure neutrality or some way. And I think there's a lot of folks who talk about that. But we think that if there's a dispute where OGIS feels it really needs to look at the records to make a good decision, and particularly if we're talking binding decisions, then they really need to be able to see the records. So, and, you know, there are several people in OGIS who have security clearance. That's how it worked in Canada. And so that's why we're recommending number two. Thoughts, questions. By the way, I suspect we'll have some concerns from the national security community on this. Although I haven't talked to them directly. This is Cal. I can say in support of this that the idea that mediators have to be pure innocent souls is laughable. You know, this is what happens all the time when you have a mediation or let's say you go to a magistrate judge, which is if we're doing the binding decisions, we're sort of following the magistrate judge model. Then I've been to many mediations with magistrate judges who were not issuing binding decisions who were just serving as a settlement conference who would go one or the other, you know, they go to the satellite diplomacy back and forth between the parties and the judge would come to me and say, you're completely wrong here. Like this will not, if you try to push this in court, you will lose. This is not a winning argument. And so you should not, in my opinion, stake your entire settlement on getting it because if they back off, you'll lose. And they'll do the same thing to the other side. So mediators need to be able to tell an agency or a requester that you're being dumb. You know, this is not something that you're right about. This is a very weak argument or this is a very strong argument, which they can't do unless they see the records. Thank you, Cal, this is Dave. And a bunch of experts I talked to on this, a lot of the folks cited in the sources, they kind of agree with what you're saying, Cal. I'm sorry, go ahead. I interrupted you. All right, this is Kristen from the FBI and at the risk of overstating my scope of representation here as a member of the intelligence community. I can confirm, Dave, that in fact, the national security groups will have concerns about OGIS having access to in-camera review classified, including very highly classified records. Also, just from a law enforcement standpoint with law enforcement records that, you know, that creates additional risk as well in our ability to do our jobs. So I think that this is gonna be a problem for folks that work in this area. Let's see your point. Other thoughts, questions on that? Yeah, I had a follow up to that. This is Matt at EPA. Would it be possible to reword this to give OGIS the authority to review records in camera that are in dispute, for example, under exemptions five, all provisions under exemption five, but not law enforcement records under seven or national security records under one. How do we consider that? We actually didn't talk about that, but you know, maybe that's something that what do the other working group members think on that? This might be some compromise, you know. Lots, anybody have thoughts on that? Hi, Dave, it's Patricia West from EPA. I like Matt's suggestion a lot. I'm wondering, Matt, do you mind saying that again? I was taking notes. Sure, I thought, you know, if there are concerns from the intelligence community and from the law enforcement community, perhaps OGIS could, we could sort of partition out that OGIS has authority to review records that are with health under specific exemptions, like exemption three, certain statutes, certainly exemption five, exemption six. I mean, personally, my feeling is no, I think if anyone needs oversight the most in our country, it's an intelligence community. No offense to my comrades here. And it's even more important that someone has the ability to take a look and make sure that they're, you know, doing the right thing. But I'm just one vote and I'm open to other thoughts and or amendments to this recommendation. This is Patricia West from EPA again. Matt, there was a portion in your suggested language where you said, I think you said excluding records, law enforcement and intelligence records, you said, am I capturing it correctly? Yeah, that's right. So basically exemption one, exemption seven. You know, if there has to be a compromise, maybe we can do it on the basis of actual exemptions under which agencies were holding records. I definitely understand David's concern, which I agree with, but I'm just wondering if this is a fair compromise. Does this change? This is the reason that I would, besides the obvious that this is sort of my bread and butter, the reason I would push back against this is that giving OGIS this authority, especially if you have like the binding decision ability or even mediation, would actually encourage people to go to OGIS over court because right now there is, while judges have the right to in-camera review of any documents, they don't exercise it very often. And in fact, if you even ask for in-camera review, the DOJ lawyer will throw 10 pages of briefs at you about why in-camera review is such a waste of time because oh my God, we could not possibly do in-camera review because look at this declaration. And so if a requester is dealing with, and it seems worse in terms of national security case and law enforcement, if a requester says, okay, I can go to court and fight against the declaration where the words have been expressly chosen to defeat me or I can go to OGIS where they will more likely than not look at the actual record. Wild good OGIS first because then if OGIS tells me, yeah, you're not gonna win this fight, then maybe I don't go to court. And as to for you know, so which is bad actors, which is good actors, I don't wanna say that the intelligence community needs more oversight than anybody else sort of like David said, but I will say that the cases where the information disparity in court is the greatest is B1, B7. And that is where the agencies are given a tremendous amount of difference by the court and something like OGIS is needed because absent OGIS, you're sort of at the whim of a judge who feels like going against the DOJ line. Okay, I'm gonna have to step in. Thanks, Cal for that comment. I really appreciate it. Dave, I'm gonna have to step in because I've hold folks and I've gotten some feedback. Some folks have a hard stop at 1 p.m. today. I have a few folks who told me they can stay a little bit over, but we're definitely gonna have to pick this up again in May. That's why I'm very glad we had this meeting today in April because I had a feeling we're gonna still have to carry some things over to May. So we will pick up again with all of these proposals in May. If that's okay with everyone. Cal also wants to present something, he will present in May, but I want to be able to get in some public comments because I think that's important and we usually reserve that right at the end. For those of you who can stay or a little past one o'clock to hear public comments, I would appreciate that. So with that, Michelle, please go ahead and give the instructions for anyone who wants to call in. Absolutely, so ladies and gentlemen, as we move to the public comments session, please limit your comments to three minutes. Once your three minutes expires, we will mute your line and move on to the next comment. So once again, if you could limit your comments to three minutes, that would be great. Thank you. Okay, while we're waiting for people to queue up on the telephone line, I'm going to ask Jesse Hartman from OGIS. I understand there are a couple of comments or questions that should be read out loud. Jesse, over to you. Hi, yes. We have three comments for the committee to consider. One, please consider including a placeholder for next year's committee to review whether OGIS and or DOJ OIP should be able to make referrals to the office's special counsel to deter egregious behavior. Number two, priority is adequate funding and authority for DOJ OIP in their compliance oversight mission. Bobby is drowning, Bobby Tlaibian is drowning. Please consider including a recommendation to study OIP funding and authority. And the third we have is, will the committee consider a recommendation requiring agencies to amend past reports and raw data with narrative as to how error or false reporting has occurred. And that's all that we have in the comments so far. Okay, thanks, Jesse. Any one on the committee wants to offer any responses to those or not? You don't have to. I can quickly, Bobby, I can quickly address the last comment. We take very seriously the accuracy of the reports and often from year to year, we do see as you compare one year's reports and other some data is starting to make sure to use footnotes, explain those where we think it's most appropriate. Good, thank you. Michelle, do we have anyone on the telephone? Let's see. I do not see anybody in the regular audio queue. I think that someone was trying to get in on the WebEx audio. If you are joined via WebEx audio, ladies and gentlemen, be sure to click on the raise hand icon that's above your chat box. That will enter you into the queue. I do see, I believe, Robert Hammond wanted to make a comment. So let's see how Robert is joined. Oh, I see he is on the regular audio. All right, Robert, your line is muted. You can go ahead. Hi, this is Bob Hammond. Can everybody hear me okay? Yes. Hello. Yes, we can hear you, Mr. Hammond. Listen, Bobby, the question I'm asking, you've got my presentation, duty, massive false reporting, my correspondence to the Secretary of Defense, all that kind of stuff. DoD is still not submitted. It's raw data for 2016, 2017. The DHA data has no case numbers to it. And every single year, probably because I complain, they correct their past reports and put a footnote in and say the following agencies corrected these portions of the report. I think last year there were like seven areas where DoD did that. What I'm saying is this nonsense will go on forever. What I'm asking is they amend a prior report whenever they say that, include the raw data that goes with that, otherwise some requests will never get reported at all and explain what the problem was. Don't do it as a footnote, amend the report, post them both. I didn't mean to get energized about that, but one of the few safe guards for requesters is the reports. I saw the recommendation to produce the contemporaneous logs. I like that. But that's what I'm asking for, Bobby. Listen, so I complain a lot. I put a lot of good comments about the Defense Logistics Agency. I think they are one of the premier agencies in the world when it comes to artificial intelligence, records management, the whole works. Those are in the chat line on YouTube. I hope they will agree to join your committee next year. They put RM and FOIA under their information operations area and they use information as a warfighter enable. So they're really good at it. And I hope that they will consider investing the time and they have got an absolutely awesome staff. I put some comments into the chat on YouTube and also in this committee. A lot of discussion about being able to compel the release of records and things like that. And again, the FOIA logs. In May 27th and September 2015, 2014, appeals of a B5 denial of my April 1st, 2014 FOIA request to native UMED seeking Walter Reed's FY2313 annual FOIA report, raw data and forwarding correspondence, I say, this FOIA request and my appeal have been have bearing on the accuracy of FOIA reporting in the annual FOIA reports to the United States Congress and potentially integrity of FOIA request processes. After eight years and six years of litigation, I still do not have those reports and the raw data to share with you regarding whether Walter Reed, Navy, DOD were flipping the books. What I have is a materially altered 16 page Walter Reed FOIA processing log that does not comport with the 17 page log cited in DOD's one index, which Walter Reed admits to altering during litigation. Copies of what? Your time has expired sir. Okay, anyway, there are a lot of great people in DOD and I hope that they step forward. DOD is awesome, they just need to step forward. All right, Mr. Hammond, thank you. And I know you've submitted written comments. Again, I've asked the committee members to take a look at those and they're also posted on our website. So thank you again. Do we have any other callers in the queue, Michelle? I'll do a quick double check. I don't see anybody in the WebEx audio queue, nor do I see anyone in the regular audio queue. And then Jesse, do we have any other questions or comments either on YouTube or on the WebEx site? Nope, that is everything. Okay, sorry to rush through all of this. I'm just very cognizant of folks hard stop times. I wanna thank all the committee members for all their hard work. Thanks to Martha for being a great alternate DFO today and thanks for the OGIS staff who's been supporting us today. We will see each other again virtually our next meeting Thursday, May 5th at 10 a.m. Eastern time. Does anyone have any questions or concerns before we stand adjourned? Not hearing anything. Thanks again, everyone. Stay healthy and well and safe and we will see each other again on May 5th.