 All right, ladies and gentlemen, we are recording today, so please remember when you are not speaking, please demute your line or device. Also, WebEx does re-mute you once we go live, so when you need to speak, please unmute yourself again in WebEx, okay? If I see your lips moving and you're not... This meeting is being recorded. Ladies and gentlemen, welcome and 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 panel by using the associated icons located at the bottom of your screen. Please note, all audio connections are currently muted and this conference is being recorded. You are welcome to submit written comments and questions throughout the meeting which will be addressed at the Q&A session of the meeting. To submit a written comment or question, select all panelists from the drop-down menu in the chat panel, then enter your question or comment in the message box provided and send. If you require technical assistance to the event producer, I will turn the meeting over to Deborah Stydell-Wall, Acting Archivist of the United States. Ma'am, please go ahead. Okay, good morning. Thank you. So yes, I'm Deborah Wall and the Acting Archivist of the United States. This is day four for me and it's my pleasure to welcome you all to the ninth meeting of the fourth term of the FOIA Advisory Committee. As many of you on the committee and in our virtual audience know, now retired Archivist David Ferriero established this committee eight years ago as part of the U.S. Open Government National Action Plan. Committee's work to improve the FOIA process government-wide is part of a rich legacy that David has left us as he goes off on a well-deserved retirement. David was an unparalleled champion for openness and as his deputy since 2011, I joined him in that steadfast support of the committee's work during its four terms. The National Archives mission won't change with David's retirement. Our commitment to making access happen will continue because the work we do here every day at the National Archives is vital to a well-functioning and vibrant democracy, whether it touches the Federal Records Act, the Presidential Records Act, or the Freedom of Information Act. I'm thrilled to report that last Thursday David signed the charter for a fifth term of the FOIA Advisory Committee and later this spring, the Office of Government Information Services will be seeking nominations for the new term and I look forward to working with OGIS to appoint, and in some cases possibly reappoint, members to the term that kicks off with the first meeting after Labor Day. Work that this committee does is important and makes a real difference in the cause of openness. And I thank all of the committee members, past and present. I thank the talented OGIS staff and all of you here today who share in that mission. So with that, I'll turn the meeting over to Alina Simo. Thank you so much, Governor. We really appreciate it and hopefully you could stay for a little while, but if you can't, we completely understand that. As the Director of the Office of Government Information Services and this committee's chairperson, it is my pleasure to welcome all of you to their penultimate 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 who are able to join us today and express my continuing gratitude for all of the hard work you've put in for the last two years. Your commitment to studying the FOIA landscape in order to develop some fantastic recommendations. A lot of them are improving the FOIA process government-wide. I know you've put in a lot of work already. I'm looking forward to finalizing our recommendations at today's meeting. 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 the NARA YouTube channel. I am advised that committee members Roger Ando and Alexis Graves are unable to be with us today and also that AJ Wagner will be popping in and out due to some other competing commitments. But I'm going to ask Kirsten, who has taken a visual roll call, if she could confirm that we have a quorum. We do indeed have a quorum. Okay, great. I just want to say a few words about public comments. We have received two written comments in advance of today's meeting. If you do not see your written comments posted, please be patient. We're working through them. And Kirsten, as our designated federal officer, has shared comments with all committee members in advance of today's meeting. If anyone wishes to submit any additional public comments regarding the committee's work, you may do so at any time by emailing FOIA-advisory-committee at NARA.gov. And we will consider posting them to the OJAS website. An important reminder for our public members attending today, the chat function in WebEx and the NARA YouTube channels is not the proper form to submit extensive public comments. 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 specifically is interested in getting feedback on 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 OJAS website. Please also visit our website for today's agenda, PowerPoint presentation, and related meeting materials. We do have a very packed agenda today and several recommendations that some committees are eager to present, discuss, and vote on. I also want to remind all of our committee members today is our last public meeting opportunity to iron out any specific language and recommendations and obtain votes necessary for passage. Following today's meeting, the working group will be hard at work pulling together a final report draft that we will vote on in our last meeting on June 9th. As chairperson, I look forward to working with the working group to finalize that draft. A word about our agenda today, I reserve the right to adjust the times as necessary. We'll see how the cadence goes. And I want to remind committee members to use the all panelists option from the drop-down menu in the chat function if you want to speak or ask a question. And I may have missed you, but I am looking at everyone right now. You could also feel free to chat me or Kirsten directly that you would like to speak. However, in order to comply with the spirit and intent of the Federal Advisory Committee Act, committee members should keep any communications in the chat function to only housekeeping or procedural matters. No substantive comment should be made in the chat function as they will not be retorted in the transcript of the meeting. Also a reminder, if you need to take a break at any time, please do not disconnect from either audio or video of the web event. Instead, we suggest you mute your microphone and turn off your camera and just send a quick chat to me and Kirsten to let us know if you'll be gone for more than a few minutes and join us again as soon as you can. If all goes according to plan, we will be breaking at 11.20 a.m., although we may end up breaking a little earlier or later depending on our pace and cadence today. And a final reminder, I'm guilty of this all the time. Please identify yourself by name and affiliation each time you speak. That helps us tremendously down the road with both the transcript and the minutes, both of which are required by the Federal Advisory Committee Act. We will be circulating minutes from our March 10th and April 7th meetings to committee members after Kirsten and I have reviewed and certified them. We will ask committee members at that time if they have any edits or changes to suggest, otherwise we will go ahead and post them. The transcript from the March 10th meeting has been posted on our website and we will post the transcript from our April 7th meeting and in the future. You may also access both of these prior meetings on the NARA YouTube channel and we provide both links on our website. And one final quick set of housekeeping rules, but very important rules, I want to remind everyone about voting procedures since we will be voting several times today. Any member of the committee can move to vote on a recommendation. The motion does not need to be seconded, although it seems like we like doing that, so we'll continue doing it. The motion can pass by unanimous decision, which is when every voting member accepts abstentions is in favor of or opposed to a particular motion. General consensus, which is when at least two-thirds of the total votes cast are in favor of or opposed to a particular motion. Or a general majority, which is when a majority of the total votes cast are in favor of or opposed to a particular motion. In the event of a tie, we will reopen discussion and the committee will continue to deliberate and vote until there is a majority. 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 I'll take a minute to pause each time to make sure Kirsten has reported the vote for each recommendation. So I'm looking around, making sure no one has any questions or concerns. I don't see any. And so with that, I am going to turn it over right on time to the first discussion of the Technology Subcommittee. Allison Dietrich and Jason Gart, co-chairs. I'm going to turn it over directly to Jason and Allison. I don't know who's speaking first, but who is yours? Allison. Thanks so much, Alina and Jason. So the Technology Subcommittee has gone back and looked at the second part of our third recommendation pertaining to FOIA logs and the affirmative disclosure by agencies. So we're continuing to expand on the original recommendation from the 2016-2018 FOIA Advisory Committee. And the substantive changes that we've made involve adding information about fees. We added that the log should be text searchable, change the frequency of proactive posting from monthly to at least quarterly, deleted the different treatment for agencies that receive fewer requests, and acknowledged that the release of the information is subject to the assertion of exemptions and exclusions. So the data fields that we would like added proactively for the FOIA logs would be tracking number of the requests, date of the request, name of the requester, assuming that it's not a first party request, organizational affiliation if identified, whether the request was processed under the Privacy Act as well, subject matter of the request, status of the request, whether it's pending closed. For requests that have been closed, the date closed, and the result of the FOIA request, whether it was granted, granted in part, denied, withdrawn. The fee information, fee category assigned to the request are applicable, such as commercial, educational, news media, other, whether a fee waiver was requested, if the fee waiver was requested, whether it was granted, amount of fees charged, amount of fees, and amount of fees paid. Does anybody have any questions on our revised proposal? The part one we had done at the last meeting, and that one had passed, and it was just part two. So if we give one more, there we go. Alison, this is Kirsten. I just wanted to let you know that the full sum of all of these recommendations, the A through J, are on the link that I just shared with everyone. Okay. Thank you, Kirsten. To see them in one place, because they're split up in several different slides here. Okay. And they're also available on our website. So any questions from subcommittee members first and then committee members? I see Cal raising his hand. Hi, yes. I just have a question about the fees. Is this something that you would envision being a dynamic document so that it would be updated in real time, or would it be published after a period when all the fees have been paid, or would it just be how many fees were assessed? You know, how would the fees are something that normally change both how they are set with how much is assessed and how much is paid over the course of the request? So what would be in that field if it's not dynamically updated? I envision it as a snapshot at a moment in time when those reports are done quarterly or whenever they're run. Others might have other thoughts, but also if the case is open and fees are charged, that could be updated. And then when the case is finally closed, it would have the final information if that request is open more than a quarter. Others on the committee, subcommittee, any thoughts? I think most requests are going to be open more than a quarter. Right. The way things are, would you expect agencies to go back, forgetting about fees, to go back and update the FOIA logs when the request has been closed? If it's open when the report is started? Because I would, if the way that we're envisioning this work is that if a request is open when the first quarter report is done and then it would be on there as open and then say the second, third, whenever that request is closed, it would be on that most recent quarterly report as well. So a request would show up in multiple reports? Possibly. And if it lasts a year, it'll show up in four different reports. It's open, open, open, closed or something like that. That's the way I would envision this working, yes. That? Okay. That can cause trouble for people who are sort of trying to use these to track like how much, how many requests are coming in and whatnot because they would be duplicates. If you do do that, and I think that's a great, I'm not against the idea. I would say that there needs to be a marker for this is a legacy request. This is something that's not new to this month or the ones that remain open. Jason Gart history associates. So, Kel, great question. I think in the full document, we actually say status of the quest. So it's going to say pending. You know, I see pending one, you know, quarter one, quarter two, quarter three, then quarter four closed. And I think we, the languages proactively publish ongoing basis, at least quarterly. They want to update it daily. I mean, more power to those agencies to do that. But, you know, we understand time constraints and workload and we say at least quarterly. So that I don't think that's a bad idea. But I'm just saying that if it says pending in Q1, and then the same number if they're in a suspended in Q2, it would be helpful for people reading the report not to have to go back and look at Q1 to see if it's an old request versus a newly submitted request in Q2. Like a little flag or something for new requests or existing requests or even have a column that says newly submitted this quarter. Right. And I think Allison or David or Christian, I think that once it's a new request, that's it would be implied that this is a new request so that the people using the logs would see this is a new request that came in. And then it would be that request would be pending. This is Linda Fry from SSA. One thing to keep in mind is when we do the logs, they're going to have the date that the request was received. So that would, you know, using that information, you should be able to tell when it actually came in. However, I do have an additional concern because with adding the fee information that just changed this workload from something relatively easy to something very that's going to be very time consuming for agencies to do. Because I can tell you right now for us to provide fee information, we have to go in and look at every single case individually. There is no way for us to run an easy report out of our processing system to provide that fee information. So that just took this from being a minor addition to our workload to a to a pretty major addition to our workload that's going to take a significant amount of time. The way this is phrased is a should contain and not a must contain. So if it's phrased in terms of best practices, are you okay with that? So what do others think as well? I'm okay with that. I just was concerned that it was listed as a requirement. This is a body that might also change as since FOIA online is going away that whatever system, you know, folks end up with might be capable of doing that. This is a body from DOJ. I just want to just along those lines. To me, the primary purpose of FOIA log is to inform the requester of what's being requested, what's been what's been processed to inform them of better inform them of types of records they could request. And I would I appreciate very much that the recommendation says that a FOIA log should or a good one would contain some of these. But my my focus would be on those elements that actually assist the requester in seeing what the records that have been processed are. I'm not sure what the benefit of the fee information is in a FOIA log. We do have that information in the annual FOIA report, both that are like a raw level and in the aggregate level. So it's out there to understand how she's are being assessed. My suggestion would be to focus on the elements that are as my colleague just mentioned, not to burdensome for the agency to put in a FOIA log. And that are most reflective of what's being processed topic wise in what happened to those requests. This is Michael Morrissey from Muck Rock. I don't want to do, you know, I thank you Linda for flagging that concern. I don't want to create a ton of undue burden on agencies. You know, I think one of the things that's exciting to me about this proposal is the potential to kind of reduce some of the end of year annual FOIA reporting requirements as more data is kind of proactively released in the long term. I think, you know, if I do think if we could use this recommendation to nudge not necessarily the FOIA offices to manually put this in, which does seem like an unnecessary burden, but to put pressure on sort of the people who make FOIA processing software to start including that in the data that's more easy to export, that would be a win. And so maybe, you know, I don't know, maybe this goes beyond the scope of what we want to put into this recommendation at this point. But I'd be fine with leaving that out there, but I do think, you know, it'd be great if we could push vendors to start making this easier to just export because this is just data. And, you know, to the point that Kell raised earlier, I think having this as a living document, you know, I think the goal should be just this data is available online. Similar to how FOIA online does it, quite frankly, where you can kind of search and export data in a variety of ways, you don't have to release a FOIA log, but it's sort of a living database that folks can access. This is good. Oh, good, Dave. Oh, thank you, Kell. Thanks. So, yeah, I think Linda, as Allison said, these are just recommendations. These are like a goal out there. We understand different agencies would take different time to get there, certainly. And Bobby raised a good point. Well, why need all this data out there anyway? And I think there are two other reasons why this data is really valuable. One is, requesters turn to these logs for guidance when they may be looking for information. Why reinvent the wheel? And it's helpful if they get a sense of what information was requested in the past, how it turned out, what fees were charged, all that sort of things. Very important to requesters. And we found in our research that requesters actually look at these logs for that reason. The second reason is this data is really important for us to get a good sense of how the system is working. So, AJ Wagner, myself, many others, we analyze this data, the log data, to see trends in what's happening. And we need it down to that granular level, the individual request. We look at fees charged, we look at time spent to process. So, I think it's a really good way for all of us, and not just scholars or researchers, but agencies, the government, and everybody else to be able to see what's working well and what could be done better. So, really, that's the impetus of having some of that data added in there is ideal in helping the system work better. I hope that helps to answer that question. It's a really good question. Thank you. Thank you, David. I appreciate that. And I appreciate both with that perspective, of course. And, I mean, in my office, actually, we're all about data, of course, annual report. And my only suggestion was going towards like we should, and I think you capture it in the recommendation as far as these are things that would be good to have in a FOI log. Is that the perfect? And this is what I said last time. The perfect shouldn't be the enemy of the good. And I'd hate to have agencies feel like they can't do any of this so that, you know, they can't, this is a long list and they can't do it or it's the burdensome work. Obviously, I think for a FOI log, the primary purpose of FOI log, what I've always seen is to make sure that at the very least you can see what's been requested and how that request has been handled. I've records been processed, the topics and whatnot. And then all of this other data is helpful as well as we analyze it ourselves and assessing agency compliance. And we have, you know, have it both in the inter-report report, but also on a request by request level, the raw data that agencies are supposed to be posting. So like if you go look at DOJ's report, you can see by request, every single request in the inter-report report what fees were assessed and how much if there was a fee waiver. So I think, you know, I think it's all good by a kind of takeaway is just that, again, the perfect shouldn't be the enemy of the good. And that to me, the top A through H in a FOI log is something that should be prioritized over the I. Thanks, Bobby. I found that you want to add something. I'll go ahead. I very moved, isn't the right word, but I find I very much support the point that Michael was trying to make that sort of is almost a counterpoint. But it's supported by what Bobby just said. We all know agencies, requesters, all know agencies where we find that, you know, the FOI log is created by hand or something like that. It's not exported from a system. It's not automatically created, generated. And this is not the norm, but it's out there. There are several agencies to do this. And we also know that some FOI logs are better than other FOI logs. I think that Michael raises a very good point when he says, if an agency thinks that it's too hard to do this by hand, they should stop doing it by hand. They should start making their FOIA system able to export it. And when Bobby says, well, I don't want people coming to me and saying they can't do it because it's too hard. I think that an agency choosing to do a FOI log by hand or in an inefficient manner and then going to OIP and complaining about how hard it is to do it by hand in an inefficient manner is just a complete breakdown of the system when the option is out there to stop doing it by hand. And so to the point, I don't want to, I agree, we don't want to add a tremendous burden to agencies, but we also don't want to back away from things because some agencies might shoot themselves in the foot and add the burden to themselves rather than do it a smarter way. Now, anyone else have any questions or comments that they'd like to add? Yes, this is Patricia Weth from EPA. I just want to say I've worked for several agencies where we have coactively posted our FOIA logs. You know, one by hand, there's nobody in the back office pulling these things out request by request. We choose the system that we have, and we pull the data that we can. And right now, I like social security, my agency, we use FOIA online. And so the information that we can pull are, you know, items A through H and we are able to post that, you know, if there's capabilities in the future. I don't know what the vendors or what companies the FOIA online partners are going to go to when FOIA online sunsets. But I will say this, that the agencies are doing the best that they can with the with the software that they have at this time. Well, Jason Gart History Associates, I think one of the interesting things about the Technology Committee is that we've really looked at the challenges that the agencies face. And then what we should be striving to do, and there's different agencies, there are different places, we understand that. And we've heard a lot about that over the last two years. And what this recommendation some of our others have tried to say is listen, these are some best practices. This is where we'd like it to go. This is where as you think about, you know, what type of standardization you should see across in this example across FOIA logs, what would be best for both the agencies, but then also for the Requestor community. You know, absolutely, we've heard a lot about agencies, you know, that have budgetary limits and staffing limits. And that's not, you know, this is not if you don't do it, you're put in a corner, this is about what the new system may or may not have, maybe helping those technology companies that maybe approach for a new system, what that, you know, what they should start thinking about. And really just to try to get us to the point of this is where we think, this is where we think, you know, a best practice or future system might have. And also I would also say it is that, you know, this recommendation was first broached in 2016-2018. So it's been sitting out there, right, without much, you know, with some action with not a lot of action. So, you know, I think the point is let's see, let's, you know, again, future thinking and let's see where we pass this resolution or pass this recommendation and put it out there that this is what we'd like to see in the future system. And as agencies can begin to do that, you know, that just helps everyone. So do you think with that, are we ready to make a motion and take a vote based on an outcome? This is Dave Cooley or, yeah, well said, Jason. I move recommendation of this recommendation. Okay. Do we have a second? Point of order, Alina? Yes. Yes. So at the last meeting, the full committee voted on both Part 1 and Part 2 in spirit. Right. And the Part 1 is the FOIA advisory committee. I mean the 508 compliance in FOIA. So I just want to clarify that, David, that this would be the entire draft recommendation number 3 and not just the FOIA logs, correct? Sounds good to me. I agree. Okay. I'm sorry to interrupt. So David has moved and then Alina, I think, is seeking a second. Correct. Thank you. And thanks for the clarification, Kirsten. A second. This is Cal. Thanks, Cal. All right. So let's take a vote. All those in favor, please say aye. All right. Aye. Aye. Aye. Aye. Aye. Pausing for a second to make sure Kirsten got all of that. Any opposed, please say nay. Or any nays, Kirsten. Anyone wish to abstain? Bobby is abstaining. Kirsten. Okay. So the motion. All right. I couldn't get to my unmute button. It's okay. We gotcha. Okay. This is Kirsten. It looks like the motion passes unanimously with Bobby abstaining. Okay. And there are no, I did not hear any no votes, but if there were any, please speak up now. I didn't hear any either. So thank you. Super. Thanks. Okay. Great job, Technology Self Committee. Pat's on the back. Good job, Jason and Allison. Thank you again. Okay. We're going to move right along to the process subcommittee. I believe that there's one recommendation that got carried over from our last meeting that was passed in principle, but needed to have a language ironed out. I'm going to turn it over to Michael and Michael will hopefully lead us through that next slide, please. Hi, this is Michael. I am actually going to hand this off to Tuan to take it home. All right. Thanks again, Michelle. Next slide. And I guess next slide. Next slide. Yes. All right. Tuan, you're on. Remember to unmute yourself on the WebEx platform as well. Looks like you might have stepped away. So I don't know if there needs to adjust the order. But we certainly, we can certainly do that. And I know it's a little bit unfortunate. Alexis can't be here. She might have been able to speak to, to this as well. And anyone can someone chat one just to check in to see where he might be. I would really appreciate that. But I'm happy to adjust is there. I know we have put on the agenda that there might be a compliment recommendation from the legislation subcommittee. Patricia and Cal, I'm going to look to you as the subcommittee co-chairs. If there's anything you want to present on that or if that's been tabled. You're talking about the, from yesterday? Yes. Yeah, that has currently been tabled. So we didn't vote on that, but I sent it to process. So if they want to talk about it, we can talk about it. Okay. Michael, is there anything you want to, it looks like Tuan dropped off. Our fan producer is going to continue to look for him. Thank you, Michelle. All right. Why don't we put a pin in this literally and figuratively. Let's circle back to Tuan as soon as he can join us again. We will come back to the process subcommittee and let's keep moving because we have a lot to talk about to be in the legislation subcommittee. So I understand from Patricia that I should be turning things over to Dave Collier. So I will now do so. And Michelle, if you could go to the next slide, please. Okay. And one more slide. All right. So Dave, floor is yours to present. Thank you, Alina. Appreciate it. I'm Dave Collier from the University of Arizona and president of the National Freedom of Information Coalition. Thanks to the working group again, Patricia with AJ Wagner, Tom Sussman, the legislation subcommittee, full committee, oh just staff and the more than 40 experts that we've consulted on these topics over the past six months. It's really made I think for a better product in the end. Since our last meeting last month, I've incorporated more feedback and suggestions into the white paper, the report, which is on the website, updated as of yesterday, including feedback from OGIS. I added as appendix D. So if folks want to skim that, feel free to do so. It's truly a communal report here, a diversity of ideas and suggestions taken into consideration. And as far as I know, perhaps the most comprehensive and certainly most peer reviewed document on the subject out there that I've seen. So thank you all. That said, we've just scratched the surface on this. Last meeting we approved recommendation one. We recommend OGIS be given authority to issue binding decisions. But today starting out, if I may, I'd like to start out with recommendation six that the archivist embarks on a feasibility study to flesh out the details on all this. I think this is perhaps the most important recommendation if we can just do one thing today. I think that would be a success. The more we learned in this process, the more we learned we need to learn more. And people raised legitimate questions about the details, the implementation, and we acknowledge that more work is needed to be done to flesh that out. So that is why our recommendations are so short. They're conceptual. We acknowledge that details need to be worked out and recommendation six is that important step to do so. So with that, I'd like to ask for a motion to approve recommendation six initially here starting out and welcoming discussion. So before we get to emotion, I do want to open up the floor to comments and questions, but I'm going to take my chairperson hat off and give myself the floor. Since I have the ability to do that and put my director of OGIS hat on for just a minute. First of all, I want to thank David and the working group. You have done an amazing job of pulling all this together. The white paper is very, very well researched. A fantastic amount of work went into this and I just want to show my appreciation. I'm extremely grateful. I think Alina is muted. Alina, you're on mute. Yes. Pardon me for interrupting. I am muted myself and muted myself again by accident. What did you guys hear so far? What did I say? You were going on praising me a lot and the working group. Yeah, and I genuinely mean that. Everything is perfect. Thank you. Yes, everything is perfect. And I was acknowledging that Appendix D was a late comer to all of this and some of the committee members may not have had a chance to review it yet. But I just didn't want to take the opportunity to express a few thoughts and raise concerns as I think the paper doesn't knowledge. And as David has just acknowledged that there are a lot of hurdles that need to be crossed, but we certainly are supportive of recommendation number six. So I want to start off with that because we think that studying this issue further really warrants. A lot of a lot of interest and focus to try to get to. As Dave said, we're just we just scratched the surface. There's a lot more to uncover. And we think possibly an NGO or another nonprofit organization of some sort could actually undertake this kind of study. So we definitely want to take the position that we we definitely endorsed that recommendation with regard to the rest of them. Recommendations one three three. I think game. Oh, just some pause. This is the approach from the very beginning has been and continues to be that we are the fire on Budsman. And that's consistent with what Oh, just believes Congress envisioned for us. And we are concerned that the first three recommendations that is Congress giving Oh, just authority to make binding decisions. We're also giving Oh, just authority to review records in camera and Congress giving the federal courts extra weight to be given Oh, just decisions is going to a road and significantly shift Oh, just away from the role that is of staked out in the last 12 years of trying. Individual stakeholders and from agency stakeholders that it has worked with and these new functions and duties would interfere with our role as an ombudsman and it would turn us into an enforcer and an adjudicator, which we're concerned about. We do help over 4000 requesters annually. These include individuals, nonprofits, journalists, many of folks are coming to us at different points in the process. Some of them are coming at the very beginning. They don't even know where to file a request. Some of them are coming at the very end. They're unhappy with the appeal decision that an agency has issued. And all of these concerns, we try to help and we try to steer these requesters in the right direction. And we are concerned that recommendations one for three would actually take away from that safe space that we feel that we have created for these vital conversations to take place. And it would require us to fundamentally restructure ourselves. We would have to create walls between different teams of people to work on different responsibilities, such as some of which would be actually a direct conflict negotiator versus enforcers. That's not to say that it can't be done. And we're certainly appreciative of the work the White Paper is recognizing and that there's a need for additional study. Again, we really endorse recommendation number six. Recommendation number four, creating a direct line item budget. We think it's a double edged sword if there are pluses and minuses. And so you can read all of that in our paper. Increasing our budget, certainly with regard to recommendations one for three, if all of those new functions were to be taken on, it would just need a significantly more budget, greater budget. But I'm always the first to say that we also have been operating with a significant detriment to our staff. We have staff losses that we haven't always been able to replenish, as frankly has been the case with our entire mother agency, the National Archives and Records Administration. So I'm always advocating for more staff and more budget to increase our staff, both on our mediation team and on our compliance team. But to be sure, increasing the staff doesn't always fix the entire FOIA landscape. So we also need to keep that in mind. And then finally, with respect to recommendation number seven, again, probably another double edged sword. There are definitely advantages to reporting to the direct directly to the archivist of the United States, although our experience in the past 12 years as as we recognize in our appendix D has been very, very positive. We have had great relationships with the now retired archivist David Ferriero and our current active archivist, Debra Steidell-Wall, who has both been extremely supportive of our office of everything that we've tried to do of this committee in particular. So we do not know what the future is going to bring though. So there's something to be said for that, right? We're going to have a new archivist and we don't know how things will end up turning out. But all of that said, we have concerns about several of the recommendations and support recommendation number six. And I look forward to hearing from all the other committee members. So I yield the floor back to the first person who wants to speak. Kyle, as a kind of order, are we going to – Sorry, Kyle, go ahead. Are we going to go through these – are we just sort of like I talk about number three and then they talk about number six and then are we going to go through the – everybody talk about one and then everybody talk about two and everybody talk about three. Why don't we start with number six? Let's get that out of the way. Let's go one by one rather than everybody talking about all of them. But thank you, Alina, for that. Sure. So number six, I've heard support from requesters, agencies, all sorts of folks thinks it's a good idea. I think this is an easy one to get out of the way since – so does anybody want to make a motion to further flesh out the details on these concepts? Before we get to the motion, I saw James' hand up earlier. James, did you want to comment on number six? This is James Stoker. I wanted to comment and make a more general comment, if I could, just really, really briefly. Thank you for all the work that you and the stuff that you've done on this. Alina, thank you for articulating the concerns that OGIS has about some of these recommendations as well. It seems like an obvious alternative to this would be to create a new body that would perform some of these functions in addition to OGIS. And given that FOIA functions require something like 5,000 staffers across government and cost hundreds of millions of dollars, it doesn't necessarily seem too burdensome to have two different agencies doing these different things. In other words, OGIS has Ombudsman and then maybe another body serving more as an arbiter, like an arbitration panel or something like that. Did you all give any thought to that? And how would that change – what would change these recommendations? Thank you, James. Indeed, yeah, we did look into that. We looked at Pennsylvania where they do both mediation and binding decisions, and they told us it worked. We looked at other nations where this works. So, yeah, but that was certainly a consideration. And frankly, it's still an option on the table. What if we conduct this feasibility study and we find that really the best system is to create a whole new agency to handle this, or even within the judiciary. I mean, and like it works well in Ohio. So, indeed, we did look at all these different models in the states and around the world. And that's why I think it's important to approve recommendation 6, that we further flesh out the details because, you know, just because if we approve recommendations 1 through 7, we know Congress isn't going to turn around and approve these tomorrow, right? I mean, this is going to take years, years of discussion, years of figuring things out with DOJ, with developing bipartisan support. So, this is just the start of the conversation. I hope people realize that because otherwise we could be here all day, you know, we're thinking about what about this, what about that, and well that. And so I hope the concept here is we've looked into it. We've done a ton of research and I encourage people to look at the annotated bibliography, the list of experts we consulted, all sorts. And, but it's just the start. So, but you raise an excellent point, James, one that others did and one that we'll continue to look at. So, I wonder if we can see if there's support for continuing to study this as recommended in recommendation 6. David, are you making a motion? I will move that we approve recommendation 6, then. Okay, do I have a second? Second. Okay. Everyone, let's take a vote. All those in favor, please say aye. Aye. Aye. Aye. Aye. All those opposed, please say nay. Anyone wishes to abstain? This is Bobby. I abstain. Kirsten, how are we doing? Okay, so it looks like we have the unanimous vote with among all those voting and Bobby is abstaining. Okay, so we have passed recommendation number 6. Good job, David. Well, it's not me, but thank you all and I think it'll be important and I would recommend, you know, the committee on the next term continue this with whatever form the archivist wants to vote on this. It'll be really important. Awesome. So with that, maybe we hit another low hanging fruit that since we're on a roll. I'd recommend we go to in Congress increases. All right. See, succinct. We don't say exactly how much in the report we lay out some ideas, but it's just a conceptual. We think oh, just as budget should be increased. As you see in the report, the Congressional Budget Office originally estimated that oh, just would need I think it was around $4 million or more a year just to do what it initially was set out to do. And it has not gotten that. It's just not funded where it needs to be. And of course, if Congress is to do anything more add additional responsibilities, it would need much more money. It's the least staffed FOI agency in the world. And you can take a look at the appendix that lists them all and shows the United States federal government less listed last in the entire world. So anyway, I would recommend we discuss and or approve recommendation five. The Congress increases. Oh, just as budget. And. And not to detail like, well, is that the archivist is a Congress. They need more money. Thoughts. I, I support it 100%. I'm trying to figure out if we can vote on five without figuring out for because Congress increasing a budget for it. I think the component of an agency is sort of wonky sometimes. And so it may be that, you know, I'm not saying that, you know, Deborah Wall is going to do this. So I've known her for several years and I think she'll do this. But down the line, you know, it could be that the next archivist is not as interested in four years, not as interested in Otis. She says we want, you know, $10 million to get Otis. And they just say, okay, and then don't do it. You know, they redirect it. And so I think that I think that it might be more sensible to talk about sort of fusing four and five to say, you know, that Otis should get a higher budget should basically be five. And then forward, we'll deal with when our Congress can do it versus whether or not the archivists ask for a bunch of money and then use it discretionary fund, find Otis or something like that. Okay, so kill this did cooler. So what do you perhaps we should just tackle number four first and then go to five. Okay, so okay, so let's hit for that Congress creates a direct line item budget for Otis. As we found a curse with some other executive agencies. So this isn't unprecedented. And we noted. Oh, just as, you know, double edged sword thinking on this like well, it creates new challenges you have to go to the hill and and, you know, advocate for yourself. But we think overall, from what we've learned in our research, it would. It would help Otis and it would. So that's our feeling. So based on what we learned, that's what we recommend. Thoughts on that. I have a question for Elena about this. How is Otis funded out of the discretionary fund now or how is it funded with in our. Not the discretionary. This is Alina Seymour, not the discretionary fund. I wish there was a discretionary fund and I could dip into it whenever I want to know out of the Nara budget. And clearly, I mean, I personally approve love Nara. I mean, this isn't a slam against Nara. But if we look at Otis's budget over since its inception, it is not been where it should be where CBO said it should be. So, you know, Nara has a lot of responsibilities, a lot of different things that must do. I'm sure it wishes it had more money. So that's why really the onus is on Congress here. If they believe in transparency, and apparently they do, they approve FOIA, and if they really believe in it, they got to put their money behind it and directly. This is a calling higher than all, you know, it transcends the executive branch, the legislative branch. This is something they need to fund directly if they believe in it. So they got to put their money where their mouth is. That's the feeling here. Other thoughts? Anybody disagree that we should, shouldn't do this? Open the counter thoughts. Or anybody want to make a motion to approve recommendation 4? Jason Gardner, history assertions. I'll make a motion to approve. Thanks, Jason. And we have a second. I'll second. This is Cal. Thanks, Cal. Alright, let's take a vote. So we're voting now just to work clear as a point of order. We're voting on number four and number five together. No, just four, I think at this point. That's number four. Five will probably get a quick, easy one after this, hopefully. Okay, so let's take a vote on number four. Congress creates a direct line item budget for OGIS. All those in favor, please say aye. Aye. I heard a straggling aye. All those opposed, please say nay. I don't hear any nays. Any abstentions? This is Bobby Allen. I abstain. Okay. And this is Alina Seymour. I also abstain. All right. So Kirsten, are we done? Okay. So I heard no, no votes. And I heard three abstentions. I just want to double check because I had trouble hearing. Allen Bloodstein, Alina and Bobby abstained. Otherwise the vote passes. Everyone else voted yes. Okay. So motion carries. All right, thank you so much. Sure. David, next, you're doing great. Thank you, everyone. How about number five? Yeah. Now that Congress is responsible for your budget, we think they should increase it. Any thoughts? Anyone disagree with that? Anyone want to say nay? It's a waste of money. Pat, keep it the same. Patricia West from EPA. I move that we vote on this. Okay. Thanks, Patricia. Do we have a second? On Sam. I second. Thanks, Juan. Okay. Let's take a vote on number five. Congress increases or just this budget. 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. Aye. Aye. Aye. Aye. Aye. Aye. Aye. So the next, I think, let's jump to seven, shall we? I think the archivist of the United States returns OJIS as a direct report. If I were the archivist, I would oppose this. I think most administrators would seem like that's a hassle and a headache to have lots of direct reports. But we believe that it should happen in this case. We read through the report, the justification for when NARA broke, OJIS used to report directly to the archivist. And then they went through a restructuring some years ago. And as referenced in the report, I have a link. You can read the rational thinking behind why they put OJIS two-step, two layers under the archivist, why they put it in with another agency within NARA. We saw their justification, but we don't agree with it. We think OJIS does have a special role that transcends NARA, that transcends the executive branch. Frankly, in other parts of the world, this agency would be independent of all branches, or in Connecticut even. So we think, at minimum, if OJIS can't be independent of the executive branch, that it should have a little more clout, a little more authority within NARA, where the head of OJIS should have a direct line to the archivist. That's going to strengthen OJIS, we believe. And that's kind of our feeling. And now, of course, it's up to the archivist. And the archivist can say, nah, thank you, but we're not going to do that. But I recommend we still recommend it. Thoughts? This is Patricia Weth from EPA. I move that we vote on this. Wow, Patricia, you're really picking up the pace here. I just want to pause for a second to make sure there are no comments or questions on number seven before we take a vote. Alina, I don't know. I don't want to be a big Roberts rules person, but I'm certainly open to discussion after a motion's made. I think that's actually Roberts rules. So it's not like we're calling the question in my mind. So perfectly fine if someone moves, and then we have further discussion in my mind. If it's OK with you. Sure. I'm sure. Usually that's not how we do it, but I will allow it today. I'm feeling very magnanimous. So Patricia has moved to approve number seven, recommendation number seven. Is there a discussion on this motion or questions? I don't see any from the committee members. I'm just scanning faces. Do we have a second on the motion? This is Deanna second the motion. Thanks, Deanna. Let's take a vote. All those in favor of number seven, the archivist returns OGIS as a direct report. Please say aye. Aye. Aye. There were a lot of simultaneous eyes. Hopefully Kirsten caught all of that. All those opposed, please say nay. If you can hear any names. All those who would like to abstain, please say so at this point. This is Bobby and I abstain. This is Kristin and I abstain. And this is Allison and I abstain. Alina CMO abstain. Sorry, Allen, I didn't mean to tread on you. That was Allen Blutstein abstaining. Alina CMO abstaining. Okay, so give me a minute. This is Kirsten. I just wanna make sure that I got everyone who is abstaining. I'm going to read off those who've abstained. Allen Blutstein, Allison Dietrich, Kristen Ellis, D-O-No, Alina CMO and Bobby Tulebian. Is there anyone else who abstains? Okay, motion carries by a 12 to zero vote with six members abstaining. I'm sorry, five members abstaining. Okay, thanks very much for that. You're welcome. David, back to you. Thank you, Alina. Cooler again and thank you all for approving unanimously the probably first recommendation of any committee term to be rejected outright. So thank you. We'll see what the archivist does with it or the interim archivist or whatever. Last two. And these probably will have some discussion. I don't think these will be unanimous votes. Perhaps we should return to the second recommendation which we started discussing last meeting. Congress gives OGIS the authority to review records and camera and feel free to hop the slide for number two and three there. And so open to continue the discussion last meeting. There were some good questions, good thoughts on what that can mean, thoughts like, well, what about the national security community, the intelligence community, classified records, how is that going to be handled? As noted in the report, this is not unheard of in other jurisdictions, Canada. They had classified security standing. They could look at records, classified records and camera even. Perhaps it's a special team within OGIS that does this that has intimate knowledge of sensitive records and can review these, maybe a certain facility. I don't know. There were suggestions of excluding certain records or certain exemptions that could be reviewed. So that was kind of the discussion. And I'd like to entertain continued discussion if we can resolve, come to some agreement or disagreement over to recommendation two. Yeah, I just wanna note, thank you, David. I just wanna note that should be a number two on the slide. There are two number ones there, but that should be two. Congress gives OGIS the authority to review records and camera. So, okay. Yeah, so we're looking at the second one. Congress gives OGIS the authority to review records and camera. Right. Just noting the type of. Yeah, that's what people say, but... I see how raising, flagging wants to say something, yes? Yes, but if you're still talking. Nope. Okay. So I just wanna make a few points, especially on the intelligence side of it since that's sort of where I live. The, when Congress created OGIS, they didn't say they should do mediation except for the intelligence community. And they fully intended for OGIS to be able to do mediation everywhere. And the hallmark of a good mediation is someone, and I'll use the magistrate judge system as a good example of what it works to mediation. You want someone who can talk to each side alone and say, that's not a really good argument. You know, if you press on this, you can do it because this isn't binding, but the thing you're saying is weak or the thing you're saying is strong. If the mediator talks to an agency and the agency says, this information is classified, is protected by the National Security, is forced using methods. And we're not gonna tell you why, you know, let's you see the information, let's you reach your own conclusions. Then the mediator cannot advise the agency. Okay, that's not a really, I don't think, I agree with that. And it's not just classification. This recommendation, without this recommendation, you know, OGIS, if the USDA wants to tell them that they can't review something that they were holding under B5 or B4 or B6, then OGIS's mediator's hands are basically tied to having to trust what the agency is telling them at which point they're not really mediated. They're sort of just facilitating a discussion. And so lots of people have clearances around the country and the government, OGIS is not a big office. It does not have 50 mediators who would need to get cleared. I think that it is entirely reasonable for one or two people or maybe just ahead, just Alina, you know, and Alina has the authority, Alina gets a security clearance, nobody else does, and she gets to come in with this classified material that you maybe make a carve out for that, but that you don't say, we're gonna say that OGIS, that agencies can just refuse to let OGIS see what the argument is about. So that ties OGIS's hands behind their back and basically guts and mediation whenever you have an entrenched agency, whether it's national security or not. Thank you, Cal. I think Kristen Ellis would like to comment. I like that. Thanks, Dave. This is Kristen Ellis from the FBI. So I actually had a couple of things. As I read this recommendation, I read it as an offshoot of the first one, which is to give OGIS binding authority to adjudicate cases. And then as part of that, the authority to conduct in camera reviews, because I assume right now, if an agency is willing in mediation to show OGIS the processed records in order to resolve the mediation, that that can already happen. I mean, I put that back to Alina. I don't know if it does, but I don't think that there's anything that stops an agency right now from volunteering to do that. So I was not reading this as a standalone provision, but more as an offshoot of the first provision. So I guess I would like clarification on that. But speaking of mediation, right now mediation is voluntary. And so if a national security component concludes that the danger to national security is such that they should not mediate this case, then they don't have to. And so that is fundamentally different than OGIS being able to say, I want to review these records in camera. Especially considering that within the realm of the intelligence community FOIA programs, there's often incredibly highly classified information at issue and the more people you give access to incredibly sensitive information, the more risk you create of unauthorized disclosures, whether inadvertent or purposeful of that information, which could harm national security and to be clear, I am not suggesting that anyone in OGIS would purposefully disclose classified information, but the more people you give access, the more you move these records around, the greater risk you create. And so from a national security standpoint, I have a lot of concern about this recommendation. There are also other things that would need to be taken into consideration. For example, federal grand jury information. There's a statute that governs it, that it's not entirely clear to me that OGIS would fall within the four corners of that statute in terms of having access to federal grand jury information. So there's a lot of different kinds of information, not necessarily national security information that have restrictions on it, that don't, as it stands right now, necessarily contemplate giving access to a body like OGIS to have that information. So like you said, I'm speaking mostly from the national security standpoint, but there are other pieces of it that could be problematic. Thank you, Kristen. I see Twan's hand up, but beforehand, Alina, would you like to chime in on any of that? No, I mean, I think, I certainly said our piece earlier in terms of our position. I hear what Kristen is saying, and I appreciate those comments as well, but nothing in particular. Okay, I see Twan's hand went down, so anybody else like to chime in? I didn't mean to put my hand up. I wanted to respond to that, but if someone else wants to talk, let them go first. No, I think Twan is back on. Right, I didn't mean to put my hand back on you, it just acknowledged me, so I was ready to speak. This is Twan Samohan. I think it's salubrious to grant OGIS in camera review authority because agencies can sometimes take litigating positions with requesters, even prior to actual litigation having been filed, and these positions may be real stretches. And I think that often it's the case when one actually gets into litigation and an assistant U.S. attorney or other DOJ counsel has eyes on the actual record or is getting to that point, that at that point, they almost act like a concierge for the requester. That's the term I think David McGraw at the New York Times once used to describe this role. And they basically talk the agency off their position, that their position is frankly not defensible, that the characterization of the record will not fly in a federal court and that the AUSA is not prepared to stick their head out for the agency and the agency's position. And of course, that all requires that one get to court and go to the trouble of instigating litigation. And so I think that OGIS in part is submission, its existence is to assist with diversion of oil litigation and to the extent that there can be eyes on these records, but still within the executive branch, but not within the particular department, that might be very helpful to promote disclosure of records that are frankly, not squarely within any of the exemptions. And so I think that especially given the courts disfavor strongly in camera review, saying it is not a judicial role, makes sense that it would be an executive branch role, but maybe outside of the small department or division of the executive branch, having OGIS do that job would be a good idea. Thank you, Tuan. Thank you, Tuan. Oh, that, Kel, before you go, I was just, so are you for or against this? I just want to make clear. I favor Congress giving OGIS authority. Okay, thank you. That's what I was, I just want a triple check. Thank you. Go ahead, Kel. And Tuan did say one of my points went more eloquently than I could. So thank you for that. I will say as a matter of just experience, not all AUSAs are that way. And so, in fact, I've even had one tell me that they had not read the unredacted records three years into their litigation about the reductions. But that, to Kristen's points, and Kristen raised some valid points. I would not say that they're completely frivolous, but I will say that they're already existing mechanisms for this. For instance, as a congressional oversight, sometimes you have an agency, and you have a congressional office that wants to review agency records about something. They go out to the agency and look at them in the agency and read them and then come back. That's not, that obviates for the highest security classification the concern about, well, what if somebody were to hack into OGIS and get these records? Well, they can't, because they don't physically have the records. I'm not saying that they should do that in all instances, but if it is sensitive enough that that isn't concerned, then there are ways to handle that. The entire city torture report team worked in a CIA facility on their entire report. They used CIA computers. There was a scandal about that, but they did it. So there are procedures for this. Similarly, we're talking about the people, and I know that Kristen wasn't saying that someone at OGIS would be a security risk, but to that point, we're not saying that, I'm not saying that the CIA, or if I should have to give classified information to the director of OGIS, I'm saying that they should have to give it to her if she has a security clearance. You know, they still have to process her for a security clearance and approve her before they can do that. If she, if somehow you had an OGIS director who could not get clearance, that might be a problem, but I don't really foresee that happening at that level of seniority. And so that's sort of a concern that's not really gonna be reflected in real life experience. I think there are concerns here. I think that there are checks and balances and caveats that would have to be written into this law, but I don't think that it's insurmountable. And I don't think that the answer is, well, they just don't do the IC or they just don't do classified records or something like that. The goal here is to, as Toran said, have OGIS be able to be the best mediators they can be and keep things out of cork. And in order to do that, and then the recommendation itself starts with if OGIS is to mediate or adjudicate disputes between requesters and agencies, then we believe it must have all the facts in hand. That's not just if they're doing number one, that's if they're being a good mediator. So that's not the intention of that. Thank you, Kel. And we'll go to Kristen, she has a question. And then I know we're five minutes past break time. So we might, Alina, it's up to you be able to finish this one and then go to break before we hit the last one. Yeah, I think that would be great. Totally your call. Kristen, you had a question? Yeah, so I just was still seeking clarification on is two, just a standalone mediation, even if one doesn't happen. Because I just, I go back to the fact that agencies can already give stuff to NARA. Like they can already look at things in camera. They can already look at things. If the agency's willing to, A, is willing to mediate because not all agencies are willing to mediate over things like appropriateness of exemptions. And if they do that, they already have the ability to show things to NARA. Or to other agencies. That's a great question, Kristen. It was written, I think initially, with the idea that all this is kind of bundled together and that that would certainly make sense. They would need that in camera review if they're making binding decisions. But I think, and the other working group members, you chime in. I think the idea is it could work standalone as well. So that this is necessary to make good decisions in mediation. They need to see the records. And which is what we heard from other agencies that have this authority. Even in mediation, when an agency is reluctant to hand the records over so OGIS can look at it, OGIS should have the authority to say, we really need to see those. You make a good point though. If an agency says, okay, we'll go to mediation. And then OGIS says, well, we need to see the records. I suppose there's nothing stopping an agency from saying, okay, we're done with mediation and walk away. And I guess that's a question to Alina. That could happen even if we recommend in Congress takes this action, correct? Is that? Yeah, absolutely. This is Alina's email. Yes, we always say mediation is a voluntary process. We need both parties to be willing to participate in the mediation in order for it to go forward. So of course, any either party can walk away at any time. Yeah. So in essence, if OGIS doesn't have binding authority, then this won't make a huge difference probably in most cases, but we still think it's important. And great questions, great points brought up. Again, like with the other recommendations, I think this would require further study, investigation, fleshing out in that feasibility study. So this is one of those items like, okay, in concept we like the idea, but we definitely need to look into the details a little bit more. And that's I think the intention here, if that makes sense. So did that answer your question, Kristen? Thank you. I just wanted to say, Kristen did raise a point that I meant to mention. Yeah, I think that in fact, the agencies do this even in court mediation where they will say, they don't wanna cooperate with the mediator and they'll walk away. I think that the point of this when it's mediation, I don't agree with Dave that this doesn't add a lot because I think that what this says is, if you're not willing to cooperate with the mediator, you have to leave mediation. You can't just say, oh, because you can't look at records and then continue to drag out the mediation. So I think that sort of forces the agency to say, you cannot get the benefits of mediation if you don't play ball. If you want to forego giving records over, that's fine. You can leave mediation, but you have to leave mediation. Good point, Kel. Further questions or discussion or does anybody wanna make a motion? Jason Garchus, Jason Garchus, their associates. One thing I would just add is that the National Declassification Center at the National Archives in College Park deals with classified material all day long. So there is the ability within the National Archives to deal with national security classified material. And I think that should just be, we should just remind everyone that they do it, it happens. And I think we can, I think we should have our trust in that system and their work in the fact that over just can maybe leverage the skill set and the expertise that is at the NDC. As they begin to kind of think out how this might work. Thank you. No, thanks for that point. Jason, but I do wanna add that NDC does not have independent declassification authority and they rely on other agencies, on the originating agencies with equities to make declassification decisions. So it's a partner process. Right, which is the same way this would work, right? I mean, there's a network within NDC with people that have clearances throughout the federal government. So I assume there wouldn't be, I assume that there would be a mechanism to accept and to deal with material that's classified and that they could work that out and that should not be a concern. Your step. Okay. So, David, let me ask you this. Do we want to carry over to after break the vote? Maybe folks are feeling a little beleaguered. It's 1130 and we could take the vote right after we come back, would that be okay? That's fine of me, Alina. All right, let's do that. Let's take a 10 minute break, I think is what we gave everyone today. And if we can be back at 1141, that would be great. Just remember just to meet yourselves and stop your video but don't turn off your connection. And at this point, we will take a break. So, Michelle, if you could put this slide on to our break slide, that would be just great. This meeting is being recorded. Hello, everyone, welcome back to part two of the penultimate meeting of the Fourth Term of the Boy Advisory Committee. We hope that everyone has had a good break. We actually went over about five minutes trying to get folks a chance to take a breather and walk around a little bit, but I think we're all back, or at least most of us are. And Michelle, if I could ask you please to go back a slide or two. Right, and one more slide please. Because we are still, and one more slide again. We are still focused on number two, which reads number one currently, Congress giving OGIS the authority to review records and camera. I know we had a robust discussion before the break. We had a number of questions before we take a vote. Any other comments or observations or questions about number two? I don't see any. Who would like to make a motion? I'll make a motion. Thank you, Cal. So moved. Do we have a second? This is Patricia with EPA, I second. Okay, thanks for the second. All right, let's take a vote then. All those in favor of recommendation number two, please say aye. Aye. Aye. Aye. Aye. All those not in favor of recommendation number two, please say nay. Nay. Okay, this is Kirsten. I'm going to need folks to say who said nay. I almost wonder if, I hate to do this, but can I do a roll call? Alina, just so I have it correct. Alan Bloodsteen. Good, Steen. Okay, David Coolyer. Aye. Alison Dietrich. Nay. Kristen Ellis. Nay. Linda Fry. Aye. Jason Gart. Aye. Okay, Cal McCleanahan. Aye. Michael Morrissey. Aye. Alexandra. Aye. Twan. Aye. Matthew. Aye. I'm sorry, did you say yay? Nay. Nay. Okay, Alina. Abstain. Dionne. Yay. James Stoker. Yay. Okay, Tom Sussman. Aye. Aye, and Bobby. Abstain. AJ is absent and Patricia West. I'm, I'm abstaining. You're abstaining. Okay, just a sec. Okay, this is an interesting situation that I don't believe we've had before on the FOIA advisory committee. We have 10 votes for and one, two, three, three votes against and then one, two, three, four, five, no, four abstentions. So 10 votes out of 17 committee members present today. Is that a general majority? That is a general, no, that's just a simple majority. A simple majority. So does that mean that the motion carries? Yes, I'm sorry. Yes, simple majority, the motion carries. Okay. Okay, and I want to go back to recommendation number four, reimagining OGIS. We were having some audio problems earlier and I did not catch that Tom Sussman voted no on that. The motion still carries number four, 13 to one, but I just wanted to put out there on the record that Tom voted no on that. So thank you. Yes. All right. So David, I think that leaves one recommendation for us to discuss. It does, recommendation three, and I see on the slide it says this was passed last meeting. Recommendation one was passed. Oh, one, yeah, yeah, I'm sorry. We got to hit the slide. I'm looking at the slide. Michelle, next slide please. Sorry. That's okay. By the way, does anyone, Tom, did you want to, in a sentence or two, say why you voted no? I mean, only if you want to, you don't have to on the recommendation four. I guess I always feel that whenever there's any potential for controversy, it makes it too easy for Congress to slash and burn, and they won't do that to the archives, but they could well do that to OGIS. Okay, good point, good point. Some for us to continue looking into with the feasibility study, I think, definitely. All right, so recommendation three, Congress directs the federal courts to give extra weight to OGIS decisions. The lawyers on this committee probably will want to talk more about this. And so let's open it up to discussion. I think some folks have some opinions on this. But this is- I'm waving. Kristen, you wanna go first? Yeah, this is Kristen Ellis from the FBI. So technically the way the FOIA litigation works is it's a de novo review by the court. So they really shouldn't be considering weighing or not weighing decisions. So that's that. But I also, again, the agencies are in the best position to be making decisions about their records and their equities and their processing. I don't see why it would be beneficial or necessary to give additional weight to OGIS decisions. And again, I'm reading this as an outflow of number one because mediations are not decisions that OGIS is making. So this would presumably come directly from OGIS being some sort of an injudicatory body. And I frankly have not done the research on this, but I am not aware that courts generally give weight, extra weight, whatever that means, to administrative adjudications by the executive branch, for example, in the EEO context, in the MSPB context and other administrative tribunals. So if we're talking about de novo review, that isn't giving weight to the decision. It's looking at it fresh. So you would also have to fundamentally change the nature of FOIA litigation to implement this. I don't see why it would be necessary for a court to give deference to OGIS in this context. Thank you, Kristen. Someone else like to chime in. Kel. Kel. So I almost agree with Kristen on this, which is sort of rare as y'all know. I don't like this recommendation as it is written because it is tied to number one. And I agree with her, I agree with Kristen, that the term like extra weight, you know, does sort of get into the whole de novo review thing and run afoul of some ways the litigation works. But if it were reimagined to basically say, the underlying thing is Congress directs the federal court to give extra weight to OGIS decisions. If that philosophically were just to say, more weight than it's currently given, which is none to OGIS, then that does solve a big problem, which is right now, even though OGIS does not have binding authority, OGIS does occasionally in their closure letters, say something like, you know, this does not appear to be, or this appears to be a violation of XYZ or something like that. In our opinion, it is X. That in of itself is very, very powerful and is given zero credit by the court, whereas a declaration from literally any FOIA officer who files a declaration in litigation is given what's called the presumption of good faith, which means to some judges that unless the requester comes out with some extrinsic evidence that they would have no way of having because they're not into the agency to say, look, this declarant is saying something wrong that is not enough to overcome the presumption of good faith. Now this is different in different courts, but if you were to rewrite this as Congress directs the federal courts to give the same credibility and presumptions to statements of OGIS as it does to agency declarations, that would even the playing field. And that would say that, look, we're not asking for the court to defer to OGIS, we're just saying that when OGIS does go out of its way to say that what agency is doing doesn't seem kosher that the court has to take that at the same value as the agency declaration that says, of course we're doing everything kosher because we are presumed legally to do so. Okay, thank you. I tried it. Thank you, Kel. Oh, sorry. Not sure if Kel, you're done. Okay, so I was gonna, if you would agree to an amendment of this language to basically change it to equal weight to agencies, then I would support it. I can't support it right now because it is, that there are problems with the idea of more weight than de novo or deference. I think it needs to be equal on both sides. There should be parity, not a thumb on the scale one way or the other. So you're saying Congress directs the federal courts to give equal weight to OGIS? To OGIS findings as they do to agency declarations. I see what's the after that. The agency seems to be not doing the right thing, but we're mediating it. Jason? Abstain. Abstain. Kel? Nay. Nay. Michael, I can have as a yes. Alexandra? Nay. I'm sorry, did you say nay? Nay, yes. Nay is your correct vote. Nay with a no. Yes, thank you. No. To entertain Kel's amendment. The declaration just for parity. Okay. Can I have a second? Although we don't need one. All right, let's take a vote. All those in favor of Kel's amendment, please say aye. Aye. Aye. Aye. Yay. All right, Kirsten, did you get that? No, I think I'm gonna, can we do a roll call again? I'm, yeah, sorry. I'll withdraw the motion. I think I got one aye, so I can withdraw the motion. You're withdrawing the motion. You're withdrawing the motion. Okay. And Kel, I would vote no, but only because I don't understand it. And this might be an issue that we further look into and talk about as a committee next term in the feasibility study. So I think I'm sure you have a brilliant idea. It's just much more brilliant than I can fathom and understand. So further discussion and fleshing out, I think we can come back perhaps next term and build on this. So thank you for raising it. Okay. All right, well, thanks for following that, David. Yeah, yeah, no, I think that was cool. That worked. Great, thank you. I'm just gonna keep moving things along, if you don't mind. I really appreciate it. I'm going to circle back to the process subcommittee. And now I believe Professor Twan Samohon is able to speak with us about the one recommendation that the subcommittee was going to address today. So Twan, the floor is yours. Thank you. And my apologies. I had an inopportune network connection failure right when I was up in the agenda last time. If we could have the language up on the PowerPoint. Yeah, Michelle, if you could go back to that slide, keep going. This is the process subcommittee. While Michelle is doing that, I'll remind everyone that we had agreed in spirit to the expression in draft recommendation number two. So back one more, the number two of the subcommittee on the process. Still not quite there yet. And so what we did was a little bit more wordsmithing afterward. Thank you. And we came up with this language. And I should say that our fearless leader, Alexis is fulfilling her civic duty as a juror today. And so for that reason I'm stepping in. And so the language was that agencies should amend any regulations, directives, policies and guidance to provide individuals, regardless of whether they have legal representation in agency proceedings, access to records about themselves. You'll recall that the specific context which we had looked at, but apparently is in the process of being resolved was EOR and the ECAS system and access to records of proceedings where there was differential treatment depending on whether one was represented or not. If one was represented, one could avail oneself of the benefit of the FOIA alternative ECAS to get those records of proceedings. However, if one was unrepresented, it was the case that one could not. And I believe in our last meeting, it had been reported, and of course we had been in touch with EOR and had raised this issue with them and discussed it with them. I believe Bobby had reported that EOR was in fact changing. It was in the process of changing or had changed it such that EECAS would become available to unrepresented persons. But as a general proposition in principle, this should apply not just for EOR, but across the board. And so this is something that could be done on the executive branch side in terms of implementing its own discretion under existing law to afford these opportunities. So in addition, we have been in touch with Cal McClellan, who had suggested individually his suggestion for legislative solutions to address the same problem of first-person FOIA. And specifically, he had circulated to me and to some others, the language of a proposed amendment to 5 USC 555, the Stream Lighting Access to Personal Information Act of 2022. And that is on the legislative side, but I'd perhaps leave that invite Cal to sort of comment on the legislative sort of proposed fix. First, I'd like to address maybe our executive side language. Are there any questions or comments that members of the FOIA advisory committee have or motions for us to adopt this language? This is Kristen from the FBI. Other than the EOR situation, are we aware of any other circumstances where agencies are not allowing people access to their own records unless they have representation under the FOIA? Yeah, so I believe in the last session, we had discussed that at one point, apparently the EEOC had similarly not given record access to unrepresented persons. We did not attempt to do an all agency executive branch survey to determine whether there were such particular instances, but as a general proposition, we make this recommendation. This is a- This is, I'll clarify something. Kristen said something at the very end that you might not have heard, she said under FOIA. Oh, I'm sorry, my apologies. Yeah, yeah. And no, I do this all the time. I'm not aware of any agencies. I think they'd be violating the law if they did that. They said, only representative people can be FOIA requests. My understanding was that this was supposed to tie in to the alternative method. That's- If you have an alternative method, you can't discriminate based on whether or not a person has a FOIA. That's correct. I'm sorry, I did not hear those last words under FOIA, right? I know I was introducing myself, but that was the point I was gonna make, so thanks, Gail. Thanks, Bobby. Anyone else have any comments or questions? Are we ready to take a vote? Can I have a motion? I'll move. Alison, I'll move. Okay, Alison, so I moved. Do I have a second? Sure, I'll second it. I second. Patricia and Cal, both second, third, and fourth. Okay, great. Let's go ahead and take a vote on this. The language is up on the screen, and I'm not gonna read it out loud, but all those in favor, please say aye. Aye. Aye. Anyone opposed, please say nay. I did not hear any nays. Any abstentions? I abstain. This is Christian. Bobby, I abstain. I abstain, too. Who else said they abstain after Bobby? Was that Matt Schwartz? Yes. Okay, sorry, I can't come here. Okay, Alina also abstains. Alina abstains. All right, any other abstentions? Okay, no problem. Kirsten, should we give you a second? Motion carries 13 yays, no nays, and four abstentions. Okay, all right, thank you so much. Sure. And thanks to the first party working group for all the great work and the process subcommittee. I really appreciate all the work you guys have put into this. So I'm gonna keep moving, because we're running definitely a little behind schedule. I wanna turn things over to the technology, nope, wrong, wrong, to the classification subcommittee. Michelle, if we could move forward several slides to get to the classification subcommittee slide, that would be great. I'm gonna turn this over to Alina. Point of order, we were not done with this, because Twan was then going to... Oh, yes, I apologize. Although Twan did miss the part where you had earlier said you were tabling your motion. So that was from the previous one. Okay, so I apologize, Twan, is there anything more you would like to say about the now tabled motion of legislative language? So I don't know if we tabled Kel's legislative language. I think that was the prior discussion, but what we were saying is that there are two ways to try to achieve the goals of disclosure, first-person requests, and we just addressed the executive branch side of things. Kel had suggested legislative language on the other side of things. And Kel, since it's your language, maybe I should defer to you here, you speak on this. Okay, and I think it's really short. The entire idea is all of these recommendations, one, two, and three, we didn't do four, because that's a different issue, but one, two, and three, I wrote a bill that would basically be the template, the examples of the draft language that we could say, you know, if the committee agreed with it, we'd just be incorporated in. Here's an example of something you might wanna follow when trying to write a bill that does these three recommendations. I believe that Kirsten has a copy of it in the slide deck. I don't know if that happened, that did not happen. Okay, she and I had talked about that during the break. Yeah, I'm sorry, that did not happen. Just as a point of order, this was discussed among committee members, legislation committee members yesterday, but it did not get advance out of the subcommittee. Right, and I'm not saying it did. This is not a legislation subcommittee proposal. This is a proposal from one committee member to an amendment to the final report and for the committee to vote on it. But it's Twan's show, so if you want to call a vote on it, you can call a vote on it. But if the people can't look at it, I won't read it, so it's very obnoxious to do that. As Twan said, 555, 505, 555 is part of the APA. It's the part that you generally have the other stuff about agency proceedings, just what ancillary matters. And I propose to put three different subsections in there that address the agency proceeding would be 555F entitlements to government benefits, 500G, and there should be a mechanism for an agency to stay. So if someone does request records under this, then the agency can't continue with it. With the adjudication before they get their records to avoid a problem that happens in security clarity sometimes. It was modeled entirely on the security plan process and the right to get underage able to 1,268. I'm not quite sure how I'm gonna handle this. Can I just make a suggestion? The motion has been tabled. It's not moving forward to the full committee. No, the motion has not been tabled, Ewing. The motion was tabled for the previous recommendation on the technology committee. The legislative committee about the... Nor was the motion passed by the process of committee, correct? The process of committee did not vote on this motion or the language. I was going to make a recommendation that since we're not able to vote on it and not everyone has a text in front of them, including our audience members. The working group that's putting the final draft paper together, our final draft report, could include the language and discuss it, but it would not represent a standing vote that would be taken by the committee. Without... And we vote on it in June when we vote on the final report? I'm okay with that. It is difficult when you can't look at it, even Christian made that point in the chat. So I'm happy to do that and have the discussion on this in the final report in June. What did the final working of... The working group on the final committee report think about that suggestion that I just made? David and Dion and Patricia. Can you... It's Patricia Weth from EPA. I'm really confused as to what's going on and what is this a recommendation that's gonna come directly from Cal to the full committee? Because my concern is we have to have our final report completed by the end of this month. And we have to share it with the full committee members for them to review and comment. Because it has to be in final form for our next meeting. I just... I don't see us having time to include another recommendation. And we haven't even gotten through all of the recommendations that are on today's agenda. That's my concern, but I do have a suggestion. Each of the subcommittees are putting together their reports and this could be something that could be included in the legislation subcommittee report, which of course would be posted on the urges website. That's just my suggestion. Okay, I'm very cognizant of the time. It's 12.25 already, Cal. And I understand you wanted to move this forward in deference to you and cutting into your time of presenting your classification subcommittee recommendation. I think we throw with Patricia's recommendation. I'm just going to make a unilateral decision. And you can, we could discuss later if needed, but let's move on to the classification subcommittee at this point. And I'm going to turn it over to James and Kristen, although I take it Cal was going to be presenting. Thanks very much, Elena. This is James. Just to check, I guess a point of order. We have a hard cut off at 12.45. So I'm happy to stay past one o'clock if we have a quorum. So let's just do a quick check on that. We'll see where we get. I'm going to be really brief. So we in the classification subcommittee have voted to bring forward five recommendations on the connections between classification and the Freedom of Information Act. It's important to note we were not unanimous on all of these. There's five recommendations. It was a two to one vote on the first three. On the fourth one, it was two in favor and one abstained. And there was unanimous agreement on the fifth recommendation. And what that kind of indicates is that there are some differences in our views on these recommendations. All of these recommendations concern a single issue. Basically, what happens when some parts of the executive order on classification are followed to a letter, but other parts are not? And in particular, what it refers to is when you have a piece of information or a document that has information in it that satisfies the substantive definition of, or the substantive requirements for being classified in other words, release of that information would be detrimental in some way to national security. But some of the procedures that are required to be followed are not followed, and those can include things like the requirement to be marked appropriately. So if during a Freedom of Information Act request, a document comes up that is not appropriately marked, can it then be withheld? And what has to happen to that document? And we have five recommendations that address this in various ways. I'm gonna turn this over to my colleague, Kel, who wrote much of this report, who will introduce either the first three or four. And then we're going to allow my co-chair, Kristin Ellis, who might wanna offer a slightly different perspective to comment on that, as well as to introduce recommendation number five, which as I mentioned before, has unanimous support from the subcommittee. So I'll turn it over now to Kel to continue. Actually, James and Kristin, if y'all don't object, I think that because following the model of how the previous vote went, it might make more sense to go with five first, because that's the one that we all agree on, and get that out of the way, so we're not sort of rushing through it in the last minute before questions. I'm happy to do that if y'all want to. This is James, I don't have any objection to that. That's a good idea. That's fine by me. This is Kristin Ellis from the FBI, and just to front load, James had indicated that there was not unanimous vote from the subcommittee on anything but number five. I was the dissenting vote on the other portions of it, just in the issue of transparency. The recommendation number five, if we can move the slides forward. Yeah, it's slide 23, please. Thank you. So the underlying premise of this entire group of recommendations is that there are two main essential parts of the executive order governing national security. There is a sort of a substantive requirement, as James mentioned, that information to be classified must meet certain criteria substantively. And then there are certain procedural requirements within the executive order that once information is, the information that can be classified is classified. It needs to be marked as such. And that includes portion markings and banner markings to identify that this information is classified. And the whole point of marking classified information is so that people handling it know how to handle it. That the executive order says that the president has assessed that there's a certain type in categories of information that if they are disclosed, could harm national security. And so unauthorized disclosure of that information needs to be prevented. The only way really to prevent unauthorized disclosure of that information is for people to know what the information is so that they can properly protect it and handle it. There are instances, and certainly, I don't think that anyone in the intelligence community would disagree with me on this. There are instances where information, largely derivatively classified information, is not marked with all of the markings required by the executive order for whatever reason. And the question is, what happens, specifically in this context in FOIA, if that record is responsive to a FOIA request and the FOIA processor sees it and it is not marked, can it be withheld in response to exemption one? And is there, should the agency be going back and marking the document? In my experience, in the last decade in the intelligence community, and in handling classified information on a fairly regular basis, both in FOIA and outside of FOIA, there are certainly times when records don't have all of the markings they're supposed to have. In my experience as an agency, my agency will go back and make sure that the documents are marked. Again, because it is in our interest to do that and to protect national security. If we're not marking them, we can't properly handle them and make sure that they're not getting disclosed. So the thrust of this recommendation is essentially to assess how widespread of a problem this is and how agencies are addressing it. Because there is a perception, at least in some corners, that agencies are regularly ignoring omitted markings on classified documents. Which like I said, in my experience, that's not accurate. But I certainly don't work in all of the intelligence agencies, so I can't certainly speak to all of that. So this recommendation is for the archivist to request that the inspector in general for the intelligence community conduct a review of agencies compliance with the executive order, provisions that particularly relate to marking of classified information, either initially classified information or derivatively classified information in response to FOIA requests or other disclosure requests. And the specific language is up on the screen. The part of my reason for making this recommendation or proposing this recommendation to the subcommittee, which then adopted it, is that the ICIG is part of the Office of Director of National Intelligence. The role of that organization is to be the honest broker in the intelligence community with oversight over other intelligence community agencies. And also they have a major component of their mission is transparency within the intelligence community. So that seems like a logical place to go to to help assess the extent of this problem and how agencies address it. So that's my elevator pitch on number five. Thanks, Kristen. And I can chime in and- Oh, go ahead, please. Then say, you know, this, while I obviously disagree with Kristen on some of the points that she made, we both agree that at the very least, there is a different inexperience between people. When she said that in her experience, they do do it. In my experience litigating against the intelligence community, I've run into several situations where they didn't do it. And there are court cases about them not doing it. But before we get into the meat of the rest of the recommendations, which are basically make them do it and put penalties in in a minute and take the orders and whatnot, we all agree that at the very least, someone should get a good picture of how white for this, as she said. And so- Patricia with from EPA, I move that we vote on this recommendation. Okay. I second it. Dionne. Thank you for that second, Dionne. I appreciate it. Let's take a vote. All those in favor, please say aye. Aye. Aye. Aye. I heard a lot of ayes. Kirsten, did you catch all of that, hopefully? Anyone against, please say nay. Okay. Any abstentions? Abstain. Who was that? It's Bobby. Thank you, Bobby. Alina also abstains. Any other abstentions? Kirsten, how do we do on that vote? Okay. Motion carries. There were no no votes. Two abstentions from Alina and Bobby. Okay. All right. Tau, floor is back over to you. All right. So I'm going to hit number four next because it is sort of the other low-hanging fruit if you could go back a page. This is... So the inflation that y'all haven't been given yet is sort of why this is a thing. Is that there is this discrepancy between what the FOIA case law requires and what the executive order purports to require. And as James said, agencies sometimes don't mark their documents, they don't do other things that are required by the executive order. And yet under Exemption B1, the classified information exemption, a court will still sign off on it and say that they have proven that it is currently improperly classified. This is a fairly recent development. In the last 10 years or so, but it is pretty consistent. In the last 10 years before that, the prevailing view in the courts was that you have to follow, adhere both to the procedural and the substantive criteria of the executive order. But then around 2010, the courts moved towards saying that only 1.1A had to be followed by the executive order in order for them to adhere something in order for them to hold something under B1. And one of the, without getting into the bigger reasons and the bigger changes, number four is a purely administrative change. And the address is a place in the executive order where they almost address this, where there is a section in the executive order that says that when an agency discovers omitted markings, and I can answer why the markings are important either now or later, but I will address it later if we go into this in here. When reviewing something for derivative classification or are reviewing it for declassification, they must consult with the appropriate equity holders and apply the markings. It doesn't say or FOIA review. And because agencies do not consider FOIA review to be quote declassification review, they do not believe that that provision in the executive order requires them to apply omitted markings when they're reviewing something through FOIA as opposed to declassification review. So this just declassification review, they have to apply it. Derivative classification review, they have to apply it. FOIA, they have to apply it. It's a pretty open and shut recommendation. I think Patricia raised her hand. I can't see what she just did. That was never, okay. Sir, Calvus- This is Alan Blutstein from American Rising. My question for number four and it's applicable to one through three as well. What about GLOMAR responses? It's not clear to me that these recommendations wouldn't fold those in. I don't think they should, but it's not addressed here. And that was the primary issue. And one of the cases you cited or the subcommittee, this group cited, and which Cal, I think you litigated, which was Mowbly VCIA, which I think was correctly decided in any event. I think it would be useful to clarify whether these recommendations exclude or include GLOMAR responses. I don't consider those to be withholding, but denial, but I don't know what the intention is here. So that's my question. Yeah. So there's two parts to that answer. I'm going to stick a pin in how it affects one through three because the answer is different in how it affects four. For number four, the language and executive order specifically says where the information has been omitted that was supposed to be there. And there is currently a difference of opinion as to whether or not you have to mark GLOMAR, but in the context, that sort of goes towards one through three. And so we will talk about GLOMAR when we get to that. For this one, it's already built into the system that they don't, in declassification, when they're reviewing a GLOMAR fact for declassification, they don't have to market or do whatever they do to it. And you can actually declassify GLOMAR facts. In fact, I've had ISCAP appeals that dealt with a mandatory declassification of the request for the existence or non-existence of, right, information that was being declassified in fact. And so for this provision, it doesn't apply because it basically says whatever you're doing for declassification review, do for FOIA review. If you're not doing GLOMAR for declassification review, don't do GLOMAR for FOIA. It's just sticking and FOIA onto the other end. If you, whether or not they should be doing GLOMAR as part of that is a different discussion that's not relevant to this particular recommendation. And I'll get to that when we talk to that. This is Kristen, the executive order specifically says that markings are required only when classified information is in documentary form. And my view is that a GLOMAR response because it is not about actual documents, it is about facts that if we acknowledge we have records, we are disclosing that we have classified information or potentially could be disclosing that fact. So there's no record to mark. And I think, Alan, getting to your point in the case of the law that you're talking about, I believe that court said with a GLOMAR, there's no document to mark. So there's by definition, nothing omitted. My interpretation of this provision in the executive order is when you're talking about a natural physical document that may have markings omitted from it. And I don't believe it should affect a GLOMAR response because we're not creating a new document and then classifying that document, Ergo having to mark that document when we issue a GLOMAR response. I don't know if that answers the question, but I don't, at least my view is that I don't view that this, because this just adds language to a provision that already exists in the executive order. And I don't believe that that provision affects GLOMAR responses either. The short version is both Kristen and I, we have vastly different views on the first part of what she said, but we both agree that that's not here. That that's not something that happens in this particular recommendation. This is, this is James, just because of time, if anyone has any other questions, I think it'd be great to hear them. But otherwise I'd like to move for a vote on this recommendation. Actually, this is Alison. I have a question about the timing about when the marking should be done. Cause as written, it says that in cases where information withheld. So does that mean that after the information has been withheld, then they go back and mark it? Or should it be that the information is marked before a final determination is made? I guess it just isn't as clear to me as I would like. Do you guys have some more background on that? That is, sorry. That I get that these are all questions for one through three, not through four with different agencies do it differently. They're exactly the whole, the executive order only requires that they be applied, before the declassification review is done. And so this is again, just whatever you're doing for declassification, whenever you do it, on whatever timetable you do it, do it for FOIA. So to be clear, this is actually a paraphrase of what is in the memo. The memo, the language that currently exists in the executive order talks about when information is reviewed for. Okay. It's classification, derivative classification, or then we were adding for FOIA. So it talks about it at the review stage. Okay, thanks. So James, do you want to move for a vote on number four? So moved. Okay. Do we have a second? Now seconded. Okay, let's take a vote. All those in favor of recommendation number four, please say aye. Aye. Aye. Aye. Aye. I'm waiting for a second to make sure Kirsten got most of that. I think so. Can we go to the nose? Let's go to the nose, yeah. Against this recommendation, please say nay. Nay. Was that you, Patricia? Yes. Okay. Any other names? Okay. Any abstentions? Abstention. Abstain, one. Okay. This is also, I abstain. Kirsten. Okay. I'll be abstaining. Okay. So I've got Allen abstaining, Kirsten abstaining, Alina and Bobby abstaining. Alina's abstaining, yes. Yes, and there was one other abstention that I missed. Allison. Allison. Okay. Any other abstentions that I'm missing? And just so I'm clear, there were no nays. There was one nay and it was Patricia Weth. Got it. Thank you. So the motion carries with one no vote and five abstentions. Okay. James, how do you want to proceed at this point? Looking at the time. We have some folks who are able to stay past one, but not that many. So I'm concerned about one through three. I know Cal wanted to have time to present, but would you like to take a vote as a package? Well, I don't know. How does Cal feel about this? I'll turn it over to him and let him decide. You're muted, Cal. Sorry, Cal, you're muted. I don't know if you're talking to the committee or not. When James started talking, I couldn't talk cause my Bluetooth died. I think it doesn't really make sense to vote on these one through three as a package, but we only do need to talk about one because one is sort of the big one and the purpose of two and three are really the parts of one. So let's say that someone didn't like one, but they were okay with the marking half of it, which would be two, then they would vote yes on two, no on one. Or if we recommend all three and the archivist doesn't like one, but he likes two, or she likes two, sorry. Then that's how that would go. So we don't really need to debate two or three, we just need to debate one. Does that make sense? This is Dave's, maybe we can try to do that very relatively quickly. I know it's tough because the issues are complicated, although we've done a pretty good job so far, so. We're doing great. A lot of the discussion has already been done on one built into the other. It basically boils down to set the FOIA B1 case law, make it track the executive order, make it go back to what it was 11 years ago, to where, or sorry, 13 years ago, to where the, if there's something in the executive order that they didn't do, then they can't claim it's properly classified and therefore they can't withhold it under B1. We say either the FOIA statute or the executive order because you can really do this either way. And our recommendation is basically to give it, give Congress to the president, the freedom to choose whichever path they choose. You can either amend the FOIA statute by amending B1 to say, if it does not comport with the requirements of all of the executive order, then it's not exempt under B1 or you could have the executive order say, you may not withhold it under FOIA if it has not comported with these requirements. Just as a brief sort of background of this, these markings are not sort of just frivolous markings. Many of the markings while they are written and they're intended to be written not just for the agency employees to know how to treat it, but for everybody else. You know, the Clinton executive order, which preceded the Obama executive order 1356, said a lot of these markings up in the interest of transparency so that you know when it is supposed to be declassified. So that if that date has passed, you can point to the marking in the redacted record to the judge and say, look, it was supposed to be declassified. It says that you must identify the person who classified it so that what if that person wasn't authorized to classify it? You know, there are lots of markings that are required for transparency purposes because one of the key precepts of the executive order is that information shall not be classified indefinitely. But if you don't mark it when it is supposed to be declassified, then agencies don't always know when to declassify it or, and judges don't know when to say no. This cannot be continued to be withheld because it was supposed to be declassified or something like that. The other sort of small background note on this is that this is an area where we don't know a lot of examples because most, maybe not most, but definitely a high percentage of B1 withholdings are in full. And that means that I don't, if I request it and they say we would have held one document full, I don't know if their markings are not on it. If they release something where that did, and I can see, you know, there's markings or there's not markings, yes, they would have held this paragraph that's marked you under B1. Well, clearly it's not classified so it's marked unclassified. And this does happen. It doesn't happen a lot, but it happens enough. And the purpose of this is to basically fix that, say, okay, judges can look at whether or not they have followed the executive order, like they did for 20 years before 2010. They can say, and they still do this in some instances, like 1.7D is one that the judges will look at, make sure you followed. But this undoes, this fixes the judicial case law that says you only have to show you did 1.1, and it addresses some of the judges' observations, like one judge in the full report we quoted, came out and said, it looks like they might have violated the executive order, but I can't get to that question because the precedent is whether or not they violated 1.1A and the others don't matter. So that's what this is. And I'll answer specific questions about this. To Kristen's point that you mark information to keep it class-rided and to protect it, that's not always true because if a document is marked top secret and it has no other markings and no portion markings, which are when you mark each paragraph, the agency still treats everything in that document as top secret, even the parts that are not actually classified. So adding a portion marking is not necessary for them to continue to treat it as top secret because they already treated it as top secret because it's the entire document. So I can take questions on this and address any of the concerns. Assuming there aren't any questions. Yeah. Okay. This is Alan Blaski from Erika Rising. You know, I haven't had time to review 10 years worth of case law. The memo's pretty thin. I'm curious whether Kirsten agrees with that view that that court has broken bad over the last 10 years and that this requires the fix that Cal is suggesting. So this is Kirsten, just point of clarification. I believe you meant Kirsten. Kirsten, that's my apology. Yeah. That's a fine. That's fine. Kirsten and I sort of interchangeably hop into things. So it's good. I frankly don't agree that A, that courts have departed from what is required. I again, in my practice have not seen that this is a major or persistent issue. I have certainly had more than my fair share of conversations and fights with DOJ lawyers representing us in court to make sure that we have done everything that we were required to do. My, I definitely know the FBI FOIA shop. If they find a document that doesn't have all of the proper markings, we'll make sure that it gets marked. I am concerned at the notion that there is a recognition and I think Cal would agree with me on this. If information would harm national security. It meets 1.1A's requirements of the executive order, but it's missing a marking. I don't believe that there's a recommendation that that information should be disclosed under FOIA or be required to be disclosed. So what this is basically doing is asking the court to enforce the executive order, which by the very terms of the executive order is not appropriate. The executive order itself says it does not create any rights enforceable by law. And so I, as I said at the outset, full candor, I am the dissenting person on the subcommittee as to this because I don't read the executive order the same way that Cal does. I don't read the case law the same way that Cal does. I don't think that this is the problem that he thinks it is. And I don't support this recommendation. This is the- Now we'll join Crippen to say that, yes, we're not recommending. One litigate did try to litigate this point and they lost and they probably should have lost. We're not saying that if you find a document that's not marked, you have to release it. We're saying that, and well, marking is only part of this, marking is the one we keep talking about, but there are other parts, but let's stick with marking for now. This is saying for marking that if you find something that isn't marked, you have to mark it before you withhold it so that the court, so that the requester can see the markings, can know whether or not all of the provisions were followed, can know if it was retroactive or classified. There are provisions in the executive order for retroactive classification. And so this is not saying that if there is information that is unmarked and is in fact unclassified, they have a process for classifying it. It is a more difficult process because you've already gotten the four year request for it, but it's there. And this is saying that if they want to do that, they have to do that. They don't necessarily have to do that if they just want to mark something that's been improperly marked, but that by the time a decision letter goes out to a requester, or at the very least by the time the agency follows a declaration in their lawsuit about the classification of the information, it has to be marked. That's all this is saying. Okay, in the interest of time, it's 12.59 p.m. We are losing a quorum very quickly. We're going to take a vote on number one. I vote that we do that now. So I would like to ask for a motion to be entertained. Can I have a motion? I have a motion. I'll motion. Thank you. Do we have a second? One second. Okay, let's take a vote, please. All those in favor of number one, please say aye. Aye. Those against, please say nay. Nay. Nay. Nay. Okay. Can we do a roll call? I'm sorry, I didn't roll a call for those. I'll be very quick. Alan? No. No, David? I abstain because I don't have enough information to make an informed vote at this point. Sorry. No. Alison? Nay. Nay. Kristen? Nay. Nay. Linda? I'm abstaining. Okay. Jason? Abstain. Abstain. Cal? Aye. Michael? Aye. Alexandra? Abstain. Abstain. Twan? Aye. Matt? I'm a nay on one through three and I have to run to another meeting, sorry. Okay, got you down as a nay on this one. Dion? Nay. Nay. James? Aye. Aye. Okay. Tom? Nay. Tom, that was a nay, correct? Correct. Okay, Bobby? Stay. Okay, Patricia? Nay. Nay, and Alina? I abstain. Okay, looks like, excuse me, I'm losing my voice. It looks like we have seven nos and four yeses, so motion fails. All right. So let's get forward to number two. So these are just the parts of number one and we can just call straight for a vote on those two. Vote on two and three together, Cal, right? Well, no, so you may agree with two and not with three or vice versa. Okay. If you voted for two and three together, then that's one. I'd like to collect votes though on both at the same time because it is now 1.02 pm and we're gonna lose our quorum and that's gonna be a problem for the vote. So can we vote with them together? Well, let me summarize what they are. I can do that in two sentences. Number two. Do we need to summarize them? They're on, they're posted. Well, the classification instructions are one of the martins. And so that's what that is. It's something that's already required to be there by the executive order by adding a new thing. But yeah, that was my thing. So why don't we just do a roll call and say I gave you on two and three is for all the other martins. So roll call and then vote on both of them. Okay, so roll call please. That sounds good. Okay, Alan. Number three quickly. No. I'm sorry. Can we see number three quickly? No. Hold on one second. Michelle, can you move forward, slide forward please? To number three. Okay, and Alan, I'm sorry. I heard you say no. Did you say no for both two and three? Correct. Got it. David? Abstain. For both. Yes. Alison? Nay to both. Nay to both. Thank you, Alison. Kristen? Nay to both. Nay to both. Linda? Linda Fry. Okay, I am going to count her as absent since I do not hear her. She had to go for another meeting. Right. Okay, Jason? I'm gonna abstain on both of them. Abstain on both of them. Okay, and, oops, just a minute. Okay, Cal? Cal? Okay, Michael? Michael Morrissey? Absent, I believe he also had to leave. I believe absent, yep. I'm getting that. Alexandra? I believe she also had to depart. Right. Okay, Twan, is Twan still here? Yes. I'm still here, yay on both. Yay on both, thank you, Twan. Matt? Matt Schwartz? He left, but he voted nay on both before he left. He voted no on both. You already have to leave, but he voted no on both. Okay, Alina? Abstain from number two and number three. Okay, Dion? Nay. Nay on both? Yes. James Stoker? Yay on both. Yay on both. Tom? No on both. No on both? Bobby? Abstain on both. Okay, thank you. And last but not least, Patricia? No on both. No on both, okay. Okay, we've got seven nos and three yeses, so motion fails. Okay, thank you very much, Cal, and thank you, Classification Subcommittee. I really appreciate all your work. I'm just gonna quickly move on to our public comment section. Michelle, if we could go to the next slide, please. We all know the rules, three minutes for each commenter. I'm going to ask Michelle to open up the telephone lines. At this time, we understand there's a caller that's waiting. All right, ladies and gentlemen, as we enter public comment session, please limit your comment to three minutes. Once your three minutes expire, we will mute your line and move on to the next commenter. Once again, three minutes for your comment. And we are going to Mr. Robert Hammons. So please go ahead. That's right, this is Bob Hammons. Can you hear me okay? Yes. Okay, well listen, I'm gonna try to be brief because of world with time. I have 20 recommendations that are contained within my presentation that was just posted today. Save me the time of reading them all. Consider that I did read them as well public comments and include them in the meeting minutes. A couple of things I do want to say. I went farther than this committee in recommending that OGIS be completely removed from NARA and placed under Congress. And I asked a question in the chat that was supposed to have been read out loud but I'm gonna ask it again. Ms. Seymour, at the next meeting, I think you owe the American people the dollar figure that you believe you need to fully fund your agency to do its existing mission, okay? Is it 18 million? I don't know. One of the problems with being under NARA is when you put that out for the world to see, you're probably gonna get hammered at NARA because they wanna use that money for something else. And I wanna pass that same challenge on to Bobby at OIP, OIP is grossly underfunded. You both got your tails kicked at the Senate hearings recently. FOIA compliance is non-existent. Mediation is non-existent. It needs to be funded. And this committee's done some extraordinary work with your recommendations. And so one of my recommendations that dovetails with releasing those contemporaneous FOIA logs is annual FOIA reporting and the raw data that goes with it is massively, massively false. Everybody knows it. My experience is primarily with a couple of agencies within DOD, but everybody from the FOIA officer up through the chain of command, service secretaries, secret defense, OGIS and DOJ, OIP, they all know it. And every year we get a footnote that says last year's data was massively false and they list a whole bunch of agencies, but they never tell you what they changed. You gotta make them amend that last report, make them amend the raw data that goes with it and post them both. I don't care if it takes DOD 10 years to get a single report right, the American people need to know how materially inaccurate these are. That's a safe card for FOIA requesters to know even if your FOIA requests and appeals are being reported. I can tell you mine or not, I have open FOIA requests and appeals dating back to 2013. And I'm prepared if that's what it takes to put a thousand or more examples into the public domain. When I go to OGIS and I ask for help as I did on two recent MEDCOM appeals that I submitted by certified mail in 2018 and I said, I want the status, the case numbers, and I don't believe you're reporting those in your annual reports. OGIS comes back and says, well, they don't have any open appeals dating back there and we've already addressed all your concerns about FOIA reporters. That's nonsense. You have to take each case, document it, and when you find malfeasance, you have to act on it. So I'm gonna, are there other colors waiting to get in? Your time has expired. Thank you very much for your comment. My hand is back up. Thank you. Martha, I understand that there are no questions in chat that we've received during the meeting. Is that correct? That is correct. Mr. Hammond asked the one question that he had asked us to speak out on. Okay. Michelle, you can go ahead and unmute Mr. Hammond for an additional three minutes and then we will wrap up. All right, very good. Mr. Hammond, you are on mute. I go ahead. Okay, well, I didn't get agreement to read into the record, so I'm gonna read my recommendations. The first one is related to everybody, and these are posted on YouTube. The committee has them and they're within a presentation we just posted. My first one is required contemporaneous posting of all FOIA logs. That's already been recommended today. Require agencies to amend past quarterly and annual FOIA reports. And you can see my presentation, DOD, Massive False Reporting Part 1, letters sec dev, complaints to DOJ, OIG. I've already discussed that one quite a bit. I require agencies participating in FOIA online to produce plans, preserve all FOIA online records, which are unique records subject to FOIA. They're not replicated anywhere else. We gotta preserve every item within FOIA online, and I wanna know how it's gonna be done. And I wanna see guidance, discouraging, preventing automated destruction of FOIA case, processing records and seeking a change to narrow GRS to make FOIA case processes records permanent. DOD admits, apparently and unlawfully, to destroying potentially hundreds of thousands of records over a short time. That's based on a Navy record schedule and my own experience. The narrow GRS 4.2 requires FOIA and POSAC case files to be retained for six years after the final agency action or three years after the final adjudication by the court, whichever comes first. But requesters unsatisfied with FOIA responses often seek case records of prior FOIA requests extending that further. I did that when DuMed said that they didn't have Walter Reed's annual FOIA reports. I submitted another request. I asked for the case records and DuMed admitted to narrow that they had destroyed the records. So the FOIA officer's never gonna be able to keep track of that and you can't use automated retention schedules to delete things. And narrow requires all records to be submitted digitally so there's virtually no cost to doing this. For OGIS, we've already said allow OGIS and DOJ, OIP to make referrals to special counsel in egregious compliance violations or willful withholding. My understanding is the courts never do this. We've already talked about reviewing records in camera, binding arbitration, placing OGIS under contract. And it's another one here. Require OGIS to stipulate the ending fund that requires and study current OGIS funding shortfalls and mission accomplishment or mission failure. NARA refuses to even give me the budget request. What did NARA ask for? I can see the final budget things going to Congress and NARA gets every dime they ask or the budgets went from 1.6 million with 400 mediation cases years ago. Now OGIS says they have 4,600 mediation cases still with three people impossible to do that but they're getting 1.2 million. That's nonsense. OGIS needs to get direct funding from Congress and I think they need to report to Congress. OGIS will not. I'll back in, thank you. Okay, thank you. Lena, you're on mute. Thank you, thanks, Michelle. I promised everyone we'd wrap up by 1.15 so I'm gonna try to keep to that promise. Thanks for the committee members who are able to stay behind. Just wanna remind everyone that the working group on the final draft report to the archivist, the acting archivist is going to be hard at work in the next month. I wanna thank in advance the working group members, David Collier, Deon Stearns, Patricia Lepp and Alan Blutstein in no particular order. Wanna remind everyone we're gonna meet again on Thursday, June 9th, 2022, starting at 10 a.m. It may be a shorter meeting than usual given the fact that we'll just have the final report to consider and vote on. And if there are no other questions or comments, I would like to adjourn our meeting. Just looking around, seeing if there's any questions or comments. I do not see any. Okay, we stand adjourned. Thank you very much, everyone, have a great day. Stay safe. Thank you. Great. Thank you. Thank you for the conference. Thank you for using event services. You may now disconnect.