 Thanks everyone again for being here and thanks to those great opening statements if you will by Jonathan, Michael and Esme. This is our first of two panels that we're going to have today. This is our view from the inside panel where we have four fantastic speakers, panelists who are going to be talking a little bit about the perspective from working inside government, thinking about some of these transparency issues. John Stubbs, Richard Lazarus, Quentin, Paul Frey and Amy Bennett. Rather than my sitting here and reading a long list of their bios, I think what I'm going to do is I'm going to ask each of them, if they don't mind, to introduce themselves, talk a little bit about who they are and maybe offer a few minutes of opening remarks before we kind of open it up. We'll keep this going for an hour or so and then as I mentioned, we will take a break during which we're going to move over to room 2012 for the second half of the day. I talked by Cass Unstein and then a second panel over across the hall, but we'll be sure and save plenty of time in this session for Q&A from the audience. And again, hope that we can pull in some of the really important themes we heard from the first set of speakers from Michael thinking a lot about process and thinking a lot about managing volume, which I know is something that Amy thinks a lot about managing processes. Jonathan talking about just the absolute substantive important impact of this work and Esme, I think, raising some really interesting and important questions about legitimate privacy interests of people whose information is contained in public records. John, can I start with you? Maybe introduce yourself and talk a little bit about your perspective, particularly from the U.S. Trade Rep's office. Sure. So I'm John Stubbs. I have been involved with the Berkman Klein Center for the last few years here. And in the Bush administration, I worked for the U.S. Trade Representative, so I worked for Bob Zellick and Rob Portman. It's interesting having gone through this election cycle with all of you. Trade was one of the dominant themes. And in the transition teams leaked 200-day memo, it is apparent that on day one, trade will again be front and center. The issues that I worked on while I was there were primarily related to how we could better connect citizens with the trade policy process, how we could better connect advisors that work through the advisory committee system with the process. How could we encourage more participation? Frankly, because there was a recognition that trade policy is unpopular and requires some greater explanation. When the Bush administration came into office, we had just gone through hosting a World Trade Organization round in Seattle that did not go very well for President Clinton. And there was the understanding that many things were changing with access to information on the Internet and there might be new mechanisms that would allow for greater information sharing. So while we tried, I think, and in some cases were successful at encouraging greater participation, certainly it's very clear looking back over the last 20 years that more, very much more needs to be done. So I'll just touch very briefly on maybe a couple of the things that we tried to do a decade and a half ago and then a few of the things that I would recommend to the Obama administration that I would recommend to the Trump administration if they want to really reform trade policy and have more people engaged in the process. Is that the best way to do this? Just to go on. Yeah, great. So back in the day, one of the things that we recognized is there is an advisory committee system. That advisory committee system has about 700 private sector representatives. They are from export-led industries. They cover topics like environmental protection or intellectual property, labor standards, or could just simply be how does how do the services agreements work. Each of those committees then has about two dozen people from companies, largely big multinational corporations and their lobbyists who sit on those committees. And those individuals would have to come over to a room in a building across from the White House and that room was literally in a basement and you would go into the basement and somebody would watch you as you read those documents. You weren't allowed to take notes and then you could take whatever you could retain from these highly technical hundreds of pages of documents and then you would leave with that and not be allowed to talk to anyone. So that system of transparency seemed a little wanting. We created a process where we could put all of these documents online so that people could at least view them remotely and then in viewing them remotely they could sit at their own computers at home, perhaps in California, perhaps in Texas or other parts of the country. And that radically improved obviously the level with which the advisors were actually reading these documents, their preparedness for meetings, as they would attend a few a year. And so some small marginal improvement made. The recent fast-forward kind of to the Obama administration and some of the things that they wanted to do, ideas included creating a committee for the public. So this would be academics, NGOs, other potentially credentialed and engaged citizens who were not representing a big multinational corporation or even a small business but were rather representing a point of view in the public interest. That committee didn't get off the ground so that would be kind of the first I guess thing that I think the next administration could look at. Some other ideas included holding more public hearings, allowing more access to documents through FOIA. But for trade policy, the problem which is the trade policy is so subject to capture by polemics and hyperbole. Many of these agreements are in fact designed to address the problems that most people think that they are causing. We don't enter a trade agreement with another country and suggest that they lower their environmental standards or that they lower their labor standards. All of these agreements are designed to do more. Could they do more? Should they do more? Can we argue about that? Sure. But they're actually not designed to do anything other than protect U.S. interests or advance U.S. interests. You could always argue that there are trade-offs and some parts of the country will benefit more than others. But in many ways, they are designed to address a lot of the problems that parts of the country are struggling with that are related to globalization that is happening with or without the trade agreement. With or without China's participation in the WTO, China exists in the global economy and would have an effect on people in Ohio. So there are many issues that are a lot more nuanced than the space currently allows in our current conversation. How do you fix that? At the heart of it, I think it's because there is secrecy in the agreements and the negotiators themselves insist on it. Whether or not that's necessary, whether or not these agreements could actually be negotiated publicly, it's somewhat open to debate, but not really. Because frankly, our trading partners would never stand for it. One of the things that I did over the last year with some students through the legal clinic was to examine every trading partner in the Trans-Pacific Partnership and their levels of access to information and how transparent was every country participating. And by far, by orders of magnitude, the United States is more transparent. I mean, no other country has any advisors of any kind. No other country has the level of meetings or engagement that the United States has. Most don't have any system of FOIA where you would even have an opportunity to request. The European Union ahead of the transatlantic trade discussions very loudly proclaimed that they were going to be the most transparent in history and proceeded to issue summaries of their negotiating positions, which, you know, okay. So the U.S. has always been a leader in transparency. The U.S. has always pushed the envelope with respect to trade agreements, but it's clearly not enough. And until we can break through and figure out how to get more citizens engaged in that process, the secrecy of these agreements is going to hamstring, I think, significantly the public support of those agreements. And it is going to continue to allow politicians or others with specific interests to create emotional reactions to fuel fact-free debates, to literally just make up what's in the agreements because we don't actually have visibility into what's in them. So there's a tension there that needs to be resolved, and we're not quite sure exactly how to do that. I'm sure there are people that will continue to work on this. I know Quinton worked on this a bit when he was at the White House. And, you know, if Trump really wants to start throwing windows through some agencies in D.C., you know, he might consider starting with USTR and figuring out how to get more of the general public's input into those agreements to get their buy-in earlier to make it easier for him to then sell whatever trade agenda he might have moving forward. Great. Thanks so much, John. Richard? Yeah, Richard Lazarus. I'm on the law school faculty here, but I'm actually not really speaking from that experience at all. I'm speaking from an experience I had in public service a few years ago at the request of President Barack Obama. I served as the executive director to investigate the Gulf oil spill in 2010. Our charge was to investigate the root causes of the spill. Actually, at the time, the spill was still ongoing in the summer of 2010, and to make recommendations to have those kinds of spills not happening in the future. Now, I don't doubt the benefits of disclosure and transparency. Questioningly, they're enormous, but I bore witness to some of the serious downside of transparency and disclosure. I think they're wonderful, but not in all times and all places. And one needs to, I think, be a little disciplined in thinking about it. This, to me, was rude-waking. I know a particular experience in this, but I got named the executive director in June of 2010. We were going to have our first meeting. I was going to be sworn in and meet with the commissioners. I'm the only full-time employee, along with 60 people I had to hire, but the commissioners ultimately, they had to approve the report. So I wanted to get to know them to the extent that I could. So I heard we were going to all be sworn in together at the end of June, a few days later. I wrote an email to them, and I said, if any of you are spending time in D.C. after our first swearing in, I'd love to have you over for dinner at my house. I think it'd be a nice thing to do, get to know them. They didn't know me. I quickly heard from the Office of Ethics that that would be a meeting, that I would have to invite members of the public to the meeting, and I'd have to give six months' notice in the Federal Register before we had a dinner at my house four days later. That was my awakening to transparency and disclosure. Because we were, as part of the Executive Office, we were a Federal Advisory Committee while we were investigating the Gulf Oil spill. Here are some of the effects that I thought were negative. We had a job to do. We had a huge national disaster ongoing to try to find out the root causes of it, and we had potentially billions, tens of billions of dollars of liability, civil liability, and criminal liability going on. And we had an investigation to do to find out exactly what happened. I quickly discovered, of course, all our committee meetings would be public, but any committee meetings, we deliberated. The commissioners actually deliberated to try to figure out what had happened, staff reports. Those also, I was told, would have to be done in public. If I did draft versions of our report, which our staff was debating, and I sent them to all the commissioners for them to review and to discuss and debate, those, all those drafts would have to be made public. Our drafts of our investigative reports, that is a chilling thing to do when you're trying to figure out what's happening, trying to find out the facts on the ground. You're going to find out things, other things, hear from witnesses. You're trying to sort the whole thing out. And to have all of your deliberations and all your discussions that way, if all the commissioners are involved to be subject to public disclosure, as ongoing, was, I thought, had a very harsh impact. As a result, I tend to do almost all my discussions and deliberations with the commissioners that we worked on the report one at a time. Not all at the time. As a matter of fact, I would tell the commissioners, they had to trust me, I had to tell them when we had consensus on a chapter of the report and I wouldn't show it to them. Because I showed it to them and have to make it public. And actually, the first person I thought we should make our report public to was the person who asked it for me. And that was President Barack Obama on January 10th, 2011. He was going to see our report. Our draft chapters weren't going to be in the public domain. All the rest was going to happen when we handed the President of the United States on January 10th. Then it would be made to the public, but not everything happened all along. So I had to do all these negotiations on a one-on-one basis with commissioners. I had like 90 drafts in a few weeks of just one chapter. We did it, it worked out, but it's not the right way to do things. The greatest irony, one great irony I found during this whole process was I actually thought that the way that they were interpreting FACA and disclosure roles was wrong. But I couldn't get anyone in the executive branch to write a memo analyzing the issue because they didn't want to put anything in writing. Because as soon as they put anything in writing, it would be subject to public disclosure. I put everything in writing because I believe in writing. And this is where I found a clash which has happened, I think partly because of disclosure rules. I'm not saying they're bad transparency rules, but there's a cost to them in application. My formative time in the government was in the Solicitor General's office. The office represents the United States and the Supreme Court. We do everything by writing, all the memos, all the discussions, all trying to analyze the issues. Our mantra in the office was reason rules here. And reason results from discipline, thinking, careful analysis, people going over each other's work, writing candidly and discussing it, in writing. Not in meetings where people just say something you can't really assimilate what they've thought. That's impulsive, not thoughtful, considered decision-making. Thoughtful, considered decision-making, careful decision-making requires writing. You put it down, you look at it carefully, you think about it, you debate it, and you discuss it. And I found a little bit, our work, we found ways to overcome it, but I found that throughout the executive branch. People wouldn't put things in writing anymore. They wouldn't put anything in writing. They wanted to have a meeting. They wanted to have a phone call. It's just not the right way, I think, the best way to make discipline, thoughtful decision-making. And I think a lot of the results is people thought everything they put in writing would be ultimately subject to public disclosure, not 20 years from now, 30 years from now, but immediately. And rightly or wrongly, I think, is that a serious chilling effect on decision-making in the executive branch. And I think we have poor reasoned decisions as a result. Now, it may be worth the cost, the benefits of disclosure, but it's a significant cost, and it's one I became quite worried about during my time there. Thanks, Richard. Great respect to Quentin. Hi, my name is Quentin Palfrey. I'm thrilled to be here, thanks for including me. And at the moment, I'm the executive director of an organization at MIT called J-PAL North America. But I'm talking largely on the basis of my time both in state government when I was the chief of the health care division in the AG's office here in Massachusetts and in the Obama White House and Commerce Department. So I want to talk about three things. One broadly responsive to the comments that Richard was making about the trade-offs and benefits in terms of accountability of some of the public records and access provisions. The second about some sort of non-accountability reasons, why it's really important for us to give the public access to records within the U.S. government and state and federal, state and local governments and some of the benefits of communication. And then the third cluster of issues responsive to some of the conversations that John started and John and I have had about some particular ways in which I think the trade policy development process is broken. So let me start with transparency and accountability. So my sense is that using transparency as a method of accountability is absolutely indispensable for keeping the government honest. So in Massachusetts where I've worked for a long time or at various times during my career, we've had four speakers of the House in a row with felony convictions. I mean corruption and misconduct within government is very real in the developed world and it is something that we need methods of accountability to prevent. I think that where I very much agree with Richard though is that there are many times ways in which the systems we set up with the goal of advancing accountability actually or some other policy goal when you game it out two or three chess moves forward have some unintended consequences. So let's start with transparency of written records. Anyone particularly with a JD who works in the federal government or state government subject to public records laws is very, very careful about what they put in their emails. You learn very quickly that if something is controversial you should talk about it in writing, you should call somebody up. And so what ends up happening is that the access for accountability purposes to records is mostly a trap for the unwary, right? But if you're trying to use this as a method for preventing misconduct, what happens is any misconduct or any kinds of discussions that shouldn't be happening within government offices still happen, they just happen orally. So you have to worry about that. The similar set of challenges arises when you're trying to sort of monitor who's meeting with whom. So in the White House and in some of the agencies there are often records, logs of people coming in and out of these buildings. But the processes of getting people in and out of buildings are a real pain, right? Particularly with the Secret Service with some of the security obligations. And for whatever combination of reasons a lot of the meetings that you would want to keep track of happen at Pete's Coffee across the street from the Executive Office building, right? So the word lobbying comes out of the lobby of the Willard Hotel which used to be where people would hang out if they wanted to get access to government officials. Now that's the Pete's Coffee across from the Executive Office building. So you do have to worry about sort of, okay if I do this in order to try and get accountability, what is it that's actually going to be the result in terms of the behavior of government officials? There are other ways in which there can be unintended consequences as well. I was engaged a few years ago in some of the discussions around health reform in Massachusetts. And there was a series of people who were very focused on making health records public. And there are a lot of good reasons for wanting to get access to health data. But some of the things that people were pushing to make public were exactly the kinds of things that the antitrust laws would otherwise prevent competitive entities from sharing, right? And so you just have to make sure that you think through, if you're pushing things into the public, what is the other consequences? Are you actually going to push down prices or are you going to push them up? You just have to think through what are the actual manifestations. So I said I'd talk about three things. I want to talk about some of the benefits other than accountability of making sure that people have access to records. And this is one of the ways in which sort of the Court of the Berkman Client Centers plays in this sort of innovation ecosystem. The digital revolution is transforming government in some really interesting and important ways and enables some really cool things. So if you think about GPS, right? GPS emerged from government data, right? This was data that was developed for government purposes that was brought out into the private sector and transformed lots of them in your cell phone, my cell phone, lots of industrial uses. The same was true of weather data. Weather data comes out of these big satellites that are put up by NOAA. And there was a congressional debate about NOAA's funding a couple of years ago in which a congressman got up and said, oh yeah, we'll just get the data from the weather channel. The fact is it's actually the opposite, right? There's this entire data dump from NOAA that has enabled an enormous amount of commercial value. And so it's really important to think about ways that we can take government data and use it as rocket fuel for innovation. A couple of other utilizations I think I would mention. One is when we were in the White House as a method of increasing accountability and also of crowdsourcing policymaking, we developed a new tool called We the People. And this was a platform that allowed citizens to create petitions. And if they reached a certain threshold and we played with the right threshold over time, but we would promise to respond. Now sometimes the response was, you know, that relates to an issue of national security we can't answer or relates to a particular person's conviction. That's, you know, something. But for the most part, we would give a fair answer to the question if a certain threshold of people raised it. And in fact, in some instances, we use that as a vehicle for meaningful policymaking. So I don't know whether you know about the SOPA and PIPA debates relating to some really important copyright issues. But that process, the We the People petitioned and this dialogue with the public was a really important part of our policymaking. I mentioned one other example which comes out of my personal interest right now in evidence-based policymaking. There's this emerging field of trying to figure out what works and devote government resources towards demonstrably effective things. One of the greatest tools for that is being able to let the scholarly community get access to data. And in a lot of ways, that data is siloed in government agencies that don't speak to each other. It's often very difficult to navigate those systems. And if we could transform through vehicles like the new commission on evidence-based policymaking, if we could transform some of those systems, give people access to that data, we could figure out what works and why. Now I want to turn just in the last couple of moments to talk about the trade system, because I think the trade system is a particular example of where this doesn't work well at all. And it is not at all surprising to me that there is a sort of upsurge in alienation from the trade policy process that is starting to have electoral consequences on both the right and the left. And it was interesting that both Bernie Sanders and Donald Trump seemed to be getting a lot of momentum from a sort of dissatisfaction with their trade policies. Part of that is that we have very, very closed off trade processes. And Colleen Chen and I argued in an op-ed a couple of months ago that that's a real problem. I think it's a problem for a couple of reasons. One is that we actually don't get the benefit of the public's input on important and complicated questions. And it is hard to do policy making if you can't get good input from the public. So the smaller the universe of problem solvers you have, the less likely you are to get a good answer. There are some circumstances where trade negotiations ought to be secret because there's zero some aspects of it. We are gaming out a particular subsidies number and we have a sort of long-term chess match. But sometimes trade policy is more like legislation or regulation where really what we're doing is establishing norms. And where we're establishing norms, having a closed and non-transparent system that doesn't have any of the mechanisms for accountability we have in notice and comment rulemaking or in the development of legislation leads to worse outcomes and a feeling that there's not accountability. And so John mentioned some of these trade advisory councils. And so there are two things about those. One, they don't work particularly well. And so even to the extent that you accept the premise that these folks that it would be okay to have representatives of particular policy perspectives through a sort of closed process, it doesn't represent the public interest in those ways. It's not representative of the scope of policy concerns that exist within the government. And so you have a system that is neither representative nor transparent and as a result you get bad outcomes and you get outcomes that are not perceived as legitimate. And I think ultimately that actually redounds to the detriment even of the government, even on a narrow basis because they can't get something like the Trans-Pacific Partnership through because it's not perceived as legitimate and doesn't have broader accountability. So I think reforming that process in particular would be very valuable. Terrific. Thanks quite a bit, Amy, to jump in. Hi, thank you so much for having me here today. I'm Amy Bennett and I'm with the Office of Government Information Services at the National Archives. I'm here today because I love the Freedom of Information Act. It's such a nerdy thing, but I do. I really love FOIA. And when you think about it, it's really a fantastic law. So a person, no matter who they are, no matter where they are, no matter why they want the information, can ask an agency for records. And if the agency has the records and if the information inside is not protected by one of the nine exemptions, one of those exemptions is the deliberative process privilege so that the government doesn't have to work in a fishbowl, then the government has to give you those records. That's fantastic. And we can continue to argue about whether or not where to draw the line on the exemptions. Do the exemptions need to be a little broader? Do they need to be a little bit tighter? And we do argue about those every day in courts? In courts decide. So aside from all that, though, I think that the big problem with FOIA isn't the legal standards, it's time. So if you are a journalist and have a deadline, you have an editor who actually wants content, or if you are a researcher and you need to publish or perish, you can't wait two years for the government to give you records. You just can't. And that is unfortunately just what goes on at the agencies, in part because of the volume of requests that we get. So before I get started, I know it kind of already got started, but just up a little bit, I do want to give you a little bit of context about my role in the FOIA process. So I work for the Office of Government Information Services. I bet maybe two of you in the audience actually know what that is. Can I get hands? Oh, yay! Okay. I've got more of my people here than I thought. So OGIS is also called the FOIA Ombudsman. And we were created by Congress and placed in the National Archives as part of the 2007 amendments to the FOIA. Although we are part of the Archives, we do not have anything to do with the Archives internal FOIA process. So the best way to think about my office is as a service provider for requesters and agencies. And we offer two services. We resolve disputes between requesters and agencies and we review agency compliance with the law. So I actually have exposure to FOIA processes across the entire government. So with that little bit of context, I'm first going to talk a little bit about what this administration and Congress has done to push FOIA into the digital age. Then I'm going to outline where I think there are some further opportunities to deal with particularly the volume problem to make FOIA work better for everybody. And then I'm going to end with a little bit of a caution. So for those of you who don't know, FOIA just celebrated its 50th birthday. And while FOIA is really old compared to our other open government initiatives, it actually really strikes me that my parents have lived most of their formative years without a remote control and without a FOIA. So FOIA is actually a really new feature of our government. Still though, the world, the way that information moves and is shared has changed dramatically over the last 50 years. You know, now my parents actually have a remote. I think they know how to use it. And my niece and nephew don't understand why when they touch the TV, the picture doesn't stop. They think that everything should be touchscreen. Everything's changed. So Congress really began the work of pushing FOIA into the digital age in 1997 when they began requiring that agencies make information available online. And this administration has really made it a priority to push proactive disclosure and to make sure that if there is information that might be helpful to the public, that it is freely available online before you have to actually go through the FOIA process. So in the wake of the latest rounds of FOIA amendments, which the president just signed into law on June 30th, the administration announced some new initiatives that will continue to push FOIA into the digital age. The first reform, which is required by the bill, is the creation of a centralized FOIA portal so that requesters don't have to be an expert in how the government is organized in order to make a request for records. And I'm part of the government. I don't understand how the government is organized most of the time. It's very complicated. I'm sure Michael Morrissey can also speak to that problem. The other reform that the administration is pursuing is a policy that if any general interest, if any record is released under FOIA and it doesn't contain any first-party information, if it's a general interest record, it should be posted online. So the idea of posting records that have been released under FOIA online is actually really exciting. I know that sounds a little strange, but what you have to understand is that for a very long time FOIA was a one-on-one transaction. So we had a system where agencies were using a great deal of taxpayer resources to process records, and then only one person was actually seeing those records. If you post the records online, then it's a great way to ensure that everybody can actually benefit from the expenditure of taxpayer resources. So for a lot of years, people have been making the argument that once you begin posting records that have been released under FOIA online, that the volume of requests is going to start going down because, hey, the information's there. It should be easy for people to find. There's this amazing thing called Google. They don't have to go through the FOIA process, but it hasn't exactly worked out like that. So despite the emphasis on proactive disclosure, between 2009 and 2015, the volume of FOIA requests received by the federal government went up by 38%. In 2015, the government received more than 700,000 FOIA requests. That's a lot. So the government doesn't keep statistics on who's making these FOIA requests, but if you look at which FOIA offices are actually seeing the greatest increase, what you're going to find is that the people who are making all of these FOIA requests, they're not journalists. They're not researchers. They're actually people who are looking for their own records. So why would people be making FOIA requests? Well, people need agency records for immigration proceedings. They need them for EEOC disputes. They need them to file for certain VA benefits or Medicare and Medicaid benefits. And then another common requester that we don't normally think of are actually businesses. So there are a lot of businesses who file FOIA requests because they're doing market research, and there are some businesses who are even making FOIA requests because they're just reselling the information at a higher cost to citizens in the United States. So both these first-party requesters and businesses are contributing to that volume problem that I was talking about. So the volume increases agency backlogs, and then it makes it impossible for agencies to actually respond in a timely fashion. So delayed responses, as I said before, they're not good for accountability or for the people who need records. If you're in an immigration proceeding and you can't tell the judge, sorry, can you wait another year or so to make your ruling? I'm waiting on CBP to return some records. That just doesn't fly. So what we can do is actually create alternative methods of access for people who need these records. And then if we can do that, we can alleviate the volume problem on FOIA, get a FOIA that actually works better for government accountability purposes, and we can provide better services to people who need records for a legitimate reason. So my word of caution is based on my experience at OGIS is that technology is very useful in FOIA, but you have to use the right technology in the right way to fix the right problem. So before I joined the government, I remember going to an event where agencies were being recognized for using technology to improve their processes. And I was more than a little bit shocked when one of the technologies that was being talked about in this fantastic way was an electric letter opener. It was, it doesn't seem like a very holistic solution to our FOIA problems. Now that I'm inside government, I am a lot less judgmental about that accomplishment. But in our reviews of agency FOIA compliance, all of which you can find on our website, we've documented how some FOIA offices have invested a lot of money in really expensive technical solutions that won't work because the agency's infrastructure won't support it. And also there are some agencies that after making the investment just never taught their people how to use the technology. So it just, it just sits on the shelf. We've also, they're seeing agencies that have really embraced technology and they've used it to streamline their processes and to better oversee and manage their staff. And those agencies have seen massive gains in productivity and reductions in their backlog. So to sum up, I'm really encouraged by the energy and the enthusiasm and attention that agencies and the administration have put on bringing FOIA into the digital age. I hope that in coming years, we continue to see those reforms pay off. But I think the work is really far from over. We can improve the system overall and ensure that FOIA can be used for its original intent, which is understanding the government's actions by creating access for certain types of records. And we also need to understand that there is no one-size-fits-all fix to FOIA. So I think I'm hearing sort of, there's a lot here. We could talk about a lot of things. And again, we'll save plenty of room for questions from the audience too. But I'm hearing a couple of big themes come out of all of your statements, one of which I think Amy was just touching on was sort of concerned the mechanics, the nuts and bolts, the processes involved in managing information, particularly when there's more information to manage and more requests coming in. I'd love to talk a little bit about that. Before we get there though, I think that there's obviously a tension that Richard identified and it came through I think in John and Quentin's comments as well about the level of transparency and the level of clarity that is optimal here. Because as both John and Quentin talked about in the trade context, there are enormous benefits from having those processes play out in the open in terms of public understanding of nuance and that sort of thing. Richard talks about the fact that we are, there's clearly some internal cost to the decision makers if they understand and appreciate that their documents are going to be made public at the end of the day. Maybe I'll start with you, John, if you don't mind. Is there anything that Richard's saying about sort of his experience on the oil spill commission resonate with your push for transparency in the trade context? No, for sure. It was wildly unpopular, everything that we were doing to with the trade negotiators themselves. I was constantly fighting with the negotiators inside who thought their job would be impossible with any enhanced level of transparency. I'm largely sympathetic to that. I think that in some cases, in many cases, in a negotiating context, that's very true. I mean, you can look at the, there are all kinds of problems, whether it's kind of the Tower of Babel problem or the accreditation of information problem. I mean, could you imagine, you know, the challenges that we had with this election, I think, highlight how information just released, if we released all of the information from negotiations coming in from all countries and just put that on the internet, having people sift through that in some public way without any filters. And essentially, the negotiators are filters. How the entire process would grind to a halt, I think is, I think that's very real. I also think on the other hand, the cost, you know, on the other side, there are benefits and costs of both sides. So the cost of that secrecy, which is necessary to get the deal, perhaps at the end, is that it becomes politically very difficult. And you have created an environment that allows for a lot of conspiracy theories, that allows for a lot of misinformation, makes it very difficult for trade negotiators to push back on any of this commentary that's happening in the public sphere. So there needs to be a more nuanced approach to getting more public participation without gutting the system that enables the negotiators to actually do their job. So to be clear, I don't think that a fully public trade negotiation would be possible. But on the other hand, I do think that we have crossed the line where the political costs of absolute secrecy are now outweighing the benefits. I mean, what's the point of having invested five and a half years plus another year of lobbying by the Obama administration to complete this multilateral trade agreement that is now going to go nowhere, because they couldn't get the political capital to make it happen. So I think that's a good example of how we really desperately need to figure out ways to get more participation in the process earlier. Quentin, thoughts on striking this balance? Yeah, I just wanted to add a point here, which is, so a lot of the elements of modern trade agreements are quasi-legislative. And I think that the notion that underlies the idea that you should be able to do this in secret is that it's not a policymaking process, right? That the trade negotiators are merely exporting U.S. law or there is a clear set of marching orders or a clear set of U.S. government interests. And I think for most parts of these complicated trade agreements, that's a premise that doesn't add up. It may add up for some tariff issues, where there's a zero-sum game and we're just trying to sort of win a very narrow argument. But most of these questions of how we're going to determine, say, copyright policy and how that's going to affect the development of the Internet internationally, these are essentially the kinds of policy questions for which in the legislative process and in the regulatory process we have mechanisms for weighing policy tradeoffs. Within the USTR and within the two mechanisms for accountability, so there's one internal to the U.S. government and then there's one internal to the sort of stakeholder communities, they are not good proxies for the kinds of deliberative processes the democracy insists upon for norm development. And so my concern about doing that in secret is partially about accountability because if you don't have the right sort of transparency provisions then insiders get access and they influence the process. But it's also about good norm development, which requires the kind of dialogue that is best done in public. And actually as to the norm development aspects of trade agreements, actually don't see it as particularly chaotic if that were all done in public. If we were to say this is what the U.S. government position is on X and the Chileans disagree and they can say so and the interest groups can say so and we can fight it out and if it turns out that the public disagrees with what the trade negotiators are saying then they can vote them out of the office. But that would be to me the better way to develop norms as opposed to the sort of narrower questions of a particular subsidy for an agricultural product. Richard, do you think there was something unique to the commission process that you were involved in? A little bit. Let me make something clear. I'm not, this is not my air scholarship, so I'm not going to claim that I know where to strike the balance. I just want people to think a little more clearly about the cost of disclosure. In particular, the fact that in my own world, writing is so unbelievably important. I just don't believe in serious decision-making by talking. I think at some point you need to see how it writes and think about it in a really careful, again, disciplined way. And I just don't think the human ear works that way. I don't think the mouth works that way. It leads to very impulsive, quick decision-making and more unintended consequences than result from actually putting things and debating them and looking at people and trying to figure it out. It's what you do in your mind. It's even for myself to write it to myself to put it down and see it, but it's certainly how any kind of organization works effectively. And what disclosure laws do is unfortunately, because they have you disclose what's in writing and not what's in your head, it puts a cost to putting in writing. I found writing was so important to me at the commission, I wrote anyway. And it drove people crazy. I'd write to the White House, it drove them crazy. I'd write to the Department of Energy, I'd write to the Office of Ethics of White House, it drove them crazy. Because I'm going to write out my memo. I'm going to say, here are my reasons why. You tell me why I'm wrong. You write back and tell me what it is, why I'm wrong. And no one ever put a thing in writing. And so what I actually know is you also have to have laws which actually reflect human nature and human behavior. And what I learned in my experience is most people then won't write. So you can talk about how they'll do it, they won't do it. And so we actually have our much poorer decisions. And it's hard to say what the consequence is because you don't know what the decision would have been. But in my experience, I think we have a serious cost to thoughtful decision-making. The word deliberative exemption, yeah. But I can tell you, the way it's been interpreted, the way it's been applied, lots and lots of things that we would think were deliberative are coming out. It's the way the law has evolved over the years. It's the way it's been interpreted. The Office of Ethics, the Office of the Disclosure, they're very risk-averse. They don't want to take any chances. And so as a result, everyone, whatever the law might be, everyone is far away from that border as a practitioner. So I think the costs are quite significant. And again, obviously the benefits are huge. You don't want a government which has no transparency, no disclosure. We held meetings. We held public meetings. Every single month, day-long meetings, we debated and discussed things. But we needed some time to ourselves, too. And I thought that things worked out. I think the short answer is a presidential commission like mine shouldn't be a FACA. And that's what I would tell the White House. Some things should be, some things shouldn't be. I thought it was a categorical mistake by the White House to have a presidential investigation committee be a FACA. Because when they had last had them, which was back in basically Three Mile Island in the 1970s and the Space Challenger, the disclosure laws hadn't evolved to an aggressive point when it made a big difference. But now it did. So we should have been a FACA. And that would be a quick solution to my problem. But what I saw was more a systemic problem throughout the government than just my own particular commission. This is the first time I've ever heard anybody criticize the government for not having it off my mouse. Amy, I'd love to pick up maybe thinking about sort of the process and platform piece. And Quentin, this came up, too, in your remarks. It seems to me like there are ways to prospectively think about freedom of information by building architecting systems in ways that make information more readily available. So we don't have years and years and years of delays to get what seemed like relatively straightforward sets of records. And then there's the sort of the retroactive, I need the records from 5, 10 years ago. What's going on in government now to try and kind of deal with that prospect of these? So you're absolutely right that if you build systems in a way that makes information easier to make public, then FOIA is less of a problem. But agencies are locked into ways of doing things. I think that as there's definitely been a push towards as agencies put new systems into place or upgrade old systems, as part of the open government initiative, as part of the open government work that's going on in all the agencies, agencies are rethinking how they're storing information, how they're collecting information, and how to make that all available. Because when agencies first began collecting information, they were only thinking about their use of it. Because agencies are mission oriented, they want to do whatever it is, they want to provide healthcare, they want to serve veterans, that's their job. The goal of the open government, the president's open government directive was to tie openness and accountability into the agency's missions so that when the agency begins thinking about, you know, I need to collect information, they are also thinking about how do I eventually make this information public. It's a very long process, though. I think the president himself has said something about, you know, when you're turning government, it's not a speedboat, it's a tanker. The former ethics are Norm Eisen, actually, he went a step farther from the tanker and he called it an entire armada of boats that you have to turn. So change in government is very slow. But I think that the work that agencies have done tying openness and accountability into their mission is ultimately going to have some payoffs in that end. I just want to make a plug for two innovative models for trying to make this a little bit better. And the first is what's called the U.S. Digital Service. This was an idea. So when Obama came into office, he created the first U.S. CTO, chief technology officer. And out of that office emerged an idea of the U.S. Digital Service. And the idea was a very kind of Silicon Valley heavy idea of sort of hacking government from inside, you know, from inside. And there have been a bunch of people that have come from outside government with technical skills to understand data systems that have been embedded within government agencies with the goal of moving them into the 21st century of taking some of this data, making it available. And I agree with the premise that if we can do a better job of making these data available to the public, they may not have to ask for it in the same ways and the burden may be decreased significantly. That's a long and difficult process. The government is very antiquated in terms of its record-keeping systems. But it's a really important process and it's something that can only be done by hacking it within with the skills and also with political support inside agencies. It's always much easier to do nothing and breaking that inertia is very hard. The other process I want to plug is the Commission on Evidence-Based Policy. The Census Bureau is going to be the sort of hub for a series of recommendations to Congress over the next 18 months about ways of increasing the public's access to records that may inform government decision making or other social policies. And there the real issue is scholarly access to data that may be even more complicated, may have some privacy or security concerns, and also problems of linking data sets. So where you want records not just from one agency, but records about a particular individual that may be housed in multiple places. That's a really important effort, and it's an effort where there may be actually some potential for bipartisan cooperation because Speaker Ryan and President Obama were both on the same page. And so there's some reason for optimism that that might continue. Chris, just one quick comment. Make sure that I didn't overstate one thing. And that is I think actually the written, the spoken word is very important, but it has to be based first upon the written. If you have spoken by itself, it doesn't work. If you have written by itself, it doesn't work. You need a very intense written, and then you all get together and go over and debate back and forth. The other thing is I spent a lot of time in the archives. I love archives. I spend a lot of time, I give it, I do FRI requests. I spend a lot of time in the National Archives. I'll tell you one thing I'm a little worried about now is I want to see those written records when those things come out. You know, as often do, I'm looking at things that are 10 and 20, 30 years old. I go through a lot of stuff in the manuscript room at the Library of Congress and the National Archives and the old boxes, balling Supreme Court records. And my worry is if people aren't going to still put things in writing, and they put lots in writing, but the really tough ones in writing, the historians aren't going to see it. I think you're chasing away a lot of things away from written records. And 10, 20, 30 years from now, I think our historians, when they go into the archives, when they go into the Library of Congress manuscript, they're not going to see those written decision-making documents because they're not going to be there. I'd love to open it up to the room. We've got 10, 15 minutes for questions. My colleague, Dan, will play Phil Donahue and run around and hand the mic around. No question over here. Hi. Fascinating stuff. I have, like I guess, a follow-up question about the technology that you see that actually has been making things more efficient. And specifically, what I'm interested in, in my research as a fellow here at Harvard, has to do with the digital materiality of FOIA when you receive them as a response. So, for instance, pretty much like, I know you're incredibly lucky if you get a PDF back that actually has, you know, text embedded in it so you can then do advanced searching, you know, natural language processing, doing whatever you need to do in order to make good use of the vast amount of data that you get back. So, I'm wondering what you guys think about that. Amy, maybe your best position for that one? So, I think that there are a couple of reasons why you get back bad PDFs from FOIA offices. One is that people who have worked in FOIA offices like paper, fair paper-based people. That is just how they think. The other part of it, though, is that when you redact information from a document, you're trying to destroy that information so that somebody can't then come back and take your redaction off. So, the tool itself actually makes the record not friendly. And that's just something that agencies are going to have to continue to deal with with the new policy that I was talking about earlier, where more records that are released under FOIA are going to be placed online. If an agency is going to place a record online, it has to meet certain accessibility standards. So, the document has to be OCRed. It has to be tagged so that readers for blind people can actually understand the document. So, agencies are going to have to start doing that to the records that they release and posting them online. So, hopefully, it's an issue that will work itself out a little bit as this policy continues to go forward. But there is a real cost to that, too. You have to manually remediate those documents. And it is a process much like FOIA that is very labor-intensive and time-consuming. And when you tell a FOIA office that it now needs to remediate and post records, well, now it has less time to process documents. So, I think hopefully you're going to see some improvement. But as with everything that we've talked about today, we have to recognize that there are both benefits and costs. Other questions? Hi. So, as an investigative reporter, I use FOIA a lot in what I think the government agencies consider to be an adversarial approach, to put it lightly. And, Amy, I think that in certain instances, I think that government agencies might consider your office to be adversarial. I know that the inspector generals also are having a lot of difficulty at the federal level in getting information even out of their own departments, particularly the Justice Department, to get information out of the FBI is the one that I've been following most closely. So, how do we build, as Quentin said, the political will or the internal will within the agencies to see disclosure as part of their mission, and not just the output, not just Department of Energy fixing energy policy, but disclosure as part of that mission of energy policymaking. How do we make that self-reinforcing if there's a quick fix? There are no quick fixes in government. I think that the work began in 2007 when Congress amended the statute to create my office. We do, we are mediation services as a non-exclusive alternative to litigation, and, you know, we stood up, we were created in 2007, stood up in 2009, and we still only have seven people working in our office, and that is to serve all 100 agencies that process FOIA requests. So, it's slow going. The Congress also codified the creation of FOIA public liaisons, and these are people within agencies who are tasked under the law with also resolving disputes before they have to go into a lawsuit. There is a lot of work to do on training people, on how to be more friendly. I think that when you're inside, I was outside of government for a long time. I was a FOIA requester, and when I used to go speak to government agencies, I would say, hi, my name is Amy Bennett. I'm a FOIA requester. I promise I don't bite that hard. They would sometimes laugh at that. Sometimes not, but it's just something that takes time, and I think that there are people who are serious about making it a less adversarial process, though, and I'm hopeful that that will continue to be the trend that we see over the next couple of years. One of the things I noticed when I came in to the federal government in early 2009 at the beginning of the Obama administration, one of the things that I learned relatively quickly was how culturally different political appointees are from career appointees. So, the President and the campaign in the early phases of the administration said, you know, we're going to make this the most transparent administration in history, and I think that he did a very good job of getting senior political appointees on the sort of same page about that, but it's very difficult when you come in as a new political team to change the culture of a massive agency. So, President elect Trump is going to appoint about 4,000 political appointees, of which maybe 1,500 have sort of real decision-making ability, and they will work within a federal government that has, you know, somewhere around 3 or 4 million employees. And so, what ends up happening is that it's very difficult for political appointees in a sort of top-down manner to sort of decide, okay, transparency is a priority, everybody change. It takes a really long time for that decision to sort of filter its way through and actually kind of change the culture. To Amy's point about sort of moving in Armada, at the time that felt to me like a really difficult thing because I was one of the political appointees that was trying to move Armada away from the last set of marching orders, this week I feel a little bit differently. So, sometimes there are trade-offs in terms of the ways in which this dynamic between the politicals and the career appointees, the career professionals work, but I think that that's part of your challenge. If the sort of rank and file or the sort of middle managers within the culture of an agency feel like they want to push back, it is very hard for a new secretary and his or her team to say, okay, now we're going to lean into this. It just doesn't really work that way. The only thing I would add is, and this is to, I think Richard's broader point, which is I think really important, is there's a difference between pre-decisional and the outcome. And at the time there has to be some level, I mean this is kind of a broader social problem, institutional problem that we have now in this country and in many countries around the world is that lack of trust in our appointed or elected officials or the institutions or the people that are part of those institutions. And so at some point, I think there does have to be that we are going to, you know, these people are put in place to do a job and we trust them to do that job and then we want to be able to kind of look at what happened after. But in that pre-decisional process, without giving people the space to negotiate or produce an investigative report, it becomes very difficult and does have a chilling effect on producing good outcomes, which we also still want. Trade is a little bit different because the process lasts a very long time, is dynamic, involves a lot of back and forth between other countries. So it's necessary to have more people involved and we do. I mean that's what the advisory committees are there for. There are 700 private sector people that get involved in addition to the several dozen negotiators that we have negotiating. That process certainly needs to be updated and modernized and there are a lot of ways that we can talk about doing that. But I think the broader point is at some level we shouldn't want transparency to become weaponized to an extent where it prevents people from doing their jobs. And on the other hand, I think we need to recognize that it's an essential component of building public trust, you know, in our present day with all of the tools that we have available and with all of the access to information that people are accustomed to enjoying. Maybe one, we have time for one more question and then we'll take a short break. Great. So I want to actually stay on this predecisional point for a second longer and go back, Richard, to your question about sort of can we find a way to get it right because I think everyone in the room would agree that we want decisions to be the best decisions possible and we want a record of the process of those decisions of the future. So we want writing in general. And, you know, as I understand it, and there are several better FOIA experts in the room right now than me, the deliberative process privilege when it's properly invoked is quite powerful because it basically all you have to show is that you are a government agency and you're in the middle of a deliberation. And then you really, Exemption 5 will keep all of that out for requests. The problem with it, if you will, is that it goes away as soon as the decision is made. So it is purely predecisional. Then of course there's other stuff, you know, if it was privilege communications and things like that. But is the problem really that people are afraid of putting stuff in writing because it'll interfere with the decision process? Or is the problem that they will then get subject to a lot more scrutiny immediately after the decision is made when people are going through their notes and records and saying, oh, why did you even think that was a good idea in the first place? Yeah. I think it was a little of both and mostly the former. In other words, mostly the fact that they were worried that later on, especially in my investigative context, when it's going to be picked apart and it's going to be used to sort of undermine and peach the fact that you actually were tentative and thinking and debating and discussing and you saw some weaknesses and you put them out because you want to put them out to think it through, that that's all going to be used as a way to attack the report, the fact there was a robust debate and discussion. So I think it's primarily that. I also found in my case that, because I was told that if I put out those things to all the commissioners, that would be like a meeting and at that point, if I had four of them all get together and see it, that'd be a meeting and a debate and discuss it and that was a deliberative draft document, that would have to be in public. That any time a quorum or them got together, all I can tell you is that's what we're told by the White House, that's what we're told by the Department of Energy, that's what I was writing memos back and forth and that's what, at some point, I can't take a chance and so we're not doing it. So under FOIA, FOIA is very different than FACA. Well it's back. Yeah. So under FOIA, as long as your drafts are your drafts and they are withheld even after the decision is made. In fact they can be up until the President, until the FOIA Improvement Act of 2016, they could, your drafts would have been held indefinitely as long as the agency wanted to withhold them. The new law put in a time limit of 25 years and that was in part because we saw instances of, you know, there were 35-year-old drafts that the CIA, not to name names, except that I did, was refusing to release and Congress decided that that was too much protection for deliberative process. But I know FACA is very different, but in FOIA there are strong protections for deliberative process, for drafts for deliberative process that extend beyond when the decision is made for the draft material. I think part of the problem is gotcha politics. So I was never a big fan of, you know, George W. Bush, but I always felt bad when the media would follow him around and if he misspoke even a tiny little bit, it would be on the evening news in this loop about like what an idiot that guy is. He can't even get his grammar right. And I always used to think, you know, if somebody followed me around with a tape recorder, they'd catch me saying stupid stuff too. And I think the problem in the digital age of the notion that everything that you create in your professional life is subject to the kind of scrutiny that exists in the political process right now, where it can be taken out of context and sort of weaponized for you, does have a chilling impact on what you're likely to put in writing, whether or not you're in the middle of making a decision or whether you think that it's something that's going to come to light soon afterwards. And that also extends to senior government officials wanting the people around them to be careful right. So the press office would have your head if you're a senior policy person, if you put in writing something that's going to make the secretary look bad a week after the decision was made and it came out right. And that's just the reality of the media and political environment that we live in. But it is a reality that if you don't make some allowance for that in the way that you deal with these records is going to force people just to do it in orally. That's a great point because it's actually some extent some of the chilling effect right now isn't even necessarily because of FOIA or FACA. It's just because, right, it's you.