 All right, good afternoon everyone. Welcome. Thank you all for joining us. At the National Archives today to celebrate Sunshine Week 2019. I am Alina Simo, the Director of the Office of Government Information Services, OGIS, the Federal FOIA ombudsman, part of the National Archives and Records Administration. This is my third opportunity to serve as MC of the Sunshine Week event in this wonderful William G. McCallan Theater. I'm not sure if I've been doing a good job, but I just keep inviting myself back. Seems to be working. We're happy to be joined by many of you in person today. Thank you for coming. And we also welcome all of those who are watching the live webcast. And we have put together a very exciting afternoon. I'm particularly pleased that we have been able to bring together representatives from all three branches of government, Judicial, Legislative, and Executive. This year, in addition to our celebration of open government and transparency, I am excited that we are celebrating a bit early the 10-year anniversary of OGIS. 10 years ago in the fall of 2009, OGIS first opened its doors to help FOIA requesters and agencies navigate the FOIA process and help improve it along the way. So I looked on the internet to see what the 10th anniversary gift is. Tin was the answer that came up the most often. Tin I learned represents flexibility and durability. I thought those were two particularly apt words to describe OGIS. The other thing I learned is that the modern 10-year anniversary gift is diamond jewelry. I like the sound of that so much more. To make sure we have a time for all of our great speakers today, we have on our agenda, I'm going to move into my introduction of the archivist of the United States who will welcome you and officially kick off our program today. David Ferriero was confirmed as the 10th archivist of the United States on November 6, 2009. Prior to his confirmation as archivist, David served as the Andrew W. Mellon director of the New York Public Libraries and held top positions at two of the nation's major academic libraries, the Massachusetts Institute of Technology in Cambridge, Massachusetts and Duke University in Durham, North Carolina. He earned his Bachelor of Arts and Master of Arts degrees in English Literature for Northeastern University in Boston and a Master of Arts degree from the Simmons College of Library and Information Science also in Boston. Since early in his tenure, David has committed the National Archives to the principles of open government, transparency, participation and collaboration, which are the very values we are celebrating today. David has also been a constant supporter of OGIS and the work that we do and we are very grateful for sustained support and leadership. Please join me in welcoming the archivist of the United States, David Ferriero, to the stage to begin today's program. So good afternoon and welcome to my house. It's nice to have you with us, whether you're here physically in the building or watching us virtually. So Sunshine Week, you know, is a national initiative created by the American Society of News Editors to bring attention to the importance of access to public records in our democracy. And I can't think of a better place to be celebrating Sunshine Week than here at the National Archives because we not only contribute but serve as a leader in open government. As a nation's record keeper, our holding span, our great nation's history and capture its experiences and soul. Among the 15 billion textual records and 43 million photographs, many already online with more available digitally every day, are the oaths of allegiance signed by George Washington and his troops at Valley Forge, the Emancipation Proclamation, records pertaining to American prisoners of war and missing in action from the Vietnam War era, as well as the tweets that are being created as I am speaking in the White House. And of course, our Charters of Freedom, the founding documents of the United States, the Declaration of Independence, the Constitution, and the Bill of Rights displayed upstairs in the Rotunda. Our employees work hard at making access happen during Sunshine Week as well as the other 51 weeks of the year. Make access happen, in fact, is one of NARA's four strategic goals and the topic of much of what will be discussed this afternoon. We have an interesting and thought-provoking program for you today, and I'm particularly pleased to welcome representatives from all three branches of our government. Chief Judge Beryl Howell of the U.S. District Court for the District of Columbia has graciously agreed to join me in a conversation, and you all are invited to eavesdrop. Senator John Cornyn of Texas and Patrick Leahy of Vermont live on opposite sides of the political fence, but like good neighbors come together every now and then. Despite their political differences, they both champion FOIA and have worked across the aisle to improve the statute and FOIA administration. Senator Cornyn will join us momentarily, and Senator Leahy will join us later this afternoon. Today's program has been organized by NARA's Office of Government Information Services, the Freedom of Information Act ombudsman, and later this year, as Alina mentioned, OGIS will be celebrating its 10th anniversary. In the last decade, the office has done much to help improve the administration of FOIA by assisting requesters in more than 15,000 cases, collaborating with agencies to comply with FOIA, and recommending improvements to the administration of FOIA. I'm particularly pleased to welcome back OGIS's first director, Miriam Nisbit, who will join OGIS's current director, Alina Simo, and representatives from the legislative and judicial branches, for a look at the ombudsman past, present, and future. We'll also be looking into the future of electronic record keeping with Crow, our chief records officer, Lawrence Brewer, and a panel of experts who will share their insights into records management, which is at the heart of what we do here at the National Archives. We're particularly proud of our work at modernizing records management guidance. Proper records management is vital to both the success of our mission to provide public access to our holdings and to the success of agencies in fulfilling their duties under the Freedom of Information Act. A few words now about Senator John Cornyn of Texas. Before being elected to the U.S. Senate in 2002, Senator Cornyn had a long and distinguished career as a judge, a champion of public records. He served as a Texas District Judge and Associate Justice of the Texas Supreme Court and as Texas Attorney General. During his three years as Texas Attorney General, the office relaunched open records enforcement after a period of dormancy and established a toll-free open records hotline. It also issued more than 20,000 informal letters in response to questions from Texas government officials and citizens. Among information he ruled must be released to the public, cost reports submitted to the Texas Department of Human Services by nursing facilities with Medicaid contracts and a computer-generated map of the port of Corpus Christi. Since his election to the U.S. Senate, Senator Cornyn cosponsored with Senator Patrick Leahy of Vermont FOIA Amendments that in 2007 presented a contrast to the adversarial process of litigation by introducing dispute resolution to the FOIA process. The Openness promotes effectiveness in National Government, Open Government Act of 2007 created OGIS which opened its doors here at the National Archives in 2009. Senator Cornyn and Leahy joined forces again to cosponsor the FOIA Improvement Act of 2016 which firmly will dispute resolution into the fabric of FOIA process creating multiple opportunities for requesters to seek assistance from both agency FOIA professionals and OGIS. So with that, let me please join me in welcoming Senator John Cornyn to the podium. Good afternoon. Thank you, David, for that introduction and it's good to be with all of you celebrating Sunshine Week. I want to thank Alina Simo for and everybody else at OGIS for working so hard to organize today's event and of course everybody here with the National Archives. It's remarkable to me every time I'm here to consider the history that lives within these walls but also the challenges that's going to, that faces current and future archivists when it comes to just the different ways we communicate now these days than we ever have before and look forward to the National Archives of Twitter accounts from the current and future presidents. Of course the founding documents that are here that millions of Americans come to see each year and those that declared our independence as a nation, those that defined the framework of our government and those that guarantee the rights of every person in this country. There are also the stories of countless brave Americans. If it weren't for a generation of dedicated archivists, those stories would have been lost. Their photos, of course, of America's greatest generation preparing to go to battle which remind us all of the sacrifices of the men and women who serve our nation in uniform to preserve our very freedoms that we celebrate even today. This building signifies an idea that we hold dearly as Americans that this is our nation and our history and you can't separate the two. These valuable documents and stories don't belong to any one person, they belong to all of us. Winston Churchill, for example, once said the Declaration of Independence is not only an American document. So not only do these documents not belong only to us or to the archives, they belong to the world. They're just part of our memory, our collective memory as a nation and part of the fabric that binds us together. That principle doesn't just apply to documents of historical significance, but to everyday functions of government as well because you can never tell when those everyday functions of government will gain historical significance. Essential to safeguarding our right to access information is, of course, the Freedom of Information Act. Not only does it keep citizens in the know, but it also helps government accountable. The Freedom of Information Act serves not as a weapon but as a shield, protecting the American people from a government when it abuses power or attempts to conceal wrong doing. Since FOIA was first enacted, we've seen a now familiar tug of war during both Democratic and Republican administrations, with some favoring more openness and others favoring less. As Senator Leahy, who I'll talk a little bit more about in just a moment and who you've heard is sort of he and I are the odd couple on FOIA, I said, of course, politicians are used to trumpeting our successes and we're less enthusiastic about trumpeting our failures, thus the importance of the Freedom of Information Act so that the full record and complete record can be disclosed to the American people and people with the right to know. Of course, we can't allow the balance to tilt away from transparency. Each of us in this room continue to fight for a government that views sharing information as a responsibility, not a burden. That really represents a culture change here in Washington, D.C. When I came from Texas, I was familiar with a system that presumed the government record was open unless proven to the contrary. Here in Washington, it seemed to me that too many government agencies considered this information theirs and they would fight long and hard to prevent anybody from getting access to the information. Given the non-presumption of openness, which fortunately we were able to change, it made it much easier to not disclose that information or produce that record. I've always been proud of my state for having one of the strongest and most robust Freedom of Information laws in the country and so when I came to Washington having been Attorney General of Texas and having enforced those laws, I wanted to bring that same sense of openness here to the national level as well. During my time in the Senate, I made government transparency a priority and pressed for more openness in federal government through legislation. As I said and as David mentioned over the last decade or so, I've worked with my friend and colleague Senator Leahy, who I know you'll be hearing more from this afternoon, on a number of bills to improve government transparency. As we have, as I alluded a moment ago, I'll say again this is not a partisan issue, which is why you have a conservative Republican and a liberal Democrat finding common cause on this issue. A transparent government is vital to self-government. How can we govern ourselves unless we have the basic information of what government is doing and not doing so we can ask for correction or even replace the officials who are administering the laws or passing those laws? My bipartisan efforts with Senator Leahy began with the Open Government Act about a decade ago. Not only did this include major reforms to FOIA, it also established the Office of Government Information Services. Building an office from the ground up was no small task, I'm confident I know that, especially one charged with a mission as broad and as critical as resolving disputes between FOIA requesters and government agencies. My interest in helping to establish this office and this function really grew out of my role, again as Attorney General back in the state, where frequently you had people requesting documents that were unnecessarily overbroad or maybe they were requesting documents which weren't really what they were trying to get at. So having some intermediary trying to work with the requester and the responding agency was very efficient and effective in getting not only getting the citizen the documents that they wanted but also saving a lot of time and effort and even litigation expenses. Thinking back to the vision that we had for OGIS more than a decade ago, it's remarkable that this year the office will celebrate its 10th anniversary. In the 2019 annual report to Congress that was just released I was amazed to see that since OGIS opened its doors it has responded to more than 15,000 requests for assistance with nearly a third of those happening last fiscal year alone. Since the years in the years since OGIS was stood up its small but mighty team has done a tremendous amount of work to strengthen FOIA policies throughout the government. In 2018 OGIS released its first advisory opinion, just one example of how the office continues to improve and refine its role. I have no doubt that in the coming years its impact will continue to grow as departments and agencies begin to rely more heavily on the valuable services that it provides. Since the passage of the Open Government Act Senator Leahy and I have worked together on a number of other bills and initiatives big and small to ensure that government openness is strengthened. The most significant I believe is the FOIA Improvement Act which became law in 2016. This required federal agencies to operate under that presumption of openness that I mentioned a moment ago which I believe is so important when considering whether or not to release government information. It also aimed to reduce the overuse of exemptions to withhold information from the public and minimize the bureaucracy that a FOIA requester would have to navigate by requiring the creation of a single portal through which individuals can submit a request to any agency. On top of that this legislation required agencies proactively to disclose documents that are likely to be of public interest in order to increase access to government documents outside the often onerous FOIA request process. In other words it built upon what our founding fathers recognized hundreds of years ago that a truly democratic system depends on an informed citizenry to hold their leaders accountable, their government leaders accountable. And while this was a big step in improving government accountability there's more work to be done to be sure and I look for new opportunities to work to improve the FOIA process and to ensure that it remains robust. Just last week I joined with a number of my colleagues in a letter to Acting Interior Secretary David Bernhardt regarding proposed changes to that department's FOIA procedures. These changes would restrict access to the department's records and make the process more confusing and it's complicated for individuals submitting requests and would be a step backwards in our overall efforts. We all are familiar with Justice Brandeis' famous axiom that sunlight is the best disinfectant. Well it was true then and it's still true today and that's why Congress has and will continue to enact legislation that promotes accountability and transparency in the government so that good leadership and good governance can flourish. I want to thank you all for the important work you do year round to bring this issue out of the shadows and into the sunlight and I for one will continue to work with anybody to help advocate policies in the Senate that will build for a more transparent government and I encourage you to share your thoughts with us about how we can do just that. I hope this sunshine week we can all grow even more committed to the mission of open government that serves its people and not itself. Thank you for having me. Thank you again Senator Cornyn for your remarks today. We're very grateful that he was able to come and join us and share his insights about FOIA and open government. So to continue today's celebration of open government I am excited to introduce the next event on our agenda. It is my great pleasure to introduce to all of you Barrow Howell the Chief Judge of the U.S. District Court for the District of Columbia who will be conversing with the archivist on a variety of topics today related to open government, transparency, and the legal landscape. Judge Howell received her BA with honors and philosophy for Bryn Mark College and her JD from Columbia University School of Law where she was a Harlan Fisk stone scholar. She was appointed to the district court bench in 2010 but before joining the judiciary Judge Howell had a long and distinguished career in the other two branches of government and the executive branch is a federal criminal prosecutor having served as Deputy Chief of the Narcotics Section and an Assistant United States Attorney in the U.S. Attorney's Office for the Eastern District of New York and in the legislative branch a staff and later general counsel of the Senate Judiciary Committee. Her perspective of open government from the vantage point of having served in all three branches of government will no doubt inform today's conversation. Please join me in welcoming Chief Judge Howell and the archivist. Totally unrehearsed. Unstaged. So thank you for joining us. Yes, well thank you for having me. So we have a set of questions that the judge has agreed to talk about with us but one that you didn't review that I'm going to start with is why did you accept our invitation? Well that's an easy softball because I think it's incredibly appropriate to be celebrating Sunshine Week and the Freedom of Information Act which has its goal to the disclosure of government information at a place that's responsible for preserving it. So perhaps someday it might be disclosed if it hasn't been already so I thought it was very fitting to start Sunshine Week here. And we appreciate you doing that for us. So you've as Alina cited you've had experience in all three branches of our government and what has that experience how has that experience influenced what you do today? Well I saw my first FOIA request on the receiving end of one when I was a federal prosecutor in a very busy prosecutor office and my mission was to investigate and prosecute crimes but I had to stop what I was doing in order to respond to some FOIA requests and I can't say that I had the best attitude about that. But I have to say that I think my attitude about the FOIA evolved over time and so that I understood that in every government official no matter what the primary mission might be you had a dual mission and the dual mission was to provide responses to FOIA requests because Sunshine and revealing and disclosing appropriately government records under the FOIA provides the transparency that engenders confidence in government functions. So that was that was the beginning of the evolution of my thinking about the FOIA which continued to evolve and I learned a lot from my boss on the hill Patrick Lehi who has always been a Senator Cornyn said one of the big boosters of the freedom of information act and all that it means as a bulwark in our democracy and one of the first tasks he gave to me when I joined his staff was to help get passage of the electronic FOIA amendments of 1996 and through that process I spent a lot of time talking to the FOIA requester community journalists and also agency officials who were responsible for responding to those FOIA requests and understanding what some of the problems were in processing and the improvements that were needed in the electronic FOIA amendments and I see some people in the audience who I worked with all those many many years ago and so I think that it's certainly true of the of the freedom of information act that once you understand its importance you stick with it for years and years and so it's always nice to come to FOIA events because I never failed to see people I've known from decades past I think in my work both responding to the FOIA as a as a federal prosecutor working on the policy arena on the hill with the FOIA I think all of those experiences have helped inform what I do as a judge where as a judge I'm not looking at broader policy or oversight issues on the FOIA but I am looking at specific requests and my job is to ensure that the agency is conducting adequate searches and applying the FOIA and the FOIA requirements reasonably and and we do that as judges typically in FOIA cases by examining the specificity the reasoning and declarations provided by FOIA personnel in order to assess how well they've complied with the FOIA FOIA requirements it's a different task so you you raise this so I I'm gonna follow up on even though we didn't talk about this but you have a lot of people here who are involved in FOIA from a lot of different aspects and you you raise the issue of attitude what advice would you give these folks in terms of helping people develop the attitude well I do think that FOIA officers within agencies you know have a you know have a task of talking to all of the agency personnel that they must go to to help conduct the searches and retrieve documents that then have to be reviewed by the FOIA personnel I do think that FOIA officers and personnel within every agency are the unsung heroes of the Freedom of Information Act they have a hard job they've got to pound down doors chase down people to get them to help them the FOIA officers respond to FOIA requests and they aren't told thank you very much by certainly from people within the agency they need to have the support of the leadership within each agency because that sets the tone at the top about the importance of open government and the transparency that FOIA is one tool to you know provide that transparency and the other one is good records management certainly good records management which is the backbone of open government of course of course we haven't said that recently but that's how do you see your current role as chief judge of this court of the district court in the District of Columbia um well um you know being chief uh sounds fancy and great um but um being chief doesn't mean that I can issue orders and anything other than my individual cases I cannot order my uh colleagues around and in fact it's one of those um fundamental virtues of our federal judiciary that chief judges have zero power over their colleagues seems to bother you no no not at all not at all um I think um you know it's it's really important that every judge on my court is an independent article three judge makes his or her decisions and it there it isn't there I have no ability to punish them or do anything to them and when they're exercising their own decision but really chief judges do have administrative and statutory duties within each court um I view myself as sort of the chairman of the board of the chief operating officer for the components of the court um including the clerk's office uh the probation office the court reporters uh generally report to me um and it is one of the delights of being the chief judge that I get to work with these highly skilled uh committed dedicated judiciary staff um within the each court um you know and and making sure that the court works efficiently uh and is welcoming to the public uh and uh in providing providing justice as chief I I think um since we're talking about transparency um I I have to say that one of the things that I have tried to do is promote some additional transparency um in in the court um to the extent that I do have some powers to do so as the chief judge one way for example is um there are a lot of customary practices within the court that aren't reflected transparently in our rules of practice um and I've spent a lot of time as in my three years as chief judge updating our rules so that people uh know some of my duties and some of the things that if it's filed in court that it will come to me or be randomly assigned um so that it's that's more transparent um another thing that I'm actually quite proud of um is every court in the country has very significant um sealed dockets uh they're sealed for good reason because they involve um largely government surveillance applications and ongoing criminal investigations but then once the criminal investigation is done those sealed dockets remain sealed um and working with the us attorney's office and our clerk's office uh we were able to come up with a system whereby every six months we disclose limited docket information about all of the sealed applications in dc I've gone back about 10 years at this point um and I think that that's where the first court in the country to do it the way we're doing it um and um and I'm I'm very proud of that initiative the docket information um one of the things I did working with the us attorney's office and components at the department of justice which has also been a partner in this effort um is to work out uh uniform templates for the applications that there is a lot of information embedded in the caption about uh the offense under investigation the specific surveillance tool or statutory authority that's being invoked of uh and the target the number of email addresses for example or mobile phones or that kind of thing that are the subject matter of the surveillance application which is all embedded in the template and so in those lists that we're producing of the sealed dockets people can get a sense of what is the judiciary doing in terms of numbers and types of investigations um that make up our our sealed docket and where are those uh they're available on our website which is uh I don't know I don't I don't actually know our website address but you just look up district court from the district of Columbia you can you can find it use google no advertisements please but you also get to do naturalization ceremonies you didn't mention that yes well that's usually when I'm here at the National Archives I'm I'm usually here to swear in new citizens in the rotunda and it's one of the more magical amazing experiences I get to have as chief judge so say a few that is one of the a lot of people don't know this this is something I learned when I was chief judge um that that um uh presiding over naturalization ceremonies and naturalizing new US citizens is something that district judges are allowed to do but not circuit judges for circuit judges to be able to do that we have to get them designated as a district court judge so it's a it's a fairly complicated process and that's I don't know whether it was an oversight in the statute that they did that and just designated district court judges are not sort of an interesting fun fact so say a few words about the value of an independent judiciary well you don't have to say very much about the value of an independent judiciary I think simply put it is to enforce and uphold the rule of law but that has repercussions all the way down the system particularly in our in our in our system of government with a limited with limited government um one of the important things that the judiciary federal judiciary does is that uh is the final arbiter and what the meaning of the constitution is and that is important to make sure that our co-equal branches of government stay within their designated powers within um within our constitution the important part of upholding the rule of law also is to protect the rights of individuals even if uh on the other side of the v the other side of the lawsuit is a government agency and to do that in a fair and impartial manner without fear of reprisal or without concern from outside influences so those are among the reasons that upholding the rule of law and enforcing the rule of law require an independent judiciary and why it is so important so um you seem to have you seem to attract FOIA cases so since 2012 you have ruled on more than 140 FOIA cases did you know that before we told you when you when I saw that in the question I thought is that right and I actually had one of my law clerks who's sitting over here in the front row to check that and since I've been on the bench it's been over 150 oh my god but but not but not um because I got on the bench and uh I was I was confirmed to have my commission signed in 2010 but I took the bench in January 2011 so it goes back one one additional year I mean the uh court in DC in our nation's capital is a very busy magnet for um FOIA cases um I all FOIA cases when they're filed are randomly assigned so all of my colleagues get the same random assignment of FOIA cases just not all landing on my desk thank goodness um and um I think you know just not to bore people with statistics but five years ago uh about five years ago FOIA cases made up only about 10 or 12 percent of the docket on the in the on my court uh they now make up almost double that uh in terms of the numbers in our docket um and uh about five years ago uh the district court for the district of Columbia handled about 50 percent of all the FOIA filings across the country amongst all the federal district courts um and we're now um uh our work on FOIA cases is about 65 percent of all the FOIA filings across the whole the whole country and the numbers have FOIA cases have more than doubled in the last five years you don't have to tell these people yes yes uh so um yes our numbers are way up I think they're independent groups that have said that the FOIA filings keep going up in our highest numbers ever we feel it in our court so when you're reviewing the facts and FOIA litigation how do you evaluate agencies um well and then also and also requesters well you know FOIA the agencies bear the burden in FOIA cases they bear the burden of showing that they conducted an adequate search for for uh responsive documents they bear the burden of of showing that they reasonably interpreted the FOIA request in terms of the scope of their search and they bear the burden of showing that they applied the FOIA uh as as required um in terms of the documents that were produced as well as the documents that were withheld under our FOIA exemption and so um we I as every other judge does we scrutinize uh those FOIA declarations very carefully um and it is a pleasure when we get very detailed well organized bond and disease that talk about all the documents that were withheld and the justifications for it that make sense and are reasonable we presume agencies act in good faith and it's only a rare FOIA case where a FOIA request or the plaintiff in the case alleges that uh there was bad faith in some form um it is a matter of uh last resort although uh to to examine the records in camera meaning in our chambers um although FOIA requesters frequently request that uh judges look at the documents in camera to do a double check um personally I do feel that it that the DC circuit has gotten it right when they've said that should be absolutely the last resort because as soon as a judge takes documents to do that double check uh in camera in chambers um it is uh distorting the advocacy process uh that and and uh basically um reducing the transparency in the judgment making and so um I am usually very reluctant to look at documents in camera and that's why even though it's a pain for everybody involved most judges send uh when the agency's justifications or declarations in describing what they've done is insufficient we send it back to the agency to do it again to have transparency in the litigation usually it's not until the third or fourth time that I finally just say send me the documents to look at in camera but that's why I mean I think some uh some uh you know FOIA requesters may think why don't they just look at them they would feel more comfortable if the judge looked at them and um this has given me an opportunity to explain why that is not that is not an option that judges embrace it's not because we are we don't want to look at the documents sometimes we're pretty curious um uh but um it's for the transparency of the litigation and on the request and on the requesters side I mean the requesters don't bear the burden um and so and from the uh operation of the FOIA statute it doesn't matter who the requester is whether the requester is a citizen a non-citizen an organization an individual or not it doesn't matter what the the purpose of the records request is unless you're dealing with some administrative matters in the operation of the FOIA in terms of expedited processing or fee waivers but otherwise the purpose of the FOIA request the identity of the requester is irrelevant to our review um but that being said uh a FOIA uh plaintiff and a FOIA requester who's a plaintiff in litigation has the same obligation and we judges have the same expectation of that plaintiff as we do of any other party in civil in civil litigation in federal court we expect them to be reasonable and for example if an agency has made an offer to produce tranches of documents on a rolling basis and the requester doesn't like the production plan we really want to hear some pretty good reasons why that's not gonna not gonna work so unreasonable FOIA requesters and litigation are just as much of a pain in the neck as unreasonable litigants in any other case and so we do expect uh civility and reasonableness uh from uh FOIA requesters who are plaintiffs in litigation so then um what are your views on whether it's appropriate for requesters to jump the line in filing a lawsuit um jumping the line okay it typically comes up when um agencies raise concerns about production schedules because of the allocation of resources within a particular agency and the agency says if we uh don't have a more flexible production schedule for this particular FOIA requester uh non-litigating FOIA requesters request will be added to a backlog um and I have to say that is a consideration that um I hear and I consider but I don't think I'm alone as a federal judge who has a responsibility not just to that particular FOIA litigation but everybody else waiting for my decision um I have to move the litigation along as expeditiously and fairly as possible and so jumping the line becomes a secondary consideration um there are a number of ways that in tools that judges have uh in every FOIA requester and agency official listening um has seen these tools uh and mechanisms that judges have invoked you know to require you know the parties and FOIA litigation to talk to each other to see if they can come up with a with a with a schedule that's kind of accommodate everybody's interests um I sometimes when I am um have an agency complaining about line jumping can ask the agency to really explain in a lot more detail how they've allocated resources to accommodate the both the litigating FOIA FOIA request and the non-litigating FOIA request but ultimately as I said line jumping concerns are secondary to me moving my docket um I failed to mention this earlier but the judge has agreed to take questions at at the end so we're going to reserve some time and there are microphones on either side so start thinking about what you want to talk about so this one I have to read because it's just so complicated um non-profit advocacy groups filing FOIA lawsuits accounted for 36 percent of all FOIA suits in fiscal year 16 um I'm sure Alina wrote this swelling to 50 percent of FOIA suits in um eight in 18 according to the FOIA project run by the by track at Syracuse University what are your views on the increase in the number of lawsuits filed by these groups on both sides of the political spectrum many of which rushed to court on day 21 and maybe using FOIA for purely political reasons your views um it shows that FOIA is alive and well and an important tool in our democracy as I said the identity of the FOIA requester is irrelevant as is the purpose of the FOIA request judges are focused on our job which is in each particular FOIA request has the agency conducted an adequate search and has the agency comply with the requirements of FOIA in both its production and its application of the exemptions um and you know I think um there are a number of ways for people to get information that they want about how federal agencies are operating um this may be a sign but that's up for that's for people with a different skill set than mine to answer um that people are feeling like they're not getting information in the myriad of other ways that people can can find out about what their government agencies are up to um so that may be a sign of that as opposed to um you know uh the FOIA the increase in FOIA requests for political purposes whatever that means um you know is some sign of uh additional uh edits to the FOIA statute being required we'll bring that up with Senator Leahy when he's here yes so from your perspective what are the biggest challenges you observe in FOIA litigation um I think based on what I hear from agencies there's a constant refrain about uh resources resource issues it's a refrain that harkens back to my days on the hill um where uh in in doing oversight of how FOIA was being implemented in federal agencies it was you know a constant concern uh whether the FOIA operations within agencies were being um starved of resources or being given adequate resources whatever that might mean um in particular agencies that also have mission critical things that they needed to fund um so resource issues continue to be something that um you know I think judges hear about in setting deadlines for uh determinations of uh responses to FOIA requests and production schedules I think another challenge um that I guess I might be partially to blame for since I did have a job at one point when I worked on the hill uh of helping to draft statutory language the FOIA is not an easy statute um and the exemptions can be sometimes dense and difficult to understand um you know I you know even sort of as fundamental and key a term is what is an agency record um can can be difficult to understand um and I mean I might you know I have a you know one personal case I can talk about involving you know the the White House um visitor logs which is one of my early cases in the FOIA where you know I look at um what agency record has meant uh in other cases and borrowed from the Privacy Act um and I looked at the White House visitor logs and saw well it's a secret service that creates them maintains them uses them secret services an agency White House visitor logs they're an agency their agency records subject to the FOIA as opposed to presidential records subject to the disclosure regime into the presidential records act well I was wrong according to the DC circuit and I was reversed and those secret service White House visitor logs were not agency records at all well um in that case the agency was right I was wrong um but it was a open question so the FOIA is not um you know is not in necessarily an easy statute and so agency personnel have to make judgment calls I think quite regularly on what the scope of exemptions are um and they do their best as do district court judges so you've opened the door about changing the legislation what other recommendation just um defining records which we have done oh I'm not recommending that the definition of agency record be defined I am so out of the business of doing policy work um I that is not my that's not my recommendation I think the courts do just fine um but um and I would I you know in terms of recommendations for changes to the FOIA um you know I don't really look at the FOIA that way anymore um I just do the best I can in interpreting it um and so I mean I do think that um Congress in looking at the FOIA shouldn't forget its oversight role and um focusing on resource allocations with within agencies to make it work um as well as it can and should um uh there's you know there there you know there are areas where FOIA is in some ways you could say sort of amended but not transparently uh because the exemption three non FOIA exemptions can be scattered throughout the rule books um and adopted by committees without the expertise that the senate and house judiciary committees have with the FOIA um and sometimes those uh non FOIA exemption three statutes can be clarifying but sometimes they can undercut the goals of of FOIA in ways that um you know are not helpful or necessary so speaking of congress um should congress be subject to FOIA yes that's a that's a that's a question with a with a long lineage um personally I think it should be um and I don't know where Senator Leahy stands on that question anymore maybe an area where we disagree actually um I don't think I don't think that the FOIA should apply to congress most of the work of congress is public already both in terms of the introduction of legislation and committee hearings and committee reports um with um uh anti-corruption reporting in terms of campaign finance contributions and financial disclosure forms there are also constitutional uh uh prerogatives that that congress has been granted in article one from the speech and debate clause to the journaling clause that expressly in the journaling clause in article one section five expressly says that congress can keep private some of its uh its proceedings in order to give uh the legislature room for deliberations in secret so um for and I do think that for accountability purposes if people are concerned about the lack of transparency about what's going on in congress um they have the ability in the voting booth to act on that so I actually don't think that FOIA has a role to play when it comes to congress how about the courts uh I for some of those same reasons I don't think that FOIA should apply uh to the courts um the you know the default uh process in the courts is public uh you know sixth amendment requires uh that there be a public trial in all criminal prosecutions and all virtually all court proceedings unless there's a very good reason that's demonstrated the default is transparency plus judges when they issue decisions they do it in a public way with all of their reasons listed for anti-corruption purposes all judges also file financial disclosure forms um so that uh people can see that in terms of accountability if people don't like the reasons they can appeal it uh to another court um and so uh I just I I don't think that the FOIA has a role to play uh when it comes to the judiciary either and as a constitutional matter um I think that uh the judicial power is well well located with an article three and that regulating records or other operations within the judiciary raises significant separation of power concerns I've never had to address it in an opinion so hopefully this will not ever come back to fight me but that would be my initial impression without a deep research or advocacy so in october new unsealed watergate special prosecutor leon jaworski's roadmap the last secret watergate document yes thank you for the archives for all of its cooperation in that matter well thank you for not that I left too much choice with the orders right it was an order so your order was issued after three plaintiffs petitioned the court to unseal the document which um still remained protected so should there be a historical exception for release of grand jury records or should grand jury proceedings once a secret remain a secret goes to your docket project um well as a general matter uh grand jury matters uh should remain secret uh both to protect the reputations of people who may have been exonerated by the grand jury protect witnesses identity for all the security issues that a grand jury's secrecy traditionally applies at the same time having a historical exception to the grand jury secrecy rule which is set out in federal criminal procedure 6e uh is uh you know jumps over uh sort of an underlying issue which is how much power to judges have inherently to disclose grand jury matters that uh in ways that are not explicitly provided under 6e which has a number of exceptions um and requires secrecy on the behalf of a number of enumerated uh participants in a grand jury proceeding judges are not included on that list this is an issue that the dc circuit is considering right now um and in a case called mckiever v sessions maybe it's mckiever v wittaker now i don't know what the current name is but it's mckiever brought by a researcher who has sought a disclosure of um grand jury materials in a murder investigation and judge lamb birth uh one of my colleagues issued a decision affirming that judges have inherent power beyond the enumerated reasons exceptions set out in rule 6e uh but declined to exercise that inherit and power inherit power and disclose the materials requested that's a matter that's now before the dc circuit uh which may resolve the issue of whether the court has inherent power which will come back to the watergate roadmap because although i disclosed huge chunks of that roadmap that had already been publicly um revealed there are chunks of the roadmap that remain sealed and that case has been stayed until i am giving guidance by the dc circuit about whether i have the inherent authority to unseal more and if so what the um considerations would be for me to exercise my inherent power to unseal more of the watergate roadmap where are we with so um let's um do two minutes on court cameras and federal courtrooms oh and then we'll go to q and a okay um so usually it's a supreme court that's talked about when cameras in the courtroom are discussed um and of course the judicial conference uh policy is that um there are there's no broadcasting um of uh court proceedings in in district court um in circuit courts uh you know the train has already left that station because in circuit courts uh they're allowing broadcasting of audio and a number of live live broadcasting of audio of circuit arguments uh the ninth circuit at least has live broadcasting of both video and audio um and uh but the ban on all broadcasting in district courts remains and in criminal cases one can understand that you wouldn't want um you know witnesses uh uh you know in the in criminal cases uh to have their names and their testimony broadcast influencing other witnesses testimony so district courts the the broadcasting ban and camera ban in district courts is understandable um because we have witnesses and we have criminal cases and in and in fact uh federal criminal procedure uh 53 bans photographs and and broadcasting uh uh in in criminal proceedings in district court I think it's overdone um we have we on district court often have oral argument in uh administrative procedure at cases uh challenging agency actions uh in FOIA cases where there are no witnesses uh and it is purely argument uh about the law and how that law applies to particular facts and I don't see any reason why the broadcasting ban in district court should apply to those kinds of proceedings um but um right now the judicial uh conference policy applies across the board there are there are some pilot programs going on in the ninth circuit in district court where they're allowing broadcasting of audio and video live and um that pilot program has been going on for a decade I don't know how the ninth circuit gets away with it but they do that's a long pilot and even after the pilot was done the judicial conference said after the pilot was done we agree we want to keep our current rule but some of those ninth circuit district courts continue to move along with the pilot so and and have it so so um there are microphones on either either side if you have a question for the for the judge and Alec you've been standing there since I announced it this is your opportunity to ask me questions well there's no uh recourse to the court so I can't jump the line I do appreciate your comments today and the National Archives for hosting this annual celebration my name is Alex Howard I've been fortunate to come back to these year after year and see you open up this house to these kinds of questions even when there's some kind sometimes meandering so I'll try to make these specific um has congress codifying the presumption of openness into the FOIA changed your jurisprudence in the years since our agency websites social media updates instant messages or private messages on apps public records subject to the FOIA and should the PACER system which I just checked out on dcd.uscourts.gov at website be free and open to the public currently I believe that system is making a profit the United States government as opposed to being fully open and accessible thank you in advance okay those are three questions okay let me see if I remember them all um so your first question was about the codification of the presumption of openness um I have not cited that in any of my written opinions um has so I and I can't say that it's ever been argued to me any of my cases so far so um I can't say that it has necessarily affected my jurisprudence but since the FOIA itself has a presumption of disclosure which I talk about it every single one of my opinions it might be redundant uh to to talk about that and you know both the presumption of disclosure and which is the overarching goal of FOIA and to which is bolstered by narrowly defining exemptions exemption so I can't say I've ever cited it but I'm not sure I would change my jurisprudence at all your second question I know you've asked about Pacer what your second question is whether something is an agency record whether web records or electronic records generated from these devices are public records and thus subject to public records well emails certainly are so I haven't I haven't actually addressed that issue um but I would say that generally they probably are um so that would be my that would be my off the top of the head uh response to that although it might uh you know I think that there are I might be more careful and say it depends you know whether it was a personal device you know how much it was used personally etc and those kinds of uh might be agency specific directions on the use of cell phones so um but that would be my my I'd say there'd be a presumption that it would but it would ultimately depend on circumstances um with respect to the PACER fees I know that has been subject of litigation on my court Judge Huvel Ellen Huvel has been in charge of that litigation um when the PACER system was set up there was a statutory requirement to the courts to charge a fee for it and to have that charge cover the cost of the PACER system um so the fact that PACER is not free is because of the statute whether the judiciary has um charged too much for PACER I think it's something that uh or is charged excessive use of that I think it's something that's in litigation before uh Judge Huvel and I'm not that familiar with all the circumstances of that or her rulings thank you I'd note in parting that I think 46 out of the 50 states plus DC have legislatures that are subject to their public records laws and they seem to function okay so I'm not expecting to be in front of you arguing this anytime soon um but it does appear you can subject legislatures to public records laws and still have them be able to hold on so Lawrence in your panel discussion you might address the second question Hannah hi um we talked a lot about how FOIA only applies to the executive branch um but the federal records act applies to all three branches and so I wonder in your role as chief judge where you have some administrative responsibilities um if you've thought about your record keeping responsibilities particularly with regard to judges personal papers which sort of live in this weird ether um of often considered property maybe not record but maybe should be record um and your record keeping obligations vis-a-vis the federal records act particularly with regard to judges emails yes um we've had a number of meetings um with the judges about re preserving their records and their records obligations um and it is uh pretty much left up to each individual judge to figure out how they're going to preserve both their paper records and their electronic records we have some judges that operate fully on paper some judges who are fully electronic and some judges like me who are someplace in between um and we have talked to the judges about how all their papers would probably come to the archives at some point unless they are holding them themselves so um I haven't spent a lot of time focusing on it but we've had a number of meetings with judges with no great resolution since each judge pretty much does what he or she would like to do um and find libraries to take their papers and so on so it's uh similar to the members of congress approach non-uniform yes yes very much yes you ruled in more than over more you ruled on more than uh over more than a hundred cases a hundred fifty cases pardon me um is there an aspect of the FOIA that you find to be more confusing than what most frequently confusing in your case in the cases that you reviewed I think that there are some exemptions in application that are more challenging than others I think um the deliberative process privilege under exemption five is particularly challenging I think for agencies and also in order to describe the pre- decisional nature of the specific decision that's an issue in a particular document that they're trying to withhold so I think there is a lot of litigation over exemption five deliberative process privilege although I think a couple of my colleagues have recently been reversed on application of exemption seven c so that may also be getting realigned a little bit by the circuit thank you very much for coming today would have been some of the more difficult to decide cases uh as to whether or not an agency has been reasonable and uh conducting a search of its it's a documentary material for FOIA you know those are those those decisions are usually not that hard um uh sometimes the agency hasn't described well how they uh interpreted a FOIA request and why they decided to you know refer the FOIA request for searches of responsive documents to some components and not others I mean I think sometimes uh sometimes the agency has sort of missed the boat and then they go back and have to do a recent do a new search um I think when agencies have questions and they've consulted with the FOIA requester or taken some uh suggestions from the FOIA requester they do a better job of doing the search or at least they have teed up why they think the FOIA requesters request to search certain components or certain systems um you know doesn't make sense in that context so it where an agency has failed to consult with the FOIA requester and just gone off on its own sometimes they miss things um and sometimes it's just they missed it and they have to go back and expand their search um sometimes they just haven't described everything they've done very well and they have to just say we actually did that but we didn't detail that for you and they come back and do that um but those those I don't find those to be particularly hard issues thank you very much all right well thank you you just stopped your machine thanks very robust discussion of FOIA thank you thank you um you've definitely given us a lot to think about so thank you for that um we are now going to quickly and hopefully seamlessly rearrange our stage um and I would like in the meantime to invite our first panel to start slowly making their way up to the stage um so we can turn our attention to an issue that is certainly near and dear to my heart um all about OGIS so as I mentioned earlier OGIS uh turns 10 later this year and in recognition of that anniversary uh we have brought together a panel of distinguished and knowledgeable speakers who will take you back to the origins of OGIS the early years the present and the OGIS of tomorrow we have strategically included all of our speakers uh biographies and the handout available before you walked into the McGowan theater hopefully everyone picked one up looks like this uh and the goal is to minimize introductions and maximize our speaker's time on um on our panels this afternoon first uh let me introduce Tom Sussman who will moderate our panel Tom is currently the director of the governmental affairs office at the American Bar Association uh he joined the ABA after 27 years as a partner in the law firm of ropes and gray before that uh he was chief counsel to the senate subcommittee on administrative practice and procedure and held other government positions uh Tom's involvement with FOIA began at the department of justice when he advised agencies regarding the new law in a senate position he was the principal staff lawyer for enactment of the 1974 amendments uh of FOIA that's why I sometimes refer to him as the grandfather of FOIA I don't think he gets terribly upset with me when I say that um also ropes and gray he handled many FOIA related litigation and regulatory matters including the work that resulted in the issuance of President Reagan's executive order requiring agencies to give notice to submitters before releasing confidential business information currently we are pleased to have Tom serving in a second term as a member of the national archives FOIA advisory committee Tom promises to both moderate the discussion and chime in with his own knowledgeable commentary uh joining us today is Judge Lydia Grigsby of the U.S. Court of Federal Claims before her appointment to the bench in 2014 Judge Grigsby served as the chief counsel for privacy and information policy for the senate judiciary committee a position to which she was appointed by senator Patrick Leahy a lot of ongoing theme here today and she also served as privacy counsel for the senate judiciary committee she was the lead senate counsel on several key FOIA amendments including the open government act of 2007 the legislation that created our office OGIS and the open FOIA Act of 2009 we are also pleased to welcome Christa Boyd general counsel for chairman Elijah Cummings on the house committee on oversight and reform uh Christa's long association with the committee has given her a front seat for several FOIA reforms on the house side including her active involvement with the FOIA Improvement Act of 2016 finally um please join me in welcoming Miriam Nisbet the founding director of OGIS um and I dare say the mother of dragons the birth of OGIS just like the birth of Daenerys's dragons was unique magical wondrous and a miracle and like Daenerys Miriam walked into the flames and lived and she will talk about those experiences and the legacy she has left and that legacy I try to carry on presently and into the future and um I'll do my best to cover those aspects so with that introduction I'm going to gingerly walk over to the panel and Tom will begin the program I think it's uh appropriate to pay special thanks to David Ferriero um he uh celebrates his 10th year too and I think it's no coincidence that uh OGIS uh has continued as a strong and vibrant uh office within the archives under David's leadership um I should note that it was established under the previous archivist uh Adrienne Thomas uh but also um and I can't oh yeah Gary Stern is here general counsel of archives uh has been a uh continuing um supporter starting from when the legislation was enacted uh up through tomorrow uh and beyond we hope uh before turning to our panel I I'd like to set the stage with a little background because there are other individuals who deserve some recognition uh in terms of the origins of the Office of Government Information Services um some names may not be familiar to you uh like Suzanne Legault uh the Canadian Information Commissioner um former Connecticut FOI Commissioner Mitch Perlman uh Bob Freeman who is Executive Director of the New York Committee on Open Government because they all led agencies or offices that were seen as models uh for the United States and were studied by Mark Grunwald of Washington and Lee Law School who in 1987 came up with a paper for the administrative conference of the United States that looked at the statistics on FOIA cases FOIA litigation uh interviewed uh litigators and requesters and government officials studied the comparative uh uh institutions in the states and foreign countries and concluded uh to recommended the creation of an administrative tribunal uh for administrative decision making on freedom of information cases and as an alternative he examined and explored the ombudsman con concept um and uh actually I was a member of the administrative conference at the time Mark's first choice was the administrative tribunal uh it met with um strong opposition from the executive branch uh led by the justice department and the conclusion was a statement uh that um simply said that data currently available don't establish the need for either uh an ombuds office or a adjudicative tribunal uh but that uh the agencies and the Department of Justice should explore voluntary use of informal alternative dispute mechanisms uh it took a decade before the data in terms of cases and disputes suggested that perhaps some alternative was necessary was useful uh and that's when uh congress stepped forth to address the problem by establishing OGIS um we'll take you back to that period and some of the uh early years of legislative development and uh standing up of OGIS and amendments but I want to start uh I know most of the people who are watching us and who are in the audience know OGIS but I think it'd be useful to start with uh where are we now uh with Alina to give us an idea you know what are you doing and how are you doing it and uh should should we be appropriately celebrating uh OGIS these days um thanks for that opportunity to to toot our own horn um certainly we are robust and uh we have absolutely amazing staff and I'm so proud of all the accomplishments that um have actually happened this past year in particular we put out our annual report um despite the fact that we were shut down for 35 days uh we also put this event together with despite the shutdown so that's wonderful to also celebrate um the annual report certainly gives a lot of statistics David cited to some earlier um our dispute resolution program is um busier than ever uh we continue to try to open uh foster open and effective dialogue uh between requesters and agencies and uh one thing that I know I have a very short time so Tom or me I I definitely want to flag one area that I think we've really tried to focus on most recently which is that we believe that OGIS has a unique opportunity to use the lessons we have been learning from our dispute resolution program um to inform several other areas of our work and specifically we are looking for trends that we can use uh for our future advisory opinions our FOIA ombuds observers and some of our compliance assessments and that's um very much in the forefront of our minds we were very excited to be able to issue our first advisory opinion last year uh prior to the passage of the FOIA Improvement Act of 2016 we were a little more um uh constrained I would say because it was associated with issuing uh an advisory opinion in the context of a particular dispute and we really struggled with that um because we had a hard time uh justifying uh giving out an advisory opinion when uh we have impartiality and um and the uh confidentiality that exists between the parties that engage in the uh mediation process so we were very grateful when congress recognized that tension and uh gave us the opportunity to issue advisory opinions at our discretion and so we're going to continue down that path and um and issue some uh additional advisory opinions I'm also very pleased with our compliance program uh this past year um despite the fact that um we had a lot going on already we issued five compliance assessments which is quite a feat uh we looked at the US um CIS and US Postal Service and uh we also did uh three issue assessments we used actually um the auspices of our chief records officer um and his office to uh look at some questions related to FOIA and the records management self-assessment um and we issued a um an assessment on agencies providing required notices of dispute resolution which we tied to our advisory opinion um so there's definitely overlap do I have one more minute okay we've done so much um I'm also very um excited about all the work we've done in training um we have done a lot of dispute resolution training for FOIA professionals this year in particular we seem to have a lot of success with training at particular agencies so we've gone to individual agencies and and conduct a training actually we haven't come to us that way they're actually paying attention during the day and they're not running away and uh that seems to have been very successful we have engaged in a lot of outreach and education we're always taking every opportunity we can to talk about OGIS uh both nationally and internationally um at ASAP uh we uh participate in OIP training uh we've also this passenger spoken to SIGI uh the council on integrity and I'm always forgetting the name of the acronym it's the council of uh inspectors general uh we talked to them about uh ways that we could cross-pollinate and work together on on FOIA issues I'm also very proud of the work that the FOIA advisory committee has been doing thank you Tom um we issued a great report last year that contained seven recommendations to the archivist and over 42 best practices and uh this year's FOIA advisory committee this term's FOIA advisory committee I should say which started last year is moving quite along very well and um has actually one particular subcommittee that's going to be looking at the future of OGIS which makes me a little nervous but we'll see what happens uh the FOIA improvement act 2016 I'll finish with this also asked us to have an open annual meeting and we've been doing that and taking the opportunity to provide the public with updates about what our office is up to but we also have taken an opportunity to spread the word about the FOIA advisory committee best practices so Tom was actually participating in a panel last year that we hosted to talk about the best practices and the chief FOIA officers council has now met several times uh we have co-hosted that event with the department of justice uh Melanie Piste the director of OIP and I co-chair that and we've hosted it here and we're back again here later this year on august 5th mark your calendars and uh last but not least we are continuing to engage in our social media presence we have a very robust blog which I know everyone is following uh everyone is also following us on twitter and uh and everyone is checking our website so that's it okay great and I should note that you have an annual report that's just come out yes by some strange coincidence its title is ogis at 10 cast president future which was so clever that we're using the name for our program today well let's uh let's turn the clock back a little bit uh uh earlier uh judge grigsby senator cornyn spoke and uh he stressed on at least two or three times during his talk about the bipartisan nature of his close work with senator lehi uh you of course were the chief uh staff on senator for senator lehi on the judiciary committee uh a um uh a long-standing very important position uh that is people who did foyer for the judiciary committee dates back into the 70s at least uh when I was on the hill doing foyer for the judiciary committee but give us uh give us some some of your sort of reminiscence in terms of congressional intent the legislative history um you know and and how this bipartisanship really shown through to give rise to to ogis over uh some objections my pleasure and good afternoon everyone happy 10th anniversary ogis I cannot believe it's been a decade uh my my time uh involved with ogis goes back to the beginning before there wasn't ogis I'm delighted to be back with the rest of the band most of the folks up here were actually co-partners with me in trying to get the uh office established um I previously worked on the senate judiciary committee and I can tell you that the journey uh to creating this office was a rather long one um and it kind of had its seeds back in the years right after 9 11 where the country started grappling with the concept of government secrecy and transparency and where to strike the balance as you may recall at that time there was a great emphasis on secrecy that protects national security and privacy uh but there was a recalibration in the congress and I think in the country in the years thereafter to figure out how to ensure the public's right to know and so back in 2005 bar partisanship was actually alive in congress and senator lehi and senator cornyn partnered together on legislation that would eventually become the bill that created ogis and that partnership was at that time somewhat rare but uh something that I think the congress recognized on issues of transparency was appropriate and so even from the very beginning there was very broad support across the congress for the idea of looking at foyer and improving government transparency so back in 2005 the first legislation that would have started uh the path to the open government act was uh introduced by those two senators and then congress got to work on a series of hearings in the senate judiciary committee as well as hearings in the house as I recall um to start looking at the issue and it was in 2007 two years later that the actual legislation the open government act was introduced by those two senators that would eventually become um law and become the home of uh create ogis I should say so I think the important thing to remember about that time is that I heard earlier a question about the presumption of openness I can tell you in the congress that was a big deal and that was actually the area where most in congress unified and in fact in the findings in the legislation that presumption is in there and that was because uh there was a broad view that while foyer was extremely important in ensuring openness it wasn't actually meeting its ideals at the time and so many members uh through oversight uh became concerned about how the bill was actually how the law was actually working and wanted to make sure that it was clear that congress believed that there was a presumption of openness in our country and I can tell you at the time that was a subject of debate quite frankly given where we were so at least from the perspective of congress at the time it's my view that was very important and a very important part of the bill um so in any event the path to creating ogis uh began in 2005 the bill was enacted in 2007 uh there was a lot of important work done um in the senate and in the house to get to that point as well as important work after the bill was enacted to ensure that ogis in particular uh stayed in place one of the key issues I know for um the senate at least was making sure ogis was an independent office as you may know there are other offices in the government that deal with foyer oversight but again there was a great effort by senator lehi both in the legislation and in the years following the legislation to ensure that ogis actually was in a place in our government um that could be be independent of other parts of the government particularly those that involve in foyer litigation um so that's kind of a brief overview of the legislative history and background well let me ask you to go one step further because um my recollection was after ogis was established uh in 2007 uh it took a it took a few years to finally get it started because there was some I guess uh tension within the executive branch as to who ought to lead uh the uh foyer dispute resolution and uh there was an appropriations battle as well that I know you played an important role in that's you're my hero so I want you to discuss it a little bit well again the concept of a new office to deal with foyer whether it's oversight of the ombudsman role which is very important at least in terms of congress at the time was a novel one and one where there were many parts of the executive branch that felt they were already doing that to some extent or didn't want to have another pair of eyes looking at it uh and so obviously once legislations enacted you can obviously defund things and so there was a big issue about defunding the office and both senator lehi and senator cornyn were very active and adamant about making sure the office was properly funded and pushing back on efforts to defund the program as it started up I think that continues today quite frankly in terms of making sure the office is funded so that was a very important issue but again I think the one thing I would emphasize is again this really was not a controversial uh issue within the congress at the time while I would say it perhaps was not unanimous there was very strong support uh bipartisan support uh really from the inception of the legislation to do something in this area and I believe oh just continues to have great support and congress because of that history I think that's right and uh as many of you may have guessed by now I'm a oh just groupie so uh you're not going to find a lot of balance in my questioning but as we move to uh from the legislative origin uh to the birth of the office uh I I do want to say again that I I remember those years and uh the the department of justice was using very sharp elbows to try to make sure that it maintained a paramount role on all things for you including as ambuds and including I believe initially trying to move some of the budget funds from OGIS to the justice department and and so Miriam when you came back from Paris where you were working doing intellectual property issues and to Washington to take over a brand new to build a brand new office in the face of perhaps not congressional disputes but certainly executive branch tensions give us some feeling for those good old days well thank you Tom for that question and I just want to thank OGIS and and the archives for having this celebration I will tell you that when I walked in the door of the archives in September 2009 um my challenges were so obvious and they I didn't realize some of the other challenges that were lurking because the first thing we had to do was find office space and find staff and so those were pretty pretty um pretty obvious things that had to be done but it took a lot of time it it took time to do it and fortunately we were able to come up pretty quickly with a fabulous staff mixed backgrounds in terms of government non-government um and um working as a team pretty quickly um I think one of the first um things that we had to do was to come to terms with having as our customer base all of the federal departments and agencies and the public that's that's a pretty big customer base and nobody knew who we were so introducing ourselves and um just trying to get people to start thinking about what OGIS was intended to be I think the congressional support was very clear from the beginning we want an impartial ombudsman we want an independent ombudsman we want to see the FOIA process work better it's got to work better um so for us for the staff figuring out pretty quickly while we were trying to figure out um where we were going to sit also how we were going to present ourselves um and figuring out realistically what we could do we had the statute which was only um you know a very we thought a very clear mandate for what to do but how do we do it how do we set our priorities and where do we actually start with requests for dispute resolution services sitting on my desk the first day I walk in we knew that that had to be our sort of our first priority and then you figure you figure it out from there one thing that was not in the statute that we did pretty quickly um was to determine that dispute resolution skills training for FOIA professionals would be an important part of this because we were talking about a culture change um so those were all the sort of obvious challenges um I think the ones that surprised me um and Tom alluded to this um and and that was really trying to garner support for this new entity um I'm I'm just going to say particularly um without the support of senators Leahy and Coorden in the senate and um Christa's committee oversight government and reform um without the real strong um public support of those creators of OGIS um I think it would have been um even more difficult um the open society I mean the open government um civil society groups were very welcoming um the interagency open government working group very welcoming but there were plenty of agencies and departments that um um sort of blew us off and um trying to establish relationships with them um was um and still continues to be a big a big um challenge um Judge Griggs be mentioned the independence issue um I think that was one of the more difficult um challenges that we had to face and um in preparing for for this talk this afternoon I was sort of going back and looking at things and um the first annual report that we did um I can tell you right now without Judge Griggs be strong support behind the scenes um we would have never even had this report um and of course every year after that we've had a report but the change in the statute uh in 2016 to make it crystal clear that um Congress intended to hear from OGIS the unvarnished truth about what it saw in the way of FOIA improvement um it was a it was a it was a really um I think um one of the best developments there were so many things about the 2016 amendments that really made it just um clear that dispute resolution has to be and now is an integral part of the way FOIA operates the efficiency the effectiveness the reasonableness the civility all the words that you heard from Judge Howell and Senator Cornyn this morning um is really um those those are what OGIS strives for being impartial being fair um being able to bring parties together to make the process work better and um I'm just delighted that we're here celebrating 10 years thank you uh Chris that sort of sets the stage for the 2016 amendments but before you get to that I have a another question for you are you looking forward to being a federal judge it occurred to me uh Judge Howell of course served on that congressional staff working on FOIA Judge Grigsby uh Judge Howell on the Fifth Circuit was on Senator Cornyn's staff uh during that time and so um I think you've got a bright future ahead of you but Miriam was telling talking about the importance of the 2016 amendments and tada take it away that's where you came in I when we were exchanging emails earlier you may have been the only one on the receiving end who understood my little parenthetical because I sort of tried to capture what I wanted Chris to talk about by quoting her boss uh congressman Cummins who said don't mistake a comma for a period there's always more to do when you think you've come to the end of the sentence and so um that's I think we thought an awful lot was accomplished but with the original uh law open act uh open government act setting up uh ogis um and I want to come back to some of the other issues about independence and location because narrow has been a great home but it wasn't originally envisioned as a home but that's not all at least from your perspective and you carried it one step further so give us some background so I did I do have one fun fact which I uncovered as I was preparing for the panel because there's been a lot of life in the 10 years and then it happened and the years before that when ogis was being envisioned um and there was I uncovered an email chain in my emails which go back more years than I want to admit and uh there was a back and forth because the the original legislative proposal as we were going back and forth between the senate and the house had ogis living in the administrative conference of the united states and there was concern that because uh acus had not been funded and that you know it was the the subject of of of partisan you know fights I guess is a fair way to say it because you know former speaker gingrich you know viscerated it when he was in power and so there was concern that that wouldn't be the best home and so there was a back and forth and there was an email from I won't name them because I didn't ask their permission but someone on our staff who said well what about the national archives we have jurisdiction over the national archives and I thought well that's funny to find that and you know to realize that's how that you know came out and obviously there was a lot of vetting then after that and a lot of negotiation with the senate over what would work but that was I thought that was an interesting little gem to find but as we saw ogis develop under the very strong leadership of Miriam we you know we're learning about the challenges that were coming about and I just want to take a minute to say that I I think the success of ogis is really in in many ways due to the the leadership of Miriam in the beginning and how diplomatic but strong that you were and in leading it you were impeccable in your testimony you were impeccable in the the force that you were bringing it was a really I think a model for many of us and how to be effective in that you were you were strong you did not you know take anything from anybody but you did it in such a diplomatic way that it didn't come off as being I think too forceful and I think we have a really bright future with the very strong leadership now if Alina it's really I look forward to the way that ogis is going to grow but as we saw the challenges that ogis was facing in those first years we wanted on a bicameral bipartisan basis to make really clear to agencies that ogis was something that congress supported and intended to act in the way that it was envisioned and that was to be first of all you know an ombuds and a mediator but also to be able to evaluate the success or lack thereof of agencies and how they could use best practices and be nudged along when they were not working the way that they should and the independence language that was put in the 2016 amendment was really intended to shine a light and and make clear that ogis was not beholden to anyone that they could come directly to congress to report to give budget information appropriations needs and that language we actually just used in the house as a model for the increased independence of the office of government ethics and hopefully that's something that we can work with the senate and moving forward that's that's also very interesting to the last one because that obviously extremely important as well. Elaine getting back to you there's no question that that ogis is doing great things today so what's on your agenda for tomorrow and what do you see as the challenges facing the future I mean obviously the subject of Judge Howell mentioned resources that affects agencies across the board and I think ogis could obviously always use additional resources to do its work and and you have a track record now to build on so where do we go from here so I think it's fair to say that our future is very bright so I'm very excited about that we're going to continue engaging and all the activities I've already talked about but one thing that I think it's important to point out is that you know we are a non-exclusive alternative to litigation but we also recognize litigation is still going to happen sometimes issues just need to go into litigation and district court judges need to hear the the results that and resolve the disputes but certainly it's never been our goal to eliminate litigation entirely there's always important legal issues that will need to be determined but we are certainly there to provide a dialogue and to facilitate conversations between requesters and agencies we also want to very much continue our role as ombudsmen we want to provide information about the FOIA process I've talked about this in the past that I think a lot of requesters believe FOIA is like a big black box and they enter it and they don't know what's going to happen next so we do a lot of education and explanation of how the FOIA process works and it works a little bit differently at each agency and we're certainly adapting and learning about that along the way but we're certainly hoping to continue to give guidance and as I mentioned earlier advisory opinions is high on our list the ombuds observer that we rolled out last year we're very excited about was in conjunction with an immigration forum that we sponsored here in McGowan theater we were very excited to bring together agency personnel from all the different immigration related agencies and talk about how to get access to those kinds of records which is a very important topic and we issued the ombuds observer as a way to explain to the general public how to get access to records from the customs board of protection or the ice immigration customs enforcement again some of those agencies are a little bit mysterious to navigate and our role is to try to shed light on how to navigate most efficiently Kristen do you have a wish list going forward have you thought about what you're I mean I know that you're having hearings in two days on Wednesday FOIA oversight and perhaps after that you'll see some additional areas that will need some closer and more immediate attention but you follow this area very closely you and I have been on probably a half dozen panels together in the last decade so what's next from your perspective so one of the most immediate concerns is the proposed rule making from the Department of the Interior that came out in December Chairman Cummings sent a letter last week with Senator Leahy's Senator Leahy Senator Grassley and Senator Cornyn and it was a great I think strong bipartisan message that the members are really concerned about this proposed rule so that's one of the most immediate things that needs to be addressed and that's one of the issues that will be addressed at Wednesday's hearing the oversight committee will have a hearing on Wednesday 9 30 a.m. and the and the witnesses will include DOJ EPA and the Department of the Interior and what do you expect there's been some I guess back and forth within the community about the fact that you're only having government witnesses but I guess for each of those this is likely to be not a fun opportunity for them to sit in the chair and be grilled by the oversight committee do you want to give us a little preview of any so there's I think if you look at Chairman Cummings's letters from the last two years it'll give you a little bit of a preview of where the questions might be headed but that's you know I think the way Chairman Cummings is approaching FOIA but also other transparency and records issues is that we're not looking to have just this one hearing during Sunshine Week and that be the end of the oversight and so I think there you know this this hearing should not be mistaken for the end of the message so there will be plenty of opportunity for other perspectives but one of the reasons that we chose in this case to go with the government only panel is that when you have a very long hearing with multiple panels there are sometimes that that's the right thing to do but sometimes you lose the message by the time you get to the second panel and so sometimes having a very you know a sharper more efficient questioning period can work out better and then you know we can always have other other hearings and other opportunities for information to come out well and I think the oversight function which again Judge Grigsby is familiar with as was I on the Hill has been very important in this area because agencies you can't sue them all and a lot of the issues are procedural and so it requires a congressional effort I remember Senator Lee actually putting some funds in the State Department budget to address the backlog were you were you involved in that one too not directly I mean it was not directly indirectly but that was a very important for clearing up their backlog Mary in the early you've heard Alina talk about advisory opinions and with some pride that they finally issued one last year and intend to look towards the opportunity issue with others my recollection is in the early years although you had authority to issue advisory opinions that there was a hesitation on the part of OGIS management to perhaps draw a line as an adversary to the agencies while trying at the same time to pull them in to a collaborative dispute resolution give us a little more of a feeling for how that played out and do you have the are you okay now with OGIS moving into the advisory opinion business yes I think I think the change in the language in the 2016 amendments took care of our concern the language in the 2007 amendments were it was written in such a way that we would almost OGIS would almost be issuing advisory opinions after a mediation had failed to resolve a dispute which seemed like it was calling for an opinion about what had gone on that's really inconsistent with the role of the mediator the mediator is bringing together the parties to help them come up with a solution sometimes that works sometimes it doesn't but then to have that impartial mediator opining about what did or didn't go well with the mediation and opining on the issues felt like it was not really quite there was it just wasn't the right thing for a mediator to be doing the change in the law though allows OGIS at its discretion to issue advisory opinions not about specific cases but rather what it what it sees and the mediation process the dispute resolution process puts OGIS in a perfect position to do that because you are observing you're talking to lots of different agencies you're talking a lot to lots of different four-year requesters and it really yeah I really think that the change took care of that. Lydia you're sitting on a court now with a very complex jurisdiction of tax cases takings public contracts IP are you glad not to have freedom of information cases? Well it's funny we don't have freedom of information cases but I can tell you FOIA comes up quite a bit in my cases it's often a tool that's used by the litigants to get information to help proceed in government contract disputes in particular so I continue to appreciate the value for you and I can tell you people who bring cases in my court appreciate the value so we see it from that perspective and as Chief Judge Howell mentioned earlier the courts also have to weigh a balance about openness as well the default is openness but we also are faced with issues about when to keep information secret if it's a trade secret for example and how to balance those issues in opinion so it's still very much a part of my work in a way. Now Krista mentioned the early issue of institutional independence and I know that's something that you mentioned as well and we're very concerned about and I had forgotten that ACUS wasn't in existence at the time had been defunded I think if memory serves me the National Archives did not open its arms initially to welcome the placement of OGIS here and like in orphan wandering the streets we had a great idea but we were having trouble finding a home for it. You satisfied with where it landed? Is this the right place I mentioned earlier that at least under the current Archivist and General Counsel OGIS has received the funding office spaces now authority support on legislative agenda and so far so good. Do you see the bright future as well? I do I think it certainly would be helpful if the National Archives received more funding as well as OGIS specifically and I think I see David sitting there going like this. I know where I'm sitting but I mean it truly is something that Chairman Cummings and our members really believe in is supporting the National Archives and there are a lot of missions that have to deal with not just records but increasing public access to information and OGIS is one of those and OGIS very much needs continued consistent access to resources so that it isn't just this roller coaster of you know can hire a couple people then you lose them higher you know so I think that's something that I think the Archives has been a very good home in that it's been as far as we've been able to see on the congressional side very supportive of the mission of OGIS and not you know supporting you know the the resources that OGIS has but I think it's up to Congress to ensure that OGIS and the Archives has have the resources to continue a consistent level of funding. So all is pretty bright but there are a couple of dark spots if I recollect Alina for example OGIS does not have the ability to get access to the actual documents in many cases because of the agencies don't share them and there are privacy act issues that you don't get a agencies have refused to give sort of blanket waivers there that may be while we have Krista in between us I'm going to let you give you a little free reign to to suggest without having to go through general counsel or archivist a legislative agenda. I don't have to anymore I can just pick up the phone and talk to Krista anytime. Well certainly we did go up to the Hill last year and we had a bill that didn't get very far on the issue of certain agencies not having sworn and allowing us the possibility of being able to talk to them about individual cases. We it had an unfortunate name I think that didn't help it was called the OGIS Empowerment Act which just did not sound really all that palatable and I think it's scared to many people but I think it sounds great but I you know we're certainly working our way around it. I mean it's funny because we've had one agency in particular who has come knocking on our door now several times in the last several weeks and months and we've just said to them if you guys could just get a sworn together we would be able to talk to you about what you're referring to sworn. I'm sorry system of records notice that sorry sorry no acronyms in the federal government that would allow us to speak more freely about individual requests so all we can do with certain agencies is just give them general advice because the other thing we have to remember is we're there to serve the requester community as well as agencies so everyone is our customer we're happy to facilitate conversations agencies come to us and they ask us for help with particularly vexatious requests that they're getting in or issues that they're constantly seeing and they need just some perspective from us on and we're always happy to do that as well so I would say that's you know that's certainly an issue that we continue to grapple with and it's fair to say that. Go I suspect you've just gotten on the House Oversight Committee's agenda for the coming Congress. Sure but with a different title of a bill that is a little more. We'll work on that. Yeah absolutely. Tom let me just mention that the whole the issue of the Privacy Act being being a barrier to full OJIS assistance is something that was identified right in the very beginning so a solution to that would be would be great. Okay we're nearing the end and I don't know if we if people have are dying to ask questions we do have a couple of minutes otherwise I'm just going to go down and ask our panelists for there's a question there's some microphones just sure Patrice asked the question can someone explain the Privacy Act issue. Well the three of us aren't going to do it. Okay well the Privacy Act of 1974 certainly appropriately restricts the government's sharing of its records on individuals not only with the public but between agencies so that's that's sort of the basic problem. What we ran into early on and still remains a problem is if an agency has not published in its routine uses that it is going to a note essentially a notice to the public that it is going to be sharing its records with OJIS then the Privacy Act is as much a prohibition on sharing records about an individual's FOIA request with that agency as much as it would be a prohibition on the agency sharing that information with any member of the public. So if you have to go agency by agency department by department to get them to issue a notice saying that they're going to do this then they can't share the most obvious problem is not when a requester comes to OJIS and says would you work on my case my FOIA request with agency X but rather when agency X comes to OJIS and says we have a problem with this requester and this particular request can you help us. So when the request is coming from the agency to OJIS we can't really look at those records. OJIS cannot look at those records. I just also want to add there is a little bit of some bright news here 13 out of 15 cabinet level agencies have now amended their their Zorns in order to allow us to go chat with them and some independent agencies but we still kind of have a long way to go. We're probably less than 50 percent. That's a good agenda. Next question. Is could you talk about the relationship between OJIS and the Office of Information Policy at DOJ where there are issues that have arisen in the last 10 years and what the future may be. And the second question is for Alina about cues at OJIS and what has arisen what steps are you taking to eliminate the time lag that may exist when requesters ask OJIS to have assistance. Alina why don't you answer the second question and Miriam you answer the first question because I don't want to interrupt governmental tensions to raise your ugly head at this table this afternoon. So to answer Jason's second question and we talk about this in our annual report this year we are proud of the fact that we are continuing to close a simple request that come in those that do not necessarily require us to go and talk to the agency. We can answer questions and resolve issues that are brought up by the requester on our own but we do have a growing backlog of requests that we deem complex. Those are the ones that actually require back and forth dialogue. I like to call it shuttle diplomacy but that's really what we do between and among the requester the agency and OJIS staff and we're definitely not proud of the fact that some of those complex cases are getting pretty old. They're aging in our backlog over 90 days probably over 180 days I daresay at this point and we're very much committed to trying to reduce that backlog and we're doing the best we can with the resources that we have if I can use the R word. So we could have a whole another session on the question that Jason asked but I will just say I think no one who's ever worked in government is surprised to find that when an agency or an office has had pretty much the whole responsibility for an area and then there's a new kid on the block it can cause a lot of tension particularly when there's overlapping responsibility for example with reviewing compliance by agencies. So sorting out who does what and ensuring that OJIS had indeed the responsibility and the authority that Congress had given to OJIS to to not only play in this field but to really make a serious contribution to improving for you was probably one of the more surprising things to me when I first came in because I guess I thought the statute was really clear and yet there was an awful lot of resistance not just from DOJ but from some other agencies as well who just didn't understand what OJIS was doing why it was in their business and I think that has changed a great deal because agencies really have come to understand that OJIS is there to help really to help that's its mission and let me just add one more thing about the discussion the little bit of discussion about where OJIS would be put I really do think it was a saving grace that OJIS was placed at the National Archives the being in an agency whose mission is to provide access to government records that's the mission gives a really a great a great home for OJIS and David Ferriot and Gary Stern particularly I'll call out for having really from the beginning all the all the support one would want. We are we have a few seconds left but you only get one question I'll take the one question the FOIA improvement the the bill in question the Empowerment Act was the shortest bill I think I saw in last Congress just had one line they would amend one part of the US code that say each agency shall make any record available to OJIS the purposes of carrying out the subsection upon request of the director which goes to a very specific question are there still problems that OJIS is encountering in speaking to the agencies where they are not making available the records in question to you all to do mediation and if so would it be appropriate for Congress to give you further powers much in the same way we've seen inspectors general be further empowered to get records because what I've heard from the requester community is that they still don't well first know that you exist in many cases and second see going to mediation as an effective alternative to get the records as opposed to going to see the judge where they can be compelled and seen as how Congress is listening what are the tools that you need to be able to empower requesters more effectively and I won't ask the second question since you limited it well let me take a quick stab at that because as I said before I was involved 20 years ago in trying to get an independent agency in the US government to try to take the pressure off of going to court and help requesters resolve dispute disputes and so I would personally be in favor of additional authority in OJIS to be able to have access to the records that it needs to I simply I suppose with some trepidation I say disagree with Chief Judge Howell on the subject of in-camera inspection because I think that she said the system otherwise isn't transparent and I guess my view is when only one side has access to the records in dispute that's not a very transparent system but when one side and the judge does that's at least a little more transparent and so I think that OJIS as a even an even a mediator should have that authority to look at the record and I would guess I would go the next step and Alina you don't have to comment on this but I mean I would I would move towards the more adjudicative function of ultimately giving OJIS some authority in some areas to issue opinions in specific disputes even though I understand that may run afoul of the traditional ADR but I think the more the future of efficient administration of the Freedom of Information Act relies on an empowered OJIS my personal view so Alex is up there again but I actually do want to just comment on this because one of the many things that Miriam counseled me to do was to become part of the international community and my first opportunity to go and attend my first Information Commissioners conference was in 2017 and I met a number of Information Commissioners from all over the world and sat down and talked with many of them about how their programs work and some of them actually have the very program that you know we're discussing now and but they also have a cadre of 40 attorneys on their staff who are reviewing the documents that the agency is is withholding so they're actually getting to look underneath the redactions and then they're issuing opinions along the lines of what we're talking about but it's a very different kind of system and so whether you know I don't think that was the initial contemplation for OJIS I think it it really kind of turns it into a slightly different animal so I think it you know it certainly deserves discussion but I think it also requires a lot more resources and a different staffing one step at a time yes well I want to thank our panelists today for thanks again to the National Archives the Archivist General Counsel OJIS Director for making this program possible and I look forward to coming back and celebrating the 20th anniversary thank you thanks and I just want to let everyone know we're going to take a 15 minute break before we move on to our exciting second half of our program during the break feel free to visit our Charter's Cafe located on this level but no food or drink back in the auditorium there are restrooms directly outside of the theater and another set downstairs near the cafe and please come back at if possible 340 would be great thanks everyone welcome back everyone hopefully most everyone is back at this time we have our next panel coming up and getting settled in and I'm excited to to introduce this great panel and I gave my long-time former colleague and friend Jason Barron um carte blanche on how to structure and approach this next panel as the moderator we'll see if that was a mistake but seriously anything related to records management is in no better hands than Jason's records management issues have been near and dear to Jason's heart for many years from the days we work together at Department of Justice to now where he has become an internationally recognized speaker and author on the preservation of electronic documents the rest of his bio is included in the handout joining Jason and this afternoon's panel is Jonathan Redgrave who has extensive experience in the area of information law including electronic discovery records and information management and data protection and privacy issues Jonathan speaks around the world on topics including cross border discovery information governance privacy data security and emerging technologies we look forward to his insights on the future of electronic record keeping I'm also very pleased to welcome my colleague Lawrence Brewer the chief records officer for the U.S. government with that daunting title Lawrence leads records management throughout the government with an emphasis on electronic records he provides overall guidance and direction to federal agencies on all aspects of records information management including overseeing scheduling and appraisal of federal records the development of records management regulations and guidance and evaluating effectiveness of records management programs and federal agencies and last but certainly not least I am happy to welcome our NARA colleague Courtney Anderson Courtney serves as the project lead for the federal electronic records modernization initiative for me. Did I pronounce that correctly? Okay which is NARA's effort to develop a comprehensive government-wide strategy for procuring records management services and solutions and she probably has the clearest crystal ball so I'm excited about that so with that I will turn it over to Jason and his crystal ball and a powerful thank you. Hey thanks Selena it's a delight I feel very honored to come back to National Archives where I had a dream job for 13 years as director of litigation and I have a very esteemed panel with me the people who I have tremendous respect for I consider Lawrence Brewer to be the consummate public servant as chief records officer of the United States I've known Jonathan Redgrave is a visionary as an e-discovery lawyer and someone who started a working group at the Sedona conference thinking about e-discovery and electronic records a while back in the 2000s and he and I have worked closely together on lots of projects and Courtney is a rising star at the National Archives who I've had the pleasure to meet and who you will hear from so I'm absolutely delighted for the panel. Let me throw out one question first and then we'll let's look back first and then we'll go forward. Jonathan in your career as a trial lawyer as an e-discovery lawyer and as a thought leader in the legal space how have you seen the world change in terms of the kind of records that lawyers have to deal with in your career so we're going to look back first before we go into the future go ahead Jonathan. Well looking backwards it's amazing to think even just back to the 1980s obviously you had computers and data and it'd been around for decades and decades by that time even but really the office workspace where most people that worked in an office environment whether you're in private enterprise or in the government the real interaction with the personal computer that was made possible in the early 1980s and then just kind of transformed thereafter the entire business space in the world of private enterprise of course you had a lot of seismic changes in terms of the role of people in the workspace. Secretaries for instance in private enterprise really started changing the people that used to be the custodians the people that really made sure things got filed and got filed in the right place when they were paper they disappeared over the course of the next 20 years and as a result combined that with computers and computers in the workspace of the office you had a lot more information as being generated at warp speed as time went by and so really the last 30 years has seen a real transformation in terms of what's been generated and what's been kept now in terms of the law and what lawyers do in the courtroom and what courts do lawyers are today trying to use the word innovation a lot but they're not the most innovative group and in fact lawyers kind of stand by the status quo I like latin phrases too they stand by the status quo and just kind of stay there and they don't really move off of it much and really even getting courts to understand and and adopt to a world in which you've got emojis rather than words you've got objects rather than text it's kind of tough and even getting to a world where you start thinking about AI and really getting into computers finding things much better than people courts and lawyers have had a little bit of a challenge with that so I think there's a lot that has changed in the 30 years in terms of both the work space and then the reality of computers and technology and what it means for records and record keeping and how that gets into the court in terms of evidence it's really been seismic and I think there's a tremendous opportunity for additional change both of the laws and the way in which courts deal with the records and deal with evidence that comes in whether not it's classified as a record so I've always talked to law students in the last decade about what a tremendous potential there is for change and to be really involved and I think what's exciting about the National Archives and I've been very blessed to have a lot of interaction with people here over the years just the forward-thinking nature in terms of what the law should be and how the agency really you know thinks about how to interact with all the other agencies out there the administration NARA interacts with all the agencies out there to try and figure out how we're going to deal with this 10 years from now 20 years from now 40 years from now 100 years from now that kind of visionary thinking is something again as I said lawyers may not be accused of too often but I really get into and I think it's really the right thing so this is a great thing and then even looking at from the Freedom of Information Act I've got a lot of experience with FOIA and then also state equivalents and it's critical just critical so I'm just pleased to be here for this 10th anniversary Courtney you have less time in your career than the rest of us but tell us how life has changed in records world for you well I actually have technically about 20 years of experience because my first job in high school my summer job was actually filing records and preparing them for destruction for my mom's financial advisory company so I have a bit of experience but I've really been in the field since about the mid 2000s and I think when I first came into the field it was really you saw the transition from paper to electronic and a lot of agencies were taking the approach of using of purchasing like a big records management application to house all of their records and it was sort of they were still using the same paper processes but for electronic records so for example it was a lot of clicking and filing for the end user they would have to you know they no longer had secretaries like they used to they were doing their own electronic filing that looked very similar to paper so I think over the past 15 years or so I've seen a lot more automation there you know the move to to the cloud to agencies that are using cloud repositories so they aren't actually housing their data and records anymore they're being stored by a company or even another agency if they're using a shared service and so I think it's we're starting to see now that we're managing electronic records more like their electronic records not like paper so it's more about applying the metadata to those records and being able to capture them automatically I've seen a lot of vendors they've made great strides with being able to automatically capture vendors so I think that's been the big change in the past 15 years that I've been in the field and Lawrence you have a quarter century of experience so what is your in that timeline how does the world change give or take don't date me too much so first I want to say thank you Alina I'm very glad to be spending happy hour here with you celebrating Oges so I look back and to me which strikes me and it's not I know it's not universally true for all agencies but I feel like as records managers I won't speak for the Foya community but we're out of the basement so for me I mean that figuratively but also literally because I go back to the beginnings of my records management career and I was working at the old EPA building I don't know if some of you remember it over at the Southwest waterfront it was not a very nice building we were not only in the basement but in the basement underneath the parking garage so it was I mean you can just imagine the carbon monoxide the sick building syndrome and we were the records management trolls that were in the basement no disrespect to trolls of any kind but it was it was a totally different environment getting serious now in terms of the profile records management and I think what we have done over the last several years through the work that we've done with the records management directive with a presidential memorandum with our own strategic plan and the leadership that the archivists has given to this agency and empowered us to work with other agencies is we've really seen the professionalization of the discipline so as part of the directive we created a new job series for records managers with very specific skills that give them a path that we never had before you basically we figured it out on our own in terms of what we thought we needed to provide as a service for agencies so you know that that all kind of has you know been on that path as we've you know gone forward working with the administration and now you know seeing the support that we've gotten from the directive from a memo from this administration where we see in the current government reform plan across agency goal for the transition to fully electronic government something we never even would have considered you know many many years ago I won't even say how many so for me it's been very gratifying to see the kinds of support in the records management community going forward and trying and reaching very senior positions so that you know we have representation with the cio's and other senior c-suite officials within agencies and that that voice for records management is now coming through louder and clearer than it did 20 or so years ago for me I started a government in 1980 at HHS and then went to the justice department and then in 2000 came to NARA and for a very long time I felt from a records management perspective it was like Groundhog Day in the movie where I woke up every morning and there was still a print-to-paper mentality throughout the government with respect to its record keeping I was very heartened during my time at the National Archives to be able to work with the archivist and with Gary Stern to be part of an effort the managing government records directive to turn a corner on that and to put down some markers for 2016 for email and 2019 for permanent record accession and going forward in the future and so I saw a sea change I saw an inflection point where there really had been progress from where I was sitting at HHS in the 1980s and at justice in the 1990s now I must say with my panelists indulgence and with the indulgence of Alina and with everyone I I couldn't help myself in approaching this panel and and the fact is that we all should have some humility with respect to our crystal ball predictions and so I put together some power points that show how wrong people are in making predictions as a setup for what we are now going to do which is to then predict the future of record keeping so Jonathan mentioned a hundred years in the future about a hundred years ago sorry Michael Crichton predicted that well a hundred years ago in 1900 one of the issues that were concerning people was horse pollution that is that there'd be so many people and so many the need for horses in cities that there'd be tremendous problems so that's one prediction that gone awry because of technology namely the automobile some of the worst predictions of all time let's look at these I think there's a world market for maybe five computers Thomas Watson said in 1943 the I'll read it off this slide here the television wouldn't have any market and people will soon grow tired of it let's get the person who said that Darrell's attic in 1946 then the head of digital equipment corporation said there's no reason anyone would want a computer in their home that was in 1977 and my favorite prediction which went a little awry is that nuclear powered vacuum cleaners will probably be a reality within 10 years that was said in 1955 so we take predictions with a grain of salt now in my life let me ask the archivist were you at the world's fair in 64 yep and I was and I don't know who else is old enough here oh to be here I was not there yeah I yeah very few in the audience here but the world's fair of 64 when I was eight years old promised a future world where cars would look like this where cars would float over highways in the 1980s where there'd be underwater cities and this was coming in just a decade or two or three in the 64 world's fair and that we'd be colonizing the moon by 2000 and so with all of that said those predictions haven't come to pass there's a lot of things that have come to pass which is especially the internet and the online world that we're in if we're thinking about foyer from 1966 there's certainly been changes in technology and it affects both the record keeping process and the foyer process signal event being the e foyer of 1996 so we have been moving moving from a world of the archives here and in records management throughout the government of a world of paper and boxes and federal record centers that have paper and boxes to a world of all digital essentially that email and every kind of electronic object stored on computers and potentially affecting the operations of the National Archives in the future as well as all government agencies so this is the world we have transitioned to that we're entering and I will make the controversial point here this was not my headline it was I grabbed it from some publication in the last week we could talk about this because I there may be a fair disagreement among panelists is how awful we are at records management or information management the fact is I know on email until capstone until automated records management took hold in light of the managing government records directive of 2016 in the capstone policy that narrow put forward I think there are compliance issues throughout government and now there is a future of archiving email records in repositories in hundreds of agencies and the foyer implications of that still are to be rolled out and may affect foyer very dramatically in the next 10 years so with all of that that's all of my preface on my slides before we start imagining the records management world of the future and I'm going to turn to Lawrence to to sort of start us off on government record keeping practices and what changes are in store and I guess the very first thing to talk about is the strategic plan since it gets us part of a way towards the 10-year interval we're talking about so Lawrence go right ahead well we are in the National Archives so we have to look back before we can go forward so this strategic plan is a really foundational piece for all of us here in the archives and in the records management community and I think our sister community with foyer see a lot of things that are critical to them especially in goal one make access happen but I want to focus from the records management perspective the path that we have been on and we've already mentioned a number of things with the the presidential memorandum in 2011 the managing government records directive which was coissued with OMB in 2012 and and the key goals in there 2016 for email and then 2019 this year is the year for managing permanent electronic records electronically so I think the point to emphasize is the the path that we have been on has been a path where we're constantly pushing ourselves and our our agencies are are the people that we work with forward and it's really been a path that's been more evolutionary than revolutionary we've built upon every success that we've had and so now we're able to say that we have a goal in 2022 where the National Archives won't accept any paper records so what originally what came first in focusing on email in 2016 it was smaller in scope it was just email let's solve the email problem to get to 2019 it's solve all permanent electronic records let's see if we can't create within agencies the the momentum where they can establish the policies the systems ways to provide access and ultimately disposition for those kinds of records electronically so um what we tried to solve first born digital so if a record was created electronically it had to stay that way but that left out a lot of the legacy records which we're trying to deal with now with the 2022 goal where we recognize that there's a lot of information a lot of records out there that are in paper but we don't want to take in any more paper we want to we want to create a way where we can deal with the born digital and the not born digital and then only deal with electrons going forward so um that's sort of where we have been in terms of like driving an agenda where we can get to this goal of fully electronic government where we know along the way we have to issue policies we have to issue standards we have to provide the tools and as you'll hear from Courtney later it's critical you work with the private sector and the vendor community to build that the demand and or the supply and the demand chain around those kinds of tools so that we can actually all work this way so I mean that's sort of been our goal and in sort of how we want to to move forward in making sure that we address the the key processes and then challenges within the agencies to make sure that we can realize that goal of fully electronic government and uh so in our prep call when we we chatted about this I was hesitant to ask you to commit on the record here in a video record of beyond 2022 but um whether they're whether or not there are formal plans that narrow has the beyond its strategic plan um what do you see as changes in the workplace changes at agencies beyond 2022 in terms of records management what what is the rest of the decade of the 2020 it's going to look like well first I'm not going to commit the agency to anything without talking to the archivist first well he's right here so yeah and I'm not going to put him on the spot I mean I think um and we'll talk about some of these things later as we get into the discussion is like what is what is the role of the records manager in the future and and what is the domain of records management actually look like so you have to be able to answer those questions but I think in looking at that evolutionary path in getting to fully electronic government I think the things that we really need and should be focusing on is how do we how do we work with the private sector to to get the tools that will allow agencies to manage records electronically and make sure that they are are able to provide disposition either for temporary records or for the permanent records that are going to come to us so to do that the other piece of that is the people side so you you you you have to solve the technology side but there there are a lot of records managers and agencies that really need the the skills to be able to work in this kind of an environment and one of the things that I know we are working on in our training program and listening to agencies about what their needs are is how do we continue to professionalize the records management profession to a point where they have the skills abilities and knowledge that will allow their agencies to be successful in meeting these goals good so why don't we go to Courtney now and since you are the lead on Fermi why don't you explain Fermi to the crowd and what the goal what the mission of Fermi is sure so we so when we started on this path of trying to help agencies achieve the the targets and the managing government records directive we went around and talked to agencies records officers to hear what they needed and what we kept hearing from them is that NARA you do a good job of telling agencies what they need to do to manage their electronic records but what they really need is the how they need more practical tools and ways to actually manage their records how to actually go out and and review and purchase some of these tools that are provided by industry so we came up with the federal electronic records modernization initiative or Fermi not to be confused with the the Italian physicist so and what we did is we started like I said we talked to a number of stakeholders we talked with OMB to see where we could get started on this we wanted to see the two goals really for Fermi is to help agencies more easily obtain electronic records management services and solutions by helping to simplify the procurement and acquisition process we heard a lot from agencies that even if they did get some resources that the acquisition process was was a big obstacle writing requirements writing the statement of work to actually go out and purchase these tools so we wanted to work with partners in the government that could help us with that and that sent us to the general services administration and we've partnered with two different groups at GSA the first is the office of shared solutions and performance improvement and this is the group that was set up in October of 2015 at GSA to help standardize shared services throughout the federal government and if you're not familiar with shared services it's basically different services that are offered that multiple agencies use so a good example is payroll there are about three or four different payroll services offered by agencies that many agencies can use like the National Finance Center is an example there's also financial management systems that lots of agencies use throughout the government and they pay a service to that pay a fee to that particular agency to use that that service so at up to that point they had not been standardized so what GSA worked to do is to have a business standards council with standard leads for each of the different big service areas so for example there's Treasury is the standard lead for financial management services OPM the office of personal management is the standard lead for HR and so all these big service areas have a standard lead and they are working to actually write standards for these shared services and the goal is to actually have commercial providers provide the services get agencies out of managing these services and have them just manage the contracts and then have commercial providers provide these services so we worked with the office of shared solutions and performance improvement and became the standard lead for electronic records management we saw that there are records in all of these different shared services financial management records HR records obviously travel records there's a grants shared service and that you know there's obviously records with grants so we wanted to make sure that our records management requirements were included in each of these shared services standards so we started working on our own standard they're calling it the federal integrated business framework and this identifies all the key functions activities and business capabilities for each of these shared services across the federal government so we have been working on products to help reach these these goals and to create these standards so the first product that we came up with is what we call the universal electronic records management requirements and we came up with this because after talking with agency records officers they said they they really needed help writing these requirements as they were going out to either write a statement of work if they were going out to buy an electronic records management service or solution or sometimes you know their IT department would come to them and say we're about to purchase a system that's going to house records what are your required requirements for records management what do we need to do to manage the records in this system so we put these requirements together so agencies can use them as a starting point when they're drafting their own requirements and what we actually did is we combed through all of our regulations our guidance documents the federal records act as well as international standards and put them into one big spreadsheet and they're divided by the lifecycle of the record so they're easily searchable and and they can sort them and so agencies can use these as they're drafting and tailor them to meet their their own specific agency requirements so the next piece of this this whole journey with Fermi is after working with GSA's Office of Shared Solutions and Performance Improvement we started working with GSA's federal acquisition services and their multiple award schedules and we talked to and this is the group that they offer contract vehicles for agencies to use so for particular functions so that they can actually vendors can submit proposals to be listed underneath the schedule and then agencies can submit solicitations under a pre vetted list of vendors so we ended up after talking with a bunch of different groups working with what is called the schedule 36 team and this is the team that runs that holds these contracts for office management and they had had for many years a contract or special item number as they call it for records management and it had been used you know by agencies for several years but it was basically focused on physical records like paper storage paper destruction filing that sort of thing we wanted to update it to include more electronic records management so what we ended up doing working with our partners at GSA is creating a new special item number specifically for electronic records management and we actually incorporated the universal ERM requirements into this special item number so now when vendors go to submit their proposal to be listed under this special item number they have to self certify that they can meet our ERM universal ERM requirements agencies it's still um agencies still have to to vet them on their own when they they submit their um request for quotation but it they can at least see at that point okay these particular vendors said they can meet NARA's requirements for electronic messages for example or social media records so um we set this up about a year ago um there are currently 46 vendors listed under the special item number we've had a couple of industry days two industry days to promote this to agencies and to the vendor community and we've seen a lot of interest from obviously from the vendor community but also from agencies that are really um interested in using this sin and we're starting to see that um agencies start using this the other good thing about this is if we can start to track um how agencies are what money they're spending on records management through this particular special item number um which we weren't able to do before that so we can see exactly you know what what the spending is like how much our agency is actually spending on electronic records management when they they go out for these contracts another product that we came up with um after setting up the sin as part of our work with um the federal integrated business framework are use cases we've created use cases that agencies can use for specific record types that agencies can use to help them evaluate vendors so it's like a standard document of the ideal workflow for example of how electronic messages um should be managed and it's a very detailed document whereas the universal e-arm requirements are very high level this is a very detailed step by step how to manage an electronic um message for example so we have a draft for electronic messages currently um we also have a draft for website and social media records um the electronic messages use cases we've actually we had an industry day on august 6 we've asked vendors that are currently listed under schedule 36 under the special item number for electronic records management we've asked them to create demos based on our use cases we selected three scenarios under the use cases and we've asked them to record demos and they'll be made available through gsa's discovery portal which is a um not to be confused with e-discovery it's a it's an acquisition market research tool that agencies can access um to help them when they're trying to make decisions about purchasing services and solutions so um they will actually post those demos on this website for agencies to see what's out there for electronic messages so they can see what kind of tools are out there help them make their own decisions about what they can use to manage their electronic messages and we've actually heard some really good feedback from vendors on this as well because they've said we know now we know what agencies need when they're managing electronic messages these are very clear requirements um that we can work through with these use cases so we're hoping to develop we're developing more as I said we have a draft for websites and social media as well they have to be vetted by the business standards council um one of the other great benefits of being a standards lead on the business standards council for shared services is that we provide input to the other standard leads standards as well so we um have been able to review use cases um from the treasury for financial management and hr to make sure that electronic records management requirements are included and that really eases the burden on records officers they don't have to worry if their agency goes to use these shared services they don't have to worry about the records I know um from my own experience at an agency I spent a lot of time trying to figure out how are our records going to be managed in this travel system for example that we were using as a shared service so now um agencies know that these records are being taken care of on a government-wide scale um so that's really one of the benefits that we see in being a standard leads on on the federal integrated business framework so um I think that's a good over that's great that's great I know it's a lot and uh Jonathan you're gonna be on deck I do want to get uh to make sure that the archivist question uh to us is answered it was a question from the floor Courtney mentioned social media and and websites and Lawrence Courtney um can you just make clear for everyone here about the federal record status of uh social media and electronic messaging generally um and you can also answer a FOIA question on that too but why don't we start with federal records so um from a federal records perspective and Alex and I were talking before the panel um so the answer is fairly easy it's a yes so in the federal records act uh there are a few categories that are very clearly defined as far as what a record is and what a record isn't it's a whole lot easier to say what it isn't and that's generally stocks publications library museum materials um copies of records maintained for purposes of reference so everything else if an agency uses it to conduct business regardless of what it is or what format it's in whether it's a text the voice message um if it's used in the conduct of business it's a record and it always surprises me because I occasionally get mess questions from agencies like well we we don't want to call any of our voice messages records it's like what are you thinking um it's you know it's obviously a record you use it to conduct business so it's um it's at least fairly clear to us um and of course when it's not clear we we have lawyers who can help straighten things out for us but yes uh and I think there are FOIA implications for every forum of electronic object which is about government business and so we can talk more about that Jonathan uh so we are we are in a world of difference for lawyers especially after the rules changes and the federal rules of civil procedure in 2006 so tell us something about your practice of e-discovery and the kind of issues that you face with electronic evidence that in part you know could relate to government records but um you know have a slice of life discussion here about your uh your world that you manage uh at redgrave l lp so a slice of life discussion that's an interesting concept I I think I'll probably be a little bit broader but maybe a little more focused if I can do both at the same time I think what's happening in private practice of law is going to have a substantial effect on the practice law period including how it affects uh federal agencies um state agencies everyone else that's involved in the legal profession let me explain a little bit there are a lot of concurrent factors it's not just electronic evidence or computers but um the the marketplace in the world is changing so our law firm we have a trademark tagline information matters and it's on tondray about we think information matters and we also deal with everything that's a matter about information where do you find it how do you search it how do you produce it and things like that and we look at our marketplace is very different in most firms think of product liability or they think of some toxic tort or something else we've zeroed in on the cio's and where the data is and what really matters which is a very significant parallel when you think about record keeping in the federal government it doesn't matter if it's do l do d e p a you name it it's where where's the record where's the information about what this agency has done or does and what's the posterity and what falls within the federal records act right so uh from our perspective we've seen the world differently in a lot of other firms and I think where the market is going to push is to changes like that the business of law is going to change tremendously with litigation funding in the UK today there is a placement um public IPO of the largest law firm to date raised like 95 million pounds as far as you know private investment in law firms uh we don't have that here in the United States yet but I think there's tremendous push coming back for that and what does that mean well it means that I just told you earlier today about lawyers not being very innovative well if other people are owners or investors in law firms suddenly they're going to be pushed towards innovation and technology and how it impacts information is a huge place where innovation is taking shape whether you call it AI or anything else and I think there there's a lot that's going to happen there now at the same time another concurrent factor is going on today is the reality of privacy finally waking here in the United States whether you look at California with the CCPA you look at all the efforts now they're starting to bubble up here on the federal level uh to finally make privacy a greater priority you certainly have more emphasis uh among the lawyers suddenly waking up and saying gdprg or us clients could really be uh affected by this so there's a lot of things coming out with the privacy that then intersects with the pace of technology change right everything's changing so fast collaborative platforms messaging platforms we haven't even thought of before and then the great thing I think Jason has described differently but there's the massive amounts of data at any place whether you're a private or public sector and the reality of an ocean of data how far down in an ocean do you think you can actually see light does anyone know the answer to that Jason do you know how far down in the ocean you can actually see light 200 meters then it disappears okay it kind of goes to a greenish gray light for a little bit uh been at a thousand you're definitely see nothing nothing and your ocean can be as deep as 11 000 meters okay what's the reality here the more data we get the less i mean it's funny you think about sunlight being the best disinfectant and we need to get access to information well then someone says you need to keep all the information well wait a second suddenly there's an opacity that's created by keeping everything and then this is where we get back to artificial intelligence ways in which to search which Jason and I have talked around the world on and the reality that you really need to apply technology to help us find what really matters to keep what really matters so we can understand what really matters farther and farther into the future whether it's for posterity whether it's for a lawsuit this is really critically important and these all intersect by the way with some fundamental truths one of the reasons we have rules of evidence in our courts is to have fairness and have some understanding that the evidence coming in is authentic it's genuine it really means what it is purporting to mean and all these artificial intelligence solutions create a quandary for the lawyers and the judges and that is how do we know it's true how do we know that we're using an algorithm to find things that didn't cheat or someone didn't make it cheat or it didn't fail okay used to be we just trust people and have some measure of trust we could sample or do something and maybe that's part of the solution on the technology but what's happening today is the lawyers are actually skeptical because they're just skeptical by nature the law school makes us very jaded but the jading is actually kind of good because it makes you question you really ask what's going on so what you're seeing now is this real tension between the potential of technology which can be fantastic to help us find look at relationships understand data like never before be able to make it so we can understand it years from now maybe in different ways but we can get rid of things that don't matter the clutter the things that are actually going to cloud it how do we actually make those decisions of determinations this is really one of the most fundamental challenges from the legal perspective of how do you actually start making these decisions about how you clear out the information so you've got a clear body of water that you can search and you know you kept the right things that your technology you applied didn't skew it that's that's not insignificant right because if you keep the wrong stuff you didn't keep the right stuff it changes everything and there may be no way back so these are some of the things that I you know just kind of mused about we actually talk to our clients we've got very large clients all around the world they are actually concerned about this not just from a legal compliance standpoint but their role as a good actor in society what do they want to do much like practically every person that works in the government right what do I do to do my job right what do I need to keep what do I need to make sure I'm doing to ensure that the agency record is the way it should be so the next person or the people that want to get us and see what we do through a FOIA request can know we did the right thing it's great to say it but how does this intersect with the technology how does this really get us you know to a point where the lawyers and a judge looking at one day will be able to look at retrieve and understand what we did so these are some of the challenges Jason that quite frankly from the private practice of law we're seeing our clients kind of fight with and tussle with and stuff that I've read but you know I know lawyers for the government also deal with you and I have been part of a movement to educate lawyers about AI and about using new advanced ways to search for information I will continue to be an advocate in the FOIA world for the FOIA officers in agencies to adopt at least to think about adopting advanced search techniques for going to capstone repositories and to going through data sets that are very very large held by government agencies in response to FOIA and in terms of records management I know that we talked about AI and transparency and about skill sets so maybe we should orient in the few minutes we have left the skill sets of the future dealing with a world of AI that we know is there and coming whether it's auto classification of record schedules or just you know any kind of AI function that government is part of talk a little Lawrence about a skill set of the future for records bandages what are your expectations right so the company we just had and before Jonathan started talking and in sort of the question about what is a record within agencies by and large it's not really the question they're asking it's like okay we know what we got our problem is how do we capture it how do we manage it because of the issues that Jonathan was talking about the volume of data the the world that we live in which is very data centric very tech driven we and it's critical that we as a leader in records management at the archives are successful with projects like Fermi because one of the things that we want to do is actually not burden staff within agencies for the records management responsibilities in terms of what Jonathan was talking about the only way it's going to get done effectively is if we use the tools like AI to make sure it's done effectively building in or baking in the ERM requirements into processes where these records are are created so you know that that's one of the things that we've been working on and it's actually a central part of the vision of our office within the office of the chief records officer where our goal is records management happens automatically you know with minimal end user intervention so that we use the technology that we have available to us and we know is ever improving to do the things that we know needs to be done so that agencies and their staff can focus on mission we would all love to think that someday records management is going to be as important to someone working in in NASA as it is to putting people on the moon but realistically we're probably not going to get there we can strive for that but what we can do is try and and drive what we have been successful doing so far in working with the vendor community to to bake in requirements to to make records management more effective and transparent to the user so what does that mean for the records manager I mean I say that sometimes and they say what are you doing you're getting rid of my job so we're not getting rid of your job we're changing your job there's still going to be a need for efficiency and effectiveness there's still going to be a need for someone to advocate for evidence and accountability but what we really need to see happen in the future the the skills of the records manager is one more of partnership and coalition building working as part of an information governance team so what we recognize now I mean we we now since January of this year have this chief data officer we have chief technology officers we have CIOs we have FOIA professionals they're all part of that information ecosystem the records manager and that that community needs to be represented there on the same level and that's you know going back to my earlier remarks that's what we've been trying to do and elevate the profile of records management to get them at the table to be able to partner on these information management issues so I think you know those are the kinds of skills that we want to see in the records managers of the future we need to get them out of the basement we need to get at its table with the people who make decisions about information and advocate for the the tools the AI the the machine learning tools not just from the mission work but to support the mission work and make everything that we do in agencies more effective if anyone has a question go to the microphones we'll keep going for a couple more minutes until Martha stops me and let me say that the world is changing uh and in lots of ways agencies have to adopt to the fact that we are a very mobile workforce and the cohorts that are coming into government are going to have expectations about using the latest and greatest apps and technologies and not just rely on paper and not just rely on the past there's a whole range of technologies that are out there that we have to consider the internet of things will bring in all sorts of new data sources to government a blockchain records are going to emerge in the next decade is important in some government agencies 5g capability will make all sorts of connections imaginable and driverless cars and all sorts of ways may change our lives there'll be new types of records dna sequencing all sorts of things so we we uh we can imagine a world of possibilities that the records manager can have to expand their consciousness about what kind of records are being managed at at various federal agencies we have a question yes besides storing records nara has the responsibility of making sure that the public will have access to the records i work for the air force declassification office one of our main responsibilities is to review records paper records and separate the classified from the unclassified so we deliver the classified separated into national security information and restricted data formally restricted data which nara files away and then there are the unclassified records that the public will have access to are you asking your vendors to make systems that will allow us to easily review electronic records and separate them such that the public will have access to the unclassified but they won't be able to see the classified because those may be on the same server that the agency uses so i guess i'll jump in first you're the chief records officer so well Courtney has a lot of experience with this working for me and the vendors but you know sort of at a high level i mean what we do and what we see our role is establishing the requirements at you know universal means that can be applied across the government there's always going to be a need for agency specific requirements and certain agencies are going to need to adopt and establish differing requirements around national security that also need to be implemented in systems so the answer is we have to work with agencies to make sure that you know the needs of the public and for that information are accounted for in our requirements otherwise the systems don't get built the vendors don't build them and then there's nowhere for our agency customers to go to get the tools so we we have been concentrating on unclassified so far but in the use cases that we've developed we have a scenario focused on access specifically focusing on FOIA so that it's included but we can you know we're still developing these use cases we're still taking comments we have like i said we have the website and social media that are being reviewed now that will go out for public comment just like the electronic messages did on our blog records express so we will take comments and we can develop use cases that would address classified as well and should that come from our records manager sure or you can and it can come from you too we take them from everybody thank you have a question here kind of what is the role of records retention schedules at this point it seems like this body of particularly electronically generated information just expands exponentially and agencies although they might have retention schedules that say certain records should be retired or destroyed i i think for the most part that's not happening and so for in the FOIA context you know you may find your agency may find itself in the position of having to do a search of this massive body of material you know maybe half of which shouldn't even exist under the records retention schedules at the point when you're doing the search so what is your suggestion for agencies regarding records that are you know really shouldn't be there so we we work with agencies to establish record schedules for the purposes of efficiency and effectiveness so they are mandatory their legal documents and they need to be executed now we know and we recognize not just with schedules but with a lot of other things implementations always a challenge within agencies so it's much i won't say it's easier but it's a little bit more straightforward to establish the policy but then getting all agencies in compliance with it is why we do oversight so i mean the answer is really i think one of education within an agency again the the various disciplines and customers and users within an agency need to understand the purpose of a record schedule why it's there why it needs to be implemented to make to make it easier to find information and minimize risk because if the information is not required by law to be there then it shouldn't it shouldn't be there so that's part of the reason why i think the records officers and and the the records management community with agencies need to really take some time to figure out how to communicate the value of a record schedule and the value of disposition going forward because i don't think it's it's readily understood and agencies are exposing themselves to risk unnecessarily because of that we want to thank you and i my last word on this topic i think we could go for hours on this is that whatever the future of record keeping is i really hope lawyers will not be rendered extinct in an age of automation so i want to thank the panel and thank everybody you've certainly given us a lot to think about um regarding the future of records management so thank you again to all the panelists and i will now turn things over to the archivist who will introduce our last distinguished guest so thanks for sticking with us you're in for a real treat first um thanks to all of our speakers who provided great food for thought this afternoon on the future of electronic record keeping and a reflection on the past the present and the future of ojas hearing from all three branches of government today was particularly enlightening earlier we had the pleasure of hearing from senator john cornyn of texas now i would like to introduce senator patrick lehi of vermont to close out our celebration of sunshine week this would be the third time that senator lehi has joined us to mark sunshine week and i want to thank him and his staff for their support of this their support of this program senator lehi has often mentioned that has often mentioned that as a printer's son who grew up across the street from the vermont statehouse his interest in open government started early he served for eight years as a state's attorney in vermont's chittenden chittenden county and was elected to the senate in 1974 the same year that congress passed its first amendments to foyer senator lehi's has had a hand in every amendment to foyer since 1976 1986 1996 2002 2007 and most recently with the foyer improvement act of 2016 ranking first in seniority in the senate senator lehi has been the chamber's leading champion of open government and of foyer in 1996 he was installed in the freedom forum's institute freedom forum institutes national foyer hall of fame and two years later was awarded the zenger award for press freedom one of only two politicians to win the award since the university of arizona began bestowing it in 1954 senator lehi is a leader on internet and technology issues and was the second senator to post a home page among the issues he has championed are protection privacy rights copyright protections and online freedom of speech senator lehi is a long-standing member of the senate judiciary committee which he chaired from 2001 to 2003 and again from 2007 through 2014 during his chairmanship in 2002 he began working across the aisle with a freshman member of the of the committee senator john corn in the texas on freedom of information issues and that legacy of their partnership is reflected in the foyer statute itself for it is their work that helped ensure passage of the last three amendments to foyer please help me welcome my friend senator patrick lehi thank you i feel thank you i feel fortunate being here with david he's done so much for this country you know the i always worry that we seem to think that our country and our history is based on something we might have seen online briefly or a tweet of some sort our history and the history of a great country and a great democracy is here and it also talks about the things that we done right and things we've done wrong it's all here and we have somebody like david who have it there honestly laid out that's a treasure for us just as a treasure when we were just talking about being able to go in and seeing the treaty from the louisiana purchase with napoleon signature on it these are not copies these are real and i think of the work david you and the others do here at n a r a sorry n a r a is our nation's historian and therefore our nation's mirror as we look to challenges ahead we should always try to live up to the ideals of the founders and sometimes we do but n a r a ensures we have the knowledge to learn from our mistakes and we will make mistakes and have made mistakes but learn from them so we can build also upon our successes such advancement and diffusion of knowledge remember james madison said i james madison is president my first term said that's the only guardian of true liberty so we have sunshine week thank goodness let's us reflect upon the fundamental principle the democracy is hidden from the people there's no democracy at all just think about that you hide the democracy you hide what you're doing that's not a democracy our government's litter legitimacy is based on the consent of the govern but how can the govern know what to consent to if it's hidden from them so this week we push ourselves the idea the path toward a more perfect union requires us to lay bare and scrutinize our mistakes and our imperfections you're not a perfect union by saying you're a perfect union and what you're doing is hiding your mistakes from the beginning of my time in the senate 45 years ago transparency has really been important to me maybe it's growing up in vermont and growing up across the march state house anybody could walk into anything and ask any questions and then for 20 years as either chairman or ranking member of the senate judiciary committee i i tried both to protect and there were those who wanted to cut back the freedom of information i wanted to protect it i wanted to expand it and you said we've had by parson house i think of john corner and he and i had both posed apart politically as anyone could be but we both believe in the same thing the government's doing something we all know what the government is doing hasn't dwindled since i left as the top democratic judiciary to become the vice chairman of the appropriations committee in the f y 2018 omnibus bill which kept the government open excuse me enacted march of last year i included a provision making congressional research reports available to the public they've never been available to the public but american taxpayers funded these reports and they're excellent but they aren't available to the public now we often use them to inform what legislation impacts our lives well it shouldn't be just available to well-funded lobbyists through a subscription now they're available to all americans and i think that makes our government more accountable certainly makes our congress more accountable but even more importantly it makes the american people more knowledgeable and in the 2019 appropriations minibus my author provisions instructing both the departments of homeland security and justice to apply foyer requirements to private contractors they were housing detainees and inmates but it's our dollars they're paying for it and because their private doesn't mean we shouldn't be able to know what they're doing we've had rampant abuses of private detention facilities and prisons these have largely been hidden from public view because they haven't been subject to federal transparency requirements but these private contractors are engaged in fundamentally government operations after all they're holding american citizens locked up and they shouldn't be given or shouldn't be able to escape scrutiny because of a blind spot and our laws our government should never operate in the shadows by proxy and we'd be fooling ourselves we failed to acknowledge the challenges facing foyer in the months and years ahead but a recent audit of government wide foyer requests the average processing time most agencies is hundreds of days longer than the 20 day that's established by law there are a few pending foyer requests that are decades old and there are some agencies with tens of thousands of backlog foyer requests now one of the things I think Senator Gordon and I have agreed on is that a lot of administrations republicans and democrat alike have had less than stellar track records of the foyer but let me be a little political here the trump administration gets the prize they have demonstrated a particular aversion to transparency and to the truth they have been the worst offenders just last week I joined a bipartisan group of congress members including not surprisingly senator corn who spoke here earlier today we condemned the department interiors recent proposed foyer rule although congress made it crystal clear that agencies cannot deny foyer requests for reasons unrelated to the core interests protected by statutory exemption their proposed rule would allow the agency to do precisely that they had a list of bureaucratic justifications to deny requests now in the last two years we've seen numerous examples where regional agency officers were ready to provide responsive records to foyer requesters but then they were overruled by political appointees to the agency's dc headquarters we've seen agencies absurdly denying requests for very specific reports or for a very narrow set of documents but they said well they're overbroad we've seen a proliferation of pro former responses rejected requests on grounds entirely unrelated to the underlying request requests will come in from here the request will come in from here entirely different things pro forma objections raised in one instance you can't make this up for ours there's a lot of work and finding some of these we found a draft report was without because the requester did not provide a date of birth or a death certificate for the subject of the request this is stupid this is balderdash such examples i'll explain that work such examples remember i'm older than you such examples make a mockery of our nation's transparency law i mean can you imagine it's almost like what can we do to put up roadblocks here oh i got a great idea do they have a death certificate for the person they're requesting information on the list of transparency under the trump or the threats of transparency under the trump administration goes on it goes beyond for you the president's ongoing opaque ties to his business organization makes it impossible to know whether foreign governments and corporations are able to carry favor with him by spending money on his business the administration has issued an unprecedented number of lobbyist waivers to its appointees but they've done it in secret they prevent the public from knowing whether trump agency officials are simply continuing their advocacy on behalf of special interest in their official capacity it's almost like they're a government onto their own we had a cabinet member it's finally forced out for conflicts of interest it required his staff to raise the flag when he entered the building it's not bucking him palace he's entering it says office this was noted by republican democrats alike when he drove by on the way to john mccain's funeral every government office and all private officers had their flags lured to half staff not this one not this department until recently their series concerns the justice department will conceal much of the special counsel's report from public view due to separate internal doj policies first of the president should not be indigable in office and secondly the uninvited individuals should not have their reputation solid by the department well those are good on the face of it but they shouldn't be used to hide presidential misconduct if that's what the special counsel find that'd be whether it's a special counsel for this president or special counsels and two former presidents so i'm a lead cosponsor of the bipartisan special counsel transparency act that would compel public disclosure of the report and i'll support all efforts by both republicans and democrats to make that report available so in conclusion let me say the task of transparency is an uphill climb but there's so many reasons to be hopeful the american people have spoken for more transparency and accountability in our government and i think congress is suited to do just that just know your work is not done keep at it keep raising questions we want the spotlight out there we don't want it turned off some of us want to keep our hand in that switch and keep the light on but we want to know where to shine it so don't hesitate don't hesitate calling writing us talking to us you know every well-paid lobbyist well well let's make sure the american people don't thank you very much and david thank you for the opportunity okay not this way okay thank you we have a vote on in a few minutes i've i've got to go back i don't want you to have to file a freedom of information act to see if i gotta speak and take it on the way back take care thank you thank you senator lehy that was that was really a pleasure to have him here and speak to us today i know we're all kind of eager to get going i think we actually stuck to our schedule so i'm very proud of that thank you to everyone who participated in our event today for being here in person or watching us remotely i want to give a special thank you to my absolutely amazing oja staff who was absolutely instrumental in planning and executing this great afternoon i couldn't have done it without them a special thanks to special assistant to the archivist marie mcdonald and to john hamilton and john worton our director and deputy director of congressional affairs also special shout out to our special events and a v staffs you guys are always do a great job of keeping things running so thank you if you would like to learn more about the work that ogis does please um read our annual report it is now available online at www.archives.gov backslash ogis uh we have included a brief summary in the handout that was available please read our blog the foya ombudsman and follow us on our twitter handle at foya underscore ombuds thank you again for joining us for sunshine week celebration and we hope you will join us again next year bye everyone thank you