 Ladies and gentlemen, welcome and thank you for joining today's FOIA Advisory Committee meeting. Before we begin, please ensure that you have opened the WebEx participant and chat panel by using the associated icons located at the bottom of your screen. Please note all audio connections are muted and this conference is being recorded. You are welcome to submit written questions throughout the session, which will be addressed at the Q&A part of the meeting. To submit a written question, select all panelists from the drop-down menu in the chat panel, then enter your question in the message box provided and sent. If you require technical assistance, please send a chat to the event producer. With that, I'll turn the meeting over to Davis Burrio, archivist of the United States. So please go ahead. Good morning and greetings from the National Archives Building on Pennsylvania Avenue in Washington, D.C. This Friday marks one year since the Freedom of Information Act Advisory Committee last met in person in this majestic building, elbow to elbow bumps and toe-to-toe taps, replaced handshakes, hinting at what would occur just one week later, sudden physical distancing that forced us to work from home, or at some say, live at work. These are interesting and difficult times for all of us. March 3rd marks the 150th anniversary of Congress passing legislation to reform civil service, creating a system in which civil servants are hired based on merit rather than politics. Today, there are roughly 5,000 full-time FOIA professionals across the government, civil servants and contractors who work to administer and respond to FOIA requests without regard to politics. Their work is more challenging than ever in these times of misinformation, political division, and public health challenges. I want to thank the committee for working so diligently and thoughtfully to strive toward a FOIA process that works better for all FOIA processors and requesters alike. The committee today is exploring an idea that several committee members began discussing near the end of the third committee term, whether FOIA should apply to legislative and judicial branch records. There's no easy answer. Committee members, I appreciate your curiosity and thoughtful deliberation about this and other important FOIA matters. Finally, I'd like to invite all of you, committee members and the public, to the National Archives' first virtual Sunshine Week event from 1 to 3 p.m. on Monday, March 15. Please sign up by event-brite or tune in to our NARA YouTube channel. Senior U.S. District Court Judge Royce Lambert and friend of the National Archives will headline the program. Judge Lambert is no stranger to FOIA having ruled in hundreds of cases related to FOIA over the years, provided that he's joining us to observe Sunshine Week, an annual nationwide celebration to access public information. Our event also will feature a panel titled U.S. Transparency Landscape. Where do we go from here? FOIA Advisory Committee Alexandra Perlop-Giles is one of the panelists. Details are at archives.gov. I hope to see you there. Please continue to take care and stay safe, and I now turn the meeting over to Committees Chairperson Alina Simo. Thank you. Great. David, thank you so much. We really appreciate you being here. And if you can stay around for a little bit, that would be great. If not, who knows, I'm really good today. I will be in and out. Okay. Terrific. Good morning, everyone. As the Director of the Office of Government Information Services, OGIS, and this committee's chairperson, it is my pleasure to welcome you all to the third meeting of the fourth term of the FOIA Advisory Committee. I hope everyone who's joining us today has been staying safe, healthy, and well. I would like to reintroduce to everyone the committee's designated Federal Officer, DFO Kirsten Mitchell. Kirsten, are you leaving? Thank you. She's going to help me stay on track today, as she always does. And I look forward to a great meeting today. I want to welcome all of our committee members. Express my gratitude for your continued commitment to studying the current FOIA landscape and developing consensus recommendations for improving the administration of FOIA across the federal government. We are all here today, except for Linda Fry from Social Security Administration. She cannot be here today, but hopefully she would be joining us next time. And Kirsten has advised me that we can dispense with a roll call, so I'm just saying hello to everyone. We definitely have a forum, so that's all good. I also want to welcome our colleagues and friends from the FOIA community and elsewhere who are watching us today, either via WebEx or in a bit delayed fashion, NARA's YouTube channel. So busy agenda today, as we always do, so I will do my best to make sure we stay on track so we can end on time. And despite today's ambitious agenda, we will leave time at the end for public comments, and we look forward to hearing from any noncommittee participants who have ideas or comments to share. We will open up our telephone lines for the last 15 minutes of our meeting today. OJIS staff is monitoring WebEx and YouTube chats, so feel free to chat at any time if you have questions or comments. You may also submit public comments, suggestions and feedback at any time by emailing FOIA-advisory-committee at nara.gov, and we will post them on the OJIS website. So some housekeeping rules for today. Meeting materials for this term, along with members' names, affiliations and biographies, are available on the committee's Web page. Click on the link for the 2020-2022 FOIA advisory committee on the OJIS website. Please also visit our website for today's agenda. We will upload a transcript and video of this meeting as soon as they become available. And all submitted comments will also be posted on our website. A reminder that the FOIA advisory committee is not the appropriate venue for concerns about individual FOIA requests. If you need OJIS assistance, you may request it by sending us an email at OJIS at nara.gov, so we ask that you do not do so through our committee's email. This March of 2020, this committee has met virtually a few times now, so we're getting better and better at it. The virtual environment has many advantages as we're all learning, including what I keep referring to, like business on top and a little party on the bottom. And the disadvantage for me, however, for me and Kirsten, is that we're not always able to see committee members raising their hands or eagerly leaning forward to ask a question or make a comment, as we would normally if we were all in the McGowan Theater. So I will be doing my best to monitor committee members' non-verbal cues during the webcast. But don't be shy, spend us a chat or just, you know, violently express yourselves with hands or standing up and down if you want to ask a question or make a comment. But please be respectful of one another, try not to speak over one another, although I realize that sometimes is inevitable. I do want to encourage committee members to use the all-panelist option from the drop-down menu in the chat function if you want to be recognized or you could chat me and Kirsten directly. But please, in order to comply with the Federal Advisory Committee Act, please keep any communications in the chat function to only housekeeping and procedural matters. No substantive comment should be made in the chat function if it will not be recorded in the transcript of this meeting. If you do need to take a break, which is understandable, please do not disconnect either audio or video of the web event. Instead, put your phone on mute and just simply close your camera. Send a quick chat to me and Kirsten to let us know if you'll be gone for more than a few minutes and join us again as soon as you can. We have noted a 15-minute break at 11 a.m. on our agenda. We may break a bit earlier or a bit later, depending on our pace today, but we'll definitely give everyone a break. And an important reminder, please identify yourself by name and affiliation each time you speak. I know it's hard to remember that. I often forget that as well, so I'm equally guilty, but it does help us down the road with both the transcript and the minutes. And Kimberly Reid, who is helping us out, our National Archives colleague, is going to express gratitude for that, I'm sure. All of the form done and transcript and minutes that I mentioned will be posted on the website are all required by the federal advisor. So the first thing I want to turn to is to approve our meeting minutes from December 10th, 2020, our last meeting. But let me just pause for a second before I go on to the minutes. Does anyone have any questions so far? Is everyone sympathetic? I'm not seeing anyone violently raising their hands. Okay. So let's turn to the minutes. I did email them to everyone earlier this week. I pretended to be Kirsten. I failed miserably. I did not change the subject line of my email to Wednesday instead of Thursday. So I probably confused some people, but in any event I did circulate on, I hope everyone would have a chance to look at them. Kirsten and I will certify the minutes later today to be accurate and complete, which we'll require to do under the Federal Advisor Committee Act within 90 days of our last meeting. Does anyone have any concerns, comments, questions about the minutes? Yes, we're here. Sorry, let me just say that on, and top half, let's just commit this in writing, but on page eight, I think under the summary, there may be a possible mistake where it says, I'm sorry, it says on page nine. So the second item is how agencies can proactively classify documents to better meet the needs of the community. I think that should be declassified documents. So that's one, and I could check for Kirsten about this, but she's probably the item that we were considering looking at at the time. Okay. Julie noted. Kirsten, we got that right. Yes, we have made that change. Thank you, James. Is there anything else that we missed? Okay. All right, great. This is exactly why we asked everyone to look. So we want to make sure they're after it. So other than that change, which we are now making, that James just suggested, do I have a motion to approve the minutes and their form with the change that James just asked for? This is Tawana, so move. Thank you, Tawana. Do I have a second? Second. James, thank you for the second. All presidents in person virtually in favor of the minutes, please say aye. Aye. Okay. Is there anyone opposed? No opposition heard. The minutes are approved. We will make that change, James suggested, and we will post those online as soon as we can. So before we turn to the next agenda item on our agenda today, the subcommittee report, I have just a quick update or two. Since we last met on December 10th, we have advanced several prior FOIA advisory committee recommendations and updated our committee recommendations tracker accordingly. So hopefully Mr. Ferriero is hearing this and is excited about the fact that we're making some progress. Earlier this calendar year, my OGIS team launched five cross-training programs in which professionals from other National Archives offices are assigned to OGIS on a part-time basis to work on completing past FOIA advisory committee recommendations. So we're very excited about that. The projects include compiling briefing material for new senior leaders, working with the Office of Information Policy and NARA's records management experts on updated training material, reviewing information agencies make available on their websites about the FOIA filing process, and reviewing agency performance plans to see if FOIA is included as a criteria. In the interest of time, I won't mention other updates, but I do want to encourage everyone to check our dashboard on our website. We're very excited to have previewed our dashboard and keep it up and running, and we're going to be updating it as needed. So please stay tuned for updates. And just a quick thank you to all of our cross-trainees, and we really are very grateful for all of your help. So we are right now at almost 10.20 a.m., two minutes early, but I'm now ready to turn to our subcommittee reports for today. We will hear from each of our four subcommittees. I do want to point out that we have recently posted mission statements for all four of our subcommittees, classification, legislation, technology, and process. They're all available on our main OGIS webpage. If you scroll down to what's new, we'll see them all there. So thank you very much to all four subcommittees for getting your mission statements finalized and approved by your subcommittees. I am very grateful for that. So any questions before we proceed to hear from our subcommittees? Okay, everyone looks excited. Great. Okay, so first on the agenda is the process subcommittee. Michael, unfortunately, you don't have Linda with you today, but I know you're going to do a great job giving us an update on the work of your subcommittee. So Michael, over to you. Yeah. Thanks so much. And I'm very excited because it's perfect timing. I just finished my breakfast, but we've had a really, really wonderful group of folks from both the Requestor and the Processing Community on the FOIA Advisory Process Subcommittee. What we're really investigating is the implementation and impact of prior recommendations to kind of start things off. The FOIA Advisory Committee has been going on for a number of sessions now. And so what we wanted to do was sort of see how previous recommendations had the impact that we hoped they would and sort of where can we steer our efforts to maximize impact and positive reforms within the FOIA process for all the constituencies. I do recommend checking out the OGIS dashboard, which has been tracking the implementation of prior recommendations. It's a really wonderful resource. And it's been really helpful for us as a process subcommittee. It's been really great seeing all the ways that prior work has flowed through the creation of new processes, improved acknowledgement letters, and much, much more within the FOIA process. As part of our information gathering, one of the things we're doing is we're coordinating with groups on a Requestor Community Survey that we hope to go out during Sunshine Week to help get insights into what's the perception of these changes and what areas the Requestor Community feels have not seen improvements. We're also working on bringing in guest speakers to our subcommittee to hear about how other jurisdictions, including state and local jurisdictions within the United States, as well as the other international FOIA experience and right to know experience in other countries. We're also going to be inviting in some agencies a process request so that as the process subcommittee we can really understand sort of the internal lifecycle of requests and identifying challenges that they have. We really want to make sure we include both large and small agencies because each agency has its own unique challenges and opportunities for improving FOIA processes. We've also been really excited to coordinate with other subcommittees on a variety of key areas such as the use of technology, ways to think about litigation, and other areas where a process kind of intersects with lots of different other subcommittees. Some things that we could use your help on, whether you're another member of the advisory committee or an attendee at today's session from either the Requestor or the Processor Community. What questions do you think we should ask the FOIA Requestor Community? We are trying to get the survey together in the next couple of weeks so that we can send it out and promote it during Sunshine Week. And we're really interested in what are some questions we can ask that can help highlight frustrations, challenges, and opportunities within the FOIA process. Our hope is that we can use these survey results to kind of guide us to make sure that we're processing on the most important, most impactful areas of the FOIA process as well as helping focus future reform efforts. One other thing we love is examples of who gets the FOIA process right. We'd love to hear examples both within agencies that maybe you have interacted with in the past or maybe you've worked at it in the past that had a really great FOIA process that left kind of everybody satisfied and built a healthy culture of transparency. But we're also kind of interested in sort of the international experience. So in other countries, what can we learn from their other laws? What can we learn from other processes and setups? And so if you say, you know, know of other places that are doing public records and transparency really right, we'd love to hear those examples. And then we're also interested in sort of folks who've been kind of pushing for these reforms. Maybe you're involved in kind of pitching or helping get a prior recommendation implemented. And we'd love to kind of hear sort of reflections. I think one of the things is on the requestage community, I feel like there's not enough discussion about what has positively changed the last few years. And so maybe that's because FOIA requesters are just a pessimistic bunch that always wants more. But also I'd love to kind of hear if you pushed for a change or you pushed for a prior recommendation and it was implemented and maybe it didn't kind of work out as you had hoped or you expected. That kind of feedback is something that we're really interested in working on because we want to make sure that as we do implement these changes and there have been a ton of changes implemented over the last six years in the FOIA processes. Are we actually addressing some of the brief challenges within the FOIA process? And if other changes need to be made, we want to be making sure our recommendations are a change to those. So yeah, it's been fantastic working with the rest of the process committee. Those are three areas we'd love to hear back more on either during the open comments section or feel free to reach out to us as subcommittee members. Okay, great. Michael, thank you. Anyone else from the process subcommittee want to add anything? I just want to give everyone that opportunity. I'm seeing some noes. Okay. Any questions from other committee members for the process subcommittee? Any ideas or questions that the process subcommittee should be including on the survey? Or if you're thinking about them, you can chat them later. I'm hearing some silence. All right, Michael, thank you so much for that report. We really appreciate it. And thank you for all the hard work. The next one, the agenda is the Technology Subcommittee, Co-Chairs Allison Dietrich and Jason Gart. I don't know who's presenting, Allison or Jason, both, but I'm going to turn it over to you now. Jason, did you want to start? Yes, I can start. Thank you. This is Jason Gart. So we're in the information gathering stage right now. We're exploring the applicability of technical standards and best practice recommendations for federal agencies. What's the end goal of ensuring that federal agencies have the up-to-date access and impartial information on various technology solutions? Right now, we're in the process of speaking with points of contact at other agencies that have experience in technology selection process and also thinking through our final deliverables. So Allison, I'm not sure – or other members, I'm not sure if I missed anything, if that covers it. I think that's a pretty good job. We're also just trying to make sure that maybe have some end goals of what the technology for FOIA would look like, but still trying to keep in mind the needs of the various sized agencies, smaller agencies have different needs than larger agencies. That's it. I was waiting for you guys to stretch it out to 10 minutes. I'm going to ask anyone else on the technology subcommittee if they want to jump in and add anything. David Collier, you always have something to say. Okay. Anyone else on the committee have questions for the technology subcommittee? Hi. This is Patricia West from NLRB. I was just curious for the technology subcommittee. Are you all working with the Chief FOIA Officer Technology Council? I guess they're actually their own technology council. I was just wondering if you all were communicating with them. Patricia, this is Allison from Commerce. Yes, we have the process subcommittee and the technology subcommittee wound up having a conversation with one of the members of the CFO Technology Committee a few weeks ago. So we're trying to use them as a resource and not duplicate, figure out what they've been working on and what we can work on separately to not duplicate resources, but also learn from each other as well. Thank you. You're welcome. Okay. Any other, Patricia, thanks for asking that question. I know I cued you up for it, so I'll thank you again later. Anyone else want to ask any other questions? I actually had a question from Michael in terms of your survey. Are there other subcommittees that you're partnering with? Is Technology Subcommittee one of them or you're looking to other subcommittees to pair with? Yeah, I've heard, I've gotten good feedback from other subcommittee members or other subcommittees, rather. And yeah, I think our timeline is a little rushed because I put together a survey next week or so to get out ready for Sunshine Week, but I would love to kind of hear from other folks who've got ideas and feedback, so please do reach out to me. Okay, great. Thank you. Okay, well, thanks very much for that, Alison. Jason, prior, go ahead. This is Juan. I was just from the process subcommittee. I was going to add that one thing that we've been talking about is the possibility of more affirmative disclosure outside of FOIA. And a technological solution would be necessary for some of that, trying to port databases and other things. And so I think we'll be having discussions with GSA's ATNF and other technology specialists, and perhaps the Technology Subcommittee and Process Subcommittee will be putting our heads together in the coming months. Great. Thank you so much, Juan. That's a great idea. I know I've lost, I don't know why I'm not seeing Jason or Alison on my screen. Maybe they'll respond one day. They're hiding, but I'm sure you guys are there. Okay. Thank you very much for that report. Let me turn to the classification subcommittee next, co-chairs James Stoker and Kristen Ellis. I don't know which one of you guys is going to go, but... This is James. It's me. Okay. Hi, James. Hi. Good morning, everyone. The classification subcommittee has been very busy as we are a small subcommittee. We're only meeting monthly, but our meetings have been very productive as we endeavor to address a very thorny set of problems. We have a mission statement like the other subcommittees. It's posted on the Web, and I won't read it all here. The most important sentence is this one. The subcommittee will study the impact of classification on the FOIA process, the use of particular exemption to justify the withholding of national security information, and ways to improve communication between agencies and the public regarding classification. So it's a pretty broad mission in regards to classification. We've had to make some choices about how we're going to proceed. The current area of focus is the use of GLOMAR responses to FOIA requests. GLOMAR, as you will recall, is a form of response to FOIA requests that basically notes that the agency cannot confirm or deny the existence of records responsive to the request, as this would reveal a fact that should not be revealed for whatever reason. From the perspective of the requestor community, GLOMAR responses are particularly unsatisfactory because not only do they fail to provide transparency, but they don't really provide any useful information whatsoever, and so oftentimes these responses from the requestor perspective feel like a waste of time and resources. And yet from the perspective of agencies, the nature of their mission and operations means that GLOMAR responses are often used this area. There are many challenges associated with these. GLOMAR responses are often considered to be a sort of loophole in the FOIA, as they were not mentioned in the Treatment of Information Act itself, but rather developed over time as a matter of practice. They are also a black hole in the administration of the FOIA. As far as we can tell, no agency systematically tracks statistics regarding GLOMAR responses. There is a general perception that over time the use of GLOMAR has expanded, but this is not backed up by statistical evidence. There also is a lack of understanding and communication between requestors and agencies over the best ways to avoid GLOMAR responses. And so, our subcommittee aims to do two things. First, we want to collect publicly available documentation on GLOMAR responses. And then second, to create a survey or questionnaire for certain agencies about their practices in using GLOMAR. Our focus will be on GLOMAR requests that are used in response to D1 security concerns, even though GLOMAR responses are used in a variety of other circumstances as well. So, in regards to collecting documents, I'd like to say thanks to Bobby Calabrian of the Justice Department who kindly pointed us towards documents on their website, as well as to Michael Morrissey, who helped us to find some information on the Muckrock website as well. We are still looking for other forms of documentation, including agency-level guides that might explain how GLOMAR is used, and some of those we may get in response to our questionnaire. We're still in the process of drafting our questionnaire, but thus far it asks agencies to compile statistics on the use of GLOMAR to share any procedures or guides for FOIA officers regarding GLOMAR and form templates that they use. And for examples of ways in which requestors can pierce GLOMAR responses. Basically, we're trying to elicit best practices for requesters to avoid getting any GLOMAR response to the extent possible. Other than the GLOMAR issue, we are looking at some other issues associated with classification. We've discussed the idea of examining drop-dead dates for classified documents. Drop-dead dates refer to a specific deadline at which documents will automatically become declassified. This is an idea with a very long history that seems to emerge over and over as a possible solution to the problem of overclassification. But then encounters again and again objections on grounds that it may not be appropriate for all kinds of documents. However, for the moment, I think we're going to concentrate primarily on GLOMAR because it's a pretty big issue and we still have quite a few things to work out. Once we get a questionnaire developed and sent off to particular agencies, and we need to choose which agencies that's going to be, we will turn our attention to other issues. Thanks, and I'll take any questions you might have about that. Yeah. This is Tom Sussman. I have a question. James, I know it's difficult enough to get information just about the cases where GLOMAR was invoked. My early experience was that the few courts willing to reject a GLOMAR defense nonetheless find plenty of reasons not to provide any of the underlying documents to the requester. I think that would be an interesting element if you could dig slightly deeper. I don't think there are a lot of courts that have rejected a GLOMAR defense, but when they do, if there's no release following that, that would be an important fact for, I think, requesters and litigators to know. This is James again. Tom, I think that's a very good idea. So you've got things looking into court records for cases where GLOMAR has been here, and that could be a really useful source of information here. So I'll make a note of that and we'll discuss in our next meeting. Yeah, I had the first case, actually. Oh, okay. I'd love it if you'd share that for me and save me a search. I will. Thank you. Thank you. Thank you, Kristen. I just want to check in with you as the co-chair. Anything else you wanted to add to James's excellent presentation? I do not have anything to add to James's excellent presentation. Thank you, James. All right. Anyone else on the classification subcommittee want to add anything? Usually, Kel has something to say, but he might be in the process of logging back in, so. I'm still here, but I don't have anything to add. Okay, thank you. I appreciate it. I just wanted to give you that opportunity since I can't see you. Any other committee members? Any other thoughts for the classification subcommittee? All right, Tom, do you know the site? I have nothing to add. Oh, Lubna, thanks. Thanks very much. Tom, do you know the site to your first case that you litigated? I'm just turning around to look it up. I think I've got it here. All right. Awesome. Every little bit helps. Thank you. Okay. So we're actually a little bit ahead of schedule. Everyone's going much faster than anticipated. I don't have a really good stand-up act, but I'll try to have a little bit of filler. But if everyone is okay, we'll move on to the fourth subcommittees report, legislation subcommittee. Patricia Weft and Kel McClanahan are up as our co-chairs. Patricia and Kel, I don't know who's going to be presenting. I can start and maybe Kel can back clean up for me. Does that work? Okay, great. So the legislation subcommittee, we have four working groups. The one is expanding the scope of FOIA. The second is exploring ways to strengthen OGIS. The third is to look at funding for FOIA. And the fourth is FOIA fees. So we have these four working groups. Each group has a team lead. And the folks in each working group have been conducting research and beginning to line up interviews. One thing that Kel is instrumental in, is organizing meetings for the members of legislation subcommittees with folks on the Hill to discuss various legislative issues surrounding FOIA. For the first working group, which is expanding the scope of FOIA, Tom Sopciman is our team lead. He's just done a great job. Today he's organized two phenomenal speakers for us to give us an education on, you know, the pros and cons of expanding the scope of FOIA. Because one of our goals for the legislation subcommittee is to, we hope, have a recommendation for this full committee at the June meeting regarding expanding the scope. But Tom thought it best to lay the foundation and really get some wonderful speakers in to kind of, as I said, lay the foundation for this. Yeah, that's pretty much kind of what we've been doing in a nutshell. I'll turn it over to Kel to fill in anything that I've left off and then welcome any of our legislation subcommittee members to share anything that they wish. And thanks for that. I apologize to everybody listening. My computer is just not cooperating today, but I'm here. I'm not a cat. Yeah, that hit the high point of everything we're doing. The one thing that I would add is that some of our work is particularly timely right now because we're not just looking at ways to reform FOIA through, say, you know, passing a law that changes the law, but we're also looking at appropriations and options. And it is appropriation season and a lot of people are engaged in sort of working with Congress to get whatever they want into the various appropriations bills. And so with that, I would sort of reemphasize the call that other people have made of if anyone has particular ideas for, you know, ways that you think that you can improve FOIA by reallocating money, whether it be just give more money to ex-office or something more creative like setting up a pilot program for something or one of the ideas that some people have passed around, you know, creating a dedicated FOIA fund, stuff like that. We have the capacity to investigate things and to ask questions that would allow us to maybe do more than people in private sector could. So anybody has ideas for things that are targeted appropriations requests that would be related to FOIA that would be not just give more money to FOIA offices. By all means, send them to us. We're open to ideas. We're trying to find creative solutions to problems where just throwing more money at an office hasn't worked in the past. That's all, sorry. I'm not on video, so you can't see, but I will be done. But I'm done unless anyone has any questions for either me or Patricia. Yeah, the only, this is Patricia Ralph with NLRB. The other invitation that I'd like to send out to the full committee is if you feel that the legislation subcommittee can help your subcommittee in any ways, you know, please reach out to us and, you know, we'd love to work together. Yeah, one of the things that's in our mission statement actually is the fact that we expect to overlap with everybody. And so if this works as designed, there will be cooperative efforts between us and pretty much every other subcommittee. Patricia, were you going to cover the other three areas, or are you just touched on them and wanted to focus on the first area first since that's the topic for today, really? Yeah, I just wanted to kind of really highlight the first working group because that's where a lot of energy and effort has been. And we are, as I said, our goal is to get a recommendation to the full committee by the next meeting in June. And so the other working groups are, you know, doing what they need to do to get their recommendations together. But because last term, and, you know, Tom can definitely speak to this, but because last term we visited this issue about expanding the scope of LEA, but we really, it came up at the end of the term and we weren't really able to give it as much attention as it deserved. And so that was one of the first tasks that we decided to look at and start to study and see if this is a possibility for a recommendation from this term's committee. Tom, anything you want to add? No. None of this point, no. I'm saving my questions for our speakers who are excellent. Okay. Okay. Thanks. Actually, I asked Cal just so you know I said Tom, but Cal? No. Thanks for letting us know. Oh, sorry about that. That's okay. And Tom shook his head no, so we're all good. Any other questions from our committee members about any of the four-stop committees? Anything else that you want to ask each other? This is a great opportunity to do so. Ms. Rajan, do you have a question? Please. I'm curious about whether with regard to FOIA fees, is there any thoughts about getting rid of fees altogether for all the requesters and instead of having a cap on number of pages? And if your request exceeds that cap, do you pay a fee? Well, this is Cal McClellan, and I can say that while our sort of legislative focus on FOIA fees is in its infancy, that is something that we would be looking at at least the first half. I don't know that anyone has mentioned to us the idea of capping requests, but there has been in the request of community at least for a while an idea of how bad would it be if we just completely abolished FOIA fees altogether since they only raised like 1% of the expenses. And so that is one of the things that we expect to look into between that and more gradated responses. But that's definitely something that I haven't heard before, and you should... I hate to give you homework, but if you have a plan for that, definitely send it to us. We'll look at it. I don't recall Patricia who's heading up our working group on fees, is that... Allen. Allen is... Allen's last name, yeah. So send him whatever you have, and I'm sure we'll get it into the hopper. Thank you. And they have an... This is Roger again from CDC. I know the question with regard to legislation. So the bulk of requests that are received by federal agencies are received by DHS, and I would say the vast majority of them are probably first-party requests. Is there any thoughts about specifically looking at the area of first-party requests with regard to agencies like USCIS or IRS that have specifically, either when it comes to the benefit sites of the house or with removal proceedings, having basically mandated that agencies provide access to documents to first-party requests outside of the forward process. So for example, if somebody is in a removal proceeding, that agency that should be at a discovery process that they can take advantage of so they can get their document or they have to make a forward request. If that's mandated by law, that agencies would not... There will be no delays and there will be no need for people in these proceedings or their attorneys to make forward requests for these documents. Roger, this is Patricia West from NLRB. You make an excellent point. And as a matter of fact, at the previous committee's term, we touched upon that issue and one of the recommendations was for agencies to try and find another vehicle for our first-party requesters to obtain the records. And in the report, I believe we give two examples of agencies that do that very thing so that first-party requesters don't have to file forward requests for their own records. For example, I believe we referenced the IRS. If you need a copy of your tax returns, there's a different route that you can take instead of having to file a forward request to obtain those records. Another agency that has a vehicle for that is the Veterans Administration. They have a means by which veterans can obtain their own records again without having to file a forward request. So we did reference those in the recommendation last term. And I do think it's a really important issue. I know from my agency a good chunk of our FOIA request are first-party requesters. So if agencies can come up with another way that folks can obtain their records without having to go through the FOIA process, I think it's a win-win. And this is Kel McClellan. The idea of even limiting it to people who are liking some sort of proceeding, like as you say immigration proceedings, is also not without precedent. This is something that happens in security clearance cases all the time because when you appeal a security clearance decision, you have a right under the executive order to invest your file, to the file that was filed to support the allegation that begins in you. Many agencies will just process that completely separately from FOIA, which is why you get records in a month instead of three years. So there are ample possibilities of things that we could model such a thing off of. The sticking point might be, though, the idea of resources. And this is something that we would have to get into based on the fund issue as well, where if an agency is basically giving faster access to this class of person, that's going to be a human being working on an agency processing that request instead of somebody else's request. And so I expect there will probably be a lot of pushback from someone like USCIS or ICE saying, well, we're already working. Now you're telling us to do these other things. We'll never get to the FOIA request. So that's something we're going to have to address as well. But I like the idea a lot. It's just going to be sort of a thorny problem to solve. Thanks. Great discussion, everyone. Roger, you're good. Any other thoughts or questions? Just one more thought. Would you be, with regards to probably how, other than just resources, probably using technology to properly assemble the documents. You know, so don't have somebody's alien file dispressed among multiple agencies have a central repository where all the records are located make it easier to pull them. I think part of the problem is you have records dispressed which is probably what makes it difficult for them to collect them. But if they start making sure we have technology in place where an alien file which is supposed to contain all the records of a particular subject in the audience and condition of the government in one central location in the South Atlantic, at least that would be a step in the right direction. This is Luzna from the IAA. Yes, Luzna. I just wonder the class idea that Roger, you just mentioned, which from a practical perspective would be great. I wonder does that raise any kind of Privacy Act issues from the idea that each agency collects information under different storms and Privacy Act, you know, requirements. So I don't know what's going on. I'm on another meeting, so. I heard him. Someone's got a comment. So not an area I'm intimately familiar with, but I just wonder whether that would be something to consider, you know, because each agency has different authorities and reasons for pulling certain information based on their storms. So I wonder what issue if any of that might create or whether you're trying to do a centralized repository of all that information. Over. Luzna, thanks. Great point. Roger, maybe this is something you guys are already talking about in your photo party request group, working group, but definitely a very important consideration. Any other lawyers want to chime in about sworn? Feel free. It's definitely not like my favorite area to talk about. It's always sticky, but very important. So thank you for pointing that out. It was not very helpful. Okay. Patricia left NLRB. I didn't realize there was a first party working group that you're on, Roger. But one good resource for you might be Margaret Koka. We actually spoke with her. Oh, did you? Oh, fantastic. We did. We did. And we're going to have a conversation with Emily Creighton from American Immigration Council. Yeah. So we have spoken to her. She was great. Oh, good. Okay. Excuse me. Roger, this is Bobby from OITM. Another resource. This year's CFOI officer reports specifically out to agencies to report on an estimate of the first party request that they have. Can the alternative means that they're providing or plan to provide? So that could give you some examples of how the agencies are handling it. So, Bobby, do you commit to giving us a first access to the document ahead of time so we can see it before you? No. All the CFOI reports should be posted by phone sign language. Okay. We'll have an all-central link. Sometimes we ask Margaret, but we'll have an all-central link on our website. Okay. And of course, we'll look at it ourselves too when we do our summary and assessment. But all the information will be publicly available as agency's career reports. But I wanted to make sure you knew that there was a specific question on this topic. And so there's already a good amount of resources that you can look to. Thank you. Appreciate it. Great. Thank you, Bobby. I appreciate that. Okay. I just want to wrap up legislation subcommittee. Any other issues or questions for Cal or Patricia? All right. I'm hearing quiet. Actually, great segue. Before we take a quick break at 11 a.m., so we're actually back on schedule, which I really appreciate. A great segue about Sunshine Week. We have been featuring our, in our FOIA ombudsman blog, individual members of our committee. So I really want to encourage everyone to take a look. This week's feature is our very own Tom Sussman. I actually enjoyed reading his responses this week. It was actually very interesting to learn some things about him that I did not know. We have previously featured Roger, David, Alexandra, Kristen, and in the last committee, we featured Michael Morrissey and Patricia Watt. So I think we're not going to feature them again, but that's okay with them. Mostly they're not insulted by that. But we recommend everyone to look back to our blog posts from the last committee, and you will learn more about Michael and Patricia. And just want to quickly ask about Sunshine Week. Are there any events that anyone wants to share that we should all be tuning in to that are public in nature? This is Bobby. I was just at our department. The DOJ is planning to do its annual Sunshine Week kickoff event on Monday. We posted about that on our blog post. Michael has mentioned providing good examples of agencies. One thing we try to do is highlight some of the positive and great examples of agencies at this event, showing them as an example of other agencies. And we've had in the past one of my favorite nominations from the Requestor community. So if there's, we just extend the deadline for nominations for the department sometime before. So if there is an agency that does it right in your view or there's a FOIA professional that you would like to recognize and highlight, I encourage you to submit that nomination to us. Okay, great. Thanks so much, Bobby. This is Patricia Watt from NLRB. I'm just curious, does DOJ get many nominations from the Requestor community? We get them primarily from the agencies. We've had it from the Requestor community of the years. We had a couple. And of course, those are my favorite, because we get it from the other perspective, of course. And we don't get as many from the Requestor community. Great. Very interesting. Thank you. Great. Anyone else want to highlight any Sunshine Week event that you should all be tuning into? You're speaking, but you're all muted. Okay. Tom Sussman, for those of you who are in the District of Columbia or surrounding, may be interested in a program on the 18th at one o'clock on Zoom that will focus on schools and policing and COVID in the District of Columbia. So it's about an hour and a half program with two local council members and other community activists and DC's very own OGIS, the Director of the Office of Open Government will participate. So it's open. It's to the public. There's a link for registering on dcogc.org. And we'd love to have a large audience. Thank you so much. I'll leave it. This is Patricia Weth again. I just wanted to mention to the folks who are with agencies who are listening, one of the recommendations from last term was a suggestion about issuing an agency-wide memo to kind of educate the employees on the importance of FOIA. And I think Sunshine Week is really a great time to do it. I know in the past, OGIS has suggested that as a recommendation themselves and by way of example, they did that very thing at Sunshine Week as did several other cabinet-level agencies. So I'm just going to throw it out there as a suggestion that folks may want to have like their Chief FOIA Officer or a General Counsel or at best the Secretary of the Agency to send out a section memo agency-wide during Sunshine Week. Great idea. And Bob, you and I will talk about this. It's on our to-do list, so thank you. We really appreciate that suggestion. Okay. I think we're at 11.03 a.m. I'm not hearing anyone else jumping up and down wanting to say anything. I suggest we take a 15-minute break. So let's come back at 11.18 a.m. and get ready with lots of questions for our two guest speakers. And we can now take a break. Thanks, everyone. Okay. Welcome back, everyone. I hope everyone had a great break and got some coffee. So we're ready to get started on the second part of our meeting today. And I am very pleased to welcome Daniel Schumann, the Policy Director for Demand Progress, and Michael, who goes by Mike. I understand. Listen, the Executive Director of Free Law Project to our committee meeting today. And I think we're all very much looking forward to their presentation. I just want to give just a quick background on each of our speakers today. As Policy Director, Daniel leads Demand Progress and Demand Progress Education Fund's efforts on issues that concern government transparency, accountability, ethics, and reform, protecting civil liberties and strengthening the legislative branch. He is a nationally recognized expert on federal transparency, accountability, and congressional capacity. Daniel was instrumental in drafting and enacting legislation, including the Data Act, way of modernization, public access to CRS reports, publication of legislative information and data, obtaining a study on restarting the Office of Technology Assessment, and dozens of House rule changes, including the creation of the Office of Whistleblower Ombudsman. I did not know that, Daniel. Daniel previously worked as a Policy Director at CREW, Policy Council at the Sunlight Foundation, and as a legislative attorney with the Congressional Research Service. And Daniel graduated karate from Emory University School of Law. Welcome, Daniel. Mike Lister is Executive Director and CTO of the Free Law Project, which he co-founded in 2013 as a nonprofit dedicated to making the legal system more competitive and fair. And his mission is to provide free access to primary legal materials, developing legal research tools, and supporting academic research on legal corpora. And this role, Mike works with researchers, journalists, individuals, and organizations to improve and interpret the legal system. Prior to starting the Free Law Project, Mike was a student at the School of Information at University of California Berkeley, where he created the first version of CourtListener.com as his capstone project, and where he focused on technology, law, and policy. So welcome to Mike. We have agreed that Daniel will go first. Mike will present second. And committee members, please hold your questions until both Daniel and Mike have presented, at which time you'll have plenty of opportunity to ask questions, make comments, everything you want. So with that, over to you first, Daniel. Thanks. Wonderful. Thank you so much. Thank you for having me. Good morning to everyone. It's good to see so many familiar faces. We're mostly familiar. It's been a while since I've seen most of you in person. So the thing that I want to test immediately is just to make sure, is it possible to advance to the next slide? Everything is working now. So first promise that I will make to all of you is that I will not be reading my slides. These are intended largely as footnotes and reference materials. The presentation that I'm going to give, I'm going to try to keep it as short as humanly possible because your questions will always be much more interesting than what it is that I would have to say. But what I'll be covering in the presentation is the following. Some of these are things that you know, but it's useful to have a foundation for it. One is, what is the legislative branch? How does disclosure and transparency work inside the legislative branch? What exactly is disclosed inside the legislative branch and then various mechanisms to improve it? Can we go to the next slide please? As promised, we're moving quickly through the slides and there's not that many. And I promise I will not read this to you. So the legislative branch is more than CODIS. I do have to read the title, right? So the legislative branch is about $5 billion annual appropriation. Somewhere in the vicinity of 20,000 employees, it's much more than the House and the Senate. And people don't usually think about it that way. And when I think about it, I try to break it down into a couple of categories. So there's the political parts of the House and the Senate. This is what most people usually think of. So this is the personal office. This is the committees and the leadership. It's the parties to some extent. This is the political side of the House. But there's also support offices inside the House and the Senate as well. I've listed a bunch of them. There's even more. These are the folks who keep the lights on. These are the folks who move the legislation. These are the folks who keep the IT operating. This is like the whistleblower ambuds where the people who update the law in the Office of Law Revision Council. This is the... There's still some... They can be political, but they're not necessarily political and they're much less political than the elected officials. In addition to the support offices, there are a bunch of support agencies. There's about a half dozen of them. This is where most of the money actually goes. And these, you're probably familiar with to some extent. Some of these you've heard of. Some of you may have not. Places like the Library of Congress, GPO, the Congressional Budget Office, the Architect of the Capitol and so on and so forth. And then there's a bunch of sort of miscellaneous other stuff. And it's not... They're not the way that you would think of it as an agency. There's nothing else. These can be commissions or joint committees. There's a formulations component. There's the office of detainees. So there's a bunch of other stuff, these weird commissions that also exist in our situation inside the legislative branch. Next slide, please. Congress and the legislative branch is very different from the executive branch in a number of interesting ways. One is that Congress is inherently political. It is concerned about its reputation and it writes its own rules. And this is very different from much of the way of the executive branch functions. There's nobody in charge inside the legislative branch. There's no central authority. There's no rulemaking entity. There's nobody at the top. There are people who are relevant, but there isn't an entity that comes together where you can sort of make a decision about things in a certain type of way. The components inside, particularly the political components, have independence as their hallmark. You largely can't tell the personal committee and leadership offices what to do. They can do largely what they want within a series of constraints. They view themselves as sort of being 535 individual offices, not as being the House and being the Senate. So they can largely set their own processes and procedures. Much of Congress' work is correctly disclosed. They correctly disclose a lot more than you would think. And the work that they're disclosing oftentimes is both predecisional and it's deliberative. If you think about the FOIA cargoes, this is kind of the inverse of what you see elsewhere. Again, the decision would be the enactment of a law. So predecisional, all of the conversations around the bills and the amendment and about who's doing what, that is inherently deliberate, and that's inherently predecisional. We don't think about it that way, but that really is what it is. And finally, while there's a number of executive branch, a number of laws, many of these laws do not apply to Congress and they don't apply to Congress in the same way that they might apply elsewhere. Next slide, please. So I'm not going to read this to you, but there's many sources of rules and ways for Congress or its components to change how it operates. Many of these things don't require passing a law. Some of it can be just as simple as like you change the way you operate. Some of it can be a rule change. It could be appropriation language. There's a lot of vehicles, a lot of points of entry into the legislative branch to change the way that it or its components function. Next slide, please. So it's important to think about the different types of congressional disclosure that take place. And the emphasis on the kind of disclosure that happens is different than exists elsewhere. So I have made up basically six categories. Other people probably have a more appropriate hierarchy, but this is the way that I think about it. There's the mandatory proactive disclosure. So you have to get to see all the bill tech. You get to see the committee reports for the most part. You get to see all the inactive laws. There's laws around law, so there's all these things that they have to disclose and they do it without being asked to do so. They require themselves to do it. There are a number of things that are voluntary disclosure. Such statements, unintroduced bills, personal office websites. When you write them a letter and they write you a back, this is voluntary proactive. They don't have to do it, but they choose to do it. There is a very small category of mandatory responsive stuff. So FOIA is for the copyright office. FOIA is for older records at the National Archives. There's a handful of things that are mandatory responsive that are enforced by third parties like the court, but there's not very many. There's a lot of voluntary responsive stuff, though. A member of the press calls when you get an answer to introduce draft bill texts, member schedules, all the tweeting and all the letters, some of their scheduling. This is all things they don't have to do, but they do it as a matter of course. Now there's some other weird categories of things. One is what I call privacy mandatory responsive. I'm sure there's a much better way to describe this, but basically inside some of the support offices and agencies, some of the support agencies, they have instituted a FOIA-like or FOIA-like, depending on how you like to say it, process. So for example, you can make a FOIA-like request of the GAO. They promulgate regulations. They will consider your request. They follow a series of rules and regulations, and they'll put it up. You can't vindicate it in court, but they have that. The Library of Congress has this. There was a requirement that we got in the last year as appropriations both for the Capitol Police to sort of consider applying FOIA to its staff. This is being imposed on them. This would be a FOIA-like process, because again, you can't go to court. If you're appealing it, you're appealing to their general counsel, so it's not really, you know, a review, you know, to a criminal blank slate. But that does kind of exist. And then there's involuntary disclosures. Involuntary disclosures. This is probably a better way to describe this, but this is how I think of it. So these are things that can be disclosures by third parties. So let's say that I'm a member of Congress, and I send a letter to all other members of Congress. One of the other members of Congress discloses that to the public. That's disclosure by a third party. That's involuntary disclosure of the letter that was sent by the original member. Press coverage, of course, is involuntary disclosure. Every time you see scoop for something that's not public, maybe it was being voluntarily disclosed, and maybe they found it out. You can do involuntary disclosure on the legislative branch by employing the executive branch for communications that they received from Congress. And the final, and this is really a big category, and people don't think about it a lot, are paid services. So if you want CRS reports, well, they're now required to be disclosed generally speaking, but until recently they weren't. So you can go to leftist or west law, and you can pay for it. You can get all the committee reports from the 1790s forward online in a digital format. That's, you know, some of it were non-published documents. That's involuntary disclosure. Information about contact information for the members is a voluntary disclosure. They don't really disclose this, or at least not in the way that you would think. So there are services that go, and we'll basically build giant databases to disclose a lot of the information about Congress. And of course, you know, this is the way that I think about it. There may be other categories, but hopefully this makes sense. Next slide, please. I'm not going too fast, right? Is this good? Excellent. Okay. So when you want to think about enhancing legislative branch transparency, assuming that's something that you want to think about, here's some of the lessons that I've learned, or some rules of thumb for thinking about this. What is that? The further an entity is away from playing a deliberative role that is politically sensitive, the more appropriate it probably is to apply FOIA or a FOIA-like remedy. So the Capitol Police is a security force. They're like most other law enforcement. They're like the FBI or the ACF. They're security. They're not police, although we call them police. FOIA makes sense to apply to them in some fashion. The Congressional Budget Office, or the Government Publishing Office, the Government Accountability Office. Some of their stuff is deliberative and eternal, but a lot of their stuff, you can FOIA for it or FOIA-like process because it's further away. So if you want to get the emails of a member of Congress to another member of Congress, if you want to get confidential reports from the Congressional Research Service through an office, that's really close to the deliberative role, and that becomes a very different question than how many traffic stops did you do in the last year, or how much money did you spend on producing budget explanations or whatever it might be. In Congress, bright lines are bad. They do really well with all of these things that need to be disclosed, or none of these things need to be disclosed, and you can deal with voluntary for some of those for the other things, but proactive disclosure works better for them. So requiring them to disclose the category of stuff works much better than having some sort of a weighing or a balancing test. So all CRS reports, all letters from agencies to Congress that are required by law. That is clean. As you get, as it gets murkier, it becomes harder to make a look, because who is going to adjudicate the determination of what congressional information should be publicly available. The idea of having someone sort of rooting through their files is not something that will be politically sustainable, and it's probably not a great idea in certain circumstances, and they also are significantly woefully understaffed, so they probably couldn't do it even if they wanted to. I would say that if you can buy the information from a third party, then the legislative branch should be proactively disclosing it instead. Why are we making people rich who are basically repackaging legislative information and re-selling it? It's great if you want to go and provide analytics on top. That is a value add. That is a great business model. But faster access to a bill, everybody should have equal access to legislation at the same time, Congress should be in that business. Second, if it is being disclosed, they should probably be disclosing it as much as possible as data. There are huge industries built around transforming PDFs into useful information. If we're going to create their own information, they might as well make it as valuable and as data enriched as humanly possible. Two other points here, and I'm going to skip one. One is that archiving and access to records is inconsistent in the legislative branch. For example, committee records go to NARA. Personal office records you can burn in the back of our barbecue. That's just what it is. There are historians, there are some archivists, but they don't think about archiving as a general rule. They don't... Certainly inside the House defendant itself. They don't think about it that way. They don't set up record systems. There's not systems of records and management and all of the stuff that we do. That doesn't really exist for them. They really have hazards. And Congress is very bad at dealing with classified information. Of course, Congress can't classify information itself. It's all derivative. It's secondary stuff that comes from the executive branch. But they don't have a process to release it, generally speaking, unless they go and pass a bespoke law. The ICU has like a great report maybe 16 years ago that talks about when Congress decides to direct records that has to be disclosed that are classified, but they really don't have a way of dealing with this. That's very good. Next slide. So it would suggest that it might be helpful to have some recommendations for legislative branch transparency and to help you think about through them what's easier, what's kind of hard and what's like hard, hard to do. So I put a couple of examples here just as Waze is helping you to think it through. So some easier, and nothing is ever easy, but easier things that make more conceptual sense are things like releasing legislative branch inspector general reports. We do this through the executive branch for the 74 IGs. They're on oversight.gov. As a general rule, most of these things can probably be, there are six IGs inside the legislative branch. Most of them could have proactive disclosure requirements. You release the report, you can't release the report, you release a summary. And if it's classified, you follow the GAO model, which works really well. We have current CRS reports publicly available. Well, there's no reason not to publish the historic ones. There's no reason not to publish the current ones as data, as HTML was to make available internally but not externally. This is just foot dragging on the part of certain folks over there. There are things like the serial sets. This is the volumes of community hearings and proceedings and laws that were enacted that are basically until very recently only available as print. Now they're available as PDFs, but they're the giant PDFs. We should be retyping and making them as available as data. Those are easier to do. Sort of intermediate are creating the FOIA-like processes for the legislative branch agencies. We just haven't happened with the capital police. They're supposed to do this. How do they do it? How well they do it? What's the appeal? Who knows? But that is doable. That has happened previously. It is possible to push that. Things around like witness demographic or disclosing conflicts of interest. That information is gathered, but it's gathered poorly. So having it as data, not as paper, having it all in one place, these are things that are possible to aggregate and disclose if it becomes useful. Also, intermediate but not too hard are historians and archivists to support the committee process. This is a money question. Congress underfunds itself, so like money is hard, but setting up appropriate systems of record and central databases, all this stuff is totally doable, but they have to have the political role. Hard as you do, for example, just very quickly, electricity classification office. We've had a theory treatment when he was in the Senate. Well, Lyndon Johnson, when he was in the Senate, has had a process where hearings that you were having that were classified, they were immediately declassified, reviewed, and published the same day. We can't do this. But it's harder to do because the executive branch streaks out about classified material like, no, no, no, you can't do it, even though they certainly could. Centralizing reports and letters to and from Congress is hard. Trading things that facilitate these processes are hard. So things like creating a data coordination office inside the legislative branch because it spans so many things, worth doing, essential to do, very hard to do. And the final thing that is really hard to do is to add context. Because when you help people understand what's actually happening, it has political consequences and ramifications. So summarizing the bill, all that, you know, will do lots of different ways to summarize it. That can cause interesting reactions. Explaining appropriations, like all of these things, the more that you have real-time information about what's going on connecting the pieces, those are the types of things that are really hard to do because who decides what it means? And that can create political odds. So final slide. That's it. So that is Congress in a nutshell. Happy to go more into it. We talk about this every week in our newsletter, the first branch forecast, which focuses on the legislative branch and government transparency if you're interested. And I'm happy to stop talking so that Mike can talk and we can learn more about the courts. So thank you so much. Thanks, Daniel. Michael, over to you. Great. Let's just see if we can get the next slide and make sure that's working. Perfect. So my name is Michael Lissner and Belina, thank you so much for that great introduction. And I'm really thrilled to be here to present everyone and see some faces that I know. I'm from the Free Law Project. We've been working for many years now as a nonprofit to try and get content out of the judicial branch. Typically that takes the shape of legal data in particular, you know, motions, opinions, things that are happening inside the courts. But along our path we've also frequently tried to get some sort of document from the administrative side of the judicial branch. And it's been interesting to have those experiences. I'm happy today to be here to share those. I think my presentation might have a little bit more of a push than Daniel, although I think he or maybe mine is less subtle. But my title here is Open the Judicial Branch. And I think I'm hopeful that by the end you'll see why I think that's important as it is currently. It's pretty hard to get almost anything aside from the legal documents. Even those are pretty challenging. And there's a lot of content that we should be getting so that we can understand it better. I kind of like Daniel. I think a good place to start here is to sort of understand, you know, what is in the judicial branch. And there's a little bit more here than I think most people might realize, although it's a pretty sophisticated group here. But, you know, it's about 200 courts. And that's including the district courts, bankruptcy courts, appellate courts, supreme courts. And it's also worth remembering that we have courts sort of around the world. We have courts, actually in Asia, with the Northern Mariana Islands. And so there's a huge variety of how these courts work and where they are. And it's an extremely distributed system. The next part is the administrative office of the U.S. courts. This is the administrative org. And there's a lot of these on the state level as well. They often have the same name. And, you know, these are the folks that are making this show work, you know, all of the administrative folks. At the top, there's the judicial conference of the U.S. This is the policymaking. They meet a policymaking body. It has members of the Supreme Court. It has a number of judges that are on there. They meet twice per year. The meetings are closed to the public. And they do release notes about what they talk about. But they have subcommittees, of course, that report during their high annual meetings. And those subcommittees, you know, minutes. And actually, even learning the membership of those meetings, they treat that as a secret. And so you can't even find out who's on the subcommittees. The next part of the judicial branch is the FJC, the Federal Judicial Center. They're a neat organization. They do trainings for judges. That's one of their biggest things. So when you become a new federal judge, somebody's got to tell you how to do the job. And that's a big part of what they do. They also do research and statistical work for the judicial branch. So they actually have an incredible amount of data. And they are one of the bright spots in terms of access to information in the judicial branch. They have a database of all of the cases that are happening in every quarter they put it out and it has metadata about cases. It's a pretty incredible source. But in keeping with the slightly secretive nature of the branch, although they have the information about the judge that's in each case, and there's a column for it in the data, that column has been blanked out. It's a policy that the judicial conference itself created. They said, you know what, no judge information in bulk. We're not going to do that. So although the FJC gets that data, they blank it out before giving it to the public so you can't learn about what individual judges are doing in bulk, I should say. They also do statistical work. And so there are annual reports and those typically come out of the Federal Judicial Center. There's the 81 Federal Public Defender Organization. These are an interesting public-private collaboration where in some cases there's an administrative element to this, providing public defenders to individuals and organizations. There are public defenders and there are private public defenders. So it's interesting from that perspective that a lot of the work sort of gets shipped out. I think maybe about 70 or 80% of it there. And that's another 4,000 employees right there. There's the U.S. Sentencing Commission. These are the ones, people who figure out, what are the sentences for various things that you get found guilty of. And then there's the Supreme Court Police who guard the Supreme Court. These are also the folks that do the call-out to Oye Oye Oye at the beginning of cases. The next slide, please. So the status quo right now is that it's a secretive culture. Judges think that this is important and they believe that by keeping some degree of distance they are able to make more independent decisions and have better adjudication. And that culture coming from the judges, in my experience, has transferred over to the administrative side. And I guess I should say, since I haven't said it already, I think most people are agreed that we're not going to start asking for judges' personal papers. We're not going to start asking for a lot of things that are actually happening in the cases that you can't get already. But on the administrative side, in from the Supreme Court Police, there's a lot of other from the FJC, there's a lot of other stuff that would probably make sense to have in some sort of public access law. So right now, if you want any of that sort of stuff, the way to do it is with the common law right of access. We've done a bunch of research on this and it's just a bold approach that says that, yes, before the United States was leaving the country, we've had this right of access that people should be able to ask for stuff. And looking at the history, it is used for court records, pretty frequently. And this is your way to get contact. But it is not used on administrative records, at least in many visible ways that I was able to find. You know, it's a... It could result in court cases if you're asking for administrative records this way, but it seems like to the extent it's happening, it's not resulting in court cases or public commentary of any kind. So my observation seems like there is this common law right of access, but people are not using it to gain an understanding of what's happening in the judicial branch. The big thing if you're looking at a common law request is, is it a public document and is the public's need for that information greater than the government's need for privacy? And you'll see there, you know, when people are requesting court information, you know, that these sorts of discussions happen a lot, and there is actually a fair amount of case law around that. And, you know, there's actually a guide that's put up by the RCFP, and they will, you know, it explains in great detail where the common law landed in each different jurisdiction across the country. Long, long guides. The problem, of course, with the common law right of access, we had this before. There was FOIA. This was the system before FOIA. And it's ultimately not good enough. There are no timelines. There's no statutes. It doesn't provide any sort of support to the organization. There's no guidelines for it, and it's just sort of a loose system, sort of more of a principal than a system. So that's where things are at now. If we can go to the next slide, please. A couple of things that are well understood currently, the functional, functional democracy. And the first one I think is a huge ordeal and a big scandal that we don't know more about it is the SolarWinds hack. We know from other sources that Russia has hacked into a lot of organizations, many of them government, via SolarWinds. And we also know from the administrative office of the US courts that field content was involved in this. And that's all we know. We know that field content was maybe sort of probably accessed. We don't know what content, and there's not much of a way to ask. I was able to talk to somebody inside the court system that told me a lot about it, how about it was in their particular court. And I tried to get some reporters to follow up on it, and I tried to get some people to talk to reporters. But that's as far as we can go. We should be able to ask the judicial branch what's going on with that. The next one here is, and I'm going to get into this a little bit more on my next slide, but there have been, you know, various allegations with various judges of sexual impropriety. And what's happening inside the judicial branch about this? Are there any disciplinary events? Are there any whistleblowers? Are there anything of that sort related to these? We just don't know. We don't know how the courts are handling these sources. And then the third one that's been in the news, if you sort of follow this kind of thing, and it's an area where we've been working a lot, is pace or fee skimming. And if you don't know the pace or system, it's how the public access is court documents. It's a big complicated system I won't get into. But basically everything costs a little bit of money. It's a dime per page. And that money is supposed to go to supporting the pace or system itself. But recently in court, after a pretty long lawsuit, it was found that some of that money was going into other things where it wasn't supposed to go. And they're still figuring out what to do about that extra money, about $40 million a year that was going to places it shouldn't have gone. And it was happening for about 10 years. And people had a feeling it was happening for about 10 years. But it took a really long time to figure that out for real and to really get that into the public via court case, partly because there's no way to look at the financial documents inside the judicial branch. And so this slide I just wanted to include because when researching this topic, I wanted to see, you know, do we need more transparency into the activities of individual judges? And I think even for myself having worked in this area a long time, I didn't realize how many judicial impeachments there had been. The grand total I think is around 30 or 40 impeachments that I was able to find. And, you know, the reasons go, you know, all the way back to, like, drunkenness. That tended to happen, you know, in the 1800s more. To grasp kickbacks, espionage. You know, judges doing espionage. It would be nice to have some information about that and see what sorts of documents are being written about that topic inside the judicial branch. And there's even worth mentioning, you know, that we have had judges with really bad histories and they're not getting impeached. What's going on there? And, you know, these are pretty problematic people in some ways. So onto the next slide, please. So the next two slides are the top 10. I've talked to a lot of people in preparation for this meeting and to sort of gather more understanding about what a judicial employer might look like. And I think there's about 50 things people have sort of suggested. And I'm just going to go through these a little bit quickly. But, you know, we talked about disciplinary actions for judges. Same thing goes for attorneys with the lower reports. This is all stuff related to personnel and directly to individuals that, you know, there's been some allocation of some kind. It's important stuff. Financial records. I think that's a pretty obvious one. People know that one. Contracts as well. The judicial branch, you know, like many branches, it has contracts with various defense providers and defense contractors. And it would be great to get those contracts and understand them. The next one, fines and fees levied. What sorts of, you know, how is your, what are you actually levying on people? Non-organization. AO court guidance letters. When the administrative office wants to encourage the courts to do something, because they can't necessarily tell them to do something, they will send a guidance letter. We had one of these related to PACER recently, and I'm still trying to get my hands on that to see exactly what it says. But it sure would be nice to know, you know, how the administrative office is guiding the courts. Next one, security audits, recovery plans, incident reports. We know about solar winds because they access the field content. What else is going on related to security? And that also, I should mention, covers both physical security as well as digital security. So, you know, although a lot of the field content is online, it's worth thinking about a lot of it is actually just in the courthouses and what sort of security is happening there. Some of this content has huge national security implications. So, it's worth thinking about that. Next slide, please. The next one is the SCOTUS public calendar. We have this for the president. You know, would it be reasonable to ask for a public calendar for the Supreme Court justices? Next one is a simple one I sort of touched on earlier, is the judicial conference, committee membership, and minutes. I should say the subcommittee membership, actually, the committee itself, you know, but it's wild that we do not know and is treated as a secret who these people are. List of judges, past and present. This is something that I've spent a lot of time trying to get access to is who are all the judges that we have ever had and can we build up a nice database of that for research and for investigation and for public knowledge in general. This is the kind of thing that the FJC provides in part, but they do not provide magistrate judges. Magistrate judges do a ton of the work, but it's just not something that's provided, even though it's information that they clearly have and there's no reason not to share it with the public. The FJC, the integrated database I talked about earlier that has the blank column with judges, it's just a good example of the kind of thing that you can say, hey, you know what, I know you have this document, please give it to me. And then the last one that I think is worth mentioning here, this is something that a recorder I talked to suggested is we know some of the stuff that we want, but, you know, once you get access with FOIA, you can start asking for the next thing, depending what you don't have. And so this is sort of the, you know, you don't know what you don't know problem. And so it's worth, you know, mentioning that as well. And then the next slide, please. So the last couple of slides here are sort of talk about, like, you know, maybe provokes here. What do we include or exclude if we do write some sort of public access law? We have some documents, probably we know the answer there, but I bet you there's some corner cases that are worth thinking about. Court documents themselves, a lot of those are in PASER and accessible to the public. Some of them are not. Trial exhibits, for example, are not in PASER. If you want those currently, you can ask for them. You might be able to gift them. But it would be nice if we had something better than just common law, a right of access. Judicial papers. Under what circumstances would you consider those a reasonable thing to ask for? Quirk selection criteria. That's something a lot of law school students would kill for. When judges retire, they send a letter to the president typically. Can we get our eyes on that? And then of course there's the FISA court that deserves a mention here. How does all of this play out in one of the most secretive parts of the entire government? It's worth thinking about because any rule that you apply to other courts probably is going to end up applying there as well. And then next slide, please. And then the last couple of things. Is there some problems that you might run into? I think Daniel hinted at this also. How do you appeal to, how do you appeal rejected requests? Are you going to have a panel of judges? If you request something from the administrative office, it goes to a judge or does it go to a panel? Does it go to an administrative group somewhere? How do you solve that sort of problem? And how close do you get to judicial proceedings and papers? Would you want your law to go? What effect would FOIA and the judicial branch have on FOIA oversight that we have it currently? Currently an executive branch FOIA has denied it goes to a judge. Are those judges' perspectives going to change if they're also subject to something similar? And then finally, what do you do when someone makes a huge request? If somebody asks for a million documents, what are you going to do? Is the judicial branch ready for that kind of request? And does it know how to respond? And with that sort of opening up to questions, I go to the last slide and I'll just say thank you. I'm happy to be here and happy to open things up to conversation. Great. Mike, thank you so much. I was really informative. I took a lot of notes. So I just want to open it up to anyone who wants to start asking questions, engage Daniel and Mike in conversation. So who wants to go first? Tom is raising his hand very respectfully. And so Slum. Okay. Tom first, Slum second, Cal third. Okay. I think it's really useful to have that last slide on problems to overcome. And so I have sort of two related questions. One is you both mentioned the enforcement issue. And, you know, I think the history of Congress enforcing against itself is not a very encouraging one. And yet I think the likelihood of Congress allowing the courts to enroll in enforcement is zero. But maybe Daniel could comment on that. And without enforcement, is it still worthwhile? The answer is probably so, but that's where I get into the political issue. And that is looking back at for you. We all remember the original Lyndon Johnson down at the ranch with a veto statement prepared by the Justice Department. And only at the last minute talked into signing the bill by his press secretary. And then of course, Ford did veto the 74 of them. That's what am I getting at? The executive branch never really embraced applying FOIA to itself. But of course, Congress had the power to do that. So is this really a fool's errand for us even to think that Congress will apply some FOIA-like process to itself? And likewise, the courts, you know, are we wasting our time thinking about that because the likelihood of that level of self-accountability and self-discipline is nil. So complicated questions. Quite a good one. So I'll start with, so the question is of enforcement. And I would say in that in the legislative branch context, it depends on who you're enforcing it against. So if you're enforcing it against some of the support agencies, I can see that as being reasonable. I can see, you know, we already have enforcement against the copyright office inside the Library of Congress. We have FOIA-like processes inside GAO, the Library of Congress, and a couple other places. So they're already doing it to some extent. The question is who do you appeal to? If I were to create this sort of out of whole costs, like the support agencies, what I would probably do is I would take a page out of the workplace rights model. So Congress has a similar problem with respect to applying health and safety laws to itself. You couldn't go to the Department of Labor or outside entities to enforce ways and our restrictions and how you unionize and all that other type of stuff. So with Congress, they would create the Office of Compliance out of the Office of Congressional Workplace Rights. That is an entity that basically promulgates the regulation that deals with all of the initial level requests. And at a certain point, you can appeal to the courts depending on what it is. And I think that that may work in the FOIA context. I don't like having agencies being the judge of their own agreement or denial of a request. Having something else that sets forth the regulations and that deals with at least the initial level of appeal out of the agency probably makes sense. So you could imagine, I don't have a few aim for, but like a congressional FOIA office that's responsible for regulations that applies to certain things. And then you can ultimately maybe appeal it out to a three-panel judge in the federal court or something like that. And so we do have a model for that type of thing. I don't think FOIA is going to be able to get closer to the political side. I think what you're going to have to do is actually go with the A section, not the B section of FOIA where there's a long list of things that you are required to disclose under FOIA. And I would say that for a long list of things that you must disclose X, Y, and Z. And you have a long list of those things that you have to do, just like FOIA has mandatory disclosure in certain sections. And you probably have to think through what enforcement looks like, or you have the data coordination office that was talked about that helped agencies sort of or entities think through how to implement that for the implementation of sort of the FOIA A section. And for the B section, I would have, like I said, I would have an entity inside the legislative branch that deals with uniform regulations, appeals, and then ultimately you probably have indication to the court. And how you divide that line, of course, will be a very interesting political question, which I will leave for further discussion. Yeah, I think I would just add to that that there's a lot of stuff that is not going to be a fight, right? So I think there's probably, probably rightfully there's a lot of focus on, you know, the most controversial content and what's going to happen with that. But I think coming from where we are now with the common law right of access, just having something encoded, you know, just having a law that says exactly what the process is, boy, that would be nice. And for a lot of stuff, you could say, look, here's what I want. Please give it to me and they'll say sure, no problem. And that'll make a lot of things a lot easier, calls and emails. Let's just figure out who it is. And so just having it codified would be a huge step forward for that kind of stuff. I think for, you know, sort of the, on the other side, the stuff that's more controversial or, you know, the judicial branch doesn't want you to have necessarily. I think it's worth noting, you know, like in the pacer case where they were accused of doing this skimming, it was instructive to see how they talked and thought about themselves. And I think they do treat it pretty respectfully, actually. They definitely understood that they were, you know, ruling about their own behavior and how important it was to be impartial on that. So that gives me a little bit of hope. And, you know, I think you can also use sort of the federated nature of the courts as well to create a, you know, a panel of judges that is from, you know, a geographic and if you're requesting something from Texas, let's make sure that maybe the judge on that one is on that panel is not, you know, the same person. There's a lot of leeway to do that sort of thing. And then the last point I'll just sort of throw out there is that by codifying something like this, you create a clearer story when it's denied, right? When your request is denied, the press can talk about that clearly and they can talk about, is it outrageous that it was denied? Does it violate the law that it was denied? You know, that doesn't necessarily get to the thing you need, but it at least makes the public understand where things are. Okay, Tom, you're good? I'm good. Okay. All right, Twan, you're up. My question is, I have a comment and then a question across on the other side of what Tom was saying pragmatically. Tom was asking the question, you know, is this pragmatic and that would Congress ever agree to this? So mine is the sort of other side of things, assuming for the sake of argument that Congress were willing to adopt this. And let me say that I'm sympathetic with the need for greater transparency and accountability from Congress and the courts. And they do think that FOIA's current scope does seem to be transparency for the, but not for me. But if Congress were to expand the definition of agency that it were revised to apply to congressional and judicial agencies, it strikes me that pragmatically we'd have bad effects on the other side. And I think, Michael, you kind of allude to this and the problems in your last slide. I think a legislative enthusiasm for strengthening FOIA further and vigorous judicial enforcement would likely both suffer in the political economy of transparency. In other words, there might be a policy trade-off between the horizontal breadth of FOIA's scope applying to Congress and to the courts now. But then what would suffer would be the vertical depth of the transparency come to expect. And so I guess my question is, have you looked at all two states that have attempted to do this with their little FOIA's such that they've applied them to the courts and the legislatures like Pennsylvania's right to no law, for example, applies to the courts and to their legislature. I mean, how does it work there? I mean, is it nearly as vigorous and thoroughgoing as the FOIA is? Daniel, I don't know if you have something up top on that. I haven't had any opportunity or I haven't ever found anything about how the vertical versus the horizontal suffers. I think I could offer some thoughts about it, but there's a lot of smart people in here, so maybe others have thoughts as well. And so I've not looked at the state level. I've looked at sort of international comparators instead, which is, of course, different systems of government. But I don't have a good answer for you in terms of the request nature of FOIA. I find that in legislative models that bright lines and proactive disclosure largely works better than having some sort of a new de-decoratory process. And there's exceptions, but I find that that tends to be better than having a more complicated process. But I don't have enough data points to talk about the state in terms of what works well and what doesn't work well. I think the idea of an affirmative disclosure, say a 552A kind of model, as you were mentioning, Daniel, that seems like a good idea. Even if it doesn't have enforcement teeth at the very least, this is what you ought to be disclosing is what the law actually says, and it would allow partisans in Congress to call out the opposition for failing to bring something forward, and that creates political pressure that can help get these things released. It is the 552B stuff that I'm a little bit more skeptical of the response to kind of use my request model. I might say that one way that would be maybe better is that if this weren't tied to FOIA, if it were a separate statute, it's such that Congress could continue to sort of be enthusiastic about FOIA and the courts also. I do worry the fates of Congress and the courts are tied up with FOIA that what we'll see is FOIA suffer. I think that's a good point, and that's something that some of the conversations I had is like, don't use the word FOIA. Let's not call it FOIA. Let's call it a public access law or something like that, and let's not intermingle them because it's not FOIA, and probably trying to shoehorn one into the other will create these sorts of complications, I guess. Okay. Tom, thanks very much. Are you good? Okay. Kel, I believe you're next. And then I've got Jason and Allison in that order. Hi. So I have a question mostly for Daniel, but it'll be interesting to hear Mike's viewpoint of this as well, coming from a different perspective. Congress and the congressional agencies tend to have a lot of overlap and sort of intermingling to the degree that a lot of the executive branch really doesn't have. And so, for instance, you know, many, there's some members of Congress believe that any GAO product that's created in response to something they asked for is their legislative product, or that, you know, the Capitol Police might say that, well, we don't make decisions because the Capitol Police board that's made up by the sergeants of arms, and the Arkansas Capitol really control things. And so how would you suggest that we deal with this if we're going to try and make for certain components subject to something, an open record type process? You know, how would we address this sort of intermingling when you would have maybe one component that doesn't, that isn't subject to it, and one component is subject to it, and they sort of work hand in hand and are fuzzy with no really clear lines between them to get things that everybody, each and the public would view as important. Like, you know, in 2019, an example, in 2019 there was a Capitol Police Inspector General report that said the Capitol has security problems, and if it were ever invaded, it would have problems, and we're having trouble balancing the need for security with the need for sort of openness and security. This is a very tightly held thing. This is something that I'm sure everybody would be interested in reading now in 2021, but even going after it now with who would you go to as a product of Congress, as a product of the Capitol Police, as a product of Capitol Police board, how do you deal with this kind of intermingled nature of congressional entities? So I think you're raising two questions with that. One question is sort of the nature of the thing, and the second question I think is who holds it? Like, we run to the second, like a provenance, is like we run to the classified space a lot, like whose document is it? So let me take some sort of in part. The first one is the question I would ask is it individualized legislative advice that is intended and understood to be confidential. So I was an attorney with the Congressional Research Service, and when a member office would call me and ask for advice on a particular matter, and I gave them that advice, that is confidential. You don't get it, right? That should never be made publicly available unless the member office makes that determination. I also wrote CRS reports that were available on a website that any of 10,000 factors could access. That's ridiculous. That should be publicly available, right? It's not individualized confidential advice relating to a legislative matter. The WHO publishes all the reports. The reports that they don't publish, they list their classified reports on their website, and they help you tell you how to go for it. So like that is the model. That is a great model. It works well. They have a dedicated, they know that transparency and accountability go hand in hand, and that if you want to have government function properly, you need to have both. The Library of Congress doesn't really get that, right? So their FOIA implementation is iffy. And their Congressional Research Service, where I used to work, they hate this stuff because of their institutional perspective. And they fight it even when it's things like the plain language description of legislation that's available on congress.gov. So like those types of, so that's the Zara land. Like that's not acceptable. The second question of like, well, who gets to release the document? Who owns it? The answer is whoever has it owns it. We shouldn't be playing provenance games, right? If I write a dear colleague letter and I send it to you, Kel, because, Kel, you're a member of congress, you can release it. Now there might be a political consequence for you releasing it, although no one's going to really know that you did it. But if you have it, it's yours. If I'm a government employee and I give a document to a journalist, the journalist has it, and that's the end of that story. Like that's the way that works. There may be consequences for the person who turns it over, but once it's out, it's out. And I think that trying to be like, well, this is a CRS report and this is a committee document or this is a blog. In the legislative context, generally speaking, that's not a thing. There may be political consequences for doing so. So if I am on the judiciary committee and the judiciary committee staff write me a staff memo and I publish it on my website where I leak it, like, that's a problem. But that's a political problem. That's not a sort of disclosure release problem. And people will adapt to the circumstances in terms of where you draw that line will change the way their practices operate, so they can make a determination of what they want to keep secret and what they can't. Actually, I did want to, if it's okay, Carol, I want to put, just to go back to one final point that Tom had raised. So one of the weird things, and I mentioned this because it's very relevant to some of the folks participating in this group are committee records. Committee records after 20 years in the Senate and 30 years in the House go over to the Center for Legislative Archives where you can then go and FOIA. Prior to that point, the Center for Legislative Archives will give it to you, but only if you have the permission of the relevant committee. So that doesn't make it, committees aren't continuing entities in the House. It could be a Democratic committee or a Republican figure that changes over time. All the members could be gone. It could be 15 years later. And committees don't have a point of contact or a process that you can ask. So by way of example, I was looking for a list of everybody who worked in the White House in 1999 or 2000, which is an annual report that's sent from the White House to Congress. I tried going to the Presidential Library. The Presidential Library's have lost it, fine. I tried going to the congressional committee that received it, went to MARA. MARA was very helpful and thoughtful, but they said, as is not unreasonable, you need to get the permission of the relevant committee. And the committee had no idea what this process was. They'd never heard of it. And they didn't want to extend themselves to provide these documents to me because this isn't something that they usually do. And so when we think about how to design this, we need to be thinking about the request systems as well and not just like the right. So the committee has the authorization to go into release the document, but they were afraid to do so because they hadn't done it before and there wasn't a point of contact and so on and so forth. So we need to think through, you know, not just seek help through response to two points, not just like what the thing is and who owns it, but the request mechanism as well. So hopefully that's helpful to your question. It is. And you bring up an interesting point with the legislative archives. You held up the GAO FOIA process, or the FOIA-ish process, the internal regulation as an example, but they do the same thing where there were these reports, but if you say you want their file that went into creation of this report, they say we won't give it to you without the permission of the person who requested the report 20 years ago and you run into the same problem. And so that's sort of the needle that I'm trying to figure out how to thread. Like, I agree with you that it shouldn't matter, but GAO and Congress don't appear to agree with you. And so how do we address the concerns of, yeah, you know, how do we convince Congress that Daniel Schumann is right and whoever has physical custody of a report, whether it be the US Capitol Police, in fact, General or GAO, can release it? So I still think the source was from the first framework that I described, though, but you might disagree. So GAO, when given documents in a responsive nature, right, like not through subpoena, but just sort of here you go for your investigation with Congress directed, it is a private confidential communication that relates to legislative activity. So GAO is conduct of the investigation when they're investigating whatever entity that gives them the responsive documents, that's done for a legislative purpose, done on a confidential basis, and sort of in that space. So I would distinguish that. I think that that is different from a lot of the other stuff. So the number of arrests by the Capitol Police is not a legislative matter. It's not really confidential, right, either. Like, it's just fundamentally different. The number of computers they bought is fundamentally different. The number, like those are just different from, I'm holding a hearing into SolarWinds, and I go and I repress thousands of documents from all these other folks. So Congress has an interest in making sure that people either give it stuff voluntarily or comply with its subpoenas. And they're less likely to fight if Congress controls, like, that aspect of the release mechanism, because it's closely tied up with legislation or oversight. So, I mean, this isn't helpful, I think, to the further way you get away from that purely legislative and oversight function that is intended to be confidential, that will be, that sort of goes underneath, like, sort of that process. I think it's a more likely you're going to have a strong argument that FOIA would make sense for it. And as you get more into it. I wrote a bill because somebody, because the constituent emailed me. No, right. I'm having trouble getting my post security check and you call a member's office. No, right, like, like, there's a, there's, like, different, for me, at least, I think there's, like, different valences to those types of those functions. I am sympathetic to where you come from having filed FOIA requests, FOIA-like requests on exactly that basis. But I'm not sure that FOIA would be the right process for that. There might be something else that we would need to think of that would, that would, that would look sort of better as you get more posted to sort of the legislative nut. I said, Siano, thank you for that great answer. Kel, are you good? I'm good. I mean, Daniel and I could carry on like this for two to three hours. So let's move on to everybody else. Yeah, so I believe Jason is up next. Jason Clark. Jason. Jason Clark, history associates incorporated. Daniel and Michael, thank you very much for your conversation. I want to focus in on, again, on the historical records. I'm a historian. And Daniel, you mentioned that that member records for members of Congress could be earned. And I think it was the backyard barbecue was the comment. You know, ultimately, my understanding is the records created in a senator's or a house office, that's their property, their records. Which is the way it is. But that also means that a lot of the records go to universities and various, various places all over the country where scholars use them and have access to them because they're, you know, they're localized in a way that they're not localized when they're at the legislative archives. So that's, that's my first comment. Second comment or second question is House will seven and how and Senate will 474 which, which essentially sets when they are open. I think it's 20 and 30 and 20 years. The, the provision for excuse me, we have some neighbors here. The, the, the, the provision for that is actually held over when the records go into the center for legislative archives. So there has essentially acquiesced and said we're going to take these records. We understand that records are still owned by members of Congress, and we're going to keep them separate for these, you know, 20 or 30 years. So I guess the question is, and this goes back to Tom's comment is, you know, it was maybe the stepping stone narrower and saying, hey, look, we're not going to accept these records if they're not actually subject to the employee like all the records at our house in the National Archives. So I just, I, I open that up but very interesting conversation and and apologies for the neighbors. Not, not to worry with the neighbors. So I hope you jump in if I, if I'm in parts of the course, I'm sure you're more familiar than I am although I've attended a number of meetings for the advisory committee on the records of Congress, which is the entity that meets twice a year for those who aren't familiar with it. A large of historians actually was really interested in getting non historians on it because we interested in talking about from a data perspective. Let me take your second question first. The second question is that narrow holding the records will never have the only place that doesn't like GPO does that is all of the classified records will go over to the government publishing office. Congress literally doesn't have the physical space. And I don't mind, particularly when committees turn over, having a safe place for the committee records to go. That doesn't concern me. I don't like the 20 and 30 years. I think that that's unreasonable. I think it should be shorter. I think that the greater period of time I think it's 50 years, although some of you guys are probably the only people on the planet who know better than I do, whether it's 50 years for classified material. But it's a much longer period for classified matters than for unclassified matters. Without even looking at whether they're even properly classified, which is a whole other question that you guys could probably try to fill out better than I could. But I don't mind having expert archivists holding onto congressional records. That's not offensive to me. I think that's fine. And I think I would actually rather have archivists and historians and records management folks in there. The data that a member opens up their office, like the second they start, they should already be designing their systems so that it's preserved and retained and managed in a way that is useful both for them and how they run their offices and then for keeping it afterward. So like that is actually how I, if I were running the world, which I guess is obvious the need for a Congress to conduct this conversation, but if I were running this part of the world, I would probably do that that way. The other, the other, it was both a point in the comments that you made had to do with the personal office records. Now, whether they're public or not is a decision, right? And that is a decision that the House and the Senate, each and their own rules can change. I think this was true for committee records for a long time that you could also burn them as well. And that hasn't been true for a while. But I don't remember the details of that, so I might not be right. And there is, there have been concerns about commingling a personal committee record such that committee records end up in the personal office and that's end up in the Barbie, which is probably not what you want. There is value, I think, in how members, is it accession, is that the right word, how they provide their records to local universities. So they can also go through them and burn them or parts of them. They can withhold them on dates that have to do with embarrassment, that have to do with other things that are not necessarily relevant. A number of members just toss their stuff or things get sort of lost in the process. I do think that there is value in having materials available around the country, but it also makes it hard to get access. But more and more congressional records are being, are born digital records. So the federated nature of the way these things are sort of being created suggests that there may be value in having more of an overarching system for making sure it's a digitized, making sure they're properly cataloged, having similar cataloging standards, having a federated surgeon so that you can, if I'm looking for a particular document, like the subcommittee print that I've got behind me, like, I don't know who's got it, but someone probably has it and it's hard to find and looking in WorldCats and I can necessarily get you there. So thinking through, like, on a going forward basis, what do you do with these born digital records? How do you make sure that everything sort of flows together? What assistance do you provide to people as they question it to their local university or to something else? Like, I think that would probably be something that makes sense. And I suspect that Mike probably has similar thoughts with respect to judicial papers because it's going to be the exact same kind of problem in terms of what judges do with their stuff. I'm not aware of an advisor committee on the records of the judiciary, although it may be such a thing. But they do beg similar questions around chamber records as you do for individual members of Congress records. Yeah, I have not heard, I have not looked into what happens to those records long term. Maybe, I don't, I have not heard of them going to universities, so I'm guessing it's mostly just the Barbie. All right. Well, thanks for that, Daniel and Mike. Jason, you're good. Yeah, I guess I would say that one of the challenges, and you mentioned the creation of records once members first enter Congress and their thoughts on where their records should go. And again, my understanding is that some members of Congress are thoughtful from the very beginning. I think probably most members of Congress would like their papers to go to some university or repository in their local and where they live. I think one of the challenges, the real world challenges they face is that they're given a very short amount of time to clear their offices. If the election, you know, the election is November 7th, they've lost. They may need to be out of those offices by early December. And perhaps letting the records, you know, be temporarily preserved at a federal records center may help. You know, and that's, again, just kind of conventional information that I've heard over time. But, you know, again, I think the stepping stone, you know, to try to push Congress to do some type of FOIA process or procedure. One stepping stone, at least for me, is, again, the world of narrow plays right now through the Center for Legislative Archives, which is a terrific repository, terrific activist there. That said, they're being housed in error. Everything else in error follows FOIA. There's an exception for these records. That, to me, is a stress point or a push point. So, very interesting. Thank you for briefing us on this, Daniel and Michael. Yeah, absolutely. Just one sort of final point. So, it's not just, you know, when members lose their election, they've got weeks. Like, they have to be out of their office in like two weeks. Like, they come in and they end up in like cubicles for the last month in Congress that are set up in the cafeteria. And if a member dies, which happens not infrequently, then they're like, you know, the court comes in and takes over, but what happens then? So, there are real, particularly when you look at the Senate, where a lot of them sort of like stay there and expire there. I don't know a delicate way to say it. Like, they tend to die in office more frequently than one would expect. Although they have a better archival support process. They may just not be ready. And the House members in particular, they're just not ready. Like, they don't, it is never a priority for them to do the historian archival stuff. Like, they just, it's never, it's not really supported in the way that they needed. And it's just not what they do. I mean, they may think about it afterward. But, but, but there is, like, this is where more support could help streamline that process, because it really is. It could, as you mentioned it, like, your mileage will very much vary depending on the member. Okay. All right. Thanks for that, Daniel. Jason, you're good. Yes. Thank you. All right. So, we've got about five minutes. We're running a little bit over, but I know we have a little wiggle room in our agenda. We've got about five minutes left. Allison, I know, has a question. So I will not describe you with that opportunity. So please take it away. Thanks, Selena. Questions mostly for Daniel. Michael, feel free to chime in too. But it's more, it's something like FOIA were to be instituted in Congress and in the judicial branch. What do you see that interplay between the different branches looking like, like currently most of the congressional communications to an executive branch or subject to FOIA, unless they're marked as congressional records and then exempt from FOIA. Do you see some sort of reciprocity with certain executive branch records or the executive branch may be being able to assert some more deliberative process or other privileges that they would provide the information to the Hill, but with the under obligation not to release it to the public, maybe similar to what the GAO does. What are your thoughts on that? Thank you. Yeah, that's a great question. So, so like the marketing as a congressional record is not something that I would respect as being exempt from FOIA to begin with. So like that, that probably puts me in variance with, at variance with some of the former committee chairs would say, I think that it creates a push to limit FOIA. I think that that if you do it in the same regime that creates problems, this is why I tend to favor more like straightforward proactive disclosure requirements, as opposed to sort of the balancing questions, where it's categories of stuff. So one bill that I'm working on right now, I've been working on for a decade, is a law that would require all mandate reports to be publicly available. And there's a, there's a carve out in it, which is that it puts it through the FOIA process, so that like there is an actual, so that the agencies would be, would basically redacted in accordance with FOIA for what is released. So like I'm trying to have a separate law that is a clear application that applies to executive branch materials, but also is respectful of some of the decisions that we've made in terms of what's disclosed and what's released. I don't have a problem with communications from Congress to the executive branch being FOIA to the executive branch. Like I think that that is a fine thing. In the reverse, I don't have a problem with either communication, like it doesn't, this doesn't seem, it seems inequitable, but it doesn't seem unjust, right. I don't mind necessarily that mechanism. I think where it gets weirder. But like where it gets weirder is I'm in a senator's office and I've heard that this support agency is improperly protecting records. And I write them a letter and I say, Hey, guys, you're outside the firewall and you're going to get the stuff stolen by a foreign agent, you know, for an adversary. Is that deliberative? I don't think so. It's not classified because they can't really classify stuff except under the Atomic Energy Act and that doesn't really apply. I mean, that's where it's going to start to get weirder. And I don't know how you deal with those cases, but much of my career for what it's worth has been here is a simple straightforward, obvious example of something that should be publicly available. All bills, summaries, stats, information should be publicly available. That range of stuff and like just like picking off pieces of things that are like either inherently obvious or that congressional offices need and they can't get access to. Because before you should remember in transparency, and I know you guys know, it's not just about the public and it's not just about historians. It's about the person who's sitting next to you. It's about the person in your office. It's about the next office over. We have huge problems where agencies and reports to Congress, for example, that goes to Stafford A and the person sitting next to them never sees it. And when Stafford A leaves, it's gone. There's a records keeping problem that we're using public transparency as a mechanism to fix. The same thing with like their terrible technology. They have all these dear colleagues that are awful. You can't go through all of them, but if they become publicly disclosed, someone can build a better system so you can find what you're looking for. We're using in many respects transparency, not just for transparency sake as well for public accountability, but to improve the internal availability of information. And that's why I like the data act. That's why I like sort of those things make information available, not just to the public stakeholders, but to a lot of folks inside to need that information as well. Sorry, that was a long one to die. I will stop. But hopefully that was responsible to your question. That's helpful. Thank you. If I have time to add one little thing. I think one other thing that many of the comments so far have been giving me a lot of consideration of is that like there's currently, you know, with oil and they're flying to some areas. It's kind of like you have someone who's grabbing in your conversation. And so there's actually a motivation not to share things that would then make that thing subject to FOIA. And that creates friction, friction, communication, friction and getting things done. Instead of, you know, emailing something, you got to pick up the phone because no one's going to FOIA your phone call. And, you know, by actually bringing public access laws into the government, broadly, it should create a better economy for sharing information amongst everybody. Rather than worrying, oh, if I do this thing, you know, then now it's going to be subject to FOIA. And maybe I don't want that. You can actually create a better information by bringing everything out into the open by default or more things into the open by default, I should say. Okay. All right. Well, thanks, Daniel and Michael. This has been really, really fascinating. I think we're all very engaged. Lots of information to take in and to think about and we really appreciate all of your suggestions. We are sure we'll continue to dialogue with you as the subcommittee on legislation looks at these issues. And thank you again. We really appreciate it. You're welcome to jump off now. We're going to move on to the public comment section of our meeting. So again, we thank you for your participation in time. Thank you so much. Thank you very much. Okay. So we have now reached the public comments part of our committee meeting. I know I went a little bit over, but I still had a little bit of wiggle room. Didn't want to cut off the great discussion we're having. So we're going to invite noncommittee participants who have ideas or comments to share to do so at this time. We post on the Floyd Advisory Committee webpage any written comments we receive, oral comments or captured in the transcript of the meeting, which we'll post as soon as it is available. We're going to open up our telephone line. Michelle, if you could please provide instructions again to our listeners for how to ask a question or make a comment via telephone. That would be great. Absolutely, my pleasure. So ladies and gentlemen, if you would like to make a comment at this time, please press pound two on your telephone keypad to answer the question queue. Once again, pressing pound two will enter you into the verbal comment queue. All right. I'm just going to ask Martha first. Do we have any questions or comments that we received via chat during the course of the meeting? Hi. Can you hear me? Yep. Okay, go. So one person on the YouTube chat has a question for the classification subcommittee. When do you think the questionnaires can be finished in 10? Have we the questionnaires regarding Glomar? Yes. This is Kristen Ellis from the FBI. We do not currently have an anticipated date when that's going to go out. We are still at the very beginning stages of developing the questionnaire, determining what questions to include, what type of information we're trying to elicit, and identifying the specific agencies that will be querying. So we may have an update on date at the next meeting, but right now it's very preliminary. Mr. Hammond has submitted some questions. Some were things that were in his previously submitted comments, which will be posted on our website, and we'll go to the committee of course. But he was wondering if you could provide a very short update on the status of recommendation number 19. This is the recommendation that recommends that Congress engage in more regular and robust oversight of FOIA. And so I think our Congress, our congressional committee may be able to address this. Sure, this is coming quite a hand. Go ahead, Tom. That's actually one of the big reasons that our subcommittee exists. We have a separate working group on how to make OGIS function better, whether it be giving them more power, giving them more resources, or affecting how agencies interact with them that is undertaking that. We also have a separate subcommittee on dealing basically how oversight works, you know, and we make recommendations for how agencies should improve their oversight, or sorry, that Congress should improve its oversight. So that is a big part of our initial mission plan. Unlike most of the other agencies, most of the other subcommittees, we do operate on a bit of a six-month schedule as opposed to a two-year plan. So this may change in June, but the things that we're not done working on, we're going to carry over probably into the next one. But this does mean that we anticipate to have some work done, you know, some movement on actually making concrete legislative proposals for this stuff in the near future, whether it be in three months or six months or nine months. Okay, thank you. From Alex Howard, he asked, are all of the FOIA officers on the committee hosting Sunshine Week events and inviting requesters to participate? If not, why not? So this is Bobby. I think Alina, you keyed this up earlier. And DOJ is hosting the public event. I believe there are other agencies there doing as well. This is Allison from Commerce. I know some of our Sunshine events on Tuesday, March 16th are open to the public. Okay. We currently have one comment or question in the queue on the phone. So if the caller can go ahead, please, that would be great. Kola, you may go ahead. Your line has been unseated. Yes, hi. This is Bob Hammond. Do you have to hear me? Yes. We have a long questions for recommendation 19. Those are in the chat. And maybe you guys could, you know, give me an email or something on those. These are why I spent a little bit of time and doesn't look like we have much work for the Technology Committee. And I don't know if we have anybody online from EPA. Maybe we can make this more focused on the future meeting. EPA is developed really an excellent FOIA portal. But in the implementation, there are some drawbacks that really hamper public disclosure. For example, if you were to look for my FOIA request, first, if you look by my name, you'll find that hardly any of them are on there, none from Navy and in public domain. So nobody can search by FOIA requests. And the requests themselves are not visible. You talk about sunshine. I think sunshine is a great disinfectant. And if the FOIA requests are public and all of the records that go with that, the correspondence and everything, if all of that is publicly available, that would address a number of my issues. There's no reason for a FOIA request to be private. MUCROC allows them to be embargoed for a period of time. If you're a member of the media, you don't want to give up the scoop. But if FOIA requests a public action, there's no reason for it not to be public. In some cases, agencies are concerned about exposing privacy information. If it's my information, I choose to disclose it. But one of the things that they voice concern about is I expose the names and email addresses of persons who have submitted information to me. And anything that comes from me as a private request is already in the public domain. So nobody should redact FOIA requests. There's no reason for them to be private. And I don't know if we have anybody from EPA, but I had like six recommendations. I think my email queue only showed five. Another drawback, FOIA online has a capability for communications where the agency can communicate with their requesters. They can put the documents in there that they're releasing. That's a good function. But at the outset, the agencies can block that from being used. So you can't submit your follow-ups through there. You can't challenge some of their decisions and all those things through the communications portal. And there are a number of those that I think are pretty good recommendations to make the process really what you all intended to be. It's public disclosure. And I know we don't have very much time now, but my question, is there anybody on the line from EPA? Yeah, this is Matt Schwartz from EPA. I can respond to this. Yeah, great Matt. Thank you. I appreciate your coming. Probably on short notice. Hi there. No, no, that's fine. So just to clear up, EPA did develop FOIA online, but EPA no longer manages FOIA online. And that was passed off to an intergovernmental group a few years ago. And they do take public comments. They take those if you email recommendations to the help desk. There's an email address on the FOIA online landing page. They consider those. And there are regular updates done to FOIA online, and those go to this intergovernmental committee. So EPA actually doesn't manage FOIA online anymore, but I encourage you to send those to the help desk. Well, I've done that and I haven't gotten any response. And when I submitted a FOIA request to see who was on the committee, I don't have the information as to who's on the committee. That should be public. Is that something that you can provide to me? I'd like to make recommendations to be able to engage with the committee to provide perspective if I can. Right. I mean, if it's an active FOIA request, that'll be responded to. But as far as information that goes to FOIA online, I wouldn't have any. EPA doesn't have any Canada map at all anymore, unfortunately. Okay. I'm just trying to find out who's on the committee like this committee and maybe members of this committee are part of that intergovernmental working group might be because you have a technology committee. And if that's the right committee, then I know who to talk to. Hi. This is Patricia West with National Labor Relations Board. And my agency is one of the FOIA online partner agencies. We use FOIA online as our case management system and to receive and send FOIA request information. So I'm on our FOIA online committee with our agency partner agencies. If you want to send the recommendations to me, I'd be happy to forward them. Yeah, sure. And I don't know if there's an opportunity for public comment when you have your meetings and those kind of things. But I'd really appreciate that. Patricia, is your email in the body of records for today? So everything that you, Mr. Hammond, everything you sent to us, we'll be happy to forward on to Patricia and otherwise send it on to FOIA dash advisory, dash committee, and we'll forward it on to Patricia. Yep. Yeah. Okay. Well, listen, I'd say that would be, I think FOIA online would be the gold standard with just a couple of tweaks to make it transparent and better for the users. It was a great application. Thank you so much for your comment. Alina, we've got one more. Thank you, Mr. Scott. Sean Malton is asking the process subcommittee if they thought about looking into FOIA changes that had been put in place by agencies due to the pandemic and the effect on FOIA processing. Looking for best practices to minimize impacts, the impacts of the COVID outbreak and the need to telework. Yeah, I had not occurred to me. I think that lobby will have seen an impact. I think that's a question worth fielding in terms of what, you know, what changes people have seen. You know, I think there will be some, you know, new practices put in place that, you know, might be helpful to kind of think about going forward. So specific questions you think would be useful though. It's a flag and it's like on our survey request or survey. I'd be really interested in those. This is Bobby from DOJ as well. I just wanted to add to that. And we have done some consideration. I know that the tech company has thought about that as well a little bit. The technology is such a big connection to the issues and challenges that presented to agencies in the pandemic. But also this month, we are holding a couple of best practices with agencies with the CFO committee and OGIS to get some of the best practices and get a better view of the challenges of agencies over the past year. It's something that we've been looking closely at. We issued guidance pretty early on to agencies to help mitigate the challenges and also ask agencies to report on it in their CFO report. So we're doing a lot of information gathering, a lot of review of what agencies are doing, and going to be doing a lot of sharing the best practices and strategies that I hope to be able to also publish in a way where all agencies can benefit from that. So definitely an area that we have a lot of activity on too. Great, Bobby, thank you. So I know we're at 1 o'clock, 1 to 1 p.m. I know most of us have other commitments that we need to move on to. I just want to wrap everything up. Thank all the committee members for all the great work you're doing so far. We've already highlighted our Sunshine Week events for both the Department of Justice and NARA, so I hope the public will join us for all of those. And I want to thank everyone for joining us today. I hope everyone and their families remain safe, healthy, and resilient. We will see each other again virtually at our next meeting Thursday, June 10th from 10 a.m. to 1 p.m. eastern time. So are there any other questions from our committee members or any comments or concerns? I'm seeing some shaking of how to know. Okay, it's been a great meeting. Thank you, everyone, for your attention. Really appreciate all the interactions, and we will talk soon. We stand adjourned. Thank you. Thank you. Thank you. Thank you for using event services. You may now disconnect.