 Ladies and gentlemen, welcome and thank you for joining today's 2020-2022 FOIA Advisory Committee Meeting. Before we begin, please ensure that you have opened the WebEx participant and chat panels by using the associated icons located at the bottom right-hand side of your screen. Please note all audio connections are currently muted and this conference is being recorded. You are welcome to submit questions throughout the webinar which will be addressed at the Q&A session of the webinar. 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 send. If you require technical assistance, please send a chat to the event producer. With that, I will turn the meeting over to David Berrio, Archivist of the United States. So please go ahead. Thank you and good morning and welcome to the fourth meeting of the 2020-2022 term of the Federal Freedom of Information Act Advisory Committee. I join you from the ancestral lands of Nacotchtank peoples which today is home to the flagship building on Pennsylvania Avenue of the National Archives. June marks several important historical moments in our rich American history that there are two events that bear mentioning today. The first is June 19, 1865, two years after Lincoln signed the Emancipation Proclamation when Union troops announced that an estimated 250,000 enslaved black Americans in Texas were free by executive order. Among the holdings of the National Archives that have been digitized for online viewing is that decree, general order number three read by Major General Gordon Granger to the people of Galveston. June 19th or June 10th, celebrating the emancipation of remaining enslaved black Americans in Texas reminds us that black Americans helped build our great nation even when rights and liberties were denied them. Last year's national reckoning with issues of racial equity elevated the important June commemoration in our country's historical consciousness. As part of that reckoning at the National Archives late last year I convened a task force on racism and tasked it with identifying and recommending solutions to issues both explicit and implicit stemming from structural racism within the agency. I look forward to sharing more about the task force work in the coming months. June 19th is also a particular significance to the National Archives as it was the day in 1934 the President Franklin D. Roosevelt signed the law establishing the National Archives to centralize federal record keeping. The National Archives Act called All Archives or Records of United States Government legislative executive or judicial to be under the charge of the Archivist of the United States. Workers from the Works Progress Administration Roosevelt New Deal Agency surveyed federal records nationwide locating them in basements, attics, carriage houses, abandoned building and alcoves with little security or regard for storage conditions. Today the National Archives encompasses a nationwide network of federal records centers and presidential museums and libraries in 17 states in the District of Columbia. Like so many other historical and cultural institutions around the world National Archives facilities have been physically shuttered by the pandemic for more than a year. While we've continued to make access happen in virtual spaces throughout the pandemic all National Archives facilities are in some phase of reopening. We recently launched the pilot program to test bringing researchers back into the National Archives research rooms and I'm pleased that the rotunda of the National Archives building here in Washington as well as five presidential museum libraries are open with limited capacity on select days. If local public health metrics remain below target for safe reopening the rotunda also will be open on Monday July 5th for the July 4th holiday weekend. Please visit thearchives.gov for more information. FOIA advisory committee members as we recall the founding of the National Archives as our nation's record keeper I look forward to a bright future including your work in the federal FOIA space. I understand for the first time since the committee's establishment in 2014 you all will formally consider a recommendation less than one year into your term. I appreciate your work on a recommendation regarding public access to legislative branch records a timely topic. Public access to government records in all branches of government strengthens democracy by allowing Americans to claim their rights of citizenship hold their government accountable and understanding their history so they can participate more effectively in their government. Finally the approach of the summer solstice and the long hours of daylight remind us that the long dark winter of the pandemic will someday be behind us as we emerge from these pandemic times. Please continue to take care and stay safe and now turn the meeting over to the committee's chair Alina Sima. Great thank you so much David really appreciate those great remarks. As the director of the office of government information services OGIS and this committee's chairperson it is my pleasure to welcome all of you to the fourth meeting or the fourth term of the FOIA advisory committee. I hope everyone who is joining us today has been staying safe healthy and well. I want to welcome all of our committee members today and express my gratitude for your commitment to studying the current FOIA landscape and developing consensus recommendations for improving the administration of FOIA across the federal landscape. I would like to reintroduce everyone to committee's designated federal officer DFO Kirsten Mitchell. She is going to help me stay on track today she always does and make sure that everything runs smoothly. Kirsten has taken a visual roll call and confirms we have a quorum. Unfortunately we have two committee members who are not able to join us this morning. Alexandra Proloff-Giles is unable to join us. Linda Fry is unable to attend the first part of the meeting although she may join us later this morning if she is able. Since we're dispensing with the roll call I'll just say hello to everyone. Good morning. Patricia West who has been on the committee since the archivist appointed her in 2018 has recently changed agencies. Patricia is now assistant general counsel in the national FOIA office of the environmental protection agency EPA. In light of her move from the NLRB to the EPA the archivist has reappointed Patricia to the committee where she will continue to represent the interests of a non-cabinet level agency. We appreciate and thank EPA for the support of the advisory committee and the important work that we do. Thanks Patricia. I also want to welcome our colleagues and friends from the FOIA community and elsewhere who are watching us today either via WebEx or on NARA's YouTube channel. We have a busy agenda today so I will do my best to make sure we stay on track and end on time and perhaps even a little bit early so I can give you some minutes back to your day. Despite today's full agenda we will leave time at the end for public comments to allow the opportunity for any non-committee attendees to provide ideas or comments. A few words about public comments. We have received a number of written comments that we have posted on our website and we have shared them with committee members. Members of the public can submit public comments at any time by emailing FOIA-advisory-committee at nara.gov. We read all public comments and consider them for posting in accordance with our posting policy for public comments which is available on the FOIA advisory committee website. And we also share public comments with our committee members. Please note the chat function in WebEx or the NARA YouTube channel is being monitored today but it's not the proper form to submit extensive public comments. You may submit public comments at any time by emailing our FOIA advisory committee mailbox and we will consider posting them on our OGIS website. The chat function on both platforms should be used to ask clarifying questions or provide brief comments or questions that we will read out loud at the end of today's meeting. We will open up the telephone lines twice today once at the end of the deliberations of the committee on today's recommendation that will be presented by the legislation subcommittee and at the end for the last 15 minutes of our meeting to receive any oral comments. Meeting materials for this term along with members' names, affiliations, and biographies are available on the committee's webpage. If you click on the link for the 2020 to 2022 FOIA advisory committee on the OGIS website you will be able to access that and there you will also find our agenda for today's meeting. We will upload a transcript and video of this meeting as soon as they become available. All submitted comments that are not case specific are also posted or will be posted on our website. A reminder that the FOIA advisory committee is also not the appropriate venue for concerns about individual FOIA requests. If you need OGIS assistance you may request it but we ask that you do not do so through the committee email. Please send us an email at ogisatnara.gov. It is hard to believe that we've been meeting virtually since March of 2020. The virtual environment has proven to have several advantages for all of us including saving money on dry cleaning bills, saving commute times, and achieving a better work life, home life balance. The disadvantage for me and Kirsten is that we are 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 if we were meeting in person. Although I will be doing my best to monitor committee members nonverbal cues during the webcast please all be respectful of each other and try not to speak over one another although I realize that will be inevitable at times. I also want to encourage committee members to use the all panelists option from the drop down menu in the chat function when you want to speak or ask a question in case we miss your verbal cue. You can also just chat me and Kirsten directly. As a reminder however in order to comply with the spirit and intent of the Federal Advisory Committee Act committee members please keep any communications in the chat function to only housekeeping or procedural matters. No substantive comments should be made in the chat function as they will not be recorded in the transcript of this meeting. Committee members a reminder that I make every single time if you need to take a break please feel free to do so but do not disconnect from either the audio or the video of the web event. Instead put your phone on mute and turn off your camera temporarily. 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 are going to be taking a 15 minute break at approximately 11 30 a.m. on our agenda. We may break a little bit earlier a little later depending on our discussions in our case today. And a big reminder to everyone I am equally guilty of this please identify yourself by name and affiliation each time you speak if at all possible. This will help us down the road with both the transcript and the minutes both of which are required by the Federal Advisory Committee Act. I'm going to move on now to the approval of the meeting minutes from our last meeting March 3rd 2020 2021 sorry minutes from that last meeting have been written up by Kimberly Reid from the National Archives and we thank Kimberly for that. Kirsten and I have to certify and post those meeting minutes online last week in order to comply with the 90-day deadline imposed by the Federal Advisory Committee Act. So we went ahead and certified the minutes to be turned correct but if we missed anything committee members please let us know and we can get that corrected. Before turning to our guest speakers a quick update since we last met on March 3rd we have completed two prior FOIA advisory committee recommendations. So we're excited about that and we have also updated our committee recommendations tracker accordingly. That means eight out of the 30 recommendations that have been made to date to the archivist. 22 of which were made in the 2020 term 2018 to 2020 term are now complete. Recommendation number 2020-10 has now been completed. That recommendation called on NARA and DOJ to establish liaisons with the Chief Data Officers Council to ensure that council officials understand the importance of federal record keeping and FOIA requirements. The directors of OJIS and OIP that's me and Bobby Solidion and our Chief Records Officer for the United States government Lawrence Berler have now often designated ex-officio members of the CDO council and we will work to ensure that the council understands the importance of federal record keeping and FOIA requirements. The complete recommendation number 2020-07 in full OJIS included in our May 2021 annual report to Congress and the President the results of our 2020 assessment on FOIA performance measures for non-FOIA professionals which included four recommendations for agencies to take and I invite everyone to the website to look at that and study that further. Work on 17 FOIA advisory committee recommendations is in progress. Five recommendations are pending which means work has not yet begun on them but we hope to do so in the not too distant future. So bottom line stay tuned work by OIP and OJIS continues. We are working very cooperatively together so I am extremely happy about that and thank Bobby for all the great cooperation. We've been regularly updating the recommendations dashboard so please check back frequently and special thank you to Krista Lemelin on our staff for continuing to keep that dashboard up to date. In the past I have mentioned that earlier this calendar year our OJIS team launched five cross-training programs in which professionals from other National Archives offices have been assigned to OJIS on a part-time basis to work on completing past FOIA advisory committee recommendations. Those projects include compiling briefing material for new senior leaders, working with OIP 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. That work continues and we will publish the results of those efforts as soon as they are available for prime time so please stay tuned. Also please check out the FOIA unbuttoned blog where you can learn more about individual members of our committee through our getting to know the committee members blog posts. A special thank you to Kimberly Reid she's been doing an outstanding job with that and I thank all the committee members for agreeing to share a little bit about yourselves and letting everyone know what interests you and your work with FOIA. I'm going to pause for a second to make sure that none of our committee members have any questions so far about anything I've gone over. Okay great everyone is raring to go. All right so we're going to move on to the next portion of our agenda so it looks like we're right on track. We are going to have a briefing on legislative reform efforts today and I am very pleased to welcome Emily Manna and Freddie Martinez from Open the Government who will be providing us with an update on legislative efforts to reform FOIA. Emily Manna is the policy director in Open the Government where her work focuses on transparency and accountability for U.S. military and national security programs, records management and data preservation and expanding proactive disclosure and the public's right to know. Her opinions, writing and research have appeared in numerous outlets including Columbia Journalism Review, The New York Times, The Hill, Houston Chronicle, The Nation, Lowell Call and on NPR member stations. Prior to joining Open the Government Emily focused on civil liberties and human rights issues in U.S. national security and foreign policy. Emily holds a master's in public policy from Georgetown University where her research focused on the U.S. drone program. Freddie Martinez is a policy analyst at Open the Government whose transparency work focuses on surveillance, immigration and police accountability. His work has appeared in numerous media outlets including The New York Times, Vice, Forbes, The Intercept and The Chicago Sun Time. He was previously a Mozilla Ford Foundation Open Web Fellow at the Freedom of the Press Foundation. We have agreed that after their presentation committee members will have the opportunity to ask questions, make comments and have a dialogue with Freddie and Emily. So please hold your comments, save them and I am now going to turn things over to Emily and Freddie. So welcome. I was very happy to have you. Thank you so much, Alina. Thank you for the introduction and thank you so much for having us. We're really thrilled to be here talking to you all about the work that we've been doing over the past couple of years. So for those who don't know too much about Open the Government, we are a coalition of a little over 100 organizations that vary across the political spectrum, across policy-issued areas that are all working to advocate for open government and government accountability. And we have been working with a smaller subset of about 20 to 30 organizations on a set of coalition FOIA reform recommendations. And that's what Freddie and I will be talking to you about today. Before I kind of talk more about the substance of the reforms, I just wanted to tell you a little bit about how they came about. Most of this kind of emerged the 2016 FOIA reform, some of the coalition's priorities that did not make it into that bill. And also what we've seen in terms of how the 2015 FOIA Improvement Act has been implemented in the extent to which agencies are successfully following the updates in that bill. Also, some of the ideas in our reform recommendations come from congressional staffers and their ideas and priorities. Some come from other kind of events in the FOIA world, such as the Arctic Leader Supreme Court decision. And some just come from various organization priorities. And it's really kind of this set of recommendations has emerged over a couple of years of work and discussion and conversation within the coalition until we've ended up now with the recommendations that we have here. And at this point, we have presented those in Congress. We have been having conversations with congressional offices, still have yet to see how much of our reforms they may accept and sign on to and put into a bill. But I do think that it's likely we will have a FOIA reform bill in some form this year. But still a TBD really on what that will look like. We are also, I will say, focused on an appropriations track as well. We recognize that resources are a significant part of the problem in terms of FOIA backlog delays. So we are pushing for increases in FOIA resources across the board as well. And Freddie will talk a little bit more about that in a few minutes. So now I just like to go through a kind of overview of the issues that our reforms are trying to tackle. And then I'll let Freddie do a deeper dive. And then hopefully we'll leave some time at the end for any questions or discussion. So our set of recommendations aims to address three main kind of thematic areas of FOIA. And those are preventing over-reaction and improper withholding of information, minimizing delays and improving efficiency, and protecting and strengthening fiscal and corporate transparency. Those are the three areas. So for that first area, preventing over-reaction and improper withholding of information, the reforms that we've kind of isolated over the past couple of years include narrowing of the B7 to kind of prevent agencies from withholding information based on a kind of nebulous idea of potential harm from disclosure. A clarification of the remedial power of federal courts to order an agency to comply with FOIA. And the need of that is allowing courts to order public disclosure rather than simply release of a document to a complainant. And the biggest recommendation, working recommendation in that, in this part of our recommended reforms, is a public interest balancing test that we'd like to see added to the foreseeable harm standard. And that's really come out of since the 2016 Boy Improvement Act, the way we have seen the foreseeable harm standard implemented and a real feeling on the part of civil society that's not necessarily being implemented in the way that Congress intended and in a way that favors disclosure and that there's some ambiguity there. And so we think adding a public interest balancing test would clarify and help to to enhance disclosure and FOIA process. The next piece on minimizing delays and improving efficiency, first recommendation in this section is to provide FOIA officers direct access to electronic record systems. I'm not mistaken, I think that's something this committee has discussed in past sessions. These two proactively disclose certain categories of records. And I know that that is a previous recommendation of one section of this committee. And this recommendation actually was based heavily on that recommendation from the FOIA advisory committee. Categories of records such as agency head calendars, visitor logs, the 10 largest contracts and grants, things like that, that would help to remove some of those frequently requested documents from the FOIA stream and hopefully improve the efficiency of the process. The piece on protecting and strengthening fiscal and corporate transparency. This is the piece where we have a recommendation related to the D4 exemption that is a response to the Argus leader supreme court decision and I know that he's going to discuss that in more detail. And we also have a recommendation to apply FOIA to the records of private prison and detention centers related to their federal government contracts. This is something that would certainly be an uphill battle in terms of FOIA legislation and getting it through in particular. But it's something that open the government feels really strongly about. We feel that applying FOIA to private contractors is really the next frontier of FOIA and it's something that we're really committed to working towards in the long term. At this point, something like 40% of federal government work is done by private contractors. And so if FOIA does not apply to 40% of government work, then that's a significant weakness in the law. So that's a real priority of ours. And one other piece that I did want to mention is not actually one part of these main kind of thematic areas, but I know that one subcommittee on this committee is considering reforms or recommendations related to OGIS. So I did want to mention that we do have one recommendation as well that would give OGIS the authority to release records as a part of a brief overview of the recommended reforms that we've put forward. And I think now I'll turn it over to Freddy to dive into a little more detail, but then we're happy to take questions or hear your thoughts and feedback and have a discussion after that point. So Freddy, I'll turn it over to you. I'm sorry, this is Tuan, Samohan. I can't hear any audio. Tuan, you're not the only one. Freddy, if we can't hear you, he is retooling. Please stand by. Freddy, please do unmute your phone. Oh, right, Freddy. You may have to have you dialed back here because we cannot hear you. So stand by while Freddy dials back in, everyone. I can go ahead and talk a little bit more about the appropriations piece of our recommendations while we wait for Freddy to dial back in. I think one thing we did just want to highlight for this committee in particular, and I know it's not an unfamiliar issue to you all, but in our kind of our hope to advocate for increased resources for FOIA offices, it's been extremely difficult to get a real sense of the budgeting and resourcing needs of FOIA offices across the board in any kind of specific terms. And this is a situation where we actually have folks on the Hill who are interested in this and who are interested in making this happen, but we find ourselves in a situation where again coming by those numbers in any detail is so difficult that we may find ourselves once again in a position of having folks on the Hill have to ask for more information, you know, for those kind of specific numbers rather than being able to actually, you know, pass some serious appropriations provisions that would provide some much needed resources. So just an ongoing issue that we're finding in our attempts to make that happen is just coming up with those specific numbers, especially on an agency-by-agency basis on staffing and resourcing needs. Freddie, are you back now? He's not quite back in. He's still going in. Well, Freddie is trying to dial back in. Can I just pause, Emily, and give the committee members an opportunity to ask questions about the legislative proposal so far? Sure. Jason, go ahead. Hi, Alina. Thank you. And thank you, Emily. So, Jason Gart, History Association, it's incorporated. Can you talk a little bit more about your comment about applying employment to government contractors and how that would work? Yeah. I mean, it is a really, it's a really thorny and really complicated issue, and there would be a lot of both not only, you know, FOIA and access issues, but record management issues that would come into play there. And we certainly recognize that, you know, it would be a long road, and we definitely recognize that. But, you know, we think we have to get started somewhere. And the private prisons and private detention centers industry in particular was a good place for us to start and to focus because this is something that most folks on both sides of the aisle see as a pretty poor government function, and therefore, you know, a good industry to start in terms of a place where the public really, you know, direly needs more access to record. And the way that we have set that up in our recommendations is just to make clear that records of the private contractor that are related to fulfilling their government contract would be considered agency records for the purpose of FOIA. So it's not, you know, for example, making the contractor to be considered an agency, which would just, you know, bring up all kinds of additional record management issues for the entirety of that contractor's operations, even outside of their government contracts. But instead, just to say that those records that are related to fulfilling the government contract would be considered agency records. Thank you. And Emily, that can just jump, can you hear me now? Yeah, thank you. And if I could just jump in here, and I think one of the reasons we think people should take this proposal seriously is that many states already require this. And this is also a built into many contracts now that that's the records maintained by the contractor are considered agency records, and are property, essentially, of the agency. And so if you look across the, so that's the first part. The second part is that if you look across the country, many states really do require that core governmental functions be treated as agency records and subject to FOIA, even if it's done by a private party. So for example, Illinois is an example here, but it's not the only one. It's something like the majority of the states have some version of this. So what we really think is important here is catching up federal FOIA to some of the best practices that are performed across the country at the local level. And so we definitely think that this is an issue that is more about sort of bringing federal FOIA in line with other practices across the country. And I'm sorry, I had to rejoin. So if I'm restating this here, just to circle back with Emily really quickly. I think having appropriations for things like e-discovery for like records management, things that I know that the FOIA Advisory Committee had discussed before, we think that that's a great way of having some of these issues that it's still technically legislation, but it's also not, doesn't have to touch the text of FOIA. And so that's a great place where we think additional resources could be had. In particular, we think that there should be a mechanism by which either the chief FOIA officer or someone in consultation with the chief FOIA officer, maybe the CIO should be able to put together joint proposal for things like a modernization budget. So maybe they could put together a package that says we need money for something like e-discovery tools and we're going to use it for both FOIA, but in general also record management and other kinds of things. Sorry, and I'm just kind of going to move back on to the other idea of the public interest balancing task. And that really is just sort of coming out of the fact that the foreseeable harm standard really hasn't been implemented in any significant way. And we sort of think that there should be at least a subset of public interest that should outweigh kind of exemptions. So things like news media interest, protecting the lives of individuals, these kinds of things should override the potential to exempt information. And we think that that one in particular is a really important one. Some of the other priorities that we have as a coalition include, you know, a fix to exemption four, this is the the Augustator decision. We definitely see strong interest in things like reverting to the national park standard that was upended by the Augustator decision. And we have interest on the Hill in legislation. So for example, the open and responsive government act, which is Senate Bill 742 in this current term, attempts to clarify congressional intent with before. And in particular, we think that there should be a few things, right? We want to restore the substantial competitive harm that comes out of the exemption. We definitely, we also think that records should be maintained and treated as confidential only if they're both actually and customarily kept secret within both the company and within the industry. We are seeing situations now where agencies are withholding records on the basis that they're confidential because they sort of defer to private businesses and just sort of take their work for it without doing any kind of analysis. We saw an example where the Department of Labor was saying that works of injury reports were trade secrets for the purposes of FOIA because even though the agency is required to proactively disclose some of that information, and the business is required to post those records publicly in their workplaces. And that's kind of what's happened after the Augustator decision. So we need some mechanism both to restore this idea of a substantial competitive harm that would arise from the release of a businesses record. And we also need some mechanism for an analysis of what is confidential and what is commercial. And so that's one of the reasons that we think that the Open Responsive Government Act really does sort of get to the heart of what we're trying to do here. But we definitely think that that could be really powerful as part of the package. The last part that I want to talk about I guess is the improper withholding of information and the expanded access to information. So for exemption B7S in particular, this is an exemption that's used the most frequently in government. And we think that over time the use has sort of expanded far beyond what was intended by Congress. In particular, the text of exemption B7S is that risk to any person that would arise from the release of records is the basis for withholding. And this sort of definition of any person has expanded from a very real particular individual to sort of very vague and theoretical harm. We think that limiting B7S to any basically we think that this any person that is identified as a potential person for harm should be related to an active law enforcement investigation that has some specificity to it. We've seen the government sort of try and agencies try to use these. For example, in one example we saw that potential flooding risk, for example, in the future to some town potentially these kinds of vagueness, vague risk really do not sort of get to what we think Congress tries to properly protect. And then finally, in sort of reducing cover withholding and over redaction, we also think that we need some mechanism for, sorry, let me pause there. I did want to, sorry, let me shift gears here for a second and talk about expanded access to electronic records. And I know this is an issue that the advisory committee has looked at before. One of the recommendations that we are making is that FOIA officials be given sort of direct electronic access to the record that they would ultimately be reading, searching, redacting, and releasing. So this is a provision that just clarifies that FOIA officials should have direct access to the record that they will release. And this is sort of to reduce the situation where FOIA officer will go to a subject matter expert maybe two or three or four times, ask them to search for records, and then ultimately release both records. Obviously we think that there will be a situation where these individuals will work together, but if a FOIA officer can sort of maybe do that first level search, this will sort of cut back some of the back and forward between them and the subject matter expert. We're seeing this as one of the major inefficiencies in FOIA across the agencies. And we know that in our discussions with FOIA officers that this is a change that they were very much welcome and they would very much they would very much speed up their workflow. So we think that that was a no-brainer. We think that that one would have a lot of agency bias from officials and from the community as well. I think I will wrap it up there. Yeah, I'll leave it there for questions. Okay, great. Freddie, thanks. I know that Cal McClanahan had a question. Cal, over to you. Hi, thanks for that. Hi, Emily and Freddie and for the rest of y'all. The question I have is going back to something that Emily talked about when she was talking about the private prison issue and not under some horse because I have a cold today. Was there in your analysis, did you come up with any reason that an agency could not go ahead without statutory reform and put in a term in a contract that would require the contractor to make their records available to the agency in the instance of FOIA requests? No, Cal, that's a great question. I don't think there's any reason what and many already do and that to be quite honest that's part of our argument is that many contracts already include such provisions. So it shouldn't be a major change or a major shift for many of these contractors. The reason why we'd still like to see it done through the statute is for the purposes of the integrity and strength of the FOIA as a statute. That is something that we feel should apply to government work across the board, whether that's being done by agencies or federal employees or whether that's being done by contractors. So we'd love to see that change to the statute, but in the meantime, you're absolutely right. There's no reason why agencies can't go ahead and include this in their contract currently. Hi, this is Juan. I have a question for Emily Manna. Emily, could you address a little bit this proposed foreseeable harm balancing test? My thought or immediate reaction is, yes, I'm sympathetic with the idea of putting teeth into this test. I recall, well, Michael Bakesha from Judicial Watch advising that this was going to be a toothless test if it was adopted. And nonetheless, that's what Congress went with, and largely in many instances has proved to be toothless. But I'm concerned that perhaps it is going to create a lot of unpredictability, which at the agency level may mean that people will err on the side of overreaction. And then it pushes the decision basically out of the agency and then into the courts so those who have lawyers can litigate these claims. And of course, when you've got a balancing test that's a standard, you know, that's famously subjective, and it tends to then depend very much upon the identity of the adjudicator. And so say how U.S. district court judge or senior district court judge Royce Lambert applies that test is going to look very different than, say, you know, a much more pro government judge. And so I'm wondering whether you've given thought to other ways of putting teeth into this foreseeable harm standard, whether you consider the unpredictability issue. Sure. I mean, this has been a longstanding priority of our coalition to add a public interest balancing test in some form. And we ultimately decided that, you know, post-2016 Point Improvement Act, that adding it to the foreseeable harm standard would be the best way of doing it because we believe that it will add clarity to the foreseeable harm standard. And that, you know, some of the issues you're describing is to a large extent, you know, what we're already seeing in the implementation of the foreseeable harm standard that, you know, agencies are already airing those items. And that there is ambiguity. There's, you know, a lot of litigation over the foreseeable harm standard and that is a hope that adding language would clarify the foreseeable harm standard rather than adding more ambiguity. We have also, we're adding in our language a few different examples of public interest for this purpose to, you know, for reference, which includes things like furthering public understanding of the operations or decision making of an agency or government official, facilitating the public's ability to make informed decisions with respect to electoral or democratic processes, investigating any reasonable suspicion of governmental wrongdoing, furthering public health or safety and other relevant public interests. You know, so we're hoping that we can add clarity rather than adding ambiguity, but, you know, of course, at least in the short term, you know, I'm sure there will be a lot of litigation over this as there would be over any kind of new change of the way, but it's our hope that down the road in the long term, this improved, ultimately improved disclosure and, you know, would decrease litigation in the long term. You know, I don't know if that answers your question. I don't have, you know, specifics on kind of other ideas that folks have talked around on adding teeth to foreseeable harm, but that's kind of a little more insight into our thinking. I don't know, Freddie, if you wanted to add anything. Yeah, thank you, Emily. I definitely also want to, I mean, I guess remind people that there are already balancing testing other parts of the FOIA, and agency officials and district courts already know how to, you know, deal with them. And so our belief is that there already is this, I guess, you know, muscle that they can flex if they need to. So we have heard that concern rain, but we also just remind people that this is a thing that is already in other parts of FOIA, and we don't foresee it sort of adding more complexity or at least we think that people will be able to handle it just fine. So if I could just push back a little bit, you know, every time you write in ambiguity to the statute, you are increasing the costs, the claimants, and to the government to resolve those ambiguities. And when you've got a key shifting statute and you have requesters who, you know, by and large depend on the good will of, you know, pro bono, low bono lawyers or those who are willing to work on a contingency fee basis, you create certain pockets of cost for, you know, prospective clients. And so let me suggest that, you know, standards fine, but adding new standards, either also, you can find some bright line rules also to help backstop some of these things. And again, this isn't just, you know, the requester side. I would think too, if I were a FOIA officer, you know, I would prefer to have some predictability here. Again, you know, there's a big literature on the costs and drawbacks of standards versus rules. And, you know, one of the famous ones for standards is going to be this unpredictability of costs and, you know, a risk of inconsistent outcomes throughout. And so, again, I think that your instinct of including some examples is a good start. But I wonder also, are there some clear lines maybe that you might draw and, again, make this a little bit more administratively simple for the agencies on the agency side, and a little bit easier, less objective for, you know, the benefit of both counsel and courts? Thank you. I mean, it's definitely something important to consider. You know, again, I'll just say that ultimately, you know, it's our belief that increased disclosure will ultimately reduce that burden. But I do agree that, you know, in the short term, you know, there likely will be a slightly increased burden when this change is still new. But it is our hope that there will be, you know, a kind of result standard ultimately. But, you know, absolutely clear your point and thank you for the feedback. And we can certainly consider whether there are, you know, as you said, more bright kind of offline rules that can be implemented to this as well. Hi, this is James Stoker, Trinity Washington University. I also had a question about the foreseeable harm standard. And actually, there are two things that I wanted to ask. First, have you all done a study of the role of public interest in foreseeable harm determinations? Because I think my understanding is that the agencies have the discretion right now to consider public interest in determining whether something meets the foreseeable harm standard or not. Or are you aware of any? And then the other question is on who would do the burden be to articulate what the public interest is? Would it be requesters who would talk to, in their 40 requests, state what they think the public interest is? Or would you just ask the agencies to make a determination about what they think the public interest of a particular request might or might not be? Thank you. To your first question, we have not studied that. Freddie, I don't know if you're aware of anything on that note. To your second question, it would be to the agency to weigh that public interest not to the pressure, which is why we've provided examples in our recommended language. Freddie, do you want to see more? Sorry, just meeting all the entire time. I definitely agree with you on the second part that we definitely think it should be on the agencies to be considering all of these, especially with how, you know, I think at the end of the day what we're trying to do is find a mechanism to make it clear that the public interest in disclosure should override agency interest and withholding. And what we're adding is another additional power to that backing. And so we think that that would sort of make it clear to the agency that they should be considering all of these things when they're applying exemption. So definitely we think that it's appropriate to sort of put that toward the agency because it's ultimately there the agencies overuse of redactions and exemptions that we're trying to tackle. And the agencies are already considering the foreseeable harm piece of that. So that's already that's already required to be part of the agency, how to listen to deciding whether to withhold information. So this just adds, you know, not only that disclosure would harm an interest protected by an exemption, but and that such harm outweighs the public interest and access to the information. So it's just adding additional language to what the agency has already considered in the foreseeable harm standard. Hi, this is Kelma Fennan again coming back to this issue. How would you propose specifying in the rules in the legislation, if there were to be legislation on this, that, you know, the public interest could not basically be defeated by the existence of the exemption? Like say that the agency wants to withhold something under B5 as attorney client privilege. And they say, well, there's no public interest in the release of a attorney client privilege situation because of the importance of the attorney client privilege in American jurisprudence or something like that, like they have tried in some of the various foreseeable harm cases where they basically make it a nullity. How would you get around that proactively so that we don't end up back here four years from now re-arguing how to make it better yet again? That's a good question, Cal, and one that I might lead to the litigators. I'm not a litigator on FOIA. Freddie, I don't know if you have thoughts on that. I don't. I mean, yeah, there's kind of a circular pattern here, I think, which is challenging. I don't have thoughts on that, unfortunately. I do think that it's one that we're going to have to tackle moving forward, but I don't know how to get to that. Well, if anyone else has any questions, now is the time to get a man. We're running a little behind schedule, so I encourage everyone to just think through any other questions to ask Emily and Freddie quickly. I'm sure Emily and Freddie will also be available afterwards. If anyone has any other questions to send them an email, we can reach out to you. There was one comment that we received that I just want to read out loud. There may be value. This is to the appropriations issue, Freddie, that you talked about earlier. There may be value in rechanneling FOIA fees towards OJIS, which could help provide a secure and additional source of funding. Michael Morrissey is studying fees, so that's something I guess you could take a look at as the process subcommittee is talking about that. Anyone else have any questions? Tuan, you asked a very good question. I don't want to bypass you. Would you like to just ask it out loud? Do you want me to ask it? I lost it in the chat. I can just leave it for Emily and Freddie to take a look at. I was just asking in other contexts, the public interest is limited to knowing what the government is up to, and so I again wanted to understand better this proposal of having public interest considered and whether you were proposing a conception of public interest that was broader. Again, I think public interest can mean, because in one of these elastic terms, that could mean a lot of things, but under the court's jurisprudence it's been relatively limited when we're, for example, in a privacy context considering a B7C redaction, for example. Alina, could I just give like a 30 seconds to answer? Yeah, okay, I think that's a really great question and something to think about again, I think specifically for our litigators and those who will be litigating on this, but I'll just say that I don't think what we propose here is necessarily a broader conception than that. I think we've just tried to list examples within kind of what the government is up to that we think get at some areas where agencies might be tempted to withhold information and think that agency interests might outweigh the public interest there. So I think we're just trying to specify further rather than broaden that definition, but it's a great point and definitely something for us to consider. All right, great. Anyone else have any burning questions that they want to ask on a Friday? All right, I'm not seeing any verbal cues, no one's jumping up and down or anything. So with that, Emily and Freddie, thank you so much for your time, great presentation, lots to think about and lots for the subcommittees to take under consideration. Thank you, Alexis, for the clap. We would be clapping for you if you were live, so we could certainly do that. Okay, well, thank you so much. You're welcome to stick around, Emily and Freddie, for the rest of our discussion. We're actually going to launch into the Legislation Subcommittee. They are advancing a recommendation today, perhaps you have comments or questions, so feel free to stick around. Okay, everyone strap in. We're ready. We're going to move on to our subcommittee reports. As a reminder, we've got four subcommittees, but today we're giving more floor time to the Legislation Subcommittee because they do have a recommendation to move forward. I want to point out to everyone we have posted mission statements for all four of our subcommittees, classification, legislation, technology and process. They're all available on the main webpage to scroll down to what's new. A particular note, and you will hear perhaps a little bit later this morning, the Technology Subcommittee has tweaked its mission statement and redirected itself, so that's great. But first on the agenda today is the Legislation Subcommittee. We have asked this subcommittee to present first, since they do have this recommendation. I am going to turn it over to co-chairs Patricia Lepp and Cal McClanahan, but Patricia will speak today since Cal is a little under the weather. Patricia, you're going to go ahead and give us an update on what your subcommittee has been doing. Yes, good morning, everyone. For the Legislation Subcommittee, we have a number of working groups, and today we're going to report out on three of them. I'm actually going to turn it over to the leads of each working group. So you'll be hearing from Alan Latstein, who is the lead for the FOIA Fees Working Group. And then next, Matthew Schwartz will give a report out on the FOIA Funding Working Group. And last, but certainly not least, is going to be Tom Sussman, who leads the Expanding the Scope of FOIA Working Group. The majority of our time is going to be going to Tom because he has recommendation to propose to the full committee. So with that, I'm going to turn it over to Alan. Thank you. One new FOIA idea we have recently explored in conjunction with the process subcommittees, whether ordinary requesters should receive additional free search time and whether commercial requesters should receive limited free services as well. One agency that has already enacted these changes is the Consumer Financial Protection Bureau, which in 2018 amended its FOIA regulations and waived search fees and review fees up to $250. We spoke with the CFPB FOIA staff and they stated that overall their regulatory change has increased the efficiency of their operations. Whether other agencies would enjoy similar benefits is unclear. It is also unclear whether other agencies or Congress would support reducing fees for commercial requesters. So our deliberations on this issue will continue. That's all from the FOIA Working Group. Thanks, Alan. Hi. Matthew. Patricia, I think you're on mute. No, now she's okay. Oh, I'm on mute? No, you're good. You're good. Oh, okay. You're a good bell. Okay. So Matthew will then report out on the FOIA Funding Working Group. Yeah, thanks Patricia. This is Matt Schwartz. So for the Funding Working Group, Kimberly Reedwood-Nara did some wonderful research for us and she combed through the appropriations bills and found some interesting line items. And so I was interested to hear when Freddie was talking about possible line items and appropriations bills, so I think we'll look into that as well. I plan to do some additional research to see what both states and other countries are doing in terms of funding their sunshine laws. Additionally, I thought that the comment today in re-channeling FOIA fees through OGIS is very interesting. So I want to do some research into that as well. So I have that on my plate moving forward. Thanks. And with that, we're going to turn the remainder of our time over to Tom Spussman. So Tom, take it away please. Thank you, Patricia. You've all been circulated a draft, a preliminary draft of a paper that I wrote that forms the basis of the subcommittee's recommendation. I've gotten very good feedback from Matt and Patricia that has not yet been incorporated, but I do want to start by inviting everyone to please feel free to get hold of me directly with any suggestions, criticisms, editorial comments, because I will be revising this. And the title should more accurately address infant access to the legislative branch rather than Congress because it goes beyond the actual Congress itself as you've read. Special thanks to a few people, Daniel Schumann, who addressed this committee last meeting. I really did groundbreaking work in this area, and I cite to him and rely on his work quite a bit. Both Alex Howard and James Valvo have done research and produced papers and been active in this field, and I also rely on their work. The subcommittee's focus responded to a recommendation of the last advisory committee that its successor should look at application to the legislative and judicial branches. This is part one on the legislative branch and no commitment shed in terms of what will follow. I'll hit the highlights of the recommendation, which I think will be put on the screen, and then we will discuss, take questions and have discussion. The subcommittee decided that we're at a point where the committee may want to go ahead and approve a recommendation that can go to the archivist and move through channels without waiting until the end of the full committee term, or you can postpone consideration, whatever, however the committee decides to do that. Can we get the recommendation language up there, Kirsten? Yes, there it is. Thank you, Michelle. Thank you, Michelle. Right. We start out with the proposal that the procedures for access should be directed towards the support offices and agencies of Congress, and not broadly at Congress. Those are listed in the paper, Capitol Police, GAO, Library of Congress, CBO, and others. They all perform administrative and support functions similar to the kind of functions provided by executive agencies. Some already have formal FOIA processes, like the governmental accountability office that has adopted regulations. Some have informal ones, like the congressional budget office. Others, like the Capitol Police, remain closed and opaque. The recommendation does not apply to members' offices, committees. The reasons are really spelled out in the draft paper, political, practical, and constitutional. There is likely to be some disagreement on that subject, and I'm not sure that any one reason can be identified as determinative. I have to admit that over 50 years in and around the legislative branch, and a lot of this is my own sort of strategic conclusion that not approaching Congress head on, where members would worry about how does this affect me and my office and my staff and my committees is a more likely way to get serious consideration. We talk about access procedures modeled after those in the Freedom of Information Act, not application of the FOIA itself. Full acknowledgement that many states and foreign countries have right to know laws, access to information, statutes, and regulations that apply to their parliaments and their legislative branches as well as the executives. Again, this was, I think, more of a strategic decision that Congress is different. It considers itself different, and it's more likely to be responsive to wanting to craft rules from the beginning that apply to itself, rather than try to figure out how to carve out exceptions or B3 statutes or whatever it might do when it began to take a red pen to the Freedom of Information Act. Proactive disclosures specifically mentioned. Congress does an awful lot of that right now. A number of areas where it already puts information up on the web, and that's certainly appreciated by the public and media and everybody who follows legislation. We've identified a few areas, some proposed by Daniel Shuman, others recommended by some others who have looked into this, and it's an open, that's an open list. I'm sure there are others and I would invite suggestions of what we should add as four examples. The proposal that whatever Congress adopts, whether it's a regular rule or legislation, that it include procedures governing the request and time limits. Again, the FOIA provides a model, but I was hesitant to suggest that the advisory committee would attempt to prescribe details for Congress, dictate what they should adopt, but to use the FOIA as a model as the Government Accountability Office has. And allowing Congress to make the last, the final decision. We stopped short of proposing judicial review of final agency decisions to evolve. There are potential constitutional concerns, and I go back to probably even greater than constitutional or the practical and political challenges of asking Congress to subject itself to another branch's routine review. I'm not saying that the courts have hands off when it comes to legislative decision making, that goes back to Marbury v. Madison. But to have Congress place itself in a position where every time a denial of information is made that a requester could go immediately to court to challenge Congress, I think that would not likely be a workable solution. More likely to have an independent office within the legislative branch that is led by members of Congress who are ultimately responsible to make the appeal decisions. Okay, this won't be the first time a recommendation has been made to Congress to apply FOIA or some similar law to itself that's considered and had hearings on this subject before. The fact that there has been zero movement on this issue ever suggests that this may not be the last recommendation of its sort. I know it doesn't go far enough for some who might think that FOIA should apply to the legislative branch just as it applies to the executive branch. I've called this the what's good for the goose principle. But I think that however principled that approach is, it is not likely to go under serious consideration by the first branch. And so our subcommittee decided to recommend a more modest step, though I believe a strategic one. So that's the description and background and I'd be pleased to participate with my subcommittee members in discussing and responding to questions. And obviously the recommendation is on the screen to invite suggestions and its proposals for improvement. Thank you. All right, thanks Tom, really appreciate that. I know that we had a robust discussion at the subcommittee level, but at this point I want to invite any other committee member who's not on the legislation subcommittee to provide any comments, questions or feedback. So I'm going to open up the floor to that. And after we have finished deliberating, but before we take a vote on the recommendation which is what I assume we're trying to do today, correct Tom, correct Patricia, correct Cal? Yes. Yeah, okay. We will open up our telephone lines to welcome any public comments so we can hear from any non-committee participants who have ideas or comments to share on this particular recommendation. So with that I'm going to open up the floor to other committee members. Anyone have anything they'd like to talk about? This is Cal. I just wanted to add one point of clarification before it gets too muddy in the discussion. When Tom had mentioned that we stayed, we steered clear of recommending judicial review and thought about well maybe it should be an independent office or an independent panel or something like that. We steered clear of making any particular recommendation in general and we actually had a fairly robust discussion on this and decided in the end that we would not foreclose it either. And if Tom happens to be incorrect about the palette in Congress right now and Congress is okay with judicial review, great. We do not want to put our thumb on the scale one way or the other just our design here was to say there needs to be some kind of review. There needs to be something, some kind of access and some kind of sort of appellate authority to look at these things. We're not going to micromanage, we're not going to prescribe actual ways this could happen although we would obviously be welcome to share our analysis with anyone who wanted to start working on legislation like this. But that shouldn't be read as an endorsement or lack of endorsement of any particular provision. Okay, thanks Cal. Hi, this is Twan. I just had a quick question. Is the constitutional concern you alluded to the speech or debate clause, is that the specific issue that was having you pulled back from judicial review? Yeah, that's the main one. I should mention also that only last week the DC circuit came out with a decision because James Valhauk sued Congress under the common law right of access to get access to information from the House Intelligence Committee and I confess I hadn't even thought of or approached that issue but the court also discusses the speech and debate clause and I think probably interprets it broader, more broadly than I would have. So I think that needs to probably be given a little more attention in terms of the report but these issues were discussed in greater detail in the O'Reilly article a number of years ago that cited and there are other... He goes through a discussion, a very erudite and academic discussion that I didn't repeat of other potential separation of powers and presentment and things of that sort that might implicate constitutional arguments. And for instance there was just the case of Eric Valhauk attempting to serve Mo Brooks and the court said I'm not going to order U.S. Marshall to deliver the subpoena because it might, our director delivered the summons because it might implicate some kind of separation of powers. So it's more of a nebulous concept than just speech or debate that yes, speech or debate is definitely one of the key concerns here. This is James Foker from from AD Washington University. First I just want to thank everyone on the subcommittee for all their work on this. I think this is a great recommendation for that recommendation. My question is about the exemptions. What exemptions do you think would a loss on congressional transparency include would they be the same as the FOIA? I'm thinking for instance the office of congressional ethics which is an office that many members of Congress and then also staff members will turn to to ask whether or not they are allowed to do something rather than hold a meeting or go to lunch or whatever else. And they have an expectation when they inquire of this office to a relatively great deal of privacy and they need to be able to ask questions in order to effectively do their do their job so they know that what they are allowed to do and what they're not. And so it seems to me that that would be an example of a case where the Congress will want to ensure that they are airing on the side of protecting the privacy interests of individuals. And so I guess I'm just wondering whether Congress is going to need whole new categories of exemptions or if the ones that are already in the FOIA are enough. Thanks. This is Tom Sussman and let me take a shot at that. A lot of these questions can be answered by saying is there an executive agency counterpart that does that and if so are the exemptions adequate? There was a question in the chat about the Capitol Police with this apply of Capitol Police. The answer is it applies to the Secret Service, it applies to the FBI, the DC FOIA applies to the DC police. We have lots of examples across the country where police forces are under every state's freedom of information law. So that's the answer I would give with ethics opinions the same thing. Every agency and department has an ethics officer that gives opinions to government employees who come and ask can I go to this reception or can I accept this gift? Or the Office of Government Ethics that answers what do I need to divest in order not to have a conflict of interest? All of that's been protected. We haven't seen any agitation for expanding exemptions to protect privacy in those areas. So I would think that as I said before I think the FOIA exemptions have been tried and true in many ways with years of judicial interpretation and so I would kind of hate to see Congress start from scratch especially since there wouldn't be the same opportunity for judicial interpretation of the language and I wouldn't trust Congress to use extremely precise language the first time through. So I feel comfortable with starting with the current exemptions. This is Kel. I think for bad some both more generality and more specificity to that statement the first the general statement is you know we did a lot of thinking in this and when it boils down to it I mean one of the complaints that people often hear about FOIA that is a fair complaint is that the exemptions even though they're supposed to be read narrowly can be read very broadly especially v5 and if you look at that it's really hard to think of a type of information that let's say at the GAO or at the Capitol Police that would not be covered by an existing exemption that would need to be covered by something and so you know I think this might be a solution in search of a problem. As for specifics you know there's already precedent for this idea of just importing FOIA. You know this is how the Western Metropolitan Area Transit Authority met Metra WMATA. WMATA has their own FOIA procedure they are not subject to federal FOIA but they have this thing called the PARP the public access to record policy and in its text PARP says we follow FOIA and we follow the judicial interpretations of FOIA and so if a case comes down that says that v5 means something or that this type of information is exempt from the v3 then it's also exempt under PARP by the same token if it's not exempt it's not exempt and so you know you have that you already have this other entity that is not an executive grant agency that has a tried and true history of just saying yeah it's pretty broad enough for us you know there's nothing really needed we need to create here. This is Kristin Ellis from the FBI to piggyback off that a little bit. If you're looking at agencies like the Capitol Police or GAO a lot of information that they have could have originated from the executive branch certainly the law enforcement agency sharing information that the Capitol Police and vice versa GAO obviously would have opious quantities of executive branch records and parity is key in being able to protect the executive branch records. We see this with state and local law enforcement agencies a lot when FBI information is shared every state has its own protection and so in ensuring that the information is properly treated becomes difficult under 50 different statutes so I would you know to the extent that this gets any traction I agree that I think the exemptions that exist have worked since they were enacted and it would make sense for them to be adopted and obviously if there are a particular type of information that's not reflected in executive branch records that Congress thinks it needs to protect you know it certainly could add things but I think the ones that already exist would make sense just given the nature of the sharing of information at least with some of the agency. Okay thanks Kristen Jason I know I have a question you've been waiting very patiently. Thank you Jason Gart History Associates Incorporated so this is very very interesting I wonder as you were crafting this if you reached out to the advisory committee on records of Congress which I believe also David Barrio is a part of to just see you know what what their stream of thinking is and what they're doing on this issue and it may not be something that that they're dealing with but you know you do as your starting point talk about the political considerations and I just wonder you know what what if if you reached out to that committee and and if if they have thoughts on it. My conscious when responding no I haven't it's a good idea I did get some comments about record keeping and record management Jason Barron on the previous committee advisory committee filed the comments that I think have been posted and Daniel Shuman who I see active in the chat has has also spent some time looking at archives management access to committee records etc I that's a that's a major subject an important one I think you know it's good to get the view of the advisory committee but but for now we're looking at access for you or for you like access and I'm going to lead to somebody else the plumbing of records retention records management and archive records access from the legislative branch an important subject indeed okay anyone else from the committee have any questions I know we've gotten some chat comments we I was just going to read them out loud but before I I do that I wanted to give any other committee members a chance to ask questions or any comments everyone's good everyone's probably ready for a break okay hi this is James Stoker again I'm sorry I had I had one other other question I wanted to ask and basically but who would be the ultimate arbiter of this legislation within the Congress in other words you know who would be making the decisions about whether to grant or not grant responses to requests I asked this question because one obvious concern about this would be the potential for political misuse and you mentioned earlier that there was you know there are parallels in the executive branch for all sorts of situations and certainly that's the case in the executive branch as well someone who didn't charge a FOIA could potentially misuse the FOIA or use it in a political manner but it seems to me that the stakes are even greater in the Congress and we could imagine if a partisan actor was in charge of deciding whether or not to respond to transparency requests but it could be used in quite a damaging way or in a way that disrupts the functioning of the Congress so how could concerns about that possibility be addressed thank you James this is Tom Susman I can't believe you're suggesting that Congress might be political I mean I you know I don't know that there's ever a guard against political misuse certainly as you as you acknowledge it happens in the executive branch of course there you can go to court that is an argument for getting it out of the branch we suggest criticisms that would include the involvement of members of Congress in the ultimate decision making so that the Capitol Police General Counsel could make the initial decision of a request to the Capitol Police force and if a requester wanted to appeal they would go to and what again I'd love like to see if I would during the drafting an independent entity in the legislative branch that is headed by members of Congress and you know I I don't like to use examples because most of the ones the joint ones like the joint committee on publishing is sort of more abundant but you know I could sort of I could foresee a joint congressional committee on information that could you know take care of a lot of these records management and archiving there's there's no there's no consistency uniformity between the two houses of Congress on a lot of these issues that that really would benefit from some comments so I don't have a clear answer and I clearly whatever answer one gives if it's in the hands of a member of Congress it is going there's likely to be some political consideration given and I don't know that one could avoid that I I think we're recently confronted with the fact that even on judicial review we're looking at some what some might call political influence of decision making that's inherent in our system I'm afraid and this is Cal I can sort of hit the other side of that coin which is you know some some may raise the concern that you know what if this is used for political purposes to you know get information out you know not to withhold information for political gain which will release information for political gain and to that end that to that point it's already something they can do I mean this this is this is Congress we're talking about and so you know there is absolutely nothing restricting a random member of Congress from just releasing information they want to release for political gain except occasionally if it's classified you know and even then you have sort of clever ways around that as you know might prevail discovered a few years back but you know I think that again it might be to reuse the same sort of tired phrase a solution search for a problem for us to try and guard against an appellate authority of a FOIA like process not being able to do with any member of Congress can do anyway Cal this is Tom Sussman the flip side of that is and I hadn't you know I just thought about it is when you talk about political use of the FOIA I can see challengers to members of Congress and senators at election time if if such a law applied to their offices individuals or staff I could see this being weaponized as a campaign tool much likely so if it's the library of Congress the police or the government accountability office that's subject to access and and that's a very good point I think that that sort of underlines the reason that we chose the offices we did because we didn't choose even to the extent that committees can be found to be beholden to the chair you know we only chose agencies that are you know independent you know they they they serve the public they serve every member of Congress equally they serve every member of the public equally the degree to which they serve varies but you know no one can say that they are going to immediately look out for this interest of one person or one party over the other when you when you have a public service mandate like the Library of Congress like the government accountability office like the architect of the capital of the capital police then a public awareness of your activities should also come with that. Thanks Kel. Jason you had a follow-up question. Yeah so I this is where I guess I disagree a little bit so and first of all so to use two of your examples Library of Congress there's not really a public function it serves the members of Congress the Library for the members of Congress you know others can use it but it's actually its purpose is it's for members of Congress I would say the same of the congressional research service and and you have it as congressional reference service but I believe it's congressional research service where you know it's intended to serve it's intended to serve the research needs of members of Congress as part of their internal deliberations and most of and you cited examples that well you know the historical CRS reports but they are most of them are publicly available most of them you know are either on the CRS website there's like 9,000 of them and then the others are just are essentially available in various places like congressional pro quest congressional and other databases so you know if you look at if you say okay the CRS stuff the the CRS reports are already out there really you just need to look for them and then the other function to serve as a research services for members of Congress would that improve the functioning of Congress by allowing you to fool you that information oh my reflection yeah good good questions this is Tom Sussman right CRS reports the ones that CRS doesn't post may well be out there they may well not be out there we don't know but and they may be out there and you have to pay to get them so I mean I'd hate to apply that standard to to the executive branch you know it's out there somewhere you just need to find it maybe Westlaw has it well it's a microfiche there there's you know it's in libraries a microfiche it's not it's not totally digitized but it's available to the two-step process process of going to a library and pulling indices and grabbing it off with microfiche on the subject on the subject of you know the purpose of CRS is to provide resource to Congress certainly no member of Congress pays for it out of his or her pocket that still comes out of tax dollars and I probably with it in in a very few minutes could name you at least 50 different executive branch offices whose function is to support executive branch officials and agencies and they're all subject to the Freedom of Information Act even though they may not be publicly facing we don't we don't make that distinction with executive branch and I wouldn't make that in the legislative branch and to follow up on that I would sort of push back against the idea that the goal of this is to improve the functioning of Congress Congress will function most effectively in complete secrecy no open hearings no open meanings no open records that will allow them to function very efficiently so will the executive branch this isn't about that this is about allowing the government allowing the people to as FOIA dictates know what the government is up to and the cases that cite that rule not say that FOIA is designed to let the people know what the executive branch is up to so there are a lot of FOIA officers out there and a lot of agencies out there who would say that FOIA makes their job a lot harder and makes it makes them function much less efficiently and we don't accept this from them I think that saying well then we shouldn't apply it to you know CRS or to Capitol Police or to GAO because they serve a similar purpose would be equally misguided okay I'm mindful of our time and don't want to discourage any further questions or comments from any of the committee members so I'll pause for a second to make sure that everyone has gotten their questions or comments in I know we've gotten several chat comments to all panelists from Daniel Schumann who was our presenter last time from to whom Tom referred is a great source of information on this particular recommendation so I was going to turn next to Michelle our event producer to ask her to open up our telephone line Daniel has offered to summarize his comments Michelle can you please go ahead and give instructions on presenting any comments at this time through the phone absolutely so that's all Daniel Schumann if you would like to make your comment please press pound two on your telephone keypad to open your your line and there you are all right so your line is unmuted like good morning everyone it's so good to see your smiling faces I'm sorry that I can't be on video with you all as well but I guess it's an unfair advantage but thank you all for giving me an opportunity to make a public comment there are a couple issues that came up during Tom's eloquent presentation in the great conversation that followed from it that I thought might be useful to clarify first inside the legislative branch we already have FOIA applied to the copyright office itself although no other support offices or agencies but there are several support offices or agencies that follow a FOIA like process for example both the Library of Congress and the Government Accountability Office have promulgated regulations including an appeals process by which you can go and request documents in addition Congress directed the Capitol Police at the end of the last Congress to go and implement a FOIA like process as well so we are already seeing FOIA like processes being put into place they generally follow similar rules that FOIA applies with respect to the support offices and agencies we don't know what the Capitol Police is will look like as someone whose work sort of with respect to the support office as an agency just by way of anecdote we spent the last three and a half years investigating some of the failings and other problems inside the Capitol Police which is very difficult to do when there isn't a tool available like FOIA and one of the values of course of having opers and transparencies that you can identify problems and then remedy them before they become acute and I would suggest that had there been more more insight into the Capitol Police for example we might have had things go very differently at the beginning of this year I think that there's also the sort of value in thinking you know FOIA of course is both a proactive and a reactive disclosure provision having more proactive disclosure with respect to certain things with respect to the operations of the support offices and agencies I think would be welcome happy to talk about this more but I'm trying to be brief the second is I've attended all the meetings of the advisory committee on the records of Congress this has not been a matter that has come up before them at least in the meetings that I attended although I did miss one I think six months ago they tend to be more focused on the archival question about what happens to member record committee records when they retire it's a number of very very thoughtful intelligent folks that are largely historians so that seems to be their attitude in their focus so you could talk to the clerk of the House and Secretary of the Senate to see to sort of gauge their interest their meeting was just this past week but it has it has not been something that has that has come up the final question I think that was raised was the mechanism of like oversight or appeals currently for the the processes that exist you can appeal inside the agency so for example from the Library of Congress if they don't respond to a request that you make you can appeal it internally inside the Library of Congress the same thing is true for GAO it goes up I believe it goes up to Council we've had great success GAO has a very effective appellate process it works really well the Library of Congress is not particularly responsive to FOIA requests you actually have to go and find ways to draw public attention to it before they'll actually respond to you but there is an appeals process and I suspect that there is probably value in harmonizing some of the the FOIA processes across the support offices extending to the ones that does not currently apply so instead of doing it piecemeal one at a time you can rather have a general rule that is sort of understood as applying across the various support offices and agencies and then sort of you know you have to go to some sort of an appellate process that is inside the legislative branch so you can avoid some of the conflicts of interest that could potentially exist while still making sure that it that it's you don't run the separation of powers questions I know these that I've talked more probably than you guys want to hear particularly since it's already a lengthy meeting but I hope that this was helpful in clearing up some of the questions that came up in your conversation I'm so appreciative that you're thinking through these questions designing stuff inside the legislative branch is very hard and I I am just thrilled that you guys are thinking about different ways to make our democracy more responsive and accountable so thank you very much great thank you so much Daniel really appreciate that since we have our lines open Michelle I'm just going to check to make sure no one else is interested in offering a public comment or asking a question all right ladies and gentlemen if anybody else would like to make a comment on the question please do press pound two on your telephone keypad to answer the question queue okay we'll just pause for a second I don't know how would the other committee members feel but I'm going to speak to myself that I am in need of a comfort break and we're about 20 minutes behind schedule so I do to see I'm sorry to interrupt your Lena I do see someone has a question on the line okay go ahead please all all right Chloe your line is unmuted yes hi this is Bob Hammond can you hear me please yes mr. Hammond this is a question or a comment you have about the current recommendation yes it's really more general comment the phone line keeps breaking up and disconnecting and I wonder if during the break somebody could take a look at that I'd appreciate thank you okay appreciate that okay so what I'd like to propose is that we take a break since we're about 20 minutes behind schedule when we resume let's move the recommendation forward for a vote if that's acceptable to everyone and we'll take a vote I'll go over the voting rules very briefly again just remind everyone since it's the first vote we've had as a committee and let's let's all come back at 1205 pm if that's at all possible all right thanks everyone ladies and gentlemen welcome back for those of you who are experiencing any type of audio issues throughout today's event please do feel free to dial back in for the audio to the event so that's just for those of you who have had some kind of audio issue just feel free to dial back in for the event with that I'm going to turn the event back over to Alina Simo Lena please go ahead great thank you so much for showing really appreciate it I think almost all of us are back I'm just checking visually to see if we've definitely got a quam Allison AJ Bobby are not back yet I'm here okay thanks a little bit on I'm here okay great you guys are just not necessarily on camera I'm here too I'm just adjusting my computer okay once we're just getting adjusted okay everyone's adjusting this is great okay before we move to vote on this recommendation that the legislation subcommittee has moved forward I just want to give one final sweep to any of the committee members if they have any other questions that we didn't have a chance to get to before the break silence is golden okay I want to go over the voting procedures since this is the first time we're taking a vote as a committee briefly any member of the committee can move to vote on a recommendation the motion does not need to be seconded although it seems like we've been doing that for a while so it's very nice to have it and I'll be happy to entertain one the vote can pass by unanimous decision which is when every voting member makes depth extensions is in favor of or opposed to a particular motion general consensus which is when at least two-thirds of the total votes cast are in favor of or are opposed to a particular motion and a general majority which is when a majority of the total votes cast are in favor of or are opposed to a particular motion in the event of a tie we will reopen discussion and the committee will continue to vote until there is a majority if you are in favor of the recommendation say aye if you are against the recommendation say nay if you do not wish to vote say abstain in this current virtual environment we will take a voice vote I will make sure we pay particular attention to nay and attention Kirsten our DFO will record and announce the results of the vote so at this time is anyone prepared to make a motion on this recommendation I am this is I am with that calp yes okay do I have sorry go ahead Patricia well by second the motion well there is there's one small change that we discussed in the chat this this recommendation is taking the brackets out around or an extra decision so that it just became part of the sentence but as amended I motion I move that we vote to accept this recommendation okay and Patricia thank you for the second yeah at this time if anyone have a question I thought I heard someone else no okay at this time like let's go ahead and take a vote all in favor of this recommendation as currently written on the screen please say aye okay anyone not in favor of the recommendation please say nay all right I hear no names is anyone abstaining hi we don't just current consistent with my past voting practice I'm abstaining I'm actually also going to abstain and hopefully that's not a surprise to anyone but I just thought I would explain my rationale in the event the archivist accepts this recommendation and tasks OGIS to convey the recommendation directly to Congress I don't want my vote now to give the appearance of a conflict as director of OGIS and chairperson of this committee so I abstain so Kirsten hopefully you will note that would you like to read the vote of the committee then I'll go off then hello it's Kirsten the vote was 16 to 0 with two abstentions Alina and Poppy okay so the motion carries great so the recommendation is passed thank you very much legislation subcommittee we expect great things from you at the next meeting perhaps there'll be another recommendation no pressure on the other subcommittees okay I have that yes a short question because we only had abstentions but this is still not unanimous because of the abstentions no it's still considered unanimous well then on behalf of the committee or the subcommittee thank you all for entertaining our ideas no few happens next okay thank you all right I'm going to move on to the reports of the other three subcommittees don't want to have anyone feel left out second on the agenda is the process subcommittee I know Linda I don't think has joined us so Michael Morrissey as the co-chair I'm going to turn over to you for any update please go ahead great yeah that's a tough act to follow and it's it's really great to see that recommendation moving forward with the process subcommittee a lot of our work has continued to be sort of in coordination with a lot of the other subcommittees so thank you to all the other subcommittees for being so so great and collaborative we are working on wrapping up a lot of our our work examining sort of the impact of prior recommendations some of that is already kind of going into reports or kind of proposals with with other subcommittees but we hope to have some sort of very informal kind of draft report just mostly for ourselves to kind of think about okay here's let's work and collect all the thinking and discussions you've had in the past we're also starting to move towards looking at sort of what are the next round of more forward-looking recommendations using that context to both follow up on some of the successes and challenges of prior recommendations as also looking at sort of what are some of the key process related areas that have been on address so not a whole lot of new and exciting proposals to to discuss today but we've had a lot of really great discussions and great collaborations going forward and hope by the next subcommittee meeting or the advisory committee meeting to have some concrete final input forward okay no pressure Michael all right thank you very much I really appreciate it anyone else from the process subcommittee want to add anything okay all right I'm going to next turn on on our agenda to the technology subcommittee uh coaches Allison Dietrich and Jason Gart Allison are you presenting today I am thanks Alina so first thing uh as Alina mentioned in her introductory remarks this morning shortly after the last full advisory committee meeting the technology subcommittee regrouped and revised our mission statement so it now reads um that our mission sickness to prepare baseline standards and best practice recommendations to ensure that federal agencies have up-to-date access and impartial information on the functionality and operation of technology-driven solutions to ensure that the selection and implementation of new FOIA tools meet current and future needs of federal agencies and request our community and this is can be found on the technology subcommittee part of the narrow FOIA advisory committee webpage um we spent a lot of time during the last nine months six months um since we started meeting trying to figure out how we can best serve the FOIA community at both requesters and agencies and this involved a lot of discussion with agency representatives to determine the types of technology recommendations that would be the most helpful to agencies as they process FOIA requests so as part of these discussions we spoke with um or learned more about the 10x process of GSA and that they're currently working on a project submitted by the Department of Justice to investigate a centralized way for the public to search across agencies FOIA reading rooms um we also spoke with 18s at GSA um and learned about the services that 18s offers to help federal agencies improve government services through technology and based on initial discussions our subcommittee was considering recommendations of what an ideal FOIA intake and processing system would look like certain functionality that type of specification um particularly through the use of electronic discovery or artificial intelligence uh software however we during this learning process we learned that um we decided not to pursue this further because there's such a wide discrepancy in agency needs and there's no one size fit all even an ideal world with an unlimited amount of money to do to a lot of various factors including agency size and complexity the number of FOIAs received in a year some agencies receive it dozens some receive several thousand so it just wasn't going to be the most beneficial use of our time so we've regrouped and are now focusing um devising recommendations on the following four areas one best practice for the content of agency FOIA website uh two releasing records in a standardized way such as native bsb versus say tdx of spreadsheets third would be using technology to increase proactive disclosure and the fourth would be FOIA laws um covering the inclusion of making having standards for what agency FOIA law should include such as minimal field and creating a centralized repository across agencies it sort of allow requesters to more easily learn what information is already been previously requested by others that's the end of our technology subcommittee report okay uh jason anything to ask no thank you i'll open okay any other subcommittee members want to add anything lots of silence okay uh so uh we're let's move on to report out from our classification subcommittee co-chairs uh krysten ellis and james stoker i don't know who's reporting out so i'll let you guys take the lead hi this is james stoker i'll be reporting out today the classification subcommittee has been meeting monthly the main issue that we've been working on is the issue of security-based global responses deployer requests global responses as you will recall our denials that essentially were used to confirm or deny that an agency has any documents that are responsive to the FOIA request one of the challenges in addressing the global issues understanding its scope rather than general impression that the use of global responses has expanded over the years since it was first used in 1975 agencies do not regularly release information about their use of the global market accordingly we have distributed a questionnaire regarding the use of the global market tension for security reasons uh to a set of 23 agencies offices uh we contacted them with our questionnaire about 10 days ago and asked if they responded to the question by deadline of july 15th we have in fact already received one complete questionnaire response already and i hope that we will receive many more in the coming months participation of course is entirely voluntary we have no parts of the intelligence to participate however we hope that agencies will see participation in this questionnaire as as compatible with the spirit of the FOIA to promote transparency about their their practices um questions that we are asking include the follow-up we ask about their practices in regards to automatically issuing global responses in regards to all or certain types of FOIA requests we ask them about how they track the number of global responses they issue and whether they track the number of global responses that they issue we ask them for data about the number of global responses that they issue to FOIA requests on an annual basis between 2015 and 2020 we ask for any information they have about appeals to global responses in the same time frame that's 2015 to 2020 we ask for information about litigation regarding global responses to FOIA requests in that same time period we've requested any templates that they use for global responses and we ask whether or not they make public information about global responses available to the public any guidance regarding global responses etc and then finally we ask whether or not a representative from the agency FOIA office would be willing to have a follow-up conversation about their use of global responses and we're hopeful that in those follow-up conversations we'll be able to answer any questions that that we may continue to have or to clarify any responses that that were essentially incomplete or not fully responsive to the question after we receive the results of this questionnaire we'll process them and share them with the next full committee meeting I can't promise that we'll have a recommendation by that point but we should be getting close hopefully so if not at the next full committee meeting hopefully the following full committee will have our recommendation for the committee's consideration and that's pretty much what we've been up to we're also considering our next project beyond global model but I don't think we've decided on a project we'll be pursuing so I'll hold off on discussing that for now thank you thanks for much chance I really appreciate it Kristen anything you want to add do not change cover that beautifully thank you okay all right anyone else from the classification subcommittee want to add anything okay so also let me just open up the floor to the committee any questions of each other in terms of work that any of the four subcommittees are doing just want to give that opportunity okay I'm hearing silence on that too any other questions about anything that we've covered today before we move on because we've got about we're a little bit early now on our agenda so we've got about five more minutes before we turn to public comment just want to make sure everyone's gotten their fill of opportunities to ask questions or make a comment okay here we go so let me now turn to the last portion of our agenda for today we have now reached the public comment part of our committee meeting we do look forward to hearing from any non-committee participants who have ideas or comments to share we do post on the FOIA advisory committee webpage any written comments we received as I noted earlier oral comments are captured in the transcript of the meeting which we will post as soon as it is available before I ask Michelle to open up our telephone lines I am going to ask Martha Murphy our deputy director to let us know if we have received any questions or comments via chat during the course of our meeting either on Webex or the NARA YouTube channel that haven't already been brought up Martha hi Lena this is Martha we had two comments from Alice Howard the first and neither really directly to what's been discussed today the first mentions that it's almost five years ago the Department of Justice took comments on a proactive disclosure policy and US civil society responded encouraging adoption what is the status of this policy at DOJ OIP hi this is Bobby from the Department of Justice thanks Alex for the question the policy is still very much under consideration I don't have anything official update to say today but I just want to note that proactive disclosures is this area that we've really focused on for a long time and the really strong really small pilot was a DOJ initiative something we're still very focused on the more we can provide records to requesters proactively that's the most efficient way of increasing government transparency and I think there's an inherent value in that and it also has potential to improve before a process of course when we did the release the one release fall there were challenges many of those one of those in particular the resources needed to remediate the records which is a challenge focused on by the FACA for a number of terms also is a focus of our work in the Chief Forester Council technology committee and so the more we advance in that area I think it's going to be helpful for us to continue to move towards having even more records posted online but beyond the release one release to all policy the department's long encouraged releasing proactively releasing records beyond those required by the FOIA we're still doing that we're still asking you to report on that and we're still wanting to implement strong proactive disclosure policies and along those lines as mentioned as mentioned we are working and we're excited to work with GSA on the idea of a centralized FOIA search function of all the FOIA libraries which would only enhance the two will be very complimentary so we're excited to be working towards strong proactive disclosure policies building on all the great work agents have done so far great and now second question is there any update on what has happened to the FOIA cap goals so as you know the cap goals were established a number of years ago to promote particularly two two initiatives one was the launch of the centralized FOIA website match up where put along FOIA.gov and the other was to looking to the increased promotion of proactive disclosures policies so both of those we worked through and continue to get support from OMB on so they didn't go away and that can in fact be the national FOIA portal in a sense the initial vision was completed and we're still getting strong support from OMB in enhancing the functionality of FOIA.gov completing interoperability as I mentioned the search functionality is one we've also are starting to reach out to get the agency and user feedback on other functionality that would be helpful on the national FOIA portal in our centralized website and of course I just mentioned all of our practice disclosure efforts great thank you Bobby Marcia and that's it for the chat comments okay all right Michelle may I ask you to repeat the instructions for any public comments that want to be made over the telephone line absolutely so ladies and gentlemen if you would like to make a comment or have a question um we would like to ask it over the phone please press pound two on your telephone keypad to enter the comment queue once again pressing pound two we'll enter you into this into the queue and Michelle do we have anyone on the telephone line and it looks like we do have a question or comment that pops into the queue for your line is unmuted you may ask your question or comment yes hello this is uh bob Hammett again can you hear me okay yes yeah I I've just been having a number of technical difficulties uh you know today with connecting but in any event uh my first question is I I submitted several comments via the chat window that's available to me uh from the instructions that were provided and I don't know if those go to the committee and even if they're being monitored uh as I look at who's in there right now uh David and Alan are and then there's one other person who appears to be a member from the public in the chat window are those comments being monitored and addressed uh yes Mr Hammond they are being monitored um we are monitoring both on WebEx and on our YouTube channel but um I actually I'm just asking the other uh community members if anyone else seen any other comments from Mr Hammond today no we have not okay well I think that's a technical issue I follow the instructions for getting into the WebEx and again the chat window to me only has David Coyer Alan Bluestain myself and then there's a one uh member from the public so I'm not quite sure and that's the only chat window that's available to me okay that sounds like a technical issue yep we'll work it out thank you for letting us know okay um if I may uh I I had asked for an opportunity to brief a couple of topics today and to have the PowerPoint slides uh presented uh will I be able to do that uh certainly we're happy to give you a few minutes of our of the public comment period we circulated the PowerPoint slides to the committee members um and they're posted on our website well sure but uh you're posting PowerPoint slides for your presentations I'm just asking if mine can be uh posted so that I can make an effective presentation I still we have not planted up and we can't accommodate that to the industry I'm sorry okay perhaps we could summarize your slides well that's I think that's if I may with with respect uh I'd like the opportunity to be able to present those with the slides there's a lot of information in the slides they've been reviewed and they're and they're posted I don't know why I wouldn't be able to present them if we're not able to do that today I would ask that I have the opportunity at a future meeting to be able to present them using the slides is that is that agreeable it is agreeable that you're asking we will take it under consideration okay I'll I'll jump in here Alina just really quick because I know those slides are directed at OIP and Mr. Hammond we'd be happy to continue working with you and happy to just put our position I believe your issues are working compliance inquiries and and as well as a disposition of an agency on reporting my team will continue to work with you on those issues yeah listen that the comments are posted and I was asking for decisions at in this public forum on the recommendations that I made those would both require you know your concurrence with those and so you know since we're not presenting those briefings today and they're posted I'd be happy to not present those in a future forum if you're able to review my recommendations and accept them then I don't need to breathe those slides so our office has gotten your your views and we'll continue to work with you obviously that these are your you're asking for decisions from my office but of course as Alina mentioned the material is posted and everyone on the fracas welcome to look at them we welcome anyone's recommendations and feedback okay well how do I get decisions on the recommendations including the I've submitted a number of public comments asking for actions how do I get public responses to those yes I may the question that you've had to my office we have been responding to is very respectful and we'll continue to respond okay well and I apologize I've got you on speaker I was having other difficulties I guess we're somewhat at I did an impact on that topic on both those topics if and Mr. Flavin as in my briefing slides as you know I'm very complimentary of your office recent actions on the FOIA compliance inquiries I know you guys are working hard on that and I can you'll as you know my recommendations really have to do with adding a little more substance and internal controls to those to make sure that they all get answered and obviously you don't have an answer for me today that's fine we've got some time over the summer before the be I think any more open meetings I would appreciate responses to those two proposals one regarding the compliance inquiries and the other one regarding determinations and basically I'm asking that the mature agency issue advisories that those are not allowed and that they be discontinued and that FOIA appeals be adjudicated based on the records at the time of the administrative appeal so I'd really like you know I'd really like to brief those with the slide because you miss a lot without the visuals and I don't think there's a technical reason they can't be thank you and I appreciate the compliment and like I said our office is more than willing to go through all that all that with you okay I'm happy to work with you but again I'm seeking public responses so with that let me just let me just turn briefly I submitted a couple of public comments that I believe are completely in compliance with the posting rules and in line with the committee's charter and I don't see those posted what I would ask is I'm not aware of anything that deviates from the guidance in fact they're very positive public comments a lot of compliments in there for the FOIA online committee and others for the excellent work that they're doing and for your office and for OGIS and so I'm confused as to why those haven't been posted I've submitted the same comment three times and so I'd be looking for a response if there's a reason they can't be posted so Mr. Hammond I can address that we've certainly been keeping track you've obviously submitted as you know numerous comments and we've been keeping pretty careful track if we haven't had a chance to post them yet we will certainly look at them and ensure that they're up after the meeting okay I'd appreciate that some of these are comments submitted in March and May and they should be not very controversial so I'll be looking for a response on the two that haven't been submitted or haven't been publicly posted let me let me just make a couple of comments because I know we're not gonna you know get real far with this as I said in my correspondence to the committee recently it's my humble opinion that in any discussion of FOIA the requester is the most important person in the room and I don't presume to speak for all requesters but is there anyone who would disagree with that okay well I know many of the committee members that spoke today are doing a lot of work to advocate on behalf of FOIA requesters I have submitted a number of public comments that with I think make the process much better improve compliance and transparency and those are all actionable I think a number of those could be implemented very very quickly and so I'm looking for responses to those let me just let me just ask one that that submitted and asked for response and this would be a question for Mr. Flavian and Ms. Cimo with my great respect by emails of May 13th 2021 June 4th 2021 and I believe one after that I submitted public comments for posting the subject was violation of the ADA and FOIA redactions and therein I noticed that I've been receiving FOIA determination letters that are not 508 compliant as example redactions in 5.5 point red font against the black background and not searchable not having run OCR and asked for certain actions including a DOJ advisory opinion to agencies identifying the issue in the simple fixes and parenthetically all Microsoft Office products word that they all have and Adobe have built in accessibility checkers I run those before I submit things to your committee because your committee will not accept anything for posting that's not 508 compliance to me that seems like a quick and easy fix there are a number of public websites that talk about how to make a document compliant but it's really just as easy as running the accessibility checker so my question again with respect to Mr. Flavian uh and oh just will DOJ OIP issue an advisory and from Ms. Cimo the same question probably do you want me to take that first um sure if you don't mind so Mr. Hammond we know about this issue broader to our attention it actually does pertain to a particular case that you had with a FOIA request that was sending at a particular agency so if I made my statements earlier today and I don't know if you heard them we're really not here to address individual requests we're happy to continue to work with you and advisory opinions is something that is within the scope of what OGIS is supposed to be doing OIP issues guidance and advice we do issue advisory opinions from time to time and and it is something that we're looking at so stay tuned yeah if I may respond and again with respect go ahead buddy yeah I was just going to say that you know we issue guidance to agencies and a lot of our guidance is informed from what we see from the respectors requesters perspective and what we see from the agencies perspective so I appreciate your continued contact my office and raising these issues um it's it's something that we continue to look to obviously um we encourage agencies to release information and open most usable formats the first and foremost their agencies responding to requesters um provide those records in in form of format that the requestor requests and that's readily noticeable in that format okay so let me let me respond to two parts of that uh first uh this is not just one uh FOIA request uh I get this a lot so it's a big problem it's real easy to fix and so uh I think if unless the unless there's some kind of a an advisory or something many agents agencies may not know that they're doing this uh and I'm other requesters may not know how to address it and so what I'm asking for is you know some kind of public clarification to the agencies that says hey this is occurring uh and this is how you fix it it seems pretty simple uh and as you know ADA compliance is a pretty important issue uh we appreciate that Mr. Hammond and we're we're definitely studying the issue you've brought with our attention I'm very much appreciate that okay I appreciate it and you know the other thing as to um you know public comments and addressing things I'm not I don't know if I if I if I ever put something my public comments that you think don't comply with your posting requirements I would really appreciate feedback on that uh well I actually need feedback on that uh to know what it is that OGIS or OIP I think OGIS posts these believes is not in line with the posting requirements so I appreciate that the other thing in your public comments when I read and I read those I read your guidelines very carefully to make sure that I comply and I'm pretty certain that I do but it also suggests that good submissions include anecdotes and experiences and those kind of things it's hard to make broad generalizations about an issue without citing specific examples and in fact your public comments call for that so my intent is not to embarrass any agency or anything like that but again this is one that I think is kind of a broad issue and so I appreciate a public response to that again since my comments in the chat room apparently didn't go to all of the members of the panel I'll post those after the meeting or ask that they be posted as public comments I have another one uh that again this is uh comments that I submitted on March 3rd 2021 updated on May 3rd 2021 and submit a couple of times since then I believe but this one goes Ms. Simo this is really to you it goes to OGIS mediation and DOD's change to CFR 32 part 286.4 and specifically in the CFR the DOD states that participation in alternative dispute resolution is optional this appears to me to be contrary to the FOIA which states each agency shall and states the right shall and right are mandatory they're not optional terms in any event it's my belief that DOD's CFR change is contrary to the FOIA statute's intent and also uh and I believe Mr. Flavin I may have sent one or two of these over to you and I think also to OGIS where DOD states on appeals of that issue where they've given an adverse determination and not included the right to seek dispute dispute resolution or mediation through OGIS DOD has stated that they're not required to do that and as you read the statue it says the right to seek dispute resolution with OGIS or the agency public liaison I believe the intent of that is that the requester has the right to do both but Navy has interpreted that more narrowly so again that's a comment I submitted back in March and I'm looking for some uh some action on that item okay Mr. Hammond we we definitely have received that comment we understand your concern we're actually looking at the regulation so we can better understand what's happening and we will address that with you separately and privately not in this public comment form and I'm not going to cut you off unnecessarily but uh we're rounding out the time of our comments public comment to the exceeded 15 minutes I want to make sure that we've given everyone else the opportunity to provide any public comments so Michelle I'm going to turn over to you to see if anyone else is waiting on the line to make any comments I currently do not see any other um any other folks wanting to comment but once again as a reminder ladies and gentlemen you can press pound two on your telephone keypad to get into the comment thank you okay um mark up do we have any other chat comments that have come in so yes and so Amanda temple has directed everyone's attention to a couple of items I have added them to the chat made sure that they went out to all attendees the first directs everyone to OGIS's issue assessment on methods used to prepare documents for posting on agency FOIA website and the second refers everyone to our chief FOIA out there's council technology committee that is looking into 508 compliance there's some helpful links in the chat and so you know I suggest everyone take a look at what Amanda directed people to I have put that out to all attendees okay well thanks very much really appreciate everyone's participation today we're going to close our meeting anyone has any questions from the committee please speak out everyone's good okay I want to thank everyone who are all the work that they've done this far and very excited to have one recommendation done and behind us that's great I also want to thank you for your anticipated work that's coming up in the next year thanks to everyone for joining us today thank you for everyone's comment I hope everyone and their families remain safe healthy and resilient we will see each other again most likely virtually at our next meeting on Thursday September 9th 2021 from 10 a.m to 1 p.m eastern time any last questions or concerns okay great um we stand adjourned one second everyone Alina yes I'm sorry go ahead do you anticipate that uh next meeting being in person or uh virtual I I anticipate it's going to be virtual thank you and I will obviously keep everyone posted all right any other questions from the committee no okay thanks again everyone for your hard work stay safe we are now adjourned thank you thank you thanks bye bye thank you today conference has ended thank you for using event services you may now disconnect