FOIA Advisory Committee Meeting Livestream - December 6, 2019

good morning I'm thank you I'm Deborah LOM the deputy archivist of the United States welcome to the National Archives and Records Administration and this sixth meeting of the 2018 2020 term of the Freedom of Information Act Advisory Committee whether you're here in McGowan either on the stage or in the audience or joining us on our YouTube channel we're pleased that you're able to join us archivist of the United States David Ferriero who usually welcomes the committee and the public to these meetings sends his regards he is at the christening of the new aircraft carrier USS John F Kennedy in Norfolk Virginia today and that's particularly special for him because he he served as a navy hospital corpsman during the Vietnam War President Kennedy's tenure in office occurred before Congress passed the Freedom of the Age of Information Act in 1966 but he recognized the importance of government openness in the speech to the American newspaper publishers association in 1961 President Kennedy said the very word secrecy is repugnant in a free and open society and we are as a people inherently and historically opposed to secret societies to secret oaths and to secret proceedings nearly 60 years later President Kennedy's words are manifested in the important and transparent work of this committee earlier this fall the committee began its first discussions of proposed recommendations and I understand today's meeting will focus on continued discussion and deliberations about the possible recommendations committee members thank you for your important work it's gratifying to see collaboration among professionals from both sides of the FOIA process agencies and requesters and your shared vision of making the FOIA process work better for all I'll turn the meeting over to committee chair personally Massimo now Thank you Thank You Tube good morning everyone as the director of the office of government information services ojas and this committee a committee chairperson it is also my pleasure to welcome you all to the William G McGowan theater in the National Archives and Records Administration for the sixth meeting of the 2018 2020 term of the Floyd Weiser committee whether you hear in person via telephone or via livestream shortly I will go through some basic housekeeping rules review our general agenda and set some expectations for today's meeting first we haven't done this in a while so I decided to switch things up keep everyone on their toes I would like to just give the committee members an opportunity to introduce themselves those of you who are here on the phone with us or here at the table let's start with the folks on the phone and that way we can check in and make sure you're all there Suzanne Piotrowski yes we can hear you can you introduce yourself and your affiliation sure very good Suzanne piotrowski on that Rutgers University in Newark I am an associate professor and the director of the transparency and governance Center here and I do a lot of research on transparency open government and FOIA issues great thanks Suzanne Patricia are you with us yes good morning hi this is Patricia woth I'm the deputy assistant general counsel for the FOIA branch at the National Labor Relations Board okay anyone else on the phone by chance do we have Chris Knox I believe Chris is going to be joining us later by phone so hopefully he'll chime in when he's there let's hear from all those you all those of you here in person I'll start with the folks on my right I'm looking at Ryan law so if you could introduce yourself that would be right everyone my name is Ryan law I'm the deputy assistant secretary for privacy transparency records at the United States Department of Treasury Jason Baron I work at Drinker Biddle and I'm former director of litigation at the National Archives James Jacobs I'm a government information librarian at Stanford University Thank You Joan kaminer attorney advisor in the general law office information law practice group at the Environmental Protection Agency Michael Morrissey chief executive and co-founder of mock rock Tom Sussman half of my time at the government Affairs Office of the American Bar Association and the other half working on Freedom of Information issues pro bono like this Babic Libyan acting director of the Office of Information policy at Department of Justice Kirsten Mitchell I'm not a member of the committee but the committee's designated federal officer Sean Moulton senior policy analyst Project on Government Oversight Sarah Cutler I'm the director of the FOIA program at the Food and Drug Administration James Stoker I'm associate professor at Trinity Washington University and I'm the representative of a historians and historical organizations Lee Stephen I work with cause of action cause of action instituted a B motion I'm I'm assistant general counsel for FOIA records and privacy at Consumer Product Safety Commission Emily Creighton directing attorney transparency at the American Immigration Council and I'm Bradley white senior director of FOIA litigation appeals and policy at the Department of Homeland Security all right great job everyone we didn't even practice that so good job I want to note that committee members Kevin Goldberg and Lisette cotillion are not able to make today's meeting Chris Knox hopefully will be joining us later so hopefully he'll chime in I will work to check in frequently with Suzanne and Patricia on the phone if I forget please remind me don't be shy and speak up anytime you have any concerns or questions now I'd like to have a brief break to pass on a few messages from our sponsors the Nara AV team an important reminder make sure to identify yourself by name and affiliation whenever you speak during the meeting this helps tremendously with both the transcript and the minutes both of which are required by the Federal Advisory Committee act as Kirsten is always reminding also please keep in mind that there will be slight delays between the time members on the telephone speak and when the microphones in the room are turned back on this ensures that the live stream captures all audio I am guilty very guilty of this I always forget but try to remember and I would like to recognize the contributions of Nora's AV team who are the behind-the-scenes people who do a lot of work to make these meetings come together and work so smoothly Jamie Atkinson Julie Reed Jason Winston Alexis Van Dyke Brian clip early and sipperley I apologize for mispronouncing so Thank You Kirsten a big thank you to all of you for ensuring that the meetings run smoothly and that the Nara YouTube channel captures all the committee's activities so we really appreciate it at this time I would like to welcome two new members to the committee and bid farewell to another and you've already heard the introductions I would like to welcome Bobby to labium to my right who is currently the acting director the Office of Information policy at the US Department of Justice prior to being named acting oip director bobby was au IPS acting chief of staff there's a lot of acting chief of staff and head of compliance efforts at OIP Bobby spent three years of juda caning Administrative Appeals for do J's components welcome Bobby thank you we're really glad that you're here and as Kirsten noted her email to the committee members earlier this week we had to bid a farewell to ginger McCall ginger if you're watching hello we miss you ginger most recently served as the public records advocate for the state of Oregon she has returned to the DC area and recently joined the Federal Emergency Management Agency but unfortunately she was unable to secure the necessary approval from FEMA to continue serving on the committee this term we will definitely miss ginger a lot as many of you know ginger has served on the FOIA Advisory Committee both as a non government and a government member and she was a key player in shepherding the report of the 2016-2018 committee to its completion so we appreciate all of her work thank you again ginger I would like to welcome Sean Moulton to my left senior policy analyst at the Project on Government Oversight or Pogo archivist of the United States David Ferriero pointed Shawn on Wednesday to serve out gingers remaining term through June 2020 Shawn has many years of experience working on transparency and government efforts accountability issues rather he led open government efforts at the Center for effective government for 13 years before draining Pogo he has spoken on open government issues and has appeared on c-span NPR ABC and NBC and has been quoted in the New York Times is this all true okay oh and the Washington Post and other major news publications but most importantly Shawn is a prior committee member and has already hit the ground running with what has transpired thus far in the third term of the committee so welcome Shawn and many many thanks again for agreeing to step in and he has already volunteered to serve on all three subcommittees I'm kidding he's thinking about what to do so a few additional reminders as most of you know the FOIA Advisory Committee which reports to the archivist of the United States provides a forum for public discussion avoid issues and offers members of the public the opportunity to provide their feedback and ideas for improving the FOIA process we encourage public comments suggestions and feedback that you may submit at any time by emailing FOIA - advisory - committee at Nara gov at the end of today's meeting we will have time for public comments and we look forward to hearing from any non committee members who have thoughts or comments to share we are also monitoring the live stream so if you have any comments you may submit them and we'll you will read them out loud during the public comment period to promote openness transparency and public engagement we post committee updates and information to our website our blog and on Twitter at Oya underscore Ombuds the URLs to these sites are usually posted on the slide behind me doesn't appear that they are today stay up to date on the latest ojas and POI Advisory Committee news activities and events a reminder that we will make the video transcript and meeting materials available on the committee's web page as soon as possible information about the committee including members biographies and committee documents are available on the FOIA Advisory Committee webpage on the Oda's website I also would like to ask you to join me in welcoming our Nara colleague Jesse that's who we'll be monitoring the livestream on the National Archives YouTube channel Jessie wave to everyone she will also read out loud questions or comments during the public comment period Jessie is the National Archives historian and established and manages the National Archives history office which is dedicated to preserving the history of our agency Jessie is joining us on a part-time basis to assist Kirsten with her duties as designated federal officer did I say that correctly as part of her day job preserving ours history Jessie is very much interested in learning about ojas and its activities at least that's what she told us we expect she will learn a lot and we are very grateful for her willingness to help out and she's already helped us out a great deal so thank you again Jessie next some more housekeeping we need to approve the minutes from the last meeting which Kirsten center on by email Wednesday we have gotten a few comments which we have incorporated are there any other comments the members need to bring up at this time okay I'm seeing a lot of no nods okay and Suzanne and Patricia you guys are good on the phone yeah okay so since our no objections Kirsten and I will certify the minutes later today to be true and complete and accurate which were required to do under the Federal Advisory Committee Act within 90 days of our last meeting so I think we're right at that juncture so I need a motion to approve the minutes so thank you I never need a second but I'm always happy to take one and Tom is always my second all right all president or president person in favor aye okay those on the telephone in favor any opposed either in person or on the phone I hear no nays there for the minutes from the September 5th meeting are approved okay so we're we have a pretty packed agenda today and maybe will end early I can't promise that but we have a lot of work I know we need to get done today but I would like to start by inviting the ojas deputy director Martha Murphy to provide us an update and the FOIA Advisory Committee recommendations and best practices from the last two committee terms and as you all know Martha's been doing a great job of tracking those recommendations and reporting to us every time so Thank You Martha sure this will be very quick we have all of the recommendations in the slides that you have I'm only going to comment on ones where there's been some sort of update please to say that the CFO technology subcommittee has been meeting throughout 2018 and 18 and is currently finalizing its report so we're waiting anxiously waiting for the finalization of that report we really appreciate the hard work that they've put into doing some research and so it should be very interesting this I think believe we've reported on last time oh just published an issue assessment on the leveraging technology to improve FOIA services so that closes out that recommendation I wanted to let you know that Oh juice is draft business case for a presentation to the far is basically done from our perspective we're waiting for nara's representative to the far to complete the final revisions and submit to the far council this no change in recommendation number four happily I can tell you that o juses compliance team is now fully staffed at - Kirsten has has a person working for her Christa Lemelin you all may know Christophe which used to be in our mediation team so she is well prepared very knowledgeable about agencies practices and anxiously moving ahead on some assessments that we're working on so our goal is to complete this assessment in fiscal year 2020 no change on this one and again this assessment should also be completed in 2020 now that we are fully staffed and I believe that's it's no change on this one aside either thank you thanks Martha that was really quick could have had a lot more time okay as you all know members were appointed to this committee by the archivist we're tasked to collaboratively develop consensus solutions and recommendations that will be sent to the archivist and which address some of the greatest challenges related to the FOIA process earlier this year I know we all agreed or at least I sprung upon you a very ambitious schedule of target dates in order to ensure that the committee has enough time to fully consider all the recommendations resulting from all the hard work that the subcommittee's have been doing I really appreciate the fact that everyone has embraced that challenge I want to thank all of you for your enthusiasm and the effort you have devoted to this very important work to date so thank you I want to extend a special thank you to our six subcommittee co-chairs who have been instrumental in guiding their subcommittees work and keeping the momentum moving forward so thank you thank you walking backwards from our final meeting on June 6 2020 which sounds like a really long way away but it'll be here before you know it we are asking subcommittees to finalize all draft recommendations by early calendar year 2020 with an eye toward presenting relatively final recommendations by our March 5th 2020 meeting I'm seeing not so that's good everyone strolling on that schedule we have also scheduled an additional meeting on Friday May 1st 2020 to allow time for additional discussions and deliberations and as I've discussed in Prior meetings I am still interested in coalescing a small working group of the committee to collect and compile all the subcommittee reports and recommendations into a final report between March or March meeting and our May meeting so thank you to the following members who have volunteered and Who am I supposed to formally appoint them I'm now formally appointing to be on the final report and recommendations working group Jason Baron Abbey motion and Patricia wess I would appreciate one or two more volunteers unfortunately we have lost ginger who had earlier agreed to serve on the working group so please either express her interest loudly now not all at once or see me during one of our breaks so at this time any questions before I move on I think we're now getting ready to roll up our sleeves and get started okay so we're today we're gonna hear from each of our committees three subcommittees time volume vision and records management we have Kirsten I have not allocated specific time slots for each subcommittee we wanted to just let the conversation go we're at May so there might be some overlap in the work of the subcommittee's we're aware of that as well so we just want there to be collaboration you may have also noticed that there is no break noted on the agenda but we promise that we will take a break at a logical stopping point during our discussions so to begin our discussions I'm going to ask the subcommittee co-chairs to briefly discuss and I can take out the word briefly you can discuss at length the substance of your recommendation so far we will then open up the floor to the committee for a period of general comments feedback questions and I don't believe I'm just going to confirm I don't believe any of the subcommittee's are bringing up their recommendations for a vote today is that correct okay all right just wanted to triple-check that because we're ready with voting procedures in case we needed them Kirstin included them in your folder so hang on to them for our next time okay first we're gonna hear from the time volume subcommittee and co-chair persons Emily Creighton and Bradley white and I'll let you decide who wants to present Thank You Alina I'll I'll kick it off and then turn it over to Bradley it's been really instrumental in drafting our recommendations working groups and have really done a tremendous amount of work just to provide a little bit of context and background for those I think folks and know that we worked as a subcommittee and with other committee members on other committees like the vision subcommittee to think through ways to really do some of the evidence gathering in research we needed to produce recommendations and arrive at recommendations that we felt really reflected the needs of the requester community and the agencies and so what we decided to do and I know this has been something that subcommittees have explored and and done is to draft a survey and so that was a I think a really important process in terms of thinking through creative ways of asking for information that we needed with some of our hypotheses may be in place about what some of the issues might be and so as a committee we came we we drafted recommended we drafted questions that we hoped thought would help us get to our recommendations and so really instrumental in that process I'd like to recognize Susan Petrowski who with her background was able to help us complete the survey and get it into a format we were able to share it digitally and have people submit responses also instrumental in the process was Claire Shanley at the the executive director of the American Society of access professionals and folks at ASAP helped us reach out to the agency community and to their membership to receive responses to the to the survey questions and this all happened over the summer so we had the responses this fall and began to think about what they meant and how they could inform our recommendations we had a FOIA officer survey we called it and 111 responses to that survey we've received one hundred and Evan responses to that survey and you'll find a summary of that survey and the materials here and posted on the ojas website and summaries of the responses are there we received 81 responses to the FOIA requester survey and there are also summaries of the responses here and that's thanks again to Suzanne and her colleagues who helped pull that together so I think I'll just leave it there and that we we feel that we're at a place where we have a solid start and we have as I mentioned subcamps mahler working groups who have been working on these recommendations so we began to think through in the last month or so which recommendations we really want to assigned to certain sub smaller working groups and so folks have really been taking them and running with them so we feel like the work has been nicely spread across the subcommittee and I think if there are any questions about the process and sort of how we arrived here be happy to answer those now okay so I think I'll turn it over to Bradley to get us started with the recommendations in their current form Thank You Emily this is Bradley white and I'm just going to kind of run through and I'll pause after each recommendation to allow or propose recommendation to allow some debate or discussion if there is any maybe just one point is that I think we're we did assign people for each recommendation so the first two are you yes and then we'll turn it over to the other okay okay so the first proposed recommendation we have is to recommend that agencies conduct a comprehensive review of their technological and staffing capabilities and requirements to ensure that they have the resources necessary to respond to changing FOIA needs and this review should include planning to address future increases in the number of FOIA requests received as well as high-volume ediscovery style document reviews so some of the reasoning behind that is for especially folks like me at DHS you know we've seen a need to address both our staffing and our technological technological capabilities dealing with the number of email and high-volume requests we get and seriously just the high volume of Records that we get in response to the majority of our FOIA requests and internally at DHS we've been looking at ways to address this address these issues and move forward both to help us and to help the requester community so this one we thought would be something good to get out there and at that I'll pause for any comments or questions hi this shyamalan project and government oversight I think it's a great overview recommendation I think one of my frustrations has been that in some of the FOIA reports chief officer reports things like that they have occasionally addressed this kind of a question and I think the frustrating point from from outside the government has been regardless of how big the backlog is or how long they've had a backlog the answer always seems to be staffing is fine technology's fine we're doing great and I get it that if FOIA doesn't necessarily garner the attention and resources that we on this stage probably wanted to but I'm just I guess I'm raising that I don't have a solution to how to get them to make a more honest assessment which is what I think we really want out of them because I worry that the agencies you know even if they did this will just say we've looked at everything and we think we're on on track and so I just raised that point it's Bradley again I also share that concern to an extent and I think one of the things about this is we want it to be forward-looking because it's really easy to address what your current problems are and to address what your current workload is the problem is when you address those current issues five years down the line something changes you generally know that there's when there's a change of administration there's an increase in FOIA requests for actions related to that administration we need to be able to look ahead and predict those types of surges that may come and then also there's the simple fact that technologic technology excuse me changes incredibly fast and if we're only looking for technological solutions based on our current needs by the time we go through the procurement process and get the things we need currently we're already going to be out and behind the curve so I really you're right but it is important to look ahead and to see what could be coming down the line and try to prepare for that I'll just I'll just add one thing is that when we were discussing this I'm not sure whether it was a lien or Kirsten but someone said this sounds like a strategic plan I mean you're asking an agency to come up with a strategic plan for their you know bettering their FOIA process how to put teeth into that I think is a question I have is like awesome from the requester community so maybe that could be something that we could explore here if folks have ideas I think that is sort of the key question right and and I'm sure that people at the table are thinking or maybe it's true that there might be something like a strategic plan at an agency and I'm fighting I'm very eye opening to hear from different agencies about how different they do think about there are FOIA processes and planning and preparing so I just more of a comment so the is this would be a separate document that they would just to make sure that this would be a separate document outside of the FOIA annual report not something incorporated in the annual report correct yes that is correct just well I think this is oh I'm sorry I'm Michael Morrissey apologies one thing I think this was really great and one things out other light and I saw this was think this is included in some of the other recommendations but I think one thing that would love to find better ways to highlight sort of how often agencies invest in programs that kind of avoid the need for a FOIA in the first place and if there's a way that they could talk get a chance to kind of show off like hey we launched this new portal that does X we launched this new public database that we think is going to reduce these type of requests I just love for more ways for agencies to kind of surface and kind of highlight that work that they're doing that I think often goes on acknowledged and I think within recommendation one there's some potential for them to talk through that and look at recommendation for recommendations that will be discussed later go not in our subcommittee kind of goes to that as well any other comments on the first one no justice just to kind of read they you know in the chief wife supports we have like really focused on technology and and it's something that's it's a standard core section of the chief or officer report and it provided agencies to show their successes and so obviously there's a range of agencies that also face challenges and so I think there's a lot of value there and the chief law officer reports to continue to assess the successes that agencies have had in using technology and this is Bobby from Ojai be I actually there are there oh sorry I just want to say I I could see this recommendation as being kind of a best practice I mean this is what we should all be doing you know just to do our job correctly and I will say some things that we assess we're self-assessment tool kit that I think can help for your offices a bit but anyway I did I do you think that this is the best practice and something that we should all be doing it for not thank you hi Ryan from Treasury I was gonna make the comment you may want to consider the recommendation says recommend that agencies conducting a comprehensive review would it may be helpful to be more specific should agency chief FOIA officers or another specific individual be in charge of doing that and then also I'd encourage to consider how I mean if this is a best practice that I think that the language here's fine but if we're recommending that the archivist requests that DOJ or recommend that oh just just keep in mind that we'll be recommending that action and what is the specific task that we'd like them to accomplish well as the best practice I think it stands on its own it could be that we as the committee recommend that the archivist in Kurt requests that ojas encourage agencies to conduct our agency chief why officers to conduct reviews of their program comprehensive reviews of their technology and staffing capabilities and highlight best practices or something like that or encourage requests that DOJ encourage agencies to do the same just that that that call to action I think is important but if it were to stand as a best practice I think it would be sufficient Lenalee Nassim I'm sorry I just want to add just a follow on to Ryan's idea that it might also be helpful to include the CIO working together with the chief FOIA officer to examine these issues and maybe the chief data officer while we're at it Ryan or all three right yes Alena I wear all seven hats there may be well this is like a 10,000 foot view but there are some new requirements in a 11 which is a document that OMB produces every year and I also wear these senior agency official for privacy as well and there was a new requirement that senior agents officials for privacy participate in the review of agency systems to ensure that privacy controls and funding are available to ensure protection of privacy information that was a lot but it seems to me there you know where you're looking forward in this and doing reviews there's some space there I think though to include chief way officers chief records officers chief privacy officers chief date officers you know all the Chiefs get them together and and do you know something similar so that may be an avenue and if you if the subcommittee were interest in that I'm happy to to meet and talk about that a little more but OMB produces a 11 every year provides guidance to agencies on preparation of their annual budgets and that's where that language is now that's awesome they Emily I just know there's a lot to discuss here but from there I think the requester community does have a lot of questions about personnel and when you look at annual reports for focus on the immigration agencies in my work but you see a lot of reactive hiring to address backlogs which is pretty clear I think when you sort of look at the agency history and I think that's part of what we're attempting to resolve here but maybe and maybe Mick don't think we can answer this question now but since we're all here I'm too tempted to ask just for some thinking and discussion around what would what would be steps that would be taken if you could if we just imagine a strategic plan right now and no you don't know what's gonna happen with in a presidential election necessarily but but you could anticipate that as Bradley mentioned there will be a large number of FOIA requests or I mean how how would how would you do that I mean would you really would it be for the historical analysis that you would just have to look back at the does 10 years the last 20 years and see fluctuations I mean has worked like that been done I mean I'm just curious to hear thoughts I'll pause to see if there any of the feds that want to answer that first oh hi Emily its Ryan again so I think some agencies do that at Treasury and I think many other agencies sometimes it can be reactive and so I in my experience working at DHS you know large increases in volume of FOIA requests every year and really you know staffing was important to meet that challenge and we're in the time I was there between 2005 and 2012 I believe we doubled our successful there so a lot of agencies are reactive my experienced Treasury we do have a stable request volume a requests have been going down in large part to the increasing availability of certain information outside of FOIA requests for example tax return information you no longer need to file a FOIA request to get a copy of your tax return there is a process for that outside of it so we've we've done some analysis and so things that we've done to meet those challenges are you know looking at technology we've been reactive there and so we've have new mandates to ensure interoperability with the government-wide FOIA portal and so one of our large solution to that is to implement new technology and new databases to do that so we're working toward those goals but that was a reactive and on staffing where what we've been able to do is implement contract vehicles so when we get a surge in requests on a particular topic if funding is available we're able to bring in staff to meet that need as opposed to you know having a large set of FTEs that you know so it gives us more flexiblity so those are some of the things I think agencies might think and consider there are obviously many other solutions to those problems but thinking strategically in that way there are challenges there risks and there's no one way to do it this is Emily just really quickly in the staffing model not my area of expertise but I do see how there are there are influxes of part-time contract staff and then they disappear and the backlog goes back up so I just think that kind of like what model white might work better I think could be part of that conversation to myself Joan kaminer and to add something that we're going to touch on in the vision draft ideas it's the idea of utilizing metrics across the federal government which is something I personally feel very strongly about and I think that ties into this full discussion because you can't really assess the the FTE the contractor need with just the number of FOIA requests that you're dealing with you also have to understand the the capacity of an individual within a certain time frame to process a certain number of pages and so I think that adding all of those data points together would allow the federal government to be better be able to approach and plan for surges as well as you know maintaining a steady decrease in their backlog this is Bradley I completely agree with that you you need to either design a system where you track it or or have whatever technological solution you're using be able to track that information because if you don't know how many pages gs-7 FOIA analyst can process were and how many pages gs-14 supervisor a reviewer can can review and quality control before it goes out you won't know what whether you have the right people or not to get the job done okay any other questions on our comments on this one before I move on to the second one but I love that we're discussing this stuff actually this is Sean Moulton up with Pogo one last thing the when we were talking about the best practices involving the other chiefs that occurred to me that if we really were talking about a best practice on a strategic plan going forward maybe it would be good to encourage these agencies also to involve their FOIA stakeholders their requester community it might be a way to provide a little little teeth in the process you know for requesters who are frustrated with that particular agency to push them to be more specific or more honest in any kind of assessment and forward-looking plan Bradley that is definitely something to consider I do not know how many agencies would be willing to open up that level of detail although I definitely think whatever information comes up in this plan and whatever metrics are developed it should be a transparent process okay moving on to the second recommendation the second recommendation is to raise and again when we finalize this we'll put the action s who needs to make this recommendation recommend that agencies periodically review their FOIA SOP - or create one if necessary to ensure that the process for receiving and logging in FOIA requests and the process for searching for processing and reviewing records processes excuse me are efficient the SOP should accurately reflect the current agency practices and technology used should it be updated at least every two years to continually reflect the current technology and the processes used and should be publicly available on the agency's website and I'll open never and I'll just say this is Emily here here and I think that there was some pushback from agency folks but I am in favor of this recommendation okay any comments here this is Bobby from oh I pee and I'm actually in favor of almost pretty much all these recommendations in the you know two three four or five a lot of these we've broken down in this sort of the DOJ self-assessment tool kit so encouraging your reviews using the toolkit is something that we can that agencies can readily use to make these assessments the toolkit breaks down specifically for our standards of procedure or for intake what agencies should be looking at as model of success and provides a way to grade their system so that that resources out there that agencies have been using and can continue to use Tom Sussman why two years with all the resource issues and all the other things we're imposing on agencies I mean it is I think periodic is pretty good and I just I'm not in an agency but I kind of like you know we say two years they won't do it in two years and then we'll come back and say me an yeah I also work on our agency's directive system and prior to the overhaul that we did this year on it directives SOPs everything they weren't getting updated 1020 years like we had some that hadn't been touched since the 70s um so I think you have to put a timeframe for people to do the review either assess it and say you don't have additional changes or make tweaks to it and but if you don't put some kind of time limitation on it it'll never get done so and and this is Bradley I I recognize that two years might be a little bit ambitious on these but I also know that the the environment within an agency and how they handle FOIA requests can often change relatively quickly and what what you don't want is an SOP that references one system that is not even being used or an SOP that references review procedures with personnel when the entire structure of the office happens to have changed and then when you you know if you need to hold an employee accountable for not following the SOP or if you're trying to train a new employee and you say well here take a look at the SOP while we're waiting on your laptop to start working and then he's like oh but by the way ignore page one we don't do that anymore and item 17 through 30 it's totally different and we'll explain that to you once you get access that's not helpful and the document is utterly useless than that but we can be flexible on the amount of time so this is Tom again follow up I mean I you've convinced me so why not put a time frame on recommendation one as well with the changes in technology you do it once and it seemed to me that at least three or four years later you're going to need another one and Bradley again we actually had discussed that and I think the time frame we talked about for strategic planning was five years I'm looking for make sense you know I thought we actually included that we should have yeah we did talk about five years okay and I'll just say on on recommendation two I thought it was really interesting back and forth with with Bradley discussing this one because obviously the request community would love to have a better sense of how the whole process works at a particular agency but doesn't want to have outdated material I mean it's not useful I shared an anecdote where you know required the requester community had the USCIS SOP for for processing Toya's and it was shared by everyone yet we weren't sure if it was really current and I think there's this concern and the agency community about being held accountable by the requester community for every you know every tiny little you know sort of section of the SOP and I just would I just would like to say I think the the real need is just an understanding and less of a you know I'm not sure what that accountability might look like but I think what was interesting to hear is that the agency needs it for its internal efficiencies and that that would be actually very beneficial to the agency as well James Jacob Stanford University I'm just wondering if if there would be a process to to have ojas mentioned in this so that the agencies could tell urges that their SOPs have been updated or or worked on or something like that maybe instead of just saying posting to their websites I don't know so this is Bradley so for example it would be we could say recommend that oh just recommend to the agencies or request of the agencies that they update and report and alert to the ojas or something like that that's something that we typically will be including the chief FOIA officer reporting and chief Fox reports something that yearly DOJ checks in on with agencies on so certainly that's in and there's a designated section of the chief loss report for technology perfect Ryan from Treasury so are the subcommittee for records first recommendation there's some alignment there our recommendation which we brought up in the last meeting and we don't plan to discuss today since we brought it up in a previous meeting but the recommendation was that the archivists request the DOJ and no doges issue guidance to agencies to include records management related materials as part of agency websites and FOIA handbooks and one of the main thrusts of our recommendation is to better educate the public about not only about the FOIA process at the specific agency how do I file a FOIA request but what specific records are available to available to me now and what records do I need to submit of what records existed the agency and then what records do I need to submit a FOIA request for I think there's some alignment there and our goal here is to better educate the requester community on agency records and processes for FOIA and so there may be some way we can connect on that Bradlee yeah that was definitely intentional and I agree we should definitely work together when we finalize these because I think they could be if not combined they definitely could reference one another I think Michael this is Michael do you think any age I mean it seems like agencies have gotten a lot better about posting this sort of material on their reading rooms do you think that there's any agencies that are already kind of hitting the standard that you envision Bradley Patricia are you still on the line because I remember I believe you commented on this before yeah I I am I've been wanting to time it Thank You Bradley Patricia wet with NLRB Michael to answer your question I think my agency hits the mark we just actually revamped our way a home page so we have have an e3 a library we list a lot of the records that we have on our agency website just to make it easier for requesters to to see what's out there so that they don't have to file for your requests and I do like this recommendation again I would say I think of this as the best practice I mean this again is what we should be doing you know in order to do the best that we can in our in our jobs but I think Bradley if I remember correctly you and I were we were talking about SOPs and handbooks and Waya homepages and what we tried what we've tried to do at my agency is put a lot of our information on that FOIA homepage so it's easier for requesters we do have our FLE a handbook on there it's dated it's probably about ten years old I I don't think that that contains the information that most requesters want it talks about how we apply different exemptions etc so when we created the FOIA homepage we used D or J's guidance that they had out there sort of you know revamping your FOIA homepage and actually had them review it as well so I mean maybe we could put something in here along those lines you know about keeping your your FOIA home page current and maybe the folks who are the requester community can can speak to that better than not then then I can I mean I think for me I like to go to a website see what's out there versus having to dig around in an SOP or a handbook I mean I'm happy to post them but I think my take would be that you all would want to know you know really what the process is and anyway I will be quiet and bless the requester community speak to that Patricia thank you this is Alina I just want to ask I heard a beep did someone join us or did Susanne where you dropped off and you came back okay did anyone else join us on the phone okay I must be hearing things sorry continue I have to closed captioner and I dropped my audio oh sorry about that oh okay thank you white while EPA might not be meeting the timeframe that's outlined here where one of the agencies does have our standard operating procedures publicly available but I think something I took away from Patricia's comment and I'm gonna go take a look at your website is the distinction between the manuals handbooks or procedures so the further in detail a document gets the more likely it is to be out of date and need change and down to the level of you know as a an agency where the FOIA processing happens in ten different regions and multiple you know facilities as well as every different headquarters office we're looking at you know very detailed procedures essentially and that might be distinguishable from the higher level agency FOIA procedure so I want to make sure that the recommendation is very clearly lays out what level of detail we're looking at and because I don't think it's helpful for anybody to have as we've mentioned the out-of-date details that might be contained in an office manual that is a great point this is Ave and I don't know if this is helpful at my agency we have multiple SOPs for FOIA we have a directive with the overall agency FOIA processing but one of the SOPs that I think would be most of most interest to requesters is the one for processing FOIA requests and it's about four pages in length and it just states how we process them who we have to send them to because we have Section six in our statute notification that's similar to exemption 4 where we have to go out and get comment from manufacturers so they know how long it takes for us to do that and then we have to incorporate those comments but that's just four pages so maybe if the instead of a manual you broke down SOPs into different parts that would be more helpful thank you okay if there's nothing else on on number two we'll move over to Joan for number three number three is to recommend that agencies provide regular training for all staff including FOIA professionals subject matter experts technology professionals and management or supervisors responsible for implementing FOIA as a part of the agency's FOIA procedures in order to enable staff to properly and efficiently process FOIA requests so a bit of the background on this proposed recommendation and while I believe all agencies have some level of required FOIA training this typically is either a higher level for all agency staff or an awareness of FOIA or specific to the FOIA professionals that may spend the entirety of their position in the processing of FOIA requests and in related work what we're trying to get to is one the regular training so putting some type of yearly requirement or recommendation on the training as well as requiring that the specifically some fields that are often overlooked and some positions often overlooked with FOIA training are targeted at subject matter experts for example are frequently brought in to provide input on document review and context but they may not have an understanding of the FOIA exemptions the timeframe or the potential repercussions of certain actions that an agency may take they may be working on a FOIA review once a year or maybe every you know once every five years and so while this is sporadic potentially it's very important that subject matter experts have a a better understanding and then as tied in to where I see across the board with all three groups the emphasis on technology we think it's very important that the technology professionals have a better understanding of the process and responsibilities of an agency so that they can better understand their customers when they're either developing you know software or looking for you know new additions to the agency's tools but also in providing support to professionals and then lastly my favorite management and supervisors with most agencies management and supervisors have a responsibility for approval of FOIA releases as well as providing the performance evaluations for their staff that are conducting the FOIA work giving the supervisors and management who may spend very little time actually working on FOIA requests a better understanding of the process and the obligations just like the other positions is really essential not only to ensure that they're evaluating it appropriately but they're also providing enough resources and management support to their team it's really coming down to understanding the importance of FOIA and it goes to the resources issue as well so with that I'm gonna open that up for any comments the this recommendation which is something we all I'm sure support is a is tide and probably we should merge the recommendation number two from the records management committee that looked at the other side we recommended that either Dara or our do Jo IP do targeted training in selected topics and federal records management to FOIA officers so in addition to broadening the community that you're talking to Joan about who is would be benefiting from FOIA the knowledge of way I think there's also the FOIA professionals would benefit from a broader array of Records issues and so I I see this as a natural as some kind of merger not if this survives as a recommendation I also would say is just a very neat picking point I recommend that agencies provide regular training for all staff including FOIA professionals if you just read that alone I I would say most agencies do that and so I think what we should say is recommend that agencies provide regular training for all staff including not only FOIA professionals but a wider array dot dot so so that somebody doesn't question that whether the base line is no training Ryan law just adds Jason perhaps it may be good to say role based training for agencies so each every individual in an agency has a role in the FOIA process it's important that they understand that I think to knock it out of the park a recommendation may be that we recommend to Congress that in the future update to the FOIA they make this training required of agency professionals I know in my federal career it's been I've seen something she's doing great they do annual training very well some agencies are resistant to require training of their employees for various reasons if it's not specifically required by statute so having it in the FOIA would be I think a home run and would improve as you said you know people's individuals knowledge of their role in the FOIA process I think those are both great suggestions and particularly with the role based training and I definitely really support including that and the recommendation and we've had a lot of success with rolling out supervisor training at EPA and it's we created specific role based training but it's being geared to that that larger picture that supervisors are reflecting on and I think that it had much you know a better impact than some of the canned training that's rolled out to all staff because supervisors they're looking at it sometimes from a fiscal resources perspective but also you know how does this impact my office specifically and so I'm gonna definitely hear clear that James Jacobs Tim for university I'd like to to also give a shout out I guess to to agency librarians because they are one of the first people that I always go to I don't necessarily go to the FOIA officer when I when I need agency information because if it's already in the library then I don't need to bother the the FOIA person so if if you could include agency librarians or agency libraries in that recommendation [Music] this is Bobby uh Oh IP I just wanted to to just note that in the chief FOIA officer reports that we ask agents every year we are asking it's not just for their FOIA professionals but how they're providing training for their non FOIA professionals so it's certainly something that that we've been encouraging gating Seasonings have been reporting on so I think the records management part brings a new perspective to it but as far as FOIA professionals on particularly professionals we even ask what percentage of the FOIA professionals see a kind of an idea of how much of the work forces is giving substantive FOIA training because I do think that training is one of the fundamental important parts of a successful FOIA administration but we've really focused also on the non FOIA professionals also there's a lot of resources that they're out there for them to use so that it makes it easier we have elearning training modules for specifically non way of professionals the other agencies we also have a executive video for executives in addition to elearning modules for FOIA professionals so all of the workforce regardless of you know not being in the DC area can use that a lot of agencies use those resources to target those audiences well Jason Baron so Bobby are you saying that this has already accounted for and should be a best practice or is there a gap are there types of groups subgroups of subject matter experts or technology professionals that are not routinely joining for you training that is already out there because if there's you know either there's a gap or there isn't yeah I mean I would I would say that this exists already as a best practice and something that's being encouraged and a lot of agencies are doing well and so that's the reason I bring up the resources and the reporting and it already being done can somebody needs to do better we can always do better but it is it's not something that's not been untouched this is Bradley I'll jump in here I've got to say they're they're definitely gaps here when I came on board my last job as the FOIA officer for DHS is office of civil rights and civil liberties one of the things I did was implement for a training for all of the managers and then open it up to all of the staff and it was something they hadn't had before and this was 2016 in 2017 so I think they're you know some agencies do it really really well some people when I did the training were incredibly shocked that their emails could go out in the FOIA request and and work I mean incredibly shocking so that so there is a need to one you know explain look your emails are probably going out and and then to also let everyone know what their role is because when we when I created our SOP for from an old office I included a special part on what everyone's role is in the process including you know if we task you for records you are really required to search you can't just stick that in the back and explain what happens from that on out because they need to know not just here's your role but then they need to know what happens with the thing after they hand it over so well yes there are certainly best practices and all the FOIA professionals are clearly aware of what what oip resources there are and and many of us even you know have said hey we recommend you take this course senior executives but when it gets down to the you know individual employees on a granule granular level who are doing the programmatic work in the agency that is the subject to the FOIA requests those people do need to know what their role is and I think there's a gap we can fill here in explaining that role better to everyone involved because as we all know boy isn't just the responsibility of the FOIA office and agencies need to do a much better job of making that clear to everyone within the agency I can I make one quick point Emily I just want to say that I know everyone's gonna take the time to go through the survey results but I would point out I was interested to see in the responses from agency personnel that custodian responsiveness was a major problem and it was highlighted by agency personnel so I think it goes directly to the guys that we're talking about I think I will take your point definitely to consideration when we're drafting out and I think we're able to to distinguish and also explain the resources that are available the requirements that are available but also go to how this recommendation might go beyond what we currently ask agencies to illustrate that gap but also make it very clear what agencies could utilize in order to better improve what training that they offer okay moving on to our proposed recommendation number four James good morning everyone James Stoker so I'm gonna give an overview of what the International sub subcommittee of the time volume subcommittee has been been working on and sort of explain a bit of a shift in our focus that is manifested in these these two recommendations that are coming out of our sub subcommittee and then I'll address the recommendations themselves and preview the work that we plan on doing in the future other sub committee excuse me sub subcommittee members are very welcome to chime in to correct any any misleading impressions I may give because I joined the sub sub committee a little bit later in the in the beginning of the term so the original goal at the international sub subcommittee was to look into examples of how other countries have addressed issues related to time and volume our assumption was that this must be an issue that all countries with Freedom of Information statutes deal with and so we identified a number of a country cases to look into along with a set of seven questions to ask about them and the questions were designed to get a sense of what these time volume issues might be as well as what had been done or had been attempted to to relieve these issues unfortunately the group members found that was often very difficult to identify answers to these questions while it was easy to find statistical information about at least relatively easy to find information about how many Freedom of Information requests had been filed during particular years it was often difficult to find information about what had been done to address the time volume of responses and part of the reason for this seemed to be that many other countries do not identify time and volume as an issue now why might this be well one reason seems to be that these countries actually receive many fewer Freedom of Information requests per capita than the United States here's just a couple of examples so in 2018 the US federal government received 860 3729 FOIA requests with a population of 327 million and change this amounts to about two point six three requests for each thousand citizens so thousand citizens 2.63 requests in switzerland in 2018 636 foia requests were received which divided by a population of a little over 8 million meant about point zero seven five requests per 1000 citizens what does that mean basically the u.s. is getting thirty five times the number of FOIA requests per capita in germany the exact number is not easy to find but a federal report indicated that in 2017 almost 13,000 Freedom of Information acts were received with an overall population of just over eighty two million so this basically works out and I won't go on you know maybe giving a little too too many statistics here but the u.s. gets about 17 times as many requests per capita as Germany okay now we didn't look at all countries around the world but the ones that we did look at suggested that this is a pretty common common ratio more than tenfold the number of requests per capita what explains this gap well determining the exact causes are a bit beyond the ability of our group to do because just because of the time and resources available to to us but one likely major contributor to this is something that the committee has heard about previously it's the so called first person FOIA requests which we heard about from professionals or Margaret Quokka a few weeks our sorry few a few months ago in her presentation to the the subcommittee in other words people are having to make Freedom of Information Act requests to get basic information related to themselves whereas in other countries there seem to be other processes in place to to to access this information so this led us to two recommendations one relatively general and one fairly specific the first is proposed recommendation number four which recommends that agencies identify common types of documents requested as part of FOIA and to establish alternative processes for providing these documents to requesters on terms equal to or better than the Freedom of Information Act the idea behind this recommendation is that requests for certain types of documentation should not have to be FOIA requests one example that often comes up is that of immigration files which are often needed by individuals during deportation hearings in some cases subjects of the hearings are unable to obtain their immigration files in time for their hearings so there's this question that should maybe be asked is not just is FOIA acting fast enough but should there be some other process in place for getting access to these types of files and I think there are many other types of documents that that could fall under this category commonly requested documents particularly related to to first person requests that could be where alternative procedures that could could maybe do a better job of addressing that demand and keeping FOIA for a more complicated request requests that fall outside outside of the norm so I guess one other thing to just comment on is that we've included in this recommendation terms equal to or better than the Freedom of Information Act requests the purpose of that language is to ensure that whatever other process is provided is not actually more burdensome or slower than the Freedom of Information Act request so well you don't want this to result in a slowing down of access to information even even as it's moved outside of the Freedom of Information Act for that process so I think maybe we could open up now for comments or questions thoughts mmm a comment um because I think Sarah Cutler FDA sorry you know I like the sound of this and we at my agency have some types of Records that not so much individuals but companies can get outside of the FOIA process which is great but the same people who process FOIA requests actually have to do that so it's a very simple request to do when it doesn't get counted as a FOIA request I guess the question is for the example of first party immigration records what is the hold up you know if these are largely and I don't mean I mean that rhetorically where where is the slowdown is it just a volume issue or does it take a long time to find them or does someone actually need to just make sure there not something non-public in them because if it's any or all of those calling them something besides a FOIA request might not actually make it any faster especially if the people who have to do the finding and the looking are the same people or maybe there are other people but those people have other work that they do or the theories you would hire other people and we know that can take a long time so well I like the idea I just think it's sort of like the idea that both we just post everything online then no one will ever need to make FOIA requests again and that you know hasn't really you know been a reality this idea that if we turn put these records out there and then you don't have to call it a FOIA request might not actually make it better for the end user but I think in some situations it would one just has to look at why is this particular set of Records that people are requesting taking a long time and where is the where's the burden really falling and can moving it outside of FOIA fix that on and on about this particular type of file and we did discuss this as an example of wouldn't it be wonderful wonderful called alien files a files that for individual immigration records were available to the immigrants and deportation proceedings or outside of deportation proceedings they're there their files but I have a follow-up question before answering your questions which is when you the process has not been successful so so you're saying there is a process now we're better this they're the same FOIA professionals that are processing records that are not going through the FOIA process so what is that process so we like just for example if a company that's inspected by the Food and Drug Administration wants a copy of their own inspection record they often make a FOIA request for it and we tell them oh actually there's this other mechanism where the office of compliance once they're done with the report they actually just send it to you through this field management directive and it's a relatively small portion of our FOIA so I gave that as an example it's not a problem for us or an issue but but certainly exemptions are applied there's no generally speaking no because it's their own it's their own inspection report but in theory someone doesn't need to look at it and sure that it doesn't the different have something and there so there's still a disclosure aspect to it even if it's not a FOIA request this is actually an example of one right that I think actually works quite well but my question was for the the ones that maybe are really causing certain types of records if they're causing that much of a backlog in the FOIA world how do you solve that back off just by taking them out now could you take away fees that's good to the extent people might have had to pay for fees seems kind of unfair when they want their own you know file but you know what about taking it out of way is going to actually help isn't like that's the key question do you wanna go sure Bradley so I have some experience with immigration records and what I'll say is it's it's all three issues it's the content of the record it's finding the records especially when they're paper-based and in a cave and it's the and it's the people needed to process them because there are so many requests for these records and and while I certainly think there there are definitely avenues to explore other ways to make those records available to people and it's absolutely something to look into for this one I would what I would say is knowing the the kind of stir that this may cause with a couple agencies I can think of the way to phrase this would be look into and evaluate the possibility of making these documents available through a process outside of the voyage if that's more efficient if it's more efficient yes especially because just within the context of immigration records I mean there that's been an ongoing debate even within DHS for as long as I've been employed by the agency and I'm sure way before that this is Abby and I wasn't on this sub subcommittee and this probably goes more to recommendation number five but I think you also have to look at when you talk about having to search in a cave or something for the records looking at the requirements for agencies to digitize records and from the start when you're creating those records thinking about how you're going to make it available to the public so I think about my former agency the Copyright Office um is required to have a public catalog of registrations which is the most sought after information from that agency and from the start when they get a paper application or a digital application they're entering that information into a database that is going to be published online and people can go there and read it if it's got personal information and it's sensitive information you could make it a secure database so that someone has to have a username and password to access their own information but I would say you would have to start by looking at how you're currently providing it and modernizing that to let me get better this is Sean Moulton from Pogo I was gonna say something very similar so I'll just add on to that I think especially around the immigration records which I've looked at I think it is not is just about providing access alternative access it's about stepping back for some of these records and thinking about record creation to allow for access easier and and to solve this problem of making it so that some portion of the record can be made available without review and therefore save time and segmenting for immigration records law enforcement sensitive information for for customs and such off to a different record or a different segment of the document or the the database until you do that you're gonna be stuck in this it doesn't matter if we provide it here or there it's gonna take a lot of time and effort but the other thing I would say about this is I think we should we should call it what it is which is for the most part first person requests I mean tell agencies what it is I mean there may be some other records but even the yeah agricultural example is sort of first person it's first person for a corporation of their records but it seems to be that if that's the big piece of the certain records we're talking about we should just say they should look at those first person requests for these opportunities and I agree that's a good way to phrase it so that agencies don't feel like this is a requirement that they come up with an alternative process this is Joan to the extent that this recommendation moves forward vision subcommittee was also considering the idea of streamlining the process for certain types of records such as first person requesting immigration EEO Veterans Affairs that kind of thing so I say we continue communication because somebody from our group who might want to participate if you guys move forward with us would like to if I can just start to respond I'm not entirely sure I'm the best person to respond to every single aspect of that you know all of these all of these comments but I think that wow this is this recommendation is partly intended to improve efficiency I don't think that anyone's under the illusion that this will solve the issue of access to information I think for me the fundamental point of this recommendation is that the Freedom of Information Act has been stretched way beyond the intent of its original legislative intent originally it was not I don't believe at least and I could be totally wrong about this because I'm not an expert on it but I do not believe that it was intended to cover every interaction between individuals and their government every single instance in which people request information from the government instead it was intended to to fill in gaps you might say and what seems to have happened over the years is that every time there has been a need for citizens to have access to information and there is no there was no process in place agencies have resorted to it being you know as a Freedom of Information issue right and because of that the the statistics about this are inflating it becomes really Nicolle to track what's going on in government I mean we say right now that we have you know eight hundred and sixty three thousand FOIA requests per year but that doesn't really tell us anything about what is what is happening in terms of freedom of information right I mean it just means that people are having to file all of these requests for things that they otherwise might not be you know need need to file and so the fact that this number is sort of expanding exponentially over the years and creating more and more work doesn't tell us that our government is becoming more transparent or more open it just tells us that you know agencies are wrong on this this haw more and so by getting rid of some of the of some of the types of requests or at least moving them out of FOIA it it will tell us a little bit more about what's actually happening in terms of freedom of information so I think that that's a purpose of this recommendation that goes beyond efficiency right so I just wanted to kind of kind of add that I mean I can't leave the issue of immigration records without just one comment which is this is the time volume subcommittee and we really are looking at volume issues and around American I know that when you talk about the eight hundred thousand requests a huge portion of those requests are requests for immigration records to an agency within the Department of Homeland Security I mean I wish I had the statistic a quarter so if we're really talking about revolutionising the system in some way and fixing it in a way that is extraordinary I think that we should be thinking and in creative ways like this I don't think sort of it's a where we can tweak it and fix it I think that and that's why I think this is very very innovative recommendation and I wholeheartedly support exploring what this might look like because I think it would make a tremendous difference in the volume of FOIA requests coming to Department of Homeland Security I just want to understand what's to say something I just want to check in with the folks on the phone give them an opportunity to make sure they're heard Suzanne or Patricia man I don't have anything to add okay Patricia this is the Patricia from NLRB and I was on the sub subcommittee and I think it's it's really a really excellent recommendation and I I think it can help us out a lot with our time volume issue all right thanks Sean Sean with Pogo so I just wanted to follow up on I'm sorry I don't know your name actually still learning names Emily's coming III agree entirely about the immigration records and I'm just wondering aloud and I'm happy to do this in the subcommittee a little bit but maybe there needs to be a even more pointed recommendation directly at the immigration record something around a specific task force or a specific effort that should be launched to to try and solve one quarter of the nation's FOIA requests and it's not going to be easy it's it's certainly a very complicated issue but even if they can come up with an innovative solution for moving forward the older records are probably always going to be difficult but it seems like a worthwhile recommendation to make an interesting conversation which I think people have begun it has been litigated to a certain extent you know there are questions about does it look like civil discovery if you're in removal proceedings what does it look like who is processing the records is it the DOJ attorney who's litigating the case an immigration court or is it you know a high officer especially designated to do this so yes I think it's a it's a very interesting important conversation and I'd be happy to go more in that direction and maybe we can explore that Bradley is very excited about that Tom Sussman I'm surprised Jason didn't trace us but this is also records management issue because how you take the records in and you make this point how they're dealt with at the beginning facilitates the ease of making in public and having yes the IRS and places like that you know if you if you have certain fields or SEC if you have certain fields that can be protected at the input then you don't need to have a case-by-case record by record review for output so I wonder if there's something there on the management side or input side so I just I'm trying to manage our time a little bit and I would love to be able to get through the end of the time volume subcommittee so for in that spirit James you have the next one too thank you yes sir thank you everyone for all those thoughts and and suggestions and concerns too I think we're going to continue to work on this obviously before we put it forward for a vote so I'm happy to follow up with anyone who wants to talk about that offline as well the next recommendation proposed recommendation number five is a can be seen as a specific application of recommendation number four specific specific example of how it could be carried out so proposed recommendation number five reads as follows recommend that agencies utilize existing statutory provisions that allow for dissemination of information outside of the FOIA and ensure that the programs that provide such information dissemination are robust consistent with the National Archives and records administration's in 1921 memorandum which requires all federal agencies to digitize their records by December 31st 2022 agencies should provide this information electronically developing online databases where members of the public may access commonly requested via the FOIA or alternative statutory provisions types of documents that go to the heart of the agency's mission and providing secure online databases where that information contains personally identifiable information or other sensitive information and I'll just open open that up to comment Michael so this is Michael from mock rock so one of the things and this kind of goes with the prior recommendation as well is sort of is there a way that we could recommend incentives for agencies and resources for agencies to do this I think one thing I'm always trying to think through is what can we do to kind of give agencies some relief or encourage agencies to be proactive whether that's there's some sort of grant pool that agencies can put a proposal for and and sort of say hey maybe not digitizing all a files and automate and release but something that's you know could structurally improve a FOIA program within an agency find a way to kind of give them you know I think FOIA agencies off to say or FOIA officers I speak with often say oh we have this new unfunded mandate of we have to do X we have to do Y and I think finding a way to sort of fund infrastructural improvements that are gonna pay off for years to go would be great to kind of explicitly pair with with some of these recommendations emilie a follow-up question to that so on the resources I know this has been batted around a little bit in previous discussions but how specific can we get about how to recommend that things be resourced I think that's a question I have because I'd be happy to explore that again not something I have a great deal of expertise around but I'm not sure what what kind of language would be would be acceptable in terms of having the archivist recommend how an agency resources change within the agency you know and I think we can talk about specific language at this point in the process I want to say everything is still on the table so we should continue to think creatively great okay okay anyone else oh Emily you are last four number six I last okay miss James thank you so much so I have I've brought in my recommendation which is sort of maybe a wish list for a request for the requester community to the committee and we didn't have a lot of time to discuss this and I think that this might go to some of the records management some of the prints of principles behind some of the records management recommendations around explaining the types of records that are maintained by the agency better on the website but essentially to recommend enhancing agency transparency but providing on the agency website contact information for a FOIA point of contact who may or may not be the FOIA public liaison commonly asked questions that include an explanation of the types of Records maintained by the agency and the estimated processing timeframes for simple and complex requests so I was told things are impossible but I'm putting in a in a proposed draft recommendation anyway I think that what I'm trying to get at here is just really this idea that I work that a member of the requesting community can go to an agency and get information prior to drafting and filing a request that would help them file a better drafted more efficient you know sort of request that that really will have them obtain the information that they want from the agency and I've been told that there that that is something that the agencies would like that they would like to have some of these first line conversations with the requester community and instead we go straight to a FOIA badly drafted FOIA amusing agency words to a to a lawsuit so let's avoid that let's avoid the administrative appeal in the litigation so how can a person sort of communicate with the agency in a way that is effective to achieve that so that's that's one and then the commonly asked questions yes certainly agencies do this and it would just be I think maybe this is all a best practice how can this be sort of more consistent across agencies and the estimated processing timeframes I can understand that an agency might not want to say we are absolutely outside of the statutory time frame and here's here's how much outside of the statutory time frame we are but at the same time I think you know USD is does provide an estimate for the time in which they adjudicate complex and simple requests and I'm curious to hear more from folks around the table about this recommendation Bobbie formal IP and so then this shouldn't be the impossible it should be what agencies are doing and it's in our guidance our website guidance actually asks agencies to consider the queue and it put it in the QA the processing time the average processing time and we actually built this into the national for portal so that each agency's landing page would have this information point of information I have seen that information that is not I'm talking about current processing time so not as of the last is that annual report okay well we can certainly deal on that but there's no there's no fear of showing I have exposing finding in fact we wanted to put that up front and I think agencies want to put that up front to manage expectations so you can see what the processing time for a simple request is as opposed to a complex request and have all that contact information front and center the FOIA public liaison the FOIA officer on the portal we put multiple different ways that you can contact the agency have their handbook which we've encouraged has the Q&A and all this information because you certainly want the requester to contact the agency and work in the spirit of cooperation and certainly within our all of our guidance on with regarding communicating with requesters so I think this is all good but this is definitely something that I we've embraced and that the game should embrace if they're not that they are a lot of them are embracing okay I'm a little dubious of the use of estimated processing times for simple versus complex and it's just going back to the metrics conversation earlier a complex request can vary from you know a few hundred documents to you know upwards of hundreds of thousands of documents and so I I think that I also agree it's the average processing time is something that an agency wouldn't have issue with providing and within a certain timeframe of you know the requests that they're evaluating they can provide that but I'm not sure how much use that specific information would be so I would encourage it to go beyond to having a defined processing rate that agencies across the board can try to target and I'm gonna talk about that later as well so the one thing I was I would just add is that obviously like the average processing time even it in whatever frame that we give it kind of gives you a place marker an idea but I think the most value that a requests are needing to have is that conversation they have specific to that request so that you can explain to a requester this is the amount of pages we have this is the search that's involved and now this is really why it's gonna take this amount of time you know provide an estimate come back if that you can't meet that estimate later on explain why so you can't get that really from anything you're gonna put on your website that conversation so I think that's really where the biggest value there is there and that's having that contact information front and center and agencies and requesters working together through their points of contacts I do think it could be helpful though and this is making me think I need to look at our FAQ and just make sure that they're totally up-to-date to give just certain examples because there are certain specific examples where you can say with what general certainty like this type will be considered simple to be answered within 20 days I know at our agency we have certain categories that unless something's gone horribly wrong it's going to be answered in 20 days and then we actually maybe in the last year put a note up about a certain kind of record that unfortunately is taking much longer and we actually wanted people to be aware of that and I put it in like big red bold underlined on the website nobody seems to care and in fact sometimes when people request these I have someone in my office call them like if they look like someone who hasn't previously need requests Wednesday listen we just want to let you know you're requesting this type of record and it says what the wait time is gonna be and they're not happy about it but I don't think a single person said nevermind that's really helpful this is aleena I just want to add putting on my Otis hat one of the sets of feedback that we get a lot from requesters and customers that call us is their inability to reach a human being at an agency and so I know we we talk a great game about communication between agencies and requesters but often times requesters are calling us and it's the first human being they get to talk to and they're very excited about that but it also shows maybe there's a little bit of a breakdown further down in the process and so I know we had a little bit of dialogue in our second term about points of contact Tommy remember Tom's nodding Shawn remembers so we could certainly discuss that a little further in terms of what that would really look like but I think there's so much value to you know just being able to provide other alternatives other than the FOIA public liaison and the FOIA officer I think that would really go a long way you know III agree with what you just said Alena and Emily - I you know I I filed for your request myself in the past and it's it's very frustrating to not be able to speak to somebody and and I know when I have called requesters they you know fell off the chair when they actually you know spoke to somebody from way of reaction I'm just wondering I look at it you know on our websites we're required to the way of public liaisons number we have our FOIA officers number as well so it's the direct line so that folks can get a hold of a live person and I know oh just did an advisory regarding our final response letters and you had a really detailed put in all the contact information in our final response letters you know we even we put in the attorneys name is there who did the work so there's there's you know two different people that they can contact either me as for public liaison or the attorney who did the request I'm wondering if maybe at the front end of Oya that and I mean as a practice in my agency when my folks get a request they do send out an email directly to the requester with their contact information so that the person can get ahold of them if they have any questions and I'm wondering if that should be a best practice or if we could put something in there at the front end where where they know they have a live person that they can talk to anyway just just a thought so your acknowledgement letter actually has an actual person's name on it depending on where in the agency or it's actually someone in my office but it's depending on where your request was assigned so they have a name and a telephone number that's a really good point we discussed that I think I am talking about you in prior four this is understood they seem to have that entire conversation yeah absolutely and I am wondering aleena also if the issue people are saying it's like I literally couldn't figure out who to call or are they saying I called and left a message and they didn't call me back because customer service is certainly an issue but a slightly different issue um certainly given the number of times a day my phone rings and I get email I my information is out there no no one's having any trouble finding me right and I do pride myself on being a very responsive person and sometimes people are somewhat shocked like oh you actually called me back and so I wonder if it's more like they can figure out who to call and they're just not getting a call I wanted to say to multiple it's all those things one of the reasons we actually were really advocating and we did this in conjunction with the ype so thank you Oh IP really advocating that agencies make much more clear the contact information that they do put in their letters because I called this the mushing factor but basically the agency information was kind of getting mushed together and then the ojas language was very clear so Odo's was getting a lot of calls that we needed to send back to agencies but the other feedback we've also gotten is that folks are calling especially agencies that have a lot of weigh requests agencies are they have a voice mailbox for example and requesters have told us we keep calling and now the voice mailbox is full can't even leave a message much less talk to a human being so there are a lot of those kinds of things that are going on that I think frustrate requesters so I'm just giving you some examples of feedback that you know we've experienced this is this is this is Michael a few months ago we did some like user testing survey where we just gave people various agency response acknowledgement letters and I think like people look for like having a name they could call and I think actually most agencies after some recent recommendations and also recent updates to the FOIA have gotten I've put together much much better letters one of the things we've also been seen just has kind of a note of caution is also like if you have like five places to contact like such as discussion like OJ's like people saw those letters and we were kind of like just asking them so what would you do next or how confident are you that this is being handled and it was too many different places to contact was really confusing they loved having a phone number but like some agencies had like a general phone number and then the FOIA office phone number and the FOIA liaison and then the FOIA appeal and there's like okay I've got six different places to call and I think most people are just like we're you know what can we do to provide that access while not overwhelming people with choices but I think it is worth noting I think most agencies have gotten really good about providing points of contact and and creating sort of like here's who you to reach out and I've really liked that FOIA doctor of how it's putting that front and center so I think this is you know continued improvement but I think there's been huge strides in that area okay any other comments anyone else on the phone want to add anything I think we're all sort of eager for a break so let's take a break 15 minutes so it's 11:45 let's be back by noon and I hope I'm not tor thrifting the records management and vision subcommittees but you guys should have enough time I know you will alright thanks everyone 15 minutes reminder charters cafe is available for snacks food or drink for purchase no food or drink back in the theatres there are restrooms directly outside the theater and another set near the cafe so enjoy the break and we'll see you at 15 minutes thank you oh no I've been here off certainly I was really glad you have to answer it was for a contractor never , said we've been looking at them nothing's worth actually okay good but there's like that one woman there's a lot of crazy yeah but they did mention I'm like no one was paying attention there yeah they are they're talking to each other yeah thank you I appreciate it no no [Music] [Music] [Music] folks let's start gathering did John not able to call in his plane was delayed so you're on your own I was gonna go to Joan and then to Jason Jason I'm saving the best for last okay so I'm gonna go to you last you are you gonna let James present I would never deprive them don't please James don't I'm gonna have you go last Joan's gonna go now okay but we're saving the best for last [Laughter] I try I didn't have a chance to do any first I just all right I think we're waiting for Emily all right thanks everyone for coming back good that most people came back that's a good sign um Thank You committee members were coming back so we are now gonna move on to the vision subcommittee unfortunately Chris Knox is co-chair is not going to be able to call in so Joan caminar is on her own but she don't throw anything at her okay she's going to present now we're where the vision subcommittee is right now what they've done and where they plan to move forward - thank you this is Joan at first I just want to start with more of a logistical update to give you an idea of where we are now and the our our plan going forward over the next few weeks if you have taken a look at the material provision you know that we are slightly behind the other groups but we have a plan to catch up so basically over the next two weeks we are having two meetings next Wednesday and the following meeting our plan for those two very intensive meetings will be to have a report out from each of our subgroups to discuss the evaluation the summaries of the survey results and how they speak to our current brainstorming or ideas next will be to finalize the selection of our recommendations from those that are on the table now and may develop from the report out from the remaining subgroups and last assign responsibility for drafting those recommendations our plan is to have our giraffe's of the recommendations completed by mid to late January which should put us on track to meet the overall overall time frame that the committee is looking for and so with that I just want to frame up what you are looking at here please keep in mind that if there is a word for a draft of a draft of a draft that is what you are looking at it's it's really a documentation of ideas that we have had you know brainstorming clearly not a lot of wordsmithing going on here so um give us a little break with maybe if some of the terminology is it's not what you would prefer or and it definitely would not be what you're going to be seeing in the final product know that that's nice it's my introduction um so with that though I think that we can have some lively discussion from what we have here some of which has already been covered so I'll note that as we move forward and I guess that's it so you guys should have a sheet with eleven ideas so the first I don't think we need to go into in any detail this is a recommendation that's going to be done in conjunction with the time volume subcommittee that Bradley already went through and that we had a discussion related to it but I just want to note the vision subcommittee's involvement the same is with number two which is relating to proactive data management a few months ago we had a joint conversation with their records committee on our involvement moving forward in that but as they are further along and they're drafting and I'm also going to bump that to them so on to number three and and as was mentioned Chris who's from July is unable to join us today so when it comes to some of the more technical side of things we're going to be missing a bit of his perspective and I'm going to try to frame it up the best that I understand it from you know conversations with him so with regard to 508 compliance the idea of bringing an industry perspective to 508 compliance potentially recommending to have an industry day industry involvement as well as you know further work towards the production of a flat PDF which as I understand it would have certain benefits to being able to you know be be more accessible with that I will if I can't answer any questions I will definitely take the notes back to our meeting next week so we can work towards addressing any questions or concerns you guys have and if you have additions that you know like ways to that you think might ideas that might add to some of these please feel free to bring those up as well do we want to pause for a second and just ask for feedback on one two and three so far thoughts ideas Ryan oh thank you Ryan well um so one idea and maybe this this might fall outside of your guys current focus on 508 yeah and so it looks like you're looking at how do we encourage industry and developing tools to ensure that products that we produce are 508 compliant one additional thing that might be helpful for the agency community is to encourage GSA to the extent this doesn't already exist to have a government-wide vehicle for agencies to leverage in remediating documents I think each agency at least each agency that I know currently does their own thing here in this area and there could be cost savings if we have a standard vehicle that we could leverage to accomplish 508 compliance cos access is incredibly important and ensuring that everyone has access to the materials or release is very important did I hear someone on the phone they wanted to chime in I I thought that agency-wide there was a requirement that all agencies are to be 508 compliant and so I don't know if this is maybe a bit repetitive that's not requirement and I and I can't wait this is Sean from Pogo I'll jump in we talked about this 508 compliance quite a bit in last term of the FOIA Advisory Committee and the the problem is rather an odd one where records are 508 compliant in the agency but when they're processed for disclosure often that that compliance is is stripped out especially when redactions need to be made and it's the only way for for the agency to feel secure in that those redactions won't be you know retrievable any of that information and so the process of processing it for public release turns it into a document that no longer meets 508 compliance which they're required to do if they release to everyone but they're only releasing it to one person because it's a FOIA request and so they can do that and it's never been a problem up until more recently when we've tried to pursue release to one release to all and then we realized we had kind of painted ourselves into a corner so one of the things I did want to raise as I know this is an ongoing problem was the idea that if there's a large volume of Records that are not 508 compliant that have been released to someone one of the solutions may be a listing of 508 compliant listing or index of those records that are available upon request again without new FOIA review so we don't have the you know the same problem we were talking about with volume because they can just be released but since they would only be sent upon request they don't actually they wouldn't be violating the law to to keep them non 508 compliant and so as long as the index and the searchable index was 508 compliant the agency would remain in complete compliance it's a less than ideal solution but it could be a stopgap until we have the right technology so this is aleena pat on the back - Oh Jess in our legislative recommendation in our annual report this past year we actually suggested that everything so you might want to look at that and we tried to give a few different ideas to Congress so it's something that we're still very interested in trying to move forward so I'm very excited about continuing this dialogue one additional thing - that however this recommendation winds up being fully framed we've had some mentioned earlier about unfunded mandates this is something that's definitely going to be expensive so if the recommendation is to oh just to seek some kind of information I would suggest throwing in a recommendation that I'll just ask Congress to fund this so with that Joan again moving on to number four which we discussed briefly and I think might be an opportunity to work potentially in conjunction with time and volume is the concept of streamline streamlining the process for certain types of records it does stop short of your recommendation of takings these first party request records outside of the FOIA process and we were envisioning something more like a streamline process a specific track for a certain type of Records which would require defining both those categories as well as the owning agencies potentially a portal for those specific type of Records something to help speed up the process for what check what accounts for a large volume of FOIA requests and if I don't know if there's any additional discussion we need to have on that but just throw in our hat in the ring on that one this is Emily I'll just say that I know in the immigration context they already have certain processes that are supposed to facilitate or streamline certain types of FOIA requests for certain records for example I talked before about current processing times on USCIS is website will they talk about a file simple non a file complex non a file so they're tracking it that way and there are you know forms that are very straightforward and not just not sure that that really solves the problem in that context anyway James James Stoker so yes I think this does seem to be this is an interesting request there's a recommendation I think we'd have to think about whether or not this is something that that is an alternative to the idea of you know separating them from foia or you know could be done along excited to write so if these things are gonna be separated but we could also urge that there may be may be streamlined as well because I mean one of the ideas behind behind our recommendation was that maybe it's possible that that some records are actually taking longer to get out to the public because of the FOIA whereas it might be easier to to give access to people particularly if this is combined with the electronic databases record a recommendation that we had also so I don't think that anyone would oppose the idea of streamlining access to these types of Records but it doesn't necessarily have to be seen as an alternative thank you and just to add from my perspective I was envisioning something potentially like the the my property system that we utilize which of course would not be enough to address some of the privacy concerns but more is like a conceptual starting point where individuals who are looking for records about their their personal property and like literally their house you know your Superfund sites or different things like that have a porter a portal that they can go to to directly access certain records and they're pulled from all across the agency into one repository and they're tagged based on certain identifying information for that property but I agree I think that you know not an or situation and you know throwing a couple of ideas there that might be able to if you're looking at maybe like a 10 year out goal there's something that could be done along the way and number five further defining or redefining search reasonableness such as standards for reasonably described requests I know that something that troubles both the requester community as well as the agency community is having a more solid foundation for knowing how to frame a fair request and an agency and how to respond to certain requests we're receiving more and more these certain requests for all documents all communications in particular and you know given the I like to call it that tsunami of electronically stored information that escalates it you know it's such an exponential rate every year for the federal government when you take what you know a request that's asking for all communications for an individual for you know even a month period it can result in such a high volume of Records now I'm in no way saying that that is not a reasonably described request you can but I think that having some type of you know base level it could be opportunities to include subject matter search term but I think it's going to require communication from both the requester community as well as the agencies this is Alina I just want to say this sounds a lot like it would pair up very nicely with number six from time volume so maybe Emily and Joan you guys need to talk this human just wouldn't want it on that one on that one to get lost the requestor side which is having some way to understand and challenge has resolved the reasonableness of the search from our perspective when we often suspect that the search was was inadequate based upon our other knowledge of the subject matter and it's often difficult to know and we do have that communication and some agencies are quite some FOIA officers are quite happy to go back and respond to those requests others are we suspect are using the opaqueness to avoid the having to do a further search let's put it that way so just I don't know exactly how that would come out in terms of terminology and wording of this but you did mention that it was from both sides so further guidance on what is a reasonable search and communication of that to the requester I think is it would be very helpful I was working on and there's actually some fairly good a lengthy discussion in case law in the DOJ guide about this very issue that specifically talks about any and all type for your class that I found very useful and helpful so it's something you just may want to look at in understanding and then it's not entirely clear there's some cases that I've gone some way and some the other but we do you know are on alert for those kinds of requests because I think often they they don't work well for requesters it's really hard to do a search for any and all records and sometimes I find that requesters aren't really doing themselves a service by being they think oh if I'm just really broad then all that will actually get me the best result but sometimes that's actually not not the case and one part of that recommendation could be since we are one of the recommendations from the last advisory committee was to post our law is that directing requesters of such types of requests to the logs can actually be quite helpful as a starting point this is Joan again so that's where I think that the the interplay between a recently described request and a reasonably constructed search really played together and because I agree you know familiar with the DOJ guidance particularly on all records related to a particular subject but given that there's the vast majority of FOIA requests that agencies are processing or an electronic system you're also looking at whether or not an agency Italy their capability of conducting a particular search so it may be reasonable that an agency search for like I said all communications without a subject matter qualifier if you have a custodian if you have a date range that is really all a lot of agencies need to do a search that said you're getting more into the unduly burdensome aspect of it so and that's going back to Leigh's point why I think it is so important for it to be a conversation between the requester community in the agency community because I think it really benefits both to have an understanding of how request can be framed that will not only result in a lower burden on it agencies but also on a quicker response to requesters to really target what they're looking for but it does have to be a you know a balanced discussion anyone on the phone have any questions or comments okay keep your keep moving you're doing great number six a new pending FOIA legislation particularly on making private prisons subject to the FOIA this I will say this is one that I since chris is not on the call I don't actually have a whole lot of familiarity with this one but though just in reading that right there I don't know if anybody's familiar with it and wants to chime in but it sounds like a great thing I'm not sure hi James take up Stamper University I would just note that South Africa does something similar to this in their foil law they cover NGOs and nonprofits or organizations that do government work and I know that the US government doesn't do that but I think this points to the two that you know covering private prisons under under FOIA it would be really interesting to you know cover contract research organizations and defense contractors and places like that this is Michael from muck Rock in a number of states do as well whereas I think and I think we I think it's we probably don't want to be endorsing specific legislation but I don't know I mean I'm happy to endorse lots of legislation or even proposed legislation but I think if we couldn't endorse you know kind of come together with a sort of suggestion about you know as more government businesses privatized we do need to sort of make sure that it still encapsulate s-- the the spirit of openness and transparency as prior and I think that would be a really good thing to include as a recommendation and some mechanism of tracking that sort of the mini step in this direction when it's outside non-governmental entities that that hold records for the government are gonna be subject so you can't outsource your archiving in order to get the information outside of the FOIA and I think Michaels point there are some very good and and and abroad state laws that say if you're spending government funds to perform traditionally government functions then the entity should be subject to and the question is would then the procedure and that is beyond our issue here but you know there's also the open data Act I think is also another precedent for this where if you an agency relies on private research and Paula Gates a rule then that data has to be available public disclosure all right okay so I'm moving on to number seven released two one release to all this you know as you can see from the notes it's been around for a while but the potential recommendation that it is finalized and rolled out formally hoping to comment I guess I should probably comment on that and so I think it goes handed in with what Shawn had talked about a little bit before with 508 when during the pilot we had we had identified challenges this committee examined some of those challenges those challenges still exist the very much in favor of the policy of practice closures but just being mindful of that but it's still something that's under consideration this is Bradley this relates really closely with one of the recommendations that the recommend talked about later and I've got to say I representing DHS with our huge volume before requests have some issues with making this policy standard for everything first and foremost is the issue of individual requesters and I know that we've discussed making a carve out for that and other things that those outside of the FOIA but those are things that cannot be released to all the other thing is depends on what you mean by this by this kind of policy if you mean that every single floor release gets posted on the website who pays for that storage where is it gonna go how are they gonna get to it those are all things that are that can be incredibly expensive and can be also incredibly burdensome on an agency so wherever this goes it needs to take those things into consideration um so now moving on to number eight agencies paying for litigation losses and FOIA litigation if some of you might be familiar but just to make sure everybody understands agencies when they pay out attorneys fees for losses in FOIA litigation that money does come from the agencies funding including I don't know how it works at other agencies but down to a program level so just imagine whatever whatever program on whichever agency was the lead on a particular FOIA request be it a failure to respond or with Holdings that were later found to be improper any settlement either through negotiation with the plaintiff or at a court order will come from that programs personal funding and that has I would hope unintended consequences but very clear consequences on that agency specifically for the resources available to process other FOIA requests it compounds the problem they have fewer financial resources and both staff focus needing to shift to litigation because of that financial impact on the agency then potentially results in less staff focused on processing incoming FOIA requests there are a number of what I consider creative options out there to address this problem there are potential just ideas please remember potential limits on fees based on sizes of organizations of course there is this recommendation which I don't know if we'd actually get two of you know shifting the financial obligation to a general fund and this is going beyond some of my expertise there but I don't know if that's on the table and additionally the pre-2007 approach to FOIA attorneys fees was that if the issues were resolved prior to a summary judgment decision from the court the plaintiff was found not typically not eligible for attorneys fees that would likely have to be a result of a statutory revision I imagine so we like I said we're looking vision here they picture 10 years out but you may or may not be surprised at what a dramatic impact this does have on agencies this is Lee Steven so I guess my question is what is your what would your recommendation be here you're trying to limit fees either so I presented there there's a few options and because we are still we have not finalized what recommendations we're moving forward with that's why I'm presenting some possible ideas that we'd reflect on and to get your tapes and we have the benefit of giving every getting everybody's assessment of these ideas before we we select what recommendations we'll move forward with but yes there's the potential to to limit attorneys fees putting caps on things on the amount that can be paid out or the shifting of the obligation is also I think an opportunity the third one wanted to mention the pre-2007 approach to attorneys fees I understand would also have a potentially negative impact on the requester community so but I do want to present that as you know a potential option for a recommendation so when you say what am I suggesting could be any of the above you know we have to decide that I would like to get you know everybody's take on those possible options but the perspective is that you're coming from on this just for my own Claire is that you think that that the fee issue the fees being paid out right now are a problem for the agencies in that bet that's the if that's the problem you're trying to address with this recommendation is that correct yes and you said it is it has been a burden it was just can you describe for me you know what what you know what level are we talking about what level of burden what dollar figure is what what what what what actually it's a problem I'm gonna jump in thank you cuz I feel as you saw III at one point in my career I felt very strongly about this so as you may or may not know I ran the FOIA litigation unit at the FBI and so we experienced lots of litigation and there was definitely as far as I know a lot of intent behind this legislative change that was made my understanding was a requester community really pushed for it because they they were finding that things weren't working the way they should and you know one way we can pitch it in a negative fashion to say that it was a way to punish agencies right but but the way to look at it from an impact perspective I agree with Joan for example at the FBI we actually at the General Counsel's office was the one that took the hit and it was actually my particular section and so I used to say for the one hundred thousand dollars in attorneys fees I just had to pay to X plaintiff those are seven copiers or four printers that we can't buy for our section I mean it really hit down to that my understanding was that's what Congress wanted for agencies to really feel the pinch but I'm just telling you from a practical perspective that's what what's going on litigation while I understand the incentive idea that you know if a program office in particular gets dinged they're certainly learning a lesson but if the reason why the FOIA requests weren't being processed as quickly as they could be in the first place that resulted in litigation was a lack of resources now we have exacerbated the problem by reducing the resources even more thereby making a subject to even more litigation and more attorneys fees I think punishment was not the goal I think the go I mean this is vision subcommittee in ten years the future these recommendations would look ten years and beyond in the past because Congress made the change of on in paying out of trip out of the agency pocket rather than Treasury's pocket specifically and and not allowing agencies to delay delay delay delay and then hand out the information in court and avoid having to pay out anything and these were all these were didn't come easy and and they came because the the public media requester community all felt that though it would help change agency performance now the question that I would have and I was an advocate for these changes is if it didn't impact incentives then I would certainly be open to adjustments but we don't know that you mean it's easy to say well this takes resources away from how much to what extent six copiers is that is that's you know is that sort of just academic mathematics or you know do you have examples of agencies that have been directly impacted and could it have been avoided if the I mean that's the other side of this is agencies that play games and get dinged I mean I've been on the collecting fees side of things where the agency should have never contested these okay and you will recall at one point even the Justice Department took a position that they wouldn't defend agencies in certain cases because so much so many the defense it will estimating some of the defense's were frivolous so in those cases agency should get punished dinged because the incentive didn't work but maybe it would after a while so I'd like to have a more empirical base to know what the result has been and whether we can or surgically draw a line to help provide some incentive and maybe even in some cases punishment without abandoning the whole notion that you know it's these are expensive lawsuits for requesters and they shouldn't have to sue every time you know the agency decides to be where this is Jernigan where I think there's an opportunity there and I appreciate you know the need for there to be a little more precision here and you know from the stipulation of dismissals whatever we can pull together numbers and associate that particularly with failure to respond litigations which is where I think that this I'm gonna call it a vicious cycle it has the strongest impact so for example if we're able to pull together the data on in you know a fiscal year the amount of attorneys fees one particular agency paid out for failure to respond litigations which I know that we won't be able to say definitively is only due to resource issues but I do think that there is is a connection there i I think that maybe that's a type of information that might be a little more persuasive and if you think about it in in the the full circle if an agency is unable to respond to a FOIA request in the 20 days or 30 days statutory time frame depending on the situation and a requester then litigate soon after I know that there there's a lot more to that detail but if it to do to resource issue due to a high volume of FOIA requests you know trying to trying to work through a very voluminous requests you know any number of things but then simply because they fail to respond in there in litigation and they make a production in the course of litigation very frequently there's no further briefing on withholding in those situations it's purely a litigation that results in a pre agreed to production schedule the agency produces records there's no contested withholdings and the parties then you know move on their way but typically with settling with attorneys fees that's the type of situation where I think is is best suitable for this type of recommendation because then you have that cyclical fashion where the agency has less resources and is unable and also if sistered resources to the litigation and is therefore not able to fully tackle the incoming requests which then they fail to respond to and may result in additional litigation so I feel very bad for James Jacobs who's traveled from California to do to talk about two very fleshed out recommendations that are more mature than the discussion here and so we really do need to have time for him I think James wanted to say something I think this is an area where we can learn from the examples of other countries and Switzerland for instance in 2017 they created they did a trial run of what they called an accelerated summary procedure with oral arbitration hearings to avoid litigations I guess this would be some sort of binding arbitration process which at least my understanding is not a possibility in in FOIA cases here and there's some people sort of smiling a little bit so maybe there are some obvious objections to this that that I would miss but if we can be innovative in ways like that I mean it may be ways of thinking outside the box to avoid avoid going to court in the first place discussion may be in the next meeting or another time because a lot of us have a lot to say about this but we really do need to get to the other two things okay sorry for that then with that with number nine we're gonna put a pen in that one there there is also a lot to say and that one clearly is not fleshed out at all and I think can be taken just on the face of it in many different ways so with that I'd like to buried just quickly address number 10 and 11 which do have a bit more context to them with number 10 it's establishing the briefing for senior leaders during a transition to a new administration the the idea would be either through ojas or potentially DOJ either having a basic template with standardized information across the agency or alternatively I mean I really think that DOJ provides excellent training on Poya there's the potential for their Theda training specifically for senior leaders during transition message number 11 the recommendation to revise the statutory timeframe permitted for responding to complex FOIA requests this could alternate be an alternative idea the second part or in conjunction with the first which is basing this time frame on metrics provided by agencies on processing times for complex requests I do want to point out FBI and DHS having successfully been able to defend metrics and a defined processing rate of pages per month in numerous litigations which the guys are my heroes and I believe that there's an opportunity for a both requester community involvement as well as agency involvement in a potential work group that could help establish and I mean they're getting into a lot of math is beyond my my abilities but you know making sure it's well supported but I think looking towards that that you know 10 years in the future idea I understand that were we may not be successful in the idea of modifying the statutory time frame but with that expectation idea this came from managing expectations in our group of having that underlying metrics to support our estimated completion dates it really supports requesters and knowing how long it's going to take to have things as well as agencies and able to defend requests for funding I feel particularly strongly about metrics and being able to utilize those through the FOIA process okay John thank you for all of that any anyone else want to discuss anything please join the vision subcommittee and we can continue the dialogue I just want to quickly intercede I understand by the way I was told at break and I forgot to address this earlier that we've had a lot of lively chatter on on livestream and we will have a period of time for addressing any questions or comments at the end so we don't want the folks out there and um and youtube-land to feel like we're ignoring them but this is for committee deliberation so with that James or Ryan we do a quick hi I'm Ryan and on behalf of the records subcommittee I want to briefly talk about our efforts today we've had several meetings since our September meeting if you recall during our September full committee meeting we introduced seven recommendations invited your feedback and comments and we've gotten some of those those recommendations have not significantly changed since that meeting and so we don't plan to go over them today we will introduce those back to the full committee for consideration and discussion at the next session today we'd like to introduce two additional recommendations that we've put together and discussed since our last meeting and I want to recognize mr. Jacobs to talk about this is James Jacob Stanford University so we did have originally it was one recommendation that we've split into two the first proposed recommendation that I'd like to hear your feedback and comments has to do with well I'll just read out recommend we recommend the archivist of the United States request that Nara ojas and do Jo IP worked together to encourage agencies to work toward a goal of collecting describing and giving access to FOIA released records in one or more central repositories in standardized ways in addition to providing access on agency websites and this was something that I believe Bobby gave us some feedback on that and so we did fold your your input into into the the new recommendation I'd love to hear your comments on comments questions folks on the phone we're not ignoring you this is obvi have a question so if it's not on the agency website where would it be are you thinking FOIA cover there's FOIA online gov FOIA gov may be an agency has its own repository those kind of places we don't we don't want to prescribe where the agency is required to post it but we want to recommend that that they work - maybe centralize those those documents this is Ryan so just to give an example the State Department has a fantastic centralized portal now we're there for your records are posted they're searchable they're accessible and I think that that's a good example other agencies that use FOIA online requesters are able to go to phone online and do searches of records in those locations other agencies have centralized locations on their websites where you can search across web so again not prescribing a specific solution or standard portal but giving flexibility and I need to give a hat tip out to document cloud and lock rock because document cloud has all of the organizations that that use document cloud have they have a database a central database where you can search for the FOIA information that those organizations news agencies etc etc have posted to a central repository and it makes discovery of FOIA information much more easy for the requester community this is Sean Moulton with Pogo I was just wondering if you guys while drafting this thought about is Mandir if there's something more specific rather than just encourage agencies I mean maybe this is something for the chief FOIA offers officers Council to do a best practice under the guidance of ojas and oip so that there will be something substantive at the end that other agencies could use as a touchstone as they as they start to try and accomplish this thanks that's a good idea we are to anyone on the phone on number eight going once going twice all right okay so the ninth recommendation we have reads the following we recommend the archivist of the United States request Nara ojas and DOJ oip to together encourage agencies to release FOIA documents to the public on their FOIA websites and in FOIA portals in both human readable and machine actionable formats to the extent feasible and that sort of comes out of the idea of you know open data and machine actionable machine readable documents has been around since well at least 2013 with Obama's executive order 13-6 42 it's also been in proposed legislation from congressman Quigley and others that has not passed but has been submitted to Congress every Congress for the last 10 years or so at least Bradlee right here so for this one I'll kind of raise the same objection I raised before this kind of thing is gonna cost a ton of money for agencies to do it's gonna be so recommendation makes it kind of squishy but finding a way to put everything out there I mean the release the one released all as we said in the last portion raises a ton of additional issues that I there's just a lot to go into with again format who's gonna where it's gonna be stored who's gonna get it if this were you know linking to Reading Room's or the information that the agencies decided was publicly released I'd have no objection to it but this one just raises a lot of red flags of me well that could certainly be a first step I think that's a really good idea to add something about information that is already released under the under FOIA on agency websites each other that's a good idea this is change Stoker let's kind of follow up and actually maybe a question to Bradley about the costs I mean I understand that it's expensive but to store documents online but that seems to be something where you get real you know basically the GP end up saving money with scale right so would the requirement to cooperate between agencies for instance to have a common portal or the use FOIA online would that go some way towards addressing the cost concerns I don't necessarily think it would because if you look at the way say the cost for FOIA online as it currently exists are spread around the agency there's an agency that barely uses it that pays a large share of the cost for that so you know it depends on on the usage and what can go on and what can go out so if it's you know based on say that agencies share of all government FOIA is if the majority of those records are requests for individuals records then that proportion wouldn't be that wouldn't be fair to the agency paying the bulk of the cost and you know just data storage in and of itself and it's got to go somewhere someone has to pay for it and unless there's something where you know Congress is setting aside this is the fund for storing FOIA records on this portal which is unlikely it's gonna be apportioned among the agencies in some form and it just it again it raises a lot of red flags like Tom did you have a comment yeah Tom Sussman it sort of brought to mind when Ron was describing the State Department I mean you know is that prohibitively expensive do we know I mean yeah because these are sort of things to say wow what a great sort of model best practices and then you turn around and sort of a few seconds later oh this is this this approach is prohibitively well it wasn't prohibitively expensive for the State Department but I guess I'd like to know more about where the line is between you know I model best practice and prohibitively expensive I just have one quick comment I wonder if this lends itself to a pilot or and then my other question was the human readable and machine actionable piece of it is that something that we sit hold out I actually you're channeling my thoughts Jason so I I did we had discussions about this and noting Bradley is concerned but it may well be that this is the kind of thing that is properly considered a pilot or or part of the vision part of whatever the final report is all right anyone else have any thoughts about number nine anyone on the phone for number nine okay hopefully we still have folks on the phone all right um any other comments overall or should we move into the public feedback part of our meeting anyone have anything else they want to okay so we are now at the juncture where we would entertain comments from those of you who are in attendance either via livestream or here in person please approach the microphones that are on each side of the room for the record please state your name and your affiliation if that's appropriate and fire away sure this is on it is we hear you ah thank you my name is Alex Howard it's good to see you all here talking about these issues because I think it is fair to say that public trust in government has never been lower and that secrecy is at an all-time high you mentioned the volume of FOIA requests well one other metric that will be useful to talk about is the volume of oil lawsuits and the number one reason to hear from the requester community is that the agencies did not respond so your recommendations here are important and I celebrate the service of the FOIA officers here and your colleagues under that caseload but I have some concerns that you're not addressing some of the direct problems with FOIA in these recommendations or acknowledge them some of the laws here now we just heard about the open government data Act which trump president Trump signed into law in January that actually mandates already that you all post information as open government data in a machine-readable format already so instead of recommending that there be another system on another portal why are you not recommending that agencies disclose responsive records on their open data websites and federates and make them searchable through Florida gov or data.gov which was just codified by the law why is the committee coming up with duplicative redundant recommendations to build a brand-new system is this an idea for Congress there is a specific question that I've raised many times before that has come up with respect to the release to one released all pilot which I commented on when I was at the Sunlight Foundation which we supported which I since petition government formerly with the cause of action institute so you're responding today is acting director that specifically it's still something that's under consideration it's been under consideration for these years is that an official response to the petition that it is still under consideration yep so I mean this is something that you know you brought up at the last meeting and a couple of other meetings really bringing it out there since 2017 and I don't have anything more than I can share about that is the committee aware that there was a cross-agency priority goal for the FOIA established at the beginning of 2017 anyone this is Sean Moulton I'm aware of the the cap goal and and saw in the previous minutes that it was raised at a previous meeting I was unaware until reading those minutes that the cap goal had been removed yeah has there ever been any official acknowledgement for why it won't be removed the cap goal from its website and refuses to acknowledge that it ever has existed not not to my knowledge and it's certainly something I'm I'm happy to look into outside of government but it is disappointing from from a requester perspective that we had a cap goal and at some point was unceremoniously removed as you all are considering recommendations to the United States government to improve for compliance may I suggest that you recommend to OMB that it takes a leadership position restores a cap wall and reminds agencies that FOIA is not something to punish senior ambassadors have been recalled from their posts abroad and make them do but actually something that is an honourable function of public service that provides the public with our records under the law and to encourage them to recognize your work and to coordinate your work and to support the United States government's FOIA portal which Congress mandated that OMB work with DOJ to create by reminding the public that it exists because I would suggest that one of the reasons we're seeing a raise in costs and that we're seeing public frustration with this is that the very top of our United States government is not reminding the public that these records exist either it proactively disclosed form or that there are better tools for getting them or that there are existing obligations that are under there now we all know that your recommendations are not being taken up across government and I'm not convinced following up on our last conversation that Congress is adopting them into statue but if you do make recommendations in this area I would encourage you to highlight the role that OMB has in getting people to follow the law and on that particular count these are wonderful technical recommendations as anyone in the committee talked about culture or politics are you going to because political interference in FOIA requests is something that was a problem in the last administration and is certainly one now are you going to recommend that FOIA officers are able to be responsive without having a pointy step there I'm used to knowing responding but I want to always be I do want to say I'll excite this is Alena it's certainly not directly under the jurisdiction of any of the three subcommittees I will say that I mean we did brainstorm at the beginning of our of this term as to how we were going to divide up subcommittees and I don't recall that topic necessarily falling neatly into one of the three so we appreciate the feedback I think we're all listening and we will discuss further I mean I think I wasn't entirely certain what you meant by culture I hear you on political and interference we have with the time volume subcommittee really looked closely and through the survey I mentioned before what is happening inside of these agencies that FOIA requests are not being responded to and I think we we truly I mean I know the word training is sort of added around and and what does that mean and how will that be implemented but I do think that that goes to that culture question to a certain extent how can the inside of an agency work better and more efficiently together to respond to FOIA requests the portal and OMB and the cap goals a significant part of the cap goal was the establishment of the National FOIA portal OMB has been incredibly supportive in our effort there not only in launching it but designating a line of business funding for it and making sure that it will continue to build in the future and not be stagnant and I'm looking forward to working with everyone here and you to find new ways to expand on that and I also open invitation Alex anytime you want to talk to oh IP come on over I'd love to hear your recommendations and that's them to open invitation for everyone thank you I just start off the bat do a search for how many US government accounts that shared vote go since 2017 you can search a URL Twitter you can search across Facebook you can search across websites see how many times the United States government has engaged the public about the thing that you built beautifully I would say with 18f and full disclosure I was involved in that right I gave feedback I was a beta tester like was the person the only person who came to your launch at DOJ so I've showed up but the government is not engaging the public about the resource it has built that would understandably lead us to wonder about its commitment to making sure that people know that these things exist so that we can save money on the front end and save your time on the back end it gets the more complex requests that we know do require the lawyers and other people to be get involved I'd say this last issue one of the previous meetings we talked about technology and the technology comes up a lot here and that's important I've spent my career in Washington covering government technology and open government the American people is getting a really poor investment for the money that we are paying I hear about the cost it would spend do you know how much expensive it is to put a spreadsheet or PDF and Amazon Web Services now it's pennies fractions of pennies cost is no longer a driving factor there you know how much we pay for small number of companies to provide software for handling FOIA requests I would say that number and those companies and getting agency feedback on the quality of the software they have to process these requests should be right at the top of your list of things to figure out get the GAO to do a study get Congress to look into it go back and audit and see how many of these very same companies were lobbying Congress to prevent agency from building something better themselves or from opening up the process we are getting a terrible return on our nation's investment in technology and this is one area what is actively hindering public knowledge now I am sensitive to the fact that you are hobbled by procurement regulations that were created to buy stuff and not software but you have resources to help you with this at 18f go find some of the brilliant people at USD s look at your presidential innovation fellows find someone to help you do this better and I hope that is you look at this you talk to the federal web Council look at project open data because I'm seeing recommendations here that look like they were from five years ago to me and I can say that because I was covering recommendations to Congress in 2014 when the foyer front came up and got undermined by the Department of Justice lobbying against him including released two unreleased all kinds of ideas with the presumption of openness I watched a YouTube stream full of people who are upset with government there's not a lot of them they left after the recess and I spend my days seeing people angry at government I would encourage all of you to be as frank and open and tough on government's performance here as possible and to continue to ask people outside of government what their experience is with your systems with your staff with your websites with access to data because it cannot stay here in this room archives has been amazing by broadcasting this online posting this information online it is a model of open government in the United States and a number of very important ways here by making this more open to the public but if the public doesn't see you grappling with the reality of FOIA as it experiences of this experience by requesters and making recommendations that are like both recognize the laws that have been recently enacted and I think gets to the core point of why people are so upset and why the requesters keep suing I'm not sure your time is being well used appreciate the opportunity to calm alright thanks Alex I believe we have some livestream comments that jesse is gonna bring up there's just one question it's from a representative from reclaim the records and the question is what powers or ability does Nara have to compel USCIS to comply with record schedules to alleviate the public use of FOIA to obtain records or can narrow suggest that USCIS amend record schedules to speed up the surrender of Records um great question and not necessarily within my jurisdiction of it's something we would need to talk about with our colleagues in the corporate records office so we'll put a pin in that and and continue the dialogue anything else on the chat okay anyone else in the audience okay so I think we're we're just about out of time or over our time so thank you everyone for being so patient I think we got a lot of work done today we still have a lot of work to do we invite everyone to visit our website and social media for more information about how you can participate and give us further comments a reminder that our next meeting is Thursday March 5th 2020 10:00 a.m. right here on the McGowan theater does anyone have any other comments or thoughts or questions looking around at the committee members Jason we talked about process and what you might say to the committee in terms of the next work product that's expected and hat in the form of it sure so I think it would actually be extremely helpful I know some of these ideas are still very nascent and we're still working on them and I really respect that and kudos to Joan for being brave enough to bring all of them to the table and we definitely will revisit some of them next time but one thing I think I would like the subcommittee co-chairs to focus on and the interim is giving some more full body experience if you will to the recommendations and and perhaps developing a written explanation of why these recommendations came about and what the rationale is behind them and what the goal is that you're trying to accomplish with each one I think that would really be helpful all right thank you again for your time and participation I know Kirsten is going to ask you again please leave your folders behind they are highly coveted value for Nara and have become quite expensive for us to procure so we would like to reuse them if there are no other questions or concerns we stand adjourned thank you

Channel: US National Archives

Views: 2,548

Rating: 4.3548388 out of 5

Keywords: US National Archives, NARA, Freedom of Information Act, FOIA, FOIA Advisory Committee, Open Government, Open Meeting

Id: NnpCpz3Kv1k

Length: 191min 28sec (11488 seconds)

Published: Fri Dec 06 2019