Freedom of Information (FOIA) Act Advisory Committee

>>FERRIERO. Good morning I’m David Ferriero, Archivist of the United States, and it’s a pleasure to welcome you here for the
first meeting of the FOIA Advisory Committee for 2018. The end of this
term of the FOIA Advisory Committee is rapidly approaching and I want to thank the committee members for generously lending your time and expertise
to this effort. This Committee is charged with looking broadly at the challenges that agency FOIA programs face in light of an ever-increasing
volume of electronic records, and charting a course for how FOIA should operate in the
future. I understand that your three subcommittees – Search, Proactive
Disclosure, and Efficiency and Resources – have been very busy over the last year and that
this Committee has a number of recommendations to consider and vote on today.
I look forward to receiving your recommendations and the Committee’s final report during
your final meeting on April 17. Before I leave you to your deliberations, I would like to take a moment to invite you
all to join us for a special event during the afternoon of Monday, March
12 celebrating Sunshine Week. This is an annual nationwide celebration
of access to public information. Since the American Society of News Editors launched
the initiative more than a decade ago, it has been embraced by journalists, librarians, civil society organizations, elected officials, government employees and concerned citizens as an opportunity to discuss
the importance of open government and its impact. It’s an initiative that the
National Archives proudly embraces, and I’m sure that OGIS will keep you up to date as the program and participants are affirmed out. Before I turn the program over to Alina, I want to recognize and thank OGIS’s Deputy Director, Nikki Gramian for her service. [clapping] After serving as an important part of OGIS’s leadership team for the last 5 years, Nikki will be leaving us later this month to serve as the new FOIA Public Liaison at NASA. And during her nearly 5 year tenure at OGIS, Nikki served as acting director during two different periods when the office was without a director and in that capacity represented NARA in front of Congress and
served as this committee’s chair. Please join me in thanking Nikki for her service to NARA. [clapping] And as I warned her she’s still in the FOIA community and we will be in touch. Thank you all for
your hard work I look forward to reading your recommendations and final report and I will
turn it over to Alina. Thank you.>>SEMO. Great, Thank you, David. Good morning everyone. Thank you again for joining us for today’s quarterly meeting of the federal
FOIA advisory committee. We have some folks on the phone participating and some of you
are watching us via live stream, and some of you actually braved the colder weather and the impending snowstorm to come out in person. So, thank you. As the Director of the Office of Government
Information Services and this committee’s chair it’s my pleasure to welcome you to the
William G McGowan Theater and the National Archives and Records Administration. This is, believe it or not, the seventh quarterly meeting of this 2016 / 2018 committee’s term and it’s our second to last meeting, so we are in the home stretch. As you all know,
members are appointed to this committee by the Archivist and were tasked with collaboratively
developing consensus solutions and recommendations that will be sent to Archivist and which address
some of the greatest challenges related to the FOIA process. Earlier this year, we all agreed on a very ambitious schedule of target dates in order to ensure that the committee has enough time to
fully consider all of the recommendations resulting from all the hard work of the subcommittees.
Thank you all for embracing this challenge. I want to thank you all for your enthusiasm, all the time and effort you’ve devoted to honing and fine tuning all the recommendations and I am very excited to talk about all of
that today. I especially want to thank our six subcommittee co-chairs who have been instrumental in guiding the subcommittees work and keeping momentum moving forward and you will hear from each one of them later in the meeting. I also just want to thank Nicki who does not necessarily like to be called out. She has been a wonderful asset to the FOIA community and to OGIS, having
served as a deputy director for almost five years. We are very excited for you as you begin this
new chapter in your life but we are really going to miss you. So, thank you. We will also be calling you a
lot. We have a number of recommendations to
get through today. No speakers so that’s good. Right? I want to be sure we have enough time for
our deliberations. I will try to move things along. We have some administrative things to go through first though, house keeping rules and a review of our general agenda and I’ll set some expectations for today’s meeting. First, let’s introduce all of the committee members participating today. Both on the telephone and those who are sitting around the table. Let’s begin with those members who are on the telephone. Hello, Sarah Kotler.>>KOTLER. Hi, this is Sarah Kotler from FDA.>>Great, good morning. Do we have Lynn Walsh?>>KWOKA. Hi this is Margaret from the University of Denver.>>Oh, hi Margaret>>KNOX. This is Chris Knox from Deloitte.>>Hi Chris>>WALSH. This is Lynn Walsh from the society
of professional journalist.>>Okay, great.>>VALVO. This is James Valvo with Cause of Action Institute.>>Hi James. Do we have–>>MOULTON. This is Sean Moulton with Project on Government Oversight.>>Do we have Logan?>>Going once, going twice… Okay. James Hershberg? Doesn’t sound like they’re able to join us right now. If they join us later, please chime in and identify yourselves So we can make sure to note that you’re coming in a little bit late.>>SEMO. Let’s begin with– and Michael Bekesha– is he — he’s on his way. Michael Bekesha will be
joining us shortly. He will be sitting right there. Let me begin with folks who are sitting around
the table. Let’s start over here with David.>>PRITZKER. David Pritzker, Administrative Conference
of the United States and on temporary detail to the Consumer Financial Protection
Board, Ombudsman’s office.>>CARR. Stephanie Carr, Office of the Secretary
of Defense Joint Staff.>>BELL. Michael Bell, Department of Health and Human
Services.>>McCall. Ginger McCall, Department of Labor.>>SUSMAN.
Tom Susman, public member.>>PUSTAY. Melanie Pustay, Department of Justice.>>LAZIER. Raynel Lazier, Consumer Financial Protection Bureau.>>[Unknown] … National Security Archive.>>Eggleston. Jill Eggleston, US Citizenship and Immigration services.>>SEMO. Okay and this is our DFO, Amy Bennett, for those of you who don’t know. Thank you
for all of those introductions. I just want to remind everyone I always have a hard time
remembering this myself. Make sure you identify yourself by name every time you speak it helps Amy keep better minutes — meeting minutes — and also remember this– I am also very bad about
this — there’s a slight delay between the time that members are going to be talking on the
phone and then when the speakers are turned back on in the room, so just pause look around
and then speak. So let’s go on to administration. As everyone knows this committee provides
a forum for public discussion of FOIA issues and offers members of the public the opportunity to provide their feedback and ideas for improving the FOIA process. We encourage the public to share their written comments and suggestions with the committee. To learn more about submitting public comments o the committee, please visit our newly updated website– ‑‑ it’s not so new any more, but still exciting, You can also provide the committee with feedback by e‑mailing FOIA‑[email protected] I believe that information is
behind me. At the end of today’s meeting we will have a time for public comments. And we look forward to hearing from any non-committee members who have thoughts or comments they would like to share. We are also monitoring the live
stream. If you have any comments you may submit them
and we 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 @FOIA_ombuds. Stay up to date on the latest OGIS and FOIA committee news, activities and events by following us on Twitter. Information about the committee including
members biography’s and committee documents and public comments are all available on the
OGIS website. We are live streaming the meeting today and we will make a video transcript and meeting materials available on the committee’s webpage as soon as possible. We generally expect meeting materials to be posted within approximately
30 days. Thanks for hanging in there while we– before we post.
We are going to take one 15 minute break today as we normally do. Hopefully it will be around
11:55 a.m. If we’re making great progress, it’ll be earlier. During the break you may wish to purchase food or
drink from the Charters Cafe located on this level. As a reminder, there’s no food or drink allowed in
the auditorium. Please note there are restrooms directly outside the Theater and another set
downstairs near the cafe. During our last meeting in October the
three subcommittees offered a preview of their recommendations to the committee and gathered
initial feedback. In the intervening months everyone has been very hard at work to further
shape and refine our recommendations. Today we are going to further discuss, finalize,
and vote on each of the subcommittees recommendations. To begin our discussion I am going to ask the subcommittee co-chairs to briefly discuss
the substance of their recommendations. I will then open up the floor to the committee for a brief period of general comments and then after general comments we will entertain specific suggestions
for edits. Amy is prepared to stand up at
the lectern and type away. So that everyone can follow along we will be displaying the text of those
recommendations and the red line edits on the screen behind me. After discussing the suggested
edits and reaching an agreement on the text we will vote on the recommendation.
In your folders we’ve included hand-outs outlining our voting procedures. For members on the phone,
the procedures were included in the email from Amy last week. Briefly any member of the committee
can move to vote on a recommendation. The motion does not need to be seconded, although it seems like that’s what we’ve been doing– so we can continue doing that. The vote
can pass by unanimous decision which means every voting member, except [unknown], is in favor of or opposed to a particular motion. General consensus, which is at least two‑thirds of the total votes that are cast or general
majority which is a majority of the total votes on a motion. In the event of a tie we
will reopen discussion and the committee will continue to vote until there’s a
majority so we might be here all night so hang in there. After this meeting, the approved recommendations will need to be combined into a comprehensive final report
on which the committee will vote during our final meeting of this term, on Tuesday April 17, 2018, so
here a drum roll please. At this time, I am going to ask for any committee members who would like to
volunteer for a small working group to help prepare and finalize the committees final
report. -I will volunteer, Ginger. Okay. Well, okay. I didn’t expect such great enthusiasm.>>SEMO. Great. Michael bell thank you. David,
thank you. Anyone on the phone? Nate is volunteering. Okay, we’re trying to keep this to about six people at the most.>>You can kick me out
>>I’m not kicking you out! I’m just letting the folks on the phone know. Anyone on the phone interested in participating
in the working group?>>KNOX. This is Chris Knox I will help.
>>SEMO. Okay, thank you Chris. Anyone else? Going once, going twice. So our working group is Ginger, Michael, David, Nate and Chris. Okay thank you very much for
volunteering and we will be in touch about logistics afterwards and figure out a way to move forward that’s logical and most efficient. So I am now going to turn my attention to the October 19th approval minutes I think
everyone has had a chance to review them and all comments have been received and incorporated. I have certified the minutes. I will now entertain a motion to approve the minutes.>>So moved.>>Thank you. Do we have a second.? Even though
we don’t need it?>>Seconded. Thank you Ginger. All in favor?>>[Group] Aye.
>>All opposed? Okay the minute haves
been approved and will be available for public inspection on the committees website. Before
we get into the subcommittees I know Melanie wanted to share a few comments before we get
started and I will also add a couple of my own as well.
>>PUSTAY. I obviously am happy to be participating in the discussion today. I wanted to let the
committee members know that because some of the recommendations we are talking about
directly or directed to OIP and the totality of the recommendations concern the work of
OIP, OIP will take no position on the recommendations themselves so I will be abstaining from the
vote. I wanted people to know that right from the beginning. What I do look forward to is
receiving the recommendations and the report at the end and incorporating that in our work going
forward. I do want to add especially that I think that the topics that have been addressed
by this advisory committee, the proactive disclosures and finding efficiencies using
technology are all areas that is OIP has been looking at for some time now. We’ve issued guidance
on many of these areas had best practices and trainings so we think these are all incredibly important.
I think the work of the FOIA advisory committee has been particularly useful and helpful to
have– help form a common understanding between our non-government members and the government members about the issues and challenges connected with those topics. So I think in that sense, this has really
been a very productive and fruitful adventure and as I said but because of the connection
with our work I will be abstaining but really do look forward to reviewing everything when
it’s finished.>>SEMO. I just want to add before we get started I have found myself in a slightly similar position to Melanie to the extent that we have some subcommittee recommendations that ask the Archivist to make recommendations for OGIS to take certain action. I do find a bit of a conflict, since I am also the director of OGIS as well as the chair of the committee I will
respectfully abstain from those OGIS specific recommendations but will be happy to vote
on the rest. We’ll see how the voting goes whether we do it in a bundle, or separately… we’ll play it by ear. So thank you for that opportunity,
so any questions before we get started? We are going to hear first from proactive disclosures, since they never seem to get enough air time. So Margaret and Sarah are you planning to, are you taking turns introducing the recommendations?
How do you want to proceed?>>KWOKA. This is Margaret. I think that yeah
we have divvied them up and I am going to talk about two of them and then Sarah is going to talk about two of them, and if Sarah doesn’t mind if I can go first I have a six hour time difference from you all now and at some point
my children will show up. So, if I can get through the bit I am going to introduce first that would be helpful. Is that alright Sarah?>>KOTLER. That is fine.
>>KWOKA. Great. So the two– can I jump right in Alina, are we good? I am going to take that as a yes. So the two recommendations that
I am going to introduce are the ones concerning the publication of FOIA logs and the one that
enumerates criteria, proposed criteria, for deciding what materials agencies should proactively
disclose, so I will start with the FOIA logs recommendation first since it’s a bit narrower
and more specific. This recommendation which I introduced a bit last
meeting flows from research that the committee took note of, including some of my own, but
many other people as well, that has shed light on FOIA operations and agency activities out
of FOIA logs themselves and then pertains to the presentation this committee saw by
Max Galka last meeting in terms where I think he very ably described the kind of interesting
things one can learn about government and transparency operations from FOIA logs and
also the difficulty in obtaining a kind of standardized versions of the logs. So this
recommendations out of the subcommittee seeks to kind of with some specificity recommend
to agencies the regular publication of FOIA logs and a particular format to the extent
the agency is able to do that. I will try to hit on the key points here and then open
it up for discussion maybe before we move onto the second recommendation.
So the first key point is that agencies should generally publish their FOIA logs to their
electronic reading room on an ongoing basis –the subcommittee recommends at least monthly
unless it’s an agency that receives a really small number of requests we chose less
than 100 per year in which case less frequent posting would be appropriate. The second portion of
the recommendation delineates the fields that should be contained where possible in order
to be most useful and these are fields that in our experience are commonly kept by, and in some cases are required to be kept by the agencies by law. And therefore, this set of fields
would also have been most useful in the kind of reporting and research that we detailed
in the background section of this memo and then the third enumerated point suggests that the logs
be posted in a more accessible format. So the one thing I wanted to highlight and then
I will open it up to any comments or questions, is that the subcommittee
itself did not reach a conclusion on the question of the fields containing the name of the requester.
We were somewhat divided I think in terms of whether all names should be included perhaps
with the exception of first party requesters who are requesting their own records which DOJ
has taken the position, or subject to privacy exemptions. Or whether it should be much more limited than that and only, for example,
commercial requesters and preferred category requester – news media educational institution—those
are the only names that should be disclosed and any individual requester or individual
non‑first party requester name would not be published. The subcommittee was in broad
agreement that those names that are are not first party requesters are not exempt under
FOIA but there was some disagreement about whether proactive disclosure was appropriate.
I’ll put that and the rest of the recommendations of the committee for discussion.
>>SEMO. Let me open up the floor for any general comments. I will kick it off by asking the
question that I have when I noted when I was reading through the other recommendations
they were in the second set of recommendations we’ll be talking about there is also another
discussion of FOIA logs. I just wondered if anyone had picked up on that or whether it
should be subsumed or whether you want to have it as a stand alone recommendation?>>KWOKA. I saw that recommendation as consistent and but I see value, and our committee saw some
value in having a stand alone recommendation about the logs because of their potential to
shed light not just on particular government actions but on FOIA operations as part of
improving FOIA as giving us more data that we can work with as we look for other kinds of improvements. I welcome the views of the rest of the committee on that question.>>I would just reiterate, my position I understand it’s a bit of a tricky question on whether requesters names should be published in FOIA logs. My position that I’ve told the subcommittee, and I’ll say it again, I’ll be happy to be over-ruled, is that the status quo should stand. I don’t think that the FOIA advisory committee should be less transparent, and the status quo now, generally, is that requesters names are published unless it is a first person, privacy request. And I think that it is beneficial we saw Max [inaudible] presentation last session, and we would not have had the insights from this data, without that information. So, I personally have made my views to the subcommittee that I don’t see a reason to roll back releasing this information.>>Thanks.>>Jill.
>>This is Jill Eggleston. Margaret, you said to the extent practical, that the information the subcommittee has recommended be included in the FOIA logs. So I am assuming that if an agency does not track or have easy access, I guess, to the information that you recommend that you’re not recommending the agency to be required to take on, I guess, the obligation to modify a system, or do special queries in order to report that information?>>Margaret did you hear the question from Jill? Margaret, are you still there?>>Hi ALINA you are the only person I can actually hear so I have not heard the previous comments. -I’m sorry, Jill was asking a question.>>I couldn’t hear any comments in the room
I don’t know if it’s a microphone issue or what.>>Jill, would you mind asking your question again? -Sure, okay. Let’s try again here.>>Can you hear her now?
>>So my question is–>>We can just hear you>>EGGLESTON: Okay this is Jill Eggleston, my question had to do with a comment that Margaret made
she said to the extent practical that agencies would be
required to provide the information or the fields identified in the logs. And so I guess
my question is just clarify to the extent practical so in other words if an agency
didn’t have the ability or didn’t currently track that information or it wasn’t readily
available to the agency without, you know, contracting out services to run special queries I am assuming
that the subcommittee would not require the agency to take those extra steps in order to
get the information?>>KWOKA. Thanks. I heard you this time thank
you. We had this discussion in the subcommittee and your characterization accurately reflects
what we intended which was that to the best of their abilities that this would serve as
a guide for agencies about what fields are useful to publish and should be published
where they can but that in the event that an agency does not have the data available
within some reasonable means and therefore we phrase number– part
two of the proposal “in order to be the most useful agency logs should contain” but that’s
backed away from perhaps a stricter language of “must at all costs contain” or something
along those lines, other members of the subcommittee have different views please feel free to weigh
in.>>KOTLER. I agree with what you just said.
Sarah.>>SEMO. Thank you both anyone else want to
comment on this recommendation? Okay does anyone have any specific edits they
would like to make to the recommendation? Amy stands ready. David go ahead.
>>PRITZKER. When I read what’s currently written for the name of the requester I am not in
favor of the advising that all requesters names be listed on the log and so I would
and to say or to word it so that something like in order to be most useful FOIA logs should
contain each of the following fields and then under C name of commercial requesters and those in preferred fee status category, period. To identify those that should be
posted on the log is not to say that you can’t post anything else so that wouldn’t undo this
status quo that Nate referred to. -Okay thank you David. Reactions to David’s particular edit that you would like to make?. I know Nate has already gone on the record to say more globally it should be third parties.>>KWOKA. This is Margaret. Now in my individual not subcommittee co-chair capacity, I will agree with
Nate. I would prefer C to say the name of third party requesters. There has been
no case law or DOJ guidance or any other authority that I am aware of that has ever considered
that there is any privacy interest in simply the name of the requester, and without you
know, any of the data that we might, you know, as individuals making a request otherwise
want to protect like our addresses or contact information, which is not included
in any event, and I have found those names to be very helpful especially because people
sometimes don’t list their affiliations but if it’s a well known reporter, reporter or
you know something like that you can often tell what their affiliation is and you know
if a request is a short request it’s not going to be a fee charged anyway. Sometimes people
won’t state the affiliation might not come with their name in the log and or not get reported
in there for the names can be quite useful in that regard. For individuals who don’t
have any public persona at least in my experience you can’t get– tell much from a name anyway. It
doesn’t really have much impact in my view.>>SEMO. Thank you for those comments. Anyone
else want to comment on David’s proposal?>>JONES. I will just have a brief comment — Stephanie from DOD — I believe most agencies already take into consideration the fact that there
are first party requesters and they don’t release those and release all others and to
have us do something different would make us less transparent than we have been.>>SUSMAN. Yeah. This is Tom. I agree with Nate I think the status quo is important.
It does seem to me that perhaps agencies ought to be urged or directed to make clear in their
websites where they provide FOIA procedures that they are going to make names of requesters
public. So that frankly if a requester wants to use a cut out or a lawyer or a FOIA firm
they can do that and maintain confidentiality which is perfectly acceptable under the process.>>SEMO. Okay thanks Tom. Anyone else want to make any individual comments either in reaction to
David or any of the other proposals? David a reaction to your own comment.
>>PRITZKER. There’s been references limiting this to third party. I don’t see
that phrase anywhere in here.>>Amy have you added ‘third party’? Would that satisfy– Would that satisfy your concerns? Okay. Alright, any other comments? Are we ready to vote on this particular– oh no, we’re not ready to vote. David.>>Comment on one more thing. D. Organizational affiliation of the requester. And I thought I heard Mark say something like “sometimes you can figure it out” But that might be entirely irrelevant, if somebody knows the request– if the agency is familiar with who the requester is but is not part of the request, not identified, seems to me that’s inappropriate to include.>>Okay, thank you for the comment. Anyone want to react to that? So you want to strike it?
>>How about adding at the end of D, some limitation if pertinent, to the request.>>[inaudible to room] KWOKA. This is Margaret –>>Okay, reaction to that comment?>>I think the thinking was just some background ‑‑
>>[inaudible to room] I don’t think they can hear us.>>but often to get [inaudible] fee status, requesters have to say their affiliation so I think that’s where it comes from.>>Yeah, but then it would be pertinent.>>EGGLESTON. This is Jill what if we were to say organizational affiliation if identified in the request?>>PRITZKER: Yes that’s fine.>>That’s good. Thank you Jill.>>SEMO: Anyone else want to comment on that everyone else okay with that change?
>>can we be heard on the phone?>>Anyone on the phone have thought or reactions
we just made two D. -Going once, going twice>>Okay.
>>ALINA?>>Are we ready to vote?>>Alina, are you asking are we going to vote on which proposal for C?
>>[on phone] I emailed>>[on phone] They’ll find out when they call a vote.
>>[on phone] I know>>I was actually going to ask for the whole proposal.>>I don’t think we have an agreement though, the way it’s written right now is… we have an ‘or’ on name of requester, so most of the comments were that the people were happy with the name
of the all third party requesters and that the agency should alert requesters if they
will publish the names. David’s proposal was that we should say published names of commercial requesters
and preferred category that so it’s not limited>>SEMO. I thought David conceded to saying third party name of requester?
>>PRITZKER. I am not sure that phrase is inserted in the right place.
>>SEMO. Okay I’m sorry. Thank you.>>David, are you okay with us cutting? Oh, that’s too big now.>>There’s a certain amount of explanatory phrasing in this, for the benefit of our consideration
now that really doesn’t belong in a final text.>>SEMO. So are you okay with cutting the part that I have highlighted right now?>>Is everyone okay with cutting that explanatory part starting with note right?>>Are we going to insert a third party requester and the rest of the note is going to be deleted?
>>PRITZKER: I would make the word name second line C plural. Names of all third party requesters
that looks good thank you.>>Thank you.
>>SEMO: Okay. Any other comments or any line edits we need to make to this recommendation?
Everyone good? All right. Are we ready to vote. I am excited about our first vote? Everybody
ready to tally. Okay so do I have a motion to except for the votes approval for the first
recommendation regarding FOIA logs that is we just finished discussing.
>>I don’t need a second but I will take it. Thank you Tom. All in favor. Aye.
>>Aye.>>Are all again what about folks on the phone
we can’t really hear you?>>Yeah.
>>Yeah.>>You haven’t been able to hear us for awhile.
>>Anyone again please say nay? Anyone abstaining?>>Okay. Thank you I believe that passed. Probably the most painless one. Good job everyone. Pat on the back. Let’s keep going. Margaret, are you going to talk about the next one is that Sarah?
>>KWOKA. Can you hear me?>>We can hear you.>>Great, yes, I am talking about the next one
which I am going to move onto the proposed recommendation for proactive disclosure criteria , but the subcommittees thinking on this recommendation was that one useful contribution we could make would be to provide agencies with a set of criteria or a framework for deciding what records
they have should be proactively disclosed. And so in doing that of course the memo outlines
some background legal requirements and various sources of hard and soft law that govern agency
decision making on proactive disclosures to date and from that grew two broad goals
that those principles have been trying to advance. And those objectives are basically to allow access to agency documents that memorialize agency action that effect the public, and then to preempt the need for FOIA requests for the extent possible –to make available affirmatively that which the public is most interested in. And so then I also– the memo also that detailed some of the other ways in
which agencies already decide to release information proactively so various public concerns that they
take into account and the memo details various examples of those and so that section really documents
how agencies already in many ways attempt to publish records that the public will
have the most interest in including government held data in various ways that the public
might be concerned. The proposal in part three has three parts. The first part seeks to further the
core objective of allowing public access to records that memorialize agency actions taken
pursuant to their statutory mandates and this gives examples but that’s not exclusive. This
part of the recommendation also lists various considerations that agencies might take into
account when deciding whether a certain category of record is amenable to proactive disclosure
and then so including you know necessary review and redaction weighed against the benefit
to the public. The second category of records are records that provide original government collected
or maintained data about anything in the world. like scientific data, census data other things that the government regularly publishes but many agencies hold data sets that could be useful to the public and they should consider publishing. This is kind of in line with many recent — where it’s not so recent government initiatives like and things
like that. Again, this part of the recommendation attempts to outline the kinds of considerations that agencies would use to decide whether a particular data set was right for proactive disclosure. and the third is about
frequently requested records. This goes beyond the statutory mandate currently in the reading
room provision of FOIA which states that an agency should publish any particular record that
has been requested three or more times under FOIA. This takes that statutory starting point
and recommends that agencies go one step further to publish categories of records that are
frequently requested by the public to the extent that it is feasible given other considerations
which are also listed in this recommendation. Those three broad categories which I think the committee viewed as in line with the proactive disclosure requirements and initiatives of government in the past but seek to advance the ball in each of those three areas somewhat. I will open it up to
committee comments.>>SEMO. Thank you very much. Margaret, I really appreciate it. I heard someone
beep in is there someone else that joined us on the phone? Or perhaps someone who dropped out and came back? Ok, no one wants to own up to it Any general comments about this recommendation? Anyone on the phone have any comments? Do we have any specific line
edits that anyone would like to offer on this particular recommendation? Again, very quiet.
>>You’ve noted that there’s a reference here in the FOIA logs which we’ve already dealt with. There’s no point in having it a second time.>>That was a question that I raised, yes.>>[on phone] I can speak to that a little bit the reason
that the FOIA logs which is notes as a ‑‑>>Right, we could just refer to the working group. Okay not having or hearing any other concerns
and any individual line edits nor general comments are we ready to vote on this particular
recommendation?>>PRITZKER. Under J there’s some indication
of variance of opinion within the subcommittee so perhaps we should address
that?>>[People speaking over each other in incomplete thoughts]>>SEMO: I think you are looking at the other
recommendation that’s just a front and a back. Margaret was talking about the one that is dated 1-16-18, proposed recommendation for proactive disclosures Criteria date. Disclosure criteria date.
>>Oh, I’m sorry.>>That’s okay.>>I’ll be glad to move it to [inaudible]>>SEMO. Okay. We have a motion from Tom if we’re ready to vote. Everyone ready to vote? Okay, all those in favor of this particular proposal from
the subcommittee on proactive disclosures recommending specific pro active disclosure
criteria all in favor say aye.>>[Group] Aye.>>SEMO. Okay, anyone opposed? Say nay>>SEMO. Anyone abstaining?>>Yes.>>Okay, I think we’ve passed that one too. Two down.>>Alright, Margaret– is it Sarah’s turn now?
>>KWOKA. Yep. Sure is, thank you.>>Okay, thank you so much Margaret.
>>Thank you Margaret. I am going to start with the proposed recommendation for agency proactive
disclosure priorities it’s the one dated January 11, 2018 it’s just a front and a back. This
lays out how our committee came up with the category that we are recommending for proactive
disclosure one of which was the FOIA logs that was also the basis of the first recommendation that Margaret discussed more in depth so we will get to that one but just to set forth a summary of our methodology
we kind of brainstormed on a lot of possible ideas for types of records that could be proactively
posted and then everyone on the committee ranked these categories of records based on the ease
with which agencies would be able to post them or on the other hand the difficulty and the
importance of posting them and everyone gave their own sort of subjective viewpoint on these different categories and then we spent a lot of time discussing what the priorities would be based on those rankings. And Amy did a lot of work making sure that was all recorded, so thank you for
that. We tried to focus on types of records–>>Hello…hello…>>We tried to focus on types of records that were somewhat cross-cutting so that they apply to a lot of different agencies and not be something that might just apply to one or two. I will go on and just list for you what we came out with as the
final list. The first of which is FACA committee materials, and we had noted that we are aware that there are already requirements for making certain FACA related material proactively available that we would be recommending
that additional or related records similarly be made proactively available beyond what we are already required post under the law. The next category would be unclassified reports provided to Congress with the caveat that these may well need to be redacted. In FOIA directories there’s a note that that might be overburdening, if possible even just a phone directory would be the minimum to be provided. For records scheduled, frequently requested records under FOIA and again, we realize that there was already a requirement under the FOIA to post records and this would be that we
this would be the idea that we would recommit to this goal as well and to the extent that there’s other
changes to that policy that may happen we would commit to
that as well. Statements of administrative policy and enrolled bill memorandum, documents of lobbying activities, FOIA lives which we discussed in depth, calendars for our top officials, contract
information which we can get back to in a minute because that’s one where there is an
open question and then the last one which was declassified information for example the
Department of State make it a priority to highlight newly declassified material that was withheld
during the foreign relations series. So, we can– unless there’s questions on one or more of the others we
can go back and discuss the open issue on the contract question which was one we debated in our
subcommittee a lot in terms of both the number of contracts that we would make public and
dollar amount what we have got in the proposal is the top ten contracts, task orders and
grants measured by dollar value and all contracts, task orders and grants
valued at more than a hundred million dollars– but as you will see from the note– there was a lot of discussion about whether
10 was the right number or something higher, and whether a hundred million dollars was too high, so we wanted
to get some input from the group on that.>>Okay, great. Thank you, Sarah. Just a point of clarification, I know you mentioned you were looking at a version that was dated January 11 and ours is the 16th, but it’s the same– right Amy?>>Yes.
>>Yeah, we’re all– the date is something we can disregard
but the content is still there. Thank you.>>Sorry about that.
>>SEMO. No that’s okay. I just wanted to clarify that. Any general comments? about J?>>Jill is shaking her head ‘no’. Any other comments on this side any comments on the phone? It seems the subcommittee is looking for some specific feedback as to– is ten the right amount? The top ten, and is one hundred million the right amount?>>Who knows, maybe after all of our back and forth and discussion we came up with the right numbers? Who knows?
>>Yes, silence is golden. So okay. I am not hearing any ‑‑
>>MOULTON. Hi this is Sean with Project On Government Oversight. I just wanted
to remark on the contracts stuff and so the idea there and was that agencies would
post at the very least their top ten if they didn’t have anything over a hundred million. If they had more than ten over a hundred million, then they’d have to post all of those. It’s kind of an either or is the idea of that
recommendation and as said we went through some different numbers and this is what we came up with. I, personally, would love to see the dollar value be a little lower but there’s a number of agencies that when you start adding
up task orders their contracts get– they have a number of contracts that go over a hundred million. It’s at least
a good place to start.>>SEMO. So, Sean, I guess I am going to ask this is
ALINA with one working mic do we want an and or added to J is that what you are suggesting?>>SEMO. I think it’s fine if we want to word smith it. I wanted to clarify in case it wasn’t
that we had it as an ‘and’ so it’s top ten contracts is sort of a minimum and anything that goes
over a hundred million even if it’s more than ten
if people would prefer it worded differently it’s fine that was the gist of what we were
getting at.>>Alright, thanks Sean. Michael?>>Yeah, this is Michael Bell. I think an “or” might change the meaning of what we had written. because then if, say you only had one contract over 100 million, then you won’t have to post the top ten. So I think the “and” is proper in that place.>>Okay, thank you.>>Any other comments on J? Is everyone comfortable with the top ten? And one hundred million is the numbers. It
seems like you did hit it right. Okay any other general comments on the rest
of the recommendation?>>I do have a question for Sarah.
>>Yes?>>And I guess I’ll need your mic again.
Or, Sarah can you hear me?>>A little bit.>>Okay, I’ll just try and speak up. This is Jill Eggleston. I just wanted to ask that this recommendation would
not require an agency to create a record that it currently doesn’t already have correct?
>>KOTLER. I would agree with that since one would not be required to release such a record
on FOIA if it didn’t exist. I don’t know that we could require it to be proactively posted.
>>Great, thank you.>>[phone] If it’s information that you don’t have I don’t know which number that you are speaking of.>>CARR. I just wanted to say for the record
that DOD would be unable to comply with item C because we have a list of names and policies
and we would not post on our website the names of and contact information for DOD personnel.>>Perhaps that’s in addition to the one caveat about burden that might have to be something that gets added in as another exception. What is the justification? Is it a privacy issue?>>CARR. A safety issue after the events of 9‑11 that became the policy of DOD.>>MOULTON. This is Sean with POGO I was wondering, do you think that the DOD would be able to
post information about contact information for offices like the name of an office and
how to get in touch with them, main phone number, or main e‑mail without identifying individual
personnel?>>That’s something we can look into.>>KOTLER. This is Sarah and I don’t work
at DOD but I would have to imagine that DOD website must have some kind of contact information tree that you know would allow the organizational
charts or something, and there must be some way to figure out who people are at DOD.>>Yes, we do have names up there and we have the names of public spokespersons and contact information for a public spokespersons.>>This is Ginger, I don’t know if my mic is on– there we go. I am– If Department of labor does in fact publish employee contact information for just routine, low level employees, I am unaware of that. I would find it very troubling if this were a recommendation that we were making especially
when you’re dealing with employees who work in the contracting area. They are going to be, just buried by potential contractors trying to contact them. Routine agency employees who work in a particular office are going to be buried by commercial contractors
who want to try to get an in on a contract. This is going to take up a lot of employee time
getting random contacts from the public. I don’t think this is a recommendation we really
want to make. I think that it’s one thing to say that the agency should be publishing
a directory of their offices and contact information for every office but publishing contact information
for every single employee I think that would set a troubling precedent and end up wasting
a lot of employee time.>>Okay, thank you. David?>>PRITZKER. I would like to suggest an amendment
to this one. I don’t understand how if it’s a great burden to furnish e‑mail addresses
is any less of and burden to furnish phone numbers. My suggested amendment is to have
the second sentence read “if for any reason an agency is over burdened by this requirement
contact information for individual offices should be provided.”
>>KOTLER. Yeah I think that’s great David. Thank you, this is Sarah.>>MCCALL. This is Ginger again. I would like to propose that we change this recommendation to eliminate conversations about employee directories and contact information all together, and instead, perhaps require agencies to put up an org chart and contact information for each office. Including a phone number and e‑mail address.>>KOTLER. What if it’s just like we are part
of HHS and we have this directory on this website for everyone in HHS where it would actually create a new burden on us– do you have to– I mean, we do put org charts up but I am sure you know the constant
challenge of keeping organizational charts up to date. Unless you meant a very general
organizational chart is there a way for people to choose which one so they don’t have to
if they’ve already got one of them satisfied they don’t have to choose the other one and
then do that?>>This is Ginger. I think the general organizational chart would be enough to satisfy what I think should be in this
recommendation but I am interested to hear what others think.
>>SUSMAN. This is Tom Susman. General organizational charts already required to be to made public– published for every
agency. So, this wouldn’t add to that. My recollection is one of the reasons
the freedom of information act was initially passed, was in response to refusal to agencies — I believe the defense department was named — refusal to provide their employee phone directories to the public. Last I looked even Labor Department employees are paid by tax
dollars and are supposed to serve the public. And the idea of feeling that they are somehow going to be burdened because they are going to be contacted by the public. I understand they may not want phone numbers for everybody and most agencies that I call rolls over to voice mail and says we will call
you back anyway which is, you know, I am sort of used to that. Actually they said we will
call you back in 24 hours but they don’t. In any event I don’t know– this whole– this
is sort of foreign to me this whole notion of somehow keeping people who work for the
government in the shadows.>>MCCALL. This is Ginger. I think that’s true
but I think for any customer service organization if you need to get
in touch with Comcast, Comcast has a host of people that you can get in touch with. If you need
to get in touch with the Target corporation, they have a customer service hotline. They are not going to publish the names and
contact information of every single employee because I think most corporations recognize,
and we as the government should probably recognize that to have everyone be open to contacts
by every member of the public who might have some free time and a telephone or free time and
a computer would potentially waste the time of people at the agency who do have other jobs to do. And
especially when you talk about personnel who are involved in contracting or personnel who
are involved in offices that have a lot of contracts you know I have been contacted by
people in the public who want me to give names of and contact information of folks in our CIO’s office. There’s a reason why that contact information isn’t necessarily up online. Because those people would be overwhelmed with contractors and other members of the public contacting them.
>>SUSMAN. This is Tom again. It seems to me, we do have some empirical basis for determining
whether they would be overwhelmed. I thought I heard a few minutes ago that HHS has it’s directory public
and on‑line. I wonder whether the employees are overwhelmed with phone calls and do I
remember we said service personnel I thought that’s what government employees were?>>KOTLER. This is Sarah, and it’s hard for me to to say what the burden is because as the FOIA office my
information is on‑line, so I can’t measure what the burden is particularly with respect
to the example you gave of people in the contract office. Now, we do get FOIA requests on a fairly routine basis for the names of people in our contracts office and anyone who owns a credit card — and we release that! — who has a credit card for the agency we release that information under FOIA because we have
to. So from my perspective and also obviously unlike people who work at Target, we are public employees who’s salaries are paid with tax dollars.
So I see Tom’s point that I do understand in certain situations, particularly like the one at the Department of Defense that there are legitimate reasons for instance, we have a directory but the names of our under cover agents are not posted in it. Because there is a safety reason for not including their names in it. I certainly can see that exception that is not covered in the way the proposal is written. That’s
why I thought that David’s proposal gave enough wiggle room so that if there’s a reason individual
names couldn’t be given that there was at least some legitimate contact information being given.
>>MCCALL. This is Ginger. I think if you want to release individual names that’s fine those are already up on‑line but before we make this
recommendation, I think that we would have to do more investigation. I mean, also for e‑mail addresses I think that we would need to
talk to agency information security folks because if you are releasing everyone’s e‑mail address
that opens up a bunch of possibilities for potential spam and phishing attacks that could create security flaws for agencies, I think we need to investigate this more before we make a
recommendation. We need to have a better sense of what the burden would be on the agencies that is created by this>>This is Melanie. We mentioned DOD employees having a safety related reason for not having their identity disclosed and all the law enforcement
offices and agencies you know have really long standing recognized protection by the courts for their
employee names again for safety. It’s DOD law enforcement personnel and the national
security personnel and intelligence community. There’s several categories of employee who
are public servants and tax payer funded in taxpayer funded positions, but courts have had no trouble recognizing they have a privacy interest in their safety.>>I’d like to change my previous suggestion in view of what has been said. I suggest now that the second if for any reason an agency is over burdened by this
requirement or a security concern is applicable, contact information
for individual offices should be provided.>>MCCALL: Could we make it broader to not
just make it security but leave the idea that there could also be a more general in some
situation as more general privacy security slash privacy. I don’t know that you could
make the argument that every single employee at DOD that their contact information is a
security. I don’t know what the burden is for a security risk. Depending on what they
do there. Perhaps we don’t want to make it so narrow.>>You don’t think the introductory phrase “if for
any reason” encompasses that reading?>>I think the word security might be limited.
That that would be the only reason. There could be other reasons we are not thinking of.
>>MCCALL. Again, this is Ginger. I’d like to register my strong objection to this. I think that it requires more investigation. Especially if we’re putting hosts of e‑mail
addresses up on‑line. Imagine you’re someone who’s trying to conduct a phishing attack on an agency. Now let’s say that there is a machine readable spread sheet that has every employees
address. You’re going to take that spreadsheet, you’re going to turn it into a simple little program script and you are going to hit every
single employee e‑mail address, you really only need a couple of people at the agency who aren’t particularly
savvy to click on your link so that you phishing attack is successful. I think this is a very problematic recommendation. And before we make a recommendation like this, we should conduct more investigation and think more about it.>>SUSMAN. This is Tom. I’m curious– most organizations including government have standardized e‑mail addresses. And so this notion, it’s okay to know their names but you don’t want to post their e‑mail addresses my machine readable computer, could generate email addresses that would be 90% accurate because some people have a one after their name or a middle in initial that others don’t use but I mean e‑mail addresses
are not that difficult and we subscribe to directories on‑line that I think provide
that information right now. Leadership directories, federal agency directories, the courts,
the Congress, you know this information you can buy so I am not sure and these most
of these firms that sell it to you keep it up by making phone calls, by connecting, by FOIA requests and things of that sort. Why would we make it more difficult for the
public to get this information than for those who can afford to buy it?
>>JONES. This is Nate Jones with a question. What’s the policy at national archives for e‑mail
addresses posted on‑line?>>SEMO. I am fairly confident we release that
information yeah. We are very transparent at the national archives.
>>JONES. Generally NARA is a transparency leaders. I say whatever NARA does is a good
position to follow.>>That’s fair. I know ‑‑
>>Sorry I would be okay. It seems to be that Ginger’s suggestion that we not necessarily reach a conclusion
on this item today, but there is empirical information which we could learn more about
and you know I think we know some now NARA one thing is three requests for the information
that you have to give us anyway and you’d have to post
it. It may be that there are a series of points and counter points that could help educate
us a little better between now do we I don’t know if the timing is if there’s a problem
but I would be prepared to vote on everything but C and hold that perhaps the first item
of our next meeting.>>I was going to suggest that as
an option I was also trying to think of language that might provide a solution and I was looking
actually to K where we start the phraseology to the greatest extent possible. I am wondering
if we could use it here as well to the greatest extent possible employee directories and contact
information including e‑mail addresses period and just delete the rest of the caveated language.>>SUSMAN. So this is Tom again. If we do that I would still add the sentence that David
suggested a second sentence that because if it’s not possible to do
individuals then still the office and contact information needs to be made public.>>MCCALL. This is Ginger. I think if we are going to say to the greatest extent possible.
I think this bears more investigation. If we want to get a consensus recommendation
for the day, I think that if we are going to say for the greatest extent possible, we should also flag the potential security and privacy concerns so that whoever it is that is implementing this which may not have any conversation with
the CIO’s office for instance they may just implement this without necessarily even thinking
about security concerns. I think we should flag that in there. That would be a responsible thing to do. I think the better thing to do would be more investigation before we make this perhaps- make a broader recommendation about employee directories and organizational charts and contact information for particular
offices but this sort of recommendation is something I think would require more investigation.>>SEMO. Thank you. Let me just ask Sarah and
Margaret are you willing to carve out C to try to move forward on the rest of the proposal?
>>KOTLER. I don’t know if Margaret is still on the phone this is Sarah. I mean I am if
there are people with concerns for obviously security and very important concern and it
sounds like even putting in language makes clear that this is in some cases not required.
It seems like Ginger’s concern is that this almost shouldn’t even be encouraged even if people were willing to do
it. I don’t profess to be and IT security person by any stretch and I don’t recall that we had
that conversation in our subcommittee so anyone who was there can jump in and correct me. I don’t see the harm
in just making sure that we are not inviting some type of harm we didn’t anticipate.>>MCCALL. This is Ginger. I do want to say I could potentially be won over on this if we do further investigation and it turns out that agencies are already doing this with no negative effects. I just think it wouldn’t necessarily be responsible for us to make a recommendation without first investigating the potential
ramifications of that recommendation.>>SEMO. So Sarah, since Margaret’s not on, I’m going to ask you as the remaining subcommittee cochair would the subcommittee be willing to undertake that kind of investigation so we
can discuss it further in our next meeting?>>KOTLER. I could talk to Margaret about how we
could do that but I will discuss it with her.>>Okay, so>>I am this is ‑‑>>How much of an investigation would we conduct? We ‘vealready heard from two major agencies today that don’t have a problem with
it and we’ve heard from two others that they have a problem what sort of investigation
would we do?>>MCCALL. I think it would be helpful to talk
to some people who know about computer security especially releasing all of the e‑mail addresses. I just think that’s a useful piece of the investigation. You know I don’t
know what labor does. I honestly don’t know what most agencies do so I think if we could
ask around to other agencies and maybe talk to someone who knows about computer security
that would be helpful.>>KOTLER. I wouldn’t be surprised to see a distinction because I know just in FOIA responses we at FDA released the names of our employees and their e‑mail addresses excepting very
limited situation, such as under cover agents or some other very specific, sensitive situations where as I know from getting referrals and consults from other
agencies, it’s very typical when releasing e‑mails under FOIA to take out
the e‑mail addresses of any employee. I have never entirely understood that so my guess
is that those agencies that won’t release employee email address under a FOIA request
are the same ones hopefully who wouldn’t put it up under directory. Now, if they’re not releasing it under FOIA but it’s up there in a directory that’s a little odd. And they’re going to have to figure out why they are doing what they are doing. This has been something that’s a bit of a distinction
for awhile that I have seen.>>Yeah, this is Ginger. I know anecdotally at least at Labor, we do not release lower level employees email addresses and work phone numbers. If it’s a higher level appointee, then we do. There is a distinction between a higher level employee and someone who is a
relatively low level attorney like myself for instance.>>KOTLER. Some agencies like mine we don’t make that distinction. If you work at FDA your e‑mail address is out there with very, very few exceptions for security reasons.>>It may be useful for us to then investigate if there is a distinction between agencies, why are some agencies not releasing these email addresses and phone numbers. Because there are some real– there could be some real policy reasons that justify that lack of release and we should know about that
before if we are going to make a recommendations I think being responsible about it and doing
that sort of investigation beforehand is necessary.>>Okay, I guess my question is do you really want to upset that apple cart, if there are agencies who are currently not releasing that information due to their policy, you know and we were– and David suggested language that would have sort of given
agencies the ability to be consistent with whatever their policy was now we are going
to go look into it and do you want and see what we find out and you know that could change
things for people down the line.>>MCCALL. I think if we are going to caveat
the language and that could potentially be that’s satisfying to at least me. I don’t
know how others feel about this or if anyone else has an objection to it. As long as we
are willing to caveat the language and make it nuanced enough then I could potentially
agree with this.>>Do you want to discuss that language now?
>>Uh, yeah I am happy to discuss that.>>David did you want to reiterate what
your proposal was?>>PRITZKER. Yes. The first sentence I would not
change unless we want to, well, thinking aloud, someone pointed out the opening phrase of K, “to the greatest extent possible.” Here’s my current proposal. C should read
“to the greatest extent possible employee directories and contact information including
e‑mail addresses, second sentence– if for any reason an agency is over burdened by
this requirement or a security concern is applicable, contact information for individual
offices should be provided.”>>Is that something people can live
with?>>PRITZKER. I am a little concerned about the suggestion of more investigation because we have a– something of a procedural
problem with the committee that decisions need to be made and public session and if
we don’t have a final text by the next meeting what are we going to do then to get
the final text?>>SEMO. To respond to that, actually there is– what the back up plan is we can have another meeting between now and April if we have disagreement on some
of the other recommendations. But I want to hear from Amy who
had an editorial suggestion.>>BENNETT. To reflect that it was both a security
and a privacy concern I think we were hearing from Ginger and others, we could say a particular concern for example– security or privacy– is applicable.>>SUSMAN. Every time the privacy crops up, it seems to me that that will swallow the whole recommendation.
I just don’t understand any government employee that wouldn’t discern that he or she has a privacy
interest in keeping the public from contacting her during the working hours. I have just the opposite
view. I think that there shouldn’t be privacy if there’s not a security, safety, you know or you know law enforcement I will list
all of those– but if it’s just a personal concern about not having being bothered by the members
of the public during working hour I will object to that.
>>What if we keep Amy’s idea of saying, for example, security but not adding in the
word privacy? Do you feel the need to list everyone’s security– just on the off chance that we’re not thinking of some legitimate– finite lists worry me a little bit. I understand that privacy is not a good one in that case, but
something like, for example, security or something like that and then it’s clear that we need a specific
reason.>>MCCALL. I would leave privacy in there. Because here’s what these words do– they ensure that the person who’s potentially implementing this policy consults with the
privacy attorney’s and CIO’s office in the agency. These words are a flag that indicate that a particular
office should then be consulted before a policy is ruled out. I would change the language
here this is just me again. To the extent possible employee directories and contact
information and I’d cut the including e‑mail addresses but that’s just me because
I don’t think we have done enough investigations to really make these sorts of recommendations. I would definitely leave privacy in. Because again, as much as Tom may object to this I know particularly at Labor and as we’ve discussed some other agencies we do believe that government employees DO have
some extent of privacy in their contact information even work contact information. You routinely
redact out those e‑mail addresses.>>LAZIER. This is Raynell. I would like to
say that can we acknowledge that both the public and everybody is still going to be
able to get this information without this recommendation and so I am wondering if it’s
probably best to just leave this out and rely on E, frequently requested records, rely on the fact that we have an obligation to post our org. charts and other supplementary information already and
then where this becomes an issue, just have folks submit a general FOIA request where
they’re interested in it. I think– I don’t know– I don’t want to attack what the committee
accomplished but maybe if we leave that out, we can go forward with the rest of it. If you are comfortable.>>This is Nate. I actually would be more comfortable with tabling it, studying it, and then either voting yes or
no. I don’t really want to have another meeting but I think if there, I think that it is a valid
question. I know Congress generally puts their e‑mails on‑line and some agencies generally do, some agencies generally don’t. I don’t– personally, I don’t want to say– I’m not ready to say it’s a bad idea or proactive disclosure. I don’t want to say that you have to do FOIA right now.>>MCCALL. This is Ginger. I’m also not ready to say that this is a bad idea necessarily. I just don’t have the information that I would need to evaluate that. And as I’m the person here who’s being a pain here, I would be happy to volunteer to help gather that information.>>SEMO. For the record you are not being a
pain.>>MCCALL. I am the person with the strongest
objection I would be happy to volunteer to help gather that information and do that work that’s necessary to gather the information.>>PRITZKER. I would like to try one more edit
to this.>>And then maybe we’ll wrap it up? Because we’ve got a lot more to talk about.>>Replace the word particular with significant.
Everything is a particular concern and replace the IE with an EG. Do we have a way to adopt this tentatively and reconsider it if investigation along the
way suggests the change is needed?>>SEMO. No, I think from a procedural standpoint
it’s probably cleaner to carve it out and vote on the rest or vote in with whatever language
we are hearing. I am hearing generally consensus for tabling say for the time being.
I am seeing nods and shaking. Let’s carve out C for the time being, with Ginger’s wonderful volunteering because she has nothing else to do. You work with Sarah, Margaret to give them some feedback.
We will figure out a way to communicate what that feedback is to the whole committee in a public fashion, and then maybe we can either work out language or it just will move forward without it. Are we prepared to vote on the rest of the recommendation carving out C and moving
on with the rest?>>Are we dropping H?>>Okay, I have a motion from Tom.>>Are we dropping H?>>Let’s just have a cross reference here…[inaudible]>>Yeah I think the vote was not to drop it. Can I have a vote on the recommendation without C in it?>>So moved.
>>SEMO. Thank you and we have two movers and all in favor please say aye.>>[Multiple voices] Aye>>All opposed please say nay. Okay any abstainments?>>Yes>>Okay, one. Thank you. Alright, I am trying to move things along. We actually have a lot more to get through. But good discussion everyone, thank you. I think there’s one more recommendation from the proactive disclosure subcommittee. Right? Sarah is this you?>>KOTLER. Yes it is and I wish I could say it’s something that I think won’t generate a lot of
interest to discuss but I don’t think that’s true. So I don’t know how you want to handle that
it’s about 508 it’s the document called Recommendation to the FOIA advisory Committee on Proactive Disclosure and the rehabilitation act section
508 dated January 16, 2018. So I can run through the document but you know be mindful of the fact that we don’t want to monopolize this entire meeting you
can decide on how you want to proceed with that. This is a separate issue that we are recommending to the Archivist to do several bulleted items that I will try to run through quickly which would be to volunteer inter-agency effort to develop standard requirements for FOIA processing tools to ensure that the tools and their outputs are compliant
with section 508. To encourage agencies not to remove documents because they aren’t compliant
we would encourage remediation rather than removal but would discourage removal in any
event and request that OGIS conduct an assessment of the methods undertaken by agencies to prepare
documents to post on agency FOIA reading rooms. Encourage OGIS to highlight the issues with proactive disclosure and 508 compliance in it’s report to Congress by recommending legislation be enacted
to clarify agency requirements under the act. Recommend that agencies conduct an undue
burden analysis by balancing section 508 and our FOIA obligations and then in summary, agencies
should already be creating 508 compliant documents before they are ever requested under FOIA or proactively posted.
Agencies should develop requirements for FOIA processing tools to ensure both the tools and their outputs are compliant and agencies should not remove these documents when they are not compliant. I realize we could probably talk about this for three days so I will leave you with that.>>Okay Sarah, thank you very much. Does anyone have any general comments?>>Sure, I do.>>Of course, thank you Nate.>>Also let me say if anyone from the committee wants to jump in on this, please feel free.>>JONES. I think– so this was a recommendations that were under drafting during the last meeting.
Part of the thinking is our first meeting as a FOIA advisory committee, we had some people from the Access Board come and I think, from my– from the minutes I read two of them said, “no never take
documents off the website,” and one of them said, “yes take documents off the
website.” It shows that it’s unclear as a FOIA transparent person, I don’t want documents down.
It’s also topical because actually according to recent reporting 92 documents on climate
change were just taken off of National Park Service website and the reason cited for this is they were not 508 compliant. And last I checked, they had not been put on. So it’s important. The general background and then we can hash through specifics I think you can trust the subcommittee
spent a lot of time trying to make these work and I think they do I don’t, I will look forward to comments. I just want to say for the record my position, and I think the position of the subcommittee, is absolutely reasonable for documents to be OCR’d when they go on a reading room. It’s–
it makes it easier for everyone. If an agency misses a character or has a typo I don’t think that’s the reason not to post the document. It still should be posted. The real problem is this example of if a document has a picture of a clown in there… What some people say is some government employee has to go through and type in picture of a
clown juggling in the document that I don’t think in the grand scheme of things is reasonable.
What is reasonable is to use the words of the rehabilitation act that say that when
there’s an undue burden agencies can post the documents on‑line anyways, so what this
recommendation essentially does is, in my opinion, says some common sense stuff and point
out how the law should actually act. I think it’s needed because I have not seen on OGIS or OIP say this. And I think this is a good [inaudible] to get some move in, but I look forward to discussing it.>>MCCALL. This is Ginger. I have a question– just
generally does section 508 create a private right of action? It does, okay. Is there potentially an issue
here if we are telling agencies not to take down non-compliant documents we’re actually opening them up to litigation?>>JONES. The language says “encourage agencies”.
>>Okay. But we could– if this is adopted that could open
agencies up to litigation and liability?>>JONES. I think lots of things that the FOIA Advisory Committee could recommend could do that. It’s possible. I think you have to– the language
that encouraged agencies not to remove documents already posted on their website. I am happy writing that whether or not it could open up agencies to litigation.>>MCCALL. But what what we would be encouraging agencies here, to be clear, would be out of compliance with the law.
>>Nope that’s not my understanding.>>SUSMAN. I think we actually– some of us pressed to make the recommendation that agencies err on the side of posting and we were I think
convinced in the end that we shouldn’t be giving legal advice, and so– but we do stress the
undue burden part without trying to explain exactly what it means because the courts
have never clearly explained exactly what it means and it’s as we heard the people from the Access Board weren’t terribly clear about what all of this means and so the idea I suppose of suggesting that the freedom of information advisory committee should opt in favor of more
information getting out shouldn’t be surprising and I suppose an agency could be sued if it doesn’t let names and addresses out of it’s employees so we wouldn’t be encouraging litigation if we accepted those from proactive disclosure. Anything we recommend there are
people who are going to sue. I don’t belief that’s a reasonable objection, but Ginger disagrees.>>MCCALL: I don’t necessarily disagree, I’m just trying to understand the calculation that we’re making here. The calculation that we’re making in this encouraging agencies not to remove documents already posted on their website because they may not be section 508 compliant. So these are documents that may not be compliant with the law. A law where there is a private right of action and the agency could potentially be sued. What is our justification for
encouraging that? It’s just openness as a policy matter?>>JONES: It looks really bad when the United States government takes documents off of its
website that are still up there anyway, and it looks even worse when the FOIA advisory board subcommittee on proactive disclosure, our biggest effort is giving more information to the public balancing
but in the end I wouldn’t phrase it as just openness, I would say letting the public have access to its information.>>MCCALL: I think the rest of this is great and I definitely agree that we should be making a recommendation that 508
not be in conflict with FOIA. But the issue is if we are encouraging agencies to potentially
not be in compliance with this law, that’s problematic. I just… I think that we can ensure– we can encourage a reconsideration of this potential conflict between 508
and FOIA but I don’t know if we want to encourage agencies to do things that might lead them
to not be in compliance.>>I hear your point, I don’t see it that way. I don’t see it– I don’t believe we are encouraging agencies not to be in compliant with 508.>>[someone on phone, inaudible]>>This is Melanie, I guess I just want to comment that– it– in a way like– it may just be helpful as thinking of this happening in the reverse– The 508 committee saying don’t worry about FOIA they only think the main focus
should be 508. You know– no one should be put above the other I think the two laws are intended
to work together and in fact when you think of 508 it’s designed to make sure that everybody
has access so it’s 508 compliance is enhancing of transparency. It’s not pulling back on transparency.>>JONES: I certainly see what you are saying
but in this specific case 508 again and again specifically is cited to not post documents
on‑line so when we have this potential release to one release to all policy agencies are
saying we are not going to do that because of 508. In a perfect world yes but in the real
world they are at conflict. I don’t want to talk for the 508 advisory committee, but I suspect they’re putting the interests of 508 and accessibility above the interest of FOIA. I think that’s good for them and good for us.>>MCCALL: I think that the rest of these recommendations strike the right balance that we would encourage a report to Congress on squaring the legislation that we would encourage agencies to conduct an undue burden balance. I mean, I think those are really excellent recommendations that strike a good balance. My concern about
private rights of action and potentially encouraging agencies to be out of compliance with the
law remains. I think that’s problematic.>>JONES. I hear you, and I can’t in good conscious say that– I can’t vote for something or I don’t want to– I personally would vote against taking out the simple statement saying don’t take documents off of websites.>>[phone] HERSHBERG. I don’t know if anyone can hear
me? But I… [inaudible]>>This is Tom. We do encourage them to re-mediate when they’re on the website. I suppose I’m just wondering if there’s a compromise in there that we could say leave them
up while you are remediating that way–>>That’s a good compromise. Or if there’s an undue burden. If you can demonstrate and undue burden don’t take the
documents down while you work on remediating. That, I think, is fine.>>This is Melanie. I just want to say– you’re still giving– it’s still– you’re making a legal judgment that that’s okay to do.
I would– I flag that. It’s the same.>>So are you telling me every agency now with
documents up there that are not accessible is violating the law. Have you made that legal decision?
>>MCCALL. What I am saying is I really think it’s– we saw from the presentations from 508, how complicated this area of the law is. I would be the last person
to think that we should be opining. I wouldn’t want to make a judgment as to whether something
is 508 compliant or not. I am raising the point for the benefit of the committee that the committee
might, likewise, not want to weigh into that.>>Because operationally what might happen, there might be a particular agency employee that sees these recommendations and decides that they’re going to implement them and maybe they don’t talk to the attorneys that would be able to make a better call on 508 compliance. And we’re making this recommendation. I just think– I don’t know, operationally I can foresee a scenario where the proper people aren’t necessarily consulted before this policy that we’re recommending is rolled out.>>You could say that about any recommendation
that we are making all day today.>>This is one where we’re explicitely saying there’s a law that you may not be in compliance. And we’re encouraging agencies to continue to be in noncompliance.>>I would suggest for the interest of time we should either see if there’s a middle road or
we should have a vote.>>Amy?
>>I was going to make an editorial suggestion that maybe we can get around this issue by removing the reference to “because they are not section 508 compliant”. I think it’s absolutely true that this subcommittee throughout all their discussions have said that their primary point is that they don’t want agencies to remove documents
from their websites. If we take it out of the first sentence, we then still have a point about
that we encourage agencies to remediate documents and then we remove it at the bottom here where
it says ‘even if the agency– even if the information posted is not fully compliant’ then we are still getting
to the heart of the recommendation without, specifically saying, you know — you shouldn’t take them down because of 508.>>PRITZKER. I would add to Amy’s suggestion
to put in boldface the second sentence there. As part of the recommendation. It strikes me that this is very different from saying to an agency that it’s okay to post non-508
compliant documents. This says if you already posted it, the governing principles should be don’t take it down but try to fix it. By emphasizing the second sentence– yeah.
We may have to work a little bit with the syntax of this to make it fit, but I think the two suggestions together would be, I hope, an acceptable middle ground. Take it out– reference the 508 compliance out of the first sentence and emphasize the second one.>>This is Ginger– oh sorry, go ahead.
>>EGGLESTON. Jill. I would suggest we take out the word ‘nevertheless’.>>Part of what I had in mind when I referred to fixing the syntax>>Yeah, I think we should also take out the end of that sentence even if the information posted is not fully compliant with section 508 of the rehabilitation act. So, we’re editing it to say ‘encourage agencies not to remove documents already posted
on their websites. We encourage agencies to re-mediate documents that are not currently 508 compliant and documents that have optical character recognition are also much easie for all individuals to search through and
utilize. We discourage the removal of information from agency websites that is useful to the public. Agencies should ensure…’, et cetera. I think
that’s the right balance. It discourages taking information down
but it also doesn’t necessarily encourage potential noncompliance.>>I can live with that but I don’t love it.>>Tom. I was about to throw out the question–
I see the difficulty of acknowledging that they are not compliant and saying they should
be left up. Given the uncertainty that everyone acknowledges as to whether something is compliant
or not. Because it is compliant if it would be unduly burdensome to make it accessible. So perhaps
just instead of because they may not be compliant because there’s a question whether they are
compliant or something to acknowledge that there may be doubt. I mean and suggesting
that although I am okay taking out references completely. That’s a punt. That’s an easy
punt.>>SEMO. So Amy would you mind reading out
loud the first two sentences are going to read?>>Sure.>>So everyone can hear and we can know what we’re voting on.>>BENNETT: Encourage agencies not to remove documents already posted on their websites.
We encourage agencies to re-mediate documents that are not currently 508 compliant. Documents that have optical character recognition are also much easier for individuals to search
through and utilize. We discourage the removal of information from agency websites that is
useful to the public. Agencies should ensure that their FOIA reading rooms include contact information that individuals with disabilities can use if they encounter inaccessible documents.>>Okay. it seems like generally‑‑>>How about making bold the rest of the second sentence?>>Oh, can you please bold the second sentence?
>>Yes.>>Alright I know this has engendered a lot of discussion Anything else in this whole proposal that
needs to be commented on or anyone have any other general comments they would like to
make? No? Any individual edits?
>>Can anyone hear me this is Jim?>>All right so I will take a vote. Can I
have a motion? Nate? Are you moving?>>I move it.
>>SEMO. Okay. So let’s take a vote all in favor of this proposal from the subcommittee
on proactive disclosures please say aye.>>[Multiple people] Aye.>>All against this recommendation please say
nay.>>Do we hear the folks on the phone?
>>I don’t think you do. No.>>No. We are trying to comment.>>I’m sorry can you say that again? I’m sorry, were you guys trying to comment? Someone who was on the phone.>>Jim hershberg, do you want to go?>>HERSHBERG. Yes, I would like to express my strong
agreement with Nate’s comment about the principle that information or documents should
not be removed from websites that have already been posted due to issues concerning 508.
I am fine with the compromise that we certainly would discourage any removal or nonposting
of information it being understood that you know all reasonable efforts to increase availability would be made. Also, as one of the few historians on the group I just want to express that this is very important for historians because historical
documents are not always easily made available for 508, but this should again not discourage posting of documents or materials.>>Okay>>This is Melanie. I just wanted to point out for the– for Amy, in the summary paragraph it repeats the third sentence from the bottom just needs a conforming edit.>>Thank you.
>>It’s got that language about–>>Right, agencies should not remove posted documents.>>Okay any other comments from folks on the phone that we missed earlier? I apologize.>>HERSHBERG. One suggestion– this is Jim again– should that line be expanded to say not only agencies should
not remove posted documents or refuse to post documents or important documents you know
prospectively.>>That’s an entirely different conversation.
>>Yeah.>>David?>>I too was going to point out that we needed a correction to the last paragraph and what I would suggest is, that the sentence under the discussion agency should not remove documented
from agency websites, but should under take remediation where needed.>>How about where needed and feasible?
>>Yep.>>Or not causing undue burden?>>Amy did you get that?>>So, David, this hopefully gets at the– and of course as a member of the working group you can play around with the wording as you like after this meeting.
Agencies should not remove posted documents but should undertake remediation where needed and
feasible.>>I think you wanted to leave in ‘from agency websites’ in that first sentence.>>He just wanted to strike–
>>FROM agency websites, gotcha–>>That do not comply with section 508.>>Right David? Okay, so let’s try this again. Any other comments on the phone? And I’m sorry I did not mean to ignore anyone on the phone.>>Okay. Any other comments from the table?>>I move for vote.>>Alright. Thank you for the motion. Let’s take a
vote on the recrafted section 508 compliance recommendations from the proactive disclosure
subcommittee all of those in favor please say aye.>>[Group] Aye>>All those against the recommendation please say nay. All those who wish to abstain?
>>PUSTAY. Here.>>SEMO. I am going to go on the record– I’m abstaining with regard to the two OGIS specific recommendations I am in favor of the other ones.>>SEMO. I am looking at the time and I know I was trying to go into get efficiencies and
resources subcommittee presentation next but I am wondering if we should take a break? It’s
11: 53. Let’s come back at 12: 03. That’s not right. 12: 08. We can resume our deliberations
and we will get through the other two subcommittees on the tail end of this. Okay? Thank you very
much everyone. Break. Just remember the mics are still on.>>Okay can I have everyone take their seats please? We’re going to go get started again. Trying to stay on schedule, I know we have two more subcommittee recommendations to go through. So hopefully everyone had a good break. Folks on the phone do we still have you?>>Yes.
>>You do>>This is Sarah>>SEMO. Okay. Thanks for hanging in there. I am going to turn it over now to Ginger and Chris to talk about the proposals for the efficiencies and resources subcommittee. Just to direct you to the handouts, they have a neatly outlined set of proposals that have charts that are very helpful so over to you Ginger, and Chris.>>I will be covering it. Chris is on the phone. So first I want to thank Amy who went through the pain staking process for making
these charts 508 compliant. (laughter) I am going to attempt to be very brief here but feel free
to subject me to the same level of scrutiny that I have been subjecting others to. I am just
going to read our recommendations but you can see there’s another column within that
chart for benefits and there’s also a section above with our observations. Just to review
the way that we came to these recommendations was by surveying agencies and also looking at OGIS assessments. So that information about our observations is included in the section above each recommendation. So, recommendations. First under the broad
heading of management of process our first recommendation is to advise FOIA offices through
best practices to work with requesters early on to clarify requests when necessary. Our second recommendation is to promote collaboration between employees to ensure coverage of cases
during periods of leave and peak times. And then we’re also recommending that teams are formed with common strengths to handle particular types of requests. Under the sub heading of
accountability we are recommending to introduce case closure, pages reviewed, and quality requirements
as part of employee performance evaluations and to track status of requests for records, ensure visibility of overdue requests and establish protocols to handle overdue requests. On the expanded use of
track sub heading we are recommending that agencies prioritize requests using separate
tracks, simple, complex, and expedited and assign resources accordingly. And that agencies encourage simultaneous processing of simple and complex requests so that processing of either category is not unduly delayed, under centralization, to the extent possible. Our first recommendation is, where appropriate,
centralized processing. Then under the heading of bringing in talent our first set of recommendations
is on the sub heading of building a career path. For that we recommend consider creating rotational programs to expose young employees to FOIA. And create a career model for information management. Under the sub heading of interns, detailees, and contractors we are recommending that agencies assign
interns or temporary staff to complete straightforward time consuming tasks such as data entry and that
contract surge support staff are used to increase responses rapidly and aid in routine review. The next heading is using technology to improve the process with a sub heading of records management and
search. There we are recommending that agencies create add-ons to IT systems for exporting
records. That agencies designate a point of contact to approve search requests within records management systems and that agencies make the end goal of responding to FOIA requests a major component
when developing the records management system and work flows. Under the sub heading of tracking
systems we are recommending the adoption of a centralized department wide FOIA tracking
platform or that agencies alternatively consolidate to fewer tracking systems where
possible to leverage and established– I am forgetting what this acronym stands for. Government
off the shelf or commercial off the shelf product across the organization. If a commercial
off the shelf product does not meet the agency’s need contract a developer to create for an in‑house system and have a developer on standby for updates. So those are our recommendations and I also want to turn it over to Amy
briefly to talk about a specific practical solution that we have been talking about under
one of these recommendations.>>BENNETT. Thanks so much Ginger. Committee members might remember doing the last meeting it was noted that FOIA offices sometimes have a hard time contacting for FOIA support because there are a lot of contractors
and it can be very difficult to find the right vendor to go through that process. Logan Perrell stepped up
for the subcommittee and he reached out to GSA to see if there was anything we could do with them to address this very practical problem. GSA got very excited about helping agencies contract FOIA
support more efficiently. They have already gone through a process of identifying vendors
under a particular general services schedule that can provide FOIA support for agencies. They are going to be going out to that list again to ensure that they have the fullest list available and then we are going
to be working with GSA on creating a FOIA contracting page that agencies can use so
that they can quickly or as easily as possible identify the appropriate vendors and bring
that support into the agencies as soon as possible.>>SEMO. Thanks Amy. I just want to ask Chris whether he has anything to add to GINGER’s great presentation?>>KNOX. No. This is Chris I don’t have anything to add. Ginger, thank you very much for presenting.>>SEMO. Okay. Sure. I just want to open up now to any general comments on this set of recommendations? Anyone on the phone? Okay. Any specific edits to any of the recommendations from the efficiencies
and resources subcommittee? That’s Amy cue to go up there. Does anyone have any specific edits? Anyone on the phone? Any specific edits from anyone
on the phone? Okay. Clearly everyone wants to go to lunch.>>Oh I just have one comment. I just wanted to thank Logan again for making the recommendation about GSA and I want to thank the members of the subcommittee– we got some really excellent edits on this, which is probably why we have less edits to do now. So thank you to the subcommittee and to Amy, and to Chris.>>Can I have a motion? Since I am not hearing any other edits or comments. Is everyone ready to vote? David?>>Yes?>>Are you ready to vote? (laughter)>>I’m just looking at copy that was distributed today to be sure that it has the last minute edits that I submitted before.>>And do they?>>Thank you Tom for the motion. I would like
to take a vote now all those in favor of adopting the recommendations of the efficiencies and resources subcommittee please say aye.>>(Group) Aye.
>>All those against the recommendation please say nay. [someone sneezes] The sneeze was not a nay from Nate. (laughter) Those
who wish to abstain?>>Me.
>>Okay. Alright, that was very painless.>>Very nicely done.>>Thank you Chris and Ginger. Alright, let’s move on. We’re going to hear from the search subcommittee. Last but not least.>>Is Logan on the phone by the way? Logan, do we have you one the phone? No?>>Okay so Nate, you are on your own.
>>JONES. Sure, this is Nate Jones. This is largely what we discussed in the last meeting with a few, I think relatively
small, tweaks and a couple of additions which I will point out. I won’t
take too long and we can discuss general comments or edits. But essentially what the search subcommittee found after researching FOIA searches was
that they are a very large part of the re– often, a very large part of the reason for FOIA delays and they’re often very inefficient. They often put FOIA professionals in a really bad spot because
non‑FOIA people don’t conduct searches well so the FOIA people can’t review the documents. And fourth, and finally, there’s not a lot of public information at all about how FOIA searches are conducted. With that
in mind here are recommendations essentially fall into two pots. One is a pot of action
items that we recommend the Archivist take action on and another is a pot of general search
recommendations that every agency should probably be doing that we recommend OGIS to,
I don’t want to use the wrong word but, not promulgate but pass around that OGIS make sure that agencies
have these general best practices on how to conduct efficient searches. So we request the Department of Justice, Office of Information
Policy collect detailed information as part of each agency’s chief FOIA officer report
regarding the specific methods and technologies the agencies are using to search for their electronic records including e‑mail. Potential topics to that– there’s a typo– that merit further attention
include agency’s procurement of technology, ability to search e‑mail, acquisition of e-discovery tools and ability of information on agency website that helps requestors understand the agency’s record keeping systems and to submit targeted requests. As you might see one of the suggestions last time was to more specifically
state things to include in the chief FOIA officer reports which actually is drawn from later on in this
report and these are– I would read them as suggested not required. Point two. Direct OGIS to examine the use of appropriate performance standards in federal employee appraisal records, and work plans to ensure compliance with requirements of FOIA. We further recommend that OGIS submit the results of the assessment and any recommendations to the President and Congress. Essentially that is trying to amplify
the DOJ’s instruction that FOIA’s everyone responsibility using OGIS’s statutory ability to report to Congress. Third. Propose that the chief FOIA office counsel seeks to establish a technology subcommittee and partnership with the federal CIO counsel to study the utilization and the deployment of FOIA
technology across agencies and identify best practices and recommendations that can be
implemented across agencies. That’s a new one; essentially we are asking the tech people
to get involved with FOIA searches. Suggested modification to the federal acquisition regulation, to require all agencies when acquiring an electronic record management software, electronic mail software and other records related information technology to take into consideration
features which will help facilitate the agencies responsibilities under the freedom of information
act to provide access to federal agency records. That’s also new; essentially it’s saying part of the reason that searches are not always conducted well
is because the software is not built for FOIA searches, so to tell the FAR to require that. To recommend that to the Archivist [inaudible] And then, moving on to the second basket of recommendations that agencies should be following So, direct OGIS to publish the following recommendations to improve the timeliness, thoroughness, and efficiency of agency’s FOIA searches. One. Increase the ability for FOIA offices to procure technology to aid federal agencies and more effectively– efficiently– conducting record searches to greatest extent as possible. Next bullet point. Ensure that agency e‑mails can be efficiently and accurately searched electronically by FOIA offices. Next. In light of the potential
legal cost of untimely or inadequate FOIA searches agencies should explore the process of
obtaining software and technology tools, including e-discovery tools to conduct more accurate and timely FOIA searches. That one was tweaked a little bit from suggestions at our last meeting. Next. Effectively explain on agency websites how agency records are maintained and ensure that FOIA public liaisons and other FOIA personnel work with requesters to submit well targeted FOIA requests. And that was added– I believe that was added due to the comments from our last meeting as well. So with that I welcome any of my subcommittee
members to pitch in and clarify anything that needs clarification and then welcome to discussion.>>SEMO. General comments? On the phone do we have any general comments? Okay. Do we have any specific line edits that anyone would like to suggest?>>JONES. I don’t know if this is appropriate, but I did see typos. I don’t know if enough to merit a drafting committee to do a copy edit.>>Okay. We can do a copy edit. Sure.>>This is Ginger. I have a question. A lot of these have substantial overlap with the efficiency’s committee. Is part of the working group’s job to sort of reconcile
things?>>SEMO. That was our vision that the working group would try to integrate the recommendations of all three sub committees. And to the extend that there’s overlap, bundle them, address them and
layout the recommendations.>>I find it very encouraging by the way there’s
so much overlap that we have come to that amount of consensus.>>Thanks, I agree. David do you have any comments? Line edits? (laughter)>>I’ll second what Nate said about typos in
here.>>Okay, thank you. Alright. Last opportunity for folks on the phone. Anyone have any comments or suggestions?>>I do have a procedural question–>>Can you speak into the Mic?>>I do have questions somewhat related to the
procedure after today which is to get some sense from either OGIS or from the committee as to how much of the explanatory material that these various subcommittee reports have presented should be incorporated into
the full committee’s final report. Part of the reason for this is that some goes into detail about
what we heard from whom and others just talk about general principle. So…?>>SEMO. Does anyone have any thoughts on that?>>I appreciate any sense of the committee
or direction from OGIS on how to handle that.>>Tom?>>SUSMAN. This is Tom. Because of the incredible
detail of note keeping and recordkeeping and transcripts and minutes et cetera there
is a rich legislative history with this advisory committee. I think to– for purposes of gaining the attention
of readers that less maybe more in the final that is focus on the recommendations and the
reasons and then go from there. I was going to note earlier especially in the FOIA logs
I mean there’s actually a lot of personal references Margaret says I did it because
it was taken from one of her memo’s obviously those sorts of things we can get a much more
lean final recommendation. I’m hearing Tom volunteering for the working group. Did anyone else hear that? No. I think we can leave it up to the working group to talk about. We
had talked about the fact that we would provide a background section and
certainly some of the subcommittees wanted to talk about the methodology that they used to arrive
at some of the conclusions that they arrived at. I am open to ideas and suggestions. Does anyone
have any other thoughts? How much or how little should be in the final report?>>JONES. I just have a procedural question and other issue. I mean I understand that
we are abiding by the rules but it seems that the rules are a bit antiquated to me for me it would make more sense to discuss our potential tweaks over text electronically. I am a bit worried that
we are going to do a lot of energy drafting this final report and then just to clarify
it, it’s we can not discuss it until the day of sitting around the table. It’s impossible
to circulate and discuss it before that that’s inefficient. My question was, is there a way around it and I am hearing no.>>I don’t think there is. Amy?>>BENNETT. So the subcommittees certainly can meet and discuss. We could always if you wanted to suggest edits you could send them to us and
we can share them with the full committee. But all deliberations must be open to the public.
If you wanted to if you like how David provided us with edits then we are able to share with
the committee today we can take edits on the full committee report and discuss those at the final meeting, but all deliberations must be open.>>Okay.>>Would the committee be open
to posting a draft on the website?>>Yes.>>Yeah>>BENNETT. As soon as we have a draft that the working group is happy with sharing. I
am happy to put that on our website and all of today’s recommendations are already on
the FOIA Advisory Committee website. We post things as soon as possible.>>So I am hearing that the solution is for the working group to get their product
done quickly and get it on‑line and have people prepare their edit tots present at the meeting.>>SEMO. I just don’t want to hold out the possibility we absolutely need to we could
try to have an interim meeting. I know that folks have a really busy schedule and it would be a litle tough.
We could try to do it if really needed. So look at your March calendars and let me
know what might work. Okay. So back to the search subcommittee. I don’t want to take the spotlight
away from Nate. Any other general comments or specific line edits? I didn’t hear any.
Folks on the phone? Quiet I am assuming everyone is good. Can I have a motion?>>So moved. Thank you. Let’s take a vote. All in favor of the search subcommittee’s recommendations please say aye.>>(Group) Aye.>>All those opposed please say nay And folks on the phone, we didn’t hear your vote.>>Aye.
>>Aye.>>I guess we’ve lost a couple people on the phone.>>And Melanie?>>Abstaining>>Abstaining. I just want to
add I will be abstaining as well with regard to matters concerning OGIS and actually for that matter
I have to say also regarding the chief FOIA’s officer counsel since Melanie and I are cochairs
of that. I am in favor of everything else Okay. Any other homework that we want to talk
about amongst the committee members in terms of how we go forward? No? Okay. At this point we are just about ready to turn to public comments. I know that Melanie wanted to share
some updates with everyone so I will give her the floor.>>PUSTAY. Thank you.>>Sure.>>I thought I would be proactive about something that I typically get a question on in this forum and that’s the release to one and release to all projects.
I don’t have a substantive update to give you at this point but it remains under review and I just continued to extend my appreciation to everyone’s
patience. I think in some ways what happened– the discussion we had today on proactive discussion, again illustrates
the difficult issues that are associated with proactive disclosure and that’s what we’re working for. So, working through that we continue to appreciate your patience and certainly I
look forward to being able to close the loop on this. Believe me more so than anyone since this was a project that we’ve been spearheading for a long time. I have a bonus update. That’s
on the national FOIA portal because we are really getting close to being able to go live with
our first iteration of the national FOIA portal so we are obviously really excited. We worked
with lots of people here along the way on development of the features and functionality
of the portal. We are in the final testing and configuration stages right now.
We are really once we go live with the portal of course then as people start using
it. It will really really be helpful to us to continue to get feedback both from agencies who are
receiving requests and of course from the requestor community on how their experience is in making their request because this is definitely something that we view as a project that will work on
a continuum and we want to continue to add features and functionalities as we go along. Thanks.>>SEMO. So I want to let folks come up to the mic and ask any questions or make any
comments now is the time. I also need to invite my wonderful colleague Sheila who has been kind
enough to be monitoring the live stream. It’s been a very busy live streaming day. Folks haves
been making a lot of comments. Sheila was going to summarize the gist of most of them. So… yeah there’s no mic. Is there a mic over there?>>PORTONOVO. As Alina said, the live chat has been pretty lively today. Some of the topics that generated the most interest were about the FOIA logs. Commenters wanted people to disclose as much as possible of the FOIA logs or agencies to disclose as much as possible. Regarding the disclosure of government employee contact information, we had comments on both sides of that debate. People who thought that they were in favor of disclosure as well as not in favor because of security reasons. There
was interest in 508 in just the way that it was being discussed and the way that people
were analyzing the risk and not the risk of keeping that on the website. And then a
lot of comments about people just enjoying watching this meeting (laughter) and hoping and also
enjoying that in general and hoping to visit NARA someday.
>>SEMO. Oh that’s great! They are welcome to come. Thanks Sheila.>>HOWARD. Okay I have one step. Alex Howard from the Sunlight Foundation. As one of the commenters on there and someone who shared your live stream again we would like to commend the Archives both for this and your efforts
in open government as people can see in your open government plan including the commitment from the AOTUS over the past several years and indeed for your FOIA pages witch do in fact list people’s names, their phone numbers and email addresses. And have there been any negative consequences here at NARA for posting that contact information?>>Not that I know of.>>We would love to hear about them because our observation is that doing so, saves the public, who this is for, frustration and our feeling on this count with respect to providing public information for people who are entrusted with providing people with access to public information should be public. If these people are subject to phishing attempts or other compromises then they should be trained and given better tools so that inbound filters that are standard in
commerce and the public eye elsewhere are given to them. If they are the subject of attempts
in greater frequency then they should be given better tools but removing that information
from public access as has happened in certain agencies this past year is not something necessarily Sunlight supports As you may be aware the Energy Department used
to have a directory of people on it’s website including scientists that members of the public
could contact or other people doing research enabling better public understanding of publicly
produced research data– other statistics. Certainly, we feel it’s a best practice for FOIA officers and others to connected
the public to these people not to remove their contact information from public access as
indeed occurred there. We understand these are nonbinding recommendations. We also understand
in the past these recommendations have not necessarily been given the full attention
or implemented the agencies in the way that any of us would hope. We are extremely excited
that you passed forward and move these forward and hope they get more attention and we will
be doing what we can to give them that. I’m very grateful that you proactively brought
up the issue of this release to one release to all policy for those who are unfamiliar
Cause of Action, James Valvo, and Sunlight officially petitioned the White
House Office of Management and Budget and the Department of Justice to release the FOIA
policy that President Obama can we say ordered you to release one year ago at the beginning
of last year. As of yet we have received no official response from the Department or White House,
so they have talked to members of the media who have brought this up, so today it’s great
to get that in person but I would note that our letter and petition has never even been acknowledged from agencies in simply asking you all to put up a policy that we all worked on together.
It would be unfortunate if it has to come out and perhaps ironic through a FOIA
request for lawsuit. It’s exciting to hear that this portal is moving forward and I certainly
hope to see the recommendations that have been brought
up here applied there particularly with respect to FOIA logs that came up here. It’s our
position that that’s something that should be ongoing not released once a year. I would note that
as we’re taking a snapshot of where open government stands in this administration we
have been calling agency FOIA officers this month and these numbers that have been posted
up here are going straight to voice mail. We are not hearing back from them. Our e‑mails
and calls regarding open government contacts are being ignored or told we are not being
monitored. Our request for FOIA statistics from last year from the Department of the Interior was met with
an instruction to FOIA them. The state of this is not good. The attention it is receiving
under this administration appears to be one of either benign neglect or even malignant
intent. I bring up one specific question that I would love to hear your opinions on with
respect to recommendations. Is it appropriate to assign senior civil servants in agencies
to handle FOIA requests and do so in a way that indicates that it is a punishment or a demotion
as opposed to someone contributing to efforts addressed public requests for public information? I am referring here to the state Department. I’m sure you have all seen the reports. You’ve seen people in government knocking the proud work of FOIA civil servants. And I have not heard a defense of the role or of the law or responsibilities that everyone has
to do it. I am curious today if you all would like to comment on that the role of FOIA and
the role of people in your roles who are doing this work because we are very grateful for
it. It’s our roles as watchdogs to advocate, criticize constructively. We really are grateful
for those efforts and we’ve noticed the void of protection and defense of their role in
this administration and I hope it doesn’t continue.
Thank you for the opportunity to ask a question and raise these issues.>>SEMO. Thanks. We really appreciate that. Anyone want to react or we will just let it
sit and digest.>>PUSTAY. One thing that comes to my mind
of course Alex knows I am a proud advocate of FOIA professionals across the government.
One of the things that we did that’s very apropos when you were mentioning March I thought
of sunshine week. Can we have an advisory meeting during sunshine week? No, we have
all of our events. One of the things DOJ has done for the past couple of years have– we give
out awards during our Sunshine week events for notable contributions by we have had a whole bunch of different categories
new employees working with FOIA teams and lifetime achievement award. It’s one example
of something that we have done at my office to help give public
recognition to the really hard difficult work. I think this committee itself with all the
work and all the discussion is very obvious how much we all recognize and appreciate the
work that goes into administering the FOIA. It’s one example and I know agencies do– other agencies do similar things.>>Thank you.
>>JONES. I will answer the specific question Nate Jones. So when I read that people are going on
record to prominent newspapers saying that FOIA office is a joke or going to FOIA is
like being sent to Siberia and somehow saying that allowing the public access information
what the government is doing is not as important as another job it made me really angry. I’ve been
thinking about it and stewing about it. So, thanks for the question Alex. A couple of quick thoughts about it is I really would have liked to see the FOIA ombuds office or Department of Justice go on the record or
write an Op Ed or speak more forcefully saying FOIA professionals are government treasures
and maybe it’s, maybe you are not allowed to do that. I wish you were. And if you are
not allowed to I know that Congress is allowed to so I also was upset that no Congress people
went on the record, so I guess this is a small step in that direction. Two other things that– to rather than just kind of defend and talk about anger that can further fix the problem that we’re working towards, but we have a long way to go. Further instill, I think, two things. I think, one, we have to further instill that FOIA is everyone’s
responsibility. It would have been good to scold the person saying that it wasn’t. And two, I think that FOIA professionals need to continue to develop and boldly develop an inspectors general mentality.
Both laws came about the same time. I don’t think you would ever hear someone disparaging
and IG’s office. I think that’s something that FOIA officials should aspire to and realize
that they’re– that the freedom of information is a strong law that they can follow no matter what administration is in power. FOIA is the FOIA period. I will leave it at that.>>SEMO. Okay. Thanks Nate. Anyone else want
to add their thoughts? Anyone on the phone? To the extent anyone has remained on the phone.
>>I am here no comment thank you.>>Thanks Sarah>>SEMO. Okay. Unless anyone has any other
procedural issues that they want to talk about I think we can wrap this up and everyone can
go to lunch a little bit early. I want to get credit for finishing 12 minutes early. Again we invite everyone to go to OGIS’s website and social media for more information about all the exciting events that happened today. We are going to have our final meeting on Tuesday April 17, right here in the McGowan. Unless there are any questions or concerns we stand adjourned. Thank you. Thanks Tom, I really appreciate your time. [General chatter]

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