FOIA Advisory Committee Meeting - March 3, 2021

00:03 - And thank you for joining today’s FOIA Advisory Committee Meeting.

00:07 - Before we begin, please ensure that you have opened the WebEx participant and chat panel by using the associated icons located at the bottom of your screen.

00:17 - Please note, all audio connections are muted and this conference is being recorded.

00:22 - You are welcome to submit written questions throughout the session, which will be addressed at the Q & A part of the meeting.

00:30 - To submit a written question, select All Panelists from the dropdown menu in the chat panel, then enter your question in the message box provided and send.

00:39 - If you require technical assistance, please send a chat to the event producer.

00:46 - With that, I’ll turn the meeting over to David Ferreiro, Archivist of the United States.

00:52 - Sir, please go ahead. - Good morning and greetings from the National Archives Building on Pennsylvania Avenue in Washington, DC.

01:02 - This Friday marks one year since the Freedom of Information Act Advisory Committee last met in person in this majestic building.

01:10 - Elbow-to-elbow bumps and toe-to-toe taps replaced handshakes, hinting at what would occur just one week later, sudden physical distancing that forced us to work from home or, as some say, live at work.

01:24 - These are interesting and difficult times for all of us.

01:28 - March 3rd marks the 150th anniversary of Congress passing legislation to reform civil service, creating a system in which civil servants are hired based on merit rather than politics.

01:41 - Today, there are roughly 5000 full-time FOIA professionals across the government, civil servants, and contractors who work to administer and respond to FOIA requests without regard to politics.

01:54 - Their work is more challenging than ever in these times of misinformation, political division, and public health challenges.

02:01 - I wanna thank the Committee for working so diligently and thoughtfully to strive toward a FOIA process that works better for all, FOIA processors and requesters alike.

02:13 - The Committee today is exploring an idea that several Committee members began discussing near the end of the third Committee term, where the FOIA should apply to legislative and judicial branch records.

02:24 - There’s no easy answer. Committee members, I appreciate your curiosity and thoughtful deliberation about this and other important FOIA matters.

02:33 - Finally, I’d like to invite all of you, Committee members and the public, to the National Archives First Virtual Sunshine Week Event, from 1:00 to 3:00 PM on Monday, March 15th.

02:44 - Please sign up via Eventbrite or tune in to our NARA YouTube channel.

02:50 - Senior U. S. District Court Judge Royce Lamberth and friends of the National Archives will headline the program.

02:57 - Judge Lamberth is no stranger to FOIA, having ruled in hundreds of cases related to FOIA over the years.

03:03 - And we’re delighted that he’s joining us to observe Sunshine Week, an annual nationwide celebration to access public information.

03:13 - Our event also will feature a panel titled U. S. Transparency Landscape, Where Do We Go From Here? FOIA Advisor to the Advisory Committee, Alexandra Perloff-Giles, is one of the panelists.

03:29 - Details are at archives. gov/ogis. I hope to see you there.

03:37 - Please continue to take care and stay safe.

03:40 - And I now turn the meeting over to the Committee’s chairperson, Alina Semo.

03:45 - Thank you. - Great. David, thank you so much.

03:50 - We really appreciate you being here. And if you can stay around for a little bit, that would be great.

03:55 - If not, we understand and have a really good day.

03:58 - - [David S. Ferriero] I will be in and out.

03:59 - - Okay, terrific. Good morning everyone.

04:03 - As the Director of the Office of Government Information Services, OGIS, and this Committee’s chairperson, it is my pleasure to welcome you all to the third meeting of the fourth term of the FOIA Advisory Committee.

04:14 - I hope everyone who’s joining us today has been staying safe, healthy, and well.

04:19 - I would like to re-introduce to everyone the Committee’s Designated Federal Officer, DFO, Kirsten Mitchell.

04:26 - Kirsten, are you waving? Thank you.

04:29 - She’s gonna help me stay on track today as she always does.

04:31 - And I look forward to a great meeting today.

04:35 - I want to welcome all of our Committee members, express my gratitude for your continued commitment to studying the current FOIA landscape and developing consensus recommendations for improving the administration of FOIA across the federal government.

04:49 - We are all here today, except for Linda Frye from Social Security Administration.

04:54 - She could not be here today but hopefully she will be joining us next time.

04:58 - And Kirsten has advised me that we can dispense with the roll call so I’m just saying a hello to everyone.

05:05 - We definitely have a quorum, so that’s all good.

05:08 - I also want to welcome our colleagues and friends from the FOIA community and elsewhere who are watching us today either via WebEx or in a bit delayed fashion, NARA’s YouTube channel.

05:20 - We have a busy agenda today, as we always do, so I will do my best to make sure we stay on track so we can end on time.

05:27 - And despite today’s ambitious agenda, we will leave time at the end for public comments and we look forward to hearing from any non-Committee participants who have ideas or comments to share.

05:38 - We will open up our telephone lines for the last 15 minutes of our meeting today.

05:43 - OGIS staff is monitoring WebEx and YouTube chats, so feel free to chat at any time, if you have questions or comments.

05:52 - You may also submit public comments, suggestions, and feedback at any time by emailing foia-advisory-committee@nara. gov and we will post them on the OGIS website.

06:06 - So some housekeeping rules for today, meeting materials for this term, along with members’ names, affiliations, and biographies are available on the Committee’s webpage.

06:17 - Click on the link for the 2020-2022 FOIA Advisory Committee on the OGIS website.

06:24 - Please also visit our website for today’s agenda.

06:27 - We will upload a transcript and video of this meeting as soon as they become available and all submitted comments will also be posted on our website.

06:37 - Reminder that the FOIA Advisory Committee is not the appropriate venue for concerns about individual FOIA requests.

06:44 - If you need OGIS assistance, you may request it by sending us an email at OGIS@nara. gov 161 00:06:51,625 –> 00:06:56,236 so we ask that you do not go through our Committee’s email.

06:56 - Since March of 2020, this Committee has met virtually a few times now, so we’re getting better and better at it.

07:02 - The virtual environment has many advantages, as we’re all learning, including what I keep referring to as business on top and a little party on the bottom.

07:13 - And the disadvantage for me, however, for me and Kirsten, is that we’re not always able to see Committee members raising their hands or eagerly leaning forward to ask a question or make a comment, as we would normally if we were all in the McGowan Theater.

07:28 - So I will be doing my best to monitor Committee members’ non-verbal cues during the webcast, but don’t be shy.

07:37 - Send us a chat or just violently express yourselves with hands or standing up and down if you wanna ask a question or make a comment.

07:47 - But please be respectful of one another. Try not to speak over one another, although I realize that sometimes is inevitable.

07:56 - I do wanna encourage Committee members to use the all panelists option from the drop-down menu in the chat function, if you want to be recognized, or you can chat me and Kirsten directly.

08:07 - But please, in order to comply with the Federal Advisory Committee Act, please keep any communications in the chat function to only housekeeping and procedural matters.

08:18 - No substantive comments should be made in the chat function, as they will not be recorded in the transcript of this meeting.

08:25 - If you do need to take a break, which is understandable, please do not disconnect either audio or video of the web event.

08:31 - Instead, put your phone on mute and just simply close your camera.

08:36 - Send a quick chat to me and Kirsten to let us know if you’ll be gone for more than a few minutes and join us again as soon as you can.

08:44 - We have noted a 15-minute break at 11:00 AM on our agenda.

08:47 - We may break a bit earlier or a bit later, depending on our pace today, but we’ll definitely give everyone a break.

08:54 - And an important reminder, please identify yourself by name and affiliation each time you speak.

09:01 - I know it’s hard to remember that. I often forget that as well so I’m equally guilty.

09:05 - But it does help us down the road with both the transcript and the minutes.

09:11 - Kimberly Reed, who is helping us out, our National Archives colleague, is going to express gratitude for that, I’m sure.

09:19 - All of the aforementioned and transcripts and minutes that I mentioned will be posted on the website, all required by the Federal Advisory Committee Act.

09:28 - So the first thing I wanna turn to is to approve our meeting minutes from December 10, 2020, our last meeting.

09:38 - But let me just pause for a second before I go on to the minutes.

09:42 - Does anyone have any questions so far? Is everyone okay? Okay, I’m not seeing anyone violently raising their hands.

09:50 - Okay, so let’s turn to the minutes. I did email them to everyone earlier this week.

09:56 - I pretended to be Kirsten. I failed miserably.

09:59 - I did not change the subject line of my email to Wednesday, instead of Thursday, so I probably confused some people.

10:05 - But in any event, I did circulate them. I hope everyone has had a chance to look at them.

10:10 - Kirsten, I will certify the minutes later today to be accurate and complete, which we’re required to do under the Federal Advisory Committee Act within 90 days of our last meeting.

10:21 - Does anyone have any concerns, comments, questions about the minutes? - [James R. Stocker] Yes, right here, I do.

10:30 - - James, yes, please. - [James R. Stocker] Sorry, let me just say that on, and perhaps I should submit this in writing, but on page eight, I think under the summary there may be a possible mistake.

10:41 - Where it says, sorry, excuse me, the top of page nine.

10:45 - It says, the second item is how agencies can proactively classify documents to better meet the needs of the community.

10:50 - I think that should be declassify documents.

10:54 - - Okay. - So that’s one. And I could check with Kirsten about this but that’s probably the item that we were considering looking at at the time.

11:05 - - Okay, duly noted. Kirsten, we got that, right? Yes, we have made that change.

11:12 - Thank you, James. Is there anything else that we missed? Okay, all right, great.

11:18 - This is exactly why we ask everyone to look so we wanna make sure they’re accurate.

11:22 - So other than that change, which we are now making, that James just suggested, do I have a motion to approve the minutes in their form, with the change that James just asked for? - [Tuan N. Samahon] This is Tuan.

11:36 - I so move. - Thank you, Tuan. Do I have a second? - [James R. Stocker] Second.

11:42 - - James, thank you for the second. All present in person and virtually who are in favor of the minutes, please say aye.

11:51 - - [All] Aye. - Okay, is there anyone opposed? No opposition heard, the minutes are approved.

12:01 - We will make that change James suggested and we will post those online as soon as we can.

12:07 - So before we turn to the next agenda item on our agenda today, the subcommittee report, I have just a quick update or two.

12:18 - Since we last met, on December 10th, we have advanced several prior FOIA Advisory Committee recommendations and updated our Committee recommendations tracker accordingly.

12:27 - So hopefully Mr. Ferreiro is hearing this and is excited about the fact that we’re making some progress.

12:34 - Earlier this calendar year, my OGIS team launched five cross-training programs in which professionals from other National Archives offices are assigned to OGIS on a part-time basis to work on completing tasked FOIA Advisory Committee recommendations, so we’re very excited about that.

12:51 - The projects include compiling briefing material from new senior leaders, working with the Office of Information Policy and NARA’s records management experts on updating training material, reviewing information agencies make available on their websites about the FOIA filing process, and reviewing agency performance plans to see if FOIA is included as a criteria.

13:17 - In the interest of time, I won’t mention other updates, but I do wanna encourage everyone to check our dashboard on our website.

13:23 - We’re very excited to have previewed our dashboard and keep it up and running and we’re gonna be updating it as needed, so please stay tuned for updates.

13:36 - And just a quick thank you to all of our cross trainees.

13:39 - We really are very grateful for all of their help.

13:43 - So we are right now at almost 10:20 AM. I think we’re two minutes early.

13:49 - But I’m now ready to turn to our subcommittee reports for today.

13:54 - We will hear from each of our four subcommittees.

13:57 - I do want to point out that we have recently posted mission statements for all four of our subcommittees, Classification, Legislation, Technology, and Process.

14:07 - They’re all available on our main OGIS web page.

14:10 - If you scroll down to What’s New, you will see them all there.

14:14 - So thank you very much to all four subcommittees for getting your mission statements finalized and approved by your subcommittees.

14:22 - I am very grateful for that. So any questions before we proceed to hear from our subcommittees? Oh, no questions.

14:33 - Okay, everyone looks excited. Great, okay.

14:36 - So first on the agenda is the Process Subcommittee.

14:39 - Michael, unfortunately, you don’t have Linda [Frye] with you today but I know you’re gonna do a great job of giving us an update on the work of your subcommittee.

14:47 - So Michael, over to you. - Yeah, thanks so much and I’m very excited ‘cause it’s perfect timing.

14:53 - I just finished my breakfast. But we’ve had a really, really wonderful group of folks from both the requester and the processing community on the FOIA Advisory Process Subcommittee.

15:05 - What we’re really investigating is the implementation and impact of prior recommendations, to kind of start things off.

15:12 - The FOIA Advisory Committee has been going on for a number of sessions now.

15:15 - And so what we wanted to do was see have previous recommendations had the impact that we hoped they would and where can we steer our efforts to maximize impact and positive reforms within the FOIA process for all the constituencies? I do recommend checking out the OGIS dashboard, which has been tracking the implementation of prior recommendations.

15:41 - It’s a really wonderful resource and it’s been really helpful for us as a Process Subcommittee.

15:49 - It’s been really great seeing all the ways that prior work has slowed through the creation of new processes, improved acknowledgement letters, and much, much more within the FOIA process.

15:59 - As part of our information gathering, one of the things we’re doing is we’re coordinating with groups on our requester community survey that we hope to go out during Sunshine Week to help get insights into what’s the perception of these changes and what areas the requester community feels have not seen improvements.

16:19 - We’re also working on bringing in guest speakers to our subcommittees to hear about how other jurisdictions, including state and local jurisdictions within the United States, as well as the other international FOIA experience and right to know experience in other countries.

16:36 - We’re also going to be inviting in some agencies that process requests so that as the Process Subcommittee, we can really understand the internal lifecycle of requests and identifying challenges that they have.

16:47 - We really wanna make sure we include both large and small agencies because each agency has its own unique challenges and opportunities for improving FOIA processes.

16:57 - We’ve also been really excited to coordinate with other subcommittees on a variety of key areas, such as the use of technology, ways to think about litigation, and other areas where process intersects with lots of different other subcommittee work.

17:12 - Some things that we could use your help on, whether you’re another member of the Advisory Committee or an attendee at today’s session, from either the requester or the processor community, what questions do you think we should ask the FOIA requester community? We are trying to get the survey together in the next couple of weeks so that we can send it out and promote it during Sunshine Week.

17:35 - And we’re really interested in what are some questions we can ask that can help highlight frustrations, challenges, and opportunities within the FOIA process.

17:44 - Our hope is that we can use these survey results to guide us to make sure that we’re processing on the most important, most impactful areas of the FOIA process as well as helping focus future reform efforts.

18:00 - One other thing we’d love is examples of who gets the FOIA process right.

18:05 - We’d love to hear examples, both within agencies that maybe you have interacted with in the past or maybe you’ve worked at in the past that had a really great FOIA process that left everybody satisfied and built a healthy culture of transparency.

18:19 - But we’re also interested in the international experience.

18:23 - So in other countries, what can we learn from their other laws? What can we learn from other processes and setups? And so if you say, you know of other places that are doing public records and transparency really right, we’d love to hear those examples.

18:39 - And then we’re also interested in folks who’ve been pushing for these reforms.

18:45 - Maybe you were involved in pitching or helping get a prior recommendation implemented.

18:51 - And we’d love to hear reflections. I think one of the things is on the requester community, I feel like there’s not enough discussion about what has positively changed in the last few years.

19:01 - And so maybe that’s because FOIA requesters are just a pessimistic bunch that always wants more.

19:08 - But also I’d love to hear if you’ve pushed for a change or you pushed for a prior recommendation and it was implemented and maybe it didn’t work out as you had hoped or you expected.

19:20 - That kind of feedback is something that we’re really interested in working on because we wanna make sure that as we do implement these changes, and there’ve been a ton of changes implemented over the last six years in the FOIA processes, are we actually addressing some of the root challenges within the FOIA process? And if other changes need to be made, we wanna be making sure our recommendations are attuned to those.

19:43 - So yeah, it’s been fantastic working with the rest of the Process Committee.

19:47 - Those are three areas we’d love to hear back more on, either during the open comment section or feel free to reach out to us as subcommittee members.

19:58 - - Okay, great. Michael, thank you. Anyone else from the Process Subcommittee wanted to add anything? I just wanna give everyone that opportunity.

20:09 - I’m seeing some nos. Okay. Any questions from other Committee members for the Process Subcommittee? Any ideas for questions that the Process Subcommittee should be including on their survey? Or if you’re thinking about them, you can chat them later.

20:31 - Okay, I’m hearing some silence. All right, Michael, thank you so much for that report.

20:35 - We really appreciate it. And thank you for all the hard work.

20:40 - Next on the agenda is the Technology Subcommittee, co-chairs Allyson Dietrick and Jason Gart.

20:47 - I don’t know who’s presenting, Allyson or Jason or both but I’m gonna turn it over to you now.

20:53 - - [Allyson Deitrick] Jason, did you wanna start? - Yes, I can start.

20:56 - Thank you. This is Jason Gart. So we’re in the information gathering stage right now.

21:02 - We’re exploring the applicability of technical standards and best practice recommendations for federal agencies with the end goal of ensuring that federal agencies have up-to-date access and impartial information on various technology solutions.

21:17 - Right now we’re in the process of speaking with points of contacts at other agencies that have experience in technology selection process and also thinking through our final deliverable.

21:30 - So Allyson, I’m not sure, or other members, I’m not sure if I missed anything or if that covers it.

21:37 - - [Allyson Deitrick] I think that does a pretty good job.

21:38 - We’re also just trying to make sure that maybe have some end goals with what the technology for FOIA would look like but still trying to keep in mind the needs of the various sized agencies.

21:50 - Smaller agencies have different needs than larger agencies.

21:54 - That’s it. - Okay, that was really short.

22:03 - I was waiting for you guys to just stretch it out to 10 minutes.

22:06 - I’m going to ask anyone else on the Technology Subcommittee if they wanna jump in and add anything? David Coyer, you always have something to say (laughing).

22:20 - Okay, anyone else on the Committee have questions for the Technology Subcommittee? - Did you have a question? - Oh, hi.

22:31 - This is Patricia West from NLRB. I was just curious for the Technology Subcommittee, are you all working with the Chief FOIA Officer Technology Council? I guess they’re actually their own technology council.

22:55 - I was just wondering if you all were communicating with them.

23:01 - - Patricia, this is Allyson [Deitrick] in Commerce.

23:04 - Yes, we have. The Process Subcommittee and the Technology Subcommittee wound up having a conversation with one of the members of the CFO Technology Committee a few weeks ago.

23:15 - So we’re trying to use them as a resource and not duplicate.

23:20 - Figure out what they’ve been working on and what we can work on separately to not duplicate resources - Great. - But also learn from each other as well.

23:30 - - [Patricia Weth] thank you. - You’re welcome.

23:37 - - Okay, any other, Patricia, thanks for asking that question.

23:40 - I know I cued you up for it so I’ll thank you again later. (Patricia laughing) Anyone else wanna ask any other questions? I actually had a question for Michael.

23:50 - In terms of your survey, are there other subcommittees that you’re partnering with? Is Technology Subcommittee one of them or you’re looking to other subcommittees to pair with? - Yeah, I’ve gotten good feedback from other subcommittee members or other subcommittees rather.

24:10 - And yeah, I think our timeline is a little rushed as we’ve gotta put together a survey in the next week or so to get it out and ready for Sunshine Week, but I would love to hear from other folks who’ve got ideas and feedback, so please do reach out to me.

24:30 - - Okay, great. Thank you. Okay, well thanks very much for that, Allyson and Jason.

24:36 - Sorry, go ‘head. - This is Kwan from the Process Subcommittee.

24:42 - I was going to add that one thing that we’ve been talking about is the possibility of more affirmative disclosure outside of FOIA.

24:51 - And a technological solution would be necessary for some of that, trying to port databases and other things.

24:58 - And so I think we’ll be having discussions with GSA’s At NAP and other technology specialists.

25:07 - And perhaps the Technology Subcommittee and Process Subcommittee will be putting their heads together in the coming months.

25:17 - - Great, thank you so much, Kwan. That’s a great idea.

25:24 - Okay, somehow I’ve lost, I don’t know why I’m not seeing Jason or Allyson on my screen.

25:30 - Maybe they’ve just gone away. They’re hiding.

25:33 - But I’m sure you guys are there. Okay, thank you very much for that report.

25:37 - Let me turn to the Classification Subcommittee next.

25:41 - Co-chairs James Stocker and Kristen Ellis. I don’t know which one of you guys is gonna go but- - [James R. Stocker] This is James, it’s me.

25:51 - - Okay, hi James. - All right, good morning, everyone.

25:55 - The Classification Subcommittee has been very busy.

25:58 - As we are a small subcommittee, we’re only meeting monthly, but our meetings have been very productive as we endeavor to address a very thorny set of problems.

26:07 - We have a mission statement, like the other subcommittees.

26:10 - It’s posted on the web and I won’t read it all here.

26:12 - But the most important sentence is this one, the subcommittee will study the impact of classification on the FOIA process, the use of particular exemptions to justify the withholding of national security information, and ways to improve communication between agencies and the public regarding classification.

26:31 - So it’s a pretty broad mission in regards to classification.

26:35 - We’ve had to make some choices about how we’re going to proceed.

26:37 - Our current area of focus is the use of Glomar responses to FOIA requests.

26:44 - Glomar, as you will recall, is a form of response to FOIA requests that basically notes that the agency cannot confirm or deny the existence of records responsive to the request, as this would reveal a fact that should not be revealed, for whatever reason.

26:58 - From the perspective of the requester community, Glomar responses are particularly unsatisfactory because not only do they fail to provide transparency but they don’t really provide any useful information whatsoever.

27:11 - And so oftentimes these responses, from the requester perspective, feel like a waste of time and resources.

27:19 - And yet from the perspective of agencies, the nature of their mission and operations means that Glomar responses are often necessary.

27:28 - There are many challenges associated with the Glomar responses are often considered to be a sort of loophole in the FOIA, as they were not mentioned in the Freedom of Information Act itself, but rather developed over time as a matter of practice.

27:41 - They are also a black hole in the administration of the FOIA.

27:45 - So as far as we can tell, no agency systematically tracks statistics regarding Glomar responses.

27:51 - There is a general perception that over time, the use of Glomar has expanded but this is not backed up by statistical evidence.

28:00 - There also is a lack of understanding and communication between requesters and agencies over the best ways to avoid Glomar responses.

28:09 - And so our subcommittee aims to do two things.

28:12 - First, they wanna collect publicly available documentation on Glomar responses and then second to create a survey or questionnaire for certain agencies about their practices in using Glomar.

28:24 - Our focus will be on Glomar requests that are used in response to D1 security concerns, even though Glomar responses are used in a variety of other circumstances as well.

28:36 - So in regards to collecting documents, I’d like to say thanks to Bobby Talebian of the Justice Department, who kindly pointed us towards documents on their website, as well as to Michael Morisy, who helped us to find some information on the MuckRock website as well.

28:50 - We are still looking for other forms of documentation, including agency level guides, that might explain how Glomar is used, and some of those we may get in response to our questionnaire.

29:02 - We’re still in the process of drafting our questionnaire but thus far, it asks agencies to compile statistics on their use of Glomar, to share any procedures or guides for FOIA officers regarding Glomar and form templates that they use, and for examples of ways in which requesters can pierce Glomar responses.

29:21 - Basically, we’re trying to elicit best practices for requesters to avoid getting a Glomar response, to the extent possible.

29:30 - Other than the Glomar issue, we are looking at some other issues associated with classification.

29:35 - We’ve discussed the idea of examining drop dead dates for classified documents.

29:42 - Drop dead dates are for the specific deadline at which documents will automatically become declassified.

29:48 - This is an idea with a very long history that seems to emerge over and over as a possible solution to the problem of over classification but then encounters again and again objections on grounds that it may not be appropriate for all kinds of documents.

30:04 - However, for the moment, I think we’re gonna concentrate primarily on Glomar because it’s a pretty big issue and we still have quite a few things to work out.

30:12 - Once we get a questionnaire developed and sent off to particular agencies, and we need to choose which agencies that’s going to be, we will turn our attention to other issues.

30:23 - Thanks and I’ll take any questions you might have about that.

30:28 - - Yeah, this is Tom Susman. I have a question.

30:35 - I know it’s difficult enough to get information just about the cases where Glomar was invoked.

30:43 - My early experience was that the few courts willing to reject a Glomar defense, nonetheless find plenty of reasons not to provide any of the underlying documents to the requester.

31:03 - And I think that would be an interesting element if you could dig slightly deeper.

31:08 - I don’t think there are a lot of courts that have rejected a Glomar defense.

31:13 - But when they do, if there’s no release following that that would be an important fact for, I think, requesters and litigators to know.

31:29 - - This is James again. Tom, I think that’s a very good idea.

31:32 - So you’re suggesting looking into court records for cases where Glomar has been shared and that could be a really useful source of information here.

31:40 - So I’ll make a note of that and we’ll discuss it in our next meeting.

31:44 - - [Thomas Susman] Yeah, I had the first case, actually.

31:47 - - Oh, okay (laughing). I’d love if you could share that for me.

31:49 - It’ll save me research. - [Thomas Susman]I will.

31:51 - - Thank you, thank you. - Kristin, I just wanna check in with you.

32:00 - As the co-chair, anything else you wanted to add to James’ excellent presentation.

32:05 - - [Kristin Ellis]I do not have anything to add to James’ is excellent presentation.

32:08 - Thank you, James. - All right. Anyone else on the Classification Subcommittee want to anything? Usually Kel [McClanahan] has something to say but he might be in the process of logging back in so- - [Kel McClanahan] I’m still here but I don’t have anything to add.

32:27 - - Okay, thank you, I appreciate it. I just wanted to give you that opportunity since I can’t see you.

32:32 - Any other Committee members have any other thoughts for the Classification Subcommittee? All right, Tom- - This is Loubna.

32:42 - I have nothing to add. - Oh, Loubna, thanks.

32:45 - Thanks very much. Tom, do you know the site to your first case that you litigated? - [Tom] I’m just getting around to look it up.

32:53 - I think I’ve got it here. - Alright, awesome (laughing).

32:56 - Every little bit helps. Thank you. Okay, so we’re actually a little bit ahead of schedule.

33:02 - Everyone’s going much faster than we anticipated.

33:04 - I don’t have a really good stamp of that but I’ll try to have a little bit of filler.

33:10 - But if everyone is okay, we’ll move on to the four subcommittees report, Legislation Subcommittee.

33:16 - Patricia Weth and Kel McClanahan are up as our co-chairs.

33:21 - Patricia and Kel, I don’t know who’s gonna be presenting.

33:25 - - I can start and maybe Kel can fact clean up for me.

33:32 - - That works. - Thank you. - Okay, great.

33:36 - So the Legislation Subcommittee, we have four working groups.

33:41 - One is expanding the scope of FOIA, the second is exploring ways to strengthen OGIS, the third is to look at funding for FOIA, and the fourth is FOIA fees.

33:56 - So we have these four working groups. Each group has a team lead.

34:04 - And the folks in each working group have been conducting research and beginning to line up interviews.

34:13 - One thing that Kel [McClanahan] is instrumental in, he’s organizing meetings for the members of the Legislation Subcommittee with folks on the Hill to discuss the various legislative issues surrounding FOIA.

34:36 - For the first working group, which is expanding the scope of FOIA, Tom Susman is our team lead.

34:44 - He’s just done a great job. Today he’s organized two phenomenal speakers for us to give us an education on the pros and cons of expanding the scope of FOIA.

35:01 - Because one of our goals for the Legislation Subcommittee is to, we hope, have a recommendation for this full Committee at the June meeting regarding expanding the scope.

35:17 - But Tom thought it best to lay the foundation and really get some wonderful speakers in to kind of, as I said, lay the foundation for this.

35:35 - Yeah, that pretty much kind of what we’ve been doing in a nutshell.

35:45 - I’ll turn it over to Kel [McClanahan] to fill in anything that I’ve left off and then welcome any of our Legislation Subcommittee members to share anything that they wish.

36:00 - - [Kel McClanahan] And thanks for that. I apologize to everybody listening.

36:03 - My computer is just not cooperating today, but I’m here, I’m not a cat.

36:10 - Yeah, that hit the high points of everything we’re doing.

36:15 - The one thing that I would add is that some of our work is particularly timely right now because we’re not just looking at ways to reform FOIA through passing a law that changes the law, but we’re also looking at appropriations and options.

36:36 - And it is appropriation season and a lot of people are engaged in working with Congress to get whatever they want into the various appropriations bills.

36:50 - And so with that, I would reemphasize the call that other people who have made of if anyone has particular ideas for ways that you think that you can improve FOIA by reallocating money, whether it be just give more money to X office or something more creative, like setting up a pilot program for something or one of the ideas that some people have tossed around, creating a dedicated FOIA fund, stuff like that, we have the capacity to investigate things and to ask questions that would allow us to maybe do more than people in the private sector could.

37:39 - So anybody has ideas for things, for targeted appropriations requests that would be related to FOIA that would be not just give more money to FOIA offices, by all means, send them to us.

37:53 - We’re open for ideas. We’re trying to find creative solutions to problems where just throwing more money at an office hasn’t worked in the past.

38:08 - That’s all, sorry. I’m not on video so you can’t can see that I was done, but I’m done, unless anyone has any questions for either me or Patricia.

38:22 - - Yeah, the only, this is Patricia Weth with NLRB.

38:27 - The other invitation that I’d like to send out to the full Committee is if you feel that the Legislation Subcommittee can help your subcommittee in any ways, please reach out to us and we’d love to work together.

38:50 - - [Kel McClanahan]Yes, one of the things that’s in our mission statement, actually, is the fact that we expect to overlap with everybody.

38:56 - And so, if this works as designed, there will be cooperative efforts between us and pretty much every other subcommittee in the group.

39:11 - - [Alina M. Semo] Okay, Patricia were you going to cover the other three areas or you just touched on them and you wanted to focus on the first area first, since that’s the topic for today really? - Yeah, I just wanted to really highlight the first working group because that’s where a lot of energy and effort has been.

39:34 - And we are, as I said, our goal is to get a recommendation to the full Committee by the next meeting, in June.

39:47 - And so the other working groups are doing what they need to do to get their recommendations together.

39:54 - But because the last term, and Tom can definitely speak to this, but because last term we visited this issue about expanding the scope of FOIA, but it came up at the end of the term and we weren’t really able to give it as much attention as it deserved.

40:22 - And so that was one of the first tasks that we decided to look at and start to study and see if this is a possibility for a recommendation from this term’s Committee.

40:42 - - Okay, got it. All right, Tom, anything you wanna add? No.

40:49 - - [Tom] Not at this point, no. I’m saving my questions for our speakers, who are excellent.

40:55 - - [Alina M. Semo] Okay, thanks. Actually, that’s Kel.

40:58 - Just so you know I said Tom, but Kel, thanks for letting us know.

41:01 - - No. - Oh, sorry about that. - That’s okay.

41:05 - And Tom shook his head no, so we’re all good.

41:07 - Any other questions from our Committee members? About any of the four subcommittees, anything else that you wanna ask each other? This is a great opportunity to do so.

41:19 - - [Roger Andoh] This is Roger, I’m from the CDC.

41:20 - I have a question. - Please. - I’m curious about whether we’ve got to FOIA fees.

41:26 - Is there any thoughts about getting rid of fees altogether for all requesters and instead having a cap on number of pages, and if your request exceeds that cap, you pay a fee? - [Kel] Well this is Kel McClanahan.

41:42 - I can say that while our legislative focus on FOIA fees is in its infancy, that is something that we would be looking at least the first half.

41:55 - I don’t know that anyone has mentioned to us the idea of capping requests.

42:02 - But there has been, in the requester community at least for a while, an idea of how bad would it be if we just completely abolish FOIA fees altogether? They only raise like 1% of the expenses.

42:16 - And so that is one of the things that we expect to look into.

42:21 - But between that and more gradated responses.

42:26 - But that’s definitely something that I haven’t heard before and you should, I hate to give you homework but if you have a plan for that, definitely send it to us and we’ll look at it.

42:38 - I don’t recall Patricia, who’s heading up our working group on fees, is that- - [Patricia] Allen.

42:46 - Alan is- - Alan Grosbein, yeah. So send him whatever you have and I’m sure we’ll get it into the hopper.

42:54 - - Will do, thank you. And I have another, this is Roger again from CDC.

42:58 - I have another question with regard to legislation.

43:01 - So the bulk of FOIA requests that are received by federal agencies are received by DHS.

43:08 - And I would say the vast majority of them are probably first party requests.

43:12 - Is there any thoughts about specifically looking at the area of first party requests with regard to agencies like USCIS, IRS, that have, specifically when it comes to the benefits side of the house or with proceedings, having basically mandating that agencies provide access to documents to first party requesters outside of the FOIA process? So for example, if somebody’s in a removal proceeding, the agencies, there should be a discovery process that they can take advantage of so they can get their documents without making a FOIA request.

43:51 - If that’s mandated by law, then agencies would not, there’ll be no delays and there’d be no need for people in these proceedings or their attorneys to make FOIA requests for these documents.

44:05 - - Roger, this is Patricia Weth from NLRB. You make an excellent point.

44:12 - And, as a matter of fact, at the previous Committee’s term we touched upon that issue.

44:22 - And one of the recommendations was for agencies to try and find another vehicle for first party requesters to obtain the records.

44:37 - And in the report, I believe we give two examples of agencies that do that very thing so that first party requesters don’t have to file FOIA requests for their own records.

44:52 - For example, I believe we referenced the IRS.

44:57 - If you need a copy of your tax returns, there’s a different route that you can take instead of having to file a FOIA request to obtain those records.

45:09 - Another agency that has a vehicle for that is the Veterans Administration.

45:20 - They have a means by which veterans can obtain their own records, again, without having to file a FOIA request.

45:32 - So we did reference those in the recommendation last term.

45:40 - And I do think it’s really an important issue.

45:46 - I know for my agency, a good chunk of our FOIA requests are first party requesters.

45:54 - So if agencies can come up with another way that folks can obtain their records without having to go through the FOIA process, I think it’s a win-win.

46:11 - - [Kel] And this is Kel McClanahan. The idea of even limiting it to people who are in some sort of proceeding, like as you say, immigration proceedings, is also not without precedent.

46:27 - This is something that happens in security clearance cases all the time, where because if when you appeal a security clearance decision, you have a right, under the executive order, to investigate your file, to the file that that was filed to support the allegations made against you.

46:47 - Many agencies will just process that completely separately from FOIA, which is why you get records in a month instead of three years.

46:58 - So there are ample possibilities of things that we could model such a thing off of.

47:06 - The sticking point might be though the idea of resources.

47:13 - This is something that we would have to get into based on the funding issue as well, where if an agency is basically giving faster access to this class of person, that’s going to be a human being working in that agency and processing that request, instead of somebody else’s request.

47:34 - And so I expect there’ll probably be a lot of pushback from someone like a USCIS or ICE saying, well, we’re already overworked and now you’re telling us to go do these other things.

47:48 - We’ll never get to the FOIA requests. So that’s something we’re gonna have to address as well.

47:52 - But I like the idea a lot. It’s just gonna be sort of a thorny problem to solve.

48:09 - - [Alina M. Semo] Okay, thanks. Great discussion everyone.

48:12 - Roger, you’re good? Any other thoughts or questions? - Just one more thought with regards to probably how other than just resources, probably using technology to properly assemble the documents so don’t have somebody’s alien file dispersed among multiple agencies.

48:38 - Have a central repository where all the records are located and it’s easier to pull them.

48:43 - I think part of the problem is you have records dispersed, which is probably why it makes it difficult for them to collect them.

48:49 - But if they start making sure we have technology in place where an alien file is supposed to contain all the records of a particular subject and an order then comes into the government in one central location and it’s electronic, at least that would be a step in the right direction.

49:16 - - [Loubna] Hi, this is Loubna from DIA [Defense Intelligence Agency].

49:18 - - [Alina M. Semo] Yes, Loubna. - Yeah, I just wonder the idea that Roger, you just mentioned, which from a practical perspective would be great, I wonder does that raise any kind of Privacy Act issues from the idea that each agency collects information under different SORNs and Privacy Act requirements? (several people overtalking one another) - Hey Tom. - Hold on a second.

49:42 - I’m on another meeting. - I heard him. - You doing a hearing? - [Alina M. Semo] Someone’s got a hot mic.

49:51 - - So not an area I’m intimately familiar with but I just wonder whether that would be something to consider because each agency has different authorities and reasons for pulling certain information, based on their SORN.

50:05 - So I wonder what issue, if any, that might create, when you’re trying to do a centralized repository of all that information.

50:15 - Over. - Loubna, thanks, great point.

50:30 - Roger, maybe this is something you guys are already talking about in your first party request working group.

50:39 - But definitely a very important consideration.

50:43 - Any other lawyers wanna chime in about SORN, feel free.

50:48 - It’s definitely not my favorite area to talk about.

50:52 - It’s always sticky but very important so thank you for pointing that out, Loubna.

50:55 - Very helpful. Okay. Yeah, please. - This is Patricia Weth at NLRB.

51:04 - I didn’t realize there was a First Party Working Group that you’re on, Roger.

51:12 - But one good resource for you might be Margaret Coca.

51:20 - She- - We actually spoke with her. - Oh, did you? Oh, fantastic. - Yes, we did.

51:25 - We did. - Okay. - [Roger Andoh] And we’re gonna have a conversation with Emily Creighton from American Immigration Council.

51:33 - - That’s fantastic. - Yeah. So we have spoken with her.

51:37 - She was great. - Oh, good, okay. - [Bobby Talebian] Excuse me, Roger, this is Bobby from OIG.

51:43 - - [Roger Andoh] Sure. - Another resource, this year’s Chief FOIA Officer Report specifically asked ADCs to report on an estimate of the first party requests that they have and the alternative means that they’re providing or plan to provide.

51:59 - So that could give you some examples of how other agencies are handling it.

52:03 - - [Roger Andoh] Okay, Bobby, do you commit to giving us first access to the document ahead of time so we can see it before- - All the CFO reports will be posted by Sunshine Week.

52:18 - - Okay. - We’ll have ‘em all centrally linked.

52:21 - Sometimes we have stragglers but we’ll have them all centrally linked on our website.

52:24 - - Awesome, okay. - And, of course, we’ll look at it ourselves too when we do our summary and assessment.

52:28 - But all the information will be publicly available as agencies clear our reports.

52:33 - But I wanted to make sure you knew that there was a specific question on this topic.

52:37 - And so there’s already a good amount of resources that you can look to.

52:41 - - [Roger Andoh] Thank you, appreciate it. - Great.

52:47 - Thank you, Bobby. I appreciate that.

52:49 - Okay, just wanna wrap up the Legislation Subcommittee.

52:53 - Any other issues or questions for Kel or Patricia? All right, I’m hearing quiet.

53:03 - Actually, great segue before we take a quick break at 11:00 AM.

53:07 - So we’re actually back on schedule, which I really appreciate.

53:10 - A great segue about Sunshine Week, we have been featuring in our FOIA Ombudsman’s Blog individual members of our Committee.

53:20 - So I really wanna encourage everyone to take a look.

53:22 - This week’s feature is our very Tom Susman.

53:26 - I actually enjoyed reading his responses this week.

53:32 - It was actually very interesting to learn some things about him that I did not know.

53:37 - We have previously featured Roger, David, Alexandra, Kristen, and in the last Committee, we featured Michael Morisy and Patricia Weth.

53:49 - So I think we’re not gonna feature them again, if that’s okay with them.

53:52 - Hopefully, they’re not insulted by that. (Patricia laughing) But we recommend everyone to look back to our blog posts from the last Committee and you will learn more about Michael and Patricia.

54:03 - And I just wanna quickly ask about Sunshine Week.

54:07 - Are there any events that anyone wants to share that we should all be tuning into that are public in nature? - [Bobby] Oh, yeah, this is Bobby.

54:22 - The DOJ is planning to do its annual Sunshine Week Takeoff Event on Monday.

54:27 - We posted about that in our blog post. Michael had mentioned providing good examples of agencies.

54:33 - One thing we try to do is highlight some of the positive and great examples of agencies at this event and showing them as an example to other agencies.

54:41 - And we’ve had, in the past, one of my favorites, nominations from the requester community.

54:45 - So we just extended the deadline for nominations for the department Sunshine Board.

54:51 - So if there is an agency that does it right in your view or there’s a board of professionals that you’d like to recognize and highlight, I encourage you to submit that nomination to us.

55:03 - - Okay, great. Thanks so much. - [Patricia Weth] Bobby, this is Patricia Weth from NLRB.

55:08 - Just curious, does DOJ get many nominations from the requester community? - [Bobby Talebian] We get ‘em primarily from the agencies.

55:20 - We’ve had from the requester community, we just got a couple.

55:22 - And, of course, those are my favorite ‘cause we get it from the other perspective, of course, and we don’t get as many from the requester community.

55:31 - - [Patricia] Right. Very interesting, thank you.

55:36 - - All right, anyone else wanna highlight any Sunshine Week events that we should all be tuning into? Tom, you’re speaking but you’re on mute.

55:51 - - [Tom] Okay, Tom Susman. For those of you who are in the District of Columbia or surrounding, you may be interested in a program on the 18th at 1:00 on Zoom that will focus on schools and policing and COVID in the District of Columbia.

56:10 - So it’s about an hour and a half program with two local council members and other community activists and DCs very own OGIS, the Director of the Office of Open Government, will participate.

56:25 - So it’s open to the public. There’s a link for registering on DCOGC. org.

56:36 - And we’d love to have a large audience. - Great, thank you so much.

56:44 - - [Patricia] Alina, this is Patricia Weth again.

56:47 - I just wanted to mention to the folks who are with agencies who are listening, one of the recommendations from last term was a suggestion about issuing an agency-wide memo to educate the employees on the importance of FOIA.

57:14 - And I think Sunshine Week is really a great time to do it.

57:19 - I know in the past OGIS has suggested it as a recommendation themselves.

57:28 - And by way of example, they did that very thing at Sunshine Week, as did several other cabinet level agencies.

57:39 - So I’m just gonna throw it out there as a suggestion that folks may wanna have their chief FOIA officer or a general counsel or at best the secretary of the agency to send out a section memo agency-wide during Sunshine Week.

58:01 - - Okay, great idea. And Bobby [Talebian] and I will talk about this.

58:06 - It’s on our to do list, so thank you. We really appreciate that suggestion.

58:12 - Okay, well I think we’re at 11:03 AM. Not hearing anyone else jumping up and down wanting to say anything, I suggest we take a 15-minute break.

58:22 - So let’s come back at 11:18 AM and get ready with lots of questions for our two guest speakers.

58:29 - And we can now take a break. Thanks everyone.

60:09 - (jazzy music) - Okay, welcome back, everyone.

76:34 - I hope everyone had a great break and got some coffee.

76:38 - So we’re ready to get started on the second part of our meeting today and I am very pleased to welcome Daniel Schuman, the Policy Director for Demand Progress and Michael, who goes by Mike, I understand, Lissner, the Executive Director of Free Law Project to our Committee meeting today.

76:57 - And I think we’re all very much looking forward to their presentations.

77:01 - I just want to give just a quick background on each of our speakers today.

77:07 - As Policy Director, Daniel leads Demand Progress and Demand Progress Education Fund efforts on issues that concern government transparency, accountability, ethics, and reform, protecting civil liberties, and strengthening the legislative branch.

77:23 - He is a nationally-recognized expert on federal transparency, accountability, and congressional capacity.

77:30 - Daniel was instrumental in drafting and enacting legislation, including the Data Act, FOIA Modernization, Public Access to CRS Reports, publication of legislative information as data, obtaining a study on restarting the Office of Technology Assessment, and dozens of House rule changes, including the creation of the Office of Whistleblower Ombudsman.

77:51 - I did not know that, Daniel. Daniel previously worked as a policy director at CREW, policy counsel at the Sunlight Foundation, and as a legislative attorney with the Congressional Research Service.

78:02 - And Daniel graduated cum laude from Emory University School of Law.

78:06 - Welcome Daniel. Mike Lissner is Executive Director and CTO of The Free Law Project, which he co-founded in 2013 as a nonprofit dedicated to making the legal system more competitive and fair.

78:21 - And his mission is to provide free access to primary legal materials, developing legal research tools, and supporting academic research on legal corpora.

78:32 - In this role, Mike works with researchers, journalists, individuals, and organizations to improve and interpret the legal system.

78:40 - Prior to starting The Free Law Project, Mike was a student at the School of Information at University of California Berkeley, where he created the first version of courtlistener. com as his capstone project and where he focused on technology, law, and policy.

78:55 - So welcome to Mike. We have agreed that Daniel will go first.

79:01 - Mike will present second. And Committee members, please hold your questions until both Daniel and Mike have presented, at which time you’ll have plenty of opportunity to ask questions, make comments, everything you want.

79:14 - So with that, over to you first, Daniel. Thanks.

79:20 - - Wonderful, thank you so much. Thank you for having me.

79:22 - Good morning to everyone. It’s good to see so many familiar faces or mostly familiar.

79:28 - It’s been a while since I’ve seen most of you in person.

79:31 - So the thing I wanna test immediately is just to make sure is it possible to advance to the next slide? Excellent.

79:39 - See, everything is working now. So first promise that I will make to all of you is that I will not be reading my slides.

79:46 - These are intended largely as footnotes and reference materials.

79:51 - In the presentation I’m going to give, I’m going to try to keep it as short as humanly possible because your questions will always be much more interesting than what it is that I would have to say.

80:00 - But what I’ll be covering in the presentation is the following.

80:03 - And some of these are things that you know but it’s useful to have a foundation for it.

80:07 - One is what is the legislative branch? How does disclosure and transparency work inside the legislative branch? What exactly is disclosed inside the legislative branch? And then various mechanisms to improve it.

80:19 - Can we go to the next slide please? See, as promised, we’re moving quickly through the slides and there’s not that many.

80:27 - And I promise I will not read this to you. So the legislative branch is more than Congress.

80:32 - I do have to read the title, right? So a legislative branch is about $5 billion annual appropriation.

80:38 - It has somewhere in the vicinity of 20,000 employees.

80:41 - It’s much more than the House and the Senate and people don’t usually think about it that way.

80:46 - And when I think about it, I try to break it down into a couple of categories.

80:49 - So there’s the political parts of the House and the Senate.

80:52 - This is what most people usually think of. So this is the personnel office, it’s the Committee and the leadership, it’s the parties, to some extent.

80:59 - This is the political side of the house but there’s also support offices inside the House and the Senate as well.

81:05 - I’ve listed a bunch of them, there’s even more.

81:08 - These are the folks who keep the lights on.

81:09 - These are the folks who move the legislation.

81:12 - These are the folks who keep the IT operating.

81:14 - This is like the whistleblower ombuds, or the people who update the law in the Office of Law Revision Counsel.

81:20 - This is the, there’s still some, they can be political but they’re not necessarily political and they’re much less political than the elected officials.

81:28 - In addition to the support offices, there are a bunch of support agencies.

81:32 - There’s about a half dozen of them. This is where most of the money actually goes.

81:36 - And these you’re probably familiar with, to some extent.

81:37 - Some of these you’ve heard of, some of you may have not.

81:40 - Places like the Library of Congress, GPO, the Congressional Budget Office, the Architect of the Capitol, and so on and so forth.

81:46 - And then there’s a bunch of miscellaneous other stuff.

81:49 - And it’s not real, they’re not the way that you would think of as an agency, they’re something else.

81:53 - These can be commissions or joint Committees.

81:56 - There’s a foreign relations component. There’s the office, so there’s a bunch of like weird other stuff, these weird commissions that also exist and are situated inside the legislative branch.

82:06 - Next slide please. So Congress and the legislative branch is very different from the executive branch in a number of interesting ways.

82:17 - One is that Congress is inherently political.

82:21 - It is concerned about its reputation and it writes its own rules.

82:26 - And this is very different from much of the way the executive branch functions.

82:31 - There’s nobody in charge inside the legislative branch.

82:34 - There’s no central authority. There’s no rule making entity.

82:37 - There’s nobody at the top. There are people who are relevant but there isn’t an entity that comes together where you can make a decision about things in a certain type of way.

82:50 - The components aside, particularly the political components, have independence as their hallmark.

82:57 - You obviously can’t tell the personnel Committee and leadership offices what to do.

83:03 - They can do largely what they want within a series of constraints.

83:06 - That they view themselves as being 535 individual offices, not as being the House and being the Senate.

83:13 - So they can largely set their own processes and procedures.

83:17 - Much of Congress’ work is proactively disclosed.

83:21 - They proactively disclose a lot more than you would think.

83:25 - And their work that they’re disclosing, oftentimes is both pre-decisional and it’s deliberative.

83:31 - If you think about the FOIA Congress this is kind of the inverse of what you see elsewhere.

83:36 - Again, the decision will be the enactment of the law.

83:41 - So pre-decisional, all the conversation around the bills and the amendments and about who’s doing what, that is inherently deliberative and that is inherently pre-decisional.

83:49 - We don’t think about it that way but that really is what it is.

83:53 - And finally, while there’s a number of executive branch, a number of laws, many of these laws do not apply to Congress or they don’t apply to Congress in the same way that they might apply elsewhere.

84:03 - Next slide, please. So, I’m not gonna read this to you but there’s many sources of rules and ways for Congress or its components to change how it operates.

84:15 - Many of these things don’t require passing a law.

84:17 - Some of it can be just as simple as like you changed the way you operate, some of it could be a rule change, it could be appropriation language.

84:24 - There’s a lot of vehicles, there’s a lot of points of entry into the legislative branch to change the way that it or its components function.

84:31 - Next slide please. So it’s important to think about the different types of congressional disclosure that take place and the emphasis on the kind of disclosure that happens is different than exists elsewhere.

84:48 - So I have made up basically six categories.

84:51 - Other people probably have a more appropriate hierarchy.

84:54 - This is the way that I think about it. There’s the mandatory proactive disclosure.

84:59 - So you get to see all the bill text, you get to see the Committee reports, for the most part, you get to see all the enacted laws.

85:05 - There’s laws on lobbyist. So there’s all these things that they have to disclose and they do it without being asked to do so.

85:12 - They required themselves to do it. There are a number of things that are voluntary disclosure.

85:18 - Press statements, unintroduced bills, personal office websites.

85:22 - When you write them a letter and they write you back, this is voluntary proactive.

85:26 - They don’t have to do it but they choose to do it.

85:30 - There is a very small category of mandatory responses though.

85:34 - So FOIA to the copyright office, FOIAs for older records at the National Archives.

85:40 - There’s a handful of things that are mandatory responses that are in first by third parties like the courts but there’s not very many.

85:47 - There’s a lot of voluntary responses stuff though.

85:49 - So these are like press notes. A member of the press calls and you get an answer, introduced draft bill texts, there’s member schedules.

85:55 - All the tweeting and all the letters, some of their scheduling, this is all things they don’t have to do but they do as a matter of course.

86:04 - Now there’s some other weird categories of things.

86:06 - One is what I call quasi mandatory responses.

86:09 - I’m sure there’s a much better way to describe it but basically inside some of the support offices and some of the support agencies, they have instituted a FOIA-like or FOIA light, depending on how you like to say it, process.

86:23 - So, for example, you can make a FOIA-like request of the GAO.

86:28 - They promulgated regulations, they will consider your request, they follow a series of rules and regulations, and they’ll put it up.

86:34 - Now you can’t vindicate it in court but they have that.

86:37 - The Library of Congress has this. There was a requirement that we got in the last year’s appropriations bill for the Capitol Police to consider applying FOIA to itself.

86:51 - This is being imposed on them. This would be a FOIA-like process ‘cause, again, you can’t go to court.

86:55 - If you’re appealing it, you’re appealing to their General Counsel, so it’s not really a review, totally from a blank slate.

87:05 - But that does kind of exist. And then there’s involuntary disclosures.

87:12 - Involuntary disclosure, there’s probably a better way to describe this but this is how I think of it.

87:16 - So these are things that can be disclosures by third parties.

87:19 - So let’s say that I’m a member of Congress and I send a letter to all of the members of Congress and one of the other members of Congress discloses that to the public.

87:26 - That’s disclosure by a third party. That’s involuntary disclosure of the letter that was sent by the original member.

87:32 - Press coverage, of course, is involuntary disclosure.

87:34 - Every time you see scoop with something that’s not public, maybe it was deemed voluntarily disclosed and maybe they found it out.

87:41 - You can do involuntary disclosure on the legislative branch by FOIAing the executive branch for communications that they received from Congress.

87:49 - In the final, and this is really a big category and people don’t think about it a lot are paid services.

87:55 - So if you want CRS reports, well then that’s required to be disclosed, generally speaking, but until recently they weren’t.

88:01 - So you could go to Lexis or Westlaw and you could pay for it.

88:04 - You can get all the Committee reports from the 1790s forward online in a digital format.

88:11 - Some of it were non-published documents, that’s involuntary disclosure.

88:16 - Information about contact information. For the members of involuntary disclosure, they don’t really disclose this or at least not in the way that you would think so.

88:23 - There are services that go and will basically build giant databases to disclose a lot of the information about Congress.

88:30 - And of course, this is the way that I think about the other categories but hopefully this makes sense.

88:36 - Next slide, please. - I’m not going too fast, right? Is this good? Excellent.

88:44 - Okay, so when you wanna think about enhancing legislative branch transparency, assuming that’s something that you wanna think about, here’s some of the lessons that I’ve learned or some rules of thumb for thinking about this.

88:59 - One is that the further an entity is away from playing a deliberative role that is politically sensitive, the more appropriate it probably is to apply a FOIA or a FOIA-like remedy.

89:10 - So, the Capitol Police is a security force.

89:13 - They’re like most other law enforcement. They’re like the FBI or the ATF.

89:18 - They’re security, they’re not police, although we call them police.

89:21 - FOIA makes sense to apply to them in some fashion.

89:23 - The Congressional Budget Office or the Government Publishing Office, the Government Accountability Office, some of their stuff is deliberative and internal but a lot of their stuff you can FOIA for it or a FOIA-like process because it’s further away.

89:36 - So if you wanna get the emails of a member of Congress to another member of Congress, if you wanna get a confidential report from the Congressional Research Service to an office, that’s really close to the deliberative role and that becomes a very different question than how many traffic stops did you do in the last year? Or how much money did you spend on producing budget explanations or whatever it might be? In Congress, bright lines are best.

90:06 - They do really well with all of these things need to be disclosed or none of these things need to be disclosed.

90:11 - And you can deal with voluntary for some of this for the other thing but proactive disclosure works better for them.

90:17 - So requiring them to disclose the category of stuff works much better than having some sort of a weighing or a balancing test.

90:24 - So all CRS reports, all letters from agencies to Congress that are required by law, that is clean.

90:31 - As it gets murkier, it becomes harder to make, look because who is going to adjudicate the determination of what congressional information should be publicly available? The idea of having someone rooting through their files is not something that will be politically sustainable.

90:49 - And it’s probably not a great idea in certain circumstances.

90:53 - And they also are significantly, woefully understaffed so they probably couldn’t do it, even if they wanted to.

90:58 - I would say that if you can buy the information from a third party, then the legislative branch should be proactively disclosing it instead.

91:05 - Why are we making people rich who are basically repackaging legislative information and reselling it? It’s great if you wanna go and provide analytics on top.

91:13 - That is a value add, that is a great business model.

91:17 - But faster access to a bill, everybody should have equal access to the legislation at the same time and Congress should be in that business.

91:26 - Second, if it is being disclosed, they should probably be disclosing it, as much as possible, as data.

91:31 - There are huge industries built around transforming PDFs into useful information.

91:37 - If they’re gonna create their own information, they might as well make it as valuable and as data enriched as humanly possible.

91:44 - Two other points here and I’m gonna skip one.

91:46 - One is that archiving and access to records is inconsistent in the legislative branch.

91:52 - For example, Committee records go to NARA, personal office records you can burn in the backyard barbecue.

91:58 - That’s just what it is. There are historians, there are some archivists, but they don’t think about archiving, as a general rule.

92:07 - They don’t, certainly inside the House and Senate itself, they don’t think about it that way.

92:12 - They don’t set up record systems. There’s not systems of records and management and all of the stuff that we do, that doesn’t really exist for them.

92:20 - It’s really haphazard. And Congress is very bad at dealing with classified information.

92:26 - Of course, Congress can’t classify information itself, it’s all derivative, it’s secondary stuff that comes from the executive branch.

92:32 - But they don’t have a process to release it, generally speaking, unless they go and pass a bespoke law.

92:37 - The ICE has a great report from maybe 15 years ago that talks about when Congress has decided to direct records that it has to be disclosed that are classified but they really don’t have a way of dealing with this that’s very good.

92:51 - Next slide. So it was suggested that it might be helpful to have some recommendations for legislative branch transparency and to help you think about choosing what’s easier, What’s kind of hard, and what’s hard, hard to do.

93:06 - So I put a couple of examples here just as ways of helping you to think it through.

93:11 - So some easier, and nothing is ever easy, but the easier things that like make more conceptual sense are things like releasing legislative branch inspector general reports.

93:21 - We do this for the executive branch for the 74 IGs that are on oversight. gov.

93:26 - As a general rule, most of these things can probably be, there’s six IGs inside the legislative branch.

93:30 - Most of them could have proactive disclosure requirements.

93:33 - You’d released their report. If you can’t release their report, you release a summary.

93:36 - And if it’s classified, you follow the GAO model, which works really well.

93:41 - We have current CRS reports publicly available but there’s no reason not to publish the historic ones.

93:46 - There’s no reason not to publish the current ones as data as HTML was to make available internally but not externally.

93:52 - This is just for dragging on the partisan folks over there.

93:56 - There are things like the serial sets. This is the volumes of Committee hearings and proceedings and laws that were enacted that were basically, until very recently, only available as print.

94:06 - Now they’re available as PDF. But they’re these giant PDFs.

94:09 - We should be retyping and make them available as data.

94:12 - Those are easier to do. Sort of intermediate are creating the FOIA-like processes for the legislative branch agencies.

94:20 - We just had that happen with the Capitol Police.

94:22 - They’re supposed to do this. How do they do it, How well they do it, what it looks like, who knows? But that is doable.

94:30 - That has happened previously. It is possible to push that.

94:34 - Things around witness demographic or exposing conflicts of interest, that information is gathered but it’s gathered poorly.

94:41 - So having it as data, not as paper, having it all in one place, these are things that are possible to aggregate and disclose so it becomes useful.

94:49 - Also harder, but intermediate but not too hard, are historians and archivists to support the Committee process.

94:55 - This is a money question. Congress underfunds itself so money is hard.

95:00 - But setting up appropriate systems of record, central databases, and all this stuff is totally doable but they have to have the political will.

95:07 - Harder to do examples, just very quickly, a leg branch declassification office.

95:16 - Harry Truman, when he was in the Senate or Lyndon Johnson, when he was in the Senate, had set up a process where hearings that he would have and that were classified, they were immediately declassified, reviewed, and published the same day.

95:29 - We can do this, but it’s harder to do because the executive branch freaks out about classified material.

95:34 - Like, no, no, no, you can’t do it, even though they certainly could.

95:39 - Centralizing reports and letters to and from Congress is hard.

95:43 - Creating things that facilitate these processes are hard.

95:46 - So things like creating a data coordination office inside the legislative branch because it spans so many things, worth doing, essential to do, very hard to do.

95:56 - And the final thing that is really hard to do is to add context because when you help people understand what’s actually happening, it has political consequences and ramifications.

96:06 - So summarizing the bill, all that, well, there’s lots of different ways to summarize it that can cause interesting reactions.

96:16 - Explaining appropriations language, all of these things, the more that you have real-time information about what’s going on, connecting the pieces, those are the types of things that are really hard to do because who decides what it means and that can create political angst.

96:31 - So final slides. That’s it. So that is Congress in a nutshell.

96:40 - Happy to go more into it. We talk about this every week in our newsletter, The First Branch Forecast, which focuses on the legislative branch and government transparency, if you’re interested.

96:49 - And I’m happy to stop talking so that Mike can talk and we can learn more about the courts.

96:54 - So thank you so much. - [Alina M. Semo] Thanks Daniel.

96:58 - Mike, over to you. - Great. Let’s just see if we can get the next slide and make sure that’s working.

97:07 - Perfect. So my name is Michael Lissner, and Alina, thank you so much for that great introduction.

97:14 - And I’m really thrilled to be here to present to everyone and see some faces that I know.

97:20 - I’m from The Free Law Project. We’ve been working for many years now as a nonprofit to try and get content out of the judicial branch.

97:29 - Typically, that takes the shape of legal data, in particular, motions, opinions, things that are happening inside the courts.

97:40 - But along our path, we’ve also frequently tried to get some sort of document from the administrative side of the judicial branch.

97:48 - And it’s been interesting to have those experiences and I’m happy today to be here to share those.

97:57 - I think my presentation might have a little bit more of a push than Daniel’s although I think he or maybe mine’s just less subtle.

98:03 - But my title here is Open the Judicial Branch.

98:07 - And I’m hopeful that by the end you’ll see why I think that’s important.

98:14 - As it is currently, it’s pretty hard to get almost anything, aside from the legal documents, and even those are pretty challenging.

98:22 - And there’s a lot of content that we should be getting so that we can understand it better.

98:28 - If we can go to the next slide, please. I, kind of like Daniel, I think a good place to start here is to understand what is in the judicial branch.

98:43 - And there’s a little bit more here than I think most people might realize, although it’s a pretty sophisticated group here.

98:50 - But it’s about 200 courts, and that’s including the district courts, the bankruptcy courts, the appellate courts, supreme courts.

99:02 - And it’s also worth remembering that we have courts around the world.

99:08 - We have courts actually in Asia with the Northern Mariana Islands.

99:15 - And so there is a huge variety of of how these courts work and where they are and it’s an extremely distributed system.

99:28 - The next part is the Administrative Office of the US Courts.

99:31 - This is the administrative org and there’s a lot of these on the state level as well.

99:37 - They often have same name. And these are the folks that are making the show work, all of the administrative folks.

99:46 - At the top, there’s the Judicial Conference of the US.

99:50 - This is the policymaking, the policymaking body.

99:54 - It has members of the Supreme Court, it has a number of judges that are on there.

99:59 - They meet twice per year. The meetings are closed to the public and they do release notes about what they talk about.

00:07 - But they have subcommittees, of course, that report during their biannual meetings and those subcommittees’ minutes and actually even learning the membership of those meetings, they treat that as a secret.

00:22 - And so you can’t even find out who’s on the subcommittee.

00:29 - The next part of the judicial branch is the FJC, the Federal Judicial Center.

00:35 - They’re a neat organization. They do trainings for judges, that’s one of their biggest things.

00:42 - So when you become a new federal judge, somebody’s gotta tell you how to do the job and that’s a big part of what they do.

00:50 - They also do research and statistical work for the judicial branch.

00:55 - So they actually have an incredible amount of data and they are one of the bright spots in terms of access to information in the judicial branch.

01:03 - And they have a database of all of the cases that are happening and every quarter they put it out and it has metadata about cases.

01:14 - It’s a pretty incredible source, but in keeping with the slightly secretive nature of the branch, although they have the information about the judge that’s in each case and there’s a column for it in the data, that column has been blanked out.

01:30 - It’s a policy that the judicial conference itself created.

01:35 - They said, you know what, no judge information in bulk.

01:40 - We’re not gonna do that. So although the SJC gets that data, they blank it out before giving it to the public.

01:47 - So you can’t learn about what individual judges are doing, in bulk I should say.

01:54 - They also do statistical work and so there are annual reports and those typically come out of the Federal Judicial Center.

02:04 - There’s 81 federal public defender organizations.

02:09 - These are an interesting public private collaboration, where in some cases, there’s an administrative element to this providing public defenders to individuals and organizations.

02:23 - There are public public defenders and there are private public defenders.

02:26 - So it’s interesting, from that perspective, that a lot of the work sorta gets shipped out.

02:31 - I think maybe about 70 or 80% of it there. And that’s another 4000 employees right there.

02:39 - There’s the US Sentencing Commission. These are the people who figure out what are the sentences for various things that you get found guilty of.

02:50 - And then there’s the Supreme Court Police, who guard the Supreme Court.

02:55 - These are also the folks that do the call-out, the oye, oye, oye at the beginning of cases, things like that.

03:03 - And if we can go to the next slide, please.

03:08 - So the status quo right now is that it’s a secretive culture.

03:14 - Judges think that this is important and they believe that by keeping some degree of distance, they are able to make more independent decisions and have better adjudication.

03:34 - And that culture coming from the judges, in my experience, has transferred over to the administrative side.

03:43 - And I guess I should say, since I haven’t said it already, that I think most people are agreed that we’re not gonna start asking for judges’ personal papers.

03:54 - We’re not gonna start asking for a lot of things that are actually happening in the cases that you can’t get already.

04:01 - But on the administrative side, from the Supreme Court Police, there’s a lot of other from their testee.

04:11 - There’s a lot of other stuff that would probably make sense to have in some sort of public access law.

04:18 - So right now, if you want any of that sort of stuff, the way to do it is with the Common Law Right of Access.

04:26 - And I have done a bunch of research on this and it’s an old approach that says that yes, going back to before the United States was even a country, we’ve had this right of access that people should be able to ask for stuff.

04:44 - And looking at the history, it is used for court records pretty frequently.

04:52 - And this is your way to get contact. But it is not used on administrative records, at least in any visible way that I was able to find.

05:04 - It could result in court cases, if you’re asking for administrative records this way.

05:11 - But it seems like, to the extent it’s happening, it’s not resulting in court cases or public commentary of any kind.

05:20 - So my observation, it seems like there is this Common Law Right of Access but people are not using it to gain an understanding of what’s happening in the judicial branch.

05:33 - The big things you’re looking at a common law request is is it a public document and is the public’s need for that information greater than the government’s need for privacy? And you’ll see there, when people are requesting court information, that these sorts of discussions happen a lot.

05:56 - And there is actually a fair amount of case law around that.

06:00 - And there’s actually a guide that’s put out by the RCSP and they will, it explains, in great detail, where the common law landed in each different jurisdiction across the country, long, long guide.

06:23 - But the problem, of course, with the Common Law Right of Access, we had this before there was FOIA.

06:28 - This was the system before FOIA. And it’s ultimately not good enough.

06:34 - There’s no timeline, there’s no statutes, it doesn’t provide any sort of support to the organization.

06:42 - There’s no guidelines for it and it’s just sort of a loose system.

06:46 - So it’s more of a principle than a system. That’s where things are at now.

06:56 - We can go to the next slide, please. So I wanted to highlight a couple of things that are not well understood currently that should be in a functional democracy.

07:16 - And the first one I think is a huge ordeal and a big scandal that we don’t know more about it is the SolarWinds hack.

07:24 - We know from other sources that Russia has hacked into a lot of organizations, many of them government, via SolarWinds.

07:36 - And we also know from the Administrative Office of the US Courts, that field content was involved in this.

07:44 - And that’s all we know. We know that field content was maybe sort of probably accessed.

07:52 - We don’t know what content and there’s not much of a way to ask.

07:57 - I was able to talk to somebody inside the court system that told me a lot about how bad it was in their particular court.

08:03 - And I tried to get some reporters to follow up on it and I tried to get some people to talk to reporters, but that’s as far as we can go.

08:13 - We should be able to ask the judicial branch what’s going on with that.

08:21 - The next one here is, and I’m gonna get into this a little bit more on my next slide, but there have been various allegations with various judges of actual and proprietary, and what’s happening inside the judicial branch without this.

08:43 - Are there any disciplinary events? Are there any whistleblowers? Are there anything of that sort related to these? We just don’t know.

08:53 - We don’t know how the courts are handling these sorts of events.

08:58 - And then the third one that’s been in the news, if you sort of follow this kind of thing, and it’s an area where we’ve been working a lot is PACER fee skimming.

09:07 - And if you don’t know the PACER system, it’s how the public accesses court documents.

09:13 - It’s a big, complicated system I won’t get into but basically everything costs a little bit of money.

09:18 - It’s a dime per page and that money is supposed to go to supporting the PACER system itself.

09:25 - But recently in court, after a pretty long lawsuit, it was found that some of that money was going into other things where it wasn’t supposed to go.

09:34 - And they’re still figuring out what to do about that extra money.

09:39 - It’s about $40 million a year that was going to places it shouldn’t have gone.

09:47 - And it was happening for about 10 years and people had a feeling it was happening for about 10 years, but it took a really long time to figure that out for real and to really get that into the public via a court case, and partly because there’s no way to look at the financial documents inside the judicial branch.

10:08 - Next slide please. And so this slide I just wanted to include because when researching this topic, I wanted to see if do we need more transparency into the activities of individual judges? And I think even for myself, having worked in this area a long time, I didn’t realize how many judicial impeachments there had been.

10:39 - The grand total I think is around 30 or 40 impeachments, that I was able to find.

10:46 - And the reasons go all the way back to drunkenness, that tended to happen in the 1800s more, to graft, kickbacks, espionage.

11:00 - Judges doing espionage, it would be nice to have some information about that and see what sorts of documents are being written about that topic inside the judicial branch.

11:12 - And there’s even worth mentioning that we’ve had judges with really bad histories and they’re not getting impeached.

11:19 - What’s going on there? And these are pretty problematic people in some instances.

11:31 - So onto the next slide, please. So the next few slides are the top 10.

11:38 - I’ve talked to a lot of people in preparation for this meeting and to gather more understanding about what a judicial FOIA might look like.

11:47 - And I think there’s about 50 things people have suggested.

11:54 - And I’m just gonna go through these a little bit quickly.

11:55 - But we talked about disciplinary actions for judges.

11:59 - Same thing goes for attorneys with the lower reports.

12:02 - This is all stuff related to personnel and directly to individuals that there’s been some allegation of some kind.

12:13 - It’s important stuff. Financial records, I think that’s a pretty obvious one, people know that one.

12:19 - Contracts as well. The judicial branch, like many branches, has contracts with various defense providers and defense contractors and it would be great to get those contracts and understand them.

12:35 - The next one, fines and fees levied. What sorts of, what are you actually levying on people and on organizations? AO court guidance letters.

12:51 - When the administrative office wants to encourage the courts to do something, because they can’t necessarily tell them to do something, they will send a guidance letter.

13:04 - We had one of these related to PACER recently and I’m still trying to get my hands on that to see exactly what it says.

13:11 - But it sure would be nice to know how the administrative office is guiding the courts.

13:19 - Next one, Security audits, recovery plans, incident reports.

13:24 - We know about SolarWinds because of the access to field content.

13:28 - What else is going on related to security? And that also, I should mention, covers both physical security as well as digital security.

13:39 - So, you know, although a lot of the field content is online, it’s worth thinking about a lot of it is actually just in the courthouses and what sort of security is happening there? Some of this content has huge national security implications so it’s worth thinking about that.

14:00 - Next slide, please. The next one is the SCOTUS public calendar.

14:08 - We have this for the president. Would it be reasonable to ask for a public calendar for the Supreme Court Justices? Next one is a simple one I touched on earlier is the Judicial Conference Committee membership and minutes.

14:24 - I should say the subcommittee membership, actually, the Committee itself you know.

14:28 - But it’s wild that we do not know and it’s treated as a secret who these people are.

14:37 - List of judges, past and present. This is something that I’ve spent a lot of time trying to get an access to is who are all the judges that we have ever had? And can we build up a nice database of that for research and for investigation and for public knowledge, in general? This is the kind of thing that FJC provides in part but they do not provide magistrate judges.

15:07 - Magistrate judges do a ton of the work, but it’s just not something that’s provided, even though it’s information that they clearly have and there’s no reason not to share it with the public.

15:18 - FJC the integrated database I talked about earlier that has the blank column with judges.

15:24 - It’s just a good example of the kind of thing that you can say, hey, you know what, I know you have this document.

15:29 - Please give it to me. And then the last one that I think is worth mentioning here, this is something that a reporter I talked to suggested, is we know some of the stuff that we want, but once you get access with FOIA, you can start asking for the next thing and you start learning what you don’t have.

15:49 - And this is sort of the, you don’t know what you don’t know problem.

15:54 - And so it’s worth mentioning that as well. And then next slide, please.

16:06 - - And so the last couple of slides here talk about like, maybe provoke some questions from folks here.

16:15 - What do we include or exclude if we do write some sort of public access law? Field documents, probably we know the answer there.

16:24 - But I bet you there’s some corner cases that are worth thinking about.

16:28 - Court documents themselves, a lot of those are in PACER and accessible to the public, some of them are not.

16:35 - Trial exhibits, for example, are not in PACER.

16:38 - If you want those currently you can ask for them, you might be able to get them, but it’d be nice if we had something better than just Common Law Right Of Access.

16:47 - Judicial papers, under what circumstances would you consider those a reasonable thing to ask for? Clerk selection criteria.

16:56 - That’s something a lot of law students would kill for.

17:01 - When judges retire, they send a letter to the president, typically.

17:05 - Can we get our eyes on that? And then of course, there’s the FISA court that deserves a mention here.

17:11 - How does all of this play out in one of the most secretive parts of the entire government? It’s worth thinking about because any rule that you apply to other courts probably is gonna end up applying there as well.

17:26 - And then next slide, please. And then the last couple of things, these are some problems that you might run into.

17:35 - I think Daniel hinted at this also. How do you appeal rejected requests? Are you gonna have a panel of judges? Do you request something from the administrative office and it goes to a judge or does it go to a panel? Does it go to an administrative group somewhere? How do you solve that sort of problem? And how close do you get to judicial proceedings and papers? Would you want your law to go? What effects would FOIA and the judicial branch have on FOIA oversight that we haven’t currently? Currently an executive branch FOIA is denied, it goes to a judge.

18:21 - Are those judges’ perspectives going to change if they’re also subject to something similar? And then finally what do you do when someone makes a huge request? If somebody asks for a million documents, what are you gonna do? Is the judicial branch ready for that kind of request and does it know how to respond? And with that sort of opening up the questions.

18:47 - I can go to the last slide and I’ll just say, thank you.

18:52 - I’m happy to be here and happy to open things up to conversation.

18:58 - - Great, Mike, thank you so much. That was really informative.

19:02 - I took a lot of notes. So I just wanna open it up to anyone or who wants to start asking questions, engage Daniel and Mike in conversation.

19:14 - So who wants to go first? Tom is raising his hand very respectfully and so is Tuan.

19:19 - Okay, Tom, first, Tuan second, Kel third. - Okay, Tom.

19:25 - I think it’s really useful to have that last slide on problems to overcome.

19:31 - And so I have sort of two related questions.

19:36 - One is you both mentioned the enforcement issue and I think the history of Congress enforcing against itself is not a very encouraging one.

19:50 - And yet I think the likelihood of Congress allowing the courts a role in enforcement is zero.

19:59 - But maybe Daniel could comment on that. And without enforcement, is it still worthwhile? The answer is probably so but that’s where I get into the political issue and that is looking back at FOIA, we all remember the original Lyndon Johnson, down at the ranch with a veto statement prepared by the Justice Department and only at the last minute talked into signing the bill by his press secretary.

20:28 - And then of course, Ford did veto the 74 amendments.

20:31 - What am I getting at? The executive branch never really embraced applying FOIA to itself, but of course, Congress had the power to do that.

20:43 - So is this really a fool’s errand for us even to think that Congress will apply some FOIA-like process to itself and likewise, the courts? Are we wasting our time thinking about that because the likelihood of that level of self-accountability and self-discipline is nil.

21:10 - And so complicated questions. - But a good one.

21:19 - So I’ll start with the question of enforcement.

21:23 - And I would say that in the legislative branch context, it depends on who you’re enforcing it against.

21:29 - So if you’re enforcing it against some of the support agencies, I can see that as being reasonable.

21:39 - We already have enforcement against the Copyright Office inside the Library of Congress.

21:45 - We have FOIA-like processes inside GAO, the Library of Congress, and a couple of other places.

21:55 - So they’re already doing it to some extent.

21:59 - The question is, who do you appeal to. If I were to create this out of whole costs, like the support agencies, what I would probably do is I would take a page out of the workplace rights model.

22:15 - So Congress has a similar problem with respect to applying health and safety laws to itself.

22:21 - You couldn’t go to the Department of Labor or outside entities to enforce wage and hour restrictions and how you unionize and all that other type of stuff.

22:32 - So what Congress did was they created the Office of Compliance out of the Office of Congressional Workplace Rights.

22:37 - That is an entity that basically promulgates the regulation that deals with all of the the initial level of requests.

22:47 - And then at a certain point you can appeal to the courts, depending on what it is.

22:52 - I think that that may work in the FOIA context.

22:54 - I don’t like having agencies being the judge of their own agreement or denial of a request.

23:00 - Having something else that sets forth the regulations and that deals with at least the initial level of appeal out of the agency probably makes sense.

23:13 - So you could imagine, I don’t have a few name for it but like a congressional FOIA office that’s responsible for regulations that applies to certain things and then you can know maybe and till it out to a three-panel judge in the federal courts or something like that.

23:30 - And so we do have a model for that type of thing.

23:34 - I don’t think FOIA’s gonna be able to get closer to the political side.

23:38 - I think what you’re going to have to do is actually go to the A section not the B section of FOIA, where there’s the long list of things that you are required to disclose under FOIA.

23:48 - And I would say that for a long list of things that you must disclose X, Y, and Z.

23:55 - And you have a long list of those things that that you have to do, just like FOIA has mandatory disclosure in certain sections.

24:02 - And you probably have to think through what enforcement looks like or you have like the data coordination office that I was talking about that helps agencies or entities think through how to implement that for the implementation of the FOIA A section.

24:20 - And for the B section, I would have an entity inside the legislative branch side that deals with uniform regulations, appeals, and then ultimately vindication to the court.

24:32 - And how do you divide that line, of course, will be a very interesting political question, which I will leave for further discussion.

24:40 - - [Mike Lissner] Yeah, I think I would just add to that that there’s a lot of stuff that is not gonna be a fight.

24:49 - I think there’s probably, rightfully, there’s a lot of focus on the most controversial content and what’s gonna happen with that.

24:57 - But I think coming from where we are now with the Common Law Right of Access, just having something encoded, just having a law that says exactly what the process is, boy, that would be nice.

25:10 - And for a lot of stuff you could say, look, here’s what I want, please give it to me and they’ll say, sure, no problem.

25:17 - And that’ll make a lot of things a lot easier.

25:21 - And I’ve tried to get content from the judicial branch in the past and it’s hard to even figure out who to ask.

25:27 - And you can spend days making phone calls and emails just to figure out who it is that has the thing you need.

25:34 - And so just having it codified would be a huge step forward for that kind of stuff? I think for on the other side, the stuff that’s more controversial or that the judicial branch doesn’t want you to have, necessarily, I think it’s worth noting, like in the PACER case where they were accused of doing this skimming, it was instructive to see how they talked and thought about themselves.

26:06 - And I think they do treat it pretty respectfully, actually, and they definitely understood that they were ruling about their own behavior and how important it was to be impartial in that.

26:20 - So that gives me a little bit of hope. And I think that you can also use the federated nature of the courts as well to create a panel of judges that is from a geographic.

26:33 - And so if you’re requesting something from Texas, let’s make sure that maybe the judge on that panel is not the same person.

26:40 - There’s a lot of leeway to do that sort of thing.

26:43 - And then the last point I’ll just throw out there is that by codifying something like this, you create a clearer story when it’s denied.

26:57 - When your request is denied, the press can talk about that clearly and they can talk about is it outrageous that it was denied and does it violate the law that it was denied? And that doesn’t necessarily get you the thing you need but it at least makes the public understand where things are.

27:24 - - [Alina M. Semo] Okay, Tom, you’re good? - [Tom] I’m good.

27:28 - - Okay, all right, Tuan, you’re up. - My question is, I have a comment and then a question.

27:36 - Perhaps on the other side of what Tom was saying, pragmatically, Tom was asking the question, is this pragmatic in that would Congress ever agree to this? So mine is the other side of things.

27:49 - Assuming for the sake of argument, that Congress were willing to adopt this.

27:54 - And let me say that I’m sympathetic with the need for greater transparency and accountability from Congress and the courts.

28:00 - And I certainly do think that FOIA’s current scope does seem to be transparency for the but not for me.

28:07 - But if Congress were to expand the definition of the agency, that it were revised to apply to congressional and judicial agencies, it strikes me that pragmatically we’d have bad effects on the other side.

28:20 - And I think Michael, you kind of alluded to this in the problems in your last slide.

28:25 - I think legislative enthusiasm for strengthening FOIA further and vigorous judicial enforcement would likely both suffer.

28:35 - In the political economy of transparency, in other words, there might be a policy trade off between the horizontal breadth of FOIA’s scope, applying to Congress and to the courts now.

28:50 - But then what would suffer would be the vertical depth of the transparency we’ve come to expect.

28:56 - And so I guess my question is, have you looked at all to states that have attempted to do this with their little FOIAs, such that they’ve applied them to the courts and the legislatures? Like Pennsylvania’s Right to Know Law, for example, applies to the courts and to their legislature.

29:19 - How does it work there? Is it nearly as vigorous and thoroughgoing as the FOIA is? - [Mike Lissner] Daniel, I don’t know if you have something, some stuff on that.

29:34 - I haven’t had any opportunity or I haven’t ever found anything about how the vertical versus the horizontal suffers.

29:43 - I think I could offer some thoughts about it but there’s a lot of smart people in here so maybe others have thoughts as well.

29:52 - - Yeah and so I’ve not looked at it at the state level.

29:55 - I’ve looked at international comparators instead, which is, of course, different systems of government.

30:03 - But I don’t have a good answer for you in terms of the request nature of FOIA.

30:12 - I find that in legislative models that bright lines and proactive disclosure largely works better than having some sort of an adjudicatory process.

30:25 - And in those, I mean, there’s exceptions.

30:28 - But I find that that tends to be better than having a more complicated process.

30:34 - But I don’t have enough data points to talk about the state in terms of what works well and what doesn’t work well.

30:45 - - I think the idea of an affirmative disclosure, say a 552a kind of model, as you were mentioning, Daniel, that that seems like a good idea for it.

30:56 - Even if it doesn’t have enforcement teeth, at the very least a hortatory sort of this is what you ought to be disclosing and this is what the law actually says.

31:04 - And it would allow partisans in Congress to call out the opposition for failing to bring something forward and that creates political pressure that can help get these things released.

31:18 - It’s the 552b stuff that I’m a little bit more skeptical of the, excuse me, the responses, kind of here’s my request model.

31:30 - I might say that one way that would be maybe better is that if this weren’t tied to FOIA, if it were a separate statute in such that Congress could continue to be enthusiastic about FOIA and the courts also.

31:49 - I do worry if the fates of Congress and the courts are tied up with FOIA, that what we’ll see is FOIA suffer.

32:00 - - I think that’s a good point. And that’s something that, from the conversations I’ve had, it’s like don’t use the word FOIA.

32:06 - Let’s not call it FOIA, let’s call it a public access law or something like that, and let’s not intermingle them.

32:14 - Because it’s not FOIA and probably trying to shoehorn one into the other will create these sorts of complications, I guess.

32:29 - - Okay. Tom, thanks very much. Are you good? Okay.

32:34 - Kel, I believe you’re next. And then I’ve got Jason and Allyson, in that order.

32:41 - - Hi, so I have a question, mostly for Daniel but it’ll be interesting to hear Mike’s viewpoint of this as well, coming from a different perspective.

32:52 - Congress and the congressional agencies tend to have a lot of overlap and intermingling to the degree that a lot of the executive branch really doesn’t have.

33:06 - And so, for instance, some members of Congress believe that any GAO product that’s created in response to something that they asked for is their legislative product.

33:18 - Or that the Capitol Police might say that, well we don’t make decisions because the Capitol Police Board, that’s made up by the Sergeant-at-Arms and the Architect of the Capitol, really control things.

33:35 - And so how would you suggest that we deal with this? If we’re going to try and make certain proponents subject to something, an open records type process.

33:55 - How would we address this sort of intermingling when you would have maybe one component that isn’t subject to it and one component that is subject to it and they work hand-in-hand and are fuzzy with no really clear lines between them to get things that everybody which is in the public would view as important? In 2019, good example, in 2019, there was a Capitol Police Inspector General report that said the capitol has security problems and if it were ever invaded, it would have problems and we’re having trouble balancing the need for security with the need for openness in security.

34:43 - This is a very tightly-held thing. This is something that I’m sure everybody would be interested reading now in 2021.

34:51 - But even going after it now, who would you go to? Is it a product of Congress? Is it a product of the Capitol Police? Is it a product of the Capitol Police Board? How do you deal with this kind of intermingled nature of congressional entities? - So I think you’re raising two questions with that.

35:13 - One question is the nature of the thing and the second question I think is who holds it? Who runs the second, like the provenance is.

35:23 - Like we run into this in the classified space a lot, who’s document is it? So let me take them in parts.

35:30 - The first one is, the question I would ask is is it individualized legislative advice that is intended and understood to be confidential? So I was an attorney with the Congressional Research Service and when a member office would call me and ask for advice on a particular matter and I gave them that advice, that is confidential.

35:54 - You don’t get it. That should never be made publicly available unless the member office makes that determination.

36:01 - I also wrote CRS reports that were available on a website that any of 10,000 staffers could access.

36:06 - That’s ridiculous. That should be publicly available.

36:10 - It’s not individualized, confidential advice relating to a legislative matter.

36:19 - GAO publishes all the reports. The reports that they don’t publish, they list their classified reports on their website and they hopefully tell you how to go FOIA it.

36:29 - So that is the model. That is a great model.

36:32 - It works well. They have a dedicated, they know that transparency and accountability go hand-in-hand and that if you wanna have government function properly you need to have both.

36:45 - The Library of Congress doesn’t really get that so their FOIA implementation is iffy.

36:50 - And the Congressional Research Service, where I used to work, they hate this stuff because of their institutional perspective.

36:56 - And they fight it, even when it’s things like the Plain Language description of legislation that’s available on Congress. gov.

37:04 - So those types of, so that’s Bizarro land, that’s not acceptable.

37:10 - The second question of well, who gets to release the document? Who owns it? The answer is whoever has it owns it.

37:18 - We shouldn’t be playing provenance games. If I write a dear colleague letter and I send it to you, Kel, because Kel, you’re a member of Congress, you can release it.

37:27 - Now, there might be a political consequence for you releasing it, although no one’s gonna really know that you did it.

37:34 - But if you have it, it’s yours. If I give it, if I’m a government employee and I give a document to a journalist, the journalist has it and that’s the end of that story.

37:43 - That’s the way that works. There may be consequences for the person who turns it over but once it’s out, it’s out.

37:50 - And I think that trying to be like, well, this is a CRS report, and this is a Committee document, or this is a, in the legislative context, generally speaking, that’s not a thing.

38:01 - There may be political consequences for doing so.

38:04 - So if I am on the judiciary Committee and the judiciary Committee staff write me a staff memo and I published it on my website, where I leak it, that’s a problem.

38:13 - But that’s a political problem. that’s not a sort of disclosure release problem.

38:22 - And people will adapt to the circumstances in terms of how they commute.

38:26 - where you draw that line will change the way their practices operate so they can make a determination of what they wanna keep secret and what they can’t.

38:35 - Actually, I did wanna, if it’s okay, Kel, I wanna close just to go back to one final point that Tom had raised.

38:45 - So one of the weird things, and I mention it ‘cause it’s very relevant to some of the folks participating in this group, are Committee records.

38:52 - Committee records, after 20 years in the Senate and 30 years in the House go over to the Center for Legislative Archives, where you can then go and FOIA.

39:01 - Prior to that point, the Center for Legislative Archives will give it to you, but only if you have the permission of the relevant Committee.

39:10 - But Committees aren’t continuing entities in the House.

39:15 - It could be a Democratic Committee or a Republican Committee that changes over time.

39:17 - All the members could be gone, it could be 15 years later.

39:20 - And Committees don’t have a point of contact or a process that you can ask.

39:24 - So, by way of example, I was looking for a list of everybody who worked in the White House in 1999 or 2000, which is an annual report that’s sent from the White House to Congress.

39:38 - I tried going to the Presidential Library. The Presidential Library’s a walk but fine.

39:42 - I tried going to the congressional Committee that received it, went to NARA.

39:45 - NARA was very helpful and thoughtful but they said, as is not unreasonable, you need to get the permission of the relevant Committee.

39:53 - And the Committee had no idea what this process was.

39:55 - They’d never heard of it. And they didn’t wanna extend themselves to provide these documents to me because this isn’t something that they usually do.

40:03 - And so when we think about how to design this, we need to be thinking about the request systems as well and not just the right.

40:13 - So the Committee has the authorization to go into the list of documents but they were afraid to do so because they hadn’t done it before and there wasn’t a point of contact and so on and so forth.

40:23 - So we need to think through, not just seek help and see who’s the responsible people.

40:28 - It’s not just like what the thing is and who owns it but the request mechanism as well.

40:36 - So hopefully that’s helpful to your question.

40:41 - - It is and you bring up an interesting point with the legislative archives.

40:47 - You held up the GAO FOIA or the FOIA-ish process, the internal regulation, as an example, but they do the same thing.

40:57 - Where they release their reports but if you say you want their file that went into creation of this report, they say we won’t give it to you without the permission of the person who requested the report 20 years ago and you run into the same problem.

41:14 - And so that’s sort of, the needle that I’m trying to figure out how to thread.

41:21 - I agree with you that it shouldn’t matter but GAO and Congress don’t appear to agree with you.

41:26 - And so how do we address the concerns of how do we convince Congress that Daniel Schuman is right and that whoever has physical custody of a report, whether it be the US Capitol Police, Inspector General, or GAO can release it? - So I still think this works within the first framework that I described, although you might disagree.

41:51 - GAO, when given documents in a responsive nature, like not through subpoena.

41:56 - Just sort of here you go for your investigation, just kind of directed, it is a private, confidential communication that relates to legislative activity.

42:05 - So GAOS conduct of the investigation when they’re investigating whatever entity that gives the the responsive documents, that’s done for a legislative purpose, done on a confidential basis and it’s sort of in that space.

42:20 - So I would distinguish that. I think that that is different from a lot of the other stuff.

42:29 - So the number of arrests by the Capitol Police is not a legislative matter.

42:34 - It’s not really confidential. It’s just fundamentally different.

42:40 - The number of computers they bought is fundamentally different.

42:44 - Those who are just different from I’m holding a hearing into SolarWinds and I go and I request thousands of documents from all these other folks ‘cause Congress has an interest in making sure that people either give stuff voluntarily or comply with the subpoena.

43:05 - And they’re less likely to fight if Congress controls that aspect of the release mechanism because it’s closely tied up with legislation or oversight.

43:15 - So, this isn’t helpful, I think to your point.

43:18 - But I can see the further away you get away from that purely legislative and oversight function that is intended to be confidential that goes underneath that process, I think the more likely you’re gonna have a strong argument that FOIA would make sense for it and as you get more into it.

43:41 - I wrote a bill because a constituent emailed me.

43:47 - I’m having trouble getting my social security check in the called member’s office.

43:52 - No. There’s different, for me at least, I think there’s different valences to those types of those functions.

44:02 - I am sympathetic to where you come from having filed FOIA-like requests on exactly that basis.

44:09 - But I’m not sure that FOIA would be the right process for that.

44:15 - There might be something else that we need to think of that would work better as you get more closely to the legislative.

44:32 - [Mike Lissner] I think you’re muted, Alina.

44:39 - - [Alina M. Semo] I said, Daniel, thank you for that great answer.

44:42 - Kel, are you good? - I’m good. Daniel and I could carry on like this for two or three hours, so let’s move on to somebody else.

44:51 - - [Alina M. Semo] Yeah, so I believe Jason is up next, Jason Gart.

44:55 - - Jason Gart here for History Associates, Incorporated.

44:58 - Daniel, Michael, thank you very much for the interesting conversation.

45:02 - I wanna focus in again, on the historical records, I’m a historian.

45:09 - And Daniel, you mentioned that member records for members of Congress could be burned in I think it was the backyard barbecue was the comment.

45:20 - Ultimately my understanding is the records created in a senator’s or House office, that’s their property, their records, which is the way it is.

45:33 - But that also means that a lot of the records go to universities and various places all over the country were scholars use them and have access to them because they’re localized in a way that they’re not localized when they’re at the Center for Legislative Archives.

45:52 - So that’s my first comment. Second comment or second question is House Rule 7 and Senate Rule 474, which essentially sets when they are open, I think it’s 30 and 20 years, the provision for, excuse me, we have some neighbors here.

46:18 - The provision for that is actually held over when the records go into the Center for Legislative Archives.

46:28 - So NARA (National Archives and Records Administration) has essentially acquiesced and said we’re gonna take these records.

46:34 - We understand that records are still owned by members of Congress, and we’re gonna keep them separate for these 20 or 30 years.

46:44 - So I guess the question is, and this goes back to Tom’s comment is, is maybe the stepping stone NARA and saying hey, look, we’re not gonna except these records if they’re not actually subject to the provision of FOIA like all the other records that are housed in the National Archives.

47:00 - So I just, I open that up but very interesting conversation and apologies for the neighbors’ kids that came in.

47:09 - - Not to worry with the neighbors. So, and I hope you jump in if I miss parts of this.

47:14 - And, of course, I’m sure you’re more familiar than I am, although I’ve attended a number of meetings for the Advisory Committee, on the records of Congress, which is the entity that meets twice a year.

47:24 - For those who aren’t familiar with it, largely historians.

47:28 - It actually was really interesting getting non-historians on it because we interpreted it and talked about it from a data perspective.

47:37 - Let me take your second question first. The second question is NARA holding the records.

47:41 - So NARA’s not the only place that does it. GPO does that as well.

47:44 - A lot of the classified records will go over to the Government Publishing Office.

47:47 - Congress literally doesn’t have the physical space.

47:51 - And I don’t mind, particularly when Committees turn over having a safe place for the Committee records to go.

47:58 - I think that that like, that doesn’t concern me.

48:01 - I don’t like the 20 and 30 years. I think that that’s unreasonable.

48:04 - I think it should be shorter. I think that the greater period of time, I think it’s 50 years, although you guys are probably the only people on the planet who know better than I do whether it’s 50 years for classified material.

48:15 - But it’s a much longer period for classified matters than for unclassified matters without even looking at whether they’re even properly classified, which is a whole other question that you guys could probably talk about better than I could.

48:27 - But I don’t mind having expert archivists holding onto congressional records.

48:34 - That’s not offensive to me, I think that’s fine.

48:37 - And I think I would actually rather have archivists and historians and records management folks in there the day that the member opens up their office.

48:47 - The second they start, they should already be designing their systems so that it’s preserved and retained and managed in a way that is useful, both for them and how they run their offices and then for keeping it afterwards.

48:59 - So that is actually how I would, if I were running the world, I would think it’s obviously a need for a Congress and thus this conversation.

49:06 - But if I were running this part of the world, I would probably do that that way.

49:12 - The other, it was both the point and the comment that you made had to do with the personal office records.

49:18 - Now whether they’re public or not is a decision.

49:21 - And that is a decision that the House and the Senate each in their own rules can change.

49:24 - I think this was true for Committee records for a long time that you could also burn them as well, and that hasn’t been true for awhile.

49:30 - But I don’t remember the details of that so that might not be right.

49:35 - And there have been concerns about commingling a personal Committee record, such that Committee records end up in the personal office and that’s end up in the barbie, which is probably not what you want.

49:45 - There is value, I think, in how members, is it accession, is that the right word? How they provide their records to local universities.

49:57 - But they can also go through them and burn them or parts of them.

50:00 - They can withhold them on bases that have to do with embarrassment, that have to do with other things that are not necessarily relevant.

50:07 - A number of members just toss their stuff or things get sort of lost in the process.

50:12 - I do think that there is value in having materials available around the country but it also makes it harder to get access.

50:21 - But more and more congressional records are born digital records.

50:27 - So the federated nature of the way these things are being created suggests that there may be value in having more of an overarching system for making sure that they’re digitized, making sure they’re properly cataloged, having similar cataloging standards, having a federated search engine so if I’m looking for a particular document, like the subcommittee prints I’ve got behind me, I don’t know who’s got it, but someone probably has it and it’s hard to find and looking in WorldCat is not gonna necessarily get you there.

51:00 - So thinking through on a going forward basis, what do you do with these born digital records? How do you make sure that everything flows together? What assistance do you provide to people as they accession it to their local university or to something else? I think that would probably be something that makes sense.

51:15 - And I suspect that Mike probably has similar thoughts with respect to judicial papers because it’s gonna be the exact same kind of problem in terms of what judges do with their stuff.

51:26 - I’m not aware of an advisor Committee on the records of the judiciary, although there may be such a thing.

51:33 - But they do beg similar questions around chamber records as you do for individual member of Congress records.

51:45 - - Yes. - I have not heard, I have not looked into what happens to those records long-term maybe.

51:52 - I have not heard of them going to universities so I’m guessing it’s mostly just the barbie.

52:03 - - [Alina M. Semo] All right. Well, thanks for that, Daniel and Mike.

52:06 - Jason, you’re good? - Yeah, I guess I would say that one of the challenges, and you mentioned the creation of the records once members first enter Congress and their thoughts on where their records should go.

52:21 - And again, my understanding is that some members of Congress are thoughtful from the very beginning.

52:28 - I think probably most members of Congress would like their papers to go to some university or repository in their locale where they live.

52:41 - I think one of the challenges, the real-world challenges they face is that they’re given a very short amount of time to clear their offices.

52:49 - If the election is November 7th, they’ve lost, they may need to be out of those offices by early December.

52:58 - And perhaps writing the records, will be temporarily preserved at a federal records center may help.

53:05 - And that’s again kind of conventional information that I’ve heard over time.

53:10 - But again, I think the stepping stone to try to push Congress to do some type of FOIA process or procedure, one stepping stone, at least for me is again, the role that NARA plays right now.

53:26 - There is a Center for Legislative Archives, which is a terrific repository, terrific archivists there.

53:32 - That said, they’re being housed in error. Everything else in NARA follows FOIA.

53:38 - There’s an exception for these records. That to me is a stress point or a push point.

53:45 - So very, very interesting. Thank you for briefing us on this Daniel and Michael.

53:52 - - [Daniel Schuman] Yeah, absolutely. This one final point of it’s not just when members lose their election they’ve got weeks.

54:02 - They have to be out of their office in like two weeks.

54:04 - Like they come in and they end up in cubicles for their last month in Congress that are set up in the cafeteria.

54:11 - And then if a member dies, which happens not infrequently, then the court comes in and takes over but what happens then? So there are real, and particularly when you look at the Senate, where a lot of them stay there and expire there.

54:31 - I don’t know a delicate way to say it. They tend to die in office more frequently than one would expect.

54:38 - Although they have a better archival support process, they may just not be ready.

54:42 - And the House members, in particular, they’re just not ready.

54:45 - It is never a priority for them to do the historian archival stuff.

54:52 - It’s never, it’s not really supported in the way that they need it and it’s just not what they do.

54:59 - They may think about it afterward but this is where more support could help streamline that process because it really is, as you mentioned, your mileage will very much vary depending on the member.

55:17 - - [Alina M. Semo] Okay, all right. Thanks for that, Daniel.

55:20 - Jason, you’re good? - [Jason] Yep, thank you.

55:22 - - All right, so we’ve got about five minutes.

55:24 - We’re running a little bit over but I know we have a little wiggle room in our agenda.

55:28 - We’ve got about five minutes left. Allyson, I know has a question so I will not deprive you of that opportunity.

55:34 - So please take it away. - Thanks, Alina.

55:37 - The question is mostly for Daniel. Michael, feel free to chime in too.

55:41 - But it’s more, it’s something like if FOIA were to be instituted in Congress and in the judicial branch, what do you see that interplay between the different branches looking like? Like currently most of the congressional communications in the executive branch are subject to FOIA, unless they’re marked as congressional records and then exempt from FOIA.

56:03 - Do you see some sort of reciprocity with certain executive branch records or the executive branch maybe being able to assert some more deliberative process or other privileges that they would provide the information to the Hill, but the Hill would be under obligation not to release it to the public maybe similar to what the GAO does? What are your thoughts on that? Thank you.

56:25 - - Yeah, that’s a great question. So the marketing as a congressional record is not something that I would respect as being exempt from FOIA to begin with.

56:33 - So like that probably puts me at variance with what some of the former Committee chairs would say.

56:44 - I think that it creates a push to limit FOIA.

56:49 - I think that if you do it in the same regime, it creates problems.

56:54 - This is why I tend to favor more straightforward, proactive disclosure requirements as opposed to the balancing questions, where it’s categories of stuff.

57:07 - So if one bill that I’m working on right now and I’ve been working on for a decade is a law that would require all mandated reports to Congress to be publicly available.

57:17 - And there’s a carve-out in it, which is that it puts it through the FOIA process, so that the agencies would basically redact it in accordance with FOIA for what is released.

57:32 - So I’m trying to have a separate law that is a clear application that applies to executive branch materials but also is respectful of some of the decisions that we’ve made in terms of what’s disclosed and what’s released.

57:53 - I don’t have a problem with communications from Congress to the executive branch being FOIAed in the executive branch.

58:00 - I think that is a fine thing. In the reverse, I don’t have a problem with either communication…

58:08 - It seems inequitable but it doesn’t seem unjust.

58:12 - I don’t mind necessarily that mechanism. I think where it gets weirder, I mean, all this stuff is weird, but where it gets weirder is I am in a senator’s office and I’ve heard that this support agency is improperly protecting records.

58:31 - And I write them a letter and I say, hey guys, you’re outside the firewall and you’re gonna get the stuff stolen by a foreign agent or a foreign adversary.

58:41 - Is that deliberative? I don’t think so.

58:44 - It’s not classified because they can’t really classify stuff, except under the Atomic Energy Act and that doesn’t really apply.

58:51 - That’s where things start to get weirder and I don’t know how you deal with those cases.

58:56 - Much of my career, for what it’s worth, has been here’s a simple, straightforward, obvious example of something that should be publicly available.

59:05 - CRS reports should be publicly available. All bill summary status information should be publicly available That range of stuff and just picking off pieces of things that are either inherently obvious or that congressional offices need and they can’t get access to.

59:21 - ‘Cause FOIA, we should remember, in transparency and I know you guys know, it’s not just about the public and it’s not just about historians, it’s about the person who’s sitting next to you.

59:31 - It’s about the person in your office, the next office over.

59:35 - We have huge problems where agencies send reports to Congress, for example, that goes to Staffer A and the person sitting next to them never sees it.

59:42 - And when Staffer A leaves, it’s gone. There’s a records keeping problem that we’re using public transparency as a mechanism to fix.

59:52 - The same thing with there’s terrible technology.

59:55 - They have all these dear colleagues that are awful.

59:57 - You can’t go through all of them, but if they become publicly disclosed, someone can build a better system so you can find what you’re looking for.

60:04 - We’re using, in many respects, transparency, not just for transparency’s sake as well as for public accountability but to improve the internal availability of information.

60:16 - And that’s why I like, I told you that’s why I like the Data Act, that’s why I like those things.

60:21 - Make information available not just to the public stakeholders, but to a lot of the folks inside who need that information as well.

60:27 - Sorry, that was a long-winded diatribe. I will stop.

60:29 - But hopefully that was responsive to your question.

60:32 - - [Allyson] Yeah, that’s helpful. Thank you.

60:36 - - [Mike Lissner] If I have time to just add one little thing- - [Alina M. Semo] Yeah, please.

60:40 - - One other thing that many of the comments so far have been giving me a lot of consideration of is that there is currently the FOIA only applying to some areas.

60:51 - It’s kind of like you have someone who’s gabbing in your conversation.

60:56 - And so there’s actually a motivation not to share things that would then make that thing subject to FOIA.

61:03 - And that creates friction. Friction in communication, friction in getting things done.

61:09 - Instead of emailing something, you gotta pick up the phone ‘cause no one’s gonna FOIA your phone call.

61:16 - And by actually bringing public access laws into the government broadly, it should create a better economy for sharing information amongst everybody.

61:30 - Rather than worrying, oh, if I do this thing then now it’s gonna be subject to FOIA and maybe I don’t want that.

61:37 - You can actually create a better information by bringing everything out into the open by default or more things into the open by default, I should say.

61:48 - - Okay. All right, well thanks Daniel and Michael.

61:52 - This has been really, really fascinating. I think we were all very engaged.

61:56 - Lots of information to take in and to think about and we really appreciate all of your suggestions.

62:02 - We, I’m sure will continue to dialogue with you as the subcommittee on legislation looks at these issues.

62:10 - And thank you again. We really appreciate it.

62:13 - You’re welcome to jump off now. We’re gonna move on to the public comment section of our meeting.

62:19 - So again, we thank you for your participation and time.

62:23 - - [Daniel Schuman] Thank you so much for inviting us.

62:25 - - [Mike Lissner] Yeah, thank you for having us.

62:26 - - Thanks. Thank you very much. Okay, so we have now reached the public comments part of our Committee meeting.

62:33 - I know I went a little bit over but I still had a little bit of wiggle room.

62:37 - Didn’t wanna cut off the great discussion we were having.

62:40 - So we’re gonna invite non-Committee participants who have ideas or comments to share to do so at this time.

62:47 - We post on the FOIA Advisory Committee webpage any written comments we receive.

62:52 - Oral comments are captured in the transcript of the meeting, which we’ll post as soon as it is available.

62:58 - We’re going to open up our telephone lines.

63:00 - Michelle, if you could please provide instructions again to our listeners for how to ask a question or make a comment via telephone, that would be great.

63:09 - - [WebEx Operator] Absolutely, my pleasure.

63:10 - So ladies and gentlemen, if you would like to make a comment at this time please press pound two on your telephone keypad to enter the question queue.

63:19 - Once again, pressing pound two will enter you into the verbal comment queue.

63:25 - - All right. I’m just gonna ask Martha[Murphy] first, do we have any questions or comments that we received via chat during the course of the meeting? - [Martha Murphy] Hi, can you hear me? - Yep.

63:41 - - [Martha] Okie doke. So one person on YouTube chat has a question for the Classification Subcommittee.

63:48 - When do you think the questionnaire is gonna be finished and sent? Have we a questionnaire regarding Glomar? - Yeah, this is Kristen Ellis from the FBI.

64:03 - We do not currently have an anticipated date when that’s going to go out.

64:10 - We are still at the very beginning stages of developing the questionnaire, determining what questions to include, what type of information we’re trying to elicit, and identifying the specific agencies that we’ll be querying.

64:24 - So we may have an update on date at the next meeting but right now it’s very preliminary.

64:33 - - [WebEx Operator] Okie doke. Mr. [Robert] Hammond has submitted some questions.

64:37 - Some were things that were in his previously submitted comments, which will be posted on our website and will go to the Committee, of course.

64:47 - But he was wondering if you could provide a very short update on the status of recommendation number 19.

64:55 - This is the recommendation that recommends that Congress engage in more regular and robust oversight of FOIA.

65:02 - And so I think our Congress, our Congressional Committee may be able to address this.

65:09 - - [Tom] Sure, this is Tom McClanahan. Oh. - Go ahead, Tom.

65:15 - - That’s actually one of the big reasons that our subcommittee exists.

65:21 - We have a separate working group on how to make OGIS function better, whether it be giving them more power or giving them more resources or affecting how agencies interact with them that is undertaking that.

65:40 - But we also have a separate subcommittee on dealing basically how oversight works.

65:49 - And then we make recommendations for how agencies should improve their oversight or sorry that Congress should improve its oversight.

65:58 - So that is a big part of our initial mission plan.

66:02 - Now, unlike most of the other agencies, most of the other subcommittees, we do operate on a bit of a six-month schedule as opposed to a two-year plan so this may change in June.

66:15 - But the things that we’re not done working on we’re gonna carry over probably into the next one.

66:20 - But this does mean that we anticipate to have some work done, some movement on actually making concrete legislative proposals for this stuff in the near future, whether it be in three months or six months or nine months.

66:39 - - Okay. - Okay, thank you. From Alex Howard.

66:43 - He asked are all of the FOIA officers on the Committee hosting Sunshine Week events or inviting requesters to participate? If not, why not? - So this is Bobby [Talebian].

67:01 - I think Alina, you teed this up earlier and DOJ is hosting a public event.

67:07 - I believe there are other agencies that are doing it as well.

67:12 - - This is Allyson from Commerce. I know at least some of our Sunshine events on Tuesday, March 16th are open to the public.

67:25 - - [Alina M. Semo] Okay, we currently have one comment or question in the queue on the phone.

67:29 - So if the caller can go ahead, please, that would be great.

67:35 - - [WebEx Operator] Caller, you may go ahead.

67:36 - Your line has been unmuted. - [Bob] Yes, hi this is Bob Hammond.

67:43 - Are you able to hear me? - [Alina M. Semo] Yes.

67:47 - - [Bob] Okay. I had a couple of follow on questions for recommendation 19, those are in the chat.

67:53 - And so maybe you guys could give me an email or something on those.

67:58 - These are why I spent a little bit of time and it doesn’t look like we have much work for the Technology Committee.

68:05 - And I don’t know if we have anybody on the line from EPA.

68:09 - Maybe we can make this more the focus of a future meeting.

68:12 - But EPA has developed really an excellent FOIA portal.

68:18 - But in the implementation, there are some drawbacks that really hamper public disclosure.

68:25 - For example, if you were to look for my FOIA request, first if you look by my name, you’ll find that hardly any of ‘em are on there.

68:33 - None from Navy in public domain. So nobody can search my FOIA requests.

68:39 - And the requests themselves are not visible.

68:42 - You talk about Sunshine Week, I think sunshine’s a great disinfectant.

68:47 - And if the FOIA requests are public and all of the records that go with that, the correspondence and everything, if all of that is publicly available, that would address a number of my issues.

69:03 - There’s no reason for a FOIA request to be private.

69:08 - MuckRock allows them to be embargoed for a period of time.

69:12 - If you’re a member of the media, you don’t wanna give up a scoop.

69:15 - But a FOIA request is a public action. There’s no reason for it not to be public.

69:21 - In some cases, agencies are concerned about exposing privacy information.

69:26 - If it’s my information, I choose to disclose it.

69:29 - But one of the things that they voiced concern about is I exposed the names and email addresses of persons who have submitted information to me.

69:44 - And anything that comes from me as a private requester is already in the public domain so nobody should redact a FOIA request.

69:53 - There’s no reason for them to be private. I don’t know if we have anybody from EPA but I have six recommendations.

70:01 - I think my email to you only showed five. Another drawback, FOIA online has a capability for communications where the agency can communicate with the requester.

70:13 - They can put the documents in there that they’re releasing.

70:16 - That’s a good function, but at the outset, the agencies can block that from being used.

70:23 - So you can’t submit your follow-ups through there.

70:25 - You can’t challenge some of their decisions and all those things through the communications portal.

70:32 - And there are a number of those that I think are pretty good recommendations to make the process really what you all intend it to be.

70:42 - It’s public disclosure. And I know we don’t have very much time now but my question is there anybody on the line from EPA? - [Matthew Schwarz] Yeah, this is Matt Schwartz from EPA.

70:55 - I can respond to this. - [Bob] Yeah, hey, great Matt.

70:58 - Thank you. I appreciate your coming and probably on short notice.

71:01 - - Hi there. No, no, that’s fine. So just to clear up, EPA did develop FOIA Online but EPA no longer manages FOIA Online.

71:10 - That was passed off to an intergovernmental group a few years ago and they do take public comments.

71:18 - They take those, if you email recommendations to the help desk, there’s an email address on the FOIA Online landing page, they consider those.

71:27 - And there are regular updates done to FOIA Online and those go to this intergovernmental Committee.

71:33 - So EPA actually doesn’t manage FOIA Online anymore but I’d encourage you to send those to the help desk.

71:39 - - [Robert Hammond] Well, I’ve done that and I haven’t gotten any response.

71:42 - And when I submitted a FOIA request to see who was on the Committee, I don’t have the information as to who’s on the Committee.

71:51 - That should be public. Is that something that you can provide to me? I’d like to be able to make recommendations and be able to engage with the Committee to provide perspective, if I can.

72:05 - - Right, I mean if it’s an active FOIA request, that’ll be responded to.

72:09 - But as far as information that goes to FOIA Online, I wouldn’t have any, EPA doesn’t have any hand in that at all anymore, unfortunately.

72:21 - - [Bob] Okay, I’m just trying to find out who’s on the Committee, like this Committee.

72:25 - And maybe members of this Committee are part of that intergovernmental working group.

72:31 - Might be because you have a Technology Committee.

72:34 - And if that’s the right Committee, then I know who to talk to.

72:40 - - Hi, this is Patricia Weth with National Labor Relations Board and my agency is one of the FOIA Online partner agencies.

72:55 - We use FOIA Online as our case management system and to receive and send FOIA request information.

73:07 - So I’m on our FOIA Online Committee with our agency partner agencies.

73:17 - If you wanna send the recommendations to me, I’d be happy to forward them.

73:24 - - [Robert Hammond] Yeah, sure. And I don’t know if there’s an opportunity for public comment when you have your meetings, and those kind of things, but I greatly appreciate that.

73:34 - Patricia is your email in the body of records for today? - [Alina M. Semo] So everything that you, Mr. Hammond, everything you sent us we’ll be happy to forward on to Patricia and otherwise send it on to foia-advisory-committee@nara. gov and we’ll forward it on to Patricia.

73:52 - - Yep. - Yeah. - [Robert Hammond] Okay, well, listen, I tell you, that would be, I think FOIA Online would be the gold standard, with just a couple of tweaks to make it transparent and better for the users.

74:08 - It’s a great, great application. - [WebEx Operator] Thank you so much for your comment.

74:14 - Alina, we’ve got one more that came in through chat.

74:19 - Sean Moulton is asking the Process Subcommittee if they’ve thought about looking into FOIA changes that had been put in place by agencies due to the pandemic and the effect on FOIA processing? Looking for best practices to minimize the impacts of the COVID outbreak and the need to telework.

74:47 - - [Mike Lissner] We, I had not occurred to me.

74:51 - I think the lobby will have seen an impact.

74:53 - I think that’s a question worth fielding in terms of what changes people have seen.

75:02 - And I think there’ll be some new practices put in place that might be helpful to kind of think about going forward.

75:12 - If you have specific questions you think would be useful to supply, like on our requester survey, I’d be really interested in those.

75:22 - - This is Bobby [Talebian] from DOJ as well.

75:25 - I just wanted to add to that. And we have done some consideration.

75:29 - I know that the tech Committee has thought about that as well a little bit because technology is such a big connection to the issues and challenges that presented it to agencies in the pandemic.

75:41 - But also this month, we are holding a couple of best practices with agencies with the CFO Tech Committee and OGIS to get some of the best practices and get a better view of the challenges of agencies over the past year.

75:56 - It’s something that we’ve been looking closely at.

75:59 - We issued guidance pretty early on to agencies to help mitigate the challenges and also asked agencies to report on it in their CFO report.

76:08 - So we’re doing a lot of information gathering, a lot of review of what agencies are doing, and we’re gonna be doing a lot of sharing of best practices and strategies that I hope to be able to also publish in a way where all agencies can benefit from that.

76:20 - So it’s definitely an area that we have a lot of activity on too.

76:26 - - Great, Bobby. Thank you. So I know we’re at one o’clock, 1:01 PM.

76:31 - I know most of us have other commitments that we need to move on to.

76:34 - I just want to wrap everything up. Thank all the Committee members for all the great work you’re doing so far.

76:41 - We’ve already highlighted our Sunshine Week events for both the Department of Justice and NARA, so I hope the public will join us for all of those.

76:50 - I wanna thank everyone for joining us today.

76:52 - Hope everyone and their families remain safe, healthy, and resilient.

76:56 - We will see each other again virtually at our next meeting, Thursday, June 10th from 10:00 AM to 1:00 PM Eastern time.

77:06 - So are there any other questions for our Committee members or any comments or concerns? I’m seeing some shaking of heads no.

77:15 - Okay, it’s been a great meeting. Thank you everyone for your attention.

77:18 - Really appreciate all the interactions. And we will talk soon.

77:23 - We stand adjourned. Thank you. - [Man] Thank you.

77:27 - - [Man] Thank you. - Okay, bye. - That completes our conference.

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