Ladies and gentlemen, welcome, and thank you for joining today's FOIA Advisory Committee meeting. Before we begin, please ensure that you have opened the WebEx participant and chat panel by using the associated icons located at the bottom of your screen. You are welcome to submit written questions throughout the meeting, which will be addressed at the Q&A sessions of the meeting. To submit a written question, select all panelists from the drop-down menu in the chat panel, then enter your question in the message box provided and send. Please note all your connections are currently muted and this conference is being recorded. To ask a question via WebEx Audio, please click the raise hand icon on your WebEx screen, which is located above the chat panel on the right. To place yourself in the question queue, if you are connected to today's meeting via phone audio, please dial pound two on your telephone keypad to enter the question queue. If you require technical assistance, please send the chat to the event producer. With that, I will turn the webinar over to David Ferriero, Archivist of the United States. Sir, please go ahead. Thank you, Michelle. Greetings from the National Archives flagship building, which sits on the Ancestral lands of the Nakajitang peoples. It's my pleasure to welcome you to the sixth meeting of the 2020-2022 term of the Federal Freedom of Information Act Advisory Committee. And I'm pleased to welcome our newest member to the committee, Dion Stearns of the Federal Trade Commission, who I appointed last month to fill the vacancy created by the resignation of Lubna Haddad of the Defense Intelligence Agency. Thank you to Lubna for serving on this fourth term of the committee. And thank you, Dion, for holding up your sleeves for the last seven months of this term. Committee's charter notes that in addition to developing recommendations for improving FOIA administration, the committee also should develop recommendations for improving proactive disclosures. I understand that the technology committee is building on the work of the 2016-2018 term of the committee, which offered 11 types of records to prioritize for proactive posting. Here at the National Archives, we take seriously FOIA's mandate to proactive and post records of general interest. You may have heard news in the last couple of weeks about the role of the National Archives with regard to presidential records and executive privilege, for instance. I invite you to visit the online National Archives FOIA Reading Room at archives.gov, which contains dozens of letters related to the request for presidential records by the House Select Committee to investigate the January 6th attack on the U.S. Capitol. Other selected records available on our website include records related to my Task Force on Racism, which I convened in 2020 to recommend changes in support of an equitable environment for all National Archives customers, internal and external. Also on our website are FOIA logs, an employee locator, and an organizational phone list, among many other records frequently requested under FOIA. These postings set a great example for proactive disclosures across the government. Committee members, I look forward to hearing about the ideas you all have been shaping since the September 9th meeting on a range of FOIA matters, including FOIA funding, first-party requests, and agencies use of the so-called GLOMR response to neither confirm nor deny the existence of records. Today marks the eighth virtual meeting of the FOIA Advisory Committee, which last met in person on March 5th, 2020, when those of us in the William G. McGowan Theater here at the Main Archives Building refrained from handshakes and used copious amounts of hand sanitizer. Twenty-one months later, after the pandemic turned our world upside down, we continued to face uncertainty as to when we might meet again in person. For the time being, I wish you continued resilience as the days grow shorter between now and December 21st, and happy holidays with your families and loved ones. Finally, if you have not already watched the National Archives Foundation's recent event with former FOIA Advisory Committee Margaret Quokka, discussing her book, Saving the Freedom of Information Act, I urge you to watch the National Archives YouTube channel, longtime FOIA Advisory Committee, Tom Sussman, interviews Professor Quokka about the role that FOIA plays in fostering dramatic, dramatic, and dramatic accountability and transparency. I now turn the meeting over to Alina Simo. Thank you very much, David. Good morning, everyone. As the director of the Office of Government Information Services, OGIS, and this committee's chairperson, it is my pleasure to welcome all of you to the sixth meeting of the fourth term of the FOIA Advisory Committee. I hope everyone who's joining us today has been staying healthy, safe, and well. I want to welcome all of our committee members today and express my continuing gratitude for your commitment to studying the FOIA landscape in order to develop recommendations for improving the FOIA process government-wide. I especially want to welcome Dion Stearns of the Federal Trade Commission, as David noted in his welcoming remarks. He appointed last month, he appointed Dion last month to fill a vacancy created when Lubna Haddad of the Defense Intelligence Agency took on new work responsibilities and resigned from the committee. I do want to thank Lubna for her work on the committee and particularly her work on the classification subcommittee. Dion is Assistant General Counsel for Information at the Federal Trade Commission, the FTC, whose headquarters sits right next to the National Archives, Slack Shipbuilding, and Downtown Washington, D.C. Prior to joining the FTC, Dion fulfilled a variety of FOIA and privacy act responsibilities at the Department of Justice's Executive Office for United States Attorneys, EOUSA, and the Office of Information Policy, OIP. Her experience ranges from processing FOIA requests to serving as Agency Counsel in FOIA litigation to training senior officials on FOIA. Dion is a graduate of Howard University and Catholic University's Columbus School of Law. Dion has already jumped into committee work by attending all four of the most recent subcommittee meetings. Dion, thank you for that. And she is deciding which subcommittee or subcommittees she will join. I told her there's no limit. Welcome, Dion. We are very glad that you are here. I also want to welcome our colleagues and friends from the FOIA community and elsewhere who are watching us today, either via WebEx or with a slight delay on NARA's YouTube channel. So some housekeeping rules and announcements that we always go through at the beginning. Committee members, please bear with me. First, I would like to introduce our fearless leader, the committee's designated federal officer, DFO Kirsten Mitchell. Kirsten's going to help make sure that I stay on track today, as always. Kirsten has taken a visual roll call, confirms that we have a quorum. We expect Tuan Samahon to join us a bit later today. And I am advised that Tom Sussman will have to depart the meeting at approximately noon, but he may be able to call back in, so that would be lovely. A few words about public comments. We have received several written comment submissions in advance of today's meeting. We have reviewed all of them carefully and evaluated them prior to posting them to ensure they satisfy our posting policy for public comments, which is available on the FOIA Advisory Committee website. We have posted these public comments after remediating them to ensure they are compliant with section 508 of the Rehabilitation Act. We have received so many public comments that we are still in the process of going through all of them. Even if there are any comments that we decide not to post, we will nevertheless share them with all committee members. And I want to specifically invite our committee members to review the public comments we have received thus far, if you have not already done so. I also want to note that the chat function in WebEx or the NAR YouTube channel is not the proper forum to submit extensive public comments. You may submit public comments at any time by emailing us at FOIA-advisory-committee at naranara.gov. And we will consider posting them to the OGIS website. The chat function on both platforms should be used to ask clarifying questions or provide brief comments or questions that we will consider reading out loud at the end of today's meeting. During our public comments period, we are particularly interested in soliciting feedback on the issues that the four subcommittees are currently considering. Committee members are interested in hearing your ideas and feedback so that they may integrate these into their internal discussions as they develop their recommendations for this committee term. I would like to briefly address one comment we received that we post a list of all attendees, government, and non-government for our FOIA advisory committee meetings just as we do for all Chief FOIA officer council meetings. We have considered this request and have decided not to do so. The FOIA statute itself requires that detailed minutes of the Chief FOIA officer council meetings be kept and contain a record of the person present. There is no such statutory requirement on either FOIA or the Federal Advisory Committee Act under which this committee operates or the Government and Sunshine Act. Therefore, we will not be posting a list of meeting attendees, either government or non-government for our FOIA Advisory Committee meetings. Meeting materials for this term, along with members' names, affiliations, and biographies are available on the committee's webpage. Click on the link for the 2020 through the 2022 FOIA Advisory Committee on the OGES website. Please also visit our website today for our agenda. And regarding our agenda, today we have no outside speakers, nor do we know exactly how much time each agenda item might take, particularly with regard to some of the draft recommendations that we'll be discussing today. And as Chairperson, I reserve the right to adjust the times as necessary. We will upload a transcript and video of this meeting as soon as they become available. A reminder that the FOIA Advisory Committee is not an appropriate venue for concerns about individual FOIA requests. If you need OGES assistance, you may request it, but we ask that you not do so through our committee email. It is hard to believe that we've been meeting virtually for the last 21 months. While the virtual environment has allowed all of us, as committee members, to attend with greater ease, regardless of geographic location, a big disadvantage for me and Kirsten is that we're not always able to see committee members raising their hands or leaning forward to ask a question or make a comment, as we would if we were meeting in person. So I will be doing my best to monitor committee members' non-verbal cues, and we all need to be respectful of one another, try not to speak over each other, although I know that's inevitable. But I also want to encourage committee members to use the all-panelist option from the drop-down menu in the chat function when you want to speak or ask a question, and I will call on you at that time, or you can also chat me or Kirsten directly via chat. As a reminder, however, in order to comply with the spirit and intent of the Federal Advisory Committee Act, committee members, please keep any communications in the chat function to only housekeeping or procedural matters. No substantive comments should be made in the chat function as they will not be recorded in the transcript of this meeting. Another housekeeping reminder if you need to take a break, please do not disconnect from audio, video of the web event. Instead, just simply mute your microphone and close your camera and send a quick chat to me and Kirsten to let us know if you'll be gone for more than a few minutes and join us again as soon as you can. We have noted a 15-minute break at approximately 11.20 a.m. on our agenda. We may break a bit earlier or a bit later, depending on our case today. And just a reminder, I'm always guilty of this. Please remember to identify yourself by name and affiliation each time you speak. This will help us down the road with both the transcript and the minutes, both of which are required by the Federal Advisory Committee Act. So, with all of that, any questions? You've heard me give all these instructions before, so there should be no great surprises. I would like to turn my attention now to approving the minutes from our last meeting, which was September 10th, 2021. Kirsten emailed committee members the minutes from that meeting. I apologize, September 9th, not 10th. I misspoke. Under a 90-day deadline laid out in the Federal Advisory Committee Act, she and I certified the minutes to be turned correct and posted the minutes earlier this week. But committee members, if we missed anything, please let us know, and we will make any corrections as necessary. So, at this point, do I have a motion to approve the minutes unless I hear any objections from anyone? Okay. Do I have a second? Second. Thank you. All right. All in favor say aye. Aye. All right. Any objections? Okay. Minutes are passed, and they are posted on our website for your viewing pleasure. Okay. Any questions before we get started on the substantive part of our meeting today? Anyone have any concerns or questions that they want to ask before we get started? Okay. Not hearing anyone. If we could please move the slide deck, Michelle, to the next slide. Okay. So, first up today, we always like to switch things up, keep everyone on their toes. The classification subcommittee is going to be presenting first. Kristen Ellis and James Stoker are the classification subcommittee co-chairs. They've been hard at work, and I'm going to turn the floor over to James and Kristen. Thanks, Alina. This is Kristen Ellis. I am an attorney with the Federal Bureau of Investigation, and I am a co-chair of the classification subcommittee with James Stoker, as Alina mentioned.  The focus of our work over the past year-ish has been, well, a focus has been GLOMAR responses, particularly those issued in national security cases. A GLOMAR response is one where the agency neither confirms nor denies the existence of responsive records, because doing so would itself reveal some information that is exempt from disclosure under the FOIA. While the FOIA statute itself does not contemplate a GLOMAR response, courts have recognized it as a legitimate response to a FOIA request under certain circumstances. However, there is some public skepticism about the use of GLOMAR responses. This may be driven in part by a lack of publicly available data about the use of GLOMAR responses, including the frequency and circumstances under which they may be issued. So the subcommittee has prepared a report that has been circulated, I believe, to the full committee making recommendations designed to improve transparency and understanding about the use of GLOMAR responses. And James is actually going to go through those recommendations, but before I turn it over to him, I wanted to take a second to thank Kirsten Mitchell, Alina Simo, Christa Lemlin, and Bobby Tolabian for their comments and input on the report, as well as my fellow committee members, Cal and James, for all the work that they've done getting it together so we could present it to you today. This is James Stoker from Trinity Washington University. Thanks, Kristen, and thanks for all your work as well. As you can imagine, this is a rather polarizing issue in some ways. While generally both members of government agencies and of the requested community recognize that GLOMAR responses are legitimate and acceptable and appropriate under certain circumstances, there is a significant amount of skepticism from the requested community about the way that they are used. And so our recommendations, which I'm going to go through now, are designed to try to get some of the sources of this skepticism. So I'm going to go through the four recommendations one by one. I think we have them on the slides. Is that correct? So if we could just go to the first recommendation. Okay, here it is. I'm going to read the text of the recommendations. Some of them have been slightly carefree, as I believe, to fit on the slide. So I'll read out the full text of the recommendation as we've made it in our report. We recommend that, number one, we recommend that OIP issue guidance to government agencies that they use the internationally recognized nomenclature of neither confirm nor deny in CND to refer to GLOMAR responses. Foley's purpose is to make the government more transparent and accountable to its citizens. And the use of terms of art or jargon can make this more difficult. We particularly think that the term GLOMAR itself is problematic. Why? Well, it refers to the name of a specific submarine involved in a court case. And that court case originally had to deal with exemption E1 related to national security. Nowadays, the GLOMAR response is used in response to many different types of FOIA exemptions, including regarding privacy. And it's also spread beyond the federal level to stand on local authorities. So GLOMAR, as a term, is somewhat misleading. And that can act as a barrier for ordinary citizens and average requesters who are not deeply steeped in the history of the FOIA. The first question that anyone asks when they hear this term GLOMAR is, well, what GLOMAR, what is that? And that requires a lengthy explanation. And our impression is that this can act as a barrier to basically responding and reacting to GLOMAR responses. We would note that in practice, the term neither confirm nor deny is used in many places, including in government documentation on the subject. So if you read through the executive order on classification or Department of Justice and OIP guidance on the subject, usually in the text, the term neither confirm nor deny is used. But the term GLOMAR is also used from time to time, in particular in regards to what we're referring to court cases. We feel that using the term neither confirm nor deny will help to make the concept clear to all involved. So we're going to do our second recommendation now. So we can put it on the slide. We recommend that OIP require standardized tracking and reporting procedures for NC and D responses. That is GLOMAR responses. And I'm continuing here with our recommendation just to make this clear. Government agencies should be required to track and report on an annual basis. There are a total number of NC and D responses issued, whether these NC and D responses were in whole or in part, the relevant FOIA exemptions that justify GLOMAR responses, and the number of corresponding cases in which these were used. The number of NC and D responses that have not been affirmed on administrative appeal, and the number of NC and D responses that have not been upheld by a court in litigation. We also recommend that the Department of Justice should track and report on an annual basis aggregated data on NC and D responses as reported by agencies. Congress does not currently require government agencies to track and report the use of NC and D responses separately from other types of responses. Rather, they are included generally in full denials based on exemptions. At least this is what the Department of Justice through OIP recommends. They recommend that NC and D responses be reported as full denials. However, our subcommittee was not able to ascertain whether all agencies follow this practice. So there is a lack of data out there about how often these neither confirmed nor deny responses are used. Certainly, there is an impression that their use is increasing. There has been a term coined for this, so-called GLOMAR CREEP, which refers to the increasing use of neither confirmed nor deny responses in federal government, as well as it's spread to other branches of, excuse me, at least to other agencies within government and to the state and local level as well. Tracking data on the use of NC and D responses will help the public better understand trends in these area and their underlying causes. Now, to be meaningful, the data must be sorted and categorized. For instance, some agencies include a partial NC and D response in response to every FOIA request. If you count this as a single NC and D response, it will infight the number of GLOMAR responses that are actually being used. So for this reason, we believe that agencies should report FOIA data segregated by category, such as whether or not the NC and D responses are full or partial. And then they should also sort the number of NC and D responses by exemption. However, because we don't feel like we have a good handle on exactly how these responses are used across government, we believe that at least in the short term, agencies should be allowed a certain amount of leeway in how they report these responses. In other words, they should look at their own practices and figure out what the best way is to report them. In recommendation number four, we recommend further investigation into the issue of GLOMAR responses and either confirm or deny responses. And we suggest that this be one of the things that the investigation look into as well. However, right now, the subcommittee did not feel comfortable going into too much detail about exactly how these responses should be tracked and reported. We have here on this slide some of the detail, if you all would like to have a look at it, about what we're asking government agencies to track and report right now. We do recommend that the DOJ through OIP include NC and D responses in its annual summary of agency annual reports, so that there is a picture of how this practice is conducted across government. We can move on to the next slide now. Our third recommendation is that government agencies provide information to requesters on their websites regarding circumstances that will likely result in an NC and D response and where possible recommendations on how to avoid such a response. Government agencies already have a duty to provide the public with information on how they implement the Freedom of Information Act. For instance, there are explicit requirements in place for government agency websites regarding the FOIA. However, government agencies are not currently required to include information regarding NC and D responses. Some agencies do this already. So, for instance, if you go on the CIA website, there's a list of guidelines in its online FOIA reading room that includes several mentions of how they use neither confirmed nor denied policies. However, there's not a general policy statement on how NC and D responses are used. For many other government agencies, there's no mention of this at all. You could file a FOIA request and receive a neither confirmed nor denied response and be totally surprised by it or not have any awareness that this is a possible response. So, we suggest the following guidelines for information to be provided in the public. This is not in the text of the recommendation itself. This is in the explanation of it, but it provides some ideas of how agencies could proceed. The agency should attempt to describe all circumstances that will likely result in an NC and D response with as much relevant detail as possible. The agency should advise requesters on how to avoid an NC and D response if possible. The information should be clearly written in plain language understandable to a non-expert. And we suggest that an ideal place for such a discussion is in the FOIA reference guide or handbook. We recognize that this will be challenging for agencies and we can go into this in more detail in the discussion. For instance, if your goal in using an NC and D response is to avoid revealing information about so-called sources and methods, you may not be able to go in a large amount of detail about what those sources and methods are because that would actually reveal what the sources and methods are themselves. However, you may be able to discuss the practice in just to some degree. So we're not getting into too much detail here about what specifically agencies should be doing, but the general thrust of our recommendation is that they should be providing more information than they do now. Okay, we can go on to recommendation number four. Our final recommendation is that the archivist of the United States direct a relevant organization, such as OGIS or the Information Security Oversight Office, or if necessary, recommend that a relevant organization, such as the Government Accountability Office or the Intelligence Community Inspector General, first conduct a review of the use and practice of NC and D responses across government, and second, formulate a set of recommendations to ensure that these responses are being used in a manner consistent with the goals of the Freedom of Information Act. So as much like Kristen may or may not mention, we did attempt as a committee to administer a questionnaire to various agencies that we thought frequently used in NC and D responses. And we particularly, being the subcommittee on classification, we particularly targeted agencies that we felt would be likely to use neither confirmed nor deny responses in regards to exception 1B on national security. However, we only received responses from a very small subset of agencies that we sent the questionnaire to. I don't remember the exact numbers, but I think we sent almost two dozen questionnaires out, and we maybe received six responses, and most of those responses were not four responses. The reasons for, we speculate a little bit in our report on the reasons for the lack of response. We don't necessarily believe that all agencies were trying to avoid responding to our questionnaire, but it did ask for quite a bit of data and data that they may not have had on hand. But basically, this points to a fundamental problem is that in order to make recommendations about how to do NC and D responses better, we need to have good information about how they are used at the present. Now, the first three recommendations that we offered address us in part, but we think that another agency with a professional staff and the relevant access, including security clearances, needs to investigate further how this works. We're asking that the investigation attempt to answer the following questions. What practices are currently in place across government for the use of the confirmed or denied requests? How has the use of these responses expanded over time? And if so, are there any discernible causes for such expansion? I just want to note here that the expansion of the use of neither confirmed or denied responses doesn't necessarily indicate the base of the problem, but it might. And so we would like the investigation to work into this further. What are the appropriate reporting practices regarding the use of these procedures? What categories should agencies use when reporting NC and D responses? What data would agencies themselves find useful to collect? And we offer this suggestion in particular because we believe that an investigation such as this could help agencies to better understand themselves how they track or better understand themselves how they use these responses. Under what circumstances do agencies issue NC and D responses without conducting an initial search for records? Under what circumstances do agencies conduct an initial search of records before issuing an NC and D response? Based on the findings of this review, the investigatory body should make recommendations aimed at achieving the following goals. Ensuring that neither confirmed or denied responses are being used in a manner consistent with the goals of the FOIA, implementing reporting requirements regarding the use of NC and D responses, improving communication about NC and D responses with the public, reducing the unnecessary and inappropriate use of the NC and D responses, and ensuring that agencies only issue NC and D responses when conducting an initial search for records when absolutely necessary. The recommendations should be addressed to both the Congress and the Executive Branch. So those are our recommendations. At this time, we'd love to hear any feedback or questions from members of the committee. Thank you very much. James, thank you very much. Great presentation. A lot to think about. And I'm going to turn it over to committee members to ask questions. This is Bobby. First, I just want to say thanks so much, James and Kristen and Kel for all the great work you did on this and for sharing the white paper. I just had two comments and then one question. So maybe I'll start with the comments and leave it at the questions. First, I want to say I do appreciate having more data on this topic and that would be very, I can see that that would be helpful. But I do want to push back just a little bit on agencies properly reporting on it with the current existing guidance. As you know, we have comprehensive guidance on these reporting requirements and we do provide refresher training every year to the agencies that are managing this data and reporting to us. And also, agencies validate and we validate the data to make sure that it's as accurate as possible. And in specific to this, for example, if we have seen in the other disposition categories an agency put in a Glomar response, we would go back to verify that it should be a full denial. So I want to push back a little bit on data not being accurate, but that's separate, of course, from more data being helpful. Second, as far as the conducting of a search, there are instances where the agency will know without having to conduct the search that the existence of a fact is exempt. And that's where really Glomar comes in. So I don't necessarily believe that not conducting a search when the agency knows that the information is exempt, the existence of it, is necessarily wrong. Or it is wrong, let's say that. And then final, my question, as far as the first recommendation, I kind of hinted at this, I think, a couple of days ago. I'm interested to see where there are examples that you saw or are there examples where the agency is describing their withholding as a Glomar without explaining that they're neither confirming or denying the existence based off an exemption. Of course, I understand that we don't want to use that type of nomenclosure necessarily when responding to the public or in public to requesters who are not familiar. But I'm not sure that the internal use of it by government agencies that have been using it for years has a significant impact. So I just wanted to see where your thoughts were more on that if you don't mind. Okay, thank you so much, Bobby. This is James Stoker again. If the other members don't mind, I'll respond to at least some of that. First off, let me say thank you for your comment on reporting practices. It's great to hear that OID is monitoring this carefully and verifying that government agencies are reporting this as full denials, which is what is recommended and I think required, as you said, by the DOJ. It's good to know that it's being validated. I think that this concern was, in part, sparked by the lack of responses to our questionnaire. But it also raises the question of how other types of practices are being implemented and how they're being used. So I think that's a good question. But it also raises the question of how other types of GLOMARs are reported. For instance, partial GLOMARs, right? Are those reported as full denials? If something is partially GLOMAR, then responses are, are, but there is a, you know, some records are released even though it's partially GLOMAR. I think that there are big questions about how this works and how it's reported. And that's why we're asking for additional data. So the line between asking for additional data and current practices can get a little blurry. Our goal of this recommendation, though, is ultimately not to criticize, but to think about how this could be conducted better. And so I think that we're on the same page there. On conducting a search, is not conducting a search necessarily wrong? Well, no, I don't think the subcommittee is suggesting that not conducting a search is wrong in all circumstances. However, there is an impression, and this is one of those impressions that the, maybe the requester community has, that's difficult to validate empirically because we don't necessarily have data about this. But the impression is that it's much easier for a government agency to use a, neither confirm nor deny a response than to actually go through the effort of conducting a search. So if there may be an incentive to use this response. And we're not able to substantiate that in all cases, although I think that some members of the subcommittee might have personal experiences if they could share. I'm looking at one colleague in particular right now that suggests that this might be the case. But nonetheless, I think that it is important to search a case. So there are reasons to conduct a search that are beneficial. And I might let my colleague talk about that here in just a minute. And then finally, on the first recommendation, you ask if there are specific examples of use of the term in communications from government. No, I don't think so. So if you look at response letters, for instance, I have not seen any that use the term Glomar, right? So it's true that there are not responses being sent directly to the public. However, agency websites do often mention the term Glomar. So for instance, the FOIA updates published by OIP, the OIP guidance on Glomarization. Those are using the term Glomar. And those are documents that are intended, of course, for government use, but also for non-government use as well. So we believe that standardizing the use of this term would be ultimately useful. I will say that within the subcommittee, there are initially some questions about whether or not this recommendation would really make a large difference. And I would say that of the recommendations patients were making, this may be the least essential one. But I do believe that it will make it more useful. In part because it helps to demystify what's going on. One of the problems philosophically, at least from my perspective, is that we see the term like Glomar, and it just seems so extraordinary. It seems out of the ordinary. It seems like there's just something happening that we're just unable to comprehend and for an average person not steeped in the case law, or it may be a deterrent to say further appealing something or revising your request and proceeding further. So using terminology that is more comprehensible is one step towards addressing that. I hope that responds to your comments. And this is Kel as the aforementioned colleague that he was referring to. One of the reasons that the search thing is an issue is that if you file enough requests with agencies that tend to do Glomars, you start to notice a few things. And one of the things that we're hoping that this data gathering would quantify so that we could decide, you know, is it just, you know, all the agencies hate me or is it that they do this as a blanket policy are these instances where you don't have agencies that just reflexively Glomar anything about a particular topic. And for instance, that I'll give a hypothetical example. Let's say that OIP is one of these offices and that if I file an, if I file, or I use FBI because OIP is too small, FBI is a big agency, they have a big FOIA office. This is the example I used when we were talking about it in the Senate Committee, that if I file a FOIA request for all records about Alina Simo, they will Glomar it because whether or not they have FBI records on her is a privacy matter. That is what I would argue a legitimate argument. However, if I file a Glomar, if I file a FOIA request for all records about Christian Ellis, they will also Glomar it because, giving the same exact form letter saying, because it's a third party, you need this, this and this and they won't even bother to check that she is a known FBI person who is publicly known to associate with the FBI. They will just go, oh, third party, Glomar. So we're trying to narrow down, say, if there are things, there are these places and it's not just privacy, it's intelligence, it's sources and methods, it's classification. If you do this enough, you see a lot of reflexive glomerization of things that if they are pushed like if you go to court or if you appeal or something, they'll turn around and say, oh, sorry, here are some records we could give you. We didn't look for it because we Glomar it. But they don't do that until you push them to that point. But we're having difficulty quantifying, is it just a couple of agencies that do this or is this a widespread thing? And how do we make it so that those agencies don't do that if there are established guidelines that if it is a third party request, you must search to see if there are any publicly acknowledgeable records about that person before you Glomar. You must do sort of the minimum due diligence as a FOIA officer before you assert we can either confirm or deny. Thanks, Janet. Okay, go ahead. Bobby, I'm sorry. I don't know if you have a follow-up question. Alan has gracefully been waiting. He has his hand up, but I want to allow you to ask any follow-up questions first. No, no follow-up questions. Just a couple of follow-up comments, consideration. I understand. I'm going to just say that again, reiterating I think additional data, of course, is always good. And I'm not pushing back on that at all. And of course, in your example, Kell, I think you're talking about the application of the exemption not being accurate, not necessarily that a search has to be conducted to restock conclusion. But, you know, pushing back a little bit. Again, data could be helpful and maybe this misdefying some of this. So I agree with that. And then going back to the first recommendation, I appreciate the context. I also, I think, side on not really necessarily agreeing with that recommendation, because I don't think it's going to be impactful. But I do strongly agree that when, even if the term Blomar is used, it should be used in connection with the neither confirmed nor denied. So thank you so much. Thanks, Bobby. Alan, you've been patiently waiting. Your turn. Thank you, Alina. This is Alan Blutstein from America Rising Corporation. I want to quickly commend this subcommittee members for a very informative and well researched report. Just a few quick comments. I think I agree with Bobby about recommendation one and the use of the term Glomar response. Every practice area has its nomenclature. I'm not sure that Glomar is really that more problematic than the use of the term one index. You know, there aren't a lot of these expressions and boy, and this is a seminal case and a fun entertaining background with Howard Hughes and a submarine. And I wouldn't want to, I'm not sure it's necessary to torpedo it to use a bad pun. You know, the public understands what Miranda rights are, you know, Brady violations. I'd be sad to see this term phased out as long as like Bobby mentioned, there's the appropriate context. Agencies and courts shouldn't assume that that readers understand these expressions. And the government has no shortage of abbreviations and acronyms and NCND doesn't exactly roll off the tongue. And I understand that it's used in Great Britain and some other countries, but I don't think there's pressure. I don't think we should change our nomenclature to, I mean, we should celebrate our differences. The rest of the world refers to football when we use soccer they use the metric system and we don't I just don't see that this is terribly problematic.  You know, it wouldn't be the end of the world, but I'm not sure it'd be the end of the world if we drop this recommendation on it. Other than that, with respect to recommendation to a Roman numeral four and five, these seem to me I'll defer to agency employees here, but agencies don't track this information for any other exemption. And I'm not sure it's what warrants special treatment for Glomar responses. I'll leave it at that. And lastly, maybe this is just a concern about phraseology, but I'm not sure agencies should be giving legal advice or strategic advice about how requesters can circumvent exemptions. Sure, agencies should advise requesters that they can submit proof of death or a waiver or, you know, if there's an exemption six or seven C. Glomar, but in terms of giving strategic advice, I'm not sure that's the agency's role. I'll end there. Thank you. So this is Kel. I'm going to leave the last one alone because that really wasn't my baby. James can talk more about the guidance. But the idea of the 2A5 item that, and for those of you playing along at home who don't have the document, this is that the agency should report the number of Glomar responses that have not been upheld by court. And 2A4 is that have not been upheld on appeal. The reason that we put 5 in is it was originally one of our things that said, you know, appeal or court. And we decided we needed to separate that out into two. But the reason we were talking about court in general in the first place was, you know, if this, there are two ways of looking at the current use of Glomar over the last 30 years. One is that it's just fine and it's just the right amount. The other is that it's being overused when it shouldn't be. And those of us who adhere to sort of the first camp of, you know, it's fine, then yes, there's no real need for any more information about it being overturned because it's probably being overturned at the exact right amount of time as low as possible. Those of us who believe that it is being overused, that it is being an issue that's being abused, and I will be here to criticize. I mean, James said we weren't here to criticize. I'm here to criticize. You know, if the Glomar system is being abused and we or anybody else ultimately asks for some form of reform of it, which would be the next step if the data supports our reasoning, then one of the things that we will have to grapple with is, well, you say it's being abused, but the agency says it's not. And who are we members of Congress to sort of believe you over them? Whereas if we say it's being abused and it's being overturned a lot in court, then it's not just me, random person talking to Congress versus Bobby Kallabian. It's me and five district court judges against Bobby Kallabian. And so, but on the other hand, if it turns out that it is not being reversed a lot in court, that could support the argument that it is being used the right amount. It could also signal, based on the other data, the possible outcome that, well, even if an objective viewpoint looking at this based on all the data that we collected would say it's being overused, it's still not being overturned in court, well, then that might mean that the court review needs to change. The level of deference or the burden of proof or something like that needs to change if the court results aren't the same as, you know, our results or Congress' results or whoever studies this data. So either way, it's a point of data. Nobody asks for information about how many times B3 has been overturned in litigation or B5 has been overturned in litigation or B7 has been overturned in litigation because those aren't A, super-hotly contested items all the time and B, an instance where there is even less information than usual for people to judge on. Glomar, when you get to court, many Glomar declarations say, we found that the fact of this, and I'll use a specific example, a CA declaration that I felt was remarkable and the court disagreed with me, where the CA declaration said, the fact of the existence or non-existence of responsive records is classified because it could reveal intelligent sources and methods. Intelligent sources and methods are such things as A, B, C, and D. And that was it. It did not say that this piece of information was A, B, C, or D. It just said intelligent sources and methods are important. Here's four clear examples of low-hanging fruit that everybody would agree with. Now give us Glomar and the court said, okay, I trust you. That is problematic in some of these cases, especially when we later get more information that said that that wasn't exactly an accurate representation. So, and I wouldn't say that if we were investigating B5, we wouldn't say that they should probably do this as well. The reason we're asking for it for Glomar is because we happen to be looking at Glomar right now. You know, we might look at something else. There may be a trend.  I don't know. I'm not sure that would be a good idea. I'm not sure it would be a bad idea. But we're talking about Glomar today and that's the one that is in desperate need of more information about how it's being implemented both by the agencies and how it's being reviewed by the courts. That's my two cents. Hi, this is a, this is Bobby again, and I want to thank Alan for his comments. Tell for your response. One thing as far as I wasn't looking into detail as far as line level of data that we would maybe want to collect on this topic. I'm keeping an open mind. But as far as any data on litigation that we already have, that's already freely available. You can pull that up. OIP reviews every case decision that's issued. We provide summaries of those decisions by topic. Glomar being one of them and they're all tagged. So you can search and pull up all the cases where Glomar is an issue, see where the courts landed on that. So that's not data that's hidden to us. And you can use that for any exemption, not just Glomar's upholding or not upholding of Glomar's. Jason had a, had his hand up. Not a question. Yes. Jason Dart, History Associates Incorporated. So very interesting. Thanks, James. Kristen Cal. Very, very interesting. I guess just one kind of historical comment, one futurist comment. And then I guess a question. James, you had mentioned that it was that Glomar is a submarine. It's actually the vessel, the exploration vessel. And it's huge, obviously. And the submarine was a Soviet submarine K-129. But I think that's important because we talk about language and the importance of how you describe things. And I would say that, at least for me, who's not as up to date or up to speed on the actual legal issue. I think that the terminology, if you get a response as a requester and the response is neither confirm or deny, that describes what's happened to you as a customer, as someone that's put in a request and tried to get a response. So I think, for me, that's the language that should be used. And again, that's as a commercial requester. I say that as a commercial requester, someone who hasn't litigated it. And then my second, the futurist question is, Bobby, you mentioned that it's important, additional data is important. And I guess, what's your recommendation, game, tell? Kristen, how to get better information from the agencies? I assume you sent your questionnaire.  You're working with OGIS. And I would say that, I think in your draft, you said you sent the questionnaire to 23 people and only six responses. I mean, as again, I would say that's kind of disappointing of those that work inside the federal government to not actually fill out the questionnaire and help in the process. So what would the suggestion be to a future subcommittee or a future FOIA advisory committee on how to get better responses to help you actually build a better recommendation? Sorry, this is James. I can respond to that. Somebody else wants to take that. And if I may, I'll just respond to sort of several comments at once. I'll start with Jason, maybe, and then I'll go back to Alan, who makes very good comments that deserve a response. So first, I'm a historian too. And so I thank you for the corrective on that. It was actually the ship or the drilling platform that was looking for the submarine, not the submarine itself. So that's certainly true. But I also agree with your comment that it should be described as it is to the extent possible. And it is neither confirmed nor denied a response. And that's why I prefer the topic. But that's why I prefer that term. Alan expressed an attachment to the name, the Golmar and the story. And I do understand that as a historian. I love stories. But I think there's kind of a dividing line here on how people feel that I've observed when I've discussed the possibility of recommending a name change. It seems that attorneys and litigators are particularly attached to this comment, in part because it's so often used in court cases, whereas others seem less attached to the cases or less attached to the name, maybe because they're not dealing with the court documents around that. And so that could partially explain why some people or maybe prefer the name Golmar. I just think it's easier to use a simpler term where possible. And yes, you're absolutely right. We use terms like Miranda rights and others that are terms of art. But people have a good understanding of what Miranda rights are. I think if you look at pop culture, Miranda rights are everywhere. We have a good understanding of what they are. And while Golmar occasionally gets attention, I don't think that it has that same level of recognition as some of these other concepts. So I still think that there's a good argument for recommending that one particular term be used, even if I may not be able to convince the people of that. Jason also noted that it was disappointing that only six agencies responded. We were disappointed too. We do also recognize that we were asking for a lot of data and we were asking for it on a short turnaround period. But in a number of cases, we didn't even get a response to it. In one case, one agency actually treated it as a FOIA request and basically just assumed we were making a FOIA request and didn't even pay attention to the text that said who we are and what we were asking for. So yes, I agree that that was disappointing. In recommendation number four, we asked another government body to take over the investigation, whether one under the National Archives or outside of the National Archives. And we note particularly that we think it should be made mandatory. And I think that's the only way that you're going to get some agencies to respond to this is if you make it mandatory. And that's why to really get answers from say, you know, some agencies in the intelligence sector, you may have to have the intelligence community inspector general doing the investigation because a request from them cannot be ignored or at least cannot be ignored as easily. So I hope that that addresses that. Finally, just briefly, I'll note that we may or may not want to be asking agencies to specify how to get around national, get around FOIA exemptions. I do understand that. I don't think that that's what we're asking for. I don't think we're asking agencies to help others to violate these exemptions. We're asking them to help people to get access to documents that they should have a legal right to, right? So for instance, if documents are unclassified, right? There have to be ways of accessing them to make sure that they get done. I'm reminded of, there's an article on the CNN website recently about a request regarding James Brown to the CIA, basically some CNN journalists seemed to have filed a FOIA request for the CIA for any documents about whether or not the agency conducted any surveillance on James Brown overseas, you know, the singer. And they go more basically while also saying that they had conducted a search of unclassified records and they didn't find anything in their unclassified records, right? It was good that they did this search of their unclassified records, even while they felt that they needed to go more records about this individual in particular. Now, whether or not they should be releasing records or doing more of a search or what kind of search are the classified records? They did that sort of, you know, another question, but the fact that they conducted a search of these unclassified records is something good and something to be encouraged. I don't think that they treat all requests for records about individuals in that manner, unfortunately. And so if there's a way that an investor can phrase their request to get a response that involves a search for records that may possibly be released, agencies should be advising about how to do that. And even more so in cases that don't affect national security. So for privacy, for instance, or law enforcement investigations, things like that. We're not asking agencies to help anyone to violate the exemption. We're asking them to help get access to records that requesters have a right to. And this is, Kel, I can sort of back up on some of that. So it's important here that we note that even though we are the classification subcommittee, our recommendations are not for just GLOMAR for classification matters. We're talking about GLOMAR usage period. And while everyone knows that GLOMAR is used for classified material and GLOMAR is used for privacy material, and it's also used for other things, but the discrepancy often comes down to, for instance, how much information is given about how to satisfy the agency's need to not assert a GLOMAR for different exemptions. For instance, the FBI, as much as I bash on them a lot, they're pretty good about saying up front, we want you to give proof of death, privacy waiver, or overriding public interest when you submit a third party request for records about somebody. You know, that's a B6, B7C thing. They're pretty good about giving that guidance. Other agencies are not always so good, and even FBI is not always so good when it comes to other exemptions. Now use sort of what terminology you would use for the longest time, and it still goes on in some agencies, but many intelligence agencies that will reflexively GLOMAR a lot of things. The dirty little secret is that they will GLOMAR something automatically if you ask for records about a person. But they will not because the subjects of who we surveil and who we are interested in, if 4.7 billion people filed for your request, they'd be able to build a heat map of who we look at and what our intelligence priorities are. That's the argument that goes into the NSA, CIA, et cetera. But if you ask for records about an event that that person was at the middle of, they won't GLOMAR it often. And that you can even... This is something that they don't...  It's a poorly kept secret. I mean, they're pretty open about it in many cases. And I've been, in fact, told by FOIA officers just... If you want to know one of my cases, I was going for records about the former head of the East German stick police and secret police. And the agency basically told me, yeah, if you ask records about this guy, we're going to GLOMAR it because we will always GLOMAR records for a guy. But if you ask for records about the fall of the Stasi on this day that he was in the middle of, then we'll give you records about that or at least we'll conduct a search. So guidance like that, if an agency has a policy that we automatically reject things because of one reason or another, then their website should say we have a policy of this and here's the information you would need to give us in order for us to not trigger that policy. Tom Sussman has a question or a comment. Yeah. First, I noticed in the chat early on, one of the attendees for Martin has raised a question about whether there's any possibility of splitting out whether a GLOMAR denial is based on B1, B3, B6, B7 in terms of telling the requester because frankly, my personal experience is you don't win national security cases. And that sort of then goes to the litigation issue which Kilmay has on the inside on, which is a lot of some of many of the cases where the court has challenged a GLOMAR response result in zero documents anyway. And my impression is that most of that's in the national security area. There may be some in law enforcement but probably not much in privacy. But I just, that was something that I wanted to sort of get the committee subcommittee numbers since. I'll bite. I don't understand what the question is or if there was a question. Well, I think the first question was does it make sense to require disclosure by the agency when it denies based on a GLOMAR response exactly what exemption it would be relying on underneath so that it gives you some idea of whether it's worth challenging. I think this is Kristin at the FBI. I think it is already required, at least in litigation, you have to tie a GLOMAR to an exemption. It might be that exemptions are grouped together, for instance, in most agencies that assert a national security GLOMAR usually will cite B1, B3 if they're protecting intelligence sources and methods information since both exemptions cover that. Same thing with a law enforcement agency protecting privacy information. They're usually going to cite 6 and 7C. But GLOMAR doesn't exist on its own. GLOMAR is an assertion of an exemption. It's just a unique way of asserting an exemption. So if agencies are not doing that already, they absolutely should be. But there shouldn't be a circumstance under which it's just cited without tying it to an exemption or more than one exemption. Absolutely. And I just wanted to just... That requirement is no different administratively than it is in litigation. Michael Morrissey and Patricia Leff both have their hands up. Michael, do you want to go first? Sure. Thank you so much. Thank you. This is Michael Morrissey on the Floyd Advisory Committee at Work at Muck Rock. I think there's... I think this is a really helpful area to kind of dig into and I really appreciate the working groups efforts in this area. I do think that there's just immense confusion and uncertainty around GLOMAR, even by really experienced requesters. And I think, as kind of mentioned, that agencies have actually seen this blow up in their face when there is no actual document probably underlined there and somebody misinterprets it. So I think improving that language is, I think, a really big opportunity both to make requesters' lives easier but also to kind of help agencies actually do their job with minimal confusion among the public. And that's why one of my favorite pieces of this recommendation was just improving sort of the language and pointing to the CIA's documentation around how they use GLOMAR. I would love to see more agencies do that, not just on their reading rooms, which I think a very small number of requesters actually use, but starting to put more of that language in the response letter as well. And while I agree with Alan's point about the beauty of the GLOMAR moniker, I'd hate to see that completely go away because I think it is an illustrative story. One thing I did find is that agencies don't necessarily just say, oh, this is a GLOMAR rejection, but they will say instead of neither confirmed nor denied, they'll say any responsive documents would be exempt, so we're not going to search, or they'll use different phrases for that. And I do think that has an impact both on being able to research these issues as well as requesters being able to find resources. If you can Google neither confirmed nor denied, you'll get some really helpful information. If you Google because any non-public records responsive to your request would be categorically exempt from disclosure, you're probably going to get a lot fewer resources. And so I think pushing agencies to standardize how they address these exemptions, I think that would be worthwhile, and I think that is something that would make it easier to kind of understand this issue going forward and also help requesters in the short term. And then finally, and this might be, I'm on the process subcommittee, so this might be just our kind of process perspective on things, but I think we do ask agencies to do just this enormous number of reports, and I think that data is really helpful. I wonder if this is an opportunity to kind of look at can we push agencies, and particularly agencies, FOIA processing systems, to release more bulk data so that rather than having to do all of these specialized reports, could we get more granular data about the number of exemptions that are applied on individual requests so that we can start seeing sort of, you know, maybe it's today, it's Glomar, maybe tomorrow it's another issue, how often different agencies apply these and kind of do more advanced analysis rather than just giving them another sort of higher grip report to develop and fill out going forward. But I do like the gist of these recommendations. I do really like standardizing some of the language, and particularly giving agencies backing and support in a little direction in terms of putting together more readable, plain language responses so that they can interpret what a Glomar is out of the gate. So thank you again, and I think this was a really, really helpful investigation, and I really do hope we get some of these recommendations passed into our final report, and recommendation to the... Yeah. Thanks, Michael. Kel has been waving at me. I think he wants to respond to Michael. Just one particular point. Something that you raised that we didn't really discuss that much, and it might be worth a future discussion. There is, and this is the lawyer in me talking, there is a difference, a distinction between a categorical exemption and a Glomar response. And while I do definitely agree, that you mentioned it, that this distinction needs to be made clear in an administrative letter, in a response letter, that is not what we're talking about here. And so in a categorical exemption, they're saying we're not going to search because we would withhold everything. And the Glomar, they say, even if we have nothing, telling you we have nothing would reveal that we were not watching Michael Morrissey on the day that he committed this heinous crime. And so that would reveal to him that he has been undetected and he can escape crime, continue to escape crime. So it is... to a layperson, to sort of a normal, non-insane legal person, they are very closely related and they may even seem indistinguishable. But from a legal standpoint, they are different. But I agree that they should definitely make clear that we are not issuing a Glomar response. We're just saying this is a categorical exemption. But that's sort of beyond the scope of this recommendation. Thanks, Kel. Patricia, you've been waiting so patiently. Yes, thank you, Alina. Patricia, with EPA. First of all, I just want to thank this subcommittee, James, Kirsten and Kel. This is, I can tell, a lot of thought, a lot of time and energy went into it. And it's really well thought out. I do have to say that when Alan was talking, I felt like he was reading my mind because I echo all of his comments. For number one, recommendation, I don't see this as being that big of a problem. If it were the type of thing where agencies were in their response letters saying, you know, I Glomar this FOIA request, that would be one thing. But agencies, in my experience, no agency does that. They usually say they need to confirm or deny and will cite to the Glomar. So I don't see that as being a problem. But one suggestion I have is you might want to take this number one and maybe merge it with your third recommendation. Because I think that's a good recommendation, but it may get passed if you revise it. And this is where you suggested federal government agencies on their websites explain what a Glomar response is. And I do think that's a really good idea. You know, most agencies have a FOIA reference guide on their website and they explain the exemptions. I think it's a good idea to also explain what a Glomar response is. We can either confirm or deny, explain maybe a little bit about the Glomar case. But I think the way number three is written now, I would have concern about getting passed this subcommittee because, you know, you might want to strike the language and where possible, recommendations on how to avoid such a request, such a response.  For number two, where you're asking for information to be collected regarding neither confirmed nor denied responses. I echo Alan's comments regarding Roman numeral four and five. Regarding Roman numeral two and three, as somebody who's responsible for doing the annual report at EPA and also formally at the National Labor Relations Board, I'm very familiar with our annual reports and spend a good chunk of September, October, November going over them. We don't do this for the exemptions. So I'm not sure how collecting this information of Roman numeral two and three for neither confirmed nor denied would be helpful. And lastly, the fourth recommendation that you have. I love getting guidance from OGIS and DOJ and all things where related. So I think that's always helpful. And that is my two cents. So thank you for the time. Thanks very much. I wonder if somebody else could respond. I think I've been talking a lot about this particular meeting. Crystal, would you like to respond? Well, I guess I could. Patricia, thanks very much for those comments. I appreciate the attention you paid to the detail in the report. Number one, I see how having an explanation on the agency website could be helpful. But the response I might give to that, another way of approaching this is that if agencies are already doing this, if they're already using either confirmed or denied, then it won't be much of an ask to ask them to use this term consistently, right? So if there won't just won't be much to do, and that will really simplify things. And then it also has the advantage, as Michael mentioned, of standardizing language across government. And I think that's the suggestion that Michael made is actually, it's a good one. And it's actually one that we could maybe emphasize more in this recommendation if we were to revise it. I'm not sure if we're going to take a vote or not today, but we could certainly focus it a little bit more on this idea of standardizing the way that we talk about this. So I do appreciate your comment, but if it's not much of an ask, then it doesn't seem like something that would raise a lot of objections. On number two, I do think it would be useful to track, you know, this more specific data about neither confirmed nor denied responses. So were they in a whole or were they in part, right? Because like we said, there are many used, many times this is used in conjunction with other types of responses. So it may be a full denial, and then a partial global mar or it may be, you know, a release of some documents and then a partial global mar as well. And if we code them all the same way, whether or not they're partial or full, they won't really have a good understanding of what is happening. Now we do recognize in this report that this is an ask for agency. So we recognize in particular that it will require things like updating software systems, right?  Is it, you know, somewhere in there, you'll probably have to add, you know, the global mar and maybe more than one option will have to be chosen. And this may differ from agency to agency. So we don't want to be too specific about how this will work on an information technology level. But if we don't track this more granular data, we won't actually have a good sense of what's happening. So thanks very much. This is Kale. The one thing I will add is, and it's not necessarily about this recommendation, but about sort of all recommendations, but you would apply to this recommendation number four and five, sorry, yeah, item four and five. Patricia's argument, part of it is, well, this isn't something we track. And I'm going to vastly oversimplify it. So obviously no offense to Patricia, who I work with very closely in the legislation committee, but if we tracked it, we wouldn't need a recommendation. And the, I mean, my personal view of the role of this committee in this recommendation and in all the other recommendations is to identify things that need to change and recommend that they change. The fact that you don't track this is sort of the thing we're identifying. We're saying we should track this. These are things that should be tracked. These are things that should be reported. And to James's point, yes, this is going to impose a new burden on an agency. But the question is, is it an inappropriate burden? And I think our position, at least mine and James's position, and probably Kristen's as well, but I can't speak for her, is that it's not an inappropriate burden because of the need. You know, every agency burden has to be counterbalanced by the need for the burden. And in this case, we think that the need to be more clear on how Glomar is used and how often it is of held outweighs the burden of now you have to report on something you didn't have to report on before. But that's just my thoughts on that. Okay. I'm watching our time. It's 11.30 already, so I'm very mindful of that. And it's been a really great discussion. I really don't need to cut anyone off. I think Bobby wanted to just respond to something that Michael had said earlier. So, Bobby, do you want to just make a quick comment? Really quick. Just to point out to Michael's comment, I appreciate the comments, Michael. In addition to the interreport agencies post the raw data, so that's I think somewhat of the bulk data you're referencing, line by line, every element of what goes to report by request. Of course, that wouldn't include Glomar because that's not being captured in the Unifor separately. And just very quickly, I will say I did appreciate in the white paper that it was this reporting, additional potential report was not specifically tied necessarily at first or at all to the interreport. And I think I'm considering, I'm keeping an open mind. Obviously, this recommendation is aimed at OIP, that in a lot of ways what we do, the CFO report would maybe be a better vehicle to better understand the need justified and burden as well as reporting as well. So, I wanted to let you know that that was a thought of mine. And I appreciate that you approached that and appreciated the burden on agencies when coming up with this recommendation. Thank you. Okay, thanks. I'm going to ask the subcommittee co-chairs. I know we've had a lot of discussion today. James and Kristen, are you ready to move forward with a vote today or do you want to absorb everything that's gone on today, review the transcript after the fact, and re... and represent at the March 2022 meeting for a vote? What would you like to do? So, this is James. I'm open to reviewing the many, many comments that committee members had. We didn't hope for a vote today, but there have been so many comments that I think we need to at least consider them in a subcommittee meeting before we have a vote. Okay. I appreciate that. Thank you. All right. I'm going to ask the technology subcommittee co-chairs, Allison and Jason. What time do you all feel like you need to present? Trying to get a gauge on whether we should take a break now or maybe we could go another 15 minutes. I think... I think 10, 15 minutes should be plenty, Jason. What do you think? Yeah, I think so as well. I hope we can keep it short. Okay, great. And I don't need to rush you. So, if you need more time after the break, we can certainly do that too. Can you advance to the next slide, please? And another slide. Okay. Here we are. All right. Jason and Allison, you're on. I don't know who's presenting. Go ahead. Yeah, I'm going to present Jason Gark History Associates Incorporated. I'm going to present this morning. And Allison and I worked closely on... just on our presentation. So we... The technology subcommittee has continued to meet every two weeks since our last meeting in September. We've been working on two recommendations for the full committee. The first focuses on enhancements that agencies can make to the FOIA website to facilitate a better experience with the request for community. This would build upon... This builds upon a recommendation from the Prior Terms Advisory Committee, specifically recommendation 2021, where OGIS will assess information about FOIA filing process available on agency websites with the goal of informing further OIP guidance on how agencies can improve the online description of the process. As we discussed in September, we believe FOIA websites should include some baseline features eliciting the type of records maintained by the agency, but then also eliciting the type of records that they do not maintain. We think they should be linked to... There should be links to agency record schedules and any applicable capstone policies. Also, some guidance or best practices for writing a FOIA request for the requester for those that might not be experienced doing so, and possibly even with agency-specific examples. And then some guidance or a description of the types of request that would be considered overly burdensome for the agency or not sufficiently specific. Again, to help the requester do a... submit a better request. We're certainly trying to balance these suggestions with the reality that each agency has different needs and that we don't want to prevent agencies from going above and beyond our own recommendations if they're too restrictive. So, one issue that's come up in the last three months is that our recommendations have been overtaken by recent events, and you can, you know, overtaken or benefited, I guess, depending on how you see it, with the announcement that EPA will be retiring the FOIA online platform at the end of fiscal year 2023. As a result, 20 agencies will be looking to transition to new systems, and we feel the subcommittee feels that we're in a unique position to provide recommendations that reflect both the interests of the community and the federal agencies in perhaps, you know, picking that new system. And we will be working on some suggestions to agencies or, you know, some guidance that we will then circulate to the broader advisory committee on considerations of what type of new systems, what type of basic functionality considerations and what type of wish items should be considered. And then our thought is that this list of recommendations could then be used by the commercial developers, those in the commercial software field to help create or modify existing systems or even develop new ones to meet, not just the needs of today, but the needs of the future. And ultimately here, and I think, you know, something we've talked about before, is that our goal here is that agencies to really keep the user experience, the requester experience, the customer experience forth front in their websites, that we want it to be easy to use and we want there to be information on there to streamline the process to help, you know, to help work with the requesters to get materials released efficiently. And then the second recommendation that we are focusing on is best practices for the release of records and standardized ways. Again, this is something we discussed last time. You know, again, the committee, the subcommittee is investigating, you know, whether records should be released in native format. But we also understand that, you know, the need of classified national security records may require special protocols. You know, and some of the issues that we've discussed internally and we will certainly be raising to you all is that, you know, with dealing with classified materials, agencies prefer flattened PDFs when release seems to be nothing in native format. Most agencies release e-mail power points in PDFs, although some do do Excel spreadsheets just as is. Should e-mails be released or should be provided in PDF or just as plain text files? You know, we think this is an important issue for both technology subcommittee and then the broader advisory committee because it hasn't been covered by prior committees. We predict that this is going to be a bigger issue, especially as fully agency, for fully agencies, especially as narrow-directed federal agencies transition to a fully electronic environment in December 31st, 2022. And again, this again picks up on the previous conversation that Allison and I raised about metadata and how critical it is and the feeling that, you know, it should not be stripped away unless absolutely necessary when materials are released. And, you know, we also look to our state-level document releases for those that, you know, are in the portfolio of open records that they do release metadata. So that's where things stand for the subcommittee. I asked right now Allison AJ. Christian, Roger, did I miss anything? Is there anything else we want to raise or flag? David. And then I open it for other questions from everyone. Thank you. Jason. I don't know if anyone else had a interference. I didn't hear everything Jason said. Did anyone else have trouble hearing Jason? Yes, Jason nods. Thank you. I can summarize what Jason had said. So a lot of our original conversations within the subcommittee which had been about what recommendations we would make to agencies to improve websites to best serve the request or community and also to help agencies if requesters are told, okay, these are the types of records we're keeping for how long these are the types of records that this agency does not keep and for minimizing unnecessary requests, that type of thing. So we're going to start with the announcement by EPA that they're sunsetting the FOIA online system at the end of fiscal year 2023, I think it is, that presented an opportunity for the technology subcommittee to work with the request or community and the agencies to come up with suggested options for bare minimums for agencies to consider as well as some wish list items and that could also be used by the software developers to meet those needs. And then we were also still going back with one of the earlier recommendations to look at best practices for the way to possibly standardize the way documents are released but also acknowledging that certain agencies have concerns about accidentally releasing information that might be embedded that might not automatically come out or release something creatively. And then we were opening it up to the floor for other committee members if we had anything to add or the subcommittee members, if we've missed anything or a committee conversation in general. Okay, great. Thanks. Any subcommittee members want to add anything to the technology subcommittees report? AJ is shaking his head. Okay. Anyone else have any questions for the technology subcommittee before we go to break? Going once, going twice. Well, we certainly look forward to your best practices recommendations. Perhaps you'll be ready to roll that out for prime time in March, so we'll see how that goes. Okay, so with that, I think we're ready to take a 15-minute break. If we could try to keep it to 10, that would be really great. So we could try to get back on track. But maybe as a compromise, we'll say 12 minutes. Between 10 and 12 minutes. So let's take a break right now and we'll be back soon. All right. Thanks, everyone. All right, ladies and gentlemen, welcome back. We will be proceeding with the webinar. All right. Hello, everyone. Thanks, Michelle. Sorry, I didn't mean to speak over you. Welcome back, everyone. Hopefully we have almost everyone back on camera, the committee members. We're going to switch things up a little bit from our agenda. I did advertise at the beginning of our meeting that we're going to keep things a little flexible. I have asked the process subcommittee to present next. And legislation will go last, but definitely not least. So with that, I am going to turn it over to subcommittee co-chairs, Michael Morrissey, and Alexis Grace. Good morning, everyone. I am Alexis Grace, the director for the Office of Information Affairs at USDA. I am the co-chair of the process subcommittee, along with my esteemed colleague, Michael Morrissey, and also a member of the First Person FOIA Working Group. I am just so very excited to share with you guys the work, the recommendations crafted by our First Person FOIA Working Group, which was led by our colleague, Roger. Other working members included Tuan, who so graciously compiled, you know, the team's thoughts and notes and pinned the recommendations circulated. And finally, but certainly not least, we cannot forget our resident FOIA guru, Tom Sustin. I want to start first with acknowledging and thanking all of the agencies and the group that really provided their insight about their handling of and their challenges with First Person Access Requests. We very much appreciate their time, attention to this issue, and as always, you know, their feedback. We very much look forward to continue to work with all of these groups. I also want to thank former advisory committee member, professor and author Margaret Cuoka, whose work really served as a framework for the recommendations being presented today. I think most of us at this point in the committee are familiar with Margaret's work and the phenomenal job she's really done with highlighting how FOIA, as she says, it can suffer under the weight of its unintended uses. And so as an example of this, as many of you know, there's no discovery process, right, in the immigration court system as there is with the federal district court system. So a lot of times immigration lawyers use FOIA to retrieve those records needed to defend their clients. And so with that, it should be no surprise that our recommendation for discussion today builds upon that one previously set by the 2018 to 2020 term. And in that, just so you guys have a little bit of context, that one recommended that OGIS and the Department of Justice Office of Information Policy identify those records frequently requested under the FOIA and or privacy acts by or on behalf of individuals seeking access records about themselves for the purpose of establishing alternative processes for access. We really saw this initial recommendation really advancing or achieving really two important objectives. First and foremost, we thought that it would ensure the timely processing of records that involves, you know, one's life and liberty as well as their property interests. But secondly, it could also help aid some of our agencies in freeing up some very, very limited resources as well. Our working group saw this recommendation really as an excellent start, really kind of that springboard to address the access issue. But we did also feel that it looked at it from the 50,000-foot view, right? So this term, we wanted to give this issue a little bit more life. We wanted to do a bit of a deeper dive and put forward some specific recommendations. And so as a starting point, just so you guys have a little bit of background, a little bit of context, we surveyed a few of the agencies identified by Professor Cuoco as really having large number of these first-person FOIA requests as well as those requesters who routinely conduct business with those agencies. And so this included the Internal Revenue Service, the Social Security Administration, entities within the Department of Homeland Security, specifically the United States Citizenship, I want to make sure I get the acronym correct, and Immigration Services, U-S-C-I-S. And then, of course, a component within the Department of Justice known as the Executive Office for Immigration Review, and they go by the acronym E-OR. We were very, very pleased to learn that some of these agencies have already taken significant steps to kind of provide alternatives to filing FOIA requests to facilitate prompt access to some of these more frequently requested first-person records. And just so you guys have some examples of that, the IRS we learned has created this tax transcript, which is essentially, you know, this summary document of tax information relating to agency affairs filing. And so this was a huge time in cost savings to IRS FOIA program as they no longer had to search for multiple records across multiple repositories to respond to these requests. Essentially, this singular report, you know, encapsulated virtually everything and is now also conveniently available to the public via a service, excuse me, a self-service online account. Another really great example was from our own committee member, Linda Fry, from the Social Security Administration. Linda had shared with us that SSA receives a large number of access requests from folks seeking their applications, you know, for social security cards, claims files, genealogical information. And so a lot of these requests are flagged upon receipt, and then they're sent to this cadre or a special team of agency workers that aids the SSA disclosure team with processing on a part-time basis. This cadre is trained by skilled disclosure analysts, and their work is also reviewed by the trained analysts once it's completed. So just kudos to IRS and SSA for their proactive action in handling these first-person access requests. And so switching gears in our review of our agencies, our team also found some opportunities for growth. And so again, I want to thank both USCIS and also EOR for sharing insight on their processes for handling their first-person requests. And so within USCIS, the A-files were identified as a record that should have some alternative access outside of FOIA. And for those who may be unfamiliar with the A-file, essentially it's a collection of records, you know, maintained on a person that documents the person's immigration history. They're usually created with an application or a petition for a long-term or permanent benefit is received or, you know, when there is some type of enforcement action initiated. USCIS, they shared with us that they understand, you know, the importance of the timely processing of these A-files, and they certainly understand that the delays really have, in processing, really have great consequences. And so they advise that they have made a significant progress on their backlog of these A-files since the filing of a 2019 staff action by several immigration advocacy groups. In this suit, there was an allegation of, you know, routine violations at the FOIA statutory timeline. In that case, you know, the court opined that, you know, the failure to timely process really undermines the fairness of immigration proceedings, particularly for the vast number of non-citizens navigating the immigration system. And so the court did ultimately order an injunctive release against USCIS, permanently enjoining it, you know, from failing to adhere to the FOIA statutory deadlines for adjudicating these A-file requests. And so USCIS was required to submit recurring compliance reports to document their progress with the A-file backlog. I am pleased to report that in their most recent compliance report, USCIS advised that it had reduced its A-file backlog from 21,987 down to 244. So that's really a really huge victory for that team. I want to ensure that our colleagues and also my colleagues on this working group that USCIS continues down this path of success. We want them to win. So we did ask that they reconsider implementing an alternative to first-person access requests. Our thought was that while the class action addressed specific individuals with liberty interests, it will most likely end up delaying those records requests of broader public concern for which the FOIA was intended. USCIS did advise that there would be challenges in identifying an alternative. Specifically, if not being processed by the FOIA team, then they couldn't come up with another viable option. And so again, we look forward to continued discussions with USCIS. We see them as valuable partners with respect to the crafting of these recommendations. Another agency that we had the pleasure of speaking with was EOR. Again, they receive about 48,000 to about 60,000 requests annually and about approximately 95% of these requests seek records of proceedings. They're known as ROPs of respondents before immigration judges. These ROPs really kind of include everything under the sign. Hearing notices, applications for relief, exhibits, motions, briefs, hearing tapes, and then of course orders and decisions of the judge. Just a lot of very, very valuable information in these ROPs. Traditionally, these ROPs were kind of in the middle house and paper and all across the country, which as many of you guys know who are processing FOIA day in and day out, making retrieval quite a challenge. Our team was really, really pleased to hear that EOR with some of its partners were already well underway for rolling out any electronic systems known by the acronym of ECAS and this system is set up to essentially access and manage and store and transfer ROPs electronically and permit self-service access to DHS and also representatives of non-citizens in proceedings before EOR. ECAS will unfortunately not be made available to the 46% of respondents going pro se. These individuals will need to continue to submit FOIA requests through EOR. Again, just wanted to give you guys a little bit of context and a little bit of information about the work that we've been doing. Let's go ahead and dive into the recommendations. I think recommendation one is fairly straightforward, but I will go ahead and just read it. They are by an agency that affects eligibility for benefits or adversely affects individuals in proceedings should be made automatically available and not require first person FOIA practice. I will just say with that, while many of these individuals at stake may not have formal due process claims to broader access right, forcing these individuals to resort to FOIA undermines due process in their proceedings as well as making accurate agency determinations. With respect to recommendation two record access should not discriminate against pro se parties. We certainly understand that it's not advantageous to push one in the direction of moving pro se for anyone where it's included it can be a challenge to really kind of navigate that legal system right, particularly when your first language may not be English. But the reality is as I explained before we have about 46% of folks and for a whole host of reasons going pro se. And so we need to come up with a solution to accommodate this larger class of respondents. You know, maybe some of them are thinking about seeking counsel but maybe they need some underlying paperwork before the attorney decides whether or not to take on their case. Again we certainly don't want to compound this issue. And so that is kind of a rationale for recommendation number two. Recommendation number three agency should use technology to leverage their effort to make first person agency requests more easily accessible outside of the FOIA. IRS and EOS I had just described are both really great examples of how technology can really positively change the trajectory of a program. And so for that reason we applaud them both for making and supporting the investment and demonstrating to their colleagues and peers and their agencies and partnering agencies that these types of initiatives really do have a huge return on investment as we are all being directed to move toward a completely digital infrastructure with the OMB and NARA mandate in 1921. We really want to urge agencies to think about how to really capitalize on technology to make the retrieval of records for this first person agency records more accessible to all. Recommendation number four agencies that receive frequent first person requests can benefit from identifying the most commonly requested records and developing procedures processing such records to promote efficiency and good customer service. With all of the agencies we discussed today it's clear that they've all really assessed their cue to identify those frequently requested first person requests. It's also really clear that they understand the correlation between expeditiously processing these requests and also customer satisfaction. I think what is really inspiring though with the group surveys is that you can really come up with solutions and procedures to kind of asexually change and better serve customers that are necessarily so crazy expensive. I think SSA was a perfect example of that. I just think that it requires all of us to kind of be creative in our thinking and go outside the box. With recommendation number five other agencies that receive frequent first person requests should consider the cost and benefits of moving to proactive systems for disclosure such as that modeled by other agencies such as the IRS and SSA. And so there were other agencies identified Professor Fulca where first person requesters routinely request records under the FOIA that do relate to eligibility for benefits. And so two of those were the Veterans Health Administration as well as the Federal Emergency Management Administration FEMA. And so agencies like these really should consider doing some cost-benefit analysis of moving toward an electronic system that would essentially allow for easier access to the records. So that is our recommendations. I want to make sure that I open it to my colleagues if they have any additional comments about these recommendations. And then I think we may have some specific comments correct Alina about these from some of the agencies that we partnered with. Yes. Perfect. James has his hand up but he's the first person I see. And Bobby has his hand up too. James first Bobby next. Thanks so much Alexis for this presentation and for all the other members of the subcommittee for their work on this report. It seems like an excellent report you all have done. Extensive research and it's nice to you know see a document that has so much work that's gone into that. Speaking from the perspective of the subcommittee on classification that just did a project in Glamour I wish we had the kind of access that you all have seen seem to have gotten. I was one of the drafters of this this recommendation based of course on the work of Professor Quacca and I'm really thrilled to see you all taking it further following up on it so quickly and developing it in specific manners. I just had a couple comments about the recommendations. I notice the recommendations section is much shorter than the analysis which is not necessarily a problem and maybe you're still in the process of developing it but I think that a couple of the recommendations could really benefit from a bit more detail. Particularly recommendation number 2 where you talk about how record access should not discriminate against pro-say parties. Most of the content about the of the recommendation itself seems to focus on you know the practices of your and well that's a good example. It might be good to be a bit more specific about how record access would not be discriminated against pro-say parties. Is it you know making online forms that are easy to deal with that clearly outline the cost structure is it you know what is it exactly is it you know having a presence outside of the agency beyond just like a website interface in other words how do agencies go about making it easier to people that are representing themselves and not relying on counsel. I think the basic principle of freedom of information access should be that you should not have to have an attorney in order to get access to that information right so the more detail you can go into there the more suggestions you can offer the better. And then on recommendation number 4 the phrasing of the recommendations struck me as interesting you say that agencies that receive first person requests can benefit from identifying the most commonly requested records and developing processes for processing such records to promote efficiency and good customer service. So that struck me more as like a best practice than a recommendation and while that's not necessarily a problem I think if you're going to make a recommendation it might need to be a bit stronger so you might have to say agencies that receive first person requests should benefit or should identify the most commonly requested records this of course was the original the original recommendation from the 2018-20 term itself that they should identify those most common records and then create new means of for accessing them so in a sense it's either a best practice or it kind of repeats what the original recommendation was so that one may need a bit more attention as well but again I really love the direction in which this is going and congratulate you all on the great work of the subcommittee. Thank you James and thank you for both of those recommendations we will definitely keep those under consideration. Great thanks Bobby you had your hand up. Thank you. Thank you Alexis for the wonderful presentation of and all the work of the subcommittee I really appreciate it. The one thing I want to note is there's no question that having this information kind of provided it's important information for and serves a really crucial purpose and timely disclosure of that to the individual is something that we all want but I think it would be beneficial to the recommendations in the white paper to address some of the challenges and for some of these no matter what the records are going to require some level review for sensitivities whether that be FOIA professionals or whether we're saying we're taking out a FOIA and it's still going to be FOIA professionals so there's resources I'm sure there and there's other challenges I don't think the agencies are not wanting to provide these timely and reduce the burden on themselves so I think in order for the recommendations to be helpful to I think the purpose is trying to serve I think the challenges should really be analyzed addressed and I really do appreciate the last recommendation as far as a cost-benefit analysis I think that's really helpful because of course you want to provide this information in the least taxpayer expensive way in the most efficient way and I would agree with James that I did find this recommendation number four a little bit redundant to the prior recommendation that identified a commonly requested record that we fulfilled thank you again and I hope that's helpful no that's very helpful and I think some of the agencies probably agree with you that we should talk a little bit more about the challenges and so definitely certainly we will, you know, reconvene and talk about I think that's an excellent thing Alan Blutstein has his hand up or is that from earlier Alan? Alan Blutstein America Rising Corporation I join James and Bobby I'm ending the the group for its work here and the fact finding is very impressive a few comments on the recommendations as well recommendation five seems to be swallowed up by one I wonder if it's an alternative recommendation recommendation one passes I don't know that five is necessary if you're confining five to agencies that provide benefits to the public because recommendation one appears to mandate agencies to make proactive disclosures as opposed to just doing a cost benefit analysis and more on recommendation one you know I think I'd be more comfortable if we were making recommendations to specific agencies especially the ones you've discussed this one is sweeping across the government I don't know that I'm not sure some of these terms are quite broad and big I don't know what is meant by a proceeding administrative civil I mean law enforcement I don't know that the hundreds of agencies are even going to know that this applies to them and benefits as well I mean I don't all financial benefits I just don't know what the scope of this is it seems to be go well beyond the few agencies that you've discussed I'll leave it at that thank you thank you Alan I do appreciate that and in any of the working group members if you have any comments please I you know about the specific recommendations or any of the wonderful comments we're receiving from our committee members I see Patricia Weth had her hand up was that for again from earlier Patricia or is this a new hand up this is a new hand up Patricia Weth from EPA again compliment that the entire working group for all their work that they've done this is something that is near and dear to my heart I'm just going to make one suggestion that I've noticed and one thought could be because in recommendation recommendation D that you have you talk about processes different processes for processing records one thought I'm just going to share broad is that a lot of agencies can release records in their proceedings if they were to change their regulations regulations I've seen a lot of agencies require first party requesters to go through the FOIA process instead of having being able to receive the records in the particular proceeding that they're in so that's just just a thought I thought to share with the working group thanks Thank you for your question any other committee members have any comments Allison just raised her hand one thought is has the subcommittee looked at the impact of the cases act which requires agencies to have certain information requests be submitted electronically I didn't see anything in the recommendations but I'm not sure how much it would impact but maybe something just to say and also further expedite this or facilitate it that these requests should be done electronically and not mailing in a form that's all No I think that's really helpful Allison I know that there was a very small conversation about that but I think we should definitely revisit that Great thanks Okay I see Michael Morrissey has his hand up Michael go ahead I was not involved in the specific drafting of these recommendations so I can't take any credit for the wonderful work that went in here but I do want to say in terms of the differences between draft recommendation 1 and 5 I think one of the things that I kind of see is that a lot of the problems with FOIA kind of start way before the FOIA offices and I think one of the hopes that I had and one of the reasons I was excited about that recommendation is forcing agencies to sort of stay oh our FOIA budget is huge you know let's kind of squeeze that but then also look at oh you could spend a lot less money on this if you actually build out the systems to allow this proactive disclosure so I think both pushing on those rights and then pushing on some mechanisms to get agencies to kind of fix things upstream and I think that's one of the real challenges I think throughout the FOIA processes how many things are broken before they get to the FOIA process itself and there's a really hard problem to fix the rest of everything going on and the system so I think regarding the cases act I think one of the really great discussions we had earlier was talking with some agency teams that are working on creating better form systems and better electronic submissions and standardizing that process across the federal government and I think just getting more things in a standardized way and making sure that this data is segregated up front whenever possible would be really really helpful and to Bobby's point about sometimes there's going to be reviews where you do have to disaggregate this data that's true I also think that you know this has been a known issue for a long time and I think we ask you know under GDPR every tech company in the world allows people to export all their data and they found ways to kind of angle this stuff within a very short period of time after those laws were passed and I think the federal government has had the FOIA laws for quite some time now making sure that we're making this data easy to export and making sure that when we develop systems that are going to impact these rights from the beginning we don't say oh we're surprised that we're now getting FOIA requests for this but find ways to do proactive disclosure because that's the public's expectations and I think it's not the FOIA office's fault that we haven't gotten there when it comes to first party requests but it is a problem and I think the public should expect more at this point of if you're trying to get immigration files if you're trying to get your own IRS files for the government to say oh there might be sensitive stuff in there and we're going to have to take a year or months and months to get it back to you I think is a pretty bad excuse in 2021 thank you Michael we've got lots of stuff to take back to the layer here yeah I see Kel has his hand up Kel can you promise to make it quick? I'll try it's not really super quick it's sort of two points but it's something that when we're doing when we're talking about setting up new processes I think that it's very important to ensure that whatever process is set up for an agency whether it be you know regards to the agency have at least the same informational guarantees for you and at least the same rights because what we don't want to see happen is what happens a lot for instance you can go and request your file from some OIGs without a FOIA request you can just say I am the target of this investigation or I am the complainant I want to copy the file and you can sometimes get that and the redactions in there will differ wildly from what you would get if you filed a FOIA request for it and often they would redact things that you can't withhold in a FOIA and they'll say well you can't go to court for that information so if there is any mechanism for withholding of information any process for first part of your request must give the same limitations on exemptions and same appeal rights and same court rights as FOIA are else you're taking a step backwards and the second thing to the point of the person who said you know that some people treated as a FOIA request this happens a lot with consultations as well even if you have an agency that has an alternative method for instance you're doing a security clearance appeal you're entitled to your investigative file by just asking for it and the agency is supposed to give it to you even if you have an agency that does that if they find a record that say belongs to ICE they will refer that document over to ICE and ICE will treat it as a FOIA request so this can't just be the agencies that get first part of your request there must be a guarantee that if I as an agency have a first part of your request system then I'm either going to process other agency equities through that system or it must guarantee that other agencies that I do refer things out to also treat it differently or else you're going to end up with this sort of quagmire where you're still stuck in FOIA even though the agency you're dealing with is actually doing it right because everybody else is I just wanted to I appreciate Michael your comment I just wanted to say that I was not framing as an excuse and I think I wanted to be obviously what you would describe as what we all want but I just want to emphasize that for this to be helpful as a recommendation it's something that agencies can get action on addressing the challenges that they face I think is really important to getting to the solutions so I think that just needs to be a part of this process so I just wanted to make sure that it wasn't not necessarily framed as an excuse at all and I didn't mean to apply that you were making excuses I think I think everybody on the committee does really understand those challenges I also make sure that we're kind of again this isn't sort of a problem with the FOIA offices this isn't a problem with the FOIA personnel and FOIA programs this is a problem with sort of IT modernization and data collection places we could probably have data collection and everything else which goes way beyond the scope of things under any specific individuals domain except for maybe the executive Alright thank you very much for all of those comments just to speed things along I do understand there there's at least one agency person who would like to speak and I believe their line has been unmuted Amy Bennett do you want to go ahead? Yes hi thank you so much Alina and I I believe that there might be one or two other agency people on the line Fernando I believe was going to speak for ICE so you might want to see if you find in and then either Tammy Meckley or somebody else from USCIS was also planning on joining today I want to thank you all so much for the opportunity to review and comment on this draft paper and its recommendations I'm responding to this proposal on behalf of the DHS Deputy Chief FOIA Officer in the DHS Privacy Office the DHS Privacy Office under the leadership of the Chief FOIA Officer has responsibility for overseeing DHS FOIA operations and recommending methods to improve FOIA compliance we share this working groups goal of providing better access to people who need their records from the Department of Homeland Security I'm going to briefly share some of our major concerns with this paper as drafted we are happy to follow up with the working group members after this meeting to discuss our concerns in greater detail and to collaborate on how we can meet our goal I'm going to focus my remarks on our concerns about these recommendations with respect to access to immigration related records in A files while we are happy that the working group did talk to USCIS the paper and its recommendations failed to take into account the unique nature of A files A files are the legal custody of USCIS but they contain records that originate in several other agencies and other DHS components some of these records include sensitive law enforcement and even national security information the agreements and memorandums of understanding that the paper references USCIS uses to process records that originate in other agencies are not simple agreements or arrangements for example it took several years of negotiations between USCIS and ICE to reinstate a memorandum of understanding enabling USCIS to process ICE pages in A files after the inadvertent release of ICE law enforcement information second issue with the draft paper and its recommendations relate to process first there's no real clear distinction on what is meant by providing access outside of FOIA we appreciate the IRS's self-service model and some DHS components have been able to adopt similar models to give people access to certain record sets for example CBP provides access to information in the I-94 form for US business the example of SSA using non-FOIA personnel through its skill soft portal to review and apply privacy action FOIA exemptions does not seem to fit in the same category while it does seem like a good way to expand the FOIA workforce an agency employee is still doing FOIA work given the unique nature of A files and the sensitive law enforcement and national security information in these files A files similarly will still need to be reviewed prior to release it may be possible to reformulate some of these records to separate out what can be released from what cannot but some of these records cannot they are not created in any sort of a way to make personal access to the records possible their investigative records or other types they serve some other purpose other than the person whose information is in those records DHS has explored shifting responsibility for providing access to A files to other employees without success for example I understand ICE ran a pilot project exploring whether it's attorneys could make the records available to people and removal proceedings ICE's attorneys were not able to pick up these responsibilities and the pilot was ended we understand the concern that given the volume of A file requests in the Nightingale court order the department privileges these requests over other types of requests so the U.S.C.I.S. has a specialized team the significant interest group that focuses on processing non-A file requests other components that receive a large volume of first-party requests including the DHS privacy office have teams and processes in place to ensure that complex border requests are not ignored the DHS privacy office issues FOIA performance metrics for components that make it clear ignoring complex requests is not acceptable we can monitor the percentage of requests that are more than 200 days old and updated our metrics in this facility to also require the components send out their responses to older requests finally we can't talk about the issue without this issue without also bringing up the dreaded topic of resources DHS FOIA has particular expertise in processing records requests and applying exemptions we have also worked continually to increase the productivity of our workforce we know that there's more to work to do and we welcome suggestions for how to improve our performance there is a real concern though that moving responsibility for responding to A files outside about moving this responsibility outside of FOIA office first the resources needed to do the work will not stay in the FOIA office once the work leaves second whatever office the responsibility is moved to develop the kinds of processes and expertise we already have in place and they end up costing taxpayers more while providing less customer service and finally DHS FOIA will no longer have access to the resources necessary to train up our portfolio professionals and develop a workforce that has capacity to handle the kinds of difficult and complex requests we also receive again we really appreciate the opportunity to comment on the proposal today and we really do want to work with you all on reformatting the recommendations in a way that is useful for everyone thank you thank you Amy we really appreciate your comments there any other agency folks who want to chime in okay not hearing anyone else any other comments or questions from the committee members to each other or to any of the comments that have been offered so far or should we move on to the next subcommittee presentation could I ask a question in response to that comment yes who is this this is Alexandra oh thanks as the media representative but also someone who does immigration law what percentage of a files do you have material redacted before disclosure is that the majority or is that an unusual case that there would be the need to redact or remove national security or other protective information I believe the last time I talked to USCIS it's practically every a file request has at least some information that needs to be redacted be it the name of an interviewing officer or other kinds of information but practically every a file request does involve redactions thank you hi this is Kel no this is my sorry Eileen just asked me a question in chat the item that I want to just point out very briefly before we sort of move on to this is to respond both to that answer and to something that Amy had said before to the most recent thing sort of question about the redactions I want to caution everybody who is talking about a proposal like this to assume that all these redactions are valid you know it is a dangerous idea to assume that we shouldn't do a program because ICE redacts a bunch of stuff to say we shouldn't do a program because ICE redacts a bunch of stuff because it assumes that all of ICE's redactions are valid and that the majority of things where they redact things they should be redacting them and this is at least with ICE I can say with expertise if not always the case and ICE for instance redacts a lot of stuff that is not properly redacted and when challenged and sued they often unredacted so that is the first point I want to caution everybody on the resources issue I would just like to say that yes agencies have more FOIA resources if DHS had enough resources to have a fully functional FOIA shot that did everything that it needed to do in a timely fashion we probably wouldn't be asking for an alternative to get away from the tremendous FOIA backlog at DHS so this is going to be an issue one way or the other I think if the question is giving money to DHS's FOIA office or FOIA stuff and giving money to a separate office or a separate division of DHS's FOIA department to do first person first party requests those are both involving giving money to DHS and other agencies and so it don't go away sorry my phone is ringing and so that is going to be a problem in regards to what we talked about but we should not be hung up on well don't do a program because it requires more resources when the reason for the problem is that the resources aren't being used and aren't being made available to the FOIA office okay thanks Cal alright I'm not seeing any other hands Roger is that you? Yes Can I briefly respond to some of Cal's comments? Okay then I'll let Roger go Sure so Cal with respect to the redactions point taken our exemptions are challenged in court all the time for us that's another reason that these records need to be kept in FOIA where we can have a discussion in the court about whether or not exemptions are reasonable and appropriately taken the other point on that the flip side of the coin is that there is an assumption that all of our redactions not just here at DHS but across the government should not be made and I think that especially given the sensitivity of some of the information in A-files that's a really dangerous path to go down. Secondly with respect to the comment about resources you know we try to be good stewards of the public's money and we take our responsibility to provide access both to people who are looking for their own records and to other FOIA requesters really seriously. At DHS Privacy we have put together a three-year backlight reduction plan that really looks at what are the holistic problems with our operations and has laid out a blueprint for how we can address those problems. We don't believe in just throwing money at the problem for one year and fix it temporarily but you're going to have a problem again in the next one to two years. We really are trying to have a thoughtful approach to how we can be good stewards of the taxpayer's dollars and improve our responsiveness to FOIA request. Thank you for allowing me to respond. Sure.  Roger, I just wanted just to clarify that we clear that what your group was basically suggesting or recommending that all agencies identify community requested documents that might be much easier provided in an alternative process. In your space as you are discussing e-files, the working group is not suggesting that e-files as a whole whole e-file should be considered as a first part of the request even though it is and that should have a routine process. What we would recommend to EACS would be within an e-file we look for community requested records within that e-file request that is seeking. For example, that is an example of a specific document people request for which other than to become the process would have to be requested to the point. So that is basically what we are trying to suggest here is look at documents within that your agencies provides to request and say within whether it is veterans affairs, EOIR, EDOC, wherever we have same specific documents which probably would have the least amount of reductions. That we can release to requesters outside the full process. I know for example I mean time to make the discussion that USECS is set up for my USECS which allows people to submit forms of electronic interface and benefits. That is a step in the right direction because that provides people an opportunity to now have a portal where they have access to documents that they have submitted to the government that they would not have to make a request for those documents. The issue is USECS has not extended that my USECS portal to all forms within the full process. So, yes how to do this is to push agencies into getting more resources, more funding to get documents in electronic format to make it easier to provide them to requesters. For example E-CAS has now come out. E-CAS is now a system that allows folks in removal proceedings who are going before the body of the business fields to get access to their ROPs. Prior to that they had to make a request for the documents. Now with E-CAS if you have access to E-CAS you don't have to make a request for ROPs. That is what we are talking about. And we said that we are looking forward to working with the USECS and other components with regard to how we can make our work better. Especially with regard to the case act I think we do really focus on submissions because I don't think the issue of paper submissions is a problem. The most requested are submitted for request online. For example USECS has their portals. So, I don't think paper submissions is an issue. I think the issue is, and I think a lot of the problems happened before against FOIA. A lot of records are created in paper demanding that they are doing formats. Which means that they are dispersed all over the place. It is difficult to collect these documents and it is difficult to collect them. It makes it difficult to process them. It makes it difficult to release them. So, we should be looking at how do we make sure that most records are in an electronic format where you don't have to move papers around where it is and it makes it easier for access to the documents. Because once you take all those names and make it as FOIA it is easier. Again, Alina, if I could just briefly respond to the comments. Roger, we appreciate the clarification about the purpose. We are happy to talk about specific files or forms that we can make better available to the public. We certainly have done a lot of work in that area. We are generally providing access to all records the first part of request in about 30 working days. But also that is not the way that the recommendation is currently written. It talks a lot about USCIS and in particular access to A-files through a non FOIA purpose. That is something that just needs to be clarified within the recommendation. Secondly, with respect to your point about paper I think that that is a really good point and certainly it is in the government's interest to begin collecting and keeping paper in an electronic format. I would note though that the legal format for A-files in particular is paper for a variety of reasons including people at the National Archives would be much better suited to speaking to other than me. If the committee is interested in going in this direction another area where a little bit more work needs to be done in terms of why is the government keeping information in a paper-based system in the 21st century. It is not just because we don't like change. All right, thanks Amy. I saw that Juan had his hand up and then he respectfully took it down, Juan. Do you want to add anything to the discussion? I was just going to say that I think technology provides a lot of opportunities of course as well as risks but sometimes we can learn from newer countries and smaller countries and I'm just thinking about Estonia and what an amazing example it's been where 99% of services are available online with documents being generated natively, electronically and Alexander Howard has posted several comments that are very helpful in the chat including referencing the ability to get data that's very sensitive in health related data and self-service portals really provide effectively a force multiplier in the sense that the citizen is able to get access to this material and is able to help themselves and so I do think that it is worth thinking about how going forward portals might work and the other comment I think that Alexander had made was that perhaps we also need to think about how state files are created because you know I don't know again we have a repeated redaction need to remove the names of a particular interviewing asylum officers I just wonder if there are alternative ways to sort of generate the documents so that you don't have to create that work that you have to later go and do again I think there may be ways to expedite this given Mike Morrissey's point earlier about GDPR compliance you know it seems like we can certainly do this okay thanks Tron I really appreciate it I'm interested in trying to wrap up this conversation only for today because I think we need to continue I think this will get carried over to our next meeting lots to think about Alexis and the working group and I want to thank both Michael and Alexis as the subcommittee co-chairs for leading this and to be continued so thank you very much for everyone's thoughtful comments I want to give the legislation subcommittee a brief opportunity to do a quick report out before we turn to public comments I understand AJ and David Collier wanted to give some comments so AJ do you want to go first sure thing I will be exceptionally brief I will just give you the quickest overview of a survey that we have out there I've just posted it in the link to it in the chat it has been put together by myself Dr. David Collier and Michael Morrissey there's been two rounds of sampling thus far the first round of sampling we worked with Michael and some muck rock requesters so we have certified or verified requesters responding and now we're into the second phase of the sample where we've tossed it out to anybody so this is where I ask you folks if you know any distribution methods to get this in front of people that have taken submitted FOI request whether state, local, or federal it would be greatly appreciated the survey is designed to serve two purposes obviously we are here to serve subcommittee questions but also to do a little bit of scholarly work as well for Dr. Dave Collier and myself and we sought feedback and input from the committee and we received a lot of helpful notes from a number of the committee members some of the subjects in the survey include OGIS authority there's quite a few questions on fees, metadata concerns, FOIA logs applying FOIA to legislature and judiciary first person requesting websites across the board lots of stuff that we're interested in across our various subcommittees there's also some scholarly stuff in there that Dave and I are interested in as far as experiences behaviors by request or category demographics, government type stuff of that nature as I mentioned it's still active and we're still looking to reach as wide of an audience as possible we're not quite as far along as we'd like to be as far as number of respondents so again any help is greatly appreciated I'm happy to answer any questions you may have regarding the survey but that's about all I have as far as just a very brief recap AJ do you mind if I ask is there a deadline for the survey does it close by a certain date? Yes this current round is will close on Monday December 13th is there a chance that you might be able to extend that deadline? Absolutely okay all right