FOIA Advisory Committee Votes on Recommendations to Archivist

During their meetings on March 10 and April 7, 2022, the 2020-2022 FOIA Advisory Committee met to discuss and vote on recommendations to the Archivist of the United States for improving FOIA administration. Recommendations ranging from agency reporting on “Glomar” responses to posting of certain information online to assessing how non-citizens obtain their Alien files are among 11 recommendations the FOIA Advisory Committee passed at its March and April meetings. The Committee also passed two recommendations “in spirit” at the April 7 meeting, and is expected to vote on the final versions of those recommendations at its May 5 meeting.

We have not updated our FOIA recommendations dashboard with these recommendations, which have not been formally presented or accepted by the Archivist of the United States, to whom the Committee reports. Below is a summary of the recommendations. 

The Committee passed the following five recommendations in March: 

• Classification Subcommittee Recommendation 1: That the Office of Information Policy (OIP) issues guidance to agencies that they use the internationally recognized “Neither Confirm Nor Deny” (NCND) instead of “Glomar.”. Vote: 13-4. The four “no” votes were Allan Blutstein, Allyson Deitrick, Alexis Graves, and Patricia Weth. Bobby Talebian abstained. (Alina Semo and Tuan Samahon were absent.) 

• Classification Subcommittee Recommendation 2: That agencies annually report on agency use of Neither Confirm Nor Deny/Glomar. Vote: 15-2. The two “no” votes were Matthew Schwarz and Patricia Weth. Bobby Talebian abstained. (Alina Semo and Tuan Samahon were absent.)  

• Classification Subcommittee Recommendation 3: That agencies post on their FOIA websites Information about Neither Confirm Nor Deny/Glomar responses. Vote: 14-3. The three “no” votes were Matthew Schwarz, Alexis Graves, and Patricia Weth. Bobby Talebian abstained. (Alina Semo and Tuan Samahon were absent.)  

• Classification Recommendation 4: That a relevant organization study Neither Confirm Nor Deny/Glomar usage. Vote: 17-0. Bobby Talebian abstained. (Alina Semo and Tuan Samahon were absent.) 

• Technology Subcommittee Recommendation 1: That OIP encourages agencies to post on their FOIA websites certain information online beyond what is required by law. Vote: 17-0. Bobby Talebian abstained. (Alina Semo and Tuan Samahon were absent.) 

The Committee passed the following five recommendations at its April meeting: 

• Technology Subcommittee Recommendation 2: That the Chief FOIA Officers Council establish a working group within two years to determine best practices for release of records in native format, including metadata. Vote: 16-0. Alina Semo and Bobby Talebian abstained. (Dione Stearns and A.Jay Wagner were absent.)

• Process Subcommittee Recommendation 1: That records relied on by any agency that affect eligibility for benefits or adversely affects an individual in proceedings should be made automatically available and not require first-person FOIA practice. Vote: 15-2 The two “no” votes were Allan Blutstein and Kristin Ellis. Bobby Talebian abstained. (Dione Stearns and A.Jay Wagner were absent.) 

• Process Subcommittee Recommendation 3: That agencies that receive frequent first-person requests identify the most commonly requested records and develop a plan for processing such records that leverages technology, promotes efficiency and good customer service. Vote: 17-0. Bobby Talebian abstained. (Dione Stearns and A.Jay Wagner were absent.) 

• Process Subcommittee Recommendation 4: That a comprehensive assessment of the Department of Homeland Security (DHS) processes, workforce, and existing technology be initiated as it relates to A-files responsive to FOIA requests. Vote:16-0  Alina Semo and Bobby Talebian abstained. (Dione Stearns and A.Jay Wagner were absent.) 

• Legislation Subcommittee Recommendation 1: That Congress gives OGIS the authority to make binding decisions. Vote: 12-3 The three “no” votes were Allyson Dietrick, Kristin Ellis, and Matthew Schwarz. Allan Blutstein, Alina Semo, and Bobby Talebian abstained. (Dione Stearns and A.Jay Wagner were absent.) 

Due to time limitations, the Committee was able to vote on only one of the Legislation Subcommittee’s seven recommendations.The remaining six recommendations are expected to be taken up at the May 5 FOIA Advisory Committee Meeting. They are that:

• Congress gives OGIS the authority to review records in camera. 
• Congress directs the federal courts to give extra weight to OGIS decisions.  
• Congress creates a direct line-item budget for OGIS. 
• Congress increases OGIS’s budget.
• The Archivist of the United States (AOTUS) commissions a feasibility study, incorporating input from requesters and agencies, to more deeply explore the costs and benefits of these recommendations and refine the proposals to aid Congress in drafting legislation. 
• OGIS is restored as a direct report to the AOTUS within the National Archives.  

The Committee also is expected to take up two recommendations that it voted to pass “in spirit” at the April 7 meeting. The Committee expected to vote on final versions of these recommendations at its May 5 meeting. They are: 

• Technology Subcommittee Recommendation 3: That research be done to come up with recommendations for agencies to resolve the inherent conflicts that exist between FOIA’s proactive disclosure requirements and Section 508 of the Rehabilitation Act; and that FOIA.gov, as well as commercial portals, allow for the full text searching of FOIA logs. Additionally, agencies should proactively publish FOIA logs in the agency’s electronic reading room/FOIA Library. Vote 16-0. Alina Semo and Bobby Talebian abstained. (Dione Sterns and A.Jay Wagner were absent.) 

• Process Subcommittee Recommendation 2: That agencies amend any existing regulations, directives, policies, and guidance adversely affecting access for pro se parties. Vote: 16-0. Allan Blutstein and Bobby Talebian abstained. (Dione Sterns and A.Jay Wagner were absent.) 

The transcripts and meeting minutes for both the March 10 and April 7 meetings will be posted as soon as they are available on the OGIS website. Those interested in attending the May 5 FOIA Advisory Committee meeting at 10:00 a.m. EDT can register via Eventbrite.