FOIA Advisory Committee Votes on Additional Recommendations to Archivist

The 2020-2022 FOIA Advisory Committee met for its penultimate meeting on May 5, 2022, passing nine recommendations on a range of topics including FOIA logs, the future of the OGIS, and the intersection of FOIA and classified records. (If you missed the meeting and would like to watch, it’s available on the NARA YouTube Channel.) 

Committee members discussed and voted on a total of 13 recommendations, nine of which passed. We will update our FOIA recommendations dashboard with these recommendations after they have been formally presented this summer to the Acting Archivist of the United States Debra Steidel Wall, to whom the Committee reports. Below is a summary of the recommendations discussed at the May meeting. 

✅Technology Subcommittee Recommendation 3: The first part of this recommendation encourages the 508 Compliance and Collaborative Tools Working Group of the Technology Committee of the Chief FOIA Officers Council to continue to research and recommend options for agencies to resolve the conflicts between FOIA’s proactive disclosure requirements and Section 508 of the Rehabilitation Act until a suitable legislative solution is enacted. The second part of this recommendation encourages regular and proactive publication of searchable FOIA logs on agency websites. Agency FOIA logs should contain, at a minimum, each of the following fields in either Excel or CSV format: 

• Tracking number of the request. 
• Date of the request. 
• Name of the requester, provided it is not a first-party requester (i.e., someone asking for records on himself or herself) – to be most useful, the agency should publish the names of all third-party requesters; the agency should also alert requesters that they will publish the names of third-party requesters in their FOIA logs. 
• Organizational affiliation of the requester, if identified in the request. 
• Whether the request was processed under the Privacy Act as well. 
• Subject matter of the request. 
• Status of the request (pending, closed, etc.). 
• For requests that have been closed, the date closed and the result of the FOIA request (granted, granted in part, denied, withdrawn, etc.). 
• Fee Information 
  • Fee category assigned to requester, if applicable (commercial, educational, news media, other). 
  • Whether a fee waiver was requested. 
  • If a fee waiver was requested, whether it was granted. 
  • Amount of fees charged. 
  • Amount of fees paid. 

Vote:  16-0. Bobby Talebian abstained. (Roger Andoh, Alexis Graves, and A. Jay Wagner were absent.)

✅Legislation Subcommittee Reimagining OGIS Recommendations: The Committee passed five recommendations designed to improve oversight of the FOIA process. The recommendations to the Acting Archivist of the United States are as follows:

✅ Congress gives OGIS the authority to review records in camera. Vote: 10-3. Allan Blutstein, Alina Semo, Bobby Talebian, and Patricia Weth abstained. (Roger Andoh, Alexis Graves, and A. Jay Wagner were absent.)

✅ Congress creates a direct line-item budget for OGIS. Vote: 13-1. Tom Susman voted no. Allan Blutstein, Alina Semo, and Bobby Talebian abstained. (Roger Andoh, Alexis Graves, and A. Jay Wagner were absent.)

✅ Congress increases OGIS’s budget. Vote: 14-0. Allan Blutstein, Alina Semo, and Bobby Talebian abstained. (Roger Andoh, Alexis Graves, and A. Jay Wagner were absent.)

✅ The Archivist of the United States 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. Vote 16-0. Bobby Talebian abstained. (Roger Andoh, Alexis Graves, and A. Jay Wagner were absent.)

✅ The Archivist returns OGIS as a direct report. Vote 12-0. Allan Blutstein, Allyson Deitrick, Kristin Ellis, Alina Semo, Bobby Talebian abstained. (Roger Andoh, Alexis Graves, and A. Jay Wagner were absent.)

The Committee rejected one Reimagining OGIS recommendation that Congress directs the federal courts to give extra weight to OGIS decisions. Vote: 3-10. David Cuillier, Michael Morisy and Tom Susman voted yes. Allan Blutstein, Jason Gart, Alina Semo, and Bobby Talebian abstained. (Roger Andoh, Alexis Graves, and A. Jay Wagner were absent.)

✅Process Subcommittee Recommendation 2: Agencies should amend any regulations, directives, policies, and guidance to provide individuals, regardless of whether they have legal representation in agency proceedings, access to records about themselves. Vote: 13-0. Kristin Ellis, Matthew Schwarz, Alina Semo, and Bobby Talebian abstained. (Roger Andoh, Alexis Graves, and A. Jay Wagner were absent.)

The Committee passed two recommendations from the Classification Subcommittee. 

✅Classification Subcommittee Recommendation 5-4: That Executive Order (E.O.) 13526 be amended to require that in cases where information withheld under the Freedom of Information Act or other requests or reviews does not contain the markings specified in the governing Executive Order, agencies must add these markings. Vote: 11-1. Patricia Weth voted no. Allan Blutstein, Allyson Deitrick, Kristin Ellis, Alina Semo, and Bobby Talebian abstained. (Roger Andoh, Alexis Graves, and A.Jay Wagner were absent.)

✅Classification Subcommittee Recommendation 5-5: That the Archivist of the United States request that the Inspector General for the Intelligence Community conduct a review of agencies’ compliance with E.O. 13526, Sections 1.6 and 2.1, particularly as it relates to initial marking of classified information and also to how agencies handle classified information responsive to FOIA or other disclosure requests where markings are omitted. Vote: 15-0. Alina Semo and Bobby Talebian abstained. (Roger Andoh, Alexis Graves, and A.Jay Wagner were absent.)

The Committee rejected three Classification Subcommittee recommendations.

Classification Subcommittee Recommendation 5-1: Either the FOIA statute or E.O. 13526, or both, be amended to clarify that information which does not comport with all of the requirements of the Executive Order is not properly classified for purposes of Exemption (b)(1). Vote: 4-7. Kel McClanahan, Michael Morisy, Tuan Samahon, and James Stocker voted yes. David Cuillier, Linda Frye, Jason Gart, Alexandra Perloff-Giles, Alina Semo, and Bobby Talebian abstained. (Roger Andoh, Alexis Graves, and A.Jay Wagner were absent.)

Classification Subcommittee Recommendation 5-2: Either the FOIA statute or E.O. 13526, or both, be amended to clarify that information may not be withheld under Exemption (b)(1) if it does not contain complete declassification instructions. Vote: 3-7. Kel McClanahan, Tuan Samahon, and James Stocker voted yes. David Cullier, Jason Gart, Alina Semo, and Bobby Talebian abstained. (Roger Andoh, Linda Frye, Alexis Graves, Michael Morisy, Alexandra Perloff-Giles, and A.Jay Wagner were absent.)

Classification Subcommittee Recommendation 5-3: Either the FOIA statute or E.O. 13526, or both, be amended to clarify that information may not be withheld under Exemption (b)(1) if the markings specified in the governing Executive Order are not present in a manner that is immediately apparent. Vote: 3-7. Kel McClanahan, Tuan Samahon, and James Stocker voted yes. David Cuillier, Jason Gart, Alina Semo, and Bobby Talebian abstained. (Roger Andoh, Linda Frye, Alexis Graves, Michael Morisy, Alexandra Perloff-Giles, and A.Jay Wagner were absent.)

The transcript and meeting minutes will be posted as soon as they are available on the OGIS website. 

The passed recommendations, along with recommendations that passed in June 2021, March 2022 and April 2022, will be combined into a final report that the Committee is expected to vote on at its June 9 meeting, the last of the 2020-2022 term. Those interested in attending the meeting on Thursday, June 9 at 10 a.m. EDT can register via Eventbrite.