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Chief Freedom of Information Act Officers Council Meeting Minutes – August 5, 2019

The Chief FOIA Officers (CFO) Council Meeting convened at 10:00 am on August 5, 2019, in the National Archives and Records Administration (NARA) William G. McGowan Theater – 700 Pennsylvania Ave. NW, Washington, DC 20408.

A livestream video of the meeting was also made available, and in accordance with 5 U.S.C. § 552(k)(6)(B), the meeting was open to the public “permit[ting] interested persons to appear and present oral and written statements to the Council.”

All meeting materials are available on the Office of Information Policy (OIP) and Office of Government Information Services (OGIS) websites at: https://www.justice.gov/oip/chief-foia-officers-council and https://www.archives.gov/ogis/about-ogis/chief-foia-officers-council.

Speakers:

  • Alina M. Semo, Director, OGIS, NARA
  • David S. Ferriero, Archivist of the United States, NARA
  • Kirsten Moncada, Privacy Branch Chief, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB)
  • Bobak Talebian, Chief, FOIA Compliance Staff, OIP, Department of Justice
  • Eric Stein, Director, Office of Information Programs and Services, U.S. Department of State
  • Michael Sarich, FOIA Director, VHA Central Office, Office of Health Informatics, Veterans Health Administration

Introduction:

  • Ms. Semo welcomed everyone to the Council meeting and briefly outlined the agenda for the meeting. 
  • Mr. Ferriero provided brief opening remarks.  He connected two of NARA's strategic goals to the mission of the CFO Council: to make access happen and to connect with customers.  He also highlighted the timeliness of the Technology Subcommittee's work in light of NARA's work to transitioning the government to electronic records.    

Presentation from Kirsten Moncada (OMB): Foundations for Evidence-Based Policymaking Act)[1] 

  • Ms. Moncada provided an overview of the Evidence-Based Policymaking Act, which was enacted in January 2019. The three components of the Act include 1) federal evidence-building activities through program evaluation and statistical policies; 2) the Open Government Data Act, which provides for the creation of a federal data inventory and catalog, a Chief Data Officer position within each agency, and Chief Data Officers Council; and 3) confidential information protection and statistical efficiency to provide guidance for accessing data and to develop evidence.
  • Ms. Moncada emphasized OMB’s collaborative approach to implementing the Act and acknowledged the Act’s fast approaching deadlines and overlap with other initiatives. OMB has established Phase 1 guidance for agencies.

2020 Chief FOIA Officer Report Guidelines:

  • Bobak Talebian (OIP) discussed the 2020 Chief FOIA Officer Reporting Guidelines, which were released on Friday, August 2.
  • The CFO report covers five key areas of FOIA administration including 1) applying a presumption of openness, 2) effective systems for responding to requests, 3) increasing proactive disclosures, 4) increasing utilization of technology, and 5) improving timeliness and reducing backlogs. 
  • Mr. Talebian explained that the reporting requirements differ depending on the volume of requests that agencies received in fiscal year 2018. Agencies that received more than 50 requests must respond to the questions in the five sections of the report by January 17, 2020. New this year, agencies that received 50 requests or fewer may, but are not required to report. Those that choose to report should submit their report by February 14, 2020.  OIP will host refresher training on reporting requirements and roll out a new Annual Reporting tool in the fall.  

Presentation from CFO Council Technology Subcommittee Co-Chairs

  • Ms. Semo introduced the Technology Subcommittee co-chairs with reference to the FOIA Advisory Committee's recommendation to explore the technological issues related to FOIA searches. She highlighted that the committee is composed of members from eleven different agencies of various sizes that have been grappling with issues related to FOIA technology.  Ms. Semo also highlighted a recent OGIS report on leveraging technology for FOIA searches that dovetails with the Subcommittee's work.  
  • Mr. Sarich explained the subcommittee’s function is to study the use of technology in FOIA throughout the federal government and identify best practices.  Mr. Stein discussed best practices identified by the subcommittee such as linking records management and FOIA administrators, embracing technological systems, and senior-level support.
  • Mr. Sarich also shared two main takeaways. First, establishing electronic products for FOIA processing on the General Services Administration (GSA) schedule for government contracting could level the playing field across the spectrum of agency FOIA programs large and small.  Second, agencies can lend a hand to other agencies by pooling resources and sharing best practices to assist in efficient processing of FOIA requests.
  • Mr. Stein also pointed to interoperability as another technological area where agencies could improve efficiency. Mr. Sarich advised that technology can be a force multiplier to address limitations in staffing and increasing requests. He anticipates that the future of FOIA will involve artificial intelligence and predictive technology to assist agencies and FOIA professionals in processing requests more efficiently.

Discussion of Exemption 4 US Supreme Court Decision: Food Marketing Institute v. Argus Leader Media (June 24, 2019)[2] 

  • Mr. Talebian provided an overview of the recent US Supreme Court Decision overturning the National Parks standard for Exemption 4. In Food Marketing Institute v. Argus Leader Media, the Supreme Court determined that information is confidential subject to two conditions: 1) if it is customarily kept secret by the person providing the information or 2) if the party receiving the information provides assurances it will be kept secret. The first condition must always be met. The Court did not address whether the second condition is always required.
  • OIP is formulating guidance for agencies on the new standard.  In the interim, agencies can reach out to the FOIA Counselor line for guidance regarding specific requests.

Q & A Session

  • Mr. Talebian and Ms. Semo opened the floor and responded to various questions and comments.

Conclusion

  • Ms. Semo thanked everyone and closed the meeting.

List of Registered Attendees

  • Candace Ambrose
  • Andrea Andersen
  • Lisa R. Barton
  • Michael Bell
  • Amanda Bengtson
  • Michael Binder
  • Jacob Bliss
  • Natalie  Bonanno
  • Michael Braswell
  • June Brown
  • Cindy Cafaro
  • Noelle Chadwick
  • Beatriz Collazo
  • Rebecca Conner
  • Juliette Cowall
  • Sarah Cunanan
  • Mahala Dar
  • Erin Dawson
  • Stacey Demps-Barrett
  • Judith  Dupre
  • Stacy Easter
  • Lamar Echols
  • John Einstman
  • Michael Elston
  • Timothy Epp
  • Roanald Flagg
  • Stephanie Garner
  • Mava Ghonda
  • Nikki Gramian
  • Vera Grebenkina
  • Amanda Haas
  • Michelle Hudicourt
  • Brenda Huneycutt
  • Kim Hutchinson
  • Lennell Jackson
  • Martina Jennings
  • Doloras Johnson
  • Toyia Johnson
  • Judith Kaleta
  • Janice  Kaye
  • Synta Keeling
  • Timi Kenealy
  • David Kligerman
  • Ingrid Kolb
  • Stephanie Kost
  • Taylor Lain
  • Ryan Law
  • Paul Levitan
  • Travis Lewis
  • Wen Liu
  • William Marquez
  • Michael Marquis
  • Wendy Marshal
  • Jennifer Matis
  • Bridget McFarland
  • Kirsten Moncada
  • Amy Nicholas
  • Martha Orr
  • Logan O'Shaughnessy
  • Tim Osumi
  • Elise Packard
  • Bryan Parker
  • Rosanna Piccirilli
  • Nancy  Platt
  • Wendy Pulliam
  • Catrina Purvis
  • Johnathan Raford
  • Mae Ridges
  • Brandon Rios
  • Delissa Rivers
  • Christina Rivetti
  • Chuck  Romoser
  • Joe Scanlon
  • Loretta Schuster
  • Nichole Skoyles
  • Stephen Smith
  • Gregory Smith
  • Rachel Spector
  • Bill Spencer
  • Tracey St. Pierre
  • Dione Stearns
  • Gary Stern
  • Nora Taylor
  • Kimberly Veach
  • Tamiko Watkins
  • Jennifer Weatherly
  • Nancy Weiss
  • Geoff West
  • Jeanean West
  • Darrell Williams
  • Lauren Wilson
  • Betty Lou Wingo
  • Tyra Wiseman
  • Wadi Yakhour

[1] https: 115th-congress="" 4174="" bill="" house-bill="" text="" www.congress.gov

[2] https://www.supremecourt.gov/opinions/18pdf/18-481_5426.pdf

Updated November 4, 2022