I believe this set of messages raise a set of real questions

[David Farber <farber@central.cis.upenn.edu>]

Posted-Date: Fri, 7 Jan 1994 15:08:29 -0500
Date: Fri, 7 Jan 1994 14:11:59 -0600 (EST)
From: Stephen Wolff <steve@nsf.gov>
Subject: Re: Advisory Committee resources
To: James Love <love@essential.org>
Cc: The future Ross Stapleton-Gray <STAPLETON@bpa.arizona.edu>,
        com-priv@psi.com
Mime-Version: 1.0


> > This is possible, but, having seen the issue come up in the context of the
> > Federal Networking Council and FNC AC already, there might be good reasons
> > for having an Advisory Committee resource *not* be on a Federal government
> > site.   This would have to do with what could or couldn't be made public,
> > when and how, with respect to FOIA rules, statutory requirements, etc.
>
>
>    Ross, you have raised this issue before, according to scott Armstrong,
>    of ways that federal agencies can get around FOIA.  Is there really any
>    reason why a federal advisory board that wants to make decisions that
>    will influence our telecommunications policy should not use a system that
>    is subject to FOIA?  What could possible be discussed that should not be
>    part of the public record?
>     jamie


Hold the phone!  This is NOT a question of trying to "get around FOIA."


We're talking about a private sector advisory committee to the federal
government, chartered according to the provisions of the Federal Advisory
Committee Act which requires, i.a., that its meetings be announced in
advance in the Federal Register, that all meeting sessions be open to the
public unless specified to be closed in the meeting announcement, that
closing a session can only be done for a VERY few reasons, and that
meeting minutes be kept.


Thus the deliberations of an advisory committee are open to the public -
both at meetings and via the minutes, and any reports the committee might
make and deliver to the government are thereupon subject to FOIA.


BUT: There is (as far as I know) NO law (FOIA or other) that
correspondence (electronic or otherwise) among advisory committee members
be public.  Nor if that correspondence were stored on the computers of the
committee members or any other private machine need it be open to the
public.  BUT, if it were stored on a government computer, it WOULD be
subject to FOIA. Thus the government, in trying to accommodate its
advisory committee by providing storage, would subject its members to
unwarranted invasion of their privacy which is not required by law.


This is NOT a question of trying to "get around FOIA," but of avoiding its
inappropriate application.


-s


Posted-Date: Fri, 7 Jan 1994 16:59:45 -0500
Date: Fri, 7 Jan 1994 13:29:54 -0800 (PST)
From: "Brock N. Meeks" <brock@well.sf.ca.us>
Subject: Re: Advisory Committee resources
To: James Love <love@essential.org>
Cc: Stephen Wolff <steve@nsf.gov>,
        The future Ross Stapleton-Gray <STAPLETON@bpa.arizona.edu>,
        com-priv@psi.com
Mime-Version: 1.0




In the discussion of whether the NII advisory council related
correspondence would be available via FOIA, I think we can look at what
happened when Hillary Rodham Clinton tried to keep the deliberations of
her health care advisory committee secret.  Bottom line was, she wasn't
able to.


I think Steve and Jamie both have valid points.  Steve is certainly right
on when he outlined how the FNC is set up and the guidelines it uses,
even when there is a closed meeting.  As he said, if one wants to find
out what happened, they can get ahold of the minutes.


However, Jamie also has a point when he's talking about the difference
between private email between members of the AC *not* related to the NII.
That correspondence can certainly go through other channels, not simply
out to some NII-AC-LIST.


I also wouldn't be worried about anyone involved trying to "get around"
FOIA requirements.  If the AC follows the lead of Steve Wolff, there's
certainly nothing to worry about.  Steve has set an outstanding example
of a government official complying with FOIA requests, especially as they
relate to electronic mail.  He should get an award for that effort.


Brock Meeks
reporter
Communications Daily