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Questions About FOIA and E-Discovery? Look No Further!

Created on July 28, 2017

Former Content Marketing Manager at Exterro

The Definitive Guide to E-Discovery

Corporations struggling under mountains of electronic data and rapid fire e-discovery requests may find solace in the fact that they don't have it nearly as bad as many government agencies answering requests under the Freedom of Information Act (FOIA).

What is the Freedom of Information Act?

FOIA, according to the government's website, is a “law that keeps citizens in the know about their government" by granting people access to government records.

What is a FOIA request?

Enacted in 1966, FOIA is a federal law that establishes the public's right to obtain information from government agencies. "Any person" can file a FOIA request, including U.S. citizens, foreign nationals, organizations, associations and universities.

What does FOIA have to do with e-discovery?

On the one hand, e-discovery and FOIA requests are very similar in that they both involve obtaining electronic documents and using technology to review and produce the data. However, they are two very separate processes governed by entirely different sets of laws and rules. In fact, courts routinely admonish parties who use FOIA requests as a means to circumvent traditional e-discovery rules. That being said, parties are permitted to seek information via discovery and FOIA in some circumstances.  

What are the differences between FOIA requests and traditional litigation e-discovery?

There are many differences but we'll focus on two key areas. The first involves access. In litigation, e-discovery access to ESI is limited to those individuals involved in the matter. With FOIA, just about anyone can make a request for records. A second difference has to with relevancy. In discovery, electronic data is only deemed to be discoverable if it has relevance to the litigation. Conversely, FOIA requests can be made by anyone and cover any topic without the need to justify their reasons for making this request.      

Why are FOIA requests so challenging?

For starters, there are a lot of them. As described above, there are fairly loose restrictions around FOIA, so it's not very difficult for someone to submit a request (investigative journalists, for example, do it all the time). The numbers bear that out. Last year, more than 700,000 FOIA requests were issued in the United States. Nearly 160,000 of those have yet to be fulfilled (see more stats on the official FOIA website). The FOIA Project ran an experiment in which they submitted a basic FOIA request to 21 federal agencies to gauge response rates. More than two months after the requests were submitted, only seven agencies had adequately responded by providing records.  Clearly, governmental agencies are having a difficult time keeping pace. But they aren't doing themselves any favors either. Generally, federal agencies are woefully inefficient when it comes to managing their electronic records (something that has been noted by the Obama administration). Consequently, it can be very difficult for these agencies to find the specific documents that get requested. Making matters worse, federal agencies are awash in electronic data. Not only are they constantly producing and collecting data, but many agencies are obligated to retain just about everything in perpetuity, so there is a lot to sort through when a FOIA request comes rolling in.   

How can technology help with FOIA Requests?

As noted above, the data recovery processes that underlie FOIA requests are inherently similar to those associated with e-discovery. It stands to reason that e-discovery technologies can be highly beneficial to government agencies dealing with the FOIA deluge. In particular, pre-collection analytics can be especially useful because they allow agencies to assess the breadth of a request immediately through keyword and other advanced searching, limiting the amount of data that actually has to be extracted from a given repository to fulfill the request.     

FOIA Deep Dive with Chris Knox -- Deloitte, Government Discovery Sector 

Chris Knox, Leader of the Government Discovery Sector at Deloitte Transactions and Business Analytics, LLC. Chris has over 18 years of experience in program management delivering litigation support services to the Federal Government. In the interview below we discuss the major challenges faced by government agencies to meet FOIA request deadlines, how to prevent request backlogs and best practices for streamlining the FOIA request process moving forward. 

1. According the FOIA Project, in a sample test, 10 out of 21 federal agencies failed to adequately respond to a basic FOIA request. Additionally, the backlog of FOIA requests grew from 95,000 in 2013 to 160,000 in 2014. Why are government agencies struggling so much with FOIA requests?

In my experience, I have seen a number of factors contribute to the increase in FOIA requests to the federal government. Not only have I seen an uptick in the number of FOIA requests in recent years contribute to the backlog – but I feel that the requests are more complex. FOIA has become a more popular means to locate information for those interested in the activities of the federal government. Specifically, FOIA requesters are seeking correspondence and large document sets to locate information about decision making, collaboration between agencies and government supporting entities, and potentially embarrassing information. Not only does the size of these document sets make them difficult to locate, but also the act of determining whether or not documents are responsive has become a lengthier and analytically complex process.

In addition to the complex nature of document searches, the actual review of the documents has become more challenging. Correspondence based requests are more likely to require the use of the b(5) exemption for inter- and intra-agency communications. This requires sophisticated analytical skills. Also, in regards to redactions, the protection of privacy is very important and the federal government possesses a large amount of documentation containing Personally Identifiable Information (PII).  

The technological approach to FOIA has presented many challenges. Although numerous powerful FOIA processing tools are in use, the training to use these tools and technical support for the tools has lagged. Even with the proper training and support, there is a learning curve associated with the implementation of any tools  

Lastly, agency staffing and budgets for FOIA have been shrinking. Sometimes, handling FOIA matters are only a collateral duty of agency personnel. This often is a stumbling block for them to develop deep subject-matter expertise.  

2. Beyond FOIA, state government agencies also must deal with this public request problem. Does their situation differ at all compared to the federal government?

Most state and local governments have some form of FOIA-like responsibilities. Many, if not most, are not FOIA requirements that are state-wide, but rather open records requirements that responsibilities of individual offices or local governments. Also, state and local requirements similar to FOIA are a more recent requirement than the federal FOIA requirement. This has resulted in many state and local governments seeking a more modern, open government based approach to records release. Many states and local governments are leaning more toward open government and open data supporting websites.  

Florida, California, New York, the City of Los Angeles, and Washington DC are among the leaders in state and local open records and freedom of information efforts.

3. People have been critical of government agencies for not meeting their legal requirement to respond to public records requests. Is there anything being done to help improve responsiveness and compliance with existing laws and regulations?

Many FOIA compliant offices, mostly in the federal market, are heavily burdened by the current workload while also being pressured to change their process to release information proactively. Although basic logic supports the notion that the more information that is proactively released will result in less FOIAs, this is not currently possible due to pending workloads.

FOIA offices are bogged down by backlogs and do not have a system that is currently designed to support streamlined proactive approach to the release of records. FOIA is intended to be “the responsibility of all federal employees," but actually falls on the shoulders of a very small percentage of federal and contracted employees. These FOIA employees are then responsible for working across agencies, often quite decentralized, to locate records and coordinate with subject matter experts to obtain responsive records and then withhold sensitive material. There is a need for a new workflow for FOIA and an overall records process that would align with the proactive release of information.

4. From a process standpoint, how do government agencies attempt to solve these FOIA/public request problems?

The improvement of the proactive release of information would result in output of more information and then allow for agencies to focus more energy on the challenging and complex FOIA requests that bog the federal government down and often result in appeals and litigation. Less FOIA requests would alleviate the burden placed on FOIA compliant offices and enable offices to reexamine the FOIA process as well and establish a system that would most efficiently use technology, the skills of FOIA specialists, and increase the overall productivity of the release of information to the public.

5. It seems to me that government agencies have some catching up to do to get where their corporate counterparts are when it comes to dealing with these e-discovery type activities. Should government agencies be looking to e-discovery technology solutions to help lessen the burden of these requests?  If so, what types of technology would be beneficial?

Electronic discovery technologies present a means to improve the working relationship between records management and the FOIA. Locating FOIA records can be a time consuming task and anything to simplify the location of records would improve the overall process. Additionally, the complex nature of email based FOIA requests has resulted in massive document sets. This creates challenges with regard to de-duplication of data and the ability to conduct advanced data queries. The smaller and more precise records get, the easier the FOIA process is going to be.

A key component of for a successful technology solution is the use of analytics to cull data as well as pre-identify content based on text analysis. Additionally, any technology that can pre-redact information would be extremely beneficial. Most of the information redacted by the federal government is personally identifiable information (PII), and is in a known location or the same location for multiple FOIA requests. Although redaction templates exist in multiple FOIA redacting tools, they can be rudimentary. An e-discovery tool that could assist in locating responsive records, while also redacting known exempt material, would be very useful to any FOIA or open records complaint office.