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Data Risk Management

A Primer on the Freedom of Information Act (FOIA) and Obtaining Government ESI

May 14, 2015

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.

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