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Open Records and FOIA – Pushing Government Technology into the 21st Century

At a recent a conference for compliance and IT professionals working in the state government sector, it quickly become evident that one of their main concerns was the tremendous increase in the number of open records requests that they have to deal with.   Both the federal and state governments give much lip service to the theory of transparency but few have made the necessary changes to properly deal with the onslaught of requests that appear almost daily.  Wisconsin’s Governor, Scott Walker’s administration has already produced 60,586 pages of open records in response to 222 requests in 13 months.  Compare that to 312 requests filled during the previous governor’s first 4 years[1].  It’s not just Wisconsin that is dealing with an explosion of open records and FOIA requests.  The U.S. Department of Defense received 67,434 in 2009 compared to 74,573 in 2010 and the National Archives and Records administration received 14,075 in 2008 compared to 18,129 in 2011[2].  Most government entities handle open records requests the same as they handle eDiscovery for litigation, manually and on an ad hoc basis.  Unfortunately for government agencies, the turnaround for a response is much quicker than for litigation.  Federal agencies have a statutory requirement to respond to requests within 20 business days[3].  State agencies have time limits ranging from 10-30 days or within “a reasonable time.”  For this reason, IT departments are struggling to keep up and there is a substantial backlog at most agencies.

Adding to their concerns, metadata could be a factor in public disclosure requests. Within the hard drive of any standard computer, metadata is created with each underlying electronic document. Metadata describes the document’s history, tracking and management. In Arizona and Washington that metadata, when requested, is now also subject to a public disclosure, along with the underlying document itself.  On a national level, a ruling by Judge Scheindlin in February of 2011 stated that responses by the federal government to FOIA requests must include metadata and be in a searchable format[4].  Although, she withdrew her opinion later that year (she said it was not based on a full and complete record), her original ruling will undoubtedly influence other courts grappling with public disclosure disputes, especially as they become more technologically savvy.

At this same conference, we heard from the CIO of a large state agency who revealed the tremendous cost of dealing with open records requests especially in a year where his agency has been the subject of several news stories and litigation[5].  The agency took several steps to reduce the cost and time associated in responding to these requests.  The first step was to perform file remediation on data that was not a record and met no legal, regulatory or business requirement for retention.  Next, they began the process of implementing an email archive in order to enforce retention and have one repository of record for all emails instead of dealing with local email storage on each hardware device.  In the meantime, they have installed in-house search technology that has allowed the agency to find and copy the requested information in a matter of minutes whereas the same action used to take several days.  When the occasional litigation notice came through, they have been able to utilize the same technology to put the requested information on hold.

Another concern for government agencies is the prospect of moving some or all of their data to the cloud. In fact, federal agencies were directed by President Obama to consider cloud based services or storage systems for records keeping[6].  The challenge then becomes how to facilitate cloud management of that information while still responding quickly to public record requests.  Any agency contemplating that move must ensure that the data being managed by the cloud provider is maintained in an easily accessible manner and that the provider is contractually bound to have technology in place for easy and fast retrieval of data for responding to eDiscovery.  Otherwise each request may be billed as a special project and the cost savings initially realized can quickly dissipate.

A possible step in the right direction is the common web portal for FOIA requests launching in the fall of 2012.  According to The FOIA Ombudsman, the $1.3 million portal, being built mostly with funds from the Environmental Protection Agency and the Commerce Department, with some participation from NARA, could save the federal government $200 million over 5 years were it to be adopted government wide[7].  This is a big step toward giving the public a self service model (similar to a tool utilized by government agencies in Mexico[8]).  However a portal is only as good as the data behind it so only time will tell if this can serve as a national model.

Although the government is notoriously behind the private sector in modernizing its technology, the public’s need for an open and transparent government does appear to be speeding up the process to the benefit of agency budgets and more importantly, the taxpaying public.

[3] 5 U.S.C. § 552(a)(6)(A)

[4] Nat. Day Laborer Org. Network v. U.S. Immigration and Customs Enforcement Agency (“NDLON”) 2011 WL 381625 (S.D.N.Y. Feb. 7, 2011)

[5] While public disclosure rules allow for collecting fees and recovering costs, some requesters who qualify for placement in favored fee categories may be charged less or may not be charged at all. Educational, news media and noncommercial scientific requesters typically pay no search or review fees and only duplication costs after a certain number of pages (usually 100 or more).  The amount of paper that is created by these responses is unacceptable.  Taxpayers are right to question why so much of their money is spent creating paper documents when 93%+ of all communication is in an electronic format (David W. Degnan, Accessing Arizona’s Government: Open Records Requests for Metadata and other Electronically Stored Information after Lake v. Phoenix, 3 Phoenix L. Rev. 69 (2010)).


One Response

  1. I would be interested to know how much the various agencies use algorithmic search systems such as Autonomy, that allow electronic searching by context, pattern, and word. Also, is there automated metadata based on the content so that it is easier to search and to categorise?

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