By: Madeline Lally
The Freedom of Information Act (“FOIA”) allows the general public to access previously undisclosed records under the control of the federal government. FOIA requests carry a presumption of disclosure and the government bears the burden to substantiate why requested information may not be released. Public bodies are required to disclose all requested public records that do not fall under one of the Act’s enumerated exceptions. Public bodies are also required to make a reasonable search for public records when responding to FOIA requests. However, FOIA’s reach is expanding and is driving the need for IT professionals in federal agencies to understand and conduct e-discovery for records requested under the Act. While 440,000 FOIA requests were fulfilled in 2013, another 95,000 from that year remain unfinished and/or incomplete.
For the most part, FOIA requests involve millions of documents and thus impose significant financial and operational costs on the producing government agency or entity. In order to complete the FOIA request, government employees must search, review, and redact documents for confidential information and as such, the process can be both time-intensive and expensive. Yet, FOIA mandates that agencies must efficiently and cost-effectively respond to all requests and that the cost of labor for producing the responses must not exceed the hourly wage of the lowers-paid public employee who performs the document retrieval. Moreover, FOIA requires that agencies acknowledge and respond to requests within twenty days. Their requirements are violated often due to the expansive nature of most requests and the agencies need for manual review of all documents.
However, the use of technology, rather than manual review, may eliminate the need for human reviewers to peruse every document. Data analytics would increase efficiency and accuracy of government responses to FOIA requests in many ways, such as enabling automatic identification of disclosable information and categories that must be redacted before the documents can be released. In order to facilitate the use of technology, government agency IT teams will have to adjust the way in which they approach request responses. Rather than using the traditional approach of keyword searching and linear review of each document, IT teams will need to be trained by e-discovery experts on the most efficient workflow for finding data and searching for details to redact.