FOIA and eDiscovery—Similar Challenges, Same Solutions
Discovery Digest – Q4 2012
Agency attorneys who oversee eDiscovery can feel the pain of their colleagues charged with responding to Freedom of Information Requests: staggering amounts of information that could be responsive, short time frames, explicit FOIA exceptions, reviewing for confidentiality and privilege, metadata concerns and a host of other issues. As in litigation, information that may be relevant to a FOIA request can exist on paper or electronically (ESI – electronically stored information). Whether in emails, databases or as electronic documents, ESI presents unique challenges. Without the right technology and processes in place, the same paper or electronic document could be requested over and over, and each time someone in the agency could complete a fresh search for it. Amidst all this, the government is pushing agencies towards electronic formats, rather than paper files, and moving to the cloud, instead of servers down the hall.
At the same time, agencies are receiving more FOIA requests. In Fiscal Year 2011, the 99 federal agencies subject to FOIA received 644,165 total requests and processed 631,424 total requests, according to the Office of Information Policy at the U.S. Department of Justice. That compares to 557,825 requests received and 612,893 requests processed in FY 2009, when agencies made progress cutting through their backlog of requests. FOIA costs are also climbing. In FY 2011, the total cost of all FOIA related activities across the government was an estimated $436 million, compared to $382.2 million in FY 2009.
Whether attorneys manage eDiscovery, directly handle FOIA requests or oversee FOIA denial appeals, they can see benefits from sharing knowledge, processes and technology.
FOIA Requests and Agency Requirements
While eDiscovery time frames can be extremely compressed, the turnaround times with FOIA requests are even tighter. Agencies have 20 days to process FOIA requests.
According to President Obama’s 2009 FOIA Memorandum, agencies should presume openness when responding to FOIA requests. “In responding to requests under the FOIA, executive branch agencies (agencies) should act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public,” according to the memo.
As part of the President’s FOIA emphasis, he directed the U.S. Attorney General to establish agency guidelines around administering FOIA. Since then, Chief FOIA Officers within agencies are required to annually report on their initiatives. In their 2013 reports, Chief FOIA Officers will be required to provide updates in multiple areas: steps taken to apply the presumption of openness; steps taken to ensure that the agency has an effective system in place for responding to requests; steps taken to increase proactive disclosures; steps taken to greater utilize technology; and steps taken to improve timeliness in responding to requests and reduce backlogs.
Challenges with FOIA
Agencies face numerous issues when trying to respond to FOIA requests, just as they do with eDiscovery.
Exemptions and Redactions
Nearly 70% the FOIA requests the federal government received in FY 2011 were processed for exemption applicability. Slightly more than half of those documents were fully released, and 93 percent were released with some or all of the requested information. Less than 7 percent of all requests received a full denial based on FOIA exemptions. Just as with discovery review for relevance, confidentiality and privilege, FOIA review for exemptions and redactions can be time-consuming and prone to human error and inconsistencies.
Metadata represents a growing challenge with federal FOIA requests. In 2011, U.S. District Judge Shira A. Scheindlin ruled in National Day Laborer Organizing Network v. United States Immigration and Customers Enforcement Agency (S.D.N.Y. Feb. 7, 2011) that federal government FOIA responses must include metadata and be searchable. While Judge Scheindlin later withdrew that ruling and her July 2012 ruling in the case was quiet on the subject of metadata, agencies should pay attention to her point about metadata: “By now, it is well accepted, if not indisputable, that metadata is generally considered to be an integral part of an electronic record. See, e.g., Williams v. Sprint/United Mgmt. Co., 230 F.R.D. 640, 652 (D. Kan. 2005) (holding that “metadata is an inherent part of an electronic document, and its removal ordinarily requires an affirmative act by the producing party that alters the electronic document”).
Judge Scheindlin also pointed to several state court rulings, including those in New York and Washington, where judges have ruled that metadata is part of the record under state freedom of information act laws.Federal agencies should brace themselves for the possibility that federal court rulings will require metadata in FOIA responses.
The Cloud Over the Federal Government
Along with greater responsiveness to FOIA requests, the Administration is pushing agencies to move their data and systems to the cloud. Agency attorneys who deal with both FOIA and eDiscovery need to be working closely with IT and records management so they know what types of data are moving to virtual environments, when the transitions are taking place, who controls the data once it resides in the cloud, how they can access it and how it can be searched, among many other issues.
Easing the FOIA Burden
Just like with eDiscovery, though, new technology and smart processes can ease the burden of fulfilling FOIA requests.
One solution is technological: the multi-agency web portal, which went live on Oct. 1. The one-stop spot is known as FOIAonline and can be found at http://FOIAonline.Regulations.gov. The public can submit FOIA requests, track progress, search for other requests and find previously released documents. For agencies, it represents a secure place to assign and process requests and post responses. It will also generate metrics and reports and manage records electronically. The project is a collaboration between the Environmental Protection Agency, the Department of Commerce and the National Archives and Records Administration (NARA). EPA and Commerce are paying most of the $1.3 million for the portal, which could save as much as $200 million over the next five years if it is adopted government-wide, according to NARA. Along with the EPA, Commerce and NARA, the Department of the Treasury, the Federal Labor Relations Authority and the Merit Systems Protection Board have partnered with the portal as of Oct. 1.
eDiscovery tools can be used for litigation and FOIA requests alike, allowing agencies to share resources and knowledge across departments. With eDiscovery tools, those working on FOIA requests can locate, collect and cull documents that might be relevant to a FOIA request. Such tools can also be used to check for exemptions and privilege. FOIA documents can be loaded onto eDiscovery platforms for review, analysis and production.
There never seems to be enough time or money to easily manage eDiscovery or FOIA requests. By combining forces in the two areas, agencies can better fulfill their public missions, minimize stress, reduce turnaround time and save money. And we can help—Deloitte assists agencies with lowering their overall FOIA program costs using an approach that combines strategy, technology and innovation.
Deloitte’s years of experience providing high-profile litigation support for public sector agencies offers a head start when eDiscovery is added to the special challenges pertaining to FOIA requests and related lawsuits. These challenges usually include:
- Demands of tight deadlines
- Decentralized environment with layered security considerations
- No single access to all records and information
- Preventing disclosure of sensitive, privileged, classified, or Privacy Act materials
- Prevention of information spoliation
- Coordination with all stakeholders
Providing seamless litigation and FOIA support that minimizes operational disruptions mean closely integrating people, facilities, processes, and technology under a unified, standards-based framework tailored to meet an agency's needs.
As used in this document, “Deloitte” means Deloitte Financial Services LLP. Please see www.deloitte.com/us/about for a detailed description of the legal structure of Deloitte LLP and its subsidiaries. Certain services may not be available to attest clients under the rules and regulations of public accounting.
While the information in this article may deal with legal issues, it does not constitute legal advice. If you have specific questions related to information discussed in this article, you are encouraged to consult an attorney who can investigate the particular circumstances of your situation.