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Leveraging e-Discovery Solutions for FOIA Requests

Feb 20, 2020

In 2018, the federal government received 863,729 FOIA requests and spent over $540 million on related costs. With these numbers rising each year, the burden on federal agencies is escalating rapidly. This same scenario plagues state and local governments as well, albeit on a different scale. Solutions are needed to improve efficiency and accuracy and reduce time and money spent on requests. Since so many different computer systems are typically involved, it can seem daunting. However, tools and workflows built for eDiscovery already exist and can be leveraged to handle FOIA requests for any governmental body.

Common Challenges in Processing FOIA Requests

While the number of FOIA requests is rising significantly every year, the volume of electronic records is increasing at an even higher rate. Virtually all organizations struggle to keep their record retention policies up-to-date with constantly changing and evolving technology. The federal government is no exception, but federal agencies do face a unique challenge: they need to keep pace with technology changes while also fulfilling their obligation under the FOIA to promote transparency and open government.

Email communications are particularly difficult to handle because they are a major contributor to the increasing volume of electronic records and the record type most-frequently requested by FOIA requestors. Emails and their related metadata also fall under intense record retention policies, including the preservation of emails of select officials in perpetuity.

Additional challenges face large government agencies. Frequently housing several distinct bureaus under one administrative roof, these agencies must contend with decentralized processes and resources. As a result, the processing of a single FOIA request can require a FOIA officer to coordinate a search for records across multiple departments and to conduct searches in a variety of records systems. Once retrieved, the FOIA officer must compile and consolidate those records and streamline them for review – a difficult task without the benefit of a centralized system.

Working with systems that do not “talk” to one another creates roadblocks throughout the FOIA process. At a high level, the lack of system integration makes it difficult for federal agencies to fulfill their duty of proactive disclosure, where agencies provide frequently requested records online for public access. Proactive disclosure requires FOIA officers to be able to accurately identify what records are frequently requested. To do this, FOIA officers need to be able to track the frequency of request topics and spot trends in public interest – two tasks that are virtually impossible without a centralized, agency-wide system. At a micro level, the use of decentralized systems to store, retrieve, and process records results in duplicative work by FOIA staff. Every new request goes through a new search, review, and redaction process. Without integrated systems, FOIA officers and analysts are unable to cross-reference and leverage previous work. As a result, FOIA analysts review, redact, and release the same documents multiple times for multiple requests.

The time and money required  to process requests is huge, but delays can cause agencies to exceed statutory time limits, resulting in frequent and costly litigation.

eDiscovery solutions

Searching for responsive records is one of the biggest problems in processing FOIA requests. As noted previously, without a central database, multiple offices may be tasked to respond to FOIA requests by manually searching through multiple email accounts, such as Outlook inboxes or .pst files. These files are often not indexed or are cumbersome to index, resulting in inaccurate and inconsistent search results. Attachments are also not easily searched within the email client and often require a separate download and manual search. When searching within email programs, there is no way to efficiently de-duplicate records, consolidate email conversations, or use other tools to reduce the number of documents to review. However, eDiscovery service providers are accustomed to taking information from multiple sources and creating centralized databases with appropriate coding to facilitate searching.

Platforms like Relativity and other eDiscovery tools enable electronic processing of records in a way that preserves metadata and other essential elements, allowing for deduplication, advanced search methods, and analytics such as email threading, near duplicate analysis, and conceptual analysis to speed review.

Creating a centralized database also provides improved consistency and streamlined workflows by allowing documents to be easily shared. Multiple offices and individuals can quickly share documents between departments, store decisions in a consistent, common language, and collaborate in real-time. Along with real-time benefits, eDiscovery tools also promote future efficiency, making it possible for FOIA offices to leverage work previously performed by their staff. Once a document is redacted, those redactions can be used repeatedly, without the burden of an analyst re-redacting. In addition, automatic reporting on review trends can provide insight into commonly requested topics and documents, highlight areas in need of efficiency, and track crucial metrics that are necessary to comply with quarterly and annual reporting requirements.

While eDiscovery solutions can be deployed to handle FOIA requests, their benefits extend beyond that. They enable governmental agencies to meet archive requirements under National Archives and Records Administration (NARA), General Records Schedules (GRS), and Capstone initiatives. For example, federal agencies are required to “manage both permanent and temporary email records in an accessible electronic format” (OMB/NARA M-12-18) which means maintaining them in a system that preserves their content, context, and structure and ensures that they remain discoverable, retrievable, and usable. Relativity can be used for storing this data in a way that aids its future use.

Governments are legally obligated to respond to FOIA requests and need more effective solutions to reduce costs and speed review. The right eDiscovery service provider can provide the expertise and technology essential to addressing the unique workflows and security needs of governmental agencies. CDS provides a full-range of Advisory Services to the government, including incorporating the strictest levels of data security with FedRAMP Authority to Operate (ATO) for our Federal Cloud Discovery Services (CDS FCDS) platform. To discuss how we can assist you, contact us for a consultation.

About the Author

Candice Kalis

Candice Kalis

Candice Kalis is a licensed attorney and Senior Consultant with over nine years of experience in eDiscovery. A former attorney with the Partnership for Civil Justice Fund and the Social Security Administration, Candice gained an in-depth knowledge of information law, specializing in actions under the FOIA statute. At CDS, she has steered litigation projects through the full EDRM lifecycle, managed attorney review teams, executed privilege reviews, and provided extensive end user training in Relativity, Ringtail, Brainspace, and other platforms. Candice specializes in developing customized eDiscovery solutions for government agencies. She recently designed and implemented a Relativity Pilot program for the Department of Commerce to address their backlog of FOIA requests.