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FOIA Backlogs Put Government Agencies in a Bind

Jan 19, 2023

U.S. Capitol Building Washington DC

How eDiscovery Software Can Help Address Freedom of Information Act (FOIA) Requests More Efficiently

Government agencies must respond to Freedom of Information Act (FOIA) requests legally. Even as the volumes and types of data that agencies manage continue to rise exponentially, the statutory deadlines remain unchanged, putting additional pressure on agencies facing increasing volumes of records and growing backlogs of requests. Agencies must modernize their FOIA solutions to keep up, comply with the law, and avoid costly fines and penalties.

What is FOIA?

FOIA, passed by Congress and signed into law in 1966, “established a policy of openness toward information within the control of the Executive Branch, and a presumption that such records should be accessible to the American public.” Since FOIA’s enactment, the law has been utilized by journalists, historians, attorneys, and the public to monitor the inner workings of the federal government and hold it accountable.

However, over the years, FOIA has been hindered by extensive delays, overuse of exemptions resulting in nondisclosure, high fees, and a burdensome pre-digital age process frequently requiring the need for specialists to get access to government documents. Though the FOIA Improvement Act of 2016 modernized FOIA for the digital age by making changes to the review process and how agencies apply exemptions and charge requesters, the challenges remain.

According to the DOJ’s Summary of Annual FOIA Reports for Fiscal Year 2021, government agencies received 838,164 FOIA requests in fiscal year 2021, six percent more than the previous year. More concerning, the number of backlogged requests increased by over eight percent to 153,227 from 2020 to 2021. FOIA requests are considered backlogged when they have been pending at an agency for longer than 20 business days (the statutory time to respond).

The number of FOIA requests – and the corresponding backlogs – continue to grow every year. According to a U.S. Government Accountability Office (GAO) 2022 report, over the last 20 years, numerous executive orders, memorandums, and guidance documents have been issued to reduce the request backlogs. The volume of electronic records is increasing at an even higher rate, and virtually all organizations struggle to keep their record retention policies up to date with constantly changing and evolving technology. Federal agencies face an additional challenge: keeping pace with technology changes while fulfilling their FOIA obligations to promote transparency and open government.

How eDiscovery Technology Can Streamline FOIA Responses

Searching for responsive records is one of the greatest challenges agencies face when processing FOIA requests. Without a central records database, agencies must manually search through multiple email accounts across multiple bureaus and offices with no way to efficiently de-duplicate records, consolidate email conversations, or use other tools to reduce the number of documents to review. Because these files are often not indexed or are cumbersome to index, search results can be inaccurate and inconsistent.

This is where eDiscovery service provides can help. By taking information from multiple sources and creating centralized databases, searching is streamlined and standardized. Platforms like Relativity enable the electronic processing of records in a way that preserves original metadata, and allows for deduplication, advanced search methods, and analytics such as email threading, near duplicate analysis, and conceptual analysis to speed review and reduce the number of staff hours needed.

Here are some critical things to look for when evaluating the capabilities of a system to handle FOIA requests:

  • Redaction tools able to redact numerous record types, including audio, images, metadata, and spreadsheets, along with tools to automatically redact PII/PHI and ensure consistency
  • Collaboration support to allow instant sharing of records across intra-agency bureaus and offices, as well as external agency access to records to provide consult, referral, and equities review without the need for time consuming external document transfers.
  • Analytics and advanced search capabilities that offer automatic email threading and deduplication, while accurately identifying responsive documents, reducing staff hours spent reviewing duplicative and non-relevant records
  • Production and reporting abilities including customizable production protocols to create releasable record sets, productions for litigation, generated privilege logs and Vaughn indices, and automatically provide reporting on statistics and metrics needed for annual reporting to the DOJ.
  • High-level security – FedRAMP authorized, AWS GovCloud (US) – intended specifically for government agencies and offices.
  • Standardized processes that allow for quick responses to routine FOIA requests, identification of frequently requested records for proactive disclosure, and leveraging records responsive to multiple requests.
  • Connectivity to cloud storage like O365, Google, Slack, Microsoft Teams, Sharepoint, Dropbox, OneDrive, Box, Kiteworks, and more.

Choosing the right FOIA software management solution to respond to public records requests is crucial for government agencies of all sizes. A legacy platform without up-to-date features will often prove to be expensive to customize or replace, while modern cloud-based platforms allow agencies to experience significant gains in efficiency, visibility, and accuracy when responding to public records requests.

CDS offers 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 learn more about how our platform can assist your organization, contact us at for a consultation today.

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.

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