FOIA

Next Generation Technologies Reduce FOIA Bottlenecks

Bill Tolson eDiscovery, Information Management, records retention, Technology , , , , , , , , , , ,

Federal agencies are under more scrutiny to resolve issues with responding to Freedom of Information Act (FOIA) requests.

The Freedom of Information Act provides for the full disclosure of agency records and information to the public unless that information is exempted under clearly delineated statutory language. In conjunction with FOIA, the Privacy Act serves to safeguard public interest in informational privacy by delineating the duties and responsibilities of federal agencies that collect, store, and disseminate personal information about individuals. The procedures established ensure that the Department of Homeland Security fully satisfies its responsibility to the public to disclose departmental information while simultaneously safeguarding individual privacy.

In February of this year, the House Oversight and Government Reform Committee opened a congressional review of executive branch compliance with the Freedom of Information Act.

The committee sent a six page letter to the Director of Information Policy at the Department of Justice (DOJ), Melanie Ann Pustay. In the letter, the committee questions why, based on a December 2012 survey, 62 of 99 government agencies have not updated their FOIA regulations and processes which was required by Attorney General Eric Holder in a 2009 memorandum. In fact the Attorney General’s own agency have not updated their regulations and processes since 2003.

The committee also pointed out that there are 83,000 FOIA request still outstanding as of the writing of the letter.

In fairness to the federal agencies, responding to a FOIA request can be time-consuming and expensive if technology and processes are not keeping up with increasing demands. Electronic content can be anywhere including email systems, SharePoint servers, file systems, and individual workstations. Because content is spread around and not usually centrally indexed, enterprise wide searches for content do not turn up all potentially responsive content. This means a much more manual, time consuming process to find relevant content is used.

There must be a better way…

New technology can address the collection problem of searching for relevant content across the many storage locations where electronically stored information (ESI) can reside. For example, an enterprise-wide search capability with “connectors” into every data repository, email, SharePoint, file systems, ECM systems, records management systems allows all content to be centrally indexed so that an enterprise wide keyword search will find all instances of content with those keywords present. A more powerful capability to look for is the ability to search on concepts, a far more accurate way to search for specific content. Searching for conceptually comparable content can speed up the collection process and drastically reduce the number of false positives in the results set while finding many more of the keyword deficient but conceptually responsive records. In conjunction with concept search, automated classification/categorization of data can reduce search time and raise accuracy.

The largest cost in responding to a FOIA request is in the review of all potentially relevant ESI found during collection. Another technology that can drastically reduce the problem of having to review thousands, hundreds of thousands or millions of documents for relevancy and privacy currently used by attorneys for eDiscovery is Predictive Coding.

Predictive Coding is the process of applying machine learning and iterative supervised learning technology to automate document coding and prioritize review. This functionality dramatically expedites the actual review process while dramatically improving accuracy and reducing the risk of missing key documents. According to a RAND Institute for Civil Justice report published in 2012, document review cost savings of 80% can be expected using Predictive Coding technology.

With the increasing number of FOIA requests swamping agencies, agencies are hard pressed to catch up to their backlogs. The next generation technologies mentioned above can help agencies reduce their FOIA related costs while decreasing their response time.

A Fox, a Henhouse, and Custodial Self-Collection

Bill Tolson eDiscovery , , , , ,

Judge Scheindlin just issued an opinion in the Freedom of Information Act (FOIA) case National Day Laborer Organizing Network et al. v. United States Immigration and Customs Enforcement Agency, et al. 2012 U.S. Dist. Lexis 97863 (SDNY, July 13, 2012). This dispute focuses on plaintiffs’ attempts to obtain information from several US government agencies including the Federal Bureau of Investigation, the Immigration and Customs Enforcement Agency,   and the Department of Homeland Security. Specifically, the plaintiffs have sought information regarding “Secure Communities”, a federal immigration enforcement program launched in 2008.

In December 2010, after the defendants failed to comply with their obligations under the agreement, Judge Scheindlin ordered them to produce the records on a new “drop dead date”. With the new date in mind, the defendants’ searched hundreds of employees expending thousands of hours and resulted in the production of tens of thousands of responsive records.

The plaintiffs argued the searches had been insufficient i.e. that the agencies failed to conduct any searches of the files of certain custodians who were likely to possess responsive records. Another complaint was that the defendants had not established that the searches that they did conduct were adequate.

On the issue of relying on custodians to “self-collect” i.e., conduct appropriate and legally defensible searches themselves, she writes:

“There are two answers to defendants’ question. First, custodians cannot ‘be trusted to run effective searches,’ without providing a detailed description of those searches, because FOIA places a burden on defendants to establish that they have conducted adequate searches; FOIA permits agencies to do so by submitting affidavits that ‘contain reasonable specificity of detail rather than merely conclusory statements.’ Defendants’ counsel recognize that, for over twenty years, courts have required that these affidavits ‘set [ ] forth the search terms and the type of search performed.’ But, somehow, DHS, ICE, and the FBI have not gotten the message. So it bears repetition: the government will not be able to establish the adequacy of its FOIA searches if it does not record and report the search terms that it used, how it combined them, and whether it searched the full text of documents.”

“The second answer to defendants’ question has emerged from scholarship and case law only in recent years: most custodians cannot be ‘trusted’ to run effective searches because designing legally sufficient electronic searches in the discovery or FOIA contexts is not part of their daily responsibilities. Searching for an answer on Google (or Westlaw or Lexis) is very different from searching for all responsive documents in the FOIA or e-discovery context.”

“Simple keyword searching is often not enough: ‘Even in the simplest case requiring a search of on-line e-mail, there is no guarantee that using keywords will always prove sufficient.’ There is increasingly strong evidence that ‘[k]eyword search[ing] is not nearly as effective at identifying relevant information as many lawyers would like to believe.’ As Judge Andrew Peck — one of this Court’s experts in e-discovery — recently put it: ‘In too many cases, however, the way lawyers choose keywords is the equivalent of the child’s game of ‘Go Fish’ … keyword searches usually are not very effective.'”

Custodial self-discovery has been falling out of favor with some Judges for several reasons. First, the defense attorney should be overseeing the discovery process to ensure correctness and completeness. In many courts, the attorney has to certify that the discovery process was done correctly… and what attorney wants to do that if they didn’t really manage it?

In a recent Law.com article written by Ralph Losey, Ralph pointed out that custodial self-discovery was “equivalent to the fox guarding the hen house”.

 

Metadata should be included in federal FOIA response

Bill Tolson eDiscovery , , , , , , , , , ,

A recent federal court decision, Nat. Day Laborer Org. Network v. United States Immigration and Customs Enforcement Agency, 2011 WL 381625 (S.D.N.Y. Feb. 7, 2011), has set the expectation that certain metadata is considered “responsive” in federal FOIA requests.

From ediscoverylaw.com:

In this Freedom of Information Act (“FOIA”) action, a dispute arose regarding the proper format of production and, in particular, whether metadata was subject to production pursuant to plaintiffs’ FOIA requests. Following substantial analysis of the issue, the court held that “certain metadata is an integral or intrinsic part of an electronic record” and, as such, is “‘readily reproducible’ in the FOIA context.” (FOIA provides that “in making any record available to a person under this paragraph, an agency shall provide the record in any form or format requested by the person if the record is readily reproducible by the agency in that form or format.”)

The court went on to describe the minimum metadata fields which should be considered reproducible and therefore should accompany any production electronically stored information (ESI) by the government:

1. Identifier: A unique production identifier (“UPI”) of the item.
2. File Name: The original name of the item or file when collected from the source custodian or system.
3. Custodian: The name of the custodian or source system from which the item was collected.
4. Source Device: The device from which the item was collected.
5. Source Path: The file path from the location from which the item was collected.
6. Production Path: The file path to the item produced from the production media.
7. Modified Date: The last modified date of the item when collected from the source custodian or system.
8. Modified Time: The last modified time of the item when collected from the source custodian or system.
9. Time Offset Value: The universal time offset of the item’s modified date and time based on the source system’s time zone and daylight savings time settings.

Why is this metadata decision important? Because it now puts a requirement on federal government agencies that they should be capturing and storing their ESI is ways that first capture the above noted ESI and second, insure that metadata is not inadvertently modified, for example when it is reviewed to determine its responsiveness to the FOIA request.

Federal government agencies deal with huge amounts of ESI on a daily basis and should have archiving systems already in place to insure ESI is captured and managed correctly per the National Archives and Records Administration (NARA) regulations. It now seems they need to relook at their ESI archiving systems to insure they can meet this new metadata requirement.

New York lawmakers propose legislation to enforce archiving for governor’s emails

Bill Tolson eDiscovery, records retention , , , , , , , , , , ,

“A recent proposal will mandate the current and future governors of New York to use an email archiving solution that will offer permanent access to important documents, the Times Union reports.

The most recent proposal marks the second-consecutive year New York lawmakers have passed legislation that creates more strict regulations forcing governors to submit emails to state archives. The bill’s proponents have stressed the historical benefits of integrating a government email archiving solution.

“Without documentation from successive governors’ administrations, the history of New York state is, and will remain, incomplete,” said Camille Jobin-Davis, assistant director of the state Committee on Open Government, in a memo in support of the bill, the news provider reports.

Lawmakers have been pushing for improved documentation of state government emails for the past year in an effort to fill a current void in the state’s information management requirements. Jobin-Davis criticized the state’s current email regulations and said they provide “minimal” guidance by allowing governments to freely destroy emails.”

The entire article can be read here

Email archiving has become an important tool to ensure transparency among government agencies. Citizens want to be able to have access to all areas of how their government is run. Email archiving ensures government agencies, including governors, are making their records available for review.