Transparency and open government would clearly be less of an administrative and financial burden if there were fewer public records requests (PRRs). To achieve this goal, agencies have been pro-actively releasing information. One of several examples cited as part of evidence submitted to a committee hearing of the House of Representatives in 2012 was that of the Department of State adding over 2,000 documents to its online Rwandan Declassification Collection.
While this is obviously worthwhile, the policy of openness has not succeeded in stemming the rise in PRRs. This number goes up every year at the federal, state and local level, making it more important than ever to find ways to handle requests more cost-effectively.
The House committee was also told how using the tools of eDiscovery could improve the way PRRs are processed. It is worth quoting the witness statement from Ms Melanie Ann Pustay, Director of the Office of Information Policy at the Department of Justice. This is what she writes in 2012: “An area that I believe holds great promise in increasing the efficiency of agency FOIA processes is the use of litigation software in the FOIA context. Agencies often have to manually review hundreds, if not thousands, of pages of paper and electronic records for both responsiveness and duplication before disclosure analysis can even be made."
Has this “great promise” been fulfilled? What is the situation now, six years on from Ms Pustay’s evidence before the House?
In April 2018, the FOIA Advisory Committee concluded that adoption of specialist software was still very patchy. It recommended that the Department of Justice collect "detailed information ... regarding the specific methods and technologies agencies are using to search their electronic records, including email". This is lukewarm at best.
Fortunately, many agencies have taken positive action and embedded (some of) their processes in advanced technologies. To show you what is possible, we cite two examples published by the Department of Justice, Office of Information Policy hereunder.
In 2016, the Pipelines and Hazardous Materials Safety Administration (PHMSA) used de-duplication software and an eDiscovery database to review records. The tool allows multiple reviewers to work simultaneously on the same review and enhances collaboration among the reviewers. The product also permits sophisticated searches to target responsive records and has served as a customer-friendly negotiation tool. PHMSA has used the Discovery tool to suggest search terms and immediately report back to the requestor on the search results, which has helped narrow the scope of the request and so reduce the number of documents under review.
In 2017, Immigration and Customs Enforcement (ICE) created a workflow in its eDiscovery tool that allowed staff to ingest thousands of electronic files into the tool and then use analytics to seek responsive records. The process now takes minutes rather than months. ICE shared this workflow with the Federal Emergency Management Agency (FEMA) and NPPD for use in their FOIA litigation cases. The workflow eliminated a combined 81,820 non-responsive files, which would have previously required a manual search.
These agencies have used the power of machines primarily to automate the workflow and greatly reduce the workload. But there is another aspect to technology: it imposes a consistent, repeatable and defensible process.
Without a process there can be no process management. A lack of clear control saps staff morale and undermines the integrity of your PRR procedures, such as they are. The issue of cost is almost secondary, because a process that is ineffective can’t be cost-effective either.
To find out why technology is so indispensable in handling public records requests, download our white paper, Get it out – Get it Right: why machines are better at handling public record requests.