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Sunshine Law requests getting cloudy? How eDiscovery can clear the way

Brenda Dodd
Mar 12, 2019, 3:01:00 PM

 How can those at the sharp end of responding to public record disclosure and freedom of information requests benefit from the technologies and approaches used by eDiscovery specialists? In this article, we will discuss how agencies can reduce their request backlog and the risks associated – including the demand on staff in terms of time required to provide the necessary level of information. And see how it could even be possible to use the same technology to provide material for information requests.

Background

Freedom of Information Act (FOIA) requests are increasing year after year; US government agencies, for example, responded to around 800,000 requests last year. Each request place s a duty of transparency on the organization, and as there is no requirement to only provide a proportionate level of detail (as is the case in litigation based eDiscovery), a great deal of time can be consumed in compiling the necessary information. This can be highly problematic when you consider that information may be held in an ever-increasing number of forms (e.g. paper, architectural blueprints, audio, video, social media), and it is often widely dispersed across departments, geographies, and even in the ‘cloud’. 

All of the above leads to an unpredictable administrative burden and high costs. Additionally, the request responses are strictly time-bound, and organizations must avoid the risk of inadvertently falling foul of the laws governing information and privacy such as the GDPR and the California Consumer Privacy Act. In addition, any discovery and/or methods of discovery used to obtain the information must be legally defensible in court if challenged.  

These factors have led to a desperate need to find a better way for organizations to fulfill their legal duties under the Freedom of Information Act, which removes the risk, time, cost, and resource burden such requests bring. 

 0078 - Pushing uphill - General Use

Parallel Challenges: freedom of information and litigation disclosure

Thankfully, there is a ready-made answer to all of the challenges listed above. The requirements on organizations with regard to litigation eDiscovery are broadly the same as those of FOIA requests.  And eDiscovery technology has been lowering the overall cost and resource burden of litigation eDiscovery for years.  There is no reason why the same methods and technologies cannot be utilized for FOIA requests.

The process followed by eDiscovery experts when using the Electronic Discovery Reference Model (EDRM), which provides a framework for how litigation discovery projects are undertaken from outset to completion, is broadly the same as that used by administrators responding to FOI requests. This includes the stages of Search and collection (identification, preservation), Review (collection, processing, review, analysis), and Disclosure (production).  While some processes relating to litigation disclosure and FOIA requests differ in scope and complexity, the principles generally remain the same.

 

Making life easier for managing requests

For many agencies and organizations, the task of gathering, analyzing, and providing information in response to requests is highly manual, involving disparate tools and data sources.  As such, any technology solution to reduce the burden of responding to requests must be designed with efficiency and robustness of process in mind. Those with the role of responding to information disclosure requests within organizations are seeking technology which makes their jobs much easier. As a leading eDiscovery platform, ZyLAB One possesses the technology features  and functionality requirements sought by information disclosure users, such as:

  • Simplify data collection and identification: self-service data uploading, collection from many locations, deep processing of 700+ file formats, OCR non-searchable content, embedded object extraction, deduplication functions, and multi-language support.
  • Auto-identify sensitive data and auto-redact: automatically identify potentially sensitive or exempt records and automatic document classification, auto-redaction with built-in exemption codes, and AI-based topic modelling.
  • Built-in Workflow & Reporting: Advanced tagging workflow, multi-reviewer workflow options, a dashboard to review overall progress, and built-in report.
  • Automate disclosure: QC checks to avoid inadvertent disclosure, automated disclosure wizard, flexible output formats, production reports and documents, and the ability to produce direct to a public viewing portal.

Client Case-Study

To explain first-hand how eDiscovery can be applied to the area of FOIA requests, we spoke with Tami Fasching, Business Analyst for Johnson County, Kansas who has already overseen such situations. 

Tami confirmed Johnson County faced a multitude of challenges in responding to information disclosure requests, including:

  • Increasing numbers of non-email types of disclosure
  • Limited staff to handle requests
  • No ability to track what had been done in order to respond to requests
  • Difficulty in understanding how much information is needed to satisfy the request
  • Inability to know whether the request is a one-off or if the information gathered to respond needs to be updated over time
  • Difficulty in narrowing down the scope of the information from a broad start point
  • The need to satisfy a range of different entities including information to be used for internal investigation, for a judge, for outside counsel etc.
  • No unified solution for all types of electronically stored information (ESI).

Having taken the time to understand their user requirements, and the solutions available in the market, Johnson County implemented an eDiscovery technology solution which has transformed how their staff handle and respond to information requests.  To date the solution has already driven considerable efficiency into their processes, in part due to its ability to:

  • Enforce workflow and policies designed to ensure proper FOI responses
  • Help users limit search scopes
  • More easily collect data and make it ready for review
  • Permit review of all electronic file types at once (as opposed to reviewing collections individually)

Due to the willingness of the senior executives of Johnson County to invest in this new technology, and by tying this to strategic objectives, a robust return on investment and reduction in costs has been achieved, despite the ever-increasing number of information requests. 

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