When it comes to data and records management functions at government agencies, recent years have been trying times. A number of concerning trends have continued to be a factor, such as the growth of the data generated by agencies. The legal framework in which public records requests have to be responded to is facing near-constant change. Meanwhile, the early days of the 2020s have delivered no reprieve. The COVID-19 crisis has forced governments and agencies at all levels to adapt quickly to working remotely. This has further complicated already complex workflows.
Generally speaking, public trust in the federal government is extremely low, though the Biden Administration has recently seen a slight uptick in public confidence. Of course, not all governments are Federal. Generally speaking, the more local government is, the more trust citizens have in it. While the federal government is trusted by about a quarter of Americans, trust in state and local governments hovers around 66% and 75%. However, recent events and growing political polarization at the national level have started to trickle down. As Governing.com details: “the growing frictions between American governments, and especially states and localities, threaten to drain local governments’ historic reservoir of trust (...) Americans might now much like the partisan brawling that increasingly defines government’s behavior at the wholesales level. The battles, however, could prove even more pernicious for the long-run operation of American Democracy. They could undermine the ability of local officials to provide the service to citizens that they expect. That ability has been the foundation of trust in local government for as long as we have been measuring trust.”
Maintaining that trust is obviously important. To that end, transparency is key: any government that appears secretive is unlikely to be trusted. However, as the problems grow larger, the solutions need to come fast. Government organizations and agencies need practical solutions for problems they are facing. In this document, you’ll find an overview of some of the more pressing issues or concerns you might be facing, and some practical ideas to meet them head-on.
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Perhaps the most pressing issue faced by businesses and governments alike is the move towards remote work. Although hardly new, the COVID-19 pandemic has certainly accelerated existing plans significantly. At all levels of government, organizations and agencies have to accommodate remote work. Sometimes, this had to happen before they were necessarily ready. Even with most of the pandemic measures in the rear-view mirror, working remotely is sticking around. During the summer of 2021, the White House announced plans to allow more employees than ever to work from home. A sweeping cultural change, that would have been unthinkable before 2020. Organizations and agencies at the local level are poised to follow suit.
Of course, remote work isn’t ideal for everyone. This is why many organizations are looking towards hybrid models. Such models offer a mix of remote and in-office work. This way, they aim to keep the parts of working from home that most employees liked while alleviating some of the issues it raised. Overall, it’s safe to say that remote work is here to stay, even if it won’t be in an all-hands-off-deck type situation as we saw in 2020.
From the point of view of government transparency, the move away from the office has also been a blessing and a curse. Responding to public records requests is often not a one-person job, necessitating collaboration. A decentralized workforce means that the datastores that need to be searched must be securely accessible from multiple locations outside the office. Both of these issues are addressable, however. Cloud-based solutions for government transparency allow users to access and collaborate in a secure environment regardless of their location. They only require an internet connection and the proper credentials. What’s more, many cloud-based vendors offer pay-as-you-go type subscription services, which means fewer up-front costs and a fee based on use rather than a fixed price.
In the days before the digital era, information generally came in only one form: paper. Of course, those days are long gone. At this point, it’s likely difficult to find anyone that remembers the paper-only days. With the computers came the storage formats, and they vary wildly depending on what tool is used to generate and store the information.
Today, data comes in a wide range of different file types that need to be obtained and combed through when an information request comes in. What’s more, organizations are generating more data than ever before, which means there’s more data to deal with. Now, with remote work and increased social media use, there’s even more file types to collect, review, redact, and produce for every request.
There’s no silver bullet solution to this issue. Both the amount and variety generated by organizations and agencies is infinitely more likely to grow than shrink. As a result, there are only two paths of addressing this challenge, with only one truly viable long term.
One option is to increase manpower. More people do more work, which means more work is done. It really is that simple, in theory. In practice, not so much. After all, more people means more room for error. What’s more, finding and training personnel is hardly a straightforward affair. More manpower is only a band-aid solution. What's more, that solution will become prohibitively expensive in terms of cost and effort very quickly.
The other option is technology. Specifically, eDiscovery technology. eDiscovery technology is a powerful search tool for handling public records requests. In its 2018 Recommendations to the FOIA Advisory Committee, the Subcommittee on FOIA Searches said it was “impressed by the power of eDiscovery searches and hopeful that their use increases.”
The Subcommittee also said that in light of the potential legal costs of untimely or inadequate public records searches, agencies should explore obtaining software and technology tools. eDiscovery platforms help agencies handle the challenges of FOIA and public records requests. They do this through their ability to consolidate and standardize information in one place. Following collection, these platforms can automatically identify and classify data sets. This enables users to make early assessments that accurately identify potentially relevant information.
Social media is considered part of the public record in all 50 states. As such, governments and agencies are to treat them as any other piece of information that’s part of their public records obligations. If you want specific information for your state, archiving tool ArchiveSocial provides a map. On it, you can consult to find your state’s specific rules regarding social media.
Apart from ensuring the text of any and all posts made on social media platforms, it’s crucial to keep tabs on the metadata created as well. Twitter, for instance, limits its users to 280 characters (this used to be 140 until a change in 2017). However, behind that tweet is a growing amount of metadata which is also considered part of the public record. The same is true for the content created by other users in the form of comments on a public profile. For those employed by government organizations or agencies that are subject to public records laws, business conducted over social media is considered part of the public record.
Making sure all the relevant information is kept and made searchable is a task best left to social media archiving tools. ArchiveSocial, quoted above, is a popular option. PageFreezer is another. In case a request is broader than just social media, such tools can produce a dataset. That dataset can then be added to the rest of the information that is to be searched by a broader tool. Having a social media archiving tool can be essential for organizations that are active on social media. For instance, to protect the privacy of users and other sensitive information through redaction.
In addition to social media, there are also other types of media being generated that aren’t necessarily easy to review. Case in point, video. In a recent blog written by ZyLAB’s Jeffrey Wolff, the subject was discussed with regards to businesses. That blog post mostly dealt with the collaborative side of new media. Recorded virtual meetings in video or audio, audio messages sent over collaborative apps, to name a few. These examples are equally applicable to government organizations and agencies.
Some organizations also produce other types of new media. For instance, police officers in certain states are required to wear body cameras. The footage captured on these devices are part of the public record and are subject to public records laws.
To summarize the point made in our earlier blog post, the solution to video and new media is a mix of policy and technology. By providing solid, descriptive metadata to video files as they enter a system, oversights and mistakes can be avoided. At the same time, eDiscovery solutions are able to quickly and effectively search the metadata. They can also automatically transcribe the audio of meetings. Once made, transcriptions can then be searched, reviewed, and redacted. In effect, they turn sound and video into text.
When it comes to responding to a public records request, deadlines are an inevitable factor. There’s a lot to do in the short time allowed for a response. Relevant information has to be collected, standardized, reviewed, redacted, and produced. Sounds easy enough, but in practice, deadlines are one of the top concerns shared by those who deal with PRR.
In recent years, it’s been getting more and more difficult to perform the duties required in the time given. The reasons are straightforward: there’s more data to go through in the same amount of time. Meanwhile, the upper limit of human document review speeds was reached over a decade ago.
In terms of consequences, the result of a missed deadline varies from jurisdiction to jurisdiction. The universal consequence is reputational damage. When deadlines are often missed, even if there’s no immediate sanction or fine imposed, it’s a bad look. It all comes back to the issue of trust. A government or agency that does not follow the rules when it comes to transparency can be perceived to be hiding something.
Rushing the process can be equally damaging. Rushing leads to mistakes and a ‘when in doubt, redact’ type attitude creates a bad impression. In February 2020, the Project on Government Oversight (POGO) produced an article about what they perceived to be an abuse of FOIA’s exemption 5. Exemption 5 aimed to protect internal governmental deliberation. One of the main examples in the article is a side-by-side comparison of two separate FOIA releases of the same section of text. One of which released to POGO, another released to NPR. POGO writes: “POGO’s and NPR’s FOIA requests resulted in many of the same records but there are significant differences in what the government released and what the government withheld. In the records provided to POGO, the department invoked Exemption 5 to redact vast swaths of text. However, the agency did not claim the exemption for any of the same records provided to NPR.” POGO concludes: “it’s clear that many, if not all, of the department’s Exemption 5 redactions in POGO’s records were not supported by the law.”
Regardless of reasons, such cases do nothing to fix the public’s already very low faith in the Federal government. The same, although at a smaller scale, holds true for governments and agencies at lower levels. A reputation takes a long time to build and a split second to ruin. Ensuring that the public records response process is consistent and timely is a key part of maintaining the public’s trust.
The solution is in line with many of the other practical issues. As one might expect, tools are vital. Equipping public records teams with proper tools helps speed up review and standardize certain rules. At the same time, technology alone can’t offer a solution to inconsistency - this has to be done through training and policy.
One final subject of discussion is Open Data initiatives. According to proponents, Open Data initiatives help governments reduce the amount of PRR they receive. Open Data is the practice of increasing transparency, by providing citizens with a means to access certain types of information held by governments and agencies. In effect, they are public records responses without the need for a public records request.
At the municipal level, initiatives such as the Open Cities by the Sunlight Foundation are pushing for such programs. They write: “[We] envision cities led by governments that empower residents through access to information, technology and participatory practice.” The organizations behind such initiatives believe that transparency by default reduces the number of public records requests municipalities will receive. That isn’t the only benefit for such practices either. A 2018 article on Open Data initiatives found that “Transparency of the public sector is still seen as the main outcome of [Open Data] efforts. Such a simplistic view, however, misses the rich variety of innovations resulting from open data use.”
Regarding the subjects of Open Data, there is low-hanging fruit to be found. The Sunlight Foundation provides some interesting insights. Last year, they analyzed the subject matter of over 100,000 Public Records Requests from 33 cities. The results show that a clear trend exists for specific types of data to be subjects of PRR. Of course, Open Data initiatives require the relevant information to be vetted quickly and effectively. As such, it is usually reserved only for organizations that operate advanced tools. One example is the City of Los Angeles, CA, who use ZyLAB ONE.
There is no question that public records response in the modern age is a tricky proposition. None of the issues that plague governments and agencies today are likely to go away by themselves. To maintain and improve the level of public trust held by the government at any level, the adoption of technology is essential.
The idea of technology adoption being important is hardly new though. Trend reports have put technology adoption atop the list of priorities for governments and agencies for years. It’s a practice that continues to this day. In the post-pandemic era, hybrid workplaces and remote connectivity have arrived. With it comes the proof of concept that technology can work to help PRR innovators across the country have been waiting for. Now more than ever, it is clear that by embracing technology, a government that inspires trust from its citizens is possible.
Are you curious to discover what technology can do for your Public Records Response efforts? Don't hesitate to reach out.