Nobody wants to make mistakes, and nobody wants to go to court. It happens, of course, and in 2017, the federal bill for litigation regarding Public Records Requests came to $40 million. This $40 million does not factor in the cost of business disruption, and the reputational damage of what are often sensitive lawsuits.
So what can federal, state and local agencies do to prevent mistakes and litigation when fulfilling Public Record Requests (PRRs)?
Struggle for Change
What they cannot do is alter the law. PRR legislation is notoriously vague. Take the California Public Records Act 2018. It requires records to be exempt if “on the facts of the particular case the public interest served by not making the record public clearly outweighs the public interest served by disclosure of the record”. But who gets to decide the line between “clearly” and “possibly” or “not at all”? The judge, very often, and case law.
This points to another pitfall. Case law and the public records acts themselves change constantly, so if you don’t keep up with the developments, you are more likely to fall foul of the law. How does your agency communicate such changes to key members of staff, including IT? If there is no process or consistency in how you approach that, you are more likely to get it wrong, and accidentally disclose harmful information, or withhold data that ought to have been made available.
Delays and backlogs
Another cause of litigation is delays. The ambiguity of public records acts, and the wariness of agencies about possible litigation is itself a cause of delay. Another is the sheer volume of disclosure requests. FOIA statistics for 2017 show a 30% increase in PRRs since 2010. Without technology to automate a large part of the process, such an increase more or less means that your workload and costs are up by 30% too. Agencies are struggling. The FOIA project recorded a backlog of 110,000 requests for 2017 – not a great situation to be in, because public records acts come down hard on missed deadlines.
Busy agency staff is having to handle more cases, and interrogate larger and more complex data types/sources to do this successfully. Responsive documents are no longer mainly limited to paper records or emails - social media, audio, video, cloud-based data and data on personal devices have created a fragmented information landscape that massively increases the margin for legal error. And then to think that a lot of agencies still rely on Gmail and Microsoft searches to respond to PRRs!
Whichever way you turn it, Legal needs to trust technology and rely (more) on IT. Technology massively speeds up discovery, and is also more accurate, as research into eDiscovery technology confirms time and again. Technology and process go hand in hand. The right platform will impose consistent and repeatable processes that will in turn encourage a culture of collaboration.
The law will always be open to interpretation, agency staff will always be inundated with requests for disclosure – these problems are not going to go away.
If you want to read more about what you can do to contain the financial and reputational risk of litigation, download our white paper, The Hidden Cost of Public Records Requests.