E-Discovery and FOIA: Why FOIA Agencies Need E-Discovery Software Integration
The number of FOIA requests backlogs has been rising for years. Now, federal agencies that deal with FOIA request processing are starting to realize they need to improve their processes. One of these improvements should be for agencies to start using FOIA software that integrates with e-discovery functionalities.
This way, FOIA agency employees can get more done, in less time, with less hands-on work. A modern FOIA system that has e-discovery functionality can make this happen. Why? Because e-discovery-powered FOIA handling will get all the needed information, making Document Search more reliable.
Document Discovery: The Hidden Enemy of FOIA Effectiveness
According to an analysis from Associated Press, in the past fiscal year, the federal government withheld, censored or couldn’t find records for more cases than in any other year in the last decade.
It gets worse:
- People who filed for FOIA request got nothing in response or received censored files in 78% of the total number of received FOIA requests (823,222 requests). That’s 642,113 requesters that didn’t get the information they hoped for.
- The government could not find the requested information in a bit over 50% of the cases. That’s about 411,000 cases where FOIA agents could not track down the right document.
- The government had no response to 180,924 requests which is an increase of 18% compared to the previous year.
Some say that the Government officials withheld this information about their activities on purpose. But, from almost two decades of working with government agencies, I know that the reasons for the incomplete responses or no responses at all, are not intentional. Agencies struggle to find the right documents on time.
The bad news is that FOIA staff cannot know where and how to search for all the documents that could be related to any FOIA request. But the good news is that they don’t have to. E-discovery as a technology has been in use for years now, in legal departments.
These platforms enable legal workers to find all of the related document using in-document search, metadata search, use filters to add or remove semantically related but topically unrelated documents and bring back a clean list of documents that employees can manually review.
But before we jump right into why and how e-discovery can help FOIA agencies, let’s first explain what e-discovery and FOIA stand for and how they work.
What Is E-Discovery?
Discovery is the primary phase of litigation where the parties in a dispute are required, along with all other evidence, to provide records of relevant information related to the case.
‘E-Discovery’, ‘e-discovery’ or ‘e discovery’ is short for electronic discovery. All of these terms are used to define the process of discovery that is contained in electronic formats.
It encompasses Electronically Stored Information (ESI) which covers:
- Instant messaging chats,
- Accounting databases,
- CAD/CAM files,
- Emails etc.
ESI and e-discovery carry significant meaning for the process of litigation in a legal dispute. And not only because of their intangible form, volume, transience, and persistence.
Unlike physical records, ESI is usually accompanied by metadata that usually contains information like the date and time a document was written on, the person who created it, the computer used to create the file etc. This information can be a turning point evidence in a legal dispute.
But, don’t mistake e-discovery for a single action process. E-discovery involves many linked actions that run from the time a lawsuit is foreseeable to the time the digital evidence is presented in court.
The attorneys from both sides determine the scope of e-discovery. They identify and preserve the relevant ESI and make e-discovery requests. Once parameters are set, ESI is collected, analyzed, and formatted for use in court.
And although this brief description may sound simple, e-discovery is a dynamic and complex process that poses challenges to legal and IT teams alike.
With e-discovery having such a role in the entire legal justice system, its function has become more formalized over the last decade. As e-discovery technology has matured, now it’s possible to manage e-discovery from preservation to document production in a single technology platform.
Now let see how e-discovery works.
How E-Discovery Works
The best way to describe how e-discovery really works is by looking at the E-Discovery Reference Model (EDRM). EDRM is a framework that describes a process that most organizations go through around e-discovery.
This framework was developed in 2005 by e-discovery experts and consultants, George Socha and Torn Gelbmann. Their goal when creating this framework was to address the lack of standards in the e-discovery world. And they did that successfully.
EDRM explains the steps that typical organizations go through to perform the process of e-discovery. The framework is all about how to manage the process, provide data for a particular case, and how to manage it when you are done.
The EDRM features 9 distinct e-discovery stages that are sequential and iterative by nature.
Take a look.
- Information Governance (IG). IG refers to the set of procedures, processes, and controls implemented in managing an organization’s information. They function as a foundation for the e-discovery process. Only good IG strategies lead to successful e-discovery process throughout the EDRM.
That is why, although in a way IG cannot be considered a ‘stage’, it is a very important step of e-discovery and EDRM.
- Identification. Identification is the official first stage of the EDRM at which attorneys identify what data is relevant to the case and put the data identified as such on legal hold.
At this stage, attorneys identify relevant data, but also custodians who are in possession of the potentially relevant data. To do this, attorneys usually use data mapping techniques.
- Preservation. After ESI is identified as potentially relevant, it is placed in a legal hold. This is when the stage of preservation begins.
This stage of the EDRM ensures that relevant data cannot be destroyed or spoiled.
- Collection. Here, relevant ESI must be gathered and centralized. And this stage does exactly that. It includes the transfer of ESI from an organization to their legal counsel who also determines the relevance and disposition of data.
EDRM does not specify or impose a certain way or technology to do the collection. But, it most certainly requires that the approach taken is legally defensible. Some companies that deal with frequent litigation use a software to do that and others call in a digital forensics expert to prevent the spoliation of data.
- Processing. The processing stage of the EDRM involves preparation of collected ESI for analysis and review.
This phase is typically performed by specialized software and it might include extracting files from folders, deleting meaningless system data, or converting certain file formats.
- Review. This is the most expensive stage of the EDRM. It involves evaluation of ESI for relevance and attorney/client privilege.
Earlier, companies used to outsource this stage to law firms. Now, thanks to new technologies, in-house legal teams can use Artificial Intelligence tools to distinguish between relevant, non-relevant, and privileged documents. These tools save time and money, making internal review much more viable.
- Analysis. Analysis deals with the evaluation of ESI for content and context. It includes key patterns, topics, people, and discussion.
Although this process is listed as a 7th stage of the EDRM, it actually appears in many phases of discovery as well as pre-discovery.
- Production. At this stage, ESI determined as relevant must be produced for use as potential evidence. When it comes to this stage and how ESI must be produced, there are a set of rules that address this issue.
- Presentation. This is the final stage which defines how electronic evidence is displayed as evidence at hearings, depositions, and trials.
As you can see from the EDRM, e-discovery is a complex process which requires close collaboration between a company’s legal and IT teams.
Fortunately, advances in e-discovery software solutions significantly simplify the process. Almost 50% of corporate legal departments have already employed a centralized, consolidated approach for hosting and managing e-discovery.
By doing this, corporate legal departments carry out fast, effective, and most importantly, accurate e-discovery processes that largely impact early-stage collections. Having the advantage of pre-targeted collections can significantly impact the overall costs of e-discovery.
E-discovery software solutions are undoubtedly crucial to the ongoing success in today’s modern corporation. And not only the corporation. E-discovery software solutions have become an essential part of FOIA processing also.
To answer your questions “why” and “how”, first we need to dive into the core of what FOIA is and how it works.
What Is FOIA?
Freedom of Information Act (FOIA), also known as Public Records and FOI, represents the civil right of access to records held by the Government.
The Act defines what agency records are subject to disclosure, outlines mandatory disclosure procedures, and defines the 9 exemptions to the statute:
- Information that is classified to protect national security.
- Information related solely to the internal personnel rules and practices of an agency.
- Information that is prohibited from disclosure by another federal law.
- Trade secrets or commercial or financial information that is confidential or privileged.
- Privileged communications within or between agencies.
- Information that, if disclosed, would invade another individual’s personal privacy.
- Information compiled for law enforcement purposes that:
- Could reasonably be expected to interfere with enforcement proceedings,
- Would deprive a person of a right to a fair trial or an impartial adjudication,
- Could reasonably be expected to constitute an unwarranted invasion of personal privacy,
- Could reasonably be expected to disclose the identity of a confidential source,
- Would disclose techniques and procedures for law enforcement investigations or prosecutions. Or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law,
- Could reasonably be expected to endanger the life or physical safety of any individual.
- Information that concerns the supervision of financial institutions.
- Geological information on wells.
Any person, US citizen or not, can make a FOIA request addressed to any of the federal agencies they need the information from. And federal agencies are required to disclose any information requested under the FOIA unless it falls under one of the 9 exemptions.
There is no central office in the Government that deals with FOIA requests. Every federal agency, federal office, Executive Branch department, federal regulatory agency, or federal corporation deals with their own FOIA requests.
Information available under the FOIA may be packed in all formats of records. From print documents, photographs, videos, maps, to e-mail and electronic records. All formats that were created or obtained by a federal agency at the time of filing the request are in the agency’s possession and control and are subject of FOIA.
Since the Electronic Freedom of Information Act Amendments of 1996, all FOIA agencies are required by statute to make certain types of records available electronically.
How Does FOIA Work?
Just like e-discovery, FOIA processing is not a single-step process. It is a complex process which includes more people, departments, agencies, and other legal institutions.
FOIA processing includes many FOIA officials who make sure that the process works, like:
- FOIA Contacts,
- FOIA professionals who search for and process records in response to FOIA requests,
- FOIA Public Liaisons who work with FOIA requesters to answer questions and resolve concerns to Chief FOIA Officers,
- Chief FOIA Officers who monitor and supervise their agency’s compliance with the FOIA.
After an agency receives a FOIA request, the requester is sent a letter of acknowledgment with an assigned tracking number. In a need for additional information, which happens more often than one would think, the agency contacts the requester. Once all the needed information is collected, the processing of FOIA may start.
The first step of providing the response is searching.
FOIA agencies search for the information requested. And although that might seem easy and simple to someone, it is not like that at all. On the contrary, the process takes many workers, departments, offices, and other legal bodies.
FOIA Officials need to review the records and determine which, and what parts of each, can be released. They must redact or withhold any information protected from disclosure by one of the 9 FOIA exemptions. Only then can they send a written response to the requester.
This response informs citizens whether the requested information was located and includes all releasable documents. If any portions of the records are withheld, let’s say because disclosure would invade an individual’s personal privacy, the agency must inform the requester of the specific FOIA exemption applied.
The time it takes to respond to a FOIA request varies depending on the complexity of the request and the backlog of requests pending at the agency.
There are two types of requests:
- A simple request. A simple request can be processed faster because they are typically more targeted and seek fewer pages of records.
- A complex request. Complex requests typically seek a high volume of material or require additional steps to process, such as the need for involvement from multiple locations, departments, offices, etc.
To make these highly complex and time-consuming processes much easier, faster, and much more effective, federal agencies dealing with FOIA use FOIA Software Solutions.
Thanks to these FOIA Software Solutions, federal agencies can predetermine workflows, increase performance standards, advanced search capabilities, and accessibility. And they have been doing this for at least a decade.
However, as the Department of Justice reports, FOIA agencies still face difficulty in dealing with backlogs.
The Summary of Annual FOIA Reports for Fiscal Year 2017 shows that the total number of backlogged requests across the government at the end of FY 2017 was 111,344. Big number, right?
These numbers mean that, besides the FOIA software solutions, agencies that deal with FOIA request processing can use any help that will assist them to reduce the backlogs.
The good thing here is that e-discovery can help.
Now that we’ve discussed the basics of both terms, we can move on into how these processes are related and how e-discovery can improve the work of FOIA agencies.
The Relation Between E-Discovery and FOIA
The standards and practices governing e-discovery can easily be associated with FOIA request processing.
When we talked about e-discovery, we mentioned that e-discovery encompasses electronically stored information, all of which can be requested by FOIA. In fact, FOIA request can be part of e-discovery, and vice versa.
From the moment of request submission to delivery, FOIA is a process which is very similar to e-discovery. FOIA coordinators often face the same issues as private litigants do. They both need to:
- Centralize and standardize vast amounts of electronic records,
- Locate information linked to specific issues,
- Review and identify records to avoid disclosing exempted information to the public, and
- Produce responsive information under a given deadline.
When an FOIA request is received by a federal agency, it is handled by that body’s FOIA coordinator. The FOIA coordinator has 20 business days to respond to that request. But considering the large volumes of ESI federal agencies have to deal with, responding on time is a major challenge.
Same as with e-discovery, the FOIA coordinator is responsible for reviewing the request to determine its scope. The coordinator should make sure that the response does not require the production of a large volume of ESI. Otherwise, they will try to narrow the scope of the request.
As we can see, from data range to the number of custodians, search terms, deduplication, and production, FOIA basically covers the “best practices” of e-discovery.
These “best practices” are often used in e-discovery to control costs and increase efficiency when making ESI productions in litigation or government investigations. In fact, courts are now expecting litigants to cooperate with respect to e-discovery. There is no reason not to carry that spirit of cooperation into the realm of FOIA requests. Because, unlike civil litigants, a FOIA coordinator generally cannot deny a request on the grounds that a response would impose an undue burden.
Seemingly different processes, e-discovery and FOIA turn out to be very similar in their core.
In fact, this operational similarity I am talking about can be used for increasing efficiency and productivity among federal agencies that deal with FOIA. How? By integrating e-discovery as part of agencies’ FOIA Software Solution.
Why FOIA Agencies Should Consider E-Discovery Software
Although acknowledging that the search obligations under FOIA are not identical to those under e-discovery, the need to access ESI is certain for both. Especially when it comes to custodial and keyword searches. And that is where e-discovery can step up and help FOIA agencies.
As the reach of FOIA expands, so does the need for IT professionals in federal agencies to understand and conduct e-discovery for records requested under the FOIA.
To respond to a FOIA request, federal agencies need to search, review, and redact documents for confidential information. And very often, FOIA requests involve a vast amount of documents that impose significant financial and operational costs. This process is not only expensive but also time-consuming. This leads FOIA agencies to delays, backlogs, and manual review of all documents.
A solid e-discovery software solution can help FOIA agencies to lift the burden they carry with every single request. With a good e-discovery software solution, FOIA agencies can locate and collect potentially responsive ESI, and then subject that potentially responsive ESI to date restrictions, deduplication, keyword searching, etc.
E-discovery software solutions are capable of searching through information across the entire federal agency. Including both structured and unstructured data and effectively analyzing content. E-discovery software solutions also include AI-enhanced analysis, full review and tagging, automated categorization, pattern identification, and trend spotting.
Artificial Intelligence Helping e-Discovery, Helping FOIA Software
AI and Machine Learning are crucial components of modern e-discovery software solutions. Predictive coding technology enables supervised, continuous Machine Learning to learn from human decisions. It enables targeted data collections, sophisticated culling, and de-duplication.
Advanced search and AI-enhanced analysis are features that make e-discovery software solutions beneficial for FOIA agencies. Here is how:
- Integrated data visualizations help FOIA agencies in understanding the relationships between thousands of emails without an interactive communications map.
E-discovery software solutions will map out sender/receiver patterns in addition to visualizing other key metadata attributes like activity over time.
- The use of technology, rather than a manual review, eliminates the need for human reviewers to review every document.
- Data analytics increases the efficiency and accuracy of government responses to FOIA requests.
- The integrated Predictive Coding and Machine Learning reduce human error.
- Redaction and production capability increase security.
All in all, e-discovery software solution is something every federal agency dealing with FOIA needs to seriously consider.
As you can see, it brings many benefits. And the best part about these e-discovery based solutions is that they can be easily integrated into a modern FOIA software solution.
A good e-discovery software solution integration can significantly increase your FOIA operational productivity while reducing the backlogs and minimizing the risks associated with handling sensitive data. Think about all that time, money, and efforts a software solution like this will save your agency. Not to mention reducing that huge number of 411,000 requests that couldn’t be processed because FOIA agents simply couldn’t find the requested documents.
Basically, e-Discovery helps FOIA Agencies turn action into motion.
Let’s Wrap Up
If you’re reading this article, you already know how complex the entire FOIA process can be. Chances are, you’re one of those people who carry the responsibility of decision-making about FOIA software solutions.
As we saw earlier in this article, the biggest challenges of FOIA agencies come from ineffective searching, filtering, and reviewing capabilities. Without a helpful solution, the whole process of responding to FOIA requests can become time-consuming and expensive.
The good news is that the e-discovery technologies proved to be powerful tools when it comes to improving internal Records Management and retrieval processes.
If such software has already proven to be helpful for effective searching, reviewing and redacting documents, why not integrate it as a part of a FOIA software solution? It’s a no brainer. Even the FOIA Advisory Committee recommends this integration.
If you’re looking for a FedRAMP compliant, cost-effective FOIA software solution that can easily integrate with e-discovery technologies, take a look at this pre-recorded webinar for the ArkCase FOIA Software Solution.
If you have any questions about the ArkCase FOIA software solution, please feel free to contact us.
We’d love to hear what you and your peers would have to say about this topic. So, don’t hesitate to share your thoughts.