The Importance of Weaving Consistent eDiscovery Search Practices into the FOIA Process
As the number of FOIA and public records requests increases, so do the numbers and types of records that must be searched. This is becoming a big problem and is even causing legal issues for FOIA agencies.
The Department of Justice received 228 FOIA lawsuits in FY 2018. According to the FOIAproject.org, this is because FOIA agencies struggle with the ability to efficiently search through all related stored documents such as video and audio recordings, scanned documents, and large document repositories.
These large files required manual review, and this is why, in many cases, they were simply omitted. This omission resulted in lawsuits. Two hundred and twenty-eight of them.
Image Source: FOIAproject.org
As you can see from the chart above, the number of lawsuits continually increases every year. In the past 10 years, the number of lawsuits doubled.
FOIA agencies are facing these consequences because of their outdated documents searching approach.
This is where eDiscovery steps in.
The Need To Incorporate eDiscovery Practices Into FOIA Processes
In 2012, a ruling by U.S. Judge Shira A. Scheindlin of New York pointed out that eDiscovery practices need to be increasingly incorporated into the FOIA and public records process.
The suit in question was brought by the National Day Laborer Organization Network against the U.S. Immigration and Customs Enforcement Agency. The reason behind it was the inadequate searches, both manually and technologically assisted, conducted by federal agencies and used as responses to FOIA and public records requests.
Here is an excerpt of a press release about this lawsuit, illustrating the importance of using proper search procedures, and using available technologies:
Judge Scheindlin flatly rejected the defendant agencies’ claim that they should be “trusted to run effective searches…without providing a detailed description of those searches.” Particularly harsh in its conclusions about the FBI’s failure to search for documents, Judge Scheindlin characterized as “absurd” their position that ordering an office to conduct a search and receiving no response satisfied government obligations under FOIA. Pointing out that FOIA requires the government to “use twenty-first-century technologies to effectuate congressional intent,” the decision broke new ground by ordering the government to “work cooperatively” with plaintiffs to “design and execute” new searches.
Judge Scheindlin also said that search details are critical to determining adequacy. Meaning that federal agencies should produce the search terms used in electronic searches and that searches should be conducted uniformly.
How eDiscovery Search Practices Can Help Improve FOIA
In most cases, FOIA requests involve millions of documents. This contributes to the growing costs of responding to FOIA and public records requests.
Fortunately, eDiscovery search practices have been used in legal departments for years now. According to Judge Scheindlin, eDiscovery search practices are exactly what FOIA agencies lack in FOIA and public records operations.
Here is how they can be useful in improving FOIA and public records processing:
- Finding unknown relationships and identifying relevant information that may or may not contain the search criteria, protecting the organization and diminishing risk.
- Reducing the time spent aggregating content from different repositories across the agency improving productivity and reducing costs.
- Eliminating manual tagging except by authorized users.
- Supporting multiple search techniques.
- Eliminating repetitive searches.
Thanks to search practices like in-text and metadata search, filtering out semantically related but topically unrelated terms, and the more advanced features like stemming, phonetic and fuzzy search, eDiscovery is a very powerful tool for FOIA agents.
In addition to the complex nature of document searches, the actual review of the documents has become more challenging for FOIA agencies.
eDiscovery search practices enable FOIA agencies to find all of the related documents in a case and bring back a clean list of documents that employees can manually review.
eDiscovery platforms automatically remove duplicate documents and emails, thereby reducing the total number of documents to be reviewed by up to 70%. They also provide a user-friendly side-by-side preview pane that allows FOIA agencies to compare similar and near-duplicate documents.
The use of eDiscovery search technologies eliminates the need for human reviewers to peruse every document.
Also, the pre-collection analytics of eDiscovery can be especially useful. It allows FOIA agencies to assess a request immediately through keywords and other advanced search features. This further reduces the amount of data that actually has to be extracted from a given repository to fulfill the request.
In order to facilitate the use of technology, FOIA agency clerks will need to learn new ways of handling FOIA requests. They will need to be trained by eDiscovery experts on the most efficient workflow for finding data and searching for details to redact.
To Sum Up
Instead of dreading of lawsuits, FOIA agencies should adopt the recommendation of Judge Scheindlin, and employ eDiscovery search practices as part of their FOIA and public records operations.
The Office of Information Policy has been helping government agencies to rely more on eDiscovery to cut workloads and close information requests faster.
Because they are designed to sift through large amounts of data and locate specific information, eDiscovery search practices are also ideally suited to meet FOIA challenges with demonstrated ability to:
- Search through various sources and file formats: emails, multimedia files, OCRed documents, document repositories, etc.
- Eliminate duplicates, near-duplicates, and irrelevant files to greatly reduce the number of documents to review.
- Automatically classify documents by department, document type, custodian, withholding reasons, exemptions, and many other relevant categories for faster, more organized review.
- Automatically redact exempted information, Personal Identifiable Information (PII) and Protected Health Information (PHI).
- Accelerate review and production of responsive records with customizable, automatic reporting and indexing features.
As the process of handling public records requests is very similar to an eDiscovery, agencies can overcome their current FOIA challenges by teaming up with experienced eDiscovery solution providers. ZyLAB, for example, has designed its proven eDiscovery technology platform to deal with the ever-increasing number of PRRs by streamlining and automating the processes, to deliver fast, thorough, and reliable public records disclosures. Their eDiscovery solution is tailored to meet the specific requirements for FOIA and PRR and provides a more scalable and flexible environment for processing electronic records, helping agencies process disclosures in a timely fashion without risk.
To learn more about eDiscovery and FOIA software integration, please feel free to take a look at this blog post where we elaborated on this subject in greater detail. And if you have any questions, feel free to contact us.