Michael Sarich and Nicholas Wittenberg wrote an article on FOIA requests and eDiscovery, which is being published as a five-part series on eDiscovery Today. Parts one, two and three were published last week, here’s part four of processing Freedom of Information Act (FOIA) requests and utilizing eDiscovery.
- Technology Integration
The role of technology is transformative in both FOIA and eDiscovery. In the realm of FOIA, technology serves as a catalyst for efficient data retrieval and organization, navigating the complexities of government records, reviewing information, determining whether to withhold or apply redactions to some of the data, and then producing that data to requestors. Similarly, eDiscovery tools streamline the identification and collection of pertinent legal documents, contributing to a more efficient and accurate document review process. The intersection of technology in both domains accentuates the importance of leveraging tools for accurate and timely responses.
Gone are the days of redwelds, manila file folders, and singular files. At times, everything seems to be connected to everything. As our creation of data is ballooning, so are the use of various technology devices and the ways we communicate. To the extent this communication is relevant in the FOIA or eDiscovery context, we must identify, face, and overcome these challenges.
A typical challenge can be how one treats an email family, which includes the parent email and children attachment. Prudent sense includes making responsiveness calls on the family level and withholding and redactions calls on the document level. This approach honors the spirit of transparency while also recognizing the nine exemptions in the FOIA law.[1] While the approach seems reasonable, there are instances where reasonable people will disagree, and the analysis will have to conform to ensure basic standards of fairness are incorporated in the productions.
Agencies and their staff must explore all available options so that FOIA professionals can operate to the best of their abilities. All too often, government employees are stuck with outdated and inefficient applications to support responses. This challenge leads to 1) a growing backlog of FOIA requests, 2) the review and withholding of information not being equitable due manual human review, and 3) general frustration amongst government professionals, FOIA requestors, and the courts when FOIAs evolve into litigation. Agencies can learn about new technologies and enhanced processes by participating in the Chief FOIA Officers Technology Committee. In addition to having regular meetings, this Committee has hosted several training sessions such as on the use of AI in FOIA. The Committee also hosted a NexGen FOIA Tech Showcase, as well as a follow-up session for interested government professionals. In addition, they have announced their intention to host another NexGen Showcase in 2024.
Furthermore, on March 15, 2022, the US Department of Justice (DOJ) Attorney General Merrick Garland issued a memorandum on FOIA that “strengthen[ed] the federal government’s commitments to transparency in government operations and the fair and effective administration of FOIA…In addition, the Attorney General’s FOIA guidelines direct federal departments and agencies to continue efforts to remove barriers to requesting and accessing government records and to reduce FOIA processing backlogs.”
The DOJ encourages use of technology and process improvements that will enhance efficient FOIA operations. DOJ’s Office of Information Policy (OIP) – charged with overseeing the government’s FOIA operations – routinely releases assessments and reports, including this report from 2021: “OIP’s summary and assessment focuses on steps agencies have taken to improve FOIA administration in five key areas,” including “Greater Utilization of Technology in FOIA Administration…” This report (on page 11) also highlighted that “[w]hile agencies have leveraged standard e-Discovery software for some time now, the use of AI provides an exciting opportunity to modernize FOIA on a whole different level.” Another key take away, is that: “[b]eyond the traditional tools used in FOIA administration, several agencies are exploring more sophisticated technology that leverages artificial intelligence (AI) and has great potential for reducing the search and review burden on agency FOIA offices… The Chief FOIA Officers Council Technology Committee continues to serve as a great resource for agencies exploring their FOIA technology needs.”[2]
The more government agencies explore greater use of technology, the more streamlined their operations will be in the administration of FOIA. Furthermore, utilizing AI will dramatically help make the processing of these requests more accurate and efficient. AI (especially generative AI) has become ubiquitous in the past several years. We use AI in our daily lives from home assistants, cell phone applications, social media, music and video streaming services, rideshare programs, auto navigation, and numerous other day-to-day activities where interfacing with AI is common place. The aim of the recent AI Executive Order states that the President “places the highest urgency on governing the development and use of AI safely and responsibly, and is therefore advancing a coordinated, Federal Government-wide approach to doing so. The rapid speed at which AI capabilities are advancing compels the United States to lead in this moment for the sake of our security, economy, and society.” And this is where the synergies of eDiscovery practitioners and FOIA professionals combine their interests and excitement for advancing their industries using AI and advanced search and review technology.
This paper will be published in five installments. Part 1 introduced the paper. Part 2 discussed the Objectives and Purpose for FOIA and eDiscovery. Parts 3, 4 and 5 will discuss Similarities in Processes with both FOIA and eDiscovery, with part 3 focusing on Identification and Collection, this part (part 4) focusing on Technology Integration and part 5 focusing on Collaboration and the paper’s conclusion.
Image created using Bing Image Creator Powered by DALL-E, using the term “robot working in a US government agency doing work at a computer”.
This work is not a federal publication and only reflects the personal views of Mr. Sarich and Mr. Wittenberg.
Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.
[1] 5 U.S.C. § 552(b)
[2] Id. at page 15.