FOIA and Open Records Requests - The Ultimate Guide

The Freedom of Information Act (FOIA) and similar open records acts allow the public access to records under the control of governmental agencies. These access rights state that public information shall be delivered within a very strict time frame. Modern eDiscovery platforms like Reveal can be used to meet the specific requirements of the various public records acts so agencies can proactively prepare for timely responds to requests and make resources needed predictable.

What is FOIA?

The Freedom of Information Act (FOIA) is a federal law that provides the public the right to request access to records from any federal agency. FOIA grants any person a legal right to know about the government’s inner workings. Common requests include access to:

• Government contracts
• Inspection reports
• Studies
• Assessments
• Emails among officials
• Drafts of proposed rules
• Consumer complaints

Federal agencies are required to disclose any information requested under the FOIA unless it falls under one of nine exemptions which protect interests such as personal privacy, national security, and law enforcement.

What is a Public Record?

Let’s keep it simple and take the Wikipedia definition: “Public records are documents or pieces of information that are not considered confidential and generally pertain to the conduct of government.” As straightforward as this sound, what is confidential varies per jurisdiction. In California for example, couples can classify their marriage as “confidential” when filling out a marriage license application so the file is not open to the public.

Where does the FOIA come from?

In 1966, President Johnson signed the Freedom of Information Act into law. FOIA was enacted in 1967 and applies only to agencies and departments of the executive branch of the U.S. federal government. Since its passage, the FOIA has been enforced by a series of amendments.

Why do we have FOIA?

FOIA plays an important role in keeping government transparent and accountable, and has been used to uncover waste, fraud, and wrongdoing in federal agencies as well as the existence of dangerous consumer products and environmental health hazards that could otherwise go undetected. FOIA gives the American public greater transparency into government operations. The FOIA is often described as “the law that keeps citizens in the know about their government”.

What are the Sunshine laws?

State sunshine laws are the laws in each state that govern public access to governmental records. These laws are also known as open records laws or public records laws. Sometimes these are collectively referred to as FOIA laws as most acts are modeled on FOIA. This site provides an overview of the sunshine laws by state.

What is the difference between FOIA, open records laws or public record acts?

The FOIA only applies to federal agencies and does not create a right of access to records held by Congress, Federal Courts, or the Supreme Court, staff of the Offices of the President and Vice President, state and local governments and private entities and corporations.

Freedom of Information laws (FOI) have been enacted in all 50 states. State and local FOI laws are typically referred to as “Sunshine” laws, open records laws, or public records acts. State and local governments model their FOI laws after the federal FOIA, though they also make revisions such as adding more exemptions. For example, the California Public Records Act includes a catchall provision that exempts from disclosure records 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.”

FOIA exemptions & exclusions

There are nine exemptions from disclosure to prevent invasion of personal privacy, or harm to law enforcement investigations.

• National defense or foreign policy records
• Internal personnel rules and practices
• Documents specifically exempted by other federal statutes
• Trade secrets, commercial, or financial information considered privileged or confidential
• Inter- or intra-agency memoranda or letters that would not be available to a party other than an agency in litigation with the agency:
  • Deliberative Process Privilege (as long as the records were created less than 25 years before the date requested)
  • Attorney-Work Product Privilege
  • Attorney-Client Privilege
  • Personnel, medical, and similar files that, if released, would invade an individual’s privacy. (PII and PHI)
• Information that would constitute a clearly unwarranted invasion of personal privacy of the individuals involved.
• Information compiled for law enforcement purposes that
  • Could interfere with enforcement proceedings
  • Would deprive a person of a right to a fair trial
  • Could constitute an unwarranted invasion of personal privacy
  • Could disclose the identity of a confidential source
  • Would disclose techniques, guidelines, or procedures for law enforcement investigations or prosecutions
  • Could endanger the life or physical safety of an individual
    
• Information on the regulation or supervision of financial institutions
• Geological and geophysical information concerning wells

What are the FOIA exclusions?

In amending the Freedom of Information Act in 1986, Congress created a novel mechanism for protecting certain especially sensitive law enforcement matters, under subsection (c) of the Act. These three special protection provisions, referred to as record "exclusions," are reserved for certain specified circumstances.

1. When disclosure of records would interfere with a criminal investigation or proceeding, of which the subject is unaware
2. Informant records of a criminal law enforcement agency when the individual’s status as an informant is not known
3. Classified FBI foreign intelligence, counterintelligence, or international terrorism record.

What does the FOIA process look like?

FOIA and public records acts provide any person the right to request access to the agency's records or information except to the extent the records are protected from disclosure by exemptions or exclusions (see above) contained in the law.

After a request is submitted, a federal agency has 20 days to respond, most state and local governments have similar or even less response times. The initial response may be in the form of providing the records requested, acknowledging receipt of the request, asking for clarification of the information requested, or providing an estimated completion date.

The risks of mishaps

Because of the complex nature of FOIA requests and the ever increasing array of data subject to requests, mishaps can and do happen. An employee of the City of Atlanta is facing criminal charges following an order to delay a local tv-station’s public records request. “Openness and transparency in government are vital to upholding the public trust”, states State Attorney General Chris Carr who wants to send a clear message with these charges.

In 2016, the Washington Supreme Court upheld a $502,000 penalty for Public Records Act violations by the state Department of Labor and Industries. Nowadays many agencies still respond to public disclosure requests in an efficient and timely manner while also protecting the agency’s sensitive information.

Also in 2016, the tiny city of Mesa faced paying more than twice its annual budget to settle a state Public Records Act dispute with its former mayor. The Public Records Act requires public agencies to respond in a timely fashion to requests for public records.

Gov. Rick Scott has agreed to pay $700,000 to settle seven public records lawsuits. Alleging he and several members of his staff violated state law when they created email accounts to shield their communications from state public records laws and then withheld the documents.

Technology to use for FOIA requests

eDiscovery technology is recognized as a powerful search tool for handling public records requests. In its January 16, 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:

• In light of the potential legal costs of untimely or inadequate FOIA searches, agencies should explore obtaining software and technology tools, including eDiscovery tools, to conduct more accurate and timely FOIA searches
• Increase the ability for FOIA offices to procure technology to aid federal agencies in more efficiently conducting records searches to the greatest extent possible
• With eDiscovery platforms, agencies can use advanced search capabilities such as “fuzzy” searches to locate misspelled names and other techniques that help them find
• Spoken words and phrases in videos and audio files
• Specific numerical values or numbers within a range (e.g. all dollar amounts between $45K and $50K)
• “Out of vocabulary” special names or code names with text mining

eDiscovery platforms are designed to help agencies handle the challenges of FOIA and public records requests with their abilities to:

• Consolidate electronically stored information (ESI) from multiple locations to one place
• Standardize all types of data files
• Automatically identify and classify data sets
• Make an informed early assessment that more accurately identifies potentially relevant information

eDiscovery tools such as advanced search capabilities, automation, data analytics, and machine learning help personnel respond to public records requests with proven efficiency and accuracy.

Why use technology to handle FOIA and open records act requests?

Without advanced technologies to meet the challenges of the ever-growing amount of more and more complex data, agencies are simply not capable of managing and accessing the data necessary to complete adequate searches. Agencies that use eDiscovery platforms can centralize and standardize all types of data and ESI, and then use advanced search features to locate relevant information within.

Agencies that rely on the basic search abilities that come with Gmail, Outlook, and Microsoft Office, or those that develop homespun search techniques still miss important information that the public has a right to know.

How do I efficiently handle open records request and FOIA?

Agencies are encouraged to identify simple requests early to ensure faster processing. Beware that requests may be more complex than they initially appear. They may require searching for records across multiple agencies or departments. After an estimated completion date is determined, FOIA personnel begin the most time-consuming, difficult tasks in responding to FOIA requests:

• Searching for, locating and collecting relevant information from amidst vast amounts of electronically stored information (ESI)
• Reviewing every page to identify protected information
• Redacting protected information and building an index of redacted information
• Tracking all activities for required reporting
• Collaborating with others to compile full responses

With the right eDiscovery solution, agencies can efficiently identify, collect and process all relevant information including plats, drawings, maps, contracts, and scanned documents. Users can search audio recordings without the need to transcribe the recordings. Requests can be scoped around custodians, dates or specific topics. Auto redaction protects exempt information, privileged information and personal information subject to protection from disclosure. The redacted documents along with the original documents can be archived for future reference ensuring a defensible FOIA process.

Why use technology for redaction?

Disclosing information requested under the Freedom of Information Act or state open records laws is already a tricky business. The use of improper redaction techniques now makes it incredibly risky, too.

Agency personnel struggle to find the perfect balance between the public’s right to know about the inner workings of their government versus the need to protect private and exempt information. Federal agencies are directed to place an “emphasis on the fullest responsible disclosure.” Because they are directed to “adopt a presumption in favor of disclosure,” FOIA personnel increasingly rely on using redaction to protect sensitive information rather than exempt documents in full.

Redacting too much information can lead to expensive problems. Requesters are not shy about taking their complaints to court to get at the information behind the black boxes, and cases like this one only help prove their points. FOIA litigation reached record highs in 2018, as requesters sought to reveal more information about unethical conduct by government officials, the Russia investigation, immigration, the environment, and other issues.

How do I efficiently redact?

With the tools currently available, the days of manually redacting documents with redaction tape (never entirely trustworthy anyway) or a black marker should be long gone. Unfortunately, many agencies still tackle redactions manually. But today, with too many records to be plowed through, humans can barely scratch the surface before accuracy suffers. Plus, no tape or marker will scrub the metadata from electronic records, which can reveal everything contained in a file – even deleted text.

Over the years, agency personnel have developed redaction methods such as using software tools to apply black boxes or a series of X’s over text or to change the font to white. The results may look good on the surface. But these redactions fail spectacularly at protecting sensitive information. There’s really only one way to tackle this digital age challenge for an industrial age process: Use modern technology to streamline an otherwise error-prone task and deliver efficient, consistent, and reliable redactions. When armed with the right technology, FOIA personnel can:

• Quickly and accurately find sensitive information. Data analytics classify information according to pre-defined exemption codes. Using powerful search capabilities, reviewers quickly and accurately find all exempt information. The exemption reasons are also tracked and instantly available for reporting.

• Easily redact everything at once. Mass or bulk redaction of information combines redacting with search so that multiple occurrences of a word, phrase or patterns such as social security or credit card numbers are redacted all at once.  

• Balance caution and transparency. FOIA personnel use technology to work together to verify redacted content prior to release and flag documents that may require a second look. Reviewers can quickly locate all documents where redactions are made and create redaction reports, Vaughn indexes, and audit histories of when information was redacted and by whom.

• Make redactions correctly. Most importantly, sensitive information is permanently stripped completely from the disclosed document, not just covered up. Metadata is also removed to ensure thorough sanitization.

Efficient redaction practices: The use of black vs white color

In color psychology, black stands for 'inaccessible and cold', while white color is more associated with 'clarity and neutrality'. Within the legal industry, ‘blacklining’ is a fully established verb, when referring to anonymizing or protecting personal data.

That said, one can claim that disclosing countless document pages all fully redacted in black ink creates the image of information being hidden. Instead, a better way to do it would be by using white blocks with black borders which would also embody the law article as the ground for refusal. Various organizations have now agreed to use this redaction method as standard, mainly because it provides better clarity and appears much friendlier to the recipient’s eye.

When dealing with a large number of documents, redacting becomes a very daunting and time-consuming task, prone to errors. This is where modern technology can make a difference.

Nowadays, AI-powered eDiscovery tools allow legal professionals to replace the rejected pages  with one single page as well as indicate why they are outside the request and/or have been refused.  This really improves the standard redaction process experience while also meeting the legal requirements because it is clear where every page has been refused. Plus, opting for such a software saves a lot of ink and paper in the long run, which makes this approach a much friendlier one both for the recipient and for the environment.

Take the risk out of redaction

Redaction is a critical and costly aspect of the document disclosure process – even more so when your agency must deal with the consequences of not doing it correctly. Having the right technology, such as that used for eDiscovery,  arms  personnel with search, analytics, and automation tools to redact with ease and confidence when making public records disclosures.

Ensuring timely and safe disclosure of public information

With access to eDiscovery technologies, agencies can make real changes and implement cost-effective solutions to the issues that cause delayed or incomplete responses and inappropriate denials. They can reduce the numbers of costly appeals and lawsuits while providing full and accurate responses in a timely fashion that result in the transparency the public expects from the FOIA.