The End of FOIA Excuses? Better Technology Removes Reasons for Delay

In an age of ever-growing data, government agencies can struggle to get it all out into the light in a timely fashion. For some agencies, whether due to a lack of resources, inefficient processes, or good, old-fashioned feet dragging, prompt compliance with open government laws appears virtually impossible. The Environmental Protection Agency’s Office of the Administrator, for example, completed only 17 percent of the Freedom of Information Act requests it received last year, according to research by the Progress on Government Oversight.

Such delays have led to accusations of political interference and an upsurge in FOIA litigation filed by government watchdogs—a nearly five-fold growth in litigation since 2016. For example, the Sierra Club, with the help of Earthjustice, has sued the EPA over its FOIA compliance. The Club's suit aims to “find out why the public is not getting the information it is supposed to get by law,” according to Executive Director Michael Brune.

The EPA, in turn, argues that it is simply doing the best it can, given existing constraints. Spokesperson Liz Bowman explained that the agency is focused on clearing out backlogs, handling “the large volume of incoming requests,” and training its Office of General Counsel on more efficient processes. Such training is “an intensive effort led by career staff to maximize efficiencies, ensure the best use of resources and improve response time,” Bowman says.

Making Collection and Review a Snap

Of course, complaints that an agency doesn’t have resources to complete a request, or that a request is too broad to comply with, are nothing new. It’s common in disputes like this and in federal investigations and litigation to argue the limits of what requesting parties can ask for. On the one hand, you’ll have organizations like the EPA, the ones with all the documents, complaining that the request is overly broad, that it’s a fishing expedition, and, in general, it’s just going to be a huge pain—due to time, resources, costs or something else—to produce all this stuff. And inevitably, the requesting side will say, “You’re either hiding something or you’re fabricating how much this will actually cost to produce.”  Or both. And with all the alleged shenanigans potentially at issue in this specific case, how can you blame them?

This is just the nature of the beast, more a product of maneuvering and politicking than the abilities of the parties involved and whether they're up to the test of making sense of all this information quickly and affordably.

Better technology, though, could certainly help lessen responding parties' burdens—and hopefully neutralize some common reasons for delay.

As Above the Law once noted, “Any attorney worth their salt knows there are tools that make the collection and review of voluminous data—in particular government data—a snap.”

“One need look no further than Logikcull,” according to ATL’s Joe Patrice. Tools like Logikcull and other modern technologies may not solve every FOIA-related frustration, but what they can do is make it much harder for producing parties to claim that they can’t produce something because doing so would be overly burdensome or cost-prohibitive.  

Andy Wilson once explained how modern technology can drastically reduce "the work required to get responsive documents out the door and into the hands of the people who made the initial lawful request.”

We provide cloud-based software that automates much of the work associated with processing, searching, reviewing, redacting and sharing out information. You just drag and drop the files into your browser and Logikcull makes sense of them. We call it Instant Discovery.

Making FOIA Easier for Both Sides of the Request

FOIA processes, after all, are not too different from the discovery process in litigation. For the producing party, typically a government entity, the challenge lies in collecting, searching through, and reviewing records potentially responsive to a records request. Given the proliferation of information and the fact that government records retention laws generally require public entities to keep everything, there’s often a ton of information to go through.

These days, it’s not just contracts and policies and memos. It’s emails, text message, employee social media records—the whole nine yards. To make matters worse, often times, government organizations aren’t equipped with the most up-to-date technology, both due to budget constraints and the way they buy. Agencies typically commit to multi-year agreements to lock in costs, which means they’re always using the best tools... from 10 years ago.

That’s the challenge on the producing side.

But it’s not just the producing parties. The recipients, too, can benefit from technology that makes it easier to get through massive amounts of data. They often ask for large swaths of information and if and when they get it, they’re left wondering, “Now what? How do you make sense of this load of information in a quick and cost-effective manner?” For investigative entities and journalists, where time is of the essence, those questions are doubly important.

Transforming Not Just Requests, But Systems

The benefits, particularly for government entities, aren’t limited to individual requests. As Wilson explains:

A big challenge for government organizations is just having a repeatable, documentable process in place to respond to records requests so you can speak to the exact steps you took to make a disclosure.

Again, Logikcull makes the process of gathering, reviewing and sharing out these documents intuitive.

Standardization is also improved by an emerging trend in both FOIA productions and litigation: both sides using the same platform, bringing a heightened level of standardization to the whole process. When both sides are using the same tool, it eliminates the hassle associated with wrangling over file formats and load files, because the documents produced out of the system are already in a form that can be easily ingested. The actual sharing of the documents is also instantaneous, reducing even more friction points in the process.

That’s a much better system than, say, a party filing a records request and the other side saying, “Sure, we can produce this. But it’s going to take four months and cost you $79,000.” And then the requesting party suing because the government agency is either lying or has no concept of how much these things should cost or how much time they should take. And this stuff happens all the time. Just google “FOIA McKinney Texas"—or take a look at the Sierra Club's docket.