FOIA reforms are on the way, are you ready?

If you are employed by a federal government agency, then you are probably well aware of FOIA, or the Freedom of Information Act. FOIA was originally signed into law during the 1960’s by then President Lyndon B. Johnson to establish a process whereby citizens can request copies of governmental records that are not published in the Federal Registry. Agencies, in turn, are required to provide this information in a timely fashion (usually 20 days). Although FOIA is a federal mandate, it has also served as a model for similar legislation (often referred to as “Sunshine Laws”) in many states.

FOIA requests can be far reaching and include everything from paper records to electronic content, like email. Unless those records fall into one of the nine defined exception categories (for example, confidential trade secrets or financial information obtained from a person) the agency is mandated to produce them. Given these obligations, FOIA has produced a fascinating history of legal wrangling between various requestors and the target agencies seeking to avoid complying with a request. From the FBI files of J. Edgar Hoover through Iran-Contra and up to the current day controversy over the former Secretary of State using private email, FOIA has played a key role. It is clear that responding to FOIA requests has become a time consuming and labor intensive task. In fact, on the 2015 FOIA Scorecard, published by the Center for Effective Government, ten out of the fifteen agencies who receive the most FOIA requests in a year received failing marks by scoring less than 70 of a possible 100 points.  According to the Center the results of their survey confirm that “many federal agencies are still struggling to effectively and consistently implement public disclosure rules” and it appears that compliance is about to get harder.

Both the Senate and the House of Representatives are working on measures that would reform current FOIA legislation. House bill H.R.653 and Senate bill S.337 have both been approved and are expected to be reconciled into a single measure in the upcoming weeks.  Although the final language is subject to change in committee, it is likely that (among other provisions) agencies will be required to make both disclosable records and frequently requested records available for public inspection in electronic format.

The Freedom of Information response process in the public sector (whether federal, state or local) has become strikingly similar to litigation eDiscovery requests that commercial businesses are subject to. Implementing one of Sherpa’s eDiscovery products for electronic search and collection can help your agency stay ahead of the curve in responding to record requests. The ability to search through a variety of content using criteria such as date ranges, proximity searching or regular expression patterns then collect matching results electronically can streamline workflows and shorten your response cycle.

To learn more about how Sherpa tools can improve the search and collection portion of your FOIA process download our free eDiscovery handbook.

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