Attorneys have long been using what are called e-Discovery tools to organize documents gathered as evidence.
But now, according to one San Francisco-based software marketer, federal agencies could exploit such electronic tools to accelerate their responses to Freedom of Information Act requests.
Backlogs in federal FOIA offices have been common for decades, for reasons ranging from small staffs to reluctance of some officials to promptly turn over documents without careful scrutiny of the privacy exceptions allowed under the 1966 law.
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But the current state of FOIA suggests things have worsened. The Environmental Protection Agency, for example, recently told one requester that a spike in FOIA inquiries under now-departed Administrator Scott Pruitt has extended average processing times to 388 working days, according to the nonprofit advocacy group Public Employees for Environmental Responsibility. “As a result, FOIA backlogs are ballooning, more lawsuits are filed, and prospects for transparency dim,” PEER Executive Director Jeff Ruch said last week.
The State Department, with a reported backlog of unanswered requests of more than 13,000, recently went to court against the nonprofit Citizens United, arguing this May that it would need 45 to 66 years to review less than a year’s worth of emails from one individual concerning the 2016 election that the nonprofit had requested, according to a filing in U.S. District Court for the District of Columbia.
One private company competing to offer a solution is Logikcull, whose CEO and co-founder, Andy Wilson, claims its software would enable State to sift through all those internal emails in just days.
“Data is getting bigger and more complex, with new types,” he told Government Executive, while lawyers’ deadlines have been getting shorter.
So his team’s idea beginning in 2004 was to “take unstructured data and make sense of it, so that legal teams could review it quickly.”
Logikcull’s subsequent experience with clients such as the City of Baltimore and the nonprofit Sierra Club made the company realize that “FOIA was not all understood” by outside requesters who sought a good way “other than litigation” to accelerate access to public records in a way that helps both agencies and requesters.
The way agencies “go about collecting, searching and packaging the records up becomes the defining factor in how fast they can respond to a request,” Wilson said. But by applying automation that organizes data by “timeframe, key words, categories, themes and contracts,” his company witnessed how lawyers and paralegals could dramatically speed up the review processes.
“I've talked to dozens of government teams, and if the legal world is notoriously behind the times in technical adoption, the government is even worse—printing out emails to paper, then redacting them and scanning them back in to make copies,” he said.
Thus far, Logikcull has marketed its product to local governments in places like San Mateo and San Jose, Calif., and New York City, along with nonprofits such as the American Civil Liberties Union and the Southern Environmental Law Center, Wilson said. But he’s had less luck at the federal level.
A Justice Department spokesperson, while unable to speak to a particular e-Discovery tool, told Government Executive, “the Office for Information Policy has long championed the leveraging of sophisticated e-Discovery tools on the federal level to improve agencies’ abilities to search for and process records. Since 2011, OIP has engaged in many efforts to encourage agencies to utilize these tools to the extent possible and many agencies across the government have reported doing so.”
Alex Howard, a longtime digital analyst most recently with the Sunlight Foundation, sees potential.
“Lawyers searching large amounts of documents for discovery in a given case in the private sector are performing a similar function as FOIA officers do in the public sector,” he agreed in an email to Government Executive. Logikcull “promises drag-and-drop functionality for preparing responsive documents from various formats, which could be directly relevant to public records requests. Broadly speaking,….there’s a huge amount of opportunity to make public records responses much easier to revive, track, fill, and deliver through better uses of modern technology.”