To Address Growing FOIA Backlogs, Government Agencies Need to Govern More

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[author: Doug Austin, Editor of eDiscovery Today]

That’s all we need, right, for our government agencies to govern MORE?

Let me explain. We tend to think about government agencies differently from other entities that may have discovery needs and they are different – to a degree. One of the most noticeable differences for Federal government entities from other organizations is their responsibility to respond to Freedom of Information Act (FOIA) requests. But even though many government agencies have fully digitized the data being sourced to respond to FOIA requests these days, backlogs for FOIA requests for many of them are growing, not shrinking.

However, some of the best practices for addressing FOIA backlogs come from standard best practices that you can apply to any organization, not just government entities.

Growing FOIA Backlogs

In many cases across Federal government entities, we’re seeing the number of pending FOIA requests grow each year. Here are three examples that illustrate the trends for Federal government entities regarding FOIA requests:

  • Department of Defense: The DoD had 18,396 FOIA requests pending at the start of the 2020 fiscal year. It received 54,023 requests during the course of the year, but only processed 50,006 requests, leaving 22,413 requests pending at the end of the fiscal year, almost 22% higher at the end of the year.
  • Food and Drug Administration: In the first nine months of the current 2021 fiscal year ending at the end of this month, the number of FOIA requests pending at the end of the month has grown from 3,532 in October 2020 to 4,100 in June 2021 – an increase of over 16% in just nine months.
  • Department of Justice: The average processing time for simple requests grew from 30.22 days in fiscal year 2018 to 39.30 days in fiscal year 2019 – an increase of over 30% and almost double the average time for fiscal year 2014 (20.51 days).

FOIA Lawsuits

We’re also seeing the number of pending FOIA lawsuits (most of them over failure of the government entities to respond to FOIA requests in the first place) grow dramatically, even with the number of new filings in 2019 (849) dropping from 2018 filings (859). These cases slow down the review process even further as they pull from the same resources used in responding to FOIA requests. . In 2019, the number of pending cases still grew from 1,202 to 1,448 – an increase of over 20%. The number of pending cases more than doubled in just three years from 2016 (when there were only 702 pending cases).

Addressing the FOIA Backlog

Even though the FOIA use case for Federal government entities is unique to them, leveraging technology and best practices for eDiscovery and information governance still can apply to help them address the FOIA backlog challenge.

Electronic Discovery

I could discuss a lot about leveraging eDiscovery technology to address the FOIA backlog challenge, but I would be repeating what has already been discussed recently on this very blog – more than once, in fact.

This post discusses some of the FOIA dilemmas that can be addressed by eDiscovery technology and this post discusses some specific tools to consider (as well as some of the biggest FOIA challenges identified by attendees at an IPRO webinar). These are excellent resources to illustrate how eDiscovery technology can help Federal government entities can leverage technology to address FOIA requests that are being filed every year, as well as pending requests from prior years.

Information Governance

However, just as the best place to address the proportionality challenge in eDiscovery is upstream at the left side of the EDRM model, the best place for government entities to address the FOIA backlog challenge is also upstream as well. According to this recent report, there has been an explosion of “data hoarding” in the Federal government, with as much as 66% of data at Federal entities falling into the category of Redundant, Obsolete and Trivial (ROT) data. That’s a huge part of the problem!

Just as poor data hygiene can make it difficult for a corporation to keep up with its eDiscovery obligations, poor data hygiene can make it difficult for a Federal government agency to keep up with its FOIA obligations. To address it involves a combination of best practices – including data mapping to identify where data is being stored – and leveraging technology – including indexing in place and artificial intelligence (AI) techniques such as machine learning and natural language processing (NLP) to automatically categorize data within the government entity and reduce the amount of ROT data. Less data to search through is the biggest key to speeding up the response time for FOIA requests.

Conclusion

The FOIA use case for government entities may be unique, but the way to address the FOIA backlog challenge isn’t – it takes the same combination of best practices and leveraging technology to address the challenge, especially at the information governance stage.

That’s right, government agencies need to govern more – govern their data more efficiently, that is!

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