On October 19, 2017 the FOIA Advisory Committee worked its way through a jam-packed agenda, including discussion of draft recommendations from each of the three subcommittees – Searches; Efficiency and Resources; and Proactive Disclosure.
As the Archivist of the United States noted in his welcoming remarks, a uniting theme for all three subcommittees is the radical impact that technology has had on the way that the government operates, and the public’s expectations for openness. To help set the stage for the Committee’s deliberations, we invited the National Archives’ former Director of Litigation, Jason R. Baron, to speak about how the transition to a fully digital electronic record keeping environment will impact access to agency records under FOIA. One of the main takeaways of Mr. Baron’s presentation is that it is critical for agency FOIA professionals to recognize that as agencies continue to implement modern email records management and other electronic records management policies, the volume of records that will need to be searched in response to a FOIA request will increase exponentially. As a result, agencies have an obligation to ensure that they have conducted an adequate search of this material. Mr. Baron recommended that in order to meet this challenge, agencies should learn from how legal counsel are meeting their obligations to produce records in litigation and adopt similar the use of similar eDiscovery software, and that agencies should invest in research into predictive coding techniques that make the review process less burdensome.
After Mr. Baron’s presentation, the Committee discussed draft recommendations developed by each of the subcommittees. You can find drafts of these recommendations on the FOIA Advisory Committee’s Meetings webpage. Below is a brief summary of the subcommittees’ proposals:
- The Searches Subcommittee presented a number of recommendations aimed at improving understanding of agencies’ email search capabilities, ensuring searches for records are completed in a timely fashion by expanding the use of employee FOIA performance measures, and encouraging collaboration between FOIA and agency Information Technology (IT) offices. The subcommittee also presented draft best practices.
- The Efficiency and Resources Subcommittee presented best practices and potential benefits that they observed through a series of interviews with select large and medium agencies that were identified as “high performers;” the practices fell into three general categories: managing the FOIA process; bringing in talent; and using technology to improve the process.
- The Proactive Disclosure Subcommittee kicked off their discussion with a presentation by Max Galka, the founder of FOIA Mapper. Mr. Galka discussed how he digitized FOIA logs for a number of agencies and put them online as a resource for requesters. He explained that requesters can use this repository to better understand the kinds of records that the agency has and craft better, more targeted FOIA requests. This presentation set the stage for the subcommittee’s discussion of its draft recommendations. The subcommittee presented three draft recommendations: increasing the release of agency FOIA logs in a way that is most useful to improving understanding of agency records and how the law is being used; providing agencies with criteria for setting priorities for proactive disclosure; and giving agencies a guide to categories of records that should be regularly released based on the ease of making them available and their importance for understanding the government’s actions. The Proactive Disclosure Subcommittee also said that they are continuing to develop a recommendation to address making records released under FOIA and posted on an agency website accessible to individuals with disabilities.
During their discussion of these proposals, Committee members noted that several of the draft recommendations and best practices are closely aligned and could be combined. Committee members also gave feedback on specific parts of the draft proposals, and discussed how the Committee can accelerate the adoption of some of the best practices by issuing specific recommendations.
Our expectation is that between now and the next FOIA Advisory Committee Meeting, scheduled for January 16, 2018, each of the subcommittees will take the feedback they received from the full Committee and continue to refine their recommendations. The Committee is expected to vote on the recommendations at the January 2018 meeting.
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