E-FOIL: Issues of Access in the Digital Age

E-FOIL: Issues of Access in the Digital Age – Part 1

This is the first in a three-part series written as a result of a conference held in December 2009 at Albany Law School. This article sets the stage for the conference and summarizes the first panel discussion.

The State of FOIL with Respect to Access to Electronic Records

Issues of access to electronic records in New York have become increasingly important. Between the propulsion of government into the digital age, the federal government’s push to place vast amounts of data online, and the public’s pressing demand for information instantly, government agencies at the state and local levels are managing and releasing information in ways that were unimagined when the Freedom of Information Law (FOIL) was enacted more than thirty years ago.

In 1986, for example, the Court of Appeals determined that FOIL required agencies to review records “reasonably described,” those it was capable of locating “with reasonable effort” through use of the agency’s indexing system in place at the time of the request. In Konigsberg v Coughlin, an inmate with a long history of incarceration sought access to all Department of Correctional Services records that could be identified using his name or inmate identification number. Although the agency was not able to locate all of the records that contained the name or identification number, a clerk testified that she was able to locate approximately 2,300 pages of records. The Court held that the agency was required to review those 2,300 pages of materials identified either alphabetically or numerically in the agency’s filing systems to determine rights of access; however, it was not required to search for those records that might contain such information but that were not filed alphabetically by name or identification number, for the request did not, in those instances meet the requirement of reasonably describing the records. Stated differently, an agency is not required to search through the haystack for the needle, even if it is known that the needle is there, somewhere.

More recently, in 2006, the Legislature adopted an amendment to FOIL regarding an agency’s responsibility with respect to searching for records stored in an electronic information system. Specifically, FOIL now provides that “[w]hen an agency has the ability to retrieve or extract a record or data maintained in a computer storage system with reasonable effort, it shall be required to do so.” Although it has not yet been interpreted by the courts, the challenge with respect to a reasonable search involves the volume of records that can be found and the agency’s ensuing responsibility to review such records (a) to confirm that they are responsive to the request and (b) to determine which parts are required to be made available to the public.

Two years later, the Legislature amended the fee provisions in FOIL, specifically with respect to electronic records, allowing the imposition of fees equivalent to the salary of the lowest paid employee capable of performing the necessary work, when it takes an agency more than two hours to prepare a copy of an electronic record. In the alternative, if the agency’s information technology equipment is inadequate to prepare a copy, the agency can charge the actual cost of hiring an outside professional to prepare the copy. Although this provision has not been reviewed in a significant way in court, the issue of the volume of records capable of being identified and retrieved remains.

Real Life – Requests for Electronic Data

The first set of panelists was given a hypothetical question similar to actual requests for records that had already been received by a few state agencies, requests involving approximately 3,000 emails. The question was designed to raise issues of what constitutes a “reasonable effort” when responding to a request, the amount of time involved in reviewing records that are identified using electronic search tools, and fees for copies.

The two records access officer panelists, Steven Blow, Esq., Department of Public Service, and Ruth Earl, Department of Environmental Conservation, responded to the request relatively similarly, and both declined to indicate that the request involved an “unreasonable effort” (except for those emails that were only stored on “backup tapes”), choosing instead to quantify how much time would be involved in creating and executing searches for relevant emails and the cost for such time. One officer would quantify the fees for those emails that required redacting and would, therefore, involve the production of paper copies, while the other declined to charge for copies at all, claiming that calculating the fee took too much time and was not worth the effort. Both agreed that emails are problematic to produce in a systematic manner due to duplicative records, attachments, and the volume that can be initially identified in a search but that are later found to be non-responsive to the request.

Vice President and Assistant Counsel to the New York Times, David McCraw, recommended that agencies take a more informal approach and call the applicant to find out exactly what the applicant wants. Perhaps if the applicant knew the time and effort involved in responding to the request, the applicant would modify the request for more strategic results. He also suggested that databases be made available online for public searches and offered support for a mandatory minimum retention period of two years for all emails.

Assistant Counsel to the Governor, Jeffrey Pearlman, agreed that searching for records on “back up” tapes would constitute an unreasonable and, therefore, unnecessary effort, yet the Governor’s office had chosen to purchase software that could search those materials. Counsel’s office was instrumental in proposing language to amend FOIL with respect to fees for the collection and preparation of large amounts of electronic records in 2008.

There was unanimous agreement from the agency perspective that it would be less frustrating for all concerned if there were easier and faster ways to sift through the volume of records that were electronically identified through use of a key phrase or word. Although it was not clear whether software that would redact information electronically was welcome, due to the difficulty in weeding out duplicative records and the comfort level with printed material, it was hoped that such software would eventually prove helpful.

E-FOIL: Issues of Access in the Digital Age – Part 2

This is the second in a three-part series written as a result of a conference held in December 2009 at Albany Law School. Part 1 described the first panel discussion, including practical ways that state agencies are handling requests that identify large volumes of electronic records. This article will summarize the keynote address, as well as the discussion by the second panel of participants.

“Information is the currency of democracy” – Thomas Jefferson.

Miriam Nisbet, the recently appointed Director of the Office of Government Information Services (OGIS), provided an overview of President Obama’s transparency and open government initiatives in the keynote address, including how the newly minted OGIS will provide assistance to those officers in each federal agency who are responsible for answering questions, conveying status information and resolving disputes with respect to requests for access made pursuant to the federal Freedom of Information Act. “FOIA Public Liaisons” will be trained in mediation and dispute resolution and will work in conjunction with Nisbet’s office.

Nisbet outlined OGIS priorities, including the development of good practices and a fundamental approach based on affirmative disclosure, and also confirmed that the Office will issue advisory opinions when mediation is not successful.

Information Technology – Where Should We Be?

Not all government entities have cutting edge information technology resources, yet FOIL requires that all agencies expend reasonable efforts to locate, prepare and make records stored electronically available to the public upon request. The panelists were encouraged to set out best practices, describe technology and provide commentary and criticism.

Legislative Counsel to the New York State Senate Majority, Michael Fallon, Esq., described the many initiatives that the Senate had undertaken to make records and meetings more accessible online and discussed recent amendments to the Freedom of Information Law, including a proposed bill to require the Committee on Open Government to study proactive disclosure at the state agency level and make recommendations accordingly.

Tim Hoefer, Communications Director, Empire Center for New York State Policy, and manager of seethroughny.net, offered many observations about the accessibility of data at many levels of government. He noted that the use of information technology varies widely among agencies; that there are two types of FOIL requests – those process, or information-driven requests, and those data or product-driven requests; and that each has its own unique obstacles and challenges. He noted the human factor and that a helpful records access officer can make a significant difference. He suggested that the public, acting essentially as the board of directors of state agencies, should require that more information be provided regularly. He made at least two explicit suggestions (1) to implement proactive disclosure by putting fact-driven records online and making requests for process generated records available also, and (2) to make FOIL webpages more useful. He suggested and described Google as a cheap model and method for making records available online in an orderly and expeditious fashion and recommended that standardized FOIL webpages would alleviate many roadblocks.

Geoff Huth, Director of the New York State Archives’ Government Records Services made the following mind-bending proposal to all state agencies: pretend FOIL does not exist! Be so proactive in your disclosure practices that you never receive another FOIL request!

Robert Port, Senior Editor of Investigations at the Albany Times Union, discussed the judicial decision in Hearst Corporation v State of New York, Office of the State Comptroller in depth, outlining the ramifications of the decision, and his intention to rely on the decision to gain access to electronic data systems of New York State.

E-FOIL: Issues of Access in the Digital Age – Part 3

This is the third in a three-part series written as a result of a conference held in December 2009 at Albany Law School. Part 1 described the first panel discussion, including practical ways that state agencies are handling requests that identify large volumes of electronic records. Part 2 summarized the keynote address, as well as the information technology discussion held by the second panel of participants. This part will summarize remarks from the Connecticut Freedom of Information Commission, as well as the discussion at the end of the conference by the third panel of experts, regarding future prospects.

View from Connecticut

Colleen Murphy, Executive Director and General Counsel, Connecticut Freedom of Information Commission, outlined the differences between the two states with respect to FOI, including the composition and authority of the Commission, available resources, and various requirements regarding software characteristics. The Commission consists of five gubernatorial appointees, no more than three from the same political party, all of whom serve staggered terms. The Commission receives approximately 900 complaints per year, half of which are resolved through mediation or the ombuds process. The Commission issues binding determinations which may be appealed to a court and can fashion any appropriate remedy to rectify an improper denial of access.

Costs, according to the Connecticut Law, cannot exceed the cost to the agency, which is permitted to pass on “formatting or programming” costs but not those incurred with respect to “search or retrieval.” Before purchasing new software, every state agency is required to consult with the State Department of Information Technology to ensure adequate provision of public access at the least possible cost to the public.

Where Do We Go From Here?

Executive Director, Robert Freeman, outlined what he believes are the three primary questions with respect to access to electronic records. First, when records or portions of records fall into deniable inaccessible categories, it is likely worth evaluating the value or the effects of disclosure. When disclosure would not cause ill effects, there may be no overwhelming reason to deny access. Second, when an agency demonstrates that disclosure is burdensome, perhaps some balancing should occur to shift the burden of production onto the applicant. And third, agencies should explore simpler, more efficient solutions through proactive disclosure.

Professor Michael Hutter, Albany Law School, outlined federal evidentiary rules governing access to records during discovery, highlighting the differences between the litigation discovery environment at the federal and state levels. He described a recent licensing hearing over which he presided, during which he denied one party’s request to stay the proceedings pending the state agency’s response to a FOIL request.

Theresa Pardo, Director of the Center for Technology in Government at the State University at Albany, explained the purpose of her office, to foster public sector innovation, enhance capability, generate public value, and support good governance. In 2006, the Center conducted a national survey (all 50 states, Washington DC and four territories) on state government digital information preservation and identified three areas of interest. One, there is great need for digital preservation training, resources and “tools”. Two, digitally-stored information raises technology, management, policy and political issues, and such interdependencies require new partnerships. Three, information technology governance requires coordinated action, not only to avoid unnecessary or redundant investments, but to enhance appropriate cross-boundary interoperability. She elaborated on observations gleaned from the study.

Attorney David Schulz, Levine Sullivan Koch & Schulz, LLP, affirmatively posited that all records being made public should be available online. He recommended that we think of records in keeping with the federal discovery three-tiered approach. The first tier concerns those records that are “active”, i.e., that the agency is currently using, existing in the email inbox or on the computer desktop. The second includes those records that are “inactive” or located on backup tapes. The third tier of records is made up of dormant or residual records, i.e., those that are located in temporary backup folders, or are recorded every three minutes during the course of drafting a Word document. Part of the duty to cooperate, the burden is on the producing party to demonstrate what is inaccessible for technical reasons or because it is too burdensome to obtain. Costs are and should be shared between the applicant and the holder of the records, depending on how and where the records are stored.