Digging out from under records requests
- By Stephanie Kanowitz
- Feb 28, 2017
A couple years ago, officials in Evanston, Ill., were struggling to respond to the 600 open records requests they were getting each year. Bogged down by paperwork, they fought to answer requests within the five-business-day time frame required by statute.
Requests would be printed, and those hard copies would be distributed to appropriate staff members who would, in turn, make copies of the records requested. If the documents required legal review, more copies were made. “There was a lot of copying and paperwork being distributed throughout the city,” said Michelle Masoncup, deputy city attorney in Evanston.
In February 2016, the city implemented a software-as-a-service solution from NextRequest that centralized the process for handling open records requests as well as those filed under the Illinois Freedom of Information law. Requestors can now file queries directly through a portal, or they can submit them to records management staff who can scan and upload them to the system, which costs Evanston about $5,000 a year.
The portal numbers each request and sets time parameters, alerting officials when a due date is approaching or notifying them and requestors when an extension on the response time is issued.
“All of that adds to efficiency and accountability and communication between the city and the requestor,” which was the city’s goal, Masoncup said.
Evanston received 25 percent more records requests in 2016 compared to 2015, but it’s tough to say whether that’s because the portal makes it easier for citizens to pose queries or simply that an election is coming up in April, Masoncup said.
Fulfilling requests is “still a burdensome process,” she added. The portal “is just a helpful service on the actual production of the documents and communication with the requestor.”
Evanston is not alone in its open government challenges. Governments at all levels struggle with open records requests -- and that transparency comes at a cost.
Yakima, Wash., for example, spends about $500,000 a year responding to records requests, according to a January Yakima Herald article. Statewide, government offices spent more than $60 million fulfilling 114,000 requests.
At the federal level, agencies received 713,168 FOIA requests in fiscal 2015, according to the Justice Department, which accounted for almost 68,000 of them. The total estimated cost of all Freedom of Information Act-related activities governmentwide was about $480 million, a 4 percent increase over fiscal 2014.
Cost-cutting approaches: Third-party solutions
To address these expenses, some governments, like Evanston’s, turn to a third-party help. After all, Justice’s Office of Information Policy FOIA guidelines encourage the use of technology to improve FOIA processes at federal agencies that receive at least 50 requests per year. It cites the FOIA Memorandum that former President Barack Obama issued Jan. 21, 2009, asking agencies to look for ways to use technology in responding to requests.
The main buzzword associated with modernizing the records requests is automation, a service that vendors are lining up to offer. For instance, Logikcull’s technology lets users drag and drop data of all sizes and types into its cloud-based system, which then analyzes, deduplicates and organizes the data, making it all searchable. After deploying Logikcull, Fairfax County, Va., went from a three-week response time to same-day responses, said Andy Wilson, CEO of the e-discovery and document management software firm.
Alfresco released a new digital business platform on Feb. 28 that combines content and process services with records management. The difference between the Alfresco Digital Business Platform and solutions targeting only FOIA problems is that agencies can build many types of applications on top of the platform, playing into the idea of buying once and using for many processes – and that saves money, said Austin Adams, vice president of public sector at Alfresco.
“Going out and solving FOIA to solve FOIA’s sake is just repeating the same paradigm that created the challenge we’re in,” Adams said. “Alfresco offered in a microservices architecture in a cloud creates a really agile, tremendously flexible … cost savings solution,” he added.
But it could be difficult for smaller state and local entities to invest in external solutions. For example, Logikcull’s pricing ranges from a few thousand dollars to a few million, Wilson said. Alfresco’s is available as a subscription based on the number of users.
Charging for services
As a result, there are other tactics agencies have tried to improve their FOIA processes. For instance, some charge for the records and the labor associated in collecting them. When gossip blog Gawker submitted a request for records and emails relating to the conduct of a police officer who drew a gun on an African American pool party-goer in McKinney, Texas, in 2015, the police department set the price for responding at almost $79,000.
That might be extreme, said Daniel Bevarly, executive director of the National Freedom of Information Coalition, and the result of an inefficient records response process.
“I would ask what inefficiencies exist in that public agency that would create such a high cost for obtaining a public record,” Bevarly said, adding that it is sensible for a government to charge “reasonable costs in terms of what the fees are to provide an open records request.”
Many agencies don’t budget for FOIA processes, he said, but they should. “This is becoming a service that really requires a quantitative measurement on the part of these public agencies to understand what the costs are involved in responding to these petitions,” Bevarly said.
At the federal level, an agency may charge for the time it takes to search records. If the cost will exceed $25, the agency processing the request will notify the requestor, according to FOIA.gov.
Another way to lower costs, Bevarly said, is to be more proactive with public information, building repositories of records that have already been released through requests. That’s the goal in Evanston, Masoncup said, where requestors eventually will be able to search for already-released information through the NextRequest portal, rather than submitting a new request.
That’s akin to a December 2016 draft policy from the Justice Department directing agencies to post their FOIA responses online. “This concept would ensure that all citizens -- not just those making a request -- have access to information released under FOIA,” DOJ said in its request for comments on the draft.
Although open records proponents generally supported the draft policy, two groups have voiced concerns. Both the Sunlight Foundation and the Project on Government Oversight cited the draft’s “Good Cause” exceptions, which they said are too broad and unnecessary because FOIA already allows for exemptions. Further, the policy’s immediate release requirement could harm investigative journalism, the groups said.
The push during the Obama administration for open data has also had an impact on FOIA. Beth Simone Noveck, a visiting professor at Yale Law School, points to USASpending.gov, which was created through open data at the federal level, and open checkbook websites at the local level as examples of how open data can be more responsive than FOIA.
“Open data encourages proactive disclosure and publication in open formats on a centralized data portal such as Data.gov,” Noveck wrote in a November 2016 Yale Law Journal essay. “FOIA, by contrast, imposes limited affirmative obligations on agencies.”
But open data won’t completely stop requestors from seeking records, Bevarly said. For one, email and online tools such as MuckRock, which will file up to four requests for a $20 fee, make submitting requests easier than ever.
“Not only do you have the individual requestor on the upswing, but the type of content being requested is much more voluminous than what a lot of these agencies have experienced in the past,” he said. “You also have to consider that we have a society now that literally has changed its personal preferences and expectations about how they get information and how they share information.”
Cultivating the landscape
FOIA dates to 1967, which has given agencies plenty of time to get responding to requests right. But the digital revolution has left many scrambling.
“Some people have even gone on to coin it ‘content chaos,’” Alfresco’s Adams said. It refers to the idea that there is a wide variety of content flowing around agencies’ data silos that is largely unsearchable.
Logikcull’s Wilson agreed: Governments “just have really crummy ways of organizing and searching through this information. That’s it. It’s not that much more complicated,” he said.
But even when an agency wants to adopt new technology, there are obstacles. Government “operates with guard rails,” Bevarly said. “There are political challenges, there are privacy challenges and there are legal challenges that the public sector has to appreciate when they go into new technology.”
His group recommends that public organizations develop professional standards for records stewards, which will lead to best practices that other governing bodies can adopt and adapt. Start by asking these questions, Bevarly said: “What is the cost of being a public records steward and managing that for your agency? How are your employees trained in responding to public records?”
All the experts agree that the number of requests and the volume of the records being requested will likely increase in coming years. That’s why governments need to act quickly to modernize and streamline their open records processes, Wilson said.
“If they do nothing,” he said, “it’s just going to hit them hard, and they’re going to be buried.”