Introduction
The Freedom of Information Act (FOIA) empowers individuals to request access to government records, fostering an open and accountable government. On the legal front, eDiscovery serves as a cornerstone in litigation, ensuring that parties have access to pertinent information. The intersection of these two realms unveils a shared quest for information and the intricate processes involved in handling vast amounts of data. Since the passing of the FOIA individuals can request information from the government on numerous topics[1]. Responses were typically provided in documents where now with the update in technology, all types of data are being requested as federal records.
The amounts and types of data are ballooning daily thus compounding the complexity and numbers of requests that agencies receive. However, taking cues and lessons learned from the eDiscovery industry can help make the much-needed technology improvements in FOIA operations. Furthermore, the use of artificial intelligence (AI) has dramatically risen over the past five years to include the impressive explosion of generative AI. Additionally, in the spirit of transparency, as hallmarked in the FOIA, ChatGPT was used in creating the basic bones of this paper. Borrowing on the sound advice from one of the leading legal jurists, Judge Scott Schlegel, found in his open letter[2] on A Call for Education Over Regulation, this will help advance how professionals conduct their work. He is a leading technology jurist and frequently speaks at various CLE events (including this recent event) on how AI can help advance the courts and the law. It only seems appropriate to utilize the tools we’re advocating for adoption. The “meat” of this document is largely our thoughts on the topic, the “bones and structure” were recommended by the geniuses at OpenAI[3].
The underlying goal of eDiscovery and FOIA is the production of records, which in 2024 is almost always digital data. To pull the “Mighty Oz’s” levers, the inputs and outputs requires expertise in the various applications of that data such as reporting evidence or facts found in an investigation, responding to FOIA requests, or producing information in the litigation discovery process. Regardless of the wizardry engaged, at the end of the exercise, FOIA requesters receive productions that often mimic and, more than occasionally, exceed those that are produced in formal discovery.
Gone are the days where singular files with a few paper records are requested under the FOIA. To meet adequacy of search standards and basic FOIA requirements, the federal government is faced with a daunting task. Because the government already uses eDiscovery to support both investigations and litigation in both the civil and criminal realms, eDiscovery tools are a natural fit for FOIA professionals. Because this tool has a robust history and a judicial acceptance-indeed judicial insistence in many instances-FOIA leaders should collaborate with both private side and government colleagues to operationalize the most effective use of eDiscovery methods in FOIA operations. This paper seeks to encourage just that outcome.
This paper will be published in five installments. Part 1 of Processing Freedom of Information Act Requests and Utilizing eDiscovery introduces the paper. Part 2 will discuss the Objectives and Purpose for FOIA and eDiscovery. Parts 3, 4 and 5 will discuss Similarities in Processes with both FOIA and eDiscovery, with part 3 focusing on Identification and Collection, part 4 focusing on Technology Integration and part 5 focusing on Collaboration and the paper’s conclusion.
Image created using Bing Image Creator Powered by DALL-E, using the term “robot working in a US government agency doing work at a computer”.
This work is not a federal publication and only reflects the personal views of Mr. Sarich and Mr. Wittenberg.
Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.
[1] 5 U.S.C. § 552.
[2] In this letter he calls for education over government regulation of AI more specifically generative AI, where in the legal context he notes that “an order specifically prohibiting the use of generative AI or requiring a disclosure of its use is unnecessary, duplicative, and may lead to unintended consequences.” Id. He also notes in this letter which is applicable in many applications including architecting FOIA policy guidance documents that, “In the spirit of full transparency, I wanted to let you know that I drafted this letter using ChatGPT-4. And I assume that such a revelation might now prompt you to reevaluate my comments with a more skeptical lens, which underscores my final point: the concern that judges may inherently be dismissive of arguments that are drafted with the assistance of generative AI, perceiving them as less authentic or persuasive. However, this perspective overlooks a crucial aspect. Generative AI, much like any tool, is only as effective as the legal expertise guiding it.”
[3] We’ll let the reader guess who put that sentence in.