Michael Sarich and Nicholas Wittenberg wrote an article on FOIA requests and eDiscovery, which is being published as a five-part series on eDiscovery Today. Part one was published Monday, here’s part two of processing Freedom of Information Act (FOIA) requests and utilizing eDiscovery.
Objectives and Purpose
At the heart of both FOIA and eDiscovery lies a fundamental objective: the facilitation of information exchange. FOIA serves as a gateway for citizens, providing access to government records, thereby fostering openness and accountability. Simultaneously, eDiscovery plays a pivotal role in legal proceedings, ensuring that relevant information is exchanged among parties, creating a fair and informed legal environment. These shared objectives highlight the symbiotic relationship between transparency in FOIA and the equitable exchange of evidence in eDiscovery.
For years, the private sector has been using various eDiscovery programs. Additionally, there are numerous conferences, training courses, and CLEs for lawyers and the professionals who routinely use eDiscovery offerings for large scale investigations, litigation, and other regulatory matters. At times, the private sector is said to be about 10 years ahead of th government in the eDiscovery realm. However, with the growing and regular use of AI, especially the explosion of generative AI, there is an exciting opportunity for government professionals to revitalize and reimagine their FOIA programs. AI might just provide FOIA professionals with a fighting chance to efficiently respond to requestors, reduce the backlog of requests, and find other ways to enhance FOIA programs so that they can be more efficient and effective.
The White House’s Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence is one of the largest executive orders in White House history and has sweeping implications for both the public and private sector use of this ever expanding technology. Additionally, there is a general “marching order” that government agencies should explore and utilize AI in due course and particularly notes, that “the Director of OMB, in coordination with the Director of OSTP, and in consultation with the interagency council… shall issue guidance to agencies to strengthen the effective and appropriate use of AI, advance AI innovation, and manage risks from AI in the Federal Government.”[1] This executive order was released with great excitement as was an addition to the Blueprint for an AI Bill of Rights released by The White House Office of Science and Technology Policy (OSP) under Acting Director Alondra Nelson.[2]
We have the power to advance government services, particularly in the application and processing of FOIA. In FOIA litigation and Congressional oversight it is no longer acceptable for FOIA programs to claim the utilization of technology is too new or expensive. Public private partnerships are critical in advancing FOIA operations so that our citizens receive the best services. In the classic movie Enemy of the State, the concluding line notes “who will monitor the monitors of the monitors.” This is what FOIA does.
As the globe’s digital footprint advances, we create petabytes of data daily. This makes responding to the FOIA request challenging based upon the voluminous amounts of data involved. However, if FOIA officers are to stay ahead of the curve they must have an honest and hard discussion about where their FOIA programs are: what are the strengths, what are the weaknesses, and how can they make the needed improvements with their people and their technology. While total AI processing may be the future, AI-aided eDiscovery is clearly the present tool that both public and private sector professionals require to meet their respective missions.
This paper will be published in five installments. Part 1 introduced the paper. This part (Part 2) discussed 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”.
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] Id. at Section 10.1(b).
[2] Nick continues to enjoy a wonderful relationship with Alondra Nelson and just recently moderated a CLE event where she was one of the speakers.