JURIST Guest Columnist Sarah Lamdan of the CUNY School of Law discusses the urgent need for federal agencies to reform their records management and data preservation and search functions so that they are not crippled by FOIA requests for email account data and other types of Internet generated electronic records that fall under the FOIA…

As the US House Committee on Government Oversight and Reform hosted hearings this week to take a closer look at the Freedom of Information Act (FOIA) as a transparency tool and barriers to information access, journalists, FOIA scholars and others interested in government transparency complained about agency stonewalling, slack and stagnation when faced with requests for agency records under the federal information access law. Frustrations with current FOIA processes and practices were understandable in light of agency’s hefty FOIA request backlogs, significant delays in FOIA request responses (one FOIA user, Jason Leopold, reports that less than 1 percent of his requests are satisfied within the statutorily mandated 20-day time limit), and other information blockages forcing FOIA requestors to rely on FOIA litigation to pry information from government agencies, often long after the information is newsworthy or useful to the public interest.
Although some of these FOIA failures may be the result of poor FOIA implementation by the agencies or tactical efforts to withhold potentially damaging or sensitive materials from the public, a larger reason for FOIA failures is likely outmoded data storage practices and poor data searching techniques within agencies databases and information storage systems. A continuing FOIA struggle at the Environmental Protection Agency (EPA) highlights the data collection and search issues facing federal agencies.

Richard Windsor is the alias assigned to an email account used by former EPA administrator Lisa Jackson to communicate with people from her EPA post. People who used the email address included Cass Sunstein, eventual leader of the White House’s Office of Information and Regulatory Affairs, who called the private account Jackson’s “special email.” The emails going into and coming out of the Richard Windsor email account flew under the government records radar, skirting government records preservation and transparency laws like the Federal Records Act and FOIA by hiding Jackson’s messages under a nom de plume.

In 2012 a conservative think tank called the Competitive Enterprise Institute (CEI) discovered that Jackson had been using the second email account, Windsor.richard@epa.gov, to conduct EPA business. CEI has since filed several FOIA requests to EPA and subsequent lawsuits in federal court to obtain the emails contained in the Richard Windsor account.

If the facts in this Richard Windsor email case sound familiar, it may be because they are similar to those in news stories about Hillary Clinton’s private email account that she used as Secretary of State. Publicity about Clinton’s non-government email account started a national debate about government officials’ email records, and their inclusion in laws that require government records to be properly preserved and made available to the public. A recent study confirms that Clinton and Jackson are not alone in using secondary email accounts as government executives. Although in Clinton’s case, she did not make up an alias or use a “.gov” email address, many of the information transparency implications are the same and the application of existing government rules are just as tenuous.

The political grandstanding surrounding the Clinton emails also appears in Jackson’s case. CEI openly disfavors many EPA policies and equates the EPA to “America’s Own FIFA” in terms of corruption. The think tank has been accused of harassing the EPA by filing extensive, extremely broad FOIA requests. CEI senior fellow Chris Horner admits that these requests are not mere information gathering, but also political tactics saying,

“I’m simply working the corner across the street from the environmentalist or other, generally leftish pressure groups who have been far more active in this area for far longer. What I do is fill a void, flattering the other side with imitation.”

However, even if the FOIA requests are politically-driven ploys, the documents at issue in CEI’s FOIA requests fall within the FOIA’s parameters, and the EPA’s fulfillment of CEI’s FOIA request should not take an eternity (CEI’s most recent lawsuit alleges that, at the EPA’s current pace, it will take over 100 years to fulfill the FOIA request), nor should they administratively cripple the agency. The current state of the EPA’s record management systems is obviously ineffective for responding to FOIA requests for online data. CEI’s FOIA requests seemingly broke down the EPA’s FOIA infrastructure by requiring the processing of tens of thousands of emails. According to an EPA employee, the Richard Windsor request had attorneys from the Office of the Executive Secretariat working full time for four months including weekends, without tending to any other business, leading to other requests being put on hold. In a time of EPA budget cuts, three attorneys from the Office of General Counsel, EPA’s chief legal advisors, also had to assist with the processing.

Federal agencies must do better to preserve government transparency in the Internet age. With the rapidly increasing use of multiple email addresses, cloud computing and document storage and online social media (like Twitter and Facebook) by people working in the federal government, the contours of government records are continually changing, and the need to begin collecting more and more online data as part of government records management grows more urgent. Emails, Tweets and memos tucked away in Google Drive may seem like mere missives, but as these online systems become primary forms of communication and information sharing, the documents within them will likely become pieces of American history and the (virtual) papers that shape national policy.

Jackson’s FOIA email case demonstrates that times are changing for federal records collection and preservation, highlighting the altered world of government transparency in the Internet age. The federal government is thinking about these changes [PDF], working with the National Archives and setting benchmark goals for improving email preservation by 2016 and switching fully to electronic records management by 2019. The formulation of these goals are steps in the right direction, but in an age where electronic media and communication are rapidly eclipsing any other record formats, now is an ideal time for government agencies to be even more innovative and swift in progressing to holistic digital preservation and search systems, taking honest looks at the existing troves of agency information and determining how it could be most efficiently delivered to the public.

Another important revelation of the FOIA email cases is sheer volume of data collection that must be undertaken by the government to comply with transparency and records preservation laws in the Internet age. As the massive amounts of email and online communication become part of FOIA’s parameters, the FOIA process may become more like e-discovery, where an entire new specialty has developed around collecting and sifting through the multitudes of emails and Internet data necessary for the discovery process in most court cases. Government agencies may have to develop systems not just for preserving email records, but also for sorting through them and making them publicly accessible in an efficient manner. Looking into the innovations of e-discovery and large-scale database search products may be a logical next step for agencies as they modernize their records management systems.

As CEI continues its FOIA campaign into Jackson’s email accounts, it becomes clear that government agencies must create a more streamlined, efficient systems for electronic communication transparency so that we can more easily satisfy these electronic, Internet-driven FOIA requests and improve government transparency, allowing agencies to dedicate more time and resources to dealing with the substantive regulatory issues.

Sarah Lamdan is an Associate Law Library Professor at CUNY School of Law. She studies and writes about the FOIA and government information access issues and is currently co-authoring a book about environmental information and access decision making.

Suggested citation: Sarah Lamdan, Electronic Communication Should Force FOIA Advancement, JURIST – Academic Commentary, June 9, 2015, http://jurist.org/academic/2015/06/sarah-lamdan-FOIA-requests.