When Gregory S. Kaufman filed a federal Freedom of Information Act request for records he needed for a civil case, the Washington-based Sutherland, Asbill & Brennan attorney never dreamed the government’s response would reach him via an abandoned suitcase found at a thrift shop outside a U.S. Air Force base in Germany.
That was a dozen years ago, Kaufman said. By 2019, such extreme examples of misdirected paper shuffling by the federal bureaucracy could be a thing of the past.
The U.S. government, which has been slow to develop and implement digital systems for storing records in many agencies, is trying to catch up with the private sector.
Under a directive from the Obama administration, all federal agencies must establish systems to store and maintain all government records in electronic formats before the end of the decade. The paper-to-digital transition is intended to better preserve these documents and make them easier to find.
Officials say this is not only a government initiative to make the federal government more accountable and save taxpayers money. It also will help keep the government in line with recent court rulings requiring all parties in court cases to adopt more thorough and up-to-date methods of preserving and managing evidence electronically.
President Barack Obama ordered agencies to more fully commit to a process of switching from paper to electronic records in a Nov. 28, 2011 memorandum. In August 2012, as instructed by president, the federal Office of Management and Budget released a timetable for accomplishing the transition. Under that timetable, by 2017 federal agencies must ensure that all e-mail within their departments be electronically stored. The same must be accomplished for all other electronic records appraised as permanent before the turn of the decade.
Each federal agency also must designate an official to lead this effort by Nov. 15, 2012.
In his 2011 memorandum, Obama identified six areas in which federal agencies must focus their efforts in making the paper-to-digital record switch.
“Supporting agency compliance with applicable legal requirements related to the preservation of information relevant to litigation,” was one of them, the president stated.
Federal agency e-discovery
The handling of e-discovery has been a persistent problem for federal agencies. Record-keeping practices vary from agency to agency and many of these systems remain largely paper-based. Thus the process of complying with requests for discovery often is expensive and time-consuming.
Several recent court cases have highlighted the government’s struggle to comply with the Federal Rules of Civil Procedure that govern e-discovery.
In United States v. Honeywell International, Inc. No. 08-961, the defendant accused the U.S. government of destroying an unknown number of records, including computer hard drives, in a “well-documented tale of recklessness and gross mismanagement in the government’s discovery processes.”
The federal government originally filed suit against Honeywell in 2008 for allegedly selling defective bulletproof vests to the military and law-enforcement agencies.
In March, despite Honeywell’s claims, U.S. Magistrate Judge John M. Facciola of the U.S. District Court of the District of Columbia, found that it would be premature to rule on sanctions against the U.S. Justice Department for allegedly withholding relevant data, producing irrelevant discovery documents and failing to instruct records custodians to put holds on key government records. That’s because the discovery deadline had been extended, Judge Facciola found.
The current deadline is WAS? October 22, according to court records.
In July, U.S. District Judge Shira A. Scheindlin of the Southern District of New York, found that the government had failed to adequately search the files of five agencies that contained responsive documents and did not provide sufficient search terms to the court in National Day Laborer Organizing Network v. U.S. Immigration and Customs Enforcement (ICE) Agency, 10 Civ. 3488.
The case involves a federal ICE program established in 2008 that enables law enforcement authorities to share fingerprints with the federal government for a national database. The plaintiffs, concerned that the government was creating a dragnet for undocumented workers who hadn’t been convicted of crimes, filed suit over the government’s allegedly inadequate response to their federal Freedom of Information Act request.
In her ruling, Judge Scheindlin stated that the federal agencies, including the Department of Homeland Security, had failed to provide affidavits of the results of the FOIA searches that “contain reasonable specificity of detail, rather than merely conclusory statements.”
“For over 20 years, courts have required these affidavits ‘set forth the search terms and the type of search performed,’” Scheindlin wrote. “But somehow DHS, ICE and the FBI have not gotten the message.
“So it bears repetition: The government will not be able to establish the adequacy of its FOIA searches, if it does not record and report the search terms that it used, how it combined them and whether it searched the full text of documents,” Scheindlin continued.
Scheindlin ruled that searches by agencies must be more responsive in answering FOIA requests and that the potential custodians of records being sought must divulge to the court what search terms they used. She also ordered the parties to develop new “targeted searches.”
“FOIA requires the government to respond adequately to requests from the public, and defendants must learn to use 21st century technologies to effectuate congressional intent,” Scheindlin wrote.
Kaufman, the Sutherland lawyer, said Scheindlin gave “fair deference to the government, which gets inundated with requests for information.”
“For me, it’s comforting to see the government being held to standards similar to those required of private litigants,” he said.
However, Kaufman also said the government “has always been very good in finding documents,” in cases in which the government is a party.
FOIA requests in cases in which the government is not involved can be a different matter, Kaufman said, recalling the 1999 incident in which he was informed by a thrift-store employee that an envelope addressed to himthat the FOIA records he had requested had been located in a suitcase at Ramstein Air Base.
“They didn’t know how it got there,” Kaufman said, adding that an electronic system for handling FOIA requests could be a great improvement.
“I’d like to think, if they go digital, and they do it in a well-organized and thoughtful manner, it will be a good thing.
Among other questions to be resolved are how dependent an updated electronic records storage system for the federal government will be on private vendors and whether the required level of dependency raises security issues. Officials insist such concerns are being taken into account.
Constant access demands
Jason R. Baron, director of litigation for the National Archives and Records Administration, said the “entire [paper-to-digital] directive is informed by the understanding that there are constant access demands coming from all quarters.”
Baron said the effort will not completely eliminate paper record-keeping, including NARA’s existing system of storing paper records in a dozen regional centers across the U.S. Among them, is the federal facility in a limestone cave in Lenexa, Kan., where 200,000 boxes of records, including the American Indian Records Repository, are held.
“The directive calls for all permanent records,” said Baron, stressing the last two words, “need to be in electronic form in 2019.” The directive does not say that the government must go paperless by 2019.”
“There will be paper in boxes coming to the National Archives for a very long time beyond 2019,” Baron said.
FOIA requires the government to respond adequately to requests from the public, and defendants must learn to use 21st century technologies to effectuate congressional intent.