“A popular government, without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy; or, perhaps both.”
– James Madison, 1832
Discovery is the key legal mechanism for compelling corporations, or private individuals, to hand over information. Sometimes we aren’t seeing information from private actors, but from the Government and other public bodies, like schools and universities. This is where Freedom of Information (FOI) legislation comes in. This legislation (such as the federal Freedom of Information Act in the USA) permits individuals to request Government information, as a right.
As a previous government employee responsible for responding to these requests, I am familiar with the laborious manual methods generally used. In this article I look at how ediscovery techniques could be used to make this process considerably more efficient.
While FOI legislation differs in its specifics in different countries, there are some general observations we can make about the difference between this legislation and discovery.
– Discovery can only be sought against a party to legal proceedings. A FOI request can be submitted to any public body to which the legislation applies;
-Discovery requires ‘relevance’ or a similar criterion. FOI requests can be for any information held by the public body, unless a specific exception applies. There are nine exceptions in the United States: classified information for national defense or foreign policy, internal personnel rules and practices, information that is exempt under other laws, trade secrets and confidential business information, inter-agency or intra-agency memoranda or letters that are protected by legal privileges, personnel and medical files, law enforcement records or information, information concerning bank supervision, geological and geophysical information;
-Discovery has a temporal limitation. Discovery must occur at a prescribed time, pre-trial. An FOI request can be made at any time.
Potential advantages include:
-Elimination of duplicates and identification of near-duplicates;
-Automatic classification of documents according to the ‘scope’ of the request. If a request asks only for Cabinet papers, for example, then it will need to screen out any documents (which may have similar titles) that were not destined for cabinet;
-Sorting for documents according to the nine exceptions to release, using predictive coding.
-Automatic application of ‘redactions’ of any information that is not to be released.
For further information on adopting ediscovery processes for FOI requests, see a 2018 Report from the Freedom of Information Act Federal Advisory Committee.
Manual processes for discovery are costly and liable to significant human error: So too with FOI requests. Applying ediscovery techniques will result in a more efficient and comprehensive response for requesters. Also – spare a thought for your federal bureaucrat: Using predictive coding sure beats the heck out of taping pieces of paper onto your documents to make a redaction (yes, that is actually how we used to do it until quite recently).