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Don’t Wait Until You’re Sued To Improve Your FOIA Process

March 20, 2018
government building with Don't Wait Until you're Sued title text overlayed

We recently sat down with Eugene Park, the Deputy Port Attorney for the Port of Oakland, to discuss some of the best practices agencies of all shapes and sizes can employ to lower their risk of litigation. Not only has Eugene undertaken the role of managing the port’s public record requests, but he also oversees records request management throughout the agency as well as an acting counselor to the IT department. In an effort to reduce the port’s backlogs and some of the lawsuits they’d seen in the past few years Eugene decided that they needed to move off the very labor-intensive paper file response system to one that is more streamlined and digital.

Records requests are increasing nationwide as requesters have become more engaged and empowered. This increase in requests has put pressure on agencies to respond in a timely manner or risk public censure, litigation, and potential fines. A recent MuckRock poll found that individual states take anywhere from 14 days (Idaho) on the low end to 95 days (Mississippi) to respond to a public records request. Worse still is the federal government which clocks in at an average response time of 171 days!

These long response times create an environment that’s ripe for litigation. It’s then compounded by the fact that some state public records laws incentivize lawsuits by allowing the prevailing attorney to recover their fees. Some states, like California, don’t even have a statute of limitations on when you could file suit making the threat of litigation even more imminent. Then there are those repeat requesters who have been dubbed “vexatious requesters” for their repetitive and frequent filing of the same requests--- but there’s lots to be said about them so we’ll save that for another post.

All-in-all it was a great chat and Eugene offered up tons of great recommendations on how agencies can increase compliance by simplifying their business processes.  So without further ado, here are some of the great takeaways from the discussion.


Best practices to simplify your agency’s business process to increase compliance.

#1: Don’t be a hoarder.  The vast majority of documents aren’t truly “records” and in actuality they need to be destroyed more often. Records are anything with operational, legal, or archival value – but most documents are not really records – they’re duplicates, convenience copies, temporary notes, etc.  Most agencies have dysfunctional records policies that can lead them to over-save, making them actually lose what’s truly important.

Ways in which you can refine your document retention:

  1. Determine “who’s on first?”: By designating primary keepers of documents, you cut out duplication and over-saving.

  2. Build-in regular spring cleanings: Implement automatic deletion policies (especially for email), thereby forcing folks to affirmatively save what’s truly important.  Limit what paper copies can be kept in storage or in offices/cubicles.

  3. Invest in records management: This also helps you avoid technical debt!  Records management is not glamorous, but will lead to huge time/effort savings once cleaned up.  The same principles apply to electronic as they do to paper records.

#2: Truly communicate with the requester.  Too often agencies treat their requests the same way they treat requests in the discovery process of litigation. In a litigation discovery process, once a request is made you cannot communicate with the requester. But for a public records request is just the opposite.

Not communicating with the requester or even worse, brushing them off or delaying their request without notifying them as to why, are the easiest ways to open your agency up to a lawsuit. The vast majority of the time people sue because they feel ignored, not because particular documents are being withheld. The easiest way to keep the communication flowing between the agency and the requester is through public records software like ours where all communication is centralized in one-place and can be referenced when needed via an audit trail.

Ways to open-up the lines of communication:

  1. Preventative care: Calling the requester often saves hours of work on the back-end. Calling also seems to be inversely related to litigation risk.
  2. Serve the meal in courses: Consider rolling productions, which requesters really appreciate.  This will also help dynamically tailor the scope of the request.

Are you more of an audio-learner? Listen to the podcast recording here.

If your agency is looking for ways to be more compliant or for ways to help manage your ever-growing number of requests let's chat! Email