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The Freedom of Information Act and Capstone

Authored by Jason R. Baron, IGI co-chair and Of Counsel at Drinker Biddle & Reath

The following is an excerpt of a letter submitted to the National Archives and Records Administration by the IGI in response to a public hearing of the FOIA Advisory Committee to be held at the National Archives McGowan Theatre on October 19th, 2017. Both inside and outside government, the need to take control of email while providing access to critical information (whether for business of FOIA purposes) is only growing more challenging.

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There is a deep connection between improving electronic recordkeeping practices throughout government and improving public access to government records through the mechanism of the Freedom of Information Act (FOIA). Executing on the vision of providing cutting-edge access to government records will mean NARA (and its partners) devoting greater attention to implementing advanced search techniques that allow for the extracting and production of records that are responsive to various types of access requests (including those requests arising in electronic discovery, subpoenas, congressional requests, and FOIA requests). As a corollary, there should be filtering techniques aimed at identifying sensitive content in archival collections including, but not limited to, personally identifiable information (PII).

The need to make reasonable decisions on withholding PII and other sensitive information contained in government records constitutes one of the major bottlenecks to NARA providing more immediate public access to a variety of records, including for example, its vast White House email holdings. Moreover, this problem will only expand across the Executive branch in the years ahead as agency email archives increase in volume.

In response to the December 31, 2016 deadline set out in the Archivist’s 2012 Managing Government Records Directive (M-12-18), over one hundred reporting components to NARA have indicated that they have put a “Capstone” or Capstone-like policy in place, or are planning to do so in FY2017 – surely making this one of the largest email archiving experiments in history. “Capstone” involves permanent retention of designated senior officials’ emails within an agency, and retention of program-related emails of staff outside this designation for at least seven years under General Records Schedule 6.1 or an agency-approved schedule (see, “General Records Schedule 6.1: Email Managed under a Capstone Approach”, available online at https://www.archives.gov/files/records-mgmt/grs/grs06-1.pdf).

By virtue of Capstone’s widespread adoption, email records (with attachments) are going to begin accumulating in astounding volume – likely number into the tens or hundreds of millions in larger agencies in a short period of time. As stated above, under Capstone, all substantive email records of agency staff are preserved for at least seven years, while a much smaller segment of email records from senior officials are preserved forever.

Second, to deal with the new reality of Capstone archives, the FOIA component of agencies should be aware of how legal counsel are meeting their electronic discovery obligations. Ideally, FOIA staff, working with both legal and IT staff, will be able to leverage for FOIA purposes any special software an agency has acquired to perform advanced searches in connection with electronic discovery.

Third, as alluded to above, advanced searches of Capstone archives would ideally include filtering techniques designed to identify and automatically redact “FOIA exempt” information in responsive records. The state-of-the-art in filtering techniques enables practitioners to, for example, easily isolate social security numbers and other PII.

In my experience, few FOIA officers are aware of the full implications of their agency’s adoption of Capstone policies. This is understandable, given that most agencies only recently accelerated their efforts to meet the Managing Government Records Directive’s end of calendar year 2016 deadline. In my view, providing advice on how Capstone policies potentially implicate (and improve) FOIA searching of email, as well as how advanced search techniques can be implemented within FOIA workflows, is all well within the FOIA Advisory Committee’s mandate to provide thought leadership to agencies.