If you submit a document request with the Department of State, you might not get a response before you retire. In recent FOIA litigation, the State Department said it would take between 45 and 66 years to complete a public records request for emails to and from former Assistant Secretary of State for European and Eurasian Affairs Victoria Nuland.
Certainly, Nuland, the top diplomat overseeing U.S. policy towards Russia under the Obama administration, must have been a prolific writer. To justify 66 years of review, her inbox would need to put the Library of Alexandria to shame several times over, to make the Library of Congress seem like an exercise in minimalist. Right?
Not exactly. Those 45 to 66 years, the State Department claims, would be devoted to reviewing fewer than 100,000 emails, from which, it says, it is capable of producing only 300 pages a month.
The State Department’s FOIA Fight
That shocking pace of review was revealed in a recent Joint Status Report filed in litigation between Citizens United and the State Department. Citizens United is the conservative nonprofit that successfully challenged limitations on corporate political donations in the landmark Supreme Court case Citizens United v. Federal Election Commission, 558 U.S. 310 (2010). Last October, the group submitted a FOIA request seeking:
All e-mails sent and received by former Assistant Secretary of State for European and Eurasian Affairs Victoria Nuland [from March 1, 2016 through January 25, 2017] … and all telephone message slips and/or telephone message logs for former Assistant Secretary … Nuland.
Nuland served as Assistant Secretary of State from October, 2013 to January, 2017 and was one of the leading voices in the State Department for a more aggressive response to suspected Russian interference in the 2016 election. Some conservative groups have accused her of involvement in opposition research into the Trump campaign. Releasing her emails, Citizens United argues, “will help inform the public regarding various investigations into events involving the 2016 federal elections, and in the coming months as the nation enters its next federal election cycle.”
When the State Department failed to respond to Citizens United's request within the statutory deadline, the group sued. In May, Judge Christopher R. Cooper of the U.S. District Court for the District of Columbia ordered the parties to propose a joint production schedule. But as a subsequent status report reveals, the two parties had very different ideas as to how long such a production should take.
Freedom of Information—At a Snail’s Pace
In the status report, the parties explain that an initial search for potentially responsive documents produced 104,629 results. Further narrowing of the FOIA request reduced that amount by approximately 9,000.
Of the remaining 95,000-or-so emails, the State Department argues that it can process “a minimum of 300 pages a month” and is “unable to commit to a higher processing minimum”.
That is, Citizens United notes, a timeline that could easily take up the better part of a century. Assuming the average email is 1.5 pages long and attachments are 2 pages, the State Department’s rate of production would stretch over 45 years. At 2 pages per email and 5 per attachment, it would take 66. At that pace, the 9,000-document narrowing would shave off five to six years of review.
Now, during the typical document production, whether in litigation or public records requests, a document reviewer typically average about 50 documents per hour. At that rate, a single person should be able to review 300 documents in a day’s work. At State, that day apparently turns into a month.
What causes the delay? A declaration in related litigation lays out the excruciating, and excruciatingly slow, process the State Department takes to public records requests. There, Eric Stein, Director of the Office of Information Programs and Services (IPS), the arm of the State Department responsible for public records requests, explains the agency’s approach to processing documents.
First, IPS tasks department components with searching their files for potentially responsive records. Those records are then sent to IPS for review.
Each potentially responsive document must be ingested, either electronically or by scanning printed material, into IPS’s document review system, known as FREEDOMS 2 (“F2”). Ingestion into F2 takes considerable time because documents must be virus-scanned, unzipped, and in some cases transferred from an unclassified to a secure network.
These days, data “ingestion” can be performed nearly instantly, with technology that automates thousands of steps, from virus scanning to unzipping to OCRing to encrypting. But, for organizations that rely on more outdated approaches, data ingestion can still take days or longer—including, in many discovery processes, shipping data off to vendors (or even "cloud" service providers) and waiting days for it to be uploaded and prepared for review.
But it gets worse. After ingestion:
Each document is then assigned a unique identification number, and an IPS employee manually inputs certain bibliographic data associated with each document, such as the date, to, from, and subject line (if available).
What the Department of State is talking about here is simple Bates stamping and metadata indexing, with federal employees literally typing in fields that are normally contained in the files themselves.
It’s an approach to document production that is simply Kafkaesque.
Now, certainly the State Department has sensitive information to protect, from state secrets to the identities of undercover agents, and documents that could expose that information deserve thorough, considered review.
As such, IPS reviewers give documents “a line-by-line review,” often several times. The review process can involve repeated consultation with State Department personnel, other federal agencies, and third parties. For inexperienced reviewers, the line-by-line review is performed at least one more time, by a senior reviewer. For documents subject to litigation, attorney advisors are brought in to scrutinize the document again. By the end, the affidavit makes clear, it’s possible for a single document to receive four or more levels of review.
All told, the State Department’s approach to FOIA requests would seem at odds with the Act’s goal of helping citizens “know 'what their Government is up to.’”
Citizens United, at least, urged the court to make sure that their FOIA request is completed during their current members’ lifetimes:
Plaintiff has requested 11 months of emails for one individual, and believes that no more than one year should be sufficient for Defendant to review and produce the emails in that time, if it applies a reasonable level of resources to review those emails.
A Better Approach to FOIA Response
We recently declared “an end to FOIA excuses,” noting that the delays and diversions often cited by responding agencies can now be largely alleviated by technology. As Logikcull’s Robert Hilson noted at the time, “Better technology [can] certainly help lessen responding parties' burdens—and hopefully neutralize some common reasons for delay.”
That same technology can also dramatically reduce the difficulties faced by requesting parties, allowing them to quickly get through the thousands of documents dumped, hopefully not after decades, by the other side.
Thankfully, more and more government agencies are adopting efficient approaches to public records requests and document review. Forward-thinking organizations, struggling to balance a surge in public records requests, massive growth in information, and their own limited resources, are increasingly turning to technology to help them meet their obligations effectively, efficiently, and defensibly.
Hopefully, the State Department will join them. Until then, Judge Cooper will allow them to continue at their 300-pages-a-month pace, perhaps all the way through to 2084.
Want to learn more about how government agencies are transforming their approach to FOIA? Join David Billetdeaux, in-house counsel at the Port of Benton, for an upcoming webinar on how to improve response throughput on a budget.
This program is a must-attend for government attorneys, records officers, paralegals, and others tasked with navigating records response. Register here.
