Records Request

Open Records Requests 101

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The History of Records Requests

Many public entities are legally required to disclose information in response to requests from their constituents, media, or other interested parties.  These laws and supporting regulations are enacted to provide transparency into government dealings and to improve accountability of the process.

 The laws are known by many names, including:

  • Freedom of Information
  • Open Records
  • Right-to-Know
  • Sunshine

The first law for open records was the Freedom of the Press Act established in Sweeden in 1766.  Aside from making concrete steps towards abolishing censorship, this early law guaranteed the public access to documents drawn up by the government.

The United States did not officially have an open records law on a national level until 1966 when the Federal Freedom of Information Act (FOIA) was enacted. Many other countries have their versions of open records laws, as do all 50 states. Larger municipalities and counties often fall under the scope of public records requests, as do many universities. Even local school districts can find themselves subject to these requirements in various jurisdictions.

What are Open Records Laws?

Open records laws typically define who can request data from a public entity and often detail how the request should be handled. Responsibilities of the receiving party are also codified in law or regulations.  These obligations often include responding in a timely manner and providing an avenue for an appeal if the requestor is not happy with the response.

A vital piece of the process for the responding party is to identify and disclose documents – unless an exemption applies. FOIA, for example, lists nine exceptions and several exclusions; some states have far more. Most exemptions are related to classified, confidential, or personally identifiable information. The detection of exemptions can be challenging.  If a record or document has not been previously produced, it must be carefully vetted and redacted, if needed, before release.

The Business Challenge with Records Request

One of the most significant difficulties for the responding party is that government entities are often on tight budgets and don’t have enough personnel or specialized tools dedicated to fulfilling these requests. Furthermore, the number of requests is forecasted to increase, as is the volume of information stored in governmental systems. Additionally, entities subject to open records laws often fall under a duty to preserve, which means they cannot legally delete many types of information. Sometimes these constraints are used as an excuse to avoid deleting any data. Compounding the problem, government agencies produce exponentially increasing volumes of data each year– much of which is subject to open records requests – while keeping the same old processes and systems. This further complicates the task of finding information quickly and effectively.

Adding to the challenges, open records requests are often a secondary task that takes staff away from their primary responsibilities. Even if the best tools are in place, turnover, lack of training, or lapsed maintenance can turn pricy solutions into the digital equivalent of a doorstop.

These strained resources make responding in a timely manner problematic, to say the least. The more pressure that is put on the system, the slower a response and the greater the likelihood that mistakes are being made. Data that should be excluded could be inadvertently produced. If searches aren’t well crafted or data repositories are poorly understood, too much or too little data may be generated.

The Solution to Records Request Challenges

Fortunately, there are ways to mitigate some of these adverse factors.  The following steps can help ensure that your approach to records requests is compliant with your jurisdiction as well as realistic to your organization’s workflow.

Step 1: Follow Step-by-Step

Ensure that the process you are using follows the laws regulating open records in your jurisdiction. For example, the Federal Government Office of Information Policy (OIP) in the Department of Justice provides resources and training as well as policy guidance and legal counsel.

Step 2: Plan for Disruption

Planning for disruption within the record retrieval process is an excellent mitigation technique to ensure that you are prepared in the event of an unforeseen request. This includes documenting the steps you take and establishing a communication chain with the requestor or internal resources like IT or Legal. Identify the subject matter experts ahead of time who may need to be consulted for common types of requests. This saves time identifying the correct resource or agency when the clock is ticking.

If the response to your request is appealed or litigated, ensuring the steps you’ve taken are well-defined, tracked, and defensible will help mitigate this risk and make you more confident if called to defend your process.

Step 3: Be Realistic

Review the established process based on real-world experiences with an eye for improvement. Agencies have found success, for example, by proactively releasing certain types of non-sensitive, highly requested data in searchable formats or electronic ‘reading rooms’. In fact, one of the changes in the Federal FOIA Improvement Act of 2016 promoted this exact step – make records publicly available in electronic format if they have been released for multiple FOIA requests. These endeavors have kept the spirit of the law while saving time and effort both for the requestor of data and the people who respond to them.  

Smaller public entities typically don’t have these resources available, but that doesn’t mean they cannot respond quickly and defensibly to requests.  Starting with a solid foundation allows improvements in organizations large and small. Being proactive is essential. The more data you manage and the more requests you have, the more important it is to be prepared.

For the record requests, being proactive is not only an essential step in a good open records process; it becomes critical when you are working with tight deadlines and limited resources. If you know where your data resides, have identified who needs to be involved in a request, what software to use, and most importantly, have your information streamlined and organized, your process will run smoothly.

So, how do we get there? In our next blog post, I will discuss the key questions to ask when identifying data repositories for records request as well as how to utilize your processes, people and tools for a seamless retrieval process. To learn more about quickly responding to records requests, watch this free, on-demand webinar.