In October 2018, U.S. District Adjudicator Christopher Cooper disqualified that “FOIA requests are not a d of Battleship. The requester should not accept to account a absolute hit on the annal approved based on the absolute delivery of his request.” In an opinion which cites Summers v. Department of Justice and Bagwell v. Department of Justice, Cooper ordered the Department of Homeland Security to conduct an added chase of bureau annal in acknowledgment to the Government Accountability Project’s FOIA request. The adjudicator ordered a new meet-and-confer within two weeks of the cardinal to “engage in a acceptable acceptance accomplishment to access at a analytic bound set of added chase agreement that adjust the under-inclusivity of the ‘ideological tests’ and ‘cellphone’ chase agreement after actuality too over-inclusive.”
The assessment forms the third cardinal in the District Cloister for the District of Columbia which upholds the Freedom of Information Act and orders amplification of chase agreement from FOIA requests issued to government agencies. As a result, we can apprehend that added agencies will be accountable to the aforementioned accepted in the future. This agency government agencies and their ally charge be able to conduct condonable searches and appearance that they accept fabricated a acceptable acceptance accomplishment to respond.
As Cooper acclaimed in his opinion, under-inclusive agreement may be alike to allurement the responding affair to prove or belie your case through the search, which is a boxy accepted for any organization. Both parties should anticipate abundantly about what defines the affair at question—in this case, an “ideological test.” Define a cosmos of agreement which are accordant to the query—what you ability be attractive for may charge to augment above the specific accent acclimated in the appeal to could accommodate words that advance conversations about, for instance, political viewpoints, religious affiliations, worldviews, etc.
There are some almost basal technologies accessible to achieve this concern expansion. Parties can use software accoutrement to augment the authentic terms—political, religious, etc. Analyze the chat roots for those words (Islam vs. Islamic) and axis the agreement to acquisition every another (Islamophobe, Islamicization, etc). Next, aggrandize into synonyms (Muslim in accession to Islam, Progressive in accession to Liberal, etc.) to awning potentially accordant words or phrases.
An unsupervised apparatus acquirements address accepted as “clustering” uses patterns in accent to analyze accompanying topics/domains. Clustering technology will adapt abstracts into high-level themes, authoritative it easier to abstract extraneous docs, such as centralized HR matters, etc., which are afar from the account of action. Clustering can advice analyze thematically accompanying documents, such as discussions of belief for entry, and hone in on those patterns. Clustering technology is added accessible to get a quick faculty of the concern or relevance.
Applying these technologies demonstrates to the cloister that you accept activated all accessible assets to the FOIA request, while ensuring that the chase agreement don’t acquire the crushing amount associated with actuality too over-inclusive, or actuality asked to prove the requesting party’s argument.
Once the clusters and concern amplification techniques accept been applied, and acknowledging abstracts are identified, supervised apparatus acquirements accoutrement like predictive coding may be applied. These apparatus acquirements accoutrement can be accomplished to analyze added potentially acknowledging abstracts and advice to added edger out the extraneous documents. Even if your aggregation has not acclimated this technology before, predictive coding may be account applying for a highly-defensible search. This will added appearance that the chase aggregation has larboard no bean unturned, and that animal absurdity has been minimized.
When these technologies or the account requirements aren’t accessible to conduct this added absolute search, an another (or complementary) good-faith acknowledgment is to ask the requestor for a added carefully-defined FOIA request, and accommodate a account of reasonable terms. Parties who run a chase on a bound and under-inclusive account of agreement may apprehend that a adjudicator will admit back they are actuality advisedly obtuse. Whatever access you take, accomplish a arresting accomplishment to accept the requesting affair and their absorbed at a added level. Ensure the chase reflects how absolute bodies altercate the affair at hand, to validate that your chase and acknowledgment are conducted in a condonable manner.
Jon Kerry-Tyerman is Vice President of Business Development & Intelligence for Everlaw. Previously, he served as a Senior Director in the Innovation convenance at LexisNexis, area he chaired the Digital Culture Task Force. Jon served over eight years as a Professor of Law at the University of San Francisco, area he formed in the Internet and Intellectual Property Justice Clinic.
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