Hi! My name is Daniel Diana and I joined Logikcull’s marketing team as an intern hoping to gain some exposure to the legal field and to further their meaningful mission. I planned to acquire new skills, build great connections, and get a feel for the ‘real world’- but instead I’ve just been sending FOIA requests all summer.
Federal agencies are required by law to produce public records that are appropriately requested. The Freedom of Information Act (FOIA) and its state equivalents require that government records be open to the public, with exceptions for those affecting national security or personal privacy. These laws have become an essential tool of government accountability and have provided a crucial window into the inner workings of our democracy.
Logikcull’s users have long been interested in and involved in FOIA requests, collecting data concerning the government’s decision making, and ensuring that everyone has access to important public information. So we decided to run a test with one overarching goal in mind: to evaluate the effectiveness of every state’s open records systems.
But we weren’t just going to ask state governments for any old random documents. Rather, we put our own spin on it by seeking legal expenditures and, more specifically, eDiscovery payments.
To provide a broader range of responses and shed some light on where your hard-earned taxpayer money goes, we tested both of every state’s Office of the Governor and the state Department of Education.
We requested the same information each time and tested them according to the same four categories:
Each state was rated from one to three for all four sections and an average was taken to determine how they fared in comparison to one another and to what degree they supported their information laws. This way there would be as detailed of a look into their processes as possible—outside of working for a state public records team yourself.
Not to worry though, we aren’t going to make you sift through all that data by yourself—we’ve created a heat map of state public records responses throughout the United States to better visualize our findings. And boy, were we shocked by what we found. Here are five key takeaways from our state open records compliance survey.
If the government declares something to be a ‘law’ does that automatically make it one? Well, sort of. But in reality, “a law is only a law if it is enforced,” as my high school government teacher would say (probably quoting someone famous before him). Coming into the project I assumed that, with a process as official as state government FOIAs, states would act according to the letter of the law. I was fully expecting to receive on-time responses with complete invoices and a fair cost estimate—but that would’ve been too easy.
In 54 percent of the states, one of the two departments never got back to us, and even worse, 20 percent of the states ignored us altogether.
Did some states respond late? Of course. Did some not fully address the request? Yes. But if these were the slight inconveniences, they wouldn’t have made our list.
I wouldn’t discredit the entire system if only a small 10 percent of states failed to respond within the laws’ parameters, getting back to me in the weeks that followed. However, what actually happened was that in 54 percent of the states, one of the two departments never got back to us, and even worse, 20 percent of the states ignored us altogether. Evidently something is missing.
For those states that did respond according to the guidelines—a huge thank you to them—most of their processes lacked uniformity and had too much leeway.
For example, some states were required to answer in three business days, while others had up to ten business days just to make initial contact. Rarely were any of the laws similar. Not that this is necessarily a bad thing, but one must be aware that no two open records systems are exactly the same.
What is questionable are the states whose time requirements are defined as “a reasonable time period.” Since this a vague standard, those departments have the ability to push things off for months and can reply with extremely redacted information that barely covers the request.
Coming into the project we set a reasonable budget for paying for completed invoices and, to keep us honest, each request sought a waiver of fees and to be informed if the costs would exceed one-hundred dollars. To our surprise, we didn’t break the budget, nor were we even remotely close, as a significant majority of states were willing to waive all costs.
Our carefully crafted requests argued that releasing the information would be in the public interest because it would reveal where tax money goes and prove that the government isn’t involved in anything shady.
It was so convincing that of all the states that responded, only four of them attached a price to their invoices. Each of them respected our request to inform us if the price would exceed our limit, and only one of them was unreasonable at over four-hundred dollars for partial production.
To our surprise, we didn’t break the budget, nor were we even remotely close, as a significant majority of states were willing to waive all costs.
States seem to understand the importance of cooperating with citizens and have little interest in making it all about the money. What this means is that there is no harm for submitting a request and, more importantly, that there are decent odds that if you are respectful and acting legitimately in the public’s interest, almost every state will give you a fair shake.
For many government agencies, there are no official guidelines on what to include in an open records request—just suggestions that advise you to be as specific as possible, there should be some kind of form that can be sent to any department with instructions on exactly what to include. This became apparent as soon as states responded, posing clarification questions, demanding formatting preferences, and asking to know more about us.
Here’s how just about every conversation went:
Martha, Records Officer, Office of the Governor: Hi, Mr. Diana. [Quite a few called me Ms.] We were hoping you could specify a bit more of what you were requesting as “any legal expenditures” is far too broad.
Daniel, Intern, Logikcull: Martha, thank you for the timely response to my request. Allow me to specify for you. Under the request section putting forward the specifics of our request, we asked for attorney’s fees, eDiscovery contracts/payments, and costs incurred to resolve legal matters (e.g., settlement payments).
Martha: Daniel, we still need more clarification. Could we set up a time to talk?
Daniel: *now on the Phone* Hello, Martha. Thanks for taking the time to speak with me about my records request.
Martha: We were wondering if you could explain what you are looking for so that we may assist you.
Logikcull: Absolutely! Here’s what I’m looking for *reads off the request section again*
Martha: Excellent! Let me see what legal thinks of this and I’ll get back to you as soon as I can. For the future do X instead.
Every state, and almost every department, requested that, if filing again with their agency, a specific form needs to be attached, there should be fewer paragraphs, the request documents need to be more specific, or that some other tweak that only applicable to that state needs to be made.
This isn’t a denial that the request could’ve been better focused, but rather that one should expect clarification demands and should be prepared to modify their requests for every state. Oh, and they won’t tell you until after you’ve submitted what they want you to include.
I’d like to preface this by giving a disclaimer that this is not how most states will treat your request but that you should be willing to face resistance along the way and potentially deal with some less than helpful people.
With that said, a very small group of states appeared to do all that was within their power to prolong their response, attempt to get the request dropped, or flat out inconvenience us. Their strategies ranged from seeking several extensions all the way to asking for a court ruling to get the request dropped. Yeah, Texas really didn’t want us to see their legal spend.
By the end of things, we were left with two separate denials on the basis that neither office held any records concerning legal expenditures.
Here’s what your average interaction includes: request, confirmation, clarification, final response. Now that’s completely normal. We never expected our request to be perfect and were more than willing to provide details to get as clear an answer as possible. What we weren’t ready for was the wringer that two states in particular felt inclined to put us through.
First, Utah sent me over to their legal team, only after triple checking that I wanted to request from the Office of the Governor. That team then grilled me for a few emails about why our fee waiver was valid, what the information was being used for, and who we were. The legal team then sent me over to the Attorney General’s Office because they didn’t have the information, to which that department said the same thing and advised me to go back to the original sender. By the end of things, we were left with two separate denials on the basis that neither office held any records concerning legal expenditures.
Our next debacle was with Texas and began with separate clarification emails, filing for a few extensions, and attempts to reroute us. The Texas Attorney General didn’t have this information either and told us to apply to the Office of the Governor again, who after more clarification decided they would seek a ruling to withdraw the request due to the sensitivity of the documents. Finally, after a lengthy wait time, they released the partial invoice after appeal and we went our separate ways.
Aside from evaluating the effectiveness of state sunshine laws, we wanted to get a better picture of the eDiscovery landscape at the government level. What we found was that these agencies are very similar to many law firms—in that they are only just beginning to make the transition to modern software. Most states lacked platforms altogether, some had outdated programs, and a fair number of them didn’t even know what I was talking about. And yes, this should scare or at least surprise you.
Still more shocking is the handful of states whose agencies had never heard of eDiscovery and made it very clear that they wouldn’t want to hear more.
Before breaking down the numbers, we’d like to add that during the clarification process a few states admitted to having in-house eDiscovery managed by the Attorney General's Office, but further details were withheld as they could not access the information.
Including those few, there were twelve states that had some form of eDiscovery software, with only around a third of them being common platforms. That use of outdated document review and production tech coupled with lengthy response times means that if you file a request, you had better be prepared to wait it out.
Still more shocking is the handful of states whose agencies had never heard of eDiscovery and made it very clear that they wouldn’t want to hear more. Whatever the case may be, eDiscovery is certainly not a top priority of most state departments and one should be aware of the kinks in the system.
State open records systems are in an incredibly tough position, at the crossroads of public transparency and government privacy. Leaning too far to one side could result in catastrophe from the other.
To that extent, the system has solid groundwork in place that, with some well-directed tweaks, could become the perfect means of information sharing between the people and their leaders.
FOIA was created to give information. It really shouldn’t be that hard then to actually get it.