Breaking News - Judge Scheindlin Withdraws Orders re Metadata Production in FOIA litigation
Judge Scheindlin has withdrawn her landmark opinions ordering the federal government to produce several categories of metadata in response to a FOIA request. See National Day Laborer Organizing Network v. United States Immigration and Customs Enforcement Agency (S.D.N.Y.
Federal Directive Hits Two Birds (RIM and eDiscovery) with One Stone
The eagerly awaited Directive from The Office of Management and Budget (OMB) and The National Archives and Records Administration (NARA) was released at the end of August. In an attempt to go behind the scenes, we’ve asked the Project Management Office (PMO) and the Chief Records Officer for the NARA to respond to a few key questions. We know that the Presidential Mandate was the impetus for the agency self-assessments that were submitted to NARA. Now that NARA and the OMB have distilled those reports, what are the biggest challenges on a go forward basis for the government regarding record keeping, information governance and eDiscovery? “In each of those areas, the biggest challenge that can be identified is the rapid emergence and deployment of technology. Technology has changed the way Federal agencies carry out their missions and create the records required to document that activity. It has also changed the dynamics in records management. In the past, agencies would maintain central file rooms where records were stored and managed. Now, with distributed computing networks, records are likely to be in a multitude of electronic formats, on a variety of servers, and exist as multiple copies. Records management practices need to move forward to solve that challenge. If done right, good records management (especially of electronic records) can also be of great help in providing a solid foundation for applying best practices in other areas, including in eDiscovery, FOIA, as well as in all aspects of information governance.” What is the biggest action item from the Directive for agencies to take away? “The Directive creates a framework for records management in the 21 st century that emphasizes the primacy of electronic information and directs agencies to being transforming their current process to identify and capture electronic records. One milestone is that by 2016, agencies must be managing their email in an electronically accessible format (with tools that make this possible, not printing out emails to paper). Agencies should begin planning for the transition, where appropriate, from paper-based records management process to those that preserve records in an electronic format. The Directive also calls on agencies to designate a Senior Agency Official (SAO) for Records Management by November 15, 2012. The SAO is intended to raise the profile of records management in an agency to ensure that each agency commits the resources necessary to carry out the rest of the goals in the Directive. A meeting of SAOs is to be held at the National Archives with the Archivist of the United States convening the meeting by the end of this year. Details about that meeting will be distributed by NARA soon.” Does the Directive holistically address information governance for the agencies, or is it likely that agencies will continue to deploy different technology even within their own departments? “In general, as long as agencies are properly managing their records, it does not matter what technologies they are using. However, one of the drivers behind the issuance of the Memorandum and the Directive was identifying ways in which agencies can reduce costs while still meeting all of their records management requirements. The Directive specifies actions (see A3, A4, A5, and B2) in which NARA and agencies can work together to identify effective solutions that can be shared.” Finally, although FOIA requests have increased and the backlog has decreased, how will litigation and FOIA intersecting in the next say 5 years? We know from the retracted decision in NDLON that metadata still remains an issue for the government…are we getting to a point where records created electronically will be able to be produced electronically as a matter of course for FOIA litigation/requests? “In general, an important feature of the Directive is that the Federal government’s record information – most of which is in electronic format – stays in electronic format. Therefore, all of the inherent benefits will remain as well – i.e., metadata being retained, easier and speedier searches to locate records, and efficiencies in compilation, reproduction, transmission, and reduction in the cost of producing the requested information. This all would be expected to have an impact in improving the ability of federal agencies to respond to FOIA requests by producing records in electronic formats.” Fun Fact- Is NARA really saving every tweet produced? “Actually, the Library of Congress is the agency that is preserving Twitter. NARA is interested in only preserving those tweets that a) were made or received in the course of government business and b) appraised to have permanent value. We talked about this on our Records Express blog.” “We think President Barack Obama said it best when he made the following comment on November 28, 2011: “The current federal records management system is based on an outdated approach involving paper and filing cabinets. Today’s action will move the process into the digital age so the American public can have access to clear and accurate information about the decisions and actions of the Federal Government.” Paul Wester, Chief Records Officer at the National Archives, has stated that this Directive is very exciting for the Federal Records Management community. In our lifetime none of us has experienced the attention to the challenges that we encounter every day in managing our records management programs like we are now. These are very exciting times to be a records manager in the Federal government. Full implementation of the Directive by the end of this decade will take a lot of hard work, but the government will be better off for doing this and we will be better able to serve the public.” Special thanks to NARA for the ongoing dialogue that is key to transparent government and the effective practice of eDiscovery, Freedom Of Information Act requests, records management and thought leadership in the government sector. Stay tuned as we continue to cover these crucial issues for the government as they wrestle with important information governance challenges.