- January 27, 2022
CARES Act provides hope for State & Local Governments’ (Covid-19) FOIA Request Crisis
- By:
- Bill Tolson|
- March 17, 2021
Each state and local government has its own laws about making documents, communications, and other records accessible to the public. There are also separate public records laws for the federal agencies, the District of Columbia, and territories such as Guam, Puerto Rico, and the U.S. Virgin Islands. These laws' names can differ from state to state, but, most refer to them as Freedom of Information Act laws.
Even in the best of times, federal, state, and local governments have faced "challenges" complying with these laws. As the COVID-19 pandemic in the United States took hold in the first quarter of 2020, state and local governments began issuing special rules, in many cases Executive Orders (EOs), to protect citizens against the spread of COVID-19.
As the pandemic grew, many of these EOs have remained in effect for months, causing a slew of lawsuits that question the legality of these Executive Orders.
COVID puts a strain on FOIA request response
A by-product of these Executive Orders and lawsuits is a dramatic increase in citizen-filed freedom of information act (FOIA) requests, citizen information requests for agency documents and email related to the EOs that governors and local officials have issued around COVID response.
State and local jurisdictions have tried to be as responsive as possible, given the current pandemic circumstances. However, many jurisdictions have issued relatively extreme measures, including some agencies essentially telling FOIA requesters, "we're not going to respond to your requests until the pandemic is over."
In October 2020, the Reporters Committee for Freedom of the Press, which provides legal support for journalists, had cataloged more than 130 instances in which state and local officials in 39 states and the District of Columbia cited the pandemic as a reason to curtail access to public records. In each case, COVID-19 was cited as the reason for slowing down or temporarily eliminating FOIA response times.
The standard FOIA process involves government agencies and their employees combing their records/documents/emails, both hardcopy and electronic, for content relevant to each FOIA request. Each state and local government has regulations that specify what content is and is not responsive to a FOIA request, for example, data that includes personal information (PI).
Because of the pandemic, federal, state, and local governments have found themselves unable to react in the timeframe the FOIA laws require - mainly because many/most agency employees have been ordered to work from home. At the same time, many government agencies had not planned for the work from home scenario. Specifically, agencies had not invested in cloud-based centralized archiving platforms that would allow FOIA (and eDiscovery) searches to be conducted remotely.
To address this unexpected challenge, governors and local politicians responded by issuing temporary executive orders to delay the individual FOIA law-mandated response times.
Why would COVID affect governmental FOIA request response?
State and local government agencies have historically taken a decentralized and on-premises-based information management posture. Much of the FOIA-related data resides on on-premises servers, workstations, or individual employee laptops, making it impossible to conduct a centralized search for the requested content. Existing eDiscovery tools that had been implemented for a limited number of users working together in an office are completely unsuitable for multiple agency employees that need to access them remotely. As the CIO of one state we’re working with told us: “Our eDiscovery platform is limited in terms of licensing and resources. We are limited to only a few cases and have a growing backlog of eRecord/FOIA requests. Additionally, our resources must perform eDiscovery in 2 places right now, which also extends the amount of time to process the requests. The teams involved are all remote, which makes coordination of this process cumbersome.” This issue has pushed the response times for FOIA requests to many times the law's requirements. And because response times are lengthening or altogether suspended via executive order, citizens have begun filing lawsuits due to FOIA regulatory non-compliance.
For example, the state of New York FOIA law requires an acknowledgment within five business days and a full response in no more than 20 days. Currently, the New York mean response time is 100 days.
The District of Columbia's FOIA regulation specifies a response time of within 15 business days; however, their actual mean response time is currently 125 days. Currently, not one state or the District of Columbia is meeting their FOIA requirements.
The solution: centralized (cloud-based) information management
State and local governments must get their hands around their legacy and ongoing information to realize several benefits:
- Full and fast response time for FOIA requests, even with a remote workforce
- Much higher employee productivity
- Full and fast eDiscovery response, even with a remote workforce
- Better security and control of sensitive or protected agency information
Centrally archiving and managing agency email and work documents would make all data available to the agency workforce as well as FOIA and eDiscovery administrators quickly. Additionally, by centrally managing all data, expired content could be defensibly disposed of automatically, raising employee productivity and reducing the risk of non-compliance.
On-demand Webinar:
The Beginner's Guide to the Freedom of Information Act (FOIA) and Public Information Act (PIA)
The Cares Act provides assistance/money for state and local government agencies
The federal Coronavirus Relief Fund, also known as the CARES Act, makes funding available to State, Local, and Tribal governments dealing with the impact of the COVID-19 outbreak. The CARES Act only requires that the payments from the Coronavirus Relief Fund only be used to cover expenses that:
- Are necessary expenditures incurred due to the public health emergency with respect to the Coronavirus Disease 2019 (COVID–19.)
- Were not accounted for in the agency budget most recently approved as of March 27, 2020 (the date of enactment of the CARES Act) for the State or government [agency]; and
- Were incurred during the period that begins on March 1, 2020 and ends on December 31, 2021.
The following reasons have been identified as eligible agency IT expenditures:
The need to facilitate compliance with COVID-19-related public health measures, such as to improve telework capabilities for public employees to enable compliance with COVID-19 public health precautions.
Additionally, an argument can be made that because agency staff was forced to work from home due to COVID-19, FOIA response times and related litigation challenges could/should be covered and open up the opportunity to purchase new information management and archiving platforms to help alleviate COVID-caused FOIA and eDiscovery issues.
How Archive360 can help with CARES Act funding
The economic shutdown created by COVID-19 has caused unplanned shortfalls on state and local government budgets. In 2020, Congress passed the CARES Act, which included $150 billion in direct assistance for state, territorial, and tribal governments to ease the financial strain of state and local government spending on pandemic mitigation and response measures.
This aid, known collectively as the Coronavirus Relief Fund, provides each state with a minimum of $1.25 billion. Local governments with a population of at least 500,000 are also eligible for direct payments.
In March of 2021, the federal government passed another pandemic relief measure called the American Rescue Plan Act, giving states and local jurisdictions additional money, spread over several years, to help with the pandemic recovery. Of the approximately $350 billion for fiscal relief, 57 percent is allocated to states and 35 percent to local governments.
Archive360 is working with State and Local Governments throughout the United States to help them leverage available CARES Act and American Rescue Plan Act funds. As a result, these agencies can better support their staff and citizens by improving their eDiscovery capabilities and reduce the cost and time required to respond to FOIA requests.
The Archive360 Archive2Azure cloud platform
Archive360 is the world's leader in secure data migration and intelligent information archiving and management. The Archive2Azure PaaS solution is a complete cloud-based information management and archiving solution for both structured and unstructured data installed in the agency's own Azure Cloud tenancy for increased security and functionality, consolidated information management, and fast/legally defensible FOIA and eDiscovery response.
Experts are now suggesting that even when the pandemic is over, many agency employees will continue to work from home at least part-time, so adopting a centralized cloud archive will continue to provide the benefits mentioned above well into the future.
Bill Tolson
Bill is the Vice President of Global Compliance for Archive360. Bill brings more than 29 years of experience with multinational corporations and technology start-ups, including 19-plus years in the archiving, information governance, and eDiscovery markets. Bill is a frequent speaker at legal and information governance industry events and has authored numerous eBooks, articles and blogs.