FOIA Facts: Human Error - The Requestor's FriendBy Scott A. Hodes, Published on November 29, 2003
Fortunately, for those seeking records from the government, humans are responsible for getting those records to requesters. And humans make mistakes. Loads of them!
If a mistake is made and not enough information is provided, administrative appeals or even litigation can usually fix the problem. A requester may have a delay in getting the information, but if the system works properly, the information will be released.
The more interesting errors are those of too much information being released. Most of the time, these disclosure friendly errors are unintended when released by the government, and may often take a bit of work by a requester to discover. An example of this is a recent release by the Department of Justice (“Justice”). Justice released a heavily redacted study (titled, Support for the Department in Conducting an Analysis of Diversity in the Attorney Workplace) done by a consultant (KPMG) concerning diversity within Justice. The release was also posted online. Initial reaction to the release was one of discontent among the FOIA requester community, as the important (and most interesting) parts of the study were heavily redacted pursuant to FOIA exemption 5. One enterprising organization, The Memory Hole, however was a little more computer savvy than others. The Memory Hole was able to lift the redactions off the online document because Justice had not used a computer program that locked the blacked-out portions onto the electronic document. The Memory Hole was able to electronically wash the document, taking out the redactions and then posted the entire document for all to read.
Agency FOIA personnel, like most of the rest of us, are not usually high-tech wizards. Additionally with over two-millions requests made each year, getting requests completed and out the door has become the top priority. Proofing what goes out for quality becomes a secondary concern. All of this is to the benefit of the requesters as many pieces of information that agencies would like to protect are overlooked and released because there simply are not enough bodies to process and review all information sought under the FOIA.
Many times, human error occurs where there is a large amount of requested information. This may be for a number of reasons. These types of requests are often called “projects” or “large-queue” by agencies. In order to process these types of requests in a timely manner, agencies may have more than one person processing or proofing the information. As each individual may process or proof differently, some information that should be protected on the whole may get released. Usually one person has not seen the entire release document and therefore the requester may be the only one who sees the final product.
Additionally, even in small requests, similar information may be on a number of documents. For the processor, seeing the same thing over and over can be quite monotonous. Thus, information protected on one page early in the release package may slip out and be released later on in the same package.
Requesters should carefully review the information released to them. This will enable them to catch any disclosure mistakes may by agency personnel. Additionally, requesters often will have first hand knowledge of the incident/investigation/occurrence which is the subject of their request. This knowledge will likely enable them to know the information redacted, even if no mistakes are made.
Human error is clearly the requester’s friend. Whether it be because an agency is not technically savvy, overworked or just plain bored at looking at similar information on different documents, mistakes happen. Careful analysis of the release package can identify those mistakes and identify information agencies wish they had left protected.