From quarter 4 2020 to Q1 2021 and Q1 2021 to Q2, the number of clarification emails sent between jurisdictions and requesters shot up by 100% in each quarter. That’s compared to increases of 9.2% and 8.8% in the total numbers of requests between the same quarters, indicating that requests may be getting significantly harder to decipher as they’re initially submitted.
Navigating the vague and complex
“‘I am seeking all records referenced in an article that was in the newspaper last week about your organization.’
‘I would like a copy of my ______ (note: it really is just an empty space in the request)’
Have you ever seen a request like this – a request that makes you scratch your head and think ‘how am I going to respond to that?'”
– From a WA State Municipal Research Services Council (MRSC ) article on handling vague and complex public records requests
Washington State is fortunate to have the MRSC – a nonprofit organization created and funded by state law – that provides free legal, finance and policy guidance to WA towns and cities, counties, state agencies, and special purpose districts.
In its article, MRSC describes two different approaches – one for handling vague requests like those above, and one for “complex” requests such as “please provide all emails sent by your department in the last two years” or “please provide any and all records related to the 10th Street project.”
But what’s the line between a request that’s vague and one that’s complex?
Let’s take the “complex” request “Please provide any and all records related to the 10th Street Project.” MRSC counsels:
“Begin with baby steps in responding to these requests. Ask yourself the following questions: where does it make sense to start? What stuff is easy to gather? What stuff is going to take more time to find? What parts are easier to produce with fewer redactions? What’s more labor intensive? Once you have looked at these questions, you can begin to plan your strategy for gathering and producing records in an efficient way.”
But had MRSC considered this a vague request, its advice for a first step would be:
“It is always a good idea to communicate with the requestor rather than proceeding with your search without making sure, to the best of your ability, that you’re gathering the records being sought.”
What motivates requesters?
Seeking clarification from requesters can give guidance that’s more critical than what records are being sought. Sometimes records are not really what people want at all – they want information. As one e-Discovery service provider puts it “Communicate with the requester to narrow requests down to exactly what they want, because taken literally, public records requests could encompass hundreds of thousands of documents—and no one wants that.”
No one, apparently including some people that ask for just that in the first place. In a 2018 article the American Bar Association described how Snohomish County, Washington received a request from a “Mr. Public Requestor” seeking all public records of any kind from all county-owned smartphones.
Under the MRSC’s definition, this would be a “complex” request. The County’s public records officer created enough of a strategy to estimate that it would take 12,000 hours to complete, and started gathering the records. After 935 hours, Mr. Public Requestor said “never mind,” walking away from the request and wasting $30,000 in staff time. Data from the WA State Legislature’s Joint Legislative Audit and Review Committee shows that in 2019 over 15% of records requests made to the WA State AG’s Office and over 25% of requests made to the Department of Corrections were abandoned (many other agencies also had high abandonment rates).
Requesters don’t generally have to state why they are making requests (there are exceptions such as the State of Illinois, where they must state if they are requesting information for commercial purposes). But with requests rapidly increasing in complexity and getting more costly to process, being able to get more information about who is asking and why is an invaluable tool for narrowing the scope of requests or even turning potentially huge records requests into short information exchanges. Seeking clarification on requests can be the key to making connections with requesters that can short-circuit vague and complex requests.
A state audit recommends digging deeper
In 2016, the WA State Auditor’s Office issued a performance audit report on how records requests were affecting state agencies and local governments. Originally, the legislature had requested the audit because the state did not have an explicit method for charging requesters for copies of electronic documents provided. As Auditor staff delved in, they learned that a per-page electronic document cost was the least of the concerns jurisdictions were up against under increasingly challenging circumstances and public records laws that had not kept pace. The report cites these examples of complex requests:
“In 2015, the City of Kirkland received requests for:
- All records that related to a City Council member without a limit, no matter the location or device containing the record. (It took the city 160 business days to complete this request).
- All written material produced by all volunteers working for the city from January 1, 2013, to the present. (The request specifically asked for the records to be provided in electronic format with original metadata. As of July 2016, the city had already spent 285 business days fulfilling this request and more work remains to fully satisfy it).
- “In 2014, the Washington State Patrol received a request for all dash camera videos not involved in litigation. The requester asked that the Patrol upload the videos to YouTube. The Patrol has estimated this request would take 563 years to fulfill.”
The WA audit outlines how some states deal with the increasing number of broad and complex requests through public records law provisions that “permit a nuanced consideration of the nature of the request and the requester” – such as Illinois’s public records law that provides differently for responding to voluminous, recurrent, commercial, and unduly burdensome requests/requestors.
Outside of legal provisions, the WA Auditor “identified practical actions state and local governments can consider taking to efficiently manage and provide public records without compromising their core business.” Their top recommendation? “Communicate with requesters thoughtfully and as needed.”
Communicating strategically on requests
At first glance, these hypothetical requests seem to be asking for the same or very similar things:
From requester Bob Jones at 123 First Ave.: “All information about the road project taking place at the corner of 2nd Ave. and Oak Street.”
From Sally James, Esq., at James and Phelps, Attorneys At Law: “Please provide any and all copies of any records, including plans, notes, emails, photographs, analyses, and reports created between July 1, 2018 and the date of this letter, on the Princes County 2nd and Oak Culvert Replacement Project located at approximately 211 Oak St. Please notify me if you anticipate that costs that would be incurred to complete this request will exceed $100.”
Looking at these purely from the standpoint of fulfilling records requests, clarification technically isn’t required – the requests could be fulfilled without it (although some states place limits on fulfillment of requests like staff time spent). However, seeking clarification to find out more about who is asking for the records and why could well allow you to reduce the scope of the requests while better meeting the requester’s needs.
On the first request “All information about the road project taking place at the corner of 2nd Ave. and Oak Street.”), from the requester’s address and the project address it could be inferred the requester is a citizen living near the project and he might want to know more about it or have a complaint.
The chances are good he doesn’t really want every document your agency has on the project – particularly since it is very difficult for people to piece together a story out of three boxes of random files that happen to touch on a project in some way.
As is common, he may be apprehensive about approaching government and doesn’t know how to ask for what he wants. People seek guidance on search engines, social media, etc., and end up taking an approach that isn’t designed to get what they’re really after – or they read or hear something about governments being “lazy” or trying to conceal info – for example this from an article by a journalist about how to make PRRs: “Then there are agencies that try to scare you away by suggesting that fulfilling a request will take a ridiculously long time. Unfortunately, this tactic is not unique to Illinois…the agency initially claimed it would take 542 days to comply with my request. Once I explained how they could more easily do the work, 542 days turned into three.”
You also don’t have to limit clarification questions to requesters. You could contact the project manager, who may already know the requester through site visits or public meetings and provide some useful direction (the project manager will then also have a heads-up before being formally asked to start gathering any documents).
Based on the project manager’s input, you could then contact the requester – if for no other reason than to try to get a date range on the requested documents. But very often, with requests like these, the requesters want information (not records) and connection (a chance to express thoughts or concerns). If information and the chance to connect is really what they’re after, you could facilitate a phone call between the project manager and the requester that completely resolved the request – no documents needed. A ten-minute phone call with a citizen, including perhaps adding them to the project email list, is far preferable to countless hours of record collecting, reviewing and copying.
And even though the attorney’s request doesn’t need clarification, making a personal connection could reveal critical information. Is there a claim or lawsuit in the offing? Is it possible the timeframe of interest for the documents is really shorter than was initially requested? Does your agency’s attorney need to be made aware (sometimes records requests related to ongoing litigation are made, in which case the attorney would need to decide if the request could proceed or not).
Exceed requester expectations while saving time and costs
Whether a requester is a disgruntled citizen, attorney, media or other organization rep, it’s often the case that they are expecting a “worst-case scenario” – i.e. they think they’re going to have trouble getting what they want, so they over-ask. Getting a personal clarification contact is almost always a welcome surprise that paves the way for the real issue to be identified and dealt with more efficiently and effectively than just proceeding with a request as it’s first presented.
A final example of a request ripe for clarifying with the requester (made to the State of Vermont in March 2020):
“Any and all directives, orders, plans and communications issued to officials and managerial staff within facilities under the jurisdiction of this agency, as well as those provided to individuals under the supervision of this agency, regarding preparatory or responsive measures and requirements related to COVID-19, also known as coronavirus. Please include as responsive any relevant plans and directives issued regarding inmate health, behavior, and participation in preparatory and defensive activities, including those conducted by the correctional industry program.”
As the WA Auditor put it “Good communication practices can generally improve the requester’s experience, reduce unnecessary delays, and potentially avoid disputes and unnecessary costs.”
We’ve observed that increasing clarification questions to requesters may well be a good thing. Returning to the 100% increase quarter-on-quarter increase in clarification emails mentioned at the outset, GovQA’s time-saving features like requester self-service and Attachment Search with OCR (not sure how you might actually want to phrase some time-saving features) may freeing records request managers up to do more request clarification than they would have otherwise been able to do – which ultimately saves even more time over the life of the request.
THE ONLY INDEX QUANTIFYING FOIA FOR STATE AND LOCAL GOVERNMENT
Managing Requests for Public Records is Getting Harder.
Now There's PROOF.
The Peers in Public Records Newsletter (formerly FOIA News) is a bi-monthly e-newsletter brought to you by GovQA. It is a collection of the latest trends in public record requests and government transparency initiatives, shared stories, live roundtables, informative case studies, and actionable knowledge that will help you calm the chaos and keep your organization compliant. Send your comments to email@example.com.
Subscribe to the Peers in Public Records Newsletter
© Copyright 2021. PiPRIndex. All rights reserved.