If you had to pick just one marker as an indicator of public records request complexity, total time spent might be it.
Simple requests fit a simple description: they’re clear on what’s being sought; they’re easily handled within a logical, efficient system; and responsive documents are easy to find and provide. Many factors, alone and in combination, can lead to requests taking many hours – sometimes over weeks or months – to resolve. These are the primary hallmarks of time-consuming requests:
- Routine but labor-intensive — such as requests for all emails over a year that touch on a specific project
- Unclear/ambiguous parameters
- Prompted by large-scale/disruptive events
- Require special management and intensive involvement of personnel — can be different combos of staff, managers, legal support, and even elected leaders
We’ll discuss each of these factors below in more detail – and some in the context of other index markers. We’ll also discuss the role of customer-service orientation in responding to public records requests. The degree to which jurisdictions go beyond what’s legally required in dealing with requesters is a choice each jurisdiction or agency makes for itself, but we’ll give you some input on how extra effort can transform the government-citizen relationship and ultimately save time.
Routine but time-consuming requests
These are run-of-the-mill records requests (no lack of clarity, no controversies, no special management issues) that just require a lot of time and effort to complete. Depending on state law, jurisdictions may be able to recover costs to provide responses above and beyond a minimal charge for record copying. These are some of the main reasons routine requests can become time sinks:
- records must be collected from many different sources;
- they involve significant and/or diverse paper records – including those that are past retention dates and should have previously been disposed of;
- require extensive review and/or redaction time (e.g. audio and video records; numerous emails that may be attorney-client privileged, were forwarded many times by many individuals, and contain attachments that also have to be reviewed);
- repeat/vexatious requesters;
- requests are to inspect rather than receive copies of records – these can involve collecting extensive records in a location where the requester can look through them under supervision.
Some real-world insights on how these factors play out comes through the Washington State Legislature Joint Legislative Audit and Review Committee’s 2019 survey to jurisdictions on public records request metrics, including total time spent on requests:
- A small library district operating 23 libraries spent 525 hours on 19 requests, reporting: “Most requests are completed within a few days. We had 1 large request where many people were working on it for several months full time.”
- The State Department of Transportation spent on average almost 19 hours per request, commenting: “This metric is influenced by the large volume of responsive records for a significant percentage of the requests, combined with the time-consuming nature of redacting exempt information…”
- The State Board of Industrial Insurance Appeals reported: “The substantial increase in incredibly broad/voluminous requests which require a broad search effort result in much more staff time than typical to review all search results to identify responsive records, potential exemptions, etc.”
How jurisdictions can treat requests that are variously termed “repeat,” “vexatious,” “unduly burdensome,” or “harassing” depends largely on what state law provides. Federal law defines “unduly burdensome” requests under FOIA, but that doesn’t apply to state and local governments. Any of the Washington State situations described above, and others reported in the JLARC data, may have in fact been vexatious or unduly burdensome, but Washington State has no provisions at all for managing such requests. It’s possible that JLARC’s work, which was mandated by state law starting in 2018, was aimed at beginning to get a handle on how to deal with vexatious requests. On the other end of the spectrum, Texas law has an entire code section “Requests That Require Large Amounts of Employee or Personnel Time” allowing jurisdictions to severely limit time spent on requests.
Lack of Clarity
Unclear requests leave you scratching your head over what requesters are after. They often lead you to wonder “what is this requestor really concerned about?” rather than what records they want. We’ll address unclear requests in detail under the number of clarification emails generated marker, but a practice that can really pay off to short-circuit unclear requests and save hours of unproductive time on requests is to consider whether the requester really wants documents at all – or whether what they really want is information.
Looking through citizens’ eyes, it’s easy to see how the dividing lines between information, records and documents get blurred. Most people have at least heard of the federal Freedom of Information Act and making FOIA requests, and this terminology can get generalized to mean any kind of records or information from any government. This confusion gets reinforced across all kinds of media, so people don’t know they can get lots of information without asking for or getting actual records. Or they may want electronic or paper records but don’t really know what in what form they exist or how to ask for them.
For example, people may see a local government construction project underway in their neighborhood and want to know what it is and how it might affect them – or maybe they already perceive it as a problem. Savvy governments often anticipate questions and add a contact name and info to signage posted at the site. But especially if a requester is unhappy and has gotten input from other sources, inquiries can snowball into complex records requests – such as all “project records including design drawings, engineer-stamped plans, consultant contracts, etc.” – you get the picture.
If you think a requester has a concern or just wants information, a phone call – rather than immediately starting to gather documents requesters don’t actually want – can work wonders. As the public records coordinator for the Oregon Higher Education Coordinating Commission Reported in a 2019 survey of public records activities, of nine requests received “[two]…were originally stated as public records requests but were deemed to not be… but simply information requests on agency activities.”
It’s a question of customer service – which we’ll further address below – but a call from public records staff may well come as a welcome surprise to a requester. Especially in the last few decades, government workers have been labeled unresponsive and uncaring, and taking the initiative to reach out contravenes this attitude and helps cooperation grow in the place of wariness. As a V.A. Med Center manager puts it here, reaching out says “Being in the government doesn’t mean that we are ‘other.'” As the icing on the cake, you might find that what presented as a complex, onerous records request simply goes away – replaced by a chat between the requester and a neighborhood project manager and maybe adding the requester to the project mailing list. Initiating contact like this can help citizens feel that they are equipped with information they can use rather than like they need to gather documents as ammunition for a battle.
Widespread Disruptive Events
None of us needs reminding that the seismic events of 2020 changed the world – including the world of public records requests.
People struggled to understand who – if anyone – had answers in the face of what felt like a stream of chaos stream turning the world upside down – and all while we were essentially confined to our homes.
The PIRRIndex indicates that after mid-2020 the hours spent on public records requests tripled on a per-request basis – from one hour, roughly averaged, to nearly three hours in quarter 3 2020, and almost 3.7 hours in quarter 4. While we can guess that Covid-19 and the George Floyd killing and aftermath meant that public health and law enforcement agencies were hit with increases in requests, they may also have been hit with requests that took them much, much more time to respond to – possibly because they had to spend a lot of time redacting personal data from health care and police body cam videos, and because requests they received were very large.
In addition, the pandemic lockdowns created blockades to records for some agencies — where physical access to records systems and collaborators was cut off, limited, or delayed.
Agencies may also have to spend more time figuring out what data they are and aren’t able to disclose. In early 2021, The Mackinac Center Legal Foundation filed suit on behalf of a journalist against the Michigan Dept. of Health and Human Services (MDHHS) for denying a request for records related to Covid-19 deaths in December 2020 – journalist requested a spreadsheet with dates of individual deaths, the week in December each death was added to the state’s official tally, the age and race of each deceased person, and location/address of where the person had been infected and/or died. Michigan law exempts personal or individually identifiable health information, as defined by federal law, from disclosure, and the plaintiff’s request was partially denied on the basis that the information could be used to identify individuals.
The plaintiff claimed “To the extent that this spreadsheet represents any information originally contained by a vital record, it would be practically impossible to associate this aggregated and anonymized data with any particular [individual’s] vital record.” But how could anyone be sure of that, given the capabilities of existing technologies, not to mention future ones? As of mid-March 2021, the Washington State Legislature is on the way to passing HB 1127, which recognizes the power of technology to manipulate Covid-19 data and restricts how data provided by jurisdictions can be used — exempting some data from being provided at all.
And the big, impactful events just keep on coming. Frigid temperatures, ice and snow hit large swathes of the U.S. in February 2021, wreaking havoc especially on Texas’s power grid. As of March 11, 2021, ERCOT (Electric Reliability Council of Texas), which manages about 90 percent of the state’s electric power, had posted this notice on its website:
“NOTICE: Due to the energy emergency events, response times to pending and newly received information requests will be delayed beyond the [10-day state law requirement]….ERCOT has received an inordinately large number of requests and has limited staff availability and resources to address them. As conditions improve, ERCOT will work through the information requests and provide the requestor with an update and expected date that information may be made available in accordance with the exceptions described below.”
“There are going to be a bunch of people out there seeking information from the electric grid operator.” Despite ERCOT’s online notice that it will seek to fulfill public records records, however belatedly, ERCOT has asked the Texas attorney general to rule that it is not subject to public records laws because it is technically a nonprofit.
Special Management Needed
Most of us who deal with public records requests would be dismayed to see this advice for requesters online:
“Asking for the same information from multiple agencies can help speed up the process—if one agency is stalling, for example, or maybe even legitimately doesn’t have access to the data, you can circumvent them without having to start over from scratch.”
While it’s hard to imagine how making identical requests to multiple agencies at the same government could “speed up the process,” it’s easy to see multiple scenarios for how it could involve hours and hours of personnel time.
A major benefit of a public-facing records request system like GovQA is that it guides people to make requests efficiently and effectively for both their needs and the government’s; but intentionally or unintentionally, requesters do try to bypass these centralized systems.
If multiple agencies at the same government discover they’ve received the same request, they’ll often have to spend time detangling a mess it’s already created, then designate a coordinator to act as a single point of contact to interact with the requester and the involved agencies to ensure the jurisdiction overall has thoroughly searched for responsive documents, otherwise complied with legal requirements, and documented its efforts.
GovQA automatically flags similar requests — bringing these to the attention of all assigned users in the system. This is especially helpful for decentralized governments.
As the City of Kennewick reports in the 2019 JLARC data, this request management time is often “lost”: “While we attempt to account for time spent actively working on requests, it’s difficult to capture time spent conversing about requests with colleagues, researching related records, meeting in teams to discuss requests, etc.” Echoes Chelan County: “I don’t feel like the time was adequately recorded…numerous employees…spend countless hours on these requests…These employees take their work home in order to meet deadlines.”
GovQA’s invoicing and payments module does allow users to log time and generate reports (as well as estimates, invoices, and receipts) against that data.
If a request relates to a sensitive or controversial issue such as a lawsuit that involves staff, managers, legal teams, or even elected officials and their staff, the time can burgeon out of control. The City of Spokane when reporting to JLARC, on its 2019 total hours spent, stated that “Of the estimated 24,369 hours; 8,000 hours are attributable to one public records request…related to a matter involved in significant litigation.” Eight thousand hours is the equivalent of four full-time employees for a year.
The role of customer service
We’re used to applying the concept of customer service to government functions like water or electric utilities. It’s less common to see the records request and provision process from this perspective. And while it can add time and effort upfront; it can yield big benefits and end up saving time overall.
While technology has given us amazing mechanisms to facilitate making and processing public records requests, we’ve seen, especially during the time of Covid-19, that not all citizens have access, ability, or even the desire to use online tools and systems. This is why governments provide multiple pathways for making requests – through the front end of an online system like GovQA, via email, snail mail, or in person (many jurisdictions require requests to be in writing and some allow them to be phoned in) and expect every request to be treated with the same respect and diligence.
Best Practice Note: Agency staff can enter requests which originate outside the intake portal (such as with in-person requests, as well as faxed, emailed, texted, and telephoned requests) into the GovQA system themselves — gaining the benefits of tracking and workflow management for every request (not just those entered via the public portal intake online form).
Here’s an example of how a customer service approach could affect the overall time it takes to process a request. This question and answer appeared in a “Frequently Asked Questions About the Public Records Act” article posted on the website westerncity.com, serving California:
“[Q]: A person requesting records from our department got very angry when we told him we didn’t have those records and that he would have to submit his request to another department in the city. He claimed that he should not have to go to another department and that our department should provide him with the requested records. Were we wrong to refer him to a different department?
“[A.] No. The PRA [California’s Public Records Act] obligates a local agency to supply those disclosable records that are in the agency’s ‘possession.’ Nothing in the law requires ‘one-stop shopping,’ nor may it be practical given the fact that not all city departments maintain all city records. Staff should, if possible, refer the requester to the proper holder of the records..”
So the law may not require “one-stop shopping,” but in the process of communicating with the requester, the staff person would have had to invest the time anyway to understand what the requester wanted.
Let’s say that instead of telling the requester to start over and contact the correct department the request handler offered to “bridge” with his/her counterparts in the right department to facilitate transferring the request. In taking this customer service-oriented approach, the handler is going above and beyond, hopefully impressing the requester and preventing anger and frustration – which we all know represents real costs to governments. The staff person may also have saved time for the jurisdiction overall by doing a colleague-to-colleague communication (or “translation,” which is sometimes necessary) of the request and letting the right department know of any issues or sensitivities that came up during the contact.
Note: this government-to-government hand-off could be automatic or, at the very least, greatly streamlined using GovQA’s Interagency, Subrequest, or Exchange Request features, depending on the agency’s configured workflows.
Back for a moment to our point about not all requesters being able to or comfortable with directly accessing an online system for requesting, communicating on, and receiving documents. Since these citizen’s requests are likely to take more time than those who are able to seamlessly mesh with online systems, interacting with “old school” requesters in a way that works for them is a customer service decision for governments to weigh up. How much time are they willing and able to spend to not just meet legal requirements but show requesters the process is accessible to everyone? It’s an aspect of the equity/growing inequity issues between Covid-19, the George Floyd killing, and political protests, that 2020 put squarely in the spotlight.
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.
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