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The ins and outs of the e-FOI process
1. The ins and outs of the e-FOI process
Dan Michaluk
September 26, 2013
2. Outline
• Electronically stored information
• FOI and e-FOI compared
• Handling database requests
• Handling e-mail requests
• The privacy problem
2
3. I’m not selling the e-FOI process today.
Paper processing can work well. This
is to open options, which may lead to
efficiencies, reduce risks and reduce
disputes.
4. Electronically stored information
• The data you see is the
data you get
• Hard to organize
• We manually index or
code and link to each
record by identification
number
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8. Electronically stored information
• ESI has dimensions
8
Metadata describes
various attributes of
information objects
and gives them
meaning, context,
and organization.
9. FOI and e-FOI compared
Custodians
“search”
Custodians
copy
Coordinator
reviews
Coordinator
indexes
Coordinator
“prepares”
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11. FOI and e-FOI compared
Coordinator
collects
Coordinator
“processes” for
responsiveness
Coordinator
imports to
review tool
Coordinator tags
and redacts for
exemptions
Coordinator
produces
electronically
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12. FOI and e-FOI compared
• Positive
• You have greater control over search and retrieval
• You’ll have access to metadata and searchable text
• No more double or triple printing
• Limit
• With unstructured data (e.g., e-mails), you can’t
avoid a record-by-record review
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13. FOI and e-FOI compared
• But it’s likely your choice
• Requester’s may make the “fox guarding the
henhouse” argument
• See, for example, MO-2634
• Order suggests that institutions and custodians
should be trusted absent a reason to mistrust
• Advice – be the benign skeptic, and never, never
say you’ve found all the e-mails
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15. Database requests
• Producing an “export” at point in time – usually
“CSV” or “Tab Delimited”
• Common disputes
• Fee and feasibility disputes – TPS case from 2009
• Identifiably disputes – see PO-3232 from July 2013
• Exemption of fields – see PO-3017 from Dec 2011
• Third-party disputes – see MO-2985 from June 2013
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16. Database requests
• The limited definition of record
• You have to create a record nowadays, unless the
information resides in your head (see M33)
• But there two (extraordinary) limits
• Not capable of production by means… “normally
used by the institution”
• “the process of producing [the record] would
unreasonably interfere with the operations of an
institution.”
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17. Database requests
• Toronto Police Services (Ontario CA, 2009)
• Confirms a duty to export and mask identity
• If you can do it with means “normally used” you must
do it subject to “unreasonable interference”
• Still a question about whether the required use of
hardware and software not “normally used” is a
basis for declining to answer (though it is clear if you
don’t have normal use of the expertise you are clear)
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18. Database requests
• Order PO-2752 from January 2009
• Example of the “unreasonable interference limit”
• OTIS request for data in “linkable” form
• 1,377.50 hours of work
• By specialized staff
• Legitimate security concerns
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19. Database requests
• Tips on fee and feasibility issues
• Build a relationship with IT
• Build a basic understanding of technical concepts
• Be very skeptical of large fees and claims that “it
can’t be done”
• Consider using an outside contractor to deal with
real operational concerns (chargeable at 100%)
• Provide detailed evidence to the IPC in an affidavit
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20. Database requests
• Gombu (Divisional Court, 2002)
• Database of electronic campaign contribution data
• Most of the information was already public, but in
physical form
• IPC finds and unjustified invasion on the balance
• Divisional Court - Production of electronic
information not reasonably associated with any
greater risk of misuse
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21. Database requests
• The notification problem
• What if the requester wants identifying information?
• Head’s duty mandatory – reason to believe might
(and SCC says give notice in Merck)
• Necessary, but costly and unfunded
• This will lead institutions to deny access
• IPC may bear the burden of notification on appeal,
as in PO-3017
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22. E-mail requests
• The problems with e-mail
• There are duplicates and near duplicates
• Search is expensive because they are unorganized
• Review for exemptions is unfunded, very time
consuming and very difficult to automate
• There is an interest in e-mails not stored “actively” –
i.e. in archive (good), on tape (bad) or
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23. E-mail requests
• MO-2154
• Requester asks for e-FOI, asks for deleted e-mails
• IPC denies cost of acquiring hardware
• Affirms $12,500 for fees to outside vendor
• Shows – requesters can get what they ask for
• Shows – use of outside vendors can be legitimate
• See also MO-2764 (also some evidence that
outsourcing was reasonable)
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24. E-mail requests
• Deleted e-mails and e-mails on backup
• Go back and talk to the requester about cost
• Talk about duplication in active storage
• Backup is probably a more cost effective alternative
to restoring deleted e-mails in most cases
• Identify the number of backup tapes from the event
to the date of the request
• Let’s go to the first tape before the story hit the news
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25. E-mail requests
• PO-3050
• In general, an access request for emails does not
require a routine search of backup tapes for deleted
emails unless there is a reason to assume that such
a search is required, based on evidence that
responsive records may have been deleted or lost.
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26. E-mail requests
• Text messages
• They are records subject to the two limits
• They can be logged and logs are easy to deal with
• If not logged, they may be stored on phones
• Can be exported from phones, but the process is
awkward given how people use text message
services
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27. The privacy problem
• R v Cole
• Establishes a limited ( “not entirely eliminated”)
expectation of privacy
• If there is personal use there will always be a privacy
issue, regardless of policy
• Employers can act reasonably for a legitimate
purpose
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28. The privacy problem
• Policy prescriptions
• Policy can’t eliminate privacy but can help
• Prepare your public sector employees for e-FOI!
• Tell them that the choice to engage in personal use
on a work system comes with a sacrifice
• Give an express warning about e-FOI
• Also warn – work is done on our system unless
pursuant to a reasonable BYOD policy
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30. The ins and outs of the e-FOI process
Dan Michaluk
September 26, 2013
Notes de l'éditeur
Here's an outline of the presentationExcitedResource to our firm for the last five years or so on e-discoveryHow do we deal with production in civil litigation given the massive volumes of ESI now held by companiesThis is a problem that is truly threatening the viability of civil ligationAlways watching FOI and was interested in how the FOI process was doing pretty well -less adversarial -good IPC decisions -knowledgeable FOI administrators!
So I don't want to screw anything upI'm not suggesting you change your process overnightIf your process is working, greatBut I hope to give a little insight into e-FOI issuesI have a sense they are highly relevantAnd I hope you can take any insights that you derive from this presentation and apply them to your FOI process -more efficient process -with fewer unanticipated costs -and fewer unnecessary disputes
We have to start by discussing what ESI isThink about paper-all the data and information is on the page-think about receiving a big stack of paper like this-you have to do significant work to understand what the stack means -often you'll do this by putting the docs in date order -but that may not be ideal – might make more sense to organize by custodian -or, even better, it might make sense to organize by issue-lots of manual data processing here-once we've got the paper in some order we have to create a manual index -pull data outagain -can be hard because many documents have no standard form -doc name -doc date -author-paper is pretty inferior really
ESI is different – it has dimensions
There's the layer of data – subject matter of the filePicture = image you seeMusic file = the music you listen to
And then there's metadataData separate from the subject matter of the fileSee here
Here's a good definition of metadata that I pulled from a Cornell UniversityIt describes the data… gives it meaning… context and (most importantly for our purposes) organizationESI comes with fairly standard descriptors -file name -author -last modifiedManual indexing is not required, and you have a set of data you can organize and re-organize -you want chronological, arrange by a data metadata field -want a different view, maybe by person, sort by author -or interested in an issue, conduct a word searchIt's all there… that's ESIIt's great really – when you take that e-mail and print it you "degrade" the record – you strip out useful data and you're left with something less useableProblem, of course, is that our volumes have quadrupled, but we're stuck with that whether we process paper or not
Now let's compare and contrast the two processesHere's a traditional FOI processReceive request and interpret itSend search instructions to custodians-custodians keep control over the receptacle in which responsive records sit-field filter based on instructions… risk point rightCustodians apply the search by copying records (paper, forwarded e-mails)-neither are very good copies of the actual recordYou review the documents for responsiveness, exemptionsIndex them, manually record (create a tiff image)Prepare them
Move to electronic processing-make the point that I'm not making this up-this is something called the EDRM-a staged model for discovery-A few things about the model I should point out -It contemplates a process in which ESI is never converted to paper – zero degradation -It recognizes that this is a problem of volume = upward slope relevance, also upward slope in understanding -Arrows back and forth – iterative process
Here's the translation into your FOI worldYou collect, perhaps with IT's help – collect the receptacle or a very broadly defined subset of the receptacle-entire e-mail container file (.pst)-entire hard driveYou process for responsiveness-take all the receptacles, dump them in together-process-remove duplicates (if appropriate)-assess responsiveness-left with a smaller data setImport to a review tool-piece of software that allows you to work with the records – access pro, summation-tag and redact-usually working with tiffs or pdfs for redaction, but can be linked to the native file4. Produce electronically, no copies
Here's a comparison: -your control increases -you can instruction your custodians to search and produce electronically, but often you simply take groups of docs -handling of the records improves because you're using metadata to organize rather than manually indexingThe limit for FOI-In civil litigation you're really looking for relevance and privilege-lots of people are advocating for fully automated processing to reduce the cost of manual review-I don't know how to do that for FOI-There are fifteen exemptions and numerous exclusions in FIPPA -And section 10 says you've got to sever reasonably-Your job is just harder!-Need a good review tool and the time spent reviewing (all unchangeable right now) is going to be significant, even in an e-process-A good tool will facilitate review -Group similar records -If you need to produce duplicates you can at least group them -Some tools help you manage e-mail threats
So you can think about the pros and cons of an e-processThe IPC will likely give you the choice of using any reasonable processSee MO-2634Requester seeking nine specific e-mails sent and received by an employee who claims he never sent and received such e-mailsNo love lost between the requester and the municipal institutionNice search process set out by the senior employee himself (he was an IT administrator) [field-filtering though electronic]Error in spelling a name, but the City re-searched and provided another affidavitReasonable search upheld despite challenge to the independence of the employee who conducted the search[Note there is apparently a US case by a now famous e-discovery judge named ShiraScheindlin in which she suggests that field filtering is somehow irresponsible. Not a practical view.]
Go to two types of requests – database requests and e-mail requestsDatabases = structured data (easy to deal with)E-mail = unstructured data (a nightmare)Screenshot from some data journalism work done by Glen McGregor of the Ottawa CitizenHuge data dump of parking ticket data from City of Ottawa from which he created all these piecesIncluding a piece on the parking officer who has issued far far more tickets than his colleagues – the "Ticket Master"
In theory at least, these request should be pretty easy to deal withJournalists will say this – what's the problem, just export it to diskWe do see disputes though… listed the kinds of database disputes hereI'll discuss the first and fourth in more detail, so will touch on bullets two and three briefly herePO-3232 involves a recent Carleton University case involving access to student grades – Glen McGregor request -example of when a requester says I don't want to know who these people are -institution says all these people will be identifiable -Carleton lost this one… seems like it was reaching pretty far actually -Citizen did publish articles critical of the University's existence and use of external legal counselPO-3017 one I was involved in -database of lottery winners -security sensitive information -nice… structured… 65,000 records but dealing arguing about a one page schematicMO-2985 case about a third-party database software provider claiming that its proprietary intersts would be affected by the disclosure… mostly unsucessful
There are limits – main point is that they are extraordinaryTwo limits… can rely on either of them…
Toronto police serviceAbout a request that involves a technique for masking identityAbout the "normally used" limitSeems like the police had bad evidenceOwn affidavit suggested that replacing identifiers was possibleDecisions suggest that TPS position was that process was ineffective and costlyEnd up – can do it with what's normally used you must do it
This case was going through at the same timeExceeded because the Police adduced better evidence of unreasonable interferenceIt is extreme…-OTIS = offender tracking information system
The first three bullets are about a similar ideaReally important to develop a good relationship with ITSpeak their languageDon't accept their resistance at face valueBe a benign skeptic…If you do not you'll get into a fee and feasibility dispute and loseWatched a talk given by Glen McGregor on YouTubeTells a story of a federal ministry who started with a $400,000 fee estimate that was eventually reduced to $40There was a similar debacle that happened with an Ontario school board in the last yearI know why these happenIT doesn't want to do the work, doesn't feel it its job and tries to trick the person who's askingDon't let that happen…-developing a computer program chargeable at 60 an hour-costs in an invoice from an outside vendor are chargeable at 100%….-provide good evidence, from the technical person-there is a great case … can't recall institution (best) It person swore an affidavit and obviously thought he could trick the IPC-called out for that
Then there are database requests for personal informationHere's one
Recollection hazy = but may have been 8,000 affected individuals
E-mail is hardHere's why…-very important that institutions be given the opportunity to transfer reasonable costs-one thing I question is whether that review time (perhaps capped at a fixed rate) needs to be funded
This illustrates one tactic you can use to deal with a large requestRequester led with a broad request -asked for centralized search -asked for deleted e-mailsDriven to outsource -frankly any request for deleted e-mails will do that -need a forensic expertise -may use the "normally used limit" to deal with that (not aware of case law)Here the institution outsources and generates a large but particularized fee (which it proves) -upheldThink you need to have some basis for outsourcing, not the only option, but a basisI've done this -ask twice to narrow -got an estimate -presented the estimate -requester never proceeded
This is greatA request for e-mails includes e-mails stored everywhere – active and non-active formsReasonable search requirement does not require you to go to backups and other sources of inactive dataGreatEven if the requester tells you – right to be the receive the fruits of a reasonable search, not a right to control your search..But, beware of missing e-mails