Posted: Feb. 8, 2011 | Tags: Shira A. Sheindlin
We will see how long it lasts in higher courts, but a federal district judge in New York seems to have struck a huge blow for common sense when it comes to how federal agencies respond to Freedom of Information Act requests for electronic records.
U.S. District Judge Shira A. Scheindlin ruled last week that the Immigration and Customs Enforcement Agency and other federal agencies had wrongly turned over information in unsearchable PDF files.
Yes, that is the sound of thousands of journalists rejoicing and many public officials weeping. But the death of PDFs — especially ones that can’t be searched, or ones that don’t even let you cut and paste text or that contain tables of information that can’t be reformatted easily — would be a great thing for government transparency and openness.
Photo by Don Hogan Charles, The New York Times
Scheindlin in her office in Lower Manhattan in October 2003.
In the New York case The National Day Laborer Organizing Network sued ICE and other agencies to get access to records regarding the much-ballyhooed Secure Communities program, under which the federal government contracts with local law enforcement agencies to provide access to fingerprints and other information about people suspected of violating immigration law.
For anyone who’s dealt with ICE, as we have at the Investigative Reporting Workshop, things went in a familiar manner. The initial FOIA requests, made a year ago, were substantively ignored. In April, a suit was filed to compel the agencies to turn over the records. Some documents were released in August, September and October, and more records were turned over in January just ahead of a court hearing.
But, and again this won’t surprise anyone who has tried to get data from ICE and other federal agencies, just getting the documents didn’t end the struggle to make them useful. The plaintiffs complained to the judge, “the data was produced in unsearchable PDF format.” The agencies did this even though last summer the groups bringing the suit specifically asked for “Excel documents in Excel file format and not as PDF screen shots.”
Since 1996, the federal Freedom of Information Act has said that agencies “shall provide the record in any form or format requested by the person if the record is readily reproducible by the agency in that form or format.” That seems plain enough language, although it frequently is ignored by federal agencies in their FOIA responses.
The judge noted there is little case law on this point, but that the cases that have addressed the issue have done it in a clear manner: The agencies have to provide the requested format if they have the technical capability to do so.
Judge Scheindlin, a Clinton appointee who’s been on the federal bench since 1994, is regarded as an expert on electronic discovery issues, having written three books on the subject.
Using that background, she looked at the issue not just in FOIA terms, but also in context of federal discovery rules, which permit the requester to specify a format to be used in providing documents. While the party turning over the records can object, it still must provide documents and records in a “reasonably usable form.”
An advisory committee that helped draft those discovery rules said that option “does not mean (the responder) is free to convert (electronically stored information) from the form in which it is normally maintained to a different form that makes it more difficult or burdensome for the requesting party to use the information efficiently.”
The bottom line: The judge told ICE and the other agencies that they hadn’t met either their FOIA or their discovery obligation in this case.
The plaintiffs in the New York case also sought “metadata,” which is information about a file, such as the date it was created, the date it was modified and other information. Judge Sheindlin could find no federal case directly addressing this issue, but she did cite several state FOIA cases that have held metadata is part of an electronic record and must be turned over. She, therefore, ruled that “metadata maintained by the agency as part of an electronic record is presumptively producible under FOIA” unless the agency technically can’t provide it.
All in all, this is a good ruling for openness. But it’s likely the federal agencies will appeal the decision, so stay tuned.
Here’s a link to the decision (and, yes, ironically, this file is in PDF format).