In the three RMSAs where this question has appeared, there has been a slight variation in the percentage of respondents who use e-discovery tools to search for records responsive to a FOIA request. This variation is likely due to the number of respondents subject to FOIA. In the 2020 RMSA, with 266 respondents to this question who were subject to FOIA, 72 percent answered “yes.” In 2022, with 253 respondents subject to FOIA, 75 percent of respondents subject to FOIA answered “yes.” In 2024, with 269 respondents subject to FOIA, 74 percent answered “yes.” Unlike in previous years, no comments stated that they did not know what e-discovery is.

Q55. If yes: Which of the following applies?

This question asked agencies that use e-discovery how they obtain the licenses and received 194 responses. Over half (57.2 percent) reported that the FOIA office is using existing licenses or tools from other offices. Over 14 percent (14.4 percent) reported that the FOIA office purchased its own office-specific tools. Over a quarter of the respondents (26.8 percent) selected “other” and provided an explanation, and 1.5 percent did not know. Since this question applied only to respondents who answered yes to Q54, there were no respondents for whom this was not applicable.

Table 1: Selected data from 2024 RMSA “Other, please explain,” Responses to Question 55: for agencies that use e-discovery tools to search for records when responding to FOIA requests and/or Legal Discovery “Which of the following applies?”

Q56. If No: Why are e-discovery tools not used to search for records? (Choose all that apply)

The question asking for reasons why e-discovery is not used to search for records got a total of 58 responses in the 2024 RMSA. This question, repeated from the 2020 and 2022 RMSAs, allowed respondents to select more than one choice. The most common reason, selected by 48 percent (48.3 percent) of respondents, was that the e-discovery tools are not available at their agency. Almost 40 percent (39.7 percent) of respondents responded that “cost” was a reason they did not use e-discovery tools. A small number of respondents (3.4 percent) reported that they did not use e-discovery tools because of a “limited number of licenses available;” 31 percent of respondents selected “other” with an explanation; and 10 percent of respondents did not know.

In comparing responses to this question from the 2020 RMSA and the 2022 RMSA, the data appears to indicate that many respondents who do not use e-discovery tools have gained an awareness of the tools. Notably, unlike in previous years, no respondent commented on not knowing what e-discovery was. The trend across the three RMSAs where this question has appeared is the decline in the percentage of respondents who selected “other.” In the 2020 RMSA, 56 percent of respondents selected “other, please explain,” dropping to 37 percent on the 2022 RMSA, and falling further to 31 percent on this year's RMSA.

As shown in Table 2, the “Other, please be specific” comments in the most recent RMSA show that many agencies that do not currently use e-discovery tools either do not need them because they receive so few FOIA requests so as to make e-discovery tools unnecessary or they are working to establish this technology at their agency. Of the 18 respondents who gave an explanation, seven of them (39 percent) cited the small size of their agency or small number of FOIA requests as a reason for not using e-discovery tools.

Table 2: Selected Data from 2024 RMSA “Other, please explain,” Responses to Question 56 “Why are ediscovery tools not used to search for records. (Choose all that apply)”

Observations

The data indicates that e-discovery tools are widely used across government agencies to conduct FOIA searches, a situation which has held steady for the past four years. Seventy-two percent of respondents reported using e-discovery for FOIA on the 2020 RMSA, 73 percent of respondents reported doing so on the 2022 RMSA, and 73.6 percent reported using them on the 2024 RMSA.

Many of the FOIA offices that use e-discovery (57.2 percent) cooperate with other offices in their agencies to share software licenses. The percentage of respondents who reported using e-discovery for FOIA searches shows minimal variation across the RMSAs from 2020, 2022 and 2024.

Records Retention Schedules and FOIA

By law, all federal records must be covered by a NARA-approved records schedule,^[2] and agencies must not destroy records until they are approved for destruction on an approved records schedule. (44 U.S.C. § 3314). An approved records schedule is a legal authority that identifies and allows for disposal of a federal agency's records. When NARA approves a records schedule, it considers how long a type of record will be valuable to determine whether those records have enough value to warrant permanent preservation or how long they should be retained before being destroyed. (44 U.S.C. §§ 3303 and 3303a.) Only records that do not appear to have sufficient administrative, legal, research or other value can be destroyed after a retention period laid out in a records schedule.

Implementing a records schedule is mandatory for legal compliance and good records management. Doing so saves taxpayer money by authorizing the destruction of records that are not needed, minimizes the risk that records with privacy or other protected information are accidentally released, and prevents premature or delayed destruction of records.^[3] However, if an agency retains a record past its approved records schedule, the agency must process the record if it is responsive to a FOIA request. In such a case, the agency must retain it through the entire FOIA process, including appeals and litigation, before being able to dispose of the record.

Q57. Has your agency found records responsive to FOIA requests that had already met their approved retention period (i.e., the records should have already been disposed of under your agency’s NARA-approved records schedules)?

This question received 277 responses. Over 46 percent (46.6 percent) of respondents reported finding records responsive to a FOIA request that were beyond their retention period. Over 36 percent (36.5 percent) of respondents reported not finding records that had surpassed their retention period. Seventeen percent of respondents did not know.

Observations

This data points to an issue with records management: specifically, the need to dispose of records once they meet their retention period. For a FOIA program, reviewing records that have surpassed their retention period adds to the volume of records the FOIA processor has to review and could slow down processing time and add to delays, creating inefficiencies. NARA’s approval of a records schedule is an official determination of how long records are valuable, and retaining records past that time could burden an agency when faced with FOIA requests, in addition to the cost of storing records. Solid records management practices are the foundation for a strong FOIA program. It is therefore vital that agencies follow their records disposition schedules closely.

Agency Records Officers and Chief FOIA Officers

OGIS has long been interested in the relationship between Agency Records Officers (AROs), and Chief FOIA Officers (CFOs), who are mandated by statute to ensure compliance with the FRA and FOIA, respectively. AROs are senior officials within each agency whose responsibilities include oversight of records management, and CFOs are senior officials within each agency whose responsibilities include “efficient and appropriate compliance” with FOIA and recommending FOIA improvements to the head of the agency.

Q58. Which of the following describes the working relationship between the Agency Records Officer and the Chief FOIA Officer?

This question asked respondents to describe the working relationship between the ARO and CFO at their agency by choosing all statements that applied. The question about the relationship between the two is repeated from the 2020, 2021 and 2022 RMSAs. Additionally, the 2017 RMSA asked how closely the ARO and the CFO worked together.

For the 2024 RMSA, this question had 268 respondents who were subject to FOIA. Since respondents were able to select all applicable answers, the responses will not add up to 100 percent.

The responses in the 2024 RMSA include: 37 percent said that the ARO and CFO coordinate search terms to identify responsive records; 42 percent reported that the two work together to identify programs or offices most likely to have responsive records; 43 percent reported that the two work together on high-profile or complex FOIA requests; 36 percent reported providing training on records management and FOIA to each other's staff; 37 percent reported providing training programs on the importance and relationship between FOIA and records management; 24 percent responded “Other, please explain;” and 9 percent answered, “None of the above.” Additionally, 7 percent of respondents reported that the ARO and the CFO are the same person.

Looking at the responses over several years’ worth of RMSAs where this question has appeared shows two main trends. First, the responses that are consistent over several years are that the ARO and CFO coordinate search terms to identify responsive records and that the two work together on high-profile or complex FOIA requests. Second, there is a downward trend in training. Both training options (provide training on records management and FOIA to each other's staff and provide training programs on the importance and relationship between FOIA and records management) have been selected by fewer respondents in each of the past three times this question has appeared on the RMSA.

The 2020 RMSA did not include a selection choice for agencies where the ARO and the CFO are the same person. This was a frequent explanation given in response to “other,” and was included in subsequent RMSAs. The 2024 RMSA left off the selection choice for working together on IT requirements that benefit both programs.

Observations

OGIS finds it encouraging that CFOs and AROs continue to coordinate search terms to identify responsive records and that at many agencies the two work together on high-profile or complex FOIA requests. Nevertheless, the results also point to room for improving cross-training for FOIA and records management (RM) staffs.

FOIA Training for Agency Records Officers and Records Management Staff

The FOIA statute requires agencies’ CFOs, subject to the authority of the head of the agency, to offer training to agency staff regarding their responsibilities under FOIA (5 U.S.C. § 552(j)(2)(F)), and there has been renewed interest in FOIA training for non-FOIA professionals. The FOIA Advisory Committee has issued two recommendations regarding training: one recommending that NARA and OIP create training modules mainly directed at FOIA officers and FOIA Public Liaisons that include records management (2020-04); and another recommendation seeking FOIA training for all agency staff (2024-04). Recommendation 2024-04 states that “the Department of Justice Office of Information Policy (OIP) should issue guidance to all Chief FOIA Officers outlining the minimum requirements for training to agency staff, including non-FOIA professionals.” The Department of Justice Office of Information Policy subsequently issued guidance on FOIA training and the role of the CFO.^[4]

Q59. As the Agency Records Officer (or records management staff), have you received FOIA training?

This question, which asked if the ARO or records management (RM) staff received FOIA training, was repeated from the 2019 RMSA. It received 277 responses in 2024. 

The majority of respondents (81.3 percent) said that their ARO or RM staff have received some FOIA training, either formal or informal. Forty-five percent of respondents said that their ARO or RM staff received formal FOIA training such as online training or in-person instructor-led training. Thirty-nine percent of respondents said that they received informal FOIA training such as a briefing or as part of their agency’s employee orientation process. Eighteen percent of respondents said that their ARO or RM staff did not receive any FOIA training. An additional one percent responded, “do not know.” (Percentages are rounded and may not equal 100 percent.)