FOIA Update: Printed vs. Electronic Records

As we reported in connection with a recent column analyzing the possible legal and ethical implications of email exchanges among Ann Arbor city councilmembers, The Chronicle requested additional email records from the city.

Our purpose in requesting additional records was to explore more fully the workings of the city council as reflected in emailed communications – and to compare that with the public deliberations at the council table. That public discourse is something we already describe in a fair amount of detail in our meeting reports.

The request was for a substantial amount of material, dating back to the launch of this publication in September 2008. We provided a voluntary extension to the city of two weeks – beyond the three weeks within which an agency is required to comply with a Freedom of Information Act request. That extension ended last Friday.

On Friday we picked up the email records and paid for them (around $380 total). The records had been printed out, in some parts redacted with a black pen, then photocopied. The Chronicle’s contention is that we are legally entitled to copies of the electronic files – appropriately redacted.

We will be pursuing  the dual paths of (i) convincing the city to provide the requested records in electronic form, and (ii) working – more slowly than we could with the electronic files – with the printed material we have to explore topics like the 601 S. Forest brownfield vote, the arguments for postponing the City Place PUD, plus how and why specific committee assignments on city council were made for the current round of appointments.

In this updater, we’ll confine our focus to laying out some of the technology issues surrounding electronic versus printed records.

What the FOIA Law Says

When a government agency complies with a Freedom of Information Act request, it must do so within certain constraints. Some of these constraints are there to prevent agencies from creating a de facto denial of access to information by raising economic barriers. In relevant part the FOIA law states:

(3) In calculating the cost of labor incurred in duplication and mailing and the cost of examination, review, separation, and deletion under subsection (1), a public body may not charge more than the hourly wage of the lowest paid public body employee capable of retrieving the information necessary to comply with a request under this act. Fees shall be uniform and not dependent upon the identity of the requesting person. A public body shall utilize the most economical means available for making copies of public records. [emphasis added] A fee shall not be charged for the cost of search, examination, review, and the deletion and separation of exempt from nonexempt information as provided in section 14 unless failure to charge a fee would result in unreasonably high costs to the public body because of the nature of the request in the particular instance, and the public body specifically identifies the nature of these unreasonably high costs. A public body shall establish and publish procedures and guidelines to implement this subsection.

To The Chronicle’s knowledge, the city of Ann Arbor has not published procedures and guidelines as required by the FOIA law. What we understand of the city’s policies in this regard comes from verbal conversations with the city attorney, Stephen Postema, together with the physical items provided by the city in response to our request.

In the first conversation with Postema, he raised the specter of charging The Chronicle as much as $25,000 in order to comply with our request – which included records of emails among councilmembers and staff for the days on which the city council met dating back to September 2008. In subsequent conversations, he clarified that he had meant to associate that figure with what it would have cost to undertake a full “disaster recovery” of all deleted files – something we had not requested.

In calculating the charges to The Chronicle, Postema said, the city was construing each of the meeting dates as separate requests. That worked out to The Chronicle’s benefit, he explained, because it was the city’s policy not to charge for the first four hours of labor associated with examination, review, and redaction associated with a FOIA request. That means that for each date on which email records were requested, the city allotted four hours of labor that it did not charge to The Chronicle.

It appears that the practical outcome of this policy was that The Chronicle was charged only for the cost of photocopies.

Electronic Format for Requested Records

Because the records we requested were stored in electronic format, that is the format we explicitly requested from the very start and in every subsequent communication we had with the city. It is The Chronicle’s position that the city of Ann Arbor is required to produce those records in their original electronic format.

Benefits of Electronic Format

Independently of legal requirements, there  are clear benefits to both the city and to The Chronicle (and its readers) for the city to provide records in electronic format.

• Reduced Material Cost: The cost of a single CD-ROM is lower than several thousand sheets of paper, many of which bear an admonition to “Think Green!” and to print out the the email only if necessary.
• Reduced Time Cost: The time required for copying electronic files is less than a process that entails first printing, then redacting, then photocopying again (presumably two copies – if someone else were to request the same records, it would not be efficient to undertake the same redaction).
• Improved Accuracy and Convenience in Use: If the records are provided in electronic form, then copying and pasting from the records themselves helps ensure accuracy in re-publication of the information. If paper documents are provided, there’s a step in converting printed text (back) to digital text where errors can creep in. It’s also more convenient. Finding material among the records is more convenient with electronic documents because of the machine-searchability of electronic text.
• Improved Accuracy and Convenience in Compliance: If redaction  is undertaken using an electronic editor on electronic files, it’s easier for the person doing the redaction – any material that appears multiple times can be deleted “all in one go.” Quality control of digital redaction is also easier than when undertaken electronically. For example, running a simple “diff” analysis on redacted versus original files would allow a reviewer to focus just on the redacted material to ensure that whatever had been deleted really met the criteria for redaction under FOIA.

Case Law on Format

While there are strong practical benefits to provision of documents in electronic format, a practical benefit does not rise to the level of a legal requirement. For that The Chronicle bases its contention that the city is required to provide the records in their original format on a 15-year-old lawsuit brought against the city of Ann Arbor. From the court records of the case.

In the fall of 1993, Plaintiff, Jon Zeeff, made a Freedom of Information Act (“FOIA”) request to Defendant, City of Ann Arbor, for current data used to produce “Traffic Condition Section Condition Reports” and “Property Information” reports. Defendant offered to provide Mr. Zeeff paper copies of the Traffic Condition Section Condition Reports and microfiche copies of the Property Information reports. Mr. Zeeff, however, requested that the data be provided to him in computer format. [Emphasis added.] Defendant declined to provide the data in the desired format. and Plaintiff initiated this action to compel its production. Defendant motions for Summary Disposition pursuant to MCR 2.116(C)(8) and (C)(10). Plaintiff responds and requests that the Court render judgment in his favor pursuant to MCR 2.116(I)(2). At a hearing held on February 23, 1994, the Court granted judgment in favor of Plaintiff as to his request for the data to produce the Traffic Condition Section Condition Reports. [Emphasis added.]

The records were ordered to be released and attorney fees of $25,000 were awarded.

The City’s Position on Electronic Documents

In conversations with The Chronicle, the Ann Arbor city attorney has taken the position that the Zeeff case does not apply because it did not involve redaction. He cited concerns that if electronic data were redacted electronically, the redacted material could be recovered through data forensics by the requester.

Based on conversations with coworkers at the Workantile Exchange, plus affiliates with the University of Michigan College of Enginering Computer Science department –  a PhD student,  an assistant professor, and a full professor – the risks of inadvertently providing electronically redacted material to a FOIA requester can be dealt with in a straightforward way.

First, it’s important to recognize the real risk of electronically editing a document, copying that document electronically and inadvertently providing to a FOIA requester a history of the changes undertaken. In ordinary, non-FOIA circumstances, provision of a document’s previous editing history is sometimes not inadvertent, but intentional – many Chronicle readers will no doubt be familiar with MS Word’s “track changes” functionality.

But email records are not as inherently complex as MS Word documents are. They can be reduced in straightforward fashion to a simple “text file” – a file that contains just the characters you see on the screen, with no fancy fonts or underlines, or any other “word processing” features. The text format used for storage of email files is commonly mbox.

Using a simple text editor, redaction of any material meeting the criteria under FOIA can be replaced with something like “[Redacted]“.  For its plain text editing needs, The Chronicle uses TextWrangler, which is available free.

For the sake of argument, let’s say the file  FOIAfile.txt is stored on drive C. If the plain text edits are undertaken to FOIAfile.txt and saved to drive C, and drive C is handed over to the FOIA requester, then there’s still some risk that the redacted information could leak to the requester.

How? When a file is saved, the computer file system could reallocate where exactly the file’s data is physically stored on the disk, so that the parts of the old version of the file could still be lying around on the disk somewhere. That is, the “redacted” data would be on the disk, just not labeled by the file system as part of the file. But because it would still be there, it could be read – though reading it would require tools somewhat more sophisticated than a text editor like TextWrangler.

That’s why it’s important that the files be saved to a different file system – like a newly formatted CD. By using a different file system to save the files to be provided under FOIA, the risk described above is eliminated.

Key to this approach is that the text files in question really are text files. That is, their size measured in bytes, should match the number of characters in the file. That’s straightforward to verify. Here’s how we verified it for a sample text file. First, we asked TextWrangler to count the characters in the file by clicking on the “I” button: 72.

Then we asked the computer’s operation system to tell us how many bytes the file took up: 72.

So the file really is a plain text file.

Where From Here?

We’ll begin working on the the printed materials we have, but it will be a slog. It’s not clear that a first step of just scanning everything and running an optical character recognition program on the whole kit and kaboodle is feasible. Some intial sorting is probably in order.

We recognize that the use of a text editor is not necessarily as universal a skill as using a black marker. But in both cases, the real skill lies in the judgment of whether the material meets the criteria for redaction, not the operation of the tool. Based on some of the batches of records provided early in the process, it’s clear that things can go wrong, even with the relatively simple technology of a black pen.

As the lead art for this article shows, the city’s attempts at redaction were in some cases unsuccessful because the pen was not dark enough – and probably also because the photocopier applied an autosharpening process to help bring out the contrast between the marker and the letters underneath. When we noticed that phenomenon, we provided an example to the city, so that the issue could be addresssed in subsequent batches.

We hope  that the city of Ann Arbor will recognize the importance of providing electronic records in electronic form when requested under FOIA.