Ride the Lightning

Why Your FOIA Request Might Not Get Text Messages

June 19, 2018

Hat tip to my friend Doug Austin at CloudNine for a marvelous post on his EDiscovery Daily Blog. As Doug asks, what percentage of Freedom of Information Act (FOIA) requests actually result in receiving all of the information requested?

According to the 2018 Public Sector Text & Mobile Communications Survey from Smarsh, 70 percent of federal, state, county and city government organizations surveyed report allowing SMS/text for official business communication. But, almost half of those (46 percent) are not formally capturing and retaining these messages. There were 236 total respondents in the survey.

The information below is directly from Doug's post. And I fully agree with his conclusion at the end!

"The vast majority of agencies allow organizational e-mail (97 percent) on mobile devices, but right behind it is SMS/text messaging, with 70 percent allowing it for official government business. Social channels Facebook and Twitter are the next most frequently cited, with 58 percent and 44 percent, respectively.

Two-thirds of surveyed organizations allow employees to use their own BYOD devices for official business, for those devices, only 35 percent of respondents are retaining SMS/text messages (as opposed to 62 percent for Corporate Owned Personally Enabled (COPE) devices).

The top four reasons SMS/Text records are NOT captured are: 1) Don't currently have budget this year, 2) SMS/text isn't required to be retained by law, 3) Waiting for Capstone/FOIA guidance, 4) Existing capture technologies are too complicated.

The majority of respondents, 62 percent or nearly 2/3, lacked confidence that they could provide specifically requested mobile text messages promptly if responding to a public records or litigation request.

Agencies with no retention solution in place have very little confidence in their ability to fulfill requests. 23 percent reported that if requested, it was unlikely they could produce SMS/text messages from their organizational leader at all.

When you hear these stats, you might be surprised the numbers aren't higher. Last year, Federal Freedom of Information Act (FOIA) litigation jumped 26 percent over the previous year. In 2018, that number is on track to increase again. While an average of 2.08 lawsuits were filed each day in 2017, 2018 has seen the average increase to 2.72 lawsuits per day. Last year, there were 823,222 Federal FOIA requests – 78 percent of those requests yielded censored files or no records at all. In other words, only 22 percent of FOIA requestors got everything they asked for. 22 percent! And, the Federal government spent $40.6 million in legal fees defending its withholding of files in 2017. Freedom of information isn't free, apparently."

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