US District Court Judge Shira A. Scheindlin of the Southern District of New York ruled that federal government agencies, when responding to Freedom of Information Act requests, must release documents in a searchable format and provide the document’s metadata when making releases in electronic format. The ruling in National Day Laborer Organizing Network et al v. United States Immigration and Customs Enforcement Agency et al. is a groundbreaking case going beyond FOIA and e-discovery issues which she addressed Zubulake v. UBS Warburg LLC, 217 F.R.D. 309 (click on the case name to view it in LexisNexis).
The Center for Constitutional Rights and the Immigration Justice Clinic of the Cardozo School of Law filed the complaint in February 2010 demanding records related to the Immigration and Customs Enforcement Agency (ICE) “Secure Communities” program that involves local and state police in federal immigration enforcement. The program requires local and state police to run individuals’ fingerprints through multiple databases upon arrest even if no charges are brought and regardless of how minor the charges are. Besides the potential of erroneous information in those databases, critics of the program charge that it uses racial profiling to funnel people into the ICE detention and removal system. The FOIA action by the National Day Laborer Organizing Network (NLDON) sought materials necessary to provide comprehensive information on the program, including policies, procedures and objectives; fiscal impact; statistical information; individual records; communications; and assessment records.
In response to the FOIA requests, the government delivered documents grouped together in large files that were not searchable and in which individual documents could not be identified without reading through the entire file and e-mails were separated from their attachments. In the conclusion of her 27 page opinion in NLDON v. ICE, Judge Scheindlin remarked:
Once again, this Court is required to rule on an e-discovery issue that could have been avoided had the parties had the good sense to “meet and confer,” “cooperate” and generally make every effort to “communicate” as to the form in which ESI would be produced. The quoted words are found in opinion after opinion and yet lawyers fail to take the necessary steps to fulfill their obligations to each other and to the court. While certainly not rising to the level of a breach of an ethical obligation, such conduct certainly shows that all lawyers -even highly respected private lawyers, Government lawyers, and professors of law -need to make greater efforts to comply with the expectations that courts now demand of counsel with respect to expensive and time-consuming document production. Lawyers are all too ready to point the finger at the courts and the Rules for increasing the expense of litigation, but that expense could be greatly diminished if lawyers met their own obligations to ensure that document production is handled as expeditiously and inexpensively as possible. This can only be achieved through cooperation and communication.
The Brooklyn Law School Library has in its collection The Federal Information Manual: How the Government Collects, Manages, and Discloses Information under FOIA and Other Statutes by P. Stephen Gidiere (Call # KF5753 .G53 2006) with these chapters: An overview of federal information disputes — Agency collection of information — Management of agency records — Classified information — Access to federal records — Electronic records and federal public websites — Elements of a successful FOIA request — Reasons for the withholding of agency records — Litigation involving federal records — Homeland security information.