Paper with The Freedom of Information Act FOIA on a table

Want a preview of next year's trends in Freedom of Information Act (FOIA) requests and responses? Here's a hint: Topics in the public consciousness tend to play a big role. As 2019 approaches, keep an eye on the increased scrutiny of public officials' and government agencies' business conduct, slow responses to FOIA filings, and a growing awareness of privacy and cybersecurity topics when planning your department's resources to prepare or respond to FOIA requests.

This follows the experience of 2017 and 2018, when legal news and trends bore a strong resemblance to one another. Increasingly, “all news is national,” with news out of D.C. and big corporations dominating legal headlines.

Here are three tends to look for in 2019:

1. Expect increased scrutiny on public officials' and government agencies' business conduct. Beyond the details of Robert Mueller's headline-dominating investigation, a growing body of case law, including three District Court opinions, have solidified the nature of responsiveness under FOIA. Summers v. Department of Justiceaddressed scrutiny of public officials' appointment calendars and business correspondence, and how the court defines responsive search terms. Bagwell v. Department of Justiceexamined the variety of names commonly used to refer to the responding party, and illustrated how agencies must be prepared to search based on common parlance, in addition to official nomenclature.

Together, the Summers and Bagwell cases have changed the FOIA request standard. Government agencies must conduct defensible searches and show that they have made a good faith effort to respond.

U.S. District Judge Christopher Cooper cited both Summers and Bagwell in an October 2018 ruling which said, “FOIA requests are not a game of Battleship. The requester should not have to score a direct hit on the records sought based on the precise phrasing of his request.”

The good news is that machine learning technology can help government agencies handle FOIA requests. The case of Government Accountability Project v. U.S. Dept. of Homeland Security provided stronger standing for FOIA suits and an expectation of responding in good faith.

2. Citizens and departments working with teams with a high volume of FOIA requests should expect a slow response and backlog for FOIA responses to be fulfilled. The Washington Post reported that between October 2016 and September 2017, the US Department of Interior received a total of 8,014 FOIA requests. The EPA received 11,493 FOIA requests between October 1, 2016, and September 30, 2017.

Assuming the rate of filings remains comparable, government agencies will be stretched to respond effectively and in a timely manner. The issues discussed in Government Accountability Project v. U.S. Dept. of Homeland Security highlight the challenges some agencies have been encountering responding in a defensible manner. Court and legal resources taken up by immigration suits in which the Department of Justice is named have intensified the backlog, along with legal talent leaving the DOJ.

3. Expect that privacy and cybersecurity issues will increasingly be a topic of interest for citizens and organizations filing FOIA requests. The rise of privacy regulation and fines for cybersecurity breaches have increasingly brought these issues into the public consciousness. Examples include the EU's General Data Protection Regulation, which went into effect May 25. In the United States, the new California Consumer Privacy Act, A.B. 375, California Senate Bill No. 327, the Ohio Data Protection Act (DPA), and Colorado's Protections for Consumer Data Privacy Act (PCDPA) demonstrate how states are examining these issues.

The U.S. Congress is exploring new federal regulation to protect data privacy, and hacks and data leaks like Marriott, the National Republican Congressional Committee, and the easily-preventable Equifax leak have raised awareness of these issues. Many citizens have a greater awareness of best practices for privacy and cybersecurity from the education provided by consumer technology companies, and the heightened trainings and tools offered in corporate work environments.

Be sure to take into account the current backlog and strain on government agencies' legal teams as you plan for 2019. Whether your department is planning or responding to FOIA requests, your ability to manage these and the case law precedents in these areas will make a difference in legal operations.

Jon Kerry-Tyerman is Vice President of Business Development & Intelligence for Everlaw. Previously, he served as a Senior Director in the Innovation practice at LexisNexis, where he chaired the Digital Culture Task Force. Jon served over eight years as a Professor of Law at the University of San Francisco, where he worked in the Internet and Intellectual Property Justice Clinic.