Personal Privacy and Freedom of Information in the Digital Age: Challenges and Strategies for Government Archives

Bonita L. Weddle Society of American Archivists 25 August 2011

Overview
Challenges government archives face Recent New York State Archives experiences Strategies for addressing challenges

Challenges for government archives

Records management/IT divide

Records managers still seen as paper people E-records often show up on archives doorstep

Citizen and elected official expectations

Just put everything online! Layoffs and furloughs Deferral of key IT investments Inadequate archival/records management legal authority Litigiousness Sweeping claims of executive/deliberative privilege Political dysfunction

Current fiscal and political climate

Challenges for government archives

Records management/IT divide

Records managers still seen as paper people E-records often show up on archives doorstep Just put everything online! Layoffs and furloughs Deferral of key IT investments Inadequate archival/records management legal authority Litigiousness Sweeping claims of executive/deliberative privilege Political dysfunction

Citizen and elected official expectations

Current fiscal and political climate

Challenges for government archives

Balancing competing mandates

Freedom

of information Laws protecting personal privacy and restricting access to

Health records Trade secrets Pending contract negotiations Information about critical infrastructure Privileged information Attorney-client communications Attorney work product Criminal investigation records

Two sweeping FOI requests

Focus
Dept.

of Law (Office of the Attorney General) records

Attorney General Eliot Spitzer

1000 cu. ft. of paper records 5 GB of e-records

Outcomes
One

successfully resolved One currently in litigation

Dept. of Law Executive Office Subject Files, 1957-2006

1999-2006 accretion
180

cu. ft. of paper records 2 e-mail archives of high-ranking deputies

PST files, 5 GB total Approximately 23,000 messages DVDs found in box by accessioning archivist Cursory review revealed

Resumes, etc., of job applicants Employee health and other information Inter- and intra-agency communications IT and security infrastructure information Attorney-client communications Attorney work product

Laws affecting access

Freedom of Information Law (FOIL)

Broad

presumption of access

Mandates disclosure of some records Prohibits disclosure of some records Gives agencies discretion to disclose some records

Timetables

and appeals procedures

Personal Privacy Protection Law

Prohibits

disclosure of personal information without persons consent

Laws affecting access

Civil Practice Law and Rules

Attorney-client

communications Attorney work product

Criminal Procedure Law

Attorney Special

work product

Executive Law
investigations relating to public peace, safety, or justice General Business Law Martin Act financial industry investigations

State Archives-Dept. of Law MOU

Within parameters established by FOIL Focuses on attorney work product and attorney-client communications Governs access to records of Spitzer and successors Provides for Dept. of Law review prior to disclosure Final decision re: FOIL appeals rests with State Education Dept. Commissioner

Redaction

Process of removing legally restricted, sensitive, or classified information from records before making them accessible

Determining approach

Print out and redact paper copies?

Heavy

burden on clerical/technical staff Approximately 20,000 sheets of paper

In addition to paper records redaction effort

E-records

should be accessible in e-format

Determining approach

Convert to PDF and redact electronically?

PDF

a suitable choice

Some metadata altered, but creator, date of creation, etc., is embedded in documents Both requesters comfortable with PDF

Adobe

Acrobat 8 and 9 Professional have built-in tool

Supports automated and manual redaction Allows for saving of marked for redaction versions Widely used, as yet uncracked

Review of legal and digital forensics literature Real-world testing

Acrobat 8 Professional is NYS Education Dept. standard

Initial steps

Electronic Records unit

Import copy of PST file into Microsoft Outlook Conduct keyword searches

Grew out of Reference Services negotiations with requesters Folder-by-folder basis Obviously non-responsive messages removed from results sets Identified 3,000 potentially responsive messages

Convert results sets to PDF format

Training session and supporting materials

Reference Services: identifying restricted information Electronic Records: using Acrobat redaction tool and logging work

Review process

Primary review
Multiple

teams

One Electronic Records unit archivist One records manager or reference-rotation archivist
Responsibilities

Mark clearly restricted information for redaction Flag information that might be restricted Daily backups (Electronic Records archivist)

Review process

Secondary review
One

two-person team

Head of Reference Services Designated reference-rotation archivist Review work of Primary Review teams As appropriate, mark flagged information for redaction Consult with State Education Dept. Office of Counsel Communicate with Dept. of Law team

Responsibilities

Electronic

Records unit support

Daily backups Answer technical questions

Review process

Dept. of Law review team

Review

State Archives-supplied files Mark information for redaction as appropriate Return marked files to State Archives

Disclosure preparation
Electronic

Records unit

Copy marked files and apply redactions to copy Place redacted copies on CD-R for disclosure

Head

of Reference Services

Convey redacted files to requester Vet all communications with State Education Dept. Office of Counsel

Lessons learned

Redaction remains labor-intensive

Less

work for clerical staff More work for professional staff

Need for professional judgment unchanged New skills New research and testing responsibilities

Review team approach works

Quality

control Training of less experienced staff

Communication with counsel is essential

Archivists

must be prepared to drive the process

Lessons learned

E-redaction produces e-copies

Must

be managed properly

We need better tools

Proximity

search capability Social network analysis

Legal proceedings take precedence

Court

imposes timetables and deadlines

Know your records creators

Frequent reminders, ongoing support

E-records

are records Records must be managed You accession e-records You have transfer preferences

Know the law

Federal legislation
Freedom

of Information Act (FOIA)

Applies to federal agencies

Health

Insurance Portability and Accountability Act (HIPAA) Family Educational Right to Privacy Act (FERPA/Buckley Amendment)

Know the law

State legislation
Freedom

of information privacy

All 50 states and District of Columbia Cover state and local government records Some states

Personal

Data

breach notification statutes

46 states and District of Columbia Generally cover specific types of records (e.g., tax returns, vital records)

Other

Know the law

Consult with others as needed

May

have multiple options

NYS Committee on Open Government

Open government body

Counsel
Parent

agency agency

NYS Education Dept. Office of Counsel

External

NYS Dept. of Law

Stay

in the drivers seat

Know the technology

Many redaction options exist

Print/magic Software

marker

Some remove restricted information Some obscure restricted information Some support automated redaction of easily identifiable information (e.g., Social Security Numbers) Some support record-by-record review Some compatible with multiple file formats Some compatible with only one format

Know the technology

Some tools are better than others

One

application designed to hide Social Security numbers in scanned records rendered them visible as images loaded Using Acrobat to draw black boxes over restricted information never works New search and redaction tools are coming

Research and testing are essential

Tools are only as good as their users

Questions?
Bonnie Weddle Coordinator, Electronic Records New York State Archives 9D64 Cultural Education Center Albany, NY 12230 bweddle@mail.nysed.gov 518-473-4258