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Wednesday, January 14, 2015

Ind. Gov't. - Proper redaction, what's not to know!

Nearly 7 years ago, the ILB had a long post headed "GE Suffers a Redaction Disaster." The gist of the GE story was that the company's attorneys had filed on PACER many pages of blacked-out confidential information, specifically, according to The Connecticut Law Tribune story:

Information about the inner-workings of GE's white, male-dominated management and their alleged discriminatory practices against women, which is supposed to be sealed by court order, appears with little technical savvy required. * * *

In 2005, the Department of Defense suffered through a similar dispersion of classified information. Redacted segments of an investigative report on the shooting death of an Italian journalist by U.S. soldiers in Iraq could be copied and pasted from a PDF into a Word document.

As the ILB wrote at the time:
This is not a new problem, there have been a number of similar stories over the past several years.
The post goes on to quote from stories as far back as 2003 (the ILB's beginning date) - this one is from a British publication, The Register, about a U.S. Dept. of Justice redaction blunder:
It turns out the report began its life as a Microsoft Word document, and whoever was in charge of sanitizing it for public release did so by using Word's highlight tool, with the highlight color set to black, according to an analysis by Tim Sullivan, CEO of activePDF, a maker of server-side PDF tools. The simple and convenient technique would have been perfectly effective had the end product been a printed document, but it was all but useless for an electronic one. "Using Acrobat, I'm actually able to move the black boxes around," says Sullivan. "The text is still there."
Federal courts have had e-filing for years. It is coming to Indiana state courts. And of course many digital and paper documents that are not e-filed contain redactions. Failure by an attorney to properly redact confidential information in documents shared with others may lead to consequences.

The 7th Circuit has three links on its front page, leading to materials labeled: Redaction Methodology Suggestions; NSA: Redacting with Confidence; and Metadata: Word 2007 or Word 2010.

The SD Indiana links to a very good page from the ED Calif. titled "How to Redact."

Jones Day in 2011 published a 7-page article headed "New Risks Every Litigator Should Know." The subhead: "While the repercussions of e-filing failure can be severe, protecting yourself — and your client — is relatively simple." Page 4 has a section on improperly handled confidentiality issues and the consequences. It is definitely worth reading!

Given this history, it was with surprise that the ILB read this long $$$ story reported by Lindsey Erdody in the Jan. 10 Bloomington Herald-Times [emphasis by ILB]:

It’s as simple as clicking one button.

That’s how easy it is to uncover redacted information in some of the records publicly released by the city of Bloomington.

The city’s legal department realized the issue earlier this week with records that had been shared through Google Drive, which allows Google users to upload and share documents with other users. The city has used Google Apps for Government since February 2010, according to Information and Technology Services Director Rick Dietz.

The legal department has used the file sharing system approximately six times for larger public records requests instead of copying files onto a disk or hard drive, according to assistant city attorney Greg Small. The Herald-Times has received multiple record requests in that format.

Public agencies are allowed [sic.] to redact certain sensitive information, such as Social Security numbers, trade secrets and confidential financial information, for example. Agencies also have “discretionary exemption” over items such as notes expressing opinion on office policy, calendars with notes and performance reviews.

Small said there were three instances where the shared files had redactions, but none of the released documents in question have confidential information included.

Until this week, city attorneys would redact sensitive information in documents electronically, then send the records to the person who had requested it. The city has not revealed the exact method it was using to redact files.

The Herald-Times’ testing of documents it has received in response to records requests indicates the problem isn’t exclusive to Google Drive, as it appears in most PDFs, but not all. There are several techniques to uncover the redacted text, some as easy as clicking a single key.

“It’s one of those unfortunate things,” city corporation counsel Margie Rice said on Wednesday. “We’re lawyers. We’re not ITS people.”

The Center for Wildlife Ethics, a conservation group, requested a long list of files surrounding the proposed Griffy Lake deer cull, which that group shared with Bloomington Advocates for Nonviolent Innovative Deer Stewardship. Steve Wagschal, treasurer for the Bloomington group, said he learned about the faulty redacting from someone who was copying and pasting quotes from the documents.

“This is a huge issue. In addition to the questionable suppressions of information regarding the deer cull, I’m concerned that the city has probably poorly redacted countless documents about other issues to other people,” Wagschal said via email. “Some of this information may be very sensitive and private. It is in the public interest that the city be held accountable and address the poor redaction problem publicly and under the scrutiny of the media.”

Rice said the city prefers to fulfill public records requests electronically because it saves time, money and paper. Public agencies are not required by law to share information in this way, but it is an option.

Upon discovering that redacted information could be uncovered, the city turned off access to Google Drive. Any PDFs that had been downloaded already or sent via email aren’t recoverable, Rice said, but the city could retrieve the records sitting in shared folders on Google Drive.

“And I think it’s my responsibility to make sure that’s right,” Rice said.

Records that were shared in that format are being printed, redacted by hand, scanned and returned to the person who had requested them.

In the opinion of the ILB, Google Drive is not the problem here, it is failure of the city attorneys to properly redact that information (and only that information) which is required by law to be treated as confidential.

An editorial by Bob Zaltsberg in the Sunday H-T includes:

Simply put, the electronic procedure undertaken by city employees made it very easy for the recipient of the public records to see what was behind the bold, black lines that covered some of the type in a process called redaction. Redaction is allowable under specific circumstances.

This discovery opens multiple doors for inquiry. First, did the city provide anyone with confidential information — such as Social Security numbers — expressly prohibited from being released? Any entity that did so knowingly would be in violation of state law. Doing so by mistake, as would seem to be the case if the city has done this, is not unlawful, simply careless and concerning.

Second, was all the material redacted really qualified for being blacked out from public view under Indiana law? We can say with confidence that a quick look at a few documents leads us to serious questions about why the material should have been withheld from the public. Particularly ironic is advice about how to keep a meeting from needing to be open to the public under the Open Door Law.

It will take time to get to the bottom of this one. But it’s important to get there to make sure the city is following the letter and the spirit of the Access to Public Records Act.

Posted by Marcia Oddi on January 14, 2015 10:44 AM
Posted to Indiana Courts | Indiana Government | Indiana Law