Our Australian colleagues refer to their country as OZ, and there is no doubt that the employees of the government agency CenITex wish they could click their heels like Dorothy and not be front-page news anymore. The recent Freedom of Information request dispute with The Age newspaper suggests that the Victorian government is in dire need of archiving and eDiscovery technologies. On August 20, ITPro reported that CenITex (the government’s Centre for Information Technology Excellence) would need to spend over $1 million AUSD to comply with recent FOI requests made by The Age. To add insult to injury, the process is projected to take a whopping 24 years!
Matters regarding FOI requests are adjudicated by the Victorian Civil and Administrative Tribunal, and so far, the tribunal has been less than impressed with the testimony of FOI Officer Ross Gilmour. He claimed that there was no separate archive for emails and other relevant documents that relate to The Age’s requests. These FOI scenarios are a universal problem; typically, the government will always argue the request is “overly broad and burdensome” and the civilian will argue their “statutory right” and for the responsive documents to be produced.
Ironically, this dispute involves the CenITex and their inability to comply with FOI requests. It seems impossible that an agency dedicated to government IT advancement could be the furthest behind on the eDiscovery continuum, particularly because FOI requests are not uncommon in Australia. An article written by ITPro indicates that the government agencies in Victoria typically do have readily searchable archives for email and that this is an exceptional circumstance.
The yellow brick road (successfully deployed archiving and eDiscovery tools) has been paved in the US by the private sector’s example and the government is slowly but surely following, although there is much work left to do. This road was also built in the litigious environment of the US where there are ever-present fears of spoliation claims and sanctions. However, in Australia, because the environment is less litigious, the catalyst for change will likely be driven by FOI requests and Royal Commissions, more than traditional litigation. Global companies, especially those doing business in the US, are the exception to this reality. It has been predicted that government transparency would be a primary driver for archiving and eDiscovery in Australia, and the evidence is mounting to support this hypothesis with FOI conflicts like the present one with CenITex.
In previous blogs focusing on the eDiscovery climates of other common law countries, the rules governing electronically stored information (ESI) have been addressed for Australia and the United Kingdom. We have also had extensive coverage on the Freedom of Information Act (FOIA) in the United States, as well as the equivalents in Australia and New Zealand. While governments in general are behind the private sector on the eDiscovery maturity curve, many have come up to speed in recent years. Australia is presently in the midst of this change – and will need to stay on the yellow brick road.
It is true there have been some landmark eDiscovery events in Australia that put fear into organisations about their information governance plans, but they are initiated in a quasi-governmental or entirely governmental manner. For example, the 2009 Royal Commission on the Bushfires expended a tremendous amount of time and money to complete their investigation. No expense was spared, including massive eDiscovery costs. Typically, when there is a national tragedy that needs to be investigated, these commissions are formed and they are extensive. An analogy in the US could be responding to a HSR Act request, but in the reverse. In Australia the government has to produce to the commissions, whereas private litigants are responding to the US government in a second request.
The public sector in Australia is forging ahead in all areas on the eDiscovery front with conferences like the Public Sector Litigation and Dispute Management Forum in Canberra on September 11 and 12, 2012. All areas of the government will be represented. Nigel Carson (from KordaMentha) and I will tackle this CenITex example in our presentation. We will use this exisiting example as a way to frame how organisations can avoid the lengthy collection, review and production periods that make compliance with FOI untimely. Our presentation will cover information governance, eDiscovery and best practices.
In The Wizard of Oz, the yellow brick road symbolizes the “the gold standard.” There is an established gold standard for archiving and eDiscovery that is scalable and cost effective. The proactive information management components that archiving enables are undeniable. In-house eDiscovery capabilities are ideal as well, but secondary to an archive for an organization in the beginning stages of information governance implementation. Unless others in OZ wish to be vulnerable to FOI requests without a searchable archive, they must start their journey on the yellow brick road.