Managing the Surge: Navigating Open Records Requests During Election Season
In an election year, state and local government agencies often receive an influx of requests for public records related to elections and election candidates. However, these agencies don’t always have the proper records management systems to handle the volume of requests they receive, creating unnecessary legal, financial and reputational risks. Agencies must ensure they are prepared and able to respond to requests for public records in compliance with state and federal laws.
The legal risks of failing to respond to open records requests
The importance of maintaining and producing public records during election cycles cannot be overstated. “An election without transparency can have detrimental effects,” says Bryan Pierre, Public Administration Program Manager at TD SYNNEX Public Sector.
When open records requests go unfulfilled, it can result in monetary and reputational damage to the agency. Consider the following examples:
- In March 2024, a nonprofit group sued Arizona’s Cochise County for noncompliance with the Arizona Public Records Law; the suit alleges the county failed to fulfill public records requests for communications related to the 2022 general election.
- The city council of Portland, Oregon, reached a $167,000 settlement to resolve a lawsuit filed in 2022, which accused the city and its mayor of withholding thousands of text messages from a public records request.
- In Anaheim, private investigators looking into alleged corruption publicly ridiculed city leaders and staff for doing a poor job of tracking public records.
Common types of public records requests
During the 2020 presidential election, accusations of voter fraud were rampant, driving many citizens who wanted to understand more about each candidate’s background to file open records requests as allowed under the Freedom of Information Act (FOIA).
In a recent poll conducted by Smarsh, half of respondents responded that the most common types of record requests they get requests for during an election season are communications from election staff, such as text messages and phone call records. The second most popular response, cited by 33 percent of respondents, was voting records, followed by political social media posts.
The reality is that citizens request all of this information – including ballot counting procedures, voting records, social media posts, candidate emails, and text messages. If anything questionable is happening, citizens want that information known, according to Pierre.
Many citizens prefer to do their own research and gather information before deciding who to vote for. In a contentious election, especially in a swing state, public record requests can come to government agencies not just from voters but also from political action groups (PACs), the media, and even intergovernmental agencies conducting audits and investigations.
“There is a large quantity of records requests, and the requests are for many different data sources,” says Riley Lambert, Senior Government Account Executive at Smarsh. In most states, most of this data is an open record. “Understanding your state retention laws is crucial ahead of upcoming elections.”
Managing public records requests for social media posts
Social media posts create their own set of risks during an election year. Pierre noted that the challenging part about monitoring social media posts is that “you can’t necessarily control everyone, even your employees.”
To proactively mitigate this risk, government agencies should ensure their social media policies, procedures, and recordkeeping systems are up-to-date. Additionally, it’s important to regularly communicate and educate employees on the agency’s social media policies, “which is pretty much the baseline now to ensure that staff are aware of the internal policies and procedures with regards to social media usage,” Pierre says.
Capturing and archiving all social media communications is also essential. However, that first requires having a proper records management system in place.
Common challenges agencies face in responding to open records requests
One big challenge with responding to an election-related public record request is outdated systems and too many data sources with no automated capture capabilities. Many agencies still manually track voting records, call logs, and candidates’ social media posts. The problem with all this data is that “you have to scrub it, put it all together, make sure that it’s in a readable format, and then send it off to the requester,” Lambert says. “That’s a big challenge.”
Elections create unique challenges when responding to an open records request in compliance with FOIA and state laws. Those challenges include:
- Tracking and archiving social media posts
- Keeping up with the sheer volume of records requests for elections-related data
- Archiving all this data (e.g., candidate information, election worker communications, and social media posts)
- Searching and producing archived records in response to public records requests
Because most records are digitized these days, it’s more likely than not that IT will need to get involved in pulling those records. The request must go through records management and potentially through the elections office. “It’s all hands on deck trying to gather that data and produce it in time," says Lambert. "And by in time, I mean before an election or shortly after the results come in."
Best practices for responding to open records requests
Aside from simply not ignoring an open records request and ensuring compliance with the FOIA and individual state public records laws, it’s important that government agencies have an updated communications archive that can quickly communicate and retrieve information.
Lambert stresses that records managers should be able to respond to records requests quickly without having to leverage other departments too much. “In this instance, technology is going to be a cure-all.”
How Smarsh can assist government agencies with records requests
Smarsh offers a truly modern approach to electronic records management. By simplifying the capture and search of communications data, agencies can rapidly respond to requests through a single, comprehensive solution. Organizations can meet recordkeeping obligations, manage risk and reduce the time and cost of responding to public records requests.
“We can then provide powerful e-discovery and tools for elections data, making that data readily available for records managers or IT or any of those FOIA portals, and you can export it in digital formats or quickly send it to the requester,” Lambert says.
Take the steps to prepare by reviewing and enhancing public records policies and procedures. “Get yourself an archiving solution like Smarsh,” Lambert said, “or at the very least, reach out to Smarsh and educate yourself on what’s out there so that you’re ready.”
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Scalable for organizations of all sizes, the Smarsh platform provides customers with compliance built on confidence. It enables them to strategically future-proof as new communication channels are adopted, and to realize more insight and value from the data in their archive. Customers strengthen their compliance and e-discovery initiatives and benefit from the productive use of email, social media, mobile/text messaging, instant messaging and collaboration, web, and voice channels.
Smarsh serves a global client base that spans the top banks in North America and Europe, along with leading brokerage firms, insurers, and registered investment advisors. Smarsh also enables state and local government agencies to meet their public records and e-discovery requirements. For more information, visit www.smarsh.com.
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