Sloppy Redaction: To Err Is Automated

A few years ago, a federal agency was having problems with an individual who requested a large number of public records. Despite the fact that the agency took pains to edit, or redact classified information, this frequent requester had an alarming ability to read words that had been censored and publish them online. "They called us and said, 'this guy must have some high-tech scanners or something, because he can read words we have clearly redacted,'" says Richard Huff, who served as one of two co-directors of the Federal Office of Information and Privacy from 1982 until his recent retirement. "We tried everything we could to figure out what sort of high-tech wizardry he was using."

Huff has seen every imaginable issue with public records, but the case had his department baffled until public information officials went to investigate the situation in person. It turns out that the agency (Huff won't say which, for the sake of former colleagues) was using old-fashioned grease pens to block out confidential and classified information, which, even when photocopied, could still be read with the naked eye. "Sure enough, all you had to do was hold them up to the light and you could read right though," says Huff.

Redacting information is a necessary but frustrating task for many legal professionals. Huff says documents with failed redaction attempts came past his desk at least once a month. Advances in technology can help the redaction process, but the move from paper to electronic records has made the issue more difficult. "We have all kinds of personal information in our court records, Social Security numbers, bank records and so on," says David Ellspermann, clerk of the Circuit Court for Marion County, Fla. "We do everything we can to protect it because you can't bring that kind of information back once it's let out."

RECORDS MANAGEMENT BLACKOUT

Redaction is challenging to good records management practice. A litigation or document management system must be able to designate that some pieces of information are private while state and federal governments are mandating that more information needs to be accessible by the public. In particular, the Open Government Act of 2007 and increased government transparency under the Obama administration have put more records into the public sphere. At the same time, many state governments have ordered court systems to make court filings available online.

Because of the easy and wide dissemination of digital documents online, once a redaction failure occurs, it is impossible to undo the mistake. And in e-discovery, lawyers are forced to find ways to redact privileged and confidential information from millions of documents in a very short time, or have that information enter into litigation.

Reaction failure often happens when someone uses software features not designed for redaction to cover up information, not realizing there are ways to recover blocked out information. For example, in a 2007 General Electric discrimination suit, words intended to be redacted were shaded black. But when copied and pasted into Microsoft Windows' Notepad or Microsoft Word, the records, which were supposed to be sealed by court order, could suddenly be read.

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Source: Law.com
By: Jason Krause