FedScoop: Generative AI could raise questions for federal records laws 

April 22, 2024

Generative AI may introduce new questions related to the Freedom of Information Act, according to Enid Zhou, senior counsel at the Electronic Privacy Information Center, a digital rights group. She pointed to nuances related to “agency and user-generated content,” since the DHS-OpenAI clause doesn’t make clear whether inputs or user prompts are records, or also the outputs produced by the AI system. Zhou also pointed to record management and data storage as a potential issue.  

“The mention of ‘Company’s record management and data storage processes’ could raise an issue of whether an agency has the capacity to access and search for these records when fulfilling a FOIA request,” she said in an email to FedScoop. “It’s one thing for OpenAI to work with the agency to ensure that they are complying with federal records management obligations but it’s another when FOIA officers cannot or will not search these records management systems for responsive records.” 

She added that agencies could also try shielding certain outputs of generative AI systems by citing an exemption related to deliberative process privilege. “Knowing how agencies are incorporating generative AI in their work, and whether or not they’re making decisions based off of these outputs, is critical for government oversight,” she said. “Agencies already abuse the deliberative process privilege to shield information that’s in the public interest, and I wouldn’t be surprised if some generative AI material falls within this category.” 

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