Redaction is the process by which sensitive information is fully removed from disclosed records, whether those records are being disclosed in eDiscovery, in a court filing, in response to an open records law request, or otherwise. We’ll consider the risks of inadvertent disclosure in just a moment, but before we do, let’s define that last term. Generally speaking, inadvertent disclosures are accidental oversights-mistakes that occur during either the identification of sensitive information or the application of a redaction. Inadvertent disclosure occurs when sensitive information that should have been withheld for privacy, confidentiality, or other reasons is accidentally included within a disclosure. What is inadvertent disclosure of sensitive information? What happens when information that should have been protected slips through the cracks and is accidentally disclosed? That’s what we’ll turn to next. While both litigation and open records laws carry a presumption that responsive information should be disclosed, there are exceptions for sensitive information. Under federal and state open records laws, citizens are entitled to obtain information about how their government operates. However, legal teams may also need to compile information for disclosure pursuant to the federal Freedom of Information Act (FOIA), or its corollaries in state law, known interchangeably as sunshine laws, open records laws, or public records laws. That disclosure may occur in the context of eDiscovery, court filings, or elsewhere in the course of litigation. Sensitive information often occurs within the context of documents that should (or even must) be disclosed.
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