Showing posts with label FOIA. Show all posts
Showing posts with label FOIA. Show all posts

Sunday, September 12, 2021

FOIA committee ponders access amid privatization

I had the great privilege last week to speak to the U.S. Freedom of Information Act (FOIA) Advisory Committee, working under the aegis of the Office of Government Information Services (OGIS) in the National Archives and Records Administration (NARA) on the subject of access to the private sector in the public interest.

The OPEN the Government Act of 2007 augmented FOIA to follow public records into the hands of government contractors.  But the federal FOIA's reach into the private sector remains extremely limited relative to other access-to-information (ATI) systems in the United States and the world.  U.S. states vary widely in approach; the vast majority of state open records acts reaches into the private sector upon some test of state delegation, whether public funding, function, or power.  The same approach predominates in Europe.

The lack of such a mechanism at the federal level in the United States has resulted in a marked deficit of accountability in privatization.  The problem is especially pronounced in areas in which civil rights are prone to abuse, such as privatized prison services, over which the FOIA Advisory Committee and Congress have expressed concern.  By executive order, President Biden is ending the federal outsourcing of incarceration.  But access policy questions remain in questions about the past, in waning contracts, and in persistent privatization in some states.

As I have written in recent years, and examined relative to ATI in the United States, Europe, and India, an emerging model of ATI in Africa advances a novel theory of private-sector access in the interest of human-rights accountability.  I was privileged to share this model, and the theory behind it, with the committee.  I thank the committee for its indulgence, especially OGIS Director Alina Semo for her leadership and Villanova Law Professor Tuan Samahon for his interest in my work now and in the past.

Monday, June 28, 2021

'Clinton' honorific draws fire at Arkansas law school

"The Clinton Law School"
was not to be.
An op-ed in The Arkansas Democrat-Gazette by Mike Masterson on Saturday reported a mess at the "William H. Bowen" law school at the University of Arkansas, Little Rock, since a professor there started calling himself the "William J. Clinton Professor."  The ADG quoted an email from my friend and colleague, Distinguished Professor J. Thomas Sullivan, obtained under the Arkansas Freedom of Information Act (FOIA):

I don't recall when the Law and Public Policy Professorship was re-named for President Clinton.... I first noticed this reference in the signature block on an email sent by ["Dean Emeritus and William J. Clinton Professor of Constitutional Law and Public Service"] John DiPippa in March.

This professorship was originally designated as the Law and Public Policy professorship and was created, as I recall, after we moved into the current building. There was discussion that the Law School itself would be named for Clinton, but that was scuttled because there was serious concern that he would be subjected to some adverse legal action ... for giving false testimony in the civil action brought by Paula Corbin Jones....

I couldn't find any reference to the professorship as the "William J. Clinton Professor of Constitutional Law and Public Service" on the Bowen web site. In fact, John's faculty page describes him as: Dean Emeritus and Distinguished Professor of Law and Public Policy.

It may be that I missed an announcement ... but I am not aware of the re-designation of the professorship in the name of William J. Clinton or the reference to "Constitutional Law and Public Service." Had this been brought to the faculty for discussion ... I would have opposed the change in designation for a number of reasons:

First, President Clinton was disbarred from practice before the United States Supreme Court and the Arkansas courts following the impeachment trial, in 2000 or 2001. I believe that John took the opportunity to defend him against disbarment at the time, but conceded that some form of censure was appropriate, being quoted at the time by The Washington Post: ... "But DiPippa also said Clinton should be punished more severely because of his position. He suggested a suspension of his license for some period of time. Disbarment ought to be reserved for what I've called incorrigible lawyers—lawyers who are just going to repeat their offenses and continue to harm clients, he said." ....

I simply do not think it appropriate for a law school to honor a disbarred lawyer—it strikes me as hardly sending a deterrent message to law students or practitioners. But beyond the disbarment, I have grave concerns about Bowen being aligned with significant policy decisions taken by Clinton that have [caused] irreparable damage to our legal system.

The mass incarceration of Americans, particularly affecting the poor and African American communities, was accelerated during the Clinton administration in an effort to deflect potential Republican claims that Democrats were/are soft on crime....

Second, the 1994 law shaped Democratic Party politics for years. Under the leadership of Bill Clinton, Democrats wanted to wrest control of crime issues from Republicans, so the two parties began a bidding war to increase penalties for crime. The 1994 crime bill was a key part of the Democratic strategy to show it can be tougher-on-crime than Republicans.

Of particular importance, Clinton signed the Anti-Terrorism and Effective Death Penalty Act of 1996 which effectively eliminated federal habeas corpus as a protection against state court criminal convictions tainted by procedural irregularities and failure of state courts to correctly apply U.S. Supreme Court precedent in disposition of claimed violations of federal constitutional protections.

Sullivan is right about the naming of the law school; I was there then, too.  The money was coming from Bowen, an Arkansas banker—over faculty objections that UALR was selling itself to a donor for less money than any law school had ever taken for the honor—and Bowen's name was substituted when Clinton's became politically problematic.  In the op-ed, Professor Rob Steinbuch, a colleague of Sullivan's and co-author of mine on transparency research, confirmed Sullivan's take on the unilateral impropriety of the name change.

Sullivan wrote further:

Of general importance is the usurpation of faculty governance by the law school administration. At a minimum, the question of re-designating a named professorship should be announced to the faculty for purposes of eliciting legitimate concerns. The faculty originally adopted the rule regarding named professorships that was altered to give the dean sole authority for designation—apart from specific directions given by a donor.

I don't recall whether there was faculty input in altering terms of the original rule, but I do recall the faculty were generally notified of the current rule, as published. In either event, the legitimate authority of the faculty to advise and consent, if not promulgate, a policy that may have significant consequences for the law school in terms of our mission and reputation, shouldn't be dismissed by expediency or political interests of a dean, advisers or supporters answering only to the dean.

Sullivan has his own history with named professorships at UALR.  He was stripped of his in the past for the sin of dissent.  The professorships are better measures of academic-political compliance than of merit.  They're awarded only for five-year terms so as to incentivize continuing obedience to the dean among tenured faculty who otherwise might be hard to wrangle.

Such is academics.  My school, too, punishes anyone who dares not be a "team player," or fails to dumb down her or his own performance to the median.  The problem of "workplace mobbing" to enforce group-think and tame high achievers is so severe in academics that sociologist Kenneth Westhues wrote books about it.

Tuesday, February 16, 2021

Courts extend European accountability laws to private actors: Italian soccer federation, Irish wind farm

Two recent court decisions in Europe construed European directives on public accountability to reach ostensibly private actors, the Italian soccer federation and an Irish wind-power producer.

Stocksnap by Michal Jarmoluk CC0
The problem of accountability for private actors performing public functions is as old as the corporate form.  Burgeoning corporatocracy in the electronic era has rendered new challenges to the classical public-private dichotomy, in recent years, especially, in the area of social media regulation (e.g., pro and con).  I have written about rethinking this problem in the context of access to information, regarding reform in both the United States and Europe, and I continue to research emerging models in the developing world.  As a general matter, Europe has been much less reticent than the United States to breach the public-private line with accountability mechanisms such as transparency laws.

In early February, the Court of Justice of the European Union (CJEU) in Luxembourg ruled that the Italian Football Federation, or Federazione Italiana Giuoco Calcio (FIGC), an ostensibly private entity, is sometimes a public body for purposes of the 2014 European directive on public procurement.  The directive defines public bodies within its purview:

(a) they are established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character;

(b) they have legal personality; and

(c) they are financed, for the most part, by the State, regional or local authorities, or by other bodies governed by public law; or are subject to management supervision by those authorities or bodies; or have an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, regional or local authorities, or by other bodies governed by public law.

The definition is not unlike formulations in state freedom of information acts in the United States, which tend to press harder against the public-private line than the federal Freedom of Information Act (FOIA) does.  A classic example of disparate approaches in the states concerns access to the wealthy private foundations that lurk behind public universities.  My colleague Professor Robert Steinbuch has been bearing the transparency standard on this front in Arkansas and is supporting a bill there now.

At issue in the Italian case was a contract for porter services when foreign squads visit Italy.  A disappointed contractor challenged the process and won a round in Italy's high administrative court, and the appellate Council of State in Italy referred the interpretation question to the CJEU.  Both in the United States and globally, governing bodies in sport, often set up as private or quasi-public entities, have posed aggravating challenges in public accountability like the university-foundation problem.  Inapplicability of the FOIA to the US Olympic Committee has been cited as a contributing factor in sexual-assault cover-ups, and last summer, I took in no fewer than three books and a TV series on the intractable corruption in world soccer.

The CJEU opinion determined that the FIGC, constituted under private law, can act as a private body when it has autonomy to form private contracts.  However, the Italian National Olympic Committee (NOC) is a public body and has supervisory power, sometimes with a controlling stake, over some FIGC functions.  Insofar as the NOC is calling the shots on contracts, the FIGC is a public body, subject to public procurement rules.  The CJEU opinion now goes back to the Italian courts to parse the specifics. 

Cronelea Wind Farm in County Wicklow, 2008
Meanwhile, in late January, the High Court of Ireland ruled that electric company Raheenleagh Power DAC (RP) is a "public authority" for purposes of the Irish enactment of the European directive on public access to environmental information.  The law and directive define public authorities:

(a) government or other public administration, including public advisory bodies, at national, regional or local level;

(b) any natural or legal person performing public administrative functions under national law, including specific duties, activities or services in relation to the environment; and

(c) any natural or legal person having public responsibilities or functions, or providing public services, relating to the environment under the control of a body or person falling within (a) or (b).

Reversing the Irish Commissioner for Environmental Information, the High Court determined that RP came within the definition's latter terms.  The court explained, "RP is a joint-venture company which operates a wind farm in a forest in the Wicklow Mountains. The wind farm supplies electricity to the national grid."  Complicating the analysis, the RP venture includes a one-half stake by the national-monopoly Electricity Supply Board (ESB), which the court described as "an independent semi-State company."

Like in the Italian case, the court reasoned that ESB control and management of RP brought it within the purview of public accountability law.  The ruling is important for the example it sets amid the wide range of public-private hybrids providing critical utility and infrastructure across Europe and the world.

Even so, I would like to have seen the court hang its hat more firmly on the functional analysis of the cited paragraph (b), rather than resorting to the paradigm of state control.  The urgent communal interests at stake in environmental protection have been a salient inducement to the extension of transparency law in Europe and Africa.  Western social democracies have been keen to ameliorate the effects of climate change, and many African regimes have awakened to lasting environmental damage inflicted by colonial enterprises.

The Italian case is FIGC v. De Vellis Servizi Globali Srl, nos. C‑155/19 and C‑156/19, ECLI:EU:C:2021:88 (CJEU Feb. 3, 2021).  Cain Burdeau has coverage for Courthouse NewsSven Demeulemeester, William Timmermans, and Matthias Ballieu have commentary for Altius in Belgium.

The Irish case is Right to Know CLG v. Commissioner for Environmental Information, [2021] IEHC 46 (High Ct. Jan. 25, 2021) (Ireland).  Mr. Justice Alexander Owens delivered the judgment.  Right to Know is a transparency advocacy organization headed by activist, blogger, and entrepreneur Gavin Sheridan and former and working journalists.  Jonathan Moore and Patrick Reilly have commentary for Field Fisher in Dublin.

Sunday, January 10, 2021

State DA cannot shield FBI records from public disclosure under federal FOIA exemption

The federal Freedom of Information Act cannot be used to block public access to FBI records in the hands of state law enforcement, the Massachusetts Supreme Judicial Court ruled on New Year's Eve.

Rahim in a yearbook photo obtained by CNN from the Brookline library.
In 2015, an agent of the Federal Bureau of Investigation (FBI) and a Boston police detective shot and killed Usaamah Rahim when he approached officers and refused to drop a 13-inch knife.  Rahim was under investigation by a Joint Terrorism Task Force for suspected ties to the Islamic State of Iraq and the Levant (ISIL, or ISIS).  The officers were cleared in the shooting.

In 2017, under the Massachusetts public records law (PRL), the district attorney (DA) gave Rahim's mother access to more than 1,100 documents in the investigation.  However, she was denied access to documents that the FBI had loaned to the DA and designated as confidential.

That denial was in error, the Court ruled.  In conjunction with the federal district attorney and the FBI, the DA argued in court that the loaned records could not be disclosed under state law because the records are owned by the federal government, or, alternatively, that the incorporation of "other laws" as disclosure exemptions in the Massachusetts PRL required the operation of disclosure exemptions in the federal Freedom of Information Act (FOIA) and federal Privacy Act.

The Court rejected both arguments.  First, the Massachusetts PRL turns expressly on the receipt (or creation) of records by public officials, not ownership.  "If every public records request also required the requestor to conduct something akin to a title search," the Court reasoned, "then the public would necessarily be stymied in its quest for greater government transparency."

Second, the Court opined that the federal FOIA and Privacy Act both, on their own terms, apply to federal agencies, so are not compulsory on state officials.

Both holdings are consistent with nationwide norms in freedom of information law.  Ownership is sometimes invoked as a useful concept when a state court struggles to discern the difference between, for example, a family photo on the desk of a state employee from the employee's work product.  But as the Massachusetts Court recognized, that analysis breaks down quickly in practice; ownership of records as property is a red herring in access analysis.  The better analysis anchors application of public records law in the laudable statutory purposes of transparency and accountability.  There is no doubt that transparency in law enforcement investigatory records serves the interest of public accountability.

Likewise, the use of the federal law to bind state officials would have been a perversion of the accountability mechanisms in the federal FOIA and Privacy Act, and could be construed even as a violation of the Tenth Amendment.  States have recognized instances when federal laws, such as the Health Insurance Portability and Accountability Act (HIPAA), arguably count as "other law" exemptions in state freedom of information law, insofar as the laws may preempt state disclosure requirements under the Supremacy Clause of the U.S. Constitution.  But binding state officials to federal law by way of the information at issue, rather than an enumerated governmental power, would be a bridge too far.

At the same time, the Court recognized that some of the FBI records, based on their index descriptions, qualified for exemption from disclosure under the state PRL as justifiably confidential law enforcement records, for example, records related to an ongoing investigation, confidential sources, or emergency response strategies.  The Court ordered the withholding of those records and remanded the case to the Superior Court to analyze application of the state exemption to other records.

The case is Rahim v. District Attorney, No. SJC-12884 (Mass. Dec. 31, 2020) (Justia).  Justice David Lowy wrote the unanimous opinion.

Wednesday, November 11, 2020

FOIA scores among John Oliver's three favorite things

Of all the funny takes on an outraged voter's crashing of a Nevada election press conference, John Oliver's takes top honors for featuring government transparency through the Freedom of Information Act.

 

See the full segment on Election Results 2020 on HBO's Last Week Tonight with John Oliver, Nov. 8, 2020.

Monday, October 26, 2020

Legal scholars overlook scholarship about state FOIA, but dedicated academics toil for state transparency

Professor Robert Steinbuch and I aim to draw attention to the undersung work of state-law transparency  scholars through our recent publication in the Rutgers Law Record.  Here is the introductory paragraph.

We have read with interest Christina Koningisor’s publication, Transparency Deserts. While there is much to be lauded in the work – all access advocates would like to see more scholarship and publicity about the importance of transparency and accountability – we are disheartened by the article’s failure to recognize the extant vibrant body of scholarship and activism in state freedom of information law.

[¶] We, moreover, find this omission characteristic of a broader ignorance in legal academia of the sweat and toil of legal scholars, scholar-practitioners, and interdisciplinary academics who analyze and advocate for state transparency laws. This blind spot particularly manifests, unfortunately, among those at elite (typically coastal) law schools, who generally contribute vitally to the literature of the undoubtedly important federal transparency regime. These federal freedom-of-information scholars too often neglect the critical importance of state transparency laws – as well as state-transparency legal academics.

[¶] Quite in contrast, state-law access advocates generally acknowledge the value of federal statutory analogs, often referencing federal norms and practices comparatively, while, nonetheless, working upon the apt assumption that state access laws, en masse, have a greater day-to-day impact in improving Americans’ lives and in enhancing democratic accountability in America than does the federal Freedom of Information Act. Koningisor’s article evidences this disappointing tension. 

The publication is Transparency Blind Spot: A Response to Transparency Deserts, 48 Rutgers L. Rec. 1 (2020).  The publication is available for download from SSRN.  

Christina Koningisor, author of the referenced Transparency Deserts, kindly responded on the FOI listserv and gave me permission to share her thoughts.  Included is a link to her ongoing work.  Professor Steinbuch and I could not be happier to engage in a dialog that educates scholars and the public on the importance of state FOIA.

[T]hank you to Rick and Rob for taking the time to so thoughtfully respond to my piece. I sincerely appreciate it. And I take your points of criticism. The article certainly could have benefited from drawing more upon the excellent state-level scholarship that you cite in your response to my piece. I will also be sure, moving forward, to draw more heavily from the accomplished work being done by communications and journalism scholars. The point that I meant to make in my article, and which I should have stated more clearly, is that there is less overarching scholarship on public records laws across the fifty states. Of course, there are excellent state-by-state studies and critiques, some of which I cite in my piece, and many of which I do not, and which you have helpfully flagged in your response. But I was more interested in the work that has been done looking at the state of these laws as a whole. At this level, we can begin to make generalizations about what is working and what is not that are more difficult to observe when focusing solely on a single state. Rick and Rob's response seems to suggest that such surveys are inherently flawed, because they will inevitably be underinclusive and cannot possibly account for the variation across the fifty state legal regimes and the hundreds of thousands of state and local government entities. I agree—I explicitly make this point, and acknowledge the limitations of tackling such a diverse array of laws and government entities in my article's methodology section. But I believe it is nonetheless important to take stock of how these laws operate nationwide, so long as we are forthright and honest about the limitations of any fifty-state survey. I think there is value in and space in the literature for both state-by-state deep-dives and overarching cross-state examinations. Rick and Rob do highlight, in their appendix, some of the broader cross-state scholarship on state public records law that I failed to cite, most of which are published in communications and journalism journals. Again, I concede this point and agree that I should become more familiar with this interdisciplinary work.

I also want to note briefly that my Article reaches a somewhat more nuanced conclusion than transparency is simply worse at the state and local level. I do stress the significant advantages that many state public records laws have over FOIA, including the more rapid response times, the absence of a national security apparatus and classification process impeding access, and, often, the greater accessibility of state and local records officers, among other advantages. I also note that many of these state laws suffer drawbacks when compared to FOIA: many do not have easy and relatively cheap administrative-level appeal options, for example, and the costs of records production at the state and local level can often be prohibitive. Further, although there is no national security secrecy apparatus at the state and local level, it is often exceptionally difficult to obtain records from state and local law enforcement agencies. The piece was in fact inspired by my experiences working as a lawyer at The New York Times, where, in the process of assisting reporters with their federal, state, and local records requests across the country (not just in the coastal states!), I noticed that local police departments were often the most difficult agencies to obtain records from, in some ways even more secretive and difficult to work with than even the federal intelligence agencies. But more critically, the article emphasizes that when these state laws do fail—and I think we can all agree that they sometimes do—there are fewer alternative routes for information to come to light. These transparency failures are exacerbated by broader structural features of state and local government, including reduced external checks from local media and civil society organizations, and reduced intra-governmental checks between the various branches of government. This is of course not to say that every law fails in every instance, or that there aren't many excellent civil society organizations in many places doing critical work on government transparency and oversight. Of course there are abundant examples of such laudable advocacy efforts. But there are also many places across the country where local media institutions have disappeared, civil society organizations are in dire financial straits, and intra-governmental checks are muted. The nation's access laws are remarkably diverse, and contain myriad examples of both transparency failures and successes.

Once again, I very much appreciate these thoughtful and incisive responses to my piece, and I hope to continue this conversation moving forward. I have a new state transparency law-related article, [Secrecy Creep,] forthcoming in the University of Pennsylvania Law Review. It is still quite early in the editing process, so I would love to hear any feedback and suggestions ....

Monday, October 19, 2020

Court: Irish officials must justify non-disclosure under FOIA exemption for commercial information

Ireland Supreme Court chamber (Michael Foley CC BY-NC-ND 4.0)
In two judgments in late September, the Supreme Court of Ireland ruled that Freedom of Information Act (FOIA) of 2014 exemption for confidential commercial information is not mandatory and that public entities relying on the exemption "must explain why the public interest does not justify release."

In both cases, public entities responding to record requests had been permitted to rely on the prima facie application of the exemption.  That approach fell short of the Irish FOIA's legislative command, the Supreme Court reasoned, because the record requesters were given no information with which to test the validity of the exemption.  The Supreme Court reversed and remanded.

Federal and state FOIAs in the United States also exempt from disclosure confidential information that private entities supply to government when disclosure would jeopardize the private entity's competitive position.  The exemptions operate also to shield public information from disclosure that would jeopardize the government's own competitive position as an actor in the private marketplace.

The U.S. FOIA does not, and state FOIAs typically do not, require that a public agency independently test confidential-information exemption against the public interest in disclosure, essentially second-guessing private owners' confidentiality designations.  To the contrary, legislative exemptions in some states are mandatory, and not, as U.S. FOIA exemptions are, committed to administrative discretion.  Current federal policy permits the disclosure of some statutorily exempt records, but the U.S. Department of Justice (DOJ) counsels agencies to engage in "full and deliberate" analysis of competing interests.  As to federal exemption 4, for confidential information, the DOJ has opined that such information "would not ordinarily be the subject of discretionary FOIA disclosure."

University College Cork, 2019 (Michael O'Sheil CC BY-SA 4.0)
However, unlike U.S. FOIA exemption 4 ("trade secrets and commercial or financial information obtained from a person and privileged or confidential," 5 U.S.C. § 552(b)(4)), the Irish exemption for confidential information is limited by a "public interest override."  According to the Irish law, the exemption does not apply when according to the agency "head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the FOI request."  Public interest overrides favoring disclosure are uncommon in U.S. access-to-information law, except in balancing analyses involving personnel records.

Journalist Gavin Sheridan, 2014 (Markus ›fin‹ Hametner CC BY 2.0)
Decided on September 25, 2020, both cases in Ireland involved journalistic investigations.  In Minister for Communications, Energy and Natural Resources v. Information Commissioner, [2020] IESC 57, journalist, FOI advocate, and founding CEO of Vizlegal, a legal information service provider, Gavin Sheridan (recent profile at The Attic) sought access to a state contract with service wholesaler E-Nasc Éireann Teoranta (eNet) to provide public access to fibre-optic-cable infrastructure.  In University College Cork v. Information Commissioner, [2020] IESC 58, news broadcaster RTÉ sought information about a €100m loan by the European Investment Bank to the National University of Ireland, Cork.  Both court opinions were authored by Justice Marie Baker, herself a U. Cork alumna, with four other justices concurring.

More details and further analysis of the cases are available from Andrew McKeown BL at Irish Legal News (Sept. 28, 2020), and from Bébhinn Bollard, Doug McMahon, and Brendan Slattery at McCann FitzGerald (Oct. 12, 2020).

Friday, October 9, 2020

Could 'inverse' First Amendment save us from ourselves?

Journalism professor Stephen Bates, J.D., University of Nevada Las Vegas, has published a fascinating article in The Atlantic on "the inverted First Amendment," as envisioned by philosopher William Ernest Hocking (1873-1966) in the 1940s.

Hocking on National
Educational Television
As Bates explains, Hocking posited that a correct interpretation of the First Amendment command, "Congress shall make no law ... abridging the freedom of speech," incorporates the command that, sometimes, Congress must make laws that further the freedom of speech.

Post-war America was beset with the perception that mass media were out of control, contributing, as Bates describes, to "polarization, echo chambers, and provocateurs."  That's a good reminder for our times that since the Spanish-American War and subsequent, in part consequent, invention of modern journalism, it's never quite been the idyllic institution of our imaginations.  Hocking contributed a key study to the work of the U.S. Commission on Freedom of the Press, on which he served.

The commission, otherwise known as the Hutchins Commission after chair and University of Chicago President Robert Hutchins, produced a landmark 1947 report.  Concluding that the press is a vital institution in American democracy, the Hutchins Report could have been read as justification for government regulation in furtherance of social responsibility.  The report was read to bolster the controversial development of journalism professionalization and ethics codes.

Hocking's inverse, or positive, First Amendment would have compelled the government affirmatively to protect free speech and even to promote journalism.  This model of positive speech regulation is not unknown in American media law.  In the broadcast medium, because it was not afforded full First Amendment protection, the dubiously constitutional fairness doctrine was instigated by the Hutchins Commission.  In the same vein and medium, we still have, however increasingly irrelevant it is, the equal time rule.  There is some debate over whether there is not some minimal positive requirement in the First Amendment penumbra.  For example, due process in the Fifth and Fourteenth Amendments may be read to require that a court respond to a complainant's filing—a petition for redress of grievance—if only to dismiss it.

A positive First Amendment could have been the basis for a constitutional right of freedom of information, or access to information, in lieu of the later enacted and oft beleaguered Freedom of Information Act of 1967.  Some states and many countries, not to mention international human rights systems, declare a constitutional or human right of access to information, which may require government transparency and even the affirmative publication of information.

Pres. Roosevelt
proposes a Second
Bill of Rights in
January 1944.

More broadly, the notion of positive civil rights, as opposed to the mostly negative commands of the U.S. Bill of Rights, animates constitutional law in many other countries, especially in association with what are sometimes called "second" and "third generation," or "red" and "green" rights, guaranteeing socioeconomic interests, such as employment, food, housing, and a safe environment, as opposed to "first generation," "blue" rights of a political nature.  ("Generations" models of human rights have been criticized fairly as inadequate, if not patronizing, to describe socio-legal development, but the model is still usefully descriptive in some contexts.)  In fact, some positive, "second generation" rights would have been enshrined in U.S. law, had President Franklin Roosevelt's "Second Bill of Rights" gained traction.  The famously expansive constitution of South Africa well models the codification of socioeconomic rights, while the experience of the courts and the people of South Africa speaks simultaneously to the challenges of making the model work, and the arguable perils of constitutionalizing aspiration.

Prof. Bates
An inverted First Amendment could empower the government to combat misinformation, or "fake news," today in ways that the First Amendment as presently understood forbids.  However, Bates recognizes, such a positive First Amendment would have a dark side to contend with.  A strong interpretation of a positive First Amendment could justify government regulation that would suppress speech in the interest of furthering other speech, just as the fairness doctrine was said to have done.  Critiquing contemporary calls to regulate the internet, Paul Matzko for the libertarian Cato Institute wrote in 2019:

In one of her early newsletters, Ayn Rand excoriated the public interest standard as an excuse covering “the right of some men (those who, by some undefined criterion, are the public) to sacrifice the interests of other men (of those who, for unspecified reasons are not the public)” [1962].

Rand’s words were meant particularly for FCC Chairman Newton Minow, who, in what may be the only famous speech by an FCC commissioner, had described television as a “vast wasteland” and called for limits on the number of game shows, Westerns, and cartoons aired....

.... The more serious danger was the routine weaponization of the public interest standard to advance private or partisan interests. For example, during the early 1940s, the Roosevelt administration pushed for a ban on newspaper ownership of radio stations, ostensibly because of the public’s interest in preventing cross-media consolidation, but also to prevent anti-New Deal newspaper owners from having a radio platform from which to criticize the President’s policies. The FCC during Richard Nixon’s administration would use a similar rule to try and pressure the Washington Post into abandoning its investigation of the Watergate scandal. 

Sometimes the government does, itself, get into the business of journalism.  Yet recent rancor between President Trump and the Voice of America over what the President seems to perceive as partisan disloyalty shows that VOA's very credibility throughout the world depends on its statutorily mandated editorial independence.

The line between government action to protect a negative First Amendment, such as an artistic-value savings provision in indecency law, and government regulation to further a positive First Amendment, such as leveling the free speech marketplace with a must-publish or must-censor rule, is much finer in practice than in theory.  As Bates observes, "Hocking was a philosopher, not a lawyer."

The article is Stephen Bates, The Man Who Wanted to Save the First Amendment by Inverting It, The Atlantic, Oct. 7, 2020.

Monday, September 28, 2020

Abolition of police qualified immunity in Colorado, accountable development lead in FOI Summit topics

Transparency and accountability in contexts including police reform and economic development were on the agenda at the (virtual) annual summit (#FOIsummit) of the National Freedom of Information Coalition (NFOIC) late last week.  The conference continues on Tuesday and Wednesday this week.

Rep. Herod
The most provocative panel was on police reform, focusing on California, Colorado, and New York.  Colorado State Rep. Leslie Herod spoke with conviction about the raft of reforms signed into law in Colorado on Juneteenth 2020.  Included was the state's landmark elimination of qualified immunity for police.  Herod explained that the 2020 protest movement sparked an opportunity in bipartisan alignment.  The libertarian Cato Institute, she said, would like to have seen qualified immunity for public officials abolished across the board.  Police were a start.  Read more about the Colorado law from Jay Schweikert at Cato and from Russell Berman in The Atlantic.  The session is available on YouTube.

 

The conference's first general session focused on economic development and offered up another compelling colloquy.  Nothing was settled, but advocates on both sides of the transparency problem pressed their best arguments and pulled no punches.  

Greg LeRoy, executive director of D.C.-based NGO Good Jobs First, emphasized the public money at stake in economic development projects and lamented localities' complicity in the empowerment of unaccountable corporate powers over public services.  He had data from one representative development project showing public investment that could not possibly generate a justifiable return.  Such a transaction is none other than a transfer of public wealth to corporate shareholders, he said.  Good Jobs First has model legislation.  

Bryant (RLB)
Meanwhile Ronnie L. Bryant, principal of consulting firm Ronnie L. Bryant, LLC, pleaded passionately that troubled urban centers throughout America, and the people living in them, don't stand a chance at economic opportunity without offering incentives to private investors.  As moderator Dalia Thornton wrangled the pair to common ground, Bryant proved willing to guarantee transparency before and after negotiation on a deal, but not during.

Caught in the crossfire, Albuquerque, N.M., chief administrative officer Sarita Nair has worked previously on both sides of the divide, and now, she said, is the policymaker having to balance priorities.  I agreed with her sentiment recognizing that, at least, we've come a long way from the bad ol' days of heck-no, everything's-a-trade-secret FOIA exemption.


Other conference topics include access to protected health information during the pandemic and virtual public meetings.  Look for more video replays on the NFOIC YouTube channel.

Friday, May 22, 2020

Photo is 'copy,' court has to explain to city, police in state record access case under Arkansas FOIA

Professor Robert. E. Steinbuch at the University of Arkansas Little Rock reports a startling case under the Arkansas Freedom of Information Act (FOIA)—startling because a lawsuit never should have been necessary, much less an appeal.  Professor Steinbuch wrote in opinion in today's Arkansas Democrat-Gazette:
Attorney Ben Motal visited the Little Rock Police Department headquarters to inspect and copy an accident report under the Arkansas Freedom of Information Act (FOIA). The police refused to allow Motal to copy the report by taking a photograph using his cell phone. He sued.
In response, the city filed a motion to dismiss, arguing that a citizen must choose to either inspect, copy, or receive a government record—notwithstanding the metaphysical impossibility of this claim. How can you copy a record without at least somewhat inspecting it—with your eyes closed?
Then, the city argued that a photograph is not a "copy." Remarkably, the trial court judge, Mackie Pierce, agreed. He said that "if the Legislature wanted to give you the right to photograph public records, they could have easily used the word 'photograph.' They didn't. They used 'copy' and 'copying.'"
. . . .
Pierce also dismissed the case because the city relented after being sued, and it provided the records directly to Motal without any need to photograph or otherwise copy them. We see this type of legal manipulation all the time, wherein public entities comply with the law only after being sued and then seek to Jedi-mind-trick their way out of litigation by asserting in court that "there's nothing to see here—move along, move along."
The result too often is that only attorneys and those who can afford attorneys have rights, because they can sue. If you're a regular Joe, you don't have any rights, say the city and the trial judge, because they've orchestrated it that there's no precedent to protect you when the city repeats the same bad acts they did to Motal.
Reversing, the Arkansas Court of Appeals, per Judge Kenneth S. Hixson, ruled in favor of Motal.  Now the city claims it will appeal to the state Supreme Court.  Professor Steinbuch predicts the city will not succeed, despite a dubiously reasoned dissent by Judge Raymond R. Abramson, who would have ruled the case moot ("these are not the droids we're looking for") and parroted the city's argument.  Judge Hixson was an attorney in private practice before going on the bench.  Judge Abramson was a municipal police court judge and a city attorney.

Steinbuch is right in his reasoning and his prediction.  Shame on the LRPD and the City of Little Rock.  They seem to fundamentally misunderstand that a public record belongs to the public.  They are only its custodians.

The opinion piece is Robert E. Steinbuch, "Photo" Finish, Ark. Democrat-Gazette, May 22, 2020.  With University of Arkansas Professor John J. Watkins, Professor Steinbuch and I are co-authors of the treatise, The Arkansas Freedom of Information Act (6th ed. 2017) (excerpt of prior edition at SSRN), which Judge Hixson referenced.

The case is Motal v. City of Little Rock, No. CV-19-344, 2020 Ark. App. 308 (Ark. Ct. App. May 13, 2020), also available from Justia.

Thursday, May 7, 2020

Tort litigation as means to truth about the Troubles, authors propose; approach parallels access theory

A new article from researchers in Newcastle, England, posits the use of tort litigation to exonerate the right to truth in relation to the Troubles in Northern Ireland.

The authors are Conall Mallory, University of Northumbria at Newcastle,  Sean Molloy, Newcastle University, and Colin Murray, Newcastle University Law School.  Their article is Tort, Truth Recovery and the Northern Ireland Conflict, forthcoming 2020 in the European Human Rights Law Review and available on SSRN.  (Hat tip @ Steve Hedley, Private Law Theory.)  Here is an excerpt of the abstract.
Northern Ireland has no effective process to address [the] legacy of the human tragedy of decades of conflict. And yet during that conflict, and especially in the years since the Belfast/Good Friday Agreement 1998, people have employed multiple legal mechanisms to gain information about events which affected them and their loved ones.... One under-explored element of this complex picture is use of tort in legacy cases. Civil actions, supported by legal aid funding in Northern Ireland, provide a potential avenue for the discovery of information held by public bodies. Even unsuccessful actions can thus contribute new information about the events in question. Many of the harms inflicted during the conflict were torts as well as crimes, and this article assesses the extent to which these civil actions provide an ersatz mechanism for truth recovery, and challenges efforts to curtail such actions as a "witch-hunt."
Derry clash, Apr. 1971 (N. Ire. public record)
The right to truth is a piece in the puzzle of truth-and-reconciliation strategies as they have been implemented with variable success in post-conflict venues around the world.  The strategies are predicated on the notion that the revelation of truth has value in of itself to victims and survivors.  The conventional legal system, focused as it tends to be on compensation, often accomplishes nothing when compensation fails to materialize, or even nothing in the way of meaningful remedy if compensation does happen.  Thus truth proceedings are regarded as a hallmark legal innovation to clear the decks and allow peoples and nations to move forward.  So well regarded is this principle that human rights instruments and institutions have come to recognize "the right to truth" as a human right, a necessary corollary to the right to life.

In this article, the authors lament that there has been no effective, systematic truth process following the Troubles.  To the contrary, they posit, the U.K. government has as often thrown up roadblocks to truthful revelation.  A patchwork of legal mechanisms has nonetheless allowed truth to surface, they explain, and they review the efficacy of legal actions such as human rights litigation and information requests under the U.K. Freedom of Information Act.

Tort litigation offers another, as yet underutilized avenue, they propose.  For reference, they point to the Alien Tort Statute in U.S. jurisprudence, though, I add, it has lately fallen on hard times in the U.S. Supreme Court; and they point to U.K. agreements in recent years to pay claimants in Kenya and Cyprus in compensation for violent colonial suppression in the 1950s.  Survivors of the Troubles, even those who were children at the time, may press tort claims, such as battery, trespass, and civil conspiracy, against violent actors in the Troubles, whether British security officials, IRA fighters, or other paramilitarists.

British Army patrol in Kenya during 1950s Mau Mau Uprising
(Imperial War Museums)
Tort litigation in the proposed vein is not a new idea, but stumbles amid many hurdles, not the least of which is sovereign immunity.  But immunity can be overcome in actions against persons, whether non-governmental or gone rogue.  And there is ample evidence of both in the history of the Troubles.  An IRA defendant, for example, may be a purely private actor, and a British official who inflicted violence might be sufficiently dissociated from government policy as to negate immunity.  There's a fine line anyway between tort litigation and human rights claims, see Stefan Somers's whole book on the subject, the two more or less coinciding in the United States in the area of "constitutional tort."

Anyway, the authors claims, the plaintiffs in these tort actions do not actually have to win; they just have to survive dismissal to get to discovery.  Because their aim, remember, is truth, not compensation.  So the authors are really proposing that tort litigation be used for its discovery methods, regardless of the outcome of the case.  They moreover suggest that the litigation might shake loose answers from the government to avoid the prospect of compensation, or at least the cost of litigating, and they illustrate that having happened already in select cases.

The idea of using tort litigation for its discovery mechanism rather than with the aim of compensation is dicey, but not wholly objectionable.  Ethically a lawyer should not file an action that isn't winnable upon some rational theory.  But these cases wouldn't fail that test; there's no rule against having a multitude of aims in the fight, even if you think you'll lose on decision.  Of course, American tort lawyers are often criticized (whether it's true or not, discussion for another day) for playing fast and loose with that understanding, using the litigation process and its hefty transaction costs to shake down defendants on barely credible claims.  Here at least the aim is truth, rather than a pay day, so an aim with some sanction in civil rights.

The proposed litigation strategy reminds me of the work I've been doing lately (e.g., U.S. reform proposal) on the freedom of information, or right to access to information, in South African law.  There, a provision of law allows access to private sector records upon stringent prerequisites, namely, the exoneration of human rights.  The right to truth is one right that should fit that bill, a co-author and I have posited (abstract on SSRN, blog).  In a conventional South African FOI case, the courts allowed access to the records of a public steel company to investigate the exploitation of Apartheid labor.  It's a short leap from there to investigation of a private company with similarly sinister secrets.

Moreover, the South African courts have put some mileage on the private-sector-access law as a tool for "pre-discovery," before tort litigation is filed, to help a would-be plaintiff test the evidentiary waters.  That approach can only make litigation more efficient, more than one South African court has reasoned, by filtering out non-viable causes.

Those twin rationales, the right to truth and the validity of pre-discovery, seem incidentally to countenance the repurposing of tort law to the aim that Mallory, Molloy, and Murray here propose.  A comprehensive and government-sponsored approach to truth-finding would be more satisfying to those of us who like to call something what it is.  But maybe this is a way that tort law can exert policy pressure to bring about, in time, a coherent legal approach to the right to truth.

Saturday, September 14, 2019

Shine the light: 'Journal of Civic Information' debuts

There can't be enough research on facilitating the freedom of information, given that today we are a global information society.  A new journal debuted this month from the Brechner Center and partners that strikes at the FOI sweet spot, and as we wish all information projects were, it's open access.  Welcome to The Journal of Civic Information.  Here is its About:

The Journal of Civic Information is an open-access, interdisciplinary journal that publishes peer-reviewed research related to the field of accessibility of public information. We welcome submissions from both scholars and practitioners from all disciplines that involve managing information for public use. 
The Journal is a publication of the Brechner Center for Freedom of Information at the University of Florida. The Brechner Center is an incubator for initiatives that give the public timely and affordable access to the information necessary for informed, participatory citizenship. The Center is a source of research, expertise and advocacy about the law of gathering and disseminating news across all platforms and technologies. 
The Journal publishes quarterly online, and author submissions will be accepted on a rolling year-round basis. 
Proposals may encompass any research methodological approach (legal, survey, experimental, content analysis, etc.), and should provide insights of practical value for those who work day-to-day in access to government information. Topics may include issues regarding access to public records and meetings, court transparency, access to public employees and elected officials, open data and technology, and other related matters. The Journal gives priority to articles with relevance to the state-and-local levels of government. 
And here is the ToC for volume 1, issue 1:


Submitting authors start here.  The journal is headed by access aces Frank LoMonte, University of Florida; David Cuillier, University of Arizona; and Rachael Jones, University of Florida.  I'm privileged to add the rough edge to an otherwise exceptionally well rounded editorial board.

Bring it on, secrecy!

Thursday, September 5, 2019

Colorful CUNY comics teach environmental law, policy, and social justice for all ages

Comic books are not new to legal education, but the Center for Urban Environmental Reform (CUER) at the City University of New York Law School is trailblazing.  Among the fabulous contributions to the recently published The Media Method (CAP), a book about popular culture in legal education, is a chapter by CUNY Law Professor Rebecca Bratspies and her artist-collaborators, including Charlie La Greca.  They are using comic books to reach kids, and, well, me, to talk about environmental conservation and climate change.  They made a video, too, about the project:


When I saw Professor Bratspies at the SEALS conference in July, she gave me a copy of her most recent creation, Book 2 in the Environmental Justice Chronicles!: Bina's Planet.  Suffice to say, it's another hit.  No spoilers, but I was hooked from page one, when heroine-everywoman and high-school-soccer-star-alumna Bina returned to her school-stadium pitch, where, implicitly, young women's soccer reigns supreme.  She goes on to save the day with her colorful cohort, demonstrating en route best practices in youthful social activism à la Greta Thunberg or Xiuhtezcatl Martinez.  I love that Bratspies elevated the tale to the planetary level, making it simultaneously descriptive of the supranational threat and artfully suggestive of trending science fiction by black women writers (see also Terra Nullius).

Bina's Planet is not yet online, but is available in paper from CUER for public education projects.  While you wait for mass dissemination, catch up with Book 1, Mayah's Lot, available to download, or watch and listen online:



Incidentally, for a related CUNY workshop on the Freedom of Information Act in 2018, Bratspies, La Greca, et al., produced a pamphlet-sized special appearance of Mayah on the FOIA.  I have a copy, but cannot find an image in circulation.  I hope they'll put it online in the future.

Saturday, July 6, 2019

Practical obscurity, other privacy arguments deliver blow to media in Mass. FOIA case

The Massachusetts Supreme Judicial Court (SJC) decided a state open records case in mid-June that invites lower courts to substantially broaden privacy exemption from access to information. The case is Boston Globe Media Partners, LLC v. Department of Public Health, No. SJC-12622 (Mass. June 17, 2019) (Lexis).

The Boston Globe is seeking access to a database of state birth, marriage, and death records from the Department of Public Health (DPH). In disagreement with state administrative officers enforcing the open records law, DPH refused access in part, citing statutory protections of personal privacy.  The SJC rejected dispositive motions from both sides, electing to clarify the law and remand for a range of further fact finding.

The case resonates with various problems that have become familiar to privacy law over the last few decades. First, can privacy arise in a compilation of records, when the records are not private one by one?  Second, can privacy preclude disclosure of records in government possession because the records are more about individuals than about the government? Third, how can personal privacy in electronic public records account for an individual's hypothetical privacy interests in the future?

First, the compilation problem arises in that these vital records already are available to the public. Members of the public are allowed to go to  DPH's research room during 11 opening hours each week to view vital records in the electronic database. There are limitations, though. A researcher must search for a name, viewing responsive records only one at a time. Printing is not available, though there is no limitation on copying down information.

At issue legally, then, is whether mere compilation can change the public/private disposition of a record. Historically, the answer to this question was no. Norms of public records law as it developed in the 20th century held that a record should be evaluated within its four corners.

However, that position changed at the federal level, under the federal Freedom of Information Act (FOIA), with the landmark case, U.S. Department of Justice v. Reporters Committee for Freedom of the Press (U.S. 1989). In that early instance of database access, the Supreme Court construed the FOIA contrary to access on various grounds.  The case was an infamous loss for the access NGO Reporters Committee, which filed as amicus on behalf of the Globe in this case.

Among the conclusions of Reporters Committee, the Court embraced the doctrine of practical obscurity: the notion that a record that is hard to find, whether by rifling through paper or by collecting geographically disparate components, may therein preserve a privacy interest against disclosure when compiled electronically with other such records. With its limitations on record access through the research room, DPH means to effect practical obscurity. The SJC was receptive to the argument, and it will remain to the lower court to decide what weight that privacy holds. Practical obscurity has been a thorn in the side of access advocates for the 30 years since Reporters Committee, while it has captivated courts.

Second, the content problem goes to the disputed heart of access law, its purpose. In Reporters Committee and subsequent cases, the federal courts embraced the cramped position that the purpose of access law is to reveal "what government is up to." Thus when records contain personal information, access opponents ground resistance in statutory purpose without even needing to rely on privacy exemptions.

Access advocates have argued powerfully against this position, especially in the states. Simply knowing what information government is collecting about individuals seems an important priority in the digital age. And the limited purpose argument ignores the plain theoretical position that government records are public records simply by virtue of ownership or possession, because ours is a government of the people. 

On this score the SJC was more solicitous of a broad construction. The state law expressly cites the watchdog purpose. Nevertheless, the Court reasoned that the statute more broadly means to further public interests, which may require disclosure even of personally identifying information in public possession. At the same time, the Court observed that public interests may weigh against disclosure, acknowledging personal privacy protection as a public interest. In the instant case, the Court cited only a public interest in record accuracy, as argued by the Globe, to favor disclosure. The balance is left to remand, but the interest of accuracy seems thin relative to the array of privacy arguments deployed by DPH.

That array arises in connection with the third and most contemporary problem, the protection of individuals' hypothetical privacy interests. Here again is a privacy interest that conventional access law would have disregarded. Yet the SJC was solicitous.

This same problem has been much discussed in the internet age in the guise of the right to be forgotten, or right to erasure. If a government entity is obliged to disclose databases upon demand, then it becomes difficult, if not impossible, to withdraw information from the public sphere later. Access absolutists say, so be it. But privacy advocates assert that meritorious processes for correcting or sealing sensitive public records, such as criminal histories or family matters, are undermined by an internet that "never forgets."

Especially with regard to vital records, the SJC spent some ink on the problem of sex changes and the discovery of a person's birth identity. That is a factor rightly weighed into the privacy balance on remand, the Court held. While evincing compassion, the Court's position is sure to rile access advocates. There seems no logical stopping point from the Court's position to the conclusion that all personally identifying information must be protected against disclosure, in case any one person wishes to change identity in the future. That would be a rule ripe for abuse in official hands.

This decision is bad news for access advocates. It invites privacy to the table as a weight co-equal with access, virtually lifting the presumption-of-access thumb from the scale. The government won broad discretion to conceal its activities relative to people.

At the same time, the Court showed itself to be in step with contemporary privacy law. For better and worse, people are looking to government to protect them against abuses of information in the private sector, from identity theft to big data analytics. In the absence of legislation, the courts have been ever more inclined to oblige.

It remains to be seen what price this protection will exact from transparency and accountability of the government itself.