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

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.

Friday, March 29, 2019

S.D. newspaper seeks transparency in federal food subsidies through SCOTUS-bound FOIA suit

Amicus brief in FMI v. Argus Leader
On April 22, the U.S. Supreme Court will hear oral argument in a Freedom Of Information Act (FOIA), 5 U.S.C. § 552 (LII), case concerning the federal open records law exemption for sensitive competitive information.  Textually, the American access-to-information (ATI) statute, para. (b)(4) ("exemption 4"), exempts from disclosure "trade secrets and commercial or financial information obtained from a person [or legal personality] and privileged or confidential."  State ATI laws have comparable provisions, and interpretation of the federal law is sometimes influential on state courts interpreting similar language. 

Plaintiff below, Respondent Argus Leader Media publishes the Argus Leader, the largest-circulation newspaper in South Dakota, based in Sioux Falls, and a member of the USA Today newspaper network.  In investigation of federal food subsidies, the Leader invoked the FOIA to find out how much taxpayer money is paid by the U.S. Department of Agriculture (USDA) to individual food retailers.  The USDA refused on a number of grounds, including exemption 4.  Joining the USDA in resisting disclosure is a trade association of food retailers, Petitioner Food Marketing Institute (FMI).

The Eighth Circuit, per U.S. Circuit Judge Jane L. Kelly, upheld the trial court's ruling in favor of the newspaper.  Argus Leader Media v. USDA, 889 F.3d 914 (8th Cir. 2018).  The court wrote: 
Applying the law to the facts, we find no basis for reversal. The trial evidence showed that the grocery industry is highly competitive, but is already rich with publically-available data that market participants (and prospective market entrants) use to model their competitors' sales. The evidence shows that releasing the contested data is likely to make these statistical models marginally more accurate. But the evidence does not support a finding that this marginal improvement in accuracy is likely to cause substantial competitive harm. The USDA's evidence showed only that more accurate information would allow grocery retailers to make better business decisions.

On appeal (No. 18-481: SCOTUSblog, Oyez), the parties dispute how to interpret exemption 4.  The Eighth Circuit followed the lead of the U.S. Supreme Court to define "confidential" as risking "substantial competitive harm."  Even within that test, lower courts have divided over the requisite degree of certainty to bring the exemption into play, from the reasonable possibility of advantage to a competitor to a near certainty that economic loss will result. FMI would instead prefer that the Court embrace a much broader exemption: what FMI calls the "ordinary meaning" of the word "confidential," that is, simply, exempting from disclosure information that a company has not disclosed.

I signed on in support of Argus Leader Media to an Amicus Brief of FOIA and First Amendment Scholars, organized by the First Amendment Clinic at Cornell Law School, by students under the leadership of faculty including Assistant Director Cortelyou C. Kenney, and for my part via FOIA expert Professor Margaret Kwoka at the University of Denver Sturm College of Law.  The brief asserts:

Petitioner [FMI] argues for sweeping changes to FOIA’s test for disclosure of confidential commercial information under Exemption 4 used by all Courts of Appeals for the past forty-four years, beginning with National Parks in 1974. Acknowledging that FOIA does not define the term “confidential,” the National Parks court held that the statute requires disclosure— notwithstanding a claim that the withheld records are confidential commercial information—absent a showing of either (1) impairment of the government’s ability to obtain necessary information in the future; or, as relevant here, (2) infliction of substantial competitive harm to the information submitter. 498 F.2d 765, 770 (D.C. Cir. 1974). That test has withstood the test of time. Any change should come from Congress, rather than this Court, because of the unusual context of FOIA, and the unusual context of this case.

Saliently, to my mind, the brief demonstrates congressional approval of the "substantial harm" test, and the FOIA ought not be reinterpreted contrary to its laudable aim of transparency.

As I have written recently in another context, the greatest threat around the world today to transparency and accountability might come from the private sector as surely as from the public sector.  There should be no question as to the need to maximize transparency where the two meet.  While FMI lobbies Congress and works through a Food PAC and "political education fund," certainly taxpayers are entitled to know what public subsidies are being delivered to FMI constituents.

Other signatories on the brief are: Ashutosh A. Bhagwat, Martin Luther King, Jr. Professor of Law, University of California, Davis School of Law; Michael C. Dorf, Robert S. Stevens Professor of Law,
Cornell Law School; Heidi Kitrosser, Professor of Law, University of Minnesota Law School; Seth F. Kreimer, Kenneth W. Gemmill Professor, University of Pennsylvania School of Law; Margaret B. Kwoka, Associate Professor with Tenure, University of Denver Sturm College of Law; James O’Reilly, Retired Professor, University of Cincinnati College of Law; and Nelson Tebbe, Professor of Law, Cornell Law School.

Monday, February 11, 2019

Court's strike against Mass. wiretap law for recording police raises bigger questions of 'right to receive,' freedom of information

The "right to receive" expression or information is the long neglected, often doubted, and sometimes maligned sibling of the freedom of expression.  While the First Amendment posits the expression of information that one possesses, the right to receive posits the acquisition of information as an essential prerequisite.  In other words, without access to information, the freedom of expression is meaningless.

By Khairil Yusof (CC BY 2.0).
More broadly conceptualized, the right to receive is an umbrella that covers a great many propositions in civil rights discourse, especially the freedom of information or access to information (FOI or ATI), and including also the right to news-gathering and "citizen journalism"; the right of access to meetings, libraries, and public facilities such as prisons; and, most recently, the right to record police.  Historically, American constitutional law widely rejected propositions in this vein, evidenced by the famously statutory U.S. Freedom of Information Act, 5 U.S.C. § 552, which nonetheless has exerted substantial influence in the advent of ATI as a constitutional and human right elsewhere in the world.

Modern information society has raised new challenges to the American constitutional rejection of a right to receive information and prompted the reexamination of right-to-receive propositions in the courts.  A new appeal has arisen in the logic that access is prerequisite to meaningful democratic engagement through the freedoms to speak, publish, assemble, and petition.  A fair piece of this reexamination has appeared in the case law surrounding the video-recording of police activity, spurred in part by news-media focus on police-involved shootings and subsequent Black Lives Matter and related protests. 

Conventional First Amendment law would have subsumed video-recording under the doctrine of no right to gather the news, thus compelling would-be recorders to obey police orders to stop upon self-serving public-safety rationales, and on pain of civil and criminal justice consequences for failure to comply.  But as electronic media technology has dissolved the distance between recording and public broadcast—the latter unquestionably constitutionally protected by the speech-core prior restraint doctrine—even American courts have been reluctant to find recording devoid of constitutional significance.

In December 2018, the U.S. District Court for the District of Massachusetts held the Massachusetts wiretap statute, a "two-party consent" law (see code; Digital Media Law Project), unconstitutional--facially, though in the limited, articulated circumstances of "the secret recording of police officers performing their duties in public, and the secret recording of government officials doing the same." The court, per Chief Judge Patti B. Saris, held:

On the core constitutional issue, the Court holds that secret audio recording of government officials, including law enforcement officials, performing their duties in public is protected by the First Amendment, subject only to reasonable time, place, and manner restrictions. Because Section 99 [Mass. wiretap] fails intermediate scrutiny when applied to such conduct, it is unconstitutional in those circumstances.

James O'Keefe speaks at 2018 Student Action Summit, West Palm Beach,
Florida, Dec. 21, 2018. By Gage Skidmore (CC BY-SA 2.0).
The ruling came upon joint consideration of two cases involving different partisan affilliations.  In one case, Boston-based civil rights activists K. Eric Martin and René Perez, supported by the ACLU of Massachusetts, sued under civil rights law to combat authorities' investigation of them for openly and secretly recording police activity in pedestrian and traffic stops and at protests.  A second case involved the conservative activist James O'Keefe and his Project Veritas Action Fund (PVA).  PVA sought to effect secret recordings, and not to be criminally prosecuted for them, in Massachusetts in a broader and intriguing list of scenarios:

  • "landlords renting unsafe apartments to college students;
  • "government officials, including police officers, legislators, or members of the Massachusetts Office for Refugees and Immigrants, to ascertain their positions on 'sanctuary cities';
  • "'protest management' activities by both government officials and private individuals related to Antifa protests; and 
  • "interactions with Harvard University officials to research its endowment and use of federal funds."
As the court acknowledged, the First Circuit previously joined the majority trend in courts to recognize a constitutional right (subject to reasonable time-place-manner regulation) to record police in public.  Considering the extant threat of prosecution, the court found sufficient merit in plaintiffs' claims to survive ripeness review. 

C.J. Saris
The court then found that application of the law to recording public officials in their official capacity in public places could not survive First Amendment intermediate scrutiny: "narrowly tailored to serve a significant government interest."  Following the First Circuit's example, the court ruled that accountability outweighed slimmer competing interests in public order and officials' personal privacy.  The court left to future cases to determine whether the rule here may be extended to recordings in private venues that are places of public accommodation, such as a restaurant, and to determine who besides police are "government officials."

The case is Martin v. Gross, No. 1:16-cv-11362-PBS (D. Mass. Dec. 10, 2018), available here from Courthouse News Service.  Hat tip to Michael Lambert at Prince Lobel and Christine Corcos at Media Law Prof Blog.

As the courts continue to struggle with right-to-receive cases, rejection of the "right" in American constitutional law becomes increasingly untenable.  A generation of rehearings on the question in the U.S. Supreme Court, and a consequent reshaping of the relevant First Amendment doctrine, seems inevitable.

Tuesday, January 29, 2019

Research proposes U.S. FOIA reform upon South African example

I've published in the Villanova Law Review, "Access to Information in the Private Sector: African Inspiration for U.S. FOIA Reform" (available from SSRN).  The article appears as part of a symposium edition of the law review (63:5) on FOIA reform.  The special edition commemorates 50 years of the FOIA, which was passed by Congress in 1966 and went into effect in 1967.  I was privileged to present the piece at the Villanova University Charles Widger School of Law in 2017, upon generous invitation to the Norman J. Shachoy Symposium.  Here is the foreword (footnotes omitted):
The Freedom of Information Act of 1966 (FOIA) was a landmark global example of transparency, or access to information (ATI), to ensure democratically accountable governance.  Government had grown in the twentieth century, especially in the new administrative state, and FOIA re-balanced the distribution of power between people and public authority.  Today in the twenty-first century, much power in American society has migrated from the public sector to the private sector, specifically into the hands of corporations.  Even insofar as it works well, FOIA operates only against the conventional state by enabling an individual’s capacity to realize civil and political rights.  FOIA simply was not designed to enable the attainment of human necessities such as education and housing, much less environmental protection and healthcare, especially when the greatest threat to those rights is not government deprivation, but the commercial marketplace.

ATI in Africa is a different story.  Three decades after FOIA, planted among the unprecedented ambitions of the South African constitution was a right to ATI.   And within that right lay an extraordinary new provision.  As guaranteed by the South African constitution and enabling law, a person may request records from a nongovernmental respondent, a private body, if the person can show that the records are “required for the exercise or protection of any rights.”   In other words, South African ATI law jettisoned the historic barrier between public and private sectors.  South African lawmakers were informed by the experience of apartheid, in which the private sector’s complicity had been a vital and brutal partner in state-sanctioned human rights abuse.
Blossoming beyond even the visioning of an apartheid remedy, ATI in the private sector has been construed by the courts in a wide range of applications, from intrafamilial business disputes to environmental conservation.  South African courts have struggled to define “required” and “rights” in applying the ATI law.  But South Africa has demonstrated that ATI in the private sector can work.  The public-private division justifies a change in the terms of access, but not an absolute barrier.  In the last five years, the South African approach has been reiterated in the domestic law of at least five other African countries and in pan-African human rights instruments meant to inspire more domestic adoptions.

In this article, I suggest that the African example inspire U.S. FOIA reform.  In its time, FOIA shone a light into the darkest corners of American politics.  Now America deserves a new approach to restore power to the people in the age of the corporation.

Wednesday, November 1, 2017

Villanova symposium seeks to rejuvenate 50-year-old U.S. FOIA

Panel 5 on global and comparative perspectives: moderater Fran Burns, professor of practice in the Department of Public Administration at Villanova University; Anamarija Musa, commissioner of information for the Republic of Croatia; Suzanne J. Piotrowski, associate professor in the School of Public Affairs and Administration, Rutgers University-Newark; and the smiling village idiot.  Photo graciously provided by Catherine E. Wilson, associate professor and chair of the Department of Public Administration at Villanova University.


The week before last, the Villanova Law Review at the Villanova University Charles Widger School of Law hosted the Norman J. Shachoy Symposium on Fifty Years Under the Freedom of Information Act, 1967-2017.  I was privileged to participate and owe a debt of gratitude to Villanova for extraordinary hospitality, especially Law Review coordinators Jourdan Simko and Valerie Caras (current masthead); faculty coordinator Professor Tuan Samahon, himself an accomplished teacher and scholar in constitutional law and government transparency and accountability; and Arthur J. Kania Dean and Professor of Law Mark C. Alexander.

Persons with a broad range and wealth of experience and perspective on the federal FOIA participated in the symposium, offering a mind-boggling array of insights into the state of our 50-year-old transparency regime and its prospects for reform.  Professor Samahon aptly opened the conference by asking participants to think about how the course of history might have been different had transparency been the rule of the day before 1967, say, at the time of the Bay of Pigs or the Gulf of Tonkin.  What far-reaching impact would there be of transformed American involvement in those events?  The question points to historic mistakes and lives that might have been saved, yes; but also to unknown alternatives and dangers unwittingly averted.


The U.S. FOIA was among the first of its kind in the modern world and ground-breaking in its scope.  Professor Samahon later in the afternoon, asking a question of my own panel, pointed to the startling success of the FOIA, lest we take it for granted: a beacon of transparency and accountability in the world, the operationalization of an essential condition for a successful democracy, and a feature of government that is sorely wanting in so many countries today, with real human suffering as the price of opacity and corruption.

At the same time, program participants seemed in universal agreement:  Our FOIA is showing its age.  More dynamic transparency instruments in foreign and international law—incubated in the so-called “second-generation” constitutional and human rights systems of Western Europe and emerging democracies around the world—have made vast strides in government transparency and accountability, leaving our FOIA looking, to put it mildly, rather tired and worn around the edges.  Speaking a cutting truth, Judicial Watch attorney Michael Bekesha said in an afternoon panel that to really make FOIA work, the current statute, 5 U.S.C. § 552, needs to be “blown up,” and a new law constructed in its place.  My own talk looked to innovations in FOI, or "access to information" (ATI) in Africa for inspiration.

Villanova video-recorded the day-long program, and the Law Review plans a symposium issue with contributions from the panelists, to be published later next year.  So stay tuned for more on this important subject.  Meanwhile, I will paste below the program, to whet the appetite.

The Villanova Law Review Norman J. Shachoy Symposium:
Fifty Years Under the Freedom of Information Act, 1967-2017
Friday, October 20, 2017, 9 a.m. to 4:30 p.m.

Welcome
  • Mark C. Alexander, Arthur J. Kania Dean and Professor of Law, Villanova University Charles Widger School of Law
  • Tuan Samahon, Professor of Law, Villanova University Charles Widger School of Law
Panel 1: The “On the Ground” Operation of FOIA
  • Susan Long, Associate Professor of Managerial Statistics and Director of the TRAC Research Center, Whitman School of Management, Syracuse University
  • Margaret Kwoka, Associate Professor, University of Denver Sturm College of Law
  • Moderated by Suzanne J. Piotrowski, Associate Professor, School of Public Affairs and Administration, Rutgers University-Newark
Panel 2: The Press, the Academy, and FOIA
  • David McGraw, Deputy General Counsel, The New York Times
  • Jason Leopold, Senior Investigative Reporter, BuzzFeed News
  • David M. Barrett, Professor of Political Science, Villanova University
  • Moderated by Terry Mutchler, Mutchler Lyons
Panel 3: Congressional Oversight of the Executive Branch
  • Katy Rother, Senior Counsel, Committee on Oversight and Government Reform, U.S. House of Representatives
  • Aram A. Gavoor, Visiting Associate Professor of Law, The George Washington University Law School
  • Moderated by Catherine J. Lanctot, Professor of Law, Villanova University Charles Widger School of Law
Panel 4: Resolving FOIA Disputes
  • Alina Semo, Director, Office of Government Information Services, National Archives and Records Administration
  • Marcia Berman, Assistant Branch Director, Civil Division, Federal Programs Branch, U.S. Department of Justice
  • Michael Bekesha, Attorney, Judicial Watch, Inc.
  • Moderated by Margaret Kwoka, Associate Professor, University of Denver Sturm College of Law
Panel 5: State and Global Comparative Perspectives
  • Anamarija Musa, Commissioner of Information, Republic of Croatia
  • Suzanne J. Piotrowski, Associate Professor, School of Public Affairs and Administration, Rutgers University-Newark
  • Richard J. Peltz-Steele, Professor of Law, University of Massachusetts School of Law
  • Moderated by Fran Burns, Professor of Practice, Villanova University

Tuesday, June 6, 2017

Exemplary court decision pries open 50-year-old murder investigation



Transparency (FOIA, open records, sunshine) advocates, public information officers, and judges hearing FOIA cases throughout the United States should heed a straightforward and concise decision this spring from the Arkansas Supreme Court, per Justice Rhonda K. Wood, concerning ongoing police investigations.  The case is Arkansas State Police v. Keech Law Firm, P.A., No. 16-545 (Ark. Apr. 20, 2017).  Bonus: the case comes with interesting, if tragic, facts.

In 1963, the murder of Harding College (now University) alumna and English Professor Ruby Lowery Stapleton shocked the community of Searcy, Arkansas.  According to the Harding College Bulletin, Stapleton was believed taken from a self-service laundry in Searcy, Arkansas.  Federal and state law enforcement officers and Harding volunteers searched for her for 11 days, and Harding offered a $1,000 reward for information leading to her detection.  Her body was found by a squirrel hunter in a dry creek bed 15 miles from the laundry.  Stapleton was survived by her husband and two children.
Professor Ruby Stapleton in the Harding College Bulletin, October 1963

Stapleton’s murder remains unsolved.  Fifty years later, in November 2013, family members sought access to the Arkansas State Police case file on the Stapleton murder.  The request spurred brief police re-engagement with the cold case, apparently to no avail.  Police refused access to the file under the ongoing investigation exemption of the Arkansas Freedom of Information Act.  After in camera review of the file, the Arkansas Circuit Court rejected the police theory and ordered the file disclosed.  The Arkansas Supreme Court affirmed.

Ongoing investigation exemptions are a FOIA universal across the state and federal sunshine statutes.  The public policy supporting them is hardly disputed: police investigations require secrecy, lest evidence be compromised or suspects tipped off.  At the same time, transparency is nowhere more urgent a policy priority than when counterpoised with the enormity of state police power to curtail liberty and even life.  This balance proves exceptionally difficult to achieve.  Cases vary broadly in their particulars, and judicial determinations are profoundly fact driven.

Therefore, though the language of ongoing investigation exemptions varies considerably, the question usually boils down to a court’s willingness to defer to, or to second-guess, police discretion.  The Arkansas statute provides a good example of the textual variability, because the statute actually protects only “undisclosed” police records against disclosure.  But that nonsensical oddity has long been construed by the state courts to mean “ongoing investigation,” in conformance with multistate FOIA norms.

In practice, on the whole across the states, courts tend to err on the side of secrecy.  To the frustration of journalists especially, no local judge wants to be responsible for obstructing or derailing a criminal investigation.  Thus law enforcement officials are frequently able to prolong the secrecy surrounding an investigation file well beyond arrest—to charge, to trial, even to exhaustion of appeals.  In fact, criminal investigation files might remain sealed indefinitely, while co-conspirators remain at large—or crimes remain unsolved.

Despite judicial patience that sometimes seems inexhaustible, the imperative of accountability for law enforcement weighs heavily against indefinite secrecy.  The Arkansas Supreme Court quoted a treatise on the Arkansas FOIA co-authored by John J. Watkins, Robert E. Steinbuch, and myself:

Police and prosecutors should not be permitted to apply this exemption as a matter of course until conviction or acquittal, or indefinitely until a charge is brought, if there is no genuine interest in enduring secrecy. To do so would excessively insulate the government against legitimate probes by the public and media into the performance of law-enforcement functions, even apart from the disadvantage to criminal defendants.

Long-cold cases such as the Stapleton murder squarely present this problem.  In reviewing the investigation file in camera in 2014, the Arkansas Circuit Court found “sparse activity” since 1965.  Police cited no documentary evidence of ongoing investigation from 1965 until the filing of the family’s FOIA request.  The Arkansas Supreme Court summed up the case simply: “This is a 54-year-old murder case. No charges have been brought or appear to be imminent.  The victim’s family and the public are entitled to know how the officials in this case, i.e., law enforcement, performed their duties.”

In the course of its concise analysis, the Court reiterated several points of best practices in FOIA compliance and dispute resolution.  These are multistate principles that warrant review.

  • A FOIA should be construed liberally to accomplish the objective of transparency.
  • Inversely, FOIA exemptions should be construed narrowly to accomplish the objective of transparency.
  • As usual in litigation, questions of law and interpretation of a FOIA are subject to de novo appellate review.
  • A trial court should conduct in camera review of disputed records to determine the applicability of a statutory exemption from disclosure.

The Arkansas Supreme Court stated moreover another solid practice point that had been lacking in state precedent:  Also as usual in litigation, questions of fact in a FOIA analysis are subject to the more deferential appellate standard of review, clear error.  As the Court observed, application of an ongoing investigation exemption is especially prone to generate a question of fact, as a qualitative, if not quantitative, assessment of purported police investigative activity is part and parcel of the analysis.  In the Stapleton FOIA case, the Court applied the clear error standard to defer to the circuit court’s assessment of the 1965-2014 police file.

As the Arkansas Court wrote, “A finding is clearly erroneous when the appellate court is left with a definite and firm conviction that a mistake has been committed.”  Or as the Seventh Circuit famously wrote in 1988: “To be clearly erroneous, a decision must strike us as more than just maybe or probably wrong; it must, as one member of this court recently stated during oral argument, strike us as wrong with the force of a five-week-old, unrefrigerated dead fish.”  A finding that is not clearly erroneous should be left undisturbed.

Finally, full disclosure and point of privilege:  Justice Wood, who authored this case for the Arkansas Supreme Court, was a law student, and then later a dean, when I taught at the University of Arkansas at Little Rock Law School.  She has shined in her career as lawyer, academic, and judge, undoubtedly owing to her unyielding integrity, character, and intellect—and decidedly owing in no part to me.  Nevertheless, I assert pride by virtue of mere association.