Showing posts with label Robert Steinbuch. Show all posts
Showing posts with label Robert Steinbuch. Show all posts

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 ....

Wednesday, July 22, 2020

Research for educational opportunity, accountability requires transparency, need not forgo student privacy

When I had the privilege of working on transparency issues in the Arkansas General Assembly in the 20-aughts, two legislators and I promoted a bill that would have required public state universities to disclose data on their use of affirmative action in admissions.
One legislator, an African-American woman, reacted with manifest hostility, as if we sought outright to deprive persons of color of access to education.  I wish she would have engaged with us rather than fighting the bill behind closed doors.  It probably would have surprised her to learn that I was motivated specifically by an accusation leveled by an African-American advocacy group.  The group alleged, inter alia, that higher ed was using affirmative action to boost enrollment profiles, for PR and accreditation purposes, but then failing to support those enrolled students' success on state campuses.

I didn't know, and to this day don't know, whether the group's accusations held up as more than anecdotes.  As a transparency and accountability advocate and public educator myself, charged with the responsibility of faculty governance, I wanted to know the truth.  And there arose the problem: It was impossible to do the research, because the universities claimed, even in response to internal queries, that student privacy required nearly every datum about admissions to be held secret.  There was no way to know what students benefited from affirmative action, nor to match those data up with how those students fared.

The access bill ultimately failed, and, to my view, the reason for that failure only made the transparency case stronger.  We were not undone by objection based on equality of opportunity.  We were undone because our bill, which broadly defined affirmative action, would have required disclosure of legacy admissions: that is, when a university admits an applicant because the applicant is related to an alumna or alumnus, especially one who's a donor.  That kind of admissions preference is known to contribute to systemic discrimination against persons of color, not to mention aggravation of our alarming rise in America of socioeconomic disparity.

State Capitol, Little Rock, Arkansas
The hostility of the aforementioned African-American legislator was a warm smile compared with the outrage that poured forth from a white, male legislator, who happened also to be affiliated with Arkansas State University (ASU).  In a legislative hearing, he challenged my assertion that the universities would not happily cooperate with my research.  They would, he alleged, no legislation needed.  He persuaded his committee colleagues to no-pass the bill with a promise: After the legislative session, I should contact him personally for help procuring the data, and he would see to it that the disclosures happened.

The bill died.  After the session, I contacted our zealous ASU opponent, that he might make good on his promise.  He ignored my query and never responded.

My work on that bill fueled an ongoing interest in the interaction of access and privacy in education, especially the interaction of the federal Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g, and state freedom of information acts (FOIAs) (e.g., in 2018).  In that vein, my Arkansas colleague Professor Robert Steinbuch and I have just published, Ongoing Challenges in Researching Affirmative Action in Legal Education: Maximizing Public Welfare Through Transparency, 26:1 Texas Hispanic Journal of Law & Policy 57 (2020).  Here is the abstract:
The public good often depends on social science research that employs personal data. Volumes of scientific breakthroughs based on data accumulated through access to public information demonstrate the importance and feasibility of enabling research in the public interest while still respecting data privacy. For decades, reliable and routine technical methods have ensured protection for personal privacy by de-identifying personal data. Social science research into legal education and admission to the bar is presently a matter of urgent public interest and importance, requiring solid empirical analysis of anonymized personal data that government authorities possess. Social science research into the effects of affirmative action represents standard, indeed commonplace, research practice furthering the public interest, while employing established methods that minimize the risk to privacy. Yet, when seeking information regarding admissions standards and success metrics, researchers have faced remarkable headwinds from government officials. In this article, we continue to discuss a topic to which we have devoted significant professional energy: the proper balance of privacy, transparency, and accountability in researching legal education.
Our research grew out of an amicus representation in 2018, alongside Professor Eugene Volokh at UCLA Law.

I'm not here naming the ASU-affiliated legislator only because, these many years later, I don't remember his name.  I have no hesitation in calling him out if someone can remind me.

Pertinently, the data in question are still held secret, in Arkansas and many states.  So my colleagues in FOIA research, including Professor Steinbuch, still would welcome that legislator's help.  It's shameful that this fight for transparency and accountability is still under way all these years later.  It's one thing to adopt a policy position and have reasoned disagreement over it.  It's another thing entirely, and anathema to democracy, to insist on a policy position while willfully concealing evidence of its efficacy.

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.

Tuesday, June 4, 2019

Arkansas higher ed faculty sue to protect tenure, academic freedom

An assault on academic freedom in Arkansas has drawn a lawsuit by faculty.

In fall 2017, I republished concerns by my colleagues in the University of Arkansas System that proposed changes to board policy essentially would render academic tenure a nullity, allowing discipline and termination of faculty on a broad range of new and vague grounds.  Adopted in 2018, one new policy provision allows faculty firing for "a pattern of conduct that is detrimental to the productive and efficient operation of the instructional or work environment."  That's code for "we don't like you; play ball or else."  

Symptomatic of the contemporary corporatization of higher education, the new policy fails to recognize that faculty are actually the governors of universities, not at-will workers on the assembly line.  This is not just an Arkansas problem.  See generally Benjamin Ginsberg's "lacerating" (WSJ) 2013 book, The Fall of the Faculty, for documentation of this phenomenon and why it's so dangerous. For a stunning yet representative case study, see Jacob Howland on the University of Tulsa for the Manhattan Institute's City Journal (describing "
a perfect storm of trends currently tearing through the American academy: the confident ignorance of administrators, the infantilization of students, the policing of faculty, the replacement of thinking with ideological jargon, and the corporatization of education") (and podcast).

Now three tenured faculty have sued over the revised policy.  Professor Joshua M. Silverstein at the University of Arkansas Little Rock Law School explained in an email to Arkansas Little Rock faculty last week:

After the Board of Trustees adopted the revisions to Board Policy 405.1 at the Board’s March, 2018 meeting, I wrote an email summarizing what happened at the meeting and offering some thoughts regarding strategies that could be used to combat the changes.  In the latter section, I noted that litigation challenging the revisions was highly likely.  That litigation has commenced.  Yesterday, the law firm of Quattlebaum, Grooms & Tull filed a lawsuit on behalf of three of our colleagues – one each from UAMS [Medical School], UA-Little Rock, and UA-Monticello.  The lawsuit seeks to nullify the changes to 405.1 to the extent they apply to UA System faculty who were tenured or started in a tenure-track position prior to March 29, 2018, the date the amendments to 405.1 were adopted.  As I explained last year during the deliberations on 405.1, I believe that the lawsuit has a very good chance of succeeding....
[A] bill that was introduced in the Arkansas legislature this past session ... would have prohibited the application of Revised 405.1 to any faculty member with tenure or on the tenure track at the time the revisions were adopted.  Rob Steinbuch, a colleague of mine at the law school, and I were deeply involved with that bill and we both testified in favor of it.  Had the bill become law, it would have nullified the need for litigation.  Unfortunately, the bill died in committee.  Hence the filing of the lawsuit.

Note that this lawsuit itself won't stop the slow death of tenure and academic freedom going forward at the University of Arkansas.  New hires would still be entitled only to paper-thin tenure.  Meanwhile, nationwide, we still are grappling with the elimination of tenure-track positions altogether, in favor of cheap adjunct labor.  Nevertheless, I applaud my plaintiff-colleagues.  It's time faculty started pushing back, lest we irreversibly turn American universities into a mockery of the Bolognian conception—just in time for its 1,000-year anniversary in 2088.

Professor Silverstein is tracking the litigation at his blog, Jurisophia, where you can download the complaint.  The case is Palade, Borse, and Sullivan v. Board of Trustees of the University of Arkansas System, No. 4:19-cv00379-JM (E.D. Ark. filed May 31, 2019).  Here is June 1 coverage in The Arkansas Democrat-Gazette.  One of the named plaintiffs is a law professor, extraordinary practicing attorney, and treasured friend of mine, J. Thomas Sullivan at Arkansas Little Rock.

Wednesday, January 31, 2018

Brief argues public interest in social science research, FOI, while managing privacy risk

Representing the National Association of Scholars, UCLA Professor Eugene Volokh, UALR Professor Robert Steinbuch, and I filed an amicus brief in a California appellate case in which we argue the public interest in social science research, especially freedom of information in the area of legal education and admission to the bar, while managing risks to personal privacy.  Below is the introduction.  A longer excerpt appears here on TaxProf Blog, along with a link to the full brief in PDF.  My thanks to two formidable writing partners and a dedicated client.

The public good often depends on social science research that employs personal data. Volumes of scientific breakthroughs based on data accumulated through access to public information demonstrate the importance and feasibility of enabling research in the public interest while still respecting data privacy. For decades, reliable and routine technical methods have ensured protection for personal privacy by de-identifying personal data.
Social science research into legal education and admission to the bar is presently a matter of urgent public interest and importance, requiring solid empirical analysis of anonymized personal data that government authorities possess. Social science research of the very kind proposed by Appellants Sander and The First Amendment Coalition represents standard, indeed commonplace, research practice furthering the public interest, while employing established methodologies that minimize the risk to privacy.

Wednesday, March 8, 2017

Don't take transparency for granted; FOIAs are always under fire

The 91st General Assembly of the state of Arkansas is winding down; the deadline to file new bills passed two days ago.  Unexceptionally among the states, this flurry of furious lawmaking always entails a range of assaults on the state freedom of information act (FOIA).  In fact, this spring season after the bill deadline is especially hazardous for transparency advocates, because pending bills and so-called "shell" bills, filed but devoid of content, can be quickly amended and rushed through committee with monstrous consequences.  The Arkansas Project, which favors transparency in state government, has written about the FOIA activity in this session, lately here and here.

It happens that this year also has seen the publication of the sixth edition of the treatise, The Arkansas Freedom of Information Act (U. Ark. Press), on which I am privileged to be co-author with Professor Robert Steinbuch and lead author John Watkins, professor emeritus.  Steinbuch has been especially vocal in the media on FOIA, making the case for transparency and holding legislative feet to the fire of public accountability, lest legislators undermine the law.  He penned in jest a cartoon, which he's given me permission to publish here:

Last year the federal FOIA turned 50, and the Swedish Press Freedom Act, oft regarded as the first FOIA in the world, turned 250.  This year, alongside its contemporaries in many states, the Arkansas FOIA turns 50.  Amid all the changes of our technological and populist age--no matter whoever is wiretapping whom--let's hope that Steinbuch's cartoon is only a lampoon at legislators' expense, and not a portent for government transparency and accountability at any level.