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.

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