Showing posts with label right to information. Show all posts
Showing posts with label right to information. Show all posts

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!

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 RenĂ© 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.

Thursday, January 31, 2019

Research examines accountability through journalism and right to information in India

I've published a research article (available on SSRN), "Accountability in the Private Sector: African Ambition for Right to Information in India," in the latest volume (25:3) of the Panjab University Research Journal Social Sciences.  Here is the abstract:

The right to information (RTI) has come to recognition as a human right in international law. Conventionally, RTI is a means for a person to demand information from a public body. RTI has proven especially potent in the hands of journalists, who seek information on behalf of the electorate to hold public institutions accountable. But in the recent decades in which RTI has attained human rights stature, power in society has shifted in substantial measure from public to private sector. Journalistic inquiry is frustrated by the inapplicability of access laws to private bodies. In India, direct access to the private sector through RTI law was considered and rejected in the 1990s; however, the 2005 RTI Act allows a generous measure of access to non-governmental actors with public ties. A legal movement has been gaining steam in Africa to push past the public-private divide and recognise the importance of RTI to protect human rights regardless of the public or private character of the respondent. Different approaches are emerging with respect to journalist access in the African model. Amid trending privatisation and burgeoning private power, the time might be coming for India to reconsider the road not taken.

The Research Journal Social Sciences is a peer-reviewed publication of Panjab University in union-administered Chandigarh, India.  Panjab is a public university on 550 acres, enrolling 17,000 students in 78 departments and 15 centers for teaching and research, including a law school.  More than 250,000 more students are enrolled in 198 constituent and affiliated colleges and centers throughout the region.  Founded in 1882, Panjab was split in the 1947 partition of India from the University of Punjab, now in Pakistan.

Dr. Verma
This issue of the journal is dedicated to development and mass communication.  I was fortunate to be invited to contribute by the special editor of the issue, Dr. Manish Verma (LinkedIn), who serves as director of international affairs and director of the School of Media at Amity University Jaipur in Rajasthan.  Dr. Verma is a Ph.D. graduate of Panjab University and an alumnus of the Executive Program in Management and Leadership in Education at Harvard University.  He's also a top-shelf colleague.