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Colleagues and I submitted a comment to the federal government yesterday urging recognition of the freedom of information, that is, "transparency by design," in government acquisition of information and communication technology.
The White House has ordered the overhaul, or streamlining, of the federal procurement process, ideally through simplification of the voluminous and complex Federal Acquisition Regulation.
The Federal Acquisition Regulatory Council is working over the regulations part by part with "deviation guidelines," allowing agencies room to depart from regulations until a proper regulatory rewrite can be accomplished—something that typically takes years—and inviting feedback on a rolling basis. Part 39, for which model deviation recently issued, covers the acquisition of information and communication technology.
The Administration's aim is a "Revolutionary FAR Overhaul" to "Restor[e] Common Sense to Federal Procurement." The government website Acquisition.gov explains (original emphasis):
Led by the Office of Federal Procurement Policy (OFPP) and the
Federal Acquisition Regulatory Council (FAR Council), this initiative
will return the FAR to its statutory roots, rewritten in plain language,
and remove most non-statutory rules. In addition, non-regulatory
buying guides will provide practical strategies grounded in common sense
while remaining outside the FAR.
The goal is clear: faster acquisitions, greater competition, and better results.
Naturally, there is concern by skeptics of the Administration that the overhaul is only a smokescreen to loosen the reins on corporate contractors and grease the wheels of profit off the public fisc.
Regardless of the realpolitik, the Administration at least represents that it wants transparency, which should facilitate a free market and accountability in federal contracting. Like the "DOGE" initiative, the ends are laudable, even if the means are debatable.
Thus, in the shared spirit of efficient governance, colleagues and I sought to remind the FAR Council and OFPP that FOIA already provides for access to agency records in the hands of contractors. However, the reality, exaggerated in the information age, is that public and exempt data often are so commingled as practically to preclude disclosure. At best, efficiency is compromised, wasting public resources. At worst, malfeasance is let to fester.
The problem is not new; I wrote in 2006 (page 731) about a once well known 1993 case of access to contractor data under state freedom of information law in event of a public emergency. The European Union has had a regulation in place for more than 20 years to ensure that public access to records is preserved through "transparency by design" in EU record-keeping.
Transparency by design should be a bedrock principle of government contracting at every level, especially in the information age. Politicians might disagree about what to spend public money on, but transparency and accountability after the fact is a non-partisan imperative.
Below is the full text of the Comment of Freedom of Information Scholars on FAR Overhaul part 39 (submitted July 28, 2025). My interdisciplinary co-authors are Jason R. Baron, J.D., professor of the practice at the University of Maryland College of Information; David Cuillier, Ph.D., director of the Freedom of Information Project, Brechner Center for the Advancement of the First Amendment, at the University of Florida College of Journalism and Mass Communication; Shelley Kimball, Ph.D., associate program director and senior lecturer at the Johns Hopkins Krieger School of Arts and Sciences; and Margaret Kwoka, J.D., Lawrence “Larry” Herman Professor in Law at the Moritz College of Law, The Ohio State University.
Comment of Scholars of Freedom of Information Law
on FAR Overhaul, Part 39
July 28, 2025
We, the undersigned, are scholars of freedom of information law. We suggest that the federal acquisition process would benefit from recognition of agency responsibilities to comply with the Freedom of Information Act (FOIA), 5 U.S.C. § 552, which would promote the use of technology to make fulfillment of agencies’ FOIA duties less costly and time-consuming, at a significant manpower savings to the taxpayer.
Although the FAR, 48 C.F.R. ch. 1, provides for the inclusion of a clause in solicitations and contracts for the design, development, or operation of a system of records to accomplish an agency function subject to the Privacy Act, 5 U.S.C. § 552a (see 48 C.F.R. §§ 24.104 & 52.224-1), it appears that there is no comparable FAR provision addressing an agency’s obligation under FOIA to provide access to federal agency records. As the federal government has increased its reliance on electronic data systems, it is important, in the interest of transparency, to ensure that agencies have the means effectively and efficiently to pull information out of these systems in response to FOIA requests. One way to do that is to require federal agencies to consider their responsibilities under FOIA when they set out to acquire information technology, especially communication technology.
In 2020, we understand that the National Archives and Record Administration (NARA) recommended to the Office of Management and Budget (OMB) that FAR part 39 be revised to recognize FOIA obligations. Specifically, NARA proposed, inter alia:
Agencies must ensure that contracts for designing, developing, purchasing, or operating information technology or systems, including cloud-based, and Federal or non-Federal information systems, contain requirements that facilitate FOIA processing in their system design specifications (5 U.S.C. § 552). Each agency must ensure that system design includes the following FOIA-related search and retrieval capabilities:
(1) conduct robust searches of electronic records in response to FOIA requests;
(2) document the search and search results; and
(3) export the documents that result from the searches in the format the agency requires for responding to FOIA requests.
The NARA proposal was based on Recommendation 2018-03 of the FOIA Advisory Committee. The Committee in 2018 recognized a need for “all agencies, when acquiring electronic records management software, electronic mail software, and other records related information technology, to consider features that will help facilitate the agencies’ responsibilities under FOIA to provide access to federal agency records.” Accordingly, the Office of Government Information Services (OGIS) drafted a business case in FY 2019 that would modify the FAR to require access to federal agency records as a consideration in the procurement process. As stated above, NARA submitted the business case to OMB in early FY 2020 for consideration by the Federal Acquisition Regulatory Council. Upon the occasion of the FAR overhaul process, as to part 39 and more generally, we suggest that government transparency and efficiency would be achieved by agency recognition of FOIA responsibilities at the time of acquisition of information and communication technology systems. “Transparency by design” in such systems obviates waste of government resources trying to comply with FOIA after the fact with systems ill designed to facilitate compliance.
We therefore recommend that the above specifications be included in the FAR revisions being contemplated, in the revised regulations themselves, in the newly contemplated Buyer’s Guides, or in both.
Respectfully submitted,
/s/ Richard J. Peltz-Steele
Richard J. Peltz-Steele, J.D.
Chancellor Professor, University of Massachusetts Law School
Jason R. Baron, J.D.
Professor of the Practice, University of Maryland College of Information
David Cuillier, Ph.D.
Director, The Freedom of Information Project, Brechner Center for the Advancement of the First Amendment, University of Florida College of Journalism and Mass Communication
Shelley Kimball, Ph.D.
Associate Program Director, Senior Lecturer, Johns Hopkins Krieger School of Arts and Sciences
Margaret Kwoka, J.D.
Lawrence “Larry” Herman Professor in Law, Moritz College of Law, The Ohio State University
Affiliations are stated for identification only, not to represent any position of the named institutions.
