Law school seminars dive deep in FOI, free press, film

RJ Peltz-Steele with Google Gemini CC0 1.0

Students in my spring seminars, in Freedom of Information Law and in Free Press and Film, did outstanding work, and I am indebted both to them and to colleagues who joined my classes for teaching me and enriching my intellectual life.

Recently I spoke on the telephone to a long-time friend in academics, a professor at another university, many miles away. We shared strikingly similar stories of well paid administrators, whose numbers on campus seems to grow faster than the wealth gap, even while they lament cuts of not-nearly-as-well-paid staff and faculty positions to keep us within budget.

Well, the similarity would be striking if we were not accustomed to it. Universities in the United States combating financial exigency now seem to me like the nation of Oceania in George Orwell's 1984. They are forever locked in conflict with one or another enemy that is not in fact the greatest existential threat. Rather, the government itself perpetuates a state of emergency so that apparatchiks (administrators) can consume the fruits of labor while the masses (faculty and students) abide oppressive regulation and a diminishing standard of living.

My friend suggested that I propose and apply for a new university office, perhaps a Vice Chancellor of Financial Exigency. That sounds ironically lucrative. As they say, "when in Rome"; if the empire is falling, grab all the grapes you can.

Our conversation devolved, as it invariably does, into why we put up with it all. Coming in a very close second to paying the mortgage is an answer that I fear is both cliché and self-condemnatory: We are gratified when our students learn and excel.

Faculty Seminar Contributors

In the spring, I had the privilege to teach two seminars, one my recurring offering in freedom-of-information (FOI) law, the other a one-off, a course on free press and film. The FOI class coincided with the conclusion of my term on the federal Freedom of Information Act (FOIA) Advisory Committee, which service afforded me an opportunity to expose my students to leading-edge issues in the field.

The free-press-and-film class allowed me and the class to sink our teeth into the captivating book, featured at The Savory Tort in 2024, Filming the First: Cinematic Portrayals of Freedom of the Press (Lexington Books 2025), by my friend and colleague Helen J. Knowles-Gardner, formerly a political science professor and now research director at the Institute for Free Speech (IFS), and co-authors Professor Emeritus Bruce E. Altschuler, retired from political science at SUNY Oswego, and Professor Brandon T. Metroka, faculty in political science at the University of the Incarnate Word (UIW). (Photos: Knowles-Gardner, from IFS; Altschuler, 2017, by Jim Russel, SUNY Oswego '83, Metroka, from UIW).

My classes were enriched by colleagues who gave generously of their time and energy. Professor Knowles-Gardner joined us in person in Free Press and Film to discuss the book's treatment of the films Denial (2016) and Deliberate Intent (2000) (and to give a campus lecture). Professor Altschuler joined us for three classes, discussing his first three chapters of the book and the films Citizen Kane (1941), RKO 281 (1999), All the President's Men (1976), The Post (2017), Network (1976), and The Social Network (2010). Attorney Dan Greenberg, of the Cato Institute, joined Free Press and Film to discuss his documentary film, American Libel (2025), featured at The Savory Tort last year. (Photo: Dan Greenberg, from Cato.)

My FOI class welcomed attorney and information practice Professor Jason Baron, University of Maryland (U. Md.), and a fellow member of the FOIA Advisory Committee; Arkansas investigative journalist Brandon Howard; independent filmmaker and journalism and mass communication Professor Natalie Pattillo, and a university student leader and student journalist; Professor Robert Steinbuch, featured recently here at The Savory Tort, Bowen Law School, University of Arkansas, Little Rock (UALR); attorney and adjunct professor Gregory V. Sullivan, president of Malloy & Sullivan and president of the New England First Amendment Coalition; and journalism and media studies Professor A.Jay Wagner, Diederich College of Communication, Marquette University, a past member of the FOIA Advisory Committee.

Professor Baron discussed the science of artificial intelligence and how advancements in the era will change the practice of FOI law for both requesters and record officers. Journalist Howard joined the class to talk about his past newspaper reporting and ongoing pro se FOI litigation to access a cold murder investigation case file in northwest Arkansas (see, e.g., The Weekly Vista; see also breaking news). Professor Steinbuch discussed his ongoing transparency advocacy in Arkansas and opinion writing for The Arkansas Democrat-Gazette. Attorney Sullivan discussed his remarkable record of high-profile access litigation and appellate argument on behalf of New England journalists. Professor Wagner discussed his recent work on statutory citizenship requirements to block state access to public records and the ongoing debate over the constitutionality of the laws.

Professor Pattillo and her student, whose identity I am protecting just in case, discussed contemporary challenges facing campus journalists, including recalcitrant administrators. Professor Pattillo's teaching contract at UMass Dartmouth was not renewed this academic year (e.g., LinkedIn, New Bedford Light, Boston Globe (paywall)). 

(Photos: Jason Baron, from U. Md.; Brandon Howard, from LinkedIn; Natalie Pattillo, from the Center for Independent Documentary; Robert Steinbuch, from UALR; Gregory V. Sullivan, from Malloy & Sullivan; A.Jay Wagner, from Marquette University.)

Student Seminar Contributors

Students in both seminars produced a range of thought-provoking papers built upon insightful research and analysis. I am here honored to share selected titles and abstract, with authors' permission. I thank these stars for their work and for their collaborative spirit in learning with and from each other, and I anticipate with great pleasure their shining future contributions to the legal profession.

—in Freedom of Information Law

Jeremy Aylward, Retaining Transparency in the Digital Age: Retention of Electronic Records Under Federal and State Freedom of Information Laws. The proliferation of electronic records and digital communications has fundamentally challenged the legal frameworks governing government transparency and public accountability. While the federal Freedom of Information Act (FOIA) and Federal Records Act (FRA) establish baseline obligations for the retention and disclosure of electronic records, the enforceability of those obligations remains structurally compromised. This paper analyzes and synthesizes the legal frameworks governing the retention and disclosure of electronic records and messages under federal law and the open records statutes of California, Colorado, and Virginia, with particular attention to how those frameworks can be meaningfully enforced. Drawing on statutory text, agency guidance, and judicial interpretation, this paper examines how each jurisdiction defines "electronic records," what retention schedules apply, how personal device and third-party platform use by public officials is treated, and critically, what mechanisms exist to compel compliance, sanction violations, and remedy the destruction or concealment of covered records. The paper argues that across all four jurisdictions, electronic records retention law suffers from a common structural deficiency: obligations are broad in theory but weak in enforcement. This leaves agencies largely self-policing in an environment where the incentives to retain records often conflict with the incentives to delete them. While California's content-focused judicial approach offers the most expansive access framework, and Colorado and Virginia provide more structured but still under-enforced retention regimes, none of the examined frameworks provides a reliably enforceable mechanism for preventing loss of electronic records at the point of creation or ensuring accountability after the fact. The paper concludes by identifying the enforcement gaps that most critically undermine the transparency purposes of freedom of information law and by synthesizing lessons across jurisdictions for legislative and judicial reform. (Image: RJ Peltz-Steele with Google Gemini CC0 1.0.)

Davis Preston, The Public Records Law Battles with State University Athletic Programs. Universities have taken advantage of state public record exemptions to skirt disclosures of their spending. To combat the skirting of disclosures and to provide more transparency, the NCAA mandates budget disclosures. Public records law exemptions still apply to the schools, but the NCAA mandates force the schools to disclose certain financial information anyway. These mandatory budget disclosures have their own limitations that allow schools to avoid full disclosure. They open the door to what money goes where, but withhold important information, such as who donates, how much they donate, and how the fundraising is organized. There are different structures for how athletic departments operate, but most use private or semi-private entities. Schools use privatization to avoid full disclosure after they meet the NCAA mandate. Different states have different laws that allow universities to avoid full disclosure. The University of Arkansas utilizes a private foundation, multiple universities in Florida utilize direct support organizations, and the University of Georgia utilizes disclosure time extensions. The laws are used to circumvent the public records law, which was enacted to hold public bodies accountable and provide transparency. The universities argue that they should have privacy on financials, as this allows them to keep a competitive advantage over other universities. This argument is met with the public interest in how the government spends money and whether this is done with transparency. There should be statutory change to prevent this circumvention of disclosure. Statutory change would entail eliminating exemption for direct support organizations, standardization of the function equivalent test, and the elimination of time extensions. (Image: RJ Peltz-Steele with Google Gemini CC0 1.0.)

Natalie Whitt, Civil Enforcement, Criminal Secrecy: Exemption 7 and the Expansion of FOIA Withholding in Immigration. The Freedom of Information Act (FOIA) was enacted to promote accountability and transparency by providing public access to government records, which can be essential where state authority is most coercive. Public oversight of law enforcement depends heavily on access to government records, yet requests for information concerning police misconduct and officer discipline frequently encounter resistance under FOIA Exemption 7. This provision permits agencies to withhold records compiled for law enforcement purposes when disclosure could cause specified harms, including unwarranted invasions of personal privacy, interference with investigations, and safety risks. Although these protections serve legitimate interests, their application in the policing context often limits public access to information necessary to evaluate how coercive state authority is exercised. Courts typically afford a high level of deference to agencies in determining whether records qualify as law enforcement materials and in assessing claimed harms, while disclosure obligations such as segregability receive comparatively limited enforcement. The result can be a practical barrier to transparency in cases involving alleged misconduct, systemic failures, or patterns of negative behavior from law enforcement. This Article argues that the way courts apply Exemption 7 in the context of policing creates barriers to public oversight that are difficult to reconcile with FOIA’s central purpose of promoting accountability for government power. Law enforcement agencies have a unique authority to detain, search, and use force, while transparency regarding the exercise of that authority serves both individual and systemic public interests. However, courts do not consistently distinguish between personal privacy concerns and information reflecting official conduct, and agencies’ assertions of harm are often accepted without requiring narrowly tailored justifications. (Image: RJ Peltz-Steele with Google Gemini CC0 1.0.)

Tryon P. Woods, Prison Conditions and Public Access Or 1(st Am.) + 5(th Am.) + 8(th Am.) + 14(th Am.) < 0—Public Access Math. This paper examines the ongoing problem of prison conditions and the public’s access to information about what goes on inside prisons. I approach the topic as a twin problem in which access and conditions are opposite sides of the same coin. The correlation between access restrictions and the unconstitutional treatment of prisoners has a long history and nation-wide scope. Tracking the aftermath of the seminal case of the Attica Prison uprising in 1971 through several lawsuits arising from institutional failures in Arizona, California, Massachusetts, and NYC, this paper argues that in a "total institution" such as a prison or jail, visibility is the leverage on which control hinges. This relationship between the public’s access to information about prison conditions and the constitutional violations suffered by prisoners is refracted in the Court’s First, Fifth, Eighth, and Fourteenth Amendment jurisprudence on prisons since the passage of FOIA in 1966. Despite the Court’s best efforts, together with prison administrators, the relational reality of law remains undeniable: the undoing of legal personhood for people inside serves as the precondition for inventing the human outside. (When not appearing in class as a law student to sate his insatiable appetite for learning, Professor Woods also is a gifted faculty colleague in crime and justice studies at UMass Dartmouth.—RJPS) (Image: Attica Correctional Facility, 2007, by Bronayur via Wikimedia Commons CC BY-SA 3.0.)

—in Free Press and Film

Bryce Mayo, "A Victim of the Modern Age": Soft Law, Private Suppression, and the Gap in First Amendment Theory. Film: A Clockwork Orange (1971). The First Amendment limits government suppression of speech but does not restrict decisions by private actors. Constitutional doctrine therefore provides little guidance when expression is constrained through private pressures, market incentives, or self-censorship. These forms of non-governmental suppression rarely enter the public consciousness until controversy surrounding particular works expose gaps in the protection of free expression. Stanley Kubrick’s decision to withdraw A Clockwork Orange from circulation in the United Kingdom illustrates this limitation. Although the film was not subject to a nationwide legal prohibition, public controversy, media criticism, and local regulatory pressures preceded Kubrick’s nearly three-decade self-removal. The film thus remained legally protected yet practically inaccessible within the United Kingdom. This incident provides an example of how expressive works may be limited without formal government censorship. This paper examines Kubrick’s withdrawal through a United States constitutional framework. It focuses on the distinction between state restriction and private control over distribution and argues that the quasi-ban of A Clockwork Orange reveals a structural gap in First Amendment theory: while speech is protected from government censorship, it may nonetheless be suppressed through "soft law" mechanisms that operate outside formal doctrine. By separating the concept of legal protection from the reality of circulation, the paper clarifies how expression may be constrained outside traditional censorship models. Recognizing this distinction clarifies the practical limits of First Amendment protections and refines how free speech is understood in modern media environments shaped by market forces, rating systems, and distribution controls.

Amanda McKim, Speech is Free, But Lies You (Should) Have to Pay For: Alex Jones as a Case Study for the Inefficacies of Defamation Remedies. Film: The Truth vs. Alex Jones (2024). The First Amendment to the United States Constitution protects against government-imposed limitations on freedom of speech and the press. However, the First Amendment does not protect false, defamatory statements. The intersection of these two areas of law has been analyzed at length, but changes in the way society communicates raises new and more dangerous problems regarding the ways in which courts address the impacts of defamation. With the continually expanding use of smart phones, access to endless perspectives in media, and few ways to definitively “fact-check” sources, misinformation is rampant, and defamation remedies provide increasingly less meaningful relief to victims. Alex Jones, a prominent radio show host, was sued in two states and has three judgments against him for defaming victims’ families in the 2012 Sandy Hook school shooting. The complaints were filed in 2018 and resulted in final judgements in 2022 of $1.5 billion dollars in damages. Jones has since filed for bankruptcy, has yet to pay the victims. He continues to disparage the proceedings to his audience of 30 million daily listeners. The plaintiffs’ inability to recover and Jones’s continuing perpetuation of harmful rhetoric exemplify the ineffectiveness of current remedies to meaningfully address serious speech-based harms. Despite legal scholars’ critiques of equitable remedies in defamation cases, equity might be the best way to address previous harm, prevent future harm, and provide victims with the most appropriate relief. (Image: Instagram post by WBRC-TV 6 News, 2025. With characteristic wisdom and compassion, Ms. McKim suggested that the visual element for this post might honor the victims of Sandy Hook, rather than draw further attention to Alex Jones, who doesn't need help with publicity. I could not agree more.—RJPS)

Sean Pillai, Embedded Reporting and Freedom of the Press in Contemporary U.S. Military Operations. Films: Restrepo (2010), Korengal (2014). Embedding journalists with U.S. military combat operations highlights the ongoing struggle to balance democratic transparency with the practical realities of fighting a war. The system of embed reporting was created to give the public a clearer view of what happens on the front lines, but it also has raised continuing legal and ethical questions about how independent reporters truly can be when the military controls their access and movement. This paper looks at those tensions through the perspectives offered in Restrepo (2010) and Korengal (2014), while examining the most recent policy behind U.S. military media policy. The embed system shows why some limits on access are required in combat zones and that journalists must continue to expose themselves to risk both in the legal realm and physically in combat to protect speech. 

Carson Powell, From Accessible Knowledge to Smoldering Ashes: How a 1953 Novel Reflects a Growing Current Reality. Film: Fahrenheit 451 (2018). A story created in 1953, in which books are outlawed, and "firemen" burn any that are found, illustrates the censorship of knowledge and literature. In Arkansas, on March 30, 2023, the legislature approved Act 372, which included new standards for individuals selling books, whether that be public libraries or small bookstores. Act 372 in theory was approved to protect minors from stumbling onto books and materials of mature topics, but many librarians disagreed with that sentiment. The librarians of Fayetteville Public Library, joined by many other librarians believed that the act forces libraries and bookstores to segregate novels with "mature subjects" into "adult only" areas, with a risk of criminal prosecution for failing to do so. The Fayetteville Public Library, American Civil Liberties Union of Arkansas, and others filed complaints alleging that Act 372, like outright book banning, violates the First Amendment as overbreadth, vague, and content based. The lawsuit further alleged that the Act was intended to limit access of books and media to individuals who have a constitutional right to the books in question. The Arkansas legislature follows a growing trend around the United States of State’s legislators introducing and implementing acts regarding content-based censorship. Increasing enactments of laws aimed at removing “obscene” materials to protect children effectively discriminates against people of color, underrepresented communities, and members of the LGBTQ+ community. The suppression of media, whether by segregating books in the library or bookstore, or by facilitating their removal smaller institutions having to take the books off the shelves at risk of prosecution, reflects the themes of Ray Bradbury’s Fahrenheit 451.

Jakob Resnik, Apocalypse When? Latent Power of 47 U.S.C. § 606. Film: Apocalypse Now (1979). 47 U.S.C. § 606 ("the Act"), "The War Powers of the President," is an unused emergency provision of the Telecommunications Act that threatens freedom of speech. Apocalypse Now contains a scene depicting a Time magazine article reporting inaccurately on the Vietnam War. The movie does not say whether Time published the article of its own volition or at the direction of the Government. In the "real world," the Act enables the President to seize and control certain media outlets during emergencies, possibly controlling public reception of the emergency. The Act lacks clear definitions or statutory guardrails, conferring power so broadly that it is easily abused. Apocalypse Now used a prop magazine article to illustrate dishonesty in the media without showing where the lie really came from. Under the Act, a censored message can easily be spread to deceive the public regardless of free speech objections that outlets may raise. This is a threat to free speech.

Corie Scott, Tried Inside a Story: Pretrial Narrative and the Fragility of the Presumption of Innocence. Film: When They See Us (2019). Ava DuVernay’s When They See Us documents what happens when narrative precedes adjudication. The prosecution of the Central Park Five—who now identify as the Exonerated Five—illustrates how media coverage, official statements, and public discourse can converge to construct a story of guilt before evidence is tested in court. That story proved more durable than the convictions it preceded and more resistant to correction than the exonerations that followed. The case is extraordinary in its consequences. The dynamic it reflects is not. This paper examines the tension between First Amendment press freedom and the Sixth Amendment guarantee of a fair trial through doctrinal analysis and a preliminary comparative study of contemporary criminal reporting. Drawing on a close reading of fifteen articles across local news outlets, national publications, tabloid media, and government press releases, the analysis examines patterns in headline labeling, suspect characterization, moral descriptor language, victim framing, contextual background, and the presence or absence of presumption-of-innocence language. The sample is illustrative rather than representative and is offered to surface patterns consistent with the doctrinal concerns the paper identifies. The findings identify patterns that warrant closer legal and empirical attention. Narrative intensity, humanizing context, and presumption-of-innocence framing vary consistently across source types – and, with regularity that raises due process and equal protection concerns, across defendants. White defendants were disproportionately introduced through professional identity and personal context. Black and Latino defendants were more frequently framed through criminal identity and categorical threat language, with government press releases producing the most authoritative and criminalized framing of any source category examined. These patterns point to a structural gap in existing doctrine. First Amendment protections permit the circulation of narratives that assign meaning to accusation. Sixth Amendment safeguards operate within the courtroom to mitigate identifiable prejudice. Neither framework fully addresses how pretrial narratives shape the ground on which guilt is adjudicated. This paper argues that the law’s current approach is incomplete—not because it fails on its own terms, but because it was not designed for an information environment in which narrative formation is rapid, self-reinforcing, and difficult to unwind. The presumption of innocence survives as a formal rule. Whether it survives as a lived condition of adjudication, for all defendants equally, is the question the paper raises—and the one it calls on doctrine and empirical scholarship to more fully answer.

Alayna Wageman, Accountability Gaps at The International Criminal Court: How States Get Away with Murder. Film: A Private War (2018). Women journalists operating in conflict zones are targeted not only because of their reporting, but because of their gender. Sexual violence, intimidation, and physical assault are deployed as deliberate tools to silence women in the press, yet international law has failed to translate its formal protections into meaningful, enforceable accountability. This paper investigates that failure through the legendary war correspondent Marie Colvin. In Colvin v. Syrian Arab Republic, the United States District Court for the District of Columbia granted a default judgment of $302,511,836.00 against Syria for the deliberate targeting and killing of Marie Colvin during her reporting in Homs in 2012. Syria has never paid. Additionally, the conduct that killed Colvin, a state-directed attack on civilian journalists in armed conflict, falls within the jurisdictional reach of the Rome Statute as a war crime under Article 8, yet no International Criminal Court (ICC) prosecution followed. Syria is not a signatory and the UN Security Council vetoed the referral. Thus, even when liability is established, the absence of enforceable international laws leaves victims without remedies and states without consequences. Colvin's case is not exceptional. It is representative of a systemic pattern in which gender-based violence suppresses journalistic work and states face no meaningful consequences. This paper highlights three structural deficiencies within the International Criminal Court framework revealed by the Colvin case. This paper contends that addressing these gaps necessitates structural reforms beyond the scope of the current system.

Rebecca Wood, A Relic of the Past: It’s Time To Deal With The Equal Time Rule. Film: Man of the Year (2006). This paper utilizes the 2006 film Man Of The Year to introduce and illustrate systemic inconsistencies in the Federal Communication Commission’s (FCC) enforcement of the equal time rule. The rule, Section 315(a) of the Communications Act of 1934, requires broadcast licensees providing airtime to a legally qualified candidate must also provide equal air time all opposing candidates. The rule is introduced by examining the absence of discussion and enforcement of it and its requirements throughout the film despite a talk-show host’s presidential campaign. This paper suggests that the omission is illustrative of the inconsistent and arbitrary application of the rule in the real world. Next, the history and origins of the rule are explored beginning with the rule’s origin in the Radio Act of 1927 through present day talk show challenges. Subsequently, the rule’s inconsistent implementation and the question of censorship are investigated with examples in media, case law, and FCC proceedings and notices from the rule’s beginning through present day. Finally, possible remedies such as further defining the rule, post-Chevron challenges, or repealing the rule are considered.

Rescission of law dean offer prompts valid angst, but political ire over higher ed impunity is long time coming

Waterman Hall, University of Arkansas
Larry Miller via Flickr CC BY-NC 2.0

Legal academics is aflutter over the rescinding of an offer of the deanship at the law school of the University of Arkansas, Fayetteville, to Emily Suski, a law professor at the University of South Carolina, upon pressure from conservative politicians.

I've lately been cited and quoted on the matter, partly because I lived and worked as a law professor in Arkansas for thirteen and a half years, until 2011. I'll say a bit more here.

The Suski story has been much in the news, from The Arkansas Times to The New York Times, and has been framed by our present era of political strife. The rescission was motivated by conservative state lawmakers apparently unhappy over leftward leanings in Suski's record as an academic and a lawyer.

I am not opining, and have not opined, on the rescission in sum, because I don't know what was in the minds of lawmakers and the university president. I have made no study of the record. I said as much to Arkansas Democract-Gazette (ADG) reporter Neal Earley late last week. If you want a view from the ground, my colleague Robert Steinbuch, law professor and columnist, talked about the matter toward the end of this interview with KATV (cue to about 2:05).

I did tell the ADG, where I was fairly represented in a story Monday, to which Earley contributed, that I have First Amendment concerns if, and insofar as, the political decision was motivated by retaliation for viewpoints expressed in litigation or academic work. I agree with a statement of the president of the Arkansas Bar Association that a lawyer should not be discriminated against by a public entity for employment based on positions taken in prior litigation.

But the matter is not that straightforward.

Some Arkansas politicians are vexed by Suski's sign-on to an amicus brief in the SCOTUS-bound transgender athlete case, on the side of the athlete challenging West Virginia law. Some might be displeased with her support for the U.S. Supreme Court nomination of now-Justice Ketanji Brown Jackson. A single, clear rationale for rescinding has not been articulated, and likely, motivations are varied.

I have authored, contributed to, and signed amicus briefs myself, I told Earley, in support of principles notwithstanding the position of litigants. For example, my amicus positions on the freedom of information have aligned me with affirmative action skeptics and animal rights activists. Whether, or to what extent, I agreed with the litigants' many public positions was immaterial to my advocacy for transparency, accountability, or civil liberties in the matters at hand.

I'm not shy with my opinions. But if you want them, the responsible thing is to ask, not assume. The world is gray. My own views have nuance. I'm sure Suski's do too.

At the same time, this story ought not be framed merely in terms of contemporary partisanship. I told the ADG that I understand lawmakers' reaction in "a broader context of long-time suppression of (the conservative) viewpoint in legal academics."

That's true. Earley asked for examples, and I gave him several. I've done work with the Federalist Society and with the Heritage Foundation. I supported law students at the University of Massachusetts Law School in establishing a Christian Legal Society (as yet not an official chapter).

That doesn't mean I agree with every position taken by those organizations. (I'm not alone.) It does mean that I have over the years left those groups off my CV when applying for this or that in legal academics, because their mention would have killed my application. At the same time, I have never felt compelled in legal academics to conceal association with the AAUP or the ACLU. Those alignments are badges of achievement.

I didn't make the rules, and I don't approve of them. This is the world as I found it. Having had some privileges and not others while trying to advance my academic career, I have not buried my head in the sand about unjustified biases. For legal academics now to be wringing their hands over censorship of left-leaning causes might be justified in the instant case, but implicates more than a little hypocrisy.

One quote of mine in the ADG story was right, but could benefit from context: "I feel almost a bit of relief to say that thank heavens someone is paying attention." That sounds, erroneously, like approval of the politics of the Arkansas legislators in the Suski case, contrary to my refusal only a sentence earlier in the story to state approval or disapproval.

Rather, I made that statement in discussion with Earley of a different point, namely, that legislators in Arkansas, in other states, and in Washington, D.C., have abdicated their responsibility for the accountability of public institutions, especially in higher education. Regardless of the merits of the decision in Arkansas, the idea is refreshing that Arkansas legislators would hold the University of Arkansas to any standard at all. 

In my experience in Arkansas, the university, a political behemoth, did not hesitate to throw its weight around at the capitol. And legislators kowtowed to its will. For example, legislators, with few noteworthy exceptions, happily parrot the fiction that the filthy-rich university foundation is a private entity properly immune from the state freedom of information act, though in fact, public officials dictate how the money is spent.

When I spoke to Earley, I was not thinking about Arkansas legislative accountability in any matter of my personal interest. But maybe I should have been.

For The Arkansas Times blog, Dr. Walter Kimbrough opened an opinion piece with reference to a lawsuit I brought almost 20 years ago when working in Arkansas. Kimbrough is a former president of two HBCUs and now an executive vice president of the UNCF (the "United Negro College Fund," though the organization usually uses just its initials nowadays). 

I'm flattered that Kimbrough, whom I greatly respect, remembers my case, the best account of which was penned by the great Scott Jaschik, who retired in 2023, and can be read still at Inside Higher Ed.

Kimbrough's headline highlights the "cancel culture" angle in the Suski story. Invocation of my case shows that what happened to Suski is not new, because it happened to me—even if the shoe was on the other foot, from a conventional political perspective.

At least my takeaway from Kimbrough's comparison is be careful what tactics you use, because it won't feel good when they're turned against you. If abstracted to politics, it's basically the same logic justifying humane treatment of war prisoners, not because you're worried about the enemy, but because you're worried about your own. Regardless of who fired first, conservatives who once lamented the victimization of cancel culture now look hypocritical when they engage in it.

Not necessary to his thesis (and maybe undercutting it?), but salient to me, Kimbrough observed that no Arkansas legislator cared to intervene when I was "canceled." Don't I know it. The same can be said for organizations from the AAUP and ACLU to FIRE and the National Association of Scholars. Crickets for an embattled professor in flyover country. Again, this is not what I was thinking about when I talked with Earley, but it does bolster my point about accountability.

Kimbrough mentioned that I dropped that Arkansas lawsuit. He might have added that I received, as Jaschik reported (same article), a complete exoneration of any wrongdoing by the law school in Little Rock—which is what I had asked for all along.

Some people have asked me privately, don't I feel bad for Emily Suski?

Of course I do. Everyone should. She was a victim in all of this. Yes, the law school's offer letter did say the offer was contingent on university approval. But offer letters contain all kinds of boilerplate qualifiers. For all intents and purposes, Suski was instructed, publicly, to pack her bags. And then she had the rug pulled out from under her.

But while we feel bad for her, let's also place blame where it belongs. That's not just with politically motivated legislators, but with leaders in public academic institutions, who have long acted with impunity, abusing legislative deference and elevating their own agendas and preferences above their responsibility to the taxpayer.

U.S. FOIA committee contemplates research, reform

The federal Freedom of Information Act (FOIA) Advisory Committee, on which I serve as a non-governmental member, held a public meeting Thursday, live-streamed and recorded on YouTube, and there's a lot cooking, including research on unduly burdensome requests and compliance barriers, and recommendations for statutory reform.

National Archives and Records Administration (NARA) Chief Operating Officer Jay Trainer spoke at the opening of the meeting. He observed a rise in overall public trust in the federal government from 23% in 2024 to 33% in 2025 in Gallup survey results and lauded the role of the FOIA and the Office of Government Information Services (OGIS) in building trust in the federal government.

I agree with him. But I also agree with Kevin Bell, a former member of the Advisory Committee who this year resigned his government post at the Federal Energy Regulatory Commission, and thus his government seat on the Advisory Committee. Bell's resignation to me demonstrated how the Elon Musk-led administration efficiency initiative cost us talented public servants while doing little actually to achieve efficiency, or even while thereby undermining efficiency.

Bell spoke in the public comment period of the public meeting and observed that the poll results are somewhat skewed, in that people probably answer the question with outsized reference to elected officials and little knowledge of the civil service. His supposition is supported by the fact that digging into the poll data shows that the uptick since 2024 is largely in a swell in Republican confidence. And what has changed since 2024 is the political landscape, not the workaday civil service, whatever Muskian bluster might have us believe.

However, Bell pointed out, if Americans really knew what civil servants do everyday, as demonstrated by the informed dedication of the public employees who serve on the Advisory Committee, the poll numbers would indicate vastly higher confidence in the federal government than one in three Americans.

By the way, that's not to say that there isn't room for efficiency improvements, including cuts, in the federal government. There are plenty of ways to do that without depriving the taxpayers of their best workers. Corporate welfare would be a good starting point, or at least a shift in those subsidies to investments that would stimulate exactly the kind of economic growth the Trump administration purports to desire. That's another story.

Maybe it's because I am teaching comparative law right now, but I was delighted to hear a comparative perspective in the work of the volume-and-frequency subcommittee, among the three subcommittees the Advisory Committee has organized. 

Regarding volume and frequency, the Advisory Committee heard a presentation by members David Cuillier, University of Florida, and Shelley Kimball, Johns Hopkins University, as well as guest Ben Worthy, University of London, on their work, also with Suzanne Piotrowski, Rutgers University, on "unduly burdensome" requests—also known as "vexatious requests," though that term is not preferred because of its normative hint of ill intention. Piotrowski, incidentally, is the founding coordinator of the Global Conference on Transparency Research; I posted GCTR's call for papers for 2026 here at The Savory Tort earlier this month.

Cuillier, Kimball, Worthy, and Piotrowski's research is ongoing, but thus far they have drawn up a list of strategies that might help to manage the problem of unduly burdensome requests, and a list of strategies that do not work, or that represent non-constructive policy choices. They shared with the committee these strategies that are positive or might have potential if implemented thoughtfully (my comments bracketed):

• Training (for staff and public)
• Technology/resources (e.g., line-item budget)
• Proactive posting
• Front-end discussions
• Express lanes [expediting some requests, such as first-person] and "zippering" [managing one request from a multiple requester, then another from another requester, then another from the multiple requester, then another from another requester, and so on]
• Staggered dissemination
• Differential copy fees
• Independent commission (e.g., Connecticut [Freedom of Information Commission])

These are ill advised strategies, some of which, concerningly, are growing go-tos:

• Search/redaction fees
• Vague laws to allow denial
• Time extensions
• Quotas/caps
• Fines and jail time
• Signed promises to be good
• Prohibitions on anonymous requests
• Bans on AI

Another problematic strategy is to probe the intentions, or motives, of the requester for some kind of legitimacy measure. Co-authors and I opined 15 years ago on requester motive immateriality as a core common law and statutory norm of access law, and it should be preserved. It makes no sense to give a record to one requester and not to another, owing to motive, and risks discriminatory judgment about the merits of record use. A record's public disposition should be decided on its content, within its four corners.

The research is inherently comparative owing to Worthy's involvement as a scholar of the UK Freedom of Information Act. But the authors' multinational cognizance is broader still. For example, the team is studying standards employed by the Connecticut commission that Connecticut borrowed from Canadian law in Ontario.

Cuillier mentioned that other countries almost uniformly distinguish commercial requesters, that is, those which will make money from information processing, such as information brokers, from first-person and public-interest requesters, with regard to fees. The former fairly might be required to pay their way, while the latter may be entitled to free access. Co-authors and I also memorialized in our previous work how this commercial-requester distinction worked a modest but justifiable compromise to the historical common law and statutory norm of requester identity neutrality. However laudable that norm in theory, it predated the information era, when information brokering became a business model.

Advisory Committee member and Professor Margaret Kwoka asked whether the researchers and subcommittee were parsing their conception of fees, understanding that, my words: not all fees are created equal. That is, a fee might be used for a laudable purpose, such as having a commercial requester pay its way, or, in contrast, for an objectionable purpose, such as discouraging public access generally.

In discussion of the point, Worthy referenced Ireland's experiment changing free access under the Irish Freedom of Information Act to a flat fee of €15 in 2003. The purported objective, he said, was to deter unduly burdensome requests. But there was little evidence that happened. What did happen was a 75% drop across all requests. Cuillier said that Irish usage of the public records law still has not rebounded since the fee was rescinded. Yet, he added, Canadian provinces are now busy about adopting fees upon the same ill-informed theory.

Slides from Cuillier, et al.'s presentation for the volume-and-frequency subcommittee are available on the Sept. 11, 2025, meeting page of the FOIA Advisory Committee. They include QR codes to locate three papers the researchers have presented previously, two at the GCTR conference in Brussels in May 2024, and one at the conference of the Southern Political Science Association in Puerto Rico in January 2025. The volume-and-frequency subcommittee is co-chaired by Advisory Committee members Nick Wittenberg, corporate counsel at Armedia, and Nieva Brock, Associate General Counsel at the Defense Department.

For the statutory reform subcommittee, Advisory Committee members Ryan Mulvey, policy counsel for Americans for Prosperity, reported several subjects on which the subcommittee aims to draft recommendations:

• Adding affirmative disclosure categories
• Making FOIA logs available affirmatively
• Ensuring judicial review of affirmative disclosure, that is, FOIA "reading rooms"
• Incentivizing alternatives to FOIA requests
• Assisting agencies with Rehabilitation Act accessibility compliance
• Empowering agency officials to make affirmative disclosures
• Making the FOIA Advisory Committee a non-discretionary federal advisory committee

The statutory reform subcommittee is co-chaired by Mulvey and Advisory Committee member Whitney Frazier-Jenkins, Pension Benefit Guaranty Corporation, which, by the way, is a high-achieving if lesser-known agency in FOIA compliance.

For the implementation subcommittee, Advisory Committee member Deborah Moore, chief FOIA officer for the Department of Education, reported on an initiative to study barriers to FOIA implementation by engaging with focus groups of FOIA officers within agencies. Kimball and Advisory Committee member Sarah Jones Weicksel, executive director of the American Historical Association, designed the research project, in which I will participate this fall.

Also for the implementation subcommittee, I reported on the Comment of Freedom of Information Scholars submitted by academic colleagues and me regarding the ongoing revision of the Federal Acquisition Regulation, reported here at The Savory Tort in July and now also among public comments to OGIS for the Advisory Committee. The subcommittee is co-chaired by Jason Baron, University of Maryland, who co-signed the comment, along with Cuillier, Kimball, and Kwoka, and by Marianne Manheim, supervisory government information specialist at the National Heart, Lung, and Blood Institute. Advisory Committee member Frank LoMonte, a recovering academic and now senior counsel at CNN, also gave invaluable advice on the comment.

This was the sixth meeting of the sixth term of the Advisory Committee. The next public meeting is scheduled for December 4, at 10 a.m. U.S. EST. Public comments are invited online at OGIS and at public meetings. Read more about the Advisory Committee, its members, and OGIS FOIA compliance work at the OGIS blog, The FOIA Ombuds. The Advisory Committee is chaired by OGIS Director Alina Semo and afforded essential coordination by the many-hatted Kirsten Mitchell, compliance team lead, federal FOIA ombudsman, and designated federal officer at OGIS.

FOIA committee meets after firing of National Archivist

Yesterday, the Freedom of Information Act (FOIA) Advisory Committee, on which I am privileged to serve, held a public meeting, available on the YouTube channel of the National Archives and Records Administration (NARA). 

The meeting comprised routine status updates from working subcommittees. But arising as it did amid the Trump/Musk shake-up in federal government, the stream might have drawn more than the usual public interest. The President fired National Archivist Colleen Shogan three weeks ago (see also CBS News), apparently in violation of federal law and with a political logic that's hard to discern, as University of Maryland Professor Jason Baron explained recently in Washington Monthly.

The committee lost one member to the Musk "fork in the road" program; capable attorney Kevin Bell departed the Federal Energy Regulatory Commission. The President last month terminated the Open Government Federal Advisory Committee in the General Services Administration (GSA) (Government Executive).

I am all for eliminating government waste and inefficiency, but I'm worried that "fork in the road" only incentivized the departure from public service of the most talented people, who could get other jobs most readily. And I'm not sure I see the wisdom of terminating an advisory committee, which brings volunteer expertise from the private sector (or state academics, such as Baron, me, and others) to bear on federal government work at minimal cost to taxpayers.

The committee yesterday unanimously approved a motion of Frank LoMonte, CNN senior counsel, to ensure preservation of committee work, as required by the Federal Advisory Committee Act (FACA). He didn't say so explicitly, but the move seemed pretty well calculated as a hedge against possible termination of the committee's work.

Excellent public comment came from Alex Howard, Digital Democracy Project and former committee member. Logically he inquired, inter alia, about the impact of government "efficiency" cuts and website take-downs on FOIA. Certainly these questions are of great concern to everyone involved; Professor Margaret Kwoka said as much in response. The fact is, simply, I don't think anyone can yet apprehend that big picture.

To combat corruption, India Supreme Court strikes down dark money system, cites U.S. precedents

Late last week, the Supreme Court of India struck a blow for transparency and accountability when it ruled unconstitutional a system of anonymous political donation.

In a 2017 law, India had adopted a system of "electoral bonds." These are not investment bonds. Rather, to make a political donation, a donor was required to buy a political bond from the State Bank of India, and the bank then gave the money to the indicated political candidate.

The bond system was adopted ostensibly to further transparency and accountability. By requiring all political donations to be processed by the state bank, regulators could ensure compliance with donor restrictions. The system was supposed, then, to balance donor anonymity—a legitimate extension of free speech rights—with anti-corruption regulation.

P.M. Narendra Modi speaks to Pres. Biden at the G20, 2022.

White House photo via Flickr

But as Darian Woods reported for The Indicator, the party in power of Prime Minister Narendra Modi received 90% of donations. It seems less likely that imbalance represented overwhelming enthusiasm for the Modi administration and much more likely that corporate donors sought favor with the administration and feared retaliation otherwise, despite their seeming anonymity. For while they were anonymous to the public, their identities were known to the state bank. And the state bank is under the control of the administration.

The India Supreme Court ruled that the electoral bond system is incompatible with the fundamental "right to know" (RTK), that is, with Indian norms of freedom of information (FOI). I wrote in 2017 about India's Right to Information Act (RTIA), a statutory instrument akin to the U.S. Freedom of Information Act (FOIA). FOI, or access to information (ATI), for India, though, is in sync with contemporary norms elsewhere in the world, notably Europe, where RTK or FOI is recognized as a human right. Courts such as the India Supreme Court, like the Court of Justice of the EU, therefore have the constitutional enforcement power of judicial review.

The India Supreme Court, as it often does on important constitutional questions, surveyed other common law nations. And despite our weak and non-textual recognition of FOI as a constitutional right, the United States earned several mentions. Saliently, the court cited the old stalwart, Buckley v Valeo (U.S. 1976), for "concern of quid pro quo arrangements and [the] dangers to a fair and effective government. Improper influence erodes and harms the confidence in the system of representative government." Disclosure, the India court reasoned,

helps and aides the voter in evaluating those contesting elections. It allows the voter to identify interests which candidates are most likely to be responsive to, thereby facilitating prediction of future performance in office. Secondly, it checks actual corruption and helps avoid the appearance of corruption by exposing large contributions and expenditures to the light of publicity. Relying upon Grosjean v. American Press Co. (U.S. 1936), [disclosure] holds that informed public opinion is the most potent of all restraints upon misgovernment. Thirdly, record keeping, reporting and disclosure are essential means of gathering data necessary to detect violations of contribution limitations.

For a more recent vintage, the India court cited Nixon v. Shrink Missouri Government PAC (U.S. 2000): 

[T]he Supreme Court of the United States observes that large contributions given to secure a political quid pro quo undermines the system of representative democracy. It stems public awareness of the opportunities for abuse inherent in a regime of large contributions. This effects the integrity of the electoral process not only in the form of corruption or quid pro quo arrangements, but also extending to the broader threat of the beneficiary being too compliant with the wishes of large contributors.

So the India court fairly observed that the U.S. Supreme Court has been willing to unmask donors, even if the Supreme Court has lately been less than enthusiastic about regulations it once, in a Buckley world, approved. Indeed, even as the U.S. Supreme Court rejected the disparate treatment of corporations in Citizens United v. FEC (U.S. 2010), it approved of disclosure requirements. 

The India court found support for disclosure in defense against corruption in other national regimes, too, for example, in Canada and Australia. Alas, there, comparisons with the United States deteriorate in practice. The India Supreme Court did not mention the dark (money) side to America's affair with transparency. Read more at the Brennan Center for Justice.

The case is Association for Democratic Reforms v. India (India Feb. 15, 2024).

Police reform shines light on disciplinary records

CC0 Pixabay via picryl

A favorable reform to follow the police protest movement of recent years, stemming in particular from the killing of George Floyd, has been transparency around police disciplinary dispositions.

There is room for disagreement over what police reform should look like. I'm of the opinion that it costs society more to have police managing economic and social problems, such as homelessness and mental health, than it would cost to tackle those problems directly with appropriately trained personnel. I wouldn't "defund" police per se, but I would allocate public resources in efficient proportion to the problems they're supposed to remedy. We might not need as much prison infrastructure if we spent smarter on education, job training, and recreation.

Regardless of where one comes down on such questions, there is no down-side to transparency around police discipline. Police unions have cried privacy, a legitimate interest, especially in the early stages of allegation and investigation. But when official disciplinary action results, privacy should yield to accountability. 

Freedom-of-information (FOI) law is well experienced at balancing personnel-record access with personal-privacy exemption. Multistate FOI norms establish the flexible principle that a public official's power and authority presses down on the access side. Because police have state power to deprive persons of liberty and even life, privacy must yield to access more readily than it might for other public employees.

In September 2023, Stateline, citing the National Conference on State Legislatures, reported that "[b]etween May 2020 and April 2023, lawmakers in nearly every state and [D.C.] introduced almost 500 bills addressing police investigations and discipline, including providing access to disciplinary records." Sixty-five enacted bills then included transparency measures in California, Colorado, Delaware, Illinois, Maryland, Massachusetts, and New York.

The Massachusetts effort has come to fruition in online publication of a remarkable data set. Legislation in 2020 created the Massachusetts Peace Officer Standards and Training (POST) Commission. On the POST Commission website, one can download a database of 4,570 law enforcement disciplinary dispositions going back 30 years. There is a form to request correction of errors. The database, at the time of this writing last updated December 22, 2023, can be downloaded in a table by officer last name or by law enforcement agency, or in a CSV file of raw data.

The data are compelling. There are plenty of minor matters that can be taken at face value. For example, one Springfield police officer was ordered to "Retraining" for "Improper firearm usage or storage." I don't see that as impugning the officer, rather as an appropriately modest corrective and a positive for Springfield police. Many dispositions similarly suggest a minor matter and proportional response, for example, "Written Warning or Letter of Counseling" for "conduct unbecoming"/"Neglect of Duty."

Then there are serious matters. The data indicate termination of a police officer after multiple incidents in 2021, including "DRINKING ON DUTY, PRESCRIPTION PILL ABUSE, AND MARIJUANA USE," as well as "POSING IN A HITLER SALUTE." Again, it's a credit to the police department involved that the officer is no longer employed there. Imagine if such disciplinary matters were secreted in the interest of personal privacy, and there were not a terminal disposition.

The future of the POST Commission is to be determined. It's being buffeted by forces in both directions. Apropos of my observation above, transparency is not a cure-all and does not remedy the problem of police being charged with responsibility for social issues beyond the purview of criminal justice.

Lisa Thurau of the Cambridge-based Strategies for Youth told GBH in May 2023 that clarity is still needed around the role and authority of police in interacting with students in schools. Correspondingly, she worried whether the POST Commission, whose membership includes a chaplain and a social worker, is adequately funded to fulfill its broad mandate, which includes police training on deescalation.

Pushing the other way, the POST Commission was sued in 2022, GBH reported, by police unions and associations that alleged, ironically, secret rule-making in violation of state open meetings law. Certainly I agree that the commission should model compliance in rule-making. But I suspect that the union strategy is simply obstruction: strain commission resources and impede accountability however possible. Curious that the political left supports both police unions and police protestors.

WNYC has online a superb 50-state survey of police-disciplinary-record access law, classifying the states as "confidential," "limited," or "public." Massachusetts is among 15 states in the "limited" category. My home state of Rhode Island and my bar jurisdictions of Maryland and D.C. are among the 24 jurisdictions in the "confidential" category.

"Sunshine State" Florida is among 12 states in the "public" category. In a lawsuit by the Tallahassee Police Benevolent Association, the Florida Supreme Court ruled unanimously in November 2023 that Marsy's Law, a privacy law enacted to protect crime victims, does not shield the identity of police officers in misconduct matters. (E.g., Tallahassee Democrat.)

Ark. Gov swings again at state FOIA

Arkansas Governor Sarah Huckabee Sanders has proposed a bill to undercut the highly regarded transparency regime of that state's Freedom of Information Act.

I was at the Arkansas Capitol when a veritable mob of citizen opposition stopped an anti-transparency reform bill in the spring. Try, try again must be the Governor's m.o.

My friend and colleague Professor Robert Steinbuch testified effectively against the spring reform bill. Here he is telling Conduit News Arkansas why the newest incarnation is no good either.

UPDATE, Sept. 16. My understanding is that the bill was gutted this week. A substantially narrowed enacted version applies only to secret information about the governor's security detail. The matter was discussed on Arkansas Week.

DA cannot shield officer, EMT identities from state FOIA disclosure, court rules in fatal police shooting

A Massachusetts Superior Court in March ordered the district attorney to release investigative records to the family of a man killed by police.

The privacy of public officials in the technology era has strained conventional accountability rationales for transparency. Since the advent of access to public information as a democratic norm, public officials and public figures have decried purported invasions of their privacy. The very notion of privacy in modern tort law, for better and worse, traces its roots to precisely such whinging in the late nineteenth century. Access usually prevailed.

Yet in the technological era, privacy complaints have gained new currency, and some of it is legitimate. Even, or perhaps especially, in the intensely emotional context of high-profile police shootings, interests are amped up on both sides. Of course, victims and families demand understanding and accountability, and they are entitled to it. At the same time, it's harder than ever to be a police officer, and passions that expose public servants and their families to harassment and threats pose a genuine policy problem. 

The two sides collided in Massachusetts over the death of Anthony (Antone) Harden in Fall River in 2021. The 30-year-old was shot twice and killed by police in his bedroom. Police investigators concluded that Harden had used a steak knife to attempt to stab the shooter's partner in the neck and head. A district attorney (DA) investigation in 2022 ruled the homicide justified.

Surveillance video shows officer arriving at Harden's apartment.

With the final report, Bristol County DA Thomas M. Quinn III released hundreds of pages of records, including video, audio, and photographs. But there was much that the DA did not release in response to a freedom-of-information request by Harden's brother, Eric Mack, an attorney. Though the family knew, and the lawsuit revealed publicly, the names of the involved officers by the time of the DA's report, the DA would not disclose their names.

The DA also withheld other records identifying responding personnel, including video interviews with emergency medical technicians. WBUR reported that the EMTs said they did not see the steak knife that police said necessitated lethal force.

Mack sued the DA under the state public records law, and the Superior Court in March granted his request for records on all counts. With regard to the identities of police and EMTs involved, the court wrote:

Upon balancing the rights of the parties, the public's need to access against the privacy rights at issues here, I find that the equities favor disclosure. The public officials here are not acting in the capacity of private citizens but in the course of their duties. Plaintiff has a right to have a full understanding of the facts leading to his brother's death including the identities of the public officials involved to ensure accountability and transparency. The failure to disclose this information would raise questions amongst the public about why this information was being withheld, which would only serve to undermine the integrity of the law enforcement departments involved and those reviewing their conduct. Any right to privacy that a public official might have under these circumstances, which is de minimis under the circumstances presented here, is overwhelmed by the public's right to know.

Before the resolution of the public records case, in January, the Harden family threatened Fall River with a $50m lawsuit for Harden's death, if the records were not released.

The case is Mack v. Office of the District Attorney, No. 2284-CV-00248 (Mass. Super. Ct. Suffolk County Mar. 6, 2023), decided by Justice James Budreau.