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 alternative 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.

Transparency research conference issues CFP for '26

The Ninth Global Conference on Transparency Research has issued its call for papers.

The conference is set for June 24-26, 2026, at Carleton University in Ottawa, Canada. The conference theme is "Transparency Under Pressure."

The deadline for paper and panel submissions is January 20, 2026, with final papers of 7,000 or fewer words due April 20, 2026. The CFP suggests a non-exhaustive list of topics:

• Transparency and crises
• Transparency and governance
• Transparency, secrecy, and privacy
• Open government and e-government
• Freedom of Information and access to data
• Transparency and artificial intelligence
• Transparency and digital surveillance
• Transparency in political institutions
• Transparency and corruption 

The Global Conference on Transparency Research was founded under the direction of my esteemed colleague Suzanne J. Piotrowski (pictured), professor at Rutgers School of Public Affairs and Administration, and director of the Transparency and Governance Center.

The first conference convened at Rutgers–Newark in 2011. The conference hosts an always warm and collegial group of scholars who study transparency and accountability from a broad range of disciplines, embracing both quantitative and qualitative methods.

Regulatory overhaul opens opportunity to build 'transparency by design' into federal contracting

Google Gemini CC0

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. 

LoMonte tells timely Tenn. tale of vanishing public records, legislative response in retention requirement

My friend and colleague Frank LoMonte, CNN senior legal counsel, has published a superb and timely new article, "The Race to Erase: Destruction of Government Documents Undermines Freedom-of-Information Laws," in the Seattle University Law Review.

Here is the abstract.

In August 2019, reporters with Chattanooga’s daily newspaper, the Times Free Press, filed what seemed to be a routine request for access to emails and other public records held by their local county government. The seemingly unremarkable request set the newspaper’s staff on a months-long journey of unpleasant surprises. The first was a demand to pay the county $717 in advance before being allowed to inspect the documents. The second was that—during prolonged haggling over the fee assessment— the county attorney’s office simply destroyed almost all of the disputed records. Third, and most glaringly, the journalists discovered that Tennessee law did nothing to require agencies to retain public records after receiving a request to produce them, exposing a gaping hole in right-to- know laws that goes well beyond one state.

This Article looks at the state of records-retention law in the United States and how the lack of forceful and well-enforced retention requirements can frustrate the good-government objectives of FOI laws. Part I lays out the animating principles behind right-to-know laws, how they operate, and how requesters have productively used public records to uncover government secrets. Part II examines the state of records-retention laws and regulations, and how their lack of clarity—particularly when it comes to emails, texts and other twenty-first-century electronic communication methods—has led to frustrating results for requesters. Part III looks at the meager remedies under federal and state law to enforce records retention requirements; paradoxically, these remedies provide hidebound government officials with an incentive to destroy, rather than just withhold, embarrassing records. Part IV focuses on the special case of police personnel files and body-cam videos, which hold promise as tools of accountability if the public can actually obtain them. This Part uses a recent California dispute—in which a municipal police department destroyed video footage of officers removing homeless people’s campsites while a requester was still fighting to obtain the footage—to exemplify the larger problem of inadequately rigorous retention laws. Finally, the Conclusion discusses what a legislative remedy to patch this hole in the public’s information safety net might look like, returning to the example of the Chattanooga Times Free Press’ unfulfilled request and the legislative response it inspired.

LoMonte's apt paean to record retention is nicely complemented by a new release from UNC's David Ardia pressing for a constitutional dimension to the freedom of information (HT @ Professor Robert Steinbuch).

I am grateful for references in LoMonte's article to something I wrote many years ago on record retention. I oft lament that my early-career work from flyover country on record retention and court record access are rarely if ever cited, even while they represent first publication of many points later repeated in the literature. Attorney and Georgia law professor LoMonte seems set on taking the wind from my whiny sails.

At the same time, I observe and lament that our strange times—with such as the firing of the National Archivist, the disappearance of federal records, and a privacy-obsessed generation baffled by the custom of open courts—have sent researchers scurrying for past findings in these areas. Who knew.

Sunshine Fest shines in D.C. despite gloomy climate

Last week I attended Sunshine Fest in Washington, D.C., a conference celebrating the 20th anniversary of Sunshine Week, which recognizes the importance in a free society of the freedom of information (FOI), also known elsewhere in the world as access to information (ATI) or right to information (RTI).

The extraordinary event was a coalition effort with David Cuillier, director of The Freedom of Information Project, Brechner Center for the Advancement of the First Amendment, at the University of Florida, at the helm. The conference met at the recently renovated Johns Hopkins University property on Pennsylvania Avenue—fittingly, the former physical home of the Newseum, which closed in 2019. As the National Freedom of Information Coalition has had annual conferences online since the pandemic, the in-person Sunshine Fest was a welcome opportunity to renew old acquaintances and make new ones.

Yet Sunshine Fest came at an odd time, amid the sudden, deep, and arbitrary cuts to the federal workforce. The Chatham House Rule was in force at the transparency conference. In the run-up to the event, Cuillier in an email to participants acknowledged the irony.

Some persons with official capacities related to the federal Freedom of Information Act (FOIA) participated in the conference, but only in their personal capacities. Certainly there was a sense that FOIA is not something a federal worker can afford to add to the résumé in the present climate. It was a strange feeling to gather with people talking about open government, yet speaking in hushed tones and looking over their shoulders. That has been my experience in many places in the world, but never before in Washington, D.C.

Some recently terminated federal officials attended too, such as Bobby Talebian, who, until recently, was the head of the Office of Information Policy in the Department of Justice. In my experience, Talebian was known for cutting through the bureaucracy. So it's hard to see how his departure facilitates efficiency.

The same might be said of the termination of the Open Government Federal Advisory Committee in the General Services Administration. It's hard to see how shutting down an advisory committee on transparency, which enlists the labor of private volunteers in public work, strikes a blow for efficiency rather than a blow to accountability. (See more at my March 7 post on the FOIA Federal Advisory Committee.)

Sunshine Fest was a success substantively as well as logistically. Speakers from all sectors participated in breakout sessions on artificial intelligence, FOIA and politics, vexatious requests, Trump and populism, privacy and transparency, and FOIA enforcement. Participants included requesters and custodians, industry and journalists, and persons working with FOI at state and federal levels and in legal systems in other countries.

David Cuillier, at lectern, opens Sunshine Fest 2025. The opening

plenary included Alasdair Roberts and Toby Mendel, from left.

RJ Peltz-Steele CC BY-NC-SA 4.0

In an opening session moderated by UMass Amherst Professor Alasdair S. Roberts, who had joined my international law class the day before, Toby Mendel, of the Canadian Centre for Law and Democracy (CLD), formerly with Article 19, gave a concerning report on the state of RTI laws around the world.

In particular, systems in Mexico and India, formerly regarded as exemplary models, have come under attack by populist regimes. The highly regarded independent oversight board in Mexico was terminated the very day of Sunshine Fest, and the Indian system was under "serious attack," Mendel said—though the Narendra Modi administration had to back off somewhat since the last election.

Mendel said that of the 56 U.N. member states that do not have RTI laws, 30 are "extremely weak" democracies, 17 are countries with fewer than one million inhabitants, and nine are "outliers."

Yet Mendel insisted that the glass is half full, or, he said, that is how he chooses to see it. Sri Lanka, he said, now has one of the strongest RTI frameworks in the world. RTI officials there have prevailed in 24 of 25 challenges to their enforcement authority. CLD is working with UNESCO to promote RTI in small island developing states, and Fiji has a proposal on the table in its legislature. Anecdotal evidence indicates "we're on an even keel," Mendel said, despite alarming developments in the United States.

Sunshine Fest announced the creation of a "Sunshine United Network" to marshal information about transparency going forward. Expect Sunshine Week and the Brechner FOI Project to publish further findings and takeaways from Sunshine Fest soon.

UPDATE, Apr. 16, 2025: Plenary panels are now available on the Sunshine Week YouTube channel.

Even town fool has opinions on FOIA

For better or worse, my town fool's face today graced The FOIA Ombuds, the blog of the Office of Government Information Services (OGIS) at the National Archives. I'm grateful to Kimberlee N. Ried, OGIS Compliance Team Management and Program Analyst, for heroic efforts to make an old man look good.

Observers comment on Assange extradition hearings

My thanks to Assange Defense Boston for organizing the Massachusetts State House rally on February 20 (above). Assange Defense Boston posted on X a couple of clips of me (below). Read more about "Me and Julian Assange" and see my images from the event.

Here (and embedded below) is a webinar from the European Association of Lawyers for Democracy and World Human Rights about the February 20 and 21 hearings in the UK High Court of Justice. And here (and embedded below) are discussions of journalists, diplomats, and others who were in the room for parts of the hearings.

"..it's not partisanship...this is about government accountability. You can not form coherent policy positions...unless you have the info on which to base them. That's what Julian Assange is about. That's what resisting his extradition is about"
Prof. Rick Peltz-Steele @UMassLaw pic.twitter.com/9ONm9RDxVz

— Assange Defense Boston (@AssangeBoston) February 23, 2024

"[Assange]developed this amazing idea abt freedom of information absolutism...When he founded WikiLeaks..to make the best use of this new democratizing instrument on the internet" Prof. Richard Peltz-Steele @UMassLaw, co-signee letter to @TheJusticeDepthttps://t.co/RJLoxdBue7
2/ pic.twitter.com/umiT9FAvQz

— Assange Defense Boston (@AssangeBoston) February 23, 2024

Assange Defense Boston rallies at State House

The Boston Committee of Assange Defense rallied today at the Massachusetts State House.

At the rally today, I spoke about my experience with freedom-of-information law and read parts of a letter from U.S. law professors to U.S. Attorney General Merrick Garland. The letter asks the U.S. Department of Justice to drop Espionage Act charges against Assange and abandon the request for his extradition from the UK. 

Freedom of the Press Foundation has more on the letter. My comments were based on, and the text of the letter can be found in, my February 16, 2024, post, "Me and Julian Assange."

The High Court in London heard arguments today that Assange should have a right to appeal to the courts over his extradition, which the British government has approved. Read more about today's proceeding from Jill Lawless at AP News. The case continues in the High Court tomorrow.  Protestors crowded on the street outside the London courthouse today.

Photos and videos by RJ Peltz-Steele CC BY-NC-SA 4.0.

The sun shines at the Massachusetts State House.

The group sets up.

The crowd grows.

Committee organizer Susan McLucas introduces the cause.

Victor Wallace speaks.

A letter in support is read from U.S. Rep. Jim McGovern (D-Mass.).

A speaker decries government secrecy. The s***-word might have been used.

A woman speaks to the intolerable cruelty of U.S. federal prisons.

Committee organizer Paula Iasella says that Assange is hardly alone in aggressive national security accountability, citing John Young's Cryptome.

Me and Julian Assange

WikiLeaks founder battles extradition in UK courts

Julian Assange, 2014
Cancillería del Ecuador via Flickr CC BY-SA 2.0

I'm as close to a freedom-of-information absolutist as you'll find.

I've said that about myself. I stole the notion and adapted the line from a personal hero, the renowned Professor Jane Kirtley, whom I was privileged to meet first in her legendary tenure at the helm of the Reporters Committee for Freedom of the Press (RCFP). Professor Kirtley utters the line as a First Amendment absolutist, and she's right: I've met no one so thoroughly committed to a free press, and able to persuade you she's right to boot.

Access to information, or frustration over the lack thereof, when I was a university journalist was a major force that drove me to law school. I was a strident 23-year-old law student, a legal intern at the Student Press Law Center (SPLC) and a willing convert to the cause, when I first met Kirtley in person. 

It was the 1990s. Bill had cheated on Hillary, and Milli Vanilli's Grammy was revoked. I was well convinced that the world would be a better place if there were no secrets at all: if governments kept open books, and everyone walked around with their hearts on their sleeves. 

At the joint offices of the RCFP and SPLC, I had access to a closet that held all of the publications on freedom of information. I devoured them. I was ready to build my Utopia.

I'm as close to a freedom-of-information absolutist as you'll find. 

I still say the line. But I admit, sometimes now I say it with less conviction.

Yesterday on NewsHour, a cognition expert said that we experience an increase in compassion and empathy as we age. That's it, I thought. That's why the utterly fictional characters on This Is Us made me cry like it was my own family. That's why I'm no longer so confident in my absolutisms. It's biology, and I can't help it. I'm getting old and soft.

In 2006, I was still strong. I knew right from wrong. I was an absolutist terror. That was the year that WikiLeaks was founded. That was the year that Julian Assange came into my life.

Julian Assange and I are the same age, born just months apart and a world away, in 1971. By the time I learned of him, we were 25, and his biography made me feel like I'd been sitting on my hands watching the world go by. He had hacked NASA when he was a teen in Melbourne. He was charged with computer crimes by age 20. 

But he wasn't a ne'er-do-well; he obeyed a nascent code of ethics for a new, technological age. He is credited with originating "hacktivism." He showed what government, especially the U.S. military, was up to behind virtual closed doors. He was out to make the world better by pulling back the curtain. Unapologetic, radical transparency.

When Assange co-founded WikiLeaks in 2006, freedom-of-information absolutism was the ethos. Anyone in the world with access to secrets could pour them anonymously into Wikileaks's servers in Iceland: a deliberate jurisdictional choice for information laundering. The drop-box technology was sleek. The morality was a-, not im-. Wikileaks would publish it all. The democratic potential of the internet would be realized. All the citizens of the globe would judge. Brilliant.

There were remarkable successes. Notable was the "collateral murder" revelation, that U.S. soldiers had killed 18 civilians in a Baghdad helicopter attack in 2007. WikiLeaks also revealed the toll of friendly fire deaths, many of which had been covered up. Conclude what one would about the military interventions in Afghanistan and Iraq, the people whose lives were on the line, as well as families and voters back home, deserved to see the good, the bad, and the ugly of war. 

And it wasn't just about war. WikiLeaks had big banks in the crosshairs (2011, 2013). In 2016, a trove of records (e.g., Toronto Sun) revealed that Hillary Clinton campaign head John Podesta had called Bernie Sanders a "doofus" over his criticism of the Paris climate accord. Good to know.

But after the Iraq War apex, things had started to unravel. WikiLeaks knew a lot; maybe too much. Its revelations tested the as close to ... as part of my mantra. Absolutism's gloss started to tarnish. 

Is there really social good in forecasting troop movements, when soldiers would be slaughtered as a result? Even Julian Assange saw it: Unmasked middle eastern informants cooperating with western forces, and the informants' families, faced brutal retaliation by militias and dictators. It was hard to work the math on absolute transparency to make the benefits always outweigh the costs.

So in 2010, WikiLeaks forged an alliance with The Guardian, and later other news outlets. With absolutism baked into the technology, WikiLeaks had no way to sift information to ensure, quite literally, that people would not be killed as a direct result of publication. 

Journalists do know how to do that; that ethical balance, to minimize harm, is the very essence of journalistic professionalism. So WikiLeaks would turn some of its information over to journalists, who would screen for the rare but real need for confidentiality.

The collaboration was rocky, short-lived, and at best only partly successful. The missions of absolute transparency and journalistic judgment were not so easily reconciled. The story has been told many times, for example in Vanity Fair's 2011 "The Man Who Spilled the Secrets," and still is dissected in journalism schools. 

Fortunes changed for Julian Assange. Negative words such as "anarchist" and "seditionist" took the place of positive words such as "crusader" and "activist." Allegations of rape, which Assange denies vehemently, surfaced in Sweden, which sought Assange's extradition from the UK. Conspiracy theorists, who are not always wrong, alleged that the Sweden allegations were a ruse to bring about Assange's extradition to the United States, which had indicted him, from a jurisdiction that would accede more readily than England would.

In London, Assange sought refuge in the Ecuadorean embassy, where he lived for nearly seven years. Things got weirder. Why wouldn't they?, with Assange trapped in a physical building and a legal limbo. In rare public appearances, Assange looked rough: less his former satiny-minimalist fashion, slick mane, and lustrous confidence; more fist-shaking-old-man-in-a-robe, scraggly-beard, "get off my lawn" vibe. 

Eventually the Ecuadoreans grew weary of the house guest who wouldn't leave. They called the cops, literally. In 2019, Assange was arrested. He has been in London's high-security Belmarsh Prison since. The United States has asked the UK to extradite Assange to face espionage charges, and the UK has seemed pleased to offload a lightning rod.

Is the U.S. extradition request about prosecution or persecution? As media struggle to make sense of Julian Assange—"Visionary or Villain?"—all indications are that if he lands in the United States, sending him to the stockade, if not the gallows, will be a bipartisan cause. The shift in American political attitude these intervening years toward a troubling receptivity to authoritarianism has flipped the script on WikiLeaks in the public imagination.

Some 35 law professors, including me, on Wednesday signed a letter to Attorney General Merrick Garland asking that the U.S. Department of Justice (DOJ) end its efforts to have Julian Assange extradited and that DOJ drop Espionage Act charges against him. I'll paste the text of the letter below.

The Freedom of the Press Foundation, which has coordinated efforts on the Assange matter, issued a press release about the letter. Below is the foundation's three-minute video take.

Yesterday, the Freedom of the Press Foundation hosted a forum, "Jailing Journalists: The Assange Case and the Threat to Press Freedom" [update: posted Feb. 20]. The forum was geared to reach people who might not understand what's at stake and might not like Julian Assange. One does not have to like Assange nor applaud the publication of state secrets to worry about the implications of an extradition and Espionage Act prosecution for the First Amendment and the American Fourth Estate. 

Echoing just that worry, U.S. Rep. Jim McGovern (D-Mass.) led off the forum. He has led lawmakers, he said, in asking the Garland DOJ to drop the charges and abandon the extradition. McGovern represents the Massachusetts Second Congressional District, which is a good chunk of the center of the commonwealth, west of Boston.

The Freedom of the Press Foundation forum revealed just how dangerous the situation has become for journalists in America, and how endangered might be some fundamental precepts of First Amendment law. One journalist commented in the forum that he has been sued by government for a prior restraint on the dissemination of lawfully obtained public records. This is basic Pentagon Papers stuff. But would the present Supreme Court uphold the sacrosanct no-prior-restraint doctrine?, forum participants asked.

When I met Jane Kirtley 30 years ago, that would have been a silly question.

Assange will have been in prison in London for five years this April. Beginning Tuesday next week, on February 20 and 21, the High Court of Justice in London will hear his case on a potentially dispositive procedural question. Previously, the British government approved extradition to the United States, and a lower court judge decided that that determination could not be appealed. So the subject of the hearing next week is to determine whether Assange may appeal the administrative disposition to the courts.

Boston Area Assange Defense plans a rally in support of Assange on February 20 (flyer above) at the Massachusetts State House. The group has been an active local organization advocating against prosecution of Assange. I publicized the organization's rally and forum last year. A demonstration is planned similarly at the UK Consulate in New York City on February 20 (flyer at left).

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LAW PROFS' LETTER TO U.S. AG RE ASSANGE, ESPIONAGE ACT

February 14, 2024

The Honorable Merrick B. Garland Attorney General

Dear Attorney General Merrick Garland,

The undersigned law professors strongly urge the Department of Justice to end its efforts to extradite WikiLeaks founder Julian Assange to the United States and to drop the charges against him under the Espionage Act.[FN1]

Our personal views on Assange and WikiLeaks vary, and we are not writing to defend them in the court of public opinion. But when it comes to courts of law, we are united in our concern about the constitutional implications of prosecuting Assange. As explained below, we believe the Espionage Act charges against him pose an existential threat to the First Amendment.

"[A] free press cannot be made to rely solely upon the sufferance of government to supply it with information."[FN2] Accordingly, the Supreme Court has correctly and repeatedly held that journalists are entitled to publish true and newsworthy information even if their sources obtained or released the information unlawfully.[FN3] Journalists have relied on sources who broke the law to report some of the most important stories in American history.[FN4] An application of the Espionage Act that would prohibit them from doing so would not only deprive the public of important news reporting but would run far afoul of the First Amendment.[FN5]

That is why last November, editors and publishers of The New York Times, The Guardian, and other international news outlets wrote in an open letter about the Assange case that "[o]btaining and disclosing sensitive information when necessary in the public interest is a core part of the daily work of journalists. If that work is criminalised,our public discourse and our democracies are made significantly weaker."[FN6] Additionally, top editors at The Washington Post, Wall Street Journal, USA Today, and more have unequivocally condemned the charges against Assange as a direct threat to their own journalists’ rights.[FN7]

The Obama/Biden DOJ recognized as much in declining to prosecute Assange, reportedly due to “the New York Times problem,” i.e., the lack of a legal basis to prosecute Assange that could not also be used to prosecute the nation’s most recognizable newspaper.[FN8] That was, unfortunately, less of a worry for the Trump DOJ, but should deeply concern your office. 

The current indictment against Mr. Assange contains 17 counts of alleged Espionage Act violations, all based on obtaining, receiving, possessing and publishing national defense information.[FN9] The indictment accuses Assange of "recruit[ing] sources" and "soliciting" confidential documents merely by maintaining a website indicating that it accepts such materials.

Award-winning journalists everywhere also regularly "recruit" and speak with sources, use encrypted or anonymous communications channels, receive and accept confidential information, ask questions to sources about it, and publish it. That is not a crime—it’s investigative journalism. As long as they don’t participate in their source’s illegality, their conduct is entitled to the full protection of the First Amendment.[FN10]

The fallout from prosecuting Assange could extend beyond the Espionage Act and beyond national security journalism. It could enable prosecution of routine newsgathering under any number of ambiguous laws and untested legal theories.We’ve already seen prosecutors test the outer limits of some such theories in cases against journalists.[FN11]

The Justice Department under your watch has spoken about the importance of newsgathering and ensuring the First Amendment rights of reporters are protected, even when stories involve classified information. You have also strengthened the Justice Department's internal guidelines in cases involving reporters.[FN12] We applaud these efforts. But a prosecution of Assange under the Espionage Act would undermine all these policies and open the door to future Attorneys General bringing similar felony charges against journalists. 

We respectfully urge you to uphold the First Amendment and drop all Espionage Act charges against Julian Assange.

Sincerely,

Jody David Armour, Roy P. Crocker Professor of Law, USC Gould School of Law

Michael Avery, Professor Emeritus, Suffolk Law School

Emily Berman, Royce R. Till Professor of Law, University of Houston Law Center

Mark S. Brodin, Professor, Boston College Law School

Leonard L. Cavise, Professor Emeritus, DePaul College of Law

Alan K. Chen, Thompson G. Marsh Law Alumni Professor, University of Denver Sturm College of Law

Carol L. Chomsky, Professor, University of Minnesota Law School

Marjorie Cohn, Professor of Law Emerita, Thomas Jefferson School of Law

Evelyn Douek, Assistant Professor of Law, Stanford Law School

Eric B. Easton, Professor of Law Emeritus, University of Baltimore School of Law

Richard Falk, Albert G. Milbank Professor of International Law and Practice Emeritus, Princeton University

Martha A. Field, Langdell Professor, Harvard Law School

Sally Frank, Professor of Law, Drake University School of Law

Eric M. Freedman, Siggi B. Wilzig Distinguished Professor of Constitutional Rights, Maurice A. Deane School of Law at Hofstra University

James Goodale, Adjunct Professor of Law, Fordham University School of Law

Robert W. Gordon, Professor of Law, Emeritus, Stanford Law School

Mark A. Graber, Regents Professor, University of Maryland Carey School of Law

Jonathan Hafetz, Professor of Law, Seton Hall Law School

Heidi Kitrosser, William W. Gurley Professor of Law, Northwestern – Pritzker School of Law

Genevieve Lakier, Professor of Law and Herbert & Marjorie Fried Teaching Scholar, The University of Chicago Law School

Arthur S. Leonard, Robert F. Wagner Professor of Labor and Employment Law, Emeritus, New York Law School

Gregg Leslie, Professor of Practice; Executive Director, First Amendment Clinic, ASU Sandra Day O’Connor College of Law

Gregory P. Magarian, Thomas and Karole Green Professor of Law, Washington University School of Law

Carlin Meyer, Prof. Emerita, New York Law School

Anthony O’Rourke, Joseph W. Belluck & Laura L. Aswad Professor, University at Buffalo School of Law

Richard J. Peltz-Steele, Chancellor Professor, UMass Law School

Jonathan Peters, Chair of the Department of Journalism and Affiliate Professor of Law, University of Georgia

Aziz Rana, Incoming J. Donald Monan, S.J., University Professor of Law and Government,
Boston College

Leslie Rose, Professor of Law Emerita, Golden Gate University School of Law

Brad R. Roth, Professor of Political Science and Law, Wayne State University

Laura Rovner, Professor of Law & Director, Civil Rights Clinic, University of Denver
Sturm College of Law

Natsu Taylor Saito, Regents’ Professor Emerita, Georgia State University College of Law

G. Alex Sinha, Associate Professor of Law, Maurice A. Deane School of Law at Hofstra University

Mateo Taussig-Rubbo, Professor; Director of J.S.D. Program, University at Buffalo School of Law

Hannibal Travis, Professor of Law, Florida International University College of Law

Sonja R. West, Brumby Distinguished Professor in First Amendment Law, University of Georgia School of Law

Bryan H. Wildenthal, Professor of Law Emeritus, Thomas Jefferson School of Law

Ellen Yaroshefsky, Howard Lichtenstein Professor of Legal Ethics, Maurice A. Deane School of
Law at Hofstra University

Signatories to this letter have signed in their individual capacities. Institutions are named for identification purposes only.

1. 18 U.S.C. §§ 792-798. 

2. Smith v. Daily Mail Publ'g Co.,443 U.S. 97, 104 (1979). 

3. See, e.g., Bartnicki v. Vopper, 532 U.S. 514 (2001); Florida Star v. B.J.F., 491 U.S. 524, 536 (1989); Landmark Commc'ns, Inc. v. Virginia, 435 U.S. 829, 830 n.1, 832 (1978); Okla. Publ'g Co. v. Okla. Cnty. Dist. Ct., 430 U.S. 308 (1977).

4. See, e.g., N.Y. Times Co. v. United States, 403 U.S. 913 (1971) (per curiam).

5. Jean v. Mass. State Police, 492 F.3d 24, 31 (1st Cir. 2007) (Bartnicki barred liability for knowingly receiving illegal recording under criminal wiretapping statute).

6. Charlie Savage, Major News Outlets Urge U.S. to Drop Its Charges Against Assange, N.Y. Times, Nov. 28, 2022.

7. Camille Fassett, Press Freedom Organizations and News Outlets Strongly Condemn New Charges
Against Julian Assange, Freedom of the Press Foundation, May 24, 2019.

8. Hadas Gold, The DOJ's "New York Times" problem with Assange, Politico, Nov. 26, 2013.

9. 18 U.S.C. § 793; WikiLeaks Founder Charged in Superseding Indictment, Office of Public Affairs, U.S. Department of Justice, June 24, 2020.

10. Bartnicki, supra; Democratic Nat'l Comm. v. Russian Fed'n, 392 F. Supp. 3d 410, 436 (S.D.N.Y. 2019) ("Journalists are allowed to request documents that have been stolen and to publish those documents.").

11. Steven Lee Myers & Benjamin Mullin, Raid of Small Kansas Newspaper Raises Free Press Concerns, N.Y. Times, Aug. 13, 2023.

12. Charlie Savage, Garland Formally Bars Justice Dept. from Seizing Reporters' Records, N.Y. Times, Oct. 26, 2022.

Naming rape suspects may draw criminal charges for journalists under Northern Ireland privacy law

Bernard Goldbach via Flickr CC BY 2.0

In Northern Ireland, it's a crime for a journalist to identify a rape suspect.

The relevant provision of the country's Justice (Sexual Offences and Trafficking Victims) Act 2022. Attorney Fergal McGoldrick of Carson McDowell in Belfast detailed the law for The International Forum for Responsible Media Blog in October 2023, just after the law took effect.

The law applies to a range of sexual offenses including rape. The prohibition expires upon an arrest warrant, criminal charge, or indictment. If prosecution does not expire the prohibition on identification, it remains in force until 25 years after the death of the suspect. The act amended preexisting privacy law to afford comparable anonymity to victims.

I have deep experience with this issue, and it is fraught. Despite my strong preference for transparency in government, especially in policing, the law has merit.

I was a university newspaper editor back in ye olden days of paper and ink. My newspaper reported vigorously on accusations of sexual assault against a student at our university by a student at a nearby university. The accusations and ensuing criminal investigation gripped the campus.

We learned the identity of both suspect and accuser. We reported the former and concealed the latter. Discussing the matter as an editorial board, we were uncomfortable with this disparity. Having the suspect be a member of our own community and the accuser an outsider amplified our sensitivity to a seeming inequity. We did take measures to minimize use of the suspect's name in the reporting.

These were the journalistic norms of our time. Naming the accuser was unthinkable. This was the era of "the blue dot woman," later identified as Patricia Bowman (e.g., Seattle Times). The nation was enthralled by her allegation of rape against American royalty, William Kennedy Smith. In the 1991 televised trial, Bowman, a witness in court, was clumsily concealed by a floating blue dot, the anonymizing technology of the time.

Smith was acquitted. The case was a blockbuster not only for TV news, but for journalism, raising a goldmine of legal and ethical issues around criminal justice reporting and cameras in the courtroom.

There was no anonymity for Smith. I went to a Society of Professional Journalists (SPJ) conference around this time, and the issues were discussed in a huge plenary session in a ballroom. The crowd exuded self-loathing for the trauma journalism itself had piled on Bowman. Objectivity be damned, many speakers beat the drums for the pillorying of the acquitted Smith.

The calculation in journalism ethics with regard to Smith, and thus to my editorial board, was that police accountability, knowing whom is being investigated, charged, or detained, and public security, alerting the public to a possible threat, or eliciting from the public exonerating evidence, all outweighed the risk of reputational harm that reporting might cause to the accused. Moreover, ethicists of the time reasoned, it would be paternalistic to assume that the public doesn't understand the difference between a person accused and a person convicted.

Then, in my campus case, the grand jury refused to indict. Our reporting uncovered evidence that the accusation might have been exaggerated or fabricated.

Our editorial hearts sank. Had we protected the wrong person?

My co-editor and I discussed the case countless times in the years that followed. We agonized. It pains me still today. Thirty years later, I find myself still retracing the problem, second-guessing my choices. It's like a choose-your-own-adventure where you feel like you're making the right choice each time you turn the pages, yet your steps lead you inevitably to doom.

Idealistically committed as we were at that age to freedom-of-information absolutism, we were inclined to the anti-paternalistic argument and reasoned that probably we should have named everyone from the start and let the public sort it out.

In our defense, a prior and more absolutist generation of norms in journalism ethics prevailed at the time. I was there at SPJ in the following years as leading scholars worked out a new set of norms, still around today, that accepts the reality of competing priorities and evinces more flexible guidance, such as, "minimize harm." Absolutism yielded to nuance. Meanwhile, the internet became a part of our lives, and both publication and privacy were revolutionized.

So in our present age, maybe the better rule is the Northern Ireland rule: anonymize both sides from the start. 

I recognize that there is a difference in a free society between an ethical norm, by which persons decide not to publish, and a legal norm, which institutes a prior restraint. I do find the Northern Ireland rule troublesomely draconian. The law would run headlong into the First Amendment in the United States. Certainly, I am not prepared to lend my support to the imprisonment of journalists.

Yet the problem with the leave-it-to-ethics approach is that we no longer live in a world in which mass media equate to responsible journalism. From where we sit in the internet era, immersed in the streaming media of our echo chambers, the SPJ Code of Ethics looks ever more a relic hallowed by a moribund belief system.

In Europe, the sophisticated privacy-protective regime of the General Data Protection Regulation (GDPR) is more supportive than the U.S. First Amendment of the Northern Ireland approach. The UK continues to adhere to the GDPR regime since Brexit. The GDPR reflects the recognition in European law of privacy and data protection as human rights, to be held in balance with the freedoms of speech and press. Precisely this balance was at issue in 2022, in Bloomberg LP v. ZXC, in which the UK Supreme Court concluded that Bloomberg media were obligated to consider a suspect's privacy rights before publishing even an official record naming him in a criminal investigation.

McGoldrick wrote "that since Bloomberg most media organisations have, save in exceptional circumstances, elected not to identify suspects pre-charge, thus affording editors the discretion to identify a suspect, if such identification is in the public interest."

Maybe the world isn't the worse for it.