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.

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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. 

Courts extend European accountability laws to private actors: Italian soccer federation, Irish wind farm

Two recent court decisions in Europe construed European directives on public accountability to reach ostensibly private actors, the Italian soccer federation and an Irish wind-power producer.

Stocksnap by Michal Jarmoluk CC0

The problem of accountability for private actors performing public functions is as old as the corporate form.  Burgeoning corporatocracy in the electronic era has rendered new challenges to the classical public-private dichotomy, in recent years, especially, in the area of social media regulation (e.g., pro and con).  I have written about rethinking this problem in the context of access to information, regarding reform in both the United States and Europe, and I continue to research emerging models in the developing world.  As a general matter, Europe has been much less reticent than the United States to breach the public-private line with accountability mechanisms such as transparency laws.

In early February, the Court of Justice of the European Union (CJEU) in Luxembourg ruled that the Italian Football Federation, or Federazione Italiana Giuoco Calcio (FIGC), an ostensibly private entity, is sometimes a public body for purposes of the 2014 European directive on public procurement.  The directive defines public bodies within its purview:

(a) they are established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character;

(b) they have legal personality; and

(c) they are financed, for the most part, by the State, regional or local authorities, or by other bodies governed by public law; or are subject to management supervision by those authorities or bodies; or have an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, regional or local authorities, or by other bodies governed by public law.

The definition is not unlike formulations in state freedom of information acts in the United States, which tend to press harder against the public-private line than the federal Freedom of Information Act (FOIA) does.  A classic example of disparate approaches in the states concerns access to the wealthy private foundations that lurk behind public universities.  My colleague Professor Robert Steinbuch has been bearing the transparency standard on this front in Arkansas and is supporting a bill there now.

At issue in the Italian case was a contract for porter services when foreign squads visit Italy.  A disappointed contractor challenged the process and won a round in Italy's high administrative court, and the appellate Council of State in Italy referred the interpretation question to the CJEU.  Both in the United States and globally, governing bodies in sport, often set up as private or quasi-public entities, have posed aggravating challenges in public accountability like the university-foundation problem.  Inapplicability of the FOIA to the US Olympic Committee has been cited as a contributing factor in sexual-assault cover-ups, and last summer, I took in no fewer than three books and a TV series on the intractable corruption in world soccer.

The CJEU opinion determined that the FIGC, constituted under private law, can act as a private body when it has autonomy to form private contracts.  However, the Italian National Olympic Committee (NOC) is a public body and has supervisory power, sometimes with a controlling stake, over some FIGC functions.  Insofar as the NOC is calling the shots on contracts, the FIGC is a public body, subject to public procurement rules.  The CJEU opinion now goes back to the Italian courts to parse the specifics. 

Cronelea Wind Farm in County Wicklow, 2008

(Geograph photo by Jonathan Billinger CC BY-SA 2.0)

Meanwhile, in late January, the High Court of Ireland ruled that electric company Raheenleagh Power DAC (RP) is a "public authority" for purposes of the Irish enactment of the European directive on public access to environmental information.  The law and directive define public authorities:

(a) government or other public administration, including public advisory bodies, at national, regional or local level;

(b) any natural or legal person performing public administrative functions under national law, including specific duties, activities or services in relation to the environment; and

(c) any natural or legal person having public responsibilities or functions, or providing public services, relating to the environment under the control of a body or person falling within (a) or (b).

Reversing the Irish Commissioner for Environmental Information, the High Court determined that RP came within the definition's latter terms.  The court explained, "RP is a joint-venture company which operates a wind farm in a forest in the Wicklow Mountains. The wind farm supplies electricity to the national grid."  Complicating the analysis, the RP venture includes a one-half stake by the national-monopoly Electricity Supply Board (ESB), which the court described as "an independent semi-State company."

Like in the Italian case, the court reasoned that ESB control and management of RP brought it within the purview of public accountability law.  The ruling is important for the example it sets amid the wide range of public-private hybrids providing critical utility and infrastructure across Europe and the world.

Even so, I would like to have seen the court hang its hat more firmly on the functional analysis of the cited paragraph (b), rather than resorting to the paradigm of state control.  The urgent communal interests at stake in environmental protection have been a salient inducement to the extension of transparency law in Europe and Africa.  Western social democracies have been keen to ameliorate the effects of climate change, and many African regimes have awakened to lasting environmental damage inflicted by colonial enterprises.

The Italian case is FIGC v. De Vellis Servizi Globali Srl, nos. C‑155/19 and C‑156/19, ECLI:EU:C:2021:88 (CJEU Feb. 3, 2021).  Cain Burdeau has coverage for Courthouse News.  Sven Demeulemeester, William Timmermans, and Matthias Ballieu have commentary for Altius in Belgium.

The Irish case is Right to Know CLG v. Commissioner for Environmental Information, [2021] IEHC 46 (High Ct. Jan. 25, 2021) (Ireland).  Mr. Justice Alexander Owens delivered the judgment.  Right to Know is a transparency advocacy organization headed by activist, blogger, and entrepreneur Gavin Sheridan and former and working journalists.  Jonathan Moore and Patrick Reilly have commentary for Field Fisher in Dublin.