FOI seminar shines light on transparency research

In fall 2022, students in my freedom-of-information (FOI) law seminar produced another range of compelling research papers in which they inquired into hot issues in the law of access to government.

It's been my privilege to teach a law school seminar in FOI since 2004. For other teachers who might like to include FOI in the higher ed curriculum, my 2012 casebook and companion teaching notes are now available in full on my SSRN page. Please contact me if my contemporary syllabus or other materials can be of help. I teach the law of access broadly, from state law to federal, and in all branches of government. Students moreover are encouraged to pursue research projects in any vein of transparency and accountability, including access to the private sector, which has been a focus in my research, too.

In fall 2022, my students had the fabulous opportunity to participate contemporaneously in the online National FOI Summit of the National Freedom of Information Coalition (NFOIC).  I'm grateful to NFOIC President David Cuillier and Summit Organizer Erika Benton for making our participation possible.

My fall class was joined by a number of guest speakers who vastly enhanced students' exposure to FOI law, research, and practice. I am especially grateful to Professor Alasdair Roberts, UMass Amherst, who joined us live to talk about all things FOI, from his classic book Blacked Out (Cambridge 2012) to the implications for transparency and accountability of the research in his latest book, Superstates (Wiley 2022).

I thank Professor Robert Steinbuch, Arkansas Little Rock, who joined us to discuss his tireless work as an advocate in the legislature for transparency. He now writes powerfully about transparency and accountability as a regular columnist for The Arkansas Democrat-Gazette, and he is author of the treatise, The Arkansas Freedom of Information Act (LexisNexis 8th ed. 2022). I thank Professor Margaret Kwoka, Ohio State, who took time away from her ongoing FOI research in Mexico to join us to talk about that work and her recent book, Saving the Freedom of Information Act (Cambridge 2021).

I also thank attorney Alyssa Petroff and current law student Megan Winkeler, who joined us via Zoom to talk about their FOI research.  An alumna of my FOI seminar (as well as Comparative Law) and now a judicial law clerk for the Maine Supreme Court, Petroff discussed her recent article in The Journal of Civic Information on access to information about private prisons in Arizona.  An alumna of my 1L Torts classes, Winkeler has four years' experience in negotiation and mediation training and currently is researching negotiated rule-making in administrative law.

Here are the students' ambitious projects.

Madison Boudreau, The Benefits and Drawbacks of Reform Targeting Police Misconduct. The movement to increase public access to police misconduct and disciplinary records has proven to be a beneficial and necessary step toward heightened transparency and accountability of police departments and officers. However, states that have taken strides to open up access to these records continue to grapple with the ongoing barriers to public access despite their efforts. States seeking to implement similar changes to their open records laws will benefit by remaining aware of potential drawbacks to access despite reform. In the absence of impactful reform that effectively mandates the disclosure of these records, police departments have shown to prefer to remain under a cover of darkness, their internal personnel procedures left unchecked. As a result, the cycle of police secrecy is bound to viciously repeat itself.

Aaron Druyvestein, The Rise of Vexatious Requester Laws: Useful Regulation or Evasive Government Practice? The concept of freedom of information allows anyone to request any agency record for any reason, a model that has been replicated around the world and celebrated as a necessity for promoting democracy. The underlying goals of FOI to promote accountability are contingent on the government providing a strong and efficient FOI system. However, with the dramatic increase in FOI requests in the country, brought about in large part by better utilization of technology in FOI processes, there has been an increase in the burden on administrative agencies as a result of excessive, repetitive, or vindictive FOIA requests. Since 2010, governments' responses to these burdensome requests have resulted in the creation of so-called vexatious requester laws, which are intended to mitigate the effect of these requests on agencies.

Critics of vexatious requester laws argue that the laws are nothing more than a feeble attempt by the government to undermine otherwise valid records requests under the guise of improving government efficiency and reducing requester harassment. Concerns have been expressed that the laws' reliance on ambiguous terminology such as "vexatiousness" will give agencies discretion to deny requests based on subjective and unverifiable agency determinations of the requester's intent or motives for requesting. This paper analyzes the rise and application of vexatious requester laws as seen in the three states—Illinois, Connecticut, and Kentucky—that have passed statutory provisions permitting administrative agencies to deny requests to vexatious requesters. In addition, this paper investigates the policy implications of such laws on the broader FOIA system.

Alise Greco, Read It Before You Eat It: An Explicatory Review of the 2016 Nutrition Facts Label and Balancing FDA Transparency with Consumer Comprehension and the Food Industry. As the nation recovers from the COVID-19 pandemic, it is difficult to ignore how drastically the American lifestyle has changed, especially with regard to diet and exercise. The Nutrition Facts Label (NFL), largely meant to influence and assist consumer decision-making for food and beverages, was last updated by the U.S. Food and Drug Administration (FDA) in 2016. This paper explains the 2016 NFL regulation in greater detail in light of a current need by many Americans to make informed, healthier choices based on science rather than social media or misleading, corporate-designed packaging. The FDA is put under the microscope and evaluated on its ability to balance the needs of consumers to be provided transparent, useful information and the demands from industry to make a profit.

Nicholas Hansen, Only Those Who Count The Vote Matter: A Comparative Examination of Arizona and Federal Transparency Regulations Pertaining to Election Data and Procedure and Their Impact on Citizen Confidence in Democracy. This analysis details the protections afforded under the state of Arizona’s election data exemptions under both the Arizona Open Meetings Act and the Arizona Open Records Act, and provides comparisons to the protections afforded under similar exemptions provided at the federal level. Characterizations of the election data and procedural protections for both levels of government are offered, and examinations of what information is permitted for provision under FOIA requests substantiate these characterizations. This analysis proceeds with an understanding that examinations must be confined to information that is both the subject of and relevant to either historical or ongoing FOIA requests, rather than the information made available to the public through the procedures associated with courtroom disclosures. 

This author posits that Arizona’s trend toward enforcing relative transparency when courts are compelled to examine the efficacy and validity of local election procedures might serve as a model for states whose courts are less inclined toward making such information available to the public at large. Recent lawsuits, including those associated with the largely settled controversies alleged pertaining to the 2020 Presidential election, and those suits pertaining to the use of Dominion Voting System’s voting machines substantiate this advocacy.

This analysis concludes with a determination as to whether or not Arizona’s FOIA exemptions as they pertain to election data and procedural information inspire greater public confidence than those utilized at the federal level. Also offered are policy recommendations as to how the Arizona judiciary might be able to better handle future election data and procedural controversies by utilizing the already extant tools within the FOIA rules, as well as policy recommendations for legislative reform in other states and the federal level, should local legislators and Congress see fit to implement a more transparent, more accessible system of legal procedures to deal with future election controversies.

Mitchell Johnson, Transparency and Tragedy: How the Texas Public Information Act is Being Weaponized After Uvalde, Yet Can Be Used for Good. This comment examines the Texas "law enforcement exception" under the Texas Public Information Act (PIA) regarding the mandamus lawsuit that several media outlets filed to obtain records from the Department of Public Safety (DPS) after the Robb Elementary shooting on May 24, 2022. The paper focused on the DPS, and not on another law enforcement agency at the scene of the shooting on May 24, because of the actions of Colonel Steven McCraw. Colonel McCraw, the highest ranking official in the DPS, has provided inconsistent accounts to the public of what occurred on May 24. This comment also examines the specific exceptions that the DPS claims. The DPS claims that the records that are sought for disclosure are either (1) records relating to an active investigation, or (2) records that relate to the purposes of law enforcement. The DPS’s current utilization of these exceptions is not grounded in law. No criminal investigation is taking place because the shooter is deceased. Furthermore, while Colonel McCraw has stated that his agency is reviewing his troopers’ and rangers’ actions to determine whether there should be a referral to prosecutors, criminal charges might be futile because of governmental immunity. Also, many of the records requested pertain to "basic information" of a crime that must be disclosed under the PIA. Last, the comment proposes that the PIA should be amended to incorporate case law and create a "criminality showing" if a law enforcement agency wishes to withhold documents under an active investigation exception.

Ashley Martinez-Sanchez, The New Jersey Open Public Records Act and the Public Interest in a Narrow Statutory Interpretation of the "Criminal Investigatory" Exemption. The New Jersey Open Public Records Act (OPRA) expresses a strong public policy in favor of open and transparent government. OPRA champions the idea of a citizen's right of access to government records to ensure an informed public. However, transparency is not absolute. The OPRA permits secrecy for ongoing law enforcement investigations.  Courts should narrowly read the "criminal investigatory" exemption. This paper analyzes the evolution of the exemption over the years. It further examines what the future looks like for it in the legislative and judicial context.  I reference New Jersey case law and recent events in the state to contextualize the importance of narrowly reading the exemption. Inversely, the paper suggests that a narrow interpretation of the exemption not only would impede transparency efforts, but would raise civil rights concerns, particularly for marginalized and vulnerable communities in New Jersey. 

Marikate Reese, Police Accountability: Does it Really Exist? This paper demonstrates the power of police unions, and their contracts, in limiting accountability, transparency, and access.  The contracts are the catalyst to shielding officers from disciplinary actions, limiting civilian oversight, and restricting access to misconduct records. While states, such as New York, have become more transparent with their records, the unions still dictate a large part of police procedure.  This procedure includes, but is not limited to, delay of officer interrogations, obstructing investigations of misconduct, and destroying disciplinary records.  The procedures are safeguards put in place by collective bargaining practices, law enforcement bills of rights, and civil labor law protections.  The overall purpose of these safeguards is to establish rights, protections, and provisions for law enforcement officers including the arbitration process, training standards, and process of investigation. This paper provides a brief coverage of the protections afforded by collective bargaining, police bills of rights, and civil labor laws that stand in the way of the public transparency barriers and racial injustice.  Furthermore, this paper addresses how these procedural protections limit accountability while taking a look at the existing laws among various states.  This paper suggests several ways states have made strides for accountability and what limitations might arise as a result.

James Stark, What's the Deal with Doxing? Doxing is an entropic issue plaguing today’s society. Defining what it means to be “doxed” has been a problem that’s compounded by the fact that not all forms of doxing are equal. Some play a useful role in public discourse, while other forms of doxing enable harassment of private citizens. The current anti-doxing laws can be summed up in three categories. First are the “incidentals,” which tend be older laws that just incidentally happen to address doxing in some way due to the language used. The second category is “Daniel’s Law,” which is a law that has picked up traction for trying to protect public officials from doxing and its harms. Lastly are the “general” statutes, which were crafted to specifically fight doxing in general and protect as many people as possible from doxing. In order to properly combat doxing, legislatures need to agree that doxing is the unwanted release of personal or identifying information about an individual as a form of punishment or revenge, and that it can affect anyone, in government or not. The legislatures must focus on creating “general” statutes, and tailor the laws to protect the individuals, while allowing discourse around public officials. A poorly written anti-doxing law will result in either censorship or inadequate protection of individual Americans.

Marco Verch Professional Photographer via Flickr CC BY 2.0

Chad Tworek, Public But Private Athletic Departments. This paper address the Florida state policy that allows public universities to designate their athletic departments as private, thus evading the records requests for which compliance is required for any other public agency. In Florida, there are athletic departments at public universities that are private. While they are not funded by the university, they still act as an agent of the university and are afforded the same protections as public universities. If anyone is to sue these departments and seek to claim damages, there is a statutory cap on damages, $200,000. The cap pertains because courts find them to be mere components of the public entities they serve. Yet protection from public records requests allows these departments to accumulate money in secret and to spend without accountability. Such organization of athletic departments is moreover occurring elsewhere in the United States. The impact is to keep the public in the dark about how these arms of government do business.

Upcoming NFOIC Summit features access all-stars

Access-to-information (ATI, RTK, FOI) enthusiasts are invited and encouraged to attend the online 2022 summit of the National Freedom of Information Coalition on October 18-20.

My FOI seminar class and I will be there.

From the summit home page at Whova, this year's program "will include two hands-on training seminars and over a dozen of sessions this year. Hear real stories from real people, learn the best approaches to enforcing FOI Laws, examine the public's right now in the era of polarization, and more."

Summit participants include experts and champions of transparency, open government, and First Amendment rights. They also include journalists, public employees, govtech and civictech individuals, and anyone who are interested in democracy and accountability."

Speakers include (but are not limited to) some heroes of mine in the academy, notably David Cuillier, University of Arizona; Daxton "Chip" Stewart, Texas Christian University; A, Jay Wagner, Marquette University; Margaret Kwoka, Ohio State University; and Amy Sanders, University of Texas at Austin.

The lineup also features some FOI legends who have worn many hats, including Frank LoMonte, now at CNN and most recently executive director of the Brechner Center; Michael Morisy of MuckRock; Colleen Murphy of the Connecticut FOI Commission; Tom Susman of the American Bar Association and previously of Ropes & Gray; and Daniel Libit, founder of The Intercollegiate and Sportico and tireless advocate for accountability in college athletics.

This year's agenda covers ORA/OMA litigation and enforcement, college athlete publicity rights, messaging apps, doxxing, law enforcement video, legislative transparency, and much more.

I also look forward to seeing the latest research, which wins consideration for publication in the Journal of Civic Information (for which I'm privileged to serve on the Editorial Board).

Registration is affordable and online here. #FOISummit22.

If you've read this far, you might be interested as well in a free public series of online classes recently announced by the New England First Amendment Coalition (NEFAC), "Open Meeting Law: How Newsrooms Respond to Executive Session Secrecy."

Despite lack of statute, anti-SLAPP blocks mining company suit as abuse of process in South Africa

Coffee Bay is a tourist destination on the Eastern Cape.
(photo by Jon Rawlinson CC BY 2.0)

Two weeks ago, a South African court recognized an anti-SLAPP defense in the absence of a statute, as an abuse of process, in a defamation case brought by mining companies against environmentalists.

In the case, mining companies Mineral Commodities Ltd and a subsidiary, and directors, sued environmentalist lawyers and activists for defamation, seeking R14.25m, close to US$1m, or in the alternative, an apology, for defendants' accusations of ecological and economic damage caused by excavation and mining projects at Tormin Mine on the Western Cape and at Xolobeni on the Eastern Cape.

Defense lawyers argued that the suit was a strategic lawsuit against public participation, or "SLAPP" suit, calculated to silence the defendants for their criticism of the plaintiffs, rather than a bona fide claim of defamation.  South Africa has no anti-SLAPP statute.  But the High Court for the Western Cape held, with reference to the freedom of expression in the South African constitution, that the judicial power to abate vexatious litigation and abuse of civil process may be deployed to dismiss a SLAPP suit.

"[T]he interests of justice should not be compromised due to a lacuna or the lack of legislative framework," the court wrote.

The court examined the history of the SLAPP as a legal strategy and traced its origin to anti-environmentalism in Colorado and recognition in the 1988 scholarship of professors Penelope Canan and George Pring.  The court discussed anti-SLAPP legislation in the United States, Canada, and Australia, including the statutes of Georgia, Washington, and New York, and the recent enhancement of the latter.  Anti-SLAPP has been recognized as meritorious in principle by the Supreme Court of Canada, the High Court observed, though anti-SLAPP is enacted by statute in only three provinces.

The court looked also to Europe, and specifically the "McLibel" lawsuit of the 1990s (1997 documentary) and 20-aughts, in which McDonald's Corp. sued environmentalists in England.  Anti-SLAPP has been debated in the European Union, the court explained, but legislation has not been enacted.  Nevertheless, the court opined, the ultimate disposition of the McLibel case in the European Court of Human Rights (ECtHR) was consistent with the principle of anti-SLAPP.  In the McLibel case, the English courts ruled in favor of McDonald's, finding some assertions in the environmentalist leaflets to be libelous.  Subsequently, the ECtHR, in 2005, ruled that British law (well before the 2013 UK Defamation Act) had not afforded the defendants sufficient protection for the freedom of speech.  

In the McLibel case, the ECtHR stressed the chilling effect on speech of the extraordinary cost burden on individual activist-defendants in defending a civil suit against a large corporation, especially in the shadow of attorney fee-shifting to the winner, which is the norm in civil litigation in the UK and most of the world.  The High Court pointed to a South African precedent that is similar on that point, Biowatch Trust v. Registrar, Genetic Resources, in the Constitutional Court of South Africa in 2009.

I have written before about Biowatch, which was an access-to-information (ATI, freedom of information, or FOI) case.  In that case, environmentalist NGO Biowatch, under South African environmental protection and access-to-information law, sought information about Monsanto (now Bayer) genetically modified organisms introduced into national agriculture.  The result in the case was mixed, and the trial court awarded the defendant government and intervenor Monsanto their substantial legal fees against Biowatch.  Subsequently, the Constitutional Court held that Biowatch should be exempt from a fee award, because such an award against a public-interest litigant would chill the exercise of constitutional rights, which, in South Africa, include the right to a healthy environment.

The exact contours of a common law anti-SLAPP defense will have to be worked out by South African courts if the High Court precedent sticks.  The instant case was not difficult for the court to map to the SLAPP paradigm:  The tort alleged was defamation.  The conduct of the defendants was expression specifically in furtherance of environmental protection.  The mismatch between plaintiffs and defendants in wealth and power was "glaringly obvious."

The plaintiffs' demand also drew the court's skepticism.  Referencing the findings of Canan and Pring in the 1980s, the court observed: "A common feature of SLAPP suits is ... a demand for an apology as an alternative to the exorbitant monetary claim."

I reiterate my dislike of anti-SLAPP laws.  I also acknowledge that anti-SLAPP measures sometimes are warranted.  South Africa in particular, in recent decades, has seen a rise in the weaponization of defamation and related torts, especially by powerful corporations and politicians, including former President Jacob Zuma.  Americans might note a parallel in former President Donald Trump, who used defamation for leverage in business and called for plaintiff-friendly libel reform.  At the same time, defamation defendant President Trump won a nearly $300,000 award against Stormy Daniels thanks to fee-shifting under the California anti-SLAPP law.

The problem with anti-SLAPP legislation in the United States is that it does not weigh factors that the Western Cape High Court took into account, such as the relative power of the plaintiff and the defendant.  Yes, anti-SLAPP laws in the United States and Canada protect environmentalists against developers.  American anti-SLAPP laws also protect fantastically wealthy and sloppy media conglomerates against individuals whose lives are ruined by mistakes and falsities on the internet, which never forgets.  The threat of fee shifting, characteristic of anti-SLAPP legislation and usually foreign to U.S. civil litigation, is especially terrifying in light of enormous U.S. transaction costs, including the high-dollar rents of American corporate defense firms.  Anti-SLAPP laws are the darling of the professional media defense bar, and, lest the journalist's aphorism be conveniently forgotten, we might ought follow the money.

For that reason, the High Court's "abuse of process" approach is intriguing.  The court's articulation of abuse of process, as applied to Mineral Commodities, while not the sole basis of the court's holding, accords with the American common law test.  The American tort may be expressed as "(1) use of judicial process (civil or criminal), (2) ulterior or improper motive, (3) process used not for its designed or intended purposes, and (4) resulting harm."

Typically, in the American context, abuse of process is exceedingly difficult to prove, because courts are generous in accepting the plaintiff's plea of honest intentions to negate the second element.  Mineral Commodities pleaded its genuineness, but the High Court was willing to doubt, sensibly, looking at the parties and the uncontroverted facts.  Maybe a bit less judicial generosity would allow abuse of process to police SLAPP better than the corporate-friendly statutes that 30 U.S. states have embraced, and for which media corporations are now lobbying Congress.

The opinion in the High Court was delivered by Deputy Judge President of the Western Cape High Court Patricia Goliath.  Her surname was not lost on commentators (below), who played on the "David vs. Goliath" ideal of anti-SLAPP.  Curiously, DJP Goliath, who served on the Constitutional Court in 2018, is embroiled presently in turmoil within the High Court.  In 2019, she alleged she had been pressured by President Zuma for favorable assignments of cases in which he was involved.  Possibly in retaliation for not playing ball, she has been, she has alleged further, subject to gross misconduct and verbal abuse, if not worse, by High Court President John Hlophe.  JP Hlophe denies the allegations.

I am indebted, for spying the case, to attorneys for the defendants, Odette Geldenhuys and Dario Milo, of Webber Wentzel, who wrote about the case for the Sunday Times (South Africa) (subscription required) and for the INFORRM blog.

The case is Mineral Sands Resources Ltd v. Reddell, No. 7595/2017, [2021] ZAWCHC 22 (High Ct. Wn. Cape Feb. 9, 2021) (South Africa).

Legal scholars overlook scholarship about state FOIA, but dedicated academics toil for state transparency

Professor Robert Steinbuch and I aim to draw attention to the undersung work of state-law transparency  scholars through our recent publication in the Rutgers Law Record.  Here is the introductory paragraph.

We have read with interest Christina Koningisor’s publication, Transparency Deserts. While there is much to be lauded in the work – all access advocates would like to see more scholarship and publicity about the importance of transparency and accountability – we are disheartened by the article’s failure to recognize the extant vibrant body of scholarship and activism in state freedom of information law.

[¶] We, moreover, find this omission characteristic of a broader ignorance in legal academia of the sweat and toil of legal scholars, scholar-practitioners, and interdisciplinary academics who analyze and advocate for state transparency laws. This blind spot particularly manifests, unfortunately, among those at elite (typically coastal) law schools, who generally contribute vitally to the literature of the undoubtedly important federal transparency regime. These federal freedom-of-information scholars too often neglect the critical importance of state transparency laws – as well as state-transparency legal academics.

[¶] Quite in contrast, state-law access advocates generally acknowledge the value of federal statutory analogs, often referencing federal norms and practices comparatively, while, nonetheless, working upon the apt assumption that state access laws, en masse, have a greater day-to-day impact in improving Americans’ lives and in enhancing democratic accountability in America than does the federal Freedom of Information Act. Koningisor’s article evidences this disappointing tension. 

The publication is Transparency Blind Spot: A Response to Transparency Deserts, 48 Rutgers L. Rec. 1 (2020).  The publication is available for download from SSRN.  

Christina Koningisor, author of the referenced Transparency Deserts, kindly responded on the FOI listserv and gave me permission to share her thoughts.  Included is a link to her ongoing work.  Professor Steinbuch and I could not be happier to engage in a dialog that educates scholars and the public on the importance of state FOIA.

[T]hank you to Rick and Rob for taking the time to so thoughtfully respond to my piece. I sincerely appreciate it. And I take your points of criticism. The article certainly could have benefited from drawing more upon the excellent state-level scholarship that you cite in your response to my piece. I will also be sure, moving forward, to draw more heavily from the accomplished work being done by communications and journalism scholars. The point that I meant to make in my article, and which I should have stated more clearly, is that there is less overarching scholarship on public records laws across the fifty states. Of course, there are excellent state-by-state studies and critiques, some of which I cite in my piece, and many of which I do not, and which you have helpfully flagged in your response. But I was more interested in the work that has been done looking at the state of these laws as a whole. At this level, we can begin to make generalizations about what is working and what is not that are more difficult to observe when focusing solely on a single state. Rick and Rob's response seems to suggest that such surveys are inherently flawed, because they will inevitably be underinclusive and cannot possibly account for the variation across the fifty state legal regimes and the hundreds of thousands of state and local government entities. I agree—I explicitly make this point, and acknowledge the limitations of tackling such a diverse array of laws and government entities in my article's methodology section. But I believe it is nonetheless important to take stock of how these laws operate nationwide, so long as we are forthright and honest about the limitations of any fifty-state survey. I think there is value in and space in the literature for both state-by-state deep-dives and overarching cross-state examinations. Rick and Rob do highlight, in their appendix, some of the broader cross-state scholarship on state public records law that I failed to cite, most of which are published in communications and journalism journals. Again, I concede this point and agree that I should become more familiar with this interdisciplinary work.

I also want to note briefly that my Article reaches a somewhat more nuanced conclusion than transparency is simply worse at the state and local level. I do stress the significant advantages that many state public records laws have over FOIA, including the more rapid response times, the absence of a national security apparatus and classification process impeding access, and, often, the greater accessibility of state and local records officers, among other advantages. I also note that many of these state laws suffer drawbacks when compared to FOIA: many do not have easy and relatively cheap administrative-level appeal options, for example, and the costs of records production at the state and local level can often be prohibitive. Further, although there is no national security secrecy apparatus at the state and local level, it is often exceptionally difficult to obtain records from state and local law enforcement agencies. The piece was in fact inspired by my experiences working as a lawyer at The New York Times, where, in the process of assisting reporters with their federal, state, and local records requests across the country (not just in the coastal states!), I noticed that local police departments were often the most difficult agencies to obtain records from, in some ways even more secretive and difficult to work with than even the federal intelligence agencies. But more critically, the article emphasizes that when these state laws do fail—and I think we can all agree that they sometimes do—there are fewer alternative routes for information to come to light. These transparency failures are exacerbated by broader structural features of state and local government, including reduced external checks from local media and civil society organizations, and reduced intra-governmental checks between the various branches of government. This is of course not to say that every law fails in every instance, or that there aren't many excellent civil society organizations in many places doing critical work on government transparency and oversight. Of course there are abundant examples of such laudable advocacy efforts. But there are also many places across the country where local media institutions have disappeared, civil society organizations are in dire financial straits, and intra-governmental checks are muted. The nation's access laws are remarkably diverse, and contain myriad examples of both transparency failures and successes.

Once again, I very much appreciate these thoughtful and incisive responses to my piece, and I hope to continue this conversation moving forward. I have a new state transparency law-related article, [Secrecy Creep,] forthcoming in the University of Pennsylvania Law Review. It is still quite early in the editing process, so I would love to hear any feedback and suggestions ....

Court: Irish officials must justify non-disclosure under FOIA exemption for commercial information

Ireland Supreme Court chamber (Michael Foley CC BY-NC-ND 4.0)

In two judgments in late September, the Supreme Court of Ireland ruled that Freedom of Information Act (FOIA) of 2014 exemption for confidential commercial information is not mandatory and that public entities relying on the exemption "must explain why the public interest does not justify release."

In both cases, public entities responding to record requests had been permitted to rely on the prima facie application of the exemption.  That approach fell short of the Irish FOIA's legislative command, the Supreme Court reasoned, because the record requesters were given no information with which to test the validity of the exemption.  The Supreme Court reversed and remanded.

Federal and state FOIAs in the United States also exempt from disclosure confidential information that private entities supply to government when disclosure would jeopardize the private entity's competitive position.  The exemptions operate also to shield public information from disclosure that would jeopardize the government's own competitive position as an actor in the private marketplace.

The U.S. FOIA does not, and state FOIAs typically do not, require that a public agency independently test confidential-information exemption against the public interest in disclosure, essentially second-guessing private owners' confidentiality designations.  To the contrary, legislative exemptions in some states are mandatory, and not, as U.S. FOIA exemptions are, committed to administrative discretion.  Current federal policy permits the disclosure of some statutorily exempt records, but the U.S. Department of Justice (DOJ) counsels agencies to engage in "full and deliberate" analysis of competing interests.  As to federal exemption 4, for confidential information, the DOJ has opined that such information "would not ordinarily be the subject of discretionary FOIA disclosure."

University College Cork, 2019 (Michael O'Sheil CC BY-SA 4.0)

However, unlike U.S. FOIA exemption 4 ("trade secrets and commercial or financial information obtained from a person and privileged or confidential," 5 U.S.C. § 552(b)(4)), the Irish exemption for confidential information is limited by a "public interest override."  According to the Irish law, the exemption does not apply when according to the agency "head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the FOI request."  Public interest overrides favoring disclosure are uncommon in U.S. access-to-information law, except in balancing analyses involving personnel records.

Journalist Gavin Sheridan, 2014 (Markus ›fin‹ Hametner CC BY 2.0)

Decided on September 25, 2020, both cases in Ireland involved journalistic investigations.  In Minister for Communications, Energy and Natural Resources v. Information Commissioner, [2020] IESC 57, journalist, FOI advocate, and founding CEO of Vizlegal, a legal information service provider, Gavin Sheridan (recent profile at The Attic) sought access to a state contract with service wholesaler E-Nasc Éireann Teoranta (eNet) to provide public access to fibre-optic-cable infrastructure.  In University College Cork v. Information Commissioner, [2020] IESC 58, news broadcaster RTÉ sought information about a €100m loan by the European Investment Bank to the National University of Ireland, Cork.  Both court opinions were authored by Justice Marie Baker, herself a U. Cork alumna, with four other justices concurring.

More details and further analysis of the cases are available from Andrew McKeown BL at Irish Legal News (Sept. 28, 2020), and from Bébhinn Bollard, Doug McMahon, and Brendan Slattery at McCann FitzGerald (Oct. 12, 2020).

Research for educational opportunity, accountability requires transparency, need not forgo student privacy

When I had the privilege of working on transparency issues in the Arkansas General Assembly in the 20-aughts, two legislators and I promoted a bill that would have required public state universities to disclose data on their use of affirmative action in admissions.

One legislator, an African-American woman, reacted with manifest hostility, as if we sought outright to deprive persons of color of access to education.  I wish she would have engaged with us rather than fighting the bill behind closed doors.  It probably would have surprised her to learn that I was motivated specifically by an accusation leveled by an African-American advocacy group.  The group alleged, inter alia, that higher ed was using affirmative action to boost enrollment profiles, for PR and accreditation purposes, but then failing to support those enrolled students' success on state campuses.

I didn't know, and to this day don't know, whether the group's accusations held up as more than anecdotes.  As a transparency and accountability advocate and public educator myself, charged with the responsibility of faculty governance, I wanted to know the truth.  And there arose the problem: It was impossible to do the research, because the universities claimed, even in response to internal queries, that student privacy required nearly every datum about admissions to be held secret.  There was no way to know what students benefited from affirmative action, nor to match those data up with how those students fared.

The access bill ultimately failed, and, to my view, the reason for that failure only made the transparency case stronger.  We were not undone by objection based on equality of opportunity.  We were undone because our bill, which broadly defined affirmative action, would have required disclosure of legacy admissions: that is, when a university admits an applicant because the applicant is related to an alumna or alumnus, especially one who's a donor.  That kind of admissions preference is known to contribute to systemic discrimination against persons of color, not to mention aggravation of our alarming rise in America of socioeconomic disparity.

State Capitol, Little Rock, Arkansas

The hostility of the aforementioned African-American legislator was a warm smile compared with the outrage that poured forth from a white, male legislator, who happened also to be affiliated with Arkansas State University (ASU).  In a legislative hearing, he challenged my assertion that the universities would not happily cooperate with my research.  They would, he alleged, no legislation needed.  He persuaded his committee colleagues to no-pass the bill with a promise: After the legislative session, I should contact him personally for help procuring the data, and he would see to it that the disclosures happened.

The bill died.  After the session, I contacted our zealous ASU opponent, that he might make good on his promise.  He ignored my query and never responded.

My work on that bill fueled an ongoing interest in the interaction of access and privacy in education, especially the interaction of the federal Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g, and state freedom of information acts (FOIAs) (e.g., in 2018).  In that vein, my Arkansas colleague Professor Robert Steinbuch and I have just published, Ongoing Challenges in Researching Affirmative Action in Legal Education: Maximizing Public Welfare Through Transparency, 26:1 Texas Hispanic Journal of Law & Policy 57 (2020).  Here is the abstract:

The public good often depends on social science research that employs personal data. Volumes of scientific breakthroughs based on data accumulated through access to public information demonstrate the importance and feasibility of enabling research in the public interest while still respecting data privacy. For decades, reliable and routine technical methods have ensured protection for personal privacy by de-identifying personal data. Social science research into legal education and admission to the bar is presently a matter of urgent public interest and importance, requiring solid empirical analysis of anonymized personal data that government authorities possess. Social science research into the effects of affirmative action represents standard, indeed commonplace, research practice furthering the public interest, while employing established methods that minimize the risk to privacy. Yet, when seeking information regarding admissions standards and success metrics, researchers have faced remarkable headwinds from government officials. In this article, we continue to discuss a topic to which we have devoted significant professional energy: the proper balance of privacy, transparency, and accountability in researching legal education.

Our research grew out of an amicus representation in 2018, alongside Professor Eugene Volokh at UCLA Law.

I'm not here naming the ASU-affiliated legislator only because, these many years later, I don't remember his name.  I have no hesitation in calling him out if someone can remind me.

Pertinently, the data in question are still held secret, in Arkansas and many states.  So my colleagues in FOIA research, including Professor Steinbuch, still would welcome that legislator's help.  It's shameful that this fight for transparency and accountability is still under way all these years later.  It's one thing to adopt a policy position and have reasoned disagreement over it.  It's another thing entirely, and anathema to democracy, to insist on a policy position while willfully concealing evidence of its efficacy.

First Amendment right of access to court records is alive and kicking in electronic era

Developments in the First Amendment right of access to court records were on the menu this afternoon for a continuing legal education program from the American Bar Association (ABA).

The First Amendment protects "the freedom of speech, or of the press," and the U.S. Supreme Court in most contexts has rejected the First Amendment as carving out an affirmative access doctrine.  Yet access to court proceedings and records is an exceptional and narrow area of First Amendment law that grew out of criminal defendants' trial rights in the 1970s and 1980s.  (Co-authors and I wrote about the First Amendment and related common law right of access to court records in the early days of electronic court record access policy.)

Lately there has been some litigation pushing to clarify, if not expand, the First Amendment right of access to court records.  Specifically, courts in two federal jurisdictions, the U.S. Court of Appeals for the Ninth Circuit and the U.S. District Court for the Eastern District of Virginia, have recognized a right of timely access to newly filed trial court complaints.

The public access problem arose as a corollary to the economic exigency that has constrained contemporary journalism.  When I graduated from journalism school, and triceratops roamed the earth, a good journalist on the court beat checked the dockets at the clerk's office at the end of every day.  But the luxury of one journalist-one beat is long a thing of the past, and now it's harder for the working journalist to keep close tabs on new developments at the courthouse.  In this atmosphere, some state court clerks—most definitely not all, our presenters hastened to clarify—took to withholding newly filed complaints from the public record, whether while pending for "processing," or, one might speculate, to deter coverage of sensitive subject matter long enough for news editors to lose interest.

Courthouse News Service (CNS) is a national media entity reporting on civil litigation in state and federal courts.  I reference CNS often myself, here on the blog and in teaching and research, especially for pretrial court coverage, which is hard to come by in the United States.  CNS pushed back against the delayed release of pleadings, suing successfully in civil rights under the principal federal civil rights statute, 42 U.S.C. § 1983.  CNS had to beat abstention in both jurisdictions, which it did, after a first appeal and remand in the Ninth Circuit.

Relying on the range of federal precedents supporting the principle that "access delayed is access denied," CNS substantially prevailed upon its second go in federal trial court in California.  That case was called Planet, and CNS also won on appeal in, and remand from, the Ninth Circuit in a case called Yamasaki.  Remarkably, the third CNS case, in federal court in Virginia, featured full-on discovery, experts, and motions practice on its way to a four-day bench trial and CNS win.  Questions of fact arose from the clerks' purported necessity for delay while pleadings were "processed."  The court in Virginia declined formally to follow Planet, favoring a tougher articulation of the requisite First Amendment scrutiny.

The take-away from all of the cases is that the First Amendment does attach to newly filed pleadings, under the Press-Enterprise II "experience and logic test"; that timely ("contemporaneous," which doesn't mean instant) access matters from a First Amendment perspective; and that delays in access must survive heightened constitutional scrutiny.

These are the access-to-pleadings cases that the ABA presenters discussed:

• Courthouse News Serv. v. Planet, 947 F.3d 581 (9th Cir. Jan. 17, 2020) (“Planet III”), aff'g in part & vacating in part Courthouse News Serv. v. Planet, 44 Media L. Rep. 2261, 2016 WL 4157210 (C.D. Cal. May 26, 2016).
• Courthouse News Serv. v. Yamasaki, 950 F.3d 640 (9th Cir. Feb. 24, 2020), remanding, for further proceedings consistent with Planet III, Courthouse News Serv. v. Yamasaki, 312 F. Supp. 3d (C.D. Cal. May 9, 2018).
• Courthouse News Serv. v. Schaefer, ___ F. Supp. 3d ___, 2020 WL 863516 (E.D. Va. Feb. 21) (dkt. no. 102), appeal filed, No. 20-1386 (4th Cir. Apr. 2, 2020).

CLE presenters also discussed record access in the following cases.  I've added links to cases in trial court dispositions.

• Brown v. Maxwell, 929 F.3d 41 (2d Cir 2019) (remanding for in camera document review in journalist bid to access records in case of sexual abuse victim's allegations against late financier Jeffrey Epstein).
• In re New York Times, 799 Fed. Appx. 62 (2d Cir. 2020) (affirming in part and vacating in part sealing of two parts of transcript of guilty plea hearing in Foreign Corrupt Practices Act prosecution of former Goldman Sachs employee Timothy Leissner).
• Mirlis v. Greer, 952 F.3d 51 (2d Cir. 2020) (secreting video depositions of non-party witnesses, their privacy interests overcoming access presumption, upon access bid by online blogger in case by former student at orthodox Jewish school against the school and principal, alleging the principal sexually molested him while he was a student).
• Trump v. Deutshce Bank AG, 940 F.3d 146 (2d Cir. 2019) (denying access to taxpayer names as not "judicial documents," upon news organizations' motions to intervene and unseal unredacted letter filed by bank in appeal, in order to learn the redacted names of taxpayers whose income tax returns were in bank's possession, in case of bank resistance to subpoenas in House investigation of President's tax returns).
• King & Spalding, LLP v. U.S. Dep’t of Health and Hum. Servs., No. 1:16-CV-01616, 2020 WL 1695081 (Apr. 7, 2020) (denying seal, but allowing withdrawal, of information about attorney fees filed with motion, rejecting firm's claim of need to protect competitive information).
• United States v. Avenatti, No. 1:19-CR-00373, 2020 WL 70952 (S.D.N.Y. Jan. 6, 2020) (denying motion, filed by Government, defendant, and subpoena target, to seal records related to subpoena duces tecum issued on behalf of defendant on non-party in criminal proceeding).
• VR Optics, LLC v. Peloton Interactive, Inc., No. 1:16-CV-06392, 2020 WL 1644204, at *10 (S.D.N.Y. Apr. 2, 2020) (dkt. no. 308, at 17-20) (denying, as moot, motions by both parties to seal trial court records in patent dispute).
• Motion to Intervene and Unseal, Dawson v. Merck & Co., No. 1:12-cv-01876 (E.D.N.Y. filed Sept. 12, 2019, dkt. no. 121) (decision pending) (seeking unsealing and removal of redactions in court records in settled multi-district product liability litigation over alleged side effects of prescription drug, "Propecia," upon motion of news agency Reuters).

One indicator I found encouraging from an access advocate's perspective is the incidence of court rulings in favor of access even when both parties want to seal.

The ABA program was sponsored by the Forum on Communications Law.  The presenters were:

• Heather Goldman, Bryan Cave Leighton Paisner, Washington, D.C.,
• Rachel Matteo-Boehm, Bryan Cave Leighton Paisner, San Francisco,
• Christine Walz, Holland & Knight, New York, and
• Michael Grygiel, GreenbergTraurig, New York.

Tort litigation as means to truth about the Troubles, authors propose; approach parallels access theory

A new article from researchers in Newcastle, England, posits the use of tort litigation to exonerate the right to truth in relation to the Troubles in Northern Ireland.

The authors are Conall Mallory, University of Northumbria at Newcastle,  Sean Molloy, Newcastle University, and Colin Murray, Newcastle University Law School.  Their article is Tort, Truth Recovery and the Northern Ireland Conflict, forthcoming 2020 in the European Human Rights Law Review and available on SSRN.  (Hat tip @ Steve Hedley, Private Law Theory.)  Here is an excerpt of the abstract.

Northern Ireland has no effective process to address [the] legacy of the human tragedy of decades of conflict. And yet during that conflict, and especially in the years since the Belfast/Good Friday Agreement 1998, people have employed multiple legal mechanisms to gain information about events which affected them and their loved ones.... One under-explored element of this complex picture is use of tort in legacy cases. Civil actions, supported by legal aid funding in Northern Ireland, provide a potential avenue for the discovery of information held by public bodies. Even unsuccessful actions can thus contribute new information about the events in question. Many of the harms inflicted during the conflict were torts as well as crimes, and this article assesses the extent to which these civil actions provide an ersatz mechanism for truth recovery, and challenges efforts to curtail such actions as a "witch-hunt."

Derry clash, Apr. 1971 (N. Ire. public record)

The right to truth is a piece in the puzzle of truth-and-reconciliation strategies as they have been implemented with variable success in post-conflict venues around the world.  The strategies are predicated on the notion that the revelation of truth has value in of itself to victims and survivors.  The conventional legal system, focused as it tends to be on compensation, often accomplishes nothing when compensation fails to materialize, or even nothing in the way of meaningful remedy if compensation does happen.  Thus truth proceedings are regarded as a hallmark legal innovation to clear the decks and allow peoples and nations to move forward.  So well regarded is this principle that human rights instruments and institutions have come to recognize "the right to truth" as a human right, a necessary corollary to the right to life.

In this article, the authors lament that there has been no effective, systematic truth process following the Troubles.  To the contrary, they posit, the U.K. government has as often thrown up roadblocks to truthful revelation.  A patchwork of legal mechanisms has nonetheless allowed truth to surface, they explain, and they review the efficacy of legal actions such as human rights litigation and information requests under the U.K. Freedom of Information Act.

Tort litigation offers another, as yet underutilized avenue, they propose.  For reference, they point to the Alien Tort Statute in U.S. jurisprudence, though, I add, it has lately fallen on hard times in the U.S. Supreme Court; and they point to U.K. agreements in recent years to pay claimants in Kenya and Cyprus in compensation for violent colonial suppression in the 1950s.  Survivors of the Troubles, even those who were children at the time, may press tort claims, such as battery, trespass, and civil conspiracy, against violent actors in the Troubles, whether British security officials, IRA fighters, or other paramilitarists.

British Army patrol in Kenya during 1950s Mau Mau Uprising
(Imperial War Museums)

Tort litigation in the proposed vein is not a new idea, but stumbles amid many hurdles, not the least of which is sovereign immunity.  But immunity can be overcome in actions against persons, whether non-governmental or gone rogue.  And there is ample evidence of both in the history of the Troubles.  An IRA defendant, for example, may be a purely private actor, and a British official who inflicted violence might be sufficiently dissociated from government policy as to negate immunity.  There's a fine line anyway between tort litigation and human rights claims, see Stefan Somers's whole book on the subject, the two more or less coinciding in the United States in the area of "constitutional tort."

Anyway, the authors claims, the plaintiffs in these tort actions do not actually have to win; they just have to survive dismissal to get to discovery.  Because their aim, remember, is truth, not compensation.  So the authors are really proposing that tort litigation be used for its discovery methods, regardless of the outcome of the case.  They moreover suggest that the litigation might shake loose answers from the government to avoid the prospect of compensation, or at least the cost of litigating, and they illustrate that having happened already in select cases.

The idea of using tort litigation for its discovery mechanism rather than with the aim of compensation is dicey, but not wholly objectionable.  Ethically a lawyer should not file an action that isn't winnable upon some rational theory.  But these cases wouldn't fail that test; there's no rule against having a multitude of aims in the fight, even if you think you'll lose on decision.  Of course, American tort lawyers are often criticized (whether it's true or not, discussion for another day) for playing fast and loose with that understanding, using the litigation process and its hefty transaction costs to shake down defendants on barely credible claims.  Here at least the aim is truth, rather than a pay day, so an aim with some sanction in civil rights.

The proposed litigation strategy reminds me of the work I've been doing lately (e.g., U.S. reform proposal) on the freedom of information, or right to access to information, in South African law.  There, a provision of law allows access to private sector records upon stringent prerequisites, namely, the exoneration of human rights.  The right to truth is one right that should fit that bill, a co-author and I have posited (abstract on SSRN, blog).  In a conventional South African FOI case, the courts allowed access to the records of a public steel company to investigate the exploitation of Apartheid labor.  It's a short leap from there to investigation of a private company with similarly sinister secrets.

Moreover, the South African courts have put some mileage on the private-sector-access law as a tool for "pre-discovery," before tort litigation is filed, to help a would-be plaintiff test the evidentiary waters.  That approach can only make litigation more efficient, more than one South African court has reasoned, by filtering out non-viable causes.

Those twin rationales, the right to truth and the validity of pre-discovery, seem incidentally to countenance the repurposing of tort law to the aim that Mallory, Molloy, and Murray here propose.  A comprehensive and government-sponsored approach to truth-finding would be more satisfying to those of us who like to call something what it is.  But maybe this is a way that tort law can exert policy pressure to bring about, in time, a coherent legal approach to the right to truth.

Shine the light: 'Journal of Civic Information' debuts

There can't be enough research on facilitating the freedom of information, given that today we are a global information society.  A new journal debuted this month from the Brechner Center and partners that strikes at the FOI sweet spot, and as we wish all information projects were, it's open access.  Welcome to The Journal of Civic Information.  Here is its About:

The Journal of Civic Information is an open-access, interdisciplinary journal that publishes peer-reviewed research related to the field of accessibility of public information. We welcome submissions from both scholars and practitioners from all disciplines that involve managing information for public use. 

The Journal is a publication of the Brechner Center for Freedom of Information at the University of Florida. The Brechner Center is an incubator for initiatives that give the public timely and affordable access to the information necessary for informed, participatory citizenship. The Center is a source of research, expertise and advocacy about the law of gathering and disseminating news across all platforms and technologies. 

The Journal publishes quarterly online, and author submissions will be accepted on a rolling year-round basis. 

Proposals may encompass any research methodological approach (legal, survey, experimental, content analysis, etc.), and should provide insights of practical value for those who work day-to-day in access to government information. Topics may include issues regarding access to public records and meetings, court transparency, access to public employees and elected officials, open data and technology, and other related matters. The Journal gives priority to articles with relevance to the state-and-local levels of government. 

And here is the ToC for volume 1, issue 1:

Editor's Note
Frank D. LoMonte & David Cuillier
An Introduction

Legal Analysis

Daxton "Chip" Stewart & Amy Kristin Sanders
Secrecy Inc.: How Governments Use Trade Secrets, Purported Competitive Harm and Third-Party Interventions to Privatize Public Records

Katie Blevins & Kearston L. Wesner
Access to Government Officials in the Age of Social Media

Social Science

Alexa Capeloto
Agency Perspectives on Online Public Records Request Portals

Jodie Gil
Tracing Home Address Exemptions in State FOI Laws

Submitting authors start here.  The journal is headed by access aces Frank LoMonte, University of Florida; David Cuillier, University of Arizona; and Rachael Jones, University of Florida.  I'm privileged to add the rough edge to an otherwise exceptionally well rounded editorial board.

Bring it on, secrecy!

Practical obscurity, other privacy arguments deliver blow to media in Mass. FOIA case

The Massachusetts Supreme Judicial Court (SJC) decided a state open records case in mid-June that invites lower courts to substantially broaden privacy exemption from access to information. The case is Boston Globe Media Partners, LLC v. Department of Public Health, No. SJC-12622 (Mass. June 17, 2019) (Lexis).

The Boston Globe is seeking access to a database of state birth, marriage, and death records from the Department of Public Health (DPH). In disagreement with state administrative officers enforcing the open records law, DPH refused access in part, citing statutory protections of personal privacy.  The SJC rejected dispositive motions from both sides, electing to clarify the law and remand for a range of further fact finding.

The case resonates with various problems that have become familiar to privacy law over the last few decades. First, can privacy arise in a compilation of records, when the records are not private one by one?  Second, can privacy preclude disclosure of records in government possession because the records are more about individuals than about the government? Third, how can personal privacy in electronic public records account for an individual's hypothetical privacy interests in the future?

First, the compilation problem arises in that these vital records already are available to the public. Members of the public are allowed to go to  DPH's research room during 11 opening hours each week to view vital records in the electronic database. There are limitations, though. A researcher must search for a name, viewing responsive records only one at a time. Printing is not available, though there is no limitation on copying down information.

At issue legally, then, is whether mere compilation can change the public/private disposition of a record. Historically, the answer to this question was no. Norms of public records law as it developed in the 20th century held that a record should be evaluated within its four corners.

However, that position changed at the federal level, under the federal Freedom of Information Act (FOIA), with the landmark case, U.S. Department of Justice v. Reporters Committee for Freedom of the Press (U.S. 1989). In that early instance of database access, the Supreme Court construed the FOIA contrary to access on various grounds.  The case was an infamous loss for the access NGO Reporters Committee, which filed as amicus on behalf of the Globe in this case.

Among the conclusions of Reporters Committee, the Court embraced the doctrine of practical obscurity: the notion that a record that is hard to find, whether by rifling through paper or by collecting geographically disparate components, may therein preserve a privacy interest against disclosure when compiled electronically with other such records. With its limitations on record access through the research room, DPH means to effect practical obscurity. The SJC was receptive to the argument, and it will remain to the lower court to decide what weight that privacy holds. Practical obscurity has been a thorn in the side of access advocates for the 30 years since Reporters Committee, while it has captivated courts.

Second, the content problem goes to the disputed heart of access law, its purpose. In Reporters Committee and subsequent cases, the federal courts embraced the cramped position that the purpose of access law is to reveal "what government is up to." Thus when records contain personal information, access opponents ground resistance in statutory purpose without even needing to rely on privacy exemptions.

Access advocates have argued powerfully against this position, especially in the states. Simply knowing what information government is collecting about individuals seems an important priority in the digital age. And the limited purpose argument ignores the plain theoretical position that government records are public records simply by virtue of ownership or possession, because ours is a government of the people. 

On this score the SJC was more solicitous of a broad construction. The state law expressly cites the watchdog purpose. Nevertheless, the Court reasoned that the statute more broadly means to further public interests, which may require disclosure even of personally identifying information in public possession. At the same time, the Court observed that public interests may weigh against disclosure, acknowledging personal privacy protection as a public interest. In the instant case, the Court cited only a public interest in record accuracy, as argued by the Globe, to favor disclosure. The balance is left to remand, but the interest of accuracy seems thin relative to the array of privacy arguments deployed by DPH.

That array arises in connection with the third and most contemporary problem, the protection of individuals' hypothetical privacy interests. Here again is a privacy interest that conventional access law would have disregarded. Yet the SJC was solicitous.

This same problem has been much discussed in the internet age in the guise of the right to be forgotten, or right to erasure. If a government entity is obliged to disclose databases upon demand, then it becomes difficult, if not impossible, to withdraw information from the public sphere later. Access absolutists say, so be it. But privacy advocates assert that meritorious processes for correcting or sealing sensitive public records, such as criminal histories or family matters, are undermined by an internet that "never forgets."

Especially with regard to vital records, the SJC spent some ink on the problem of sex changes and the discovery of a person's birth identity. That is a factor rightly weighed into the privacy balance on remand, the Court held. While evincing compassion, the Court's position is sure to rile access advocates. There seems no logical stopping point from the Court's position to the conclusion that all personally identifying information must be protected against disclosure, in case any one person wishes to change identity in the future. That would be a rule ripe for abuse in official hands.

This decision is bad news for access advocates. It invites privacy to the table as a weight co-equal with access, virtually lifting the presumption-of-access thumb from the scale. The government won broad discretion to conceal its activities relative to people.

At the same time, the Court showed itself to be in step with contemporary privacy law. For better and worse, people are looking to government to protect them against abuses of information in the private sector, from identity theft to big data analytics. In the absence of legislation, the courts have been ever more inclined to oblige.

It remains to be seen what price this protection will exact from transparency and accountability of the government itself.