Present editor and FOI advocate extraordinaire David Cuillier has moved into the leadership role at Florida's Brechner Center, so he needs someone new at the helm of the journal. The associate editorship is a three-year gig with a $2,500 annual stipend.
I serve on the Journal's Editorial Board. So you know it's a worthy cause.
The deadline for application is October 1, 2023.
Alyssa Petroff, a judicial law clerk at the Supreme Judicial Court of Maine, has published Behind Bars: Secrecy in Arizona’s Private Prisons’ Labor Pool in the new volume 4, number 2, of The Journal of Civic Information.
In a foreword, Journal Editor David Cuillier, professor of journalism at the University of Arizona, wrote,
Alyssa Petroff educated me on the exploitative private for-profit prison complex in my home state of Arizona—shrouded in secrecy because of a public records law interpreted in favor of corporations. I was astounded by her research findings.... She has a great career ahead of her, based on the eye-popping revelations in Behind Bars....
An Arizona native and 2022 law school graduate, Petroff started work on the article with a paper in my Freedom of Information Law class. Her finished work won the 2021-2022 student writing competition of The Journal of Civic Information, an honor co-sponsored by the Brechner Center for Freedom of Information and accompanied by a $2,000 cash prize.
Here is the abstract:
Prisons run by private corporations in the United States have at hand a pool of individuals who are, by law, required to work while they are incarcerated. This article examines the secrecy behind the use of inmate labor, including on-the-job injuries sustained by prisoners, focusing on the state of Arizona as a case study. Ultimately, the article recommends that states create oversight boards of private prison systems or allow private prison records to be accessible through already existing public records laws.
Attorney Petroff was a student also in my Comparative Law class. So I benefited immensely and from her presence and participation, ceaselessly inquisitive and gracious, in law school. I share Professor Cuillier's enthusiasm for her budding career as she cuts her teeth in judicial writing at the Maine high court.
The article, again, is Alyssa Petroff, Behind Bars: Secrecy in Arizona’s Private Prisons’ Labor Pool, 4:2 J. Civic Info. 1 (2022).
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The Vermont Supreme Court relied on the 1777 Vermont Constitution, as amended in 1786, to support access to information under the public records act (PRA, or FOIA) in 2021. |
Among the many ways in which the U.S. Constitution shows its age is its lack of a right of access to information (ATI). ATI has become a recognized human rights norm in modern constitutions and regional instruments around the world, while the concept in U.S. federal law remains relegated to statute: the Freedom of Information Act (FOIA), which once was landmark yet today suffers from significant dysfunction. For my own part, I have examined the significance of this divergence relative to the problem of privatization in the U.S. FOIA and the South African Promotion of Access to Public Information Act (PAIA). I spoke last month to the U.S. FOIA Advisory Committee re same (HT).
The constitutional lag is not characteristic of all U.S. states. By the count of University of Florida Levin College of Law students Jessica Terkovich and Aryeh Frank, ATI is recognized in the constitutions of seven states: California, Florida, Illinois, Louisiana, Montana, New Hampshire, and North Dakota. In their article, Terkovich and Frank examined case law in these states to see how the constitutional provisions are implicated.
The researchers found that the constitutional provisions were not realizing outcomes in ATI litigation in these states all that different from outcomes that might be reached under the states' statutory expressions of ATI. Rather than concluding that the constitutional provisions are inconsequential, however, Terkovich and Frank concluded from the evidence that constitutional ATI is under-used as a source of law to bolster access advocacy.
Their reasoning resonates with me. When I was a newly hatched academic in the 1990s, I was enchanted by an examination copy of a casebook on state constitutional law. (Lexis and West have current offerings.) I was never able to swing the course offering, but the subject informed my teaching and research. Accordingly, I've always encouraged students to consider state constitutional approaches to legal problems.
Often, state high courts recite by rote the default position that they interpret state constitutional rights as merely co-extensive with federal rights; the pairings are construed in pari materia. The proposition that the free-press-and-speech provision of Article XVI of the Massachusetts Declaration of Rights is co-extensive with the First Amendment to the U.S. Constitution was reiterated recently in the scrap over a Boston flagpole now bound for the U.S. Supreme Court.
Courts might reflexively choose the easier path, shrugging off the burden of state constitutional interpretation. But they can readily embrace state constitutionalism when it suits their needs. The Supreme Court of Arkansas long construed the 1874 state constitutional guarantee against unreasonable search and seizure in pari materia with the federal Fourth Amendment. Until they didn't. When the U.S. Supreme Court bounced back a state high court disposition as erroneous under the Fourth Amendment, the nonetheless jurisprudentially conservative Arkansas court, in 2002, suddenly discovered distinct meaning in the state constitution to support its earlier conclusion in the defendant's favor.
That result could not have happened if criminal defense lawyer John Wesley Hall had not made the argument. And that possibility, that the state constitution could mark the difference between liberty and imprisonment, was exactly why Hall included the Hail Mary claim despite longstanding precedent on the in pari materia approach, he once told me.
The potential for potency in a state constitutional claim is all the greater when the right at issue is expressed in the state constitution, but not in the federal Constitution, as is the case for ATI. And the potential is not limited to the seven states that Terkovich and Frank analyzed. Just in September, the Vermont Supreme Court extended its ATI law, the Public Records Act (PRA), to shine sunlight on the records of a private contractor responsible for healthcare in state prisons.
Vermont is not on Terkovich and Frank's list of seven. Nevertheless, in Human Rights Defense Center v. Correct Care Solutions LLC, the Vermont Supreme Court relied on exhortative language—previously held unenforceable by private cause of action—dating to 1786 in the state declaration of rights: "That all power being originally inherent in and co[n]sequently derived from the people, therefore, all officers of government, whether legislative or executive, are their trustees and servants; and at all times, in a legal way, accountable to them."
The article is Jessica Terkovich and Aryeh Frank, Constitutionalizing Access: How Courts Weigh State Constitutional Claims in Open-Government Litigation, 3(1) J. Civic Info. 1 (2021).
At a time when prompt access to accurate information could literally mean the difference between life and death, the laws mandating disclosure of information to the public are being relaxed in the name of government efficiency, while those mandating secrecy are being applied rigidly (and at times, inaccurately over-applied). This isn’t just a problem for journalists and researchers. As Harvard University health-law professor I. Glenn Cohen told The New York Times: “Public health depends a lot on public trust. If the public feels as though they are being misled or misinformed their willingness to make sacrifices – in this case social distancing – is reduced.” Perhaps the lasting legacy of the COVID-19 pandemic – and it will be a relief to speak of the pandemic in the past tense – will be a generational recommitment to restore custody of critical health-and-safety information to its rightful public owners.The article is Frank LoMonte, Casualties of a Pandemic: Truth, Trust and Transparency, 2:1 J. Civic Info. iii (2020), and free for download with the latest edition of the journal. Also included in the volume are research articles on public record officer perspectives on transparency, by Brett G. Johnson, University of Missouri, and on legislative conflict over the Washington State open records law, by Peggy Watt, Western Washington University, with an editor's note from David Cuillier, University of Arizona.
