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.

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.

Police reform shines light on disciplinary records

CC0 Pixabay via picryl

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

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

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

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

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

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

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

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

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

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

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

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

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

Opioid settlement disbursements must be transparent, state high court rules in row over nonprofit foundation

The nonprofit foundation responsible for disbursing hundreds of millions of dollars of opioid settlement money in Ohio is subject to state freedom of information laws, the state supreme court ruled Thursday.

Big money is flowing out of opioid settlements, such as the $10 billion deal struck by pharmacies CVS and Walgreens. Ohio will see some $450 million of that money, Emily Field reported for Law360 (limited free access). At least half of it will be disbursed by a nonprofit organization that state and local governments created for the purpose, the OneOhio Recovery Foundation.

A representative of Harm Reduction Ohio (HRO), another nonprofit organization, concerned with preventing overdose deaths, was shown the door at a OneOhio meeting not open to the public. OneOhio subsequently refused to reply to record requests under the Ohio public records act (PRA).

That will change now, as the Ohio Supreme Court ruled unanimously that OneOhio is the functional equivalent of a public entity, the test for bringing quasi-private actors within the scope of the PRA. To determine functional equivalence, the court explained, a totality-of-the-circumstances, multi-factor test asks:

(1) whether the entity performs a governmental function,
(2) the level of government funding, 
(3) the extent of government involvement or regulation, and 
(4) whether the entity was created by the government or to avoid the requirements of the Public Records Act.

The burden of proof is "clear and convincing," which is no low hurdle. 

The factors are common in functional equivalence tests in state sunshine laws in the United States. The devil is in the application. Characteristically, HRO and OneOhio posited very different analyses.

Though the multi-factor test makes no one factor dispositive, funding often proves controlling in cases such as these, even to the point that some states employ a disjunctive formulation along the lines of "state funding or state power." Here, the parties looked at the problem from differing angles. HRO characterized the money under the control of OneOhio, an entity created by government, as public money. OneOhio rather looked to the source of the money, private corporations, and to the ultimate beneficiaries, private-person recipients of state aid.

HRO had it right, the court decided. The analysis was bolstered by the inescapable conclusion that OneOhio was created by state and local governments through a memorandum of understanding specifically about how they would handle the money. OneOhio tried to resist the fourth factor by articulating it as conjunctive, thus, requiring an intent to evade the PRA. But the court had none of it.

Another somewhat superfluous argument by OneOhio merits mention. The foundation argued that subjecting it to the PRA would makes its funds vulnerable to raiding for other purposes by the legislature. Neither here nor there, the court opined. I suggest moreover that OneOhio's PRA accessibility is the result not the cause of its public status.

What's interesting about the argument from a tort perspective, though, is that OneOhio pointed to the example of tobacco settlement money. The Ohio executive and legislature responded to the 2008 financial crisis by diverting $230m in proceeds from the 1998 Master Settlement Agreement with Big Tobacco to unrelated purposes, namely, balancing the budget and fostering job creation. The Ohio Supreme Court upheld the diversion against constitutional challenges in 2010.

The application in the states of functional equivalence and similar tests to extend sunshine laws to quasi-private actors is highly variable, as much a function of the eye, or prejudices, of the beholder, as of any mathematical formula. That makes it difficult to extrapolate from the Ohio case beyond Ohio.

Still, I find this case offering a compelling analysis to access the infamously secret records of university foundations in other states. Those records, too, often are secreted upon the rationale that the funds originate with private donors. Consistently with the instant case, but not representing a majority rule in the states, the Ohio Supreme Court sided with a newspaper in 1992 in granting PRA access to the donor rolls of the nonprofit University of Toledo Foundation.

The instant case is State ex rel. Harm Reduction Ohio v. OneOhio Recovery Foundation, No. 2023-Ohio-1547 (May 11, 2023).

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.

Follow the dollar, name politicians in train disaster

Sen. John Thune (R-S.D.) blocked rail safety measures.
Medill DC via Flickr CC BY 2.0

Government "tried" to regulate rail, but industry "resisted" and "won."

That's what I heard tonight in a news break on National Public Radio about the East Palestine, Ohio, derailment disaster.

As if public safety regulation were a football match. Government just couldn't stop that offensive drive late in the second half.

No.

Blame industry, sure.  There's plenty blame to go around. But profits ahead of people? You can't be surprised. That's American industry's MO. And, to be fair, as long as no one gets hurt, we applaud.

Rather, save a big helping of blame for government. The same government now in Ohio trumpeting how Norfolk Southern will be held accountable.

Buck passed.

Government wasn't defeated in some contest with industry on the gridiron. Government failed. The people who are the government lacked the will to do the right thing, or worse, chose to do wrong.

Lee Fang for The Intercept dug into how the U.S. Senate, namely Sen. John Thune (R-S.D.), blocked industry safety regulations eight years ago.

Follow the dollar.  Thune turns up, too, as a top-five recipient of rail lobbying dollars in 2021-22. Here's that list from Open Secrets:

• Rep. Sam Graves (R-Mo.), $107,343
• Sen. Jerry Moran (R-Kan.), $85,548
• Sen. Eric Schmitt (R-Mo.), $72,900
• Sen. John Thune (R-S.D.), $69,550
• Rep. Earl Blumenauer (D-Ore.), $61,015

I think I know where we should send the contaminated soil from Ohio.

Nonprofit, nonpartisan Open Secrets has plenty of data. Check it out. If your congresspersons are on Big Rail's donee roster, don't send them back to Washington to try again.

Grand juror in Ga. Trump probe says little

Pres. Trump leaves Marietta, Georgia, in January 2021.

Trump White House Archives via Flickr (public domain)

The news is ablaze with the "odd 15-minute PR tour" of the grand jury foreperson in the Georgia Trump investigation, as former U.S. Attorney Harry Litman characterized her appearances to CNN.

Grand juries in the American justice system are secret for reasons that even access-advocate journalists and scholars such as myself tend grudgingly to respect. So I was shocked to see this 30-year-old grand juror, "who has described herself as between customer service jobs" (CNN), appearing above a "foreperson" banner, on my TV this morning.

I'm not naming her here, because I think she has had her 15 minutes. Literally. And she ought not be lauded for her TV blitz, which says more about the desperate breathlessness of the 24/7 news cycle than it does about a millennial's cravings for Likes or secrecy in the criminal justice system.

The legal reality of the foreperson's bean-spilling is not really as dramatic as splashing headlines suggest. In common law and in many states also by statute, grand jurors are bound to secrecy. Georgia grand jurors take an oath to that effect. But experts have pointed out that the grand jury investigating Trump's efforts to "find" votes in Georgia is a special, ad hoc, grand jury, so not necessarily operating under the usual statutes, and that Georgia law authorizes grand juries, though not individuals, to recommend publication of their findings.

More importantly, the judge in the instant matter apparently told grand jurors that they could speak publicly, subject to certain limits. The foreperson here said that she's steering within those limits, which appear to disallow disclosure of information about specific charge recommendations and the deliberations among jurors.

For all the media hoopla, the foreperson actually said very little, only that multiple indictments were recommended and that Trump and associates are targets of the investigation. That much already was publicly known. She refused to say whether the jury recommended charges against the former President himself, only teasing, "You’re not going to be shocked. It’s not rocket science" (CNBC), and there's "not going to be some giant plot twist" (N.Y. Times).

The common law presumption of grand jury secrecy means to protect the identity and reputation of unindicted persons and the integrity of ongoing investigations. Both of those aims further public policy, especially in the age of the internet that never forgets. There is some argument at the margins about when grand jury secrecy should yield to legitimate public interest. Accordingly, grand jury secrecy at common law is not an absolute, but a presumption, subject to rebuttal.

The case for rebuttal is strong when a President of the United States is the target of investigation. If grand jury secrecy is not undone in the moment, it's sure to be leveraged loose in the interest of history. Secrecy in the grand jury probe of the Clinton-Lewinsky affair in 1998 was unsettled by Clinton's own public pronouncements about his testimony. The "Starr Report" ultimately left little to speculation.

In cases of lesser magnitude, journalists and judges, naturally, do not always agree on the secrecy-public interest balance, and modern history is littered with contempt cases that have tested First Amendment bounds.

In a textbook case that arose in my home state of Rhode Island, WJAR reporter Jim Taricani refused to reveal the source of a surveillance tape leaked to him from the grand jury investigation of corrupt Providence Mayor Buddy Cianci. In 2004, Taricani, who died in 2019, was convicted of criminal contempt and served six months' home confinement. He became a symbol in the fight for legal recognition of the reporter's privilege, and, in his later years, he lectured widely in journalism schools. A First Amendment lecture series at the University of Rhode Island bears his name.

Taricani worked closely with the Reporters Committee for Freedom of the Press (RCFP). A superb RCFP series on "Secret Justice" in 2004 included a now dated but still highly informative brief on grand jury secrecy, and the RCFP has online a multi-jurisdictional survey on grand jury access.

Brookings has a report on the Fulton County, Georgia, investigation, last updated (2d ed.) November 2022.

Sunshine filters in to Mass. jail with gloomy history

Bristol County, Mass., Sheriff Paul Heroux is seeking to close a jail with a gloomy history, and last week he gave journalists a look inside.

Built in 1888, the Ash Street Jail in New Bedford, Mass., housed Lizzie Borden during the 1893 trial in which she was acquitted of killing her father and stepmother. The "Lizzie Borden House" is a tourist attraction in nearby Fall River, Mass., today. Undoubtedly the site of executions in Bristol County, Ash Street is often said to be the site of the last public hanging in Massachusetts, in 1898. Records conflict (compare O'Neil with O'Neill, and see Barnes), but if it's not, it's close enough. The commonwealth changed its method of execution to the electric chair in 1900.

Purchase St., New Bedford, Mass., 1888.
Whaling Museum photo via New Bedford Guide.

One of the oldest jails in continuous operation in the United States, Ash Street gained new notoriety beginning in the late 20th century, especially after 1997 during the tenure of Sheriff Thomas Hodgson. In 25 years of service as sheriff, after prior service in local politics, Hodgson earned national press for hardline measures such as the removal of televisions and gym equipment from the jail, the imposition of room-and-board charges for detainees, the institution of chain gangs, and an offer of detainee labor to the Trump Administration to help build the border wall.

Meanwhile, Hodgson was unapologetic for conditions within the jail. Former detainees complained of uncontrolled mold, uncontained sewage, and intolerable cold and heat (WBUR). The complaints have been controverted. A former jail official lauded staff and facility in a 2022 letter to the New Bedford Guide, for example, and a news reporter, upon a tour of the facility in 2016, wrote favorably of a modernized interior.

When Heroux toppled Hodgson in the 2022 election, closing the Ash Street Jail was part of his platform.

President Trump and Sheriff Hodgson at the White House, 2019.
Trump White House Archives via Flickr (public domain)

Former Sheriff Hodgson is reminiscent of an infamous character in the annals of freedom of information law, Sheriff Thomas Lafayette Houchins, Jr., of Alameda County, California. Houchins lent his name to Houchins v. KQED, Inc., a 1978 U.S. Supreme Court case regarded generally as standing for the proposition that the First Amendment does not articulate a right of access to public places, if not more broadly foreclosing use of the First Amendment as any kind of freedom of information act.

In my 2012 casebook, Law of Access to Government, I contextualized Houchins with some biographical information about the sheriff (relying on sources such as the East Bay Times).

Thomas Lafayette Houchins, Jr., was a leader in the sheriff 's department in the 1960s and earned a reputation for uncompromising law enforcement. A veteran law enforcement officer, Houchins had joined the department in 1946 after serving in World War II as a Marine Corps fighter pilot. He was elected sheriff in 1975 and retired in 1979. In 1969, Houchins commanded a force of sixty or more deputies in crowd control at what became an infamously tragic concert headlined by the Rolling Stones. He recounted thirty years later: "Some guy jumped off an overpass because somebody told him he could fly. They lied. Another jumped into the [Delta Mendota Canal] because they told him he could swim. They lied to him, too.... I think we had five deaths and five births, so we came out even." Houchins died at his California home in 2005.

The Houchins case centered on news media investigation of the Santa Rita jail. Reporters wanted to tour "Little Greystone," a part of the jail in which "shocking and debasing conditions" were alleged to have caused inmate illnesses and deaths.

Houchins is one of a family of First Amendment access cases in which the Burger Court put the brakes on the liberal interpretations of the First Amendment that characterized the civil rights era. However, to the dismay of President Richard Nixon, who appointed him, Chief Justice Warren Burger was only marginally effective in rallying the Court to reverse the civil rights direction of the predecessor Earl Warren Court.

Houchins reflects that equivocation. Though Houchins's bar review flash card might read simply "no 1A access to public places," the decision came from a fractured Court of only seven justices and an opinion of only three. Harry Blackmun and Thurgood Marshall did not participate, the former having had recent surgery and the latter recusing. Burger was joined by only two others, including his successor as Chief Justice, William Rehnquist, in the opinion of the Court. They formed a majority of four with the addition of Justice Potter Stewart. (Read more about the fracas behind the scenes from Matthew Schafer.)

Concurring, Stewart joined Burger's conclusion on the facts of the case; he had been the author of two prior Court decisions, in 1974, rejecting press access to prisons or prisoners. Yet in his opinion in Houchins, he speculated that media might articulate a First Amendment claim on better facts. With three dissenters arguing at least as much, thus outnumbering the Burger contingent, Houchins arguably left the jailhouse gate open to a First Amendment theory, if you'll forgive the metaphor. Media law aficionados will recognize a pattern akin to Branzburg v. Hayes (1972), in which similar equivocation on the Court, aided later by clever advocacy from media lawyers, left the problem of constitutional reporter's privilege in disarray.

Much of the dispute in Houchins can be characterized as a frame-of-reference problem. In its broadest frame, Houchins is about public access to places to hold public officials accountable. That seems reasonable. But when I teach Houchins, students are quick to find the media position untenable, reading the case more narrowly as about reporters demanding access to any part of the prison, perhaps even with minimal advance notice.

That dichotomy in framing plays out in the public protests and media frustration over access to the Ash Street Jail in recent decades. There were tours; the writer who toured Ash Street in 2016, cited above, was then a reporter for public radio WBUR. Just like in Houchins, protestors and former detainees of the facility complained that public tours were limited and staged, showing reporters only what officials wanted them to see. Officials said that wider public access would jeopardize the security of the facility and the people inside, both detainees and workers.

The theoretical solution that emerged from Houchins, such as the case held, is that supervision of "non-public public places" should be accomplished not through the free press of the First Amendment, but through political accountability at the ballot box. To some degree, that's what happened when Heroux became sheriff in 2022. At the same time, prison conditions raise a peculiar problem in majoritarianism, familiar in criminal justice and civil rights contexts, and resonant in debate today over policing: The political system is not a reliable way to protect the rights of jailed persons, a minority class widely regarded with little sympathy.

On balance, I don't know whether the truth of the Ash Street Jail is closer to the horrifying complaints of former detainees or to the confident assurances of public officials. Whether constitutionally or statutorily, sunshine must be allowed to penetrate prison walls.

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."