To combat corruption, India Supreme Court strikes down dark money system, cites U.S. precedents

Late last week, the Supreme Court of India struck a blow for transparency and accountability when it ruled unconstitutional a system of anonymous political donation.

In a 2017 law, India had adopted a system of "electoral bonds." These are not investment bonds. Rather, to make a political donation, a donor was required to buy a political bond from the State Bank of India, and the bank then gave the money to the indicated political candidate.

The bond system was adopted ostensibly to further transparency and accountability. By requiring all political donations to be processed by the state bank, regulators could ensure compliance with donor restrictions. The system was supposed, then, to balance donor anonymity—a legitimate extension of free speech rights—with anti-corruption regulation.

P.M. Narendra Modi speaks to Pres. Biden at the G20, 2022.

White House photo via Flickr

But as Darian Woods reported for The Indicator, the party in power of Prime Minister Narendra Modi received 90% of donations. It seems less likely that imbalance represented overwhelming enthusiasm for the Modi administration and much more likely that corporate donors sought favor with the administration and feared retaliation otherwise, despite their seeming anonymity. For while they were anonymous to the public, their identities were known to the state bank. And the state bank is under the control of the administration.

The India Supreme Court ruled that the electoral bond system is incompatible with the fundamental "right to know" (RTK), that is, with Indian norms of freedom of information (FOI). I wrote in 2017 about India's Right to Information Act (RTIA), a statutory instrument akin to the U.S. Freedom of Information Act (FOIA). FOI, or access to information (ATI), for India, though, is in sync with contemporary norms elsewhere in the world, notably Europe, where RTK or FOI is recognized as a human right. Courts such as the India Supreme Court, like the Court of Justice of the EU, therefore have the constitutional enforcement power of judicial review.

The India Supreme Court, as it often does on important constitutional questions, surveyed other common law nations. And despite our weak and non-textual recognition of FOI as a constitutional right, the United States earned several mentions. Saliently, the court cited the old stalwart, Buckley v Valeo (U.S. 1976), for "concern of quid pro quo arrangements and [the] dangers to a fair and effective government. Improper influence erodes and harms the confidence in the system of representative government." Disclosure, the India court reasoned,

helps and aides the voter in evaluating those contesting elections. It allows the voter to identify interests which candidates are most likely to be responsive to, thereby facilitating prediction of future performance in office. Secondly, it checks actual corruption and helps avoid the appearance of corruption by exposing large contributions and expenditures to the light of publicity. Relying upon Grosjean v. American Press Co. (U.S. 1936), [disclosure] holds that informed public opinion is the most potent of all restraints upon misgovernment. Thirdly, record keeping, reporting and disclosure are essential means of gathering data necessary to detect violations of contribution limitations.

For a more recent vintage, the India court cited Nixon v. Shrink Missouri Government PAC (U.S. 2000): 

[T]he Supreme Court of the United States observes that large contributions given to secure a political quid pro quo undermines the system of representative democracy. It stems public awareness of the opportunities for abuse inherent in a regime of large contributions. This effects the integrity of the electoral process not only in the form of corruption or quid pro quo arrangements, but also extending to the broader threat of the beneficiary being too compliant with the wishes of large contributors.

So the India court fairly observed that the U.S. Supreme Court has been willing to unmask donors, even if the Supreme Court has lately been less than enthusiastic about regulations it once, in a Buckley world, approved. Indeed, even as the U.S. Supreme Court rejected the disparate treatment of corporations in Citizens United v. FEC (U.S. 2010), it approved of disclosure requirements. 

The India court found support for disclosure in defense against corruption in other national regimes, too, for example, in Canada and Australia. Alas, there, comparisons with the United States deteriorate in practice. The India Supreme Court did not mention the dark (money) side to America's affair with transparency. Read more at the Brennan Center for Justice.

The case is Association for Democratic Reforms v. India (India Feb. 15, 2024).

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.)

Ark. Gov swings again at state FOIA

Arkansas Governor Sarah Huckabee Sanders has proposed a bill to undercut the highly regarded transparency regime of that state's Freedom of Information Act.

I was at the Arkansas Capitol when a veritable mob of citizen opposition stopped an anti-transparency reform bill in the spring. Try, try again must be the Governor's m.o.

My friend and colleague Professor Robert Steinbuch testified effectively against the spring reform bill. Here he is telling Conduit News Arkansas why the newest incarnation is no good either.

UPDATE, Sept. 16. My understanding is that the bill was gutted this week. A substantially narrowed enacted version applies only to secret information about the governor's security detail. The matter was discussed on Arkansas Week.

DA cannot shield officer, EMT identities from state FOIA disclosure, court rules in fatal police shooting

A Massachusetts Superior Court in March ordered the district attorney to release investigative records to the family of a man killed by police.

The privacy of public officials in the technology era has strained conventional accountability rationales for transparency. Since the advent of access to public information as a democratic norm, public officials and public figures have decried purported invasions of their privacy. The very notion of privacy in modern tort law, for better and worse, traces its roots to precisely such whinging in the late nineteenth century. Access usually prevailed.

Yet in the technological era, privacy complaints have gained new currency, and some of it is legitimate. Even, or perhaps especially, in the intensely emotional context of high-profile police shootings, interests are amped up on both sides. Of course, victims and families demand understanding and accountability, and they are entitled to it. At the same time, it's harder than ever to be a police officer, and passions that expose public servants and their families to harassment and threats pose a genuine policy problem. 

The two sides collided in Massachusetts over the death of Anthony (Antone) Harden in Fall River in 2021. The 30-year-old was shot twice and killed by police in his bedroom. Police investigators concluded that Harden had used a steak knife to attempt to stab the shooter's partner in the neck and head. A district attorney (DA) investigation in 2022 ruled the homicide justified.

Surveillance video shows officer arriving at Harden's apartment.

With the final report, Bristol County DA Thomas M. Quinn III released hundreds of pages of records, including video, audio, and photographs. But there was much that the DA did not release in response to a freedom-of-information request by Harden's brother, Eric Mack, an attorney. Though the family knew, and the lawsuit revealed publicly, the names of the involved officers by the time of the DA's report, the DA would not disclose their names.

The DA also withheld other records identifying responding personnel, including video interviews with emergency medical technicians. WBUR reported that the EMTs said they did not see the steak knife that police said necessitated lethal force.

Mack sued the DA under the state public records law, and the Superior Court in March granted his request for records on all counts. With regard to the identities of police and EMTs involved, the court wrote:

Upon balancing the rights of the parties, the public's need to access against the privacy rights at issues here, I find that the equities favor disclosure. The public officials here are not acting in the capacity of private citizens but in the course of their duties. Plaintiff has a right to have a full understanding of the facts leading to his brother's death including the identities of the public officials involved to ensure accountability and transparency. The failure to disclose this information would raise questions amongst the public about why this information was being withheld, which would only serve to undermine the integrity of the law enforcement departments involved and those reviewing their conduct. Any right to privacy that a public official might have under these circumstances, which is de minimis under the circumstances presented here, is overwhelmed by the public's right to know.

Before the resolution of the public records case, in January, the Harden family threatened Fall River with a $50m lawsuit for Harden's death, if the records were not released.

The case is Mack v. Office of the District Attorney, No. 2284-CV-00248 (Mass. Super. Ct. Suffolk County Mar. 6, 2023), decided by Justice James Budreau.

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).

Citizens defeat attack on state transparency law

A bill that would have gutted the state Freedom of Information Act (FOIA) was defeated in committee in the Arkansas House on March 29. A more modest bill amending the open meetings act passed.

My friend Professor Robert Steinbuch testified decisively against the comprehensive HB1726, which read like a wish list of transparency opponents, dismantling one provision after another of the state FOIA. I was there.

Bill sponsor Rep. David Ray presented the bill to the House State Agencies and Governmental Affairs Committee, though there can be little doubt that the bill was devised by lobbyists such as Arkansas's municipalities or counties. The bill attacked the strongest points of the FOIA that mark differences from state norms, such as Arkansas's short, three-day turnaround and lack of attorney-client privilege.

In fairness, there is room for negotiation on some of these points. An excellent one-time student of mine and Steinbuch's, Deputy Attorney General Ryan Owsley presented the bill alongside Ray. Having long served as opinions counsel, Owsley knows the FOIA well, and he fairly criticized the law for areas in which its well meaning text might be outpaced by practical realities. For example, record custodians say they're too often unduly stressed by the three-day deadline, especially when redactions are routinely required from today's typically voluminous electronic records rife with exempt personally identifying information.

But the bill proponents claimed too much. They whinged, for example, about record custodians compelled "to violate the law" and place themselves in legal jeopardy. In fact, to my knowledge, no Arkansas judge has ever demanded that custodians respond to requests other than reasonably, notwithstanding the three-day deadline. Like the 20-day deadline of the federal Freedom of Information Act, the three-day deadline is largely notional in practice. Its more salient admonition is that when records are immediately available, they should be provided immediately. A better bill might codify the de facto oversight process for voluminous productions.

Bill proponents moreover obfuscated. They articulated purported horror stories of FOIA abuse amounting to harassment of public officials. But their stories hardly bore out.

One oft repeated claim in the hearing was that a FOIA requester made a request of a school district that would have yielded 800,000 records and taken two years to process. But there was a lot of information missing from this claim.

For starters, no one ever said that the records were produced, only asked for. I could make a request tomorrow for all the records of a school district, and then someone could testify with outrage that a requester demanded millions of records. Neither side is well served by overbreadth. It's not unusual at all for an ordinary-citizen requester to over-ask, and then for a custodian to work with a requester to help narrow the request to what the requester really wants. The two years' labor claim was always made in the conditional tense, so it seems the referenced situation was somehow resolved without a crisis.

Second, no one ever said what medium or format the 800,000 records were in. I once FOIAd the voter rolls for several ZIP codes in Arkansas. If every one of those files was considered a "record," then I FOIAd some million records. But I received them in just a few minutes as a kind election official downloaded the data to a USB stick for me.

Third, no one ever said anything about the content of the 800,000 records. Maybe the request was justified. Journalists in the hearing testified to matters such as the discovery of juvenile abuse through public record requests. If that's what those records revealed, then I say, get to work.

Many police testified in favor of the bill. One police witness complained about requests from the ACLU investigating police conduct. I'm not sure I have a problem with those requests. Remarkably, one police witness complained because a journalist's investigation of a fatal shooting by police determined that the shooting was justified. Was the officer hoping for a different conclusion? Exoneration hardly suggests that the records were ill sought to begin with.

Insofar as the bill sought to tackle points of the FOIA that might benefit from fair-minded reform, the problem with HB1726 was procedural as well as substantive. Surely as a matter of political strategy, the bill was introduced late in the session, when legislative committees are overworked—the instant hearing went well into the night—and tend to be less scrutinizing of what they pass.

The bill was introduced on a Monday and immediately came up in committee on Wednesday. It was stunning and telling that so many citizens organized to turned out against the bill so fast. In the interim, the state FOIA advisory body, a legislatively constituted entity that exists for the very purpose of vetting FOIA legislation, obliged the timeline with an emergency meeting on Tuesday. But Rep. Ray was a no-show and complained at the hearing that he had had a conflict. He blamed the advisory group for his timeline.

Disappointingly, HB1726 came to committee with the support of Governor Sarah Huckabee Sanders. A young aid represented the Governor at the hearing, and I could not help but think that he was set up to take the heat. One witness aptly pointed out that transparency is a plank in the state Republican platform. This was not Gov. Sanders's only recent embarrassment.

A second bill, sponsored by Rep. Mary Bentley, passed the committee later in the night. HB1610 would set a one-third-of-members threshold to trigger the open meetings act. Like other jurisdictions, Arkansas has struggled with the threshold question. To the aggravation of municipality lobbyists, the state supreme court has held that the act is triggered by even a two-person meeting if transparency would be subverted.

The bill hardly got a full hearing in the committee. Because of the late hour after the HB1726 debacle, the committee limited witnesses on each side to 15 minutes in sum. But they testified in the order they signed up. So time ran out on the opposition side upon citizen witnesses who were not as effective as advocates such as Professor Steinbuch and attorney Joey McCutchen.

I dared think that HB1726 was a mere smokescreen to push through HB1610. But HB1726 was such a disaster that it's hard to believe so much thought went into a concerted strategy.

Professor Steinbuch is author of the treatise, The Arkansas Freedom of Information Act (LexisNexis 8th ed. 2022). I was a co-author of the preceding fourth, fifth, and sixth editions. The book originated with Professor John Watkins in 1988.

Below is the hearing on both bills on March 29. The hearing is remarkable for putting on exhibit the wide range of constituencies that support and oppose transparency in state and local government, and their reasons.

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.

'Behind Bars': Petroff article explains how secrecy shields private prison labor from public scrutiny

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).

Rob Steinbuch, law prof, for Arkansas House

UPDATE, June 26: I'm sorry to report that Professor Steinbuch did not prevail in the primary. But wow did he come close with 46.5% of the vote, 1,758 votes to Jon Wickliffe's 2,206. That leaves Wickliffe with some discontented voters to win over, and I'm sure Steinbuch will hold his feet to the fire.

Rob Steinbuch, a law professor and advocate for civil rights and transparency, is running for office, and he has my full-throated support (in my personal capacity*).

A friend, colleague, and co-author, Professor Steinbuch is running to represent Arkansas House District 73, which extends west from the state capital of Little Rock.

Professor Steinbuch has a campaign website that lists his top priorities: "Safety and Security," "Small Government," and "Life, Liberty, & Freedom."  The website is loaded with videos in which Steinbuch talks about a range of issues; three videos tackle transparency and accountability directly.  And there is a blog, in which he has held incumbent officials' feet to the fire.

When I left Arkansas for employment in Massachusetts in 2011, Steinbuch took over, rekindled, and then substantially grew my investment in transparency in the state.  He joined Professor John Watkins and me as co-author of the treatise, The Arkansas Freedom of Information Act, for its sixth edition in 2017.  And with Professor Watkins now retired and my having moved on, Steinbuch has continued the project and secured a publisher going forward.

More importantly, Steinbuch became a fixture at the Arkansas Capitol in the 2010s, testifying relentlessly in the cause of transparency and unofficially advising legislators.  He transformed transparency advocacy from the defensive and reactionary posture, which local media long had maintained, into affirmative advocacy for reform on key issues, such as attorney fee awards for successful record requesters.

Steinbuch's commitment to transparency is among the qualities that make him a superior candidate for public office.  You don't have to agree with Steinbuch on everything—he and I agree on many things, and we disagree, too—but you will never lack for knowing where he stands.  Any day, I would choose consistency and honest integrity for my representation, even in someone with whom I sometimes disagree, over the run-of-the-mill politician who bends to the special interest or politically correct fashion of the day.  Say what you will about Steinbuch, he will never be bought, and he never pulls his punches.

You too can support Steinbuch to prevail over the well moneyed special interests by donating at Steinbuch for Arkansas.

*As always, this blog is a product of my personal creation, even if it sometimes serves also to fulfill my responsibilities as an academic in teaching, service, and research, and as an attorney in the Bar of the District of Columbia.  The Savory Tort is neither affiliated with nor within the editorial control of my employer, the University of Massachusetts Dartmouth.  I produced this posting, "Rob Steinbuch, law prof, for Arkansas House," on personal time and with no public resources.

RIP Russ Kick, eccentric FOIA champion

With images obtained under the federal FOIA, Russ Kick's "Memory Hole"

catalyzed conversation on the Iraq war. Now archived at the Library of Congress.

The transparency community lost an eccentric hero in September: Russ Kick died at his home in Tucson, Arizona, at age 52.

Kick's passing has been reported in many forums, and he was well remembered by The Washington Post and Seven Stories Press last week.  Nevertheless, I feel bound to add my own recognition of the loss.  A self-described "rogue transparency activist," Kick was a legend in the access community.  I knew him only through email exchanges.  I remember him as consistently eager and obliging at the prospect of rallying a recruit to any one of his many causes.

I'm sorry that the Post obit, by Harrison Smith, is paywalled, because it's a thorough and deserved tribute to a remarkable person who embodied the term "citizen-activist" long before it was fashionable.  Kick was a "FOIA frequent flier" who used the "spear" of access law, as Senator Patrick Leahy recently described the federal FOIA, to investigate the many causes that stirred him, from chemical warfare to animal welfare.

Kick had some real wins, too.  His 2004 publication of photos of coffins returning from the Iraq war stimulated vital public discussions about access, privacy, and, of course most importantly, the war itself.  The Defense Department said the photos were released mistakenly.  Vibrant discussions in my FOI class were fueled by those photos and by other content that Kick collected at his Memory Hole website (archived).  Kick's many and varied collection of FOIA prizes persists, for the time being, at The Memory Hole 2 and its "sister site," AltGov2.

Kick edited "The Graphic Canon."

I don't want to be too narrow in my recollection, nor to whitewash Kick's sometimes bawdy tastes and conspiracy-minded inclinations.  His eclectic libraries of content rescued from digital deletion ranged beyond government records to, as the Post summarized, "classic literature, erotica, food and ancient meditation practices."  His literary talents generated a bibliography of the intriguing and bizarre, including a "disinformation" series that touted conspiratorial revelations on governments and sex.  Meanwhile, he edited stunningly artful representations of classic literature in graphic novelizations.

It would be easy to write off Russ Kick as a quaint sort of crackpot.  The Post quoted Kick aptly describing himself: "'I can't focus completely on any one thing for too long,' he wrote in an online biography. 'My personal brand is a mess.'"

Yet with such volume of productivity in so many veins, with real impact that moved the needle to put the demos back into democracy, there was undeniably genius in the madness.  Russ Kick left the world better off than he found it for what he contributed.  Any of us should be so blessed to have the same said of us when we're gone.

Court rejects qui tam suit against big banks because whistleblower relied on publicly available data

"Big Ballin' Money Shot" by Louish Pixel CC BY-NC-ND 2.0

A whistleblower alleged that a who's who of big banks is improperly manipulating the municipal bond market to profit at the expense of Massachusetts taxpayers.  But the Massachusetts high court today rejected the whistleblower's lawsuit because he relied on public data.

This case is of interest because it arises under, and narrows, a state false claims act.  With the federal government doling out billions of dollars in pandemic relief to corporate America, I've predicted, and it doesn't take a crystal ball, that we're going to see a rise in corruption and a corresponding rise in enforcement actions.  One key enforcement mechanism is a false claims act.  In anticipation of good work to be had for lawyers in the false claims vein in coming years, I added the subject this spring to coverage in my 1L Torts II class.

False claims cases, or "qui tam actions," allow any person, a member of the general public called "a relator," to bring a lawsuit on behalf of the government, that is, the public, to recover money lost to fraud or misfeasance.  Derived conceptually from Roman law and carried on in Anglo-American common law for centuries, "qui tam" is short for a Latin phrase meaning one who sues on behalf of the king and for oneself.  Relators are incentivized by being entitled to a cut of any recovery.  Qui tam is authorized in the United States by federal law (§§ 3729-3722, and at DOJ) and the laws of many states (at Mass. AG), varying in their particulars, and also can be a part of sectoral enforcement mechanisms, especially in healthcare and finance.

In the instant case, relator "B.J." Johan Rosenberg, an investment analyst and capital adviser with experience in municipal securities, alleged that banks are pricing municipal bonds and manipulating the market in ways that profitably breach their obligations to their public clients.  Defendants in the Massachusetts case include Chase, Citi, Bank of America, Merrill Lynch, and Morgan Stanley.

The Supreme Judicial Court (SJC) dug into the particulars, which make my eyes glaze over and remind me why I have a financial adviser.  Suffice to say that Rosenberg understands this stuff well.  In 2019, Bloomberg described him as the "mystery man behind $3.6 billion in muni lawsuits," referring to qui tam actions in California, Illinois, and Massachusetts.  In 2015, Bloomberg reported, Rosenberg patented "MuniPriceTracker," a software designed to "ferret out Wall Street chicanery."

"If we're going to have software patents, let's at least have a level playing field"

by Opensource.com CC BY-SA 2.0

Rosenberg's analytical software is key in the instant case, and there the problem arises.  The false claims act in Massachusetts law (§§ 5A to 5O), as in federal law, bars claims based on publicly available information, whether from government reports or "news media."  The theory is that a qui tam statute should incentivize whistle-blowing by persons privy to information that the government and public are not, rather than potentially rewarding someone who rushes to the courthouse with old information.  As the SJC put it: "Where the essential features of an individual's purported chicanery already have been illuminated, ... affording a private party an incentive to bring suit is unwarranted, as it would add nothing to the Commonwealth's knowledge[.]"

The tricky bit in the instant case is that Rosenberg ran his software analysis on publicly available data.  That sourcing disallowed his action.  The court reasoned: "[I]t suffices that other members of the public, albeit with sufficient expertise and after having conducted some analysis, could have identified the true state of affairs by conducting the same data-crunching exercise as did the relator, using the data publicly available on the [Electronic Municipal Market Access] website."

Well, maybe.  To me, the phrase, "with sufficient expertise" is working overtime in that reasoning.  Rosenberg's method is sophisticated enough to be patent-worthy.  I don't think the average taxpayer spends weekends crunching market numbers, however publicly available they are.  And there's no evidence that anyone's doing it at the AG's office, either.  I worry that this narrowing of false claims to exclude "sweat of the brow" extrapolation from public records ill equips society to respond to sophisticated corporate malfeasance that can be revealed only by equally sophisticated detective work.

But I've already confessed my ignorance of finance.  You can read the 36-page opinion and decide for yourself.  Or choose among the views of the amici: the CFA Institute and Taxpayers Against Fraud Education Fund supported Rosenberg, and the Greater Boston Chamber of Commerce and New England Legal Foundation supported the banks.

The case is Rosenberg v. JPMorgan Chase & Co., No. SJC-12973 (Mass. May 11, 2020).  Justice Dalila Wendlandt wrote the opinion, affirming the lower court, for a unanimous SJC of six justices.  She was an accomplished patent attorney before going on the bench.

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

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

Stocksnap by Michal Jarmoluk CC0

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

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

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

(b) they have legal personality; and

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

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

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

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

Cronelea Wind Farm in County Wicklow, 2008

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

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

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

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

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

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

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

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

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

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

How many people suffer while state unemployment office shuffles paper, issues baseless denials?

I wrote in 2020 about the pay cuts foisted on faculty and staff at UMass Dartmouth.  We're a union shop, which is weird for university faculty in the United States, but at least is supposed to be good for workers.  So for my pay cut—about 11.6%, plus $4k in professional development budget, over one calendar year, so far—the union got me, in return—wait, let me punch the numbers into the calculator—

Nothing.

I quit my union membership once and for all, before the ink dried on the union's Memorandum of Abdication.  But thanks to the compulsory representation law in Massachusetts, I'm still bound to give away anything the union, with its refined talents at the bargaining table, decides that I should give away.

Let me interject a disclaimer that I am not complaining about having a job during the pandemic.  As will become clear momentarily, I am writing about this for the very reason that my concern extends to the many persons who are not as fortunate.  I push myself every day, literally every day, to count my blessings and be grateful, and to find a way to show compassion for those facing hardships during this crisis.  Some days I do better than other days.

With regard to my personal situation, I suggest, I hope modestly, only that in exchange for a pay cut, there might have been some benefit afforded in return: maybe a leniency in job requirements, such as research or teaching load; maybe flexibility in course scheduling; maybe an "IOU" for development budget down the road.  I might could have been bought off for the price of some reference books from my wish list.  Or a new hoodie.  I can always use a hoodie.

I suggested these bargaining chips (except the hoodie) to the union.  No response.  I understand.  It takes a lot of energy and focus to give so much away in so short a time.

But this isn't about the union.  Not today.  Today I write about another bloated bureaucracy feeding ironically at taxpayer teats: the Massachusetts Department of Unemployment Assistance, or "Mass UI."

I was given the option, which I accepted, to take part of my pay cut as furlough during the holidays in December.  There was absolutely no reduction to my workload in December, so one might question the utility of a furlough.  But the idea was, the university told us if carefully to disclaim any guarantee, we could claim unemployment insurance to recover a fraction of four days' pay.  It happens that my wife, who also works for the university as an administrator, also took a pay cut (two, actually, for staff) and furlough (also two).  I'm trying to leave her out of this, and I definitely do not speak for her, so I will tell only what I have to to get my story across.

Let me interject again: As a taxpayer, I am not a fan of one financially stressed public institution shoving its accounts payable off on another financially stressed public institution.  That doesn't seem to me to be an efficient way to solve the problem of stress on the fisc.  But I don't make the rules.  We've got a kid in college.  I'm not leaving money on the table.

So we both filed, at different times in 2020, for whatever unemployment insurance we might recoup.

My wife's online account access was immediately shut down, purportedly in response to a spate of fraudulent claims received by Mass UI.  While her access was blocked, Mass UI (claims that it) sent an electronic request for documents to confirm her identity.  She didn't know about any request, because access was blocked.  She couldn't file the docs, even if she'd known to, because access was blocked.  Meanwhile, Mass UI confirmed the validity of her claim with university HR.  

And then Mass UI denied her claim anyway for supposed failure to provide ID.  She didn't even find out about the denial until months later, because, say it with me, access was blocked.

Having witnessed that mess of an experience, I set my account for hard-copy correspondence only, by mail.  Mass UI sent to me, in hard copy, a request for documents to confirm my identity.  Promptly, I returned, in hard copy, the documents requested.  Presumably, Mass UI could confirm my identity, too, and the legitimacy of my claim, with the university.  I work for the state, after all.  But I was trying to play nice.

Twenty days later, Mass UI denied my claim anyway for supposed failure to provide ID.

We both now have appeals pending.  I expect we will have to go to Boston for hearings (50 miles and two hours each way, expensive parking, different days).  As yet, the hearings have not been scheduled.  My wife's first claim dates back to the summer, in the heyday of federal subsidies.  Good times.

As I just wrote to the Commonwealth Attorney General, at some point, misfeasance slides into malfeasance.  I don't know what's going on at Mass UI.  But it's inexcusable.

And that brings me back around to people who are really hurt by this kind of misfeasance or malfeasance by public officials.  People already are suffering for so many reasons: pandemic risk, joblessness, homelessness, systemic disadvantages of race and socioeconomics.  If my family's experience with Mass UI has resulted in two out of two legitimate, easily confirmed claims being rejected on nakedly indefensible, if not outrightly false, grounds, then how many claims are being wrongfully denied for claimants who are depending on unemployment assistance in a time of crisis?

Look, we're lucky.  I know it.  We're both lawyers.  We have the know-how to appeal, and to sue if necessary.  We have the flexibility in our work to adjust our schedules for hearings, and a car to go to Boston if we have to.  We make decent money, even after pay cuts, educational loan debt, and college tuition bills.  We'll be OK.

But today is one of those days that I feel like I'm falling short on compassionate action.  I should do something.  Something should be done.  

I don't know what.  Or how.

I do suspect that Mass UI is running the vaccine roll-out.

This blog is mine and mine alone, and not a product of my employer.  I speak as a private citizen, not a representative of the university, even if my writing sometimes also serves public interests, which is part of my job.  I reference my job and work profile on this blog for purpose of identification only.  While this disclaimer always pertains, I wish to emphasize it today.

UPDATE, Feb. 16, 2021: Our IDs were accepted and matters remanded from appeal to reprocessing thanks to heroic intervention, for which we are grateful, by an individual in the UMass Dartmouth HR office.  Of course, that doesn't alleviate our concerns about people in Massachusetts who are in serious need. WGBH reported on February 8 on "shocking[] dysfunction[]" in the system, having exactly the impact we feared.