This autumn, I am privileged to serve as a new member of the Freedom of Information Act (FOIA) Advisory Committee, a U.S. federal entity constituted under the Federal Advisory Committee Act (FACA) and administered by the Office of Government Information Services (OGIS), within the National Archives and Records Administration (NARA).
If that alphabet soup has your head spinning, then you have some sense of what it's been like for me to get up to speed in this role. That said, I'm thrilled to have the opportunity and humbled by the expertise of the committee members and OGIS staff with whom I'm serving.
I'll have more to say in time, as we have accomplishments to report. Meanwhile, though, a bit of parody art. At a meeting yesterday of the Implementation Subcommittee, ace OGIS compliance officer and former journalist Kirsten B. Mitchell related an anecdote.
A youthful person had wondered aloud that Fresca is quite old, perhaps dating to the 1980s! And Mitchell said she felt compelled to note that it is even older. In fact, the niche-beloved Coca-Cola Co. soft drink dates to the same year the FOIA was signed into law: 1966. That modest revelation prompted me to generate the above art, based on a contemporary Fresca ad that capitalizes on the drink's age ("Delicious Never Goes Out of Style"). (Above art by RJ Peltz-Steele CC BY-NC-SA 4.0 with no claim to underlying work of Coca-Cola Co.)
The inaugural public meeting of the 2024-2026 FOIA Advisory Committee, at NARA in September, is posted on YouTube.
The Administrative Conference of the United States (ACUS) has posted a request for proposals (RFP) seeking "a consultant to produce a report on obtaining government records for use in agency proceedings."
The item might be especial interest to persons working in freedom of information, federal administrative law, or compliance.
Obtaining Government Records for Use in Agency Proceedings
Agency decision makers and private parties frequently require access to
records maintained by federal agencies to decide cases and participate
meaningfully in agency adjudications, investigations, and similar
proceedings. In some contexts, a private party is responsible for
obtaining a record from the government—sometimes by submitting a Freedom
of Information Act request—and providing the record to an agency
decision maker. In other contexts, the agency decision maker is able to
access the record without action by a private party or with the private
party's consent. This project will examine circumstances in which
parties are responsible for obtaining federal records for use in agency
proceedings, circumstances in which agencies bear primary responsibility
for obtaining federal records, and the procedures by which private
parties and agency decision makers obtain federal records for use in
agency proceedings. It will identify agency best practices to improve
the fairness, accuracy, consistency, timeliness, and efficiency of
agency decision making.
Attorney Ben Birkhill is staff counsel and contact on the project. Before working for ACUS, Birkhill worked on rule and policy making for the Alcohol and Tobacco Tax and Trade Bureau in the U.S. Treasury Department. ACUS is an independent, executive-branch agency charged with studying and identifying best practices to improve administrative procedure.
RFPs are due September 15, 2024. It is expected that the consultant's report will be complete in August 2025.
The CFPB is attacking junk fees in banking. The FTC rule would govern consumer sales transactions. CFPB image.
Today I submitted the following comment to the Federal Trade Commission on the notice of proposed rule-making regarding "Trade Regulation Rule on Unfair or Deceptive Fees." These are the "junk fees" that the Biden Administration has pledged to combat.
The NPRM was published on November 9, 2023. You too can comment at the Federal Register website. You can bet that business will be crying loudly about the impracticality of simply telling customers what the price of a thing is.
I support the proposed rule, though I don't think it goes far enough. My comment focuses on select points of ambiguity on which already I foresee business intransigence.
Elsewhere in the world, even tax is part of a price. When my friends and family visit from abroad, they are flummoxed by the repeated experience of seeing a price and then having to pay more. For some reason we countenance this in America, as if in some kind of wild West approach to market regulation, it's OK for a seller to put a gun to the consumer's head at the point of sale. As I say in my comment, that is not what "free market" means.
December 6, 2023
I support the proposed rule because I support free-market transaction and regulatory policy. A free market requires transparency around the terms of transaction to both buyer and seller. When a buyer is surprised by junk fees, that is, fees that are applied to a transaction after the customer believes that she or he has concluded negotiation of the terms, the seller is able to conclude the transaction upon an unfair advantage. It is an appropriate role for government regulation to level the marketplace by ensuring transparency, and that means upfront total pricing.
I note [a] point of potential ambiguity, and, thus, potential abuse by sellers. In the proposed rule, “Government charges” are defined as
all fees or charges imposed on consumers by a Federal, State, or local government agency, unit, or department. This definition covers only fees or charges imposed by the government on consumers and does not encompass fees or charges that the government imposes on a business and that the business chooses to pass on to consumers.
I anticipate argument over two points.
First, I expect that quasi-governmental actors, such as a corporations created by statute, and government contractors, such as service concessionaires, are not agencies of government. Sellers might disagree.
Second, if a governmental actor compels a seller to report and pay a per consumer or per transaction fee, I expect that the fee is nonetheless a fee that the business “chooses to pass on to consumers.” Sellers might disagree.
By way of example, I have just made a car reservation with Avis at BWI. My upfront price was $104.82.
On the payment page, the following fees were added:
Concession Recovery Fee (11.11%): 12.27
Customer Facility Charge-3.75/day: 7.50
Transportation Facility Charge-2.25/day: 4.50
Vehicle License Fee-0.56/day: 1.12
Total Tax: 14.97
The additional fees sum $40.36, which is a 38.5% markup on the upfront price.
All of these fees are sanctioned by Maryland law. The former two fees are passed on by Avis to the Maryland Airport Authority (MAA), and the latter fee is, self-evidently, a tax. I do not know the beneficiary of the penultimate two fees, but I assume that the Transportation Facility Charge goes to an MAA shuttle contractor.
So first, is the MAA contractor a “government agency, unit, or department” under the proposed rule? I suggest no, because contractors and concessionaires, like quasi-governmental “sue or be sued” entities created by Congress, are expected to comply with the rules of the competitive marketplace when they act in a commercial capacity. However, Avis might disagree, arguing that the fee is set by the MAA. The MAA is a governmental unit of Maryland state government.
Second, are these fees “impose[d] on a business[,] and … the business chooses to pass [them] on to consumers”? I suggest yes, because Avis owes these fees to the MAA, et al., but is not obligated to pass them on to consumers. As long as Avis accounts for the fees with the government, Avis remains free to price its services as it pleases. Moreover, to calculate the state tax on the car rental, 11.5%, the tax basis includes the fees. Thus, it seems plain to me that the fees represent the price of service and are not akin to a tax that is imposed upon the transaction. However, Avis might disagree, arguing that the seller is a mere conduit for fees set by the MAA.
I suggest that the junk-fee rule is virtually impotent in a broad range of transactions if it does not address fees in a transaction such as this one. While I might like to see tax and all incorporated into upfront pricing—as it is in countries the world over—I understand that that is not the American custom. But any fee besides tax on sale or service should be disclosed to a customer as part of an upfront price. Otherwise, the proposed rule is completely undermined. I must go all the way to the payment page of the Avis transaction before I discover the actual price, a substantial markup, for the transaction I desire.
I hope you will clarify that government contractors and comparable quasi-governmental actors are not governmental actors within the meaning of the proposed rule. And I hope you will clarify that government-sanctioned fees that are incorporated into the tax basis of a transaction, even if imposed on a per customer or per transaction basis, are fees that a seller “chooses to pass on to consumers.”
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.
Spencer K. Schneider, a 3L at UMass Law and teaching assistant in my Torts I-II classes, has authored an article for the National Lawyers Guild Review. He examines state systems that suspend driver licenses upon unpaid fines and their perversely circular detrimental impact. He concludes that constitutional challenges to the systems don't hold water, but that they should be reformed as a matter of sound legislative policy. Here is the abstract.
Forty-three states have, or previously had, some version of a driver’s license suspension program. These programs are shown to have disastrous financial effects on the lives of those who cannot afford the fines inherent in them. Challenges to such license suspension schemes have been brought throughout the United States but have been largely unsuccessful. Where relief ultimately may be found is in state legislatures or city governments. When those bodies discover that, although these programs are in fact valid and constitutional, many of them have such detrimental and long-term impacts on so many citizens, they ultimately result in more harm than good. This realization has led many states to experiment with changes to, or repeals of, their driver’s license suspension programs with varying success. However, many states still rely on the fines levied by these programs and there is a legitimate argument that the programs are imposed to keep dangerous drivers off the street. Ultimately, this is an issue that arose from legislation and, despite finding its way into the court system, must be solved with legislation.
In two judgments in late September, the Supreme Court of Ireland ruled that Freedom of Information Act (FOIA) of 2014 exemption for confidential commercial information is not mandatory and that public entities relying on the exemption "must explain why the public interest does not justify release."
In both cases, public entities responding to record requests had been permitted to rely on the prima facie application of the exemption. That approach fell short of the Irish FOIA's legislative command, the Supreme Court reasoned, because the record requesters were given no information with which to test the validity of the exemption. The Supreme Court reversed and remanded.
Federal and state FOIAs in the United States also exempt from disclosure confidential information that private entities supply to government when disclosure would jeopardize the private entity's competitive position. The exemptions operate also to shield public information from disclosure that would jeopardize the government's own competitive position as an actor in the private marketplace.
The U.S. FOIA does not, and state FOIAs typically do not, require that a public agency independently test confidential-information exemption against the public interest in disclosure, essentially second-guessing private owners' confidentiality designations. To the contrary, legislative exemptions in some states are mandatory, and not, as U.S. FOIA exemptions are, committed to administrative discretion. Current federal policy permits the disclosure of some statutorily exempt records, but the U.S. Department of Justice (DOJ) counsels agencies to engage in "full and deliberate" analysis of competing interests. As to federal exemption 4, for confidential information, the DOJ has opined that such information "would not ordinarily be the subject of discretionary
FOIA disclosure."
However, unlike U.S. FOIA exemption 4 ("trade secrets and commercial or financial information obtained from a person and privileged or confidential," 5 U.S.C. § 552(b)(4)), the Irish exemption for confidential information is limited by a "public interest override." According to the Irish law, the exemption does not apply when according to the agency "head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the FOI request." Public interest overrides favoring disclosure are uncommon in U.S. access-to-information law, except in balancing analyses involving personnel records.
Decided on September 25, 2020, both cases in Ireland involved journalistic investigations. In Minister for Communications, Energy and Natural Resources v. Information Commissioner, [2020] IESC 57, journalist, FOI advocate, and founding CEO of Vizlegal, a legal information service provider, Gavin Sheridan (recent profile at The Attic) sought access to a state contract with service wholesaler E-Nasc Éireann Teoranta (eNet) to provide public access to fibre-optic-cable infrastructure. In University College Cork v. Information Commissioner, [2020] IESC 58, news broadcaster RTÉ sought information about a €100m loan by the European Investment Bank to the National University of Ireland, Cork. Both court opinions were authored by Justice Marie Baker, herself a U. Cork alumna, with four other justices concurring.
Last week the First Circuit held in favor of a student accused of a violent assault; however, the court largely upheld as constitutional the due process provided to the student in campus adjudication.
The case adds to federal appellate precedent on the requirements of procedural due process on campus. The First Circuit's conclusions on these facts are not new water marks. At the same time, observers predict that the multitude of circuit disagreements in this area will lead inevitably to a U.S. Supreme Court ruling.
In the instant case, a male student was accused of a violent assault on a female student, his romantic partner, while studying abroad in Spain under the purview of the University of Massachusetts, Amherst. The First Circuit ruled that the university failed to provide adequate notice and hearing prior to imposing a five-month suspension on the student, after the allegations but well before the adjudication. Authored by Rhode-Island-born U.S. Circuit Judge William J. Kayatta Jr., the court's holding came from a unanimous three-judge panel that included retired U.S. Supreme Court Justice David Souter.
The court affirmed judgment for the university as to the adequacy of the campus adjudication and consequent expulsion of the accused. The student had challenged the adjudication for the exclusion of some evidence and the lack of opportunity to confront his accuser. Constitutional rights in the context of the campus administrative process were not offended by those omissions, the court held, applying the flexible procedural due process test of Mathews v. Eldridge (U.S. 1976). It's the latter point, confrontation, that especially vexes critics and marks arguable disagreement with other circuit courts.
The case arises against the backdrop of a heated national debate over higher education reform. To my consternation, Title IX has become an area in which serious cases of sexual harassment and physical assault are lumped together on the nations' campuses with gross abuses of the rights of students and faculty. Legitimate disciplinary processes have been perverted, and therefore caused to undermine civil rights law, by overzealous bureaucrats seeking to enforce politically correct group-think on students and to undermine academic freedom and faculty governance. Purely in my personal capacity, I filed my own observations with the Department of Education in March.
The instant case is Haidak v. University of Massachusetts-Amherst, No. 18-1248 (1st Cir. Aug. 6, 2019).
Connor Gillen, UMass Law '21 and a thriving alum of my 1L Torts class, was featured in the local Cape Cod Timesduring his summer internship with the general counsel of the Barnstable County Sheriff's Office. Connor's a good bloke, "now considering working in the public sector after graduation." I was intrigued to read, amid his report:
While interning at the Sheriff’s Office I also learned about the
Massachusetts Public Record Laws and the Massachusetts Statewide Records
Retention Schedule. These are areas that I would not have learned about
in my law school classes, and the information I was taught will give me
an advantage once I graduate and become a practicing attorney.
With Kitty Cone, Esq., I've published FERPA Close-Up: When Video Captures Violence and Injury, 70:4 Okla. L. Rev. 839 (2018), available to download from SSRN and elsewhere. We are grateful to the staff of the Oklahoma Law Review, who were meticulous and a pleasure to work with. Here is the abstract.
Federal privacy law is all too often misconstrued or perverted to
preclude the disclosure of video recordings that capture students
victimized by violent crime or tortious injury. This misuse of federal
law impedes transparency and accountability and, in many cases, even
jeopardizes the health, safety, and lives of children. When properly
construed, however, federal law is no bar to disclosure and, at least in
public schools, works in tandem with freedom of information laws to
ensure disclosure. This Article posits that without unequivocal guidance
from federal administrative authorities, uncertainty regarding the
disclosure of such recordings will continue to linger, jeopardizing the
ability of plaintiffs to access needed information.
Donald C. Arthur, M.D., J.D. UMass Law '17, has published Commercial Deception by Anti-Vaccine Homeopathic Websites: A Consumer Protection Approach, 10 Biotechnology & Pharmaceutical L. Rev. 1, 27 (2017). Here is the abstract.
Abstract
Some internet marketers offer for sale “vaccination substitutes” that can purportedly replace actual scientifically-tested and federally-approved vaccinations. Deceptive internet advertising for vaccine substitutes has dissuaded parents from vaccinating their children, resulting in a resurgence of vaccine-preventable childhood diseases. The Food and Drug Administration and Federal Trade Commission have the authority to address dangerously deceptive product claims, including those for homeopathic preparations that have thus far avoided safety and efficacy testing. This article presents the issues involved in deceptive advertising and proposes regulatory solutions.
The article is available to Westlaw Next subscribers here. The Reviewis published at North Carolina Central University School of Law.
Claiming Don as an alumnus is decidedly my privilege. Dr. Arthur is an
emergency medicine and preventive medicine physician. He served 33
years in the U.S. Navy, culminating his career as Navy surgeon general
and retiring at the rank of vice admiral. He served as chief executive
officer of three hospitals, including the National Naval Medical Center
in Bethesda, Maryland.
