To contradict consistent record of impotence, DOT opens needed inquiry into airline miles programs

Washington, D.C.—The U.S. Transportation Department (DOT) last week opened an investigation of airline frequent-flier programs, and it's about time.

The old adage about wheels of justice turning slowly usually well describes the antitrust activities of the Justice Department (DOJ) and Federal Trade Commission (FTC). Only in recent years has the government begun to awaken to the rampant price-fixing in our economy that consumers have been accustomed to for decades. Runaway inflation shed light on how little choice Americans have in grocery stores, probably prompting FTC qualms over the Kroger-Albertson merger. Sky-high rents and a housing shortage similarly have prompted DOJ attention to rent-fixing.

Now it seems the emphasis is on the wheels part of the old adage, as DOT takes a belated interest in the airlines. Absurdly high prices, especially in domestic travel, probably stirred the agency giant. The Biden Administration and Buttigieg DOT have largely failed to deliver on infrastructure promises. So it's pleasing to see a glimmer of concern for consumer welfare vis-à-vis ever more profitable providers.

A window view sometimes makes flying a tiny bit less miserable.
RJ Peltz-Steele CC BY-NC-SA 4.0

Misery in the Air

As to domestic air travel, I remember President Obama saying the economy's great, but workers might have to move for jobs. Meanwhile we're encouraged to have multi-generational households to care for our elderly, and the great economy compels college grads to move back in with their parents. Is the whole family supposed to move to the same place at the same time? Air travel is a necessity for families in the vast geography of our national labor market, yet we continue to allow our oversized airlines, themselves products of mergers that should not have been allowed, to operate as if they're concierges of bespoke services.

Bespoke is ever less the consumer experience, even as prices soar. Six of my last six domestic flights, all on American Airlines, were hours late. I would be due a huge compensation check were I in the EU. From American Airlines? Nothing. To the contrary, I had to foot the bill out of pocket for transfers and overnights in pricey cities such as Chicago and D.C., else sleep in the airport. The Buttigieg DOT and Congress keep making noise about passenger compensation. But noise, to appease the electorate, is all it's amounted to. Don't even get me started on sticky trays, filthy seats, and cramped spaces on packed planes.

We All Fall Down

As to infrastructure promises, if you're thinking, "well, the Republican Congress": Save it. I don't want to hear it. The whole thing about Joe was his ability to reach across the aisle. And I didn't vote for either one of them, so if ever you tire of see-sawing between obstructionist opponents as an excuse for getting nothing done, stop voting for the only thing you're offered and come talk to me about how we dismantle the two-party system. Consumer choice indeed.

Yes, there was the infrastructure bill. Biden deserves credit for that, and I appreciate it. But even the Biden Administration knew that that would not even bring us level with our maintenance needs, much less make systemic investments.

Use of the infrastructure money, such as it is, raises serious doubts about the government's fiscal responsibility. My home state of Rhode Island is using federal infrastructure money to rebuild rotted wooden bike-path bridges that I use, so I'm selfishly pleased. But it wasn't the purpose of the bill to restore recreational paths for which the states should have planned anyway. Rhode Island failed to fund replacement for the decades when the bridges' inevitable expiry was well known; consequently, the bridges have been subject to dangerous detours for years since the failure. And the bridges are hardly vital infrastructure; the few people who actually commute on them are stymied by uncleared snow in the winter and an abrupt end to dedicated lanes at the ends.

I have doubts too about even the more clearly legitimate uses of the money. DOT and Amtrak plan to build out vital northeastern rail service westward in Massachusetts, a welcome initiative. But the trains will not be any better than the embarrassingly slow service we have in our rail system now; driving will still be preferable for speed and reliability. I remember "Amtrak Joe" saying something about high-speed trains, you know, like in the developed world. The best the administration seems to have managed is to ask Japan for help with high-speed rail. I guess we don't have the technology.

Round and Round

Topping it all off, there's the corruption that the government seems unable to get a handle on. Or as we call it in America, contracting. Rhode Island got caught with its pants down last year when the key Washington Bridge alongside the I-95 corridor in Providence was found to be fatally defective and was suddenly closed. A "junior engineer" spied the rusty deficiency, media reported, or as I like to say, a "former junior engineer" who didn't get the memo. Because the odds are nil that inspection contractors, who enjoy a revolving door with state government offices, somehow failed to notice the problem for years.

The bridge has to be torn down and replaced, and costs are spiraling. When the state bid the demolition project, intense media and public scrutiny compelled a realistic cost estimate of $31 million. But contractors don't emerge from their pools of money for realistic. The state ultimately awarded the work for close to $50 million. But wait, there's more. The company that was awarded the demolition contract is also a defendant in the state lawsuit over the defective bridge. You can't make this stuff up.

The overall estimate, no doubt too low, for the Washington Bridge replacement is about a half billion dollars, and we should pause a moment on that number. It can be difficult to assess the legitimacy of these big numbers, as the average consumer has little frame of reference to differentiate a million from a billion. For some reason I play the lottery only when the jackpot hits a half billion, as if I would not be content with a tenth as much.

The Massachusetts Bay Transit Authority (MBTA) recently estimated that it would take $24 billion to make the Boston T work the way it's supposed to. That's not to improve the system; that's just to bring it up to serviceable: timely trains, functional stations. The T is infamously unreliable and plagued by maintenance issues. Yes, it is an old system, but that doesn't fully explain the problems. An extension of the green line opened in 2022, for example, and saw such problems with defective tracks that trains had to be slowed to less than walking speed.

Chair: Wait, I see a hand. Rhode Island, you have an idea?

Rhode Island: Yes, Mr. Chair. We propose that the MBTA hire the contractor that built the green-line extension also to remove and replace it.

Chair: Thank you, Rhode Island.

Rhode Island (to camera): Baltimore, 🤙 <<call me>>.

In contrast, the city of Brisbane, Australia, is rebuilding its metro system, including a new fleet of electric vehicles and excavation of a new tunnel, for a price tag of only $1.4 billion. That's Australian dollars; it's about US$930 million. Brisbane's metro is a smaller system than Boston's, yet I can't help but think that the T couldn't mop up the urine in the system for a billion dollars.

I might not know millions from billions, but I know that 1 for new is a better buy than 24 for old. It's hard not to conclude that something is amiss in accountability for infrastructure spending. If only there were, I don't know, experts, or something, who don't work for contractors. Maybe they could work in the government, for the public.

Miles To Go

Well the good thing about antitrust enforcement is that it requires lawyers, but no new construction. Maybe the Buttigieg DOT has found its knack.

The ways in which airlines have innovated consumer exploitation in frequent-flier programs are sufficiently many to constitute a course in business school. Well, bad-business school. Violations of antitrust law are so painfully obvious that it's hard to believe we have antitrust enforcement at all.

The legal status of frequent-flier miles has evolved since the programs were conceived circa 1979. They started as little different from tenth-sandwich-free punch-card programs. It was the funny kicker on the news when they were first contested as property in legal contexts such as divorce. That's not an unprecedented evolution, by the way. Divorce has a way of showing us what's valuable to people. Dogs and cats are transitioning from mere chattel to intangible value in tort law by way of divorce court.

Notwithstanding limited legal exceptions, courts tended nonetheless to regard the airline mile as a purely contractual creature. Airlines urged that construction and delighted in it. The miles are thus controlled by terms of service, to which consumers bind themselves usually with neither meaningful choice nor actual knowledge. Per the law of boilerplate in the information age, the airlines reserve the right to change the terms more or less unilaterally. That's why the airlines can and do devalue miles routinely and add new redemption restrictions, such as blackout dates and transfer limits.

Corporations' concerted efforts to construct self-serving legal doctrine has not stopped miles from becoming "a virtual currency." The government has long tolerated this dichotomy of law and reality. And things might have continued swimmingly for the airlines had they not succumbed to greed, the Achilles heel of the American corporate ethos. Once the airlines understood that miles and money were interchangeable, they started making them, literally, interchangeable. Today a consumer can earn miles per dollar on credit cards, transfer cash-back rewards to mileage programs, and simply buy miles.

Devastatingly to the airlines' antitrust position, they doubled down on co-branded credit cards. Those agreements are a specific target of the DOT investigation. I have an American Airlines card and a United card; I've had Southwest and Delta cards in the past and probably will again. My cards get me earlier boarding and other perks. Most importantly, they (thankfully excepting Southwest) "save me" baggage-check fees. The annual fee on each card is $99; it costs $80 to check a bag roundtrip.

I put "save me" in quote marks because, remember, there didn't use to be baggage fees. Co-branded credit cards date to the 1980s, but they really took off, no pun intended, in the 20-aughts. Baggage fees were introduced in 2008. Coincidence much? Consumers have been coerced into having the credit cards; it would be economically irrational not to. Of course, paying the airfare with the card earns more miles. The cycle continues.

Ganesh Sitaraman aptly reported in The Atlantic last year, as the headlines put it, "Airlines are just banks now: They make more money from mileage programs than from flying planes—and it shows." 

But airlines are not regulated as banks.

And that's why federal scrutiny is long overdue.

Scribd has the DOT Template Letter on the Airline Rewards Inquiry, issued to the four largest carriers, American, Delta, United, and Southwest. HT @ TPG.

Bahamian development, identity stall between Columbus, Atlantis; tourist dollars seem not to land

Columbus is absent from Government House, Nassau.

Bowen Yang's amusing portrayal of Christopher Columbus on the Saturday Night Live "Weekend Edition" season premiere in mid-October reminded me of an empty pedestal I saw in Nassau, Bahamas, recently: a sight sadly symbolic of stalled development. 

(All photos and video by RJ Peltz-Steele CC BY-NC-SA 4.0.)

I was in Bahamas on the country's National Heroes Day on October 9. Bahamas replaced its Discovery Day, recognizing Christopher Columbus, with Heroes Day in 2013. The idea is to honor homegrown Bahamian heroes and shed the cultural domination of the islands' colonial past.

I've written before on my conflicted feelings about Columbus Day. So I was curious when my Lonely Planet told me that I would find a Columbus statue presiding over the capital at Government House in Nassau. Indeed, my pre-pandemic Planet was outdated. The statue was vandalized just in advance of Heroes Day in 2021 and moved into storage in October 2022. 

I found not only an empty pedestal with a crumbling top, but closed gates at Government House. Neglected surroundings, outside the gates, unfortunately spoke to my overall impression of economic development in the Bahamas.

Two bridges connect Nassau to Paradise Island.

Infrastructure is in a sorry state. Roads are a mess, and signage is almost non-existent. Business outside Nassau and island resorts is minimal. I tried walking to a purported national park on New Providence, and I gave up the effort halfway for the lack of walkways alongside merciless speeding traffic. Later, I drove to the park to find little more than a set-aside green parcel walled by chain link.

K9 Harbour Island Green School subsidizes most students' tuition.

Besides the country's relentlessly cheerful people, little thrives on the islands, economically. There is the tourism sector, the stunning natural beauty of the islands, and expat enclaves such as Harbour Island and Spanish Wells. To walk from grimy downtown Nassau across either bridge to the touristic sector known as "Paradise Island," where the famous Atlantis development is located, is to transport oneself between worlds. 

A Disney ship departs Nassau before dusk.

I wondered what shop workers on Paradise Island think when they leave the artificiality of the plaster-and-paint retail village, with its Ben & Jerry's and Kay's Fine Jewelry, for dilapidated, rat-infested residential buildings in the city's corners. I wondered whether tourists see the contrast when they are whisked through downtown en route from the airport to Paradise.

The heart of the city undergoes an equally striking transformation almost daily. Cruise ships pull into the port and unleash a legion of passengers into the downtown district. Western stores such as Starbucks and Havianas open up alongside overpriced jewelers and T-shirt purveyors.

(Video below: A funeral procession for Obie Wilchombe, Parliamentarian, cabinet minister, and tourism executive, proceeded through the heart of the tourist district while cruise passengers were in port on October 11. I watched, I admit, from the balcony at Starbucks. Tourists who didn't see the coffin must be forgiven for assuming the lively music signified joyful festivity. Embodiment of the tourism-government complex himself, Wilchombe likely would have approved.)

Bahamas declared independence from Britain in 1973.

Then in the late afternoon, the passengers return to their ships, and the downtown becomes a ghost town. I walked the streets at dusk and came across a few port workers commuting by foot, a few teens joking about, and a scarily ranting homeless man who caused me to cross the street. Every business was shuttered. It was hard to believe the same space had been dense with vacationers only hours earlier.

A night street party in Nassau reverberates.

Walking Nassau at night, the relative silence was punctured by a raging street party. A man told me that it was an anniversary celebration of the most popular local radio station, and entry, food, and drink were free. He invited me to join, and I did. It was a raucous party inside with a rapper dancing wildly on a stage, flashing lights, and, he was right, free drinks and heaps of homemade local eats. I felt like I was crashing an after-hours cast party at a Caribbean Disney World. I was having fun, but I must have looked out of place—I couldn't help but attract attention as the only person not of color—as a couple of well meaning partygoers asked if I was all right or needed help finding my way.

Signs all over Eleuthera Island promise happy Disney jobs to come.

Determined as it purports to be to carve out a national identity free of colonialism, there is a painful dearth of evidence that the Bahamanian government is accomplishing that. The government imposes a hefty 12% VAT on goods and services, and I'm sure the port fees are substantial. Where is the money going?

The International Trade Association (ITA) well described what I saw: "The World Bank recognizes The Bahamas as a high-income, developed country with a GDP per capita of $25,194 (2020) and a Gross National Income per capita of $26,070 (2020).  However, the designation belies the country’s extreme income inequality, as statistics are driven by a small percentage of high-net-worth individuals, while most Bahamians earn far less." The only evidence of infrastructure investment I saw was that which directly benefited tourists and expats.

True to form, on a ferry between Eleuthera and Harbour Island, I overheard a couple of Americans in golf outfits discussing the plusses and minuses of potential investment in an island hotel. They seemed oblivious to the fact that the hotel name they bandied about was sewn into the breast of the short-sleeve work shirt of a local commuter sitting right beside them.

The historic "British Colonial" hotel, Nassau, lost its Hilton affiliation,
but is under renovation with plans to reopen under independent operation.

 

The one-two punch of Hurricane Dorian and COVID took a heavy toll, to be sure. And tourism income is not yet back to pre-pandemic levels. Still, that can't fully explain the development stagnancy I saw in and among local communities.

Perhaps naively, I expected to find the Bahamas more a reflection of the western sphere of influence than of the developing world. It's only a 30-minute flight from Miami to Bahamas, and 85% of imports come from the United States. But on the ground on New Providence and Eleuthera Islands, the Bahamas reminded me less of Florida and more of Guinea-Bissau—a country plunged into darkness last week for failure to pay a $17m debt to its exclusive power provider, the offshore ship of a Turkish corporation.

Two years since Columbus was vandalized and one year since he was packed away, the solution to native identity at Government House is a rubble-topped pedestal and closed grounds. The people outside the gates have embraced National Heroes Day. But there is little information in circulation about who the Bahamian heroes are or why they should be celebrated. 

The government owes its people better. And I wouldn't mind seeing American- and British-owned tourism companies taking some corporate social responsibility—if that's still a thing—to ensure that something of what they pay into the country is reaching the people and lands that truly give life to today's Bahamas.

Follow the dollar, name politicians in train disaster

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

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

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

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

No.

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

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

Buck passed.

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

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

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

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

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

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

BU prof's death was tragic accident; investigation shows bad policy, but not criminal negligence

A Savory Tort Investigation

I've posted for public download [no longer posted; contact me for file] files of the investigation into the matter of Boston University (BU) Professor David K. Jones, who died on September 11, 2021, when he fell through a rusted stairway near a Massachusetts Bay Transportation Authority (MBTA) station.

When the Suffolk County (Mass.) DA announced in January that no criminal charges would be filed in the death, I requested the investigative files under state public records law. Record Access Officer Claudia Buruca filled my request promptly and kindly (in May; I'm just getting around to it). The ZIP file I created in Dropbox runs about 97.3 megabytes and includes documents, images, and 911 audio, all appropriately redacted by the DA's office to protect the privacy of the decedent and family.

I wrote about the incident here last October. A professor in the School of Public Health at BU (in memoriam) and husband and father of three in Milton, Mass., Jones was a runner and was out training for a marathon. He mounted a stairway on MBTA property in Boston that connected Old Colony Avenue, below, with Columbia Road, passing overhead. Four treads in the uppermost part of the stairway were missing, and Jones fell through, about 20 feet, to his death.

In reference to the DA's decision on criminal charges, I wanted to know more about why the rusted stairway was accessible to Jones. The file (in accordance with subsequent news reporting) revealed that demolition of the stairway had been planned, but was delayed by confusion over what state agency was responsible. In the meantime, the stairway was blocked at top and bottom. The stairway has been demolished since.

A warning: in the following paragraphs I will describe the evidence dispassionately, and the details might be troubling to some readers, especially if you knew Jones.

All photos are from the investigative file.

It appears that the stairway was well blocked at the top by a jersey wall, fencing, and signage. It was not as well blocked at the bottom. There was a high, temporary fence strung across the alighting threshold. Jones would have to have gone around the fence knowingly and deliberately. But doing so was not hard.

A Google Street View image from November 2020 shows the fence footing sitting well past the stairway corner.

At the left end of the alighting handrail, the fencing was anchored to a vertical steel post, which stood upon a rectangular steel footing. A Google Street View image from the preceding year shows the footing set out well past the end of the stair, so the fencing extended across the threshold and then a prophylactic foot or more. Also, while an apparently older image in the investigative file shows a "Danger / No Trespassing" sign affixed to the fence at the bottom of the stairway, that sign appears to have gone missing by the time of the Google Street View image in November 2020.

Accident-scene images show that the footing had migrated to the corner of the stairway footing and angled to 45 degrees. So a narrow gap between the end of the handrail and the start of the fencing left the stairway more readily accessible. Also, the "Danger" sign still is missing.

Either way, it was never very difficult for a person to squeeze around the end of the fence and onto the stairway. There is video surveillance of Jones walking—not running—up the stairs, and then of him falling. But no camera captured how he circumvented the fence at the bottom, nor what happened when he encountered the gap in the stairs.

I had assumed, based on my own experience as a runner, that Jones had run up the stairs, probably looking up and ahead, and lost his footing at the missing treads. So I was surprised to see that he walked up. Also surprising, about nine seconds, give or take, elapsed between his disappearance from camera view, moving up the stairs, and his falling back through the camera view. That's more time than would have been needed to go the rest of the way. One possibility is that he lost his footing, but was able to hold on to something for a short time before falling. Another possibility is that he saw the gap, tried to circumnavigate it, and failed. There's no way to know.

Whatever the unknown circumstances, personally, I am satisfied that the DA made the right call. The delay in demolition of the stairway, the too easily circumventable fencing, and the missing danger sign significantly and unnecessarily exacerbated the risk of injury or death and evidence bad public policy. But the conditions don't, in my mind, rise to the level of criminal negligence, which involves willful ignorance of an obvious risk of harm—much closer to civil recklessness than to civil negligence. For Jones's part, he had to know that he was taking some risk in circumventing the fencing. And I say that mindful that I've made some bad choices myself in the past, so there but for the grace of God....

Rusted treads that had not yet detached.

Even in the absence of criminal negligence, it would be nice to know that the bad practices of demolition delay, circumventable fencing, and missing danger signs are being addressed by the MBTA. To be fair, the MBTA should be lauded for having closed the stairway before an accident happened in the absence of barriers.

At the same time, why did the staircase rust so to begin with? Ironically, Jones worked as a public health scholar studying social risk factors. Bigger questions loom about our aging infrastructure and who pays the price when it fails.

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.

Book chapter examines information access in context of Polish privatization, law and development

My colleague Gaspar Kot and I have published a book chapter entitled Private-Sector Transparency as Development Imperative: An African Inspiration.  The chapter appears in the new book, Law and Development: Balancing Principles and Values, from Springer, edited by Professors Piotr Szwedo, Dai Tamada, and me (more in the next entry on this blog).  Here is our abstract:

Access to information (ATI) is essential to ethical and efficacious social and economic development. Transparency ensures that human rights are protected and not overwhelmed by profiteering or commercial priorities. Accordingly, ATI has become recognised as a human right that facilitates the realisation of other human rights. But ATI as conceived in Western law has meant only access to the state. In contemporary development, private actors are crucial players, as they work for, with, and outside the state to realise development projects. This investment of public interest in the private sector represents a seismic shift in social, economic, and political power from people to institutions, akin to the twentieth-century creation of the social-democratic state.

Contingent on state accountability, Western ATI law has struggled to follow the public interest into the private sector. Western states are stretching ATI law to reach the private sector upon classical rationales for access to the state. In Poland, hotly contested policy initiatives over privatisation and public reinvestment have occasioned this stretching of ATI law in the courts. Meanwhile, in Africa, a new model for ATI has emerged. Since the reconstruction of the South African state after Apartheid, South African ATI law has discarded the public-private divide as prohibitive of access. Rather than focusing on the nature of a private ATI respondent’s activity as determinative of access, South African law looks to the demonstrated necessity of access to protect human rights.

This chapter examines cases from South Africa that have applied this new ATI model to the private sector in areas with development implications. For comparison, the article then examines the gradually expanding but still more limited Western approach to ATI in the private sector as evidenced in Polish ATI law. This research demonstrates that amid shifting power in key development areas such as energy and communication, Polish courts have been pressing ATI to work more vigorously in the private sector upon theories of attenuated state accountability, namely public ownership, funding, and function. We posit that Poland, and other states in turn, should jettison these artifices of state accountability and look instead to the South African model, since replicated elsewhere in Africa, for direct access to the private sector. ATI law should transcend the public-private divide, and the nations of the North and West should recognise human rights as the definitive rationale for ATI in furtherance of responsible development.

Gaspar Kot

With Mr. Kot's help, this chapter extends to a European context my previously published comparative work on private-sector information access. Gaspar's expertise was invaluable for Polish legal research, to be sure, but moreover to help me to understand Poland's richly complex, on-again-off-again courtship of privatization.

In earlier works, I compared the South African approach with the United States FOIA and with Indian RTI law.  I am excited about this approach in access-to-information law, which is now gaining traction elsewhere in Africa, because I believe it to be a potential game-changer in saving democracy and human dignity from corporatocracy. I am spending some of my sabbatical time this semester in Africa and other parts of the developing world studying how this approach is especially salient in the context of problems in social and economic development.

Zimbabweans still await their development moment

Robert Mugabe airport.
All photos RJ Peltz-Steele CC BY-SA 4.0.

In Harare, Zimbabwe, my host (whose identity I am protecting) brought me up to speed on national politics and the present fuel shortage. I had been under the impression that the exit from nearly 30-year rule of President Robert Mugabe, with subsequent electoral fanfare, marked a turning point for the southern African nation. Alas, my host reported that the new regime of President Emmerson Mnangagwa is same story, different day.

Zimbabwe imports its oil, but there is no ready explanation, such as a natural disaster or embargo, to explain the latest (nor the prior) bottleneck and long gas lines. My host blames politics as usual, which means control of the country's oil market awarded to cartels in exchange for lucrative kickbacks to politicians. A business owner dependent on vehicles to move assets, my host explained the strategies he employs to keep his fleet in service, including foreign currency purchases, which can bypass gas lines; fuel storage for a rainy day; the occasional financial inducement to a fuel seller; and, when all else fails, waiting in the interminable lines.

A gas line runs along the road.

A Total station is closed except for its 'Bonjour' shop.

The high ratio of pedestrians to vehicles on the streets of Harare is like none I've seen elsewhere in a major city, as even minibuses are in short supply for want of fuel. There are taxi stands, but the cabs are decidedly parked and not cruising for customers. My host said that the aforementioned politicians never seem to be wanting for fuel, though. Indeed, around Parliament and the executive administration building, I saw many official vehicles, and early in the morning, I saw workers filling their gas tanks from fuel cans. Entrepreneurial roving street merchants, who might be selling bananas, nuts, or newspapers in another city, hawk fuel cans and funnels in Harare.

Customers wait for the grocery store to open in the morning.

Another curiosity that struck me in Harare was crowds of people around and in the grocery stores. Outside a CBD branch of the popular market chain OK were a score of peddlers bearing cardboard signs showing numbers. My host explained that, in tandem with Zimbabwe's economic woes, and also a function of corruption, he asserted, runs the country's currency shortage. Indeed, I paid always with U.S. dollars, received change in same, and never saw other than inflationary Zim notes being sold as touristic novelties. In part because of the currency shortage, and to prevent a run on banks, people are restricted in bank withdrawals. That means one must go more often to the grocery store. But people have adapted, and they do have access to their money through electronic devices. The peddlers outside the stores are brokers, or internet-age money changers, who, for a competitive cut, convert electronic bank balance into hard currency to spend on groceries that don't directly accept debit or public assistance payments.

My host lamented: Zimbabwe is a country rich in natural resources and natural beauty to rival regional neighbors such as Tanzania and South Africa. Yet in 55 years since independence from the UK, the country inexcusably has failed to mature domestic productivity or the touristic sector. Sadly, coup d'etat and the long-anticipated exit of Mugabe seem not to have precipitated meaningful change.

Just wait, my host said: if the people don't see improvements, they'll change leadership again; and again, until someone gets it right.

Zimbabwe Parliament building sits on Africa Unity Square.

Poor development choices may bolster quality-of-life disparity on Tanzania's Msasani Peninsula

 Coco Beach, Msasani Peninsula, Dar es Salaam, Tanzania. All photos RJ Peltz-Steele CC BY-SA 4.0.

The short length of Coco Beach is the touristic gem of Tanzania's largest city, Dar es Salaam, which, for all its rugged charms, is not rich with touristic gems. Coco Beach sits on the eastern, Indian Ocean, coast of the ritzy Msasani Peninsula, just a few kilometers northwest of the CBD.

Msasani says a lot about wealth stratification in Africa. The worsening wealth gap is an issue that vexes me in the United States. But we've got nothing on many an African country. Where subsistence living is the norm, and social safety nets are nearly non-existent, the disparity between haves and have-nots gets closer at each end to all and nothing. And as on Msasani, the extremes are often abruptly juxtaposed. The peninsula is home to subsistence fishermen, and the polluted beaches of the slipway, in the west, and the luxury condominiums of posh Oyster Bay, in the east.

Luxury condo building on the road from Oyster Bay to Sea Cliff Village

I walked the peninsula from west to east and saw, in the span of just a few kilometers, ramshackle wood dwellings on potholed dirt trails without plumbing, in the west and center, and gated condo complexes with marble-esque, statued facades, in the east. While the former teemed with human life, the latter were eerily vacant, deserted of all but the occasional maintenance worker. I assume the condos are mostly second-home getaways and vacation rentals for the well-to-do in high season and on weekends. (I was reminded of the dark-windowed high rises that loom over Central Park West, New York.)

Qatar's is the most modest of the beachfront embassies.

At that, the most striking residences of the eastern Msasani are not luxury homes, but foreign embassies, including those of Qatar, Brazil, Canada, Ireland, the UAE, and Saudi Arabia. (The U.S. embassy and others are in Oyster Bay, but in the interior.) They line the main coastal road that runs between Oyster Bay and Coco Beach, which runs on northward to swank Sea Cliff Village and the Yacht Club.

Present service structures on Coco Beach, astride road construction.

At present, it isn't easy to cross this road, because a massive construction project runs all along the length of Coco Beach. I had hoped that this construction would improve the beach for touristic use that might fuel economic development to benefit the peninsula's have-nots. What passes for services on the beachfront now are wood shacks of dubious hygiene, selling drinks and snacks that might prove hazardous to foreign GI tracts. One municipal toilet building has seen better days and is now inaccessible anyway because of the construction. Alas, no, a local on the beach informed me: The purpose of the construction is to convert the shoulderless, two-lane, asphalt coast road into a four-lane highway, because, he said, the embassies want better and more secure access.

Nearly completed end of beachfront highway entering the CBD.

Many an American city can today tell tales of costly woe for having built transportation and utility infrastructure along prime waterfront property. It's bad enough that embassies, with their high, secure walls, occupy this land on the peninsula to begin with. Their inefficient use of prime real estate, distant from the administrative offices of the CBD, and in the company of Tanzania's "one percent" and cloistered ex-pats, sounds an awakward echo of colonial elitism.  To boot, now, the embassies and luxury homes will soon be served by a four-lane road that will further limit public access from the peninsula to the already underdeveloped beachfront.

Tanzania in 1974 moved its capital de jure to central Dodoma, in an effort to broaden economic opportunity in the country beyond Dar es Salaam. Nevertheless, concentration of development in Dar is still a problem that plagues the country. A businessman in the northeastern town of Arusha told me there's mounting resentment there about rural taxes paying for big-city infrastructure. (Boston says hello, western Massachusetts.) Maybe foreign nations can help Tanzania take a step forward by transferring their embassies from walled beachfront luxury to central locations with better access to government, whether Dar or Dodoma, on condition that appropriate public development of the Msasani Peninsula be left in their wake.  After all, foreign diplomatic posting is supposed to be a hardship, and it's compensated accordingly.

The new highway runs in front of the historic Ocean Road Hospital, where a street sign bears a familiar name.

Social-science saucebox opines on bike-bridge closures

A reporter stopped me on a run last week to obtain my critical policy analysis of the bridge-replacement situation on the East Bay Bike Path.  Suffice to say, my testimony was breathless.


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