State constitutional law offers untapped potential to bolster advocacy in freedom of information

The Vermont Supreme Court relied on the 1777 Vermont
Constitution, as amended in 1786, to support access to
information under the public records act (PRA, or FOIA)
in 2021.

In the summer, two third-year law students published in the Journal of Civic Information a superb investigation highlighting the untapped potential of state constitutional law as a tool in access advocacy in the United States.

Among the many ways in which the U.S. Constitution shows its age is its lack of a right of access to information (ATI). ATI has become a recognized human rights norm in modern constitutions and regional instruments around the world, while the concept in U.S. federal law remains relegated to statute: the Freedom of Information Act (FOIA), which once was landmark yet today suffers from significant dysfunction. For my own part, I have examined the significance of  this divergence relative to the problem of privatization in the U.S. FOIA and the South African Promotion of Access to Public Information Act (PAIA).  I spoke last month to the U.S. FOIA Advisory Committee re same (HT).

The constitutional lag is not characteristic of all U.S. states.  By the count of University of Florida Levin College of Law students Jessica Terkovich and Aryeh Frank, ATI is recognized in the constitutions of seven states: California, Florida, Illinois, Louisiana, Montana, New Hampshire, and North Dakota.  In their article, Terkovich and Frank examined case law in these states to see how the constitutional provisions are implicated.

The researchers found that the constitutional provisions were not realizing outcomes in ATI litigation in these states all that different from outcomes that might be reached under the states' statutory expressions of ATI.  Rather than concluding that the constitutional provisions are inconsequential, however, Terkovich and Frank concluded from the evidence that constitutional ATI is under-used as a source of law to bolster access advocacy.

Their reasoning resonates with me.  When I was a newly hatched academic in the 1990s, I was enchanted by an examination copy of a casebook on state constitutional law.  (Lexis and West have current offerings.)  I was never able to swing the course offering, but the subject informed my teaching and research.  Accordingly, I've always encouraged students to consider state constitutional approaches to legal problems.

Often, state high courts recite by rote the default position that they interpret state constitutional rights as merely co-extensive with federal rights; the pairings are construed in pari materia.  The proposition that the free-press-and-speech provision of Article XVI of the Massachusetts Declaration of Rights is co-extensive with the First Amendment to the U.S. Constitution was reiterated recently in the scrap over a Boston flagpole now bound for the U.S. Supreme Court.

Courts might reflexively choose the easier path, shrugging off the burden of state constitutional interpretation.  But they can readily embrace state constitutionalism when it suits their needs.  The Supreme Court of Arkansas long construed the 1874 state constitutional guarantee against unreasonable search and seizure in pari materia with the federal Fourth Amendment.  Until they didn't.  When the U.S. Supreme Court bounced back a state high court disposition as erroneous under the Fourth Amendment, the nonetheless jurisprudentially conservative Arkansas court, in 2002, suddenly discovered distinct meaning in the state constitution to support its earlier conclusion in the defendant's favor.

That result could not have happened if criminal defense lawyer John Wesley Hall had not made the argument.  And that possibility, that the state constitution could mark the difference between liberty and imprisonment, was exactly why Hall included the Hail Mary claim despite longstanding precedent on the in pari materia approach, he once told me.

The potential for potency in a state constitutional claim is all the greater when the right at issue is expressed in the state constitution, but not in the federal Constitution, as is the case for ATI.  And the potential is not limited to the seven states that Terkovich and Frank analyzed.  Just in September, the Vermont Supreme Court extended its ATI law, the Public Records Act (PRA), to shine sunlight on the records of a private contractor responsible for healthcare in state prisons.

Vermont is not on Terkovich and Frank's list of seven.  Nevertheless, in Human Rights Defense Center v. Correct Care Solutions LLC, the Vermont Supreme Court relied on exhortative language—previously held unenforceable by private cause of action—dating to 1786 in the state declaration of rights: "That all power being originally inherent in and co[n]sequently derived from the people, therefore, all officers of government, whether legislative or executive, are their trustees and servants; and at all times, in a legal way, accountable to them."

The article is Jessica Terkovich and Aryeh Frank, Constitutionalizing Access: How Courts Weigh State Constitutional Claims in Open-Government Litigation, 3(1) J. Civic Info. 1 (2021).

Laws suspending driver licenses for fines need reform

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.

The article is Spencer K. Schneider, The Wheels on the Bus: The Statutory Schemes that Turn Traffic Tickets into Financial Crises, 77:2 Nat'l Law. Guild Rev. 81 (Summer/Fall 2020).

Legal scholars overlook scholarship about state FOIA, but dedicated academics toil for state transparency

Professor Robert Steinbuch and I aim to draw attention to the undersung work of state-law transparency  scholars through our recent publication in the Rutgers Law Record.  Here is the introductory paragraph.

We have read with interest Christina Koningisor’s publication, Transparency Deserts. While there is much to be lauded in the work – all access advocates would like to see more scholarship and publicity about the importance of transparency and accountability – we are disheartened by the article’s failure to recognize the extant vibrant body of scholarship and activism in state freedom of information law.

[¶] We, moreover, find this omission characteristic of a broader ignorance in legal academia of the sweat and toil of legal scholars, scholar-practitioners, and interdisciplinary academics who analyze and advocate for state transparency laws. This blind spot particularly manifests, unfortunately, among those at elite (typically coastal) law schools, who generally contribute vitally to the literature of the undoubtedly important federal transparency regime. These federal freedom-of-information scholars too often neglect the critical importance of state transparency laws – as well as state-transparency legal academics.

[¶] Quite in contrast, state-law access advocates generally acknowledge the value of federal statutory analogs, often referencing federal norms and practices comparatively, while, nonetheless, working upon the apt assumption that state access laws, en masse, have a greater day-to-day impact in improving Americans’ lives and in enhancing democratic accountability in America than does the federal Freedom of Information Act. Koningisor’s article evidences this disappointing tension. 

The publication is Transparency Blind Spot: A Response to Transparency Deserts, 48 Rutgers L. Rec. 1 (2020).  The publication is available for download from SSRN.  

Christina Koningisor, author of the referenced Transparency Deserts, kindly responded on the FOI listserv and gave me permission to share her thoughts.  Included is a link to her ongoing work.  Professor Steinbuch and I could not be happier to engage in a dialog that educates scholars and the public on the importance of state FOIA.

[T]hank you to Rick and Rob for taking the time to so thoughtfully respond to my piece. I sincerely appreciate it. And I take your points of criticism. The article certainly could have benefited from drawing more upon the excellent state-level scholarship that you cite in your response to my piece. I will also be sure, moving forward, to draw more heavily from the accomplished work being done by communications and journalism scholars. The point that I meant to make in my article, and which I should have stated more clearly, is that there is less overarching scholarship on public records laws across the fifty states. Of course, there are excellent state-by-state studies and critiques, some of which I cite in my piece, and many of which I do not, and which you have helpfully flagged in your response. But I was more interested in the work that has been done looking at the state of these laws as a whole. At this level, we can begin to make generalizations about what is working and what is not that are more difficult to observe when focusing solely on a single state. Rick and Rob's response seems to suggest that such surveys are inherently flawed, because they will inevitably be underinclusive and cannot possibly account for the variation across the fifty state legal regimes and the hundreds of thousands of state and local government entities. I agree—I explicitly make this point, and acknowledge the limitations of tackling such a diverse array of laws and government entities in my article's methodology section. But I believe it is nonetheless important to take stock of how these laws operate nationwide, so long as we are forthright and honest about the limitations of any fifty-state survey. I think there is value in and space in the literature for both state-by-state deep-dives and overarching cross-state examinations. Rick and Rob do highlight, in their appendix, some of the broader cross-state scholarship on state public records law that I failed to cite, most of which are published in communications and journalism journals. Again, I concede this point and agree that I should become more familiar with this interdisciplinary work.

I also want to note briefly that my Article reaches a somewhat more nuanced conclusion than transparency is simply worse at the state and local level. I do stress the significant advantages that many state public records laws have over FOIA, including the more rapid response times, the absence of a national security apparatus and classification process impeding access, and, often, the greater accessibility of state and local records officers, among other advantages. I also note that many of these state laws suffer drawbacks when compared to FOIA: many do not have easy and relatively cheap administrative-level appeal options, for example, and the costs of records production at the state and local level can often be prohibitive. Further, although there is no national security secrecy apparatus at the state and local level, it is often exceptionally difficult to obtain records from state and local law enforcement agencies. The piece was in fact inspired by my experiences working as a lawyer at The New York Times, where, in the process of assisting reporters with their federal, state, and local records requests across the country (not just in the coastal states!), I noticed that local police departments were often the most difficult agencies to obtain records from, in some ways even more secretive and difficult to work with than even the federal intelligence agencies. But more critically, the article emphasizes that when these state laws do fail—and I think we can all agree that they sometimes do—there are fewer alternative routes for information to come to light. These transparency failures are exacerbated by broader structural features of state and local government, including reduced external checks from local media and civil society organizations, and reduced intra-governmental checks between the various branches of government. This is of course not to say that every law fails in every instance, or that there aren't many excellent civil society organizations in many places doing critical work on government transparency and oversight. Of course there are abundant examples of such laudable advocacy efforts. But there are also many places across the country where local media institutions have disappeared, civil society organizations are in dire financial straits, and intra-governmental checks are muted. The nation's access laws are remarkably diverse, and contain myriad examples of both transparency failures and successes.

Once again, I very much appreciate these thoughtful and incisive responses to my piece, and I hope to continue this conversation moving forward. I have a new state transparency law-related article, [Secrecy Creep,] forthcoming in the University of Pennsylvania Law Review. It is still quite early in the editing process, so I would love to hear any feedback and suggestions ....

COVID-19 stresses United States on domestic borders; war analog might foster state solidarity upon federal power

Rhode Island Governor Gina Raimondo was recently
threatened with a lawsuit by New York Governor Andrew
Cuomo.  U.S. Air National Guard Photo
by Master Sgt Janeen Miller (2016).

I have just published at the new blog, Law Against Pandemic. Here is the abstract:

The coronavirus pandemic is stressing not only our healthcare systems, but our political and legal systems.  The pandemic has challenged our sense of identity in humankind, pitching us back and forth between a spirit of global solidarity and a competition of human tribes for resources and survival.  That tension plays out in our political and legal responses to the pandemic, manifesting the natural human temptation to tribalism in both international and intranational dimensions.

As policymakers struggle to respond to the pandemic and to curb the outbreak of COVID-19, I have been struck by the emergence of interstate tensions in the United States.  The pressure of the pandemic, aggravated by a slow and uncertain governmental response at the federal level, has been a brusque reminder that the United States are a plural: a federation of states that famously endeavored “to form a more perfect Union,” but that, like human governance itself, remains a work in progress.

Read more at the new blog, Law Against Pandemic