Battery, IIED in play if medical staff ignore patient's 'stop,' court rules

Medical professionals may be liable for battery and intentional infliction of emotional distress for failing to heed a patient's withdrawal of consent, a Massachusetts Appeals Court reversal warned in February.

Brigham and Women's Hospital is a teaching hospital
of Harvard Medical School in Boston.
Photo by trepulu CC BY-NC-ND 2.0 (2010).

According to the appellate court opinion, evidence in the case supported the plaintiffs' disputed claim that terminally ill cancer patient Donna Zaleskas begged staff at Brigham and Women's Hospital to stop X-rays of her leg because of her physical discomfort, but that X-ray technicians proceeded anyway.  On behalf of Zaleskas, who succumbed to cancer, survivors are suing the hospital for battery and intentional infliction of emotional distress, upon the theory that Zaleskas withdrew consent.  The Superior Court awarded summary judgment to the defense, and the Appeals Court reversed and remanded.

Thirty-seven-year-old decedent Zaleskas was a personal injury and product liability attorney in New York and alumna of Boston College Law School.

A finer line than one might expect separates theories of negligence and battery in many medical malpractice cases.  When a medical professional touches or otherwise physically treats a patient without, or beyond the scope of, the patient's consent, the action can simultaneously satisfy the test for intentional battery—defendant intentionally effecting physical contact that is unwanted by the complainant—and negligence—defendant's failure to comport with the standard of care of a reasonable professional under the circumstances.  Consent is an affirmative defense to intentional torts, like assumption of risk is a defense to negligence, but scope of consent often presents a thorny question of controverted fact.  Of course, patients with the benefit of hindsight are ill inclined to suppose that they consented to physical contact that caused harm, so intentional tort claims are often rationally articulable alongside accident claims in medmal lawsuits.

In the interest of doctrinal clarity, courts often, and in some jurisdictions, upon some facts, must, channel cases into a distinct rubric for "medical malpractice" that sits under or alongside the negligence umbrella, regardless of whether the case might be characterized as intent or accident.  That's a modern trend.  Massachusetts is more permissive in preserving conventional claims in intentional torts in medmal when the facts fit the bill.  The difference can be important in different dimensions.  A defendant's insurer might deny coverage, under policy terms, for intentional torts.  At the same time, intentional torts may give a plaintiff access to greater, even punitive, damage awards.

The Appeals Court ruled Zaleskas's claim fit for hearing in the intentional tort framework.  The court wrote plainly, "We now hold that if a patient unambiguously withdraws consent after medical treatment has begun, and if it is medically feasible to discontinue treatment, continued treatment following such a withdrawal may give rise to a medical battery claim."  In the instant case, "a reasonable jury could find that saying stop or words to that effect, in the particular factual context at issue, was sufficient to withdraw consent."

The court ruled furthermore, to the plaintiffs' advantage, "that consent to have one's body touched or positioned for an X-ray is not a matter beyond the common knowledge or experience of a layperson and does not require expert medical testimony."

The case is Zaleskas v. Brigham & Women's Hosp., No. 18-P-1076 (Mass. App. Ct. Feb. 11, 2020) (Justia). Justice Henry wrote for a unanimous panel with Rubin and Wendlandt, JJ.

Boston Globe wins access to booking photos, incident reports involving arrests of police officers

In the Massachusetts Supreme Judicial Court on March 12, the Boston Globe won access to booking photographs and incidents reports related to arrests of police officers under the state open records law.

The case arose from the denial of multiple public record requests, including two following State Police arrests of local law enforcement officers for operating motor vehicles while under the influence in 2012 and 2014.  State police resisted disclosure, claiming the records were not public as part of the state's "criminal record offender information" (CORI) database, which is exempt from disclosure by statute.

The exemption of criminal record information systems is the rule rather than the exception in the United States, in theory, to protect personal privacy.  Sometimes persons are never charged, or even arrested, or are exonerated prior to court proceedings, and public policy disfavors sullying reputation by association with police action.  On the opposite end of the criminal justice process, there is concern that even a person who is convicted of a crime will never escape the reputational impact of police involvement, especially in the age of an internet that never forgets.  Critics of non-disclosure policy claim that secrecy undermines accountability, which is especially important for law enforcement; and treats the public paternalistically, as if people cannot understand the relative significance of different stages of involvement with the police and criminal justice system, including the significance of having done one's time.  This tension of competing policy aims, especially as it plays out in the electronic age, and especially as it relates to visual media, implicates "practical obscurity," a conundrum that has dogged access policy for more than four decades and also marks a flashpoint in the trans-Atlantic privacy debate.

Examining the open records law, even as amended by the Massachusetts legislature while appeal was pending, aiming to bolster the state's position on the privacy-access seesaw, the Supreme Judicial Court ruled the records not shielded by the CORI statute's exemption for criminal record information. Employing the rule of narrow construction of access exemptions, the court concluded, "[W]e cannot read exemption (a) so broadly as to shield all investigatory materials created by police from disclosure. We therefore conclude that the booking photographs and incident reports sought here are not absolutely exempt from disclosure as public records under exemption (a) 'by necessary implication' of the CORI act."

Moreover, though police had not argued the point, the court ruled the records not exempt as an unwarranted invasion of personal privacy, at least in the particular context of police as arrestees.  The privacy exemption calls for a balance.  The court explained, "On the privacy side of the scale, we generally 'have looked to three factors to assess the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources'" (citations omitted).  Also, "privacy factors include the risk of adverse collateral consequences to the individual that might arise from the disclosure of this criminal justice information. 'On the other side of the scale, we have said that the public has a recognized interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner'" (citation omitted).

When police are themselves accused of crimes, the balance that might otherwise favor the ordinary citizen swings in favor of public accountability, the court reasoned. "There is a substantial public interest in the disclosure of police incident reports regarding alleged offenses by police officers and public officials that do not result in arraignment. And disclosure of the booking photographs will eliminate confusion as to the identity of those arrested where they may have common names that may be shared by others."

The court's conclusions accord with norms in state access law in the United States.  Though criminal information systems on the whole usually are exempt from disclosure, individual incident reports related to arrest usually are not—notwithstanding the fact that an exempt criminal record database may comprise records that are not exempt individually.  (Booking photos, or mug shots, also, traditionally have not been exempt from disclosure as a class of record, though that has been changing in recent years, because of a cottage industry in privacy invasion, and even extortion, that's cropped up online.)  Personal privacy exemptions are sometimes held to protect personal identity ad hoc, within police records as a class, and incident reports without resulting arrest may be exempt from disclosure.  But personal privacy exemptions typically implicate a balance, and courts tend to favor access when public officials are under scrutiny, especially when law enforcement officers are suspected of violating the law.

The case is Boston Globe Media Partners, LLC v. Department of Criminal Justice Information Services, No. SJC-12690 (Mar. 12, 2020) (Justia, Suffolk Law).  Chief Justice Gants wrote the opinion for a unanimous court.

Doctor's blog briefs COVID-19, medmal, learned intermediary doctrine, and addiction in legal profession

Like you, likely, I am at home.  And one thing I can tell you about home:  This ain't Rwanda.  Where I was supposed to be.  Apologies in advance to students for the classes I will have to reschedule in upcoming semesters to make up some of my sabbatical research.  Or maybe the university will afford me some bonus away time, compassionately understanding the impact of the crisis.  ROTFL.

So here I sit with some time to catch up on reading, and I want to share some worthwhile items here on the blog.

For starters, I'm terribly excited about what my friend and former student Joseph Grillo, M.D., J.D.-nearly-complete, has been writing over at his eponymous blog.  Here are recent headlines, links, and snippets in reverse chronological order.  Did I mention that Dr. Joe (LinkedIn) is an infectious disease specialist?

You have a look-see, below, while I go refresh my Whole Foods delivery window window.

Or not.

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Image by Prawny from Pixabay

Coronavirus Disease 2019 (COVID-19) – The Available Evidence
March 19, 2020

There is currently a large amount of information being circulated on the COVID-19 viral pandemic. Much of it is inaccurate and some is hysteria – often fostered by the mainstream media. In my view, the best way to combat this virus is by having evidence-based information and acting accordingly. There is a significant amount of accurate information currently known, but there is also considerable information that remains unknown at this time. Presented below is a discussion of both. Please feel free to contact me with questions at jfgrillo1@gmail.com.  Read more.

Image by Gordon Johnson from Pixabay

The Effects of the Affordable Care Act on Medical Malpractice Claims
March 17, 2020

The seemingly interminable debates about the ACA and health care reform in the last few years have focused mainly on health care access, quality, and cost. Debates on the medical malpractice component of the issue have focused almost entirely on cost. The familiar arguments in favor of limiting liability include the financial and health costs of defensive medicine; decreased physician supply in certain specialties and geographic areas; excessive awards; and high transaction costs, including attorney and expert witness fees. The equally familiar arguments in favor of maintaining tort liability include the need to promote civil justice, deter substandard care, identify incompetent practitioners, and encourage systemic quality improvement. There is a complicated and nonlinear relationship between medical malpractice events, medical malpractice claims, and medical malpractice costs. [Footnotes omitted.]  Read more.

Image by Gordon Johnson from Pixabay

Editorial: The Edges of Physician Liability and The Learned Intermediary Doctrine
March 12, 2020

The Learned Intermediary doctrine paints an idyllic picture of patients’ total reliance on their physicians to choose drugs and of physicians choosing drugs that best promote patient welfare. These images, however, are increasingly out of sync with the present-day healthcare system. For instance, managed care and other cost control measures employed by insurance companies have altered the doctor-patient relationship.  Read more.

Image by congerdesign from Pixabay

Suffering in Silence – The Addiction Epidemic in The Legal Profession
March 10, 2020

A recent course required an oral presentation on a topic of our choosing. Unknowingly, I chose to research and present my findings on addiction in the legal profession. What I found is worth expounding. Also worth noting is that these findings were presented to the university administration. Their response was chilling. In short, they claimed to “have this.” I am certain of a few things – they don’t “have this,” that being stagnant is at the heart of the crisis, and the status quo continues – drugs continue to be sold and consumed, and law students are suffering in silence. Therein lies a microcosm of a crisis within the legal profession.  Read more.

Image by Alina Kuptsova from Pixabay

Urgent Care – an Emerging Source of Clients for Medical Malpractice Attorneys
March 4, 2020

Urgent care centers are increasingly becoming Americans’ go-to option for certain health problems according to a study in JAMA Intern Med. 2018. Visits to urgent care clinics increased by 119% among commercially insured Americans between 2008 and 2015. During the same time period, emergency room visits for low-severity conditions — like those treated at urgent care centers — decreased by 36%. The reasons for these trends are numerous, including the high costs and long wait times associated with ER visits. While there are certainly benefits to such clinics, there are potential pitfalls for patients.  Read more.

CFP: Law Against Pandemic

Calling contributors!

Scholars, students, practitioners, all disciplines, all nations, are invited to contribute articles, commentary, and other work to the new website and blog, Law Against Pandemic.  Student work is especially desired, so professors, please spread the word (at an appropriate social distance) in your schools.

Law Against Pandemic is a "[s]pace for debate on the legal aspects of pandemics as a tool of development and popularisation of the achievements of social sciences." The project states as its main goal, "Creation of a publishing platform for high quality articles on legal aspects of pandemics, in order to contribute to the discourse and the analysis of possible solutions."

"We will publish articles and commentaries on the interrelations between law and pandemics.  There is no character limit. We accept texts in English, French, German, and Polish."

Read more in Law Against Pandemic guidelines.

 

Follow Law Against Pandemic on Facebook and on Twitter.

 

 Email submissions.

Currently available from Law Against Pandemic:

Mikołaj Sołtysiak, SARS-CoV-2 a stosunki zobowiązaniowe [SARS-CoV-2 and contractual relations].  Mikołaj Sołtysiak is a third-year student in civil law at Jagiellonian University in Poland.  The article is in Polish; here is the abstract, my translation:

The epidemic state means a period of extraordinary circumstances affecting many contractual relationships. Civil law provides for certain constructs that will enhance the content of contracts in exceptional circumstances, but only to a limited extent. Many situations caused by SARS-CoV-2 do not qualify for the use of mechanisms such as rebus sic stantibus, or lack of liability due to force majeure, and yet, it seems axiologically inappropriate to be indifferent to such cases. Here the key role of the legislator is revealed.

While Sołtysiak contemplates a need for the exercise of legislative power, I contributed a piece to Law Against Pandemic on the need in the United States for the federal executive authority to step up to the challenges of the coronavirus crisis.

Springer 'Law and Development' book: Introduction is now free for download

Recently I announced the publication of Law and Development, a new collection of research articles from multi-national and multi-disciplinary perspectives, as well as my own contribution, with Gaspar Kot, on comparative access to private-sector information in South Africa and Poland.  Publisher Springer has now authorized free public download, via SSRN, of the book's Introduction, from the co-editors, Piotr Szwedo, Jagiellonian University, Poland; Dai Tamada, Kobe University, Japan, and me.

Please enjoy our Introduction to Law and Development: Balancing Principles and Values.

Scharf laments executive disrespect for courts in immigration enforcement

My friend and colleague Irene Scharf has written for the Human Rights At Home blog on "mid-case deportations" by Immigration and Customs Enforcement.  Professor Scharf is expert in immigration law, which I know next to nothing about.  But Professor Scharf raises the alarm about worrisome incidents of executive defiance of the courts, implicating the separation of powers and raising questions about the very rule of law in America today.

Responding to a Boston Globe editorial (pay wall) at the end of February, Professor Scharf wrote on March 20:

While I of course deplore the acts these crimes involved [subject of charges against immigration detainees], as an immigration lawyer and advocate I am deeply disturbed by ICE’s systematic and ongoing attacks on the Massachusetts judicial system.  The Globe editors referred to their hope that the federal courts will address and contain these actions. However, given what we’ve seen recently, it is unclear whether the federal government, acting through ICE, would even abide by a federal ruling. To me, that is the most alarming issue behind these ICE moves.

She quoted respected Seventh Circuit Judge Easterbrook in a recent opinion (Justia), "We have never before encountered defiance of a remand order, and we hope never to see it again.... [I]t should not be necessary to remind the Board [of Immigration Appeals], all of whose members are lawyers, that the 'judicial Power' under Article III of the Constitution is one to make conclusive decisions, not subject to disapproval or revision by another branch of government."

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

 

Report from Quarantine: Week 1

Since (and because) I returned from Africa via Jo'burg and Heathrow, my wife and I have been in self-quarantine.  Here is my self-absorbed, self-quarantine report, week 1.

What I'm Reading

Moshin Hamid, Exit West (2017) (Amazon).  Hamid is best known for his 2007 novel, The Reluctant Fundamentalist (Amazon), basis of the 2012 film.  This book offers an intimate character study of a couple who flees civil war in an anonymous homeland, as they experience displacement amid western cultures. I care for neither romances nor narrative demagoguery, but this book, colored with a shade of magic realism, is more complex than the former and more crafty than the latter. Thoroughly compelling recommendation from Dean Peltz-Steele.

Charles Serio, The Legend of the Blue Cloud (2019) (Amazon).  Shout out to my uncle, who authored this book.  London based, Charles Serio is an accomplished playwright and communication consultant.  His debut novel was the quasi-autobiographical The Lies I've Told (Amazon).  In this book, he fully embraces fiction, spinning the yarn of young adults in the American West who must combat an evil force that seeks to unleash itself on our earthly realm. The book might best be billed as a YA thriller, though its portrayal of the antagonist has a mature edge. Better than I could write, it's sometimes rough around the edges, but I was engaged to the end to find out what would happen to my heroes.

James D. Zirin, Plaintiff in Chief: A Portrait of Donald Trump in 3,500 Lawsuits (2019) (Amazon).  I started planning my Trump Litigation Seminar for fall 2020 before I knew this book was coming out.  My goal was to use Trump case stories as a vehicle to teach tort law and litigation skills.  Now I plan to assign this book, too, which adds a rich policy dimension to the subject.  What Zirin illustrates is frightening:  You be the judge of the President; what I find frightening is the sorry state of our justice system, for its vulnerability to exploitation by the ruthless.

Book of Judges (Bible Study Tools).  In my on-again-off-again flight from Africa, I admit, I lost the thread of my church's yearlong Bible-reading study.  But let's be honest, who hasn't lost the thread in Numbers?  I was back in the saddle for Joshua, and now, in Judges, Deborah has summoned Barak to the Palm.  No spoilers!

What I'm Watching

Toy Story 4 (2019) (IMDb).  It would have been hard to top Toy Story 3, and 4 does not.  That said, 4 is a well worthwhile frolic and welcome opportunity to see what became of our beloved characters after Andy.  Key and Peele are delightful additions to the cast as Ducky and Bunny, and Keanu Reeves is downright brilliant as Duke Caboom.  Yes, we Can-ada!

Star Trek: Picard s1 (2020) (CBS trailer, IMDb).  This worthy new entry in the history of the franchise shows Star Trek to be in good hands at CBS.  Patrick Stewart said he would not appear again as Jean-Luc Picard after Nemesis.  But even he could not resist the siren call of the pen of Akiva Goldsman and Michael Chabon, whose writing is inspired.  Make it so.

Avenue 5 s1 (2020) (HBO trailer, IMDb).  Not every joke lands, but those that do more than make up the difference.  Hugh Laurie is characteristically fabulous.  And I adore Nikki Amuka-Bird, who, as Rav Mulcair, steals every short scene she's in.  Fly safe, fly true.

Letterkenny s6 (2018) (IMDb).  I had tickets to the live show in Portland, Maine, in March: postponed indefinitely for coronavirus.  So I slowed my viewing to savor seasons 6 and 7.  Pitter-patter.

What I'm Eating

Crepelicious, Barrington, RI, USA.  A scrumptious ham, egg, and cheese crepe like this one could be yours for curbside pickup from locally owned Crepelicious.  Please, if you are in a position to do so, support your local restaurants and retail!

Whole Foods Market.  Guilty as charged.  In my defense, we're not breaking quarantine to go to the grocery store, which seems to me the weak link in the whole flatten-the-curve effort.

What I'm Drinking

Jamestown Coffee (Facebook).  Made in Ghana, fruit of my recent travels.  Smooth and tasty.

Highclere Castle Gin.  You watched the TV show and the movie; now try the gin.  A smooth London dry with a hint of lavender, it's made with botanicals from Highclere Garden and the imprimatur of real-life Lord and Lady Carnarvon.

What I'm Hoarding

We just received an aid package from my sister- and brother-in-law in Atlanta, where, apparently, this stuff grows on trees.  Before you get any ideas: My house is protected by Smith & Wesson.

Multidisciplinary 'Law and Development' book tackles hard problems from principled perspectives

[UPDATE, March 31, 2020: The Introduction to Law and Development is now available for free download from Springer, via SSRN.]

I am thrilled to announce the publication of Law and Development: Balancing Principles and Values, from Springer, a publication in the Kobe University Monograph Series in Social Science Research (flyer). While I was privileged to serve as a contributor and co-editor, with Professor Dai Tamada (law site), of Kobe University in Japan, this book has been a project of passion for our lead editor, my inspiring colleague and friend, Professor Piotr Szwedo. On the law faculty of the Jagiellonian University (UJ) in Poland, Professor Szwedo serves as head of the OKSPO Center for Foreign Law Schools and co-director of UJ law programs with the Columbus School of Law at The Catholic University of America, and the Université d’Orléans.

Born of an international conference organized by Professor Szwedo at UJ, this ambitious multidisciplinary collection examines the problem of "development" across the world especially from perspectives informed by morality and ethics. Here is the jacket précis:

This book examines the concept of ‘development’ from alternative perspectives and analyzes how different approaches influence law. ‘Sustainable development’ focuses on balancing economic progress, environmental protection, individual rights, and collective interests. It requires a holistic approach to human beings in their individual and social dimensions, which can be seen as a reference to ‘integral human development’ – a concept found in ethics. ‘Development’ can be considered as a value or a goal. But it also has a normative dimension influencing lawmaking and legal application; it is a rule of interpretation, which harmonizes the application of conflicting norms, and which is often based on the ethical and anthropological assumptions of the decision maker. This research examines how different approaches to ‘development’ and their impact on law can coexist in pluralistic and multicultural societies, and how to evaluate their legitimacy, analyzing the problem from an overarching theoretical perspective. It also discusses case studies stemming from different branches of law.

Prof. Szwedo

Prof. Tamada

In organizing the book's 13 contributed chapters, we envisioned and executed on four threads of approach: (1) conceptualizing development, (2) financing development, (3) development and society, and (4) applied sustainable development.  Scholars, lawyers, and scientists who approach development from diverse professional, geographic, and experiential perspectives all will find compelling inroads in this volume, which ranges from the highest echelons of philosophical thinking about the human condition to the most earthbound problems of how many fish swim in the sea.  With DOI links, here are the contents and contributors:

1. “Law & Development” in the Light of Philosophy of (Legal) History, by Tomáš Gábriš, Faculty of Law, Comenius University in Bratislava, Slovak Republic.
2. Populorum Progressio: Development and Law?, by Christine Mengès-Le Pape, University Toulouse, France.
3. Luigi Sturzo’s Socio-economic Development Theory and the Case of Italy: No Prophet in His Homeland, by Flavio Felice, University of Molise, Campobasso, Italy; and Luca Sandonà,University of Trieste, Trieste, Italy.
4. International Financial Aid, Catholic Social Doctrine and Sustainable Integral Human Development, by George Garvey, The Catholic University of America, Washington, D.C., USA.
5. Common but Differentiated Responsibilities for Developed and Developing States: A South African Perspective, by Zuzana Selementová, LL.M. (Cape Town), Valouch, and Attorneys-at-Law, Prague, Czech Republic.
6. Must Investments Contribute to the Development of the Host State? The Salini Test Scrutinised, by Dai Tamada, Graduate School of Law, Kobe University, Japan.
7. Water: The Common Heritage of Mankind?, by Franck Duhautoy, University of Warsaw, Centre of French Civilisation, Poland.
8. Private-Sector Transparency as Development Imperative: An African Inspiration, by Richard Peltz-Steele, University of Massachusetts, North Dartmouth, USA; and Gaspar Kot, Jagiellonian University, Kraków, Poland.
9. Between Economic Development and Human Rights: Balancing E-Commerce and Adult Content Filtering, by Adam Szafrański, Faculty of Law and Administration, University of Warsaw, Poland; Piotr Szwedo, Faculty of Law and Administration, Jagiellonian University, Kraków, Poland; and Małgorzata Klein, Faculty of Geography and Regional Studies, University of Warsaw, Poland.
10. A Comparative Law Approach to the Notion of Sustainable Development: An Example from Urban Planning Law, by Ermanno Calzolaio, University of Macerata, Italy.
11. Challenges Concerning ‘Development’: A Case-Study on Subsistence and Small-Scale Fisheries in South Africa, by Jan Glazewski, Institute of Marine & Environmental Law, University of Cape Town, South Africa.
12. Economic and Social Development in the Republic of South Africa’s New Model of Mineral Rights: Balancing Private Ownership, Community Rights, and Sovereignty, by Wojciech Bańczyk, Jagiellonian University, Kraków, Poland.
13. Sustainable Development as a New Trade Usage in International Sale of Goods Contracts, by Daniel Zatorski, Faculty of Law and Administration, Jagiellonian University, Kraków, Poland.

An introduction from the editors ties the work together.  Previews (with abstracts) of each chapter can be viewed from the book's home page at Springer (or from the DOI links above), where also a flyer about the book can be downloaded.  Working on this project has been a tremendous education for me on law and development.  My congratulations and deep gratitude extend to Professor Szwedo, Professor Tamada, and every one of the contributing authors.

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.