FOIA committee meets after firing of National Archivist

Yesterday, the Freedom of Information Act (FOIA) Advisory Committee, on which I am privileged to serve, held a public meeting, available on the YouTube channel of the National Archives and Records Administration (NARA). 

The meeting comprised routine status updates from working subcommittees. But arising as it did amid the Trump/Musk shake-up in federal government, the stream might have drawn more than the usual public interest. The President fired National Archivist Colleen Shogun three weeks ago (see also CBS News), apparently in violation of federal law and with a political logic that's hard to discern, as University of Maryland Professor Jason Baron explained recently in Washington Monthly.

The committee lost one member to the Musk "fork in the road" program; capable attorney Kevin Bell departed the Federal Energy Regulatory Commission. The President last month terminated the Open Government Federal Advisory Committee in the General Services Administration (GSA) (Government Executive).

I am all for eliminating government waste and inefficiency, but I'm worried that "fork in the road" only incentivized the departure from public service of the most talented people, who could get other jobs most readily. And I'm not sure I see the wisdom of terminating an advisory committee, which brings volunteer expertise from the private sector (or state academics, such as Baron, me, and others) to bear on federal government work at minimal cost to taxpayers.

The committee yesterday unanimously approved a motion of Frank LoMonte, CNN senior counsel, to ensure preservation of committee work, as required by the Federal Advisory Committee Act (FACA). He didn't say so explicitly, but the move seemed pretty well calculated as a hedge against possible termination of the committee's work.

Excellent public comment came from Alex Howard, Digital Democracy Project and former committee member. Logically he inquired, inter alia, about the impact of government "efficiency" cuts and website take-downs on FOIA. Certainly these questions are of great concern to everyone involved; Professor Margaret Kwoka said as much in response. The fact is, simply, I don't think anyone can yet apprehend that big picture.

Transparency never goes out of style

This autumn, I am privileged to serve as a new member of the Freedom of Information Act (FOIA) Advisory Committee, a U.S. federal entity constituted under the Federal Advisory Committee Act (FACA) and administered by the Office of Government Information Services (OGIS), within the National Archives and Records Administration (NARA).

If that alphabet soup has your head spinning, then you have some sense of what it's been like for me to get up to speed in this role. That said, I'm thrilled to have the opportunity and humbled by the expertise of the committee members and OGIS staff with whom I'm serving.

I'll have more to say in time, as we have accomplishments to report. Meanwhile, though, a bit of parody art. At a meeting yesterday of the Implementation Subcommittee, ace OGIS compliance officer and former journalist Kirsten B. Mitchell related an anecdote.

A youthful person had wondered aloud that Fresca is quite old, perhaps dating to the 1980s! And Mitchell said she felt compelled to note that it is even older. In fact, the niche-beloved Coca-Cola Co. soft drink dates to the same year the FOIA was signed into law: 1966. That modest revelation prompted me to generate the above art, based on a contemporary Fresca ad that capitalizes on the drink's age ("Delicious Never Goes Out of Style"). (Above art by RJ Peltz-Steele CC BY-NC-SA 4.0 with no claim to underlying work of Coca-Cola Co.)

The inaugural public meeting of the 2024-2026 FOIA Advisory Committee, at NARA in September, is posted on YouTube.

FOIA committee ponders access amid privatization

I had the great privilege last week to speak to the U.S. Freedom of Information Act (FOIA) Advisory Committee, working under the aegis of the Office of Government Information Services (OGIS) in the National Archives and Records Administration (NARA) on the subject of access to the private sector in the public interest.

The OPEN the Government Act of 2007 augmented FOIA to follow public records into the hands of government contractors.  But the federal FOIA's reach into the private sector remains extremely limited relative to other access-to-information (ATI) systems in the United States and the world.  U.S. states vary widely in approach; the vast majority of state open records acts reaches into the private sector upon some test of state delegation, whether public funding, function, or power.  The same approach predominates in Europe.

The lack of such a mechanism at the federal level in the United States has resulted in a marked deficit of accountability in privatization.  The problem is especially pronounced in areas in which civil rights are prone to abuse, such as privatized prison services, over which the FOIA Advisory Committee and Congress have expressed concern.  By executive order, President Biden is ending the federal outsourcing of incarceration.  But access policy questions remain in questions about the past, in waning contracts, and in persistent privatization in some states.

As I have written in recent years, and examined relative to ATI in the United States, Europe, and India, an emerging model of ATI in Africa advances a novel theory of private-sector access in the interest of human-rights accountability.  I was privileged to share this model, and the theory behind it, with the committee.  I thank the committee for its indulgence, especially OGIS Director Alina Semo for her leadership and Villanova Law Professor Tuan Samahon for his interest in my work now and in the past.