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Tuesday, February 16, 2016

Disclose, disclose, disclose

Affirmative disclosure was the transparency promise of the Obama administration. Yet, many efforts, like data.gov and FOIAonline have met with mixed reviews. Sometimes agencies have a hard time figuring out what to publish that will be useful and sometimes the right data is published but in such a way that makes it hard for folks to find what they are looking for. Nonetheless, affirmative disclosure—publication of government information without waiting for a public request—still holds great (if often unrealized) promise. And, in fact, I think it can be the way to address the central problems posed by the volume and character of current commercial FOIA requesting practices, which I describe in my forthcoming article, and in my previous posts here, here, and here.

Let me explain why I think affirmative disclosure offers unique promise in this area. As it turns out, commercial requesters tend to request the same type of records over and over again. This is true both of regular commercial requesters and of information resellers. Let me give you a couple of examples.

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At FDA, here is a typical commercial requester, INC Research, and you can see the subject mater of its requests in the last column on the right. Over and over and over again, INC Research requests Form 483s and other inspection related records. Obviously, each record concerns a different facility and inspection that took place, but the type of record it requests is routine.

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Here is another great example. At FDA there is a group of commercial requesters who do nothing but request the FOIA logs themselves. JH Barr is one such requester, and you can see that all of its requests are simply for different time chunks of the FOIA logs. Incidentally, some evidence suggests that requesting the FOIA logs is merely a way of seeing what other people are requesting about you or your client. (This is also, of course, how I obtained information about who is requesting what.)

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In contrast to the commercial requesters at FDA, news media requests vary widely in subject matter. Here for example, is a list of requests from Bloomberg News, which ranges in subject matter from cybersecurity threats to correspondence between senior FDA officials to results of a survey.

Commercial requesters at other agencies are similar in their practices. At DLA, essentially all of the commercial requesters are asking for bid information regarding defense contracts, identified by solicitation number. And at SEC, lots of top requesters, including resellers, request entirely exhibits to required SEC filings.

Of course, not every commercial request is this routinized, but the large majority are. Given that commercial FOIA users have information needs that are very routine, one-by-one FOIA is a highly inefficient way of meeting those needs. Instead, I propose that agencies affirmatively disclose whole categories of records by publishing searchable, downloadable, indexed databases, which would guarantee equal access to the information for all and would obviate the need for this kind of request. By contrast, the example of the varied news media requests demonstrates the value of a one-by-one FOIA request model, which may well be the best way to serve journalists interests in reporting the news.

Increased use of affirmative disclosure in a targeted way would take the pressure off of FOIA and would improve government transparency in a host of ways. For the agencies, affirmative disclosure would certainly cost money, but it would save them from having to respond to thousands of individualized requests at the costs of potentially millions of dollars. This would have the secondary effect of potentially freeing up agency FOIA offices resources to service the requests that go to the heart of FOIA, potentially making FOIA faster and more useful for journalists and watchdog groups.

Second, it takes back a traditionally public function and eliminates a private subsidy. Once the records are published, pure information resellers who do nothing more than warehouse free or low cost federal records and sell them at a profit would no longer be able to trade in what should be public commodities.

In fact, the potential public and private benefits from affirmative disclosure reveal why government publication is legitimately for the public good. For private industry, it may even pose a benefit to the market by leveling the information playing field for companies and promoting competition by smaller businesses that may not have had the resources to access records through resellers. For the public at large, affirmative disclosure provides an opportunity for unanticipated public benefits. Researchers, news media, community groups, and concerned individuals may find uses for the data in the production of knowledge or citizen engagement. Once the agency has gone to the trouble of searching for, reviewing, and making ready to distribute these records, the public should reap the maximum possible benefit from the agency’s efforts.

While affirmative disclosure won’t and shouldn’t prevent all commercial requesting, nor does it necessarily address every concern that may arise about the practice, my data suggest that targeted interventions in that realm may alleviate the use of FOIA for purposes not within its core function.

Posted by Margaret Kwoka on February 16, 2016 at 10:39 AM | Permalink


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