April 19, 2014

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A Reivew of Oral Arguments in McBurney v. Young: State FOIA and State Rights

Yesterday, I attended oral arguments in the Supreme Court case of McBurney v. Young, which I have previously written about. The case involves two different petitioners who were denied access to state records under a Virginia “freedom of information” law that limits such access to Virginia residents only. McBurney is a former Virginia resident who wanted some records related to an ongoing child support dispute. Hurlbert is a government information aggregator and reseller.

At issue is whether this preferential treatment is constitutional under the Constitution’s “Privileges and Immunities” clause, as well as the “Dormant Commerce Clause.” In my previous post, I discussed these doctrines in more detail, but I devoted most of my time to describing the privileges and immunities argument — essentially that citizens must receive equal treatment across all states when it comes to “fundamental rights.” While waiting for arguments to begin, I was chatting with another person in the audience. I asked him whether he thought that the argument was going to focus significantly on states’ rights, and he said he expected more time to be devoted to the question of whether or not the rights in question were “fundamental.” It turned out that, with the boisterous support of Justice Scalia, states’ rights were the order of the day.

[Update: Transcript of the arguments is available here]

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Supreme Court to Hear State Freedom of Information Act Case “McBurney v. Young”

On Friday, the Supreme Court granted certiorari to McBurney v. Young. This case formally concerns the “Privileges and Immunities Clause” of the Constitution. It raises questions about what access rights citizens have to government records and about who counts as a journalist. Oral argument will likely be scheduled for 2013.

Mark McBurney is a citizen of Rhode Island who requested public records from the Commonwealth of Virginia. His request was denied because the Virginia Freedom of Information Act (VFOIA) prohibits requests that are made by citizens of other states. About seven other states have similar limitations. McBurney appealed to the 4th Circuit, claiming that he should have the same rights of access as Virginians under the US Constitution’s guarantee that, “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” McBurney lost in the 4th Circuit earlier this year. However, in 2006, Matthew Lee (a citizen of New York seeking records from Delaware) had won a similar case in the 3rd Circuit. The Supreme Court is now tasked with reconciling this split.
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Opening Government: On the Limits of FOIA and the Metaphor of Transparency

At a recent symposium (“Piracy and the Politics of Policing: Legislating and Enforcing Copyright Law”) sponsored by the Cardozo Arts and Entertainment Law Journal, I was invited to respond to an excellent paper by David Levine on secrecy, national security, and the denial of public access to documents from the Anti-Counterfeiting Trade Agreement (ACTA) negotiation process. Dave argues in his paper for an amendment to the federal Freedom of Information Act (FOIA) that would create a qualified public right to “foreign relations” national security information. Had such an amendment been in place at the time of the ACTA negotiations, the Office of the United States Trade Representative would not have been able to invoke FOIA’s national security exemption—a dubious invocation, at best—to deny public requests for documents that were made under FOIA by public interest groups like Public Knowledge.

Responding to Dave’s article got me thinking about the use of “transparency” as a metaphor for openness in government, the use of FOIA as a mechanism for ensuring such openness, and the ways in which proponents of greater public involvement in policy-making (among whom I count myself) may disserve the cause by focusing too single-mindedly on access to information and the right to know, both of which are operationalized through FOIA. In my response to Dave’s article, a relatively short piece that I’ve posted to SSRN, I try to articulate the limits of FOIA as a mechanism for open government:
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The New Ambiguity of "Open Government"

David Robinson and I have just released a draft paper—The New Ambiguity of “Open Government”—that describes, and tries to help solve, a key problem in recent discussions around online transparency. As the paper explains, the phrase “open government” has become ambiguous in a way that makes life harder for both advocates and policymakers, by combining the politics of transparency with the technologies of open data. We propose using new terminology that is politically neutral: the word adaptable to describe desirable features of data (and the word inert to describe their absence), separately from descriptions of the governments that use these technologies.

Clearer language will serve everyone well, and we hope this paper will spark a conversation among those who focus on civic transparency and innovation. Thanks to Justin Grimes and Josh Tauberer, for their helpful insight and discussions as we drafted this paper.

Download the full paper here.

Abstract:

“Open government” used to carry a hard political edge: it referred to politically sensitive disclosures of government information. The phrase was first used in the 1950s, in the debates leading up to passage of the Freedom of Information Act. But over the last few years, that traditional meaning has blurred, and has shifted toward technology.

Open technologies involve sharing data over the Internet, and all kinds of governments can use them, for all kinds of reasons. Recent public policies have stretched the label “open government” to reach any public sector use of these technologies. Thus, “open government data” might refer to data that makes the government as a whole more open (that is, more transparent), but might equally well refer to politically neutral public sector disclosures that are easy to reuse, but that may have nothing to do with public accountability. Today a regime can call itself “open” if it builds the right kind of web site—even if it does not become more accountable or transparent. This shift in vocabulary makes it harder for policymakers and activists to articulate clear priorities and make cogent demands.

This essay proposes a more useful way for participants on all sides to frame the debate: We separate the politics of open government from the technologies of open data. Technology can make public information more adaptable, empowering third parties to contribute in exciting new ways across many aspects of civic life. But technological enhancements will not resolve debates about the best priorities for civic life, and enhancements to government services are no substitute for public accountability.

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What We Lose if We Lose Data.gov

In its latest 2011 budget proposal, Congress makes deep cuts to the Electronic Government Fund. This fund supports the continued development and upkeep of several key open government websites, including Data.gov, USASpending.gov and the IT Dashboard. An earlier proposal would have cut the funding from $34 million to $2 million this year, although the current proposal would allocate $17 million to the fund.

Reports say that major cuts to the e-government fund would force OMB to shut down these transparency sites. This would strike a significant blow to the open government movement, and I think it’s important to emphasize exactly why shuttering a site like Data.gov would be so detrimental to transparency.

On its face, Data.gov is a useful catalog. It helps people find the datasets that government has made available to the public. But the catalog is really a convenience that doesn’t necessarily need to be provided by the government itself. Since the vast majority of datasets are hosted on individual agency servers—not directly by Data.gov—private developers could potentially replicate the catalog with only a small amount of effort. So even if Data.gov goes offline, nearly all of the data still exist online, and a private developer could go rebuild a version of the catalog, maybe with even better features and interfaces.

But Data.gov also plays a crucial behind the scenes role, setting standards for open data and helping individual departments and agencies live up to those standards. Data.gov establishes a standard, cross-agency process for publishing raw datasets. The program gives agencies clear guidance on the mechanics and requirements for releasing each new dataset online.

There’s a Data.gov manual that formally documents and teaches this process. Each agency has a lead Data.gov point-of-contact, who’s responsible for identifying publishable datasets and for ensuring that when data is published, it meets information quality guidelines. Each dataset needs to be published with a well-defined set of common metadata fields, so that it can be organized and searched. Moreover, thanks to Data.gov, all the data is funneled through at least five stages of intermediate review—including national security and privacy reviews—before final approval and publication. That process isn’t quick, but it does help ensure that key goals are satisfied.

When agency staff have data they want to publish, they use a special part of the Data.gov website, which outside users never see, called the Data Management System (DMS). This back-end administrative interface allows agency points-of-contact to efficiently coordinate publishing activities agency-wide, and it gives individual data stewards a way to easily upload, view and maintain their own datasets.

My main concern is that this invaluable but underappreciated infrastructure will be lost when IT systems are de-funded. The individual roles and responsibilities, the informal norms and pressures, and perhaps even the tacit authority to put new datasets online would likely also disappear. The loss of structure would probably mean that sharply reduced amounts of data will be put online in the future. The datasets that do get published in an ad hoc way would likely lack the uniformity and quality that the current process creates.

Releasing a new dataset online is already a difficult task for many agencies. While the current standards and processes may be far from perfect, Data.gov provides agencies with a firm footing on which they can base their transparency efforts. I don’t know how much funding is necessary to maintain these critical back-end processes, but whatever Congress decides, it should budget sufficient funds—and direct that they be used—to preserve these critically important tools.

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Assessing PACER's Access Barriers

The U.S. Courts recently conducted a year-long assessment of their Electronic Public Access program which included a survey of PACER users. While the results of the assessment haven’t been formally published, the Third Branch Newsletter has an interview with Bankruptcy Judge J. Rich Leonard that discusses a few high-level findings of the survey. Judge Leonard has been heavily involved in shaping the evolution of PACER since its inception twenty years ago and continues to lead today.

The survey covered a wide range of PACER users—“the courts, the media, litigants, attorneys, researchers, and bulk data collectors”—and Judge Leonard claims they found “a remarkably high level of satisfaction”: around 80% of those surveyed were “satisfied” or “very satisfied” with the service.

If we compare public access before we had PACER to where we are now, there is clearly much success to celebrate. But the key question is not only whether current users are satisfied with the service but also whether PACER is reaching its entire audience of potential users. Are there artificial obstacles preventing potential PACER users—who admittedly would be difficult to poll—from using the service? The satisfaction statistic may be fine at face value, assuming that a representative sample of users were polled, but it could be misleading if it’s being used to gauge the overall success of PACER as a public access system.

One indicator of obstacles may be another statistic cited by Judge Leonard: “about 45% of PACER users also use CM/ECF,” the Courts’ electronic case management and filing system. To put it another way, nearly half of all PACER users are currently attorneys who practice federal law.

That number seems inordinately high to me and suggests that significant barriers to public access may exist. In particular, account registration requires all users to submit a valid credit card for billing (or alternatively a valid home address to receive log-in credentials and billing statements by mail.) Even if users’ credit cards are never charged, this registration hurdle may already turn away many potential PACER users at the door.

The other barrier is obviously the cost itself. With a few exceptions, users are forced to pay a fee for each document they download, at a metered rate of eight-cents per page. Judge Leonard asserts that “surprisingly, cost ranked way down” in the survey and that “most people thought they paid a fair price for what they got.”

But this doesn’t necessarily imply that cost isn’t a major impediment to access. It may just be that those surveyed—primarily lawyers—simply pass the cost of using PACER down to their clients and never bear the cost themselves. For the rest of PACER users who don’t have that luxury, the high cost of access can completely rule out certain kinds of legal research, or cause users to significantly ration and monitor their usage (as is the case even in the vast majority of our nation’s law libraries), or wholly deter users from ever using the service.

Judge Leonard rightly recognizes that it’s Congress that has authorized the collection of user fees, rather than using general taxpayer money, to fund the electronic public access program. But I wish the Courts would at least acknowledge that moving away from a fee-based model, to a system funded by general appropriations, would strengthen our judicial process and get us closer to securing each citizen’s right to equal protection under the law.

Rather than downplaying the barriers to public access, the Courts should work with Congress to establish a way forward to support a public access system that is truly open. They should study and report on the extent to which Congress already funds PACER indirectly, through Executive and Legislative branch PACER fee payments to the Judiciary, and re-appropriate those funds directly. If there is a funding shortfall, and I assume there will be, they should study the various options for closing that gap, such as additional direct appropriations or a slight increase in certain filing fees.

With our other two branches of government making great strides in openness and transparency with the help of technology, the Courts similarly needs to transition away from a one-size-fits-all approach to information dissemination. Public access to the courts will be fundamentally transformed by a vigorous culture of civic innovation around federal court documents, and this will only happen if the Courts confront today’s access barriers head-on and break them down.

(Thanks to Daniel Schuman for pointing me to the original article.)

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Release Government Data, Early and Often

One of the key axioms of modern open government is that all public data should be published online in a raw but usable form. Usability in this case is aimed at software programmers. By making government datasets more usable, programmers are more likely to innovate in the civic sphere and build technologies, using the raw data, to enhance the relationships among citizens and with government.

The open government community has provided plenty of valuable guidance about what usability means for programmers. We proclaim that all datasets need to be: published in a format that is reasonably structured and machine-processable; well-documented; downloadable in bulk; authenticated using cryptographic digital signatures; version-controlled; permanent and citable; and the list goes on and on. These are all worthy principles to be sure, and all government datasets should strive to meet them.

But you’ll be hard-pressed to find any government datasets that exist with all of these principles pre-satisfied. While some are in better shape than others, most datasets would make programmers cringe. Data often only exist as informal working sets in proprietary Excel spreadsheets. Sometimes they are in structured databases, but schemas are undocumented, field values are ambiguous, and the semantics are only understood by the employee who created them. Datasets have errors and biases that are known but never explicitly corrected.

For a civil servant who is a data caretaker looking over the laundry list of publishing principles, there’s frequently a huge quality chasm between the dataset she owns and how people are asking to see it released. To her, publishing this data adequately just seems like a lot of extra work. The more attractive alternative is to put off the data publishing—it’s not in her job description or evaluations anyway—and move on to other work instead.

How can this chasm be bridged? A widely-adopted philosophy in software development and entrepreneurship would serve open government data well: release early and release often. And listen to your customers.

In the software development world, a working version of the product is pushed out as soon as possible even with known imperfections—an “alpha” release—so it can be subject to real use by early adopters. Early adopters can provide helpful feedback about what works, what’s broken, and what new features would be most useful to them. The software developers then iterate quickly. They incorporate the suggested fixes and features into their code and release an updated version of the product to their users. The virtuous cycle then starts again. Under this philosophy, software developers can be efficient about how to best improve their code where it matters, and users get software that works better and has more features they desire.

The “release early, release often” philosophy should be applied to government data. For the initial release, data caretakers should take the path of least resistance to get data out the door. This means publishing datasets in whatever format is most convenient, along with as much documentation as can reasonably be mustered. Documentation is especially important with an “alpha” dataset—proper warnings about its problems, instabilities and inductive limitations must be prominently displayed. (Of course, the usual privacy and legal caveats should also be applied.) Sometimes, the “alpha” release will be “good enough” for programmers to start their work, and this will minimize any superfluous work done by caretakers. This is the virtue of “release early.”

In other cases, programmers will need assistance using the dataset and will notice problem spots with the initial release. The dataset might be confusing, contain errors or be difficult to work with. A tight feedback mechanism allows the programmer to get help quickly and continue to innovate, while the data caretaker can fix problems based on real use cases and add clarifying metadata into an updated version of the dataset. Data quality and usability increases for those working with the dataset, both in and outside of government. That’s the virtue of “release often.”

And here is the big opportunity for government: no platform currently exists to engage the prime audience for government data—software programmers. Without a tight feedback mechanism, the virtuous cycle of mutual benefit cannot exist. Government is missing its best opportunity to improve data quality by neglecting useful feedback from programmers who are actually tinkering with the datasets. Society is losing out on potentially game-changing civic innovations, which otherwise would have been built if data were more usable and the uncertainty of failure reduced.

A terrific start in turning the corner would be for government to adopt an issue-tracking system for its datasets. As a public venue, it would help ensure that data caretakers are prompt in addressing developer concerns. It would also allow caretakers to organize feedback in a formal way. Such platforms are commonplace in any successful software development venture. The same needs to be true for government data in order to drive rapid quality improvements and increase developer engagement.

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Introducing RECAP: Turning PACER Around

With today’s technologies, government transparency means much more than the chance to read one document at a time. Citizens today expect to be able to download comprehensive government datasets that are machine-processable, open and free. Unfortunately, government is much slower than industry when it comes to adopting new technologies. In recent years, private efforts have helped push government, the legislative and executive branches in particular, toward greater transparency. Thus far, the judiciary has seen relatively little action.

Today, we are excited to announce the public beta release of RECAP, a tool that will help bring an unprecedented level of transparency to the U.S. federal court system. RECAP is a plug-in for the Firefox web browser that makes it easier for users to share documents they have purchased from PACER, the court’s pay-to-play access system. With the plug-in installed, users still have to pay each time they use PACER, but whenever they do retrieve a PACER document, RECAP automatically and effortlessly donates a copy of that document to a public repository hosted at the Internet Archive. The documents in this repository are, in turn, shared with other RECAP users, who will be notified whenever documents they are looking for can be downloaded from the free public repository. RECAP helps users exercise their rights under copyright law, which expressly places government works in the public domain. It also helps users advance the public good by contributing to an extensive and freely available archive of public court documents.

The project’s website, https://www.recapthelaw.org, has all of the details– how to install RECAP, a screencast of the plug-in in action, more discussion of why this issue matters, and a host of other goodies.

The repository already has over one million documents available for free download. Together, with the help of RECAP users, we can recapture truly public access to the court proceedings that give our laws their practical meaning.