Is the Freedom of Information Act outdated?
In May of 2015, part-time investigative reporter Brandon Smith filed an FOIA request with the Chicago Police Department for the release of dashcam video from the event of 17-year-old Laquan McDonald’s fatal shooting by police. At the time, police documents described that incident as one in which an officer, James Van Dyke, had acted in self-defense. Faced with a maniacal McDonald, high on PCP and lunging at the officer with a knife, Van Dyke had shot McDonald once in the chest.
The Chicago Police refused to release the video to Smith, and to at least 15 others who had requested it, as it was part of an ongoing investigation, the department said. Smith chose to challenge the ruling. In August, a judge ruled in his favor, mandating the department release the video.
On November 24th of 2015, a year and a month after McDonald’s death, two things happened: the department released the dashcam video and the state’s attorney charged Van Dyke with first-degree murder. The video showed quite a different story than the police reported.
It’s with this recent history in mind that Beth Noveck writes a critique of the FOIA in favor of a system of open governmental data. Her essay, Is Open Data the Death of FOIA? published last week in the Yale Law Journal.
In the piece, Noveck doesn’t go so far as to suggest the end of the FOIA — she concludes that the FOIA and open data can supplement each other — but she does suggest that the FOIA is a fossil of analog times and should be treated as such, and that open data is in practice and theory a preferable means for obtaining information.
Noveck is the brilliant cofounder and director of NYU Tandon’s GovLab, an open data and public policy organization that warrants the thorough following it has received in these here web pages. She served in the Obama administration as our country’s first Deputy Chief Technology Officer and as director of the White House Open Government Initiative. She is currently a visiting professor at Yale Law School.
“In the era of big data technologies, when information storage is cheap and plentiful, if the goal is to promote greater transparency, it is hard to imagine why we should continue to invest in the legal framework and its attendant practices for demanding data after the fact when, instead, we can build the platforms and policies to ensure proactive and prospective publication of government information in reusable formats online,” Noveck writes. “Notwithstanding frequent calls by Attorneys General for more rapid disclosure under FOIA, the largely paper-based process, whereby the seeker has to file a written request specifying the desired information, is inherently fraught with delays and backlogs.”
Speaking from my own experience with the FOIA, she’s right about this. It is labor intensive for the government to sift through thousands of documents, searching for an exact answer to your specific question. Also, they can (and do!) just lie if they want to and say nothing turned up. Switching to making governmental data open from the start would save a lot of time and labor on searches.
Noveck writes that it would also fundamentally change the nature of the relationship between media and state. Whereas the FOIA process feels a bit like a shell game between enemies, open data would foster a collaborative relationship, she writes.
“Even more important than the volume of raw information is the positioning of open data as a collaborative rather than an adversarial process. FOIA is contentious, giving rise to litigation when the government refuses a request and perversely reinforcing a culture of closed-door governing. Lawyers and specially trained FOIA officials acculturated in this cat-and-mouse process dominate the FOIA process.”
Academese aside, it’s not even clear this would be a preferable state of things. There are a lot of virtues in an adversarial press. Do we really want reporting to be a collaborative effort between the media and the state? The idea is premised on the notion that the state will be an open and honest actor. At the risk of making a circular argument, since I’ve only ever worked under and FOIA system of information, that seems a misguided premise. The FOIA is a fairly minor thing in the course of daily governance and has little impact on a reporter’s relationship with the powers that be.
A more realistic premise, and one which has been borne out in much of history, is that where there is power and money there is subterfuge, abuse, and, if we’re lucky, intrigue. Government is, for many ordinary people, the best way to get to be in charge of, if not own, power and money, and we shouldn’t expect the way we ask them for information to change that. In a government where the public votes on whether or not officials retain their jobs, there’s plenty of incentive for the government to hide the inevitable, if variable in scope, Bad Stuff. It’s the reporter’s job to find the Bad Stuff and tell people about it so that it doesn’t happen anymore. It’s unclear why that fundamental relationship should change into a collaborative effort without completely redefining the role of the press.
And then finally, the best stuff to request under FOIA is not data, but communication. That’s why so many elected officials illegally eschew their public emails for private email accounts for business they don’t want the press to be able to search though. But sometimes they are too ethically scrupulous to do that or just too lazy, and this is where reporters find some of the best material for stories.
Or take the case of Laquan McDonald, which is a good example of both the failures and promise of the FOIA. Were it not for a legal challenge and an unintimidated judge, that dashboard video would likely never have come out and there would have been no arrest of the officer involved in the shooting and no subsequent reform of the Chicago Police Department. Open data would not work in the McDonald case.
It could be argued that the police department would have to upload every dashcam video from every stop where someone is pulled over, and these videos could be watched by the public. Perhaps some metadata would be added to the videos to make them easier to search. But, when that footage is needed as evidence in an ongoing investigation, there really is a reason not to make it public. People, given just a little information, take stuff out of context, create the rest of the story in their heads, and react, sometimes aggressively and frequently foolishly. To prevent negative repercussions from that, it’s easy to see the benefit of keeping some materials involved in investigations private until the end of the investigation. So that would leave people with all the rest of the videos where nothing happens. Except that they’re able to watch their neighbors in some of the more embarrassing moments of their lives. It’s not obvious that’s an improvement, either.
At different parts of her essay, Noveck suggests that blending open data with the FOIA could result in a positive outcome. With this, I would imagine, few would argue. Non-sensitive data that could be posted automatically as it’s collected would save reporters and the government time and energy by going through what is a somewhat antiquated process. And Noveck notes that this data could be valuable for the private sector as well, offering a kind of public research arm for small businesses lacking the resources to conduct the research themselves. No argument there.
But the notion that we should cease investing in the legal resources necessary for the FOIA in favor of the resources needed to open up data is based on unrealistic premises of how government and people operate. This isn’t meant to be an antagonistic rebuttal to Noveck’s work, so much as a (hopefully) productive continuation of the interesting conversation her piece began.
It’s easy to imagine a world in which, starved for resources, the FOIA has shriveled up and the government is able to decide what data ought to be open and what data ought to be “misplaced.” That’s a world in which Laquan McDonald’s killer, who shot the 17 year old while he was walking away, and then, once he’d hit the ground unloaded several more shots into his body, gets off with shooting one shot in self-defense against a crazed, high teen attacking him with a knife. And rather than being arrested for murder, he’s able to continue to police the streets of Chicago. And rather than people protesting and forcing changes in the department, things just go on as they have.
And thus McDonald’s life, the end of which so many of us watched, becomes not a story we can empathize with and feel something about, but rather a single data point in one spreadsheet on a website housing spreadsheets: a forgotten number in a universe of data.