The Public’s Right to Know: HA! How Courts and Federal Agencies Stonewall on Citizen Access to Government Information

By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans.

How can we get our government to work for us if we don’t know what they’re up to?  Last  week, a federal court addressed one aspect of the the problem of  ‘public’s right to know’ – to get access to information – when it decided along rather miserly grounds to uphold the current means of financing the PACER system, whereby the government can charge 10 cents per page to download  court documents.

Now, the documents available include almost every brief, document, or legal ruling available, according to Ars Technica, Downloading public court documents costs a dime a page—is that legal?

So, what’s to complain about?

As Ars Technica reports:

In 2016, three nonprofit organizations, the National Veterans Legal Services Program, the National Consumer Law Center, and the Alliance for Justice sued the federal courts—in federal court. The class action lawsuit, filed on behalf of all fee-paying PACER users, argued that these hefty charges were illegal. Federal law allows the courts to charge fees “only to the extent necessary” to provide public access to information. Over the last 15 years, the cost of storage and bandwidth has plunged. Yet PACER’s fees have actually risen from 7 cents to 10 cents. These fees have raised far more money than it costs to run the PACER system: $146 million in 2016 alone.

The ruling reminded me of the saying attributed to Analtole France: “The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.”

So I ask, dear readers, how many clients of white shoe firms can’t foot these fees for copying documents? As opposed to clients of public interest firms, journalists, scholars, and even curious members of the public?

I don’t even have to go so far today in this post to argue these costs should be free. But surely, they don’t have to be a profit center either.

Free Flow of Information 

My views on the free flow of information were formed quite a while ago, long before Sir Tim Berners-Lee invented the world wide web,  when I was a graduate student tussling with the government over granting me access to documents in the National Arcihives or Presidential Library system. Places where one shouldn’t have difficulty examining government records. How naive was I!

I wrote about budget and trade policy. Now you. dear readers, understand these are deadly serious topics, and people are harmed by how one sets the rules of the political economy game. I didn’t write about more obviously controversial topics, such as US government policy in the Congo during the Kennedy administration, as did my good friend David Gibbs in The Political Economy of Third World Intervention: Mines, Money, and U.S. Policy in the Congo Crisis. David had to file Freedom of Information (FOIA ) requests to get information, and I watched the government toy with him for sport.

You see, the government in theory has to give up at least some of the documents. But it can do so in its own sweet time – after deciding how long it will take to process the documents and charging “reasonable” fees to search for them, whether it coughs up any papers or not.

Now, if you think this problem only bedevils grad students and investigative journalists, you’d be wrong.

The feds don’t have to be blatant and deny outright access to all documents. It has more subtle means, those of attrition. Take the Securities and Exchange Commission (SEC), for example. How long do you think it takes, at present, tfor the agency o process a FOIA  request?

Try at least three years. Now wags may say the SEC should pay me to look at their documents (There’s a very good reason I no longer concentrate exclusively on securities law.) All kidding aside, SEC filings are rich sources of corporate information –  the mundane,  the problematic.

One of the friends of the blog in August of 2019 received a response to a request for documents made in August 2017, and was told he would have to wait another twelve months or more before he would get any documents – and that only if he affirmed he “would like to stay on our chronological list for eventual processing.” Needless to say, I doubt if there is a statutory basis for the SEC to impose any such requirement. I’ve appended the document at the end of this post. This is what the SEC considers to be a “reasonable” time to comply with an ordinary FOIA requests.

SEC-FOIA-Follow-up-Letter

*****

UK System Better?

Now, we all know there are huge problems with the UK’s system of information management – starting with the Official Secrets Act. Which lands you in jail (or should I say gaol) if you disclose any official document.

But, in the UK, there s a regular schedule for disclosure of government documents – after a specified number of years, they are publicly available, and IIRC, there is a sliding scale of time that must pass before a document may be released (UK readers, please pipe up in comments.)

Not so in the US, I noticed a comment in passing in an excerpt from a recent book by Kathy Peiss,  Information Hunters,  in Crime Reads, about librarians soldiers, and spies banding together in World War Two Europe, that in the course of her research in the Library of Congress, Peiss  encountered “teletype rolls—still marked secret and requiring declassification.” The material remains unclassified, this when the war in Europe was over in 1945.

And that’s just government declassification. The Presidential Records Act (PRA) of 1978, which concerns records created by presidents or vice presidents after 20 January 1981, changed the legal ownership of the President’s official records from private to public. The legislation authorized a new statutory structure under which Presidents must manage their records. This legisslation was amended in 2014, to  tighten provisions on electronic records, banning sending electronic records through non-official accounts unless certain conditions are met.

As before the law change presidential records were considered personal, they later were donated to the government by a deed of gift. Some of these deeds – that of JFK, for example, were particularly restrictive –  meaning that even if the government elected to declassify a document, researchers weren’t home free until the documents were deemed able to be released under the deed of gift. IIRC correctly, in the JFK case, there was some language to the effect that the information couldn’t be used to injure, annoy, or harass anyone. Obviously, any controversial records would be caught up by that provision. Similar restrictions applied to papers donated by administration officials. The mandatory review process is complicated, and the archivists try to respond to researcher requests for release of documents snagged by various restrictions. But so entangled they do get.

Bottom line: US government documents are by no means lined up and waiting for eager researchers to plunge ahead with their research in official archives – even when they concern matters that transpired quite some time ago.

And even if no obstacles are placed in the way of their release, there are still those pesky copying fees to meet.

Which brings us full circle back to where we began: the latest federal court case.

 

 

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15 comments

  1. The Historian

    Remember when Obama put out that Executive Order for Open Government? That is what he was telling you. What he was telling us (I worked for the government at the time) was to lock down everything under some label such as “predecisional” or “sensitive”, including removing much of what was on our websites, to make anyone’s attempts at FOIA or actually getting governmental information extremely difficult.

    Reply
    1. Jerri-Lynn Scofield Post author

      We were in Larry Tribe’s constitutional law course together. I well remember a class session when I concluded he had no feel for nor interest in any of these information access issues, and was only engaging in mindless sloganeering: 1st Amendment good! I was by no means surprised years later at the disjunction between what he said and what he actually did.

      Reply
        1. Jerri-Lynn Scofield Post author

          The sad thing, I remember when he became President, academics lined up to lobby for better information policies. Alas, I knew he was not the man for that fight – nor, as you know, was he the man so many progressives thought he would be. You have no idea how frustrating it is to have seen through this guy for so many years!

          Reply
  2. lyman alpha blob

    You’d think that with all the Congresspeople patting themselves on the back for having “created jobs” all the time, perhaps they could spring for some temps to do some photocopying, or better yet creating pdf copies and forwarding via email.

    I wonder why they wouldn’t do that…

    Reply
  3. smoker

    Regarding the Presidential Records Act this comes to mind from 2001:

    Call to Action on Executive Order 13233

    A Message from President Steve Hensen

    On behalf of the Council and Executive Committee of the Society of American Archivists, I want to urge all archivists, whether SAA members or not, to communicate to their representatives in the House and Senate, their concern over the implications of Executive Order 13233, entitled “Further Implementation of the Presidential Records Act.” This order, far from being a “further implementation,” is more like a complete abnegation of the original 1978 Presidential Records Act. Links to the text of the orders and background information are provided below.

    The archival and public information implications aspects of this order are profound, being contrary to established archival principles and standards, being inconsistent with existing statutory law, and, most important, being at odds with the principles of open access to information upon which our country is founded.

    Lots of background at the link, with numerous links to other discussions.

    Reply
  4. Frank Little

    Depending on how much you use PACER you may not be charged $.10/page. That per-page charge is tabulated quarterly and if you have not gone over $30 in fees for the quarter the fee is waived.

    I don’t point this out to defend the current system at all. These should be free for all and not require the onerous process of setting up a PACER account, which includes having to enter a code they send you in the mail. Just thought I’d mention it because the cost discouraged me from even opening an account before I learned about that $30 cut off.

    https://www.uscourts.gov/services-forms/fees/electronic-public-access-fee-schedule

    Reply
      1. JCC

        Sounds good on paper, but I’m sure the Feds would come up with a way to prosecute anyone who posted such documents. Assange comes to mind.

        Reply
      2. Frank Little

        Your comment reminded me of something I knew about but should have posted: Court Listener from the Free Law Project. They have an archive called RECAP that allows people to search for cases and, if they have a PACER account, upload files downloaded from PACER to their archive. They have browser extensions for uploading documents, though I haven’t used those before. Coverage varies, so some cases may not be complete, but it’s certainly easier to search there than getting a PACER account, at least for non-lawyers who need to look up court records.

        https://www.courtlistener.com/recap/

        Reply
  5. Este Profani

    PACER is a service by the Administrative Office of the US Courts, an office established in 1939 as Roosevelt’s Plan B. AO is not part of any Court, per se, but led by a Chief Justice appointment, overseen by 27 Judicial Conference bosses. The JC was established to meet Prohibition’s demands. Left out of all this court-packing and revenue-ing was the ability to procure anything without the [Federal] GSA. The Federal Courts don’t even own their own court buildings.

    PACER is something that the Exe and Congress each really want, and Article III Courts have the least ability to protect their fiefdom. Yet…see a languishing HR-6714 [Sept 2018] that eliminates PACERS fees, intro’ed by a Republican. [Bipartisan inactivity, go figure.] — Stakes is high. The intellectual underpinning of the Judiciary could succumb to what Jacques Derrida [I think?] called “Archive Fever” at the hands of linguistic web-crawling. The Federal body of law being the sum of what is recorded by PACER plus what is absent, lost, or repressed. Every argument will reach something that cannot be found within PACER, something the origins of which there is only a trace. The unreproducible. What is acceptable to the Courts has become only what has already been demanded. A failure of logic. Systems crash at every court call.

    Reply
  6. Edward

    There is another court case, I believe, having to do with the Trump administration’s destruction of records of their deliberations. These records should go to the National Archives.

    Reply

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