The MuckRock Notebook

Keeping them honest

Jun 10

Michael MorisyUncategorized 1 Comment

A common reason given by government agencies for denying freedom of information requests is that the information requested is confidential, or is proprietary, or bound by contracts to confidentiality. But is it? Edward Hammond said that too often, opacity and denial of information is the default position when it should be the other way around, and he offered a yardstick to help prove it. He’s kindly let us reprint his suggest:

A Modest Proposal:

After having filed what I guess are 2,000 open records requests in my 40 odd years of existence, one of the things that I am most often struck by (and annoyed by) are government institutions that go to the mat to prevent release of public domain information.

Again and again, I find myself denied information under FOI that is readily available from public sources OTHER THAN open records laws. In my kind of requests, it is generally hyper-exaggerated notions of intellectual property that are the problem.

Why is it that government agencies so often fight release of information that is already public?  Of course, there are frequent “our hands are tied” arguments; but these are usually exaggerated and can be negotiated around. No, it really seems to me to be most often a matter of resistance to FOI in general more than some particular odd provision in FOI law that exempts already public information.

Why couldn’t honesty be made a systematic metric of FOIA?  Isn’t it actually a potentially better measure than some others currently in use?

I suspect that like a lot of other people, I routinely file open records requests towards the beginning of researching an issue.  Sometimes, I answer my own question before I get a FOI response.

Unfortunately, the FOI response is often that the information I have found elsewhere is exempt from disclosure.  Then I find myself in the nonsensical position of being denied the very information I already know.

For example, my current round of this problem relates to Texas A&M University and some plant varieties that they think are valuable.  They are fighting to avoid telling me where these plant varieties come from because it is, allegedly, Texas A&M intellectual property.  But I already know the answer.  I know where they were collected, when, from whom, and how they got around the world to College Station, Texas. All of this was found in public documents – almost exclusively scientific publications.

Nevertheless, Texas A&M is ‘valiantly’ fighting on to stop me from knowing.

If it’s not plant varieties, then it’s some other issue.

So why can’t the FOI community turn this problem on its head?  Why not do honesty checks?  Systematically file FOI requests for already public information relating to a particular agency, and then evaluating that agency’s reply.  There would be a number of practical issues to work through in order to get comparable data; but I don’t see any intrinsic show stoppers.

I like having an “honesty” gauge too.  Every ethical person – on all sides – wants to be honest.  So where institutional dishonesty arises, I think FOI officers and others may very well be potential allies in fixing it.

Edward Hammond