Data Deserts and the Duty to Document

Abstract

Freedom-of-information laws speak aspirationally about furthering the public’s right to know. But in practice, there is no entitlement to information – only to documents. If the government fails to document essential performance metrics, FOI law provides no recourse. And government agencies have demonstrated a remarkable capacity for ignorance: There is no reliable data about how many prisoners are kept in solitary confinement, how frequently U.S. postal trucks crash, how often students assault teachers, and all manner of other information that well-managed agencies logically should track. This paper imagines what a “duty to document” might look like, requiring agencies not just to disclose the records they choose to create, but to create the high-value datasets that effective public oversight demands.