Noteworthy recent publications about information management and accessibility
E.M. Bauer, A Conflict of Two Freedoms: The Freedom of Information Act Disclosure of Confidential Settlements in the #MeToo Era, 58 San Diego L. Rev. 209 (2021)
Using the example of Detroit's disgraced former mayor Kwame Kilpatrick, whose crimes came to light after reporters used state FOI requests to obtain text messages with his mistress, law student E.M. Bauer discusses why it is important for federal FOIA to be interpreted to afford the public access to settlement agreements in sexual misconduct cases involving official misconduct by federal employees. Bauer concludes that "when the opportunity exists for a high-level federal official to confidentially settle sexual misconduct claims and insulate that claim from public oversight, the official is incentivized to do just that in order to keep his or her official position."
Jane G. Farrell, The Death Knell That Wasn't: Public Access to Federal Contractor Employment Data after Argus Leader Media, 42 Berkeley J. Emp. & Lab. L. 423 (2021)
The Supreme Court's 2019 decision in Argus Leader sided with retailers claiming that the amount of federal food stamp dollars they receive are a "trade secret" exempt from disclosure under FOIA. The ruling was widely greeted as a defeat for transparency, in particular for the operations of private contractors who perform governmental functions under federal contracts. But UCLA law professor Jane G. Farrell argues that the reality is more subtle. Because the request in Argus Leader was governed by pre-2016 FOIA law, the requester did not have the benefit of more recent changes clarifying that agencies should make judgment calls on the side of disclosure whenever possible. The Argus Leader ruling does not disturb the pro-disclosure standards of the 2016 FOIA Improvement Act, which Farrell argues will produce the same net effect as pre-Argus Leader caselaw, requiring disclosure of information about government dealings with private industry unless the balance of harms tips heavily in favor of nondisclosure.
James Naughton, The School FOIA Project: Uncovering Racial Disparities in School Discipline and How to Respond, 52 Loy. U. Chi. L.J. 1045 (2020)
In this article for Loyola Chicago Law Journal, attorney James Naughton demonstrates the power of state Freedom of Information Act requests to obtain demographic data about discipline in public schools. Naughton suggests ways to engage students in auditing the disciplinary statistics from their own schools and districts, with a focus on documenting inequities in the administration of "school pushout" policies that are known to disproportionately affect students of color and special-ed students.
Rachael L. Jones & Virginia Hamrick, Reporting on NDAs and #MeToo: How the Press May Obtain Standing to Challenge NDAs, 35 Comm. Law. 7 (2019)
Nondisclosure agreements have become increasingly commonplace in both public and private employment, whether pre-employment or to resolve claims. But NDAs became a flashpoint as a result of the #MeToo sexual harassment awareness movement, which spotlighted the extent to which the public is kept in the dark about potentially dangerous workplace predators by contracts of silence. In this analysis for the ABA's Communications Lawyer, Brechner Center researchers Rachael L. Jones and Virginia Hamrick explain how news organizations aggrieved by NDAs that cut off their access to information, particularly from current or former government employees, might establish legal standing to challenge the legality of the agreements, even when the would-be speakers are too intimidated to do so.
Drew Ruzanski, The Open Public Records Act: The People's Bastion against Police Misconduct in New Jersey, 16 Rutgers J. L. & Pub. Pol'y 83 (2019)
With police misconduct under unprecedented public scrutiny, watchdogs and journalists are finding that state open records laws do not always reliably entitle them to see the complaint files of law enforcement officers. Citing systemic management problems within police forces such as those disclosed in Ferguson, Missouri, after police fatally shot teenager Michael Brown in 2014, attorney Drew Ruzanski makes the case that transparency would produce both better governance of police and more public confidence in that governance. The article in Rutgers Journal of Law and Public Policy analyzes how New Jersey courts have given police some leeway to withhold dash-cam footage from requests under the Open Public Records Act, and the incentives that legally validated secrecy creates.