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Articles 1 - 30 of 40
Full-Text Articles in Law
Enhancing Public Access To Agency Law, Bernard Bell, Cary Coglianese, Michael Herz, Margaret Kwoka, Orly Lobel
Enhancing Public Access To Agency Law, Bernard Bell, Cary Coglianese, Michael Herz, Margaret Kwoka, Orly Lobel
Faculty Articles
A just, democratic society governed by the rule of law requires that the law be available, not hidden. This principle extends to legal materials produced by administrative agencies, all of which should be made widely accessible to the public. Federal agencies in the United States do disclose online many legal documents—sometimes voluntarily, sometimes in compliance with statutory requirements. But the scope and consistency of these disclosures leaves considerable room for improvement. After conducting a year-long study for the Administrative Conference of the United States, we identified seventeen possible statutory amendments that would improve proactive online disclosure of agency legal materials. …
Improving The Affirmative Disclosure Of Agency Legal Materials, Bernard W. Bell, Cary Coglianese, Michael E. Herz, Margaret B. Kwoka, Orly Lobel
Improving The Affirmative Disclosure Of Agency Legal Materials, Bernard W. Bell, Cary Coglianese, Michael E. Herz, Margaret B. Kwoka, Orly Lobel
Faculty Articles
It is axiomatic that in a democratic society the law must be broadly accessible. Administrative agencies produce a plethora of materials imposing legal obligations on commercial or individual actors in the private sector. Other materials bind the agencies themselves in ways that affect the rights or interests of private parties. Still other materials provide the public with information about how agencies interpret and apply the statutes and rules they administer, or how agencies seek to deploy their discretion or take other actions that can affect private individuals or organizations. This Article focuses on improving the public availability of all of …
To Meet Or Not To Meet, That Is The Question: An Analysis Of The Meeting Requirement Of The Arkansas Freedom Of Information Act, Jerry L. Canfield
To Meet Or Not To Meet, That Is The Question: An Analysis Of The Meeting Requirement Of The Arkansas Freedom Of Information Act, Jerry L. Canfield
Arkansas Law Notes
The Arkansas Freedom of Information Act (“FOIA”) of 1967 provides open public access to “all meetings, formal and informal, special or regular, of the governing bodies of all municipalities, counties, townships, and school districts and all boards, bureaus, commissions, or organizations of the State of Arkansas.” Through the years, FOIA’s open meetings provision has been amended as to executive sessions, to provide for recording of meetings, and to provide for meetings via electronic means in the event of a declared disaster emergency. However, the basic requirement that meetings of governing bodies be open to the public has remained unchanged since …
Transparency And The First, Mark Fenster
A Section-By-Section Analysis Of Maine's Freedom Of Access Act, Anne C. Lucey
A Section-By-Section Analysis Of Maine's Freedom Of Access Act, Anne C. Lucey
Maine Law Review
There seems to be no absolute freedom of information. Even President Lyndon B. Johnson's declaration made on July 4, 1966, as he signed the Freedom of Information Act (FOIA) into law, indicates the limitations accompanying most right-to-know laws from their inception. A delicate balance must be struck between the public's access to public business and the public interest, between the public's access and a person's right to privacy, and, at the federal level, between the public's access and national security. Maine also crafted a limited freedom of information law, the Freedom of Access Act ("FOAA" or "the Act"), seven years …
Transparency Deserts, Christina Koningisor
Transparency Deserts, Christina Koningisor
Northwestern University Law Review
Few contest the importance of a robust transparency regime in a democratic system of government. In the United States, the “crown jewel” of this regime is the Freedom of Information Act (FOIA). Yet despite widespread agreement about the importance of transparency in government, few are satisfied with FOIA. Since its enactment, the statute has engendered criticism from transparency advocates and critics alike for insufficiently serving the needs of both the public and the government. Legal scholars have widely documented these flaws in the federal public records law.
In contrast, scholars have paid comparatively little attention to transparency laws at the …
O’Neill, Oh O’Neill, Wherefore Art Thou O’Neill: Defining And Cementing The Requirements For Asserting Deliberative Process Privilege, Andrew Scott
Dickinson Law Review (2017-Present)
The government may invoke the deliberative process privilege to protect the communications of government officials involving policy-driven decision-making. The privilege protects communications made before policy makers act upon the policy decision to allow government officials to speak candidly when deciding a course of action without fear of their words being used against them.
This privilege is not absolute and courts recognize the legitimate countervailing interest the public has in transparency. The Supreme Court in United States v. Reynolds held that someone with control over the protected information should personally consider the privilege before asserting it but did not provide definitive …
Remarks On Prosecutorial Discretion And Immigration, Shoba S. Wadhia
Remarks On Prosecutorial Discretion And Immigration, Shoba S. Wadhia
Dickinson Law Review (2017-Present)
No abstract provided.
Feed: State Transparency Amidst Informational Surplus, Mark Fenster
Feed: State Transparency Amidst Informational Surplus, Mark Fenster
Mark Fenster
Public Employees For Environmental Responsibility V. United States Epa, F. Aaron Rains
Public Employees For Environmental Responsibility V. United States Epa, F. Aaron Rains
Public Land & Resources Law Review
Prior to 2016, the EPA acknowledged that human activities significantly contribute to climate change. However, on March 9, 2017, EPA Administrator Scott Pruitt announced that significant debate regarding the issue remained in the scientific community. In response to these statements, a nonprofit organization filed a FOIA request with the EPA seeking any documents or records Pruitt may have used when formulating his statements or substantiating his position. The EPA refused to comply with the request, citing undue burden and improper interrogation and this action followed. Upon review, the District Court for the District of Columbia found the plaintiff’s FOIA request …
The Ecology Of Transparency Reloaded, Seth F. Kreimer
The Ecology Of Transparency Reloaded, Seth F. Kreimer
All Faculty Scholarship
As Justice Stewart famously observed, "[t]he Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act." What the Constitution's text omits, the last two generations have embedded in "small c" constitutional law and practice in the form of the Freedom of Information Act and a series of overlapping governance reforms including Inspectors General, disclosure of political contributions, the State Department’s “Dissent Channel,” the National Archives Information Security Oversight Office, and the publication rights guaranteed by New York Times v. United States. These institutions constitute an ecology of transparency.
The late Justice Scalia argued that the …
Oversight Of Oversight: A Proposal For More Effective Foia Reform, Aram A. Gavoor, Daniel Miktus
Oversight Of Oversight: A Proposal For More Effective Foia Reform, Aram A. Gavoor, Daniel Miktus
Catholic University Law Review
One of the main mechanisms by which the public can gather information about government activity is through the Freedom of Information Act (FOIA). This Article suggests that FOIA contains inconsistencies that lead to a less transparent government. Gaps and ambiguities in its language that invite and require federal agency interpretation, are at odds with FOIA’s de novo standard of review. This Article suggests that FOIA’s public policy goals would be better served if Congress takes decisive action to clarify FOIA’s language and fill in such ambiguities and gaps.
The Georgia Open Records Law Electronic Signature Exception: The Intersection Of Privacy, Technology, And Open Records, Michael L. Van Cise
The Georgia Open Records Law Electronic Signature Exception: The Intersection Of Privacy, Technology, And Open Records, Michael L. Van Cise
Journal of Intellectual Property Law
No abstract provided.
The Transparency Fix: Advocating Legal Rights And Their Alternatives In The Pursuit Of A Visible State, Mark Fenster
The Transparency Fix: Advocating Legal Rights And Their Alternatives In The Pursuit Of A Visible State, Mark Fenster
Mark Fenster
The administrative norm of transparency, which promises a solution to the problem of government secrecy, requires political advocacy organized from outside the state. The traditional approach, typically the result of organized campaigns to make the state visible to the public, has been to enact freedom of information laws (FOI) that require government disclosure and grant enforceable rights to the public. The legal solution has not proven wholly satisfactory, however. In the past two decades, numerous advocacy movements have offered different fixes to the information asymmetry problem that the administrative state creates. These alternatives now augment and sometimes compete with legal …
The Implausibility Of Secrecy, Mark Fenster
The Implausibility Of Secrecy, Mark Fenster
Mark Fenster
Government secrecy frequently fails. Despite the executive branch’s obsessive hoarding of certain kinds of documents and its constitutional authority to do so, recent high-profile events — among them the WikiLeaks episode, the Obama administration’s infamous leak prosecutions, and the widespread disclosure by high-level officials of flattering confidential information to sympathetic reporters — undercut the image of a state that can classify and control its information. The effort to control government information requires human, bureaucratic, technological, and textual mechanisms that regularly founder or collapse in an administrative state, sometimes immediately and sometimes after an interval. Leaks, mistakes, and open sources all …
The Implausibility Of Secrecy, Mark Fenster
The Implausibility Of Secrecy, Mark Fenster
UF Law Faculty Publications
Government secrecy frequently fails. Despite the executive branch’s obsessive hoarding of certain kinds of documents and its constitutional authority to do so, recent high-profile events — among them the WikiLeaks episode, the Obama administration’s infamous leak prosecutions, and the widespread disclosure by high-level officials of flattering confidential information to sympathetic reporters — undercut the image of a state that can classify and control its information. The effort to control government information requires human, bureaucratic, technological, and textual mechanisms that regularly founder or collapse in an administrative state, sometimes immediately and sometimes after an interval. Leaks, mistakes, and open sources all …
Electronic Privacy Information Center V. National Security Agency: How Glomar Responses Benefit Businesses And Provide An Epic Blow To Individuals, Joshua R. Chazen
Electronic Privacy Information Center V. National Security Agency: How Glomar Responses Benefit Businesses And Provide An Epic Blow To Individuals, Joshua R. Chazen
Journal of Business & Technology Law
No abstract provided.
[Dis-]Informing The People's Discretion: Judicial Deference Under The National Security Exemption Of The Freedom Of Information Act, Susan Nevelow Mart, Tom Ginsburg
[Dis-]Informing The People's Discretion: Judicial Deference Under The National Security Exemption Of The Freedom Of Information Act, Susan Nevelow Mart, Tom Ginsburg
Publications
As noted by President Obama's recent Review Group on Intelligence and Communications Technologies, pervasive state surveillance has never been more feasible. There has been an inexorable rise in the size and reach of the national security bureaucracy since it was created after World War II, as we have gone through the Cold War and the War on Terror. No one doubts that our national security bureaucracies need to gain intelligence and keep some of it secret. But the consensus of decades of experts, both insiders and outsiders, is that there is rampant overclassfication by government agencies. From its inception in …
Balancing A Citizen's Right To Know With The Privacy Of An Innocent Family: The Expansion Of The Scope Of Exemption 7(C) Of The Freedom Of Information Act Under National Archives & Records Administration V. Favish, Lauren Bemis
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
The Deliberative Process Privilege In Kentucky, Erin Hoffman
The Deliberative Process Privilege In Kentucky, Erin Hoffman
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
My Great Foia Adventure And Discoveries Of Deferred Action Cases At Ice, Shoba S. Wadhia
My Great Foia Adventure And Discoveries Of Deferred Action Cases At Ice, Shoba S. Wadhia
Journal Articles
This Article describes my adventures in FOIA litigation and analyzes deferred action data collected informally by 24 ICE field offices between October 1, 2011, and June 30, 2012. This Article also offers recommendations for the agency on data collection, recordkeeping, and transparency in deferred action cases. Deferred action is a form of prosecutorial discretion that can be granted at any stage of the immigration enforcement process and historically has been applied both to people who meet group characteristics and on an individual basis in compelling humanitarian circumstances. The theory behind deferred action and prosecutorial discretion more generally is to enable …
Administrative Law, John Paul Jones, Afsana Chowdhury
Administrative Law, John Paul Jones, Afsana Chowdhury
University of Richmond Law Review
What follows is, first, a report of certain developments during the last two years in the administrative law of Virginia, in particular the law governing rule making by state agencies and judicial review of both rules and cases from state agencies and, second, a report of developments in the law relating to Virginia's Freedom of Information Act.
The Transparency Fix: Advocating Legal Rights And Their Alternatives In The Pursuit Of A Visible State, Mark Fenster
The Transparency Fix: Advocating Legal Rights And Their Alternatives In The Pursuit Of A Visible State, Mark Fenster
UF Law Faculty Publications
The administrative norm of transparency, which promises a solution to the problem of government secrecy, requires political advocacy organized from outside the state. The traditional approach, typically the result of organized campaigns to make the state visible to the public, has been to enact freedom of information laws (FOI) that require government disclosure and grant enforceable rights to the public. The legal solution has not proven wholly satisfactory, however. In the past two decades, numerous advocacy movements have offered different fixes to the information asymmetry problem that the administrative state creates. These alternatives now augment and sometimes compete with legal …
Disappearing Government Information And The Internet's Public Domain, Susan Nevelow Mart
Disappearing Government Information And The Internet's Public Domain, Susan Nevelow Mart
Publications
This article surveys the types and amounts of information that have been removed from the Internet since September 11th. Information has been removed in the name of national security as well as for reasons of seeming political expediency. After discussing the bases of some of the rationales for removing the information, and the legal underpinnings of continued access, the article suggests several forms of advocacy that could be used to return the information to the public's domain.
Striking A Balance: When Should Trade-Secret Law Shield Disclosures To The Government?, Elizabeth A. Rowe
Striking A Balance: When Should Trade-Secret Law Shield Disclosures To The Government?, Elizabeth A. Rowe
UF Law Faculty Publications
In 2010, Toyota issued recalls on over eight million vehicles because of faulty acceleration. Assume that the National Highway Traffic Safety Administration (NHTSA) requests that Toyota allow the government access to the data in black boxes on the recalled cars. The black boxes are operated by proprietary software and can only be accessed with special codes by Toyota. Assume further that Toyota refuses to provide the Black Box data to the government, claiming that it would reveal its trade secrets. How should courts approach what I coin these refusal-to-submit cases? There is a void in the literature and the case …
The Internet's Public Domain: Access To Government Information On The Internet, Susan Nevelow Mart
The Internet's Public Domain: Access To Government Information On The Internet, Susan Nevelow Mart
Publications
This article surveys the types and amounts of information that have been removed from the Internet since September 11th. Information has been removed in the name of national security as well as for reasons of seeming political expediency. After discussing the bases of some of the rationales for removing the information, and the legal underpinnings of continued access, the article suggests several forms of advocacy that could be used to return the information to the public's domain.
Administrative Law, John Paul Jones, Molly T. Geissenhainer
Administrative Law, John Paul Jones, Molly T. Geissenhainer
University of Richmond Law Review
No abstract provided.
Immigration Law: Nowhere To Turn—Illegal Aliens Cannot Use The Freedom Of Information Act As A Discovery Tool To Fight Unfair Removal Hearings, Larry R. Fleurantin
Immigration Law: Nowhere To Turn—Illegal Aliens Cannot Use The Freedom Of Information Act As A Discovery Tool To Fight Unfair Removal Hearings, Larry R. Fleurantin
Larry R. Fleurantin
This Article challenges the authority of the Attorney General and the DHS Secretary to withhold information from an alien after a FOIA request under Exemption (b)(5), to use that same withheld information to impeach the alien’s testimony during an individual hearing on the merits, and to use that as grounds for the Immigration Court to deny an applicant’s request for asylum. This Article takes the position that the USCIS needs to change its unfair practice to avoid the harsh and pervasive injustice that aliens facein removal proceedings.
Book Review, Susan Nevelow Mart
Documents, Leaks, And The Boundaries Of Expression: Government Whistleblowing In An Over Classified Age, Susan Nevelow Mart
Documents, Leaks, And The Boundaries Of Expression: Government Whistleblowing In An Over Classified Age, Susan Nevelow Mart
Publications
No abstract provided.