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Monthly Archives: May 2016

Disclosure about Disclosure

Margaret B. Kwoka, FOIA, Inc., Duke L.J. (forthcoming 2016), available on SSRN.

Congress may be gridlocked on many issues, but both parties are working hard to strengthen the Freedom of Information Act. Motivations differ, of course. According to the New York Times, Republicans are displeased with the State Department’s response to requests for then-Secretary of State Hillary Clinton’s emails while Democrats favor a stronger transparency statute.

Margaret B. Kwoka’s forthcoming article, FOIA, Inc., in the Duke Law Journal already has a place in the policy discussions (and in the NY Times). It should also have a place in research and teaching in Administrative Law. I am a strong proponent of teaching something about FOIA in the core Administrative Law class, focusing on its potential use as an oversight mechanism and as an information tool in the many cases that are excluded by the Federal Rules of Civil Procedure and the presumption of regularity from discovery. I warn students, however, that they should not be swayed by tales of disinfecting sunlight, mentioning briefly old studies about the use of FOIA by private parties to get information about other private parties.

My warning has not been strong enough. From considerable original empirical work, Kwoka supports three important points. First, commercial requesters dominate in FOIA practice. Second, some of these requesters are taking information obtained from FOIA and making a profit selling the information. Third, the fees agencies take in pay only a small fraction of the costs of processing FOIA requests. (Kwoka also argues that these realities have disconcertingly crowded out media requesters—that’s a more contested and less interesting (to me) point, so I do not spend time on it here.)

Empirical work takes time. It takes even more time if you collect your own data. Kwoka requested FOIA logs from nearly two dozen agencies, all of whom had reported more than 1,000 requests in FY 2013. Only six of those agencies provided “complete data in a usable form,” so Kwoka turned to an in-depth examination of the Defense Logistics Agency (4,420), the Environmental Protection Agency (9,737), the Federal Trade Commission (1,538), the Food and Drug Administration (10,167), the National Institutes of Health (1,198), and the Securities and Exchange Commission (12,091). The number of requests to each agency is in parentheses.

From her careful, detailed look at these logs, Kwoka unearths some fascinating insights. To name some important ones:

  • Although a smaller FOIA operation, all but four percent of DLA’s requests were categorized as commercial. Day & Day, one information reseller, charges $1800 for an annual subscription to an online database of FOIA documents from DLA (specifically, procurements and contracts).
  • Nearly eighty percent of EPA’s requests were submitted by commercial requesters. Compared to other agencies, frequent requesters were, well, less frequent. Only six sources made more than 100 requests and none put in more than 180.
  • By contrast to four of the other agencies, only about one-third of FTC requests fell into the commercial category. Over half of those commercial requests (and twenty percent of all requests) came from law firms. Nearly half of the total requests were made by individuals, almost all of whom wanted information about their own consumer complaints to the agency.
  • Three-quarters of FDA’s requests came from commercial sources. Contrary to what I had been teaching, the “most frequent requesters are not . . . pharmaceutical companies, but information resellers.” These resellers make good money. FDA News charges $997 for a one-year subscription for FDA Form 483s and $117 for a particular form. The only high-volume pharmaceutical requester, Merck & Co., overwhelmingly asked (more than 80 percent of its 373 requests) about others’ FOIA requests.
  • Like the FTC, a little more than one-third of NIH’s requests were labeled commercial. Fifteen percent came from educational institutions.
  • SECProbes accounted for 12 percent of all SEC requests. These 2498 requests from SECProbes were labeled as coming from news media but should have been placed in the commercial category (from impressive online sleuthing by Kwoka). If they are removed from the news media pile, only 309 requests remain in that category.

Agencies are not getting reimbursed for this work. For example, according to Kwoka, the cost of FDA’s FOIA operations came to $33.57 million but the agency collected only $327,075 from its commercial requesters, which make up three-quarters of the agency’s workload. It adds up, with the government paying “nearly half a billion dollars on FOIA.”

Kwoka suggests some possible reforms, mainly placing pressure on agencies to affirmatively disclose more information. The DLA, for instance, could run a fuller database of contracts, including bids and bid abstracts. When the NY Times asked Day & Day about this proposal, Vice President John Day was refreshingly honest: “If they did that, a good part of our business would go away. So I think it’s a bad idea.” In addition, the FDA could put Form 483s on-line.

Disclosure about disclosure has critical implications for our teaching and research as well as for public policy. Kwoka’s important study deservedly has already generated attention in the public sphere. It also deserves a close look by scholars. Along with a new study by David Lewis and (one of my former Ph.D. students) Abby Wood, we are benefitting from some very interesting empirical work on a powerful statute.

Cite as: Anne Joseph O'Connell, Disclosure about Disclosure, JOTWELL (May 27, 2016) (reviewing Margaret B. Kwoka, FOIA, Inc., Duke L.J. (forthcoming 2016), available on SSRN), http://adlaw.jotwell.com/disclosure-about-disclosure/.

Super Strong Clear Statement Rules Down Under

Dan R. Meagher, The Principle of Legality and a Common Law Bill of Rights—Clear Statement Rules Head Down Under (2015), available on SSRN.

I decided to think outside the box this year with my recommendation, or more accurately, outside of our Country’s academy. About a year ago, an Australian Law Professor Dan Meagher contacted me about presenting his paper to our faculty at Mercer University School of Law. I’m very grateful that he did. Professor Meagher ended up visiting with us for a week this past fall as a visiting scholar. During that time, he provided one of the best development presentations that I have seen. His topic was interesting yet completely outside of most of our expertise. His presentation style was relaxed and fostered the interaction of the entire faculty. Perhaps the relaxing part should not be surprising: Australians are not necessarily known for being uptight. I chose to recommend his article to Jotwell readers because I found the topic interesting, the paper well-written, and the application of the legal doctrine a bit contradictory to the way we do things here in the U.S.

The title of his paper is The Principle of Legality and a Common Law Bill of Rights—Clear Statement Rules Head Down Under. In his article, Professor Meagher traces the evolution of the Australian Courts’ approach to protecting fundamental rights. This evolution is fascinating, controversial, and directly connected to both our Constitution and statutory interpretation principles. This history lesson begins with a simple point: “the Australian Constitution is a redraft of the American Constitution of 1787 with modifications found suitable for the more characteristic British institutions and for Australian conditions.” Our system of a government with separated powers was adopted. Importantly, however, the Australian framers consciously rejected, even deleted from a draft version, the American Bill of Rights. The framers rejected the American approach, believing that common law and a parliamentary form of government offered a superior and more democratic way to protect these rights. Professor Meagher describes the Australian Constitution’s development and the strong role that our Constitution played in the drafting process. That part of the paper should be interesting enough to Administrative Law Scholars who teach this aspect of the Constitution. But the story is much more interesting.

Despite this deliberate rejection of a bill of rights, Australia’s High Court (the equivalent of our Supreme Court) has morphed an old friend, the clear statement rule, to temper and invalidate legislation openly hostile to fundamental rights. This judicial response has been both remarkable and controversial.

Let me provide just one example: immigration. Beginning in the early 2000s, the Australian Government sought to limit and even prevent immigrants arriving in Australia by boat from accessing the courts to seek asylum. The government intercepted the boats at sea, transported those on board to processing centers in small pacific nations, refused to resettle them in Australia, and enacted legislation specifically prohibited legal challenges by these individuals.

Despite the clear legislation, the asylum seekers flooded the Australian courts. The Australian Constitution contains a mandamus/original jurisdiction provision (that arose in response to the U.S. in Marbury v. Madison, 5 U.S. 137 (1803)). That provision provides: “[i]n all matters…in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth . . . the High Court shall have original jurisdiction.” The High Court concluded that Parliament could not restrict the Court’s jurisdiction in this area absent unmistakably clear statutory language (a super strong clear statement rule, if you will). Even though Parliament was relatively clear in the legislation that it intended to abrogate the Court’s jurisdiction, the Court required Parliament to be “crystal clear;” a standard that despite its best efforts, Parliament seems unable to reach.

Professor Meagher concludes that as a result of this morphed clear statement rule, the High Court has turned “an historically loose collection of rebuttable presumptions [regarding fundamental rights] . . . into a common law bill of rights that is strongly resistant to legislative encroachment, maybe defiantly so.” The fight between Parliament and the High Court reminds me of a wonderful statutory interpretation piece Professor Hillel Y. Levin wrote. The fictional piece begins with the Supreme Lawmaker, MOTHER, proclaiming that “I am tired of finding popcorn kernels, pretzel crumbs, and pieces of cereal all over the family room. From now on, no food may be eaten outside the kitchen.” Litigation then arose, and the “courts” issue a series of cases culminating in a number of exceptions; to which, MOTHER once again decries:

Over the past few months, I have found empty cups, orange juice stains, milkshake spills, slimy spots of unknown origin, all manner of crumbs, melted chocolate, and icing from cake in the family room. I thought I was clear the first time! And you’ve all had a chance to show me that you could use your common sense and clean up after yourselves. So now let me be clearer: No food, gum, or drink of any kind, on any occasion or in any form, is permitted in the family room. Ever. Seriously. I mean it!

Hillel Y. Levin, Everything I Needed to Know About Statutory Interpretation I Learned by the Time I was Nine, 12 The Green Bag 357 (2009). In the case, Parliament has tried to be clear; the High Court ignores the clarity.

Professor Meagher argues that the Australian courts have applied the clear statement canon not to discern congressional intent, as that canon is arguably used in the U.S., but rather to thwart legislative intent. Reminiscent of Justice Scalia, the High Court has concluded that “legislative intention . . . is a fiction which serves no useful purpose.” Lacey, 242 CLR 573, 592 (2011). But the Court then does something that would surprise even Justice Scalia. The Court suggests that legislative intent is not something that exists independently of judicial interpretation, but rather is the product of the court’s process of construction. The High Court reconceptualized the interpretive duty of judges as one of determining legislative intent as the product of rather than the goal of statutory interpretation.

Professor Meagher concludes his paper by noting that the High Court has transformed the clear statement canon into a principle of legality that acts as a protector of fundamental rights and grounded its new principle in that Country’s constitution. In so doing, the Court has constructed (and then robustly protected from legislative encroachment) a quasi-constitutional common law bill of rights. While he may support the idea that fundamental rights are important, the High Court’s approach “has shaken the very foundations of—and the principles that attend to—the proper judicial role in the construction and application of statutes in a constitutional system of separated powers.”

Cite as: Linda Jellum, Super Strong Clear Statement Rules Down Under, JOTWELL (May 12, 2016) (reviewing Dan R. Meagher, The Principle of Legality and a Common Law Bill of Rights—Clear Statement Rules Head Down Under (2015), available on SSRN), http://adlaw.jotwell.com/super-strong-clear-statement-rules-down-under/.