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The Social Layer of Freedom of Information Law

Author(s): 
Publication Type: 
Academic Writing
Publication Date: 
March 1, 2012

It is now received wisdom that a properly functioning democracy requires transparency and accountability — information shared with the public that allows the public to know what its government is doing. It is equally uncontroversial to say that social media allows for an unprecedented amount of informal but structured dissemination and analysis of information. Despite these two basic points, U.S. freedom of information law has failed to harness the power of these new social media networks and, more importantly, formats in a way that amplifies public knowledge of government information. Because of that harsh reality, a modern transparent democracy is impeded.

 
For example, the groundbreaking Legislative Branch Appropriations Act of 2010 (“LBAA”) requires that the Senate release its expenditure reports in electronic format. For the first time, there is the possibility of the release of digital structured data, which allows for the manipulation and search of information based upon set criteria, by and about the Senate. But, exemplifying the problem discussed in this Article, the LBAA fails to require the release of data in an optimal format. Indeed the Senate announced that in November 2011 it would release the first set of information as a PDF, a formatted document, which it ultimately did. The LBAA appears to allow the Senate to use this difficult-to-manipulate format, as PDFs meet the minimal statutory criteria of being “searchable” and “itemized” so long as they are saved from word processing documents to PDF in a way that recognizes the text. Thus, while a major step forward in government transparency, the LBAA does not go far enough to force the release of truly useful structured data from the government and allow meaningful exploitation of social media tools and constructs that thrive on simple and effective access to information.
 
While the LBAA should be amended, it is merely symptomatic of a much larger problem that is the focus of this Article: a general lack of appreciation, from both a theoretical and practical perspective, for the public’s need and desire for optimally-formatted, socially ready information. This defect is unfortunately found in the Freedom of Information Act (“FOIA”), the major U.S. sunshine law, which suffers from a related, but greater, statutory deficiency. FOIA requires that an agency provide a “record” in “any form or format requested by the person if the record is readily reproducible by that agency in that form or format.” Thus, FOIA, like the LBAA, allows agencies to produce information in less-than-optimal formats, without even the LBAA’s requirement that the data be searchable or itemized. Unfortunately, the government regularly does not exceed even this low bar.
 
Social media is a prism through which this governmental disclosure problem can be addressed. However, a solution suggesting that government merely employ social media tools, like posting information directly to Facebook and Twitter, misses the point. Rather, when thinking about this freedom of information problem and the broader issue of how we can spur a truly modern democracy, it is more useful and productive, and indeed more theoretically sound, to focus on encouraging the government to utilize social media formats like spreadsheets and structured, machine readable databases.
 
There is theoretical and practical virtue in this altered focus. From a theoretical perspective, it is helpful to analogize to network layers theory by positing that there are several core layers of information provided by freedom of information laws (i.e., when/where is something happening, who is involved in the discussion, what is being discussed, how/why is a certain conclusion reached). Social networking sites like Facebook and Twitter, as well as more recent social ideation sites like Ahhha, Socrata and Google Docs, have put the spotlight on how information is formatted. By virtue of their mission, they have also encouraged networks and developed applications that help facilitate the creation of an additional and related “social layer” of government information. In this layer, optimally formatted information and data can be disseminated, manipulated and analyzed in structured and useful ways by networks of interested persons, both through social media websites and applications, but also outside of them. This confluence of events allows for the public to create additional information beyond the core layers, thereby increasing the public’s understanding of government operations.
 
Thus, this Article argues that, from a theoretical perspective, governments should reorient their thinking about social media to focus on its indirect value as an information formatting construct rather than as purely a direct tool for distributing information. Once social media’s impact on freedom of information is properly understood, it follows that governments should provide information in structured and useful formats that are socially optimized to best meet the public’s analytical needs so that the social layer of government information can flourish. From a practical perspective and to meet this theoretical imperative, FOIA can be modestly amended to allow for the public’s development and exploitation of the social layer of government information.