Gmail Nation: The Privatization of Public Records and Public Access

By DAVID SNYDER—The California Supreme Court ruled last month that records stored on government officials’ personal email accounts are subject to the California Public Records Act. This answer seems obvious: government officials should not be able to conceal otherwise public records by simply using Gmail.

And yet the law has been surprisingly slow to recognize this principle. Private email accounts have been in widespread use for almost two decades now, and we know that for just as long government officials have been using such accounts to transact public business.

If the timing of the California Supreme Court’s ruling is any indication, it will take many years for the law to catch up with the information revolution that has so rapidly transformed the way we all create, store and send information.  And given that this revolution shows no signs of abating, it’s a safe bet the law will continue to lag.

Who makes FOIA Requests? via FOIA Mapper
Who Makes FOIA Requests? Click image to visit FOIA Mapper

The consequences of the digital revolution reach beyond the issue of whether “private” emails, texts and Twitter accounts should be accessible to the public.  The ability to create, collect and transmit massive amounts of data with little effort has also impacted the efficacy of the federal Freedom of Information Act (FOIA) and its state-law equivalents.

Companies, and especially large ones and/or those in tech-focused fields, are much better than most media outlets at using FOIA to request, process and make use of massive data sets.  They have the sophisticated software, the resources, and the time and energy to wage large and orchestrated campaigns to use FOIA to “mine” government agencies for valuable information—and they have the manpower and money to make use of that information.

There is nothing inherently problematic about corporate use of FOIA as a tool to gain access to government, and there is nothing in FOIA that prevents such use.  But corporate America’s unparalleled ability to fully exploit FOIA’s provisions with “data mining” technology, devoted FOIA staff, and teams of lawyers has in effect amounted to a corporate takeover of one of the primary means by which Americans gain direct access to information about their government.

Last month, the FOIA Mapper project released the results of what it calls the largest-ever analysis of FOIA use.  It found that journalists comprise a little under 8% of all FOIA requests made, while more than 55% of all requests come from either private companies or law firms.   The largest single journalistic requester, the Associated Press, submitted 36 requests for every 10,000 FOIA requests made—a fraction of the number of requests by the single largest commercial requester, International Business Research, which logged 334 requests for every 10,000.

This imbalance has sobering implications for public access.  In a thorough (and thoroughly startling) study last year, law professor Margaret B. Kwoka also found that commercial requests now substantially overwhelm requests by media or watchdog groups.  As a result, the costs to the government of complying with FOIA have soared, as have wait times for responses.  And the burden of that delay falls disproportionately on journalists and watchdog groups, who usually can afford to wait much less than private companies, and also usually lack the resources to persistently hound the government for a response–or to bring lawsuits to enforce their rights.

Moreover, the public benefits of FOIA—primarily, the increase of transparency and exposure of government wrongdoing—are almost by definition less likely to result from commercial FOIA requests, which are often motivated by narrower, company-specific concerns.  Indeed, Kwoka documents the emergence of a cottage industry in selling data obtained by private companies via FOIA.  So, not only is private industry overwhelming the FOIA process and contributing to the increased costs of government compliance to rise, but they are also profiting in the end from the process.

One example of this privatization of the FOIA process, taken from Kwoka’s study: a company called Bioscience Advisors filed 1,323 FOIA requests to the SEC in 2013. The company’s signature service is a database containing copies of “over 12,000 license, development, joint venture, distribution….and other agreements that have been publicly filed” with the SEC.  Kwoka found that the information contained in this database closely tracked the company’s FOIA requests.  A one-year subscription to the database costs $9,500.  Rare is the news outfit that can afford to submit, much less track and follow up on, more than 1,300 requests.  Rarer still is the news organization that can assemble, process and monetize the responses to those requests.

Kwoka found that at four of the six federal agencies for which she was able to obtain complete data, commercial requesters formed the vast majority of all requesters. At the Defense Logistics Agency, which supports U.S. combat operations and has 26,000 employees around the world, commercial requesters submitted 96 percent of all requests.  At the Securities and Exchange Commission, that number was 89 percent.  And at the EPA and FDA, it was 79 and 75 percent, respectively.

With limited resources and budgets, FOIA officers struggle to keep up with demand and, as a result, the average delay in FOIA response time has increased drastically over the years.  One recent analysis by the FOIA Project found that of the five agencies it tracked, all saw substantial increases in wait times in just the last 5-6 years. At the Navy, for example, the average amount of time a FOIA request was pending was 199 days in 2013.  By 2016, that number had more than doubled, to 403 days At the EPA, the numbers were even more stark , increasing from 85 days in 2013 to 339 days in 2016—a more than threefold increase.

There can be no question that private industry’s innovations have enriched, expanded and diversified the ways in which we all communicate.  But there is a flipside to this remarkable transformation.  The privatization of government records, and our means to access those records, has caught the law flat-footed.  Will it catch up? Well, the California Supreme Court got it right as to one small aspect of this issue, but it took 20 years.  That’s a long time, particularly in a world ever more consumed with instantaneity—and quick profits.

David Snyder, a lawyer and journalist, is executive director of the First Amendment Coalition. The views expressed here do not necessarily reflect the opinions of the FAC Board of Directors.