Comment by efitz

3 years ago

Why don’t we invert FOIA?

Why don’t we require that all internal communications and records be public, available within 24 hours on the web, and provide a very painful mechanism involving significant personal effort of high level employees for every single communication or document that is to be redacted in some way? The key is requiring manual, personal (non-delegatable) effort on the part of senior bureaucrats, and to allow a private cause of action for citizens and waiver of immunity for bureaucrats.

We could carve out (or maybe not) specific things like allowing automatic redaction of employee PII and PII of citizens receiving government benefits.

After many decades, it’s clear that the current approach to FOIA and sunshine laws just isn’t working.

[ed] fixed autocorrect error

The carve-out you mention is a decent idea on paper, but in practice is a difficult process. There's really no way to do it in any significant degree without basically putting all gov to a complete halt. Consider that government is not staffed with technical people, nor necessarily critically minded people to implement these systems.

There are ways to push for FOIA improvements that don't require this sort of drastic approach. Problem is, it takes a lot of effort on the parts of FOIA requesters, through litigation and change in the laws. Things get surprisingly nuanced when you really get down into what a "record" is, specifically for digital information. I definitely wouldn't want to have "data" open by default in this manner, because it would lead to privacy hell.

Another component of this all is to consider contractors and subcontractors. Would they fall under this? If so, to what degree? If not, how do we prevent laundering of information through contractors/subcontractors?

To a large degree, a lot of "positive" transparency movements like the one you suggest can ironically lead to reduced transparency in some of the more critical sides of transparency. A good example of that is "open data", which gives an appearance of providing complete data, but without the legal requirements to enforce it. Makes gov look good but it de-incentivizes transparency pushback and there's little way to identify whether all relevant information is truly exposed. I would imagine similar would happen here.

  • A private right of action and waiver of immunity solves most of the “bad actor” problems.

    The big issue is how to preserve what actually needs to be secret (in the interest of the USA, not the interests of the bureaucracy) while forcing everything else to be public.

    A lot of things are secret that don’t need to be secret; that’s a side effect of mandatory data classification and normal bureaucratic incentives- you won’t get in trouble for over-classifying, and classified information is a source of bureaucratic power. So you have to introduce a really strong personal incentive to offset that or nothing will ever change.

    Personally, I don’t think that information should be classified if it came from public sources. Or maybe only allow such information to be classified for a short period of time, eg one year.

    The longer and/or higher the classification level, the more effort should be involved, to create disincentives to over-classification.

    • I'm sorry, but very little of what you're saying makes sense in practice. I suggest submitting some FOIA requests to your local government to get some context and understanding of the difficulties.

The old Abe rhetoric was powerful but it always felt like it was only hitting home on two of the three points. Obviously government, by definition really, is of the people. The much better parts were for the people and by the people.

  • Qualifiers such as evil aren't really useful when there hasn't been a country acting honorably on that stage for a long time, if ever.

    Here's a phrasing that might be more appropriate:

    "Since we're backstabbers and scoundrels, we should exercise caution around each other."

  • Do you think it's tough for those regimes to pay someone to do FOIA requests for them? Or to get jobs at government agencies?

  • We should rethink the concept of a “secret”. If it’s really a secret, it will still be worth the effort to protect.

    • They are erroring on the side of caution because people have determined secret information from public information - like the energy in a nuclear bomb (censored) by the blast radius (public).

      Another example is they want to protect their means and methods. But those means and methods are how they know most information. Often times it's easy to work backwards from they know x therefore y is compromised.

      It's a hard problem similar to how to release anonymized data. See K-anonymity attacks and caveats.

      https://en.wikipedia.org/wiki/K-anonymity

  • Not sure if the US with it's torture-base aka Guantanamo and torture-safe-houses around the world really has the right to call someone else "evil", i don't mean that as "whataboutissm" but that human lives are not more "worth" in the US as in Mainland China