09 May 2017

FOI and 'Forgetting'

'Inside FOIA, Inc.' by Margaret B. Kwoka in (2016) 126 The Yale Law Journal Forum 265 comments 
Commercial use of FOIA has, by all accounts, always been significant. As I documented in previous work, FOIA, Inc., businesses use FOIA for a variety of purposes and, at some agencies, can form the vast majority of requesters. One thing is constant across business use of FOIA, however, and that is the routine nature of commercial FOIA requests. Over and over again, commercial requesters seek the same kinds of documents, whether it be bid abstracts for defense contracts or licensing agreements filed by public corporations. I therefore proposed an aggressive affirmative disclosure regime in which agencies would identify the types of records routinely requested and publish comprehensive databases of those documents, thereby preempting the flood of commercial requesting.
For large regulatory agencies to whom single businesses submit hundreds and sometimes thousands of requests a year, however, my previous findings came as no surprise. FOIA officers at these agencies see their offices swamped with routine commercial requests and have adapted to become experts in responding to them. This essay explores the practicality of the affirmative disclosure methods I previously proposed from their perspective. In particular, using EPA, SEC, and FDA as case studies, it sheds light on actual agency experience implementing and considering these sorts of measures, including notable success stories. Beyond demonstrating that affirmative disclosure can be practical in some circumstances, however, it sheds light on obstacles agencies face as well. To that end, it seeks out outline circumstances in which affirmative disclosure is most immediately promising, as well as structural reforms that can reduce the barriers to success in a wider range of circumstances.
'The Right to Be Forgotten' by Michael J. Kelly and David Satola in (2017) 1 University of Illinois Law Review comments 
The right to be forgotten refers to the ability of individuals to erase, limit, delink, delete or correct personal information on the Internet that is misleading, embarrassing, irrelevant or anachronistic. This legal right was cast into the spotlight by the European Court of Justice decision in the Google Spain case, confirming it as a matter of EU law. This “right,” however, has existed in many forms around the world, usually applying a balance-of-rights analysis between the right to privacy and the right to freedom of expression. The new European version, though, is based on a legal theory of intermediary liability where Internet search engines are now considered “data controllers,” and as such have liability for managing some content online. As it has evolved in Europe, this right has focused attention on key underlying policy considerations, as well as practical difficulties, in implementation under the new European regime. In particular, shifting the burden of creating compliance regimes and supervising important human rights from government to the private sector. Thus, in Europe, the function of balancing rights (privacy versus speech) in the digital context has been “outsourced” to the private sector. Recent experience in Europe under this regime shows that there is no uniform approach across countries. Moreover, different national approaches to the “right” make it almost impossible for multinational entities to comply across jurisdictions. Apart from the data controller threshold, civil-law jurisdictions seem to give greater weight to privacy concerns in striking this balance. Common-law jurisdictions tend to give greater weight to expression. The right to be forgotten is another example of an evolving transatlantic data struggle with potentially serious trade implications. This Article explores the historical and theoretical foundations of the right to be forgotten and assesses practical legal issues including whether North American “free speech” rights are an effective buffer to what is sometimes a very controversial and evolving issue.