Who Is Watching the Watchers?  

While the internet is a substantial contributing factor to the commodification of privacy, it is also a powerful tool for the “people” to investigate and exercise oversight of the government. Two overlapping but distinct areas of law concern the public disclosure of government records: The federal Freedom of Information Act (FOIA); and its state equivalents.

FOIA requires most federal agencies to disclose information and documents pursuant to a reasonably identifiable request subject to enumerated exceptions (such as personal information and national security). Congress passed FOIA in 1967, and California followed in 1968 by enacting the California Public Records Act (CPRA). California bolstered its public disclosure laws in 2004 when its voters adopted Proposition 59, the “Sunshine Amendment,” which enshrined the public’s access to government records in the California Constitution: “… the people have the right of access to information concerning the conduct of the people’s business…” All other states also have adopted open records laws.

Before the internet, the only individuals who could feasibly utilize these public disclosure laws were reporters, industry representatives, and nonprofit organizations. However, the internet enabled anyone with access to a computer to submit a request to any local, state or federal governmental body from anywhere, at any time.

Unfortunately, the power of the people to investigate government records is limited by the government’s willingness to grant such authority. Earlier this year, California considered adopting AB 700, which sought to expand an academic research exemption from the public disclosure laws. On its face, granting academics the privacy to candidly discuss their work appears like a good idea. However, public and private interests often enlist academic researchers (and more importantly, their credentials) to conduct research which lends a veneer of objectivity to their advocacy.

These concerns are not theoretical. Last year, California considered adopting AB 813, which would have expanded California’s electrical grid operator into a multistate regional entity. The legislature ultimately rejected the bill due to concerns it would subject California’s climate policies to expanded federal oversight at a time when the federal government is hostile to California’s policies.

In supporting AB 813, the electrical grid operator attempted to quell the concerns over regional expansion by providing a report authored by three University of California professors on the legal impact of the regional expansion proposal on California’s energy policy, titled “Evaluation of Jurisdictional and Constitutional Issues Arising from CAISO Expansion to include PacifiCorp Assets.” While these professors attached their academic credentials to the title header of the report, suggesting it was the product of a dispassionate truth-seeking research effort endorsed by their respective universities, they did not disclose whether they received compensation for their work.

A lawsuit filed in the Superior Court of California, County of Alameda (Case No. RG 16842589) seeking access to university records relating to the study found that the researchers: 1) were compensated by the electrical grid operator for their work; and 2) downplayed the legal risks to California’s climate policies. In short, the researchers were hired attorneys—not academics. These connections may not have been discovered, and their tainted legal opinion not debunked, were it not for the CPRA.

AB 700 was introduced as a response to this lawsuit and others that investigate the links between academic institutions and special interests. Affording protection to academics engaged in dispassionate truth-seeking is an important objective—but not at the expense of holding government and special interests accountable. FOIA and the CPRA facilitate the disclosure of information that is instrumental to thoughtful discourse and policy.

AB 700 was ultimately tabled in committee; however, the battle to ensure the public’s access to government records is ongoing. Indeed, concurrent with AB 700, the legislature also considered SB 615 which sought to impair the enforcement of the CPRA.

Professors, bureaucrats, and government researchers should enjoy privacy in the digital age, but not at the expense of the public good. Government records, including those of academic researchers, should be disclosable to the public, especially when those researchers trade on the good name of public academic institutions to cloak their work. Consider, Section 5 of the Federal Trade Commission Act prohibits deceptive practices that are likely to mislead the consumer or affect consumer behavior—which is why certain paid newspaper content is labeled “sponsored,” and some Instagram posts are identified by #ad and/or #advertising. Academic researchers can conduct research on behalf of special interests, but those interests must be disclosed.

About the Author

Robert Bryson is an attorney based in San Diego, CA who focuses his practice on civil rights and consumer issues. Contact him at rtbrysonlaw@gmail.com.

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