Freedom of information?

April 11, 2014

Historically, one very useful competitive intelligence tool has been asking government units, federal, state and particularly local, for information from their records. This is done thanks to a variety of laws known as open records, freedom of information, etc., which required governments to provide information and documents following a written request. They all operate in the premise that the records of government are to be available to the citizens except for certain, limited exceptions.

In the past, this was particularly useful tool for CI, particularly when dealing with existing or planned manufacturing, production, or distribution facilities. Then came 9/11. Since then, the utility of making these requests has declined rapidly.

The media has been filled with reports over the years about the “transparency” of the US government, a nice way of saying that it is no longer transparent. Requests take longer to be filled, they are less likely to be filled completely, etc. This is not new and is not restricted to this administration, nor to the response to 9/11. At the federal and state and local levels, the previously few and limited exceptions have grown to the point where in some cases, it seems the exceptions are bigger than the mandate.

For example, some open records laws now not only prevent the release of information important to national security, but also protect third party trade secrets. Now that is understandable as the key to trade secrets is a requirement that the claimant of the trade secrets diligently protect them. Now other categories such as personal information as protected. But that exception has been interpreted in some states to include the direct dial phone numbers of employees of businesses, limiting the release of official documents which include such numbers. Some have added an exception barring the release of business confidential information, a particularly vague, and for those of us in CI, a rather troubling exception.

Now, logically, that should mean that the company or institution seeking to limit the release of information filed with the government must make a prior claim that certain specific data, information, floor plans, photographs, or whatever should be protected from disclosure because they fall in the category of [fill in the blank].

However, many jurisdictions have interpreted this to mean they are now to contact filers to ask the filers if they want this material released. You can just imagine the difficulty there.

Let me give you one additional twist. Certain kinds of documents, particularly plans associated with construction, renovation, or expansion, are very large. Local governments that deal with these plans require them to be filed. But, frankly, they do not want to store them because they are just too big and bulky. So what they do is return them to the companies that file, leaving the companies, on application obliged to produce them. If a freedom of information request about them is filed, what this actually does is leave in the hands of the company, the filer, the decision whether or not to release them. You can imagine what that decision is.

There are no indications that these laws will be restored by removing or at least limiting these expanding exceptions. In fact, governments have shown little inclination to do so. Look at an analogous area: open meetings laws. Consider articles in your local paper, wherever that is, about the failure of some unit of government that failed to comply with an open meetings requirement, that is, to allow citizens and reporters to attend certain kinds of meetings where decisions are made, which by law must be held open, but which the governmental unit sincerely wishes to keep closed. Haven’t your seen these? Have you seen any evidence of this changing?

What we have in competitive intelligence, and unfortunately elsewhere, is that these “transparency” laws no longer support transparency of government, but rather force our access to the workings of the government “through a glass, darkly”.