Covering Tracks

January 25, 2018

I have been running into an interesting phenomenon – more and companies are taking steps to conceal their major construction/renovation filings made with local governments. It has been going on for a while, but seems to be increasing in the last 2-3 years.

That raises two, no, three questions: Why, How, and What Can I Do About It?

Why?

Major construction/renovation filings with local governments, such as building permits, zoning applications as well as applications for state waivers, such as dealing with highway/rail access or environmental issues, are all “tells”. That is, they indicate the coming of an important action which the target, your competitor, does not want the public, and certainly its competitors, to know.

To be fair, such actions usually do not prevent the release of such information – but they substantially delay that release, whether to competitors or to the local press.

How?

Here we are not talking about abusing open records acts by tactics such as improperly claiming ordinary data is confidential or a trade secret. What is done is making the filings under other names, to foil inquiries for or even attention paid to these records. That is done in at least two ways. One is to make them under the name of a subsidiary not identified with the parent. Another is to have another party to the transaction, such as the company managing the construction project, make the filings under its own name.

Cute.

What Can You Do About It?

Well, not a lot. If you suspect that a competitor is going to engage in such a project on an existing site, you can ask the local government for filings covering the current address, as well as adjacent properties. If the issue is a competitor which may be building a new facility at a new address, then try to determine what areas are likely sites, and then follow real estate sales and leases on a micro level – checking local papers every week for “suspicious” transactions, and then drilling down at the municipal or county level, as appropriate.

Defense against CI is always improving which is why our CI strategies and processes must always try to get better, too.


Freedom FROM Information Access Acts

September 18, 2017

The AP has reported on yet more efforts to restrict the scope of state open record/FOIA laws and limiting the public’s access to them. [1]

As you can see from the text and from many of my previous blogs on this (just search “FOIA”), the pressures come from several directions, as they have in the past, including:

  • From police, prosecutors and their supporters, usually aimed at limiting or barring access to body-cam recordings of police-involved activities, or of access to related information, such as emergency/911 call recordings and records.
  • From regulated businesses, seeking to keep their information, always called “sensitive”, “confidential”, or “proprietary” (without any supporting evidence), from competitors and from the public (AKA their own customers). I guess that they finally figured out that sound CI research procedures call for checking these records. Ah, the price of success!
  • From governmental units themselves, seeking to remove from the public view more and more of their records, reports, and even proceedings. This is done by changing rules, just flatly declining to provide requested records, and by hindering access through fees and lawsuits. Oddly, the same entities often pat themselves on the back for their transparency. Go figure.

So, keep on using state and federal laws to access records in your CI efforts, but do not expect the same success as you have had in the past. Also, from now on, when reading about open records, and the like, keep in mind the new terms you should use:

  • For “transparent”, now think “opaque”.
  • For “open records”, use “inaccessible records”.
  • For “freedom of information acts”, say “freedom from information access acts”

Happy (more and more limited) hunting.

[1] GOVERNMENTS TURN TABLES BY SUING PUBLIC RECORDS REQUESTERS, Sept, 17, 2017; Request denied: States try to block access to public records, Sept. 17, 2017.


Open Records?

July 11, 2017

This week, a local paper[1]reported that applicants for Pennsylvania medical marijuana licenses were permitted to submit two versions of their applications: one for evaluation by the state’s licensing authority and a second, self-redacted version, for public release.

What was released to the public was a bewildering mass of blacked-out text. In addition to blacking out notes on proximity to health care facilities, maybe, maybe, a competitive or confidential issue, they variously redacted page numbers (?), the business’ name and address (!), and the business’ expected impact on the local community, which seems to be exactly what should be released. One applicant is described as redacting “nearly its entire 186-page grower application, including [the official] instructions” (?!)

The article quoted a Marijuana trade association official who said that these companies were “looking at what their competitors are going to see” and redacted that. Page numbers? And, Pennsylvania officials say that they cannot un-redact what has been blacked out. Then, consider the questions of why a filer can ever exercise absolute control over what is disclosed from public records, and why Pennsylvania ever created this public/private record system.

Ever wonder why Open Record laws don’t work?

[1] Nicole C. Brambila, “Marijuana firms redacted many parts of applications”. Reading Eagle, July 10, 2017, A1, A3.


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”.


Thanks

December 4, 2012

Competitive intelligence involves dealing with people as well as with secondary sources.  In our practice, we have times when we deal quite a lot with government offices, primarily at the state and local levels.  We are typically trying to get copies of documents filed with a municipality, county government, or state office.

The procedure is relatively simple.  Most states have freedom of information (FOIA) or open records laws that require governments to provide copies of records as long as the people asking for them specify what records they are looking for, and agree to pay for copying costs, in some cases search costs.

What do I have found over the years is that being polite may be as critical to successful research assignment as being precise is.

What do I mean?

In talking with my partner in all things, Carolyn Vella, I happened to mention that I had been trying to get some documents from a local government.  The local government office assigned someone to this and I received an email back after a day or two, saying that only one document had been filed, but that the office expected another document to be filed later.

Now, why did that person mention the document to be filed later?  Because when I first received an acknowledgement of the request, which told me it be would handed it off to someone else, I replied by email, “Thanks”.  When I received the information that only one filing was available now, I again thanked the sender, now a different person.  I later sent a follow-up email, asking whether or not I could be informed when the second document was available to the public.

Realize that this government unit did not have to tell me this.  The office could have simply said “please contact us again later in the year or next year, and renew your request”, which would’ve been totally proper and which I would’ve done.

However, the individual with whom I was dealing sent back an acknowledgement saying, essentially, certainly.  That individual then added a smiley face.  That made me smile as well.

Being polite in person, over the phone, or in emails will never hurt you.  In some cases, it may well help you.  The likelihood that, during the course of one or two or three years, we will contact the same person in the infinite number bureaucracies we have in the United States is remote, but such things happen.

Treating people nicely improves your results.  It also improves your life.  Few things can cause more distress than getting upset at the inaction or the failure of another person or institution.  If you adopt a positive attitude when you are talking with or emailing people, even smiling during a telephone conversation (believe me, people can tell), you’ll get along better with others and might even make your job easier.  It will certainly make it more pleasing.

Thanks.