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4/8/2013
05:30 PM
Thomas Claburn
Thomas Claburn
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The Freedom From Information Act

The U.S. government needs to takes transparency more seriously.

In June 2007, I filed a Freedom of Information Act (FOIA) request to learn more about the basis for Google's complaint that Microsoft's implementation of desktop search in Windows Vista violated the terms of its 2002 antitrust consent agreement.

In September 2011, I was notified that material relevant to my request would be provided, with a $15 fee to cover copying costs. I sent the check the following month and it was cashed in November 2011. It then took more than a year of hectoring the Department of Justice and the intercession of the Office of Government Information Services to actually get the "responsive materials." The documents arrived in late March.

After six years, the truth can finally be told. What follows is an excerpt from an email sent by Kulpreet Rana, Google's director of intellectual property, to Justice Department attorney Aaron Hoag, dated Oct. 4, 2006.

Thanking Hoag for taking the time to meet the previous week, Rana wrote, "During that meeting, you raised a few questions that we wanted to follow-up on. Rather than waiting to get all of the answers, I wanted to get back to you on some of the more pressing issues...probably the most important of which is REDACTED."

This goes on for an entire page. It's a gray box of nothing.

On the next page, Rana's letter concludes, "I hope this is helpful and am happy to answer any follow-up questions you might have about the issue. ..."

The dozens of email messages provided in response to my FOIA request look just like this: Page after page of gray where text should be. Only the email addresses, the signatures and the legal and social boilerplate have been left intact.

The Justice Department's response makes a mockery of the Freedom of Information Act. I'm reminded of a line in the song Know Your Rights, by The Clash: "You have the right to free speech, as long as you're not dumb enough to actually try it."

[ The government likes its secrets. Read Government Keeping Its .Gov Domain Names Secret. ]

You're free to have all the information you want, provided it's not informative. No wonder Wikileaks provoked an immune response from the U.S. At a time when consumers just won't stop sharing information and companies just won't stop collecting it, our government has all the privacy it requires to limit inquiry.

Last December, a study published by the Transactional Records Access Clearinghouse (TRAC) found that the number of lawsuits to obtain documents sought through FOIA requests increased during President Obama's first term compared to the last term of President Bush. This is particularly noteworthy because President Obama began his first term promising greater support for open government.

In January 2009, President Obama issued a memo that begins, "A democracy requires accountability, and accountability requires transparency. As Justice Louis Brandeis wrote, 'sunlight is said to be the best of disinfectants.' In our democracy, the Freedom of Information Act (FOIA), which encourages accountability through transparency, is the most prominent expression of a profound national commitment to ensuring an open Government. At the heart of that commitment is the idea that accountability is in the interest of the Government and the citizenry alike."

The Department of Justice is accountable to the public. If Google enlists a public entity to investigate whether Microsoft's search implementation in Windows Vista violated Microsoft's antitrust settlement, the public deserves to know the substance of Google's complaint and the specifics of the way the government is enforcing antitrust law.

I'm aware that there are statutory exemptions to FOIA that allow the government to withhold certain information. But when the information that is released has no substance, what's the point of releasing it at all?

There are nine types of exemptions. Information may be withheld for reasons of national security; to protect internal personnel records; to protect information specifically exempted from disclosure by statute; to protect trade secrets; to protect internal government communication that would not be available by law; to protect privacy; to protect on-going law enforcement proceedings; to protect matters related to reports for regulators of financial institutions; and to protect geological information such as maps and wells.

I'm not arguing FOIA exemptions should be eliminated entirely. Rather they should be applied much more sparingly. Together, FOIA exemptions should form fig leaves rather than burkas. Redact the names if necessary but save the substance.

Here's another email revealed by my FOIA request, from Harry Saal, a member of thetc.org, The Technical Committee, a group formed to monitor Microsoft's compliance with its antitrust settlement (and forbidden from discussing deliberations with the press). Saal's email is to Skip Stritter, another thetc.org member, with others cc'd.

"Skip: your Thursday email stated:"

REDACTED

"To which GeneB replied:"

REDACTED

"Skip Stritter wrote:"

REDACTED

That's not information. It's routing data.

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SAuge
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SAuge,
User Rank: Apprentice
4/9/2013 | 6:16:39 PM
re: The Freedom From Information Act
A very good article. I am glad you are raising this.
D. Henschen
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D. Henschen,
User Rank: Author
4/9/2013 | 8:12:43 PM
re: The Freedom From Information Act
Tom,
The inquiry and response dates alone tell us that government isn't working. Perhaps if they spent less time redacting, they would have more time to respond to inquiries in a timely fashion! I'm guessing it's fear of getting sued by either Microsoft or Google that has the bureacrats covering their butts by redacting everything remotely interesting.
Cara Latham
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Cara Latham,
User Rank: Apprentice
4/10/2013 | 12:52:33 PM
re: The Freedom From Information Act
While I don't find this surprising, the extent to which the government redacted all relevant information is disheartening and severely limits a journalist's ability to serve as a government watchdog. I understand that this is a legal matter and that it occurs between Microsoft and Google (and not the government), but wouldn't the dispute between these two companies be of specific pubic concern, especially provided Google's strong position in the market? That being said, your headline seems to be quite appropriate.
UberGoober
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UberGoober,
User Rank: Strategist
4/12/2013 | 9:08:07 PM
re: The Freedom From Information Act
"...the most transparent administration in history..."

We warned you about this guy.
OtherJimDonahue
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OtherJimDonahue,
User Rank: Apprentice
4/16/2013 | 3:27:43 PM
re: The Freedom From Information Act
COMMENT REDACTED.

Jim Donahue
Copy Chief, InformationWeek
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