The following post is a summary of session #3 from the recent Second
Conference on Computers, Freedom and Privacy. It is 336 lines long.

For more information about the Computers, Freedom and Privacy conferences,
send e-mail to cfp93@well.sf.ca.us

-------------------------------------------------------------------------

Prepared by Bruce R Koball (bkoball@well.sf.ca.us)
Sun, Apr 12, '92  PST (00:04)     336 lines

CFP-2 Session 3 - For Sale: Government Information
 
 This session was structured as a role-playing scenario, 
 skillfully moderated by session chair George Trubow, the Director 
 of the Center for Informatics Law at the John Marshall Law School 
 in Chicago. The other players included:
 
 Dwight Morris, a reporter for the Los Angeles Times Washington 
 bureau, specializing in what he described as data-based 
 journalism;
 
 Ken Allen, Senior VP of the Information Industries Association;
 
 Maurice Friedman, Chair of the American Library Association's 
 Coordinating Committee on Access to Information and also Director 
 of the Westchester Public Library system in New York State;
 
 Evan Hendricks, editor of Privacy Times and chair of the U.S. 
 Privacy Council;
 
 Rick Weingarten, Executive Director of the Computing Research 
 Association and former Program Manager of Communication and 
 Information Technologies at the Office of Technology Assessment;
 
 Frank Reeder, Deputy Assistant Director for General Management at 
 the Office of Management and Budget;
 
 Costin Toregas, President of Public Technology, Inc., a non-
 profit organization involved with information access at local 
 government levels;
 
 Bob Belair, an attorney with the Washington, DC firm of 
 Kirkpatrick and Lockhart specializing in privacy and access 
 issues;
 
 Trubow played the head of a hypothetical Department of Commerce 
 Information Office with the responsibility of examining the 
 agency's information policy on the release of information 
 pursuant to the Freedom of Information Act (FOIA). The questions 
 to be considered were under what circumstances should information 
 be made available. In addition, Trubow indicated that the OMB had 
 informed him that his dept would be having budget cuts, so he was 
 also thinking about finding new revenue sources.
 
 The scenario was cast as a meeting of the agency's FOIA advisory 
 committee to discuss a request from John Smith, a doctoral 
 student in economics, for economic and demographic information in 
 the agency's data base. The information is already available on-
 line the agency's BBS, which is accessible to Smith.
 
 With limited time and computer skills, however, Smith has 
 requested that the agency conduct the necessary searches and 
 supply him the data in hard copy. Because the hard copy would be 
 voluminous and because most of the data required exists on tape, 
 Smith has also suggested that the agency could provide the data 
 to him on diskette along with the software necessary to process 
 the files. 
 
 All these options would cost the agency significant time and 
 money. As an alternative, most of the requested information could 
 be available from other agencies, commercial vendors and the 
 states involved. The advisory committee was to consider how much 
 information to supply, what to charge and what the implications 
 might be for exclusive licenses to some of the data held by 
 private vendors.
 
 After setting the stage, Trubow posed a general question to the 
 panel, "What sort of assistance should we give to him?"
 
 Rick Weingarten said that, while it's the government's duty to 
 inform, it is not required to act as a research assistant to 
 every graduate student in the country. Smith ought to have access 
 to the data, Weingarten offered, but spending a lot of time 
 manipulating the data into the desired form is what grad students 
 are supposed to do. He did indicate that there may be deeper 
 policy issues to consider.
 
 Bob Belair disagreed, saying that the issue is one of choice of 
 format and reprogramming. He characterized the FOIA as 
 "absolutely failing to do what it's supposed to do..." and said 
 that unless the agency can show that the burden is overwhelming 
 they should give Smith what he wants.
 
 Costin Toregas broadened the discussion by saying that the issue 
 is between collectively and individually paying for what we want. 
 "There is no free lunch in this country," he declared and added 
 that, while this case is perhaps an abuse of FOIA, they should 
 reexamine the vocabulary of information access in terms of cost 
 and value
 
 Evan Hendricks, playing his role with gusto, advised that, "If 
 he's a lowly grad student, by himself, we can put him off... but, 
 if he comes with a lawyer it's another matter." A judge might 
 rule that granting Smith's request is in the public interest, 
 thereby landing the agency with a serious burden, so Hendricks 
 suggested that they hone down the facts to prepare for the 
 possibility of the case landing before a judge.
 
 Maurice Friedman suggested that they consider whether this is 
 this a request for a "generic" service, i.e., is it possible that 
 the potential use for the data formats and software that would be 
 generated to meet Smith's needs go beyond this particular 
 application. Friedman also mentioned 2 pending bills: the 
 Improvement of Info Access Act and the GPO WINDO act, which might 
 have an impact on this sort of problem by making the information 
 available through the GPO or depository libraries.
 
 Playing the true department head, Trubow said he liked the idea 
 of passing the buck to another entity. "I'd like to hand off this 
 problem to someone like Ken Allen by giving his outfit an 
 exclusive license to make the data available in what ever 
 format."
 
 Ken Allen replied with a resounding, "No!" While he felt that a 
 contract to act as an agent to provide access, perhaps with some 
 value added, was acceptable, granting an exclusive license for 
 government data to a single company was not. This would, at some 
 point, force restriction of access, he said, adding that the 
 government should provide equal access at marginal cost to 
 everybody.
 
 Citing another problem, Trubow indicated that his agency's data-
 base was in a proprietary format and the access software was a 
 private product that couldn't be given away. Allen replied that, 
 "Your contracting officer didn't think far enough ahead," when 
 designing the system.
 
 Following up on this thread, Frank Reeder pointed out that choice 
 of format is irrelevant if the data bases were designed in a way 
 that they are unusable in raw form. The agency, he said, should 
 examine their systems to insure compatibility with common 
 formats.
 
 He went on to remind the panel that FOIA was based on the premise 
 that the printed page was a universally accessible medium and 
 that this assumption is an increasingly poor one. He also 
 declared that using non-standard data formats created an enormous 
 potential for mischief by effectively enciphering information, 
 thus rendering it inaccessible.
 
 Trubow, citing the possibility of finding some revenue relief in 
 the problem, then asked if the agency could restrict the use of 
 the data to just Smith's thesis, so to protect the possibility of 
 sales to the private sector?
 
 Weingarten replied that Trubow should, "Leave the agency, form a 
 company and join Mr Allen's organization." Government information 
 is public information, he declared, and a government agency has 
 absolutely no business asserting any proprietary rights over it.
 
 "I'm willing to make it public, to help the student," Trubow 
 replied, "but if the private sector can pay for it they ought to 
 do so."
 
 Toregas suggested that the proper question to address might be: 
 "How can we simplify access and make it direct and easy?" He said 
 that funding accessing technologies that empower the individual 
 to reach the information is a worthwhile goal of government. The 
 agency should develop cost principles to attempt to recover 
 costs, he added, and charge for the information in a way that 
 would improve access.
 
 Reeder agree with the premise that government should not be in 
 the information marketing business. He characterized the fact 
 that government agencies are increasingly turning to information 
 sales for revenue as," a troublesome trend" which often impedes 
 access. He also warned that this activity distorts the role of 
 public agencies from serving the public interest into becoming 
 entrepreneurs.
 
 Agreeing with Reeder, Ken Allen said he found the idea that 
 revenue enhancement will become a primary goal of government 
 agencies distrubing. It eludes the checks and balances of the 
 appropriations process, he warned, and even worse, the government 
 agency will have to assert ownership over the information and 
 maintain records of who uses it.
 
 Stepping out of his role and speaking as a FOIA attorney, Belair  
 said he felt that there was a misperception that FOIA access is 
 not a revenue generator. He said he regularly sees charges in 
 thousands of dollars for accessing agency data.
 
 Morris the cited the difficulty of actually getting action on 
 FOIA requests. He recounted comments made to him by government 
 officials that, "FOIA is a joke," which was, "put into place to 
 obscure information, not reveal it." Morris said he uses FOIA 
 only as a last resort. He then went on to criticize the scenario 
 as being unlikely and said any real agency would probably reject 
 Smith's request out of hand.
 
 He also pointed out that agencies are already maintaining records 
 of who accesses the data, citing as an example vendors who use 
 FOIA to gain access to the FOIA files of agencies to see who is 
 using the data. These vendors then try to sell their access 
 software to these people. They are, in effect, using FOIA 
 requests to generate direct marketing lists, he said.
 
 Speaking more generally, Friedman said that, "there's a 
 fundamental right to know... it's not that information is free... 
 but the collection of this data has already been paid for by 
 public funds..." He added that value-added remarketing is fine as 
 long as basic access not precluded.
 
 Playing devil's advocate, Evan Hendricks opined that there is a 
 way to make some money here. Amend the copyright law, he 
 suggested, to provide a mechanism similar to Canada's Crown 
 Copyrights, i.e. to grant the government copyrights on 
 information it holds. On a more serious note Hendricks said that 
 the government should use technologies to help people and provide 
 access to public records, but, while public information is 
 public, access to it must be designed to protect privacy.
 
 He gave the example of state government selling drivers license 
 information as a potential privacy problem. He then quoted Prof. 
 Alan Westin's recent article in "Mobius" which predicted that, 
 "Rules governing public access to government-created public 
 records will be significantly revised to limit wholesale  
 purchase and unauthorized uses of public record personal data by 
 the commercial and non-profit sectors." 
 
 Hendricks went on to suggest the adoption of due process 
 procedures that would:
 
 1) allow the data subject to protect the privacy of the home 
 address; 
 
 2) require the government agency to obtain the informed consent 
 of the data subject to sell the data (specifically, if the 
 government licensing agency is already charging for the driver's 
 license they should be required to obtain informed consent to 
 sell the data and offer a discount on the license fees);
 
 3) provide notification of access so subject knows who is looking 
 at the information.
 
 Trubow then said he wanted to pursue the copyright issue, and 
 revealed that one of his agency's programmers had pointed out 
 that the student was on to something, and with a bit of 
 programming effort, something really valuable could result. But, 
 the agency would need to protect this software to insure its 
 profits, he added.
 
 Again declaring his opposition to using information sales as a 
 revenue source, Frank Reeder pointed out that even the proceeds 
 of FOIA fees are not directly available to the agency for further 
 expenditure.
 
 Morris reiterated that the government should not be in a for-
 profit business. Recover the costs if there is an ability to pay 
 and the cost is reasonable, he said
 
 Belair suggested that if the purpose is the dissemination of 
 information, and if the private sector is not offering effective 
 means for providing access, the agency is justified in taking 
 actions to facilitate access, including the production of 
 software.
 
 Toregas said the underlying issue is defining government, which  
 he said has a strong social role; it should bring people 
 together. He posed the question of whether information can play a 
 role in reversing the decay of our society. He said there are 
 three aspects of the access question; only two of which -- 
 liberty and privacy -- had been touched on in the discussion so 
 far. The third part, he said, is service; information can be a 
 powerful tool for providing a service to society. "What can 
 information do for society today?" he asked.
 
 In summary, Trubow said that he sees an opportunity to offer new 
 information configurations; that government is justified in 
 funding their development and agency could recoup the cost. He 
 then threw the session open to questions from the floor.
 
 Peter Denning asked about the future of access and about putting 
 the information on-line. Friedman replied by citing the HR 3459 
 which covers on-line distribution. Weingarten added that 
 information systems are becoming much more complex, so simply 
 "putting it out there" is not sufficient; there is a need for 
 tools to structure, prepare and provide access to the 
 information.
 
 Belair predicted that in the near term we will get substantial 
 reform of the FOIA. "It's going to get better because it's been 
 so bad," he said. Toregas predicted a well connected community, 
 but said that it will take concerted action by individuals and 
 partnerships across the public and private sectors.
 
 Radio journalist Harry Goodman asked Ken Allen: "Do you still 
 believe that 'the libraries be taken off the dole' and that 'a 
 lot of this info should not be made available directly to the 
 public, because it puts government in competition with the 
 private enterprise.'" These were quotes which Goodman claimed 
 Allen had made on his (Goodman's) radio show. Allen replied, "I 
 don't think I ever said that..." at which point Goodman offered 
 to play him the tape.
 
 Allen reaffirmed his belief that government should not assert 
 ownership over information and that the public has a right of 
 access. But, he said, the issue has been focused on 
 "privatisation" which is a red herring; the real question is what 
 is the best method for providing data access.
 
 The WELL's own Congressional candidate, Glenn Tenney then asked 
 about the excessive costs of information, using congressional 
 voting records and patent records as examples. Maurice Friedman 
 agreed, pointing out that the company providing the data about 
 congressional voting records is under foreign ownership 
 (Elsivier, Holland). He said he thought that sort of information 
 should be freely available, calling it the, "fundamental 
 Jeffersonian stuff... how did your congressperson vote.."
 
 Ken Allen said that the company providing that service has been 
 in business for twenty years and before that there simply was no 
 public access to congressional records and testimony. He said 
 that the issue was whether the government should fund the 
 availability of the information in all formats.
 
 Jim Warren said that he would like to see all legislative records 
 on-line and then asked Ken Allen what the IIA's current position 
 on exclusivity of control of public records. Allen replied that 
 they are opposed to any monopoly control of government 
 information, but that they feel that value-added services offered 
 by the private sector have value.
 
 Staunch libertarian John Gilmore took issue with the power that 
 government agencies have to compel citizens to provide 
 information. Trubow replied that if his agency relinquished the 
 power to compel information, his information sources would 
 quickly dry up.
 
 Several other questioners touched on equity of access, cost and 
 availability issues. Trubow closed with the observation that even 
 though we're living in a free society, nothing is free; that 
 there's a cost to be paid and the problem is how to work out the 
 relationship between government and the private sector to pay 
 that cost.
 
.