The Social Layer of Freedom of Information Law

BY David S. Levine

requires transparency and accountability—information shared with the public that allows the public to know what its government is doing. It is equally uncontroversial to say that social media allow for an unprecedented amount of informal but structured dissemination and analysis of information. Despite these two basic points, U.S. freedom of information law has failed to harness the power of these new social media networks and, more importantly, formats in a way that amplifies public knowledge of government information. This harsh reality impedes a modern transparent democracy.

The focus of this Article is a general lack of appreciation, from both a theoretical and practical perspective, for the public’s need and desire for optimally formatted, socially ready information. This defect is unfortunately found in the Freedom of Information Act (“FOIA”), the major U.S. sunshine law that suffers from a related but greater statutory deficiency. FOIA requires that an agency provide a “record” in “any form or format requested by the person if the record is readily reproducible by that agency in that form or format.” Thus, FOIA allows agencies to produce information in less-than-optimal formats, resulting in significantly impeded flow of information to and from government.

Social media are a prism through which this governmental disclosure problem can be addressed. However, a solution suggesting that government merely employ social media tools, like posting information directly to Facebook and Twitter, misses the point. Rather, when thinking about this freedom of information problem and the broader issue of how we can spur a truly modern democracy, it is more useful and productive—and indeed more theoretically sound—to focus on encouraging the government to utilize social media formats like spreadsheets and structured, machine-readable databases.

This Article argues that, from a theoretical perspective, governments should reorient their thinking about social media to focus on its indirect value as an information-formatting construct rather than as purely a direct tool for distributing information. Once social media’s impact on freedom of information is properly understood, it follows that governments should provide information in structured and useful formats that are socially optimized to best meet the public’s analytical needs so that the social layer of government information can flourish. From a practical perspective and to meet this theoretical imperative, this Article proposes a modest amendment to FOIA so as to spur and support the public’s development and exploitation of the social layer of government information.

DOWNLOAD PDF | 90 N.C. L. Rev. 1687 (2012)

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