I’ve been posting a lot in the [2438.AB] CRS + Sunshine thread but I realized some of the things I was talking about were a bit broader in scope than Roavin’s proposal and could lend themselves to a broader revision of the Sunshine Act.
Some intentions here:
Better handling of communication between institutions. Discussions are disclosed if they lead to an action by any significant institution — the institution taking action is responsible for disclosure — instead of assuming that discussion happens within a single institution’s inner working area. For instance, if the Cabinet asks the Delegate to vote early on a World Assembly resolution, that produces deliberate action by the Delegate, and it’s on the Delegate to disclose that information. If you don’t trust the person you’re talking to to withhold information properly, that seems like a problem because you’re already trusting them to act or not act.
Inclusion of a petition system. I know citizens can just request information if they want it, but I think back when we had a petition system, those petitions (see here, here, and here) provided a focused venue for citizens to demand information they cared about when they cared about it.
Petitions aren’t limited to listed institutions. I think this strikes a good balance for some of our institutions where, I promise you, disclosures are really really boring or pointless tedium. 99% of CitComm discussions, for example, are either personally identifiable information or just copy-pasting the application, but if someone wants to see the discussion for a particular application, they can always petition for it. Similarly, I think there’s a pretty strong argument that the Assembly is an institution but I feel that regularly dumping logs from #legislators-lounge on Discord is really unnecessary, but if there is someone who’s a citizen but not a legislator and wants to see something, they can petition for it.
I realized it’s been a while since I properly wrote a draft like this. Comments and feedback welcome!
Regarding the petitions, do we want to include anything that compels an institution to at least respond to that petition or such? TNP’s FOIA Act is awfully written but it includes the following which we could use as inspiration:
At any time a resident may request the release of any government record or private government record through the appropriate officers.
The appropriate officers will retrieve information requested from the different departments of the government.
Residents who do not receive this information for any reason not specifically designated in appropriate laws or regulations may file a request for the information to the court, where the appropriate officers may present evidence that addresses any claim that release of the information meets one or more of the acceptable criteria for classification.
Information appropriately not disclosed will be accepted as classified by a majority vote of the Court sitting as a three-member panel.
Are you looking for a requirement to respond or to explicitly specify judicial review as recourse (or both)? I don’t mind conceptually, but I think the former only really serves to enable the latter. For what it’s worth, I think the Sunshine Act is an awkward place to grant the High Court some specific judicial review authority — we can just let the Court receive questions to clarify whether the Sunshine Act permits the withholding of certain information, just as it can clarify and has clarified whether the actions of government officials comport with regional law.
I’m with you, it’s redundant to specify that the Court can review it because the Court can always review. But something that compels (even if it has no teeth, like the rest of the act) an institution to have to respond seems reasonable to me.
Generally, I think this is great. One substantive comment and then a few nits.
Why is it an awkward place to grant the Court such authority? The reason that most RL FOIA statutes are successful is that they contain specific judicial review provisions that give them teeth. Otherwise, the institution from which the records are sought could just stonewall the requesting citizen. Usually, it’s the threat of an injunction (and contempt for failure to comply with said injunction) that forces the institution to give up the material that the citizen requested. I guess failure to comply with a Court ruling after a review request could subject a government official to contempt? Could the Court issue an injunction ordering the release of material notwithstanding the Judicial Act’s limitation of injunctive authority to “temporary” injunctions that are “pertinent to the orderly progression of the case or in the interest of public peace and order”? Maybe. Just seems to be that it would be worth clarifying exactly what role we want the Court to play in enforcing FOIA.
Not a huge deal, but given the proposed language, I actually would have thought that the Cabinet would have been responsible for releasing the material in your hypothetical. That was the institution that affirmatively decided to act. The Delegate was likely legally compelled to follow the Cabinet’s instruction, or at most just acquiesced in their request. The Delegate didn’t really “make a decision to take deliberate action” in that scenario, did they?
My only drafting edit–I would word this clause as: “leads to a decision by a significant institution to take or refrain from taking deliberate action beyond that institution’s inner working area.”
I see the logic behind this, but I agree with Welly that the Delegate is legally compelled to use their powers in most situations. Further, I think it may be considered unlawful for the Delegate to release discussions belonging to the Cabinets domain.
I’d rather see the Cabinet release discussion threads as part of their Sunshine releases and, if needed, highlight Delegate orders.