Terry Mutchler

Secrets of Transparency

This week, tennis pro Tim Smyczek missed an opportunity to compete at Wimbledon because he didn't read an email all the way through.

In that spirit, this column contains both tips and warnings related to records-access laws and ensuring that lawyers and journalists not only read them, but maximize the use of these laws. For lawyers and the C-suite, international transparency law strategies will serve as a warning. For journalists, well, consider it your news tip for the month.

In my work as a transparency law expert, I was tapped to help two countries ensure that citizen access to government records is guaranteed. A team of academia and political scientists from Indiana University sought my help in their work rewriting the Constitution of Myanmar to inject a constitutional right to access government records. In another international effort, I was asked to counsel a team of communications experts as they advised a newly formed country on aspects of records access as part of a free press.

Transparency in government around the world far predates the United States' efforts to ensure citizens have a right to access the records of their government, which Uncle Sam didn't pen until 1965. Sweden gets the crowning victory on codifying the world's first Sunshine Law in 1766. Since then, more than 100 countries around the world have laws guaranteeing citizen access to government records.

Before you yawn and turn the page: focusing this column on international access to records is more than just a history lesson.

Lawyers who represent multinational corporations, pharmaceuticals or gaming need to understand that international FOIA can spell trouble for them. Their corporate records might withstand a FOIA request in the United States, but they must be aware that those same records could be accessible through international efforts in countries where they also do business.

Consider this case. Some researchers at Yale University filed a Freedom of Information Act request to obtain information related to a pharmaceutical company. They sought drug studies, adverse reaction details, reports and other records significant to a particular type of drug.

The U.S. government didn't consider some of the information proprietary or as closely held as the pharmaceutical company would have liked. For months, the pharmaceutical company wasn't even aware that a request had been filed seeking their records. Months after the FOIA request was filed, the company finally received a letter informing them that a request had been received, and the government agency was poised to release portions of the material within days. The letter also conveyed that the bulk of the information sought, including the reports, was protected and would not be released.

The correspondence caused a scramble to examine the original FOIA requests, what records were sought and whether the information was in fact public. On one aspect of the request, the company thought it caught a break: the government ruled that a report was not available for release under FOIA. So they breathed easy and didn't give it more thought.

However, across the pond, where the pharmaceutical company also does business, a different story unfolded. The European Union (EU), which has an aggressive approach to transparency (unless it involves privacy of an individual), had already received a request for the same information and already released the exact information being withheld in the United States. In fact, it was available online.

As to the warning side of the column: corporate lawyers must undertake a best-practices approach when submitting information to government entities. And if they do business overseas, they must understand that those laws could result in the release of information that is protected here in the United States.

What could the lawyers have done here to protect their records both here and abroad? The most important component of protecting genuinely confidential proprietary information or information that could cause competitive harm is to first recognize that any time a private company does business with or is regulated by a government agency at the federal, state or local level, company records are on the table for review. It doesn't mean that all records will be made public, it just means that they are subject to the records-access laws.

Many states do not permit access to records of a private company that do business with the government. But many do. Pennsylvania has one of the most aggressive laws that can reach records of a private company. Section 509(d) of the state's Right to Know Law codified that records of a third-party private company related to a “governmental function” are accessible. And more to the point—the government agency is required by law to obtain them during a request.

In my work, I estimate that 90 percent of corporate lawyers that I interact with in any industry—medical marijuana, pharmaceutical companies, hospitals, to name a few—do not understand that their records are subject to release. Records-access laws—and how to navigate them—don't register on their legal radar screens, so protecting them is not part of their original focus.

In the Yale FOIA instance, here's my playbook advice. First, be aware of records-access laws and their implications to the company both in the United States and abroad. Lawyers and company executives should obtain transparency law training. After that, they should work with professionals to create transparency law strategies that should be woven into every government submission. This would include incorporating triggering language into their government contracts requiring the government to alert the company if a request for their records is received.

Such best practices will not protect genuine public record, nor should they. But these proactive approaches will better position companies to navigate these important compliance laws and better protect their information.

Now to the news tip side. Journalists must think creatively about how to obtain records, which are so easily and often denied by government. (Keep in mind that the official title of those that handle FOIA requests in several federal government agencies are known as IDAs—initial denying authority. It's depressing. ) First, journalists need to understand U.S. FOIA, and then recognize that reams of paper may be available through international FOIA—if you know how to use them.

Surprisingly, many journalists, particularly young ones, have never read our own FOIA or their state's equivalent law, much less another country's FOIA.

Several years ago, I walked into a major national newsroom to train their reporters on the record-access laws. My first question: “How many of you have read the Freedom of Information Act?” Even among the elite investigative journalists in the group, only one raised his hand. One in a group of about 40. It only got worse from there. Many couldn't correctly answer basic questions about what information is available to them, and what information is off limits under these laws. About a third of their requests were for information that the law flatly says “is not available.” FOIA can be an effective tool but you have to know how and when to use it. Sometimes watching reporters use FOIA looks like a construction worker trying to use a shovel to hammer a nail. They know the shovel is an effective tool—they are just using it for the wrong job.

Education is the call of the day for both journalists and lawyers. Neither group wants to find out that they missed protecting information or obtaining public records simply because they failed to read the law. I guess what I'm saying is: Don't be the Tim Smyczek of FOIA.

Terry Mutchler is the managing partner of Mutchler Lyons, the nation's first transparency law firm devoted to helping media, corporations and wealth managers obtain public records. She served as the founding executive director of Pennsylvania's Office of Open Records, and as Illinois' first public access counselor enforcing Sunshine Laws. Contact her at [email protected]