FOIA, Inc.

Government transparency is imagined as a public good necessary to a robust democracy. Consistent with that vision, Congress enacted the Freedom of Information Act (FOIA) to allow oversight and accountability of governmental activities. No actors are more central to the design than journalists, who were not only the prime intended users, but who were intimately involved in crafting the law itself. But this democracy-enhancing ideal is at odds with FOIA’s reality: at some agencies, commercial — not public — interests dominate the landscape of FOIA requesters. This Article provides the first in-depth academic study of the commercial use of FOIA, drawing on original datasets from six federal agencies. It uses these agencies as case studies to examine the way that businesses derive profit-making value from free or low-cost federal records. Remarkably, these datasets also reveal a cottage industry of companies whose entire business model is to request federal records under FOIA and resell them at a profit. Information resellers are not isolated occurrences, but rather are some of the most frequent FOIA requesters — often submitting hundreds or even thousands of requests a year — at a variety of federal agencies. Commercial users certainly have legitimate information needs, but, as this Article demonstrates, the volume and character of the current commercial use of FOIA undermines its efficacy as a transparency tool. Private businesses in essence receive a substantial subsidy without any corresponding public good, all while draining agency resources that might otherwise be used to respond to FOIA requests that serve its central oversight and accountability aims. Moreover, information resellers have become the de facto locus for federal records for whole industries, effectively privatizing an important public function. Counter-intuitively, limiting commercial requesting will not solve this problem. Instead, this Article proposes a targeted and aggressive policy of requiring government agencies to affirmatively disclose sets of records that are routinely the subject of FOIA requests — a surprisingly large number of the documents sought by commercial requesters. By meeting information needs in a more efficient manner that is available equally to all, affirmative disclosure will enable federal agencies to reclaim public records from the private market and free up resources to better serve FOIA requests that advance its democratic purpose.

Setting Congress Up to Fail

In Shelby County v. Holder the Supreme Court invalidated key provisions of the Voting Rights Act of 1965 based on Congress’s failure to justify the formula used to determine which jurisdictions would be subject to the Act’s pre-clearance requirement of submitting all changes to voting procedures to the Justice Department for prior approval. This short essay explores one problematic feature of the Court’s analysis: its refusal to consider the legislative record as adequate because it was created to justify the coverage formula after the fact, rather than to facilitate deliberation on the coverage formula before a decision had been made. This reasoning essentially imports from administrative law a rule called the Chenery principle, and as this essay explains, it does so without justification. The differences between administrative and legislative decision making processes compel different treatment by the courts, and treating legislative records like administrative ones, in essence, asks of Congress something it is institutionally ill-equipped to perform. It sets Congress up to fail.

An investigative and interpretive study, with paintings, drawings and prints, of "All Saints' Day" and "All Souls" Day" in Mexico

"In Mexico, the first two days of November are set aside each year for the commemoration of the dead. This fete, called All Saints' Day and All Souls' Day, is observed throughout the world; however, in Mexico, it is celebrated in a manner peculiar to that country and to the various localities within that country . This holiday is sanctioned by both government and church; and is celebrated by practically all Mexicans, whether they be Catholic, pagan, relilious or irreligious. These are the two days when that contrast which is the essence of Mexico becomes obvious: the "triste~alegria" (sad-happiness). During these days , art objects are abundant and arresting ; and religious ceremonies, rites and fiestas blossom forth! Urban and folk arts, in every field, find full expression at this time. The religious, social, political, and artistic manifestations of the holiday are not only stimulating in themselves, but are exciting as subjects for painting, drawings, prints, and any other form of artistic expression!"

The pre-raphaelite female muse in Julia margaret cameron’s “idylls of the king” photographs

There has been little discussion of Julia Margaret Cameron’s Idylls of the King photographs over the past decade. My goal with this paper is to bring her Idylls of the King series back into discussion and address its success and relevance in both art history and literature. Scholars Helmut Gernsheim and Marylu Hill have questioned photography as a means to capture the imaginative content of Tennyson’s Arthurian stories and they declared Cameron’s photographs a failure. I argue that her theatrical style, use of props and costumes, obvious posing of her models, and nod to Victorian tableaux vivants capture the true essence of Tennyson’s epic. Her use of the Pre-Raphaelite female muse to portray the Arthurian characters of Elaine, Guinevere, and Vivien places her photographs in direct correlation with Pre-Raphaelite painting as well as popular literature. Her depictions of Tennyson’s epic poem are highly successful and I believe she achieved her personal goal of ennobling photography to the level of High Art.