Praise for the power of inefficiency

Asad refrain from officials seeking surreptitiously to geld Arkansas’ Freedom of Information Act (FOIA) is that the FOIA is “inefficient.” That “inefficiency,” however, isn’t a bug—it’s a feature.

When we mandate transparency to ensure accountability, efficiency is the price. When we mandate security to ensure safety, efficiency is the price. When we mandate medi- cal licensing to ensure competence, efficiency is the price.

Indeed, all oversight is “inefficient:”

Civilian review boards of police.

Legislative hearings regarding executive-branch activities.

Internal-affairs departments for law enforcement

The Legislature’s Audit Committees.

Inspectors General.

The U.S. Department of Justice’s (DOJ) Office of Professional Responsibility (OPR).

The Sarbanes-Oxley Act was introduced as the “Corporate and Auditing Accountability, Responsibility, and Transparency Act” in response to various corporate-accounting scandals.

The tradeoff is right there in the title: The law imposed “inefficient” transparency obligations on corporations and accounting firms in exchange for accountability.

I was asked by the founding head of the DOJ’s OPR to serve on two task forces after governmental misconduct was exposed. The result of both labor-intensive investigations was the adoption of “inefficient” checks and balances to forestall future wrongdoing.

The press serves as the fourth branch of government precisely because it provides oversight through often-forced “inefficient” FOIA transparency.

And a New York Times columnist, in discussing the government’s suppression of the lab-leak explanation for covid, made plain that the blame for the inefficiency of that forced transparency lies with government.

Zeynep Tufekci wrote: “[A] lmost all of the most significant information we’ve had about Covid’s possible relationship to scientific research in Wuhan has come out in dribs and drabs from the hard work of independent researchers, journalists, open records advocates and others, not directly from our government choosing to act with transparency.”

No doubt officials who found the lab-leak explanation politically inconvenient characterized their melodramatic efforts in responding to FOIA requests from those independent researchers, journalists, and open-records advocates as “inefficient.”

Thank God for that “inefficiency.”

The Federalist Papers make patent that the core ideals under-girding the entire system of checks and balances at the heart of our federal constitutional system are—wait for it—“inefficient.”

But the alternative is much worse.

In 1996, Nathan Myhrvold aptly wrote in Slate magazine: “[T]he first place [prize] in efficiency must go to dictatorships—the more vile, the more efficient. The more absolute the power of the local tyrant, the more rapidly and completely his policy desires are implemented … Dissidents complaining? Just shoot them. Minor minions acting up? Torture them … It does cost a few bullets, but bullets are cheap.”

So, next time you hear an elected official lament the Arkansas FOIA as “inefficient,” recognize he’s bemoaning a virtue. And remember his name, because democracy itself is “inefficient.” It might take several years before you can to vote him out of office. That delay will be “inefficient” too.

Additionally, when you hear politicians lecture you that the use of digital records and new communications technology have increased the amount of public records available, don’t accept the ensuing baitand-switch that responding to FOIA requests has therefore become more complex.

Nonsense.

Years ago, a city attorney asked me how to respond to a FOIA request for all communications between a mayor and a particular constituent, given that those records were kept by date in cardboard boxes. My response: Go through the boxes.

Nowadays, those records should be either digital in origin or digitized thereafter. A simple computer search will produce the documents immediately. So, even a far greater number of public records in electronic format is much easier to manage than far fewer in boxes.

Over 20 years ago, my former co-author of the treatise on the Arkansas FOIA, John Watkins, chaired the committee that specifically updated the FOIA to increase FOIA obligations given the advent of digital records.

Watkins recognized then what’s even more true today: Electronic records make FOIA compliance and transparency simpler, not more complicated. Therefore, FOIA obligations on government bureaucrats shouldn’t be reduced because of electronic records. Rather, the committee enhanced FOIA obligations given the greater ease in responding to records requests in a digital world.

Indeed, the logical extension of the Watkins committee’s efforts is for government to proactively post all public records online irrespective of FOIA requests.

The Arkansas Attorney General’s office has for decades voluntarily posted its opinions, including digitizing opinions going back to 1984, when Steve Clark was AG. Now that’s transparent government!

In that vein, there’s no reason that law enforcement couldn’t post all dash-cam video right now. This is the type of proactive transparency that we should demand of government.

Those sincerely looking to further update the FOIA in light of modern technology should be advocating for laws compelling all agencies to expand upon what the AG’s office has been doing voluntarily for years: creating and maintaining online-records reading rooms containing all public records.

This evolution of the Arkansas FOIA would not only increase transparency; it might be, well, more efficient. Mon dieu!

This is your right to know.