By Aaron Mackey
At a time when the federal government is collecting and creating massive amounts of digital data that can implicate people’s privacy and free speech rights, it is crucial that the public know what the government is doing with that information. A ruling from a federal appellate court earlier this month ensures that the Freedom of Information Act, one of the most important legal tools citizens and reporters have for furthering government transparency, allows the public to understand the government’s use of digital data.
The ruling by the U.S. Court of Appeals for the Ninth Circuit came in a case brought by the Center for Investigative Reporting against the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) seeking aggregate data about the number of weapons used in crimes that could be traced back to being originally purchased by law enforcement. The district court below ruled that ATF did not have to produce the data because the search query of the agency’s data would have amounted to creating a new record, something that FOIA prohibits.
The lower court’s ruling was dangerous because it had the potential to broadly restrict FOIA requesters from obtaining digital data based largely on a misunderstanding of how digital data is stored and what occurs when people query databases. EFF filed a friend-of-the-court brief to point out how the initial decision could “frustrate access to vast amounts of government digital data in which the public has a legitimate interest.” EFF’s brief argued further that the ruling was out of touch with the reality that the government is “collecting and centralizing extensive swaths of personally identifying data on members of the public, including extremely sensitive information like biometrics and expressive activity on social media.”
Another friend-of-the-court brief written by Harvard Law School’s Cyberlaw Clinic on behalf of data journalists and media organizations pointedly described how database queries that produce aggregate records in no way resemble creating a new physical or digital record. Instead, because a query is simply an instruction to the database “to select a specific subset of information from a database and return it in a particular arrangement,” the result is not a new record but rather just a representation of responsive data in the underlying database.
The Ninth Circuit recognized the broader concerns at issue in this case, writing, “as CIR and amici recognize, whether a search query of an existing database entails the creation of a ‘new record’ is a question of great importance in the digital age.”
The Ninth Circuit’s opinion quotes EFF and the Cyberlaw clinic’s briefs throughout. For example, the court quotes EFF’s argument that FOIA requests seeking access to aggregate data are essential to balance the public’s interest in understanding how the government uses biometric and other personal data it collects without disclosing the underlying data that is often private or otherwise intrusive. The court wrote:
Moreover, as in this case, ‘[r]eleasing statistical aggregate data from government Databases’ may sometimes prove the ‘only way to comply with FOIA’s mandate while properly balancing the public’s and the government’s interests in safeguarding sensitive information.’
In rejecting the district court’s interpretation of FOIA, the Ninth Circuit concluded that “if running a search across these databases necessarily amounts to the creation of a new record, much government information will become forever inaccessible under FOIA, a result plainly contrary to Congress’s purpose in enacting FOIA.”
We are grateful that the Ninth Circuit understood both the underlying technology at issue and the stakes of this case. By recognizing that FOIA allows requesters to seek aggregate data from federal agencies, the court ensured that the transparency law remains an important tool for people to learn about government use and abuse of the data it collects.
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