Access To Public Information:
A Key To Commercial Growth And Electronic Democracy

Conference - Stockholm
27/28 June 1996


Flags of 15 EU Member States

Reinventing Government Through Information Technology

Henry H. Perritt, Jr.

Professor of Law, Villanova University School of Law *


Introduction 
The near-term reinvention vision 
Transparency and access

The long-term reinvention vision Policy principles Conclusion

Proceedings ]


Introduction

The European Commission’s PubLaw project grew out of a realization that information technology can change transparency of governmental process fundamentally by facilitating the reporting and publishing of public acts. The project also recognizes that commerce in information already is an important part of the economies in developed countries. Because much valuable information originates in the public sector, public information policy exercises a large influence on competition in an important market.

National and European citizens can get access to the work of their governmental institutions electronically rather than waiting for reports and statutes and judicial decisions to be printed and distributed physically. The new technologies permit new kinds of collaboration between public and private institutions aimed at facilitating dissemination of public information. Democracies all around the world are struggling to define appropriate policies to take advantage of new technological possibilities and are shaping an appropriate role for access rights and intellectual property law to play in the electronic age.1

More broadly, PUBLAW and electronic dissemination and access invite consideration of the possibility of “reinventing government,” to use a phrase popularized by the Clinton Administration’s National Performance Review project.2 The National Performance Review attributed widespread cynicism about government to “industrial era bureaucracies in an information age”.3 The World Wide Web, the Internet’s most popular application, is an example of entirely new possibilities for producing and assembling information products of government entities. The Web sharply reduces cost to both producers and consumers of information by permitting different functions in the production chain to be performed by independent entities. In the Web’s decentralized computing network, related pieces of information and services are available through an open network. The Library of Congress, the Government Printing Office, the Federal Depository Library System, and most private legal publishers in the United States already are being radically transformed by the Internet and Web architectures.4 There is growing awareness that the same technologies can improve the formal processes of government by making adjudication and rulemaking more efficient and accessible. Also, the National Performance Review and others have recognized that some governmental benefits can be distributed electronically.5

This paper recognizes that there are two perspectives for thinking about the reengineering. The “near-term” perspective uses new information technology to improve access and competition within long-established models for public interaction with government. This view is exemplified by early PUBLAW efforts in Europe, the Paperwork Reduction Act and American Bar Association policy statements in the United States. The other, more ambitious, “long-term” perspective asks whether newer information technologies should be deployed so as to enable new forms of citizen interaction with government, new forms of policy making and new forms of dispute resolution.

The first part of the paper reviews a near term vision for reinventing transparency with new technological tools. It considers access, competition, property and privacy implications of a commitment to open networks as the primary vehicle for disseminating public information. This paper considers whether reengineering of public sector information management policies is necessary to improve the synergy between public and private sectors in the information market. It suggests that reengineering is appropriate, and that the Internet’s World Wide Web is the appropriate engineering prototype.

The second part of the paper explores longer-term reinvention possibilities. It explores the basic vision of those who suggest that information technology permits government to become more informal - even conversational. It seeks the basic justifications for formality in legal institutional processes and considers how information technologies may serve the legitimate functions of formality. It reviews two practical pilot projects: the Internet town meeting, sponsored by the White House in 1995; the Virtual Magistrate Project, a private dispute resolution system offering a model of electronic adjudication and mediation. Then, more theoretically, it analyzes the relationship between the basic function performed by the organized legal profession - as represented by the bar - and a sort of “concierge function”6 mediating between citizens and their governments. Finally, the paper offers a set of basic policy principles that, in the near term, should guide the evolution of electronic publishing and dissemination as an aid to greater transparency. These principles also form the foundation for a more ambitious set of targets for all kinds of reinvention of government.

Clear policy precepts, based on the suggested principles, should be implemented now to shape the near-term reinvention vision. The long-term reinvention vision requires more thought, analysis, and experimentation before its policy framework becomes clear. Governments should venture to articulate and implement the policy framework now for the near-term vision while energetically pursuing a variety of pilot projects and experiments on aspects of the long-term vision.

The near-term reinvention vision

Transparency and access

Few westerners would doubt that the legitimacy of democratic governments depends to a considerable degree on the transparency of their processes. New information technologies enhance transparency because they make information generated by and held by government institutions more accessible to the public. A citizen can access a public document through the World Wide Web within a second after the agency publishes the document by placing a simple word-processing file on a small agency computer “server” connected to the Internet. Not only is this quicker by months than waiting for access to paper documents while the agency prints and publishes them or while an ad hoc request for a paper copy is processed, but it also is considerably cheaper for both government and citizen. World Wide Web servers are cheaper than printing presses by two or three orders of magnitude. Even high-capacity connections to the Internet are much cheaper than networks of warehouses, mailing rooms, and delivery vans. The number of citizens in western countries with their own personal computers and modems is growing rapidly, and thus, the number of citizens with actual or potential access to electronically published government materials far exceeds the number with private subscriptions to official bulletins such as the U.S. Federal Register and United States Code. Also, basic access to the Internet is much cheaper for public libraries than ongoing subscriptions to multiple print publications with a fraction of the same public information. Thus, the public library can be the public information safety net in an electronic environment just as it is presently for a paper environment.7

Speed and cost of access, however, are not the only advantages of the new technologies. When a citizen or consumer obtains government information in electronic form, it is much easier to use, for example, by searching for particular words or phrases, incorporating portions in a newsletter or a brief, or printing particular provisions of interest in the number of copies desired.

If law and policy encourage a diversity of sources and channels for obtaining the public information in electronic form, citizens and consumers also benefit from specialized intermediaries. Just as the print press and magazine publishing industries tailor particular publications to the needs and interests of particular market segments and user communities, so also does the World Wide Web make it easy for intermediaries to focus on the needs and interests of particular user communities. For example, an association or publisher serving the needs of physically and mentally disabled persons can, if law and policy so permit, set up a special “window” into a vast array of governmental resources pertinent to the needs of the disabled. Another association or publication serving the needs of the intellectual property bar can design and deliver a set of World Wide Web pages and files that represent a “window” into a vast array of materials on the world-wide Internet pertinent to patent, trademark, copyright, and trade-secret law. Of course, if the basic content is unavailable through the Internet, or if state-sponsored monopolies are created, these choices and specialized services will be unavailable.

And, of course, diverse outlets for public information limit censorship and concealment of public affairs. Just as access by and to the press long has been recognized as essential to democracy, so too do open network architectures’ diversity of sources and channels for public information serve democracy through the information superhighway.

Competition

The value of information in electronic form tempts governments confronted with budgetary shortfalls to obtain revenue from their information resources. Because agencies possessing such resources start with a monopoly position, they naturally are attempted to maximize revenue by extending the monopoly through a variety of state-sponsored downstream monopolies. Sometimes, this takes the form of a franchise offered to a preferred electronic disseminator, which typically uses proprietary formats and software inconsistent with the Internet’s open network architecture, and which may or may not have a continuing “joint venture” or “partnership” with a public authority. A monopoly like this cannot be sustained unless upstream access to and redissemination of the raw information is prevented; multiple points of access to the core information would enable competition with the monopolist and undercut the price.

Proposals for such arrangements, justified with various arguments, abound in the United States and elsewhere.

Not only do such monopolistic arrangements negate the benefits to public and public authority of open network architectures for dissemination, they also are hard to reconcile with the pro-competition policy that underlies market economies, the American antitrust laws, and the European Union.

Of course, competition is never perfectly free; every contract limits competition to some extent because it restricts the buyer’s and seller’s freedom to buy or sell from anyone outside the scope of the contract. The scrutiny appropriate for pro-competition policy, however, reveals fallacies in the justifications for state-granted monopolies over public information.

Restrictions on competition are not necessary to get the job done. Everything is cheaper to originators, intermediaries, and consumers in an open electronic publishing environment, and more expensive in a proprietary, monopolistic environment. World Wide Web publishing reduces costs to the point that barriers to entry are significantly reduced for a great variety of public, private, non-profit, and private, for-profit enterprises. Total capital cost for setting up a significant Web publishing operation for the full text of all of the decisions and opinions issued by the federal appellate courts in the United States is on the order of $50,000, and significant contributions to access and dissemination could be made with fewer resources, on the order of $10,000.8 Five years ago, there was uncertainty as to whether Internet publishers could get paid for their activities, but now the answer clearly is that payment can be arranged through the Internet. For example, access to any Web service can be restricted to subscribers. In addition, the major credit card companies have adopted standards that permit information to be purchased on a per-unit basis, ad hoc. In other words, the empirical evidence shows that the Internet and its World Wide Web form a remarkably competitive marketplace. Competition policy should make sure that the benefits of this market are extended to information, especially public information.

Limits on competition are not necessary to protect the integrity of public information. There are legitimate concerns that a diversity of channels and sources of public information may leave consumers and citizens confused as to which is the correct and authentic version of a public document. Trademark and fair competition law is a far better way to respond to this concern than monopolies and copyright law. A public authority concerned about “unauthorized” manipulation of its information resources, can designate some channels as “authorized” or “approved,” granting them the privilege of using the seal of the public authority. Anyone is free to serve as a channel for the information resources, but the public agency can exercise control over those specially licensed.

Property interests

The existence of intellectual property in all developed countries and its inclusion in the Trade-related Intellectual Property appendix of the Uruguay Round of GATT demonstrates that property rights often are necessary incentives for producing added value in information resources. Intellectual property law and policy, however, always have charted a difficult course between under-protection, which impoverishes the flow of new works, and over-protection, which impedes use of information and development of new knowledge from the existing stock of works. Potential and present intellectual property owners always have an economic incentive to desire broader intellectual property rights. Just because they want it, however, does not mean that public policy should grant it. Copyright is a monopoly, and it should be scrutinized with the same skepticism as competition policy scrutinizes any monopoly.

Scrutiny is particularly appropriate for monopolies over public information resources, and the case for intellectual property protection is extremely weak. Public authorities collect and maintain governmental data because they have a legal mandate to do so; unlike private authors and publishers, they do not need economic incentives to do their legal duty. Logically, there is no justification for copyright in basic public information, including the actual data, the basic text of statutes and judicial opinions, and bitmaps or representations of geographic data.

On the other hand, incentive is needed for production of value-added enhancements in the open markets promised by the Internet. Copyright and other intellectual property law should allow appropriate protection for value-added enhancements in software and original Web pages, for example, but not for the underlying data. The Feist decision by the U.S. Supreme Court9 strikes the right balance. To the extent that producers of electronic databases are threatened with piracy, they can design their systems to increase the costs to pirates, thus redressing any balance disturbed by new technologies. A need for an expanded scope for copyright law is not supported by empirical evidence. In this regard, the White Paper of the Clinton Administration and pending legislation to implement its recommendations are seriously flawed and represent a tilting of policy toward users of traditional technologies who are timid about exploring the potential of the Internet.

In charting this course and distinguishing the raw information from the value-added enhancements, it is important to give information producers fair notice that an adaptation of copyright’s merger doctrine remains available as a way of forcing access to the raw data. In other words, if the only way to get access to the raw data is by using a value-added enhancement, copyright protection for that enhancement would be unavailable.10

Finally, there should be some restrictions on overriding public law through private contract. A recent decision by a federal district court in the ProCD case11illustrates the idea. In that case, the district court held that contractual restrictions on access to factual data uncopyrightable under Feist were unenforceable because to enforce them would be to interfere with federal law as interpreted by the Supreme Court.12

Privacy

Privacy interests justify withholding government information from the public in some instances. Privacy is the toughest problem for reengineering dissemination policy because so much of the commercially valuable information involves personal data.

The starting point for sound policy is to recognize that privacy interests enter into the equation for only a subset of public information. Privacy interests have nothing to do with public access to statutes, agency orders and rules, and judicial decisions and opinions. For that subset of public information, there is no reason whatsoever to limit public access and market diversity because of privacy concerns.

For the subset where privacy concerns are legitimate, the European Union faces an easier chore than the United States because the EU already has a privacy protecting regime. The United States must struggle with basic privacy legislation at the same time it works out the tension between privacy and access to public information.

The starting point conceptually is to subject public information within the scope of a general privacy protection regime to the regime, and let it operate in the usual way. There is no obvious reason why privacy interests are less if the initial collector and custodian of information is the government instead of private enterprise.

This is not to suggest that the government agency should be regulated like a private company; private commercial exploiters of public information should not be immunized from the operation of the privacy laws merely because the content originated with the government.

The long-term reinvention vision

The wider availability of good information technology encourages some people to hope that the governmental process can become less formal and more conversational. Some envision an ongoing dialogue between the government and the governed, replacing formal ceremonies of rulemaking and adjudication and dispensing with transcripts, pleadings, and special journals.

Although published proposals of this nature are not numerous, similar suggestions are made with some frequency with respect to communications within organizations, often referred to as “flattening” organizations and getting rid of hierarchy.13 Information technology such as E-mail, Internet discussion groups, and World Wide Web publishing make this kind of communications flow possible. Whether it is desirable is another matter.

At least in some corners of the legal universe this kind of conversational government has long been possible, using technology no more sophisticated than talking. Newer information technologies permit conversation to be conducted at a distance and asynchronously.

In seeking to understand why conversational government was supplanted by more formal modes, it is useful to consider the standard justifications for legal formalities in contracting, will making, and property conveyance.14 Although the exact taxonomy varies, commentators usually have identified the following justifications: cautionary, evidentiary, channeling, and protective functions. The cautionary function is served when the legal formality raises the question, “do you really want to do this legally significant act?” The evidentiary function is served when there is some artifact of a legally significant act that is difficult to alter or deny without detection. A handwritten signature serves that function well, as does digital encryption with a secret or asymmetric key. The channeling function signifies a winnowing process. The law easily can distinguish communications intended to have particular legal significance from those merely preliminary or inconclusive. The protective function involves the possibility that formalities may protect vulnerable actors from unwise legal undertakings even though they might wish to enter into them at the moment. The presence of witnesses at the signing of a will permits the witnesses to discourage a testator from an outlandish or surprising bequest. The requirement for attestation may prevent someone impaired by drugs, alcohol or mental illness from a legally effective undertaking.

These describe the functions of formality in individual terms, however, and it is useful to extend them into the institutional context. The cautionary and evidentiary functions apply well to institutions. The channeling function not only distinguishes the legally effective from the legally ineffective, it also permits institutions to limit authority to impose obligations on the institution. The protective function in the institutional context may involve setting up work flows so that certain recommendations and counter signatures are required as a prerequisite to approval of an institutional act.

Information technology does not prevent these functions from being served; indeed, it may permit them to be served in new ways that are more efficient, more effective, or otherwise more desirable than conventional processes.15

Formalities serve important functions in come contexts, but the focus should be on the function and not on the particular technology to serve the function.16 Although newly enabled electronic conversations will be important supplements to more formal government and legal procedure, they will play a role mainly in identifying issues for more focused policy development and in obtaining citizen input on specific recommendations for rules and statutes. Other aspects of legislative, judicial, and administrative processes will remain more formal. As to the formal processes, technology also can play a role. Electronic tokens rather than ink pens probably will be used increasingly to authenticate final decisions. Constituents may authorize others to represent their interests by making certain types of network connections.

Nevertheless, it is appropriate to bear in mind two enduring characteristics of regulatory process in redesigning agencies for a new technological environment. First, the basic elements of procedure have remained durable over several hundred years. Procedural due process may have changed in detail but not in conceptual structure. Due process dictates that those affected by governmental decisions are entitled to notice, an opportunity to participate, reasoned decision making according to criteria known in advance, public scrutiny of implementation of procedure, and often, some form of postdecisional review by higher authority. Township boards of commissioners in Montgomery County, Pennsylvania, trial courts in Oslo, Norway, the Israeli High Court, the European Court of Justice, and the American Federal Communications Commission all are very similar in their compliance with these requirements.

Just as technologies of writing and printing have altered the relative importance of talking, writing, and reading materials published long ago, so also will open network technologies modeled on the Internet change how people are given notice, how they participate, how government decision makers express and disseminate their reasons, how public scrutiny occurs, and how appellate review is handled. Nevertheless the basic features of due process will look the same in 2050 as they did in 1750.

Thus, reinventing government does not signify scrapping what we know as the rule of law for core legal traditions. It does mean, however, taking advantage of new information technologies to improve the functioning of government and to reduce the upsurge in citizen alienation.

Statutes and judicial opinions are much cheaper and better for everyone concerned when published through the World Wide Web rather than channeled through exclusive arrangements with typesetters, printers, distribution warehouses, and physical documents offices, which delay, often for years, public access to governmental decisions.

Allowing citizen participants and their professional advocates to participate in rulemaking17 and adjudicatory proceedings at a distance by E-mail, electronic discussion, and filling out World Wide Web forms makes more sense than dealing with the cost and inconvenience of traveling to a distance city at a time fixed to suit the convenience of others.18 It is cheaper, more egalitarian, and potentially more secure to distribute social welfare benefits electronically and to allow people to pay taxes electronically.

It is more efficient and potentially could foster competition if government solicits bids for goods and services and accepts associated commercial documents including invoices and payments through electronic data exchange.19

Practical pilot projects

The Electronic Town Meetings

In the summer of 1995, the author of this paper agreed to facilitate one of three electronic “town meetings,” sponsored by the White House.20 The town meetings were organized through Internet newsgroups and linked E-mail lists. Several hundred people from all walks of life participated, demonstrating the persuasiveness of the Internet as a mechanism for involving members of the public in governmental decision making. In that respect, the project was a success.

In other respects, however, the project indicated the need for further work to refine concepts of electronic discussion and the tools for facilitating such discussions when they are aimed at governmental decision making — as opposed to a general discussion without any intended concrete results. One problem was significant transaction costs for the facilitator in reading all of the postings. Reading the electronic postings took longer than reading a collection of hard copy comments would have taken because of the overhead involved in opening and closing each message. Second, the signal-to-noise ratio was low. Most of the comments were not pertinent to the subject, and many were emotional diatribes bordering on the pathological. Third, existing E-mail and newsreader tools made cross-referencing other comments and materials too difficult, thus losing the benefits of electronic modes of interaction. Of course, Netscape browsers now automatically format recognized URLs so that one can point and click on a URL within an E-mail message or newsgroup posting and go directly to the referenced resource. Finally, no easy method existed for sorting and reorganizing the postings as one regularly does to synthesize comments on legislative proposals and notices of proposed rulemaking.

The pilot supports the inference that pure town-meeting governance is not feasible for significant issues in modern society, but that the Internet has great potential as a channel for public participation as long as tools can be improved to permit appropriate intermediation and filtering.

Private dispute resolution and the Virtual Magistrate project

New information technology tools have considerable potential to improve adjudicatory decisionmaking in both public and private forums. Much reinvention of procedure around new technology already is occurring in private dispute resolution. Without much public attention hundreds or even thousands of disputes are resolved through private financial networks. Many billions of dollars flow through major credit card systems, and although disputes between customers and merchants arise and claims of fraud are made, one searches almost in vain for court cases involving these credit controversies. So few court cases are found because the internal dispute resolution mechanisms of the credit card systems are very well accepted by the participants. Card holders may challenge a charge and are credited the amount pending investigation by the card issuers; the burden of proof is on the merchant. Merchants are obligated to afford certain basic rights to cardholders under the terms of their agreements with their banks; these obligations are the price of participating in the card system.

Similar mechanisms work in bank clearing houses, which are truly global and involve little reliance on external legal institutions.

As more commerce moves to networks, one can suppose that more dispute resolution will be handled by the network institutions.21 On the other hand, the power of bank clearing houses and of credit card systems to resolve disputes is derived from their power to exclude cardholders and merchants. Open networks have very little power to exclude, and agreements among independent entities to exclude others from doing business raises potentially great competition law problems. Nevertheless, both nationally and internationally, arbitration long has been a feature of the legal landscape, and practitioners of private international law know that international arbitration awards enjoy greater enforceability under the New York Convention than would resolution of the same disputes in national courts. So within limits, the international arbitration model is a useful framework for private electronic dispute resolution.

The Virtual Magistrate project explores application of that model. The Virtual Magistrate pilot project is a joint venture of the Cyberspace Law Institute, the American Arbitration Association, the Villanova Center for Information Law and Policy, and several online service providers and public interest groups, funded by NCAIR. Virtual Magistrates are available to resolve disputes catching service providers between conflicting claims over copyright, misuse of network communications channels or libel or slander. Such disputes can be submitted through a World Wide Web page maintained at Villanova, assigned to a magistrate by the AAA administrator, and resolved within 72 hours. Complaints, answers, hearings and awards all are electronic, exchanged through specialized Web pages and dockets maintained on the World Wide Web. In the first case resolved by a virtual magistrate, America Online was ordered to remove an advertisement offering to provide mailing lists of thousands of email addresses.

There are many questions, of course. A clear example involves the Virtual Magistrate system and its relationship to the Federal Trade Commission and public prosecutors at the state level. These public institutions receive many thousands of consumer complaints upon which they are unable to act because of a lack of resources. It is thus tempting and probably in the public interest to divert some of these complaints to private systems like the Virtual Magistrate system. On the other hand, the extent to which it is appropriate for a public prosecutor or any other public administration to agree in advance to be bound by the result of a private tribunal is unclear. If the public agency makes absolutely no commitment as to the binding affect of the private mechanism, there may be no incentive for the disputants to participate there as opposed to waiting for the uncertain course of public institutional processes.

Some presumptive weight probably should be given to private dispute resolution tribunals meeting certain generic requirements, at least as to the probable cause stage in the exercise of prosecutorial discretion.

In any event, there needs to be a more robust debate about the relationship between public and private dispute resolution mechanisms for small complaints, many more of which can be expected to arise in cyberspace.

New Intermediaries in Cyberspace: The Electronic Concierge and the Early Bar

The reinvention and privatization movements can be extended to explore the possibility of a new intermediary service implemented through the Internet and other on-line networks. The new service might be compared with a concierge in a hotel because it would offer its clients and customers knowledge about where to get answers and obtain particular public services, analogous to a real concierge’s knowledge of how to get theater tickets and restaurant reservations and how to arrange tours. The new service also might be compared with serjeants at law as precursors of the legal profession in England. Serjeants at law, like the new intermediary service, would be differentiated from the providers of desired services—usually government agencies—but would not have the same formal arms-length relationship that modern lawyers have with courts and other tribunals. As late as the Fourteenth Century in England, lawyers, judges, and leading members of the local community engaged in relatively informal discussions with each other to seek the most comprehensive recollection of the norms of the community so they could be applied to particular cases presented during that court term. These discussions illustrate not only the conversational mode of governmental decisionmaking, they illustrate that various forms of legal intermediation can be useful.

There are now many different kinds of intermediaries in modern political systems. Lawyers assist individuals and institutions in understanding and asserting their legal rights, presenting their claims and defenses to official decision makers when necessary. H&R Block and other tax preparation entities assist taxpayers in preparing and filing their tax returns. Intermediaries like H&R Block can be said to be performing adjudicatory functions in connection with individual rights. Other kinds of intermediaries, such as political parties, trade associations, and public interest advocacy groups serve as intermediaries in the crystallization and presentation of positions to other kinds of official decision makers, typically those performing a legislative or interest representation function.

In evaluating any new intermediation function, it is useful to begin by considering possible incentives that the persons or entities possess on both sides of the intermediary to channel their communications through the intermediary. Absent any such incentives, the new function would fail as a voluntary scheme because no one would pay for it or support it. Absent incentives, a mandatory intermediary system could not be established because there would be no political support for it.

Recipients of and claimants to governmental services and benefits can have an incentive to use new intermediaries because they need help in understanding the nature of the services and benefits to which they are entitled, in knowing how to apply for or in obtaining such services and benefits and in appealing or challenging denials of requests for claims, services or adjustments to such claims and services.22 The typical claimant in the United States is bewildered by the complexity of Social Security, Medicare, and Medicaid regulations, as well as the Internal Revenue Code and its implementing regulations and decisions. Claimants frequently are confused as to what government office to contact. Deteriorating telephone inquiry response and the lack of any obvious replacement via E-mail or in-person assistance makes the problem worse from the perspective of the individual citizen.

Government agencies have an incentive to use new intermediary services because they are unable to cope with the increasing volume of citizen requests for assistance and because they fear being overwhelmed as new technological channels such as E-mail become more widely available. Government offices can respond to requests for information and to complaints about entitlements more efficiently when they deal with persons having some knowledge of the legal framework for the program. If new intermediaries can aggregate or bundle similar claims and inquiries and then deal with the relevant agencies on a knowledgeable basis, the agencies would be able to be, and seem to be, responsive to citizen needs.

If the incentives on both sides of the intermediaries are strong enough, new intermediary services can succeed in the marketplace without any need for exclusive privileges. There may be arguments, however, that some degree of exclusivity or preference for certain kinds of intermediaries is appropriate either to establish the services and to allow them to become viable economically or to assure government agencies and clients of minimal intermediary competence. Significant constitutional problems might arise and major policy problems would certainly develop if an attempt were made to grant an exclusive prerogative to any kind of intermediary that would foreclose direct citizen access to government. Indeed, members of the bar do not have this kind of exclusivity; individuals retain the privilege of representing themselves.

Subject to this constraint, however, a variety of ways exist for public officers to encourage people to use intermediaries. Much of the focus of the I.R.S. electronic filing project, for example, has been inducing taxpayers to use third-party preparers through the incentive of refund anticipation loans. Although taxpayers remain free to file directly and on paper, the state’s electronic filing channels are open only to third-party preparers.

The position of new types of intermediary must be reconciled with the position of the bar, which exists for the purpose of providing competent representation of rights and interests. Several possible relationships could exist between new intermediaries and the bar. One possibility is that members of the bar could serve as intermediaries in the new system. Intermediary services might also be provided under the general supervision of members of the bar, somewhat like how attorneys supervise paralegal services performed for clients. Alternatively, the new intermediaries might be involved only in those matters not presently calling upon lawyer services because the economics of legal services are such that the clients cannot afford them. Finally, the new intermediary services might be analogous to various tax preparation services performed by non-bar members such as H&R Block and the authors of tax preparation software.

In any event, it is clear that any useful scheme for new intermediaries must mobilize incentives for clients and public officers and create exclusive or preferential prerogatives to allow persons performing the services to receive compensation equal to or greater than their opportunity costs.

To prove the concept, some targets of opportunity should be identified. Although the function of identifying the appropriate agency might be most obvious in a demonstration program involving a wide range of claims and grievances, focusing on a specific area such as social security claims, taxpayer assistance, or Medicare matters under pending Medicare reform legislation may be far better. In these areas, consumer perception of the need for some kind of assistance is greatest, and government concerns about being overwhelmed by inquiries and complaints similarly is highest. In such areas, the likelihood is greatest that incentives would exist on both sides of the new intermediary and would be acted on appropriately.

Policy principles

A few basic policy principles should shape governmental reinvention harmonizing new technological possibilities with long-accepted basic legal values.

First, the Internet, its World Wide Web, and their open, distributed, and universally defined architectures are the appropriate models for all future digital information systems. Temptations to revert to proprietary islands should be resisted ferociously by those who want technology to enhance democratic government.

Within this open architecture, all agencies of government should make their basic decisional information, , and basic information intended to support commercial andeconomic activities (including map and census information), available in electronic form on the Internet or its successors. They should welcome efforts by others to exploit and add value to this basic information, whether the value-adding process takes place on the World Wide Web itself through servers set up by others or with copies of public materials downloaded into proprietary spaces. No restrictions should be imposed on redissemination, and no exclusive arrangements should be established with redisseminators, regardless of the justification. The resources for making basic information available in electronic form are modest, and well within the means of almost any agency. If an agency cannot afford to setup a World Wide Web server to makes its most basic information available, it can afford to make copies of word-processing files available to requesters who pay for diskettes or tapes.

Second, simplicity is an enduring feature of governmental process, in the sense that straightforward means for exchanging information and formulating views usually predominate over more sophisticated but cumbersome techniques. Policymakers should beware of labyrinthine computerized spaces for rulemaking or adjudication. Agencies should move toward a world in which participants exercise more influence over how and when they present their views, rather than an environment in which a computer programmer, often ignorant of the realities of public administration, builds fences and hurdles.

Third, Stable government depends on legitimacy. Legitimacy depends on human decision making, a process dependent on opinions presented by participants and sensitivity to intangible and nonquantifiable human wants and needs. Computer programs cannot deliver this. The emphasis in developing technology for public administration should facilitate human decision making and not substitute computerized decision making for human discretion.

Status of the principles in the United States

Over a period of about ten years, these basic principles were debated, and finally enacted into law by the Congress in the Paperwork Reduction Act amendments of 1995. Thus, they are not in dispute with respect to federal sources of information. They have not been adopted, however, in any formal way by either the federal courts or the Congress, both of which are outside the scope of the Freedom of Information Act and the Paperwork Reduction Act. Nevertheless, neither the courts nor the Congress is permitted by the Copyright Act to hold copyright on their information works. The Thomas system and movements by the Government Printing Office to place the greater percentage of congressionally generated information on the World Wide Web are consistent with the Paperwork Reduction Act principles. The federal courts have placed all appellate decisions on dial up electronic bulletin boards, and have not objected as law schools have made all of those opinions available through the Internet.

Pricing levels and the detailed formula for pricing federal information remains uncertain and controversial.

At the state level, there is much less agreement on appropriate principles for electronic information formats. The New Jersey Supreme Court, in Higg-a-Rilla v. County of Essex23, cautiously rejected an argument that would have allowed municipalities to refuse access to information stored in electronic formats. Elsewhere, at the state and local level, the battle continues between proponents of the principles articulated above and proponents of state monopoly.

Not all of the recent legal developments in the United States have been consistent with the principles advocated here. A federal district court in the district of Columbia denied access by a non-profit public information publisher to a database developed under federal contract, on the grounds that the contract limited control by the government over the database.24 A district court in California rejected a request for access to a database of public documents on the grounds that the Federal Freedom of Information Act is not intended to allow access to such material.25 A district court in Maine rejected an effort by an electronic map publisher to obtain access to bitmapped images of federal nautical charts, reasoning that the charts constituted a trade secret because the agency possessing them wished to enter into a joint venture with a private competitor of the plaintiff.26 More positively, the Senate Judiciary Committee has reported legislation to make it clear that the Freedom of Information Act covers electronic formats.27

Applicability of the principles to Europe

One of the concerns about adoption of these principles in Europe is that a World Wide Web model for disseminating public information might place domestic European sources and resellers of information at a disadvantage vis-a-vis non-European information enterprises. The opposite is true, however. Patterns of public contracting that allow exclusive arrangements in proprietary architectures confer advantages on larger enterprises that are already established in an industry and have the resources to lobby for and bid for public contracts. The World Wide Web technologies greatly reduce barriers to entry and economies of scale. Thus, a public policy that embraces the World Wide Web model makes it more, rather than less, likely that smaller domestic enterprises can compete and participate.

Indeed, the open architecture model virtually ensures that special European perspectives can be incorporated by resellers and suppliers of information even if non-European enterprises also participate in the dissemination system. The World Wide Web is an information river from which many can drink and draw at the same time.

Conclusion

Open electronic networks exemplified by the Internet’s World Wide Web offer possibilities now for significantly improving the transparency of government and competitiveness in the information industry. The starting points for putting the possibilities into practice are to put basic government information on Internet servers and to avoid exclusive arrangements with value-added redisseminators. More ambitious possibilities also exist for using information technology such as the Web to improve adjudicatory and legislative processes and to offer new forms of intermediation to citizens. Exploring these possibilities requires active experimentation within the context of a commitment to open networks, simplicity and legitimacy associated with appropriate human involvement.


Footnotes

1 Henry H. Perritt, Jr., Commercialization of Government Information: Comparisons between the European Community and the United States, 4 INTERNET RESEARCH 7 (Meckler Summer 1994); Henry H. Perritt, Jr., Sources of Rights to Access Public Information, 4 WILLIAM & MARY BILL OF RIGHTS J. 179 (1995), http://www.law.vill.edu/chron/articles/wandm.htm; Henry H. Perritt, Jr., Should Local Governments Sell Local Spatial Databases Through State Monopolies?, 35 JURIMETRICS J. 449 (1995); Henry H. Perritt, Jr., PUBLIC INFORMATION IN THE NATIONAL INFORMATION INFRASTRUCTURE, Report to the Regulatory Information Service Center, General Services Administration, and to the Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget, May 20, 1994, http://www.law.vill.edu/Fed-Agency/OMB/pub.info.NII/ombtoc.htm; Henry H. Perritt, Jr., Open Networks and Access to Judicial Information, http://www.law.vill.edu/chron/articles/openjud.htm; Henry H. Perritt, Jr., The Information Highway: On Ramps, Checkpoints, and Tollbooths, 13 GOV'T INFO. Q. 143 (1996).

2 See From Red Tape to Results: Creating a Government that Works Better & Costs Less: Report of the National Performance Review (submitted to the President by the Vice President, Sept. 7, 1993) [hereinafter "NPR Report"]. See generally NPR: http://www.npr.gov/homepage/26aa.html.

3 NPR Report at 3.

4 See generally http://www.law.vill.edu (containing starting points for access to 700 federal agencies and all federal appellate court opinions, in addition to a variety of state court agency and legislative information); Report to the Congress, study to identify measures necessary for a successful transition to a more electronic Federal Depository Library Program, http://www/access/gpo.gov/su_docs/dpos/rep_cong (describing reconfigured depository library system designed to make effective use of electronic formats).

5 NPR Report, Appx C Recommendation IT02 "implement nationwide, integrated electronic benefit transfer."

6 David R. Johnson, chairman of Counsel Connect, and organizer of the Cyberspace Law Institute, suggested the term.

7 See generally Report to the Congress, study to identify measures necessary for a successful transition to a more electronic Federal Depository Library Program,http://www/access/gpo.gov/su_docs/dpos/rep_cong (describing reconfigured depository library system designed to make effective use of electronic formats)..

8 These estimates are based on my actual experience in organizing and directing the operations of the Villanova Center for Information Law and Policy, which offers the Federal Web Locator and Federal Court Locator, among other things. See http://www.law.vill.edu.

9 Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340 (1990).

10 Compare CCC Information Services, Inc. v. MacLean Hunter Market Reports, Inc., 44 F.3d 61, 72 (2d Cir. 1994) (describing merger doctrine and declining to apply it to defeat copyright claim by compiler of factual information) with Bellsouth Advertising & Publishing Corp. v. Donnelley Information Publishing, Inc., 999 F.2d 1436, 1442 (11th Cir. 1993) (using merger doctrine to deny protection to compilation of factual information). See American Bar Association, Report no. 109C (Resolution Adopted by the House of Delegates of the Association August 12-13, 1991):

"2. Encompassed within each agency's obligation to disseminate electronic public information is the obligation to make available the necessary information formats, and record structures to make the information widely accessible.

3. Agencies should ensure that electronic information developed with public funds, including data and retrieval software, is available to the public. When agencies contract with private entities to develop new electronic information products, the agencies should negotiate rights in data terms that will put both the data and the appropriate retrieval software to obtain that data in the public domain.".

11 ProCD v. Zeidenberg, 908 F. Supp. 640 (W.D. Wis. 1996) (final judgment for defendants).

12 Id. At 657.

13 See, e.g. THE HORIZONTAL CORPORATION: FLATTENING THE ORGANIZATION, Program/Project Management Resource List #42 (bibliography),http://mercury.hq.nasa.gov/office/hqlibrary/ppm/ppm42.htm

14 See generally Henry H. Perritt, Jr., LAW AND THE INFORMATION SUPERHIGHWAY § 9.6 (1996) (analyzing role of formalities).

15 Henry H. Perritt, Jr., Video Depositions, Transcripts and Trials, 43 EMORY L.J. 1071 (1994).

16 Accord, 59 Fed.Reg. 45160 (Aug. 31, 1994) (proposed rule by Food and Drug Administration for digital signatures, based on functional requirements).

17 The Nuclear Regulatory Commission has experimented with using the Web for rulemaking. See http://www.nrc.gov/ruletop.html.

18 Henry H. Perritt, Jr., The Electronic Agency and the Traditional Paradigms of Administrative Law 44 ADMIN.L.REV. 79 (1992); Henry H. Perritt, Jr., ELECTRONIC DOCKETS: USE OF INFORMATION TECHNOLOGY IN RULEMAKING AND ADJUDICATION, prepared for the Administrative Conference of the United States, September 8, 1995, http://www.law.vill.edu/chron/articles/electronic_dockets/acuscut.htm

19 See 61 Fed.Reg. 24849 (May 16, 1996) (notice by Small Business Administration encouraging use of EDI to facilitate access by small business to government contracting opportunities).

20 See generally http://www.anl.gov/OPA/news95/news950427.html (describing one access point for electronic town hall project).

21 See generally Henry H. Perritt, Jr., Dispute Resolution in Electronic Network Communities, 38 VILL.L.REV. 349 (1993).

22 While the terminology would be different for taxpayers who are not presenting claims but rather fulfilling obligations, the incentives are similar.

23 660 A.2d 1163 (N.J. 1995).

24 Tax Analysts v. United States Department of Justice, 917 F.Supp. 867 (D.D.C. 1996).

25 Baizer v. United States Dep't. of Air Force, 887 F.Supp. 225 (N.D.Cal. 1995).

26 Delorme Publishing Co., Inc v. The Nat'l Oceanic and Atmospheric Admin. of the United States Dep't of Commerce, 917 F.Supp. 867 (D. Me. 1996).

27 S. 1090, S. Rep. No. 104-272, 104th Cong., 2d Sess.; see 142 Cong.Rec. S5093 (May 15, 1996) (reporting S.1090 by Chairman of Judiciary Committee).

Henry H. Perritt, Jr.
Professor of Law
Villanova University School of Law
tel: +1 (610) 519-7078
fax: +1 (610) 519-7033
email: perritt@law.vill.edu

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