In 1976, academic and professor Matthew G. Yeager sued the Drug Enforcement Administration (DEA) when access DEA intelligence data system’s NADDIS (Narcotics and Dangerous Drugs Information System), KISS, PATHFINDER, and NIMROD were denied. In the course of the lawsuit, the DEA destroyed the entire intelligence system KISS. This was a landmark case as it allowed the federal government to block disclosure of information through the American Freedom of Information Act (FOIA) if data was deemed “potentially sensitive” (p. 175). In 1996, Congress amended the withholding of information and opted for computer redaction techniques. In Canada, federal and provincial governments have been using redacting imaging software since the mid-1990s specifically designed for information disclosures through the corporation PrivaSoft. The conclusion of Yeager’s 1976 case was worrisome, “computer stored records, whether stored in the central processing unit, on magnetic tape, or in some other form, are still ‘records’ for the purposes of the FOIA” (Yeager v. Drug Enforcement Administration). Fortunately for information activists and researchers alike, the DEA failed to support their issue and the US Court of Appeal affirmed Yeager’s stance. This ultimately led the courts findings to be incorporated into law by the Electronic Freedom of Information Act Amendments of 1996.
In 1997, Yeager pursued the Correctional Service of Canada (CSC) in an access to information (ATI) request relating to their Offender Management System (OMS) software in order analyze what information the agency had been collecting on inmates and for what purpose personal data was being extracted. The CSC denied his request and stated that the software would not work on a personal computer and that such a disclosure would require the creation of new records, which is not required under Canada’s Access to Information Act (ATIA). In 2001, Madam Justice Sandra Simpson ordered for the first time in Canadian history that a federal agency release the requested microdata and create a codebook for researchers. Previously, the CSC had alleged that codebooks and data dictionaries were not employed within the agency, as the staff was familiar with variable categories. Interestingly, the case revealed that the CSC had “purposefully violated the National Archives Act by not cataloguing or preserving its research database and that it did not created appropriate documentation (codebooks) as it was already familiar with the databases” (p. 178). In terms of the requested OMS software, the judge denied its inclusion, as the software was not permissible for authorized disclosure as the current ATIA stands. In the coming years, it will be interesting to witness whether or not this act will be amended as government data becomes increasingly converted into digital form. Consequently, it is certain that more readable software will be created to accommodate the new circumstances of the digital era. As a result, it is plausible that more academics and researchers like Yeager will demand that Canada’s ATIA encompass the releasing of government software through formal ATI requests. Moreover, it is certain the public will continue to demand for real open access to government data and federal archives.
The cases presented by Matthew G. Yeager bear an important question: What are the positive and negative implications of ‘suing the government for data’? As Yeager illustrates, criminologists who endure the process of suing the government face the consequence of being an outcast within academia. The rational behind his argument is not surprising: money. It is no secret that most universities, graduate students and professors depend heavily upon the funding of external corporations and governments. Accordingly, when an academic decides to sue the government for data they run the risk of painting a target on their back and cutting holes in their pockets. Without a doubt, this can lead to isolation and insolvency. In fact, as the chapter by Yeager points out, “Canadian euthanasia professor Russell Ogden experienced a similar reluctance by his former university to defend his research from Crown subpoena, although it did ultimately reimburse him for his legal expenses. (Lemon 2004)” (p. 181). Without a doubt, the odds of winning a case against the government are not held within the citizen’s favour (Ibid). In Yeager’s case, the court battle incurred costs upwards of $20,000. Fortunately, to some extend, he recouped $12,000 from the Crown. Aside from financial stress and potential isolation, other negative implications of the suing the government include: emotional stress, delay of academic and personal achievement, intimidating work environments, personal harassment, and reluctance to pursue matters of malfeasance. Moreover, when suing the government one can enter into bridge burning territory as brokering access becomes conflicted as one bites the hand that feeds information. The positive implications of suing the government include: uncovering dirty data, creating opportunity for legislative reform, harm reduction, and revealing unethical, unprofessional government practices, and much more.
Before anyone steps forward and engages in a lawsuit of such magnitude, we must ask ourselves: Am I willing to walk to the very end of the road and am I willing to do so alone?
Works Cited
Yeager, Matthew G. (2012). “The Freedom of Information Act as a Methodological Tool: Suing the Government for Data”, in M. Larsen and K. Walby (eds) Brokering Access: Power, Politics, and Freedom of Information Process in Canada. Vancouver: UBC Press, pp. 169-193.
