Brokering Access Beyond the Border and in the Wild: Comparing Freedom of Information Law and Policy in Canada and the United States

• Author: Randy K. Lippert,Kevin Walby,Alex Luscombe
• Date: 01 July 2017
• Published date: 01 July 2017
• DOI: http://doi.org/10.1111/lapo.12080

Brokering Access Beyond the Border and in the Wild:

Comparing Freedom of Information Law and Policy in

Canada and the United States

ALEX LUSCOMBE, KEVIN WALBY, and RANDY K. LIPPERT

Contributing to literature on jurisdictional variation in freedom of information (FOI) law and

policy, we draw from accounts of experiences of FOI requests submitted to police agencies in

nine Canadian provinces and ten US states. We conceptualize these experiences using notions of

“brokering access,” “law in the wild,” and “feral law.” Our findings demonstrate key differences

in how public police agencies store, prepare, and disclose information at municipal and

provincial/state levels in Canada and the US, meaning that FOI-related feral lawyering in

Canada and the United States differs and fluctuates because of the variation in the mode of

contact with FOI coordinators, fee estimate practices, and procedures for and responsiveness to

appeals. In conclusion, we discuss the implications of our findings for methodological and

sociolegal literature about FOI requests and for provincial/state FOI policies in both countries.

INTRODUCTION

The right to know about government practices is enshrined in freedom of information

(FOI) legislation in over 100 countries (Birkinshaw 2010). Ackerman and Sandoval-

Ballesteros (2006) describe this rise of FOI laws as an “explosion.” These laws represent

an “administrative legalization” (Epp 2000, 409) of transparency, accountability, and

information sharing between citizens and governments. The global expansion of FOI leg-

islation is significant for both administrative law specialists and for advocates of public

transparency and accountability (Birkinshaw 2006).

FOI law empowers citizens to request government records not otherwise publicly avail-

able. Such records can include drafts of political speeches, policies, e-mails, presentation

and briefing notes, raw statistical files, meeting minutes, incident reports, and more. Lee

(2005), among others, has argued that FOI law should be used more for scholarly research

since the documents disclosed through FOI mechanisms can reveal details about govern-

ment practices unavailable through other sources (e.g., press releases, speeches, or websites).

Existing literature on FOI law and policy consists of two predominant strains. First,

there are studies of FOI laws that report on legislative changes and legal precedents and

tend to be doctrinal in character (Birkinshaw 2010; Relyea 2009; Ackerman and

Sandoval-Ballesteros 2006; Halstuk and Chamberlin 2006; Snell 2000). Second, there is

literature analyzing FOI disclosures in sociology, sociolegal studies, criminology, and

political science (Sheaff 2016; Keen 1999). These studies report on the implications of

Address correspondence to: University of Winnipeg, Department of Criminal Justice, Centennial Hall, 3rd

Floor, 515 Portage Avenue, Winnipeg, Manitoba, Canada, R3B 2E9. Telephone: 204-786-9105; E-mail:

k.walby@uwinnipeg.ca.

LAW & POLICY, Vol. 39, No. 3, July 2017 ISSN 0265–8240

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C2017 The Authors

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C2017 The University of Denver/Colorado Seminary

doi: 10.1111/lapo.12080

FOI disclosures as a primary data source for theories and debates prominent in their disci-

plines. Yet despite a growing body of work on methodological aspects of FOI use (e.g.,

Savage and Hyde 2014), there exist few contributions about how to use FOI law in socio-

legal research and the implications for understanding FOI law and policy, especially at

subfederal levels.

We contribute to the methodological and policy literature on FOI mechanisms by com-

paring the process of “brokering access” in Canada and the United States, or the art of

negotiating with FOI coordinators (Walby and Larsen 2012). FOI users learn about an

agency through brokering access. The often lengthy negotiations between researchers and

FOI coordinators involve bargaining, persuasion, intimidation, deception, and barriers.

These legal and extralegal disputes (DeLand 2013) between FOI requesters and the public

agency entail invoking law to gain or restrict access to information, contesting each

party’s claims, and resolving conflicts through creative means. By brokering, FOI users

are doing more than just invoking a legal right; they are also navigating the “wild” com-

plexities of legal argumentation, negotiation, precedence, and appeal.

We introduce the concepts of “law in the wild” (the wild legal regime) and “feral law”

(practicing law in the wild), which we distinguish from professional or expert legal regimes

and practices to highlight two aspects of FOI. First, influenced by the work of Callon,

Lascoumes, and Barthe (2009) in social studies of science, we use the idea of law in the

wild as an alternative to orthodox distinctions between lay (nonlawyer) and expert (law-

yer) knowledge. Feral lawyers operate “in the wild” and therefore differ from professional

lawyers, particularly in terms of the resources, training, and expertise they possess, but

they share more in common than the classical distinction between lay and expert knowl-

edge suggests. Similar to Callon, Lascoumes, and Barthe’s (ibid., 104) analytical distinc-

tion between “researcher in the wild” and “secluded research,” this reconceptualization of

the researcher-citizen as feral lawyer rather than lay citizen “enables us to understand

how actors who are not professional [lawyers] can nevertheless be integrated within the

dynamic of [law].” Most researchers using FOI law are not lawyers, but in brokering they

end up bargaining, arguing, and appealing in ways familiar to formally trained legal prac-

titioners. The difference highlights how FOI law, intended as a citizen’s right, can enlist

lay citizens into processes of legal brokering for which they are ill trained or ill prepared

and which most accounts of FOI law in Canada and the US ignore. Frequent FOI users

may become less estranged from legal practices, but they still lack the specialized training,

powers, and resources of professional lawyers, who tend to practice in a more “tamed”

institutional field. Second, the distinction between feral and professional law illustrates

the “wildness” of the FOI process and legal regimes and shows how key players in the field

who are not typically hired legal professionals are forced to invoke legal knowledge in

unpredictable ways.

In practice, there is a continuum of “wildness” upon which a set of situated FOI experi-

ences can be placed rather than a categorical, either/or distinction. As we argue,

attempted changes to FOI legal regimes, such as amendments to several US laws that

require state agencies to absorb a greater portion of costs (thereby removing a key ground

for negotiations) or attempts to normalize and encourage suing in the courts, are an effort

to render FOI practices more professional than feral. However, we contend that the letter

of the law does not solely determine the professional-wild continuum. Other factors, such

as the players involved and the nature of informal interactions and of the requested infor-

mation, are additionally capable of keeping FOI practices in the wild and outside the pro-

fessional realm.

Our argument has three major implications. First, the distinction between feral and

professional law, insofar as feral law is a kind of quasi-professional legal practice, stresses

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