Features

XX.6 November + December 2013
Page: 60
Digital Citation

Understanding the connection between HCI and freedom of information and access laws


Authors:
Jonathan Lazar, Timothy Elder, Michael Stein

Articles in the Interacting with Public Policy forum in this magazine address the intersection of interaction design and public policy. Some of these connections are obvious, for instance, when the Brazilian government ranks human-computer interaction research publications as low priority. Another aspect, although sometimes less obvious, is the relationship between laws regulating how the government provides the public with access to information and the principles of human-computer interaction. Two types of such laws are “freedom of information” laws (also known as open records laws or sunshine laws) and “disability access” laws, which require electronic information to be accessible to disabled persons using adaptive software such as the text-to-speech software used by the blind.

Freedom of Information Act

Freedom of information laws allow the public to request access to an increasingly vast collection of government documents often stored in electronic databases, and thus fight corruption by encouraging accountability through transparency. One of the oldest open records laws is the Freedom of the Press Act of 1766 in Sweden. Other countries have more recent laws, such as Australia’s 1982 Freedom of Information Act and Canada’s 1985 Access to Information Act. The United States’ Freedom of Information Act, 5 U.S.C. § 552, was enacted in 1966. Commonly known as FOIA, the Act establishes the right of the public to obtain information from all 15 departments of the federal government and 73 other federal agencies in the executive branch, but not the Congress, the courts, or the president. The U.S. Congress has amended FOIA several times, including changes in 1996 to accommodate the growth in Internet usage and electronically available information.

Governments are increasingly collecting large quantities of electronic records and contemplating the release of such big datasets to the public. Within the Obama administration, there has been an increase in the proactive release of documents and data as a part of the Open Government Initiative [1]. The proactive release of data and documents not only can get the information to the public in a quicker manner, but also has decreased the number of and cost of handling FOIA requests [1].

Though not obvious, there is a strong connection between information transparency and interaction design. With the convergence of government transparency, big data troves, and automated technologies, governments are faced with the task of figuring out which kinds of interactivity to provide to document seekers, some of which they are entitled to receive under the law. For example, must governments disclose the metadata stored around electronic public records? This metadata can potentially reveal information about the creation or modification of documents, such as when the document was created, when it was accessed and edited, who edited it, and what they edited [2].

The potential value of such metadata is illustrated by a recent news story about the fugitive tech leader John McAfee, who was sought for his connection to the killing of his neighbor. After McAfee evaded police, he was interviewed by reporters in a secret location, and was photographed. The picture, taken by an iPhone, contained metadata, specifically the GPS location of where the picture was taken [3]. McAfee was quickly caught by police based on the GPS metadata.

But the metadata of electronic government records can also greatly affect the usefulness of information provided to the public. For instance, documents need to be text-based or have textual markup so that they are searchable, versus pages that were scanned and made into graphics. So, for instance, if a user prints a word-processing document to a PDF file, much of the metadata, the markup that allows for searchability will be present. If a user prints a paper copy of a document and then scans the paper document using a flat-bed scanner, a lot of that searchability will be lost unless a great deal of post-editing is done. On the other hand, it may be accidental whether metadata is present: Metadata is often extraneous information the author did not intend to communicate to the reader, even if the user’s settings produce the automated result of including the extraneous data.

The U.S. public’s right to such textual metadata was litigated in the National Day Laborer Organizing Network case [4]. In this case, a coalition of community groups demanded documents from the U.S. Immigration and Customs Enforcement Service (“ICE”), as well as the U.S. Department of Justice (“DOJ”), under FOIA. The requested records consisted of electronic text records, email messages, spreadsheets, and paper records. When ICE and DOJ produced the documents, the plaintiffs in the case complained that the format of the records was unusable, because “(1) the data was produced in an unsearchable PDF format; (2) electronic records were stripped of all metadata; and (3) paper and electronic records were indiscriminately merged together in one PDF file.”

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What do the words metadata, searchable, and usable format mean in this context? We typically think of these words as being interaction design words, but here they are coming up in a legal dispute about freedom of information and document production. In the National Day Laborer Organizing Network case, Judge Scheindlin thought it legally required, sensible, and appropriate that FOIA-compelled information be produced in an accessible format so the information could be searchable and usable by multiple populations. However, the court subsequently retracted its opinion, which limits the use of the case for precedent value, and which leaves the question of metadata unsettled under FOIA. Nevertheless, the rationale underlying her decision lends insight into how courts might view the issue of accessible FOIA requests in the future. The case thus also has information value for programmers and others creating systems—the message is clear that if metadata is not initially included, it will ultimately have to be retrofitted. And it is well known that retrofitting is far more expensive and complex than doing it the right way in initial design [5].

Disability Access Laws

Another type of law, aside from FOIA, also relates to the metadata, searchability, and usable format of public electronic records. These laws seek to ensure that disabled persons using assistive software to access electronic information will be able to participate in their government and access the same information as nondisabled persons. For example, under Section 508 of the Rehabilitation Act, 29 U.S.C. § 794d, all federal agencies are required to ensure that PDF files and other electronic records (and technology, more generally) are accessible to people with disabilities, including people with print disabilities, such as those who are blind. However, according to the recent 2012 data coming from the U.S. Department of Justice, compliance with the law has been poor [6].

Theoretically, the requirements for document accessibility would also include all records produced under FOIA. Thus, an agency is legally required to produce searchable electronic records that not only accommodate those with print disabilities but also benefit requesters who want to take advantage of that same data for other purposes, such as aggregated analysis. Unfortunately, accessibility for people with disabilities has not, in the past, been a stated component of the Open Government Initiative [7]. However, due to a new Executive Order (#13642) from President Obama, more attention may be paid to this topic. On May 9, 2013, President Obama issued an executive order requiring the director of the Office of Management and Budget develop and issue an open data policy so “the default state of new and modernized Government information resources shall be open and machine readable” [8]. The executive order specifically mentions the goal of “make[ing] the data easy to find, accessible, and usable” [8] and it is mentioned twice in the section on “general principles.” While some critics stated that machine-readable datasets and transparency of government actions are two different goals [9], because of the legal activity related to metadata format and FOIA requests, these activities do share a common theme: making sure that data is in machine-readable and searchable formats. That helps anyone, with or without a disability, who wants to analyze government data or reports, regardless of the reason. In 2012, a pilot project called FOIA online (http://foiaonline.regulations.gov) was implemented with six U.S. federal agencies, where FOIA requests can be submitted online and tracked, and, more importantly, documents released in previous FOIA requests made by others can be accessed and searched. This ideally would increase the amount of information available to the public and also reduce the costs of giving the public access to government documents. However, there have already been reports of documents being provided in a non-searchable graphical format in response to requests submitted via FOIA online.

The Relationship to Interaction Design

The same features that make a document searchable also make it accessible for people with print disabilities—these features render a document more usable for all. An important question for interaction designers, then, is how to design document-creation interfaces that more clearly present these needs. How can interfaces more transparently show the user that the documents being created include metadata and are searchable? How can these important elements become more obvious to the document creators? Going back to the National Day Laborer Organizing Network case, the complaint was because “(1) the data was produced in an unsearchable PDF format; (2) electronic records were stripped of all metadata; and (3) paper and electronic records were indiscriminately merged together in one PDF file.” While these were the usability complaints of legal advocates who wanted to search the documents for legal purposes, you can imagine the exact same complaints being made by people with print disabilities who also wanted access to the documents.

There are many reasons why the metadata of government documents is important. Storing and providing documents, in response to FOIA requests, with metadata included can increase the efficiency of the government and also possibly reduce multiple requests for the same data (as occurred in the aforementioned case). FOIA will be practically effective only if the government and requesters can enable the efficiencies of searchable, usable, accessible, and easy-to-manipulate information. Many agencies have large backlogs of FOIA requests. At the same time, the number of electronic records being created by government agencies, and the implementation of technology in government procedures, is increasing. Electronic records must retain the underlying information that will permit agencies to automate their FOIA-processing checks and respond to requesters in a timely manner.

Also, the core relationship between searchability and access for people with disabilities is clear in the well-known saying, “Google is like a blind user.” The same techniques that make a website easily indexed by Google (or another search engine), such as metatags, proper headings and labels, and structured markup, also make the website accessible to someone who is blind. Search engines parse a website in a manner similar to that of someone who is blind, using the textual markup and labels. So a PDF document that is simply a scanned graphic is not only unsearchable by a user (which may be important when 10,000 pages are provided under a FOIA request), but is also inaccessible for a person who is blind. Inaccessible PDFs, which are usually graphics that have been created with a scanner, are often of questionable legibility, and therefore cannot be read properly by someone with a print disability such as blindness. If nondisabled FOIA consumers are entitled to the underlying metadata/searchable text for the purpose of automation or aggregate use, then how much more important is that same data for disabled users who depend on it for ordinary manual use?

In summary: Accessibility of U.S. federal documents is a requirement under Section 508 of the Rehabilitation Act; searchability of documents may be a requirement under court interpretations of FOIA; and the Obama administration issued an executive order on developing open data policies, all of which indicates that accessibility is a crucial requirement. The trends in U.S. public policy are clear. But civil rights and public accountability policies aside, it just makes sense to implement the spirit of FOIA in the current digital information age, so that society can reap the benefits of a truly open, accessible, and usable trove of public information about our governance.

References

1. Wilson, S. and Linders, D. The open government directive: A preliminary assessment. Proc. of the Conference of the iSchools (the iConference). 2011 387–394.

2. Cockerham, S. Lake v. City of Phoenix: Is metadata is a public record? Arizona Law Review 51, (2009), 517–530.

3. Wise, J. In pursuit of McAfee, media are part of story. The New York Times. Dec. 9, 2012; http://www.nytimes.com/2012/2012/2010/business/media/in-pursuit-of-john-mcafee-media-are-part-of-story.html?_r=2010

4. U.S. District Court. National Day Laborer Organizing Network et. al. vs. United States Immigration and Customs Enforcement Agency et. al.: Opinion and Order. 2011; http://smu-ediscovery.gardere.com/Natl-Day-Laborer-Organizing-Network-v.-U.S.-Immigration-and-Customs-Enforcement-Agency%5B1%5D.pdf

5. Wentz, B., Jaeger, P., and Lazar, J. Retrofitting accessibility: The inequality of after-the-fact access for persons with disabilities in the United States. First Monday 16, 11 (2011); http://firstmonday.org/htbin/cgiwrap/bin/ojs/index.php/fm/article/view/3666/3077

6. U.S. Department of Justice. Section 508 Report to the President and Congress: Accessibility of Federal Electronic and Information Technology. 2012; http://www.ada.gov/508/508_Report.htm

7. Olalere, A. and Lazar, J. Accessibility of U.S. federal government home pages: Section 508 compliance and site accessibility statements. Government Information Quarterly 28, 3 (2011), 303–309.

8. White House. Executive Order—Making Open and Machine Readable the New Default for Government Information. 2013; http://www.white-house.gov/the-press-office/2013/05/09/executive-order-making-open-and-machine-readable-new-default-government-

9. Howard, A. The best thing Obama’s done this month: His executive order to open government data is a really big deal. 2013; http://www.slate.com/articles/technology/future_tense/2013/2005/open_data_executive_order_is_the_best_thing_obama_s_done_this_month.html

Authors

Jonathan Lazar completed this work while he was the Shutzer Fellow at the Radcliffe Institute for Advanced Study at Harvard University, researching how Web-based interfaces that are inaccessible to people with disabilities lead to forms of discrimination that are illegal under U.S. law.

Timothy Elder is a civil rights litigator specializing in disability discrimination cases and the principle attorney at the TRE Legal Practice, LLC. He has helped secure injunctions against testing entities for their failure to accommodate disabled students, negotiated groundbreaking settlements with publically traded companies, tried employment discrimination claims, and argued before federal trial and appellate courts.

Michael Stein holds a J. D. from Harvard Law School and a Ph.D. from Cambridge University. He is co-founder and executive director of the Harvard Law School Project on Disability, as well as Cabell Professor at William & Mary Law School. An internationally recognized expert on disability law and policy, Stein participated in the drafting of the U. N. Convention on the Rights of Persons with Disabilities.

Copyright held by authors. Publication rights licensed to ACM $15.00

The Digital Library is published by the Association for Computing Machinery. Copyright © 2013 ACM, Inc.

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