[Private] R4R: Freedom of Information Act and Discord

discord:
EluvatarToday at 9:02 PM
@King SillyString @Limerick1 it is my impression that my interest in the FoIA and occasional attempts to see it followed do not make me partial to the R4R madjack has requested regarding FoIA and Discord; it is my impression that my presence on the executive discord server and relatively high degree of access as an advisor does not make me partial to the R4R as I believe I have no particular interest in anything I said remaining secret; I would like a gut check from either of you on that however before I go ahead and claim moderating justice-ness on this R4R
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King SillyStringToday at 9:20 PM
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As for the FOIA, I think you're fine. I also think I am fine, as I am also present on the executive server
I think if either of us had been delegate that would be different
And I am fine with you claiming MJ
er, moderating justice. not madjack
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King SillyStringToday at 9:30 PM
oh hey a thought occurs to me
(belatedly as it turns out)
4. Please establish your standing by detailing how you, personally, have been adversely affected. If you are requesting a review of a governmental action, you must include how any rights or freedoms of yours have been violated. If you are submitting this request in your capacity as the Attorney General or their designee, please note that here instead.

As a citizen, the lack of disclosure has prevented proper oversight of government actions by the wider citizenry and regional assembly.
is this compelling standing
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EluvatarToday at 9:31 PM
A citizen can't read info that hasn't been released. FoIA (and BoR) decides for us that citizens have an interest in such information.
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King SillyStringToday at 9:32 PM
anyway
that's a different thing
EluvatarToday at 9:33 PM
MadJack is citizen. Citizen has right to information under FoIA. Citizen does not have information. Citizen requests information be made available as FoIA may apply to it.
King SillyStringToday at 9:33 PM
right but that's not this
35. At any time a resident may request the release of any private record from the Government through the Delegate and the designated officers of the Executive.
36. The Delegate and the designated officers of the Executive will retrieve information requested from the different departments of the government.
37. Residents who do not receive this information for any reason not specifically designated in appropriate laws or regulations may file a request for the information to the court, where the Delegate and the designated officers of the Executive may present evidence that addresses any claim that release of the information meets one or more of the acceptable acceptable criteria for classification.
Madjack did not follow the FOIA procedure for requesting the designated information
he filed an r4r about the habitual practice of not releasing it
I don't disagree that citizens have standing here. More... I'm mindful of the fact that standing is weird and not well-defined and I'm not sure madjack made a compelling argument for why he has standing
if that makes sense
EluvatarToday at 9:35 PM
I hope we can ask follow-up questions
King SillyStringToday at 9:35 PM
I'd be happier if we started accepting r4rs with an explicit grant of standing
EluvatarToday at 9:35 PM
I believe accepting an r4r does not presuppose we're certain standing exists
King SillyStringToday at 9:35 PM
like "We find the petitioner has standing due to xyz"
hm
EluvatarToday at 9:35 PM
just as SCotUS accepting a case doesn't
King SillyStringToday at 9:35 PM
I think it does
I mean
ultimately we can do anything we want
my practice has always been to establish standing FIRST, before accepting or denying a r4r
EluvatarToday at 9:36 PM
PS: I pinned the procedures topic
King SillyStringToday at 9:36 PM
ty
I think that once a r4r is accepted, that is the court saying that the person has standing to have made the request.
EluvatarToday at 9:36 PM
But it's not a decision of the court, it's the decision of one Justice
it can't be binding as a court decision
King SillyStringToday at 9:36 PM
yeah and that's the tricky thing :P
EluvatarToday at 9:37 PM
It's my preliminary finding that standing exists
King SillyStringToday at 9:37 PM
Fair. Limerick and I could decline to agree and kick it back
I guess.
I just don't like that
EluvatarToday at 9:37 PM
That preliminary finding may be overturned by clarification, new information, or my being overruled by you two
King SillyStringToday at 9:38 PM
I'm recalling when grosse accepted my r4r as DAG, then issued a ruling that the AG does not have standing
but idk what the right answer is. We really need to fix standing >_> aka convince someone to file a r4r about it so we can make a new ruling :P
anyway I do think in this case any citizen (possibly even any resident) DOES have standing. FOIA mandates proactive disclosure exactly so that the public can scrutinize the actions of their government; by failing to disclose, the public is unable to do that. Any member of the public thus has a viable claim that their right to democracy, accountability, and transparency has been violated
EluvatarToday at 9:40 PM
Yes
King SillyStringToday at 9:40 PM
I just wish madjack had MADE that argument well :P so we could accept it and it could make sense
EluvatarToday at 9:40 PM
I have a question for the petitioner or friends of the court to address in briefs:

Does StGeorge have standing to make this request without first making a request, blanket or specific, for this information of the Delegate per clause 35 under the same act?
King SillyStringToday at 9:41 PM
but as it is, all the next court has to go on is what he said, and that we found it sufficient. Unless we want to explain our finding of standing in the final ruling
eh idk about that
EluvatarToday at 9:41 PM
+as an affected party+
We should explain any finding of standing.
King SillyStringToday at 9:41 PM
Like I said, I'm generally opposed to knocking a r4r out for standing after it's been accepted, unless things change dramatically
ok
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I guess brief submission has ended.

This one seems pretty straightforward to me. FOIA does not restrict itself by where government records are located.

It is true that prior court rulings (authored, I must note, by yours truly :D ) refer to posts; to whit:

As an additional finding, on the matter of ownership, the Court holds that the author of a post owns its content, and posts made while acting in one's capacity as a government official are owned, more broadly, by the respective branch of government within which that capacity falls.
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Individuals do not cease to be accountable to the region simply because their term has ended, and posts which were governmental in nature when made retain that status. In reverse, posts which are non-governmental in nature do not suddenly become subject to FOIA when their author joins the Executive branch. The sole relevant facts are the status of the post and its author at its creation.
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First, the Court states that all posts made within areas of the forum which normally grant posting privileges only to members of the executive - excluding administrators and moderators from consideration - are inherently made in the author's capacity as an executive official. Such posts cannot be considered non-governmental. Posts which are made in areas of the forum more accessible to the public may be ruled non-governmental if such a determination is merited by their content and context.
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However, at the time the vast majority of government business took place on the forum, with IRC serving primarily as a chatting medium. I believe (quite confidently) that the court did not foresee a shift like that which has occurred with discord, and had no intention of implying or ruling that only content on the forum was subject to FOIA. Rather, it was attempting to answer questions regarding private citizens as opposed to government officials, and to make certain things clear with respect to access and governmental status. Indeed, the ruling goes on to say:

So long as the author is speaking in their capacity as an executive official, the law applies.
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So I think we are on extremely solid ground legally and precedentially to rule that FOIA does apply to discord and that private discord servers and channels are subject to the same declassification procedures as private forum records.

Do the two of you think we should introduce a time period for the delegate to comply? There are a LOT of records for the delegate (or someone else, if they were to appoint a minister of declassification) to go through and we can expect that it will take some time. I would not want the delegate to run afoul of the law by not having it all done by next Tuesday. I also do not want the delegate to procrastinate and put it all off until the end of any allotted period, and then beg for more time.
 
I do not believe that I would be a good idea to set a time period for the Delegate to comply. It will take a significant amount of time for them or their minister if they were to make one, and we cannot know for certain how long it will take, because my guess is that there would be thousands of messages that they would need to go through. So I think that a deadline would be too extreme but maybe getting it done in a timely fashion would be more appropriate.
 
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Ruling of the Court of The North Pacific

In regards to the judicial inquiry filed by St George on the Freedom of Information Act and Discord

Opinion drafted by Eluvatar and SillyString, joined by Owenstacey​


The Court took into consideration the inquiry filed here by St George.


The Court took into consideration the legal brief filed here by Artemis.


The Court took into consideration the relevant portions of the Bill of Rights of The North Pacific:

9. Each Nation in The North Pacific is guaranteed the organization and operation of the governmental authorities of the region on fundamental principles of democracy, accountability, and transparency. No action by the governmental authorities of the region shall deny to any Nation of The North Pacific, due process of law, including prior notice and the opportunity to be heard, nor deny to any Nation of The North Pacific the equal and fair treatment and protection of the provisions of the Constitution. No governmental authority shall have power to adopt or impose an ex post facto law or a bill of attainder as to any act for purposes of criminal proceedings.
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The Court took into consideration the relevant portions of the Legal Code of The North Pacific:

Section 7.5: Freedom of Information Act

31. For the purposes of this section "the government" refers to the Delegate and the Executive Officers, including the departments which they oversee.

32. For the purposes of this section, classified information is that which fits any of the below definitions:

  • Real life information about any NationStates player from which there is a risk of inferring that player's real life identity and which has not willingly been disclosed to the public, including, but not limited to, an individual's name, IP address, physical address or location, phone number, place of employment or education, appearance, social media accounts, and other knowledge about a player, unless the player in question provides explicit consent for this information not to be considered private.
  • Real life information about any NationStates player for which there exists a reasonable real life expectation of privacy or discretion, including, but not limited to, health status, both mental and physical; financial status; personal tragedies; changes in personal status such as marriage, divorce, pregnancy, birth, or death; and other similar information, unless the player in question provides explicit consent for this information not to be considered private.
  • Information that, upon being made public, would jeopardize any ongoing military or intelligence operations; or jeopardize the security of units and agents participating in them, or be harmful to the diplomatic interests, military interests, or security of The North Pacific.

33. Notwithstanding any process for publication, any information which meets the criteria to be classified will not be released.

34. Private government records which reach one year of age will be relocated to the appropriate Declassified Archive visible to residents.

35. At any time a resident may request the release of any private record from the Government through the Delegate and the designated officers of the Executive.

36. The Delegate and the designated officers of the Executive will retrieve information requested from the different departments of the government.

37. Residents who do not receive this information for any reason not specifically designated in appropriate laws or regulations may file a request for the information to the court, where the Delegate and the designated officers of the Executive may present evidence that addresses any claim that release of the information meets one or more of the acceptable acceptable criteria for classification.

38. Information appropriately not disclosed will be accepted as classified by a majority vote of the Court sitting as a three-member panel.
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The Court took into consideration its ruling on content ownership and freedom of information requests against the Security Council:

As an additional finding, on the matter of ownership, the Court holds that the author of a post owns its content, and posts made while acting in one's capacity as a government official are owned, more broadly, by the respective branch of government within which that capacity falls.
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The Court took into consideration its ruling on the meaning of "private citizen" with respect to the Freedom of Information Act

It is the status of the author and not the topic which determines whether a post is subject to FOIA. So long as the author is speaking in their capacity as an executive official, the law applies.
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The Court expands on the above by issuing the following additional rulings:


First, the Court states that all posts made within areas of the forum which normally grant posting privileges only to members of the executive - excluding administrators and moderators from consideration - are inherently made in the author's capacity as an executive official. Such posts cannot be considered non-governmental. Posts which are made in areas of the forum more accessible to the public may be ruled non-governmental if such a determination is merited by their content and context.
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The Court opines the following:


On Standing in this Inquiry

The Court has determined that St George does have the standing to bring this request for review. The Freedom of Information Act implements the fundamental principle of transparency as laid out in the bill of rights, and mandates proactive disclosure of non-private information by the executive branch so that the public can scrutinize its doings. By failing to release information as required, the executive prevents the public from performing this critical oversight. Any resident thus has a possible claim that their right to democracy, accountability, and transparency has been violated when they believe a broad failure to release has occurred.


On the Scope of the Freedom of Information Act

The Freedom of Information Act states that “private government records” are subject to release upon reaching a certain age, or upon request from a resident. It does not limit its scope to only content located on the official forum of The North Pacific. The term “private record” is not explicitly defined, but it is implicitly contrasted with declassified archives that are “visible to residents”.


In its prior rulings on the Freedom of Information Act and the ownership of content, the Court made consistent references to “posts” in “areas of the forum”, rather than more generic references to any type of content. At the time the rulings were issued, Discord was not in use by the region, and the vast majority of government business was conducted on the official forum. It was also regular practice by government officials at that time to post transcripts of any official IRC chats that occurred into the relevant areas of the forum to maintain a formal record of proceedings. Additionally, the requests for review that led to these rulings were made in reference to specific topics and posts on the official forum - they were not requests to determine, more broadly, the media to which FOIA applied.


The Court therefore rules that the Freedom of Information Act applies to any platform on which TNP government business is conducted.


On the Ownership of Content

In light of the above decision, the Court has examined its prior rulings on this subject to determine if they still apply, or if any further clarifications are necessary. In its rulings on content ownership and the meaning of “private citizen”, the court stated:


As an additional finding, on the matter of ownership, the Court holds that the author of a post owns its content, and posts made while acting in one's capacity as a government official are owned, more broadly, by the respective branch of government within which that capacity falls.
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So long as the author is speaking in their capacity as an executive official, the law applies.
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First, the Court states that all posts made within areas of the forum which normally grant posting privileges only to members of the executive - excluding administrators and moderators from consideration - are inherently made in the author's capacity as an executive official. Such posts cannot be considered non-governmental. Posts which are made in areas of the forum more accessible to the public may be ruled non-governmental if such a determination is merited by their content and context.
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The Court therefore issues the following clarifications to the above rulings:


  1. The author of any message, not just of a forum post, owns its content, and any messages written while acting in one’s capacity as a government official are owned by the respective branch of government within which that capacity falls.

  2. All messages made within spaces that normally only grant access privileges to members of the executive - excluding administrators and moderators from consideration - are inherently written in the author’s capacity as an executive official. Such messages cannot be considered non-governmental. Messages written in spaces that are more accessible to the public may be ruled non-governmental if such a determination is merited by their content and context.

  3. For the purposes of FOIA, as specified in clause 31, posts made by members of the executive staff within executive spaces are considered to be owned by the executive department they are part of, and therefore by the executive as a whole.
 
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