[blindlaw] FOIA, § 508, and blind representation

[Tim Elder]

Yes, sorry about the paywall.  I don't even get a copy of my own article.  Yes, you are correct that the decision was retracted, but the analysis still holds as you have noted.  The skeptic in me thinks the judge was tapped by national security types on how this could jeopardize classified information while complying with FOIA, bla bla bla ...  Either way the opinion is a good analysis.



-----Original Message-----
From: Sai [mailto:legal at s.ai] 
Sent: Friday, December 02, 2016 4:05 PM
To: tim at timeldermusic.com
Cc: Blind Law Mailing List
Subject: Re: [blindlaw] FOIA, § 508, and blind representation

Thanks for your pointer. I've managed to get a copy of your paper, though grr academic paywalls.

FYI, the case law you cited — National Day Laborer Organizing Network v ICE, No. 10-cv-3488 (S.D. N.Y. Feb. 7, 2011) — was explicitly retracted, id. June 17, 2011:

Feb. 7: <https://scholar.google.com/scholar_case?case=14703320529971186199>
June 17: <https://scholar.google.com/scholar_case?case=9491752246876203399>

Nevertheless, the Feb. 7 opinion is quite thorough, and probably the clearest treatment of electronic format, metadata and FOIA I've seen in case law so far. It's from an ESI / discovery perspective, not considering § 508 issues — which I think are overlapping — but I've yet to see any case law that does explicitly consider that.

Thanks!

It'll be pretty useful for the MSJ I'm writing right now, at least for its logic and cites, even if I have to disclaim it as citable itself.
I'm trying to get a permanent injunction for TSA's practice, among multiple other things, of refusing to provide native, accessible electronic format files with metadata.


Once I'm no longer in the middle of drafting a brief, I'd be happy to collaborate on something for the FOIA Advisory Committee if you're interested.


Relatedly, the Access Board's "508 refresh" final rule is submitted to OMB and pending publication:

<http://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201604&RIN=3014-AA37>

I asked them about it, and they said that they expect OMB to finish review "by or before the end of the administration".

It'll be effective 6 months after publication, with an exception for
procurement: <https://www.access-board.gov/guidelines-and-standards/communications-and-it/about-the-ict-refresh/proposed-rule/vii-effective-date>

Sincerely,
- Sai

On Fri, Dec 2, 2016 at 3:44 PM, Tim Elder <tim at timeldermusic.com> wrote:
> Hello Sai,
>
> I may be able to help with this.  Here is an article I wrote about the relevant intersection between 508 and FOIA.
> Lazar, J., Elder, T., and Stein, M. (2013).  Understanding the Connection Between Human-Computer Interaction and Freedom of Information Laws.  Interactions, 20(6), 60-63.
>
>
>
> -----Original Message-----
> From: Sai [mailto:legal at s.ai]
> Sent: Wednesday, November 30, 2016 1:31 PM
> To: blindlaw at nfbnet.org
> Subject: [blindlaw] FOIA, § 508, and blind representation
>
> Hello all.
>
> The NARA / OGIS FOIA advisory committee is currently discussing agencies' obligations under Rehab Act § 508 and their intersection with federal FOIA law.
>
>
> The underlying problem is that agencies have a process for processing documents, especially redacting, that takes an originally electronic document like a Word file, PDF, spreadsheet, etc, and turns it into a rasterized PDF. Some agencies will literally print a file and then scan it.
>
> Aside from some old documents that were actually made on typewriters or the like, the accessibility problem is entirely of the agencies'
> own making. It violates both the Rehab Act § 508 and FOIA (which mandates that agencies provide documents in the format requested, including originals).
>
>
> A structural issue is that there are, AFAICT, zero people on the committee with actual personal experience or expertise about the need for accessible documents. It is a classic example of people deciding things for an entire swath of disabled people without bothering to have any representation from that group in the decision.
>
>
> The October 25, 2016 meeting was about this.
>
> Transcript of the full meeting:
>
> <https://ogis.archives.gov/Assets/October+25+2016+Meeting+Transcript.p
> df>
>
> Video of part 2 only:
>
> <https://www.youtube.com/watch?v=dCD93wCAg8A&index=15&list=PLugwVCjzrJ
> sWX2o94WrDBxASNVEajHJ_L>
>
>
> There are relevant comments by Alex Howard of Sunlight Foundation at p 115-120, time 1:13:50-1:20:30; and by Michael Ravnitzky at p 120-128, time 1:20:30-1:31:10.
>
> There are also comments at 1:12:30 by a member of the advisory committee suggesting that agencies should push the burden of making documents accessible onto the public and individual requesters.
> Personally, I find that rather offensive — especially coming from someone who's supposed to be on a working group about § 508 best practices, since it displays a lack of even "disability law 101" level understanding.
>
>
> So… if any of you are located in DC, would you be interested in participating in the OGIS meetings about FOIA and § 508 accessibility?
>
> Would you be interested in collaborating on written comments defending our right to information in accessible formats?
>
> Sincerely,
> Sai
>
>
>