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Due Process, Data Access, and Information Commissions

Cite as: 6 Geo. L. Tech. Rev. 446 (2022)

The collection of personal data by private companies has received widespread attention both in the media and in popular discourse, and it is increasingly focused on the way that personal data may be used to the detriment of concerned individuals without much recourse.1 But governmental entities have also collected vast amounts of personal information,2 and agencies increasingly rely on large-scale databases for decision-making about individual benefits or enforcement decisions. Sometimes these decisions draw on increasingly detailed record sets maintained by the agency in question; other times agencies rely on algorithmic decision-making,3 including algorithms that incorporate privately maintained databanks.4

When government agencies make decisions that impact important interests of individuals—sometimes critically important interests ranging from disaster relief awards to deportation from the United States—the bases of those decisions may rely on information the government has already collected, such as tax submissions or law enforcement surveillance data, about which the affected individual is unaware. The less transparent the basis for the decision, the more likely that individuals are subject to incorrect or arbitrary government actions. Individuals often need access to the government’s files to contest underlying facts or make their best case, but in many administrative contexts, there is no process akin to discovery to obtain the government’s records.

Instead, individuals make requests under the Freedom of Information Act (FOIA) by the hundreds of thousands as a stop-gap measure to access their own data held by government agencies.5 Although FOIA’s access provisions are some help for these individuals, FOIA does not provide requesting individuals with the kind of procedural protections usually associated with the adjudication of important rights. In fact, an independent adjudication of the right to access one’s own file is only available if they file an entirely separate civil lawsuit in federal court.6 This Essay proposes that the due process interests of individuals seeking to access their own records would be best served by an information commission model, under which an independent agency would be empowered to adjudicate transparency disputes between members of the public and government agencies.

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Margaret B. Kwoka

Margaret Kwoka is the Lawrence Herman Professor in Law at The Ohio State University Moritz College of Law. Prior to joining the Moritz faculty, she was a Professor of Law and Director of the Information Transparency Project at the University of Denver. She teaches Civil Procedure, Federal Courts, Administrative Law, and a workshop on privacy and transparency. Professor Kwoka’s research interests center on government secrecy, the Freedom of Information Act, procedural justice, and judicial review of agency actions. Her articles have appeared in the Yale Law Journal, Duke Law Journal, Boston University Law Review, UC Davis Law Review, and Florida State Law Review, among others, and her forthcoming book, Saving the Freedom of Information Act, will be published by Cambridge University Press. She has testified before Congress on government transparency, served on the Federal FOIA Advisory Committee at the National Archives and Records Administration, and won various awards for her teaching, her pro bono litigation, and also for her scholarship, including most recently the Harry J. Kalvin Prize for Empirical Scholarship from the Law and Society Association.