Chapter 6  Practicing Freedom of Information as “Feral Law” and Advancing Research Methods in Socio-legal Studies

Why Socio-legal Studies? And How?

There has been considerable discussion about what socio-legal studies is and where it is headed (see Travers 2001; Thomas 1997). These discussions have often started with reflection on doctrinal legal scholarship. As Alan Hunt (1981) once pointed out, traditional legal studies has had trouble accepting theoretical and critical work. Doctrinal analyses of case law are still taught as producing a kind of truth in law schools. Hunt (1981) argued that the importance of a sociology of law is that it allows for theoretical and critical work in ways that doctrinal analyses exclude. Cotterrell (1998) similarly argued for a social and theoretical understanding of law, to guard against the reductionism of pure doctrinal approaches. Yet, even the sociological turn in law and the subsequent development of a sociology of law has limits. One limit is that the sociology of law has not been multidisciplinary and has tended toward more abstract conceptual interventions, including the notion of society itself (Fitzpatrick 1995). In the past two decades, the field of socio-legal studies has flourished. In socio-legal studies, a greater diversity of research methods and theoretical perspectives are now drawn on, an even greater diversity than Hunt and Cotterrell even imagined (see Hudson 2006; Leonard 1995; Kline 1994). Mariana Valverde (2016) has argued that socio-legal studies is marked by its focus on law in action—that is, studying the consequences, the impacts, and the offshoots of law by examining how it works, not simply settling for how the law says it works. Feenan (2009) similarly argues that socio-legal studies examines law in context. In other words, socio-legal studies draws on a diversity of methods and theories to disrupt the self-referential nature of law and its authority.

Beyond the focus on law in action, Valverde (2016) notes that socio-legal studies cannot afford to be overly philosophical or theoretically obtuse. The trouble with some critical socio-legal work is that the analytical schemes developed are so dense that they do not help advance the mission of analyzing law in action (also see McKnight 2015; Jabbari 1998; Kagan 1995). As Valverde puts it, “Neither legal philosophy nor grand European sociology of law are particularly helpful, and in many respects these traditions constitute obstacles to concrete analyses of legal processes” (2016, 172). Taking this claim as our point of departure, our conceptualization and practical approach to feral lawyering is influenced by literature in social studies of science (Callon 1984; Latour 1987; Law 2009; Mol 2010). It has been argued that social studies of science offers a unique and useful approach to the study of law and legal knowledges “in the making” (Cloatre 2015; Rooke, Cloatre, and Dingwall 2012; Cowan and Carr 2008; Levi and Valverde 2008).2 The language and approach of social studies of science informs our conception and study of feral lawyering and is consistent with the emphasis of socio-legal studies on legal processes.

In social studies of science, the emphasis is on empirically documenting social life “in action” (Latour 1987). Socio-legal phenomena are messy and precarious configurations constructed by heterogeneous actors in motion (Law 2009). The approach highlights empirical questions of how actors and their material counterparts work together in a coordinated effort to achieve some goal or outcome. Objects (e.g., texts), as much as people, have the capacity to shape social outcomes. The law and its power, therefore, are never predetermined conditions but achievements, network effects, and the outcomes of a successful “translation” (Callon 1984). A social studies of science approach is consistent with a socio-legal approach for four reasons.

First, a social studies of science approach and a socio-legal approach both focus on the minutiae of daily practices. Second, both undermine the presumably unassailable authority and universality of truth and knowledge, in one case science and the other case law. Third, both perspectives strive to use theory in a way that is still in contact with the empirical world or, better yet, based on empirical observation. Comparative, empirical inquiry is a core focus in contemporary socio-legal studies (Creutzfeldt, Kubal, and Pirie 2016). Fourth, both social studies of science and socio-legal studies view the researcher as an active participant in the research process, preferring methodologies that are open, messy, and reflexive. Informed by social studies of science, below we develop a mentality and guiding conceptual framework through which to theorize, practice, and analyze law—ATI/FOI law specifically—that does not ignore the letter of the law but instead requires a full immersion in law as a way of studying it in action. The concept and mentality of feral lawyering elaborated below does just that.

Going Beyond Official Legal Discourse

The Government of Canada’s website section on “how access to information and personal information requests work” presents the ATI Act as providing “Canadian citizens, permanent residents and any person or corporation present in Canada a right to access records of government institutions that are subject to the Act” (Canada 2017). As the web page explains, each federal agency has an “Access to Information and Privacy Coordinator.” “The coordinators are responsible for ensuring that any access to information or personal information requests received by the institution are responded to in accordance with the Acts” (2017). The web page continues on to say that while citizens have a right to ask, not all information can be released. The coordinators review the information and determine what can and cannot be released: “Some information needs to be withheld to protect other important democratic values, such as national security considerations, or to protect the privacy of personal information” (2017). Some of these exemptions are required by law; others are determined at the discretion of the public body (2017). If the requester is not “satisfied” with how their request was processed or with the contents of the disclosure, they can “make a complaint” to the Office of the Information Commissioner of Canada (2017). One finds a similar framing in government websites on FOI at the provincial level.

The government’s official discourses on ATI/FOI frame the process through the language of legal rights (the right to ask), expert decision-making (requests are reviewed by expert bureaucrats), national interests (information is only inaccessible when its disclosure would undermine “other important democratic values”), and customer satisfaction (the right to “complain” when “dissatisfied” with the process or outcome). Lay citizens are encouraged to make requests for information under ATI/FOI laws, await the decision of expert coordinators, and then accept or “complain” about the outcome. This official narrative and the framing of ATI/FOI are not only simplistic and inaccurate but seek to constitute the requester in a particular way in relation to the state. Official discourse around ATI/FOI positions the requester, as lay citizen, in relation to the coordinator, as expert bureaucrat, and in this way seeks to enact a power relation wherein requesters submissively take what they get. The law, national interests, and democratic values are presented as the core mechanisms through which information is disclosed or withheld. Other more questionable considerations that might block or mediate the contents of a disclosure—for example, understaffed ATI offices, personal quarrels, an interest in avoiding political scandal—are not assumed to figure into the equation.

Legal studies literature on ATI/FOI tends to reproduce this dichotomy, treating ATI/FOI law as a special knowledge. For example, Kazmierski’s (2016) work on ATI/FOI is reflective of a doctrinal approach and sticks to case analysis or application of the Charter and constitutional tests to ATI/FOI law (also see Kazmierski 2009, 2013, 2014). Focus on the letter of the law and official legal and administrative mechanisms are also primary focuses of literature on FOI and public policy (Cordis and Warren 2014; Hazell and Worthy 2010; Shepherd, Stevenson, and Flinn 2010). Of course, this approach is much needed to track changing precedents. The problem with such a doctrinal approach alone, however, is the analysis often stops with the letter of the law. We want to theorize and analyze ATI/FOI law and practice in a way that is consistent with socio-legal studies, and we want to study law in a way that moves with it. That is, we want to analyze ATI/FOI law and practice using a method that can examine the making of law, the letter of the law, but also, crucially, law in action.

Below, reflecting on the work required to successfully file an ATI/FOI request for academic research in Canada, we present an alternative approach to conceptualizing ATI/FOI in action. We call this approach feral lawyering, a notion we introduce to highlight both the variance of ATI/FOI regimes in practice (within and between organizations, countries, etc.) as well as the creative strategies required for requesters to effectively gain access to useful information in government. It is indeed a form of lawyering insofar as the ATI/FOI user works with legal knowledges, processes, and resources to leverage information from the government, yet it is feral in the sense that the ATI/FOI user can be more creative, collaborative, investigative, and subversive in their work than those employed within the constraints of the formal legal system. The goal of reconceptualizing the work of ATI/FOI requesting as feral lawyering is not to suggest that requesters are equivalent to professional lawyers or that requesters receive professional training as lawyers (though this would be helpful). There remain crucial differences between professional and feral lawyers, not the least of which is the specialized training received by professional lawyers, the access to resources, and the role of the courts, which can (but rarely) figure into ATI/FOI processes in Canada (see Yeager 2006). Still, to be successful, ATI/FOI requesters are required to adopt many of the same negotiation, argumentation, and appeal practices familiar to professional lawyers. Rather than ask and wait as lay citizens, the ATI/FOI user as feral lawyer must adopt an active, creative, sometimes obtrusive approach to navigating the wild and variable legal regime that is ATI/FOI (on creativity and law, see Lefebvre 2008).

Feral Lawyering

In addition to challenging official discourse on ATI/FOI, there are two further benefits for socio-legal studies literature to researching and practicing ATI/FOI as feral lawyering. First, it pushes socio-legal scholarship to explore those areas of social life, in which law is constituted and legal subjects are produced, that otherwise lie outside of the expert services and formal arenas (in particular, the courts) of trained legal professionals. ATI/FOI matters rarely make it to the courts and, except in rare moments of journalistic frustration, are not widely publicized. When viewed through the terms set forth by government’s official discourse, it is easy to overlook the extent to which regular users of ATI/FOI are involved in lengthy disputes that involve them operating as quasi-professional lawyers despite usually receiving no formal legal training.3 Not unlike jailhouse lawyers who train themselves to use law as a tool, feral lawyers using ATI/FOI for socio-legal research educate themselves on laws, legal modes of argumentation, effective strategies for brokering access, and avenues for challenging seemingly “closed” decisions such as formal appeal with Information and Privacy Commissioners (IPCs).

Second, feral lawyering involves complex and lengthy processes of negotiating with coordinators, arguing, and appealing decisions, and insofar as the feral lawyer extensively documents these, they make ATI/FOI processes—not just the letter of law or surrounding official narratives—into researchable subject matter for socio-legal studies scholars. Everything from the writing of the request to the interactions with the coordinator can be extensively documented. True to a social studies of science approach, this can also entail keeping track of non-human as much as human actors involved at every stage. When feral lawyering, ATI/FOI users are, for example, “acted on” by a variety of legal and bureaucratic texts that shape their actions, and these can be reflected on in detailed field notes for later analysis (see also Prior 2008). By keeping detailed field notes of everything from the initial request to the negotiations with coordinators, feral lawyering is something that can be reflected on in a subsequent analysis of how ATI/FOI law works in action. Such analyses are often overlooked in socio-legal scholarship on ATI/FOI, where the focus tends to be on the disclosure outcome. Feral lawyering requires that the workings of ATI/FOI law in action are well documented.

Brokering Access, Strategies of Argumentation, and Appeal

ATI/FOI starts with the filing of a request for records with a government agency. This can be anything from a corpus of emails to a series of internal reports, a Memorandum of Understanding, or any other bureaucratically generated text unique to the organization the researcher is interested in. Drafting the requests requires careful consideration of the file structure of the agency records in question. The ATI/FOI user should do their homework on the agency, their personnel, their records, and so on, to inform the wording of the request. This might entail looking at the wording of other similar requests and asking colleagues or journalists for feedback. Once an ATI/FOI request has been filed with a government agency in Canada, the user will often receive a phone call from a coordinator. Sometimes the user will receive an official letter first, acknowledging receipt of the request, but it is this first informal contact by telephone that for feral lawyers constitutes the first moment of negotiation with the government over access to data. The moment the user answers the telephone from a (typically) “private” number, the coordinator will usually start the exchange by seeking to “clarify” the wording of the request, sometimes also asking why the information is being sought. Once the requester has supplemented their written request with a verbal explanation of the information they are after, it is typical for coordinators to encourage them to reduce the scope of the request by presenting claims about high fees and lengthy time delays due to the large amount of work that would allegedly be required to process a request. When acting as feral lawyers, ATI/FOI users tend not to give in blindly to the coordinator’s recommendations (which usually entail dropping or limiting the scope of the disclosure) but use this as an opportunity to “broker access” to the records they are after (Larsen and Walby 2012). There may be a discussion of costs for larger disclosures that occurs, though an early mention of cost by an ATI/FOI coordinator during the brokering process may be an attempt to dissuade the user. The feral lawyer needs to be shrewd during these conversations and negotiations and be prepared to challenge exorbitant fee estimates if necessary.

ATI/FOI requests present users with numerous opportunities to employ creative and legalistic styles of argumentation to broker access to information. When feral lawyering, ATI/FOI users may mimic styles of argumentation popular in their understanding of professional law (which will vary from person to person). For example, one strategy that we commonly use, particularly in large comparative research projects involving multiple identical ATI/FOI requests on multiple agencies, is to argue precedent. When a coordinator seems hesitant to release information or informs us that they will be heavily redacting it, we inform this coordinator when possible that other agencies—particularly nearby ones or agencies in their same province—have released this information already without applying the same sections of law to severe it. Coordinators will rarely if ever ask about your requests with other agencies, but as feral lawyers, we usually offer it. By sharing the response and disclosure package of other agencies, these agencies sometimes reconsider their own proposed approach to framing the disclosure. This is evidence that, although they often present their rationales as indisputable, there is no “natural” or “inherent” connection between the information being asked for and the sections of the law that prevent that information from being disclosed in the interests of the state. Challenging their rationales through tactics like this one is proof that the seemingly impenetrable legal arguments put forth by coordinators to justify their decisions are not set in stone.

One request we submitted to the Abbotsford Police Department (APD) in British Columbia provides a case in point (see Luscombe, Walby, and Lippert 2017). For a larger comparative research project on user-pays policing (i.e., companies hiring public police for private ends, for example, crowd control, event security), we submitted requests for internal police records logging the names of businesses that had hired members of the APD between 2012 and 2015. Having filed this same request with ninety police departments across Canada, we encountered varying degrees of openness and ease of access to records. For reasons unknown, the APD was the one agency that sought to block us. After receiving an incomplete and highly redacted version of the documents we requested, we demanded that the coordinator provide us with a written explanation of their rationale and legal justification, something they had not initially provided with the disclosure package. As the coordinator explained to us by email,

I understand what you are asking for, however, that is not information that we will be providing and is not in the public interest. We have provided you with the financial information which indicates what the Abbotsford Police have received in recouped expenses for callout services provided. If the Abbotsford Police were to hire an outside company to provide a service, then yes, we would release that information as it would be the taxpayers’ right to know where the money is going. However, when we are hired by another organization/company to provide a service for them (on a cost recovery basis only), it is not our place to release information on the specifics of that organization and how they spend their money. As a public body, not only do we release information, we also have a responsibility to protect the personal information of individuals and private companies. If you have any other questions, please feel free to contact me again.

The passage above evinces many of the elements of ATI/FOI official discourse that we have discussed so far. By requesting that the coordinator explain their reasoning in writing, we were able to obtain the basic necessary information to construct a counter-argument and initiate an appeal. First, note the tone of the explanation, written in a seemingly unchallengeable, expert, and authoritative way. Rather than state that they did not believe the information to be in the public interest, a view that ran contrary to our own, the coordinator stated that the information “is not in the public interest.” And rather than the information being something that they wished or preferred not to provide, it was presented as information that they will “not . . . be providing.” Language use is important here, as the chosen words seek not only to communicate to the user the agency’s rationale for withholding information but present them as unchallengeable, expert-based, and authoritative. They speak to the user as a lay citizen rather than as a feral lawyer. The mention of the “taxpayers’ right to know” is also significant here, as it seeks to close the exchange by framing it in the language of binary rights (the right to know versus the right not to know) rather than the more fluid proficiency to know that is at the core of feral lawyering. The coordinator’s response also seeks to frame their withholding of records in terms of protecting “other democratic values,” referring to a responsibility to protect the information of individuals and private companies. Finally, in the last sentence of their response, the coordinator encouraged us to contact them with “any other questions” about the agency’s “expert” decision (rather than contact them to challenge or counter-argue it), again presented as something fixed and unchallengeable. This entire passage, which is typical when using ATI/FOI to research government agencies in Canada, exhibits many of the qualities of the official discourse surrounding ATI/FOI that feral lawyering is meant to challenge.

After receiving this response from the coordinator, we prepared a detailed analysis and counter-argument to this rationale and sent it to the local provincial IPC. Rather than a process of “dissatisfaction” and “complaint,” feral lawyering involves disputing the decision of the blocking agency through lengthy, quasi-legal challenges and appeals framed in law and submitted to an IPC. Before filing an appeal with an IPC, feral lawyering ATI/FOI users prepare detailed letters, documenting all their communications with an ATI/FOI coordinator and crafting a persuasive counter-argument based in law establishing why they believe the coordinator is unjustified in withholding the information they are demanding access to. In our own appeal letters to the IPC, for example, we refer to precedent, propose alternative interpretations and applications of ATI/FOI law, highlight sections of ATI/FOI that strengthen our case, make “public interest” arguments about the information we are requesting, and sometimes even point to evidence of seeming ill-intention by the ATI/FOI coordinator in the context of formal and informal communications. We have also filed fee waiver requests with several agencies, an avenue of appeal that agencies do not always advertise or encourage but that can work well especially for students without sufficient financial resources to cover high costs. Finally, in some instances, we have gone as far as to threaten litigation, citing access to (admittedly sometimes exaggerated) research budgets, to gain access to information from agencies that simply will not budge otherwise.

In our letter to the IPC regarding the APD files, we explained how we had already filed this exact same request with other police agencies in the country and had received the information we requested. We also pointed to section 22(4)(a) of British Columbia’s FOI law, which states that the disclosure of third-party information is not considered an unreasonable breach of privacy if “the third party has, in writing, consented to or requested the disclosure.” The coordinator, who received a copy of this letter from the IPC, later responded to us again by email saying that they had contacted other agencies to confirm: “Since our last reply to your request we have consulted with several other police agencies to get their feedback regarding your type of request and confirm that they did agree to release the requested information to you, as such, we will follow suit.” The coordinator, despite iterating at the start of another response letter that they had released all the information we had requested (an untrue statement), decided to “follow suit,” giving in to the argument for precedent made in our letter to the IPC.

The process of request and appeal is unfortunately not always as straightforward as our above experience with the APD. Another example of feral lawyering comes from Randy K. Lippert (see Lippert, Walby, and Wilkinson 2016). Lippert and his colleagues submitted FOI requests to four police agencies in Ontario regarding similar policing practices to those we had requested from the APD. One of the agencies did not acknowledge receipt of the request or respond in any way within the required thirty-day period, despite having received a money order for the processing fee. After several months with no response, Lippert resubmitted his request in person, repaying the processing fee. When several months later there was still no response, Lippert submitted an appeal with the provincial IPC. In the appeal letter, Lippert detailed the actions he had taken to submit and resubmit the request and established precedence by showing how the other three agencies he submitted the same request to had already completed his requests. The IPC replied acknowledging his two requests to the police agency and indicated that they would be initiating a response from them. Soon after, the police service provided a fee estimate of $2,071 CDN, an amount twenty times higher than charged by the other three agencies.

Lippert contacted the IPC about this astonishingly high fee estimate and was encouraged to submit a fee waiver request to the agency. In the fee waiver letter, Lippert argued that the fee be abandoned or reduced because of the small amount of preparatory work required by the agency, the precedent set by the other three departments, and research budget limitations and because the research he was conducting was in the public interest. Under Ontario provincial FOI law, the agency is required to respond to this fee waiver request in ten days, but Lippert did not receive a response for two and half months, whereafter the agency denied his request on the grounds that every police service “is a different entity and is not required to keep the same database format” (Lippert, Walby, and Wilkinson 2016). In the letter, the department also explained that “your request dated May 17, 2012 and assigned our file number 12–2015 . . . duplicates 666 pages of this request. You may wish to amend your request and . . . and reduce your fees by $799.20” (2016). In other words, the agency had amalgamated the two duplicate requests under one file number resulting in a considerably higher fee estimate, a seemingly ill-intentioned tactic of stalling and blocking access (it may have been sheer incompetence, but this seems less likely given the broader context). By combining the two duplicate requests, and therefore planning to process the same disclosure twice, the department was able to justify a high processing cost and feign flexibility by offering to reduce the cost by only processing the request once. When Lippert appealed again with the IPC, the department used this rationale to justify their position and high cost, which the IPC, given its limited powers, was able to do little to challenge at the time. Two months later, Lippert received an email from the same IPC mediator explaining that the police department had agreed to release the information at a lower and more reasonable cost of $290 CDN. After paying this amount to the police agency, Lippert still did not receive any of the records from the agency. Unable to contact the IPC mediator, he eventually learned that his file had been transferred to a new IPC official. Lippert debriefed the new mediator, who agreed to initiate a “failure to disclose” appeal. A week later, Lippert and his colleagues received the information they requested. The lengthy and drawn-out fiasco took over a year to settle from the date of the initial request to final disclosure. In contrast to our example of requesting files from the APD, Lippert’s experience was more complicated, drawn out, and even ridiculous at times. His experience perfectly demonstrates how far some agencies will go to prevent access to their records (even when they’re as generally benign as these were). It also demonstrates just how persistent feral lawyering ATI/FOI users need to be when brokering access to records from such guarded agencies as the police.

We want to end with a note on ethics. Invoking precedent is one negotiation strategy that many feral lawyers use, but there are many other possibilities, some more seemingly risky from the standpoint of established scholarly ethics. How far a researcher practicing feral lawyering is willing to go in their argumentation tactics is an ethical matter. As we have argued elsewhere, ATI/FOI calls into question some ethical conventions in qualitative research (Walby and Luscombe 2017). Feral lawyers, who are generally viewed as submissive lay citizens by the power-wielding state, are “studying up” (Nader 1974) rather than “down” and, in our view, require a different procedural ethic than is applied in other research situations where the power relation is reversed (e.g., research interviews with prisoners or other victims of state violence). When studying the state using ATI/FOI requests, is there still an ethical duty for researchers-as-feral-lawyers to avoid deceiving coordinators in informal communications or to take caution when evidence of illegal or disreputable acts by state officials is obtained? When coordinators dubiously probe researchers about their research questions, intentions, and publication plans, are researchers still required to be totally transparent and forthcoming with them? The fact that coordinators sometimes inappropriately ask about users’ intentions with the disclosed information, even though their decisions should not be made on such extralegal grounds, troubles established ethical practices of researcher-subject transparency applicable in other contexts and enforced by institutional review boards (also see Burr and Reynolds 2012; Prior 2010). While such questions remain unanswered and will vary by situational context, our goal here is simply to trouble mainstream ethical considerations in the context of ATI/FOI that, depending on the procedural and situational ethics of the researcher, will constrain or enable the use of different feral lawyering tactics.

Conclusion

In this chapter, we have developed a guiding conceptualization and research mentality through which to simultaneously study and practice ATI/FOI that is consistent with social studies of science and socio-legal studies. We have drawn attention to the need to foster more attention for research methods in socio-legal studies in Canada. Clarifying different methodological approaches to conducting socio-legal studies helps demarcate what socio-legal studies itself is and the direction it is headed (cf. Harris 1983). Specifically, we have developed the concept of “feral lawyering” in the context of ATI/FOI law as a way of cultivating a critical socio-legal analysis of law in action, moving away from reifying law as a privileged knowledge, and resituating academics, lawyers, activists, and other everyday people as capable users of law.

There is privilege involved in using law in this way, but the challenge is to do so in a manner that levels rather than reaffirms hierarchy. Indeed, using ATI/FOI in a feral manner is one of the only ways to investigate what the editors of this volume call the “slow violence” of the state (see the introduction). Such an insurgent approach cannot simply offer “a how-to manual revealing a linear cause-and-effect of the discipline (as generations of classical sociology thinkers and law ‘and’ society scholars suggested). Neither is law purely an aspect of social life” (McKnight 2015, 122). A social-legal approach needs to examine the making of law, the letter of the law, and law in action using new and existing conceptual and methodological tools rooted in the social sciences. The approach to feral lawyering used by us and many other ATI/FOI users in Canada and beyond attempts to level the playing field and dismantle the expert bureaucrat / lay citizen understanding of legal knowledge that marks official discourse on ATI/FOI and the legal field more generally. This approach to socio-legal research requires patience, grit, and the use of law to investigate practices of power and governance. There is also a subversive element to using ATI/FOI in this way, as these records can reveal embarrassing, wasteful, violent, and abhorrent government practices. This approach further acknowledges that law comes in many forms and is practiced by all kinds of players in the legal field (also see Tamanaha 2000; Merry 1988). Law is not simply what the state or legal experts say it is. As we have shown, ATI/FOI law is not reducible to case law or reviews of existing legislation. The goal of feral lawyering is to practice and study law in a non-obtuse, theoretically informed way to advance a socio-legal understanding of research methods and of ATI/FOI law in action.

Notes

References