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on confidentiality and FOI laws

For the past few weeks now I’ve been emailing back and forth with a vendor, debating terms of a license agreement. I struck several terms, both of my own volition and on recommendation from purchasing officials on my campus, and added additional SUNY-specific terms that need to be included. I’ve done this many times before, and usually, the vendor suggests changes to bring us to agreement, or simply agrees, and we move on. (The notable exception is that Lexis-Nexis will never ever ever ever agree to allowing walk-in users, which is an incredible pain in the ass in re: our public access computers.)

Except this time, I’m getting pushback.

The clause in question requires, in regard to legal requests for disclosure under applicable Freedom of Information requests, that “the party required to make such disclosure promptly provides written notice to the other party of such required disclosure and reasonably cooperates with such other party’s efforts to minimize the extent of such disclosure.”

Italics mine. I say no. I have two strong beliefs that inform that choice.

1. I think it’s deplorable to ask anyone to minimize their compliance with the law. Period. Requiring that I “minimize the extent” of disclosure asks me to look at a FOI request and say “how much can I get away with hiding?” rather than honestly asking “What data will satisfy this request?” As an information professional committed to providing access to as much information as possible to as many as possible, that’s just abhorrent. As a State employee, I’m also subject to additional sunshine clauses contained in State policy, so this not only requires that I twist my legal obligations to best suit a corporation, it requires that I skirt the requirements of my employment as closely as possible — under the direction of an outside party.

2. What is there in this agreement that needs to be held so confidential? NOTHING. In my assessment, having signed many, many license agreements in the last decade, there are no terms here that are unusual, outside of the industry standard, or in any way harmful to the corporation’s interests — other than the pricing offered us. These terms and terms like them in library contracts exist only, as far as I can tell, to prevent libraries from discussing their pricing agreements amongst ourselves. They are designed to protect the vendors from collective awareness and action, and better-informed decision-making by libraries. Again, as an information professional committed to providing access to information, this is counter to my professional philosophies and goals.

And I won’t accept either of those things.

3 Responses to on confidentiality and FOI laws

  1. For the past couple of years I’ve been wondering what would happen if a group started using something like FOIA Machine, Muckrock, or Alavatelli to create an open database of prices for every library vendor’s products.

    Would any vendors stop selling to libraries that were subject to FOIA requests? Would libraries break the law or seek ways to avoid complying? Should the members of the group making the FOIA requests expect to be threatened or punished in some way? How many prices would this group have to post to its database before it became the norm for vendors to post their prices on their own websites?

    Also, apologies for not knowing this already, but are the emails that inspired this post subject to FOIA? If your readers were sufficiently interested, could they find out which vendor is pushing back? And, if they can request this information, what are they permitted to do with it once they have it?

    • Brett, there is no disclaimer on the vendor representative’s emails, but I chose not to name them because we are still working on finding common ground.

      That said, in the bigger picture, my standard answer is that I am a State employee, and as such my every action in pursuit of my job responsibilities should be considered a matter of public record. So… as I said to many folks in re the ACS mess, feel free to request that I disclose the “confidential” legally available records of my actions as a State employee — it’s your right, and my obligation.

      • This is yet another problem with opaque pricing and licensing. I could exercise my rights and you could fulfill your obligation, but then what? Your relationship with your colleague who works for this vendor will likely be strained, you’ll be less likely to write about your ongoing negotiations in the future, and I’ll feel bad.

        Perhaps I’ll remember to check back in a few months or a year, by which time you’ll have either come to a mutually acceptable resolution or reached an impasse. Knowing how things turn out, for better or worse, would likely save librarians a fair amount of time: either we’ll know what to request when we work with this vendor or we’ll know not to bother calling them in the first place (assuming we care about the same clause that you’re currently negotiating).

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