In 1996, Congress passed the Freedom of Information Act (FOIA) to promote public access of information held by the federal government. Consequently, fifty states followed the lead by passing similar statutes providing public access to information held by state governments. While FOIA statutes facilitates the dissemination of information, the use of "records" in the statutes proves to be problematic in this computer age. Part of the accessible records is the information of redistricting of the states, a federal constitutional requirement on the states every ten years. In the Brown v. Iowa Legislative Council, plaintiff sought to gain access to the legislative redistricting data prepared by a private vendor. The issue for the Iowa Supreme Court is whether the computer data, as developed by the vendor, was a trade secret, and, therefore, exempt from disclosure under Iowa's public records law. The high court held that the data and software developed by the private vendor is trade secret and thus is exempt from disclosure. This decision, if interpreted broadly, affects similar data that is prepared by computer software and thus would ultimately defeat the purpose of FOIA statutes. Hence, the author recommends that, first governments must consider the goals of freedom of sharing of information when developing and implementing new computerized information systems. Second, government agencies and courts must learn to distinguish types of computerized information. Third, government agencies could initiate implementation of programs that would allow complete disclosure of government records, while protecting the interests of private vendors. A final option, suggested by the author, is for Congress to amend, or supplement the FOIA to specifically address access to electronic information and implement uniform standard for state and local governments and agencies. It is only with such efforts that the objective of open governments envisioned by the FOIA could be achieved.
Elizabeth M. Dillon, Brown v. Iowa Legislative Council: Struggling with the Application of the Freedom of Information Act to Computerized Government Records, 13 J. Marshall J. Computer & Info. L. 123 (1994)