[odf-discuss] Re: OOXML stuff on /.

[marbux]

On Jan 15, 2008 10:15 PM, <robert_weir at us.ibm.com> wrote:

> x--snip--xIt may be noted that the POCOSA agreement allows the member
> bodies to sell TC/SC working documents to those outside the system."
>
> It is that last sentence that grabs you.  ISO cannot let anyone outside of
> ISO to download working documents for free,  but it does explicitly allow
> NB's to sell this same information!   That makes it clear that this is not
> about confidentiality. It is all about the almighty dollar.
>
> I don't discount that as a contributing factor; the funding model for
standards organizations, particularly those facilitating inter-government
activities like ISO, need a hard look.

But assuming a court would hold that ANSI-INCITS were acting under
government delegated authority and the FOIA therefore applies, the FOIA
provisions governing fees for providing copies would apply. I.e., an agency
may not charge more than its actual expense in retrieval and copying of
documents, and agencies must waive all fees if to do so would be in the
public interest. There's a fairly high judicial gloss on the fee waiver
issue and a relatively recent clarifying amendment..

Back to ISO, JTC 1 made the DIS-29500 NB comments on the last ballot
available to the public for downloading, until they disappeared. That
certainly set up an expectation at least in my mind that the Ecma responses
would likewise be made public.

My experience is that "secrecy" is a great public issue to work with when
the public has a dog in the fight. The very word reeks of suspect behavior.
And it's not like there's a national security issue involved with developing
an "open" standard.

Electronic Frontier Foundation does a lot with secrecy issues, including
pursuit of litigation under the Freedom of Information Act. EFF's Cory
Doctorow knows the Free Trade Agreement scene fairly well and has himself
many times exploited the secrecy issue. E.g., Google for < "cory doctorow"
secrecy >. He's also written a few times on the OOXML issue and might be
interested in pushing this issue.

I've looked all over Creation and never found any Congressional
authorization for NIST to delegate the national government responsibility
for participating in international standard development created by the
Agreement on Technical Barriers to Trade to a private industry consortia
like ANSI/INCITS.
Abdication of agency responsibility is a staple of the Administrative
Procedures Act. One seminal case is Calvert Cliffs' Coordinating Committee
v. United States Atomic Energy Commission, 449 F.2d 1109 at 1111-12, (D.C.
Cir. 1971) (agency unlawfully abdicated informal rule making responsibility
to other state and federal agencies). Delegating federal rulemaking to a
private industry consortium is way beyond what generally gets by the federal
courts under Administrative Procedures Act review. (Under the APA,
*everything* federal agencies do is either rulemaking (formal or informal)
or adjudication. Arriving at a national decision on a ballot position
pursuant to a treaty would definitely be rulemaking. And rulemaking requires
giving the public notice and an opportunity to make informed comments absent
compelling exceptions like national security.)

I think there's a pretty strong argument that NIST waived any right to
withhold the comments by appointing an industry consortium to act on behalf
of the government in receiving and processing the DIS 29500 comments.
Agencies can't pick and choose who they disclose government documents to.
Disclose them to the wrong guy and there's a waiver, an act inconsistent
with later assertion of a right. Waivers trump exemptions under the FOIA.
Dislose it to one non-governmental guy unless privileged to receive it, e.g.,
a contractor acting under a secrecy agreement, and you have to disclose it
to anyone who requests it, regardless of whether an exemption would apply.

There's also some supporting case law on government records in the
possession of contractors rather in the possession of the contracting
agency. IIRC, it boils down to the issue of whether the records are
governmental in nature. With the TBT agreement saying it's a government
responsibility plus the non-abdication case law, I think there's a strong
argument that the DIS 29500 comments are properly government records subject
to FOIA.

It would be a fun and inexpensive case to litigate. No material facts that
could be disputed; purely issues of law for the court to decide.
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