Data-driven journalism uses or creates databases from culling and cleaning up government records and databases to tell important news stories, often ones serving to hold federal, state, or local governments accountable.[1]  But such journalism is costly.  Part of that expense is the cost of obtaining government records, and part is the expense entailed in making the records obtained more useful and accurate.[2]  Meanwhile, journalism is facing a financial crisis, with many news organizations disappearing and the survivors facing financial difficulties.[3] 

Into this conundrum steps Frank D. LaMonte.  LaMonte is legal counsel for CNN and previously headed the University of Florida’s Joseph L. Brechner Center for Freedom of Information.  In his recent law journal article, A “Net Metering” Approach to Energize Journalism Powered by Accessible Government Records, 60 U. RICHMOND L. REV. 639 (2026), he proposes a “net metering” approach to FOIA. Under it, news organizations could receive reimbursement for costs they incur in cleaning up records received under FOIA and putting them into usable form.[4] 

LaMonte’s proposal is inspired by the “net metering” approach for the electricity sector ushered in by the Public Utility Regulatory Powers Act of 1978 (“PURPA”), Pub. L. 95–617, 92 Stat. 3117 (codified at scattered section of 16 U.S.C.).  Under that approach, public utilities compensate operators of “distributed generation,” i.e., small power generators.  Such small power generators can include residential customers who generate power from rooftop solar arrays.  In effect, public utilities must compensate such homeowners and other customers who generate power, at a price at least equal to the utility’s “avoided cost” of obtaining power elsewhere.  For such utility customers, the electric meter could, in effect, “run backwards” – if they provide more power to the utility than they take, they receive a net payout from the utility company.

This post briefly summarizes LaMonte’s article and provides a few observations. The observation largely focus on transparency issues at federal level, namely implementation of the federal Freedom of Information Act.

The “Net Metering” Approach

LaMonte’s argument is grounded on the “foundational role of accessible government documents ‘to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.’”  Lamonte, supra, 60 U. RICHMOND L. REV. at 640, 653.[5]  But government records are useful for these purposes only if organized and maintained in usable form.[6]  This is where federal, state, and local governments often fail to fulfil their true transparency obligations to the public.  Sometimes the government fails to collect or aggregate information or data that it should collect and aggregate.  Id. at 644, 645, 650-51, 652, 678.  At other times governmental entities fail to ensure the accuracy and completeness of their records. Id. at 643-44, 649.

Journalists use FOIA to do that important work the government fails to do, namely gathering critical data on government functions, cleaning up data kept in less than pristine form, and analyzing and contextualizing data “that has sat largely unexamined and valueless in federal, state, and local repositories.”  Id. at 643-44.  When requesters obtain government records and put them in usable form, which benefits the citizenry, and sometimes even the government itself, id. at 645,[7] they are engaging in uncompensated “shadow work”that provides a public good.[8]  LaMonte calls this “shadow work” because it is work the government should perform but offloads onto others who must engage in self-help. He analogizes to retail stores using automated checkout to offload bagging purchases onto customers (a function once performed by the retailers’ employees).  LaMonte argues that such “shadow work” merits compensation.

In addition, government entities often, in effect, “paywall” public records by charging large fees for access to their records.  Large fees can be tantamount to denying access entirely to all but those with the deepest pockets.  Id. at 654.  He notes that this is particularly a problem on the state and local levels and that the costs charged for producing public records often deter news organizations from pursuing stories of public value. Id. at 657.  Moreover, news organizations must often also incur substantial legal fees in overcoming wrongful agency denials of access to documents. Id. at 658-59.

LaMonte proposes that only news media entities qualify for his proposed “net metering” program,[9] and that the program should perhaps be limited even further to cover only non-profit media entities.  Id. at 670-75.    He argues that commercial requesters are distinguishable from non-commercial ones, and notes that FOIA already recognizes that distinction in its fee provisions.  Id. at 669-70.  He also distinguishes the media from other non-commercial requesters, such as educational institutions (including academic researchers), noncommercial scientific institutions, and public interest groups.  Id. at 671-72.[10] Journalism is distinctive, he argues, because media entities are “facing uniquely acute financial challenges” and their loss “inflicts uniquely acute civic harm on the communities they serve.”  Id. at 671.

Narrowing the scope of such an approach to media entities would also minimize such programs’ financial cost, given that news media requests make up such a small part of FOIA requests.  Id. at 671-72.  LaMonte does not seem to factor in the likelihood that making FOIA requests a reliable stream of revenue for media entities might significantly increase the number and percentage of FOIA requests that come from journalistic entities.

 Alternatively, LaMonte suggests, eligibility for the program could be limited further to news organizations set up as non-profits, a form that start-up news organizations are increasingly using to replace the institutional media’s traditional advertising-subscription model.  Id. at 672-73.  This will supposedly make the proposal easier to defend against skeptics who might question paying profit-motivated media owners who refuse to sufficiently invest in their media properties.  Id. at 674.

LaMonte would peg the level of compensation for media entities under the “net metering” program to the rate the government agency charges for fulfilling FOIA requests.  He explains: “compensating news organizations for the time journalists spend making government data intelligible—at the same hourly rate that the government itself would charge for producing public records—. . . incentivize[s] [agencies] to invest in making data easy to understand and use.”  Id. at 675-76.  In exchange for receiving such net metering treatment, “news organizations should be required to post the records they obtain by way of a ‘net metering’ subsidy online, without charge, for public viewing.”  Id. at 676-77.

Observations

LaMonte’s proposal is intriguing. It provides an alternative to simply subsidizing traditional news organizations to make up for their eroding financial base.[11]  I offer three comments.  First, LaMonte’s program prohibits the government from deciding which organizing, maintaining, and aggregation of its records are worth the cost.  Second, it may deprive the government of funds it can use to more expeditiously respond to FOIA requests and pursue other efforts to provide more, and more usable, information to the public.  Third, the proposal arbitrarily limits participation in the program of entities that do very similar “shadow work” in organizing, maintaining, and aggregating government records to inform the general public. 

Should Government Control Which “Shadow Work” It Funds?

In a sense almost any additional information about the government and its functioning has value.  However, obtaining, organizing, maintaining, and aggregating information comes at a cost.  It costs the agency resources that could be put toward the agency’s primary mission. Often agencies’ funding is inadequate to fully accomplish their primary missions, whether it be regulatory, investigative, or service-related (including provision of financial benefits).  Given such competing financial needs, there may be some information or some aggregation or cleaning up of information that is not worth the cost.  Indeed, often an agency’s decision to forego obtaining data or creating certain databases reflects its evaluation of such trade-offs.[12]  LaMonte’s proposal deprives the government of any role in deciding for itself when additional data collection, maintenance, aggregation, and cleaning up is worth the cost.  Should the government should pay for “shadow work” it does not consider to be worth the price? 

In this respect LaMonte’s proposal turns FOIA’s basic premise on its head.  As LaMonte himself notes, FOIA does not obligate the government to create documents.[13]  Kissinger v. Reps. Comm. for Freedom of the Press, 445 U.S. 136, 151–52 (1980); see, e.g., Center for Investigative Reporting v. Department of Justice, 14 F.4th 916, 937 (9th Cir. 2021)(citing cases).[14]  (Granted, LaMonte considers this a “bug” rather than a “feature” of FOIA.  Lamonte, supra, 60 U. RICHMOND L. REV. at 644.)  Requiring agencies to pay newspapers to create documents with no control over whether those documents are worth the agency’s (or the public’s) while would undercut that FOIA principle.

In short, governments should be entitled to decide which work in collecting, aggregating, and cleaning of up records is worth the cost, and should be compensated, and which is not.  But permitting the government to do so introduces its own set of problems. 

First, permitting the government to exercise such discretion makes net metering an unreliable revenue source for media entities.  At the very least, introducing such a procedure would delay provision of compensation.  But worse still, the existence of such discretionary power would make obtaining compensation for work already performed far less predictable.  (And having government make such decision before journalists engage in such work would magnify the problem, particularly with regard to the Free Speech Clause concerns raised below.[15]) 

Second, and perhaps more importantly, permitting an agency or even a judge[16] to make decisions as to the value of journalists’ work and whether it should be compensated introduces the risk of political and other biases creeping into net metering decisions.  Indeed, because the shadow work journalists perform could not fairly be characterized as “government speech,” even if the government funded it, doctrinal rules severely limiting viewpoint-based and content-based actions by government entities will almost certainly make such a discretionary process violative of the Free Speech Clause.[17] 

Diversion of Funds From Governments’ Own Transparency Efforts

LaMonte’s proposed net metering approach would likely divert funds from agencies’ chronically underfunded transparency efforts, including production of records sought under FOIA.  First consider the federal government’s own reactive disclosure efforts, i.e., provision of records in response to FOIA requests. 

That function is already chronically understaffed, causing harm to all FOIA requesters in terms of agency’s atrocious delays in responding to FOIA requests, among other things.[18] As the Office og Government Information Service’s FOIA Advisory Committee has observed: “The single most consistent challenge agencies encounter when attempting to properly implement FOIA derives from limited resources.”[19] The Advisory Committee recently adopted a recommendation that Congress “require federal agencies to fund their FOIA function at a level sufficient to enable them to fulfill their FOIA requests timely,” with the baseline funding figure being based on five-year average of the percentage of the agency’s total workforce assigned to its FOIA Office.  (That figure would be adjusted to take other factors into account.)  Recommendation No. 2026-03: Recommendation for Funding Federal FOIA Offices, accessible here.[20]

Moreover, those slowly fulfilled FOIA requests can serve interests other than providing a basis for news stories that inform the public.  Sometimes FOIA requests are necessary for individuals to secure benefits or relief due them from the federal government.[21]  One notable example is access to A-files for those in immigration proceedings.  Such files are essential to assessing the basis for and then pursuing immigration claims.  But A-files may be produced only after long delays.  Id. at n.4.[22]  Compensating journalists for the “shadow work” of transparency focused on large-scale data analysis, might well take away resources from this competing function of FOIA, helping individuals obtain information they need to pursue rights and entitlements.  Indeed, it might take away from efforts to proactively provide such documents to individuals without their having to rely upon FOIA requests.[23]  

It might be more helpful to increase funding for governments themselves to put records in usable form or develop and adopt more automated processes for producing records and databases.  (Indeed, LaMonte himself recognizes this potential and advocates its expansion.  Id. at 678-80.)  Net metering can also divert funds from efforts to increase affirmative disclosure initiatives, often needed by individuals seeking to secure relief from governmental entities.[24]  Some affirmative disclosure obligations are “necessary to enabling the public readily to gain access to the information necessary to deal effectively and upon equal footing with the Federal agencies.”[25]   They may also help regulated entities comply with the law. Improving Affirmative Disclosure of Agency Legal Materials, supra note 24, at 355-56.

Compensation to media entities will reduce the funds agencies can commit to engaging in such efforts.  Granted, theoretically instituting net metering may incentivize agencies to spend more resources maintaining records in usable form, as LaMonte suggests.  But, as shown above, LaMonte does not fully explore all the potential impacts net metering could have on the government’s own transparency efforts.

Unlike the energy generation context governed by PURPA, where “distributed generation” of power is viewed as a good in and of itself, in the government records context, creation and maintenance of important government records and databases by a network of smaller entities is not a good in and of itself – indeed LaMonte believes it is federal, state and local government’s true obligation to perform such work.

Limits on Participation in Net Metering

The limits on qualification for the program seem largely distinct from the theory underlying the net metering program.  A variety of non-commercial academic, interest groups, and other scientific researchers surely produce just as valuable shadow work as that performed by media entities.  Syracuse University’s Transactional Records Access Clearinghouse is just one example.  LaMonte offers little reason to categorically exclude non-commercial academic and scientific researchers from participation.

The charge that “the public understandably would feel discomfort in subsidizing” non-profit FOIA requester’s “ideologically polarizing advocacy work” seems flimsy.  LaMonte provides no support for the statement that non-profit organizations’ FOIA requests and data analysis are themselves ideologically polarizing, nor that groups regularly engaging in such efforts are ideologically polarizing.  To which non-profit FOIA requesters is he referring?  In my review of cases over the past fifteen-plus years, most FOIA requests and litigation by non-profit groups do not seem particularly ideologically polarizing – indeed advocacy of transparency seems to cross ideological lines.[26]  And, of course, the news media itself is constantly a target of claims regarding ideological bias.[27]

LaMonte’s backup position, tying participation to the news media entity’s corporate form also appears to have little relationship to the goal of fairly supporting the “shadow work” the government implicitly pawns off on private entities.  Rather, LaMonte seems to assume that offering net-metering to non-profit media entities will be more politically palatable than offering such an opportunity to traditional news outlets as well.  LaMonte suggests that the public might view traditional news outlets as “news operations whose profit-motivated owners refuse to invest themselves—particularly . . . news outlets owned by hedge funds notorious for siphoning value out of their assets without concern for the community’s needs.”[28] 

LaMonte’s political instincts may be on target.  But a significant amount of the data driven journalism he praises comes from traditional newspapers.[29]  Following the rationale for a net metering approach that LaMonte lays out in his article, why should such work be categorically excluded because of the media entity’s chosen corporate form?

In the end, the largely politically expedient qualifications on participation that LaMonte suggests seem arbitrary.  As a result, they will no doubt ultimately prove unstable and likely lead to the program’s expansion, or its elimination. 

Conclusion

LaMonte’s article lays out the contribution made by data-driven journalism in detail, as well as the contribution it makes to informing the public, holding the government accountable, and sometimes spurring the government to address its own errors or omissions.  And the characterization of such work as a form of privatization, namely as the “shadow work” of government, is an effective conception of the public benefit data-driven journalism supplies.  That conception allows the provision of needed revenue to support media entities pursuing data-driven journalism to be viewed as more than a subsidy for a “failing” industry.  Rather net metering is paying for work that the government has improperly offloaded on media entities.  But the proposal does raise questions about the narrowness of which entities can participate in the program as well as about drawing resources away from government entities’ primary missions as well as from their transparency efforts.

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[1] Frank D. LaMonte, A “Net Metering” Approach to Energize Journalism Powered By Accessible Government Records, 60 U. Richmond L. Rev. 639, 647-48 (2026).  Though the concept was popularized in a 2010, id. at 647, an earlier Pulitzer Prize winning New York Times series regarding federal regulators’ incomplete records of railroad grade crossing accidents illustrates the technique.  Walt Bogdanich, In Deaths at Rail Crossings, Missing Evidence and Silence, N.Y. TIMES (July 11, 2004); Walt Bogdanich, A Crossing Crash Unreported and a Family Broken by Grief, N.Y. TIMES (July 12, 2004).  For those two stories and the follow up stories cited in the Pulitzer Prize award, see here.

[2] LaMonte, supra note 1, at 649, 650.

[3] Id., at 647, 664-66.  In part this is attributable to the populace migrating to other sources of “news.”  Neiman Lab, For the First Time, Social Media Overtakes TV As Americans’ Top News Source (June 16, 2025).   As one commentator has observed:  in the new world order, media, what people consume, and “reporting,” a set of standards for pursuing fact-based information, “are tossed together with a mix of truth, opinion, and nonsense.”  Jim Vanderhei & Mike Allen, Behind the Curtain: Media vs. Reporting, AXIOS (Dec. 20, 2024).

[4] Thank you to the FOIA Advisor for its blog entry highlighting the article, accessible here.

[5] See generally, Potter Stewart, Or of the Press, 26 HASTINGS L.J. 631 (1975)(discussing the institutional importance of “freedom of the press”); Vince Blasi, The Checking Value in First Amendment Theory, 3 A.B.A. FOUND. RES. J. 521 (1977)(discussing the role of the press as an institutional watchdog that alerts the public of matters that require attention and action).

[6] While LaMonte may not say this in haec verba, it is implicit in what he says.  See, id., at 650-51 (criticizing government agencies for “choosing to refrain from collecting data or maintaining it in an obscure manner inaccessible to the average citizen”), id, at 652 (criticizing the “larger systemic issue with the maintenance and production of government records,” namely that “there is little incentive for government agencies to maintain publicly accessible databases that enable the citizenry to keep watch over government affairs”); id. at 642, 644 (noting that data often sits “largely unexamined and valueless in federal, state, and local repositories” (emphasis added)).

[7] LaMonte reports that “the FBI acknowledged to over 100 politicians and top law enforcement officials that data about police shootings compiled by two newspapers was more reliable than [its] own data.”  Id. at 645.

[8] Public goods are goods and services “characterized by their non-rivalrous and non-excludable nature, meaning they can be consumed by many without depleting availability and are accessible to all citizens.”  Jason Fernando, Public Goods Explained: Definition, Examples, and How They Work, INVESTOPEDIA (updated April 11, 2026).  The conventional conception is that public goods cannot adequately be supplied by the private market and thus must be funded by the government.

[9] LaMonte avoids the question of defining “the press” by relying on definitions of the news media in the FOIA context.  But conceptually defining “the press” for purposes of the press’ institutional role in holding the government accountable can be difficult to define.  See, First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 801-02 (1978); Branzburg v. Hayes, 408 U. S. 665, 408 U. S. 704-706 (1972), Lovell v. Griffin, 303 U. S. 450, 303 U. S. 452.

[10] Those entities receive equivalent treatment under FOIA in terms of the statutorily-mandated fee structure.  5 U.S.C. § 552(a)(4)(A)(ii)(“fees shall be limited to reasonable standard charges for document duplication when records are not sought for commercial use and the request is made by an educational or noncommercial scientific institution, whose purpose is scholarly or scientific research; or a representative of the news media); 5 U.S.C. § 552(a)(4)(A)(iii)(“Documents shall be furnished without any charge or at a charge reduced below the fees established under clause (ii) if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester”)..

[11] Note, on the state and local levels some of that erosion, at least for newspapers, may be attributable to the trend of state and local governments publishing official notices on their own websites rather than bearing the expense of publishing such notices in newspapers.  Public Notice Resource Center, Models for the Future of Public Notice? (Nov. 5, 2024); Roberta Kwok, Removing Government Notices from Newspapers Reduces Citizen Participation in Decision-Making, YALE INSIGHTS (March 17, 2026); Public Notice Resource Center, Public Notice Threats Seem to be Growing, March 2026 Monthly Newsletter; Carmody Torrance Sandak & Hennessey LLP, Newspaper Legal Notices May Soon Be Deleted (April 13, 2026).

[12] Granted, agencies are surely not objective in deciding which information or data collection is worthwhile, particularly when the information or data might reflect poorly on the agency or cause it to come under legislative, or public, scrutiny.

[13] Interestingly, Minnesota’s public records statute provides that not only shall individuals “be permitted to inspect and copy public government data,” but also that “upon request, [they] shall be informed of the data’s meaning.”  Minn. Stat. Ann. §13.03(3)(a). 

[14] And such decisions are not left entirely up to agencies.  Congress can, and presumably does, require agencies to create some records.

[15] This would be somewhat akin to establishing a system of prior restraints upon media participants in the program.  Granted the prohibition against prior restraints is generally applied when the government is using its coercive powers, not when it is making funding decisions.

[16] Judges can be expected to be less biased than agencies in terms of evaluating the value of journalists’ efforts when those efforts serve to embarrass the agency or subject it to greater scrutiny.

[17] See, e.g., Rosenberger v. Rector & Visitors of the Univ. of Virgina, 515 U.S. 819, 833 (1995). 

[18] Recommendation No. 2026-03: Recommendation for Funding FOIA Offices at 3, accessible through Kimberlee N Ried, FOIA Advisory Committee Votes to Approve Two Recommendations, THE FOIA OMBUDS (May 8, 2026)(“many federal FOIA offices face challenges stemming from . . . inadequate funding, leading to delays in providing requested records, inefficiencies in processing requests due to outdated technology tools, and costly litigation”).

[19] FOIA Funding Working Group of the Legislative Subcommittee of the FOIA Advisory Committee’s 2018-2020 Term, Recommendation 20.

[20] The proposal was discussed at the Advisory Committee’s March 5, 2026 meeting.  Minutes, Federal Advisory Committee Meeting. Frank LaMonte currently sits on the Federal Advisory Committee [see here]. 

[21] As I observed in a post on this blog, “[a]ccess to government records is important for the general public in terms of governmental accountability and democratic governance, but may also be critical to assertion of a valid claim or defense in administrative proceedings or in assessing a potential legal challenge on behalf of an individual.”  Bernard W. Bell, FOIA and “First Party” Disclosure Requests:  Washington Lawyers’ Committee for Civil Rights and Urban Affairs v. DOJ, YALE J. ON REG.: NOTICE & COMMENT (August 4, 2025).

[22] Margaret Kwoka extensively discusses first-party requests in a wide variety of contexts in MARGARET B. KWOKA, SAVING THE FREEDOM OF INFORMATION ACT 93-104 (Cambridge Univ. Press 2021)(discussing first-party use of FOIA).  Individuals may need for information to pursue their rights beyond that in their own files.  Bernard W. Bell, Entitlement to Public Records: Beyond Citizenship, 2015 INTERNATIONAL JOURNAL ON OPEN GOVERNMENT 311, 320 (“first-party access is insufficient for “a person” to fully assess the relative fairness of his treatment”).

[23] Attorney General Merrick Garland, in his March 15, 2022 Memorandum to Agencies Regarding Freedom of Information Act Guidelines, urged agencies to remove constraints on obtaining information by engaging in more proactive disclosure, including by proactive provision of first-party records,

[24] For an ACUS Recommendation Regarding the Federal Government’s affirmative disclosure obligations, see ACUS Rec. No. 2023-1: Proactive Disclosure of Agency Legal Materials, accessible here. The Consultants’ Report, as revised, is published in the Michigan Journal of Environmental & Administrative Law.  Bernard W. Bell, Cary Coglianese, Michael Herz, Margaret Kwoka & Orly Lobel, Improving the Affirmative Disclosure of Agency Legal Materials, 13 MICH. J. OF ENV’T & ADMIN. LAW 342 (2024).

[25] S. Rep. No. 88-1219;  Attorney General’s Memorandum on the Public Information Section of the Administrative Procedure Act, Off. of Info Pol’y, U.S. Dep’t of Just. (July 4, 1967)(explanation of subsection (a) – Publication in the Federal Register),  .

[26] Granted the joint interest in transparency could be explained by each ideological side’s interest in pursuing a polarizing partisan agenda.

[27] District Judge McFadden has recently expressed alarm regarding the volume and expansiveness of non-profit organization’s FOIA requests, but his complaints are far different from LaMonte’s.  See, Bernard W. Bell, Are Non-Profit Organizations’ Records Requests Ruining FOIA?, YALE J. ON REG.: NOTICE & COMMENT (June 19, 2022).

[28] For this proposition the author cites a 1981 law journal article.

[29] LaMonte, supra note 1, at 645, 648-49 (praising data driven journalism by the Washington Post, the Miami Herald, the Atlanta Journal-Constitution, the Dallas Morning News, and the San Francisco Chronicle).