Fear of Information Access

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One long-term challenge for law library decision-makers is the position legal publishers take on their pricing. They incorporate confidentiality clauses in their contracts to prohibit sharing of pricing information. So, when I wrote about my decision about cancelling Bloomberg Law, I guess I shouldn’t have been surprised when their representative called to tell me to censor that post to exclude pricing information. I removed the information they requested from a chart because it wasn’t integral to my point. But now I was invested in their pricing in a way I wasn’t when I wrote that post.

People new to the law library profession may be surprised at the use of confidentiality clauses. I think it’s fair to say that it creates a chill over discussions of comparative pricing. Some people are leery of the clauses and I get that. If you sign a license, you should abide by its terms. I know that there is an alternate approach, supported by the legal publishers as well as by law librarians, to just whistle past the graveyard of unenforceable clauses. This is particularly true when legal publishers set usage caps on their products that they cannot actually measure; they don’t know what the usage is, so the caps and consequences are meaningless.

At the same time, pricing is not an obligation, it’s a fact. I am not reluctant to talk about pricing because, at the end of the day, it is not a number that exists solely within a contract. It sits in my budget. It is reported out in my library expenses and may appear in governance documents and other outputs.

Give The People What They Want

Fortunately, we have public records acts and freedom of information requests. There are more than 90 public law schools in the United States and a couple hundred public law libraries (including the judiciary, legislatures, etc.). When I worked at one of the latter in California, we received public records requests on a regular basis. They were for staffing information and procurement. The requestor was a procurement database company, reselling the data for others to use to make their own decisions: to buy, to bid, whatever. The one thing I never did myself, though, was to come at the process from the outside, as a requester.

If you have worked in a public organization, this sort of visibility isn’t new. Sunshine laws often result in databases of public employee salaries. If you are applying for a job at a public law school or library, there’s a good chance you can see the salary trends at that organization on a public website. Not always, and it would be fair to say that easy public access to information like this is very uneven, but it’s always worth a look.

Take Cook County for example. If you go to their awarded contracts page, you will find Thomson Reuters contracts for the State’s Attorney’s office ($830,105 as of 2024, although you can see previous year increases). LexisNexis contracts are out there too (and since there don’t seem to be current ones, I wonder if the State’s Attorney is single-source?).

Some municipalities will also have public procurement information. I would expect this to be primarily at large cities or in very data-forward smaller ones. The City of Chicago licenses Bloomberg Law for their law department (14 seats for $39,000, up from $18,995 in 2023 for an unknown number of seats). They’re also paying for Thomson Reuters Westlaw ($405,500 for a three-year deal). The only City contract for LexisNexis that seemed relevant was one for matter management (CounselLink? for $86,686 in 2024).

In any event, the point is that pricing is readily available. Even when the detailed contracts aren’t online, you can often find pricing if you poke around. This would not have occurred to me earlier in my career, although I would say that there was nowhere near as much procurement information publicly available back then.

Sometimes You Have To Ask

Once I got off the phone with the Bloomberg Law representative, I almost immediately wondered whether my assumption that the pricing was public was verifiable. It’s strange, because I can see the data in our procurement system. But what does a person outside the organization, or with different permissions and system access, have the ability to learn?

I decided to find out. If nothing else, it would settle for me once and for all whether talking about pricing was fair game. I started where any good law librarian would, with the Illinois state public records act. If you want an example about how not to publish primary law, this is a great one. Fixed font, no ability to jump to internal cites. Real time warp stuff.

I’d been looking at this statute anyway as part of a records management project I’m picking at. So I already had a bit of familiarity with the public records definition:

The public records act also governs requests for public records requests: are they for individual or commercial purposes, and there are a number of exceptions or things that will be redacted. In particular, I wondered if what the Bloomberg Law request suggested—that the pricing was protected by the contract’s confidentiality clause—would apply here. There is an exception for trade secrets, which is the essence of what these confidentiality clauses mean:

But you don’t know until you ask. Now that I had a sense of the law involved, I went looking for the process. The University of Illinois is a three-university system and they have a central FOIA office. The page sets out exactly what you should include in a request, so I put together an email and sent it from my personal account:

Contact Information:
David Whelan
[address]
Email: davidpwhelan@gmail.com
Phone: [phone number

I would like executed contracts by the University of Illinois on behalf of its law schools in Urbana-Champaign (UIUC) and Chicago (UIC) with legal publishers Thomson Reuters for its Westlaw products, RELX LexisNexis for its LexisNexis and Lexis products, and Bloomberg Law for the Bloomberg Law product. The contracts with LexisNexis may be identifiable with exemption numbers 1CJC2328E, JDR039, 821IDM, 1HJH1904E, JJW966, 1HJH1915E. The contracts with Bloomberg Law may be identifiable with exemption numbers 1JNA21R0400128, 407JMG. The Thomson Reuters Westlaw products may be identifiable with exemption numbers 822IDM, JDR020, 524850. In particular, I would like the page of the contract that discusses the pricing terms. I would like the contracts that cover the years 2021, 2022, 2023, 2024 and, if they exist, 2025. In the case that some of these years are covered by addenda or extensions to an original contract with updated pricing but otherwise unchanged terms, I would like a copy of those addenda with the pricing terms.

I am seeking these documents under the Illinois Freedom of Information Act as records reflecting the public expenditure of funds by these state entities.

I am seeking these documents as a private individual, not as a commercial requestor.

I understand that there is a charge for the fulfillment of this request. I am not seeking a waiver or reduction of charges.

Thank you. David.

The only knowledge that I felt might be insider information was the names of the products. I think anyone in a law library would expect those three business names and products, but I do not have enough distance to know if that’s true or not. I think that the difficulty with these sorts of requests can be that you can’t be specific enough. Would “legal publishers” have sufficed? What does that mean? And what about all of the smaller publishers that may not be easily identifiable?

The information about the potential contracts comes from the public procurement contract search. This will return contracts for other Illinois law schools (Northern and Southern Illinois) but I stayed focused on trying to get what I could from the University of Illinois system. I grabbed the relevant pointers for the contracts I thought would result in documents and sent them along.

It took longer than I expected. Again, I can see the inside of the procurement systems and so I know the vendor numbers and where the contracts are stored. I assumed it would be relatively easy to do a vendor search, limit to the purchasing unit, and dump the documents. The FOIA department asked for a couple of extensions before sending me a mostly responsive set of documents.

The one thing they omitted were a complete run of the Bloomberg Law offers for my law library, ironically. I submitted a second request to see if I could get just those documents and those came back. I’m not sure why they weren’t scooped up the first time. Again, with an insider’s perspective, those documents should really all be in the same place.

Here are the first batch of documents

University-of-Illinois-FOIA-Request-25-077-Records

and the second.

University-of-Illinois-FOIA-Request-25-221-Records

There is supposed to be a FOIA log but the website shows only 2 years and the link to their Box repository stops at 2023. So I figure these will eventually get out there. I was struck by the coincidence that this approach—retention of all requests for the benefit of all subsequent requesters—parallels the docket harvesting Bloomberg Law and vLex DocketAlarm are doing, where a docket entry pulled by one customer is then added to the retained commercial product for other subscribers.

In the end, I was able to recreate my own expenses over a few years, although I am guessing due to some conflicts caused by the documents:

The contract documents are helpful in these situations, as some of these licenses will be bundles (print and electronic). Except in the case of products like Bloomberg Law, where it is all-in-one, there is also fluctuation based on the variety of databases or selective content. So you still can’t exactly do a one-to-one comparison but it’s a starting point, especially given the paucity of usage data legal publishers provide to justify their pricing.

I was glad to see that Illinois doesn’t appear to consider publisher pricing to be protected as a “trade secret” or that they’re considered to risk “competitive harm”. I mean, it seems like common sense and yet we still remain smothered by confidentiality clauses and assertions of rights under them. But since the exceptions didn’t apply, that has cleared up on mystery for me.

An Opportunity to Share

What comes next? It seems like there is an achievable goal to start to aggregate this data. 90-odd law schools plus a couple hundred or so public law libraries would give a pretty good pricing data set for comparison purposes. If every jurisdiction treats pricing in the way the University of Illinois (and the State of Illinois) does, then it would be achievable with time and other resources.

For one thing, once you have a letter that gets responsive requests, you could just send it again in subsequent years. That is what the procurement database did with our public law library. This was very helpful to me then, because I could see my prior reports and just send them updated versions.

It seems ludicrous in a sense but I could see each public law school library or public law library (not forgetting the judiciary or legislative libraries) making an annual request. We really shouldn’t have to go through this theater to share pricing data but if it means the legal publishers don’t try to cudgel our colleagues over confidentiality clauses, it seems a professional approach. I suppose our consortia could also staff this process (since the data should help with group purchasing too) but I know that consortia may not have the bandwidth for multiple requests, and a single library making a single request once a year may be more broadly manageable.

The challenge comes when the response isn’t, well, responsive. I was surprised that I had to do a followup. I was also surprised that there were gaps in procurement or purchasing documents, in part because I can see that they exist from the backend. So that means that any FOIA or public records request may require followup or may fail despite best efforts. However, if most requests were successful, that would still be a strong data set.

In any event, when life gives you lemons, you make lemonade. I was glad to have a reason to look more closely at FOIA and at the confidentiality of legal publishing pricing. I wouldn’t have done so without someone telling me I couldn’t share information. As our budgets remain tight and economic conditions remain uncertain, the ability to share pricing knowledge seems an important professional responsibility.