Improving Contract Negotiations for Library Collections through Open Records Requests

John Eye*

Open records requests can be an important tool in obtaining valuable information to use in negotiations with content providers. This paper examines the opportunities libraries have in requesting public information through open records requests to better support their purchasing decisions. The case is made for investing time up front to better understand contract terms and pricing already secured by public entities, using that knowledge to improve their position in the negotiating process.

Introduction

For a long time, publicly funded libraries have been negotiating contracts with publishers and aggregators, trying to acquire the best possible deals. But with the proliferation of electronic resources over the last few decades, these agreements are more important in maximizing how far collection budgets can stretch. They outline the terms for each party, including price, access, and other various expectations including beginning and ending service dates. Maximizing the outcome of these provisions is crucial in providing access to information within the financial realities of today; likewise, ignoring the significance of the negotiation process leaves open the likelihood that the terms of these deals will not be as favorable as they could be. Taking a proactive, assertive approach to contract negotiations will likely improve the chances that library spending will yield the highest possible value to users.

It is well established and goes without saying that libraries should take measures to increase the benefit negotiated contract terms will bring. But very little has been written specifically about how open records requests can be used to improve the leverage state-funded libraries have in the negotiating process, especially when so many agreements include confidentiality clauses, limiting the public disclosure of terms. This paper will explore the process of how libraries can use open records requests to shine a light on other libraries’ contract agreements and use that information to better determine how to proceed through negotiations more strategically.

Literature Review

Transparency and Open Records

The Freedom of Information Act (FOIA) of 1966 was the continuation of previous federal efforts to improve government transparency and a transformation of how information was made available to the public.1 Under FOIA, individual citizens can request and receive public records regardless of use, based on the nature of the record.2 Exceptions were built into the law and subsequent revisions have added further restrictions,3 but essentially the statute authorizes extensive access to the public for information gathering and discovery of federal public records. At the state level, influenced significantly by FOIA after its enactment,4 laws have emerged that mandate similar disclosures to hold state agencies accountable and reinforce public confidence in the judgments and decisions of state employees.5 Under these statutes public records requests can be submitted to receive copies of vendor contracts to better understand what other libraries are paying for access to specific resources.

The use of open records to gather information on library contracts for negotiating purposes is nearly absent from the literature,6 but there are accounts of using open records to better understand pricing.7 Taylor and McMenemy have used open records to collect data on censorship issues in libraries,8 and Oltmann et al. studied how record requests from two states yielded varied results due to differing state laws.9 Moore and Duggan addressed the lack of transparency between librarians and content providers and how it can “undermine the relationships both entities have been cultivating throughout the years.”10 They also note that “it is not unheard of for a publisher to use the Freedom of Information Act to obtain information about their customers, including to whom their money is going and how much, in an effort to gain an information advantage within the marketplace.”11 Dygert and Barrett write that “it would be helpful to know what kinds of deals other institutions or consortia are getting from the publisher. However, getting specific information may be difficult due to confidentiality clauses in license agreements. Some information can nevertheless be gleaned from sources such as public records requests for public institutions and literature reviews.”12

Professional organizations representing library interests have also weighed in on the importance of accessing contractual information. In 2021, The Association of Research Libraries (ARL) issued a press release calling for greater transparency among libraries. In part the statement reads, “transparency and sharing of prices and contract terms must be a core operating principle in order to realize our objectives.”13 It reaffirms a previous position established in 2009 that encouraged libraries to resist signing nondisclosure agreements with publishers that keep pricing details from being available to other libraries.14 The primary objective is to improve transparency so library negotiators can make better decisions about pricing and other contract terms and, in doing so, will likely advance the institution’s efforts toward accountability for how public funding is spent.15

Publishers, on the other hand, often see it differently. They argue that the disclosure of pricing can be detrimental to the customer’s ability to receive customized offers or can interfere with their ability to negotiate effectively with other publishers. Some publisher representatives have claimed that small, poorly funded libraries could lose out if a deeply discounted agreement was publicly disclosed, that is, publishers would be more wary of making individual concessions in these circumstances for fear that other libraries would demand equivalent pricing. As shown in appendix A, publishers may argue simply that a release of pricing information would create competitive harm and negatively affect their business interests.

In addition to the ARL, the Scholarly Publishing and Academic Resources Coalition (SPARC) is another organization advocating for libraries to share information that helps in their negotiations with publishers. Not limited to pricing, SPARC offers resources that include data, statistics, and instructions to help libraries make better decisions and develop more sustainable ways to provide access to content.16 Libraries are encouraged to participate in this effort by sharing the prices and terms of their contracts.

The Art of Negotiating

Negotiation is part of everyone’s life.17 For librarians, however, it is “one of the most important skills” they can have.18 But effective negotiations usually do not emerge without careful planning and intentional execution. Sound negotiating principles can be learned and folded into one’s professional toolbox to build a skillset poised to advance the goals and interests of their library. Although most library schools do not include training in negotiations as part of their degree programs,19 “there is no shortage” of resources on the fundamentals of how to effectively bargain with a content provider.20 Many professional organizations provide workshops on how to negotiate effectively for library products. This is especially important since “vendors spend huge amounts on training and educating their sales staffs on negotiating skills.”21

There is much written on the best techniques and strategies to negotiate effectively.22 For libraries, it is often a matter of working toward a deal that best represents the needs of its users while staying within a limited budget. The goal is usually to find agreement between the two parties where the price and terms are acceptable.23 Bazerman and Neale, however, make the point that sometimes not making an agreement is the best course of action.24 Negotiators should not be hesitant to walk away when the terms do not satisfy their needs.25 If library authorities do not invest adequate time and effort into careful consideration of all the options available, they may be paying too much or missing out on a better option, effectively squandering financial resources.

Method

The purpose of this analysis is to call attention to the prospect of using open records to improve negotiations with content providers. By connecting the process of open records requests to the collection development efforts of libraries, a framework can be developed to gather public information and use it to advance the purchasing power of the library. The focus of this paper is to take the reader through the process of an open records request and examine potential benefits and pitfalls. Examples will provide context for further development of this model.

The first step in preparing to negotiate is to determine the problem to be solved.26 If the problem cannot be clearly defined, then the outcome will largely be left to chance. Library negotiators should have a clear understanding of what a satisfactory deal looks like and how it can be articulated. Is the goal to renew an existing subscription database at a lower price? Is more content needed? Is there an opportunity to cut costs by investing in a less expensive product? It will be necessary to look at the requirements of the library to establish what are “must haves.” Of course, vendors will likely recommend many options, but it should be library representatives who ultimately decide how best to serve its users. Determining the needs of the library is a key part of establishing a favorable position to begin negotiations.

In addition to defining the problem, there are other considerations before negotiations begin. What other competing products are available? How important is the product to existing collection development goals? Are there similar libraries that find the product valuable? Is the timing right to purchase the product? Is the vendor motivated to strike a reasonable deal? These are just some of the questions libraries need to contemplate when entering negotiations. The answers will help shape how the best arguments can be applied to support the strongest position.

Requesting Open Records to Improve Negotiations

Some of the most valuable pieces of information are the contract details from state-funded libraries that have already entered into agreements for products under consideration. But there are often limitations on what can be shared about these arrangements because of terms that prohibit or limit disclosure. More and more, libraries are negotiating these confidentiality clauses out of their agreements and making the terms available online.27 But it is also possible to acquire copies of contracts from many public institutions through open records requests, despite confidentiality clauses. All states have sunshine laws that compel government institutions to disclose certain public documents on request.28 Contracts that publicly funded libraries have with vendors are often public documents and can frequently be obtained through an open record request, usually submitted to the institution’s legal affairs office. Taking the time to ask for this information can help increase leverage and justify arguments for more favorable prices and terms.

The rules for making an open records request vary by state and local guidelines.29 Policies are normally in place to provide a process that complies with state law, fitting the structure and nature of the institution. It is usually necessary to provide contact information and a specific description of the information or record when submitting a request. Some jurisdictions may require a reason for the request, and most agencies have websites directing the user to the person responsible for handling the inquiry. If not, the chief administrator and the institution’s legal authority are likely prospects for getting the request to the right person. Appendix B shows an example request form including the information needed to fulfill the request.30 Other institutions are less specific, directing the patron to submit a signed request either in person or via electronic mail. Of particular importance, however, is that some states have mandates requiring requests to receive responses within a defined period, often 5 to 10 days. A response, however, does not necessarily mean a release of documents. Sometimes an institution will notify the requester that more time is needed to collect the information desired, and the law usually allows a reasonable amount of time for the full disclosure of the requested documents.

When public information is requested through an open records request, the government entity can comply completely, provide a redacted response including some or all the related documents, deny the request, or ignore it.31 A decision to provide redacted documents, deny, or ignore the request can be appealed as prescribed in the law. If the open records request involves outside entities, some states, like Texas, invite the submission of arguments to challenge the release of the records (see appendix C), especially if they relate to documents that may include proprietary information. If there is no response, or at least no compelling legal objection, the government entity generally moves forward with the decision, possibly releasing the information. If a challenge is submitted, the government entity weighs the arguments within the context of the law and decides. Sometimes these findings occur at the state attorney general’s level of authority. Appendixes A, C, and D show supporting documents for an open records request involving Proquest and Ebsco pricing from the University of Texas System. The correspondence reveals the University working with the office of the attorney general of Texas to solicit responses from Proquest and Ebsco associated with the request. Appendix E indicates a ruling from the attorney general giving the University guidance on how to proceed.

Difficulties in Obtaining Open Records

An example of a dispute over access to contracts for library materials involved a professor doing research on publisher pricing. Dr. Theodore Bergstrom, an economist from the University of California, Santa Barbara, led a study using state open records laws to access copies of contracts containing rates for bundled subscriptions of scholarly publications.32 The supporting court documents show the resistance publishers employed to avoid disclosing prices negotiated with their customers at public universities.33 The publishers claimed their pricing mechanisms and structures should be considered trade secrets and therefore confidential. In a letter from the legal representative of Elsevier B. V. (Elsevier) to Dr. Bergstrom involving a request for records from Washington State University in 2009, the reasons for nondisclosure are spelled out:

Elsevier does not object to disclosure to you of the whole of the Washington State contract documents. Elsevier is concerned rather with the potential disclosure to competitors of the specific negotiated pricing terms in the contract, which is confidential commercial information entitled to legal protection. We hope you appreciate that the disclosure of such specific customer pricing terms is sensitive and subject to potentially harmful use by competitors seeking an unfair advantage in negotiations with a customer. In addition, disclosure of pricing terms can in fact inhibit the parties’ ability to develop flexible, tailored solutions suitable for a particular customer’s needs and may be detrimental to the customer’s negotiations with other publishers.34

In this case, Elsevier was not successful in forcing Washington State University to redact pricing information from public records. But in a records request by the author for prices of online databases purchased by a Utah state entity, the invoice was received but everything was redacted except for contact information and column headings (see appendix F). Directions were provided for an appeal.

Receiving public records hinges on whether the request falls within state law and institutional policy. Each state has its own version of statutory framework;35 some are more transparent than others. For example, Alabama, Arkansas, Delaware, Missouri, New Hampshire, New Jersey, Tennessee, and Virginia have laws that limit public records access to residents only.36 This restriction was challenged in Virginia and upheld by the United States Supreme Court in McBurney vs. Young.37 The Court reasoned, in part, that non-residents were not substantially burdened by this provision, since much of the information is online. But perhaps more significantly, the Court established that access to public information is not a constitutional right.38 Therefore, it seems likely that states may continue to develop more protective statutory and administrative structures that make access to public records challenging.

Some institutions purchase materials using funding sources outside state allocations such as gifts, endowments, or private grants. Depending on state laws and policies, these expenditures may fall beyond the scope of the state open records statutes. For example, a request by the author for an invoice from a Delaware public institution was refused because the resource was not purchased with public funds.39

Another barrier to tracking down pricing through open records requests is that sometimes it is difficult to identify the actual fiscal agent of a resource. If a library lists a database or journal package on its website, it may be provided through a consortia agreement or another entity in the system; tracking down where the actual invoice resides can be challenging. In those cases, however, administrative staff are often helpful in identifying the appropriate source.

Fees charged to locate and process open records can also serve as a deterrent for people to access public information. Most state laws include provisions to allow government entities to financially recover at least part of the time, effort, and materials needed to respond to a request. But often the charges only kick in when the request goes beyond a few basic documents. There have been occasions, however, where government entities have used fees in ways that appear to discourage access.40

Discussion

The Value of Open Records to Improve Negotiations

It should not be a surprise that collecting information about all aspects of a transaction will improve the chances of a successful negotiation. Finding information to solve problems is solidly in the wheelhouse of most librarians. Collecting, synthesizing, analyzing, and understanding this information is important to building confidence and establishing leverage to support contractual objectives. Carter writes that “Expert negotiators know that their greatest source of strength in negotiation is not bluster but knowledge.”41 Learning as much as possible about the things that influence a deal will help clarify what aspects of the negotiation can be emphasized and which should be avoided. In other words, information that shines a light on the factors involved in a negotiation can create additional leverage to strengthen the bargaining position. The better the bargaining position the more likely a satisfactory outcome will be reached.

The author has used open records requests for several years to concentrate on larger, six figure agreements where the savings add up dramatically, especially for multiyear deals. The process is normally very simple, and with the proliferation of confidentiality clauses the information is not easily obtained any other way.42 By making several open records requests to similar institutions, it has been possible to use that information to push back on vendors for better pricing and terms. One example is where a vendor was holding firm on a significant price increase for a product that would have been difficult to do without. Using the pricing obtained through open records requests, and being completely honest about how the information was obtained, a case was made to make the cost more comparable to other libraries similar in size and scope. After more deliberation, the license was adjusted several thousand dollars lower on a multiyear contract.

Conclusion and Recommendations

By recognizing the value and practical application of acquiring public records from other libraries to inform procurement decisions, public institutions can be a source of information that help establish stronger negotiating positions with publishers and other content providers. By knowing more about the agreements other libraries have made, better decisions can be developed to support strategies that are more cost effective and financially sustainable. As key players in teaching users how to find relevant information, library personnel should take a page from their own playbook and reach out to their counterparts, either by virtue of contracts without confidentiality clauses or through open records requests, and secure contract information that will benefit their own collection development efforts.

Appendix A

Appendix B. Sample Open Records Request Form

The University of Mississippi Request for Public Records

Person Requesting: ______________________________________________________________

Representing: __________________________________________________________________

Street/Mailing Address: __________________________________________________________

City, State, Zip: ________________________________________________________________

Telephone: ____________________________ Date of Request: ______________________

Email: ________________________________________________________________________

Documents Requested (Please be as clear and concise as possible):

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

Review Requested: ________ Personally Inspect ________ Copy of Material

Further Instructions:_____________________________________________________________

______________________________________________________________________________

Requester’s Signature: ___________________________________________________________

Please submit this request via:

By U.S. Mail, By Facsimile, By Email

Office of Registrar (662) 915-5640 publicrecords@olemiss.edu

Attn: Charlotte Fant Pegues

104 Martindale

University, MS 38677

Note: The actual costs of gathering and reproducing the requested documents will be the responsibility of the requesting agent.

Please direct any questions regarding your request to the University of Mississippi’s Office of General Counsel at 662-915-7014.

Appendix C

Appendix D

Appendix E

Appendix F

Notes

1. Lotte E. Feinberg, “FOIA, Federal Information Policy, and Information Availability in a Post-9/11 World,” Government Information Quarterly 21, no. 4 (January 2004): 439–60, https://doi.org/10.1016/j.giq.2004.08.004.

2. Feinberg.

3. Ibid.

4. Christina Koningisor, “Transparency Deserts,” Northwestern University Law Review 114 (2020): 1461.

5. Michael K. McLendon and James C. Hearn, “Mandated Openness in Public Higher Education: A Field Study of State Sunshine Laws and Institutional Governance,” Journal of Higher Education 77, no. 4 (August 7, 2006): 645–83.

6. Shannon M. Oltmann et al., “Using Open Records Laws for Research Purposes,” Library & Information Science Research 37, no. 4 (October 2015): 323–28, https://doi.org/10.1016/j.lisr.2015.11.006.

7. Theodore C. Bergstrom et al., “Evaluating Big Deal Journal Bundles,” Proceedings of the National Academy of Sciences 111, no. 26 (July 1, 2014): 9,425–30, https://doi.org/10.1073/pnas.1403006111.

8. Kelly Taylor and David McMenemy, “Censorship Challenges to Books in Scottish Public Libraries,” Journal of Librarianship and Information Science 45, no. 2 (June 2013): 153–67, https://doi.org/10.1177/0961000611435254.

9. Oltmann et al., “Using Open Records Laws for Research Purposes.”

10. Kate Moore and Lori Duggan, “Transparency and Publisher Pricing Models,” The Serials Librarian 60, no. 1–4 (April 11, 2011): 105, https://doi.org/10.1080/0361526X.2011.556446.

11. Moore and Duggan, 105.

12. Claire Dygert and Heather Barrett, “Building Your Licensing and Negotiation Skills Toolkit,” The Serials Librarian 70, no. 1–4 (May 18, 2016): 339, https://doi.org/10.1080/0361526X.2016.1157008.

13. Association of Research Libraries, “ARL Board Affirms Transparency as Core Operating Principle of Licensing,” August 23, 2021, https://www.arl.org/news/arl-board-affirms-transparency-as-core-operating-principle-of-licensing/.

14. Moore and Duggan, “Transparency and Publisher Pricing Models.,” 105.

15. David Dulaney, “Where’s the Harm? Release Unit Prices in Awarded Contracts under the Freedom of Information Act,” The Army Lawyer 37 (2010): 39.

16. Scholarly Publishing and Academic Resources Coalition, “Data Analysis for Negotiation,” SPARC, 2021, https://sparcopen.org/our-work/negotiation-resources/data-analysis/.

17. Gavin Kennedy, Everything Is Negotiable : How to Get a Better Deal, Rev. American ed. (Englewood Cliffs, N.J.: Prentice-Hall, 1983); Max H. Bazerman and Margaret Ann Neale, Negotiating Rationally (New York: Free Press, 1992), http://catdir.loc.gov/catdir/enhancements/fy0645/91034205-s.html; G. Richard. Shell, Bargaining for Advantage : Negotiation Strategies for Reasonable People., Penguin Business/Management (London: Penguin, 2001); Alan Scott Rau, Edward F. Sherman, and Scott R. Peppet, Negotiation, Third edition., University Casebook Series (New York, NY: Foundation Press, 2006); Roger Fisher and William Ury, Getting to Yes: Negotiating an Agreement without Giving In, New edition (London: Random House Business, 2012).

18. Beth Ashmore, Jill E. Grogg, and Jeff Weddle, The Librarian’s Guide to Negotiation: Winning Strategies for the Digital Age (Medford, New Jersey: Information Today, Inc., 2012), 21.

19. Ashmore, Grogg, and Weddle, The Librarian’s Guide to Negotiation : Winning Strategies for the Digital Age; Moore and Duggan, “Transparency and Publisher Pricing Models,” 105

20. Ashmore, Grogg, and Weddle, The Librarian’s Guide to Negotiation.

21. Matt Dunie, “Negotiating with Content Vendors: An Art or a Science?,” Library Technology Reports 51, no. 8 (2015): 28.

22. Ashmore, Grogg, and Weddle, The Librarian’s Guide to Negotiation.

23. Bazerman and Neale.

24. Bazerman and Neale.

25. Roy J. Lewicki, Alexander Hiam, and Karen Olander, Think before You Speak : The Complete Guide to Strategic Negotiation (New York: J. Wiley, 1996), http://catdir.loc.gov/catdir/toc/onix02/95045411.html.

26. Alexandra Carter, Ask for More: 10 Questions to Negotiate Anything (New York: Simon & Schuster, 2020).

27. “Contracts Library,” SPARC, accessed December 7, 2020, https://sparcopen.org/our-work/big-deal-knowledge-base/contracts-library/; Ashmore, Grogg, and Weddle, The Librarian’s Guide to Negotiation.

28. McLendon and Hearn, “Mandated Openness in Public Higher Education.”

29. Oltmann et al., “Using Open Records Laws for Research Purposes.”

30. “Office of General Counsel | Public Records Request Form,” accessed December 15, 2020, https://legal.olemiss.edu/index/public-records-request-form/.

31. Zach Greenbert, “The Chilling Effect of Sunlight,” George Mason University Civil Rights Law Journal 29 (Spring 2019): 26.

32. Bergstrom et al., “Evaluating Big Deal Journal Bundles.”

33. Ted Bergstrom, “Bundle Contract Project,” accessed February 3, 2021, https://econ.ucsb.edu/~tedb/Journals/BundleContracts.html.

34. Paul Doda, “Letter to Theodore Bergstrom,” June 4, 2009, https://www.econ.ucsb.edu/%7Etedb/Journals/WSUCourtCase/ElsevierStatementbySalesChief.pdf.

35. Timothy D. Letzring, “The Impact on Institutional Research of Open Meeting and Open Records Laws in Higher Education,” New Directions for Institutional Research 1997, no. 96 (1997): 27–35, https://doi.org/10.1002/ir.9603; McLendon and Hearn, “Mandated Openness in Public Higher Education.”

36. Chad Marzen, “A Constitutional Right to Public Information,” Boston University Public Interest Law Journal 29 (Summer 2020): 24.

37. “The Court Rules That States Can Limit Public Records Requests to Their Own Residents,” Supreme Court Debates 16, no. 6 (September 2013): 9–10.

38. Marzen, “A Constitutional Right to Public Information.”

39. Jen Becnel-Guzzo, “Freedom of Information Act Response,” December 6, 2019.

40. Jay Bender, “Can the Freedom of Information Act Be Improved?,” South Carolina Lawyer 29 (May 2018): 8.

41. Carter, Ask for More, 3.

42. Oltmann et al., “Using Open Records Laws for Research Purposes.”