Executive Secrecy: Congress, the People, and the Courts

• Publication year: 2023

Executive Secrecy: Congress, the People, and the Courts

Barry Sullivan

EXECUTIVE SECRECY: CONGRESS, THE PEOPLE, AND THE COURTS Barry Sullivan^* ABSTRACT

Congress enacted the Freedom of Information Act ("FOIA") to ensure that "any person" could gain access to all the executive branch information that could safely be disclosed, without any special showing of need, thereby enhancing the ability of citizens to know what their government is doing. Writing in 1982, then-Professor Antonin Scalia ridiculed the concept of active citizenship which FOIA embodied, asserting that the statute was the product of "an obsession [with the idea] that the first line of defense against an arbitrary executive is do-it-yourself oversight by the public and . . . the press."^** That was a "romantic notion," he thought, because significant disclosures of executive branch information do not ordinarily result from the work of the press or the public, but from the operation of institutionalized checks and balances, that is, through the tug-and-pull between Congress and the President.^*** Four decades later, it seems clear that the choice implicit in Professor Scalia's account is a false one: the health of our representative democracy depends on the vitality of both avenues of access to executive information, and both avenues require shoring up. On the one hand, FOIA has not fully satisfied its proponents' expectations with respect to its "informing function," meaning its capacity for enhancing the public's knowledge of government and for promoting active citizenship. On the other hand, lessons from the recent past suggest that Professor Scalia's faith in Congress's superior ability to secure information

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from an uncooperative executive may itself be something of a "romantic notion." This Article will explore both avenues, the ways in which they have not fulfilled their promise, and how they might be made more effective.

TABLE OF CONTENTS

INTRODUCTION........................................................................................ 1303

I. ACCESS TO EXECUTIVE INFORMATION: FOIA AND THE SCALIA CRITIQUE ..................................................................................... 1307
II. EXECUTIVE INFORMATION AND ACTIVE CITIZENSHIP.................... 1313
III. JUDICIAL PERFORMANCE IN FOIA CASES...................................... 1320
IV. EXECUTIVE INFORMATION AND THE PEOPLE'S REPRESENTATIVES ....................................................................... 1332

CONCLUSION........................................................................................... 1348

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INTRODUCTION

In 1948, Alexander Meiklejohn challenged us to think about a constitutional right to receive—as well as transmit—information and opinions. The argument was straightforward. "What . . . would be the use," he asked, "of giving to American citizens freedom to speak if they had nothing worth saying to say?"¹ Meiklejohn recognized that citizens acquire something "worth saying" not only through individual reflection, but also through "the free exchange of information and of ideas."² Meiklejohn's choice of words—"free exchange"—was intentional; the freedom to speak implies a freedom to hear.³ But the incumbent Attorney General apparently thought otherwise, having forbidden certain classes of foreign visitors, "except by special permission, to engage in public discussion of public policy while they are among us."⁴ Meiklejohn thought that the Attorney General's action was prohibited by the First Amendment, which he also took to mean that, notwithstanding the views of any government official, "such books as Hitler's Mein Kampf, or Lenin's The State and Revolution, or the Communist Manifesto of Engels and Marx, may be freely printed, freely sold, freely distributed, freely read, freely discussed, freely believed, freely disbelieved, throughout the United States."⁵ For Meiklejohn, the point was not to protect the authors' interests in self-expression or self-realization,⁶ but to ensure that citizens have access to the information needed for democratic self-government. "We are saying that . . . citizens . . . will be fit to govern themselves under their own institutions only if they have faced squarely and fearlessly everything that can be said in favor of those institutions, everything that can be said against them."⁷ And, as Justice Felix Frankfurter said, "Our

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scheme of society is more dependent than any other form of government on knowledge and wisdom and self-discipline for the achievement of its aims. For our democracy implies the reign of reason on the most extensive scale."⁸

Meiklejohn viewed active citizenship as essential to democracy, and the availability of information as essential to active citizenship. Legislators need information to promote the common good, and citizens need information to evaluate the performance of their representatives. Those needs are no less compelling today than they were in Meiklejohn's time, but our immediate problem may appear somewhat different. We sometimes seem not to lack information, but to be awash in it,⁹ and much of it is false or unreliable.¹⁰ Even our leaders sometimes refer to facts as "fake news," and to "fake news" as facts.¹¹ Meiklejohn, like John Stuart Mill and Justice Oliver Wendell Holmes before him, had faith that truth would eventually win out in "the marketplace of ideas."¹² We may find it difficult to share that optimism, at least in the short run,

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given the seemingly broad dissemination—and widespread acceptance—of misinformation and falsehood. We know that there is no "invisible hand" at work to ensure that truth will always prevail, and we may be tempted to think that increasing access to information will only provide more raw material for those who misinform and misrepresent.¹³ That fear may be justified, and we undoubtedly need to do more than we have in the past to try to ensure that falsehood does not prevail.¹⁴ But there is no reason to believe that making information less available to citizens or their representatives will better promote active citizenship or democratic self-government.

In his 1953 book, The People's Right to Know, Harold Cross urged Congress to enact legislation that would pierce the veil of unnecessary secrecy.¹⁵ In Cross's view, Congress, the public, and the press had been preoccupied for too long with "other problems that seemed more imminent and menacing,"¹⁶ but he thought that "[t]he time [was] ripe for an end to ineffectual sputtering about executive refusals of access to official records and for Congress to begin exercising effectually its function to legislate freedom of information for itself,

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the public, and the press."¹⁷ In 1966, Congress finally responded to Cross's call by enacting the Freedom of Information Act ("FOIA"),¹⁸ which provided the public and the press with broad access to government information subject to nine exemptions that permit—but do not require—the withholding of records that are exempt from mandatory disclosure.¹⁹ Although Cross noted Congress's unique role in our system of government (and mentioned its need for executive branch information separately from that of the public and the press),²⁰ FOIA made no special provision for congressional access to executive branch information, and the Supreme Court soon confirmed that FOIA grants Senators and members of Congress the same rights as everyone else, no more and no less.²¹ Congress's particular need would have to be met in other ways.

FOIA was not without its detractors. Government officials overwhelmingly opposed its enactment;²² President Lyndon B. Johnson feigned enthusiasm when he signed it in 1966;²³ and President Gerald R. Ford vetoed the 1974 amendments.²⁴ In 1982, then-Professor Antonin Scalia challenged the

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theoretical foundation of FOIA, arguing that disclosure of executive information was not properly a matter for the public and the press, but was best left to the operation of institutionalized checks and balances, the push-and-pull between the President and Congress.²⁵ Today, however, it seems clear that congressional oversight and FOIA are both needed, and both require repair.

In Part I, we review the need for public and congressional access to information, the important changes wrought by FOIA, and then-Professor Scalia's challenge to FOIA's theoretical underpinnings. Part II discusses the concept of active, democratic citizenship and the informational needs of the public and the press in a democratic society. Part III critiques some aspects of the courts' enforcement of FOIA, particularly their reluctance to vigorously interrogate the truth of the government's representations, or to examine requested records in camera, notwithstanding the statutory requirement of non-deferential, de novo review. The recent decision in Citizens for Responsibility and Ethics in Washington v. United States Department of Justice²⁶ is instructive in that regard.²⁷ Part IV reviews Congress's recent difficulties in acquiring information from the executive. We note that the Supreme Court has recently limited Congress's subpoena power by holding that the courts are authorized to narrow the scope of congressional subpoenas. In addition, the judges of the District of Columbia Circuit have sharply divided on the standing of congressional committees to seek enforcement of their subpoenas. We end with a brief conclusion.

I. ACCESS TO EXECUTIVE INFORMATION: FOIA AND THE SCALIA CRITIQUE

Before the enactment of FOIA, access to government information was governed by section 3 of the Administrative Procedure Act of 1946.²⁸ Those seeking access to government information under that provision were required to

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persuade a government official that they had a legitimate need for the information, that is, that they were "'properly and directly concerned' in the information requested," and, "[e]ven then, access was . . . subject to a...