SECRECY CREEP.

• Author: Koningisor, Christina

INTRODUCTION 1753 I. GOVERNMENT SECRETS 1760 A. Federal Secrets 1761 1. Constitutional Secrecy 1761 2. Statutory Secrecy 1762 3. Executive Secrecy 1763 4. Judicial Secrecy 1764 B. States' Secrets 1766 1. Constitutional Secrecy 1766 2. Statutory Secrecy 1768 3. Executive Secrecy 1769 4. Judicial Secrecy 1770 C. Federal Secrets in the States 1772 II. SECRECY CREEP 1775 A. Methodology 1776 B. Secrecy Creep in the Judicial Branch 1778 1. The Gubernatorial Communications Privilege 1778 2. The Glomar Response 1782 3. The Mosaic Theory 1785 4. Deferring to Government Assertions of Harm 1787 C. Secrecy Creep in the Legislative Branch 1788 D. Secrecy Creep in the Executive Branch 1789 1. Adopting Federal Surveillance Tools 1790 2. Institutional Isomorphism: The Case of the NYPD 1791 E. The Mechanisms of Secrecy Creep 1795 III. THE IMPLICATIONS OF SECRECY CREEP 1798 A. The Benefits of Secrecy Creep 1798 B. The Harms of Secrecy Creep 1800 1. Legal Discordance 1800 a. Constitutional Discordance 1800 b. Historical Discordance 1803 c. Policy Discordance 1805 2. Reduced Public Oversight 1806 a. Reduced Checks and Balances 1806 b. Reduced External Oversight 1808 c. Increased Risk of Corruption 1810 d. The Risk of Deep Secrecy 1811 3. Intrasystem Secrecy Creep 1813 4. The "National Security-ization" of Local Law Enforcement 1814 C. Potential Remedies 1816 1. Federal Government 1817 2. State Government 1818 3. Local Government 1820 4. Civil Society 1822 CONCLUSION 1823 INTRODUCTION

In September of 2010, Mark Zuckerberg and Cory Booker appeared on the Oprah Winfrey Show to announce that Zuckerberg was donating $100 million to Newark's public schools. (1) At the time, Booker was serving as mayor of Newark; Zuckerberg, just twenty-six years old, still enjoyed his reputation as Silicon Valley wunderkind. The announcement was met with widespread praise. (2) But before long, their reform efforts had stalled. Six months into the project, Booker had not appointed a new superintendent or drafted a comprehensive plan for education overhaul. Two years later, Booker's administration had spent one-fifth of the donation--$20 million--on consulting fees alone. (3)

In April of 2011, a group of Newark parents filed a public records request under New Jersey's public records law for correspondence between Booker and Zuckerberg describing how the $100 million donation had been spent. (4) Booker's office denied the request on a number of grounds. But one of its central claims was that the emails were protected by executive privilege. (5) In its denial, Booker's office cited Nero v. Hyland, a 1978 New Jersey Supreme Court decision recognizing an evidentiary privilege for the communications of the governor. (6) Nero, in turn, relied on the U.S. Supreme Court's 1974 decision in United States v. Nixon recognizing a qualified constitutional privilege for the communications of the President. (7)

The privilege articulated in Nixon is robust, rooted in constitutional separation of powers principles, and tethered to the "unique" diplomatic and military responsibilities of the President. (8) Even so, it had migrated into state law to shield gubernatorial records, and it was now being invoked to protect the emails of a city mayor--a position that has no formal role in the state constitutional scheme. (9) The privilege had traveled far from its origins. This raised a number of questions. Should a city mayor enjoy an executive communications privilege? Should a governor? To what extent are the law and policy concerns that animate the presidential privilege applicable to state and local government?

Scholars have long been fascinated by secrecy in government. Historians, political scientists, economists, and sociologists have examined all facets and corners of this topic. (10) Legal scholars have not been immune to this trend. They, too, have explored fundamental questions about the federal secrecy ecosystem, asking what information the federal government should keep secret, what it does keep secret, and the process by which those secrets are either hidden or revealed. (11) More recently, legal scholars have explored the ecosystem surrounding information leaks in federal government, (12) the distinctions between various types of government secrets, (13) the feasibility of controlling government information in the Internet age, (14) and the legal exceptionalism of national security secrecy. (15) The list goes on. (16)

Yet legal scholars have paid less attention to government secrecy outside of the federal context. Even such basic questions as the types of information state and local governments keep secret, the legal underpinnings for state and local secrecy regimes, and the ecosystem surrounding government leaks at the state and local level have often been left unexplored. (17) There is one notable exception: the topic of police secrecy, which has received more sustained attention from scholars. (18) But even this subset of the literature is limited in certain respects. Scholars have largely focused on discrete issues within local law enforcement--for example, the availability of police disciplinary records (19)--or they have treated police transparency as one facet of the broader question of how best to regulate law enforcement agencies. (20) They have rarely expanded their scope of inquiry to make connections between secrecy in policing and secrecy in other realms of state and local government. (21)

The obvious explanation for this oversight is that much of the existing secrecy scholarship focuses on national security secrecy. (22) And state and local governments play a limited role in both generating and protecting this information. (23) State and local secrecy, as a consequence, is often perceived as involving lower stakes.

The reality is more complex. National security responsibilities do not always cleave neatly at jurisdictional borders. (24) For example, local governments--and especially local police--have played a central intelligence-gathering role in counterterrorism efforts in the wake of September 11. (25) More importantly, there is a vast landscape of government secrecy that exists beyond the national security context, and even beyond the federal secrecy regime altogether. Each time a police department refuses a reporter's request under the state public records law, a governor asserts executive privilege, or a state judge closes the courthouse doors, subfederal secrecy law is implicated.

These state and local decisions matter. Federal secrets--and national security secrets, in particular--are often far removed from the everyday experiences of citizens. (26) The actions of state and local government, in contrast, tend to have an immediate and tangible impact on individuals' daily lives. (27) This is especially true in the law enforcement context, where robust informational protections can shield repeat offenders and systemic abuse. (28) For communities of color, and especially for Black communities, the stakes could not be higher. (29) If we truly care about democratic governance and accountability at the state and local level, then we must grapple with the landscape of state and local government secrets.

This Article charts the contours of this subfederal secrecy regime, using the framework of national security secrecy as a point of reference. It outlines the basic legal framework governing state and local secrets, exploring distinctions in secrecy regimes at the federal and subfederal levels. It then describes the relative scarcity of national security secrets in state and local government, and explores how this affects the legal underpinnings of the subfederal secrecy regime. Conversely, it highlights the types of secrets that state and local government officials are most concerned with safeguarding.

This descriptive account sets the stage for this Article's primary contribution. Once the lens of federal secrecy is applied to state and local government, the most significant feature of this subfederal regime comes into focus: the migration of powerful federal secrecy protections into state law. Specifically, secrecy protections developed to shield the national security state have migrated over time into state law and practice to protect a variety of state and local government entities. State judges have applied presidential executive privilege protections to the records of state governors; local police departments have reproduced records' classifications systems meant to protect national security secrets; and state legislators have carved out holes in the state public records laws to shield law enforcement agencies from public oversight.

I refer to this process as "secrecy creep." (30) And I argue that we should be wary of this trend. The adoption of these powerful secrecy protections creates discordance in the law: the textual, structural, and historical underpinnings of the federal secrecy regime are distinct from the subfederal regime, and these national security protections often sit uneasily within the state legal framework. (31) Further, the distinct structure and nature of state and local government exacerbates the negative consequences of excessive government secrecy, imposing unique harms that do not necessarily surface in the federal context. State and local governments are not monitored by the same internal and external systems of checks and balances, and these secrecy tools allow state and local officials to aggregate power while shielded from public view. (32) Illuminating these hidden channels allows state judges and legislators to take steps to curb the more harmful effects of this trend.

Describing the problem of secrecy creep has further implications. In recent years, there has been a national debate over the growing militarization of police, or the large-scale transfer of military weapons and equipment to local law enforcement agencies. (33) This excavation of state and local secrecy surfaces a parallel...