Sam Lebovic
AS THE FREEDOM OF INFORMATION ACT made its slow passage through Congress in the early 1960s, it was not popular in President Lyndon B. Johnson’s administration. “We should not kid ourselves about the legislation’s prospects,” declared Senator Edward Long in March 1964, shortly after shepherding a FOIA bill through his subcommittee. “There is intense opposition to the bill from virtually every government agency in Washington.” A year later, when twenty-seven agencies and departments offered their views on FOIA to a House subcommittee, the Civil Service Commission was the lone supporter of the bill. Behind the scenes, the Bureau of the Budget advised the White House to prevent the bill from coming to a vote in the House. LBJ apparently implored the House leadership to “scrap” it.1
Ultimately, of course, opposition by the agencies could not kill FOIA. By the end of 1965, it had become clear to the White House that congressional pressure to pass the act was unrelenting and that it was not politically feasible to publicly oppose a Freedom of Information bill. Republicans, particularly a young Donald Rumsfeld, were beginning to make partisan hay out of the issue, and the public was fixating on the credibility gap. Sam Archibald, chief of staff for the House Committee pushing for the bill, advised the White House that caving to administrative opposition would be “politically damaging.” As he dryly put it, “the arguments against the legislation are technical ones by bureaus and agencies…. [T]he arguments in favor of the legislation are based on the democratic principle of the informed electorate. They also touch upon God and motherhood.”2
Still, the administration was not willing to abandon the fight completely. Rather than be placed in what White House counsel Lee White described as the “awkward position of opposing freedom of information,” the White House looked for ways to sculpt FOIA to calm the agencies.3 The administration flirted with the idea of referring the problem to a presidential commission, and also tried, unsuccessfully, to encourage Congress to adopt a weaker version of FOIA drafted by the Justice Department.4
Then the White House hit upon another, rather desperate, strategy to bring the agencies on board. Congress’s proposed FOIA bill would pass without amendment, but the Department of Justice (DOJ) would draft the House Report explaining the legislative intent behind the bill. To protect FOIA from potential presidential veto, the bill’s champion in the House, California representative John Moss, agreed to the deal. FOIA passed quickly through Congress with a DOJ-written report designed to limit the scope of the act.5 As the bill sat awaiting presidential signature in the early summer of 1966, the agencies were polled on their attitudes to FOIA. On July 1, LBJ was informed that “the departments and agencies have been concerned about this bill for many years, but have come around to the view that they can live with it.” The language in the House Report, as well as the promise that the report would provide the template for the administrative implementation of FOIA, had sufficiently calmed the agencies.6 Three days later, LBJ signed the bill into law.7
What we call the Freedom of Information Act was actually an amendment to the public information provisions of the Administrative Procedure Act of 1946. (Explaining the law in 1967, the attorney general called FOIA the “Public Information Act of 1966.”8) The new sections made three important changes that promised to make the administrative state far more transparent. Whereas the old APA had guaranteed access to information only for persons “properly and directly concerned” with a matter, FOIA empowered anyone to request government records, without any need to show “standing.” Whereas the old APA sections had allowed the agencies to withhold information for any “good cause found,” FOIA created a general presumption of disclosure, allowing the withholding of information only in specific instances, outlined in nine exemptions to the act. Finally, whereas the old APA sections had provided no remedy for citizens improperly denied access to information, FOIA empowered the courts to force disclosure.9
Despite these laudatory changes, the meaning of FOIA was nonetheless shaped in important ways by the opposition of the agencies. In particular, the drafting of the nine exemptions to disclosure had been a difficult process, and the meaning of the exemptions was unclear. The House Report and the subsequent attorney general’s manual thus played an important role in defining their substance. As John Moss commented sharply during committee debate on the bill, “the tendency in agencies is to regard these [exemptions] very narrowly when we discuss them in committee, and very broadly when they administer them.”10 In so doing, agency opposition expanded the scope of the exemptions, limiting the scope of transparency.
The opposition of the agencies also provides a unique vantage point from which to consider the broader significance of FOIA. As the administration offered testimony to Congress, drafted alternative legislation, and proposed interpretations of the act to guide the writing of the House Report and the attorney general’s manual, it provided a rich documentary record of state attitudes to such important topics as national security, the regulatory process, the philosophy of good governance, and the relations of the executive branch to the public. Agency opposition to FOIA reveals an important cross-section of the intellectual and political history of the state in modern America, as well as an opportunity to reflect on the normative dimensions of transparency in democratic governance.
This chapter considers agency opposition to FOIA in four parts. First, I explore agency concerns that transparency would undermine state capacity to regulate economic activity and reflect on the significance of corporate use of FOIA since 1966. Second, I look at the lack of agency concern about the threats FOIA posed to national security and explain this lack of concern by arguing that FOIA actually consolidated the legitimacy of national security secrecy. Third, I analyze administration concerns that FOIA would make policy deliberations impossible by requiring governance in a fishbowl and show how FOIA exempted such deliberations from disclosure. The chapter concludes with an examination of the deeper assumptions about the state and the public (and the relationship between the two) that underpinned agency opposition to FOIA.
TRANSPARENTLY REGULATING THE ECONOMY
Of all the agencies that opposed FOIA, only one maintained its opposition to the bitter end. When the Bureau of the Budget surveyed the agencies and departments about FOIA in June 1966, shortly before it was signed into law, the Department of Health, Education, and Welfare (HEW) provided the longest and most detailed response, and it alone continued to believe that passage of FOIA was against the public interest. It was worried that disclosure of correspondence with local and state governments would undermine negotiations over state grant-in-aid programs. It was worried that being forced to disclose the confidential assessments of research grant applications, such as those submitted to the National Institutes of Health, would harm honest and frank evaluations. And it was concerned that revealing staff manuals and procedures for auditing social benefits claims would impede “administration of the social security programs” and “invite fraud.”11
HEW’s opposition to FOIA revealed some consistent themes in the complaints of the agencies. Many of the agencies complained that FOIA would force them to disclose forms of information that would interfere with the state’s ability to interact with civil society, particularly its ability to regulate economic activity.
Some of this was concern that FOIA would undermine the state’s ability to negotiate advantageous contracts. The Department of Defense (DOD), for instance, was one of several agencies worried that if its guidelines for contracts became public, revealing what DOD was willing to concede in contract negotiations, it would be impossible to negotiate more favorable terms for the government. The General Services Administration was likewise worried about revealing its guidelines for the sale of surplus government property.12 Exempting such material raised possibilities for covering up corruption, but this pushback against FOIA also reflected a desire to protect the taxpayers’ interest in cost-effective government.
Most of the anxieties of the agencies, however, centered on a different point of state-economic relations—the state’s role in regulating the economy. The Department of Agriculture was worried that FOIA could make public the ballots of producers that were collected in the making of marketing orders under the Agricultural Marketing Act of 1937, which could expose some producers to “economic duress” in retaliation for their voting.13 The Federal Reserve Board was concerned that the records of the Federal Open Market Committee would be disclosed prematurely, undermining its ability to gather confidential testimony on market conditions and thus manage monetary policy free from the gaze of speculators.14 The Securities and Exchange Commission fretted that if it could not continue to hold “informal discussions by which business problems are resolved in a businesslike way, administration of the securities laws would be greatly impaired.” The Department of Labor worried about the premature disclosure of its enforcement policies.15
A number of agencies also worried that their ability to conduct investigations would be impaired if their investigatory files could be requested through FOIA. The National Labor Relations Board feared that informants of labor law violations would stop coming forward if employers would be able to FOIA their names. The Federal Communications Commission had similar concerns about protecting tip-offs from employees of licensees who were engaged in misconduct.16 The Civilian Aeronautics Board was worried about the frankness of accident reports; so was the National Aeronautics and Space Administration, which also worried about oversight reports about contractors.17
Such objections unsettle any easy assumptions that agency opposition to FOIA could only have been motivated by cynical self-interest, a hostility to democratic governance, or a wish to conceal abuses. If anything, the concern for protecting the confidentiality of audit and investigation processes suggests a preoccupation with guaranteeing the sanctity of internal agency processes designed to keep the agencies honest. FOIA, in this view, risked reducing government accountability, not aiding it. It is, of course, possible that these arguments were strategic, palatable rhetoric masking more selfish desires. But given that these arguments were made within the privacy of the administration as well as in public, it seems unlikely that these concerns were nothing more than posturing. Opposition to FOIA, in other words, was not necessarily antidemocratic. It could emerge from agency desires to protect the public interest.
These concerns for state efficacy molded many of the exemptions to FOIA. To begin with, FOIA acknowledged that many state functions required secrecy. The first exemption transparency advocates had written into FOIA was an exemption for any material that a statute had declared should be kept confidential. In essence, this was an accordion-like exemption that could expand to protect all sorts of government activities. In 1965, some 78 statutes included such provisions; by 2011, the list had grown to over 140 statutes.18
To this general exemption, Congress then added three other classes of broad exemption that helped to shield regulatory functions. Their scope was expanded substantially as a result of agency complaints, which found expression in the House Report and in Attorney General Clark’s implementing memorandum. Exemption 2 covered material “related solely to the internal personnel rules and practices of any agency.” The Senate had thought this would cover only matters such as parking facility rules, sick leave, and lunch hours. But the Clark memorandum followed the more expansive House Report and explained that it covered “internal rules and practices which cannot be disclosed to the public without substantial prejudice to the effective performance of a significant agency function”—such as bargaining for acquisition of lands, unannounced inspections, or spot audits. Exemption 7 covered investigatory material compiled for law enforcement purposes. Quoting from the House Report, Clark’s memorandum explained that this language was used in its “broadest sense” to cover “all kinds of laws, labor and security laws as well as criminal laws.” And the fourth exemption carved out all information provided in confidence to the government. It too was interpreted so broadly by Clark’s memorandum that it rendered rather redundant the final two exemptions of FOIA—for information related to the “regulation or supervision of financial institutions” (Exemption 8) and for information related to oil wells (Exemption 9). As Clark explained, these forms of information fell comfortably within Exemption 4.19
Nevertheless, these last two exemptions suggest the fine line that the regulatory state needed to walk when handling information collected from the marketplace. The state needs information to regulate, yet it relies on the objects of regulation to provide that information. And in the competitive environment of capitalism, control over information is a key to advantage. So economic actors will offer information to the regulator only if they can be assured that the regulator will preserve their advantage. This, in any case, was the logic of the exemption for information related to oil wells, which was added late in the day to ensure that companies that had filed a discovery of an oil well with the Bureau of Land Management would not find themselves outbid on the lease by competitors who had not invested in the expensive process of finding the oil well and had, instead, relied on the existence of the government filings.
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Since FOIA came into existence, it has, in fact, been used primarily by the commercial sector. The first three FOIA cases that produced lawsuits all targeted areas that had been of concern to the agencies: Shell Oil sought information about land patents in the Department of the Interior; a private practitioner FOIA’d the Defense Department’s Contract Audit Manual; and a Puerto Rican shoe company sought access to National Labor Relations Board investigative files to defend itself from an unfair labor practices charge.20 By 1971, one journalist was already lamenting the “rather ironic fact that the press has not been particularly prominent among the users of FOIA.” Of one hundred early FOIA lawsuits, none had been brought by newspapers.21
Subsequent studies have confirmed that FOIA is used much more by commercial requesters than by the media or transparency activists. In 2005, one study found that 61 percent of FOIA requests came from commercial interests and only 6 percent from the media.22 In 2013 and 2014, legal scholar Margaret Kwoka analyzed the FOIA logs of seven agencies likely to be used by commercial requesters and found that a striking percentage of FOIA requests came from those commercial interests: 96 percent at the Defense Logistics Agency, 79 percent at the Environmental Protection Agency, and 75 percent at the Food and Drug Administration.23 Commercial dominance of FOIA makes sense. FOIA has long been plagued by delays, which undermines its utility for reporters on deadline. Using FOIA takes patience and time, but for commercial requesters seeking a competitive advantage, this is a worthwhile expense.
Whether or not this is a deeply problematic state of affairs, or just a less than desirable one, is more uncertain. It certainly creates inefficiencies and inequalities. Kwoka has shown that a private industry has sprung up to resell FOIA’d information, suggesting that the government is expending considerable time and money to subsidize profit-making. Her research also suggests that relying on FOIA as a public information tool has produced an uneven method of disclosure that has created opportunities for informational arbitrage.24
If FOIA has been beneficial primarily to commercial interests, has it also harmed the regulatory state? Although there is a need for more research on this front, one can imagine several ways in which FOIA might have undermined the capacity and effectiveness of the regulatory state. Aggressive use of FOIA—repeated requests for vast swaths of information—adds to administrative costs and gums up the operations of the state, taking resources away from regulatory activity. The ability to FOIA government records but not corporate records also produces an inequality in public debate as the information behind government position papers is subject to greater transparency and scrutiny than private sector statements. This was the fear that led transparency groups to oppose a 1999 extension of FOIA that forced the disclosure of scientific data produced on government grants; conservative politicians and corporate interests wanted access to data on the health consequences of pollution to challenge proposed environmental regulations. (In the end, contrary to the expectations of both its proponents and opponents, this extension has hardly been used, largely due to greater affirmative disclosure of such data.25) At the broadest level, it seems likely that Americans’ ability to FOIA the state but not the private sector contributes to a general public impression of relative state incompetence and corruption. FOIA seems to function as one more mechanism that reflects and reinforces the strong antigovernment currents in U.S. political culture.26
If it does turn out that FOIA has operated as an antiregulatory tool, it is important to be careful in distinguishing whether this is because of the particular circumstances and context in which it has been administered or because of a deeper tension between transparency and state capacity for regulation. Perhaps more transparency would improve matters. One could, for instance, resolve problems of informational arbitrage by expanding affirmative disclosures.27 If excessive use of FOIA is interfering with agency functions, this is perhaps most easily fixed by expanding agency budgets. Although it may be somewhat dispiriting to discover that commercial interests are the greatest beneficiaries of FOIA, we should not too quickly assume that that is antithetical to the democratic purposes of the act insofar as FOIA is directing information into at least a portion of the public sphere.
In sum, much work remains to be done to determine exactly how FOIA has interacted with the regulatory state, but there is little doubt that FOIA has been an important tool for commercial interests. This might have surprised the journalists who championed FOIA in the 1950s, but it would not have surprised the agencies in the 1960s, who were well aware of the various forms of information they held that might appeal to economic interests. However we may feel about FOIA’s impact on the regulatory state, it is telling that agencies were much more concerned about its effects on these state functions than they were about its impact on issues of national security.
THE HEGEMONY OF NATIONAL SECURITY
In the lead-up to FOIA’s passage, there was remarkably little concern that FOIA would interfere with national security secrecy. At the 1965 hearings and in internal memoranda on the enrolled bill, only the departments of State, Defense, and Treasury raised objections to FOIA on these grounds. Their objections were mild, concerned less with challenging the act than with clarifying the relevant exemption to FOIA that covered matters “specifically required by executive order to be kept secret in the interest of the national defense or foreign policy.” State, for instance, was worried that there were some aspects of foreign relations that were not currently classified as secret that might be improperly disclosed: memoranda of conversations with diplomatic agencies abroad or Office of Munitions Control deliberations about arms transactions.28 Treasury was worried that exchange stabilization arrangements would be prematurely disclosed because these were not currently classified.29
What the three departments wanted, therefore, were assurances that the national security exemption was broad. The draft administration bill, for instance, sought to protect information related to “national security or foreign relations” rather than information about “national defense or foreign policy”—the administration favoring the more capacious term in both instances.30 After FOIA was passed, State, DOJ, and DOD briefly flirted with the idea of revising the then-controlling classification order, Executive Order 10501, to “broaden its provisions to the full scope of national defense and foreign policy permitted by the first exemption.”31
But little came of this, and the departments adapted instead by concluding that FOIA’s national security exemption did not need revision because it could simply be interpreted broadly. State, for instance, “assumed” that the exemption was “designed to encompass at least the coverage of the present Executive Order [on classification] rather than to restrict further such coverage.” And for good measure, State classified its memorandum of objection to FOIA, perhaps because it used the details of some arms deals as illustrative examples.32
Defenders of the national security state had little reason to fear that FOIA was going to interfere with their prerogatives; even FOIA’s champions conceded the importance of secrecy in the domain of national security. In 1957, James S. Pope, a leader of the freedom of information movement, had declared that “none of us wants security information—genuine security information—revealed.”33 An exemption for national defense and foreign policy was the second exemption included in early drafts of the FOIA legislation. On the important issue of the scope of that exemption, FOI advocates were deferential to a broad notion of national security prerogatives. Discussing the exemption with a DOJ representative during hearings on the bill, John Moss made this plain: “we do not challenge that right to withhold for the national interest, because we specifically require it by executive order to be kept secret in the interest of the national defense or foreign policy. Now, that is very broad.”34
As FOIA was implemented, it was this broad understanding of the national security exemption that took hold. As Clark’s explanatory memorandum put it, “the reference in the House Report to Executive Order 10501 indicates that no great degree of specificity is contemplated in identifying matters subject to this exemption.”35 State, Treasury, and Defense need not have worried about FOIA; it institutionalized their conceptualization of the national security exemption.
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Thereafter, as many legal scholars have shown, the courts were equally deferential to the national security exemption. In the early 1970s, many took at face value any citation of the exemption, refusing to consider whether the disclosure of the classified information would actually pose a threat to national security. In 1973, the Supreme Court upheld this deferential reading of the exemption, stating that Congress “has built into the Freedom of Information Act an exemption that provides no means to question an Executive decision to stamp a document ‘secret,’ however cynical, myopic or even corrupt that decision might have been.”36 This reasoning basically invited Congress to reform FOIA to allow for judicial review of the act of classification, and the 1974 amendments did so. But, at the last minute, Congress hedged on the issue. Fearful of a threatened presidential veto, Congress explained in its conference report that the amendments instructed future courts to “accord substantial weight” to representations about the need to keep classified information secret.37 (President Gerald Ford vetoed even this revised bill, but his veto was overridden.38) Ever since, courts have remained deferential to executive claims about the need for secrecy.39
In fact, FOIA helped consolidate the legitimacy of the classification system. The classification system was only fifteen years old at the time of FOIA’s passage, and it had been created by unilateral executive order. Congress had had no input into its design and had not previously recognized its legitimacy. But now it did. The significance of this development was immediately apparent to Professor Kenneth Culp Davis, doyen of post–World War II administrative law. FOIA “does precisely nothing to carry out the point of view of the press with respect to national defense and foreign policy,” Davis noted shortly after the act passed. “Instead, it strengthens the President’s hand in withholding information on these subjects…. Under the Act, the President may withhold information about national defense or foreign policy with the formal approval of Congress, previously lacking.”40
That was certainly an ironic outcome of the Freedom of Information Act. It stemmed from a simple slip from theory to practice. It was one thing to say, as did James Pope and the other freedom of information activists, that one wanted to protect “genuine security information.” But it was another thing entirely to presume that the particular bureaucratic process that the executive branch had created to define state secrets covered only “genuine security information.” In fact, as commentators have noted since the 1950s, the classification system incentivizes the overclassification of documents. The system requires classifiers to consider potential risks to the nation when reviewing documents, but it does not require that they take into account the public’s interest in knowing the information. And there are no penalties for overclassifying a document when in doubt. As a result, much of what is “classified” is not “genuine security information.”41
The passage of FOIA might have provided a moment to revise this system. The classification system might have been placed on a statutory basis. Classifiers could have been required to consider the public interest in disclosure. An administrative organ could have been created to audit classification decisions. Even without affirmatively challenging the classification system, FOIA could have provided a stronger tool for declassification, one that balanced public rights to know against claims of national security. Instead of any of these moves, FOIA exempted national security information and deferred to the classification system. FOIA was thus more deferential to the national security state than the regulatory state, a bifurcation that raises deeper questions about the general attitudes to governance embedded in the act.
THE INCONVENIENCE OF GOVERNING IN A FISHBOWL
Prior to the passage of FOIA, many of the agencies argued that FOIA posed challenges to good governance at an elemental level. These criticisms took two main forms: concerns about the practical, bureaucratic costs of implementing the act; and concerns that creating a more transparent executive branch would interfere with the effective development of policy.
Concerns about the bureaucratic costs of FOIA were easy to understand, for the terms of the act were generous. Anyone was allowed to ask for access to vast swaths of government information, and the costs were going to fall on the agencies and departments. As Treasury expressed it, FOIA “invites demands for all sorts and kinds of documents, requiring a large expenditure of time and money to satisfy”—expenditures that would ultimately be borne by the taxpayer.42 Twelve of the twenty-seven agencies testifying against the bill in 1965 raised such issues, and six agencies continued to protest about the burdens of FOIA just before LBJ signed it into law. HEW, for instance, worried about FOIA’s “inestimable costs and manpower burden.”43 State worried that it would have to make all of its records available at all of its 290 foreign service posts.44 NASA, perhaps thinking of space enthusiasts and UFO spotters, anticipated having to “undertake very burdensome administrative actions, solely to provide information to persons requesting it for unjustifiable or frivolous purposes.”45
In the short term, these fears would be assuaged by the Clark memorandum, which, following the House Report, stated that the costs of FOIA requests had to be covered by the user. The head of each agency was to establish “any fee, price or charge” that they determined to be “fair and equitable” to ensure that the government wasn’t out of pocket. Such fees also would serve to discourage “frivolous requests.”46 By the early 1970s, it had become clear that the elasticity of these provisions allowed for prohibitive fees that undermined FOIA’s central aim. One request for Department of Agriculture information on pesticides, for instance, was met with a fee of almost $92,000.47 In 1974, FOIA was therefore amended to require the waiver or reduction of fees when the information is being requested in the public interest. Today, although FOIA undeniably creates a bureaucratic burden and imposes large costs on the agencies—in 2013, for instance, the Food and Drug Administration devoted eighty-two full-time staff and $33.5 million to FOIA—supporters of the law consider this the necessary price of ensuring a more transparent government.48
Mid-1960s complaints about the bureaucratic costs of FOIA are thus primarily interesting as a by-product of a deeper sense among the agencies that transparency was not a virtue worth any price. In fact, many agencies questioned whether it was desirable at all to expose internal deliberations within the executive branch to the light of publicity. This was the second way agencies argued that FOIA undermined good governance. As the House Report put it, “agency witnesses argued that a full and frank exchange of opinions would be impossible if all internal communications were made public.”49
Agency officials were worried, in other words, about being forced to “operate in a fishbowl.” They thought that creative, efficient, and honest policy work required some protection from public scrutiny and judgment, and that FOIA would tear the cocoon too soon, allowing criticism of immature deliberations.50 The Department of Defense captured the logic of the argument best:
It is a well-accepted maxim that no large organization can function effectively if subject to general public scrutiny. If agency decisions by superiors are to be made with the benefit of full, frank, and open discussion, and recommendations by and between subordinates, these comments and recommendations must have the protection of privileged information. Otherwise, every memorandum would be carefully written with a view toward its possible impact on the public. The inhibiting effect of such a requirement is obvious.51
It was appropriate that DOD presented this argument as a form of common sense so “well-accepted” and “obvious” that it required no proof. Six other agencies made this argument in 1965, and four continued to raise it in 1966.
But some segments of the executive branch went further still, dressing these arguments about the need for confidentiality in constitutional garb. Offering congressional testimony in 1965, six agencies argued that FOIA violated the separation of powers, and DOD and DOJ continued to worry about these constitutional issues in 1966. Their argument rested on a belief that the president had an “executive privilege”—a right to maintain certain forms of confidentiality in the fulfillment of his constitutionally assigned functions. FOIA, these agencies and departments argued, violated this right by unconstitutionally providing either the judiciary or the legislature with powers that impinged on executive decisional autonomy (opinions varied as to the precise violation of the separation of powers).52
In this sense, the timing of FOIA’s passage left a clear mark on its substance. Executive privilege had only begun to be thought of as a sweeping right to confidentiality during the McCarthy era. It had been elaborated by Truman administration efforts to protect the secrecy of its loyalty files from anti-Communist Republicans, and it was most forcefully expressed in a 1954 letter by President Eisenhower aimed at stopping Senator Joe McCarthy’s investigations into the Army. After this remarkable rise, executive privilege was held in high political esteem until President Nixon’s abuse of the privilege during Watergate did much to discredit it in the early 1970s.53
So FOIA’s passage fell within a relatively short period in which claims that internal deliberations within the executive should be confidential had real normative and constitutional clout. Signing FOIA into law, LBJ reiterated that the president had constitutional powers to provide for confidentiality and that “officials within Government must be able to communicate with one another fully and frankly without publicity.”54 These sentiments shaped the meaning of Exemption 5, which covered “inter-agency or intra-agency memorandums or letters” and was understood to extend to materials related to the deliberative process.
During FOIA’s long gestation, and in defiance of administration demands, John Moss had said he would not agree to a bill that included “any language that grants statutory recognition to executive privilege.”55 Yet the expansive understanding of the deliberative process incorporated into Exemption 5 essentially did so. According to the 2015 Department of Justice Guide to the Freedom of Information Act, one of the “most frequently invoked privileges that ha[s] been held to be incorporated into Exemption 5 [is] the deliberative process privilege (referred to by some courts as ‘executive privilege’).”56 In 2014, in the context of a general increase in FOIA requests, a new record was set when Exemption 5 was invoked 81,752 times. (The national security exemption, by way of comparison, was cited 8,496 times that year.57)
In 2016, when Congress amended FOIA, it placed a twenty-five-year limit on Exemption 5. The ability to access more internal documents from the past is clearly a boon to historians, but it is significant that even this reformed FOIA still seeks to shield deliberative discussions from contemporary scrutiny.58 Its opponents took an even stronger stand to protect deliberative discussions. Cass Sunstein, recently returned to academia from his stint in the Office of Information and Regulatory Affairs, argued that the reform would “have a chilling effect on those discussions.”59
The similarity of these arguments against transparency across a half-century is striking, and it raises an important practical issue. In both instances, administrators were concerned that internal debate was likely to be chilled by knee-jerk public reactions—by an inability of the news media, the electorate, and political opposition to see proposals in context. Rather than assessing debate coolly and calmly, and waiting to see what the final policy might be, opponents would be quick to seize on particular statements or proposals to smear or discredit policies and policy makers. However we may think about this problem moving forward, the history of Exemption 5 reflects persistent fears about “governing in a fishbowl.” It also reminds us that agency opposition to FOIA reflected broader mid-century attitudes about the relationship between the state and the public.
FOIA BETWEEN STATE AND PUBLIC
More than anything else, agency opposition to FOIA revealed a persistent faith in the authority and rationality of the executive branch. From the position of the Executive, questions about information disclosure were difficult, subtle, and complex. But FOI advocates, according to the administration, didn’t grasp that fact. As one Office of Legal Counsel memo explained, FOI advocates thought that
the problem is an easy one, and that protection of official information is unnecessary except in cases involving the national security and a few other areas easily defined. In fact, the responsibility of the government for the proper handling of information and records in its possession frequently involves most careful judgments. Because of the reach and complexity of modern government and the volume and variety of information which is in the [government’s] possession … the different kinds of situations in which improvident disclosure may cause serious injury to private and public interests are infinite in number.60
Putting the same attitude another way, the Office of Legal Counsel also asserted that FOIA sought to “eliminate any aspect of judgment” in the decision to disclose information. Instead, FOIA naively substituted a “simple, self-executing word formula.”61 The Department of Labor likewise decried FOIA’s “inherent inflexibility.” Testifying to Congress, Norbert Schlei, assistant attorney general for the Office of Legal Counsel, summed up the “basic thesis” of the administration’s opposition to FOIA: “there is no form of words that can protect the public interest well enough to justify substituting that form of words for ‘executive judgment’ and ‘discretion.’”62 In all, such advocacy of the need for administrative discretion, such trust in the judgment of agency heads, and such distrust of legislated procedures for disclosure reflected a broad faith in administrative expertise.
Agency understandings of the public were less straightforward. They were certainly more complicated than the expansive and vague notion of the “public” championed by FOI advocates and articulated by the bill. Explaining FOIA, Ramsey Clark declared that it provided that “all individuals have equal rights of access,” which was true, and was a striking provision in the bill.63 Not only did one not need to show standing, one did not need to be a citizen to use FOIA. FOIA, in this sense, embodied a militantly democratic theory of the public—any individual, acting rationally for themselves or the common good, would create public goods by freeing information from the state.
Agencies were skeptical that the “public” would live up to this role for two reasons. First, agencies argued that, in practice, it would be difficult to differentiate citizens using FOIA for the public good and citizens abusing FOIA for private benefit. Treasury, for instance, testified to Congress that it already had problems with individuals pretending to have power-of-attorney to represent taxpayers and thus gain access to personal information for business purposes.64 In one sense, this seemed to represent a nascent critique of the ways that formally egalitarian rights could serve to benefit primarily those economic interests with the incentives and resources to take best advantage of them.
But the second, and more prevalent, reason for agency skepticism stemmed from a broader distrust of the public. When agencies and the departments spoke of the public, they imagined a parade of irresponsible troublemakers—high school children and the “mentally disturbed” (Treasury); “subversives, aliens,” or “claim hunters” (Comptroller General); “intermeddlers, idle curiosity seekers, smut peddlers, persons with irrelevant prejudicial motives and others having no reasonably legitimate interest in the information” (General Services Administration).65 These figures were invoked primarily because they promised to create bureaucratic burdens. But insofar as the agencies also worried about governing in a fishbowl, and worried that disclosures to irresponsible individuals would then reverberate throughout the public, they also seemed to have assumed that the general public was ill-suited to calmly considering matters of public policy. The public was intrigued enough by public affairs to be mischievous and annoying in calling for transparency, yet irresponsible and skittish enough to misuse or misunderstand the information that came into their possession.
After World War II, a procedural orientation to administrative governance may have been on the rise, displacing agency discretion in favor of clear rules of operation and clear formulas for public involvement. But when it came to the disclosure of information, these trends were far from settled by the mid-1960s. In 1966, the agencies continued to distrust the public and formally egalitarian procedures and to exalt the expertise of the administrator.
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By shaping the drafting and interpretation of FOIA, the opposition of the agencies left its imprint on the law and practice of transparency. The concerns of the administration foreshadowed the uneven effectiveness of FOIA in its first half-century: the act has been much more effective in producing information about the regulatory state than in producing information about the national security state; and it has been used more often by commercial interests than by journalists or those interested in public goods. At a deeper level, agency concerns reflected some important assumptions about the relationship between the state and the public in modern American democracy. Agency opposition provided something of a heat-map of “state-ness” in mid-century American democracy, revealing those areas in which the democratic state thought that it needed autonomous capacity to work effectively—particularly in the domain of national security but also, to a lesser extent, in the regulation of the economy. Agency opposition also reflected the lingering hold of ideas about administrative expertise and discretion even in the era of an increasingly proceduralist state. We still live with the FOIA shaped by the assumptions and concerns of mid-century America. As FOIA passes the fifty-year mark, it is helpful to reflect on its historical origins to better understand its present state and, perhaps, to imagine ways to reform it in the future.
1. “Information Bill Faces Stiff Test,” Washington Post, August 10, 1965; “White House Opposition Stalls Information Bill,” August 9, 1965, clipping, box 44, folder FE 14–1, WHCF, LBJ Library; “Information Freedom Bill Backed in Senate,” Washington Post, March 3, 1964; “Shop Talk at 30,” Editor and Publisher, August 29, 1964; Federal Public Records Law: Part 1: Hearings Before a Subcommittee of the Committee on Government Operations, 89th Congress, 1965.
2. “Hill Drive on to Reduce Secrecy in Government,” Washington Post, February 18, 1965; “Senate Again Votes a Bill on News Flow,” New York Times, August 1, 1964; “An Information Bill Is Passed by Senate,” New York Times, October 14, 1965; Paul Wieck, “Chill Threatens Press Bill,” Albuquerque Journal, July 11, 1965; Sam Archibald to Bill Moyers, December 13, 1965, box 44, folder FE 14–1, WHCF, LBJ Library.
3. Lee C. White memorandum, January 15, 1966, box 25, folder FE 14–1, WHCF, LBJ Library.
4. Phillip S. Hughes to Lee White, March 19, 1965, box 44, folder LE/FE 14–1, WHCF, LBJ Library; “Background Statement” included in memo from Leon Ulman, Acting Assistant Attorney General, Office of Legal Counsel, to Bill Moyers, March 16, 1966, box 44, folder LE/FE 14–1, WHCF, LBJ Library.
5. Freedom of Information, Executive Privilege, Secrecy in Government, Volume 2: Hearings Before the Subcommittees on Administrative Practice and Procedure, 93rd Congress (1973), 122–26; Robert Okie Blanchard, “The Moss Committee and a Federal Public Records Law, 1955–1965” (PhD diss., Syracuse University, New York, 1966), 200–206; “Disclosure Bill Gains Approval of House Unit,” Washington Post, April 28, 1966; Bryce Nelson, “House Votes Information Access Bill,” Washington Post, June 21, 1966.
6. Milton Semer to LBJ on enrolled bill S.1160, July 1, 1966, box 25, folder FE 14–1, WHCF, LBJ Library.
9. Milton Semer to LBJ on enrolled bill S.1160, July 1, 1966, box 25, folder FE 14–1, WHCF, LBJ Library; “House Report 1497,” May 9, 1966, 5; “Senate Report 813,” October 1, 1965, 3, both in box 36, folder PL 89–487, S1160, Reports on Enrolled Legislation, LBJ Library.
10. Federal Public Records Law: Part 1: Hearings, 72.
11. John W. Gardner, Secretary of HEW, to Charles Schultze, June 23, 1966, box 36, folder PL 89–487, S1160, Reports on Enrolled Legislation, LBJ Library.
12. Federal Public Records Law: Part 1: Hearings, 219, 249.
13. Department of Agriculture to Charles Schultze, June 23, 1966, box 36, folder PL 89–487, S1160, Reports on Enrolled Legislation, LBJ Library.
14. J. L Robertson, Office of Vice-Chairman, Board of Governors Federal Reserve System, to Wilfred Rommel, July 1, 1966, box 36, folder PL 89–487, S1160, Reports on Enrolled Legislation, LBJ Library.
15. Federal Public Records Law: Part 1: Hearings, 224, 259.
16. Federal Public Records Law: Part 1: Hearings, 241, 257.
17. CAB chairman to Wilfred Rommel, June 22, 1966, box 36, folder PL 89–487, S1160, Reports on Enrolled Legislation, LBJ Library; Robert C. Seamans, Deputy Administrator NASA to Charles L. Schultze, n.d., box 36, folder PL 89–487, S1160, Reports on Enrolled Legislation, LBJ Library.
19. Senate Report 813, October 1, 1965, box 36, folder PL 89–487, S1160, Reports on Enrolled Legislation, LBJ Library; Clark, “Attorney General’s Memorandum on the Public Information Section.”
20. Frank M. Wozencraft, “The Freedom of Information Act—The First 36 days,” Administrative Law Review 20 (1968): 249–61, at 253.
21. Louis M. Kohlmeier, “The Journalist’s Viewpoint,” Administrative Law Review 23 (1971): 143–45.
23. Margaret B. Kwoka, “FOIA, Inc.,” Duke Law Journal 65 (2016): 1361–1437, at 1379–1414.
24. Kwoka, “FOIA, Inc.,” 1415–26.
25. Jason Ross Arnold, Secrecy in the Sunshine Era: The Promise and Failure of US Open Government Laws (Lawrence: University Press of Kansas, 2014), 227–32; Eric A. Fischer, “Public Access to Data from Federally Funded Research: Provisions in OMB Circular A-110,” Congressional Research Service Report, March 1, 2013.
26. David E. Pozen, “Freedom of Information Beyond the Freedom of Information Act,” University of Pennsylvania Law Review 165 (2017): 1097–1158, at 1123–36.
27. Kwoka, “FOIA, Inc.,” 1429.
28. Leonard C. Meeker to Frank Wozencraft, April 29, 1966, box 36, folder PL 89–487, S1160, Reports on Enrolled Legislation, LBJ Library.
29. Federal Public Records Law: Part 1: Hearings, 228–229.
30. “Background Statement”; “Explanation of the Differences Between S.1160 and the Draft Public Information Bill,” March 16, 1966, box 44, folder LE/FE 14–1, WHCF, LBJ Library.
31. Ramsey Clark, Deputy AG, to Charles Schultze, Director, Bureau of the Budget, June 28, 1966; Unsigned DoD memorandum to Charles Schultze, June 28, 1966; Douglas MacArthur II to Charles Schultze, June 23, 1966; Leonard C. Meeker to Frank Wozencraft, April 29 1966, all in box 36, folder PL 89–487, S1160, Reports on Enrolled Legislation, LBJ Library.
32. Leonard C. Meeker to Frank Wozencraft, April 29 1966, box 36, folder PL 89–487, S1160, Reports on Enrolled Legislation, LBJ Library.
33. “Moss Committee Vital to Public Information,” Editor and Publisher, January 26, 1957.
34. Federal Public Records Law: Part 1: Hearings, 14.
35. Clark, “Attorney General’s Memorandum on the Public Information Section.”
36. EPA v. Mink 410 U.S. 73 (1973).
37. “Freedom of Information Act Amendments,” H.R. Rep. No. 93–1380, Conference Report, 1974.
39. David E. Pozen, “The Mosaic Theory, National Security, and the Freedom of Information Act,” Yale Law Journal 115 (2005): 628–79, at 638–39; Robert P. Deyling, “Judicial Deference and De Novo Review in Litigation over National Security Information Under the Freedom of Information Act,” Villanova Law Review 37 (1992): 67–112; Christina E. Wells, “ ‘National Security’ Information and FOIA,” Administrative Law Review 56 (2004): 1195–1221.
40. Kenneth Culp Davis, “The Information Act: A Preliminary Analysis,” University of Chicago Law Review 34 (1967): 761–816, at 784–85.
41. Arnold, Secrecy in the Sunshine Era, 21–22; Committee on Classified Information, U.S. Department of Defense, “Report to the Secretary of Defense,” 1957; Morton H. Halperin and Daniel N. Hoffman, Top Secret: National Security and the Right to Know (Washington D.C.: New Republic Books, 1977), 51–54; Mike German and Jay Stanley, “Drastic Measures Required: Congress Needs to Overhaul U.S. Secrecy Laws and Increase Oversight of the Secret Security Establishment,” ACLU Report, July 2011, www.aclu.org/other/drastic-measures-required.
42. Fred B. Smith, General Counsel Treasury, June 23, 1966, box 36, folder PL 89–487, S1160, Reports on Enrolled Legislation, LBJ Library.
43. John W. Gardner, Secretary of HEW, to Charles Schultze, June 23, 1966, box 36, folder PL 89–487, S1160, Reports on Enrolled Legislation, LBJ Library.
44. Leonard C. Meeker to Frank Wozencraft, April 29, 1966, box 36, folder PL 89–487, S1160, Reports on Enrolled Legislation, LBJ Library.
45. Robert C. Seamans, Deputy Administrator, NASA, to Charles L. Schultze, box 36, folder PL 89–487, S1160, Reports on Enrolled Legislation, LBJ Library.
46. Clark, “Attorney General’s Memorandum on the Public Information Section.”
47. Committee on Government Operations, Administration of the Freedom of Information Act, H.R. Rep. No. 92–1419, at 8, 21–22, 73, 76; Ralph Nader, “Freedom from Information: The Act and the Agencies,” Harvard Civil Rights and Civil Liberties Review 5 (1970): 1–15, at 5.
48. Kwoka, “FOIA, Inc.,” 1417.
49. House Report 1497, 10.
50. House Report 1497, 10; Samuel J. Archibald to John Moss, January 7 1966, box 44, folder LE/FE 14–1, WHCF, LBJ Library.
51. Federal Public Records Law: Part 1: Hearings, 220
52. Federal Public Records Law: Part 1: Hearings; Unsigned DoD memorandum to Charles Schultze, June 28, 1966; Ramsey Clark, Deputy AG to Charles Schultze, Director, Bureau of the Budget, June 28, 1966, both in box 36, folder PL 89–487, S1160, Reports on Enrolled Legislation, LBJ Library.
53. See Mark J. Rozell, Executive Privilege: Presidential Power, Secrecy and Accountability, 3rd ed. (Kansas: University Press of Kansas, 2010); Raoul Berger, Executive Privilege: A Constitutional Myth (New York: Bantam Books, 1974); Arthur S. Miller, “Executive Privilege: A Political Theory Masquerading as Law,” in The Presidency and Information Policy: Center for the Study of the Presidency Proceedings, ed. Harold C. Relyea, 4 (1981): 48–65; Robert Kramer and Herman Marcuse, “Executive Privilege: A Study of the Period 1953–1960,” George Washington Law Review 29 (1961): 669–87; Sam Lebovic, Free Speech and Unfree News: The Paradox of Press Freedom in America (Cambridge Mass.: Harvard University Press, 2016), 172–74, 207–08.
54. “Statement by the President Upon Signing the ‘Freedom of Information Act.’ ”
55. “White House Opposition Stalls Information Bill,” Washington Star, August 9, 1965, clipping attached to Phillip S Hughes to Lee White, August 12, 1965, box 44, folder LE/FE 14–1, WHCF, LBJ Library.
58. Lee White, “New Life for FOIA,” Perspectives on History, September 2016, 19.
60. “Background Statement.”
61. “Background Statement.”
62. Federal Public Records Law: Part 1: Hearings, 6, 223.
63. Clark, “Attorney General’s Memorandum on the Public Information Section.”
64. Federal Public Records Law: Part 1: Hearings, 62.
65. Federal Public Records Law: Part 1: Hearings, 48–49, 203, 227, 250.