Troubling Transparency: The History and Future of Freedom of Information

Enacted in 1966 as an amendment to the Administrative Procedure Act, FOIA is neither a freestanding constitutional right to access government information nor recognized as part of the First Amendment prerogatives of the press. As a result, U.S. law largely limits the “right to know” to FOIA’s statutory terms. These terms appear unobjectionable: requiring executive branch agencies to make certain information generally available; allowing individuals to request information through a standardized process; and enabling individuals to seek judicial review if they are dissatisfied by the government’s denial of their requests. But FOIA frustrates in practice. Despite congressional and executive branch efforts to make the process more easily navigable, FOIA advocates and many users regularly complain about unchecked bureaucratic resistance to FOIA’s letter and spirit.

Viewed this way, FOIA constitutes more of a symbolic commitment to the free flow of government information than an effective means to regulate secrecy. It may be better than nothing, but no reasonable observer would argue that FOIA’s fifty-odd years of existence have seen the end of excessive state secrecy. Quite the opposite in fact: FOIA may not have caused the increased expansion of state secrecy (although one could imagine an argument otherwise), but the government holds more secrets today than fifty years ago, and the public seems at least as disconnected to and ignorant of the state’s actions as it was in 1966. We were promised freed information, an open government, and a truly democratic state; all we have received in the decades since are political scandal, an ever-expanding classification system, and a means to file a records request and await full or partial denial. Viewed this way, FOIA deserves and needs greater status and stricter enforcement. A robust freedom of information right enshrined in the Constitution and vigorously enforced by the courts can cure the ills from which FOIA has suffered since its inception.

As Sam Lebovic explains in Free Speech and Unfree News, his intellectual history of the relationship between the media and theories of the First Amendment, this campaign emerged in the shadow of the Cold War and followed a mostly successful effort by the same advocates and their predecessors to establish the Press Clause of the First Amendment as a shield against government interference in their output and their business.1 Equally significant, it followed a campaign to export American journalistic ideals abroad as part of the broader pre- and postwar campaign to transmit U.S. political, economic, and cultural ideals to Europe. Advocates developed the terms “right to know” and “freedom of information” during this period as part of a classical liberal conception of the press as a check on the state, with legal rights and freedoms serving as a means by which the public would benefit from the free flow of information presented to it by a privately held press free from state interference.²

The campaign resulted in one historically important scholarly monograph, a fairly dull book titled The People’s Right to Know, by retired media attorney and media law professor Harold Cross at the Columbia School of Journalism. Cross had worked with ASNE, which had commissioned the book, from the early stages of its campaign against state secrecy. His vast knowledge and talent in understanding and synthesizing existing legal doctrine gave him considerable influence over the press—the interest group most interested in addressing government secrecy and most capable of using its political influence to accomplish its goal. James Pope, the chair of ASNE’s Freedom of Information Committee, recruited Cross to serve as legal advisor and gushed in his foreword to The People’s Right to Know that Cross had become “our leader” in a movement in which the press would serve as an “agent of the people” to enforce the right of access to information.³ It was not the sole book on the subject. James Russell Wiggins, a former ASNE FOI Committee chair, published Freedom or Secrecy in 1956 and joined Cross in advocating on behalf of an enforceable right to know.⁴

The People’s Right to Know would prove, along with its author, to be the most influential legal authority in the campaign for government transparency. Cross’s book compiled the existing (as of 1953) state and federal laws on information access across federal and state governments. He documented in some detail the conditions under which government entities and officials kept information secret: the “world trends,” officials’ “habits of secrecy and censorship” and their desire for greater privilege in handling information, the expansion of a right to privacy about which Cross was skeptical, and a lack of faith among progressives and the press in the importance of advocating for greater transparency. To counter these adverse trends, Cross offered an extensive legal brief that sought to implant the rights concept into intellectual and legal opinion. A series of opening declarations emphasized the most prominent terms from the earlier free press campaign: “Public business is the public’s business. The people have the right to know. Freedom of information is their just heritage. Without that the citizens of a democracy have but changed their kings.” “Rights” against the state, along with the ideal of “freedom” from state barriers to access, served as the logical way for a legal advocate such as Cross to champion transparency. But the prevailing law of access to government information, Cross complained, was a mess. It existed only “where you find it,” in a “welter of varying statutes, conflicting court opinions and wordy departmental regulations [that] present the problem as a veritable Chinese puzzle.”5

The resulting information access law could not confront and control the expansion of Cold War secrecy. Access to information was “a neglected constitutional right,” Cross noted. Citing a range of historical and contemporary figures for support, he argued that it ought to be encompassed within First Amendment protections.⁶ Cross lamented what he presciently viewed as the dim prospects of that right’s judicial recognition. Setting aside his preference for a constitutional right as a stronger, universal means to gain public access to government information, Cross instead advocated federal legislation as an alternative to the elusive enshrinement of a federal constitutional right to know.

In the decade prior to World War II, Congress and lobbyists on behalf of regulated parties had sought to establish a uniform set of legal procedures that would rein in an increasingly active federal bureaucracy. Their efforts led to the Administrative Procedure Act of 1946, whose existing information access provisions were vague and riddled with exceptions.⁷ Although the APA imposes some requirements that force agencies to create and disclose information regarding the regulatory process, it was not the sweeping law that would encompass the full range of government information for which Cross and others advocated. Specifically, it established no judicially enforceable public right to information in the event of a government entity’s refusal to disclose information. Cross urged Congress to “begin exercising effectually its function to legislate freedom of information for itself, the public, and the press” by creating a legal right to know.⁸

Soon after the publication of Cross’s book, the ASNE committee finally found in California Representative John Moss an effective legislative partner for establishing the legal rights that Cross described.9 In November 1954, a new Democratic majority had wrestled control of the U.S. House of Representatives back from a small Republican majority that had ridden Dwight Eisenhower’s coattails in his 1952 election to a first presidential term. Although Eisenhower’s moderate conservatism held at arm’s length both Senator Joseph McCarthy (whose prominence was fast receding by 1954) and Vice President Richard Nixon, politics was ultimately partisan, and Democrats resented having lost the presidency for the first time since Franklin Roosevelt’s initial election in 1932. Moreover, the executive branch’s expansion during the New Deal and the president’s administrative prerogative over executive branch secrets following the end of World War II constituted a source of political conflict. Even with a war hero and political moderate in the White House and a common enemy in the Soviet Union, Congress viewed its role both as a principled, institutional source of opposition to the presidency and the branch he controlled and as a source of political opposition to a Republican electoral foe.

To that end, the House of Representatives’ Government Operations Committee, chaired by Democratic Representative William Dawson of Illinois, established a Special Subcommittee on Government Information, with Moss as chair, to investigate executive branch secrecy. ASNE leaders and prominent newspaper editors played key roles in spurring the Subcommittee on Government Information (referred to popularly as “the Moss Committee”) into action. The press provided personnel, with former journalists dominating the committee’s staff and prominent editors helping devise its aggressive strategy of investigating federal agencies that kept information secret from the press and the public.¹⁰ ASNE introduced Cross to Moss and his subcommittee, and Cross played a key role as the committee’s legal advisor until his death in 1959. The press also provided publicity, with newspapers around the country promoting the subcommittee’s work and especially its hearings and investigations.¹¹ The press helped frame the issue as one of insufficiently recognized and enforced legal rights. In James Pope’s words, when he testified at the Moss Committee’s first hearing, “freedom of information is not a political issue…. The right to know is the right of the people.”¹² Tellingly, Harold Cross’s argument in favor of imposing legal obligations through the creation of privately exercised statutory rights proved to be the only satisfactory legislative solution to secrecy.

After an amendment to existing law failed to change bureaucratic norms, the Freedom of Information Act—a statute whose title was apparently appropriated from the title of ASNE member Herbert Brucker’s 1949 book and was not mentioned in the Congressional Record as the act’s original title—finally gained sufficient legislative support in 1966, cleared the procedural hurdles in Congress, and was enacted despite President Johnson’s expressed ambivalence and unexpressed hostility.13 According to Bill Moyers, his press secretary at the time, Johnson “had to be dragged kicking and screaming to the signing ceremony. He hated the very idea of the Freedom of Information Act; hated the thought of journalists rummaging in government closets; hated them challenging the official view of reality.”¹⁴ It is no wonder that Johnson disliked the act so much; it represented a significant incursion into what had long been executive and bureaucratic prerogative. FOIA enacted a version of a “right to know” and pledged to protect the “freedom” of information that first had been conceptualized and developed in the early postwar and Cold War effort to instill Western democratic values abroad through the ideal of a free, independent press. It was also, from a president’s perspective, a pain in the ass.

Cross’s book is largely unreadable today because of the success enjoyed by those who initially relied on Cross to advocate against secrecy. It collects and restates a set of common law and early statutory doctrines that it helped make obsolete via modern statutes and, in some instances, state constitutions. The book remains interesting for two reasons, however: first, for rehearsing a set of general claims and theoretical proclamations about the necessity of information access for a democratic political system, claims that have proven robust and long-lived; and, second, for Cross’s strategic decision ultimately not to strongly pursue a constitutional basis for access to information.

It is not that Cross ignored the possibility or value of a constitutional right to know. After all, he strongly advocated a constitutional right of access under a broadly interpreted First Amendment. But at least regarding the federal administrative state, the bulk of his book was instead an argument for a lesser, second-best solution—amendment of the APA. He closed The People’s Right to Know with the argument that “the time is 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, the public, and the press. The powers of Congress to that end are not unlimited but they are extensive.”¹⁵

Cross did not explain the distinction he saw between a constitutional right to information and a statutory obligation on the state to disclose, nor did he suggest whether he or his press collaborators should prefer one to the other. They were alternatives to the same goal, and he considered the statutory path the more likely one to succeed. Cross no doubt found this worthy of a lament, but he clearly did not view it as a reason to stop his advocacy.

The distinction between statutory and constitutional rights seemed to make a greater difference to the next generation of legal advocates, when leading First Amendment scholar Thomas Emerson took up the same issue in 1976.16 A civil libertarian and theorist of civil and political rights, Emerson hoped to place the right to know within the First Amendment and alongside his own preferred theory of the amendment as protecting the right of the speaker to self-fulfillment through self-expression, a theory he had previously developed across a series of articles and books.¹⁷ The right to know, he argued, could plug the holes left by the First Amendment’s primary purpose of protecting speech and the press. Among other things, it could protect a right to read, listen, or see others’ communications that the state attempts to block, to restrict the state’s ability to shape the information it communicates, and in some limited contexts (specifically broadcasting) to allow the state to regulate content to expand available viewpoints.¹⁸

More important for present purposes, however, Emerson viewed the concept as including “a constitutional right in the public to obtain information from government sources necessary or proper for the citizen to perform his function as ultimate sovereign.” The right would flow directly from the First Amendment, as an element of enabling democracy “to work,” or enabling the people to maintain their “ultimate decision-making authority” as a “fourth branch of government.” Although not the “sole purpose” of the broad First Amendment right, Emerson argued, access to government information “is surely a main element of that provision and should be recognized as such.” This right would extend, “as a starting point, to all information in the possession of the government.” And he meant his sweeping statement to be taken literally, as access to all information by everyone—because, he asserted, “it is hard to conceive of any government issue that would not be relevant to the concerns of the citizen and taxpayer.”¹⁹

But “all” did not in fact mean all. Emerson immediately backslid, readily conceding “exceptions” to this right that included the president’s “right to executive privilege,” “sensitive national security data,” trade secrets, and so on. Privacy, too, needed protection. Given his classical liberal orientation to the state, Emerson found the relationship between the right of privacy, which secures the individual’s autonomy against the state’s intrusion, and the right to information, which protects the citizen’s political authority, particularly vexing. Each is a paramount right of private citizens, and yet they come into conflict when the state holds information about an individual. Emerson saw no easy answers in reconciling the conflict because he did not trust the government to resolve the issue by determining the relative values of the rights in particular instances, nor did he trust courts to properly “balance” the rights in individual cases. To resolve the conflict, he proposed a rule in which the right of privacy trumps the right to information, thereby privileging individual autonomy over the citizen’s right of political participation. Having conceded the obvious point that the privacy right has no clear definition or boundary, he preferred a clear rule protecting privacy to a standard that would invite courts to balance privacy against information access.20 Judicial authority might be paramount, but courts could not be trusted to weigh rights against each other.

To summarize, Emerson viewed the right to information as an essential element of the First Amendment’s broad scope. It could bend to the state’s legitimate needs, although he deferred comment on the issue of how and to what extent this bending would occur. But the right must give way, at a minimum, when in conflict with the individual’s right to privacy.

How is Emerson’s constitutional right distinct from the federal FOIA? The easy partial answer is that the former would apply to everything—to Congress and the judiciary, and to every state and local unit of government. But FOIA had already existed for a decade by the time Emerson’s article was published, and it provided a good case study for how well or how poorly a right to information might operate. Curiously, Emerson barely mentioned the statute, and only after he had offered his constitutional scheme. He noted that FOIA “adopts much of the basic pattern just outlined”—a peculiar construction regarding a statute that had come before his basic pattern. He complained in passing that some of the statute’s exceptions are “excessively broad,” but he praised its mechanisms for judicial review and concluded by stating that “acceptance of the constitutional right would provide a firm foundation for further development and close gaps in the legislative structure,” gaps that he did not describe in any detail.²¹

Indeed, the article’s absences and utter lack of grounded realism and institutional detail are extraordinary, especially in contrast to Cross’s work. Emerson ignored the case law that had already built up around FOIA, as well as the 1974 amendments intended to strengthen the statute in the wake of that case law and frustrations with the statute’s enforcement and reach. Nor did he demonstrate any interest in imagining how an abstract constitutional right would avoid FOIA’s shortcomings. Nor did he foresee the waning of the Supreme Court’s interest in expanding civil rights and civil liberties or how his abstract right might survive an increasingly conservative judiciary and self-protective executive branch. Emerson merely assumed that a broadly understood constitutional right would surely provide broader protection than a statutory right with explicit obligations. Unlike Cross, who correctly foresaw little chance that courts, much less Congress, would find or create such a right, Emerson assumed that, at least as an academic matter, the right was not only necessary but obvious and, really, already existed without acknowledgment.

Cross correctly recognized the best path for achievable legal reform, whereas Emerson argued his case poorly and failed to contemplate the potential shortcomings of his approach. I contrast Emerson with Cross to highlight the point that Emerson’s desire to wish away the difficult questions FOIA has faced since its inception is symptomatic of a widely held desire to solve the administrative and bureaucratic problem of the state’s information asymmetries through the judicial application of constitutional rights. The notion that the right legal mechanism can fix secrecy has permeated the assumptions of generations of transparency advocates and has been abandoned only in the present by those who privilege data, markets, or WikiLeaks-style hacking over the law’s menu of solutions.22 It continues to influence some constitutional law scholars who view information access as part of a broad reading of the First Amendment’s protection of the right to self-government and free speech.²³ As the example of Emerson suggests, this has sometimes led to the view that if only the right of access were constitutional rather than statutory the state wouldn’t hold as many secrets and we would have a more democratic, accountable government, one more thoroughly protected against antiliberal and anticonstitutional forces.²⁴

First, courts would have to balance informational access against the recognized privileges the executive branch has over certain types of information—the types most likely to be at stake in disputes that would be litigated. Examples of such conflicts abound, not only in the difficult theoretical balance between privacy and freedom of information that Emerson discussed, but also in the famous instance of the Supreme Court’s decision in Nixon v. United States (1974), in which the Court was forced to balance the president’s right to withhold information clearly within his informational privilege against the need for information in an ongoing criminal investigation. And second, courts have demonstrated limited courage in the face of executive recalcitrance, standing up to presidents at certain moments (for example, against the Nixon administration in its second term25) and lying down in others (for example, siding with the George W. Bush administration in the early part of its Global War on Terror²⁶). FOIA has been unevenly enforced, as transparency advocates regularly complain.

It is thus not clear that the administration and enforcement of a constitutional right would prove much different from the administration and enforcement of a statutory one. The latter’s imperfections are determined in part by the countercommand of alternative constitutional rights and privileges and in part by the specific facts in the case or controversy that a court would be asked to resolve when called upon to enforce an information right. Furthermore, the sprawling nature of the bureaucratic apparatus and asymmetric nature of information about what the state holds, as well as the abstract nature of defining what constitutes “information,” can limit the judicial regulation of transparency just as much as the courts’ legal authority—if not more so (as I argue below). Those issues do not simply disappear when the right is enshrined in something higher up the ladder of legal authorities than a statute.

Second, statutes have status, too, and can themselves become quasi-constitutional. William Eskridge and John Ferejohn argue that when presidential administrations and administrative agencies interpret, implement, and enforce certain especially ambitious and resonant statutes over time, such laws not only fill in constitutional gaps but become “super-statutes” that prove as defining and consistent with the nation’s moral character as constitutional provisions.27 The Administrative Procedure Act, of which FOIA is a part, is one such statute. It provides, in Eskridge and Ferejohn’s words, a “framework for understanding most national lawmaking” in a manner that has eclipsed the Constitution’s delegation of legislative authority to Congress.²⁸ Tom Ginsburg has made a similar argument in a different way, by considering the constitutional/administrative law debate comparatively and finding that, across different nations, administrative law is constitution-like in its reflection of local values, in its endurance over time, and in its detailed control over administration.²⁹

As a matter of substantive law, FOIA acts like a constitutional provision by providing a baseline of rights upon which individuals can rely to seek redress and a framework of procedures and obligations for the state to follow. As Frederick Schauer has noted, the impact of FOIA and its state analogs on publicly available information far outweighs that of the First Amendment.³⁰ Its status transcends the seemingly technical nature of the administrative procedures it has established. David Pozen has suggested that FOIA might enjoy the status of a super-statute because it “introduced a norm of open access to government documents that has commanded deep public loyalty, taken on a quasi-constitutional valence, and spawned a vast network of imitator laws at all levels of United States government and in democracies around the world.” This is clearly true as a symbolic matter; as Pozen notes, the statute “entrenched a dramatic normative shift in Americans’ expectations of government.”³¹

Indeed, FOIA and the analogs enshrined in state statutes and constitutions (some of which are imitations of the federal model, others of which came first) seem constitutional. The statute’s procedures to request information establish a right that is better-known and more frequently utilized by concerned members of the public than most of the rights created by or inferred from the Constitution itself. Although they may legally do so under the federal Constitution, those few U.S. states that limit the right of information access to their own citizens seem weirdly provincial (and, moreover, create a limitation that a noncitizen can easily circumvent), as if a Virginian would have lesser rights of free speech when she crossed the border into Tennessee.³² With its procedural norms established in the language of freedoms and rights, FOIA gives a constitutional aura to what might otherwise be a pedestrian administrative statute while simultaneously creating constitutional standing for individuals that would not automatically be available under a vague constitutional right.³³ Only lawyers would view the APA as a super-statute; most concerned citizens not in government service, by contrast, view FOIA and the transparency it promises to impose as a foundational law that recognizes and protects their essential right to information.

FOIA’s right of access has endured for more than fifty years, formally expanding through legislative amendment and only rarely and narrowly contracting by court decision. Indeed, its status as a statutory right, rather than a constitutional right, has allowed and even invited iterative reform by amendment. It has created enduring norms, not least by specifying administrative rules in ways that constitutions do not. The right to request documents and attend a public meeting affects the everyday encounters of the public with the state, as well as the public’s everyday imagining of how the state works and should work. Without in fact being constitutional, FOIA embodies a kind of popular constitutionalism via statute. In their administration and the public’s experience, FOIA, its state analogs, and similar open government statutes may not represent the wonders of boutique, high-end constitutional litigation, but they supply an accessible right that anyone can fairly easily attempt to enjoy. In sum, FOIA might not gain anything by constitutionalization, and it’s not clear whether Americans have lost anything from its status as a lowly federal statute.

Like Harold Cross and Thomas Emerson, many current U.S transparency advocates view the judiciary as the best neutral arbiter to resolve disputes and enforce FOIA as Congress intended, reviewing agency refusals to disclose de novo.34 But it is not clear why anyone would look upon the judiciary’s five-decade record in interpreting and enforcing FOIA and declare that the answer to excessive secrecy is to marginally increase judicial scrutiny via a constitutional right. In the federal system, courts have simply not proven to be a bulwark against secrecy when an agency is willing to defend in court its refusal to disclose information under the statute.³⁵ The resistance of courts to efforts to constitutionalize a right to know seems to stem from more than just the lack of a clear doctrinal hook. The resistance seems ingrained, almost basic to the judicial response to challenges to the executive branch’s informational authority.

We can speculate about the cause of the judiciary’s reticence. No doubt courts occasionally, if not frequently, consider themselves insufficiently competent to second-guess the government regarding national security information, or about the need to protect information the disclosure of which would harm the internal workings of policy development and institutional operations. Then-professor Antonin Scalia’s early complaint that Congress conscripted the judiciary in FOIA’s unwise and unconstitutional overreach into the executive branch might hold an additional clue: perhaps courts view themselves as protecting the executive from FOIA’s intrusion—even if the result of this deference is that FOIA ultimately requires less of the executive branch than Congress hoped and intended.36 I am not suggesting that courts capitulated to Scalia’s special pleading, but it is possible that courts have clipped FOIA enforcement at the margins because they implicitly agreed with his reasoning (though perhaps not his dismissive tone). Sometimes, and for some agencies, those margins have proved to be fairly thick.

It is therefore not clear why or how the constitutional status of a right would solve the institutional competence, risk aversion, and separation-of-powers issues that courts already face in enforcing FOIA and thereby overcome the judiciary’s reluctance to force disclosure in difficult cases. The Constitution has proved effective at creating institutional tension, but not at resolving it.

Perhaps the problem lies not with FOIA, or with Congress, or with the courts, or with the Constitution. Perhaps the underlying transparency project that Cross, Emerson, and current advocates have undertaken misunderstands the state and its potential for being opened. The project is a significant, consequential one, but it might not be the transformative one its proponents have hoped to call forth. FOIA might only have limited utility as a means to achieve an effective or accessible state, and as such it might work best if recognized as an administrative, essentially bureaucratic apparatus rather than as a provider of transcendent, constitutional-ish rights.

I make this argument elsewhere, but allow me to summarize it here.³⁷ FOIA and other transparency laws assume the potential for a direct communicative act. That is, they assume that the state, as a producer and repository of information, can control the documents it possesses and can be made to release those documents to the public; that the state’s information clearly manifests government actions and motivations; and that once it enjoys access to this authoritative information, the public will act rationally upon it, establishing a virtuous circle in which the public holds the state accountable through democratic levers and the government bureaucracy responds accordingly. This information theory of governance views the state as operating through the disclosure and nondisclosure of information, whereas the public acts better or worse based on the amount of information to which it has access.

This assumption fundamentally misunderstands the contemporary state. As an organization and a geographically dispersed entity, the state sprawls. It produces an unarchivable, ever-expanding body of information that lacks a singular and coherent meaning and that is continually kept secret and leaked in a manner that the bureaucracy cannot itself control. No legal authority, of whatever type, can perfectly manage this mess. A constitutional right might provide some additional leverage against the contemporary bureaucratic state, but its enforcement cannot magically wish away the implausibility of information control. FOIA is an administrative law because the state’s information is fundamentally an administrative issue, best treated in the political process of frequently amended statutes and in the bureaucratic processes of public administration.

In a brief comment in the same issue of the law review in which Thomas Emerson’s 1976 article on a right to know appeared, Walter Gellhorn, a key founder of modern administrative law, dismissed Emerson’s argument for its airy abstractions based on a bizarre faith in the judiciary to interpret and apply a minimally defined right. Gellhorn wrote, “We mislead ourselves by presenting every problem that confronts contemporary society as a justiciable issue to be decided by aloof judges under the rubric of constitutional principle.”38 We also mislead ourselves in thinking that every problem that FOIA has failed to solve can find its solution through the perfect statutory amendment, or the perfect institutional innovation, or if only those judges had some backbone, or if we could only get it constitutionalized. The problems that FOIA has faced for five decades—and that every effort to regulate democratic secrecy faces—are intractable features and bugs (at least in the United States) of a constitutional system that disperses authority within a vast administrative state.

6. Cross borrowed the phrase “neglected constitutional right” from an earlier essay, but he was the most prominent early advocate. “Access to Official Information: A Neglected Constitutional Right,” Indiana Law Journal 27 (1952): 209–30. Zechariah Chafee noted the problem of expanded secrecy in the postwar era, but he did not develop the First Amendment argument that Cross would later pursue. Zechariah Chafee Jr., Government and Mass Communication, Vol. 1 (Chicago, Ill.: University of Chicago Press, 1947), 12–13. In 1948, Alexander Meiklejohn had claimed that the democratic values inherent in the First Amendment must allow the public access to information, but he never specifically considered the relevance and problem of state information. Alexander Meiklejohn, Free Speech and Its Relations to Self-Government (New York: Harper & Brothers, 1948), 26, 66, 89.

7. Cross, The People’s Right to Know, 246. On the history of the APA, especially as a political solution to the response to the administrative state’s growth in the New Deal, see Ronen Shamir, Managing Legal Uncertainty: Elite Lawyers in the New Deal (Durham, N.C.: Duke University Press, 1995); George B. Shepherd, “Fierce Compromise: The Administrative Procedure Act Emerges from New Deal Politics,” Northwestern University Law Review 90 (1996): 1557–1683; McNollgast, “The Political Origins of the Administrative Procedure Act,” Journal of Law, Economics, and Organization 15 (1999): 180–217.

8. The APA’s original government information provision included exceptions for information involved in “any function of the United States requiring secrecy in the public interest” and allowed information not otherwise barred from disclosure by statute to be made available by published rule “to persons properly and directly concerned except information held confidential for good cause found.” Cross, The People’s Right to Know, 226 (quoting 5 U.S.C. §§ 1002(1), 1002(c) (1946)). In addition to analyzing the APA’s weaknesses, Cross’s book also listed all of the existing statutory exceptions from disclosure. Cross, The People’s Right to Know, 231–34.

9. For historical accounts of FOIA’s development that begin at this point and focus on the political, and especially interparty, nature of the statute’s enactment, see Michael Schudson, The Rise of the Right to Know: Politics and the Culture of Transparency, 1945–1975 (Cambridge, Mass.: Harvard University Press, 2015), 37–62; Daniel J. Metcalfe, “The History of Government Transparency,” in Research Handbook on Transparency, ed. Padideh Ala’i and Robert G. Vaughn (Northampton, Mass.: Edward Elgar, 2014), 247–62. My focus on the preeminent role that the press played privileges the conceptual underpinnings for that political struggle, which long predated the Moss Committee’s work.

17. For an overview of Emerson’s impressive academic and legal career, see Louis I. Pollak, “Thomas I. Emerson: Pillar of the Bill of Rights,” Yale Law Journal 101 (1991): 321–30. His most influential works were an early casebook on civil rights, Thomas I. Emerson and David Haber, Political and Civil Rights in the United States (Buffalo, N.Y.: Dennis & Co., 1952), and his book summarizing his theory of the First Amendment, Thomas I. Emerson, The System of Free Expression (New York: Random House, 1970).

23. The contemporary scholar who most closely follows Emerson is Heidi Kitrosser, whose work invokes but does not rely solely upon the First Amendment to support her constitutional argument against an expansive executive privilege. Heidi Kitrosser, “Secrecy and Separated Powers: Executive Privilege Revisited, Iowa Law Review 92 (2007): 489–543, at 517–18. For more explicit Emersonian takes, see Adam Cohen, “The Media That Need Citizens: The First Amendment and the Fifth Estate,” Southern California Law Review 95 (2011): 1–85; and Barry Sullivan, “FOIA and the First Amendment: Representative Democracy and the People’s Elusive ‘Right to Know,’” Maryland Law Review 72 (2012): 1–84. The First Amendment scholar Vincent Blasi provided a bridge between Emerson and the present. Vincent Blasi, “The Pathological Perspective and the First Amendment,” Columbia Law Review 85 (1985): 449–514, at 489–93. More recently, David Pozen provides a sensitive consideration of the First Amendment’s applicability to government secrecy. David E. Pozen, “Deep Secrecy,” Stanford Law Review 62 (2010): 257–339, 307–08.

27. William N. Eskridge Jr. and John Ferejohn, A Republic of Statutes: The New American Constitution (New Haven, Conn.: Yale University Press, 2010), 33. Their initial article introducing the concept was William N. Eskridge Jr. and John Ferejohn, “Super-Statutes,” Duke Law Journal 50 (2001): 1215–76.

35. For empirical studies of judicial deference under FOIA, see 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; Susan Nevelow Mart and Tom Ginsburg, “[Dis-]Informing the People’s Discretion: Judicial Deference Under the National Security Exemption of the Freedom of Information Act,” Administrative Law Review 66 (2014): 725–84; Paul R. Verkuil, “An Outcomes Analysis of Scope of Review Standards,” William and Mary Law Review 44 (2002): 679–735. For more general complaints about the judiciary’s failure to follow FOIA’s statutory mandate to perform de novo review of agency decisions, especially in the national security area, see Pozen, “Freedom of Information Beyond the Freedom of Information Act,” 1118–23; Margaret B. Kwoka, “Deferring to Secrecy,” Boston College Law Review 54 (2013): 185–242.