Katie Townsend and Adam A. Marshall
ECHOES OF THE PAST—AN INTRODUCTION
“Improper denials occur again and again,” lamented the House committee, citing what it viewed as federal agencies’ “almost automatic refusal” to disclose basic information under the act.1 The Senate committee’s report was equally critical: the law is “full of loopholes which allow agencies to deny legitimate information to the public,” including simply “to cover up embarrassing mistakes or irregularities.”2
For any journalist or citizen acquainted with the federal Freedom of Information Act (FOIA), these words from members of the Ninetieth Congress undoubtedly sound familiar. Yet it was not FOIA they were talking about. These frustrations were directed toward FOIA’s predecessor, the 1946 Administrative Procedure Act (APA). Nearly two decades after its enactment, that law’s basic disclosure requirement had come to be regarded as a failure. Although crafted with the laudable intention of ensuring executive branch transparency, the APA’s “public information” section was vague and depended on executive branch officials to “do the right thing” when deciding what information the public should have.3
Congress passed FOIA in 1966 to correct those deficiencies. FOIA was a “remedial”4 statute intended to foster an “informed, intelligent electorate”5 by creating a judicially enforceable right to request agency records. The debate over FOIA was fierce, but in the end Congress sought to strike a “workable balance”6 between the public’s right to know and the legitimate need for government secrecy by coupling a broad general mandate of access with nine specific categories of exemptions.7
Fifty years later, however, there is widespread concern among journalists, academics, lawyers, and the general public that FOIA’s “workable balance” has tilted so far in favor of government secrecy that, like the 1946 APA provisions before it, the act is failing to serve its core purpose. In FOIA’s first years, government agencies reported denying less than 1 percent of all requests in full or in part.8 In the decades since, that percentage has exploded. According to data compiled by the Department of Justice, in 2008 almost 22 percent of all requests were denied in part or in full based on an exemption.9 Eight years later, that number had risen to 42 percent.10 This rise in denials, which has been enabled by judicial decisions broadly applying FOIA’s exemptions, represents a worrisome trend. From legal opinions written by the Department of Justice11 to nuclear plant safety reports12 to evidence previously introduced in open court,13 the list of agency records now shrouded in secrecy goes on and on. As one commenter put it, for many records, “the balance is being struck in favor of secrecy,” and under FOIA’s current framework “there is no practical way that this wholesale rejection practice can be challenged.”14
Although a number of factors have contributed to the current state of FOIA, a significant limit to the law’s efficacy stems from the manner in which its exemptions were crafted and have been applied. As the act stands today, courts have no discretion to order an agency to release requested records that fall within an exemption, even if the information they contain is of exceptional public interest and is not required to be withheld.15 Indeed, even if judges believe there is no good reason for a particular exempt record to be kept secret, their hands are tied both by the language of the statute and broad precedent interpreting the scope of FOIA’s exemptions.
In this chapter we submit that, as was true fifty years ago, “the needs of the electorate have outpaced the laws which guarantee public access to the facts in Government.”16 FOIA should be strengthened by the addition of a public interest “safety valve”—an override mechanism to ensure that the most important information needed by self-governing citizens will see the light of day. Although two of FOIA’s privacy exemptions already incorporate a species of public interest balancing, those exemptions concern individual privacy interests. Public interest balancing in the context of those exemptions thus serves a somewhat distinct function and has been limited in its application by court decisions.17 We consider the potential for a general public interest balancing test that would require the disclosure of agency records falling within the scope of one of FOIA’s discretionary exemptions if the public interest in their release clearly outweighs the government’s interest in withholding them. This inquiry would not replace the analysis of whether an exemption applies but would add an evaluation of the information itself to determine, even if an exemption applies, whether the public’s interest should nonetheless require disclosure.
We begin by reviewing the purpose and structure of FOIA as well as relevant impediments to its effectiveness that have arisen or intensified over the past fifty years. Then we discuss the nature of a proposed public interest balancing test for FOIA’s discretionary exemptions, exploring it alongside other, similar balancing tests applicable under common law and the freedom of information (FOI) laws of other nation-states. Finally, we consider how the addition of such a balancing test to FOIA could affect requesters, agencies, courts, and Congress.
THE EBB AND FLOW OF THE PUBLIC’S RIGHT TO KNOW
FOIA’S EFFORT TO PROMOTE AN INFORMED DEMOCRACY
FOIA reflects the view that access to government information plays a key role in a healthy democracy. With the rise of the federal administrative state over the course of the twentieth century, decisions affecting the everyday lives of citizens were increasingly made by the executive branch of government, not the legislative branch, and without clear mechanisms to hold executive agencies accountable. Congress made its first systematic attempt to bring transparency to these agencies in the original APA, which generally required them to make public their rules, opinions and orders, and certain records.
The APA’s disclosure scheme contained significant exceptions, however, and by 1966 it was clear the act was deficient for two primary reasons. First, the standards governing what information could be kept secret were vague; access could be denied “for good cause” or if secrecy was, in the agency’s view, in the “public interest.”18 In practice, this meant that agencies could almost always refuse to turn over information.19 Second, the act’s disclosure provision lacked any enforcement mechanism.20 If a requester disagreed with an agency’s refusal to disclose information, she had no recourse.
In enacting FOIA, Congress attempted to remedy these deficiencies in several ways. It limited agencies’ discretion to withhold information by requiring that all agency records be disclosed upon request unless they fall within one of the act’s nine enumerated exemptions.21 Those exemptions, which (with a few modifications) still apply today, specify certain types of records that may be withheld based on interests Congress has determined are worthy of protection.22 Congress also made most of FOIA’s exemptions permissive rather than mandatory. As the Senate Judiciary Committee explained in 1974, if a record falls within an exemption, it “may be withheld where the agency makes an affirmative determination that the public interest and the specific circumstances presented dictate that the information should be withheld.”23 In other words, Congress originally envisioned each exemption as a balancing test, weighing potential harm against the public interest in disclosure to create “a workable balance between the right of the public to know and the need of the Government to keep information in confidence.”24
Notwithstanding Congress’s intent, since FOIA’s enactment, agencies have largely viewed its exemptions not as the outer bounds of what may be withheld from the public if necessary but rather as a full authorization to withhold any and all information that, in their judgment, falls within the scope of the exemption.25 Requested records are scrutinized not only by agency FOIA officers but often by agency superiors, who may be concerned with the political ramifications of release.26 After records are examined within the agency of their origin, they may be sent on for additional review by other government entities, sometimes including the White House itself.27 This multistage review process likely contributes not only to delay28 but also to the extensive redaction of records and the frequent outright denials of requests.29 Requesters encounter so much difficulty wrangling the release of records from agencies that the House Committee on Oversight and Government Reform recently published a report simply titled “FOIA Is Broken.”30 According to one journalist who contacted the committee, “I often describe the handling of my FOIA request as the single most disillusioning experience of my life.”31
The instructions in the 2013 United States Citizenship and Immigration Services (USCIS) FOIA processing manual, a guide for agency employees responding to requests, provide a telling example of agency implementation of FOIA.32 One section discusses Exemption 7(C), which permits agencies to withhold records compiled for law enforcement purposes if disclosure could reasonably be expected to constitute an unwarranted invasion of personal privacy.33 As discussed later in the chapter, Exemption 7(C), along with Exemption 6, calls for a balancing of the public interest in the records with the privacy interest of the person they concern.34 Thus, even if a record implicates a privacy interest, the agency is required to consider the public’s interest in disclosure in determining whether the record may be withheld.35
The USCIS FOIA manual, however, contains no instructions on implementing the balancing test required by Exemption 7(C). In fact, the manual instructs USCIS personnel to categorically redact and deny access to certain information—including the names of all immigration officers identified in law enforcement records or conducting law enforcement activities—pursuant to that exemption.36 According to the manual, it is irrelevant whether there is a public interest in disclosure of such information in a given case; the FOIA officer is always to withhold it. That an agency refuses to consider the public interest in connection with an exemption when Congress has explicitly required it leaves little room for hope that agencies routinely consider the public’s interest when determining whether to invoke other discretionary exemptions where no such balancing is expressly required by the act.
To be sure, other avenues for providing government information to the public have been adopted since FOIA’s enactment, including the publication of “open data” on the Internet.37 These government data sets are certainly valuable, but the voluntary disclosure of such information is not a substitute for FOIA for at least two reasons. First, open data, for the most part, consists of uncontroversial factual material, such as hourly precipitation data38 or farm program payments.39 Although such data are important and useful for some applications, many other types of extremely consequential government information will never be voluntarily released. It is highly unlikely that the public will ever see an open data portal containing, for example, Justice Department memos analyzing whether it is legal to kill American citizens abroad without a trial.40 Second, without an enforceable legal mandate of access, agencies may remove such data from the Internet as policies and priorities change. FOIA exists as a mandate of openness that is not subject to the whims of different administrations, and this mandate is most important when it comes to records the government would rather hide away.
JUDICIAL ENFORCEMENT AND ITS LIMITATIONS
Congress anticipated agency resistance to transparency when it devised FOIA. Indeed, the 1966 House Report notes that “no Government employee at any level believes that the ‘public interest’ would be served by disclosure of his failures or wrongdoings.”41 Accordingly, FOIA includes a judicial review provision to remedy the APA’s lack of an enforcement mechanism. Under FOIA’s framework, a dissatisfied requester may bring an action in federal court in which a judge is required to conduct a de novo review of the agency’s handling of the request, meaning no deference is supposed to be given to the agency’s determination as to whether the records are exempt from disclosure under the act. Courts are also authorized to conduct an in camera (nonpublic) review of the records, viewing unredacted versions in chambers to assess the validity of any claimed exemptions. FOIA also places the burden on the agency to justify its withholdings; unless an agency demonstrates that they are lawful, the requester should prevail. If a court finds that records were improperly withheld, it can order the agency to produce them.42 Together, at least in theory, these provisions create a uniquely powerful regime of judicial oversight of agency action.
Despite Congress’s desire for vigorous judicial enforcement of FOIA, courts have been unenthusiastic about conducting the type of review that the act envisions.43 Commentators have described the judiciary’s engagement with FOIA as “anemic”44 and “a de facto system of deference.”45 Notwithstanding FOIA’s requirement that courts apply the most searching, nondeferential standard of review, a study of more than 3,600 FOIA cases between 1990 and 1999 found that district courts upheld agencies’ nondisclosure decisions approximately 90 percent of the time—a rate far higher than the rate of judicial approval of other types of agency actions that are reviewed under a deferential standard.46
A full exploration of the reasons for the judiciary’s lukewarm embrace of FOIA is beyond the scope of this chapter, but two factors warrant consideration here. The first concerns the nature of the exemptions themselves. Notwithstanding Congress’s intent for agencies to use FOIA’s exemptions only as an outer limit of what may be withheld, the statutory language chosen by Congress, for the most part, sets up a binary test: either records fall within an exemption or they do not. In one case concerning Exemption 7, the U.S. Supreme Court relied on the act’s categorical wording to reject the argument that records should be released because of the public’s interest in their disclosure, stating that “Congress … created a scheme of categorical exclusion; it did not invite a judicial weighing of the benefits and evils of disclosure on a case-by-case basis.”47 Because courts do “not possess statutory or inherent authority to order disclosure of documents properly withheld pursuant to FOIA exemptions,”48 the judiciary’s role is generally limited to determining whether or not the exemption invoked by the agency actually applies.
The effect of the binary nature of a court’s review of agency exemption claims is exacerbated by expansive judicial interpretations of the scope of FOIA’s exemptions. Whether it is classification,49 trade secrets,50 civil discovery privileges,51 law enforcement records,52 or financial regulations,53 the trend within the courts has, by and large, been to expand the reach of FOIA’s exemptions. Broad interpretations of exemptions have created precedent that makes obtaining access to comparable agency records difficult, if not impossible, even under more favorable factual scenarios.
A second factor inhibiting judicial review of agency FOIA determinations concerns the nature of FOIA litigation itself—specifically, the procedural and structural advantages that agencies enjoy over plaintiffs. In most FOIA lawsuits, after a requester has exhausted her administrative remedies, she files a complaint alleging that an agency has improperly withheld records. The agency then answers, denying that it has improperly denied access. The next step in a typical civil lawsuit would be discovery, but courts almost never permit discovery in FOIA disputes.54 Instead, the agency simply moves for summary judgment on the basis of an affidavit from an agency employee stating that the records or portions thereof that have been withheld are properly exempt. Such affidavits are generally given great weight by judges, and absent some inherent contradiction or evidence of bad faith, they are frequently all an agency needs to prevail.55 Indeed, even when an agency fails to meet its burden to justify its withholdings, courts frequently ask for a more detailed affidavit rather than rule against the agency.56
The FOIA plaintiff, on the other hand, typically has little information to bolster her case. As there has been no discovery, and as the plaintiff is unable to cross-examine the agency’s declarant, the only information available to the plaintiff is that which the agency may have provided in support of its motion for summary judgment or in a Vaughn index (an index prepared by the government setting forth a brief description of the records and an explanation of why they are exempt)57 or what can be found in the public domain. The plaintiff can request that the court conduct an in camera review of the records at issue, but such requests are frequently rejected.58 A FOIA plaintiff may have a powerful explanation for why access to the records would serve the public interest, but such explanations are deemed legally worthless for the vast majority of exemptions; and even for Exemptions 6 and 7(C) discussed earlier, in which the public interest must be taken into consideration, courts have significantly diminished the importance of this principle. Faced with broadly interpreted exemptions applied without consideration of the public’s interest in disclosure and with substantial deference to agency determinations, it is unsurprising that FOIA requesters have found little success in the courts.
BALANCING THE PUBLIC INTEREST
For those troubled by FOIA’s trajectory over the past several decades, how might the “workable balance” that Congress sought to strike be more successfully achieved, to better serve the act’s core purpose of promoting an informed electorate while, at the same time, preserving the government’s ability to withhold information when secrecy is necessary? One means of doing so would be an amendment to FOIA requiring agencies and courts to balance the public’s interest in disclosure against the agency’s interest in secrecy when determining whether requested information falls within one of the act’s exemptions. The idea of incorporating a balancing test into an information access regime is not new. The laws of many nations incorporate some species of public interest balancing, and in 2014 the Senate considered but ultimately rejected a proposed public interest balancing test for Exemption 5.59 Under that proposal, the deliberative process privilege and attorney work-product privilege would have been subjected to a straightforward public interest balancing test, and the attorney-client privilege could be overridden by a “compelling public interest in disclosure.”60 As described in more detail below, the test we propose is broader in some ways and narrower in others than other nations’ laws and the previously introduced FOIA proposal. It would apply to all existing discretionary exemptions, not by supplanting them but by providing a public interest “safety valve” so that records of particularly great importance to the public could not be shielded from disclosure.
INTERNATIONAL AND COMMON LAW EXAMPLES OF PUBLIC INTEREST BALANCING
Under the common law of England, a citizen had a right to inspect public records if she could show a specific interest in the records and a court, weighing that interest against the government’s interest in secrecy, determined that the records should be disclosed.61 This common law right was, by and large, transferred to the United States, although it has primarily been limited to the context of access to judicial records.62 U.S. courts have also broadened the type of interests that can be weighed in such balancing to include the desire of citizens and the press to keep an eye on the activities of the government.63
In one state—New Jersey—the American common law balancing test has persisted with respect to access to executive branch records; individuals have a right to access such records under both the state’s statutory Open Public Records Act (OPRA) and the common law.64 That dual framework can (and does) produce different outcomes when applied to certain records, primarily because the common law test considers the public interest in their release, whereas OPRA does not. In one case, for example, a newspaper sued for access to financial records related to a complex public-private arrangement involving New Jersey’s largest hospital, asserting rights of access under both the common law and New Jersey’s statutory open records law. The trial court held that the records were properly exempt under the statute, but it found that access should be granted under the common law.65 The appellate court affirmed that the records should be disclosed under the common law, finding that the purported harm from their disclosure was speculative on one hand, while on the other that there was a great public interest in ensuring that “public funds … are being spent wisely, efficiently and consistent with the Medical Center’s mission.”66
Many nation-states around the world have incorporated public interest overrides or balancing tests into their statutory information access laws, including Australia, Belgium, India, Ireland, Japan, Mexico, New Zealand, South Africa, and the United Kingdom.67 Although there does not appear to be a comprehensive comparative analysis of the impact of these tests (which would be complicated by differences in the nature of the underlying laws, FOI cultures, and judicial systems68), what is fairly clear is that they have led to the disclosure of important records and are viewed as an important structural feature of FOI laws by the international community. The Council of Europe, for example, has provided a recommendation on minimum standards for FOI laws that requires records falling within an exemption to be disclosed if “there is an overriding public interest in disclosure.”69 The Aarhus Convention, which concerns access to information on environmental matters and has forty-seven signatories, also contains a requirement to consider the public interest before claiming material is exempt.70
The manner in which such an override is implemented in any one country can take different forms. Mexico’s Transparency and Access to Government Information Law, for example, contains a fairly specific public interest override due to the nation’s history.71 This law does not permit information to be withheld when it concerns investigations of grave violations of fundamental rights or crimes against humanity.72 The effectiveness of Mexico’s public interest override was demonstrated in 2005 when a group of lawyers was granted access to hundreds of pages of the indictment of former President Luis Echeverría, who had been charged with genocide in connection with the killing of at least twenty-five student protesters in 1971 by paramilitary groups with whom the president allegedly had been involved.73 Mexico’s public records ombudsperson, the Instituto Federal de Acceso a la Información, noted that the information fell squarely within the crimes against humanity override in the public records law. The disclosure was the first time that such an indictment of a high-level official had been released.74
The United Kingdom’s Freedom of Information Act takes a different approach by separating its exemptions into two categories: absolute and qualified.75 If records fall within an absolute exemption, such as that for the parliamentary privilege, they need not be released.76 However, if a record is subject to a qualified exemption, then the public authority may only withhold the information if “in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.”77 Thus public authorities engage in an all-things-considered balancing of the public interest with respect to most of the act’s exemptions.
Tribunals in the United Kingdom have identified several factors that should be weighed in this balancing, including the public interest in a particular issue, the suspicion of government wrongdoing, the public’s need for a full understanding of the reasons for public authorities’ decisions, the likelihood and severity of prejudice to the interest identified in the exemption, the age of the information, the extent to which the information will advance public knowledge on a topic, and whether the information is already in the public domain.78 There is no set weight to be accorded these factors. After they are considered in an individual case, if the public interest in disclosure is equal to or greater than the government’s interest in secrecy, then the records must be released.79
PUBLIC INTEREST BALANCING AND FOIA
As noted above, two of FOIA’s existing exemptions—Exemptions 6 and 7(C)—already incorporate a species of public interest balancing.80 However, those two exemptions balance the public’s interest in information against an individual’s privacy interest—not the government’s interest in secrecy. In cases interpreting these exemptions, courts have generally interpreted the privacy interests of individuals broadly and the public’s interest narrowly, following a 1989 decision from the Supreme Court that determined disclosure of information merely held by the government about ordinary people does not serve the act’s fundamental democratic function.81 Subsequent cases have sanctioned categorical assertions of certain privacy interests, rejecting the need for a case-by-case assessment of the public’s interest in particular information held by the government.82
The balancing test that we propose, however, is designed to squarely address the “core purpose” of FOIA by weighing the public’s interest in knowing what the government “is up to”83 against the government’s interest in withholding that information. In crafting such a test for FOIA, the statutory information access laws of other nation-states may provide some useful direction, although we do not suggest that they be adopted wholesale. For example, as with the United Kingdom’s law, it is useful to think of FOIA’s exemptions as either absolute or qualified for purposes of applying public interest balancing. Exemption 3, for instance, incorporates other statutes that specifically prohibit the release of certain records and thus can be seen as mandating that such records be withheld in an absolute fashion.84 Because the “balance” for Exemption 3 records has already been decided by Congress in favor of total secrecy, that exemption may be viewed as absolute and not subject to an additional weighing of the public interest on a case-by-case basis. Other FOIA exemptions that Congress has made discretionary, however, would be subject to mandatory public interest balancing. Unlike the United Kingdom’s approach, however, in modifying FOIA we believe there should be no executive branch “veto” of a public interest override,85 which would present separation of powers concerns in the U.S. context and has also led to important information being withheld from the British public.86
With respect to developing the contours of a public interest balancing test for FOIA’s discretionary exemptions, a number of factors should be kept in mind. First, the exemptions that Congress included in FOIA, although perhaps interpreted by courts more broadly than intended, reflect a recognition that the categories of records they address implicate legitimately sensitive interests. That congressional determination is itself entitled to some weight, which could be taken into account by structuring a public interest balancing test so that it requires a showing of “substantial” or “significant” public interest to overcome a discretionary exemption, in contrast to the straight balancing of public and government interests that is performed under the common law. In addition, as discussed in more detail below, a weighted balancing test also may be important to avoid overburdening courts. No matter what form the test takes, however, it is imperative that it be applied on a case-by-case basis. If a public interest test is to function effectively as a safety valve when application of a discretionary exemption would deprive citizens of vital information about their government, neither agencies nor courts should be permitted to deny requests without considering the public’s interest in access to the particular records at issue.
In terms of the nature of the “public interest” that should be taken into account, there is no particular historical concern in the United States that would counsel in favor of limiting public interest balancing to situations involving, for example, serious human rights violations, as Mexico has done. Instead, agencies and courts should weigh any and all factors that seem relevant to FOIA’s presumed public of an informed, intelligent electorate. Congress could, of course, specify factors that should always be considered, which might include the importance of the records to the proper functioning of the democratic process, any suspicion of government wrongdoing, the age of the records, and the public’s desire to understand the reasons for government action or inaction.
Some of these factors can already be found in FOIA and its jurisprudence, at least to some extent. For example, Congress recently placed a twenty-five-year sunset on the deliberative process privilege, one of the privileges incorporated in Exemption 5 that is designed to promote robust and frank discussion within government.87 In limiting the scope of Exemption 5, Congress recognized both that the public has an interest in understanding the reasons for officials’ decisions and that the government’s interest in secrecy fades with time.88 Courts also have recognized that the deliberative process privilege is not available when records relate to government misconduct because “shielding internal government deliberations in this context does not serve the public’s interest in honest, effective government.”89 A “government malfeasance” exception also has been recognized by at least one court within the context of Exemption 8.90 Requiring consideration of the public’s interest under FOIA’s other exemptions would build on these decisions and nurture FOIA’s core purpose: ensuring that citizens know what their government is up to.
A public interest balancing test along these lines would help to remedy both substantive and procedural weaknesses in the act that have emerged during its first fifty years. Substantively, it would ensure that in cases of great public interest a requester would not face impossible odds because of the binary nature of FOIA’s exemptions. Public interest balancing would not be expected to alter the outcome in every case or even most cases, but it would allow requesters to make an argument for disclosure when extraordinary information is at stake.
Procedurally, a public interest balancing test for discretionary exemptions would help to minimize the substantial disadvantages FOIA plaintiffs currently face in litigation. Instead of being limited to arguments based on publicly available information or inconsistencies in an agency’s affidavit, requesters would be able to argue—and courts obligated to consider—the value to the public of the information being sought. Journalists, news organizations, academics, civil society groups, and other members of the public who submit FOIA requests are generally well-equipped to identify and explain to agencies and courts why release of the records they have requested is important. Indeed, in some cases, FOIA plaintiffs might even elect to concede that records fall within a discretionary exemption and place all of their weight behind a public interest argument. This could be especially powerful when the application of an exemption is technically correct but the agency’s rationale for withholding the requested records seems weak, such as the application of the deliberative process privilege to a decades-old “draft” of a history of the Bay of Pigs invasion.91 Instead of being forced to argue that a FOIA exemption should be interpreted narrowly—often in the face of precedent to the contrary—a FOIA plaintiff could simply argue that the public interest in access to the requested records is paramount, focusing the court’s analysis on the core purpose of the act.
PUBLIC INTEREST BALANCING IN ACTION
The addition of a public interest balancing test for FOIA’s discretionary exemptions would, in all likelihood, have the most visible impact at the litigation stage. Although requesters could make, and agencies would be required to consider, public interest arguments at the administrative level, the manner in which agencies have administered FOIA suggests that such a reform would be unlikely to cut back significantly on agencies’ tendency toward secrecy. That being said, where the public interest in disclosure of existing records is indisputably strong, and the government’s interest in withholding them weak or nonexistent, an agency faced with the prospect of losing a lawsuit could rationally be expected to release them. The addition of a public interest balancing test for FOIA’s discretionary exemptions thus has the potential to increase the amount of important information released to the public at the administrative stage without the need for litigation, at least in very clear cases. Congress could even consider incorporating administrative adjudication of such balancing into the functionality of the Office of Government Information Services, the FOIA ombudsperson for the federal government.
Whatever its expected effects on agency behavior, public interest balancing could substantially alter FOIA litigation in the courts for certain types of requesters. Consider how a public interest balancing test could have changed the outcome in a recent D.C. Circuit case that addressed whether a manual used by the Department of Justice called the “Blue Book” was required to be released.92 The Blue Book was created by the Justice Department in response to the botched prosecution of Senator Ted Stevens as a means to educate prosecutors on, among other things, their obligations to disclose exculpatory material to a criminal defendant.93 Despite the enormous public interest in ensuring prosecutors comply with the Constitution, the Justice Department did not make the Blue Book public and denied a FOIA request seeking it, citing Exemption 5 and the attorney work-product privilege.94
A three-judge panel of the D.C. Circuit upheld that denial, citing a line of FOIA cases that expansively interprets Exemption 5 and the work-product privilege, including Schiller v. National Labor Relations Board, a 1992 D.C. Circuit case.95 However, Judge Sentelle, joined by Judge Edwards, filed a separate opinion stating that he believed the court’s decision was correct based on precedent but disagreed with its application to the Blue Book. According to Judge Sentelle, applying that precedent
to the case before us is inconsistent both with the statutory purpose of FOIA and the longstanding values of justice in the United States…. There is no area in which it is more important for the citizens to know what their government is up to than the activity of the Department of Justice in criminally investigating and prosecuting the people. The government certainly has the power to claim a FOIA exemption to hide its internal manuals describing how it goes about that awesome undertaking. But if it chooses to exercise that power, then the people might be forgiven for cynically asking ‘what is it you have to hide?’ … I hope that we shall, in spite of Schiller, someday see the day when the people can see the operations of their Department of Justice. In short, I join the judgment of the majority, not because I want to, but because I have to.96
Given the powerful “concurrence” by two members of the three-judge panel in this case, it is hard to imagine that it would not have been decided differently if Exemption 5 was subject to a public interest balancing test.
There are, to be sure, other upstream and downstream effects that could follow from requiring public interest balancing for FOIA’s discretionary exemptions, such as potentially increasing the volume of FOIA litigation and therefore increasing the burden on an already overworked federal judiciary. It should be noted, however, that even without a public interest balancing test, FOIA litigation is increasing. In fiscal year 2016 alone, more than five hundred FOIA cases were initiated by plaintiffs around the country.97 There also are reasons to think that the addition of a public interest balancing test, as outlined in this chapter, would not dramatically increase litigation or, even if it did, would only increase litigation by individuals and entities that support FOIA’s core purpose. First, as noted above, there may be discretionary exemptions that the government would choose not to assert in the face of a public interest balancing test, making litigation in those cases unnecessary. Second, use of a weighted balancing test that requires a FOIA plaintiff to demonstrate that the public interest is substantial enough to overcome the interest underlying the discretionary exemption—not merely that the government interest in secrecy is outweighed under a straight balancing test—would likely dampen any surge in litigation. Third, even if FOIA litigation did increase, such an increase is likely to come from news organizations and civil society groups that are in a position to make powerful public interest arguments. Currently, a large portion of FOIA requests come from commercial requesters seeking a competitive advantage or profit.98 That type of request does not lend itself to the public interest balancing test outlined above. Conversely, individuals and entities acting on behalf of the public at large will receive a boost to their litigation prospects, which could encourage cases that more closely align with FOIA’s purpose.
Even if the number of FOIA cases remained the same, the addition of a public interest balancing test for FOIA’s discretionary exemptions could still result in more work for the judiciary. A judge presiding over a FOIA case would be required not only to determine whether records fall within an exemption but also to engage in a balancing analysis. Given courts’ history of deference to agency arguments discussed previously, it is certainly possible that courts faced with such a task will continue to defer to agencies when weighing public interest arguments. At the same time, such arguments generally do not involve an evaluation of highly technical issues or issues for which agencies have special expertise. Indeed, courts frequently engage in weighing the public interest in other contexts, including in cases involving access to judicial records.99 And judges are, of course, also members of the public who read the newspaper and discuss important issues of the day with family and friends. Conducting a public interest balancing analysis thus, in some ways, requires fewer judicial resources than an in camera review and draws on knowledge and experience judges already have.
Finally, for its part, Congress could face pressure from agencies to increase the number of Exemption 3 statutes that would not be subject to the public interest balancing test applicable to discretionary exemptions. Agency employees might be concerned that with the ever-present possibility of a public interest override, there is little predictability or certainty as to what may be released, chilling communications and the creation of certain records. But this seems to us like a risk well worth taking. Ultimately, being a public employee necessarily entails some understanding that one’s work is for the public and may become the subject of debate. If a category of records truly needs to be protected, agencies can always appeal to Congress; from a democratic perspective, it is far preferable for those debates to occur as part of the legislative process, where public pressure can be exerted and the merits of a proposal openly debated. This back and forth already regularly occurs when new Exemption 3 statutes are proposed.100 If Congress determines that certain records should be off-limits under FOIA, it can constrain the reach of a public interest balancing text through additional statutory reforms.
* * *
The passage of FOIA in 1966 significantly enhanced citizens’ ability to obtain information about their government, but decades of application of the act’s exemptions have whittled away at its effectiveness and undermined its core purpose. The addition of a public interest balancing test for FOIA’s discretionary exemptions would not be a panacea. It would, however, help align FOIA with emerging international best practices, reduce the agencies’ structural advantage over journalists and advocates in FOIA litigation, and ensure that the act is an effective means for the public to seek access to important agency records for many years to come.
NOTES
1. U.S. Senate, Freedom of Information Act Source Book: Legislative Materials, Cases, Articles, Subcommittee on Administrative Practice and Procedure of the Committee on the Judiciary (Washington, D.C.: U.S. Government Printing Office, 1974), 26–27, http://perma.cc/TFV9-JYNC.
2. U.S. Senate, Freedom of Information Act Source Book, 38.
3. U.S. Senate, Freedom of Information Act Source Book, 24–27.
4. Barry Sullivan, “FOIA and the First Amendment: Representative Democracy and the People’s Elusive ‘Right to Know,’ ” Maryland Law Review 72 (2012): 1–84, at 64.
5. U.S. Senate, Freedom of Information Act Source Book, 33.
6. U.S. Senate, Freedom of Information Act Source Book, 27.
7. 5 U.S.C. § 552 (2012).
8. See Freedom of Information Act and Amendments of 1974 (P. L. 93–502). Source Book: Legislative History, Texts, and Other Documents, Joint Committee Report (Washington, D.C.: U.S. Government Printing Office, March 1975), 104–05, http://perma.cc/HAM4-Y8A9, showing 2,195 full or partial denials of 254,637 requests between July 1967 and July 1971.
9. U.S. Department of Justice, “Data,” www.foia.gov/data.html, showed 124,828 full or partial denials in FY 2008, 21.59 percent of the 578,172 requests processed that year.
10. U.S. Department of Justice, “Data,” showed 322,579 full or partial denials in FY 2016, 42.46 percent of the 759,842 requests processed. It should be noted that the amount of information released in a partial denial/partial grant can, theoretically, include such extremes as only one word redacted or only one word released. Unfortunately, the government does not track or provide this information to the public. Considering only full denials as a percentage of all requests shows a more than eightfold increase since FOIA’s inception, from 0.7 percent of all requests in 1971 to 1974, to 3.8 percent in FY 2008, to 5.7 percent in FY 2016.
11. Elec. Frontier Found. v. U.S. Dep’t of Justice, 739 F.3d 1 (D.C. Cir. 2014).
12. Critical Mass Energy Project v. Nuclear Regulatory Comm’n, 975 F.2d 871 (D.C. Cir. 1992).
13. Prison Legal News v. Exec. Office for U.S. Attorneys, 628 F.3d 1243 (10th Cir. 2011).
14. Alan B. Morrison, “Balancing Access to Government-Controlled Information,” Journal of Law & Policy 14 (2006): 115–136, at 119. It should be noted that amendments were made to FOIA in 2016 that, among other things, introduced a “foreseeable harm” test. FOIA Improvement Act of 2016, Pub. L. No 114-185, 130 Stat. 538. This test provides possible new avenues for challenging the assertion of exemptions, but it is too early to judge its import in either administrative or judicial proceedings. At this writing, only one judicial decision has addressed the new foreseeable harm standard. Ecological Rights Found. v. FEMA, No. 16-CV-05254-MEJ, 2017 WL 5972702 (N.D. Cal. Nov. 30, 2017).
15. Nat’l Ass’n of Criminal Def. Lawyers v. Dep’t of Justice Exec. Office for United States Attorneys, 844 F.3d 246 (D.C. Cir. 2016) (Sentelle, J., dissenting).
16. U.S. Senate, Freedom of Information Act Source Book, 33.
17. U.S. Dep’t of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 780 (1989); SafeCard Servs., Inc. v. SEC, 926 F.2d 1197 (D.C. Cir. 1991).
18. U.S. Senate, Freedom of Information Act Source Book, 29.
19. U.S. Senate, Freedom of Information Act Source Book, 27–28.
20. U.S. Senate, Freedom of Information Act Source Book, 7.
21. U.S. Senate, Freedom of Information Act Source Book, 12.
23. U.S. Senate, Freedom of Information Act Source Book, 2.
24. U.S. Senate, Freedom of Information Act Source Book, 27.
25. See, for example., U.S. House of Representative Committee on Oversight and Government Reform, FOIA Is Broken: A Report (Washington, D.C.: Government Printing Office, January 2016), iii, http://perma.cc/2VST-DM6C; Ray v. Turner, 587 F.2d 1187, 1209 (D.C. Cir. 1978) (Wright, C.J., concurring); “CIA Successfully Conceals Bay of Pigs History,” National Security Archive, May 21, 2014, http://perma.cc/SLF7-E64Z; Luke O’Neil, “Why Is the DEA Not Cooperating with This FOIA Request?” Esquire, December 2, 2015, http://perma.cc/3ABS-EKZ6; Gary Pruitt, “Government Undermining ‘Right to Know’ Laws,” Associated Press, March 13, 2015, http://perma.cc/EV8S-LARH; “Justice Department Censors Nazi-Hunting History,” National Security Archive, November 24, 2010, http://perma.cc/84ZY-T3ME.
26. See, for example, Dave Philipps, “Generals Sought More Positive Coverage on Head Injuries, Document Shows,” New York Times, September 29, 2015, https://nyti.ms/2m3MsGg.
27. United States Department of Justice, “Referrals, Consultations, and Coordination: Procedures for Processing Records When Another Agency or Entity Has an Interest in Them,” August 15, 2014, http://perma.cc/4CZG-JBAZ.
29. See U.S. Department of Justice, “Data.”
30. U.S. House of Representative Committee on Oversight and Government Reform, FOIA Is Broken: A Report.
31. U.S. House of Representative Committee on Oversight and Government Reform, FOIA Is Broken: A Report, 3.
33. 5 U.S.C. § 552(b)(7)(C).
34. 5 U.S.C. §§ 552(b)(7)(C), (b)(6).
35. 5 U.S.C. § 552(b)(6).
36. “USCIS FOIA Manual,” 34.
40. Charlie Savage, “Court Releases Large Parts of Memo Approving Killing of American in Yemen,” New York Times, June 23, 2014, https://nyti.ms/2k5kDgj.
41. U.S. Senate, Freedom of Information Act Source Book, 30.
42. 5 U.S.C. § 552(a)(4)(B).
43. See Margaret B. Kwoka, “Deferring to Secrecy,” Boston College Law Review 54 (2013): 185–242, at 188.
44. Paul R. Verkuil, “An Outcomes Analysis of Scope of Review Standards,” William & Mary Law Review 44 (2002): 678–735, at 718.
45. Kwoka, “Deferring to Secrecy,” 185.
46. See Verkuil, “An Outcomes Analysis of Scope of Review Standards,” 712–14.
47. FBI v. Abramson, 456 U.S. 615, 631 (1982).
48. Spurlock v. FBI, 69 F.3d 1010, 1018 (9th Cir. 1995).
49. See, for example, Larson v. Dep’t of State, 565 F.3d 857 (D.C. Cir. 2009).
50. See, for example, Critical Mass Energy Project v. Nuclear Regulatory Comm’n, 975 F.2d 871 (D.C. Cir. 1992); Larson v. Dep’t of State, 885 (Ginsburg, J. dissenting).
51. See, for example, Nat’l Sec. Archive v. CIA, 752 F.3d 460 (D.C. Cir. 2014); Elec. Frontier Found. v. U.S. Dep’t of Justice, 739 F.3d 1 (D.C. Cir. 2014); Nat’l Ass’n of Criminal Def. Lawyers v. Dep’t of Justice Exec. Office for United States Attorneys.
52. See, for example, U.S. Dep’t of Justice v. Reporters Comm. for Freedom of Press; NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214 (1978); Ctr. for Nat. Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918 (D.C. Cir. 2003).
53. See, for example, Consumers Union of U.S., Inc. v. Heimann, 589 F.2d 531 (D.C. Cir. 1978).
54. See, for example, Wheeler v. CIA, 271 F. Supp. 2d 132, 139 (D.D.C. 2003).
55. See Am. Civil Liberties Union v. U.S. Dep’t of Def., 628 F.3d 612, 619 (D.C. Cir. 2011).
56. Kwoka, “Deferring to Secrecy,” 232–34.
57. Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973).
58. See, for example, Hayden v. NSA/Cent. Sec. Serv., 608 F.2d 1381, 1387 (D.C. Cir. 1979).
61. Joe Regalia, “The Common Law Right to Information,” Richmond Journal of Law and the Public Interest 18 (2015): 89–132, at 94–95.
62. Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978).
63. Nixon v. Warner Commc’ns, Inc., 597–98.
64. S. Jersey Pub. Co. v. New Jersey Expressway Auth., 124 N.J. 478, 489 (1991); Bergen Cty. Imp. Auth. v. N. Jersey Media Grp., Inc., 370 N.J. Super. 504, 516–17 (App. Div. 2004).
65. North Jersey Media Group, 370 N.J. Super., 509.
66. North Jersey Media Group, 370 N.J. Super., 522–23.
67. David Banisar, “Freedom of Information Around the World 2006,” Privacy International, 2006, http://perma.cc/Q5ZH-JTEY: 42, 48, 85, 87, 95, 106, 113, 137, 155.
68. On the general difficulties of ranking access to information laws, see Sheila S. Coronel, “Measuring Openness: A Survey of Transparency Ratings and the Prospects for a Global Index,” freedominfo.org, October 30, 2012, http://perma.cc/R5YC-LQ2E?type=image.
69. Council of Europe, “Recommendation Rec (2002) 2 of the Committee of Ministers to Member States on Access to Official Documents,” Council of Europe Committee of Ministers, February 21, 2002, http://perma.cc/5WBQ-VT3R?type=image.
70. “Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters,” United Nations, June 25, 1998, http://perma.cc/V82U-PHDH.
71. Juliet G. Pinto, “Transparency Policy Initiatives in Latin America: Understanding Policy Outcomes from an Institutional Perspective,” Communication Law and Policy 14 (2009): 41–71.
72. “Federal Transparency and Access to Public Government Information Law,” translated by Carlota McAllister, August 2004, http://perma.cc/VAX5-SVAG, Article 14.
73. Ginger Thompson, “Mexico Opens Files Related to ’71 Killings,” New York Times, February 13, 2005, https://nyti.ms/2nHtoyu.
74. Eric Heyer, “Latin American State Secrecy and Mexico’s Transparency Law,” George Washington International Law Review 38 (2006): 437–75.
77. Freedom of Information Act 2000, Part I, § 2(2)(b).
78. “The Public Interest Test,” 8–26 (collecting and summarizing cases).
79. “The Public Interest Test,” 5.
80. 5 U.S.C. §§ 552(b)(6), (b)(7)(C).
81. U.S. Dep’t of Justice v. Reporters Comm. for Freedom of Press, 765.
82. See, for example, SafeCard Servs. v. SEC.
83. U.S. Dep’t of Justice v. Reporters Comm. for Freedom of Press, 780.
84. 5 U.S.C. § 552(b)(3).
85. Freedom of Information Act 2000, § 53.
86. “Straw Vetoes Iraq Minutes Release,” BBC News, February 25, 2009, http://perma.cc/38E5-FYQG; “Ministerial Veto on Disclosure of Cabinet Minutes Concerning Military Action Against Iraq,” Information Commissioner’s Office, June10, 2009, http://perma.cc/M7TU-992Z.
87. See 5 U.S.C. § 552(b)(5); NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975).
88. FOIA Improvement Act of 2016, Pub. L. No 114-185, 130 Stat. 538.
89. Nat’l Whistleblower Ctr. v. Dep’t of Health & Human Servs., 903 F. Supp. 2d 59, 66 (D.D.C. 2012).
90. Pentagon Fed. Credit Union v. NCUA, 1996 U.S. Dist. LEXIS 22841 at *11 (E.D. VA, June 7, 1996).
91. Nat’l Sec. Archive, 752 F.3d 460.
92. Nat’l Ass’n of Criminal Def. Lawyers v. Dep’t of Justice Exec. Office for United States Attorneys, 249.
94. Nat’l Ass’n of Criminal Def. Lawyers v. Dep’t of Justice Exec. Office for United States Attorneys, 249.
95. Nat’l Ass’n of Criminal Def. Lawyers v. Dep’t of Justice Exec. Office for United States Attorneys, at 249–58 (citing, inter alia, Schiller v. NLRB, 964 F.2d 1205 (D.C. Cir. 1992)).
96. Nat’l Ass’n of Criminal Def. Lawyers v. Dep’t of Justice Exec. Office for United States Attorneys, at 258–60 (Sentelle, J., concurring) (citations and quotations omitted).
98. See Margaret B. Kwoka, “FOIA, Inc.,” Duke Law Journal 65 (2016): 1361–1437, at 1379–1426.
99. See, for example, United States v. Hubbard, 650 F.2d 293 (D.C. Cir. 1980).