Secrecy: FOIA

Peter Margulies on Proposed FOIA Amendments

By Benjamin Wittes
Monday, March 19, 2012, 4:45 PM

Peter Margulies of Roger Williams School of Law has this article on proposed amendments to the Freedom of Information Act (FOIA). It opens:

The Obama administration asked Congress to amend the Freedom of Information Act (FOIA) last week to respond to the Supreme Court's decision last term in Milner v. Department of the Navy. As lawmakers ponder the administration's request, they should recognize the difficult trade-offs that secrecy entails. Secrecy is necessary to preserve some government information from hostile individuals and entities around the world that look for ways to strike at the US. However, as Jack Goldsmith notes in his new book, Power and Constraint, secrecy also has adverse ex ante effects on government decision making. Secrecy can permit official groupthink to coalesce around reckless schemes, or sometimes merely offer a haven for incompetence. If lawmakers wish to alter FOIA's balance to accommodate the administration's concerns, they should keep these trade-offs in mind.

The matter came to a head after Milner, in which the Court found that FOIA's text provided only a limited exemption for personnel practices, not the wide-ranging exemption for agency information that the government had claimed. In Milner, a resident of Puget Sound, Washington, sought information about rules governing storage of ammunition and explosives at a nearby Navy base. The Navy uses information, known as Explosive Safety Quantity Distance (EQSD) data, to build storage areas that protect against the risk of chain reactions if a portion of the stored material detonates. The Navy rejected Milner's FOIA request; the Supreme Court agreed with Milner.

In testimony earlier this week before the Senate Judiciary Committee, the head of the Department of Justice Office of Information Policy, Melanie Ann Pustay, asserted that the Court's action was a radical departure from precedent. However, the decision, written by the Court's newest member, Justice Elena Kagan, drew only one dissent (from Justice Breyer), and reads more like a return to first principles. In a characteristically incisive opinion, Kagan noted that Congress enacted FOIA in the wake of revelations about government deception in Vietnam and Watergate. FOIA's driving concern is with openness and transparency. It has a list of nine exemptions, including law enforcement information, which are designed to protect the government's legitimate interests in secrecy and avoid subjecting the government to the onerous task of responding to FOIA requests when information actually has little relevance to the public. Justice Kagan noted that FOIA exemptions should be construed narrowly, since by definition they impede the transparency that FOIA's drafters sought.