Executive Secrecy: Congress, the People, and the Courts

Congress enacted the Freedom of Information Act (“FOIA”) to ensure that “any person” could gain access to all the executive branch information that could safely be disclosed, without any special showing of need, thereby enhancing the ability of citizens to know what their government is doing. Writing in 1982, then-Professor Antonin Scalia ridiculed the concept of active citizenship which FOIA embodied, asserting that the statute was the product of “an obsession [with the idea] that the first line of defense against an arbitrary executive is do-it-yourself oversight by the public and . . . the press.” That was a “romantic notion,” he thought, because significant disclosures of executive branch information do not ordinarily result from the work of the press or the public, but from the operation of institutionalized checks and balances, that is, through the tug-and-pull between Congress and the President. Four decades later, it seems clear that the choice implicit in Professor Scalia’s account is a false one: the health of our representative democracy depends on the vitality of both avenues of access to executive information, and both avenues require shoring up. On the one hand, FOIA has not fully satisfied its proponents’ expectations with respect to its “informing function,” meaning its capacity for enhancing the public’s knowledge of government and for promoting active citizenship. On the other hand, lessons from the recent past suggest that Professor Scalia’s faith in Congress’s superior ability to secure information from an uncooperative executive may itself be something of a “romantic notion.” This Article will explore both avenues, the ways in which they have not fulfilled their promise, and how they might be made more effective.