JURIST Guest Columnist Peter Margulies of Roger Williams University School of Law says that Congress should weigh the advantages and risks of secrecy carefully as it considers the new FOIA exemption that the Obama administration has proposed in the wake of a recent Supreme Court decision…

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.

Building on these principles, the Court ruled that EQSD data did not fall within FOIA’s Exemption 2, which Congress drafted narrowly to protect only documents “related solely to the internal personnel rules and practices of an agency.” According to Justice Kagan, the term “personnel” buttressed the requester’s argument that the exemption should be read narrowly to include only information about sick leave and other policies that would simply not be of wide interest to the public. In finding that a narrow interpretation was appropriate, the Court agreed with one strand of reasoning in appellate courts, but disagreed with the US Court of Appeals for the District of Columbia Circuit and other tribunals, which had interpreted the exemption for years in a far more agency-friendly manner, allowing government to keep secret a smorgasbord of information.

The government is right about one thing: EQSD data and information about cybersecurity measures by government and its partners in the private sector may require carefully crafted FOIA protection. As Paul Rosenzweig noted in his testimony [PDF], businesses making substantial investments of money and time in cybersecurity need some assurance that their proprietary systems will not become available for public viewing. However, legislators such as Senator Charles Grassley are right to demand a showing of need for any changes.

The EQSD information at issue in Milner exemplifies the trade-offs that secrecy brings. Government has a legitimate interest in limiting public knowledge of the number and kind of explosives stored at a base, as well as details on the manner of storage. However, even a seemingly anodyne exemption could shield government recklessness from public view. In a 1953 Supreme Court case, Dalehite v. United States, the government successfully argued that the Federal Tort Claims Act’s exemption for “discretionary functions” barred a lawsuit arising from the reckless storage of tons of fertilizer at high temperatures. Exposed to high temperatures, the fertilizer ignited. The resulting explosion killed 560 people, wounded thousands, and destroyed shipping facilities at a Texas town in one of the costliest accidents in American history. The government had known that storing fertilizer at high temperatures posed a risk, but believed that its program, which involved shipping fertilizer to South Korea and other countries during the Cold War, was too important to modify. Of course, the delay in shipping from the accident far exceeded any delay the government would have incurred through responsible storage of the fertilizer. In essence, the Court held that Cold War imperatives transformed officials’ game of Russian roulette into policy too important to disturb. The Court’s decision did not help the victims of official recklessness or assure that government would avoid such heedless conduct in the future.

One hopes that government is more careful today. Indeed, EQSD information is designed to guard against the risk of a similar calamity. However, both the Dalehite disaster and more recent government excesses, such as the previous administration’s use of waterboarding in the aftermath of September 11, illustrate the risks of secrecy. As Goldsmith’s book explains, FOIA litigation by the American Civil Liberties Union and other groups helped ferret out the truth about these more recent abuses, effectively stopping many of the worst practices by the end of 2003. The prospect that public interest organizations and ordinary citizens will uncover future overreaching prevents many additional excesses. Congress should weigh the advantages and risks of secrecy carefully as it considers any new FOIA exemption.

Peter Margulies is the Distinguished Research Professor of Law at Roger Williams University School of Law. He teaches immigration law, national security law and professional responsibility. He has filed amicus briefs in high-visibility cases with the US Supreme Court and has been frequently cited in the New York Times, the National Law Journal and other media outlets.

Suggested citation: Peter Margulies, Striking the Balance Between Secrecy and Sunshine, JURIST – Forum, Mar. 18, 2012, http://jurist.org/forum/2012/03/peter-margulies-foia-secrecy.php.