FOIA

The back-and-forth between Stuntz, Weisberg, and Solove on transparency in government (see posts by Rick and Dan) reminded me that the Freedom of Information Act is one of those vehicles by which this debate is routinely (if not so elegantly) litigated.  FOIA generally authorizes public access to all U.S. government records, with specific exceptions for classified records pertaining to national security, confidential business information, and seven other categories.  These exceptions thus delimit the extent of authorized official secrecy in very concrete ways: if a record falls into one of those categories, the government need not release it to a FOIA requestor.   If it doesn't, it must be released. 

Meredith Fuchs, General Counsel to the National Security Archive, has written an interesting article on FOIA in the Administrative Law Review entitled “Judging Secrets:  The Role Courts Should Play in Preventing Unnecessary Secrecy.”  The Archive’s historical purpose is to improve government transparency, and the piece belongs quite clearly on the non-Stuntz side of the argument, although it contains information of potential interest to all parties.  The article describes the increase in governmental use of the classification process since 9/11, and the courts as highly deferential to the government’s secrecy claims.  If nothing else, check out the Archive's website:  it has everything from photographs of foreign nuclear installations to documentation of the meeting between Nixon and Elvis. 

I am probably the only law professor never to have exploited FOIA’s pretty amazing research potential, but this whole debate over secrecy has made me feel like it might be time for a good old-fashioned records request.