By Mike Dorf
In my latest FindLaw column, I examine the Supreme Court's decision on Monday regarding classified photos of detainee abuse. The 2nd Circuit had affirmed a district court order releasing these photos pursuant to an ACLU Freedom of Information Act (FOIA) request, but then Congress changed the law. The Supreme Court asked the 2nd Circuit to reconsider the case in light of the new statute and the certification of national security concerns made under it by Defense Secretary Gates. As I explain in the column, it's hard to see the ACLU winning on remand. Among other things, I note that under existing case law, FOIA is not required by the First Amendment. I quote the late CJ Burger's plurality opinion in Houchins v. KQED: "The Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act." Here I want to question that view.
The argument for recognizing FOIA as an aspect of the First Amendment is straightforward enough: A, if not the, core concern of the First Amendment, is political speech to facilitate self-government. In order for the People to know when and how to criticize their government with an eye towards bringing about political change, they must know what their government is doing. If the government can keep secret large swaths of its operations, the People will not be able to learn such matters.
The opposing view that the First Amendment does NOT require FOIA rests partly on a negative right/positive right distinction: The Constitution forbids government interference with private expression but does not demand that government facilitate expression by revealing information that the government holds secret. The Houchins conclusion may also rest on institutional competence issues. The federal FOIA is a complicated procedural statute that differs in various respects from various state freedom of information laws. The conclusion that the First Amendment requires some version of FOIA would put the Supreme Court in the awkward position of having to draw a large number of contestable lines regarding the scope of the obligation to disclose and its exceptions.
Accordingly, if one thought that FOIA were constitutionally required, it would be a good candidate for what Texas Law School Dean Larry Sager has called an "under-enforced" constitutional right. That is, it would be a right that political actors would be duty-bound to protect, but that the courts would not directly enforce. Both attributes of the putative FOIA right are typical of under-enforced rights: The fact that it is a positive right and that it needs to be nested in a complex administrative scheme.
So, what would a judicially unenforceable but constitutionally obligatory version of FOIA look like? At least for Congress, we can start with the text of Article I, which requires each house of Congress to keep a journal of its proceedings "and from time to time publish the same, excepting such Parts as may in their judgment require Secrecy . . . .” I think it a fair inference that the exceptions clause carries a negative pregnant: Where matters do not require secrecy, the presumption is in favor of openness, a requirement that more or less tracks the structure of FOIA.
To be sure, until 1794, the Senate met completely in secret, and to this day, each house has procedures for closed sessions. (Here is a short overview, courtesy of the Congressional Research Service.) I regard the current rules regarding closed sessions as sufficiently circumscribed to fall within a general presumption of openness. As for the Senate practice to 1794, we might say that it was unconstitutional (in the same way that other practices of the era, such as the Sedition Act, are now thought to violate the First Amendment), or we might say that the pre-17th Amendment Senate was less about doing the business of the People than about doing the business of the States, and thus state legislatures could depend on reports of their Senators.
Would a putative judicially unenforceable First Amendment right to FOIA apply to the other branches? This is a relatively easy call with respect to administrative agencies. FOIA was, after all, originally part of the Administrative Procedure Act, and we might readily conclude that the unaccountability of administrative agencies relative to Congress demands that agencies be at least as open to the public as Congress is.
The judiciary presents both an easier and a harder question. Some aspects of judicial proceedings are required to be open to the public as a matter of judicially enforceable constitutional law. Richmond Newspapers v. Virginia found a First Amendment right of press access to a criminal trial, even when the prosecutor and the defendant would have preferred a closed trial. The plurality opinion was rooted largely in the historical practice of open trials prevalent before and at the Founding, but it and the concurrences in the judgment also stressed functional and normative arguments that are more far-reaching. Indeed, Justice Stevens thought the holding undermined Houchins (and was glad of the fact).
Beyond open trials, it is now expected that courts issuing opinions on questions of law do so openly. However, the deliberations of judges on multi-judge courts have long occurred in private, and the Supreme Court (for example) regards it as a betrayal whenever a law clerk blabs about what went on in the decision process.
Whether there really is a need for such secrecy is not clear. The conventional justification for private deliberations is that people--including judges--need privacy for frank discussions. If the Justices' deliberations were public, then they would be reluctant to deliberate, the argument goes. Even though I find this argument persuasive in the abstract, I'm not convinced it's true in fact: Even without the glare of the CSPAN cameras, it's said that Supreme Court Justices do not deliberate much with one another as things stand, so making their deliberations public would not do much harm. That said, given the routine publication of reasoned opinions by appeals courts and the open proceedings of trial courts, some secrecy in deliberations is tolerably consistent with an overall duty of openness on the judiciary.