Sunstein: It is possible for government to be too open
Sens. Patrick Leahy of Vermont and John Cornyn of Texas, leaders of the Judiciary Committee, have long shown an admirable commitment to open government, and their recent bill to amend the Freedom of Information Act is winning a ton of praise. Some of its reforms make sense, but, unfortunately, its key provision is a horrible idea. By reducing the protection now given to deliberations within the executive branch, it would have a chilling effect on those discussions.
To see the problem, suppose that officials at the State and Homeland Security departments are vigorously discussing a new approach to immigration reform before important decisions are made. If the process is working well, officials will exchange a lot of views and disagree with one another in significant ways. Assistant secretaries at State might argue energetically for an idea that the secretary ultimately rejects. The deputy secretary of Homeland Security might object to a position that both departments endorse in the end.
Under the Freedom of Information Act, such internal discussions usually need not be disclosed. Like senators and U.S. Supreme Court justices, officials in the executive branch are allowed to have confidential conversations as they work toward their decisions.
James Madison, probably the most important thinker behind the Constitution, explained why, when that document was being written, it was best for the framers to "sit with closed doors." The opinions that people expressed in the process, Madison observed, "were so various and at first so crude that it was necessary they should be long debated before any uniform system of opinion could be formed. Meantime the minds of the members were changing, and much was to be gained by a yielding and accommodating spirit." He went so far as to contend that "no constitution would ever have been adopted by the convention if the debates had been public."
Turn in this light to the Leahy-Cornyn proposal. The Freedom of Information Act, as it now stands, exempts "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." This exemption includes what is called the deliberative-process privilege, which means that discussions inside the executive branch, preceding actual decisions, can usually be kept confidential. The fundamental reason is Madison's: not to protect officials, but to benefit the public by promoting open, honest discussions about policy.
Leahy and Cornyn want to cut back on the deliberative-process exemption in two ways: They would make it unavailable for any discussion that occurred more than 25 years ago. And they would authorize federal judges to decide, in every case, whether "the agency interest in protecting the records or information is not outweighed by a compelling public interest in disclosure."
Both of these changes would be mistakes. True, 25 years is a long time, but if officials know that their communications will eventually be made public, they will be less likely to be candid. And if those officials know that federal judges might decide, in any case, whether the public interest in disclosure outweighs an agency's interest in confidentiality, they will silence themselves still more. Judges have their own biases, sometimes even political biases, and cannot always be counted on to strike the right balance.
The result? Whether the topic is homeland security, deregulation, climate change, obesity, immigration reform, health care or highway safety, the normal processes of internal debate and discussion would likely be impaired.
Leahy and Cornyn came up with their proposal because they believe that in response to Freedom of Information Act requests, the executive branch has too often claimed the deliberative-process exemption. In 2013 alone, the exemption was used more than 80,000 times. And many advocates of open government have argued that they should be entitled to learn who said what to whom.
They're wrong. Accountability is important, and in many contexts, we need a lot more of it. It is certainly possible that the deliberative-process exemption has been claimed too often. But accountability should not mean that members of the executive branch any more than senators or judges ought to be forced to disclose their internal debates. Madison saw the reason: Even if disclosure of such conversations might interest the public, it is not in the public interest.
Cass R. Sunstein, the former administrator of the White House Office of Information and Regulatory Affairs, is a professor at Harvard Law School and a Bloomberg View columnist.
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