Document Type

Article

Publication Date

9-15-2017

Abstract

As Justice Stewart famously observed, "[t]he Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act." What the Constitution's text omits, the last two generations have embedded in "small c" constitutional law and practice in the form of the Freedom of Information Act and a series of overlapping governance reforms including Inspectors General, disclosure of political contributions, the State Department’s “Dissent Channel,” the National Archives Information Security Oversight Office, and the publication rights guaranteed by New York Times v. United States. These institutions constitute an ecology of transparency.

The late Justice Scalia argued that the Freedom of Information Act was unnecessary. FOIA has also suffered the converse criticism: that it is necessary but ineffective. A third constellation of critics discerns a mismatch between the legal regime of transparency and the goals of good governance. David Pozen has argued that the costs imposed are pathologically asymmetric. FOIA, he alleges, is "neoliberal" and "reactionary"; it "empowers opponents of regulation, distributes government goods in a regressive fashion, and contributes to a culture of contempt surrounding the domestic policy bureaucracy," while doing little to further scrutiny or control of corporate exploitation.

Drawing on case studies from the Bush-era "Global War on Terror" (or "Terrorism"), this chapter argues that critics miss important normative and practical issues. Critiques focused on denied requests and unsuccessfully litigated cases in isolation miss the ways in which information obtained though unlitigated or partially successful requests is facilitated by, and in turn has catalyzed other elements of a broader ecology of transparency. Analysts of FOIA should be alert to the elements of that ecology. Critics should acknowledge its virtues of resiliency and efficacy. Reformers should neither slight nor squander them.

Comments

In "Troubling Transparency: The Freedom of Information Act and Beyond" (David Pozen & Michael Schudson eds., Columbia University Press, forthcoming Fall 2018).