Cass Sunstein and the Status Quo

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This post is adapted from CJ Ciaramella's weekly Freedom of Information Act (FOIA) newsletter, which you can subscribe to here.

Cass Sunstein: Three cheers for the status quo

Harvard law professor Cass Sunstein has an op-ed in Bloomberg View arguing against the FOIA reform bill introduced recently by Senators Patrick Leahy (D., Vt.) and John Cornyn (R., Tx.).

Specifically, Sunstein, who was also the former administrator of the Obama White House's Office of Information and Regulatory Affairs, objects to proposed changes to Exemption (b)5, also known as the deliberative process privilege. The bill would add a public-interest balancing test and stipulate that documents older than 25-years cannot be withheld under the exemption.

"Both of these changes would be mistakes," Sunstein writes. "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."

Public officials desire to operate in the dark, Sunstein argues, because they must make Hard Choices and wade through bad arguments before deciding on a good policy. There is of course a legitimate concern here, as anyone who has worked under public scrutiny understands, but Sunstein is arguing for the status quo, and the problems with that would seem to be self-evident.

I was cautioning folks about email and how we have several occasions where Congress has asked for emails … we need to be cautious about what we say in emails."

That would be Lois Lerner, the former official at the heart of the IRS targeting scandal, warning her colleagues to avoid writing anything compromising that might end up in the hands of Congress. Officials at federal agencies frequently use private email addresses, instant messaging, and other methods to avoid producing federal records, and it's not always because they have the public's best interests in mind. The idea that federal employees are being candid now, and would be unduly burdened by the mere possibility that a judge might find their justifications for secrecy lacking, is novel. There's a certain heartwarming trust implicit in Sunstein's argument—the eternal optimism of the technocrat.

Sunstein's skepticism of the judicial branch is also odd. Federal judges already use a balancing test between the public interest and privacy rights in cases involving Exemption 6 and 7 of the FOIA. Judges also regularly weigh national security concerns against the public interest. Should they not handle those responsibilities, either? Or is judicial review well and good for the privacy of citizens, but the everyday emails of government administrators are too vital to the national well-being to risk putting in a judge's clumsy hands?

If, as Sunstein contends, the legislature does not understand the issue and the judiciary cannot be trusted to find the right balance, then that leaves the executive branch to police itself, and the executive branch as a whole is a self-interested creature that has no good reason to pursue transparency, beyond the minimum that will keep the public from howling too loud.

Last year, I put in a FOIA request at the Department of Health and Human Services for internal emails from then-Secretary Kathleen Sebelius regarding her Hatch Act violations. (From her secret email address, I might add.) HHS produced more than 200-pages of documents in response to my request, but redacted everything of substance, citing the deliberative process privilege. We wouldn't want to hamper the ability of public officials to discuss their breaking of federal election law, now would we?

Or there was the time the CIA used the deliberative process privilege to block release of a decades-old internal report on the Bay of Pigs invasion. Or earlier this year, when the State Department used it to withhold sections of a 20-year-old memo on the Rwandan genocide. The deliberative process privilege is used just as much, if not more, to shield embarrassing or inconvenient records as it is legitimate policy discussions. In fact, the use of the b(5) exemption is at an all-time high, and I doubt it's because public officials are emailing each other more than they used to.

But according to Sunstein's logic, we must just accept the government's claims that these reports and discussions—no matter how old or unrelated to any concrete policy decision—are the sort of frank talk that keeps the engine of bureaucracy well-oiled and therefore must remain secret. Such is the state of our Union.


  • Judge smacks around government in case over legal memos for targeted killing: "Frankly, the Government’s bald assertion, in its letter of July 7, 2014, that it gets to decide 'whether any of those documents, or particular portions thereof, fall within the scope of the waiver found by the Second Circuit' would be offensive if it were not so laughable. The Second Circuit directed this court to make that determination, in light of the rulings it has made. And so I shall."
  • An interesting court ruling: Judge denies John Cook's appeal re: request for who had access to Bush and Cheney libraries, citing privacy rights. You can read the decision here.
  • FBI releases more docs on Nelson Mandela to Ryan Shapiro in FOIA lawsuit, showing agency spied on South African leader over perceived communist ties.
  • EPIC files brief in ongoing suit against DHS for Internet "kill switch" protocol.
  • Fish and Wildlife sued for withholding scientific fraud docs.


FOIA OF THE WEEK: 'stark and often oddly shaped voids'

The above picture is from a tranche of redacted pictures obtained from the FBI by USA Today's Brad Heath. Gawker's J.K. Trotter has a strangely arresting essay on the unintentional art of the photos. It just may be the most well-written thing you've read on FOIA redactions.

NSA: Yeah, we've got Ed Snowden's emails, but they're exempt from release. I've submitted a FOIA request for the processing notes to Matthew Key's request.

Press Groups Call on Obama Admin to End 'Pervasive' Secrecy Practices: Thirty-eight leading press organizations and transparency groups are calling on the Obama administration to halt the increasing trend of secrecy and obfuscation at federal agencies.

Specifically, the groups point to numerous instances of federal public affairs officers blocking reporters’ requests to talk to agency staff, delaying responses to interview requests, and blackballing reporters who write critically of agencies.

“The practices have become more and more pervasive throughout America, preventing information from getting to the public in an accurate and timely matter,” said David Cuillier, president of the Society of Professional Journalists, in a statement. “The president pledged to be the most transparent in history. He can start by ending these practices now.”

One particular concern is the practice of holding conference calls with reporters "on background." That is, demanding that the public official on the line not be named. Just this week, the Education Department held a conference call with reporters and demanded that the senior official on the call not be named.

The organizations are asking the Obama administration to issue a memo not only telling employees at federal agencies they are free to speak with reporters, but also encouraging them to. Their letter also requests the administration create a way to report incidences of suppression or stonewalling of media requests.

Which will not happen, but kudos to the organizations for trying.

Agencies miss data deadline: Eight of 29 executive branch agencies miss deadline to deliver data plans under President Obama's 2009 Open Government Directive.

Ex-CIA Agent Submits FOIA, Destroys Career: This is a wild story that was making the rounds this week. A CIA agent's fight to get public records released ended up getting him canned:

His CIA career included assignments in Africa, Afghanistan and Iraq, but the most perilous posting for Jeffrey Scudder turned out to be a two-year stint in a sleepy office that looks after the agency’s historical files.

It was there that Scudder discovered a stack of articles, hundreds of histories of long-dormant conflicts and operations that he concluded were still being stored in secret years after they should have been shared with the public.

To get them released, Scudder submitted a request under the Freedom of Information Act — a step that any citizen can take, but one that is highly unusual for a CIA employee. Four years later, the CIA has released some of those articles and withheld others. It also has forced Scudder out.

His request set in motion a harrowing sequence. He was confronted by supervisors and accused of mishandling classified information while assembling his FOIA request. His house was raided by the FBI and his family’s computers seized. Stripped of his job and his security clearance, Scudder said he agreed to retire last year after being told that if he refused, he risked losing much of his pension.

In an interview, Scudder, 51, cast his ordeal as a struggle against “mindless” bureaucracy, but acknowledged that it was hard to see any winners in a case that derailed his CIA career, produced no criminal charges from the FBI, and ended with no guarantee that many of the articles he sought will be in the public domain anytime soon.

“I submitted a FOIA and it basically destroyed my entire career,” Scudder said. “What was this whole exercise for?”

It's the government's job to keep secrets, and whistleblowers' and reporters' job to uncover them. Pity the poor federal employee who thinks he or she can straddle both worlds.

Oops: DHS accidentally releases 840 pages of critical infrastructure docs.

Janet Napolitano's Rolodex: Not subject to FOIA, apparently.

JALAPENO GRINDING EXPERIMENT: The FOIA docs on Sriracha-gate you've all been waiting for, courtesy of Muckrock.


  • Nebraska refuses to disclose oil train records. Oregon also tried, unsuccessfully, to block release of oil train info.
  • Virginia board reviewing state's more than 100 FOI exemptions.

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