[Dis-]Informing the People's Discretion: Judicial Deference Under The National Security Exemption of the Freedom of Information Act
Authors: Nevelow Mart Susan , Ginsburg Tom 
Published: July 2018

As noted by President Obama’s recent Review Group on Intelligence and Communications Technologies, pervasive state surveillance has never been more feasible. There has been an inexorable rise in the size and reach of the national security bureaucracy since it was created after World War II, as we have gone through the Cold War and the War on Terror. No one doubts that our national security bureaucracies need to gain intelligence and keep some of it secret. But the consensus of decades of experts, both insiders and outsiders, is that there is rampant overclassification by government agencies. From its inception in 1966, the Freedom of Information Act (FOIA) has presumed disclosure. And from its inception, Congress intended the federal courts to act as a brake on unfettered agency discretion regarding classification. But courts have not played a strong role in this regard. This Article examines the interplay of overclassification, excessive judicial deference, and illusory agency expertise in the context of the national security exemption to the FOIA. The national security exemption allows documents to be withheld that are “specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign policy” and that “are in fact properly classified pursuant to such Executive Order.” The history of national security classification and the passage of the FOIA illuminate the tension between legislative demands for transparency and the growth of the national security state with its agency culture of secrecy. That tension has generally been resolved by the courts in favor of secrecy, despite agreement that there is rampant overclassification and pseudo-classification (labeling documents as sensitive but unclassified). This deference in turn leads agencies routinely to deny FOIA requests that should in fact be granted. Without adequate court oversight, there is no agency incentive to comply with the FOIA’s presumption of disclosure. We argue that courts have been systematically ignoring their clear legislative mandate. Although the government is entitled to substantial deference, the role of the judiciary is not to rubber stamp claims of national security, but to undertake de novo and in camera review of government claims that the information requested was both required to be kept secret and properly classified. Congress amended the FOIA in 1974 to make this requirement explicit, overruling a judicial attempt to defer completely to government claims that national security classifications are proper. There are many reasons that courts are reluctant to get involved in determining the validity of exemption claims based on national security. Overestimation of risk may be one reason, as is fear of the consequences of error. We also discuss a “secrecy heuristic” whereby people attribute greater accuracy to “secret” documents. Notwithstanding these rationales, courts have, in other contexts, wrestled successfully with the conflict between national security and paramount rights, such as those found in the First and Fourth Amendments. Courts have the institutional expertise to review claims of national security, if they choose to exercise it. Our conclusion is that the systematic failures of the federal courts in the FOIA context are neither inevitable nor justified. We show that courts do occasionally order the release of some documents. This Article includes the first empirical investigation into the decision making of the D.C. district courts and federal circuit courts in cases involving the national security exemption to determine what, if any, factors favor document release. We find that party characteristics are the biggest predictor of disclosure. We also show that, while politics do not seem to matter at most courts, they do at the D.C. Circuit Court of Appeals, at which Republican-dominated panels have never ordered disclosure.