The Deliberation Paradox and Administrative Law

INTRODUCTIONAdministrative law places great importance on deliberation in agency decision making. An agency's careful consideration of evidence, argument, perspectives, and options can earn it deference from a reviewing court, and a growing list of statutes and orders require an agency to weigh certain questions or factors prior to action. That decision-making process, however, will be either open or closed to the public, depending on a paradox in open government laws: Deliberation among officials triggers mandatory public access to certain agency meetings, but exempts public access to agency records. What accounts for deliberation's powerful, but contradictory, impact on administrative law?This is the first article to identify and explain what I call the "Deliberation Paradox"1 in administrative law. State open record laws and the federal Freedom of Information Act (FOIA) grant broad access to documents produced, retained, or otherwise used by the government. But those laws recognize an exemption for records that reflect the government's deliberative process, such as internal memoranda, the recommendations of subordinates, or preliminary drafts. In other words, records are exempt from disclosure if they reflect the government's process of making up its mind. Records of deliberations, in short, may be kept secret.2Open meeting laws, on the other hand, establish a right of public, in-person access to certain government decision-making processes as they happen. They apply to meetings of multi-member bodies such as federal or state commissions or boards, city councils, and the like-entities that often exercise the same range of executive, legislative, and adjudicative powers as the agencies covered by open records laws. Open meeting laws like the Government in the Sunshine Act and its state counterparts, however, make a critical distinction between some meetings and others. Those that merely involve distribution of information don't need to be public. But those that involve a deliberative exchange of opinions, positions, recommendations, or analyses must remain open. Meetings with deliberation, in short, may not be kept secret.3At the same time, judicial review of agency action accords great weight to deliberation, granting deference to agency interpretation of laws under Chevron U.S.A., Inc. v. NRDC,4 Skidmore v. Swift & Co.,5 and routine review under the Administrative Procedure Act (APA).6 Deliberation, then, is a linchpin of administrative law, but in a paradoxical way: agency deliberation is the ideal of administrative decision making, but it triggers the right to access in public meeting laws and bars access in public records laws. The Deliberation Paradox goes largely unobserved in judicial and scholarly analyses,7 but government agencies struggle with it on a daily basis as they seek to establish policy while simultaneously trying to determine what records and meetings must be public.In contemporary governance, the two types of deliberation set administrative law at cross-purposes, confusing agencies about what is accessible and denying the public information about vast swaths of government decision making. Furthermore, statutory and judge-made deliberation requirements in administrative law have complicated public access to deliberative records.This Article illuminates an obscure aspect of administrative law: the peculiar status of deliberation as a shibboleth of deference. It begins, in Part I, with a more complete explanation of the role of deliberation in open records and open meeting law and administrative law as a whole. Part II documents the development of the divergent applications of deliberation in open government law. Part III continues this inquiry, turning to the purposes of open government laws and accompanying assumptions about how the government works. Together, Parts II and III explain how the Deliberation Paradox came to exist in its current form. Part IV observes that the Deliberation Paradox no longer makes sense in the administrative state because judicial deference to deliberation, directed deliberation, and consultative deliberation require public scrutiny to retain democratic legitimacy. …