Judging Secrets: The Role Courts Should Play in Preventing Unnecessary Secrecy

Abstract:     
Although the Constitution permits the judiciary to play a role in judging government secrecy claims and Congress has repeatedly endorsed that role, most prominently in the Freedom of Information Act, judges have been reluctant to question Executive Branch secrecy. Without judicial intervention, however, the incentives on the Executive Branch to overreach far outweigh any checks on excessive secrecy. Complicating the matter is judicial precedent calling for deference to Executive Branch secrecy decisions. Careful review of the legislative history to the Freedom of Information Act and the earliest cases interpreting that law demonstrates that the type of review envisioned by Congress is quite different than the deference typically accorded in regulatory law. By taking the time to examine government secrecy, and using tools such as in camera review, Vaughn indexes, and special masters, courts can push back against unnecessary secrecy.

Number of Pages in PDF File: 47

Keywords: Secrecy, Freedom of Information Act, Judicial Deference

Accepted Paper Series