FOIA and the First Amendment: Representative Democracy and the People's Elusive 'Right to Know'

85 Pages Posted: 9 Feb 2013

See all articles by Barry Sullivan

Barry Sullivan

Loyola University Chicago School of Law

Date Written: 2012


Recent constitutional and human rights documents have typically included an express constitutional right to information, which some foreign and transnational courts have construed to include a governmental obligation to provide access to government information. Such judicial constructions manifest an understanding of democratic citizenship that is necessarily active and engaged.

Although the First Amendment contains no such express right, the Supreme Court has acknowledged that various aspects of a “right to know” are implicitly protected by the First Amendment. In Houchins v. KQED, 438 U.S. 1 (1978), however, the Court declined to hold that the “right to know” implies any general, individually-enforceable constitutional right of access to government information.

Because of the Court’s decision in Houchins, as well as the enactment of the Freedom of Information Act, questions of access to government information largely have come to be litigated as questions of statutory construction rather than constitutional rights or values. But the intent of those who enacted FOIA was to transform government, particularly with respect to the relationship between the governors and the governed; they intended to give to the people what James Madison rightly called “the power that knowledge gives,” and to supplant a system of law favoring the greatest possible secrecy with one that achieves the “fullest possible disclosure.”

In short, those who enacted FOIA intended to provide a mechanism for enforcing the First Amendment “right to know.” Ironically, the enactment of FOIA has had the opposite effect, causing the executive and the courts to focus on the minutiae of FOIA, while overlooking its essential constitutional purpose. By enacting a statute to enforce the First Amendment “right to know,” Congress inadvertently removed from the picture the very constitutional value it sought to enforce. It was no longer necessary for courts to think about the connection between access to government information and the meaning of citizenship in a representative democracy.

Given present concerns about national security, secrecy needs little help in trumping democratic demands for transparency. Current law tells judges that they must affirm a denial of disclosure whenever it is supported by an affidavit that is “logical” and “plausible,” but nothing more, and that they should not risk confusing themselves by looking at any of the requested records.

This essay argues that the courts must exercise a more muscular form of review, construing FOIA in light of the fundamental constitutional value that it embodies. As Justice Scalia said in John Doe Agency v. John Doe Corp., 493 U.S. 146, 161 (1989), the principle that FOIA’s exemptions should be narrowly construed must not be allowed to become “a formula to be recited rather than a principle to be applied.”

Keywords: Right to Know, Access to Government Information, First Amendment, Freedom of Information Act, Constitutional Law, Government Disclosure, Government Secrecy

JEL Classification: K10, K40

Suggested Citation

Sullivan, Barry, FOIA and the First Amendment: Representative Democracy and the People's Elusive 'Right to Know' (2012). Maryland Law Review, Vol. 72, No. 1, 2012, Loyola University Chicago School of Law Research Paper No. 2013-001, Available at SSRN:

Barry Sullivan (Contact Author)

Loyola University Chicago School of Law ( email )

25 E. Pearson
Chicago, IL 60611
United States


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