Secret Policies

52 Pages Posted: 1 May 2018 Last revised: 6 May 2018

See all articles by Louis J. Virelli

Louis J. Virelli

Stetson University College of Law

Ellen S. Podgor

Stetson University College of Law

Date Written: May 1, 2018

Abstract

This Article examines secret agency policies. Clearly when the directives relate to military or national security matters, secrecy is essential. But should the public be viewers of the DACA Manual’s guidance on when administrative relief will be provided to immigrants brought to the U.S. as children by their undocumented parents? What about the Department of Justice policy related to the dismissal of False Claim Act cases or the written procedures that are used by Assistant United States Attorneys in providing criminal discovery to defense counsel? Written policies veiled in secrecy can be detrimental to achieving transparency and legitimacy in government.

In focusing on these written internal policies that do not pertain to a specific legal matter, this Article looks beyond the Freedom of Information Act (FOIA) and its exemptions. It discusses the need to maintain an appropriate balance between government transparency and the need for some matters to be kept private, and the importance of agency expertise, accountability, and efficiency in determining a need for transparency. Factored into this equation are the ethical repercussions of secret policies when government employees leave the agency with inside information.

Keywords: administrative law, criminal law, criminal procedure, DOJ, FOIA, policy, legitimacy

JEL Classification: K10, K14, K20, K23

Suggested Citation

Virelli, Louis J. and Podgor, Ellen S., Secret Policies (May 1, 2018). University of Illinois Law Review, Forthcoming; Stetson University College of Law Research Paper No. 2018-3. Available at SSRN: https://ssrn.com/abstract=3171589

Louis J. Virelli

Stetson University College of Law ( email )

1401 61st Street South
Gulfport, FL 33707
United States
727-562-7329 (Phone)
727-343-9319 (Fax)

Ellen S. Podgor (Contact Author)

Stetson University College of Law ( email )

1401 61st Street South
Gulfport, FL 33707
United States
727 562 7348 (Phone)

HOME PAGE: http://www.law.stetson.edu/tmpl/faculty/memberProfile.aspx?id=88

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