Blog — Department of Justice

July 14, 2014

Why Cass Sunstein Is Wrong

By Anne Weismann

File StacksIn a recent letter to the editor in BloombergView, Cass Sunstein explained his opposition to a key provision of the groundbreaking Freedom of Information Act legislation recently proposed by the Senate Judiciary Committee.  Mr. Sunstein’s position should come as no surprise to those familiar with his work as head of OMB’s Office of Information and Regulatory Affairs.  Under his leadership, the regulatory clearinghouse was shrouded in secrecy and became the place where controversial regulations went to die, with little or no public accountability.

Even more noteworthy, Mr. Sunstein’s remarks are out of step with the administration in which he served.  President Obama began his first term with a pledge to be the most transparent administration in history.  Attorney General Holder followed up several months later with a policy directive that made disclosure the default under the FOIA, especially when it comes to internal government deliberations.  Agencies were directed to invoke Exemption 5, which protects internal government deliberations, sparingly.  If anything, the proposed legislation codifies what already should be agency practice.

Nor is allowing the public to pierce the veil of privacy that surrounds government deliberations a new concept outside of the FOIA context.  In discovery, litigants may overcome the government’s assertion of the deliberative process privilege with a showing of need, the same showing now incorporated into the FOIA bill.  As all this makes clear, agency officials have never operated with a reasonable expectation all of their deliberations would remain secret forever. 

The public already has been deprived of vital information under the guise of protecting internal agency discussions, from the so-called “torture memos” authored by the Office of Legal Counsel to the rationale behind the targeted killing of American citizens on foreign soil.  Senators Leahy and Cornyn, the co-sponsors of the FOIA bill, wisely recognize that a true democracy — one of which James Madison would approve — must balance the competing interests of a government’s claimed need for secrecy and the public’s right to know.  That is all the FOIA bill does.

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