Vol. LIV No. 1

Deferring to Secrecy

Abstract:  In prescribing de novo judicial review of agencies’ decisions to withhold requested information from the public under the Freedom of Information Act (FOIA), Congress deliberately and radically departed from the typical deferential treatment courts are required to give to agencies. Nonetheless, empirical studies demonstrate that the de novo review standard on the books in FOIA cases is not the standard used in practice. In fact, despite being subject to the stringent de novo standard, agencies’ FOIA decisions are upheld at a substantially higher rate than agency decisions that are entitled to deferential review. This Article posits that although courts recite the appropriate standard in FOIA cases, they have created a collection of practices unique to FOIA cases that have the effect of deferring to the government’s secrecy positions. First, in some cases, courts expressly defer to particular representations made by the government, even though these representations are themselves crucial to the overall determination of the legality of the withholding. Second, in every FOIA case, certain procedural practices have become part of the body of case law governing how FOIA cases are adjudicated, and these practices stack the deck in favor of the government. This Article concludes that these procedural practices, which are departures from the federal procedural system’s trans-substantive design, may be the more pernicious of the deference doctrines under FOIA, as they hide the true nature of the rulings, make it more difficult for the political branches to respond, and diminish public confidence in the judiciary.

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