Paulina Perlin[*]

[Full text of this Article in PDF is available at this link]

Introduction

In 1981, the Washington Post submitted a request to the Department of Defense under the Freedom of Information Act (“FOIA”)[1] for “information concerning the failed attempt in April, 1980, to rescue American hostages held in the United States embassy in Teheran.”[2] Invoking FOIA’s exemption for classified records,[3] the Department of Defense “withheld or partially withheld numerous documents . . . in large part due to concern for the national security.”[4] In accordance with FOIA’s judicial review provision,[5] the Washington Post challenged these nondisclosures in court.

Given the “exceptional condition”[6] of the ensuing legal battle’s size and scope—the Post sought access to 2,000 documents spanning 14,000 pages—the court ultimately took the rare move of appointing a special master to the case. Seven years into the litigation, this special master reviewed a “representative sample” of withheld records and identified several potential issues with nondisclosure.[7] In response, the Department of Defense agreed to reassess several of its withholdings from the sample.[8] Upon reexamination, the Department released numerous documents to plaintiffs—including some that seemed improperly classified, such as the text of an Associated Press news report.[9]

Critically, the Department had not noted the nature of these records in its submissions to the court, neither in its declarations nor in its Vaughn Index—a catalog describing specific records withheld as well as the exemptions justifying nondisclosure.[10] Had the court neglected to interrogate the Department’s representations, the government would have continued to improperly withhold information that FOIA had granted the Washington Post a legal right to obtain. Yet increasingly few courts choose to review the government’s statements on withheld national security information in any real depth.[11]

Described by some scholars as the “crown jewel of transparency,”[12] FOIA establishes a legal presumption of transparency in American government.[13] It allows members of the public to request records from executive agencies, and so, to inquire into the executive branch’s activities and their legal justifications.

To balance competing interests in public disclosure and government secrecy, FOIA contains nine exemptions under which agencies may withhold requested information.[14] However, many scholars,[15] civil liberties advocates,[16] and even judges[17] have observed that this balance is off-kilter in practice—particularly where national security information is concerned. FOIA’s first exemption,[18] which allows the government to withhold information “specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and . . . are in fact properly classified pursuant to such Executive order,”[19] has proven nearly impenetrable.

Agencies currently rely on the classification scheme established by Executive Order (“EO”) 13526[20] when invoking Exemption 1. For a record to be “properly classified” under FOIA pursuant to this order, it must be (1) classified by an “original classification authority,” (2) owned, produced, or under the control of the federal government, and (3) fall into one of eight “protected categories” listed in Section 1.4 of the order.[21] In addition, an “original classification authority” must determine that disclosure “could be expected to result in damage to the national security,” and must be “able to identify or describe the damage.”[22]

When plaintiffs litigate nondisclosures, courts generally allow the government to rely on declarations—usually in the form of affidavits—to support these claims.[23] While courts facially require these declarations to justify Exemption 1 withholdings in reasonably “specific detail,”[24] well-established FOIA jurisprudence deems them sufficient so long as they are “logical and plausible.”[25] Many FOIA commentators have argued that this standard’s vagueness has led to judicial “super-deference” that has in turn encouraged the emergence and acceptance of “boilerplate” government declarations.[26]

But just how deferential is the “logical and plausible” standard in practice? How common are boilerplate declarations in FOIA litigation actually, and how often do courts uphold Exemption 1 claims relying on those declarations alone? Though many scholars and practitioners suspect that courts regularly “rubberstamp”[27] the government’s Exemption 1 claims, no study has systematically examined government declarations’ adequacy or empirically assessed their impact on case disposition.[28]

This Article does just that. In doing so, it tests many commentators’ intuitions on the purported extreme judicial deference that accompanies Exemption 1 cases. Its results ultimately corroborate these intuitions, finding that the courts in this study upheld the government’s claims when presented with substandard submissions 76.2% of the time, and declaration quality did not impact case outcome in any statistically significant way. Put more simply, the empirical evidence suggests that the judiciary is not seriously interrogating the executive’s in-court assertions, essentially allowing the government to bypass FOIA with scant justification.

Based on these results, the Article argues that the primary threat that Exemption 1 jurisprudence poses to transparency and democratic values is not the asymmetry of its outcomes, but the inadequacy of its process. In other words, the problem lies not simply with requesters’ slim rate of success in contesting Exemption 1’s invocation, but with how superficially courts assess these challenges during FOIA litigation. While FOIA expressly places the burden on the government to justify its withholdings and grants courts de novo review to judge whether Exemption 1 should apply,[29] that the government has succeeded in its claims without meeting that burden demonstrates that most courts fail to meaningfully grapple with the executive’s national security claims.

Of course, deference to the executive occurs in a variety of national security contexts. Only a minority of FOIA requests implicate Exemption 1,[30] and an even smaller proportion of requests is ever litigated.[31] However, of the many contexts in which the judiciary defers to the executive, FOIA Exemption 1, though limited, is particularly important. FOIA’s unique[32] posture in encouraging judicial interrogation of the executive’s national security determinations[33] makes FOIA litigation a prime arena for paring back the executive’s near-monopoly on national security issues. Moreover, the legal presumption of transparency in the United States stems in part from FOIA. By failing to require the government to meet its burden of proof for withholding information under Exemption 1, courts have implicitly shifted this presumption of transparency into a presumption of secrecy—a trend that implicates fundamental American democratic values.[34] Finally, extreme deference to executive determinations and disregard for the judicial standards prescribed by FOIA also weakens the legitimacy of the judicial process, and breeds government distrust among civil liberties advocates and the public at large. The problem this Article presents thus has implications that reverberate far beyond FOIA itself.

In Part I of this Article, I trace the development of judicial deference in Exemption 1 litigation and narrate Congress’s efforts to establish meaningful judicial review of national security withholdings under FOIA. In Part II, I describe the present problem with judicial deference in FOIA cases generally and Exemption 1 cases in particular, reviewing the existing literature on the matter. In Part III, I discuss the design, outcome, and implications of my own study measuring the adequacy of government declarations in Exemption 1 cases and modeling its impact on case disposition. I argue that this study demonstrates courts’ tendency to interrogate the government’s Exemption 1 claims only superficially. In Part IV, I further argue that the excessive level of judicial deference my study reveals has broader consequences, both for the American presumption of transparency and for other branches’ ability to check the executive in the national security arena as a whole. In Part V, I respond to counterarguments that the current level of review is appropriate. Finally, in Part VI, I propose requiring the government to report in its declarations the probability that disclosure “could be expected to result in damage to the national security” as a novel mechanism to compel both the executive and the judiciary to more meaningfully review Exemption 1 withholdings.

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[*] J.D., Yale Law School, class of 2019. The author thanks Oona Hathaway and students in her seminar, who all provided invaluable feedback, advice, and thoughts throughout the writing process. Additionally, the author is immensely grateful to John Langford for discussing ideas and counterarguments, and to Dan Bromberg for his assistance in designing and implementing this Article’s study.

[1] 5 U.S.C. § 552 (2012).

[2] Washington Post v. U.S. Dep’t of Def., 766 F. Supp. 1, 4 (D.D.C. 1991).

[3] 5 U.S.C. § 552(b)(1).

[4] Washington Post, 766 F. Supp. at 4.

[5] 5 U.S.C. § 552(a)(4)(B).

[6] In re U.S. Dep’t of Def., 848 F.2d 232, 235 (D.C. Cir. 1988).

[7] Washington Post, 766 F. Supp. at 4–5.

[8] See id. at 5.

[9] See Robert B. Deyling, Judicial Deference and De Novo Review in Litigation over National Security Information Act, 37 Vill. L. Rev. 67, 93 (1992).

[10] Vaughn v. Rosen, 484 F.2d 820, 827 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974) (determining that an agency’s burden to justify its exemptions under FOIA with adequate specificity “could be achieved by formulating a system of itemizing and indexing that would correlate statements made in the [agency’s] refusal justification with the actual portions of the document”). See infra Parts I.A and II.B for discussion of the Vaughn Index’s origins and importance to FOIA litigation. Note additionally that when this Article refers to an agency’s “submissions,” that term encompasses both affidavits and Vaughn Indices.

[11] See Paul R. Verkuil, An Outcomes Analysis of Scope of Review Standards, 44 Wm. & Mary L. Rev. 679 (2002) (arguing that courts have become more reticent to question the government’s Exemption 1 claims post-9/11).

[12] Ted Gup, Nation of Secrets: The Threat to Democracy and the American Way of Life 119 (2007), cited in David E. Pozen, Transparency’s Ideological Drift, 128 Yale L.J. 100, 124 (2018).

[13] See Sissela Bok, Secrets: On the Ethics of Concealment and Revelation 178–79 (1989); see also What is the Presumption of Openness and Who Issues Guidance to Agencies on the FOIA?, U.S. Dep’t of Justice, https://www.foia.gov/about.html [https://perma.cc/BP5T-SGAF].

[14] 5 U.S.C. §§ 552(b)(1)–(9).

[15] See, e.g., Deyling, supra note 9 (examining excessive judicial deference to the government in Exemption 1 cases); Margaret B. Kwoka, Deferring to Secrecy, 54 B.C. L. Rev. 185 (2013) (detailing judicial “super-deference” in FOIA litigation); Paul R. Verkuil, An Outcomes Analysis of Scope of Review Standards, 44 Wm. & Mary L. Rev. 679 (2002) (demonstrating empirically FOIA’s high government affirmance rate); Christina E. Wells, “National Security” Information and the Freedom of Information Act, 56 Admin. L. Rev. 1195 (2004) (discussing extreme judicial deference in FOIA cases involving national security information).

[16] See, e.g., Exemption 1, FOIA Wiki (Feb. 4, 2020), https://foia.wiki/wiki/Exemption_1 [https://perma.cc/W7NA-FTHL] (“In general, a court reviewing a claimed exemption will determine whether the government has satisfied its burden under a de novo standard of review. . . . However, in the context of Exemption 1 withholdings, courts frequently give great deference to assessments on the need to keep certain records classified contained in intelligence agency affidavits supporting the withholding of a record.”).

[17] See, e.g., Patricia M. Wald, Two Unsolved Constitutional Problems, 49 U. Pitt. L. Rev. 753, 760 (1980) (noting that courts often review information withheld under FOIA’s national security exemption in a “perfunctory way”).

[18] The government also often invokes several national security-related statutes under Exemption 3 alongside Exemption 1. However, since those statutes are narrower and require a slightly different analysis, I consider them outside the scope of this Article.

[19] 5 U.S.C. § 552(b)(1).

[20] Exec. Order No. 13526, 75 Fed. Reg. 707 (Dec. 29, 2009).

[21] These eight protected categories include:

1. “military plans, weapons systems, or operations”;
2. “foreign government information”;
3. “intelligence activities (including covert action), intelligence sources or methods, or cryptology”;
4. “foreign relations or foreign activities of the United States, including confidential sources”;
5. “scientific, technological, or economic matters relating to the national security”;
6. “United States Government programs for safeguarding nuclear materials or facilities”;
7. “vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or protection services relating to the national security”; or
8. “the development, production, or use of weapons of mass destruction.”

Id. § 1.4.

[22] Id. §§ 1.1(a)(1)–(4).

[23] See Julia P. Eckart, The Freedom of Information Act – the Historical and Current Status of Walking the Tight Rope Between Public Access to Government Records and Protecting National Security Interests, 41 Seton Hall Legis. J. 241, 270 (2017).

[24] Id. (citing ACLU v. U.S. Dep’t of Def., 628 F.3d 612, 619 (D.C. Cir. 2011)); see also Office of Information Policy, U.S. Department of Justice Guide to the Freedom of Information Act: Exemption 1, 5 (2013) (“The Court of Appeals for the District of Columbia Circuit has refined the appropriate standard for judicial review of national security claims under Exemption 1, finding that summary judgment is proper if an agency’s affidavits are reasonably specific and there is no evidence of bad faith. This review standard has been adopted by other courts as well.”) [hereinafter Department of Justice Guide: Exemption 1 (2013)]; Wells, supra note 15, at 1207 (explaining that “most courts” follow this analysis). Note that, in practice, the vast majority of Exemption 1 cases are decided at summary judgment. Office of Information Policy, U.S. Department of Justice Guide to the Freedom of Information Act: Litigation Considerations 111–12 (Sept. 25, 2019), https://www.justice.gov/oip/page/file/1205066/download#page=111, [https://perma.cc/TY8B-Y9DE] (“Summary judgment is the procedural vehicle by which nearly all FOIA cases are resolved, because in FOIA cases there is rarely any factual dispute . . . only a legal dispute over how the law is to be applied to the documents at issue.”) (internal quotations omitted).

[25] Eckart, supra note 23, at 270; see, e.g., Larson v. U.S. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (“Ultimately, an agency’s justification for invoking a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’”).

[26] See, e.g., Kwoka, supra note 15, at 210, 221; Meredith Fuchs, Judging Secrets: The Role Courts Should Play in Preventing Unnecessary Secrecy, 58 Admin. L. Rev. 131, 172 (2006).

[27] See, e.g., Kwoka, supra note 15, at 221; Susan Nevelow Mart & Tom Ginsburg, (Dis-)informing the People’s Discretion: Judicial Deference Under the National Security Exemption of the Freedom of Information Act, 66 Admin. L. Rev. 725, 726 (2014).

[28] The closest existing scholarship to such an assessment is an empirical study by Susan Nevelow Mart and Tom Ginsburg, which models factors that predict whether or not courts will uphold the government’s Exemption 1 withholdings. However, while this study identified factors, such as in camera review or panel composition, that may influence the outcome of Exemption 1 cases, it did not examine the quality of the judicial review itself. Moreover, while Nevelow Mart and Ginsburg noted whether or not courts discussed the adequacy of government declarations in their opinions, the researchers did not examine the declarations and their sufficiency themselves—a step I argue is vital to fully understanding the extent to which the government submits boilerplate justifications for Exemption 1 withholdings and the extent to which courts meaningfully review these withholdings. See Nevelow Mart & Ginsburg, supra note 27. Similarly, a 2003 American Legal Report compiled a list of Exemption 1 cases where courts expressly considered declaration sufficiency, but did not consider cases where courts did not include such a discussion in their opinions, did not report the contents of the affidavits themselves, and did not analyze the significance of these considerations. Shauna C. Wagner, Annotation, Use of Affidavits to Substantiate Federal Agency’s Claim of Exemption from Request for Documents Under Freedom of Information Act (5 U.S.C.A. § 552), 187 A.L.R. Fed. 1 §§ 9–12 (2003).

[29] 5 U.S.C. § 552(a)(4)(B).

[30] Office of Information Policy, U.S. Department of Justice, Summary of Annual FOIA Reports for Fiscal Year 2018, 8 (2019), https://www.justice.gov/oip/page/file/1170146/download [https://perma.cc/M5N6-YS2F] (noting that agencies invoked Exemption 1 in only 0.49% of 2018 requests).

[31] Kwoka, supra note 15, at 206.

[32] One might argue that FOIA is not unique in this regard and that courts such as the FISC wield even more such power. While that statement might be true, the Foreign Intelligence Surveillance Act (“FISA”) Court’s  unique procedural set-up makes analogizing to “normal” judicial proceedings not entirely appropriate, and the furtive nature of the FISC makes an in-depth study more challenging.

[33] See Kwoka, supra note 15, at 200–04.

[34] It is worth noting here that the extreme majority of FOIA cases uphold the government’s decisions to withhold materials, regardless of which exemption was claimed. For a study detailing the rate of success of challenges to withholdings under FOIA, see Verkuil, supra note 11. However, FOIA remains particularly impenetrable in the national security context and litigation patterns and strategies differ somewhat when different exemptions are involved, so these other exemptions lie outside the scope of this Article.