Paulina Perlin has posted Defense and Deference: Empirically Assessing Judicial Review of Freedom of Information Act’s National Security Exemption (Forthcoming in 11 Harvard National Security Journal _ (2020)) on SSRN. Here is the abstract:
Described by some scholars as the “crown jewel of transparency,” the Freedom of Information Act (“FOIA”) allows the public to request records from executive agencies in order to provide insight into government activities and their legal justifications. To balance competing interests in public disclosure and government secrecy, FOIA also contains nine exemptions under which agencies may withhold requested information. However, many scholars, civil liberties advocates, and even judges have observed that this balance is off- kilter, particularly where national security information is concerned. FOIA’s first exemption, which allows the government to withhold information properly classified by executive order in the interest of national defense or foreign policy, has proven nearly impenetrable. Yet while plaintiffs’ slim success rate in Exemption 1 litigation is concerning, the litigation process’s quality is even more troubling. Despite congressional efforts to establish de novo review of withholdings under FOIA, many commentators suspect that courts largely rubberstamp the government’s Exemption 1 claims.
This Article is the first to test that claim empirically. It systematically classifies agencies’ court submissions by quality and analyzes that quality’s effects on case disposition. In this study, courts upheld the government’s Exemption 1 claims despite substandard submissions 76.2% of the time, and submission quality did not impact case outcome in any statistically significant way. This finding implicates not only the effectiveness of FOIA, but also key pillars of the American legal tradition, such as the presumption of transparency, democratic principles, and the legitimacy of the judicial process. It also calls into question the extent to which courts are willing to check the executive branch on national security matters, even when mandated to do so by Congress.
The Article then presents a probability reporting requirement as a novel and practically implementable solution that would not only encourage more meaningful judicial review, but would also incentivize the government to consider more carefully what information merits continued classification.