OPEN GOVERNMENT -- In California, five years ago the state constitution was amended by popular vote to make public access to government proceedings and records a right as fundamental as speech. But what about the federal constitution? Does an open government right flow from the First Amendment?
. . . under existing case law, FOIA is not required by the First
Amendment. I quote the late CJ Burger's plurality opinion in Houchins v. KQED: 'The Constitution itself is neither a Freedom of Information Act nor an
Official Secrets Act.' Here I want to question that view," writes Cornell law professor Michael Dorf.
So, what would a judicially unenforceable but constitutionally
obligatory version of FOIA look like? At least for Congress, we can
start with the text of Article I, which requires each house of Congress
to keep a journal of its proceedings "and from time to time publish the
same, excepting such Parts as may in their judgment require Secrecy . .
. . I think it a fair inference that the exceptions clause carries a
negative pregnant: Where matters do not require secrecy, the
presumption is in favor of openness, a requirement that more or less
tracks the structure of FOIA.
To be sure, until 1794, the Senate met completely in secret, and to this day, each house has procedures for closed sessions. (Here
is a short overview, courtesy of the Congressional Research Service.)
I regard the current rules regarding closed sessions as sufficiently
circumscribed to fall within a general presumption of openness. As for
the Senate practice to 1794, we might say that it was unconstitutional
(in the same way that other practices of the era, such as the Sedition
Act, are now thought to violate the First Amendment), or we might say
that the pre-17th Amendment Senate was less about doing the business of
the People than about doing the business of the States, and thus state
legislatures could depend on reports of their Senators.
Would a putative judicially unenforceable First Amendment right to FOIA
apply to the other branches? This is a relatively easy call with
respect to administrative agencies. FOIA was, after all, originally
part of the Administrative Procedure Act, and we might readily conclude
that the unaccountability of administrative agencies relative to
Congress demands that agencies be at least as open to the public as