OPEN GOVERNMENT — Everyone knows that the deliberative process requires secrecy in order to encourage the candid expression of views to and by decision-makers that ensures the highest quality policy development. The trouble is, what everyone knows is an assumption, not a fact, and often contrary to fact, according to a new law review article noted by government secrecy pundit Steven Aftergood:
When the Supreme Court ordered the Nixon White House to comply with a subpoena for the Watergate tapes in the 1974 case of United States v. Nixon, it also endorsed the general proposition that secrecy is essential to presidential deliberations since it permits greater candor and therefore promotes a superior policy outcome. "A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately," the Court said.
The premise that candor is incompatible with disclosure has become a cornerstone of the edifice of government secrecy, and an axiom of freedom of information policy, which provides an exemption for deliberative records.
Yet it is mistaken, according to an iconoclastic new law review paper, and should be corrected.
It seems intuitively obvious that private discussions lend themselves to greater candor than do public ones. In private, anyone might be more willing to reveal ignorance or uncertainty, to express personal emotion, or to consider risky or improbable alternatives.
But this is "a highly contestable view of human nature," write Eric Lane, Frederick A.O. Schwarz, Jr., and Emily Berman, and it has little empirical basis. What's worse, they say, is that the equation of candor and confidentiality fails to take into account the corrosive effects of secrecy.
In practice, according to the authors, secrecy may actually discourage candor. "When policy deliberations are deemed likely to remain secret, dissenters from the majority view might be more reluctant to give voice to their concerns…. And decision makers themselves might feel freer to silence dissenters when they do not expect their decision-making processes to be subject to scrutiny." This was often reportedly the case during the George W. Bush Administration when, according to multiple accounts cited in the paper, presidential advisors declined to question or to challenge confidential policy judgments.
Furthermore, secrecy is not necessary for candor. Congress rarely invokes secrecy in its deliberations, though it is constitutionally authorized to do so. As is demonstrated in many political contexts, it is perfectly possible for policy discussions to be both open and candid, with no detrimental effect. (Under San Francisco's unusually bold 1999 Sunshine Ordinance, observed Joseph Lorenzo Hall of UC Berkeley, deliberative material is entirely subject to disclosure.)
Finally, the authors write, candor itself does not necessarily promote good decision making. "While candor may have allowed the president to explore the possibility of engaging the CIA to interfere with an FBI investigation, surely such candor should not be encouraged by the promise of secrecy…. In many of the contexts in which candor is used as a justification for secrecy, the candor that is being shielded is candor that disserves the public interest."
The authors emphasize that they do not categorically oppose confidential deliberations nor do they advocate that every official meeting be broadcast on live television. Rather, they argue that the presumption of deliberative secrecy adopted by the "Nixon" Court is unjustified by principle or practice, and that it should be replaced by a general presumption of openness, especially with respect to congressional requests for access to executive branch records.
"The presumption established by the 'Nixon' Court endorsed and furthered a particular perception of the nature of government decision making — that it is a process whose details should remain hidden behind a veil of secrecy…. It gives presidents and their advisors reason to believe that secrecy is standard operating procedure."
"Dismantling the 'Nixon' canon — as this Article advocates — would instead foster a culture where the expectations were reversed, where ideas about what is appropriate for public discussion are expanded, and where secrecy must be justified by a risk of significant harm — not harm to the politicalprospects of the incumbent officials, but to the interests of the nation as a whole."
See "Too Big a Canon in the President's A
rsenal: Another Look at United States v. Nixon" by Eric Lane, Frederick A.O. Schwarz, Jr., and Emily Berman, George Mason Law Review, volume 17, no. 3, Spring 2010.
The California version of this doctrine was discovered by the California Supreme Court in 1991, deferring like its federal counterpart to the demands of the chief executive for shielding from public scrutiny. The four justices in the majority in Times Mirror Co. v. Superior Court (State of California), 53 Cal.3d 1325 were all appointees of Governor George Deukmejian, and one (Justice Baxter) had been his appointments secretary. And it was that governor's appointment calendars that the court held to be non-disclosable on the basis that opening them would
show whom the Governor chose to meet with and thus reveal the issues or events
he considered important, thereby impairing the quality of his
decisions and the decision-making process of his office. The Legislature has never codified this decision, but the Supreme Court has, in adopting its own rules for disclosure of court administrative records.