Editor’s Note: Madison was right, achieving the public good needs to be a higher priority for government officials than satisfying public curiousity.
By Cass R. Sunstein
Sens. Patrick Leahy of Vermont and John Cornyn of Texas, leaders of the Judiciary Committee, have long shown an admirable commitment to open government, and their recent bill to amend the Freedom of Information Act is winning a ton of praise. Some of its reforms make sense, but, unfortunately, its key provision is a horrible idea. By reducing the protection now given to deliberations within the executive branch, it would have a chilling effect on those discussions.
Leahy and Cornyn came up with their proposal because they believe that in response to Freedom of Information Act requests, the executive branch has too often claimed the deliberative-process exemption. In 2013 alone, the exemption was used more than 80,000 times. And many advocates of open government have argued that they should be entitled to learn who said what to whom.
They’re wrong. Accountability is important, and in many contexts, we need a lot more of it. It is certainly possible that the deliberative-process exemption has been claimed too often. But accountability should not mean that members of the executive branch — any more than senators or judges — ought to be forced to disclose their internal debates. Madison saw the reason: Even if disclosure of such conversations might interest the public, it is not in the public interest.