Deference, Chenery, and FOIA

Abstract

Litigation fails to check adequately agency secrecy decisions under the Freedom of Information Act (“FOIA”). To vindicate the public’s right to know what its government is up to, the dynamic of FOIA litigation needs fundamental change. This Article builds on previous work documenting that courts routinely defer to agency decisions to withhold records from the public, despite Congress’s clear mandate for de novo judicial review. In this Article, a paradox is revealed: while courts do not effectuate true de novo review, they rely on that statutory standard to allow agencies to raise claims of exemption in litigation not relied on in the agency’s response to a request for information. As a result, requesters end up in a worse position under de novo review than they would have been if Congress had chosen deferential review in FOIA cases. Given existing practice, FOIA’s goal of transparency would be best served by relocating FOIA within a more typical administrative law paradigm. Chiefly, it contends that the observed deference justifies applying the Chenery principle to FOIA litigation, which would preclude agencies from asserting exemption claims for the first time in litigation. This Article demonstrates that not only can the application of Chenery be justified doctrinally and theoretically, but also that the benefits of constraining agency litigation positions outweigh potential costs, rendering FOIA litigation a more fundamentally fair process that better advances the goals of FOIA.