The controversy over the delayed release of Robert Mueller’s report, including the nature and extent of the redactions, raises large questions about government transparency in general. We can make progress in answering these questions by examining an important presidential memorandum, still in effect and binding all executive agencies in the federal government (including the Justice Department, which oversees disclosure practices).
The memorandum is nominally about the Freedom of Information Act, but it speaks far more broadly. It begins plainly: “A democracy requires accountability, and accountability requires transparency.” It insists that “in the face of doubt, openness prevails.”
Then it gets more specific.
It directs that “nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve.” It announces that the government “should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears.”
The memorandum was issued on Jan. 21, 2009, and it was signed by President Barack Obama. Put to one side the question whether the Obama administration abided by the principles that Obama embraced on that day. For present purposes, the principles are what matter, and they are sound.
They should govern both congressional and public evaluation of Attorney General William Barr’s choices about how much of the Mueller report to release.
Barr’s letter to members of Congress, promising to release a redacted version of the report by mid-April, lists legitimate reasons for confidentiality. The most important of these is national security, including material identified by the intelligence community “as potentially compromising sensitive sources and methods.” It would not be at all surprising if the Mueller report contains some such material.
Barr also refers to material that relates to ongoing investigations, which may be kept confidential under the Freedom of Information Act. It is certainly appropriate to protect the privacy interests of “peripheral third parties” and to respect legal restrictions on disclosing materials relating to grand-jury investigations.
Perhaps surprisingly, Barr does not say even a word about executive privilege, which provides a degree of protection against disclosure of discussions between the president and high-level advisers. Mueller’s investigation probably explores some such discussions.
So there is an open question: Will the Trump administration claim executive privilege?
Whether or not it does, there is a serious risk whenever executive-branch officials are deciding what to disclose: The legitimate grounds for confidentiality will be invoked when they do not really apply. In the worst cases, those grounds are the publicly articulated justification, when the real reason is that “public officials might be embarrassed by disclosure” or that “errors and failures might be revealed.”
The Russia probe puts those concerns in the brightest imaginable light.
All attorneys general occasionally find themselves in an exceedingly difficult position. On the one hand, their highest duties are to the law and to the American people. On the other hand, the president is their boss. It is sorely tempting to defer to his wishes.
But sometimes their highest duties have priority. For any attorney general, now or in the future, it is essential to remember: “Nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve.”
Cass R. Sunstein is a Bloomberg Opinion columnist. He is the author of “The Cost-Benefit Revolution” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”