The Memory Hole > Supreme Court Justice Scalia Fought Against the Freedom of Information Act

Supreme Court Justice Scalia Fought Against the Freedom of Information Act

In his earlier role as head legal counsel at the Department of Justice, Antonin Scalia actively worked to curtail and defang the Freedom of Information Act.

The Freedom of Information Act gives us the power to pry documents from federal agencies and the military. For all its flaws and inadequacies, it's still an inspired piece of legislation that has shone some light on governmental activities.

The FOIA was passed in 1966. It became apparent that the law was fairly toothless and bureaucrats were hell-bent on ignoring it, so in 1974 Congress passed major amendments to enforce the Act. This seriously beefed-up version of FOIA was vetoed by President Ford, but Congress overrode him.

As the 1974 amendments were wending through Congress, high-ranking officials at several agencies were scared to death. In CIA documents uncovered in the National Archives by DC-area researcher Michael Ravnitzky, we see that the CIA was dead-set against the strengthening of the Act.

These documents reveal another player who was actively opposing the new amendments: Antonin Scalia. At the time, he was the Justice Department's Assistant Attorney General in charge of the Office of Legal Counsel. In 1986, he would become a Supreme Court Justice.

If this tireless champion of government secrecy and unaccountability had gotten his way, the FOIA wouldn't have been given any muscle. The original, limp version probably never would have given us revealing documents from inside the FBI, CIA, NSA, Pentagon, IRS, EPA, and a hundred other agencies and offices. Uncountable investigative news stories would've never been written or broadcast. And we'd know even less about our government's activites than we do now.

In the CIA memo below—dated 23 Sept 1974—the CIA's Associate General Counsel notes that Scalia is "opposed to the bill."

The segment below is from a CIA memo dated 26 Sept 1974. It sums up a meeting of the Director of Central Intelligence, the CIA's General Counsel, the Attorney General, and Assistant Attorney General Scalia. During the meeting, Scalia brings up the impending amendments to the FOIA. The CIA officials say that the measure, if passed, should be vetoed, so Scalia tells them they "should move quickly to make our views known directly to the President." Not satisifed that his message had been fully received, Scalia called the spooks later that same day, "urging" them to make their wishes for a veto known to the Associate Director to the President, which they did.

Scalia was also part of the Interagency Classification Review Committee (ICRC), a panel made up of represenatives from various agencies who decide what should be declassified. After the enforcement amendments to the FOIA had been passed, Scalia convened a meeting of his ICRC subcommittee. Here, the group agreed that the early court decisions regarding FOIA suits must go their way in order to give them more leverage to deny in the future. The memo hilariously says that this "undoubtedly will cause the painful release of some information." O, the agony!

Scalia and his compatriots agreed that they would have a better chance in court if they could show "a so-called disinterested review of the decision" to deny the release of records. Displaying the height of cynicism, Scalia et al didn't want a truly disinterested review by a third party, just one that seemed impartial. In other words, they were already figuring out how to rig the FOIA deck, a practice that hasn't stopped in the subsequent three decades.

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