A Debate With Scalia

Staff, U.S. News & World Report, Feb. 16, 2016

Supreme Court Justice Antonin Scalia passed away on Saturday in Texas at the age of 79. In 1982, Scalia, who was a professor of law at the University of Chicago at the time, participated in a U.S. News debate about the Freedom of Information Act, explaining why he favored cutting access to government data. New York Times columnist William Safire would later write that the Q&A segment "focused White House attention on" Scalia, helping him get a federal judgeship and aiding what Safire called Scalia's "meteoric rise to contention for the next High Court vacancy."

Why do you feel that the Freedom of Information Act should be cut back?

The Freedom of Information Act – or, more specifically, the 1974 amendments to the act – came out of an era of exuberant, single-minded pursuit of individual objectives. We are now discovering that such tunnel-vision zeal – whether directed toward the environment or automobile safety or freedom of information – is indulged at excessive cost to other important objectives. It is time to remedy the excesses in the 1974 amendments, while not gutting the law or turning away from the desirable goal of freedom of information.

What are some of the changes needed?

For one thing, persons or corporations requesting information under the Freedom of Information Act should pay a larger proportion of the taxpayers' cost of supplying it. I know of one horrible example in which a single request cost the government over $400,000. To say that the government's files should not be kept secret from its citizens is not to say that the government should become the world's largest free library reference service.

Another change needed is in the area of law enforcement and national security. Currently, material in investigative files can be withheld only if one of a number of quite narrow conditions are met. Law-enforcement officers and national-security officials have found those conditions inadequate. Many requests are made by felons with the explicit intention of finding out the names of informants.

My major objection, though, has to do with information about private institutions. When the act was passed, it was seen as a means of revealing what the government was doing, for the benefit of the public at large. But in operation, it has been used largely as a means of revealing what private companies are doing, for the benefit of their adversaries and competitors. 

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