" . . . under existing case law, FOIA is not required by the First Amendment. I quote the late CJ Burger's plurality opinion in Houchins v. KQED: 'The Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act.' Here I want to question that view," writes Cornell law professor Michael Dorf.
So, what would a judicially unenforceable but constitutionally obligatory version of FOIA look like? At least for Congress, we can start with the text of Article I, which requires each house of Congress to keep a journal of its proceedings "and from time to time publish the same, excepting such Parts as may in their judgment require Secrecy . . . .” I think it a fair inference that the exceptions clause carries a negative pregnant: Where matters do not require secrecy, the presumption is in favor of openness, a requirement that more or less tracks the structure of FOIA.To be sure, until 1794, the Senate met completely in secret, and to this day, each house has procedures for closed sessions. (Here is a short overview, courtesy of the Congressional Research Service.) I regard the current rules regarding closed sessions as sufficiently circumscribed to fall within a general presumption of openness. As for the Senate practice to 1794, we might say that it was unconstitutional (in the same way that other practices of the era, such as the Sedition Act, are now thought to violate the First Amendment), or we might say that the pre-17th Amendment Senate was less about doing the business of the People than about doing the business of the States, and thus state legislatures could depend on reports of their Senators.
Would a putative judicially unenforceable First Amendment right to FOIA apply to the other branches? This is a relatively easy call with respect to administrative agencies. FOIA was, after all, originally part of the Administrative Procedure Act, and we might readily conclude that the unaccountability of administrative agencies relative to Congress demands that agencies be at least as open to the public as Congress is.