A Convenient Blanket of Secrecy: The Oft-Cited but Nonexistent Housekeeping Privilege
![handle is hein.journals/wmbrts14 and id is 755 raw text is: A CONVENIENT BLANKET OF SECRECY: THE OFT-CITED
BUT NONEXISTENT HOUSEKEEPING PRIVILEGE
William Bradley Russell, Jr.*
[The] housekeeping statute, destitute as it is of all vestige of
definitions and standards, is susceptible of being tortured, and has
been tortured, with judicial sanction, it must be admitted, into a
claim of privilege against disclosure and inspection so all-
encompassing that it may fairly be said that there is no hope of
obtaining inspection of a public record not specifically opened by
Congress except through the courtesy of the Government.'
INTRODUCTION
Federal agencies today often claim a privilege of confidentiality that is really no
privilege at all. These claims are based on a relatively unimportant housekeeping
statute that grants the heads of federal agencies the power to make regulations for
the custody, use, and preservation of agency records.2 The law on this matter is
widely misunderstood. Federal agencies often interpret this housekeeping statute
as granting a substantive privilege to withhold information. Indeed, there are many
valid reasons for a federal agency to claim a privilege. And the housekeeping
statute facilitates agency decisions about claims of privilege by allowing agencies
to make regulations requiring subordinates to report to decision-makers subpoenas
for agency documents.' The statute thus assures that only those approved by an
agency will make decisions about whether to comply with a subpoena or to assert
a claim of privilege. The housekeeping statute can do nothing more than this. If an
* J.D. Candidate, William & Mary School of Law, 2006. The author wishes to thank his
wife, Casey, for her love and support at every stage of the note-writing process. The author
is grateful also to his parents, and Sam, Hilda, Jim, and Michele for their comments on early
drafts of this note, and to the editors and staff of the Bill of Rights Journal for their hard
work.
' Availability of Information from Fed. Dep 'ts and Agencies: Hearings Before a
Subcomm. of the Comm. on Gov t Operations (pt. 1), H. R., 84th Cong. 12 (1955) (statement
of Harold L. Cross, Freedom of Information Counsel, American Society of Newspaper
Editors).
2 5 U.S.C. § 301 (2000).
United States ex rel. Touhyv. Ragen, 340 U.S. 462,468 (1951) (When one considers
the variety of information contained in the files of any government department and the
possibilities of harm from unrestricted disclosure in court, the usefulness, indeed the
necessity, of centralizing determination as to whether subpoenas duces tecum will be
willingly obeyed or challenged is obvious.).](ViewImageLocal?handle=hein.journals/wmbrts14&div=24&collection=journals&method=preview&ext=.png&size=3)
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A Convenient Blanket of Secrecy: The Oft-Cited but Nonexistent Housekeeping Privilege
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