Documents recently released from the Ronald Reagan library reveal that, while acting as White House associate counsel during the Reagan administration, John Roberts supported government secrecy and strenuously avoided any implication that the White House had an obligation to provide information to anyone, including Congress. On occasion, Roberts made small efforts to assist those seeking information. These, however, tended to be minor issues; and, even in these efforts, Roberts typically included disclaimers to prevent any assumption that the administration was required to respond. Freedom of Information In one memo, Roberts expressed aversion to government openness, recommending the removal of a reference to the Freedom of Information Act (FOIA) from President Reagan's radio address to avoid endorsing the law. In the original text of the radio address, which condemned the Soviet Union’s handling of a 1983 incident, in which its military shot down a Korean Airline passenger plane, the president would have acknowledged that "freedom of information" is necessary to democracy. Roberts noted that the statement clashed with the administration's efforts to limit FOIA and advised replacing "freedom of information" with "free speech." "'Freedom of information’ is of course a legal term of art, and we have, quite correctly, taken several steps to limit the scope and certain abuses of the Freedom of Information Act." That Roberts endorsed Reagan administration efforts to limit FOIA as undertaken “quite correctly” here offers a rare glimpse into Robert's personal opinions on freedom of information. In another memo, Roberts appears willing to bend FOIA to avoid disclosure. Generally, when the White House received requests for information under FOIA, Roberts used standard response language, informing the requester that FOIA did not apply to the White House. Responses always noted that some offices of the executive branch were covered by FOIA and advised the requesters to resubmit their requests to specific offices. The White House exemption from FOIA is a fairly well established legal precedent, thus these responses reveal little of Roberts’ position on FOIA. However, on at least one occasion Roberts advised claiming the White House exemption when he did not believe it was legally justified. On March 30, 1984, Diane Powers of the White House Photo Office inquired if she could deny requests from photo collectors. Apparently, the Photo Office sought to avoid satisfying the deluge of requests under FOIA for copies of photos of the president with other world leaders and on other occasions of state. In a memo, dated April 27, 1984, to White House Counsel Fred Fielding, Roberts advised that "as an initial matter" the White House "take the position that the Photo Office is not subject to FOIA." Roberts also noted that "While I have no doubt that this is the position we should take, I must point out that it is not clear that it will withstand legal challenge." Roberts explained in the memo that the legal precedent that exempts the White House from FOIA applies to the president's personal staff or those whose sole job it is to advise and assist the president. Clearly, the Photo Office would not fit into either of these categories. However, Roberts wrote that it is "unclear" whether the Photo Office would satisfy one of these criteria and acknowledges that a court asked to rule on the issue "could view the Photo Office as a discrete entity with functions that go beyond advising the President." In this instance, Roberts went to questionable lengths to stretch the White House's FOIA exemption simply to shield a White House office from inconvenient requests. Robert's strong stance is likely the result of efforts to prevent any part of the executive branch from committing to any public disclosure requirements. Presidential Records Act Shortly before Reagan took office, Congress passed the Presidential Records Act of 1978 (PRA) to impose limited requirements for public disclosure upon the White House. Under the PRA, presidential documents would be archived and made public 12 years after a president leaves office. A memo, dated September 9, 1985, drafted by Roberts for Fielding, expressed great concern over the requirements of the new law. Specifically Roberts worried that the 12-year limit on restricting access was too short and that the "prospect of disclosure after such a brief period might inhibit the free flow of candid advice and recommendations within the White House." Roberts recommended "steps should be taken before the end of the Administration to cure the infirmities of the Act." He advised either a legislative amendment to the law or archive regulations that would allow "executive privilege claims to block disclosure after the expiration of the statutory 12-year period." While Robert's lack of enthusiasm for disclosure is disheartening, it is especially troubling that he would advise attempting to thwart the intent of Congress with a regulatory rulemaking. Roberts noted in the memo that claims of executive privilege would hinge on the president in power in 2001. As it turned out, President Bush, still less supportive of government openness, forcefully exerted executive privilege to prevent the automatic release of Reagan documents as mandated by PRA. In fact, President Bush issued an executive order empowering past presidents and their representatives to invoke executive privilege and restrict presidential papers from the public indefinitely. This effort to block the PRA, which is currently being challenged, may eventually reach the Supreme Court, creating a potentially interesting predicament for the former-White House counsel, were Roberts to be confirmed. Congressional Access One might think Congress would more easily gain access to government information held by the White House, and that the administration would more readily disclose information to Congress on issues being decided by the legislature. Roberts, however, advised the Reagan White House against such cooperation and transparent dealings with toward Congress. An April 23, 1985 memo drafted by Roberts for Fielding objected to the disclosure to Congress of information supporting the president's decision not to seek voluntary agreements for production restraint from copper-producing countries. Roberts asserted that "such documents could be protected from even compelled disclosure by a claim of executive privilege." Roberts appeared concerned that Congress would view the release of information as a precedent and expect disclosure of similar documentation in the future. "We should not gratuitously release such materials, even on a 'confidential basis,' to Congress. Doing so creates a precedent that will cause problems when we wish not to disclose similar material in the future, and also whets the appetite of Congress for additional protected documents." Roberts envisioned a future issue for which Congress would want additional information on the administration's process and deliberations to help it in its own efforts on the issue. Interestingly, he assumes that the White House would want to withhold this information from Congress. Similar to the Presidential Records Act, Roberts' comments from twenty years ago have remarkable resonance with recent events. Congress sought additional information from the Bush administration on Vice President Cheney's Energy Task Force after allegations were raised that the energy proposal was almost entirely based upon the wish lists of major energy companies. The administration refused to disclose the information, resulting in an unprecedented suit brought by Congress against the executive branch. The U.S. District Court for DC upheld the administration's use of executive privilege and Congress dropped the case. Private lawsuits from public interest groups did, however, result in the disclosure of thousands of pages from the Energy Task Force. Conclusion Roberts' own documents from his time as a White House assistant counsel show the Supreme Court chief justice nominee was neither a supporter of government openness or of executive branch transparency. He advocated against FOIA, the Presidential Records Act, and disclosure to Congress. Indeed, the near-constant struggle to obtain information from our federal government is why the Supreme Court regularly hears cases on granting public access to government information. Given the numerous restrictions put into place in recent years, including questionable homeland security restrictions, expanded use of executive privilege, denials of routine FOIA requests, and repeated stonewalling of the public and Congress on issues ranging from torture to energy policy, if his nomination is confirmed Roberts will undoubtedly hear new cases involving access to government information. What is in doubt is to what extent Roberts holds the same views now that he held as White House counsel. If he has retained the views he expressed during his White House years, surely we can expect his opinions to favor government secrecy over transparency.