Why does the ABA have a secret email list?

I often write about freedom of information statutes and policies. These important laws try to ensure greater citizen awareness and oversight of government action by providing a means for the public to learn the details of the often opaque behavior of officials. I also engage in research in the area of privacy. The distinction between the two areas is relatively simple, if not sometimes challenging to courts and others.

The public owns the government. As such, citizens are entitled to know what government actors are doing. In contrast, individuals are entitled to privacy for their personal information in which they singularly have a propriety interest.

One reason we need and have openness laws is that government officials sometimes view differently the benefit of public access when their actions come under scrutiny. Indeed, this notion transcends government action.

The American Bar Association has properly supported, in different contexts, both greater openness and protecting privacy. As discussed, this is a consistent position, notwithstanding the slight rhetorical challenge.

The ABA straddles an interesting line; it's a private organization, but it also serves as the accrediting body on behalf of the United States Department of Education of American law schools. In addition to its role in legal education, the ABA is significantly involved in the inherently public issue of judicial nominations across the country. Thus, its moral obligation towards openness is compelling.

More practically, information that the ABA sends to public member schools is almost always already subject to the schools' state Freedom of Information Acts (FOIAs), although even purely governmental actors are not obligated to affirmatively disclose everything subject to a FOIA absent a request. But such a commitment to openness would be admirable.

I found it curious to learn that the ABA has an email list that it shields from the gaze of many within and outside of legal academia. The list, leap-deans@mail.americanbar.org, which is part of the ABA's Section on Legal Education and Admissions to the Bar (which the ABA designates as "LEAP"), is only for law-school deans — and the ABA really means it! Indeed, the ABA desires to keep both the existence of this list and its contents tightly under wraps.

First, the ABA doesn't publicly disclose this list. On the ABA's website, in the section on legal education "Discussion Groups," the ABA states:

"The Section has four listservs that are open to members.

LEAP-ABAQUESTIONNAIRE: For users of the ABA Annual Questionnaires

LEAP-ADJUNCTFACULTY: For adjunct faculty at ABA-approved law schools

LEAP-ASSOCIATE-ASSISTANT-DEANS: For associate and assistant deans at ABA-approved law schools

LEAP-DEANOFSTUDENTS: For deans of students at ABA-approved law schools."

As you can see, while there are four listservs of varying levels of inclusiveness presented, including two for secondary administrators, none is the Deans' list. In addition, the ABA provides the following instruction to the participants in the secret list:

"IMPORTANT: This list is confidential. You should not publicly mention its existence, or forward copies of information you have obtained from it to third parties." (Allcaps in original.)

A prohibition on even "publicly mention[ing] its existence"? George Orwell might appreciate the ABA's variant of Newspeak, but I'm not sure openness advocates do.

The ever present difficulty with freedom of information laws is that government actors often assert fidelity to the ideals of openness but are less committed to the implementation given that the latter inevitably involves both effort and third-party scrutiny. As an organization that makes policy recommendations and undertakes quasi-governmental activities, the ABA should strive for greater transparency in its own organization as it has proposed for others.