The Opacity of Transparency

• Author: Mark Fenster
• Position: Associate Professor, Levin College of Law, University of Florida
• Pages: 02

Mark Fenster: Associate Professor, Levin College of Law, University of Florida. Thanks to comments and suggestions along the way from colleagues and friends including Tom Cotter, Heidi Kitrosser, Lyrissa Lidsky, Lars Noah, Bill Page, and Larry Solum, and many thanks to Robert Norway and Grace Kim for excellent and patient research assistance. I am grateful for financial support from the Levin College of Law during the Article's extended germination. Page 888

Introduction

By any commonsense estimation, governmental transparency, defined broadly as a governing institution's openness to the gaze of others,¹ is clearly among the pantheon of great political virtues.² A fundamental attribute of democracy,³ a norm of human rights,⁴ a tool to promote political and economic prosperity and to curb corruption,⁵ and a means to enable effective relations between nation states,⁶ transparency appears to provide Page 889 such a remarkable array of benefits that no right-thinking politician, administrator, policy wonk, or academic could be against it.⁷ But transparency is not merely a political norm; candidates, partisans, and activists utilize it as a rhetorical weapon to promise full-scale political and social redemption.⁸ Contentious political campaigns and popular political consciousness seethe with allegations that government officials engage in secret, corrupt activities (if not full-scale conspiracies) and overflow with promises that sufficient organization, popular will, and correct leadership will finally provide citizens with the responsive, trustworthy, and above all, knowable government they deserve.

Nevertheless, transparency's status as a legal obligation for government entities in the United States and as an individual right for American citizens is remarkably vague.⁹ And notwithstanding occasional periods of openness, Page 890 government seems eternally resistant to disclosure.¹⁰ Current political developments-specifically, the Bush Administration's efforts to control the flow of information from the executive branch¹¹ and post-September 11 concerns that government information disclosures might breach homeland security¹²-portend a new period of "retrenchment" (one begun during the Page 891 latter years of the Clinton Administration) in the oft-delayed march towards transparency's promise.¹³ The Bush Administration may occasionally express its commitment to openness,¹⁴ as do most courts when they review challenges to government agencies' refusals to disclose information.¹⁵ But when executive officers and agencies routinely deny access to the government's inner workings on the grounds that some exception or other privilege overrides a statutory disclosure requirement, open government seems more like a distant, deferred ideal than an actually existing practice.¹⁶

This regular departure from a principle that is so universally embraced seems bizarre. But it gets worse. All parties to the uncertain reach of transparency find the legal obligations and enforcement mechanisms of open government laws to be immensely frustrating.¹⁷ In the federal and state Page 892 systems, those who request information under the various freedom of information and "sunshine" statutes regularly face delays and blanket denials.¹⁸ The result of one recent poll sponsored by open government advocates found widespread public concern that government secrecy is pervasive and that the public has too little access to public records and meetings.¹⁹ At the same time, agencies engaged in law enforcement, defense, and national security consider open government laws to be at best a burden and, at worst, a threat to their work.²⁰ Moreover, the financial and administrative costs of complying with these laws are significantly greater than zero, and these costs may adversely affect the ability of all federal, state, and local agencies to make effective decisions in a rational, deliberative, and efficient manner.²¹ One could dismiss these competing concerns as complaints about the unavoidable costs and inefficiencies of democracy and the inevitable limits required to maintain a secure nation and functional government. But, to return to the widespread recognition of its status as a preeminent political norm, if transparency is so essential, why do we settle for less than its perfection? Why must we worry about its costs?

The problem posed by these questions and the frustrations with the open government laws that the questions represent originates in the concept of "transparency" itself. As both an instrumentalist project to achieve open government and, more broadly, a descriptive concept claimed to be at the core of democracy, transparency fails to consider the tensions it conceals. It assumes too much of the state, of government information, and of the public, and as a result, fails to produce or to helpfully inform an effective, mutually acceptable level of administrative openness. The easy embrace of Page 893 transparency as a basis for normative and instrumental ends evades more difficult questions: When is transparency most important as an administrative norm? To what extent should an agency be held to that norm? These challenging but necessary questions typically lead transparency proponents and open government laws to concede a set of exceptions to disclosure that are just as broad and, ironically, just as opaque as the transparency norms themselves. Thus, where disclosure requirements threaten to reveal information regarding national security, national defense, and law enforcement investigations, the positive norms of transparency must give way to state claims for the need to hoard information for the public safety and good. These exceptions, in turn, unravel the ideal of transparency by vesting broad discretion about whether and how much to disclose in the very state actors that have claimed the exceptions in the first place.²²

The result is a ritualistic struggle over openness and privilege, with grave consequences. An overly broad conception of transparency with similarly broad exceptions too often leads to excessive openness requirements placed upon some levels of government and administrative decisions and too rarely leads to effective openness requirements when the state makes its most important, irreversible commitments to a particular policy. Furthermore, a legislative or constitutional commitment to transparency does not magically lead to the informed, deliberative, and/or participatory public that advocates claim will arise when the state finally disgorges its secrets. "Transparency," used in its strongest and most abstract form in the context of open government, acts as a term of opacity that promises more than it can deliver and ultimately fails to further its stated end of a better, more responsive, and truly democratic government. Rather than abstract normative claims and rhetoric, what is needed is some realism about transparency's costs and benefits for the public, for governance, and for the relationship between the public and government.

Abandoning transparency in its broadest conceptual form does not, however, require abandoning a commitment to open government and democracy. Rather, recognizing transparency's limits forces us to recognize the practical limits of imposing open government requirements on a bureaucratic state to which we delegate significant authority and of which we have high expectations. As a general matter, any effort to regulate disclosure must clearly and, as much as possible, precisely account for both the relative costs and benefits of openness. What kinds of governmental decisions and political participation are most likely to benefit from transparency? What kinds of costs and dangers will government officials and institutions face as a result of meeting transparency requirements? The implications of such an accounting for transparency rules have not been sufficiently considered; instead, transparency advocates and skeptics talk past each other within the Page 894 stale, abstract discourse of transparency theory, in which each normative and consequential claim faces an equally valid counter-claim.

This Article seeks to begin asking the questions above by rethinking transparency as a concept. It begins with a survey of the literature on transparency's meaning as a component of political theory, law, and policy. Part I summarizes the arguments in favor of and against strong forms of transparency imposed on government entities and describes the conceptions of transparency's necessity and limits that are built into democratic theory. The Article characterizes the ground shared by these arguments as comprising a "transparency theory" that provides an underlying justification and framework for open government laws. Part II explains transparency theory and the balance it attempts to strike between the thrust of disclosure requirements and the parry of governmental privilege...