Government Transparency and Secrecy: An Examination of Meaning and Its Use in the Executive Branch

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Although classification and declassification policies change incrementally from president to president and in response to national security crises or their absence , the general trend holds steady, and the pool of classified documents simply remains unfathomably large. Consider too the expectations that met the Obama administration upon taking office after a campaign that pledged to remove the veil of secrecy of the George W.

Embassy in Benghazi, Libya. In , more lawsuits were filed against the Obama administration under the FOIA than in any year since , suggesting that the administration was willing to be hauled into court rather than disclose information to those who request it. Scholars and transparency advocates generally agreed with this assessment. Perhaps the right leader—overseeing the correctly sized, ethical bureaucracy—could avoid the lure of information control.

Perhaps, too, we are merely awaiting the proper implementation of the transparency fix. Indeed, transparency advocates have initiated important, incremental legal reforms that have allowed the state to be seen and that have informed the public or at least parts of it on many topics. But they have not been able to make the state transparent. They begin with the assumption of a solvable problem but then inevitably face the limits of their own ability to impose their solution on a recalcitrant, unwieldy state. Part of the problem is structural, at least in the United States.

The Supreme Court has held that there is no individual right to government information in the U. Their commitment to such rights and obligations always seems to waver and is limited by their own self-interest. The FOIA, for example, extends only to the executive branch. The problem also appears to be permanent. Notwithstanding occasions of openness, government seems eternally resistant to disclosure.

The endemic frustration with secretive governments no doubt emanates from some combination of official malfeasance and nonfeasance, and from the constitutional distribution of power and sedimented institutional structures. But the unresolvable political, legal, and social conflicts embedded within the concept of transparency itself cause this frustration.

Transparency is only one means to achieve the end of a more responsive state that more effectively achieves democratically agreed-upon ends. Overinvestment in transparency as a metaphor leads open government advocates to lament ineffective administrative laws and other measures that inevitably fail to make the state permanently and entirely visible. The many ongoing campaigns to open the state have not led us to the promised land of good, legitimate governance. At the same time that transparency never seems to fix the state, the state itself claims that it requires and enjoys the right to keep secrets.

Officials continually and successfully invoke this interest before legislators, courts, and the general public. The secrecy privilege offers a mirror image to the transparency ideal, constituting a conceptual ideal that helps explain the systematic transparency problem we face. To understand the relationship between the transparency fix and the secrecy privilege, consider two alternative ways of understanding transparency—a strong form, which seeks a means to fix the secretive state, and a weaker one, which concedes the existence of a secrecy privilege. In its strong form, the transparency ideal represents the precise basis and measure of a state that purports to be democratic.

Government doors should never be closed, and all government information should be available to the public as it is created or collected. The state should be as perfectly visible as possible. It would make available the universe of secret documents held by those public and private institutions that govern our lives.

At the apex of its apparent power, WikiLeaks claimed the ability to cure the state of its ills by making it fully visible against its wishes. More advocates of transparency subscribe to a weaker ideal that views the unexpurgated, perfectly visible state as excessively open in a way that renders it vulnerable to its enemies and incapable of operating deliberatively and effectively.

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They are willing to concede the need, or at least the advisability, of asking complex questions: When is transparency most important as an administrative norm? To what extent should an agency be held to that norm? When must secrecy bend to transparency, and when must transparency give way to secrecy?

These challenging but necessary questions typically lead many transparency proponents and open government laws to concede a set of exceptions to disclosure that are just as broad and opaque as the transparency norms themselves. This requires the transparency fix to stare down its powerful mirror image—the secrecy privilege. This commitment to a balance reduces the transparency fix to a line-drawing exercise between information that can be safely disclosed and that which must be kept secret.

Some government documents and meetings must remain privileged, but the precise scope of that privilege in hard cases remains hazy and contested. Once an effort to fix transparency relies upon drawing a line between defensible and indefensible secrecy, transparency becomes one among many values vying for legal and administrative predominance. It is subject to all of the different means by which policymakers and courts resolve conflicts among competing visions of the good—situational distinctions among the kinds of actions in which government agencies engage; rank-ordering based on political commitments to democratic norms; cost—benefit analysis; the separation of powers among the executive, legislative, and judicial branches; and the like.

Transparency emerges from this process as something less than an essential fix and more as one among many tools available to regulate the administrative state. Thus, the state might prefer secretive deliberations or privacy , or it might prefer immediate, efficient decision making such as national security or law enforcement concerns over transparency.

Government Transparency and Secrecy: An Examination of Meaning and Its Use in the Executive Branch

Once open government laws begin to recognize exceptions to disclosure, the exceptions in turn threaten to 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. Divining when transparency must give way because disclosure would harm the public good is a complex task, one that leads to frustrating debates and ritualistic political and legal struggle over abstract democratic ideals and deeply held anxieties.

Used in its strongest and most abstract form in the context of open government, it presents an impossibly simple ideal of the state as a holder and potential conduit of information that can be made available in real time, whether or not officials agree.

Introduction

Used in its weaker form, as it more typically is, transparency represents merely one value among others but nevertheless requires privilege and priority that it often does not receive. And however it is viewed, transparency appears to fail ultimately to further its stated end of a better, more responsive, and truly democratic government.

Government Transparency and Secrecy: An Examination of Meaning and Its Use in the Executive Branch

Thus transparency itself constitutes a problem. Notwithstanding the enactment of open government laws and presidential commitments to make the executive branch transparent, the state remains distant, and members of the public and opposition politicians regularly complain about an excessively powerful, secretive government.

And too often, the public appears incapable of acting like the democratic public that transparency assumes must exist.

We long for a state that we can see and know, but we never seem to get it. The Global Coalition Against Corruption, "faq," at http: Show all pages in this report. This report can be searched. Results may vary based on the legibility of text within the document. Basic information for referencing this web page.

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Government Transparency and Secrecy: These controls are experimental and have not yet been optimized for user experience. The following text was automatically extracted from the image on this page using optical character recognition software: An Examination of Its Use in the Executive Branch This report examines statutes, initiatives, and other items that seek to make information more available to the public as well as those that seek to protect certain information from release to the public.

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