When applied as a public administrative norm, the term and concept “transparency” has two intertwined meanings. First, it refers to those constitutional and legislative tools that require the government to disclose information in order to inform the public and create a more accountable, responsive state. Second, it operates as a metaphor that identifies and decries the distance between the public and the state, and that drives and shapes the desire for a more perfect democratic order. Viewed together, these two meanings both demand efforts to impose legal obligations on the state to be “open” and suggest that such efforts are necessary to allow the public to eradicate the state’s physical, organizational, and affective remove or mitigate its ill-effects. This article considers the implications of the latter meaning, and that meaning’s effect on efforts to develop and implement the technocratic tools in the former meaning. It argues that the state cannot in fact be made thoroughly visible - that the state’s organizational complexity, territorial dispersal across space, and enclosure within buildings inevitably obstruct the public’s view. Reviewing the law and culture of “transparency,” the article concludes that the metaphoric meaning’s logical end, a reversal of Bentham’s Panopticon, demonstrates the impossibility and unattractive consequences of imposing a fully visible state. Nevertheless, the article argues, the populist understanding of transparency is too embedded within our political culture to ignore or avoid entirely, demonstrating that technocratic advances in making the state appear more open must ultimately rely upon metaphoric, populist gestures.
Mark Fenster, Seeing the State: Transparency as Metaphor, 62 Admin L. Rev 617 (2010), available at http://scholarship.law.ufl.edu/facultypub/572