The normative concept of transparency, along with the open government laws that purport to create a transparent public system of governance, promises the moon -- a democratic and accountable state above all, and a peaceful, prosperous, and efficient one as well. But transparency, in its role as the theoretical justification for a set of legal commands, frustrates all parties affected by its ambiguities and abstractions. The public's engagement with transparency in practice yields denials of reasonable requests for essential government information, as well as government meetings that occur behind closed doors. Meanwhile, state officials bemoan the significantly impaired decision-making processes that result from complying with transparency's sweeping and powerful legal mandates and complain about transparency's enormous compliance costs.
This Article argues that the frustrations with creating an open government originate in the concept of "transparency" itself, which fails to consider the tensions it conceals. The easy embrace of transparency as a basis for normative and utilitarian 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? Open government laws fall short in answering these questions because, relying on the assumptions of "transparency," they typically operate at exceptionally high levels of abstraction. As a result, they establish both broad mandates for disclosure and broad authority for the exercise of a state privilege of non-disclosure, and they ultimately fail to produce an effective, mutually acceptable level of administrative openness. Transparency theory's flaws result from a simplistic model of linear communication that assumes that information, once set free from the state that creates it, will produce an informed, engaged public that will hold officials accountable. To the extent that this model fails to describe accurately the state, government information, and the public, as well as the communications process of which they are component parts, it provides a flawed basis for open government laws.
This Article critiques the assumptions embedded in transparency theory and suggests an alternative approach to open government laws that would allow a more flexible, sensitive means to evaluate the costs and benefits of information disclosure. It also proposes institutional alternatives to the current default regime in open government laws, which relies on weak judicial enforcement of disclosure mandates, and offers substantive suggestions that would improve efforts to establish a more accountable state and an informed public.
Mark Fenster, The Opacity of Transparency, 91 Iowa L. Rev. 885 (2006), available at http://scholarship.law.ufl.edu/facultypub/46