Communications Law | Constitutional Law | Jurisdiction | Law
Transparency is a value in the ascendance. Across the globe, the past several decades have witnessed a spectacular explosion of legislative reforms and judicial decisions calling for greater disclosure about the workings of public institutions. Freedom of information laws have proliferated, claims of a constitutional or supra-constitutional "right to know" have become commonplace, and an international transparency lobby has emerged as a civil society powerhouse. Open government is seen today in many quarters as a foundation of, if not synonymous with, good government.
At the same time, a growing number of scholars, advocates, and regulators have begun to raise hard questions about the costs and limits of the transparency movement. Some of these commentators accept the movement's standard premises and prescriptions but worry that open government measures are not actually delivering the openness they promise due to inadequate legislative funding, bureaucratic resistance, or cramped judicial interpretations. Others wonder whether traditional open records and open meetings laws are well suited to twenty-first-century transparency challenges, or whether these laws need to be reimagined for the digital age. A third group of commentators has thrown a harsh light on transparency's political and administrative effects, emphasizing its potential to facilitate "neoliberal" agendas or to undermine deliberation, deal-making, and institutional capacity.
These different strains of skepticism are coalescing and have largely been confined to discrete discourses so far. They have not arrested transparency's ascent in the NGO community or in popular culture. But they have developed to the point where we might say that government transparency, as a democratic ideal, is contested not only in practice but also in theory.
David E. Pozen & Michael Schudson,
Introduction: Troubling Transparency,
Troubling Transparency: The History and Future of Freedom of Information, David E. Pozen & Michael Schudson, Eds., Columbia University Press, 2018
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/2456