Against Naive Transparency

“Sunlight is said to be the best of disinfectants,” Louis Brandeis famously wrote a century ago in praise of publicity.

But in fact there are many better disinfectants, such as iodine and alcohol. And in excess, sunlight itself can induce sunburn or even skin cancer.

Likewise, by analogy, “transparency” as a political virtue is rife with questionable or erroneous assumptions, writes law professor Mark Fenster in his new book The Transparency Fix: Secrets, Leaks, and Uncontrollable Government Information (Stanford University Press, 2017).

The ideal of a fully visible state subject to rational public oversight and control has never been achieved and is not a realistic objective, according to Fenster. And it’s not for lack of trying.

“The distance between ideal and reality is not solely the consequence of a failure of public will, nor is it a reflection of government officials’ lack of moral character. Nor is it a failure to develop, calibrate, and roll out the right set of laws, institutions, and technology.” The problem is more fundamental, and may be intractable.

The naive model of transparency in which government discloses itself to an attentive public, thereby enhancing policy deliberation and government accountability, corresponds to reality loosely at best, writes Fenster.

To begin with, government “documents” are never a full representation of the reality of official decision-making. They can never be more than a semantic slice of the whole. Disclosure of such documents is not a neutral process either. It may mislead by its selectivity, or it may overwhelm by its abundance. And the “public” that is the intended audience for transparency may be, and often is, distracted, indifferent, and disengaged.

It follows that more “Disclosure will not necessarily transform the United States or any Western democracy into a model of popular deliberation, participatory decision making, and perfect governance. Western governments and societies are too complex and decentralized, their publics too dispersed, and their information environments too saturated for transparency, by itself, to have significant transformative potential.” (For similar reasons, he finds, massive unauthorized disclosures of official information consistently do less damage than feared.)

“Secrecy is one of many problems that affect government performance, but it occupies too much of our political imagination,” Fenster concludes in this thoughtful and challenging book.

But even if many acts of transparency are indeed futile or inconsequential, that does not mean that all of them are.

Timely disclosure of environmental contamination saves lives. Exposure of conflicts of interests undoubtedly deters and mitigates corruption. Open government laws enable and facilitate public participation in the policy process to a remarkable extent. In Latin America, more than 100 trials of suspected war criminals have been carried out in recent years using evidence derived from declassified U.S. government documents and Freedom of Information Act requests, Tom Blanton of the National Security Archive pointed out lately. Those are just a few of the real-world consequences of well-conceived transparency measures.

A skeptical view of transparency that is cognizant of its theoretical and practical limits “does not require abandoning a commitment to open government and democracy,” Fenster affirms. On the contrary, well-founded skepticism may provide a basis for improving existing transparency practices by focusing them on what is most valuable and most achievable.