Transparency With(out) Accountability: Open Government in the United States
Harvard Law School; Safra Center for Ethics, Harvard University; Berkman Center for Internet & Society, Harvard University
March 25, 2012
Yale Law & Policy Review, Vol. 31, No. 1, 2013
Regulatory transparency is traditionally regarded as the primary means for strengthening the public accountability of administrative agencies. However, the effectiveness of transparency policies is undermined by agencies’ resistance to public exposure and lack of public engagement. The introduction of technology into regulatory transparency policies is often envisioned as a powerful game-changer that could overcome these past hurdles. This Article challenges this common perspective, complicating the marriage between transparency, technology, and public accountability.
First, the Article develops a new analytic typology of online transparency policies: a) mandatory transparency (e.g., e-rulemaking and online disclosure of federal spending), b) discretionary transparency (online release of governmental databases), and c) involuntary transparency (regulatory reaction to online leaks of information). Analyzing the effects of these policies on the public accountability of federal agencies, the Article demonstrates that both their design and implementation are flawed. They do not account for agencies’ resistance to exposure, reinforce traditional pitfalls of transparency policies, and fail to strengthen public accountability.
Against this backdrop, the Article advocates a major reappraisal of online regulatory transparency in the United States. It argues that transparency policies should be goal-oriented and more narrowly tailored to target accountability-related information. As part of this, agencies should be required to release structured information on their decision-making processes and performance. This transparency regime should be complemented with effective institutional and civil society-oriented enforcement measures - an element which is currently missing from the architecture of regulatory transparency. The Article examines the strengths and weaknesses of the proposed transparency regime and discusses the role of the internet in this framework.
Number of Pages in PDF File: 66
Keywords: internet, open government, regulation, freedom of information, transparency, accountability, administrative lawAccepted Paper Series
Date posted: March 26, 2012 ; Last revised: April 25, 2012
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