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The Transparency Fix: Advocating Legal Rights and Their Alternatives in the Pursuit of a Visible State

62 Pages Posted: 28 Aug 2011 Last revised: 15 Sep 2015

Mark Fenster

University of Florida - Levin College of Law

Date Written: January 9, 2012

Abstract

The administrative norm of transparency, which promises a solution to the problem of government secrecy, requires political advocacy organized from outside the state. The traditional approach, typically the result of organized campaigns to make the state visible to the public, has been to enact freedom of information laws (FOI) that require government disclosure and grant enforceable rights to the public. The legal solution has not proven wholly satisfactory, however. In the past two decades, numerous advocacy movements have offered different fixes to the information asymmetry problem that the administrative state creates. These alternatives now augment and sometimes compete with legal transparency regimes. This Article surveys and analyzes transparency advocacy campaigns and the “fix” that each proposes to the problems created by the state’s asymmetrical information advantage over the public. It sketches the history of four campaigns: the FOI movement in the U.S., the global anti-corruption movement (spearheaded by Transparency International), the digital transparency movement, and WikiLeaks.

The Article offers two insights. First, although these movements share a basic set of assumptions and tell a similar policy story — secrecy is a pressing administrative problem that can be fixed with the right policies and institutional arrangements — they diverge significantly in how they understand not only the problem’s causes but the state itself. Second, and as a result, the Article unveils transparency as a contested political issue which masquerades as an administrative tool. Rooted in contestable claims about the state’s legitimacy and performance, the transparency fix leads to tendentious prescriptions about law, policy, and the state.

Keywords: transparency, open government, FOIA, administrative law, administration

Suggested Citation

Fenster, Mark, The Transparency Fix: Advocating Legal Rights and Their Alternatives in the Pursuit of a Visible State (January 9, 2012). University of Pittsburgh Law Review, Vol. 73, No. 3, 2012. Available at SSRN: https://ssrn.com/abstract=1918154 or http://dx.doi.org/10.2139/ssrn.1918154

Mark Fenster (Contact Author)

University of Florida - Levin College of Law ( email )

P.O. Box 117625
Gainesville, FL 32611-7625
United States
352-273-0962 (Phone)
352-392-3005 (Fax)

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