Targeted Transparency as Regulation

58 Pages Posted: 1 Jul 2021

See all articles by Margaret B. Kwoka

Margaret B. Kwoka

The Ohio State University Moritz College of Law

Bridget DuPey

University of Denver - Sturm College of Law, Students ; University of Denver - Homeless Advocacy Policy Project

Date Written: June 29, 2021

Abstract

Traditional government transparency tools are coming under increasing criticism. Laws like the Freedom of Information Act, once thought to revolutionize democracy by opening up government for all to see, have proven to be relatively rough tools (at best) in accomplishing accountability. While the democratic ideals are still celebrated, the increasing costs of broad open-the-government style laws—both monetary and nonmonetary—have not gone unnoticed.

Meanwhile, in the regulatory landscape for private companies, targeted disclosure requirements have become increasingly popular methods of encouraging all manner of socially beneficial behavior, be it curbing pollution, making safer consumer products, or ensuring anti-discrimination. Across a wide variety of sectors, companies and businesses now must disclose to the public specific data regarding business finances, environmental risks, safety hazards, and much more.

This Article is the first to apply the regulatory disclosure literature to gain insights on government transparency laws, revealing opportunities for designing transparency requirements to more closely hew to accountability goals. We categorize these laws “targeted transparency as regulation” because though they concern government transparency and not private disclosure, they operate to “regulate” government actions for specific and measurable accountability goals by incentivizing beneficial, ethical, reasoned conduct by agency officials.

Further, our experience with disclosure law provides insights on how to design targeted transparency as regulation requirements, including their promises and limits. While no panacea, targeted transparency as regulation has the potential to play a pivotal role in the next generation of government accountability laws and to provide a partial answer to the critics of broad-based open-the-government style oversight.

Suggested Citation

Kwoka, Margaret B. and DuPey, Bridget, Targeted Transparency as Regulation (June 29, 2021). Florida State University Law Review, Vol. 48, No. 389, 2021, Ohio State Legal Studies Research Paper No. 635, Available at SSRN: https://ssrn.com/abstract=3876348 or http://dx.doi.org/10.2139/ssrn.3876348

Margaret B. Kwoka (Contact Author)

The Ohio State University Moritz College of Law ( email )

55 West 12th Avenue
Columbus, OH 43210
United States

Bridget DuPey

University of Denver - Sturm College of Law, Students

Denver, CO
United States

University of Denver - Homeless Advocacy Policy Project

2255 E. Evans Ave.
Ste 335
Denver, CO 80208
United States

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