Targeted Transparency as Regulation

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.