June 16, 2024

Opening Government: On the Limits of FOIA and the Metaphor of Transparency

At a recent symposium (“Piracy and the Politics of Policing: Legislating and Enforcing Copyright Law”) sponsored by the Cardozo Arts and Entertainment Law Journal, I was invited to respond to an excellent paper by David Levine on secrecy, national security, and the denial of public access to documents from the Anti-Counterfeiting Trade Agreement (ACTA) negotiation process. Dave argues in his paper for an amendment to the federal Freedom of Information Act (FOIA) that would create a qualified public right to “foreign relations” national security information. Had such an amendment been in place at the time of the ACTA negotiations, the Office of the United States Trade Representative would not have been able to invoke FOIA’s national security exemption—a dubious invocation, at best—to deny public requests for documents that were made under FOIA by public interest groups like Public Knowledge.

Responding to Dave’s article got me thinking about the use of “transparency” as a metaphor for openness in government, the use of FOIA as a mechanism for ensuring such openness, and the ways in which proponents of greater public involvement in policy-making (among whom I count myself) may disserve the cause by focusing too single-mindedly on access to information and the right to know, both of which are operationalized through FOIA. In my response to Dave’s article, a relatively short piece that I’ve posted to SSRN, I try to articulate the limits of FOIA as a mechanism for open government:

More outputs from government are not democracy-enhancing by themselves. They can lead to increased transparency, which is the remedy that critics of ACTA consistently demand, but there is an important distinction to be made between the ability to see what is happening in government and the ability to influence it.  Transparency, in other words, is a precondition and not a synonym for openness. In the same way that FOIA’s model of open government positions citizens as information supplicants, a transparency-based model of open government positions citizens as policy-making spectators. In neither model do citizens have a structural and proactive voice in policy formation.

I argue, citing Habermas, that democratic policy-making entails not only a public right to know, which can be vindicated through “information out” mechanisms like FOIA, but a right to be heard, which is no part of FOIA’s model of openness:

Policymakers operating within the model of procedural democracy that Habermas describes are obliged not only to disclose information, for example by releasing documents in response to open records requests, but also to solicit it:  “[T]he production of legitimate law through deliberative politics represents a problem-solving procedure that needs and assimilates knowledge in order to program the regulation of conflicts and the pursuit of collective goals.”  Lawmaking as institutionalized problem-solving relies on information and opinion inputs from the public as well as outputs to it, and the conduits through which those inputs and outputs flow must be structural, multiple, and open. Policy-making in the discourse-theoretic sense is not an autistic endeavor, although that is essentially what it became in the process that produced ACTA.  Nor is it a process whose requirement for communicative openness can be satisfied by a FOIA document dump.

Tremendous amounts of good journalism and reporting are done every day using FOIA to throw light into dark corners of government and to make government agencies and their employees accountable for their decisions. Amending FOIA to narrow its exemptions is an important way to increase public awareness of government action and public access to government information. If we put too much stock in FOIA, however, and rely too much on the visual metaphor of transparency, we risk conflating two values—access to information and openness in government—that must be kept conceptually distinct in the interest of respecting the public’s right to be heard in the policy-making process. I look forward to Dave’s future work, in which he promises to explore the possibility of reconceptualizing FOIA to make it a vehicle for getting information to policy-makers as well as information from them.