The People’s Right to Know and State Secrecy
Transparency is the mantra of democratic governance. It is cherished as a tool for curbing corruption and abuses of power, and achieving political accountability. It ensures that citizens have the information needed to participate as equals in collective decision-making. Yet while officials preach the value of open government, hardly a day passes without newspapers reporting a secrecy scandal: WikiLeaks and cablegate, Snowden and PRISM, secret memo wars in Trump’s administration. Given the democratic benefits believed to result from transparency, the persistence of government secrecy appears troubling.
The presumption in favor of transparency and against secrecy for long determined academic debate. Recent scholarship has, however, qualified this unconditional stance. Several policy-oriented studies have demonstrated that transparency-overload discourages innovative behavior, and triggers defensive information management, scapegoating, proceduralism and rule-obsession. The advantages of secrecy usually arise within national security, law enforcement and diplomatic relations. Given these findings, the political rationale of transparency is now considered a cost-benefit calculation: If the utility of transparency is outweighed by the utility of secrecy, insisting on transparency appears unwarranted.
For the staunchest defenders of open government this is deeply flawed. Transparency, they argue, is not a cost-benefit matter, but the “people’s right to know”. If people have a right to know government-held information, then transparency is a political imperative that trumps any advantages of state secrecy. WikiLeaks, self-styled radical enforcer of the right to know, makes this particularly clear. In dumping gigabytes of leaked government information online, it demands total elimination of state secrecy and presents the “right to know” as all-encompassing.
The claim that access to government-held information is a matter of rights raises several questions: Why would an interest in receiving information be a matter of rights in the first place? Do people have an absolute right to know, or a right to only certain kinds of information? If only certain kinds, why would government information fall within that range? If people have a “right to know” government-held information, should state secrecy, e.g. classified intelligence programs or closed-door political bargaining, be abolished?
In my recent article in the Canadian Journal of Law and Jurisprudence I consider two arguments invoked to support the “people’s right to know”. The first presents it as a right of democratic citizenship, the second as a human right. Yet neither of these arguments give us reason to believe that transparency should be all-encompassing.
As a right of democratic citizenship, the “right to know” arises on the plane of relations between citizens and state. To the extent that citizens authorize state-officials to rule, they also authorize them also to establish rules of information access, i.e. to decide what citizens should know about their actions. As a human right, the “right to know” exists prior to and independently of political arrangements. However, as human rights scholars recognize, the content of human rights is underdetermined, and specifying it is a matter for political decision, and thus the “human right to know” does not extend to information the political decision-makers exempt from its scope. In both cases, then, the consequences of the “people’s right to know” are the same: as the exact content of the “right to know” is made effective in the political decision-making, people have no right to access information the political decision-maker authoritatively decides to withhold.
Dorota Mokrosinska is a university lecturer at the Institute for Philosophy at Universiteit Leiden. Read the article, “The People’s Right to Know and State Secrecy,” from Canadian Jounral of Law and Jurisprudence.