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The People’s Right to Know and State Secrecy

  • Dorota Mokrosinska
Abstract

Among the classic arguments which advocates of open government use to fight government secrecy is the appeal to a “people’s right to know.” I argue that the employment of this idea as a conceptual weapon against state secrecy misfires. I consider two prominent arguments commonly invoked to support the people’s right to know government-held information: an appeal to human rights and an appeal to democratic citizenship. While I concede that both arguments ground the people’s right to access government information, I argue that they also limit this right and in limiting it, they establish a domain of state secrecy. The argument developed in the essay provides a novel interpretation of Dennis Thompson’s claim, who in his seminal work on the place of secrecy in democratic governance, has argued that some of the best reasons for secrecy are the same reasons that argue for openness and against secrecy.

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1. Frederick Schauer, “Rights and the Right to Know” (1983) 14:1 Philosophic Exchange 65 at 70.

2. For the history of the concept, see Michael Schudson, The Rise of the Right to Know: Politics and the Culture of Transparency 1945-1975 (Harvard University Press, 2016); Mark Fenster, The Transparency Fix: Secrets, Leaks, and Uncontrollable Government Information (Stanford University Press, 2017).

3. Thomas I Emerson, “Legal Foundations of the Right to Know” (1976) 1 Wash ULQ 1 at 16, 14.

4. Cross Harold L, The People’s Right to Know (Columbia University Press, 1953) at xiii.

5. Julian Assange, Conspiracy as Governance (http://cryptome.org/0002/ja-conspiracies.pdf, 2006); see also Mark Fenster, “Disclosure’s Effects: WikiLeaks and Transparency” (2012) 97:3 Iowa L Rev 753 at 773, 776.

6. “Some of the best reasons for secrecy rest on the very same democratic values that argue against secrecy,” Dennis Thompson, “Democratic Secrecy” (1999) 114:2 Political Science Q 181 at 182. It is not obvious from the essay exactly which values are those “very same democratic values” that generate reasons for secrecy and transparency alike. When speaking of reasons for openness (“reasons against secrecy”), Thompson refers to the principle of accountability. When speaking about reasons for secrecy, he makes two arguments: (1) secrecy is justified if it is necessary and (2) secrecy is justified if the principle “second order publicity about first order secrecy” is satisfied. Neither (1) or (2) can be said to be the same reasons as the reasons for openness Thompson indicates. Extrapolating from other remarks Thompson makes in the essay, one might venture that there is an implicit appeal to the idea of hypothetical consent in his appeal to necessity. Thompson remarks that “[t]hese policies and processes [which would be undermined by publicity] may well be ones to which citizens would consent if they had the opportunity,” ibid at 182. Such an appeal to the idea of hypothetical consent and, by extension, to the idea of democratic authority may simultaneously support the demand for public accountability. My argument takes yet a different route to flesh out Thompson’s claim. I thank Jonathan Bruno for a discussion on this issue.

7. Schudson, supra note 2 at 51-52, 61.

8. For a version of the argument to the effect that FOIA legitimizes a domain of state secrecy, see Mark Fenster, “The Difficult Paths to a Right to Know” delivered at the International Conference on the Democratic Legitimacy of State Secrecy, Leiden, 13-15 September 2017 [unpublished].

9. Patrick Birkinshaw, “Transparency as a Human Right” in C Hood & D Heald, eds, Transparency: The Key to Better Governance? (Oxford University Press, 2006) 47 at 56 [emphasis added].

10. Joint Declaration by the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression 6 December 2004 in A Hulin, ed, Joint Declarations of the representatives of intergovernmental bodies to protect free media and expression (OSCE Representative on Freedom of the Media, 2013) 33 at 34 [emphasis added].

11. Youth Initiative for Human Rights v Serbia, No 48135/06, ECHR 1 [YIHR v Serbia].

12. A different case in point is a 2006 pronouncement of the Inter-American Court of Human Rights, which declared that access to government information is included within the basic human right of free thought and expression, Reyes v Chile, Inter-Am Ct HR (Ser C).

13. The exact wording of Article 10 implies a negative duty on the part of the state to refrain from restricting a person from receiving information that others wish to impart to her. In this case, however, the Court established that state authorities have a positive duty to provide information upon request. As Tiilikka and also Hins and Voorhoof observe, this is indicative of a development in the Court’s jurisdiction towards a recognition of a positive duty on the part of the state proactively and out of its own motion to promulgate information which is likely to be of interest to a wide range of individuals. See Päivi Tiilikka, “Access to Information as a Human Right in the Case Law of the European Court of Human Rights” (2013) 5:1 J Media L 79 at 99 and Wouter Hins & Dirk Voorhoof, “Access to State-Held Information as a Fundamental Right under the European Convention on Human Rights” (2007) 3:1 Eur Constitutional L Rev.

14. Kenneth Baynes, “Toward a Political Conception of Human Rights” (2009) 35:4 Philosophy & Social Criticism 371 at 372.

15. Alan Gewirth, Human Rights: Essays on Justification and Applications (University of Chicago Press, 1982); James Griffin, On Human Rights (Oxford University Press, 2008).

16. S Matthew Liao & Adam Etinson, “Political and Naturalistic Conceptions of Human Rights: A False Polemic?” (2012) 9:3 J Moral Philosophy 327 at 339.

17. Joseph Raz, “Human Rights in the Emerging World Order” (2010) 1:1 Transnational Legal Theory 31 at 40.

18. Griffin, supra note 15 at 50. A similar line of argument is endorsed by Liao and Etinson, who speak of the aim of human rights and the means of achieving that aim. The aims of human rights are universal, while the means of achieving them vary across time, location, and society. Liao & Etinson, supra note 16 at 339.

19. Saladin Meckled-Garcia, “Specifying Human Rights” in R Cruft, SM Liao & M Renzo, Philosophical Foundations of Human Rights (Oxford University Press, 2014) 300; Samantha Besson, “Human Rights and Constitutional Law. Patterns of Mutual Validation and Legitimation” in R Cruft, SM Liao & M Renzo, Philosophical Foundations of Human rights (Oxford University Press, 2014) 279; Seyla Benhabib, “Is There a Human Right to Democracy? Beyond Interventionism and Indifference” in C Corradetti, ed, Philosophical Dimensions of Human Rights: Some Contemporary Views (Springer, 2011) 191.

20. Benhabib Seyla, Dignity in Adversity: Human Rights in Troubled Times (Polity Press, 2011) at 65.

21. Besson, supra note 19 at 284.

22. YIHR v Serbia, # 26.

23. John Rawls, The Law of Peoples (Cambridge University Press, 1999) at 81.

24. Jacques Maritain quoted in Joshua Cohen, “Minimalism about Human Rights: The Most We Can Hope For?” (2004) 12:2 J Political Philosophy 190 at 194.

25. Rawls, supra note 23 at 79.

26. Beitz Charles R, The Idea of Human Rights (Oxford University Press, 2009) at 128.

27. Joshua Cohen, “Is There a Human Right to Democracy?” in C Sypnowich, ed, The Egalitarian Conscience: Essays in Honour of G.A. Cohen (Oxford University Press, 2006) 226 at 234.

28. Birkinshaw, supra note 9 at 56.

29. Joint Declaration by the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression 6 December 2004, supra note 10 at 34.

30. Thomas Christiano, The Rule of the Many: Fundamental Issues in Democratic Theory (Westview Press, 1996); Adam Przeworski, Bernard Manin & Susan C Stokes, Democracy, Accountability, and Representation (Cambridge University Press, 1999).

31. Bernard Manin, The Principles of Representative Government (Cambridge University Press, 1997) at 234.

32. Onora O’Neill, “Transparency and the ethics of communication” in C Hood & D Heald, eds, Transparency: The Key to Better Governance? (Oxford University Press, 2006) 75 at 76.

33. Jeremy Waldron, Political Political Theory: Essays on Institutions (Harvard University Press, 2016) at 183.

34. Roy Peled & Yoram Rabin, “The Constitutional Right to Information” (2011) 42:2 Colum HRL Rev 357 at 365.

35. Manin, Przeworski & Stokes, supra note 30 at 23-24, 17.

36. Joseph Raz, The Authority of Law (Clarendon Press, 1979).

37. Leslie Green, The Authority of the State (Clarendon Press, 1988) at 239. For the critiques of content-independence see P Markwick, “Independent of Content” (2003) 9:1 Legal Theory 43; George Klosko, “Are Political Obligations Content Independent?” (2011) 39:4 Political Theory 498.

38. Thomas Hobbes, Leviathan, Revised Student ed, ed by Richard Tuck (Cambridge University Press, 2003) at 176.

39. HLA Hart, Essays on Bentham: Studies in Jurisprudence and Political Theory (Clarendon Press, 1982) at ch 10; Raz, supra note 36 at ch 12.

40. Joseph Raz, The Morality of Freedom (Clarendon Press, 1986) at 35.

41. Thomas Christiano, The Constitution of Equality: Democratic Authority and its Limits (Oxford University Press, 2008); Daniel Viehoff, “Democratic Equality and Political Authority” (2014) 42:4 Philosophy and Public Affairs 337; David Lefkowitz, “A Contractualist Defense of Democratic Authority” (2005) 18:3 Ratio Juris 346; David Estlund, Democratic Authority: A Philosophical Framework (Princeton University Press, 2008).

42. Christiano, supra note 41 at 252, 244.

43. David Lewis, Convention: A Philosophical Study (Harvard University Press, 1969) at 35 [emphasis changed].

44. Viehoff, supra note 41 at 370 [emphasis added].

45. Christiano, supra note 4 at ch 7.

46. Thompson, supra note 6 at 182.

47. Christopher Kutz, “Secret Law and the Value of Publicity” (2009) 22:2 Ratio Juris 197 at 214 [emphasis changed].

48. Ibid at 199.

49. Philip Soper, “Legal Theory and the Claim of Authority” (1989) 18:3 Philosophy and Public Affairs 209 at 218 [emphasis added].

50. Raz Joseph, Ethics in the Public Domain: Essays in the Morality of Law and Politics, revised ed (Clarendon Press, 1995) at 202.

51. Ibid at 201.

52. Kutz, supra note 47 at 199-201.

53. Hart speaks of the principle of intelligibility; Fuller of the principle of promulgation. See HLA Hart, The Concept of Law (Clarendon Press, 1997); Lon Fuller, The Morality of Law (Yale University Press, 1969).

54. Ibid at 51.

55. Hart, supra note 53 at 117. See Claire Grant, “Secret Laws” (2012) 25:3 Ratio Juris 301.

56. Raz, supra note 36 at 51 n 9.

57. David Pozen, “Deep Secrecy” (2010) 62:2 Stan L Rev 257.

58. Gutmann Amy & Thompson Dennis, Democracy and Disagreement (Belknap, 1996) at 121.

59. For example, the Netherlands is legally required to declassify all classified secrets dossiers older than 25, 50 and 75 years; Poland has a mandatory review period of classified documents every five years.

60. Marina Caparini, “Controlling and Overseeing Intelligence Services in Democratic States” in H Born & M Caparini, eds, Democratic Control of Intelligence Services: Containing Rogue Elephants (Ashgate, 2007) 3; Heidi Kitrosser, “Congressional Oversight of National Security Activity: Improving Information Funnels” (2008) 29 Cardozo L Rev 1049; Pozen, supra note 57; Michael P Colaresi, Democracy Declassified: The Secrecy Dilemma in National Security (Oxford University Press, 2014).

61. See Rahul Sagar, “On Combating the Abuse of State Secrecy” (2007) 15:4 J Political Philosophy 404.

62. Caparini, supra note 60 at 14.

63. For a discussion of the problems encountered by the Dutch parliamentary oversight committee to acquire information from the Dutch intelligence services, see Constant Hijzen, “More than a ritual dance. The Dutch practice of parliamentary oversight and control of the intelligence community” (2014) 24:3-4 Security and Human Rights 227.

64. Born & Caparini, supra note 60.

65. Kim Scheppele, “We Are All Post-9/11 Now” (2006) 75:2 Fordham L Rev 607 at 619; see Bruce Ackerman, “The Emergency Constitution” (2004) 113:5 Yale LJ 1029.

66. For a discussion see Rahul Sagar, Secrets and Leaks: The Dilemma of State Secrecy (Princeton University Press, 2013) at 99.

67. Kitrosser, supra note 60 at 1072.

68. Ibid at 1076. Cf Caparini, supra note 60 at 13; Pozen, supra note 57 at 331. For the opposing view, Sagar, supra note 66 at 88.

69. Kitrosser, supra note 60 at 1071.

70. Ibid at 1088.

This article is part of the research project “Democratic Secrecy: A Philosophical Study of the Role of Secrecy in Democratic Governance,” which has received funding from the European Research Council under the European Union’s Horizon 2020 research and innovation programme (DEMSEC GA 639021).

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Canadian Journal of Law & Jurisprudence
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