Troubling Transparency is a collection of essays written by jurists, sociologists, and journalists. The fourteen contributions to this volume were also presentations to the Columbia School of Journalism 2016 conference, which the co-editors, Michael Schudson and David Pozen also co-organized, celebrating the 50th Anniversary of the US Freedom of Information Act (FOIA). The essays are organized into four parts: 1) the history and conceptual foundations of the statute, 2) the impact FOIA has on the media, 3) tactics in transparency, and 4) the impact FOIA has had globally.
Nietzche once said that the way to understand one's philosophy was to start with one's private life and many have used that lens for Michel Foucault's writings. More interesting, though perhaps a tad more difficult, is to look at one's past scholarship to understand the one at hand. I will start with Michael Schudson's, whose scholarship I was thoroughly familiar with until a few years back when his doctoral mentorship ended with my graduation. A journalism professor, Schudson is a public intellectual in the Arendt mold. For him, the fin and then debut de siècle malaise and spectatorship proved only a passing fad. The informed citizenship he promoted gave rise to the monitoring citizenry. He sees FOIA deeply rooted in the 1960s activism of citizen lawsuits, which ushered in new areas of law, such as environmentalism. Non-governmental entities, such as WikiLeaks, only continue and modify that trend.
Because Schudson comes from the school of “institutionalized civic knowing,” the other editor of Troubling Transparency, David Pozen, seems to have carried the day in choosing the title of this “work of many hands.” Despite an expressed editorial desire to add to the scholarship by deepening the “debate about transparency,” the title begs to differ. Troubling Transparency supports the co-editorial belief that the “best academic writing on transparency” is ambivalent. Cass R. Sunstein's essay perhaps conveys best this ambivalence, because it advocates for transparency of government output and secrecy of government input. Sunstein's piece is preceded by James Madison's ode to input secrecy stating that had the Constitutional debates been public there would have been no U.S. Constitution. Now, as a woman, in retrospect, maybe those debates should have been public so my sisters could have publicly shamed their brothers for treating them and others (e.g. slaves, Native Americans, et al.) like objects. Are we still proud of the band of rich white men coming up with the best they could to protect their ilk? In the twenty-first century, perhaps we should take a deep breath before we continue our religious-like pride in the texts that formed an imperfect democracy.
Is there ambivalence in the value of government transparency? Certainly, if you have something to hide. Court proceedings are public. Legislative debates are publicly available in the Congressional Record. What is not public are agency debates, rulemaking, and decision making. Why should these be kept secret? If we were to ask Russia, we would certainly be derided for asking a stupid question that does not need an answer. But if we were to ask some of the hundred plus countries that have either a constitutional right to government transparency or much stronger legislation, as Kyu Ho Youm and Toby Mendel point out, we might again be mocked, but for the opposite reason – democracy means transparency and accountability.
Sometimes perception is a matter of optics. FOIA did represent a huge step forward in a country plagued by ideological lynching, such as during the height of secrecy in the McCarthy era. But now FOIA is a relic manipulated by a corporatist state whose democratic compass seems to have been lost.
