Notice & Comment

Rationalizing Transparency Laws, by Reeve T. Bull

In one of the more memorable passages of Plato’s Republic, the Athenian philosopher introduces the parable of the Ring of Gyges, a talisman conferred upon a Lydian king that rendered him invisible and allowed him to engage in a string of depredations with no personal repercussions.  Over the millennia, this ancient insight has demonstrated its prescience: absent some personal social or economic consequence, human beings are wont to abuse power.  Indeed, most modern governments are characterized by a delicate balance between promoting accountability of state officials on the one hand, and affording the same officials sufficient autonomy to act in the general interest of the governed public on the other.

Following the Vietnam War and Watergate Eras, the appetite for promoting public accountability was at the high watermark in the 1960–70s, resulting in the passage of a series of transparency laws.  The most famous (and earliest) of these, the Freedom of Information Act (“FOIA”), required executive branch agencies to release internal documents upon receiving a request from a member of the public, absent successful invocation of one or more of nine available exceptions.  The same era witnessed the passage of two lesser-known laws that applied to certain meetings held at the behest of federal agencies.  The Government in the Sunshine Act (“Sunshine Act”), required all meetings of a quorum of board or commission members at a multi-member agency to be announced in advance and opened to in-person attendance by interested members of the public.  The Federal Advisory Committee Act (“FACA”) similarly required all meetings of advisory committees (defined as deliberative bodies that include at least one non-federal employee and provide policy advice to governmental agencies) to be publicly announced and opened to attendance.

Though these transparency laws undoubtedly complicate the work of federal agencies, they have traditionally been justified on at least two separate grounds.  First, modern-day government officials, no less than ancient Lydian kings, have an incentive to aggrandize and possibly abuse their authority absent some external check.  FOIA, FACA, and the Sunshine Act provide this check by ensuring that agency officials are subject to public oversight.  The transparency laws also presume that the public can not only constrain agency abuses but also contribute to the decision-making process.  For instance, FACA requires that advisory committees offer interested members of the public the opportunity either to file written comments or to address the advisory committee.

Ensuring regulatory accountability and enhancing public participation are indisputably worthy goals in a republican government.  Nevertheless, the existing transparency laws, and the Sunshine Act and FACA in particular, appear to be underinclusive and overinclusive in promoting these ends.  As to underinclusivity, if mandating that agencies open all meetings involving deliberation on substantive issues to the public is an effective mechanism for promoting accountability, it is unclear why the Sunshine Act and FACA’s coverage extends only to meetings of multi-member agencies and advisory committees rather than all deliberations conducted by executive branch agencies.  At the same time, the laws are overinclusive, as the universe of cases in which the average member of the public takes sufficient interest to monitor agency activities or furnish useful information to government officials is almost certainly a smaller subset of the universe of cases that fall within the scope of the Sunshine Act or FACA.

In this light, overhauling the open meeting laws to achieve their legitimate aims in a less disruptive, narrowly tailored fashion could produce benefits for both agencies and stakeholders alike.  A good starting point is the recognition that, paeans to the “disinfectant” powers of “sunlight” and the unalloyed virtues of “public participation” aside, the number of issues in which the public is likely to exercise an oversight role or, a fortiori, provide information to which the agency might not otherwise have access, is relatively small.  At best, the laws create an opportunity for media outlets and stakeholder groups to track agency activities, yet this external scrutiny creates an incentive for agency officials to rely heavily on the laws’ exceptions or to disclose as little as possible in open meetings.  The widespread use of “notational voting” (a procedure for written voting that does not trigger the Sunshine Act) and the extensive invocation by advisory committees of the various FACA exemptions is compelling evidence of this phenomenon.

Though it too is far from perfect, FOIA contains an exemption that has been interpreted to protect agencies’ “deliberative processes” from disclosure: documents reflecting pre-decisional exchanges among agency officials need not be released upon receipt of a FOIA request.  Creating a similar carveout in the Sunshine Act and FACA contexts may allow for a more effective balance between transparency norms and the need to afford agencies a certain degree of latitude in formulating policy proposals outside of the public gaze.

In 1995, a special committee convened by the Administrative Conference of the United States (“ACUS”) urged Congress to enact a pilot program whereby multi-member agencies would be authorized to conduct most of their business in private meetings in exchange for curtailing the use of notational voting and revealing the decisions reached in such meetings after-the-fact.  In a report I prepared for the ACUS considering various changes to FACA, I argued that the Act should be clarified to state that all “preparatory work” of an advisory committee should be exempt from the open meeting requirements.[1]  These sorts of reforms would give agencies greater leeway to discuss and debate issues internally prior to settling on an official policy, but they would also ensure that the results of those deliberations are fully public.

Agencies and advisory committees require “breathing room” to brainstorm, shape potential policies, and resolve internal disagreements before being subjected to the full glare of public scrutiny.  In most cases, the value of public input in this pre-decisional phase is minimal, and mandating full disclosure at this stage encourages agencies to exploit statutory exceptions and pushes decision-making into back channels, thereby undermining the very policies the laws were intended to serve.  Revising the Sunshine Act and FACA to acknowledge this reality would yield enormous benefits in enhanced agency efficiency at little to no cost to the competing aim of public transparency.

In short, promoting public accountability and citizen participation are eminently worthy goals, but the existing open meeting laws fail to advance, and arguably undermine, these policies.  “Democratizing” agency policymaking and exposing the decision-making apparatus to increased “sunlight” was an understandable response in light of the abuses of Vietnam and Watergate, but the pendulum has swung too far in the opposite direction.  The entire “open government” framework neither can nor should be abandoned, yet the existing state of affairs is increasingly untenable, characterized by sweeping laws that are regularly circumvented.   With a few targeted reforms, Congress and agencies could make some progress toward restoring the balance between transparency and efficiency and channeling stakeholder input towards those areas in which it is likely to have a positive impact.

[1] ACUS ultimately recommended that Congress either retain the so-called subcommittee exception, which often acts as a de facto “preparatory work” exemption insofar as committees frequently break up into smaller groups to handle pre-decisional matters, or create a new statutory exception for “preparatory work.”

Reeve T. Bull is the Research Director of the Administrative Conference of the United States.  The opinions expressed in this blog post are solely those of the author and do not represent the views of the Administrative Conference or the federal government.

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