Austin Sarat at The Conversation: “Public knowledge about what government officials do is essential in a representative democracy. Without such knowledge, citizens cannot make informed choices about who they want to represent them or hold public officials accountable.
Political theorists have traced arguments about publicity and democracy back to ancient Greece and Rome. Those arguments subsequently flowered in the middle of the 19th century.
For example, writing about British parliamentary democracy, the famous philosopher Jeremy Bentham urged that legislative deliberation be carried out in public. Public deliberation, in his view, would be an important factor in “constraining the members of the assembly to perform their duty” and in securing “the confidence of the people.”
Moreover, Bentham noted that “suspicion always attaches to mystery.”
Even so, Bentham did not think the public had an unqualified “right to know.” As he put it, “It is not proper to make the law of publicity absolute.” Bentham acknowledged that publicity “ought to be suspended” when informing the public would “favor the projects of an enemy.”
Well into the 20th century, the U.S. and other democracies existed with far less public transparency than Bentham advocated.
Push for transparency
The authors of a 2016 U.S. Congressional report on access to government information observed that, “Throughout the first 150 years of the federal government, access to government information does not appear to have been a major issue for the federal branches or the public.” In short, the public generally did not demand more information than the government provided….
For at least the last 50 years, American legal and political institutions have tried to find a balance between publicity and secrecy. The courts have identified limits to claims of executive privilege like those made by President Nixon during Watergate. Watergate also led Congress in 1978 to pass the Foreign Intelligence Surveillance Act, or FISA. That act created a special court, whose procedures were highlighted in the Nunes memo. The FISA court authorizes collection of intelligence information between foreign powers and “agents of foreign powers.”
Finding the proper balance between making information public in order to foster accountability and the government’s concern for national security is not easy. Just look to the heated debates that accompanied passage of the Patriot Act and what WikiLeaks did in 2010 when it published more than 300,000 classified U.S. Army field reports.
Americans can make little progress in resolving such debates until they can get beyond the cynical, partisan use of slogans like “the public’s right to know” and “full transparency” by President Trump’s loyalists. Now more than ever, Americans must understand how and when transparency contributes to the strength and vitality of our democratic institutions and how and when the invocation of the public’s right to know is being used to erode them….(More)”.