Law & Principles, Good Government

Transparency for government, privacy for people

March 14, 2018

Trent England

This is Sunshine Week, an annual reminder that “consent of the governed” means informed consent. Why is government transparency important? Let’s start at the beginning.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed….

People have rights as individuals, based simply on our status as human beings. Those rights come first, before government, both chronologically and in importance. Thus government belongs to us and must be accountable to us. This is only possible if transparency is the rule.

Just like freedom of speech is the rule, but you cannot yell “Fire!” in a crowded theater or try to stir up a riot, there are also exceptions to transparency for certain government activities. The most obvious are national security and criminal investigations. But those functions, to be legitimate, must be based on policies made in public and ultimately whatever information there is must be made public as well. Exceptions to freedom of information should be construed narrowly. The preamble to the Oklahoma Open Records Act says “it is the public policy of the State of Oklahoma that the people are vested with the inherent right to know and be fully informed about their government.” The law, however could use better teeth so that citizens could compel timely and complete answers to records requests. Ballotpedia has more information about transparency laws in Oklahoma as well as other states. Unfortunately, sometimes people get confused about transparency and government. They think that transparency is something government is supposed to force on people who are not in government. That turns the whole thing on its head. The reason government must be transparent is because it belongs to us, it exists to protect our preexisting rights. Among those rights is our right to privacy, to be respected in our own homes, churches, businesses, and community groups. The same principle that requires government transparency also requires that government protect individual peoples’ privacy. But what if we really want to know something? Maybe George Soros or Charles Koch is behind that commercial? Or is it an animal rights group? Or the NRA? The American Founders actually had the best response to all this: stop being so lazy. They often published their political arguments anonymously to force readers to deal with those arguments on the merits. This kept people from dismissing an idea just because it was offered by a someone they didn’t like, or from agreeing with an idea only because it was presented by someone they did like. The Federalist Papers, and the Anti-Federalist essays, are among the most important writings in human history about political and constitutional ideas. They were all written under pen names. And they were published and republished by powerful people who owned printing presses and newspapers and happened to support one side or the other. And rather than slinging personal insults, people were forced to deal with the arguments. We could learn a thing or two. (Hat tip to John Caldera: “Transparency is for government, privacy is for people.”)