Transparency Deserts, 114
Nw. U. L. Rev.
Available at: https://repository.uclawsf.edu/faculty_scholarship/1973
Few contest the importance of a robust transparency regime in a democratic system of government. In the United States, the “crown jewel” of this regime is the Freedom of Information Act (FOIA). Yet despite widespread agreement about the importance of transparency in government, few are satisfied with FOIA. Since its enactment, the statute has engendered criticism from transparency advocates and critics alike for insufficiently serving the needs of both the public and the government. Legal scholars have widely documented these flaws in the federal public records law. In contrast, scholars have paid comparatively little attention to transparency laws at the state and local level. This is surprising. The role of state and local government in the everyday lives of citizens has increased in recent decades, and many critical government functions are fulfilled by state and local entities today. Moreover, crucial sectors of the public— namely, media and advocacy organizations—rely as heavily on state public records laws as they do on FOIA to hold the government to account. Yet these state laws and their effects remain largely overlooked, creating gaps in both local government law and transparency law scholarship. This Article attempts to fill these gaps by surveying the state and local transparency regime, focusing on public records laws in particular. Drawing on hundreds of public records datasets, along with qualitative interviews, the Article demonstrates that in contrast with federal law, state transparency law introduces comparatively greater barriers to disclosure and comparatively higher burdens upon government. Further, the Article highlights the existence of “transparency deserts,” or localities in which a combination of poorly drafted transparency laws, hostile government actors, and weak local media and civil society impedes effective public oversight of government. The Article serves as a corrective to the scholarship’s current, myopic focus on federal transparency law. In doing so, it makes three central contributions. First, it provides a much-needed descriptive account of the state and local transparency regime. Second, it makes a normative contribution. It mines empirical and qualitative public records data to evaluate the costs and benefits of the current transparency regime and then applies those insights to contemporary academic and policy-oriented debates. In the process, the Article reveals that unique features of state and local government both heighten the salience of statutory transparency mechanisms and challenge dominant strands of thought in the contemporary transparency scholarship. Third, the Article has implications for ongoing public law debates, demonstrating that failures in the local transparency regime undermine certain theories of federalism. AUTHOR—Fellow, U.C. Berkeley School of Law. Many thanks to Mark Goldberg, Kathryn Hashimoto, Jessica Koningisor, Margaret Kwoka, John Langford, Jonathan Manes, David McCraw, David Pozen, Ricardo Brandon Rios, and David Schulz, as well as to the participants at Yale Law School’s Freedom of Expression Scholars Conference and Berkeley Law School’s Fellows Workshop. I am especially grateful to Jim Dempsey and the Center for Law and Technology at U.C. Berkeley School of Law for supporting this research.
Northwest University Law Review