Academic journal article Harvard Law Review

Mechanisms of Secrecy

Academic journal article Harvard Law Review

Mechanisms of Secrecy

Article excerpt

To what extent should the government keep secrets from the people? Government often needs to operate in secret in order to shape and execute socially desirable policies, and excessive transparency requirements can have an ossifying effect that prevents government from responding in innovative ways to changed circumstances. (1) But transparency helps ensure that governmental actors do not misuse their power; a government that is free to operate in secret is free to do both good and bad things without fear of reproach from the voters. Secrecy is in some areas, such as national security, essential to a nation's ongoing vitality, yet it seems to be strongly in tension with accountability (2)--a necessary element of democracy. There is no easy resolution to this conflict. On one hand are claims such as Cardinal Richelieu's that "[s]ecrecy is the first essential in affairs of state"; (3) on the other are those like Jeremy Bentham's assertion that secrecy, being "an instrument of conspiracy[,] ... ought not, therefore, be the system of a regular government," (4) or, more recently, the Sixth Circuit's declaration that "[d]emocracies die behind closed doors." (5)

The conflict between transparency and secrecy is a particularly stark instantiation of the principal-agent problem in public law. (6) It is the province of institutional design to come up with effective means to ensure that government actors act in accordance with voters' desires. (7) Much of the time, elections and other disciplining mechanisms (such as impeachment for judges and indirect political control for unelected members of the executive branch) deter official behavior that diverges too widely from voters' interests, at least over the long term. However, because these traditional incentive-alignment methods require political involvement by the public, they cannot prevent self-interested behavior by political actors if the voters have no way of learning about the malfeasance. Transparency seems essential from this perspective, since it allows voters to monitor the actions of their agents. (8) Transparency and accountability are seen as inherently linked, and secrecy is considered by many to produce large agency costs. The main point of disagreement is where to determine the point at which government operations go from being "open" to being "closed" in order to strike a "balance" between secrecy and accountability. (9)

This Note explores alternatives to this dichotomous conception of secrecy and accountability. (10) It considers the problem of secrecy and transparency from the perspective of the principal-agent relationship and advocates creative approaches that focus on reducing the total agency costs in the relationship between voters and their representatives. Toward that end, this Note explores three mechanisms that could, if used appropriately, minimize agency costs while still allowing the government the freedom to make important decisions or conduct sensitive operations in secret. This Note's goal is not to critique existing secrecy law systematically, nor to propose a feasible replacement system. Rather, it aims to explore new ways to think about the secrecy/transparency dilemma and to suggest that it is worth investigating mechanisms (including, but not limited to, the three suggested here) that capture as many of the benefits of secrecy as possible while minimizing agency costs.

This Note thus attempts to provide a larger conceptual toolkit for thinking about ways to reduce agency costs in government. In doing so, this Note assumes that the goal of any transparency requirement should be to increase societal well-being, not simply to increase the amount of information available for its own sake. Transparency is an instrumental rather than intrinsic good. (11) Transparency should not be "the general rule to which secrecy is the occasional exception" (12) unless it is the best agency cost-reducing mechanism across almost all situations. …

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