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The Principle of Transparency
of reasoned explanations for decisions. It also refers to policymaking and law drafts which should be as accessible and as comprehensible as possible, simplifying them so that they are more easily understood by the public. Complexity, disorder, and secrecy are features that transparency seeks to combat. The term ‘openness’ is quite similar to transparency. Openness goes beyond access to documents to cover such items as opening up the processes and meetings of public bodies. Openness means concentrating on processes that reveal the operations and activities of government. Often the term is used in combination with open government, which means actively providing access to information. But how should that be interpreted? When there is only a non- legally binding code, then no rights are created. Here, openness and transparency are seen as equal terms but we prefer the term transparency because it entails the most protection. Openness alone is not the same as protection.
2. The Concept of Transparency The concept of transparency is regarded as a central notion of modern democracy.5 Important elements of legal transparency include clarity of procedures, clear drafting, the publication and notification of legislation and decisions, and the duty to give reasons6 as well as ‘clear language, the predictability of public authorities’’ actions or behaviours, and consistency in the interpretation and application of the law. Secrecy is a cloak for arbitrariness, inefficiency, and corruption. Access to the relevant documentation is crucial for understanding the reasons behind governmental actions. Transparent information creates the trust that the people place in the government. It facilitates the construction of a reasoned argument by those opposed to a measure. Government should be accountable for its actions and this is difficult if it has a monopoly over the available information. Accountability is based upon reliable information, which is a prerequisite to establish effectiveness and efficiency of government. Some authors argue that having accountability through transparency can, in a very practical way, hinder the effectiveness of decision-making. For example, transparency may lead to defensive thinking and excessive caution, a return to the ‘avoid personal risks at all costs’ culture that new public management sought to eliminate.7 Individual citizens should know about the information held about them in order to check its correctness and the use to which it is put. So, it is necessary for the idea of citizenship. Furthermore, it is hoped that public disclosure of information will actually improve decision-making and its processes. Then, it strengthens the reliability of government decisions and aides those in government to identify the public interest.8 But what are the arguments against the concept of transparency?9 Some authors are of the opinion that we are not thinking critically enough about where and when transparency works, where and when it may lead to confusion, or worse. Lessig gives many reasons in favour of limited administrative transparency. He says: ‘understanding how and why some stories will be understood, or not understood, provides the key to grasping what is’.10 This is clarified as follows. The first argument, which is addressed in the literature, is that of representative democracy. Citizens are represented by government and parliament, who have to solve problems. Disagreement within the government should not be revealed. Because of the need for an efficient and strong 5 7 10
6 Birkinshaw 2005. Prechal and De Leeuw 2007, 51. 8 Bannister and Connolly 2011. Craig 2006, 350. Lessig 2009.
9
Birkinshaw 2006.
