2. The Concept 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 nonlegally 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 Birkinshaw 2005. 6 Prechal and De Leeuw 2007, 51. 7 Bannister and Connolly 2011. 8 Craig 2006, 350. 9 Birkinshaw 2006. 10 Lessig 2009.

government, too much information will deflect resources away from the provision of essential public services. Allowing public access to the government’s information would undermine ministerial responsibility. But how is this argument related to the argument that, by transparency, citizens’ trust in the government is promoted? One can never be sure that sensitive or controversial information is used appropriately. Seemingly innocuous information may be lethal in the hands of terrorists or psychopaths. What about unjustified invasion of personal privacy or commercial confidentiality? In the end, it might undermine the trust that must exist between those in government and the governed. But some will say: is it not the task of the representatives to ensure that the government functions correctly? They do need information, and because the people elect the representatives, we also need the information to make a good choice during the elections.

Nevertheless, we should not exaggerate the transforming effect of these developments. Openness in government is not altogether new, and it is not guaranteed. We should keep in mind that the government has had to live with forms of openness for centuries. The questions in parliament from the parliamentarians and the openness of the courts already existed for a long time. Various forms of public inquiry are part of a longstanding tradition in many countries, whereby public inquiry commissions of the parliament or the government were formed. Open government really is partly new and cannot be taken for granted. The principle that administrative information in general is to be open is a new principle, which has been developed since the 1990s. It is of constitutional importance because of its contribution to political control of government. But it has a more basic importance, because it makes the government face up to people: it is in itself an accountability technique.11

The description of transparency has two sides: the active and the passive one. The active side means that the government has to inform the public by itself and on its own initiative. The passive side means that anyone can request specific information. This access to information is one of the most important elements of the concept of transparency, but there are more. The active side is related to the openness of the government. It means that the government is open in their activities related to public interests. This obligation does not mean that every single meeting is announced, but in principle, citizens should be able at least to attend meetings that are of any importance to them. The same applies for decisions taken by the government, and the final decisions which could have consequences for third parties should be published. The second is about inquiries done by specific committees. Often these committees are chaired by an independent person and can have different functions. A few possible functions are: to establish the facts; to learn from events; to provide trust for ‘stakeholders’; to reassure the public; to make people and organizations accountable; and to serve the political interests of government.12

Until now, the focus was on the transparency of the government, and especially on the administration. But because we speak here about transparency as a principle of good governance, this principle is applied in the context of the legislative power and the judicial power too. Traditionally, legislators mostly act transparently, so the principle is well recognized here. But also, in the judiciary, there is a tendency to be more transparent in the trial as well as in the publication of the final judicial decision. The transparency of information in the framework of (quasi-)judicial procedures is also relevant. Some examples for the Netherlands are article 121 of the Dutch Constitution

11 Endicott 2009, 31; Endicott 2015. 12 Howe 1999.