Paper by Christina Koningisor: “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…(More)”.