The administration of Barack Obama has been marked by its stated quest for transparency. On his first full day in office, President Obama signed the Open Government Memorandum, declaring that he was “committed to creating an unprecedented level of openness in government” and that he aimed to “promot[e] accountability and provid[e] information for citizens about what their Government is doing.” Following this ambitious commitment, the Obama Administration engaged in a frenzy of transparency-related activities, bringing to light thousands of data sets that contained previously unavailable information in a wide variety of regulatory domains. Dozens of other countries have enthusiastically followed the American example, vowing to release unprecedented amounts of regulatory information to the Internet.
The core purpose of these transparency initiatives was to strengthen the accountability of governmental agencies and to ensure “that persons with public responsibilities [are] answerable to ‘the people’ for the performance of their duties.” Indeed, regulatory transparency has traditionally been regarded as a means for improving agencies’ public accountability. The advent of the Internet era further buttresses this logic, creating unprecedented opportunities for accessing, sharing, and processing regulatory information.
This Article complicates this traditional marriage between transparency, technology, and public accountability. Part I articulates the role of public accountability in administrative law, and explores the major “offline” policies that aim to improve public accountability, such as notice and comment and FOIA. Part II offers a typology of the three major regimes of online transparency policies, and demonstrates that they largely fail in their efforts to strengthen public accountability. Part III suggests an alternative design for online transparency policies, such as requiring agencies to release information on their decisionmaking processes and performance. Part III also suggests improved enforcement measures, and discusses the mechanisms available to civil society for holding agencies accountable.