BLANKLEY: Public’s right to know?

Several events in recent months bring back to the forefront the perennial assertion that, on grounds of both efficacy and ethics, the public’s right to know is the best guide to good government and good institutions.

Indeed, the Obama administration prominently displays on the White House Web site a presidential memorandum that starts: “Memorandum for the heads of Executive Departments and Agencies

“Subject: Transparency and Open Government

“My administration is committed to creating an unprecedented level of openness in Government. We will work together to ensure the public trust and establish a system of transparency, public participation, and collaboration. Openness will strengthen our democracy and promote efficiency and effectiveness in Government … .”

Supreme Court Justice Louis Brandeis gave impetus to this reasonable proposition with his observation that “sunlight [on public policy matters] is the best disinfectant” against corruption. Perhaps ironically, Brandeis also is credited with being the father of the constitutional “right of privacy” as it applies to individuals.

But of course, some publicly held information should not be disclosed (e.g. nuclear military secrets), while some private information should be open to public view (e.g. evidence of individual criminal conduct).

While it may be justified for the government to have as a general default policy regarding routine information the public’s right to disclosure (see the Freedom of Information Act) in any particular factual setting, the principle of “right to know”or “transparency” is not much of a guide.

Consider four recent controversial events:

(1) Advance announcement of the bank “stress tests” by the Treasury Department.

(2) Nondisclosure at the time of the Henry M. Paulson/Ben S. Bernanke threat to fire Bank of America Chief Executive Officer Ken Lewis if he didn’t complete the Bank of America purchase of Merrill Lynch.

(3) Release of the terrorist interrogation memorandums.

(4) Secretary of State Hillary Rodham Clinton’s public disclosure that the U.S. government considers the possible fall of the Pakistani government to the Taliban a “mortal threat” to the United States.

Each of those disclosure/nondisclosure decisions has been sharply contested. And in none of them is the general principle of transparency a useful guide.

In the first instance, most financial experts and commentators have argued that the level of public and market cynicism is so high that if the government says the banks passed, it won’t be believed, and if it flunks a bank, some will suspect that bank is a scapegoat offered up to try to convince the public that the test was legitimate.

This problem was compounded by the fact that the government first announced the tests but said it would not release individual data. However, when pressured, the government has been publicly releasing information on a slow-motion basis.

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