One of the cornerstones of American democracy is the public’s right to access information about the decisions, policies, and actions undertaken by all levels of government. This access is critical for a free press, an informed body of voters, and an understanding of which policies do and don’t work.
Federal and state transparency laws, for example, serve an essential role in the ability of journalists and researchers to inspect the workings of government and inform the public. These laws also allow access to data and records that help voters decide whether to keep, amend, or eliminate policies and bureaucratic structures based on their real-world performance.
Transparency in law enforcement agencies is particularly important because the agencies exercise so much discretionary power and require significant trust from the public. If police officers are engaging in misconduct or failing to protect civilians from violence, we must be able to discover it and determine how to improve policing. Moreover, in order to ensure that all members of the public receive equal protection, law enforcement agencies must be accountable for actions and policies that have disproportionately negative effects on certain subsets of the population.
For example, in California, county sheriffs issue concealed carry permits for handgun owners, and these agencies generally do not publish the rate at which they issue permits to their civilians. But by filing requests under the California Public Records Act, researchers can access this information to determine if there are some jurisdictions in which obtaining a permit is more difficult than in others, as well as investigate the possibility that these statistical disparities result in outcomes that sharply diverge across racial lines and population density.
At the federal level, the Freedom of Information Act (FOIA) enables journalists, researchers and taxpayers to examine whether agencies like the Federal Bureau of Investigation, Drug Enforcement Administration, and the U.S. Immigration and Customs Enforcement’s engage in misconduct or ineffective activities.
For example, much of the federal enforcement of anti-sex-trafficking laws has been directed against Asian women engaged in consensual sex work. By tracking federal enforcement activities and subsequent charges, Reason’s Elizabeth Nolan Brown uncovered a widespread practice of “human trafficking” raids on Asian massage parlors that rarely result in any human trafficking charges or arrests of pimps or johns, but almost always result in arrests of Asian women for prostitution.
Sometimes, this kind of original research is the best way to discover malfeasance in law enforcement activities. But other times, FOIA requests provide the only opportunity for members of the public to learn of agencies targeting particular populations. The American Civil Liberties Union discovered that the FBI was engaged in widespread racial profiling.
The FBI has been targeting American communities for investigation based on race, ethnicity, national origin and religion according to documents released today by the American Civil Liberties Union and its affiliates that were obtained under the Freedom of Information Act.
The documents show that FBI analysts across the country are associating criminal behaviors with certain racial and ethnic groups and then using U.S. census data and other demographic information to map where those communities are located to investigate them.
This reporting and data allows citizens to question the motives, public safety efficacy, and fairness of policies and enforcement.
The federal Freedom of Information Act, which first took effect in 1967, established the federal government’s obligation to respond to public requests for information. If a federal government agency has records that are considered “responsive” to the request, the agency must provide them to the requestor. However, there are several exceptions, including information relating to national security, personnel and medical files, and trade secrets. All states have some form of public information law, such as the California Privacy Rights Act (CPRA), often similar in structure and statutory exceptions to the federal FOIA.
In 1983, the United States Court of Appeals for the District of Columbia Circuit wrote in McGehee v. CIA:
“It has often been observed that the central purpose of the FOIA is to ‘open up the workings of government to public scrutiny.’ One of the premises of that objective is the belief that ‘an informed electorate is vital to the proper operation of a democracy.’ A more specific goal implicit in the foregoing principles is to give citizens access to the information on the basis of which government agencies make their decisions, thereby equipping the populace to evaluate and criticize those decisions.”
This decision seems to imply that truly responsible public agencies would make the information people need to understand agency decisions and activities easily available online and not require public information requests to share it.
Transparency laws occupy a space alongside the First Amendment as an essential element of an informed democracy. The right to “petition the government for a redress of grievances” depends on the ability to first determine what grievances we might have. To demand that California sheriffs issue concealed carry permits more permissively in urban areas or insist that the government stop targeting Asian sex workers, we must first discover that these phenomena are occurring.
Government agencies will always be imperfect, but democratic policymaking on behalf of an informed public is the best tool we have to improve it. Ongoing and informed public input is essential for building community trust in law enforcement agencies. If a police department reports a high number of officer-involved shootings, residents of that jurisdiction may use the available information to demand a change to the department’s use of force policy. If police records show that officers are routinely unable to respond to civilian crime reports due to being understaffed, residents may use that information to demand that the city shift its law enforcement priorities and how it uses existing resources or call for more resources. Similarly, if a police department reports a high number of arrests for a crime that residents consider minor or unobjectionable, they can demand that the department shift its resources away from that crime and toward the crimes they consider more serious. And if officers are accused of bias against an individual due to their race or another characteristic, residents can demand that officers receive training or suffer disciplinary consequences designed to reduce such behavior.
Additionally, transparency laws likely provide a deterrence effect for government agents engaging in misconduct. Rather than allowing officers to hide behind anonymity, transparency laws force law enforcement agencies to admit to the public that there may be “bad apples” in their bunch. An additional benefit of this accountability is that it also serves as a mechanism to reward and publicize good behavior. Publicity for good deeds and excellence in service can incentivize officers to act within policy and serve their communities well.
Transparency laws have immense benefits for society. Citizens need to trust we have access to information about government and law enforcement. Information and transparency can help rebuild appropriate levels of trust and accountability for law enforcement agencies.