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set forth solutions, an overall mapping of these theories is required. This section
takes preliminary steps to provide such a theory. In doing so, it will often return to
the taxonomy drawn out above. It will explain how the theories vary in relevance
and strength when shifting from one segment to another.
Prior to delving into a discussion of detailed theories of transparency and
disclosure, we must address the simplest and perhaps most intuitive theoretical
explanation. The acts of a liberal and democratic government must, categorically,
be as transparent as possible. 13 Indeed, a basic right of transparency could be
derived from the notion of democracy. Scholars note that transparency is essential
for democracy to function. In doing so, they make reference to an abundance of
sources, such as Locke, Mill, Kant, Rousseau, Bentham, and James Madison
(Fenster, 2006). They further explain that transparency enables an informed public
debate, generates trust in and legitimacy for government. It also informs
individual decision on Election Day. A similar notion is reflected by accepting
transparency as a basic human right. 14
Accepting such a categorical argument, on its face, shortens our analysis - as it
provides a clear response to the question as to why transparency is important and
required. Yet an instrumental analysis of the benefits and outcomes of transparency
as it pertains to specific segments of society and the steps of the process is still
called for. Any pro-transparency argument is quickly rebutted by powerful and
convincing counter arguments (which will be addressed in future work). Central
counterarguments note that transparency generates substantial costs, undermines
governmental objectives, promotes crime and generates stigma. Without a deeper
understanding of the interests in play, correctly balancing transparency against these
counterarguments would prove impossible. In addition, a categorical right of
transparency will fail to provide many important distinctions between levels of
transparency throughout the information flow addressed here. Only a broad and
elaborate theoretical foundation will provide specific responses at every juncture.
However, an overarching theory of transparency rights which is premised on
democracy still has an important implication. The “default” of governmental
actions should be transparency. Yet the precise formation and extent of disclosure
would be derived from the specific theories the next paragraphs draw out.
In Section 4.2 below, I map out four theories of transparency. These are premised
upon the following theories and mechanisms broad array of justification
(1) Transparency as a tool for assuring fair outcomes via shaming; (2) ransparency
as a measure for engaging the broader public through “Crowdsourcing;”
(3) Transparency as a measure for promoting the autonomy of data subjects, or
(4) the autonomy of those impacted by the predictive process (the subtle
13 The Obama administration has accepted this notion, as stated on the White House
website: “ Government should be transparent. Transparency promotes accountability
and provides information for citizens about what their Government is doing.”
14 For a discussion of this right, and a comparative study, see T OBY M ENDEL , F REEDOM OF
I NFORMATION : A C OMPARATIVE S URVEY (2nd Ed., UNESCO, 2008), Section 1:30,
available at:
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