Transparency and its Discontents

The denizens of Twitter like to dump on Matt Yglesias, blogger and executive editor at Vox.com, but said dumping is not always warranted. Tendencies to oversimplify and be contrarian for the sake of it aside, he does write not a few pieces that do provide some good insight into the political environment. His latest piece, “Against Transparency”, ain’t one of those, however:

Treating email as public by default rather than private like phone calls does not serve the public interest. Rather than public servants communicating with the best tool available for communication purposes, they’re communicating with an arbitrary legal distinction in mind.

[…]

Government secrecy can be, and in some ways is, out of control. But a private conversation to facilitate a frank exchange of ideas is not the same as a secret bombing campaign in Cambodia. We need to let public officials talk to each other — and to their professional contacts outside the government — in ways that are both honest and technologically modern.

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God bless the internet.

As Eira Tansey, who graciously looked this post over for me (Thanks Eira!), points out, this is just the latest in a subtle, but real, trend among contrarian-type thinkpiece authors, in which  the era of open government is lamented as impeding government from functioning properly. (See this recent article in The Atlantic for another example of this genre; mourning the demise of party machines is a nice touch.) This one, however, hits a bit more home, for obvious reasons. For more explication of why this article raises my records management hackles, follow me past the jump.

Yglesias’ argument, such as it is, seems to rest on a few key planks, which in oversimplified terms comprise the following:

  • Email wasn’t intended to be the informal/ad hoc communication method it often is today, and FOIA application largely doesn’t reflect that
  • Applying FOIA to email leads to employees employing verbal communication or other workarounds to conduct business
  • Having a space for “frank discussion” allows public officials to do their jobs; presumption of disclosure creates a chilling effect
  • FOIA doesn’t work anyway(!), so government agencies should routinely publish more data about their activities on a regular basis rather than leave it to disclosure activities

Let’s start with the matter of the supposed “intended use” of email, which we can dispense with almost immediately because, from a records context, it doesn’t really matter. According to literally every records authority of which I am aware, the “recordness” of a document is determined by that document’s content, not that document’s format. Let’s repeat that for folks in the back: Records are determined by content, not format. If an email is being used to conduct official business, that email is a record, regardless of whether the “intent” was to create a formal record. The same goes for phone calls, SMS texts,  Yammer chats, Slack discussion, semaphore, whatever.

Now, it’s true that I have talked before about the usefulness of a transitory records schedule for the little operational emails that grease the wheels of an organization, but such a schedule doesn’t (or at least shouldn’t) remove those records from the public record (…we really need a more diverse vocabulary in this profession). Even if you completely discount the public interest factor, you use records in an administrative capacity to track what was discussed and decided, and how those conclusions were reached. Sans records, which is what Yglesias seems to think is the long-term trend, you are basically relying on people’s memories to run the organization. In which case, one might reasonably ask what use is literacy to a society anyway. This is of course reducto ad absurdum– Yglesias is not really arguing against literacy– but the larger point here is that there will always be operational records besides the official published materials of an organization, regardless of whether the *really* juicy stuff gets written down. (I mean, our  knowledge of Minoan civilization’s own writing comes mainly from Linear B, primarly used to keep palace records.)

But the question of “email wasn’t intended to be used this way” is really a quibble. Yglesias’ bigger argument is about the Chilling Effect and how presumption of disclosure tends to push the ‘real’ decision making to phone calls, unofficial meetings, and other unwritten fora. My response to this argument is, “This is new?” We’ve talked about the chilling effect, the tension between service to the institution and service to society, and institutional silences before on this blog, so clearly it is a real problem, but it is also a problem that has been with us for as long as records have been kept. You could go back to ancient Sumer and wonder what deliberation went into compiling the Hammurabic Code– and people do!– but ultimately that is a fundamental tension in any historical or current events study. Ranke’s Geschichte wie es eigentlich gewesen (History as it actually was) is a myth– we do the best we can with the sources we have, acknowledging that the recorders of said sources are necessarily biased and don’t necessarily tell us everything.

Yglesias’ solution– to make email a privileged forum for “frank discussion” while mandating regular publication of a wider set of information– does not actually help this problem, because it ignores the tendency of far too many public officials towards presumption of secrecy. The converse of his “clever” subhead (‘When email is outlawed, only outlaws will use email’) is also true– when email is privileged, every decision of any consequence whatsoever will gravitate towards email. In creating a “black box” where disclosure laws don’t apply, one also creates a perverse incentive to store important records of all sorts in said box. Apart from creating an appalling failure of accountability to the public who elects and pays the salary of these officials, this introduces a potential equally-appalling failure of records’ operational usability. Maybe people would tag and file email better if it were their ONLY recordkeeping system, but I am not convinced– nor am I convinced that most current email taxonomies are even good enough to do that.

As for disclosure via “routine publication of what [an agency] knows in useful formats as a core function”… well, see the links a couple of paragraphs above. Publications of this nature are inherently curated to provide exactly the information that an agency wants to provide, no more or less. I will be charitable and say that it is naive to think that any body subject to disclosure will intentionally provide the kind of information that can be used to do serious reputational or material harm to that body. Yglesias indicates that “The FOIA process is grounded in a midcentury technological paradigm that made routine widespread information dissemination impractical”, which is ultimately true, but the kind of data dump that he proposes is likely mostly to overwhelm researchers rather than to be of any real use. Computational analysis can certainly help with the amount of data in play here, but only if the program is given specific direction what to look for.

For my own part, I tell people at records management training sessions that they should treat all records they create, in whatever format (including email), as something that could *potentially* wind up on the front page of the local newspaper. My trainees will take a variety of things away from that advice, and some of them will certainly decide to stop communicating via email to keep it from being used against them. Others, however, will continue using it and other written media to communicate, creating records in the process, because it IS convenient. If “normal modern-day people conduct a lot of discussions that in the past would have been verbal using text-based digital communications tools”, they do so because it allows them to both have those conversations at a remove and to instantly document those conversations for their future use. (You don’t see too many memoranda of conversations in official records these days… which, by the way, are themselves imperfect recollections of conversations nonetheless kept to document the process.)

If public officials are conscious of their place in history or in the news as reflected in their written correspondence, which Yglesias appears to see as a deathblow to honesty in public records, well, ’twas ever thus. If something is *truly* sensitive, such as items relating to national security, it will be redacted or not released in the first place. If an email has the potential to be taken out of context or to be politically embarrassing, perhaps that should be a prompt to revise it so that it is not, or, yes, to use a different medium than email. In the meantime, though, email provides an unprecedented glimpse at the very “hallway-conversation” process that Yglesias wants to protect– and in so doing provides that much more information for the public to keep its officials accountable. To say that this kind of accountability is “fundamentally not in the public interest”, as Yglesias does, is at best disingenuous.

Perhaps Matt Yglesias is right, as he indicates in his final subhead, that “Effective government beats transparent government”, but it seems very dangerous, particularly in a democratic setting, to accept such an argument uncritically. By all accounts, after all, the Stasi was extremely effective.

 

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2 thoughts on “Transparency and its Discontents

  1. Yglesias is not a records expert so I’m not surprised that he misses the fact that recordness depends on content, not method of communications or transmittal. But his essay is worth considering for its recognition of the tension between the business need to communicate and awareness of the legal discoverability of communications.

    There are many unacknowledged tensions that surround record keeping. They deserve attention in terms of “Transparency and its discontents,” as here, but also in terms of “Transparency and its disconnects.” I’d like to see more effort to connect the disparate elements.

    The chilling effect is complicated because few of the many elements that affect it even are acknowledged by those who work with records. One element that sets electronic records apart from past paper documentation is the psychological impact of changes in retention and access to the most sensitive materials.

    Such access no longer depends on file cabinet key or combination safe access through a trusted confidential assistant who works closely with and is known to an executive. But through others (including IT personnel and contractors) the executive may not even know well, if at all, or ever see. The State Department Inspector General pointed to that last year as a cause of concern by some government employees reluctant to using electronic records management systems.

    To some extent, some issues with email stem from a lag in Federal agencies and departments’ internal guidance on email recordness and the habits users developed naturally (in some cases in an age of innocence) when it first became available in the 1990s as a convenient tool. (The same may have occurred in the business world, as the Microsoft litigation in the 1990s illustrated.)

    While Yglesias errs in interpreting some RM basics, where it does occur, the misalignment of business needs for communications and perceptions of reach are part of the chilling effect. That the chilling effect exists is not in my case an argument against transparency (I support Open Government) but a look at what affects the content of records.

    Anyone who has seen the flyers and written guidance Federal records officers in agencies and departments sometimes circulate about email knows that the advice often comes down to “avoid using email for anything sensitive; consider picking up the telephone or walking to a colleague’s office, instead.”

    FOIA requestors often focus on records as sources for finding out what is happening or happened in the past. Yet Records Officers and legal counsel sometimes advise officials to write with the public record in mind even in their internal communications (not just email but all recorded thoughts).

    This advice can result in what I referred to over a decade ago as “pre-emptive sanitization.” Sanitization can result in skewed impressions of “what happened,” especially when creators of records think not in terms of historians’ present or future access to records but in terms of possible reach by political opponents, litigators or issue activists.

    Whether RMs, lawyers, and program officials even consider the impact of pre-emptive sanitization and self-censorship (your front page image) on the use of records by others in their employing institutions (agency historians, policy analysts) also deserves greater consideration.

    Inside an employing entity, the results of internal research on what happened in the near past can affect decision making, policy decisions, and institutional operations. Sometimes, what the records reflect and what participants remember shows significant gaps.

    While self censorship occurred to some extent in the paper-records age, as well, as you correctly point out, it is heightened in the digital age. That electronic communications can be hacked and disclosed in data dumps adds to the records creation and preservation dynamic, as well. The heightened sense of risk that surrounds records in the electronic age deserves greater exploration.

  2. Pingback: Towards a Social Justice in ARM bibliography | The Schedule

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