How Change Happens

by Cass R Sunstein

  Sunlight

  Begin with the remarkable finding, by the economist Amartya Sen, that in the history of the world, there has never been a famine in a system with a free press and democratic elections.1 Sen’s starting point here, which he demonstrates empirically, is that famines are a social product, not an inevitable product of scarcity of food. Whether there will be a famine, as opposed to a mere shortage, depends on people’s entitlements—that is, what they are able to obtain. Even when food is limited, entitlements can be allocated in such a way as to ensure that no one will starve.

  But when will a government take the necessary steps to prevent starvation? The answer depends on that government’s own incentives. When there is a democratic system with free speech and a free press, the government faces a great deal of pressure to ensure that people generally have access to food. And when officials are thus pressured, they respond. But a system without a free press or democratic elections is likely to enable government to escape public accountability and hence not to respond to famines. Government officials will not be exposed, nor will they be at risk of losing their jobs.

  Here, then, is a large lesson about the relationships among a well-functioning system of free expression, disclosure of relevant information (outputs), and citizens’ well-being. Free speech and freedom of information are not mere luxuries, catering to the tastes of members of the most educated classes. On the contrary, they increase the likelihood that government will actually serve people’s interests. This lesson suggests some of the virtues not only for liberty but also for economic goals of having freedom of speech and freedom of information.2

  In recent years, most of the most prominent transparency initiatives have involved outputs. A revealing example involves GPS devices. In 1993, President Clinton chose to unlock (by making public and useable) the data that was ultimately adapted to make the GPS device a familiar part of everyday life. Its availability has helped countless people, often in profound ways; it has even saved lives. A GPS device makes life more navigable (literally). If we think about navigability as a more general idea, we can see the value of disclosure of many outputs. Information about safety seats in cars, crime, air and water quality, and much more can be seen as akin to GPS devices, writ large: they tell people how to go in the directions they want.

  For all of its years, the Obama administration made transparency a major priority. (I am insisting on that point while acknowledging the many controversies during the Obama presidency over potential trade-offs between transparency and other values.) The priority was signaled by an early and defining presidential memorandum, dedicated specifically to the Freedom of Information Act. The memorandum establishes “a clear presumption: In the face of doubt, openness prevails.” Importantly, it adds that “agencies should take affirmative steps to make information public. They should not wait for specific requests from the public.” It directs both the attorney general and the director of the Office of Management and Budget (OMB) to issue new guidance designed to implement the governing principles.

  Both resulting documents deserve close attention, but for my purposes here, the OMB’s guidance is especially noteworthy.3 The memorandum directs agencies to publish information online. It adds that “agencies should proactively use modern technology to disseminate useful information, rather than waiting for specific requests under FOIA.” Perhaps most significantly, it requires each agency to create an open government plan and an open government webpage, designed to “create and institutionalize a culture of open government.” The open government plans are required to have “online in an open format at least three high-value data sets,” which are in turn defined as “information that can be used to increase agency accountability and responsiveness; improve public knowledge of the agency and its operations; further the core mission of the agency; create economic opportunity; or respond to need and demand as identified through public consultation.”

  In the abstract, it is not clear whether this initiative involves output transparency or input transparency, but in practice the former was and remains primary by far.4 The high-value datasets typically involve outputs. Since 2009, data.gov has become a principal location for posting such datasets, which amount to output transparency in action. The site now offers many datasets, with information on agriculture, finance, health, education, energy, and much more. With a click, you can find “Airline On-Time Performance and Causes of Flight Delays: On-Time Data,” “Expenditures on Children by Families” (with estimates of the cost of raising children from birth through age 17 for major budgetary components), or detailed information about product recalls. There is much more in the same vein, focusing on outputs of policymaking or information-gathering activity.

  As a result, people in the private sector have produced numerous apps that provide people with information that they can actually use. One example is AirNow, which has up-to-the-moment information about air quality. Another is the College Affordability and Transparency Center, which provides information about college costs. Yet another is eRecall, which gives people information about recall information at the time of purchase.

  The outputs released on data.gov serve two independent purposes. First, people can take advantage of them in their daily lives. Like a GPS device, most of this information makes life simpler and more navigable. The availability of such information on cell phones makes the point far from fanciful. This point is no mere abstraction. If we take the idea of navigability in the large, we can see disclosure as a way of helping people to get to their preferred destinations in countless domains, saving money and reducing risks in the process. To my knowledge, the benefits of data.gov have yet to be quantified, but there is little doubt that people are gaining from the disclosures in concrete ways. They are excellent nudges. (Compare the benefits of GPS devices.)

  Second, release of the outputs can promote accountability for both private and public sectors. Recall Justice Louis Brandeis’s suggestion that “sunlight is … the best of disinfectants.”5 If the air quality is terrible in Los Angeles, if a particular university is unusually expensive, if students at a for-profit college do not end up with jobs, if drinking water is unsafe in San Diego, or if a company has a lot of recalled toys, transparency can serve as a spur to change. Transparency increases accountability, and when people are accountable their performance is likely to improve.6 The point bears on both public and private institutions. Transparency can tell citizens about the actions of public officials—for example, how long it takes for them to work on a permit application or the levels of air pollution in San Antonio (for which officials bear some responsibility). It can also inform citizens about the actions of private actors—for example, by disclosing product recalls or ratings of safety seats. In either event, it can spur improved performance.

  Missions

  One of the most interesting aspects of the OMB memorandum is that it asks agencies to consider whether disclosure might further their “core missions.” That is an exceedingly important idea, which deserves far more agency use in the future, and it involves disclosure of outputs.

  In environmental policy, one of the most well-known examples is the Toxic Release Inventory (TRI), which was created largely as a bookkeeping measure, designed to ensure that the federal government would have information about toxic releases. To the surprise of many people, the TRI has been a successful regulatory approach, because companies did not want to be listed as one of the “dirty dozen” in their states.7 Accountability served as a spur toward emissions reductions. For a period, the Occupational Safety and Health Administration (OSHA) followed this lead by posting, very visibly on osha.gov, information about recent deaths in American workplaces, with names of the companies whose employees died. The EPA did something quite similar with its Greenhouse Gas Inventory, one of whose goals was to spur emissions reductions. Here again, we are speaking of nudges, which can be used to influence corporate behavior.

  In all of these cases, the government is disclosing information that p
ublic officials have. We can imagine, of course, a requirement of output transparency imposed by the public sector on the private sector. Requirements of that kind are not always organized under the idea of freedom of information, but they involve transparency, and they can also promote important agency missions. Under the authority of the Affordable Care Act, for example, the Food and Drug Administration has required chain restaurants to disclose the calories associated with their offerings. Some of the early results are quite promising, with significant reductions in body mass index (BMI) among people who really do need to lose weight.8 It is also hoped that disclosure requirements will affect the behavior of producers and sellers, and there is evidence that calorie disclosure requirements are leading restaurants to offer healthier meals.

  I have offered just a few illustrations of disclosures whose goal is to promote agency missions through output transparency. An excellent collection, generally including outputs, can be found in the numerous action plans from dozens of nations of the Open Government Partnership (see opengovernmentpartnership.org). It is, of course, an empirical question whether transparency will promote agency missions. But in many cases, it can.9 (It is said that China’s interest in air pollution and greenhouse gas emissions has been greatly spurred by the ready availability of the air quality index on cell phones.) Because the costs of output transparency are typically low, there is every reason to adopt a presumption in its favor.

  I have been painting with a very broad brush—in principle, an unduly broad one. My suggestion has been that disclosure of outputs is justified, or presumptively justified, on welfare grounds, but that is not always the case. We can easily imagine outputs whose disclosure would produce low benefits or high costs. With respect to costs, consider the words of the OMB memorandum: “Nothing in this Directive shall be construed to supersede existing requirements for review and clearance of pre-decisional information by the Director of the Office of Management and Budget relating to legislative, budgetary, administrative, and regulatory materials. Moreover, nothing in this Directive shall be construed to suggest that the presumption of openness precludes the legitimate protection of information whose release would threaten national security, invade personal privacy, breach confidentiality, or damage other genuinely compelling interests.” That is jargon, but it points to important qualifications.

  In various ways, the Freedom of Information Act recognizes all of these qualifications and more. No one doubts that the government has a great deal of information whose disclosure would endanger national security, and even if that information can be counted as an output, it should be kept confidential. The government also has “personally identifiable information,” which receives protection under privacy laws. Although a balance must be struck between transparency and privacy, some forms of disclosure intrude on privacy in an intolerable way. Some kinds of disclosure could compromise trade secrets or otherwise privileged information. And if disclosure is not automatic or automated, the very act of providing transparency can impose costs in terms of both money and time.

  On the benefit side, distinctions are also important. In principle, and if the costs of making the assessment were zero, it would make sense not to insist that each and every output should be disclosed, but instead to ask, on a case-by-case basis, whether disclosing specified outputs would or could be beneficial—for example, to consumers and workers. Of the numerous data sets on data.gov, surely some have modest benefits or no benefits; people are not paying the slightest attention to them (and they will not in the future). A welfarist analysis would call for particularized inquiries into that question. The problem, of course, is that those inquiries may not be manageable. When disclosure is being discussed, projection of benefits may be quite difficult. What people will do with information (if anything) may not be self-evident. The private sector is ingenious and full of alchemists. What it will find useful or turn into gold cannot be predicted in advance.

  In view of that fact, it makes sense for agencies to make reasonable judgments about what count as high-value datasets, broadly understood, and to get them online as soon as possible—and announce a general presumption in favor of disclosure of outputs, armed with an intuitive understanding of the domains to which the presumption will be applied. It should be underlined that a degree of automaticity, putting relevant material online as a matter of routine, could be extremely helpful.

  With respect to high-value datasets, intuitions should be disciplined by asking two questions: (1) Could people possibly benefit from this information in their daily lives? (2) Could disclosure promote accountability in a way that would improve public or private performance? In the words of the 2009 presidential memorandum: “The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears. Nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve.” Those words are important and correct—but they have one important qualification, to which I now turn.

  Input Transparency

  When I was clerking for Justice Thurgood Marshall in 1980, Bob Woodward and Scott Armstrong published a book on the Supreme Court, called The Brethren. I did not speak with Woodward or Armstrong, and I am also confident that none of my three coclerks did so. But numerous clerks (largely or perhaps entirely from previous terms) decided to open up to the authors. The portrait of Justice Marshall was highly unflattering (and, by the way, wildly inaccurate). Marshall was clearly disappointed, much less (I think) because of the unfavorable, unfair, inaccurate portrait than because of what he saw as a breach of loyalty. I do not think it is disloyal to disclose what he said to us, which was roughly this: “I am not going to change how I interact with my clerks, but if you violate my confidence, it’s on your conscience.”

  After I left the White House in 2012, many reporters, and some people outside of the world of journalism, asked me questions about internal dynamics. Who said what to the president? Who disagreed with whom? If something happened or did not happen, who wanted it not to happen or to happen? Who won and who lost? Of course I did not answer any of these questions, but there was no mistaking the (astounding) persistence with which they were asked. How well I recall a conversation with a superb journalist, working for the Washington Post, who was much focused on the who-disagreed-with-whom questions. I finally suggested to her that she should write something on the substance of the issues that most interested her (environmental policy). She did not seem enthusiastic about the suggestion.

  As I understand them here (and consistent with the standard parlance), inputs count as both predecisional and deliberative. These are independent requirements. They are predecisional in the sense that they are not themselves official decisions in any respect. They antedate those decisions and are meant to inform them. If an assistant administrator in the Environmental Protection Agency advises the administrator that a new ozone regulation should set a standard of sixty rather than sixty-five parts per billion, the communication is predecisional. Inputs are deliberative in the sense that they are part of a process of ongoing discussion about what to do.

  I have acknowledged that even with these clarifications, we can imagine difficult cases, as when a report is compiled on (say) the risks associated with silica and that report will be an input into a regulation. But the core should not be obscure. If law clerks are exchanging memoranda on how to handle a dispute over affirmative action, inputs are involved. If people in the White House are discussing the contents of an open government memorandum, we are dealing with inputs. If White House officials are speaking with the Food and Drug Administration about how to handle the risks associated with certain asthma medicines, inputs are involved.

  With respect to inputs, the argument for disclosure is significantly altered, and it is also weakened in two critical respects. First, the benefits of disclosure are usual
ly much lower (not always, but usually). Second, the costs of disclosure are much higher. These are categorical statements with major qualifications, to which I will turn in due course.

  Who Said What to Whom?

  From the standpoint of the public, it is often not particularly desirable to obtain inputs. To those who believe in transparency, that claim might seem controversial, implausible, or even shocking. But the sheer number and range of inputs is daunting, and it defies belief to think that the public would benefit from seeing all of them. An assistant secretary will have countless conversations in the course of a week, and in many of them she will be receiving suggestions, venturing possible ideas, requesting more information, joking, offering doubts, and seeking out possible inclinations. Some of the inputs that she receives or offers will not be very interesting. If they are interesting, it might be for a reason that does not exactly argue for disclosure: Someone might have been ventured an idea, for purposes of discussion, that was or is on reflection a really bad one. The idea was (let us suppose) rejected, so it never became an output. Is it important, or on balance desirable, for the world to see it?

  Or consider the general area of federal regulations, the most significant of which must go through the Office of Information and Regulatory Affairs (in most administrations, about five hundred per year). Many of those regulations will never be discussed seriously in newspapers or online. Their issuance is preceded by a great deal of internal discussion, involving paper documents, electronic documents, and email, often raising questions and doubts. This is the quintessence of a deliberative process. A number of people say a number of things. Much of the time, the benefits of disclosing the content of that process are not much higher than zero.