process and output factors, as was discussed in Chapter 4. Where those outputs or outcomes are diminished because increased transparency has forced government to appeal to the lowest common denominator, government may be delegitimised to a greater extent than it would be by restricting transparency and accordingly limiting popular rights to public decision making. Treading this fine-line necessarily has significant implications in terms of what information to disclose and what not to disclose, and perhaps also when that information should be disclosed. More importantly perhaps, who should make that decision? The EU regulation on access (1049/2001) attempts to navigate some of these difficulties by providing that the institutions can refuse disclosure of documents where that disclosure would ‘seriously undermine the decision making process’. This however is the most heavily criticised provision of the regulation. In addition, where that provision was relied upon by the Council in Access Info. Europe, to justify only partial release of the requested document, the Court of Justice found that the ‘sensitive nature’ of the provisions contained in the requested document, was not sufficient evidence to indicate that the Council’s decision-making process would be ‘seriously undermined’. Both the criticism that has been levied at the exception to disclosure where it would ‘seriously undermine the decision making process’, and the decision of the Court of Justice to very strictly interpret the scope of that exception, seemingly speak to a belief that inconsiderate, bad or corrupt public decision-making is more likely to occur than a situation in which populism prevents public officials from taking wise, considered and often hard decisions that might be facilitated behind closed doors, or otherwise at arms’ length. There are of course situations in which such a belief might be conceivably justified. It is also to be noted that transparency itself can work to sustain that belief where supposedly bad decisions have been disclosed and they remain within the public psyche. The risk of course is that this manner of thinking about transparency can become obsessively concerned with transparency maximisation, rather than optimisation, with transparency gains failing to satisfy the appetites of the public.
process and output factors, as was discussed in Chapter 4. Where those outputs or outcomes are diminished because increased transparency has forced government to appeal to the lowest common denominator, government may be delegitimised to a greater extent than it would be by restricting transparency and accordingly limiting popular rights to public decision making. Treading this fine-line necessarily has significant implications in terms of what information to disclose and what not to disclose, and perhaps also when that information should be disclosed. More importantly perhaps, who should make that decision? The EU regulation on access (1049/2001) attempts to navigate some of these difficulties by providing that the institutions can refuse disclosure of documents where that disclosure would ‘seriously undermine the decision making process’. This however is the most heavily criticised provision of the regulation. In addition, where that provision was relied upon by the Council in Access Info. Europe, to justify only partial release of the requested document, the Court of Justice found that the ‘sensitive nature’ of the provisions contained in the requested document, was not sufficient evidence to indicate that the Council’s decision-making process would be ‘seriously undermined’. Both the criticism that has been levied at the exception to disclosure where it would ‘seriously undermine the decision making process’, and the decision of the Court of Justice to very strictly interpret the scope of that exception, seemingly speak to a belief that inconsiderate, bad or corrupt public decision-making is more likely to occur than a situation in which populism prevents public officials from taking wise, considered and often hard decisions that might be facilitated behind closed doors, or otherwise at arms’ length. There are of course situations in which such a belief might be conceivably justified. It is also to be noted that transparency itself can work to sustain that belief where supposedly bad decisions have been disclosed and they remain within the public psyche. The risk of course is that this manner of thinking about transparency can become obsessively concerned with transparency maximisation, rather than optimisation, with transparency gains failing to satisfy the appetites of the public.
PhD%20Final.docx