The Publicity Principle and State Secrecy

Democratic governance relies on informational openness to allow the electorate to judge, hold accountable and potentially change the government. Yet, indiscriminate transparency can be harmful to democracies and its processes, while regulated state secrecy can be beneficial. Therefore, I argue that it would, procedurally and normatively, not be defensible if the system relied on complete transparency or complete secrecy respectively. We need to seek ways to promote reasonable access to information in the design of government institutions and in the making of public policies. The idea of publicity presents such a reasonable access to information approach. Publicity embodies the careful dissemination of information, of its content or reasons or both, and can thus be regarded as a synthesis of transparency and secrecy and an organizing principle for information. Hence, in this paper, I discuss in the first part the publicity principle as an organizing concept for information and how it forms part of the general institutional design in liberal democracies. I argue that we should endorse a minimalist conception of the publicity principle in contrast to a maximalist conception. Whereas the maximalist conception only allows for none or little secrecy, the minimalist conception of the publicity principle allows evaluating reasons about the access to information more pragmatically, while keeping the content of the information concealed. This is second-order publicity over first-order content. In the second part, I discuss the institutional embodiment of the minimalist publicity principle and argue that second-order publicity decisions over concealment ought to be accountable at least to another pair of eyes that is not affiliated with the original concealing authority. Hence, this paper conceives of democracy with the potential for state secrecy and suggests an institutional design that requires accountability over intentionally concealed pieces of information. That way, the democratically required checks and balances can be maintained while keeping certain information concealed from the citizens in case of need.