How transparent are state governments in the United States? We engage this question by examining state Freedom of Information (FOI) laws in the context of other transparency regimes. Specifically, because FOI laws require the public to request access to information and permit state agencies to refuse release of records, these laws constitute “passive” transparency and have little effect without a strong administrative apparatus to facilitate implementation.
This article explores the functioning of important, but often underappreciated, actors in the American constitutional system – state administrative agencies – and examines variation in the existence and implementation of transparency regimes across and within systems. We identify the differences that exist among FOI laws in all 50 states, focusing on three components: who can submit requests; the requirements for and exemptions to public release; and the process for appeal of agency decisions
not to disclose information. Recognizing that statutory provisions do not always translate to administrative practice, we then utilize an exploratory field experiment to evaluate implementation of FOI laws in agencies that perform five similar functions across all states. Finally, we apply the results of our analysis to freedom of information standards provided by the U.S. Department of Justice to assess the strength of each state’s transparency regime.
Considered as a whole, our research suggests de jure transparency does not necessarily equate to de facto transparency. Instead, how administrators react to internal and external pressures as they utilize their discretion to fill FOI requests constitutes a key aspect of open government.