Keeping Government Secrecy Safe: Beyond Whack-a-Mole

Abstract

The concept of secrecy as a mechanism for not providing government information, on the one hand, and the commitment to openness of government, on the other, reflect certain historical understandings of the relationship between a government, citizens, officials and information. Within democratic systems of government secrecy has been an essential ingredient irrespective of the existence or otherwise of a written Constitution (eg. US and the UK). The transparency ‘explosion’ of recent decades both in rhetoric and in law has been matched by a parallel growth in secrecy regulation and practice at all levels of government, including, in Europe, supranational government (the EU). Leaking has always had a symbiotic relationship with secrecy. What has changed in the information age is that (leaked) information can be shared right across the globe through the Internet in an unstoppable fashion (Wikileaks). This lecture focuses on the understudied phenomenon of government secrecy, its nature, structure, categories and its multiple layers. These are explored from the perspective of (representative) democracy and of constitutional law. The basic argument is that secrets can be protected more effectively and more legitimately if government secrecy is reduced overall. This will mean more ‘shallow’ (less deep) secrets, refining access control and introducing second order disclosure requirements in the context of institutional checks and balances.