The Informational Ombudsman: Fixing Open Government by Institutional Design

Résumé

[extract] The ombudsman has gradually emerged in the U.S. as a key tool among the various legal doctrines, institutions, and technologies used to reveal the government to the public. After the ombudsman’s initial development and implementation in northern Europe, several prominent administrative law scholars brought the institution to American policymakers and academics’ attention in the 1960s and 1970s during the initial wave of elite liberal disaffection with the regulatory state. Proponents during this initial period viewed the ombudsman as an independent entity within the administrative state that could, at least in theory, close the increasing distance between the bureaucracy and public. In its adaptation to the specific administrative task of open government law compliance and reform, the ombudsman has offered an institutional fix to the revealed deficiencies from which the legal rights approach to “freedom of information” suffers: the bureaucratic tendency to avoid complying with openness obligations and the expense and delays attendant to judicial review.

This paper describes the ombudsman’s role in supporting the open government mandates of U.S. state and the U.S. federal governments, and fits it into a framework for understanding transparency that I have developed in earlier articles. I characterize the ombudsman as an institutional transparency fix, one that follows other such fixes—including most prominently the creation of legal rights to government information—in attempting to address the bureaucratic tendency to hoard information. Each fix, including the ombudsman, proceeds from prevailing assumptions about the best means to reveal the state, both reflecting and furthering historically-situated conceptions of government and its reform. Like the other fixes of the past fifty years, the ombudsman has made marginal gains in reforming open government laws and bureaucratic compliance with them. But it has not and it cannot make the state fully transparent or sufficiently transparent for open government advocates, for reasons I will discuss.