Making Government Operations More Open

Prohibit Secret Laws, Regulations, Processes

The president should issue a policy directive prohibiting agencies from creating secret “laws” or regulations or from using secret processes to prevent public input in the development of government rules.

 

A secret law is a regulation, policy, or directive that, for one reason or another, has been kept secret from the persons to whom it applies. Secret law that is inaccessible to the public is inherently antithetical to democracy and foreign to the tradition of open publication that has characterized most of American legal history. Many consider such secret laws to be inherently illegal. Yet there has been a discernable increase in secret law and regulation in recent years. Among the examples of secret law are secret interpretations of the Foreign Intelligence Surveillance Act, secret opinions of the Office of Legal Counsel, secret presidential directives, and secret transportation security directives. While there are occasions when some presidential directives should legitimately be classified and therefore issued in secret, even these exceptions should only remain secret for a reasonable time period. The president should require all agencies to publicly disclose non-classified regulations and rules currently in place and commit to public process for all new regulations and directives. Additionally, all legal opinions from the Office of Legal Counsel should be made public.

 

- From the 21st Century RTK Agenda

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Idea No. 229