Louis Brandeis’ prescient words remind us of the power of public disclosure.

Sara Rubin here, thinking about sunshine—not just because any multi-hour glimmer of sunshine marks a welcome break in the weather these days, but because Sunshine Week (March 12-18) has just come to an end. It’s a celebration not of weather, but of transparency, a nod to a famous Dec. 20, 1913 article in Harper’s Weekly by then-lawyer, soon-to-be Justice Louis Brandeis. He took a medical idea in a metaphorical direction in his essay, titled “What Publicity Can Do”: 

“Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman. And publicity has already played an important part in the struggle against the Money Trust.”

Brandeis’ article went on to examine some shady, self-serving antics and illegalities at J.P. Morgan & Co. It also went on to further emphasize the value of public disclosure, specifically as it pertains to banking—a sentiment that to account holders of Silicon Valley Bank might feel especially prescient today. 

“Require a full disclosure to the investor of the amount of commissions and profits paid; and not only will investors be put on their guard, but bankers’ compensation will tend to adjust itself automatically to what is fair and reasonable,” Brandeis wrote, believing in the power of disclosure to lead to meaningful change simply in its act of existence. “Excessive commissions—this form of unjustly acquired wealth—will in large part cease.”

“But the disclosure must be real,” Brandeis continued. “And it must be disclosed to the investor. It will not suffice to require merely the filing of a statement of facts with the Commissioner of Corporations or with a score of other officials, federal and state.”

What’s so interesting to me to read those words now, 110 years later, is how clearly Brandeis understood the distinction between disclosure to government and disclosure to the public. 

In theory, these should amount to roughly the same thing. With some exceptions (things like private personal information and personnel records), thanks to the federal Freedom of Information Act (FOIA) and California Public Records Act (CPRA), the public is able to view records held by the government. 

But all too often, disclosure to the government does not equate to disclosure to the public, as Brandeis wrote. That discrepancy is the subject of this week’s cover story, an annual compilation of tongue-in-cheek awards called “The Foilies” (named for Freedom of Information) recognizing the worst of in government transparency. This list, compiled by the Electronic Frontier Foundation and MuckRock News, runs the gamut from the absurd to the outright hostile when it comes to public disclosure. There’s a range of agencies covered, from Mendocino County to the U.S. Southern Command that oversees the U.S. facility in Guantanamo Bay, Cuba. 

Meanwhile, here at the Weekly, I like to think every week is Sunshine Week. We’re always interested in Brandeis’ timeless metaphor, that sunlight is the best disinfectant. If you have ideas for documents that should be revealed but are being hidden—“the disclosure must be real”—I’m happy to hear from you any time.

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