Document Type : Original Article
Highlights
It is undeniable that contemporary man's attitude has changed from "duty-bearing" and "domination" in ancient times to "right-wing" and "right-seeking" in modern times. Hence, if we call the present age the "Age of Truth" and the dominant discourse "the Discourse of Truth", we are not misleading. On the other hand, if we accept the interpretation of "law as invention", we can and must give in to that precious knowledge as long as it unties the blind alley of the complex problems of today's complex societies and moves according to its core function. Accordingly, legal systems are also based on self-justifying rationality. Therefore, according to the "discourse of truth" and the "rationality of the legal system", transparency as a justifiable principle and its limitation requires solid reasons. Transparency is a broad concept that has been used in various fields of social sciences and has different types, including documentary transparency. In general, transparency increases accountability and provides citizens with information about how government works. In fact, access to such information as a means of democratic control over state institutions based on a close relationship with democracy and the guarantee of fundamental rights, somehow creates equality between citizens and administrative and governmental institutions and the government is accountable to the people. Transparency is the opposite of mystery. The culture of secrecy is the result of the secrecy of court and government affairs from time immemorial, which has been established in developing countries by passing various laws and regulations entitled "Protection of National Security", "Government Secrets" and so on. Concepts that are undoubtedly viewed with skepticism in the contemporary era.
Transparency, however, is manifested and symbolized beyond philosophical approaches and in the form of legal forms, including legislation in the field of domestic and international legal systems. Irrespective of Article 19 of the Universal Declaration of Human Rights in this regard, the Law on the State under the Sun in the United States - enacted in 1976 - is a thought-provoking example of a legislative initiative to require public administration and transparency and, most importantly, to specify exceptional aspects. Lack of transparency in the following ten cases is accompanied by compliance with special rules. Accordingly, the main purpose of the present article is to explain the reasons for limiting the transparency of the administration by descriptive-analytical method and collecting information through libraries through a case study of the law "State under the sun". It should be noted that in terms of background and literature of the present article, although extensive research has been done in the field of transparency - in general - and documentary transparency - in particular - but the law of "government under the sun" has not been studied in detail with its various provisions. In this respect, the present article is characterized by innovation and, in fact, refinement in the subject under discussion, which is inevitable. Numerous reasons have been put forward by thinkers in various fields of social sciences to justify the transparency of the administration, some of the most important of which can be transparency as a minimum condition for monitoring and preventing corruption, transparency as the central element of accountability and legitimacy of public authority, transparency as influence and transparency as influence. It was considered in increasing public trust and citizen participation in political and social affairs. It should be noted that the Law on the State under the Sun was passed at a time when frustration and distrust of the state were at their peak. In fact, in response to the continuing concern that the federal government would be accountable to the American people, Congress enacted the "Sunshine Government" Act in 1976, requiring all parties to attend all meetings convened by federal agencies. Meetings were held in public, except in cases where one of the ten exemptions was an exception. In fact, the emphasis on all sections and all sessions in the law reflects the important point that transparency as a principle and therefore its justifiable limitation requires good reasons. Historical analysis also suggests that the Sunshine State Act - enacted in 1976 and enacted in 1977 - in some way represents a prominent example of congressional authority to regulate employee relations. It should also be noted, however, that while this law marks a turning point in the legislative initiative and implementation of transparency in the United States and around the world, some believe that the seeds of transparency in the United States before the law was passed and in fact through the "Declaration" "Independence" has been planted. In his view, behind the seemingly simple phrase that "governments derive their just powers solely from the consent of the governed" is the insight that consent will be meaningful when the governed become aware of the (actions) of the government and its leaders. It is as if Jefferson, the original author of the Declaration, later - when explaining to one of his colleagues that "the basis of our government is the beliefs of the people" - made it clear that the people should have "complete information". In addition to the historical basis, it is necessary to study how and in what process the law was adopted from a legal point of view.
Beyond the historical foundations and in the analysis of the legal foundations and roots of the "government under the sun" law, it should be emphasized that in response to public pressure for transparency, Congress enacted a number of laws that increased public access to the federal government. The Freedom of Information Act (1966) and subsequent amendments (1974) required units of the executive branch to allow public access to documents. The Family Privacy and Education Law Act (1974) gave citizens the right to receive information about what is being done by government agencies. The Federal Advisory Committee Act (1972) and the Sunshine Government Act (1976) also provided for meetings with advisory committees and elected government agencies. The Sunshine Government Act can therefore be seen as the product of at least a decade of legislative efforts to legally uphold transparency in the United States. Thus, in general, legal exemptions that allow council organizations to hold closed-door meetings include "national security," "personnel law," "classified information by law," "trade secrets, or financial and commercial information." "" Criminal charges "," Privacy "," Investigation records used in law enforcement "," Reports of financial institutions "," Disclosure of information that leads to financial fraud or thwarts the proposed actions of the organization "," Issuance " "Summons or participation in a civil lawsuit." It should be noted, however, that the Law on the State under the Sun's law does not suffice to state only a dozen cases of transparency exceptions, and has carefully and precisely laid down specific rules for the application of each of them. Therefore, paragraph (1) of paragraph (d) of Article 3 emphasizes that "the measures of paragraph (c) (transparency exceptions) shall apply only when a majority of the entire members of the organization vote to take such action. A separate vote is taken from the members of the organization in relation to each meeting, according to which it is proposed that a part or parts of a meeting of an organization in accordance with paragraph (c) be closed to the public. "The vote of the participating member of the organization must be registered and representation in the votes is not accepted."
Also, under paragraph (2) (d), "any person whose interests may be directly affected by part of the meeting may request the organization to, for any of the reasons set forth in paragraphs (5), (6) or ( 7) From paragraph (c), to hold that part of the meeting in private, the organization, at the request of any of its members, must vote on whether to hold the meeting in private. In addition, according to paragraph (3) of paragraph (d), "Within one day after each vote, the organization shall make available to the public a written copy of this vote, which reflects the opinion of each member on the question. If part of the meeting is to be closed to the public, the organization must provide a full written explanation of its decision to declare part of the meeting publicly "within one day after the vote" along with a list of all persons expected to attend. "Make their organizational affiliation available to the public." Guarantee of important performances that have been identified according to the logic of transparency and the exceptional nature of its limitation. Section (4) of paragraph (d) also states: "If such information is exempt from disclosure in accordance with the provisions of paragraph (c), the time, place and subject matter of the meeting shall be made public as soon as possible." Whereas part (1) of paragraph (e) stipulates that "for each meeting, the organization must, at least one week before the meeting, the time, place and subject of the meeting, whether public or private, as well as the name and telephone number of the official appointed by the organization. Announce to the public to respond to requests for information about the meeting. Such announcement shall be made unless a majority of the members of the Organization have determined by a registered vote that the requirements of the Organization require that such a meeting be held on a previous date. "In this case, the organization must announce the time, place and subject of the meeting and announce whether the meeting is public or private as soon as possible." Also according to paragraph (1) of paragraph (c), "Pursuant to paragraphs (1) to (10) of paragraph (c), the general counsel or the chief legal officer of the organization must publicly confirm that in his opinion, the meeting could have been closed and of course the regulation should "Also announce the relevant exemption." The organization shall provide a complete written or electronic copy of the minutes or minutes of each meeting or part of each meeting held in private. The minutes of the meeting must state "completely" and "clearly" all the issues under discussion and a complete and accurate summary of the actions taken and the reasons for it, including a description of each opinion expressed in each case and the record of each relevant vote. "It reflects the opinion of each member on the question." Finally, as documented in Section (2) (c), "the organization shall provide a complete verbatim copy, a complete copy of the minutes, or a complete electronic recording of each meeting, or part of a meeting for at least two years after "Holding such a meeting shall be held in private or for a period of one year after the expiration of the rulings of the organization in connection with which the meeting or part of it was held."
It is clear that the adoption of such enforcement guarantees in justifying the restriction of transparency will, while maintaining the transparency of the office, the administrative employee refrain from arbitrariness and false reliance on the ten cases of exceptions to transparency. Also, the legislator is not satisfied with the guarantee of the mentioned performances and according to paragraph (g), "Every organization that is subject to the requirements of this section must submit an annual report on its compliance with the law, including a table of the total number of public meetings of the organization. All closed meetings, the reasons why such meetings are not closed, and a description of any legal action brought against the organization under this section, including any costs that have been assessed in such lawsuits against the organization - whether or not paid by the organization. Offer". Strict legalization of these special rules in the "Government under the Sun" law is a serious warning to those employees who, despite the principle of transparency and the exceptionalism of its restriction, are looking for excuses for administrative secrecy.
