Institutions and Transparency Where does Freedom of Information Work Best?

Tom McClean

Doctoral Candidate Sociology Department

London School of Economics and Political Science

Draft prepared for the 1st Global Conference on Transparency Research

Rutgers University-Newark, 19-20 May 2011

April 2011

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Introduction The post-war era has seen the development and diffusion of a wide variety of laws, institutions and other mechanisms designed to facilitate public access to information about governments. The instrument with the widest scope is arguably freedom of information, which provides a public, enforceable right of access on demand to all official documents, subject only to limited and specified exemptions which must be invoked by the authority when refusing a request. Since the end of WWII, the number of countries with these laws in place at national level has increased, as has the rate of adoption. In 1960, there were only two. In 1980, the number stood at eight; in 1990 it was 14; in 2000, 46; and by 2010 around 90 had done so (Banisar 2006; Vleugels 2009).

The adoption of these laws has been both advocated and welcomed on a wide range of broadly democratic grounds, including the protection and realisation of individual rights (e.g. Banisar 2005; Birkinshaw 2006a;2006b; Florini 2007a), the reinforcement of effective democratic accountability and deliberation (e.g. Bathory and McWilliams 1977; Bay 1977; Piotrowski 2007:107-8), and as a means of ensuring public authorities, are responsive, efficient and effective in the formulation and execution of policy (e.g. Florini 1998:53-6; Finkelstein 2000:6-7; Heald 2006a:64).

The sheer rapidity with which these laws have spread, and the range and seriousness of the problems they were introduced to solve, has naturally drawn a good deal of attention to the question of whether they have proved effective. There is a rough consensus that most fail to live up to their promise, and that some probably work much better than others (Horsley 2008:1; Hazell and Worthy 2010:352-3), but solid evidence of why these differences exist is difficult to find.

This paper argues that a search for a single broadly-applicable measure of effectiveness is unlikely to prove successful because the political value of official information in any given country depends in part on the institutional structure of its political system. This does not mean that comparative studies should be abandoned, but rather that they should be undertaken with due awareness of possible variations in the kinds of information which drive the uptake in these laws, the interests at stake, and the relative capacities of the various stakeholders to influence the course of events – in short, with the fact that freedom of information means different things in different contexts.

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This argument is divided into three parts. The first surveys the existing literature, and argues that the difficulties in conducting cross-national assessments of transparency can be explained, at least in part, by the widespread tendency to ignore or gloss over these complexities. The second draws on Max Weber’s sociology of bureaucratic secrecy to identify a small number of institutionalised political relationships which are likely to be particularly important influences on the politics of information. It then conducts a Qualitative Comparative Analysis of the twenty-three countries which have been continuously democratic throughout the post-war era, and identifies several distinct institutional arrangements which have led to the establishment of access laws. The third shows that these configurations correspond with variations in important substantive outcomes such as the manner in which these laws were introduced, their timing, and qualitative data about their effect on politics and public administration.

Existing Approaches to Explaining Effectiveness Attempts to measure the effectiveness of freedom of information laws have generally adopted one of three broad strategies: textual analysis of the law itself, official statistics, and studies of theoretically-important user groups (cf. Hazell and Worthy 2010:352-3). All three have generally proved far more effective at identifying how implementation falls short of particular normative standards than at explaining why they do so, and why they do so to different degrees in different countries.

Analysis of Legal Texts

Assessments of reactive transparency through the analysis of legal texts usually focus on the degree to which they conform to the normative principles they are taken to embody, together with the robustness of some prominent operational and enforcement mechanisms. This underpins most of the measures appearing in aggregate datasets of good governance, including Freedom House’s Freedom in the World (2009) and the Economist Intelligence Unit’s Index of Democracy (2007).1 It is also used by international government organisations and civil society activists as an advocacy tool; perhaps the most sophisticated example was published recently by Access Info Europe (2010), and is based on a combination of over 60 indicators.

1 The manuals for these datasets do not always make the basis of their assessments explicit, but the clear implication is they

include the existence of an access law and an impressionistic assessment of expert consensus about their effectiveness (cf. freedominfo.org 2005).

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The appeal of this approach lies largely in its clarity: it is based on evidence which is widely available and easily verifiable. There is also some evidence that differences in the law matter: alterations to operational and enforcement provisions in individual countries have been shown to influence the frequency with which people these rights, in that lower fees and simpler procedures are associated with higher request rates (e.g. Hazell and Worthy 2010:358).

A focus on the law is, however, unable to account for several ways in which this kind of transparency is known to vary; indeed it sometimes produces results which are at odds with conclusions derived from other sources of evidence. It implies, firstly, that the same law should have the same effect in different places, but usage statistics reveal that request rates and positive outcomes often vary quite considerably between different organisations within a single jurisdiction (Worthy and Holsen 2010:28). Furthermore, there does not appear to be a straightforward relationship between textual differences and experiences in different countries. Many “strong” laws in the developing world are notoriously weak in practice (Darch and Underwood 2010), while many “weak” laws in the developed world have turned out to be surprisingly strong. New Zealand’s Official Information Act 1982, for example, was criticised for its enforcement mechanisms and exemptions when compared with its Australian and Canadian equivalents, but is now understood to have proved far more effective (Snell 2000). An access law is an important contributor to transparency, but the law itself does not fully determine the availability of official information. Assessing all laws against a common normative standard effectively ignores this, and assumes that the interests at stake and their relative influence over outcomes are similar in all cases.

Analysis of Official Data

The second approach is to analyse official data on requests, appeals and other aspects of how access laws are implemented by public authorities. Although theoretically appealing, the practical usefulness of these data is mitigated by problems of quality and comparability. Several important countries publish no data at all, and in the others the instruments, institutions and kinds of requests covered often vary from country to country and year to year. Moreover, even if high-quality data were widely available, the validity of using them to explain cross-national variation would still be open to challenge on the grounds that assessing effectiveness requires comparing a known quantity with an unknown. This is perhaps best demonstrated by example. One common metric is the number of requests expressed as a proportion of the total

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population (e.g. Vleugels 2009:15), but this produces rates so small that the most rigorous conclusion which can reasonably be reached is something like “no more than a fraction of one percent of the population in any country has ever formally requested access to an official document under a statutory scheme”. Consequently, some of the most interesting questions relating to effectiveness concern the reasons why people do not make requests. Is it because people do not know the right exists, because they do not know the information is there to be requested, because they consider refusal a foregone conclusion, because they consider the risk of official retaliation too high, because sufficient political information is already available (perhaps through third parties such as the press), because they are so satisfied with their government that they see no need to pay it close attention, or for some other reason? These are matters on which such statistics are necessarily silent.

Studies of Specific User Groups

The third approach is to study how specific groups negotiate access. This is usually done by conducting surveys based on carefully designed suites of standardised requests submitted to multiple authorities, but there also exists a small number of detailed ethnographic studies. Both have the significant advantage of being able to illuminate some of the dynamics underpinning non-requests: large-scale surveys conducted by civil society groups have suggested, for example, that low request rates may be at least partly due to systemic bias and official resistance rather than public satisfaction or a lack of interest (e.g. Open Society Justice Initiative 2006; RaaG and NCPI 2009).

These studies have two major disadvantages, however. They are formidably resource-intensive and time-consuming, and so few have been conducted that data are not (yet) available for enough countries to allow comprehensive cross-national comparison. As such, they constitute one possible source of evidence on which a more general explanation could draw, but they do not themselves provide it. More fundamentally, these studies all focus on particular countries, user groups, and issues, and their broader usefulness depends very much on these choices (cf. Hazell and Worthy 2010:352). Like legal-textual analysis, most surveys are based on assumptions about the particular non-state actors the law ought to empower, and the nature of their relations with government. The existence of a law is often effectively taken as evidence of the need for one, high request rates by the chosen requester communities as a sign of their effectiveness, and low rates as a problem (cf. Lidberg 2008). This instrumental use of normative theory tends to produce pathological diagnoses in which failure is ascribed

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to lack of democratic culture among officials, weak laws or under-resourcing. Although all of these may be true, the approach itself is not particularly conducive to understanding how and why practices of secrecy and disclosure develop and function in their own terms, of the ways in which competing normative goals are reconciled (Heald 2006b) or of the role played by alternative ways of achieving the same ends which do not rely on disclosure.

A Possible Alternative: Historically-Grounded Analysis

The shortcomings of these three approaches have encouraged a renewed awareness among scholars, activists and administrators alike that the effectiveness of access laws depends to a very great extent on the context in which they are embedded (Darch and Underwood 2005:77-8,85; McDonald 2006:133; Darch and Underwood 2007; Hazell and Worthy 2010:358). Most cross-national studies of this relationship have treated the introduction of the law as the outcome of interest, and have been framed searches for the causes of convergence among countries which have introduced them. This is based on the assumption that, notwithstanding the legal-textual approach described above, access laws are all broadly similar (Bennett 1997:217). The introduction of a law thus represents a common point at which different countries can be compared without presupposing the particular kinds of information which are important or who they are important to. This paper adopts the same approach for the same reasons.

Efforts at elucidating the relationship between context and the law have varied considerably in their comprehensiveness and rigour, but have generally posed more questions than they have answered. Some scholars apparently see the causes of freedom of information as so obvious or intractable (it is not always obvious which) that they are content to merely cite a “laundry list” of plausible influences, such as the spread of new ideas about how politics ought to work, and functional adaptation to new social and technological conditions (e.g. Hood 2006:214-5; Lord 2006:5-10; McDonald 2006:129; Florini 2007b:7-8).

Among the more serious attempts, a diverse range of potential explanations has been identified and there is relatively little consensus on which matter most. Activists often emphasise the importance of democratic consolidation driven by demand from civil society (e.g. Archibald 1993:726-8; Relyea 2001; Banisar 2005; Shrivastava 2009). The importance of democracy per se tends to be discounted by political scientists, however. One influential early study emphasised the importance of the diffusion of ideas among

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policy élites about how to address problems rising from state growth (Bennett 1997). Subsequent studies have downplayed the importance of domestic factors, pointing instead to advocacy by international governmental organisations and the desire by local élites to signal acceptance of particular norms to international markets (Grigorescu 2003; Roberts 2003). More recently, there appears to have been a resurgence of interest in domestic factors, including economic development (Relly and Cullier 2010), and the structure of the legislative process (Berliner 2010). Another surprising feature of this literature that individual studies often produce results for which they are unable to account – such as that stronger democracy does not seem to contribute to (perceptions of) greater transparency (Relly and Sabharwal 2009:155), that higher numbers of veto players make freedom of information more likely despite theoretical expectations that more veto players encourage stability (Berliner 2010:25), or that different information policies diffuse at different rates over the same period (Bennett 1997:227-8).

One possible explanation for this confusion is that of these studies are based on unwarranted assumptions of homogeneity, above all that since access laws are similar in form, they are likely to be both similar in effect and the outcome of broadly similar causes in each country. The only serious exception to this is the growing awareness that direct pressure from international agencies is probably a more important contributor in the consolidating democracies (Grigorescu 2003). But overall, there has not yet been insufficient engagement with the primary and secondary evidence on individual countries (e.g. Lasserre, Lenoir and Stirn 1987; Vincent 1998; Terrill 2000; Higgs 2004; Wegener 2006). This suggests that freedom of information does not develop as a result of straightforward variations in a small number of common variables, but rather as a result of specific combinations of causal factors (“conjunctural causation”) which produce historical processes that differ substantively across countries (“equifinality”). Put another way, the kinds of information have become the focus of political struggle have varied from country to country, as have the groups which have pressed for public access to it, and the ends they have sought to achieve in so doing. Although these laws may be similar enough in a formal sense to constitute a reasonable basis for comparison, they mean different things in different contexts (Cain, Egan and Fabbrini 2003).

Qualitative Comparative Analysis The current state of the literature on freedom of information suggests that a Qualitative Comparative Analysis (QCA) may be of some value in advancing the state of

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comparative knowledge in the field. QCA draws on the insights of Mill’s comparative methods, set theory and Boolean algebra, and is well-suited to identifying instances of multiple conjunctural causation and equifinality in so-called “Mid-N” populations of roughly five to fifty cases (Ragin 1987;2000). The method was originally developed as a way of finding a balance in studies of political phenomena between the sensitivity to causal complexity found in case studies with the parsimony of statistical approaches. It is often used to re-examine conclusions reached by studies grounded in either of these other traditions, to identify interesting cases or dynamics for further research, and to encourage detailed, self-conscious examination of theory in the light of evidence and vice-versa (Rihoux 2006).

QCA consists of three stages (Ragin 1987:85 et sqq;2000; Rihoux and de Meur 2008). The first, the preparation of the dataset, involves defining the population of relevant cases and identifying the causal factors to be examined. The relevant data are then compiled, coded and laid out in a so-called “truth table” which shows the cases and their configurations of factors. This aids the identification of logically-possible configurations which are not associated with empirical cases (known as “logical remainders”), and so-called “contradictory” configurations which are associated with both the presence and absence of the outcome of interest, and often gives rise to an iterative “dialogue with the evidence” as researchers refine their definitions and coding in an effort to maximise significance and coverage. Once potentially-problematic configurations have been examined, and either addressed or understood, the second step is to process this truth table using one of a number of computational methods, the choice of which is governed by manner in which the dataset has been coded.2 Although these methods all produce results of a slightly different form, their broad intent is the same: to generate succinct statements about the different combinations of causal factors which are systematically associated with the outcome of interest, and the manner in which they combine. These results appear, superficially, to be strong claims about causes, but strictly speaking they are statements of potential causal relationships. For this reason, QCA always consists of a third step: examining these statements in light of theory and evidence, and identifying avenues for further detailed research in order to confirm or refute their specific implications.

2 All calculations here were performed using the QCA3 package for R (Huang 2010; R Development Core Team 2011).

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Construction of Dataset

The construction of the dataset on which QCA operates is often the longest and most involved for the researcher. It presents a number of challenges, of which two are particularly relevant here: temporal agnosticism and sensitivity to coding decisions.

The canonical form of QCA has been criticised because it tests only for the presence or absence of causal factors. Works which apply it to important political outcomes at the national level tend to treat “countries” as the object of analysis, and to ignore the possibility that causal factors change over time, or that the order in which things occur may impact on outcomes (Caren and Panofsky 2005:148). A number of surprisingly convoluted solutions have been proposed to this problem (Ragin and Strand 2008), but two simpler approaches are adopted here. First, some factors will be explicitly coded in ways which account for sequencing; these are discussed below. Second, to aid in the empirical examination of changes over time, the unit of analysis employed here is the country-year rather than the country. To improve clarity, the tables below actually present “country-periods”, which is to say sequences of contiguous years in each country during which the hypothesised causal factors did not change. This purely cosmetic change does not affect the results in any way, because QCA is not a stochastic technique and the frequency of particular outcomes does not affect its results.

The second critique is that, because QCA is not a stochastic technique, its results are highly sensitive to the researcher’s decisions about relevant cases, potential causal factors and coding of data. This is particularly true of its dichotomous variant, which is employed here, since it often involves radical simplification of complex social and political phenomena. This is a valid criticism, but not fatal to the whole technique. Most of the factors on which the following analysis is based can be coded in terms of presence or absence without undue violence to the underlying data. Moreover, where QCA is used as a means of systematically exploring relationships between theoretical assumptions and qualitative data, as it is here, whatever violence it does imply can often be mitigated by the researcher being as explicit as possible about the basis on which these decisions are made. This allows the significance and limitations of the results to be more readily assessed, and militates against undue reliance on the results of the process being treated as explanations in the same manner as those produced by statistical studies.

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Weber, Institutions and Variations in Freedom of Information

The central claim of this paper is that the contextual factor which matters most for understanding variations in the causes and effects of freedom of information acts is the institutional structure of political power, understood in the broad sense as including both the formal rules governing relations between important actors, and the organisational forms those actors take (cf. Pierson 2006:104; March and Olsen 2008:3). This claim is based on two related grounds: that freedom of information represents an attempt to transform politics by redistributing one particularly valuable resource while leaving the rest of its institutional structure intact; and that the value of this resource is itself determined to a very great degree by that same institutional structure.

The insight that control over the distribution of information is both cause and effect of the way government is organised is conventionally attributed to Max Weber (Robertson 1982:19-21), who argued that modern states are secretive because they are bureaucracies within democracies. They are capable of engaging in secrecy because they organised into rationally-ordered hierarchies of authority, in which official business is conducted on the basis of fixed, impersonal rules and recorded in written documents, and which are staffed by officials employed on the basis of competence and expertise (Weber 1978b:956-958). Bureaucracies are, in a sense, machines for controlling information and for controlling through information (Weber 1978a:225). The motive to engage in secrecy is thus partly inherent to bureaucratic organisation; but a second and more important cause lies struggles between senior bureaucrats and other politically-influential figures for control over this machine (Weber 1978b:992-3).

Weber’s argument is consistent with (albeit somewhat richer than) contemporary scholarship on agency theory, which identifies the distribution of information between principals and agents as a major contributor to problems of democratic accountability and control. Principals face structural barriers to directly observing the behaviour of their agents, a fact which hampers their ability to select the right agents or distribute appropriate punishments and rewards for past actions. Agents, in turn, have systematic incentives to engage in secrecy because it provides them with greater leeway to pursue their own interests where these conflict with those of their principals. This hybrid Weberian perspective has proved enduringly popular with academics, campaigners and politicians interested in the politics of information (Rourke 1957; Moynihan 1988;1997; Rozell 2002), and not without cause. The administrative arm of the political executive has been the most consistent source of opposition to the introduction of formal access

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rights in almost all countries, and once these laws are in place it is widely agreed that the extent of bureaucratic opposition is crucial to how well they are implemented (Roberts, in Ackerman and Sandoval-Ballasteros 2006:125).

Weber’s explanation for bureaucratic secrecy is also useful because it provides a basis for identifying other institutional structures beyond those he examined directly which are likely to influence the emergence and implementation of access laws. Politicians are crucial to explaining variations in these processes, and not just because they enjoy a wide range of formal powers over the bureaucracy including that of setting the rules. They are also important because, as Weber himself argued elsewhere, their authority is inescapably bound up with the fact that they are elected. From the perspective of agency theory, this suggests they have a range of conflicting incentives with respect to the disclosure of official information. On the one hand, they have an interest in obtaining information from bureaucrats; on the other, they are themselves part of the government and may be subject to unwelcome demands for information from their own principals. As the following discussion shows, the terms on which politicians win office, the things they are responsible for while there, and the manner in their relations with external groups are organised, are all likely to affect the political value of public access to official information, and hence the prospects for a country developing an effective regime.

Two-Party Systems versus Multiparty Systems

It is sometimes assumed that freedom of information develops as a straightforward result of public demand, motivated by a desire to exercise effective democratic accountability over elected representatives (e.g. Rosendorff and Doces 2006:100). There is, in fact, relatively little evidence to support this claim, and studies of voting behaviour suggest that voters have neither the time nor the inclination to cast fully-informed votes based on a comprehensive assessment of all available information. Rather, they tend to employ a range of heuristic shortcuts including character assessments, and to trust that these are reasonably effective alternatives (Ferejohn 1990:10-12; Fiorina 1990:336-41; McKelvey and Ordeshook 1990:283; Popkin 1991; Dunn 1999:59).

Historically-speaking, freedom of information has usually emerged as a matter of public debate due to deliberate attempts to mobilise public opinion by signalling support for the principle of retroactive accountability, particularly during periods of declining trust in government. This is more likely to occur in two-party systems than in multiparty

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systems because the former make it easier for political actors to mobilise public opinion around the idea of sanction voting.

This is superficially a matter of political culture. Governments in such systems are more likely to ignore opposition voices when developing and implementing policy than multiparty systems, in which consensus is more widespread (Lijphart 1999:31 et sqq). This, in turn, means that those who supported the losers in two–party elections are less likely to consider incumbent governments as worthy of trust (Anderson and Guillory 1997). The propensity towards distrust provides the opportunity for the opposition to portray policy failures as the result of a lack of openness, and to signal their own trustworthiness by offering to introduce laws which would require disclosure.

This predisposition towards the politicisation of freedom of information is also structural: although it is relatively rare for voters anywhere to engage in fully-informed sanction voting, two-party systems make it easier for them to imagine that they could and should. This is partly because these systems make it easy to assign responsibility for past failures; the prevalence of coalition government in multiparty makes this much harder because inter–party negotiations obscure lines of responsibility, and may even render such an inquiry otiose (cf. Lijphart 1968:8-10; Maravall 2010). The ease of sanctioning under two-party systems is reinforced by the fact that most employ single–member districts and majoritarian electoral formulas, and generally present a clear choice between two viable candidates; proportional electoral systems often complicate the link between individual voter decisions and the composition of the parliament considerably (e.g. Germany; cf Dalton 1989:281-5).

Presidential Systems

Although candidates may find it advantageous to promise to introduce access rights when seeking office, this appeal is likely to be substantially offset by the inconveniences these laws pose once in office, such as the increased risk of eviction at the next election. The extent to which the risks mitigate the benefits is, however, likely to vary considerably with the structure of electoral accountability. Specifically, resistance to the introduction of access rights should be higher in parliamentary systems, since those who control the legislature in these countries are also responsible to the electorate for the actions of the government. Presidential systems, by contrast, are often argued to favour the introduction and consolidation of access rights on two complementary grounds. Firstly, separate electoral mandates in presidential systems favour the

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introduction of freedom of information laws because they lower the electoral risks to legislators (Robertson 1982; Persson, Roland and Tabellini 1997). Secondly, one of the normative foundations of the legislature in these systems is to supervise the executive branch, and legislators can often improve their own electoral by introducing laws consistent with this. Freedom of information laws are especially appealing from this point of view, because they lower the costs of ongoing supervision by delegating responsibility back to the public, allowing legislators to step in and solve problems once they emerge (e.g. McCubbins and Schwartz 1984; Lupia and McCubbins 1998:207-9).

Executive-Bureaucratic Relations

The classic separation of powers is not the only institution likely to influence the attitudes of executives towards freedom of information. Ministers in most countries are the hierarchical heads of their departments, and are thus theoretically responsible for the decisions and actions taken in their name. The mechanisms by which they are held to account, and whom they are accountable to, varies considerably from country to country, however. There is some evidence that ministerial accountability to Parliament in the UK contributed to the framing of problems arising out of the growth of the administrative bureaucracy in the early post-war era as problems of broad political control requiring general public rights of access to information. In Germany, by contrast, there was a long tradition of responsibility to a detailed body of positive law (Rechtsstaat) which was designed, in part, to substitute for parliamentary accountability. Here, pressures arising out state growth were largely accommodated through legal rights framed in individual terms and were not a major contributor to the passage of the Informationsfreiheitsgesetz. At least one study has argued that Rechtsstaat is one of the main reasons for Germany’s half-hearted implementation of several access-to-information measures (Knill and Liefferink 2007).

Open Political Opportunity Structures

A fourth set of relevant institutions are those governing relations between interest groups and the state in the policymaking process. Policymakers have historically managed policy demands by relying on official secrecy, and selectively communicating with some groups in order to weaken the influence of others (Galnoor 1975;1977a;1977b). Correlatively, freedom of information laws have often received their most vigorous, active support from groups which find themselves on the periphery of important policy networks. To the extent that freedom of information represents an

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attempt by these peripheral groups to use the law to overcome their structural weakness, its introduction should occur more readily where the government finds it more difficult to control the legislative agenda (i.e. where there are “open” or “inclusive” political opportunity structures; cf. Kitschelt 1986; Dryzek, Downes, Hunold, Schlosberg and Hernes 2003).

Organisation of Economic Interest Groups

Finally, as I have argued elsewhere (McClean 2010), the manner in which important interest groups are organised is likely to have a significant impact on the propensity of a country to introduce access rights. Specifically, countries in which capitalist interests are organised into a limited number of non-competitive and highly-centralised associations enjoying a formal monopoly over representation in the policymaking process should be less likely to introduce freedom of information than those in which these associations are more numerous, less well-organised and tend to compete with one another. This is because, in the former case, these groups enjoy privileged access to a good deal of official information without the need for general access laws; indeed, their privileged access is likely to be threatened by such laws, and they are likely to share a preference for secrecy with the bureaucracy. Not only do these arrangements remove one of the most important potential sources of demand for access, they may actually encourage businesses to oppose it. In the latter case, by contrast, economic interest groups tend to be wary of formal, ongoing entanglements with the state; here, formal access rights are a functional substitute for neo-corporatist arrangements, providing access without the organisational overhead.

The Democracies as the Population of Interest

The final step before presenting the data is to identify the population of interest. This paper focuses on the consolidated democracies, which is to say on the twenty-three countries which have been democratic throughout the post-war era: Australia, Austria, Belgium, Canada, Costa Rica, Denmark, Finland, France, Germany, Iceland, India, Ireland, Israel, Italy, Japan, Luxembourg, the Netherlands, New Zealand, Norway, Sweden, Switzerland, the United Kingdom, and the United States.3

3 These countries have been identified by applying threshold criteria to two widely-used cross–national time series datasets on

political institutions and practices: the Polity IV (Marshall and Jaggers 2009b) and Measures of Democratization. (Vanhanen 2009) The first provides coded qualitative data on 140 major countries from 1800 onwards, and identifies the existence of important democratic institutions such as free and fair elections and checks on the exercise of government authority. The second provides data on two key aspects of democratic practice – electoral turnout and major–party share of the vote – for 190 countries from 1810 onwards. It shows whether voters had, and whether they exercised, a meaningful choice between viable alternative governments. Polity IV includes a composite indicator for the institutionalisation of democracy, but it is

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These countries are theoretically interesting because the variations between them cannot be readily explained within the normative rationales which are usually given for freedom of information. If access rights really are all about democracy, then these countries should have been most favourable to their early development, yet this is clearly not the case. The United States had been democratic for up to a century before it introduced a functioning right of access in 1966. This is arguably the most influential and widely used access law in the world, and there is a long tradition of local political rhetoric linking information to popular democratic control. Clearly, even in an environment as propitious as this, the mere existence of a democratic system is not a sufficient explanation. More problematic still are countries like the UK and Germany, which were democratic throughout the post–war era and which have older – if not always unbroken – traditions of parliamentary government, but which only legislated in the new millennium once countries with far weaker democratic credentials were doing so. Why did these countries wait so much longer than the USA, despite its serving as a clear example, and why does this law appear to work so much better in the UK than Germany? Switzerland, for its part, was recognisably democratic for over 155 years before introducing a federal law in 2005. Why, if democracy is the explanation, did it take almost 40 years longer than the USA?

The consolidated democracies are also methodologically appealing because the effects of their domestic institutions is least likely to be clouded by other factors. Several studies of transparency have emphasised the importance of international organisations in driving diffusion (e.g. Grigorescu 2003), especially among nations on the periphery of the world economy. This is not plausible in the case of the consolidated democracies, even those who were late adopters. With the possible exceptions of Costa Rica and India, these countries are generally better able to resist overt pressure from these sources should they so choose, and tend not to be the subject of quite the same degree of pressure in the first place. Diffusion, where it matters at all, is most likely to be a matter of policy élites picking up ideas from elsewhere and using them to solve domestic problems, and hence to vary with domestic considerations. These counties are also appealing because - with the possible exceptions of India, Italy and Costa Rica – the

unsuitable here because it ignores configurational causation by adding together values for distinct categorical variables. As the authors themselves suggest, a more specific set of criteria have been applied here (Marshall and Jaggers 2009a:14): a country is considered democratic where political participation is widespread and organised around enduring national political organisations, where those in power do not systematically attempt to disenfranchise their opponents by changing the rules of the game, and where power is won through open, competitive elections (Specifically, the criteria applied were XRReg=3 and XRComp=3 and XROpen≥3 and XConst≥2 and (ParReg=2 or ParReg≥4) and ParComp≥3.). This are consistent with definitions used in other influential studies (cf. Rueschemeyer, Huber Stephens and Stephens 1991:43-4; Linz and Stepan 1996:7-15). With respect to Measures of Democratization, Vanhanen’s suggested thresholds of moderate competition and participation were applied (2003:65), specifically Competition≥30 and Participation≥20.

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material and social preconditions necessary for a functioning access law are relatively unproblematic. They all have relatively professional, well-funded bureaucracies which can generally be relied upon to obey the law. They have independent media, active civil societies and effective (although not always efficient) courts. Under these circumstances, access laws are reasonably likely to facilitate the disclosure of relevant information, which means that the existence of a law is likely to be a reasonable indicator of underlying political dynamics favouring transparency and not merely a desire on the part of political élites to win international prestige.

Truth Tables

The raw data for each of these countries is shown in Table 1 on page 18. Table 2 shows the same data, coded as described below, for the period between the first post-war election and the introduction of that country’s freedom of information act. Data for the two countries which do not have laws – Luxembourg and Costa Rica – cover the period up to 2005. Although not strictly comparable, data for Sweden are for 1937, the year in which it transformed its historic law into a modern freedom of information act. The alternative, to provide data for 1766 or 1809, would be highly speculative, even less comparable and not particularly informative of how the law works at present. Following QCA conventions, these factors are all expressed such that a value of 1 represents the state most likely to lead to a positive outcome.

Countries are coded as two-party where the effective number of parliamentary parties (ENPP) was always less than three. Countries in which the ENPP was always greater than 2.5 were classified as multiparty. Austria, Belgium, Costa Rica, India and New Zealand have all experienced major shifts in their party systems over the post-war era, and have been given different classifications at different times. Ireland and France have been categorised as multiparty systems despite occasional periods of two-party rule on the grounds that these periods were relatively brief. Furthermore, in Ireland they occurred in a country with a proportional electoral system which is widely described in the secondary literature as multiparty, while in France the dip was slight (2.49) and occurred in a country which has always had a high number of effective electoral parties.

Countries are coded as presidential where the chief executive is directly elected, or where ministers do not require the confidence of the legislature to remain in office, since in either case the electoral risks to legislators of introducing an access law are reduced. On this basis, and following Lijphart (1999:119), the semi-presidential countries of

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Ireland, Finland and Austria are classified as parliamentary. Conversely, the “hybrid” system in Switzerland is classified as presidential on the grounds that the Federal Council is formally independent of the parliament, and effectively not responsible to it despite its members being elected by the Federal Assembly.

The coding of the importance of Ministerial accountability presents the greatest challenge, because there is no readily available time-series data covering executive-administrative relations in enough detail. As an alternative, several sources of circumstantial evidence have been used to triangulate this measure. Countries have been coded as “ministerial” (meaning that effective accountability of ministers to the legislature has not been diluted by individual responsibility of bureaucrats to the law) where there is neither specific mention of Rechtsstaat in the constitution, nor was a dedicated system of administrative courts, administrative procedure law or a Conseil d’État exercising judicial powers in place before the start of the post-war era. The only ambiguous case was the United States, which has been coded as non-ministerial on the grounds that the Administrative Procedures Act 1946 was a functional equivalent of similar laws in continental Europe.

The literature on political opportunity structures identifies two kinds of openness, sometimes described as “active” and “passive” (Dryzek et al. 2003). Consistent with this, countries have been coded as open where they meet either of two criteria. The first is weak party discipline, measured primarily by the existence of decentralised candidate selection mechanisms such as open primaries. Strong party discipline was an important factor in ensuring the defeat of freedom of information bills in the UK in the 1980s (Lewis 1989), while in the USA the loosely-disciplined Congressional committee system facilitated the passage of the original Freedom of Information Act 1966 and the 1974 amendments over the objections of two Presidents (Archibald 1993:731). The second basis is a sustained period of minority government. In countries where this is a rare event, minor parties holding the balance of power can theoretically obtain freedom of information for their ongoing support of the government’s main programme, but this does not appear to have occurred in any of the countries under review here. In countries where minority government is the normal course of affairs, however, governments have strong incentives to adopt a strategy of pro-actively identifying emergent demands and formally incorporating them into the policymaking process. This allows them to retain some policy initiative, but comes at the cost of making it more difficult to completely block policies which are not in the government’s structural interests. There is evidence

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that something like this occurred in Denmark and Norway, where freedom of information was proposed in the early post-war era as part of an overall package of administrative reform, and unsuccessfully resisted by the political executive on the grounds it would undermine ministerial control over the bureaucracy.

There are many ways of defining and measuring neo-corporatism (Schmitter 1981:294; Crouch 1986; Hall and Soskice 2001; Traxler, Blaschke and Kittel 2002:67), all of which are broadly consistent except for one or two borderline cases. Here, countries are coded as “pluralist” (i.e. not neo-corporatist) where a low degree of organisation prevails among businesses (“BUSCONF”<0.5, per Huber, Ragin, Stephens, Brady and Beckfield 2004). Two cases which are frequently identified as ambiguous in the literature, France and Italy, are pluralist according to this standard. So too are Costa Rica and India, even though each has some mechanisms of economic planning and coordination. As in France, however, these are largely a result of state initiative, and represent a potential threat to business interests rather than a mechanism by which that threat is managed, as occurs in Germany and Sweden. Israel, by contrast, has been classified as neo-corporatist prior to 1985 on the grounds that the Histadrut was historically a major owner of economic enterprises as well as being a trade union, and enjoyed extensive if informal relations with the state; it was thus in a good position to establish close ties with officials that might have obviated the need for formal access rights.

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Table 1: Raw Country Data

Country Freedom of

Information Act Party System Executive System Administrative Accountability

Minority Government in Legislature

Interest Group Organisation

Australia 1982 Two-Party Parliamentary Ministerial Unusual Pluralist

Austria 1987 Noncompetitive Two-Party Parliamentary Legalistic Unusual Neo-corporatist

Belgium 1994 Multiparty Parliamentary Legalistic Unusual Neo-corporatist

Canada 1982 Two-Party Parliamentary Ministerial Unusual Pluralist

Costa Rica - Two-Party < 2002 Presidential Legalistic Unusual Pluralist

Denmark 1970 Multiparty Parliamentary Ministerial Common Neo-corporatist

Finland 1951 Multiparty Parliamentary Legalistic Unusual Neo-corporatist

France 1978 Multiparty Parliamentary Legalistic4 Unusual 5 Pluralist

Germany 2005 Multiparty Parliamentary Legalistic Unusual Neo-corporatist

Iceland 1996 Multiparty Parliamentary Ministerial Unusual Neo-corporatist

India 2002 Two-Party < 1989 Parliamentary Ministerial Unusual < 1996 Pluralist

Ireland 1997 Multiparty Parliamentary Ministerial Unusual Pluralist

Israel 1998 Multiparty Presidential 1996-2003 Ministerial Common Neo-corporatist < 1985

Italy 2000 Multiparty Parliamentary Legalistic Unusual Pluralist

Japan 1999 Two-Party 1958-1976 Parliamentary Ministerial Unusual Neo-corporatist

Luxembourg - Multiparty Parliamentary Legalistic Unusual Neo-corporatist

Netherlands 1978 Multiparty Parliamentary Legalistic Unusual Neo-corporatist

New Zealand 1982 Two-Party < 1996 Parliamentary Ministerial Unusual < 1998 Pluralist

Norway 1970 Multiparty Parliamentary Legalistic Common Neo-corporatist

Sweden 19376 Multiparty Parliamentary Legalistic Common Neo-corporatist

Switzerland 2004 Multiparty Presidential Legalistic Unusual Neo-corporatist

United Kingdom 2000 Two-Party Parliamentary Ministerial Unusual Pluralist

United States 1966 Two-Party Presidential Legalistic Weak Party Discipline Pluralist Sources: (Lijphart 1999; Huber et al. 2004)

4 France is classified as having a “legalistic” system, despite the theoretical possibility of the legislature dismissing the cabinet, on the grounds that the Conseil d’État is the supreme authority in a

system of administrative tribunals which serve – at least under the Fifth Republic – as a means of limiting the state’s accountability to parliament. 5 France is classified here as not usually experiencing minority government despite occasional periods of minority rule because minority governments can pass their programmes by making any act

a confidence motion, for which votes are counted differently. 6 Data for Sweden apply to the major revisions to its original law, which were undertaken in 1937 and which transformed it into a modern, comprehensive access regime.

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Table 2: Dichotomized Country Data Country Period Two Party Presidential Ministerial Open Pluralist

Australia 1960-1982 1 0 1 0 1

Austria 1960-1987 07 0 0 0 0

Belgium 1960-1994 0 0 0 0 0

Canada 1960-1982 1 0 1 0 1

Costa Rica 1960-2001 2002-[2005]

1 0

1 1

0 0

0 0

1 1

Denmark 1960-1970 0 0 1 1 0

Finland 1960-1951 0 0 0 0 0

France 1960-1978 0 1 0 0 1

Germany 1960-2005 0 0 0 0 0

Iceland 1960-1996 0 0 1 0 0

India 1960-1988 1989-1996 1996-2002

1 0 0

0 0 0

1 1 1

0 0 1

1 1 1

Ireland 1960-1997 0 0 1 0 1

Israel 1960-1984 1985-1996 1996-1988

0 0 0

0 0 1

1 1 1

1 1 1

0 1 1

Italy 1960-2000 0 0 0 0 1

Japan 1960-1976 1976-1999

1 0

0 0

1 1

0 0

0 0

Luxembourg 1960-[2005] 0 0 0 0 0

Netherlands 1960-1978 0 0 0 0 0

New Zealand 1960-1982 1 0 1 0 1

Norway 1960-1970 0 0 0 1 0

Sweden 1937 0 0 0 1 0

Switzerland 1960-2004 0 1 0 0 0

United Kingdom 1960-2000 1 0 1 0 1

United States 1960-1966 1 1 0 1 1

7 Austria is coded as 0 for its two-party system because the proporz arrangement in place between the two parties meant that the electoral system was non-competitive, and electoral competition was

identified earlier as a crucial element driving the politicisation of access rights.

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QCA Solutions

It is conventional in QCA to compute two “solutions”: one based exclusively on those cases for which there are empirical data (a solution which “excludes logical remainders”), and one which covers all actually-existing positive cases and also potentially includes some for which data are unavailable. The advantage of the second approach is that it usually produces simpler statements, but comes at the cost of making assumptions about configurations which may prove to be at odds with the data if suitable cases come to light. This simplicity is in evidence here, as can be seen in Table 3 below: the solution excluding logical remainders identifies six configurations of institutions associated with freedom of information, whereas the solution including remainders identifies four much simpler and broader configurations. The following discussion focuses on the first, since it provides more precise insights into the conditions under which freedom of information developed in these countries.

Table 3: QCA Solutions8 Strategy Solution Excluding Remainders two-party*ministerial*open +

two-party*presidential*pluralist + presidential*MINISTERIAL*open*PLURALIST + TWO-PARTY*PRESIDENTIAL*ministerial*OPEN*PLURALIST + two-party*MINISTERIAL*OPEN*PLURALIST

Including Remainders Two-party + OPEN + presidential*PLURALIST

Discussion This final section of the paper discusses in turn each of the configurations of institutions in the first QCA solution excluding Table 3. It has two purposes, one empirically grounded and the other slightly more speculative. The first is to demonstrate that these configurations correspond with distinct groups of countries, within which general public rights of access to information arose in response to similar pressures, are seen as having similar implications and are generally implemented in similar ways. The second is to consider possible explanations for divergence observed within these configurations, and especially how to account for cases which appear to be radically different from the others. In some cases, this will involve identification of possible 8 It is conventional to express QCA solutions using quasi-mathematical notation which resembles the models used in stochastic

analysis. This convention is followed here, but it is important to be aware that these “equations” are interpreted very differently. Configurations of factors which are jointly sufficient to produce the outcome of interest (in the set-theoretic sense of being consistently associated with the outcome in the data on which the solution is based) are joined using the multiplication sign (“*”), which is used as short-hand for the Boolean logical operator (“AND”). Different configurations are separated by addition signs (“+”), short-hand for the “OR” operator. Factors which are systematically present (associated with a value of 1 in the truth table) are in upper case; those which are systematically absent are in lower case. The different configurations have been presented on separate lines of the table for clarity.

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problems in the assumptions underpinning coding decisions. In others, it will simply indicate the limits of an institutionally grounded approach, and the need for further detailed analysis which takes account of other institutions or different kinds of factors.

FOI ! two-party*ministerial*open*presidential*pluralist

The first thing to note is that, although Table 3 identifies six combinations, there are actually seven which are worthy of attention. This is because the first two configurations are not mutually exclusive: the sets of consolidated democracies they specify intersect. This discussion begins by considering the intersecting subset in its own right, because it displays a number of tendencies not present in the two broader “parent” sets.

Theoretically, this is a group in which resistance to freedom of information might be expected to be particularly pervasive, since from an institutional perspective it is over-determined: all the factors which were argued to encourage freedom of information are absent. It is composed of countries with neo-corporatist multiparty parliamentary systems in which minority cabinets are rare, and political accountability of ministers for the bureaucracy is by the principle of bureaucratic responsibility to the law (Rechtsstaat). This is broadly consistent with the experience in all but two of the countries which compose it: Austria, Belgium, Germany, Luxembourg; the exceptions are Finland and the Netherlands.

Germany exemplifies the secretive tendencies of this group. Here, access rights were introduced rights relatively late, are not widely-used, and are often claimed by activists to have proved much less effective than in the Westminster or Nordic countries. Historical evidence suggests that institutional factors are a significant contributor to this. The political parties and the main interest groups in Germany are highly-centralised, and establish formal, ongoing relations with each other and the bureaucracy; as a result, the interests of the most important and influential actors have been aligned for most of the post-war era against the introduction of formal access rights (Germany 1986:19098-9). The multiparty electoral system provides few countervailing incentives to compete on cognate issues of trust, and indeed the two main parties actively resisted attempts by civil rights campaigners and the Greens to explicitly politicise freedom of information from the late 1970s to the early 1990s (Riley 1983:10-1; Redelfs and Leif 2004; Redelfs 2005). The reliance on detailed positive law as a mechanism of bureaucratic control also contributed. The limited rights of access to or

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control over information which exist in Germany are relatively generous and effective, and appear to have satisfied grievances which were expressed elsewhere as demands for freedom of information. Two of the most important examples are the provisions in Länder press laws obliging bureaucrats to provide information in response to questions, and the extensive rights of discovery available in proceedings before the administrative courts. This tendency to satisfy grievances with limited rights of access is even clearer in Austria and Luxembourg, where laws which provide limited forms of access are sometimes described by officials as if they constituted full freedom of information acts, but which fall short in important respects (e.g. Luxemboug 2005).

The two outliers in this group are Finland and the Netherlands, both of which introduced relatively effective access rights relatively early. It is possible that the Finnish case is an artefact of the manner in which “openness” is coded. The Finnish parliament tends to feature surplus coalitions between the Social Democrats and centre-right parties rather than minority social democratic governments as in Sweden. It has been coded as “not open” on the grounds that – like one-party governments and minimal winning coalitions – such arrangements obviate the need to negotiate in parliament for to ensure the passage of legislation, and thus reduce the opportunities for external interest groups to influence outcomes. The scope of this paper has not allowed a detailed examination of the way in which surplus coalitions function in every country, but if Finland were coded as “open” on the grounds that these assumptions do not hold, it would then appear in the same configuration as the other Nordic countries below.

The other, and arguably more informative, outlier in this group is the Netherlands, which introduced a freedom of information act in the late 1970s at more or less the same time as Germany and Luxembourg amended their administrative procedure laws. A brief historical examination suggests that its access law was made possible by the breakdown of its highly segmented system of interest group intermediation in the 1960s, and its replacement with a form of neo-corporatism in which business organisation is relatively weak. Depillarisation opened the way for a critical re-examination role of the increasingly large, complex, and all-pervasive welfare state (United Kingdom 1979:38), of the role played by state control over information in enabling administrative intervention (Brasz 1977:204-5), and of the capacity of traditional parliamentary forms of control to meet these challenges (de Vos 1993:121-2). The Dutch case unusual in this group for the early date on which this breakdown occurred, but it is not unique: the introduction of access rights in Belgium and Germany

23

both occurred during periods when established patterns of organisation and interaction were under strain (in both cases, economic difficulties were present; in the former these were compounded by the breakdown of political cooperation between linguistic communities, and in the latter by the rise of the Greens as a force within the Bundestag). Although the timing may have varied, the fact that access rights were introduced in all three countries during periods when normal institutional arrangements were under stress is consistent with the claim that they are usually not favourable to transparency under normal circumstances.

FOI ! two-party*ministerial*open

This combination of institutions constitutes a group with multiparty systems and relatively autonomous executives, thanks to a combination of high party discipline, a tendency to avoid minority governments and pro-active attempts by the state itself to resist general disclosure laws, but in which either neo-corporatism or a parliamentary system may be absent. It includes Switzerland, Italy, Costa Rica and France.

France is a good example of the dynamics common to these countries: it has had an access law since 1978, but public awareness of the rights it provides is limited, and it appears to be very little used (although France publishes no statistics on requests, so it is not possible to state this conclusively). More significantly, in over three decades since its introduction, it has not developed a supportive constituency in the same way as has occurred elsewhere, and despite occasional scandals it is not a prominent matter of public debate in either the press or parliament. This lack of public interest was also present at its birth. The law was the unintended consequence of attempts by the state itself to deal with two challenges of internal coordination and control arising from the growth of the welfare state: public dissatisfaction with excessive bureaucratic regulation, and implementing centrally-planned economic development in ways which were responsive to regional variations. The law was the immediate result of an unusual degree of parliamentary initiative, made possible largely by a temporary weakening of inter-party discipline within the ruling right-wing coalition under Giscard d’Estaing. It is best understood as a grudging concession made by the state under circumstances which made resistance temporarily unfavourable, a point reinforced by the fact that the state itself subsequently introduced a series of alternative measures, involving more limited disclosure, which have proved far more effective in addressing these underlying problems.

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Élite initiative driven by problems of internal management producing rights which are ill-understood and ineffective is also a feature of Costa Rica – which has had a little-used constitutional right of access to information since 1949 – and Italy.

Switzerland may seem a surprising inclusion in this group. The low rate of requests under its 2004 law are widely noted, but more usually explained on the grounds that its long history of consensual, direct democracy makes formal access unnecessary (e.g. Hazell and Worthy 2010:354). Its presence here suggests that this may not be the only relevant contributor. The Federal Council operates at arm’s length from the parliament despite being appointed by it, and is appointed in a manner which has historically reduced the incentives for parties to compete over access to official information. Furthermore, demand is likely to be further reduced by the fact that the Council undertakes confidential and cooperative negotiations with relatively well-organised economic interest groups, and maintains an internal system of administrative dispute resolution and appeals based which resemble those in France in important respects. In short, it may be true that access is considered unnecessary in Switzerland because it is already quite open, but there also appear to be factors in place which, in other countries at least, delayed the adoption and limited the appeal of general rights of access.

FOI ! two-party*presidential*pluralist

This group refers to multiparty parliamentary systems with neo-corporatist patterns of interest group intermediation in which either minority governments or bureaucratic responsibility to detailed, positive administrative law may be absent. Substantively, it refers to the Nordic countries (with the possible inclusion of Finland, as discussed above), Japan following the breakdown of LDP hegemony, and the negative case of Israel prior to the demise of the Histadrut in the mid-1980s.

The central tendency in this group is the common experience of the Nordic countries, where access rights were introduced early in response to demands by groups occupying important positions outside government in the institutions of a liberal democratic order: journalists, lawyers, academics and backbench politicians. The immediate cause of this mobilisation was the threat to individual liberty posed by the growth of the welfare state in the middle part of the 20th Century. These demands were translated into law relatively quickly as a result of the strategy adopted by minority Social Democratic governments of pro-actively identifying and formally incorporating nascent social demands into the policymaking process as early as possible. The importance of open

25

political opportunity structures is underlined by the fact that access laws were introduced relatively early in both Denmark and Norway despite attempts by the government and senior civil service to delay them. In Iceland (where minority governments are rare), the first proposals were also made in the early 1960s, but a law was not introduced until the 1990s. Since its introduction, freedom of information has become firmly entrenched in all these countries: it is widely-used by the press as a tool of everyday political reporting, and has interacted in a mutually-reinforcing manner with other mechanisms underpinning both bureaucratic accountability and the policy development process (Einhorn 1977; Logue and Einhorn 1988; Einhorn and Logue 1989; Dryzek et al. 2003). If freedom of information can be said to be widely accepted and to work well anywhere, it is in these countries.

Japan may seem like a somewhat surprising member of this group its very different political history and the fact that, of all the European countries, parallels are usually drawn with Germany. Its inclusion here, rather than in the subset of which Germany is also a member, is perhaps most interesting for the fact that it highlights several important ways in which it differed. Perhaps the most important long-standing difference is the absence of a comprehensive administrative procedure law. This appears to have been an ongoing source of dissatisfaction with the state, and when the number of effective opposition parties increased in the late 1970s, it provided a basis for mobilisation against the LDP in the form of regular calls for freedom of information (Boling 1998:15). These factors continued to contribute during the 1990s, when the breakdown of LDP hegemony led to a period of historically unprecedented fluidity with in parliament; it was during this period that both an administrative procedure law and, subsequently, a full access law were introduced. It is unlikely, however, that these factors will be sufficient to ensure consolidation of access in line with the Nordic world.

FOI ! presidential*MINISTERIAL*open*PLURALIST

This configuration identifies parliamentary governments in pluralist societies where ministers are generally seen as responsible for their departments, and in which minority governments are rare. It is made up of the classic Westminster countries, Ireland, and the single negative case of India prior to the transformation of its party system and the onset of regular minority governments in the 1990s.

The Westminster countries share many common features, ably detailed in Kenneth Robertson’s studies of the United Kingdom (Robertson 1982;1999). General public rights

26

of access to information are prominent matters of public debate in these countries, and are often framed by politicians and activists alike as important contributors to effective electoral democracy as well as instruments of ex post administrative accountability. This distinctive politicisation is due to the mutually reinforcing influence of the competitive two-party system and the centralisation of both legislative and executive authority in Cabinet. These same factors also produce strong disincentives to follow through and implement access rights, at least in the traditional Westminster model: they represent an electoral risk, threaten the autonomous capacity of the political executive to integrate policy demands in the manner of its choosing, and also undermine the authority of Cabinet over the bureaucracy by subjecting it to direct external pressure.

As a result, the fortunes of freedom of information in these countries depend to a very great degree on the immediate political calculations and personal inclinations of senior government figures. The election cycle itself is an important influence on this: support tends to be highest immediately after elections in which government changes hands, and drops considerably once governments have a track record of their own to be judged on. In Canada, Australia and New Zealand, a combination of positive support from mainly left-wing parties and a lack of outright resistance from right-wing parties meant that access rights were introduced in the early 1980s; resistance among senior political figures in the UK delayed their introduction until the re-election of a Labour government almost two decades later.

A second important contributor is the structure of intra-executive authority. The two countries in which access laws seem to be most effective – New Zealand and the UK – both undertook thoroughgoing programmes of public sector reform in the 1980s and 1990s which, among other things, sought to divest ministers of responsibility for policy implementation. These reforms have parallels with the reliance on autonomous and devolved authorities to implement policy in the Nordic countries, and are argued to have contributed to transparency by divesting ministers of electoral accountability for the behaviour of street-level bureaucrats and thereby reducing the electoral risks associated with disclosure of certain kinds of official information. They also made transparency more appealing in its own right as a non-electoral means of controlling and legitimising the activities of a state whose complexity and size had rendered parliamentary accountability little more than a convenient fiction. New Zealand went further down the road towards the Nordic model, and also introduced a new electoral system which made minority governments a more-or-less permanent feature of the

27

political landscape; it is perhaps no accident, from this perspective that its access law is sometimes argued to be the most effective of all these countries.

FOI ! TWO-PARTY*PRESIDENTIAL*ministerial*OPEN*PLURALIST

This configuration is associated with a single case: the United States, a country in which access rights are a prominent matter of political debate, well-entrenched, relatively widely-used by a diverse range of groups, and have a strong supportive constituency in civil society, business and the press. The USA often serves as a model for advocates of access rights around the world, and the fact that it stands alone among the consolidated democracies according to this analysis suggests that a degree of circumspection may be warranted about just how readily its experience is likely to be replicable.

The early and comprehensive consolidation of freedom of information in the USA is largely due to a combination of the separation of powers and the relative weakness of party discipline. These were responsible for the early development of a comprehensive body of administrative law which purported to include a general right of access to official files far earlier than in other countries where pluralist, competitive relations between officials and non-state actors prevail. The ill-fated provisions of the Administrative Procedure Act 1946 were intended to address discontent among businesses with expansive and often incoherent regulation being undertaken by the New Deal bureaucracy, and represented the results of a long and tortuous set of negotiations between Congress and the Executive (Gellhorn 1986; Shepherd 1996). These factors also contributed to the rapid transformation of these early provisions into a comprehensive, functioning access regime: the existence of a non-functioning law the basis of mobilisation within Congress and the press, and led to amendments in 1958; the Freedom of Information Act 1966 was formally a further amendment to these provisions, and was itself strengthened in 1974, 1996 and 2007. On the two most important occasions, 1966 and 1974, these factors prevented the executive from blocking proposals outright (as occurred in the UK, and as arguably occurs most of the time in France – although unusually not in relation to its 1978 access law). They also rendered Congress more open to influence by quite small advocacy groups, especially during periods such as the aftermath of Watergate when it was electorally advantageous to be publicly associated with laws that purported to improve executive accountability.

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FOI ! two-party*MINISTERIAL*OPEN*PLURALIST

This last configuration is the most difficult to analyse, because it does not refer to a group of countries with any obvious deep-seated similarities: India in the period following the collapse of the two-party system in the mid-1990s, and Israel following the demise of its unique form of neo-corporatism in the mid-1980s. It is possible to find similarities between these two, such as that the introduction of access rights occurred in the context of a programme of administrative reform inspired by New Public Management. But the fact that each of these countries joined this “group” by leaving different groups discussed earlier suggests that further detailed research is required before it is possible to decide whether they really do belong together, or whether this is merely the artefact of coding decisions and the emphasis on formal institutions.

Conclusion This paper has shown that, contrary to the assumptions which underpin much of the contemporary literature, treating freedom of information as a single phenomenon with substantively similar implications in different countries may be seriously misleading. It has identified at least five configurations of institutional factors associated with the introduction of these laws, each of which corresponds with a particular set of interests and power relations, patterns of interaction and strategies of accountability and administrative control. In each, general public rights of access have been shown to have substantively different effects, and to exist for different reasons. This paper has suggested, in short, that the question “where does freedom of information work best” has no single answer, because there are qualitatively different kinds of “best”.

It is highly unlikely that these configurations constitute, in and of themselves, sufficient or comprehensive explanations for either the varying effectiveness of these acts or for their past and future development. Indeed, as the discussion itself has shown, these configurations provide better descriptions of some countries than others. There are at least two reasons for this imperfect coverage. First, this paper has only considered a small number of institutions, and it is entirely possible that others may also be important. Second, although the rules of the game may predispose countries towards certain outcomes, they are never fully determinative. Events are also contingent on the behaviour of actors, and individual and collective beliefs about what government is and what it ought to be, and on how structures, agency and ideas interact over time.

29

It is hoped that, for all the limitations of this institutional focus, this paper has nevertheless advanced the state of knowledge in this field by providing a basis on which research into freedom of information might proceed. Firstly, these configurations provide some basis for predicting which actors are likely to matter most in explaining deviations from theoretical expectations in which countries – one example being the electoral calculations of political élites in the Westminster countries. Secondly, if these institutional configurations really do matter, then research and explanatory strategies should be undertaken with an awareness of whether the countries being studied belong to a similar configuration or not. Different levels of effectiveness between different kinds of countries are likely to be due at least in part to institutional differences, and comparative research in such cases is likely to be most fruitful where it takes this into account. The third section of this paper conducted a high-level exercise of this nature, and identified some possible reasons why the Nordic countries and the USA are particularly transparent, while other countries are not. Straightforward comparisons of high-level measures like access rates in, say, the UK and Switzerland are unlikely to be particularly informative in the absence of such considerations, because the data measure different phenomena in each case. Comparisons based on quantitative data are most likely to be valid where they examine countries with similar institutional configurations, which is to say where causes are more likely to be similar and differences in outcomes more likely to be the result of differences in degree than kind.

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