The politics of freedom of information

How and why governments pass laws that threaten their power

Ben Worthy

• Publisher: Manchester University Press
• Year: 2017
• ISBN:
  9781526108524
• Edition: 1
• Topic: Law
• Subtopic: Public Law
• Index: Law

Why do governments pass freedom of information laws? The symbolic power and force surrounding FOI makes it appealing as an electoral promise but hard to disengage from once in power. However, behind closed doors compromises and manoeuvres ensure that bold policies are seriously weakened before they reach the statute book. This book examines how Tony Blair's government proposed a radical FOI law only to back down in fear of what it would do. But FOI survived, in part due to the government's reluctance to be seen to reject a law that spoke of 'freedom', 'information' and 'rights'. After comparing the British experience with the difficult development of FOI in Australia, India and the United States - and the rather different cases of Ireland and New Zealand - the book concludes by looking at how the disruptive, dynamic and democratic effects of FOI laws continue to cause controversy once in operation.

1

FOI: hard to resist and hard to escape

Freedom of Information (FOI) laws are difficult to resist in opposition but hard to escape from once in power. A commitment to an FOI law sends out strong messages of radicalism, change and empowerment that new governments find difficult to resist. However, when politicians regret their promises, as they often quickly do, the same symbolism makes the reforms difficult to escape from.

To make the picture more complex, FOI laws bring little external advantage and generate internal unhappiness. One of the central paradoxes of FOI laws is that they are symbolically resonant but useless in electoral terms: politicians gain ‘credibility’ but not votes. Within government, FOI laws reach across the whole of government, running against the natural tendency of bureaucracy to be secretive (Weber 1991). Such laws carry the potential to delve deep into bureaucracies’ work, triggering investigation of official decisions and procedures by those hostile to them. So how and why do governments pass them?

FOI laws are, it is argued, frequently passed out of naivety or inattention by inexperienced and new governments responding to reformist impulses from within or without or seeking to create a new ‘open’ approach after a scandal (Berliner 2014, Darch and Underwood 2010). Politicians have many motives for introducing FOI, from the simple politics of wrong footing or neutralising opponents to the longerterm, calculating intention of securing access to information when they are out of power (Berliner 2014). Context is also key, as laws are frequently passed amid wider change or as a response to a particular problem. As well as calculation and context there are a series of symbolic pressures. Politicians can, at least in the short term, earn a form of ‘moral capital’ from supporting openness (Birchall 2014; Michener 2009).

However, the conventional wisdom is that politicians rapidly fall out of love with transparency and the potential for exposure, uncertainty and unpleasant surprises it brings (Berliner 2014). Opening up equates to a loss of control and a potential empowerment of enemies and critics. So once in office, actors seek to stall, delay and water down commitments: the classic trajectory of FOI reform is one of survival through dilution.

Symbolism versus resistance

The story of FOI is of a clash between the power of symbolism and the resistance of institutions, between abstract ideals and concrete structures. The radical, modernising and democratic symbolism of FOI helps put it onto the agenda, sometimes gradually and sometimes quickly (Fenster 2012b). The move towards FOI, particularly in the countries studied in this book, is also shaped by long-term social and political changes, as the case for secrecy gradually erodes amid institutional reform, changing societal attitudes and technological advances. Pressure builds as parties and leaders commit themselves, especially when a commitment to FOI plays into the radical self-image of reformists and modernisers.

Governments quickly regret their promise once in office. However, dropping outright a promised policy that speaks of ‘freedom’, ‘information’ or a ‘right’ is problematic. The symbolism, radicalism and ‘moral’ angle of FOI, and even its resonant name, make it difficult to get rid of it quietly. The same values it embodies make the accusation of betrayal easy and somewhat dangerous. Buoyed by an alliance of institutional and extra-institutional ‘opinion formers’, the symbolic power frequently cuts off any line of retreat. What happens instead is that FOI proposals are stalled, blocked and channelled away as different factions seek to submerge the radical ideals in detail and manoeuvres behind closed doors while others, inside and out, fight for it to stay in its original form. What then emerges on the statute book, after lengthy internal battles, is a compromise.

Symbolic politics and laws

FOI laws fit with a wide range of policies and democratic activities that are laden with symbolic value, irrespective of their practical significance. Edelman (1985) likened political activity to a ‘passing parade of abstract symbols’ replete with ‘easy objects upon which to displace … strong anxieties and hopes’ (5). Even voting, the most basic of democratic actions, is a ‘ritual act’ intended to ‘express discontents and enthusiasm’ (3), and most democratic institutions are ‘largely symbolic and expressive in function’ (19).

While some symbolic activities serve as hermeneutic short cuts, others ‘evoke emotions’ more remote from reality (Edelman 1985, 5). Cobb and Elder (1973) created a broad typology of symbolic items, from the ‘broadly applicable’ and ‘sali-ent’ objects, such as flags, down to more focused political norms or institutions. All symbols are either a ‘threat or reassurance’ (Edelman 1985, 7, 11). Symbolic actions frequently ‘call forth a larger and more complex set of ideas than the basic meaning of the action’ (Hart 1995, 386). They are ‘primarily a vehicle for conveying a broader message’ that ‘highlight a symbolic purpose’. Such actions frequently run into difficulties when the ideal moves to policy substance, particularly as the symbolism is frequently ‘decoded’ or challenged by the media (386). Such symbolic acts and policies can drive new agendas and ‘challenge authority relationships’ as seen, for example, with the global spread of the human rights agenda (Brysk 1995, 561).

Edelman (1985) highlights laws as peculiarly symbolic objects that are often created through a mix of ‘symbolic effect and rational reflection’ (41). They ‘suggest vigorous activity’ and can cover ‘noisy attacks on trivia’ and represent ‘prolonged, repeated, well publicised attention to a significant problem which may never be solved’ (37–39). The names of laws themselves ‘are important symbols’ with ‘subtle and potent’ effects on interpretation (206). Stolz (2007) similarly argues that legislation ‘in reality carries both instrumental (tangible) and expressive (symbolism)’ aspects (311). Certain issues appear particularly conducive to symbolic laws, especially those that send out signals to an audience about their behaviour or concern the ‘public designation of morality’ (Gusfield 1967, 177). These include criminal justice issues, the war on drugs (Stolz 2007), domestic violence (Stolz 1999) and alcohol consumption (Gusfield 1967).

The importance of such symbolic laws lies not just in their enforcement or ‘manifest significance’ but also in ‘what the action connotes for the audience that views it’ (Gusfield 1967, 177; Gusfield 1968). Symbolic legislation sends signals, acting as a ‘public affirmation of social ideals’ or a ‘statement of what is acceptable’, a ‘gesture important in itself’ rather than a fixed end (Gusfield 1967, 177). It acts as a ‘framing and signalling device’ around a ‘cluster of messages intended to change attitudes’ based on ‘narrative structuring and interpretive resonance’ (Brysk 1995, 562). The idea of signalling ‘effects’ originates in economics, and refers to a process whereby informational asymmetry is resolved by one party ‘signalling’ information to induce trust or credibility (Spence 1973; Spence 2002). The signals of symbolic laws can be educative, aimed at ‘simplifying complexity’, or may serve to communicate a ‘moral’ message (Stoltz 2007, 312). Even the passage of such legislation ‘persuades listeners’, acts as an ‘affirmation of a moral norm’ and gives certain ideas ‘legitimacy and public dominance’ (Gusfield 1967, 177–178). Taken together, the act of creating and passing such laws constitutes a ‘moral passage, a transition of behaviour from one moral status to another’ (177).

The difficulty is that symbolic laws are fragile. Cobb and Elder (1973) argued that symbolic policies are often built around a ‘rather shallow symbolic consensus’ that may be easily exposed and frayed, and that they conflict with the ‘stark realities’ of power (87). Underneath the clear signal such laws can be quietly ‘repealed in effect by administrative policy, budgetary starvation or other little publicised means’ (37). Matland associated symbolic policy with ‘a lack of implementation’. Such policies frequently have ‘substantial exposure at the adoption phase’ but ‘ultimately’ have ‘little substantive effect’ and are ‘almost always’ a ‘substantive failure’ (1995, 168). In part, this is because they are, owing to their symbolism, ‘conflictual’ with ‘actors intensely involved’ (169). The ‘victory or defeat’ of symbolic policies is ‘consequently symbolic of the status and power of the cultures opposing each other … Legal affirmation or rejection is thus important in what it symbolizes as well or instead of what it controls’ (Gusfield 1967, 179). The ‘significance of prohibition in America lay less in its enforcement than in the fact it occurred’ (179).

Hart (1995) later expanded on the power and dangers in symbolic policy and signals, looking at the promise of the first Clinton administration to cut presidential staff, a ‘one sentence’ policy in the campaign intended to symbolise the new administration’s restraint and commitment to ‘reduce’ government (385). The media doggedly pursued the detail of the policy, and the administration found itself bogged down in a series of debates over who constituted ‘staff’ and how ‘numbers’ were calculated. This eventually resulted, rather damagingly, in a loss of staff working on drugs policy and the environment (390–391). The case highlighted a series of problems with laws as symbolic devices. First, ‘symbolism is simple but the substance was complex’, and the reformers had ‘little grasp of the substantive problems’ (397–398). Second, as consequence, the media’s ‘decoding’ of the policy led to, sequentially, ‘questions, doubts, cynicism and, eventually, disbelief’ (397). While reformers believed that the symbolism would ‘speak for itself’, it was ‘weak and riddled with detail and complexity’ (398). It was exactly this ‘detail and numbers’ that then ‘generated a hostile reception from the media and congress’ (402).

The radical roots of FOI: the most subversive idea of all?

Conceptually FOI is ‘simple but revolutionary’ (Wald 1984, 655). Transparency has long been championed by radicals, reformers and outsiders, and the possibility and call for greater openness punctuate history, frequently being tied to freedom of expression and the free press (Ackerman and Sandoval-Ballesteros 2006). Although ‘isolated in time and space’ these ideas can be traced across a lineage of very different thinkers and actors (Darch and Underwood 2010, 65). Castells (2013) sees ‘free communication’ as the ‘most subversive practice of all’ because it ‘challenges the power relations embedded in institutions and society’ (x).

The modern drive towards transparency has its origins in two revolutionary processes, one philosophical and one technological (Darch and Underwood 2010, 127). Though FOI may arguably have far older roots in ancient China, its modern form stems from the European Renaissance (Darch and Underwood 2010). Popper (2002) argues that the ‘unparalleled epistemological optimism’ of the Renaissance drove the impulse ‘to discern truth and acquire knowledge’ through perception and ‘intellectual intuition’ (6). Thus a veiled or distorted ‘truth’ would be revealed, driven by a ‘doctrine that truth is manifest’ (8). This ‘ideal of emancipation modelled on lucid self-consciousness’ or ‘absolute self-transparency’ was then completed by the Enlightenment (Vattimo 1992). Popper points out how its logical opposite co-existed with it and gave it strength: ‘the conspiracy theory of ignorance’ stemming from Plato, holding that man was ‘blocked from knowing’ by ‘sin’, ‘prejudice’ or ‘powers conspiring to keep us in ignorance’ (2002, 9).

The doctrine drove thinkers from Bacon to Descartes, as well as modern science and technology. Popper wholeheartedly disagreed with the premise, labelling it a ‘myth’ for the ‘simple truth is that the truth is hard to come by and easily lost’ (2002, 10). Nevertheless, it was an example of ‘a bad idea inspiring many good ones’, as what he labels a ‘false epistemology’ became ‘the major inspiration of a moral and intellectual revolution without parallel in history’, providing the force behind the scientific revolution, the fight against censorship and educative reform (10–11). The idea evolved in parallel with nascent conceptions of a ‘free society’, ‘open discussion’ and the ‘public sphere’ (Vattimo 1992, 18).

The new philosophy was powered mechanically by the ‘long revolution’ launched by the invention of the printing press in the 1400s (Eisenstein 2005, 335). Such a change in communication technology was inherently revolutionary:

any new technology of communication, such as the printing press, has challenged authority because the seeds of revolt existing in individuals can grow and blossom … breaking the barriers to social mobilisation and alternative projects of social organisation. (Castells 2013,...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright
• Contents
• List of tables
• Acknowledgements
• 1. FOI: hard to resist and hard to escape
• 2. From radical to inevitable: the development of FOI in Britain
• 3. New Labour, new openness?
• 4. The 1997 White Paper: a symbolic victory?
• 5. The 1999 draft Bill: the retreat becomes a rout
• 6. The Parliamentary passage: asymmetric warfare
• 7. FOI in the UK: survival and afterlife
• 8. The US, Australia and India: two firsts and the greatest?
• 9. Ireland and New Zealand: a legacy and an assault from within
• 10. FOI and the remaking of politics
• Conclusion: why do governments pass FOI laws?
• References
• Index