Does FOI Work? An Academic Review

22 February 2016

By Ben Worthy, Peter John and Matia Vannoni

The following is an excerpt from a larger paper that shows FOIA requests to be more effective than informal inquiries in small government entities in the United Kingdom. The paper: “Transparency at the Parish Pump: A Field Experiment to Measure the Effectiveness of Freedom of Information Requests,” was written by Ben Worthy, University of London – Birkbeck College, Peter John, University College London – School of Public Policy, and Matia Vannoni, University College London – School of Public Policy. This section, reprinted with permission, explores the academic literature on whether FOI systems work.

Introduction

If we do not yet live in a transparent society we at least are in a time of unparalleled openness (Birchall 2014). Transparency is now a central tenet of governance and, it is hoped, a vehicle for increased citizen control of government (Hood 2010; Gimmelikhaujsen and Meijer 2012). Amid successive waves of reforms, citizens have been given a series of opportunities to access better quality information from the bureaucracy through regulations and voluntary disclosures, from wide ranging access laws to sector based targeted transparency mechanisms and open data. The centrepiece of this wave of reforms are the Freedom of Information (FOI) laws, also known as Right to Information or Access to Information, that mandate a general right to request information from public bodies, subject to certain exclusions. These laws now sit at the centre of the transparency ecosystem helping to create a demand and supply for government information (Kreimer 2008). As well as providing information, it is hoped that such systems can have a transformative effect on the health of democratic systems, triggering a range of instrumental benefits from greater accountability to increased trust (Fenster 2015).

Much rests on whether FOI systems actually work and are superior in information gathering to alternative routes. FOI laws entrench a public right to request information within a set timeline (twenty working days in the UK), subject to a set of restrictions or exemptions, with an independent appeal mechanism for complaints. Laws often enshrine both pro-active publication (for example meeting minutes or spending) and reactive response to requests from users. In the UK, Freedom of Information legislation sits alongside laws regulating access to meetings, environmental information disclosure and now a broad array of online data published as part of the UK’s Open Data initiative (Cabinet Office 2013). The hope of many reformist governments is that this battery of tools will trigger a chain reaction leading to successively greater levels of openness. This claim relies on the agency giving priority to an information request as a result of internalising this norm into its organisational procedures (Burt and Taylor 2010). The underlying question to answer is to what extent is an agency more responsive to legally-mandated request.

The question might at first seem to be naïve, given the clear legal framework of FOI and signs of principled support, whether motivated through fear of non-compliance or support for the ideal of openness. However there are circumstances in which public authorities might be unwilling or unable to accede even a legally mandated a request. There has been a large amount of consideration given in the regulation literature to the extent to which public authorities may resist information requests by those outside (Bardach and Kagan 1982). Recent criticisms from politicians as diverse as Tony Blair to Narendra Modi have helped further paint FOI regimes as somehow misused, abused or counter-productive and an independent review in the UK examining levels of organisational protection and the burdens and costs of the law (Blair 2011; Raag/CES 2014: Independent Commission 2015). Research into transparency has pointed to the fragility of the response to requests, which can be undermined by resource constraints, street-level divergence and, at the far end of the scale, outright adversarialism and resistance (Roberts 2015; Bauhr and Grimes 2014). Once within the system, requests may be subject to entropy, resistance or attention decay as they move through complex or unseen processes (Meijer 2014: Snell 2001).

This paper aims to test whether and under what conditions local government is more responsive to an FOI request than to a normal ‘ask’ for information. Simply measuring quantitatively the numbers of responses might overstate the supply of information (Snell 2001: OSJI 2006). To measure effectiveness, the posing of an FOI request needs to be compared with the counterfactual of not posing one, the functional equivalent being an informal ask, which can only be done in a field trial. With a few notable exceptions (Lewis and Wood 2012), tests of the effectiveness of the responsiveness information requests remain relatively rare. Experiments so far point responsiveness being low (see below). Given the obstacles highlighted in the literature, it is not readily apparent that an FOI request will be superior to an informal ask, or whether a request, once submitted, would carry greater force and entail greater compliance. Yet our findings show that overall FOI requests are more effective than asks and the size or pre-existing level of openness of the targeted local authority makes little difference to responsiveness. FOI requests are also more effective at higher levels of compliance than at the minimal legal levels in relative terms. As well as compliance there appears to be greater support or concordance for FOI (Richter and Wilson 2013: Bauhr and Grimes 2014).

The structure of the paper is as follows: the first section reviews the literature on transparency and the effectiveness of FOI; it then sets out the research site, explains the experimental design, reports results and finally discusses the implications of the findings for transparency initiatives.

Transparency and Freedom of Information: Transformative or Trapped?

Transparency has become a central tenet of what constitutes good governance and a widely accepted norm (Hood 2010; Birchall 2014). The drive to create ‘inward observability’ of public bodies is now a key part of citizens’ democratic expectations and rights, increasingly enforced by national and international legislation as well as legal rulings (Grimmelikhaujsen and Meijer 2014; Darch and Underwood 2010). It is now increasingly viewed as a human right (Birkinshaw 2006: McDonagh 2013). Not only is transparency desirable in and of itself as an intrinsic value, it is also intended to bring a series of instrumental benefits: driving greater accountability, increased trust and better decision-making while also acting as deterrent to corruption (Meijer 2014; Stubbs and Snell 2014; Heald 2006). Transparency ‘tells a transformative narrative’ as it ‘enables – and, indeed forces [a] virtuous chain of events’ towards more accountable and democratic government (Fenster 2015, 151).

In the past decade a series of detailed studies have sought to map to what extent transparency has met these goals amid a global explosion of new access laws (Roberts 2006; Ackerman and Sandoval-Ballesteros 2006). National studies of openness laws have explored the use and impact, focusing on the effects within public bodies of being opened up, in countries as diverse as New Zealand (White 2007), South Africa (Darch and Underwood 2005), Brazil (Michener 2015) and China (Wei 2010). India’s much feted Right to Information law of 2005 has been a focus of a series of large scale projects looking into the performance of the new law in a resource poor and sometimes hostile environment (NCPRI/Raag 2011; NCPRI/CES 2014; Sharma 2015). Focus has also moved to regional and local government in the UK, US and South Africa (Piotrowksi 2010; Berliner 2015) all the way up to supranational bodies such as the European Union (Hillebrandt et al 2014).The emphasis has been frequently on the impact of new transparency systems on the workings of public institutions and organisational behaviour.

Studies encompass a wide variety of approaches from detailed thick case studies to large-N global surveys and innovative experiments (see below) (De Fine Licht 2014; Grimmelikhaujsen and Meijer 2014). Together they point to the importance of context and politics in shaping how or if transparency systems succeed, fail or evolve over time (Berliner 2014; Darch and Underwood 2010). Numerous questions remain as to how exactly transparency can have so transformative an effect and whether laws alone can symbolically compel change or require sustained use to have an effect (Bauhr and Grimes 2014; Meijer et al 2012).

Does FOI Work? Optimism versus Pessimism

The debate around the impact of transparency is divided between transparency optimists, pointing to the positive benefits, and pessimists, highlighting the political and logistical obstacles to making any system truly work (Grimmelikhaujsen and Meijer 2014). Though evidentially slight, attacks from politicians have added to a perception that laws are not working as they were intended (Worthy and Hazell 2013). For the optimists, FOI is a vital step forward with both intrinsic, normative benefits and positive instrumental repercussions that make such a system far superior than any ‘informal’ channel (Heald 2006; Hood 2006). There are numerous reasons as to why FOI would provide a stronger force that a simple request. First, on a symbolic level the mere presence of an FOI law can compel compliance and moves towards openness, out of either support for the principle or simple obedience, in a far stronger way than any informal route (Meijer et al. 2012). Work across a number of FOI regimes have pointed towards consistent bureaucratic support for the principles of greater openness (Kimball 2012; Hazell et al. 2010; Sharma 2015). Second, more mechanistically, FOI laws are accompanied by a machinery to provide pressure towards complying, including a statutory duty to ‘advise and assist’ requesters and an independent appeal system that, though it deals with only a small percentage of all cases, has a powerful influence in ruling and policing the law (Hazell et al. 2010). Finally, there may be more political reasons for obeying-the fear of damaging secrecy scandals, especially ‘where information management techniques are apt to be portrayed as excessive secrecy or cover-ups’ (Snell 2001, 188). It is hoped that this mixture of pressures and support creates a positive dynamic, encouraging public office holders to think continuously about the appropriate form of behaviour concerning public accountability, increasingly formalising procedures for making more information available to the public, and, by setting precedents, encouraging officials to be more inclined to provide it in the future (Prat 2006; Bauhr and Grimes 2014). In such a ‘virtuous cycle of transparency’ use and exposure could lead to ‘mobilization, accountability, and either institutional reform or sustained popular efforts to monitor public officials’ that would then serve to improve ‘the quality of government’ (Bauhr and Grimes 2014, 295).

From this view, FOI makes for a far stronger means of accessing information for citizens than less formalised routes. Comparison between the UK’s previous non-statutory Code of Access and the later Freedom of Information Act reveal large differences in awareness, public use and compliance. Though there is no clear before and after measurement, the UK’s previous non-statutory Code of Access had far lower levels of use or compliance. By contrast, study of UK central and upper level local government found FOI requests can stimulate authorities to behave more openly and then publish frequently requested information-from highways and planning documents to list of visitors to the Prime Minister’s country residence (Hazell et al. 2010).

Pessimists present a series of counter-arguments. FOI sits across bureaucratic, legal and political dimensions that can make operation problematic (Terrill 2000; Snell 2001). Fenster (2015, 161) concludes that ‘transparency is improbable’ as the ‘state’s complexity and sprawl, along with bureaucratic practice, make law an imperfect tool for revelation’. Fung et al. (2010, 110) argued that openness systems may be subject to a form of entropy and tend to degrade over time as systems typically impose ‘costs upon a small group of disclosers in the hope of generating benefits for a large group of dispersed users’. If these conditions remain unchanged then ‘policies will be underutilized, implemented weakly, and subject to gradual erosion’ (Fung et al. 2010, 112). Transparency pessimists point to a number of potential obstacles. The first concerns the strength of the process and whether FOI requests are responded to or acted upon at all. The ‘program logic’ of FOI between request and answer is long and ‘we can see that there are many points at which the necessary sequence of events could break down’ and where the ‘design proves to be brittle’, as requests could go unanswered, ignored or be delayed (Roberts 2015, 3). Bauhr and Grimes (2014, 295) point out that ‘several of the elements’ within the idealised cycle are ‘tenuous’. Requests themselves can vary in nature and number, often focusing on particular issues and are skewed towards certain bodies and activities.

Uncertainty over the robustness of the process is compounded by a lack of knowledge. Exactly what happens inside organisations when they receive a request remains a ‘black box’ (Meijer 2014). Institutional reaction varies from enthusiastic innovation to outright resistance and may depend very much on individual views within the organisation (Pasquier and Villenueve 2007; Piotrowksi 2010). While officials are supportive of the principles of openness they are less enthusiastic on the day to day operation of FOI laws that can descend into adversarialism (Kimball 2012). Those dealing with FOI requests frequently have to engage and obtain the cooperation of others in the organisation who are more sceptical (Snell 2001).

Exactly how the request is viewed may determine the strength of this effect and the extent to which it maintains momentum through the organizational chain (Roberts 2015). The impact may depend on the context, the persons involved and the issue at stake (Piotrowksi 2010; Welch 2012: Wilson 2015). Simply answering a request would be the responsibility of the appointed FOI officer (the clerk) but further action would mean greater time, resources and the involvement of others, potentially slowing the process (Snell 2001).

A crucial distinction may lie between compliance with a law and the ‘existence of procedures or processes for handling FOI requests’ as against concordance, a wider concordance with ‘the spirit of the intentions of the FOI Act and associated legislation concerned with transparency and engagement’ (Richter and Wilson 2013, 181). Compliance would find stronger effects on minimal levels of legal compliance [basics such as answering] giving way to entropy as it met greater resistance and attention decay (Kimball 2012).

Greater support or concordance for the ideal would find different levels of compliance is the same or even that it is stronger for higher levels (Richter and Wilson 2013: Bauhr and Grimes 2014).

A further obstacle is also the politics of requests. Transparency is a ‘contested political issue that masquerades as an administrative tool’ (Fenster 2012, 449). Politics can play an important, if hidden, influence with agencies inclined to hide or delay embarrassing information. Roberts (2005, 27) identified a series of sophisticated strategies in Canada designed to minimise the fallout from sensitive or controversial requests. Snell, drawing on Roberts, elaborated a series of degrees of response namely ‘malicious non-compliance, adversarialism and compliance’. These obstacles could lead to simple blockage or street level or frontline difference in how or whether FOI works at different levels or across bodies (Gofen 2014). Some public bodies may also be ‘political insulated’ if they are not subject to many requests or are far away from the oversight mechanisms designed to ensure compliance (Lewis and Wood 2012). This may consist of simple divergence from the rules all the way to more serious sabotage or ‘creative insubordination’.

A final, more prosaic set of barriers relate to what Roberts (2015) calls supply side failures. Crucial to the success of any FOI law is the knowledge and availability of staff with the resources to deal with requests. Difficulties with administrative capacity can seriously undermine both the operation and any consequent benefits (Roberts 2012). In a number of countries a lack of resources have simply starved and gridlocked FOI systems (Roberts 2012; Snell 2001).

The relatively short life-span of most FOI regimes mean there are few detailed longitudinal analyses, most of which focus on regional or local government. However, those that do exist point to a series of difficulties in operation. Roberts’ (1998) analysis of more than a decade of regional Canadian access laws found them all to exhibiting various levels of resistance and ‘official adversarialism’ also reinforced by ‘inadequate resourcing, deficient record-keeping, or other weaknesses’. Snell found at Australian state level a cycle of ‘optimism’ giving way to a ‘pessimism’ with laws shaped by ‘administrative compliance and disappointing return on democratic dividends’ (2001). In South Africa, Darch and Underwood (2005) found the Promotion of Access to Information Act blighted by a combination of low public awareness, a lack of capacity and deliberate evasion. Looking specifically at South African local government, Berliner (2015) concluded that the operation was severely limited by poor resources and monitoring, though political competition acted as a spur.

Whether FOI works as it should remains an open question. Optimists focus on the legal aspects of transparency laws, which provide the opportunity and resources to trigger compliance but also concordance and a ‘virtuous cycle of transparency’ whereby recipients internalize openness and transparency norms. FOI laws lose their legal, formal nature and they become part of the organizational culture of recipients as bodies move from compliance to concordance (Richter and Wilson 2013). Pessimists question the operability of the complex chain of a request and point to the political and resource obstacles that can undermine the system and stymie any hoped for effects.

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