Saturday, February 23, 2008

Looking at the Political Economy of Transparency

The Political Economy of Transparency: What Makes Disclosure Policies Effective?

Archon Fung, David Weil Mary Graham Elena Fagotto , December 2004,Ash Institute for Democratic Governance and Innovation, John F. Kennedy School of Government, Harvard University

The authors present a very targeted approach to evaluate the effectiveness of various transparency systems. Whilst the authors only mention FOI, or access to information schemes, in passing nevertheless their analysis raises many important questions about the effectiveness of current FOI or likely FOI schemes.

In particular their analysis challenges the assumed or intuitive benefits of a transparency scheme like FOI simply delivering automatic public benefits. The authors detail several critical junctures or relationships that can play a determinative or influential role in the delivery of these benefits. The focus of the analysis is both on the design and the dynamics of these systems. The authors contend that there are a number of difficult to satisfy conditions for any transparency system to be considered effective:

“Our analysis suggests that transparency systems must meet two challenging conditions in order to be effective. First, they must embed information into the ordinary decision-making and action processes of information users and disclosers. Second, the responses of both users and disclosers must ultimately be congruent with policy objectives.” [at 29]

A particular benefit of this analysis is that the authors focus on users, disclosers and the functioning of public policy. Many attempts at evaluating or critiquing FOI schemes tend to do so predominately from one focus, generally users, and almost never about the impact upon policy. Furthermore, less explicit in this paper compared to earlier versions, the authors examine the dynamics of the transparency process including the moves towards and away from effectiveness.

“Transparency is effective regulation only if it influences the performance of targeted organizations in the direction of a specified policy goal. Improvements in quality, scope, and use are necessary, though not sufficient, pre-conditions for effectiveness. Systems that do not keep pace with changing markets and public priorities can become counter-productive. “

Another benefit is that this analysis can be used in conjunction with Stiglitz’s information asymmetry, Terrill’s individualism and structuralism, compliance analysis and has a capacity to be easily used as comparative tool with other transparency systems and/or between transparency systems in different countries or over time. It also can be used in conjunction with Taylor’s concept of information polity and information mapping.

The authors challenge the assumption that:

“A single idea unites these otherwise disparate systems. It is that public intervention to require the disclosure of factual information by companies, government agencies, and other organizations can create economic and political incentives that advance specific policy objectives. “ [1]

The contention is that this process is much more complicated and dependent on a higher number of variables than normally considered. In terms of FOI the authors analysis turns our focus away from the mechanics of the delivery process (application processes, fees, reviews, release rates etc), as important as these are, and turns our questioning to the achievement of the policy outcomes associated with FOI. Whilst these policy outcomes or purposes have multiplied over the last 15 years their achievement is still the justification for the cost of FOI schemes and the foundation of demands for reform or refinements to existing arrangements.

The authors point out the diversity of users in any transparency system can be problematic “journalists, representatives of consumer groups, and competitors often have countervailing interests in ferreting out some of this missing information and making it widely available in news stories, rating systems, and advertising.” [1] That diversity problem is compounded by FOI because it is so reliant on individual applicants, rarely acting in concert or with shared purpose, to attempt to trigger the release of information.

In an earlier study the authors focused much more on the effectiveness of information intermediaries (journalists, members of parliaments, citizen organizations) as key contributors to or influences upon the effectiveness of transparency schemes. The authors argued that “disclosure policies are likely to be more sustainable where advocacy groups or entrepreneurial politicians representing user interests are able to continue to participate in the policy-making environment. “[38] The authors presented this example:

“National environmental and right-to-know groups translated complex data concerning toxic releases into a Web-based system that made possible searches by community, chemical, company, and facility. Absent such organized political activity and groups to interpret information and put it to use on the behalf of users, the expected political dynamic will return, and disclosure policies will stagnate or erode[38]”

Furthermore all of these information users face the further difficulty of combating or offsetting information asymmetry, in contrast to the government, in that they cannot compel disclosure. [1] Schemes like FOI do allow for forced release, subject to legislative exceptions and variable compliance. However FOI schemes differ from the normal type of government disclosure schemes outlined by the authors in that they cannot “require comparable metrics, format, and timing”. [1]

The authors differentiate between policy effects and policy effectiveness and recognize various levels of effectiveness along a continuum from ineffective to highly effective [1]. (for the purposes of their study they settle on 3 categories at [18] including moderately effective)

“Transparency systems may have effects without being effective. They have effects when they alter choices of information users and disclosers in observable ways. They are effective, however, only when they alter choices in ways that significantly further policy objectives.” [1]

The authors argue that

“Transparency systems are highly effective when they change the choices of information users and disclosers in ways that significantly advance policy objectives. Such systems are moderately effective when they alter the choices in less significant ways that nevertheless advance such objectives.” [2]

The authors seeks to explain that some transparency regulations “(i) lack effects while others (ii) have effects yet fail to advance policy objectives, while still others (iii) are effective.” [7]

The authors use the concept of action cycles to argue that a transparency system’s effectiveness is dependent on the degree (and direction) to which it contributes to an action cycle in public policy. The authors recognize that “transparency systems introduce new information into existing complex patterns of decision-making by buyers and sellers, community residents and institutions, voters and candidates, and other participants in market or collective action processes.” [2] Most FOI literature tends to ignore or assign little importance to these existing complex patterns of decision-making. Once the decision has been made to release the information or the narrative of a losing fight against an obstinate bureaucracy is finished then the FOI literature turns away from the story.

Another feature of the authors’ analysis is their focus on exactly what changes in the behaviour of users, disclosers and policymaking with the release/nonrelease of information under FOI schemes:

“when transparency systems provide highly relevant and accessible information that users incorporate into the considerations that determine their actions, we say that information becomes embedded in users’ decision-making processes. When such systems produce user responses that disclosers incorporate into management decisions, we say that those responses become [4] embedded in organizations’ decision-making processes.” [5]

The authors maintain that there are differences between standard-based, market-based, and transparency-based regulatory systems which are captured in their Figure 1 below [at 7]:

transparency analysis

FOI seems to fall into the third category, transparency based, where there are ambiguous signals by users and disclosers and there is a large amount of discretionary responses left to individual government agencies.

The authors analysis offers the chance to pursue the FOI process into more meaningful territory as these two quotes illustrate:

“Our central claim is that the best way to understand why some transparency policies work and others do not is to assess whether and how the information produced by those policies becomes integrated into decision-making routines and consequent actions of information users and disclosers. Ours is an inductive, backward-mapped approach that begins not with the perspective of policy makers but with the perspective of information users and disclosers (Elmore, 1979).”[8]

“Our analysis of cases suggests, however, that simply placing information in the public domain does not mean that it will be used, or used wisely. In practice, information cannot be separated from its social context. Individuals and organizations simply ignore information that is costly to acquire or that lacks salience for decisions.” [8]

A transparency system has “effects when the information that it produces enters the calculus of users and they consequently change their actions and when information disclosers notice and respond to user actions. It is effective when discloser responses

significantly advance policy aims.”[8]

As the authors note “This description suggests multiple points at which information can fail to spur action and at which action can fail to spur reaction or can provoke perverse responses.” [8]

The authors contend that information must have value for the users, be compatible with users’ decision-making routines [11] and ’even if information is valuable and compatible with routines, it is unlikely to become embedded in users’ everyday choices unless it is also comprehensible to them. [12]

This analysis when applied to an FOI system pinpoints some of the problems that have arisen. First whilst often the information will have value – the process relies on wide and often blind net casting and will regular return excessive amounts of redundant information. Secondly, there is no connection to the users decision-making routines. The fit is better with some users ie journalists and other information intermediaries. Thirdly the access granted is to raw and direct information often divorced from its context and surrounding relevant information

The authors argue that “disclosers are more likely to incorporate user responses into their decisions if those responses have value in relation to disclosers' goals, are compatible with the way they make decisions, and prove comprehensible.“ [13] The literature about agencies perceptions of users, their motivations and the utility of their requests seem to militate against disclosers working towards making the FOI system more effective.

A lack of congruence in goals and actions and misinterpretations of new information can reduce the effectiveness of transparency systems, even if information becomes embedded in routines. [18]

The authors analysis add some interesting extensions on existing FOI analyses. It will also draw more attention to the implementation and evaluation of FOI schemes.

See “Clarifying Transparency” by Mary Graham and David Weil, April 23, 2002 Reprinted from the Financial Times

The Political Economy of Transparency. What Makes Disclosure Policies Sustainable? By Archon Fung, Mary Graham, and David Weil , October 2003 Institute for Government Innovation, Occasional Paper, Fall 2002.$File/rwp03_039_fung.pdf.


Gustav said...

Interesting read.

FOI is fundamental to a democracy.

In regards to Tasmania do you have specific recommendations for improvement?

Is there a working model out there in the world that already has best practices for FOI?

Rick Snell said...

FoI Reforms in Tasmania

The 17 year old Freedom of Information Act was conceived and based upon ideas about government information that stretch back to the 1960s. Furthermore the original design and intent of the legislation was heavily modified before being accepted by the major political parties. It was then trimmed further prior to its commencement in late 1992 by the Liberal Government. Throughout the 1990s it was starved of funds and just managed to survive a massive reduction in its scope and operation in the mid 1990s. At other times it was subject to secret plans to subject it to a sunset clause after 2 years.

The Bacon and Lennon governments have co-existed with the legislation but have never been overly supportive or keen to reinvigorate the legislation.

Due largely to staffing restrictions the various Tasmanian Ombudsman since the mid 1990s have taken a very low keyed approach to both the interpretation and application of the Act and in taking any wider supervisory or quality control activity.

This restricted approach seems to be slowly changing under the current Ombudsman, Simon Allston.

What is needed?

A 3 month (maximum review) by the Tasmanian Law Reform Institute and/or the Tasmanian Administrative Review Advisory Committee:

The review could build upon the work and ideas of:

Queensland Independent Review Panel
• Discussion Paper January 2008
• Final Report (early June 2008)
Australian Law Reform Commission
• 1996 Report and current review
NSW Ombudsman review (current)
Changes made in WA, Vic and the Northern Territory Information Act

Developments in New Zealand, Canada, UK and USA

Some initial proposals

Information Commissioner created (could be Ombudsman) to cover FOI, Privacy and state records.

Information Commissioner to have ability to release exempt information in the public interest.

Information Commissioner to have the ability to order release of information.

Information Commissioner to carry out supervisory, advisory and training functions.

Information Commissioner and Ombudsman to be approved by both Houses of Parliament.

Freedom of information to be funded and administered as any other policy program.

Time period for Information Commissioner reviews to remain at 30 days.

Maximum time limits on applications to be progressively decreased from 30 days to”:
• 20 days
• 15 days
• 10 days

A once-off request for extension up to a maximum of 15 days

Agencies be required to process 50% of requests within 50% of the maximum deadline.

Cabinet documents to be more accessible.

Automatic release of cabinet documents after 10 years unless covered by another exemption.

Internal working documents to be automatically released after 5 years.

All exemptions subject to a public interest test.

Information released under FOI be made publically available on Agency websites.

The government to republish FOI Handbook.

Information Commissioner tpo publish determinations of FOI reviews.

Limits on vexatious applications.

Changing Objects section to include increased openness and progressive release of information as a specific aim of the Act.

Parliamentary oversight of FOI including a “dedicated focus on information as a dimension of all government activity”. Creation of a joint Accountability Committee.

A shift to pro-active or push model of release so that there is routine and active dissemination of information.

Optional internal review.

Internal review timeframe reduced from 14 days to 7 days.

Decisions by gazetted FOI officers under s.21 shall not be subject to any Agency approval process unless that process has been approved by the joint Accountability Committee.

Most importantly a cultural change that sees government transparency made an essential modus operandi of government and that there is an attitude to harvest the dividends of transparency.