Less Government, More Secrecy: Reinvention and the Weakening of Freedom of Information Law

Article excerpt

In the last 15 years, the governments of many advanced democracies have dramatically reorganized their public sectors in an attempt to manage the problems of growing indebtedness, taxpayer burnout, and increasing citizen dissatisfaction with the quality of public services. These restructuring exercises were not undertaken in isolation, however. They were accompanied by the rapid development of an international reform community that knit together professionals and academics in many different nations and permitted the rapid diffusion of ideas about reform strategies.

Members of this new international reform community have emphasized the commonality of experiences across national boundaries. "It is impossible to miss the worldwide nature of these changes," Donald Kettl argues. "The scope, breadth, and pace of change proved stunning and universal. It proved nothing less than a global revolution" (Kettl 1999). Governments around the world pruned "nonessential" or "noncore" spending, transferred functions to the private sector or to quasiprivate special-purpose bodies, and put more emphasis on collecting nontax revenues, including new charges for government services. In the United States, reforms such as these were recognized as essential attributes of "reinvented" governments (Osborne and Gaebler 1992). In other nations, proponents of similar reforms argued that they were hallmarks of a "new paradigm" for organizing public services (Organisation for Economic Co-operation and Development 1995), now widely known as the New Public Management or NPM (Hood 1991).

Critics often focus on the danger that NPM reforms might undermine democratic control of organizations exercising public authority. Some emphasize the risk that public officials imbued with a new "entrepreneurial" ethic will become inattentive to the public interest (Frederickson 1997). Others worry that spinning off functions to nongovernmental organizations will weaken the "chain of responsibility" that ties frontline bureaucrats to elected representatives (Greenaway 1995; Jenkins 1996). Critics have also suggested that diminished emphasis on the legal foundation of administrative practices, coupled with weaker mechanisms for judicial review, will increase the risk of inequities or corruption within the public sector (Freedland 1995; Moe 1995). These are important concerns, but they do not exhaust the ways in which NPM reforms might weaken democratic control of governing institutions. An important but neglected question is how far NPM reforms may undermine laws that give citizens the right of access to government information.

These statutes, widely known as freedom of information (FOI) laws, had diffused quickly throughout the established democracies by the early 1990s. The United States adopted its first Freedom of Information Act in 1966, and all 50 state governments had similar laws by 1984 (Rast 1984, note 33). Canada's federal government adopted the Access to Information Act in 1982, and 11 of its 12 provinces and territories later passed comparable statutes. Many other Commonwealth and Western European governments also acquired FOI laws during this period (Bennett 1997). Just as important as this legislative action was the entrenchment of the idea that FOI is an important tool for ensuring democratic control of government--so important, in fact, that freedom of information could be regarded as a basic human right (Johannessen 1995; Perritt and Lhulier 1997). Without the right of access to government information, it is argued, a citizen's ability to participate actively in policy deliberations or hold institutions accountable for their conduct is compromised. In 1978, Justice Thurgood Marshall called FOI "vital to the functioning of a democratic society."(1)

The possibility that public sector restructuring might undermine FOI laws was not widely recognized in the early 1990s. In fact, several governments promised to improve transparency even as they renovated the public sector. …