Chapter #: Implementation of Polish FOI

This chapter concerns the implementation of the Law About Access to Public Information of 2001. By implementation, I refer to the set of practices set into motion by the Polish government in its efforts to adhere to the law. But implementation can hardly be extracted from the monitoring of the implementation of the law conducted both inside and outside of the government. As such, implementation refers to more than an act of putting policy into practice, it also includes a measure of success. Measure implies both a standard of practice or a coherent and applicable rule, as well as a manner of measurement or form in which to collect data on a practice. As discussed in the previous chapter, success is always the source of debate and conflict. While the law’s passage was a success, in the sense that it was passed at all, few people have consider its implementation a success. Even many within the Polish bureaucracy have cited either a lack of compliance or overly ambiguous rules. The NGO sector generally and, in particular, the NGOs responsible for the law’s creation have been dissatisfied with implementation. All sides have placed blame for improper or unfulfilled implementation elsewhere: lack of funds, lack of training, a bureaucratic culture of secrecy, or confusing or contradictory legal codes. It seems Professor K.’s proverb [from the last chapter] has held true: failure, in this case, is truly an orphan.

I'm reading Global Assemblages by Collier & Ong and on p. 10 they qoute Weber's "famous and cryptic first sentece" to his The Protestant Ethic. Cryptic yes, but not necessarily because of any theoretical reasons. Can anyone tell me the subject noun of this damn sentence:

A product of modern European civilization, studying any problem of universal history, is bound to ask himself to what combination of circumstances the fact should be attributed that in Western civilization and in Western civilization only, phenomena have appeared which (as we like to think) lie in a line of development having universal significance and validity.

Collier and Ong explain: "the passage jars relativistic sensibilities." It is also jarring my grammatical sensibilities. However, if you do feel this passage insightful - and I do, actually - please comment.

The most compelling questions that Rabinow suggests we pursue in our anthropological work deal with the level of problematization, a concept borrowed from Foucault. Citing Foucault, Rabinow states, “A ‘problematization…does not mean representation of a preexistent object nor the creation through discourse of an object that did not exist. It is the ensemble of discursive and nondiscursive practices that make something enter into the play of true and false and constitute it as an object of knowledge’…The reason that problematizations are problematic, not surprisingly, is that, something prior ‘must have happened to introduce uncertainty, a loss of familiarity; that loss, that uncertainty, is the result of difficulties in our previous way of understanding, acting, relating’” (2004: 18). This is similar to Weber’s ideal-type and its emergence and duration may last for centuries. It is also not the same as the episteme that Foucault develops in The Order of Things, though it exists nearly on the same level; the main difference is that problematization is not a buried logic or system of thought, it exists in the open as a space for knowledge emergence, development, and debate. Examples include, “the Greek problematization of pleasure and freedom or the modern problematization of life and governmentality” (2004: 55).

Between apparatus and problematization rests assemblage, “secondary matrices from within which apparatuses emerge and become stabilized or transformed. Assemblages stand in a dependent but contingent and unpredictable relationship to the grander problematizations…They are a distinctive type of experimental matrix of heterogeneous elements, techniques, and concepts” (2004: 56). As opposed to apparatus or problematization, they only last for decades, rather than centuries. Therefore, their emergence and existence is an event set within the context of existing problematizations and apparatus.

So, beginning from the level of problematization or responding to this level of analysis, we can examine assemblages such as the emergence of information access laws in terms of both abstract conceptualizations and concrete institutions, knowledge systems, and other objects. Similar to the manner in which Rabinow explores Enlightenment concepts of progress in relationship to molecular biology and bioethics, FOI engages with the Enlightenment too, but concerns itself more so with ideals of progress, truth, and democracy. Essentially, Rabinow wants to focus on big questions that get at the larger meaning of science, questions that require continual reformation as new technologies emerge and the possibilities of science and technology re-frame how we comprehend life. If we understand science in the frame of Enlightenment progress, then where are these scientific developments leading us? To a happier existence? A better world? And if not these things, will it lead us to the opposite? Rabinow strikes on the matter of civilizing and civilization, what differentiates modern society from the barbarous or backwards society? Even when discussions are not framed in such terms explicitly, they often return to such matters.

We might suppose that information access could raise similar-minded questions about democracy, its purpose, development, and proliferation: will more democracy make the world a better place? a happier place? a more secure place? But before we get to that, we might first question whether more openness and information access will bring about more democracy and then whether increased openness will make the world better, happier, and/or more secure? The articulation of information and democracy appears relatively new, a late 20th century development that emergent democracies such as Poland and the rest of Eastern Europe easily accepted. Openness is a new democratic norm, allowed for in the 1990’s by the re-structuring of Cold War-era security which had justified often excessive secrecy. FOI advocates called it the “decade of openness” and it seems that the norm continues to have a place in the post-9/11 security order as well, though possibly in a more precarious position.

Perhaps “democracy” is too limited or information access touches upon a number of other problematizations. Maybe democracy is better understood as an apparatus within the Enlightenment problematization? After all, capitalist concepts of free markets also endorse greater openness for more clarity within markets.

I recall an instance from fieldwork that was particularly instructive for myself and may inform this matter. I had a long discussion with a corruption expert, also a former member of the Solidarity resistance and wide-ranging intellectual. We explored the emergence of anti-corruption in terms of moral disgust of the socialist system during the 1980’s. Several days later, I spoke with another corruption expert who had not been part of Solidarity and straddles the line between intellectual and policymaker. He rejected the moral dimension of anti-corruption, explaining to me that the sole purpose of anti-corruption is political and economic development in Poland.

Development: this is the big picture question that has fueled anti-corruption initiatives in Poland and, in turn, information access. We might consider development as comparative, that in relationship with other countries, Poland is behind. Or, we might consider development as more universal, that Poland is not yet truly democratic or capitalist. The truth is both. And further, we can expect Poland to traverse its own path through development and towards its goals. All of these generalizations are accepted by the Polish experts or are the grounds for varying arguments about development and the post-socialist transition.

Former Polish Prime Minister Jerzy Buzek brought these ideas together in an essay he wrote, “Freedom of Information (is) Fundamental.” In it, he laments the average citizen’s lack of information as a source of failure and disappointment. Oftentimes, citizens remain unaware of the opportunities they have missed out on. The source of blame rests, more often than not, with government institutions and its individual functionaries who fail to properly supply the Polish citizen with important information. Another effect of the lack of openness is corruption. “Bad fortunes for the future of Polish democracy,” Buzek writes, resulting in the, “curbing of the tempo of the development of economy and Polish civilization.”

If the watchword of the Buzek government was reform, then one of its main centers for reform was the Department for Program Analysis within the Chancellery. This department, only in existence during Buzek’s tenure, aimed to monitor, evaluate, and propose further systemic and administrative reforms. One of the proposals it worked closely with was the Adam Smith Research Center’s information access law. According to Waldemar Rataj, director of the Department from 2000 to 2001, the main obstacle the Prime Minister faced to planned reforms was resistance from within the administration itself:
However, Buzek’s government was very idealistic and wanted to conduct core reforms, including the form of administration, the form of the health care system, pension system reform, and the education system. But that was a big, serious mistake because Buzek tried to use the old apparatus to conduct the reform. They didn’t know this old apparatus would not be interested and those reforms were not going to be successful.
Rataj explained the apparatus to me as not just the structures or networks of long-term career bureaucrats, but their sphere of interests and influence, as well. On one hand, the apparatus could be useful, as an instrument of the state, but more often than not in contemporary Poland, they approach an older, more traditional, and more pessimistic concept of apparatus: the apparatchik. The battles they wage are not open conflicts between ministries and individuals, but “conflicts of ideas perceived on analytical and evaluative levels.” According to Rataj, information management reform is one of these battlegrounds. And he proposed that this conflict go much farther than the Law on Access to Public Information, but should also include “reengineering the whole system of management of information (not only public) at public offices” (2003: 124).

Rataj confirmed that the information access bill was not the government’s idea, nor was it anticipated by the government. The Adam Smith coalition of NGO’s worked separately and independently from the government in generating the idea and brought it to the Chancellery in 1999, at which time Prime Minister Buzek called in experts from within his office, including Rataj, as well as outside experts, such as Andrzej R. and the CMWP coalition which eventually decided not to take part. Although the Adam Smith coalition and the Chancellery became close allies and partners in the work, there still remained a degree of distance because the Prime Minister recognized the need to keep the proposed bill out of the hands of the administrative apparatus, which would surely attempt to thwart such threatening legislation. Instead, the Prime Minister lent his personal support “as a private individual, having, of course, all of the political instruments that a Prime Minister has at his disposal” (Rataj, personal communication). He assigned one of his aides to monitor the progress of the bill through subcommittees and the Council of Ministers and helped round up fifteen members of Parliament to introduce the bill into the Sejm. There are several different manners in which to introduce a bill. The government administration can introduce, so can fifteen members of Parliament, the President, or a bill supported by 100,000 citizens. The Prime Minister went through Parliament legislators so as to preclude the decision-making procedures of the administration, worked on confidentially, that he felt would certainly clip the most groundbreaking articles guaranteeing access. By moving the bill straight to Parliament, he ensured that any amendments or subtractions would be public and journalists could report on such developments.

In progressing in such a manner, the Prime Minister revealed two perspectives on the need for an information access law. The first was held in common with the Adam Smith coalition. This is the ideological and theoretical level, the belief in citizen’s control over power and accountability in decision-making and allocation of public funds. In many respects, this is the level of understanding shared amongst all FOI advocates worldwide, to support the goals of democracy and openness.

But the second goal held by the Prime Minister, not necessarily masking the first, but certainly as important, is a more pragmatic, government administrative goal. The information access law could produce a new level of control over the apparatus through public accountability. As Rataj explained in several instances, the Buzek government was largely unaware of both the extent of the power of the bureaucratic apparatus, as well as the scope of corruption in which it was involved. It conducted its business largely under the veil of secrecy, even to the Prime Minister. By informing the public, the information access law could also conceivably inform others within the government itself about its activities. Rataj stated, “only such a regulation could lend some control over what was happening in the administration. We knew that information, that was key, as obtained by private individuals, such as journalists. Many times, for example, they had better information than the government did.” In addition to greater accountability and control, the Prime Minister saw a personal interest in strengthening the prestige of his government. By 2001, when the law was passed, it was already quite obvious that due to a long string of scandals perpetrated from within the bureaucracy, oftentimes by bureaucrats not involved with AWS, that there was little or no chance of Buzek’s or AWS’s re-election. Nonetheless, this prestige factor played a role in pressuring other members of Parliament to vote in favor of the bill, “What helped was the intensity of the effect corruption [in the press] was having. The pressure was so palpable that you could feel it in public discussions and deputies knew it would not be proper to not support this project.”

Without the Prime Minister’s strong support, the bill would have almost certainly failed. For instance, the government must offer its opinion of every initiative that comes to Parliament. When the information access law came to the ministers, every single one of them strongly and urgently rejected the bill as “a threat to the state” or “the interests of the state,” to the extent that their critiques would have destroyed the entire proposal. The Chancellery took it upon themselves to engage the Ministers in a debate, tossing aside arguments they considered irrelevant to a democratic state and offering rational compromise to those Ministers worried about national security or protection of confidential data. The Prime Minister ensured that arguments amounting to the assertion of administrative secrecy for the sake of tradition would not be heard, thus allowing the bill to proceed in the Parliament. Due to the mounting pressure of corruption in the press and the Prime Minister’s personal steering through the reluctant, but powerful bureaucracy, the information access bill became law, embodying the ideas originally set forth from within the Adam Smith coalition.

Despite the successful legislation of the information access law, it was immediately obvious that greater openness would face obstacles for many of the same reasons outlined above, but also due to the structure and ethos of the bureaucracy, the already established structures of information flows, the increasingly influential force of privacy law, and a weak or sometimes lacking form of oversight. Because the Chancellery and the Adam Smith coalition was fully aware of these obstacles when drafting the law, it would be impossible to separate these concerns from the forces impinging or promoting the bill in the process of its passage.

According to many critics of the administration, a central problem rests in its failure to separate politics from professional bureaucracy and the establishment of professional career-minded bureaucracy. A sizeable number of bureaucratic posts shift every four years, dependent on the outcome of elections. In a simple, yet powerful editorial statement from early 2004, Rzeczpospolita writes, “In practice however, the majority of politicians feel that positions in the administration are like election loot and they appoint friends of their party” (Sobczak 2004: A2).
[here, i actually need to sift through some of my old material to learn more about how civil servants get jobs, whether they have tests or what]
As a result of a politicized bureaucracy, critics such as Prof. K. charged that decisions to withhold information from the public are politically motivated.

Rataj further develops the portrait of an unprofessional Polish bureaucrat ethos as secrecy-prone and power-hungry, a perspective that many other anti-corruption experts and journalists shared. First, a subtle distinction is made between the disclosure of information and an administrative information policy. Whereas the former operates in the fashion of FOI, in which the administration passes along records and hard facts as they are requested by citizens, “the latter includes presenting the government’s intentions, interpreting its moves and pointing to the objectives which the public authorities follow in the course of a particular activity” (Rataj 2003: 126). While there is nothing wrong with an administrative information policy, the blurring of the two represents a corruption of the original intent of information access law, which is intended to offer the public an unmitigated and objective perspective on government activity. This distinction may only be found in a highly professional and objective bureaucratic environment. Second, the Polish bureaucracy is ill-prepared to deal with an increasingly sophisticated community of information requestors from the media, the private sector, and even other branches of the government, such as the Ombudsman. Too often in the recent past, bureaucrats have lorded over the information they manage, as if requestors had to earn a privilege to gain access to it. This attitude is hardly conducive to the disinterested objective of information flows dependent solely upon law and policy, as proposed by Rataj and others. In a sentiment echoed by countless journalists I spoke with, Rataj writes, “Misappropriation of information is still an ingrained component of the public service’s anachronistic ethos. Many within the public administration still think that the more information they keep to themselves, the more important they are” (1993: 130).

Yet, in some instances, bureaucrats base withholding on legitimate and legal avenues such as national security, though in Poland, privacy is a much more common culprit. While socialist Poland never purported to have reached a state of true communist collectivism, both intrusion and circulation of information into private lives was common. As explained above, this was a complicated arrangement, since much private and informal activity intentionally occurred under the radar of government monitoring through informal exchanges of information in srodowisko. At the same time, secret police forces carried out a great deal of surveillance and intruded on privacy to the point that after 1989, the newly democratic regime made a point of securing privacy for all citizens as one of the key symbols of a new order. Constitutional amendments guaranteed a degree of privacy from the state and legislators further bolstered the right to privacy with a law on the protection of personal data in 1997. The 1997 law established an office to protect the right to privacy a sort of privacy ombudsman who has diligently pursued administrative and judicial secrecy concerning any information possessing potentially private data. However, much to the chagrin of information access advocates, many of whom had supported the earlier privacy initiatives, bureaucrats began to abuse privacy law to protect more information than they felt existed under the purview of privacy protection. In essence, the extensive privacy measures were used to channel information flows in directions dictated by the bureaucracy.

While a Commissioner of Human Rights, or Ombudsman, office exists in Poland, designed to protect human rights such as the Constitutionally-established right to know, that office can do little to prevent excessive secrecy. It intervenes on behalf of citizens who are victims of injustice and brings these cases to the attention of Parliament and the courts, but this function can barely be considered administrative oversight. The Commissioner cannot create binding new codes of administrative conduct and appealing to information access refusals would be lengthy and protracted. In the case of human rights intervening in information access, we can recognize a pattern of the ultimate weakness of these rights in the face of administrative power. While the right to privacy is an exception, it may only be so because it has its own administrative office and it serves the interests of the bureaucratic ethos of secrecy. But the Ombudsman faces a greater amount of resistance in such cases and must often rely on the publicity that media attention can garner.

While both NGO coalitions referenced human rights as a moral and ideological background for the information access law, the CMWP coalition placed itself more firmly in the environment of human rights advocacy, while the Adam Smith coalition lent more weight to administrative reform and anti-corruption. While the CMWP coalition had connections to international organizations promoting human rights, the other coalition was more involved in the national political arena. This distinction between the two coalition is subtle, flexible, and based on a continuum, but nonetheless significant.

The democratic revolution of 1989 transformed Poland’s political and economic systems from an authoritative socialist regime into a democratic free market, but the people and traditions of the former regime were not immediately replaced by new people and traditions. This important social and cultural dimension has created important obstacles to democratic reform, including the promotion of greater information access and information flows to the public. To understand why this is the case, we need to examine the historical conditions and tendencies of Polish bureaucracy.

Both citizens and bureaucrats alike often had to counteract the rigid vertical command design of the bureaucracy through reciprocity (Newland 1996) or informal connections (Wedel 19XX). These individuals connected together resources or sources of information designed to remain separate and used their personal relationships or connections to facilitate positive actions. However, this established social structure constituted the same dynamic that would later be referred to as corruption, in which bureaucrats use their public service function for private interests. But during the PRL era, this “corrupt” activity was justified since the apparatus did not seem to work in and was not accountable to the public interest, but rather the interests of state power. Nonetheless, the practices were firmly established within the bureaucracy during this period.

For the most part, there was no need for the apparatus to relinquish their powers after 1989 because the focus of the newly-elected Solidarity government was not to disband the bureaucracy, but to build new institutions of capitalism and democracy. To be certain, some ministries, such as those that controlled prices or centralized economic planning, were discarded, but even those officials were then shipped to other bureaucratic positions, such as the Ministry of Finance, where they could serve as regulators of the economy. A point was made to replace top-level bureaucratic elites with democratic-minded reformers from the Solidarity party’s ranks, but most bureaucrats largely remained within the administration with the main exception of those lower-level civil servants who were laid off when the enormous bureaucracy shrank (Newland 1996).

"So, the more focused question is whether any conceptual/philosophical reference to accountability constitutes "Freedom of Information" or if FOI is the product of more specific historical conditions?"

And for good reason. I suppose I should then call out for critique Blanton's statment, quoted yesterday, concerning the origin of the Swedish FOI, "The reason was not Jean-Jacques Rousseau. The reason was real politik." ck recommends an explanation that considers both reasons. Even though Rousseau was not the reason, Lamble showed that Enlightenment philosophy was indeed behind the Swedish case.

So, better to look at FOI in a light suggested by Nahal, in which the continuity of ideas and philosophy remains consistent to some degree, but the necessities and responses of a democratic society and state generate specific instances which bring about new assemblages of laws and techniques, accompanied by emergent technologies and social organizations.

Returning then to the assemblage I made some reference to, I want to further elucidate the administrative management movement of the 1930's and 1940's in the United States which led to new forms of bureaucratic structures and information flows, later bringing about a new technique called FOIA in 1966.

In America, as we understand it today, federal administration is under the joint custody of Congress and the President. However, this situation was not always the case, as Rosenbloom (2001) explains in his essay on a trio of administrative acts passed by Congress in 1946 which effectively re-appropriated control over federal administration by Congress. These laws include the Legislative Reorganization Act, the Employment Act, and the Administrative Procedures Act. Rosenbloom succinctly states: "The result was an institutionalized vision of 'legislative-centered' federal administration in which Congress treats the agencies as its extensions for legislative functions, supervises them, and intervenes in their decision making through casework and other forms of constituency service" (2001: 773).

As Nahal's informant stated, "[Democracies] create... preventative measures as problems arise, or when it is somehow attacked and endangered."

In a similar manner, the 1946 Congress was responding to its (over-)delegation of authority during the New Deal and WWII in combination with the development of an enormously powerful federal administration during the same period. Some legislators seriously discussed the necessity of Congress. The American democratic ideal of checks-and-balances was, in some sense, at stake.

Rosenbloom breaks the administrative reform into three components. One, the redefinition of agencies as extensions of Congress due to their legislative functions. Two, the need for agency oversight by Congress. And three, the ability of Congress to intercede in agency decision-making and interject district-specific and constituency-specific interests.

Most important for FOIA was the first component because if agencies were considered an extension of Congress legislative power, then they must be held to the same accountability as Congress. Further, they would be required to standardize their rule-making procedures. The APA, specifically, was intended to increase transparency amongst federal agencies. In 1966, as mentioned earlier, it was amended with FOIA, applicable only to federal agencies in the executive branch.

...

here is a quote by FOI expert Thomas Blanton on the Swedish law from a 1995 conference speech:

The first freedom of information law in the world actually pre-dates, came
before, both the French and the American Revolutions, so so much for all
that philosophical history I just gave you.

Sweden, in 1766, passed a Freedom of the Press Act, which legalized the
publication of government documents, and provided for public access to
government documents. 1766. The reason was not Jean-Jacques
Rousseau. The reason was real politik. Sweden enjoyed an extended
period of parliamentary rule between about 1718 and 1772. And the new
majority party in 1766 wanted to see the documents which the previous
government had kept secret. Two hundred years later the United States
passed its Freedom of Information Act for very similar reasons.

However, another FOI scholar, Stephen Lamble, argues the opposite, that the Swedish FOI was, in fact, inspired by Enlightenment ideas, not of Rousseau or any other famous philosopher, but by the Finnish clergyman Anders Chydenius. In 1765, Chydenius authored "The National Profit" promoting absolute free trade throughout Sweden, parallel ideas on free trade and markets to Adam Smith which actually preceded "The Wealth of Nations" by 11 years. At that time, Chydenius was already a member of the Swedish Parliament and the leading proponent of the Freedom of the Press/Information Access Law.

If we examine FOI from the perspective of ideas and philosophy, a connection appears evident in the tradition of the Enlightenment. Again, let me return to Blanton's speech however, where he states:

In my research for this presentation, I came across what was, for me, a
very surprising statement from a very highly placed Japanese source on
the subject of open government and the need for open government, and I'll
discuss that in a moment. And the reason I was surprised by that statement
is that, up until now, I have always understood the idea of freedom of
information to be a product of the rationalism and liberalism of the
enlightenment, and particularly the ideological trend from the French
Revolution on the rights of man, and the American Revolution on the checks
and balances against government power.
...
The quote was, "Open deliberation shall be carried out, and all affairs of
state shall be disposed of in conformity to public opinion." This was the first
of the five imperial oaths uttered by the new Japanese emperor, on 14th
March, 1868, at the beginning of the Meiji Restoration. Now, is this Meiji
freedom of information?

So, the more focused question is whether any conceptual/philosophical reference to accountability constitutes "Freedom of Information" or if FOI is the product of more specific historical conditions?

Without discounting the cultural side of meanings and ideas, I want to argue for the latter and suggest conditions unique to late 20th century America, as compared to 18th c. Sweden. After all, the Swedish law did not inspire the American law. Lamble argues in another essay that "US legislation was originally based on Swedish statutes" (2003: 51), but presents no solid evidence of this basis, other than a footnoted reference to Rowat (1979) [a matter requiring further research, I know]. In recent interviews with FOIA experts, this linkage was refuted. Further, I have found no evidence in my research.

If Blanton is correct and both the Swedish and American laws are the result of realpolitik, then this would imply that FOI laws are highly specific to a political climate. This is fine, but it doesn't explain the proliferation of FOI in the late 20th c. and not in another era of history.

The next obvious distinction is the nature of, really the emergence and proliferation of, bureaucratic government administration in the 19th century. While bureaucracy had already emerged in specific locales throughout history, its development in the 18th and 19th century was unique in its scope and coherency amongst like-minded Western nations, then transmitted to those nation's colonial outposts.

Before going any farther, I should return to ck's recommendation comment for anthropological analysis: "you need to be able to clearly articulate what the *goal* of FOIA is-- and whether the people behind it in the Swedish, the American or the Polish case constitute a kind of ethical/political (as in polis, aristotle) community which understands this goal and seeks to achieve it--whatever it is."
If this is the case, then the ideological similarities suggest a common goal, while the realpolitik interpretation suggests different goals. The bureaucratic interpretation, especially as it articulates to democratic ideals, could suggest an international community, particularly one that is facilitated by recent technological developments.

...

now, i'm re-working that because it is unclear and does not necessarily flow from the data in front of me.

here are the major transformations relevant to the shift in implications of information within FOI.

1. technology - the swedish law was a response to the printing press and its possibilities for document reproduction. the american law, also concerned with records and their availability to the public, was created in an era of mass media. still, this is not a determining factor, especially since the swedish law was a combination access-to-info + freedom of the press law.

2. bureaucracy - the swedish law originated in a very different era of bureaucracy. it offered the public access to documents officially recognized/notarized by bureaucrats. to be sure, sweden's law was very forward-thinking and openly democratic.
however, the american FOIA has some subtle differences. its origins are located within the administrative procedures act of 1946. this act is based on recommendations by the Brownlow Committee to FDR, suggesting ways in which the President's office could modernize the bureaucracy in terms of centralization and management. the federal government bureaucracy had been increasing in size for many decades, but without a plan for managing the growing organization. the administrative laws were from a different era when agencies were quite independent of one another, as well as independent from the chief executive. as late as 1831, the entire federal government was run by president andrew jackson and approximately 665 civilian employees. and FDR's new deal was rapidly expanding the federal government in the 1930's and 1940's. the Brownlow Committe's suggestion was to re-organize the entire executive branch in the form of a modern corporation with the President as CEO of the organization. along with this re-organization came a modern sense of information structures and flows similar to those structures necessary to any other modern corporation (historically outlined in chandler's "the visible hand," which describes the emergence of massive railroad companies at the end of the 19th century in america - this story was then brought up to date in beriger's "the control revolution," which explains the emergence of information age bureaucratic organization from the 19th to the late 20th c. in america). the result of the Brownlow Committe was the Administrative Procedures Act of 1946. Section 3 of this Act included some vague reference to giving the public any information that individual agencies saw fit to, althought disclosure was based upon agency discretion. FOIA amended the APA section 3 and clearly outlined how information disclosure to the public would function, effectively extending the organization of the administration's information flows into the public sphere. therefore, FOIA is a function of the re-organization of government administration in a modern bureaucratic system. further, it is a reaction to a lack of oversight within this distinctly modern development (bureaucracy). this is another important quality that makes FOIA a uniquely late 20th c. development.

1. Ethnographic description concerning the passage of the FOI law: This section begins to explore the motivations behind the law by way of my own experiences trying to collect an account of the history of the law. I’m trying to fuel this section by grappling with the paradox of multiple rumors swirling around and enigmatic communicative experiences with my pro-transparency interlocutors. For the most part, I explain this paradox by way of political capital, diminishing funding and entrenched elite social networks.

2. Moving away from the more cynical explanations in point one, I address the more high-minded goals of FOI as shared by advocates in Poland and internationally. My general goal here is to look at a broader historical portrait of structures of possibility: why was a FOI law possible at this point in time? First, I briefly address how Polish advocates understood the law as one part of a much larger anti-corruption strategy (which was further explained in a previous chapter on anti-corruption, so I keep this brief). Second, because Poland did not invent FOI law, I turn to the global story of how FOI laws have proliferated worldwide.

Point 2 leads me to several questions. First, what is the nature of “information” inside of FOI? Second, if FOI seems integral to democracy, then why were such initiatives excluded from democratic countries until the late 20th century? I see these two questions as closely intertwined. In answering these questions from the Polish point of view, I use historical accounts of informal information flows during the communist era and compare their implications to those of information flows as engendered by FOI law. The first is a matter of resistance and rebellion, moral rightness, the latter an instance of reform and a new democratic norm, increasingly used for a wider variety of sometimes incoherent purposes.

I try to look at a lot of different reasons for introducing FOI into Poland, thus making this chapter’s summary somewhat complex. I don’t want to simply rely on the transition to democracy. The Polish FOI, after all, does not open communist-era archives to the public (a different law does that) and it doesn’t eradicate secrecy laws from that era either.

3. After moving through a section where I return to original intentions of FOI, as understood by FOI advocates and based in the Enlightenment, I use the history of the passage of the American FOIA as an example illustrating the transformation of information openness from a highly moralized discourse and into a more diverse program of rights, revisionism, efficiency, and even markets. I especially want to highlight the accompanying institutionalization of the FOIA process which demands a consistent and coherent bureaucratic implementation of the law.

4. I critically examine an essay by FOIA advocate Thomas Blanton on the proliferation of FOI law worldwide as a way to explore the international community which, rather ironically, Blanton argues is actually quite weak. Instead, he points out a set of fundamental points for all FOI laws, which I recognize as a shared legal logic, that has allowed for the proliferation of similar-minded laws.

5. If #4 is the case, then I believe it implies that the circulation of policy initiatives such as FOI or anti-corruption require a certain type of transformation of moral discourses of resistance or reform into acceptable and privileged logical discourses such as economics, statistics, or law before any effective movement in elite policy circles can occur. So, I briefly return to the original scene in #1 to explain more fully how all of the organizations involved in the Polish FOI law are somehow linked to one or more of these logical discourses.

So, that’s it. I tried to make #5 bring us back to points made earlier, but I’m not sure if everything is so nicely tied up. If I was to summarize the chapter in one sentence, I suppose I would call it an explanation of what the intentions of the Polish FOI are and aren’t.

(ed. note: if yesterday was the worst day of the year, i'm going to have a damn good year. - 1.25.2005)

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It is perhaps fair to state that this process of transforming moral discourses of resistance or reform into acceptably “logical” discourses such as economics or law must precede any effective movement or circulation of policy initiatives throughout the world. This helps explain the specific groups who brought FOI initiatives to Poland, both were connected to international “logic” communities, though not necessarily the international FOI community.

The other coalition consisted of the Center for Monitoring Press Freedom (CMWP), the Stefan Batory Foundation, the Institute for Public Affairs (ISP), and members of the Helsinki Foundation for Human Rights (HFHR). CMWP concentrates on both problem-solving issues for journalists and actively promoting press freedom. If, for example, a journalist is denied access to information, CMWP attempts to intervene on their behalf, often through legal avenues by hiring out consultant lawyers. CMWP mainly deals with law, but is also tied with international press freedom organizations. The Batory Foundation is the local chapter of the Soros Foundation’s Open Society Institute and receives much of its funding from OSI. The Batory Foundation consists of several programs, including the Anti-Corruption Program which contributed to the coalition. The Foundation, more generally, is recognized in Poland and internationally as home to many of the biggest names from the Polish resistance, such as Adam Michnik, one of the members of the original board. This allows the Foundation a great deal of influence in international circles of civil society and while some of its programs deals directly with the public through education, training, or small grants, it is mainly a location for lawyers, lobbyists, and academics. ISP is also a research and lobbying group. It strongly emphasizes the production of quantitative data for economic purposes and the analysis of increasingly complex public opinion polls in the interest of informing policy decisions. Andrzej R., the main author of the coalition’s information access law draft, is a founding member of the HFHR chapter in Poland and has spent most of the years between 1989 and the present working on various human rights issues, policing, and press freedom. While the entire organization did not place its support behind the coalition, we can still fairly characterize it as a group of lawyers, academics, and activists who seek to help either individuals or causes related to issues as varied as immigration to police abuse.

[all groups are 1 – part of policy/lobbying arena 2 – using the same forms of prviliged knowledge (quantitative or legalistic) 3 – select & elite members who are recognized experts/not grass roots or popular movements]

All of the organizations, regardless of which coalition they supported, share similar attributes which could have allowed either coalition to have successfully adopted concepts from an international arena of policy or advocacy issues into national legislation. First, they were all involved in the sphere of policy, law, and lobbying. Second, they all either produced, promoted, or responded to the same forms of privileged knowledge, namely quantitative or legalistic. And third, the organizations were constituted of elites recognized as experts, rather than grass roots advocates or popular movements.

Although I could not corroborate the exact “origin story” of the access law, Professor K. first told me that he brought the idea to Poland. In the late 1990’s, he attended a talk given by a member of the United States State Department in Bratislava at an anti-corruption conference which described the utility of FOIA in preventing or fighting corruption. On returning to Warsaw, Professor K. began to make plans with others to first research and then pass such legislation in Poland. However, Henryk Wujec claimed that plans for an access law predated that coalition, that on his initiative, FOI research had already begun in parliamentary circles in the mid-1990’s. In speaking with Andrzej R., he showed little interest in any origin story for his coalition, but merely alluded to the idea being in the air at the time. Of course, Hungary had the first FOI law in Eastern Europe in 1994 and a number of other countries in the area had already passed FOI law’s between 1998 and 2000, Poland was one of the last countries to follow suit.

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As Blanton, head of one of arguably the most influential FOIA advocacy group in the United States, readily admits, the international FOI movement is relatively disorganized. Several organizations with a degree of international appeal exist. The National Security Archive has sent its experts to other countries and has participated in international conferences related to access and free speech. The Open Society Institute’s Legal Program runs a subdivision concerning itself with FOI, but this division also works on freedom of expression issues, too. The British NGO Article 19 has an international FOI program which offers aid to countries with incipient FOI laws and actually provided expert opinions to the CMWP’s draft of the Polish information access law. In addition to the handful of organizations devoted to international FOI proliferation, several websites serve as an information clearinghouse and a way for the community to read FOI news from throughout the world. Email listservs exist for individuals to post questions, queries, or state some specific problems, but the discussion is hardly brisk.

The most general cohesive factors aligning FOI advocates worldwide are the morality of openness and a common vocabulary of legal processes or legal logic. For example, Blanton outlines the five fundamentals of effective FOI statutes worldwide (2002: 56-57). Through analysis of these fundamentals, we can elucidate universalizing patterns of political reorientation sought and shared by all openness advocates.

“First, such statutes should begin with the presumption of openness” (2002: 56). This presumption turns a previous assumption on its head, that the state owns the information it produces and has absolute right over its domain. But further, it attempts to re-orient the relationship of citizen to the state by holding the state accountable to the citizen, rather than the state holding power over the citizen. This re-orientation is not new, it is certainly part of democratic tradition. But, the inclusion of information into this re-orientation is new and it attempts to bring a new object, state-produced and controlled information, into the arena of accountability. This statement suggests that openness should be understood as central to the functioning of a democratic state and not a special right or afterthought which merely complies with a democratic image.

“Second, any exceptions to the presumption of openness should be as narrow as possible and written in statute, not subject to bureaucratic variation and the change of adminstrations” (2002: 56). Here, Blanton calls for an end to subjective or even random decision-making within the bureaucracy. FOI advocates acknowledge the need for a strict rule on which to determine access decisions in a consistent and orderly manner, FOI must be a scientific process.

“Third, any exceptions to release should be based on identifiable harm to specific state interests, although many statutes just recite general categories like ‘national security’ or ‘foreign relations’” (2002: 56). This mostly reiterates the second point, bolstering the argument for consistency by demanding specificity for any decisions to withhold information. The trouble with “national security” or similar categories is that the requester cannot be certain what qualities fall under such broad categories.

“Fourth, even where there is identifiable harm, the harm must outweigh the public interests served by releasing the information” (2002: 56). This would force the state to weigh the importance of public release and compare this interest to that of secrecy. Again, if the state’s decision is consistent and precise, then it would be forced to, at the very least, bring its reasoning to a forum open to the public. If this is the case, then at least some degree of information can be surmised from the public process of declaring why information is withheld. So, even if the state decides in favor of secrecy, it should be forced to do so in a transparent and accountable manner, as opposed to a more paternalistic blanket refusal.

“Fifth, a court, an information commissioner, an ombudsman, or other authority that is independent of the original bureaucracy holding the information should resolve any dispute over access” (2002: 57). This fundamental shifts the locus of decision-making and weighing forces of public interest or secrecy to a more independent arena. While FOI advocates concede that sensitive and classified material can only be assessed within the boundaries of the state in which it is created, they seek to establish a fellow community or organizations of information access experts within the state who can potentially dialogue intelligently with them or act as the expert conduit for access requests. Again, this attempts to take power away from bureaucratic subjectivity and force the FOI process to be more consistent, specific, and accountable.

In general, this legalistic expert community of international FOI experts and organizations offers more weight and attention to these and other legal fundamentals as opposed to examining the social and cultural environments within and beyond the bureaucracy. If they refer to these environments, they do so simplistically as criticizing a “culture of secrecy” or promoting a “culture of openness,” but the dynamics of these cultures remain unclear. Blanton acknowledges this ovemphasis and suggests that free media and civil society may actually be more important than the force of more logical legal arguments, but adds that traditions of dissent and resistance may hurt the emergence of the FOI movement because it could lead to tension within the relationship between the access community and the bureaucrats they must work with. As such, this investigation into the cultural side of information access worldwide represents the first such work of its kind on this scale. One FOIA lawyer in America with whom I spoke was excited by the prospect of such work, adding that most FOIA scholarship was quite dry and not particularly useful. However, it is not difficult for requestors in America to tap into a wealth of practical knowledge concerning the way the FOIA process really works or functions most effectively either through articles, websites, or the possibility of personal contact. But in Poland and other countries with a new access law, such competency is not as easy to come by and may rely more so on one’s status or relationship network. (I will return to this issue of the practice of information access later, in my section on how access really works in Poland)

This artificial division between legal and cultural logic obscures two things. First, that the FOI community’s legal logic is, in fact, a cultural logic. And second, that this logic actually seems to promote the circulation and proliferation of FOI worldwide. By moving away from moral argument and into a legal argument and model for how and why democratic states can establish a properly accessible open system, this discursive logic translates easily to policy elites worldwide. While the wider issue may appeal to more radical or popular reform groups throughout the world, the legal language of FOI fundamentals represents a much more advanced stage of development of openness, a stage which actively engages with the central tenets of democracy, rather than acting as vocal opposition to established tradition.

It is perhaps fair to state that this process of transforming moral discourses of resistance or reform into acceptably “logical” discourses such as economics or law must precede any effective movement or circulation of policy initiatives throughout the world. This helps explain the specific groups who brought FOI initiatives to Poland, both were connected to international “logic” communities, though not necessarily the international FOI community.