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Polish administrative assemblages, part 2

After the Solidarity party lost power in the elections of 1993, the post-Communist Alliance of Left Democrats (SLD) led the new majority in Parliament and created a government more sympathetic to big bureaucracy and maintaining the continuity of their expertise into the democratic transition period. But in 1997, the pendulum swung back to the post-Solidarity parties and the Election Action Solidarity (AWS) party was the major winner. The AWS government was led by Jerzy Buzek who became Prime Minister. Prime Minister Buzek proposed sweeping reforms throughout the administration, from health care to education. In all of these reforms, the new government faced struggles from within the administration itself which resisted the changes.Po

As a general strategy, Buzek moved to bring the bureaucracy under control, re-orienting its power structure to both give the Prime Minister’s Chancellery Office more command and de-centralize administration. While these goals may appear paradoxical, in fact they both aimed to remove power away from the entrenched bureaucratic apparatus which, according to the Buzek government, placed obstacles in the way of more efficient and effective government operations.

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.

Posted by michael at 11 lutego 2005 12:10