i'm sure all my faithful blog readers are seriously disappointed by my lack of recent output, but i was on a mini-vacation last week with janelle. see her photos here:
http://therealjanelle.typepad.com/the_real_janelle/2004/03/and_mail_a_post_1.html#comments
and now i need to get back into the swing of finding interviews. it's a difficult hunting process. for example, i met a friend who works in local government and he has scored me an interview with that administration's webmasters who have to work with info access on the government interface with citizen level. here's an excerpt from his email to me about setting up the interviews however:
Hi, Michael
I talked about your reaserch and interviev with two guys and they agree. But
I'm affraid you have to use official way before, because they don't want to
talk to you without permision of their boss. I came to their boss and she
told me that you should have permision from Burmistrz. Fucking
bureaucracy!!!!!!!!!!!!!
So you have to write a letter to Burmistrz and probably after that he puts a
person to talk to you. I send you a draft how this letter should be written.
To letter you should add info that you send me about your research and it
will be best if you have a letter form your Uniwersity that they ask
everybody to help you with your job. I'm afraid it is absolutly necessary to
have something like that to make research in Poland.
So if official way doesn't terrify you I can give them all this documents
that you prepare and sign.
I also corrected a little polish version of your project and removed word
corruption, because I'm affraid it could close you the door to the Office,
and could makes lot of troubles for me.
_____________________________________
No one wanted to talk to me today, but I felt like this was a fascinating piece of fieldwork data...
The brief, but constructive critical commentary conversation between Elitza and I helped lead the direction of my investigation into the purpose and uses of corruption. Suffice it to say, I do not know anyone who has critiqued “corruption” in this manner in Poland (as for other places, I don’t know of any either). Therefore, I suggested this idea to several people here and raised the question in different terms in an interview yesterday with Grazyna Kopinska, head of Program Przeciw Korupcja, Fundacja Stefana Baterego (Anti-Corruption Program, Stefan Batory Foundation – the local branch of the international George Soros Open Society Foundation).
It was more so in conversation than question form, I suggested that one of the possible reasons for fighting corruption rests in the push by international organizations, whether they be financial or political, to battle corruption in order to have a stable market for investment. For example, the EU would be reluctant to send funds to a “corrupt” country because of uncertainty regarding the flow of those funds to intended targets.
She agreed to a certain extent, but pointed out, more or less, that Poles are not the lackeys of the World Bank, the EU or anyone else. She is in a very powerful position as a key representative of what goes on in Poland in regards to the corruption environment and she explained that when she talks to business leaders she stresses the need for transparent and stable markets, but when she talks to political leaders she stresses the need for representative democracy and effective governance. She is aware of many arguments and motivations for the reduction of corruption and uses them as tools. Her style and that of other leaders in this field could rightly be called situational.
This finding dramatically complicates a critique of globalization because while on one hand we could call these situational actors agents of globalization, we could also consider them in their local context as biographically and emotionally invested. Kopinska, for example, played an important role in KOR in the 1970’s and Solidarity in the 1980’s. She was on the Warsaw city council in the 1990’s as a representative of Unia Wolnosci, a post-Solidarity party. Her entire biography was wrapped up in the democratic opposition, captured by ideal dreams of Poland as a functional and participatory democracy. And I would reference again Jacek Kurczewski’s (see earlier blog entry) comments on disgust as a motivating factor in Solidarity and still today in the fight against corruption.
These factors crucially motivate her, but the more globalized appeal of the other arguments pragmatically support her position, especially in relation to other global actors and institutions.
Last Friday, I spoke to the Senior Communications Officer of the World Bank office in Warsaw and we discussed the history of the study of corruption in Poland and within World Bank policy worldwide.
The World Bank sees corruption as one of the biggest problems obstructing one of its primary goals, reducing poverty in the world. In the Bank’s 1999 report, “Corruption in Poland” they invoke FOI as a way to combat corruption:
“The integrity, efficiency and transparency of all the organs of the state throughout all their operations are the main guarantor against corruption… Improvements in targeted problem areas are unlikely to be sustainable without a strengthening of the public sector more generally. this will need to be complemented by a Freedom of Information Act providing access to public sector information” (25)
The 1999 report was highly influential and well-publicized. It could be pointed to as the report that, for Poland, transformed corruption from an academic study into the domain of serious high-level policy and institutionalization. In terms of publicity, the report is notable because it was submitted to the government as a secret consultation document intended for officials to comment upon. 4 months later, the report was leaked to the press and the World Bank went ahead and recognized it publicly. While the report is notable for its methodology (not simply comparative numbers like the Transparency International Corruption Perception Index, but qualitative data based on interviews as well), there was one piece of information that captured the attention of the entire country, contained in footnote 13 on page 7 of the report:
“In 1992 the price of blocking amendments to the Law on Casinos was reported as $500,000; more recently, it was the equivalent of approximately $3 million (interview with Parliamentarian).”
This footnote brought about a giant uproar that seized headlines. The prosecutor demanded the World Bank tell who the Parliamentarian was (they didn’t, they only re-affirmed the source’s reliability) and the president of the Parliament blasted the report as irresponsible, an attack on public trust in the Parliament. The report has been remembered as revealing that $3 million dollars is the going price to buy a law in Poland.
But there are other reasons for the influence of this report. The data is credible and convincing, with research carried out by an entity many regard as independent from government interests. And the report outlines a strategy for reform that most academic studies of the problem lack.
Also of interest for anthropologists, Janine Wedel was noted as a consultant to the project and the report, lending an ethnographic angle to the findings.
I have spent a lot of time here tracking down the story of the passage of the access bill and, in turn, the corruption studies. that discourse has had some real effects in this country: the passage of a slate of anti-corruption laws which has then resulted in prosecutions, investigations, etc. but I think of this scene in moral terms, telling people what is good and bad, translated from the terms of legal/illegal. don’t do this, do that. but when it comes to curbing behavior, this way of doing things often results in great resistance. simply put, many people don’t want to be told what to do or not do.
what of an opposite way to state this case, instead of telling people what not to do, what about doing things in a way that others would care to imitate? are there any models of openness that exist in Poland? I think there are.
today, I talked with kuba wygnanski of KLON/JAWOR (meaning: maple/sycamore), an independent and apolitical NGO that doesn’t get any press time and is rarely asked for political commentary by media outlets like the transparency NGOs. but at the core of K/J’s mission is information access and dispersal. find and gather information, give that information to people who want or need. an example: a series of pamphlets entitled “know your rights” for handicapped people, people without a home, people without a job. another example: an infoline and internet service where people answer questions, mostly from other NGOs asking technical questions about legal issues.
K/J is trying to do away with the concept of the NGO political monster, who tries to use his influence to control politics or other arenas. the old habits of egoism and hoarding may have made sense to some NGOs when resources were limited in the past, when the major function of many NGOs was to simply stay alive. in a “malthussian” environment, sharing information seemed absurd. but a new system is emerging thanks in due part to EU funds, which kuba says has the possibility to change everything in this direction. the NGO environment still has its dinosaurs, but group hunting will change all that. these are the metaphors he used.
he also directed me to some other similar-minded groups advocating, for example, e-governance and open source.
so what’s difference between this and that, the corruption and the access bill? KLON/JAWOR represents a model for practice, for other groups to imitate. they give and give, and they still manage to thrive. perhaps this is simply their niche, to be the NGO organizing other NGOs and so it makes sense. but this is a spirit as well, kuba kept calling it K/J’s “obsession” from the start (they were founded in 1990!). will the model catch? it’s impossible to say now, but its existence, I feel, is significant.
jacek kurczewski is a professor of sociology, as well as a former solidarity leader and member of parliament after 1989. he has also been a key figure in corruption studies in Poland. in exchange for a lecture in which I was asked to “propagate the ideas of your department” to his graduate student seminar, we had a long conversation about the study of corruption in Poland. he revealed for me some essential information concerning the development of this discipline – previously I had recognized its relatively recent emergence as a rise to popularity and influence. but jacek pointed out the key changes and legitimation moves. let me try to recount in a chronology of the last 25 years.
in 1980, kurczewski led a research seminar at the polish academy of sciences (PAN) concerning sociology of everyday life. using all possible methodology techniques, some research pointed to corruption in everyday life (i.e. bribery, clientelism, nepotism, etc.) as an important subject. but also in 1980, corruption-related issues made their way onto the agenda of solidarity in the form of protest against abuse of power and unjustified privileges. but as kurczewski less formally explained, while solidarity fought for economic and political freedoms, a third cause often remains forgotten: an aesthetic, moral disgust of the communist system and their lack of honesty. this third cause was the kernel of motivation resting behind the study of corruption.
in 1981, with the declaration of martial law, general jaruzelski publicly declared battle against two forces: first, he sought to pacify resistance movements (not wanting to recognize solidarity) and secondly, he promised a campaign of honest government, a war on corrupt elements to “clean the ranks.”
* from what I have read, it seems that the topic of corruption was addressed during the 1980’s, as well as earlier studies though they seem to deal with the closely connected topic of social deviance. however, jk didn’t really go into this literature
in 1989, jk attended a un conference on abuse of power that had an impact on his outlook towards openness and corruption, particularly in his exposure to scandinavian models of open governance. in 1990, for example, he advocated that solidarity’s political party call 1990 the year of clean and transparent power, an idea that was rejected. jk laughingly recalled this, both ironically wondering how he could have been so prescient concerning future problems and noting the lack of interest in the problem more generally.
*once again, based on my readings, the study of corruption continued through the 1990’s with greater force than in the 1980’s, and was complemented with a growing number of scandals and affairs published in newspapers.
but something dramatic happened during the late 1990’s, something that really transformed the impetus for corruption studies, the “irrational” side of moral and aesthetic disgust, into a rationalized and systematic study that could inform policy on a global scale. specifically, these were expectations from EU enlargement and the world bank (+ OECD, soros open society institute, and even the American embassy) pressing for a reduction of corruption. these obligations gave the study of corruption a “pragmatic legitimation.” at the same time, the rationalization of the discourse, in its attempts to rid itself of its moral/aesthetic element of disgust, allowed its critics to easily disarm the arguments. how, for example, can you collect accurate data about secret relationships and how can you gauge the ubiquity of the problem accurately? the expectations of the EU and the world bank are often inconsistent, resulting in an under-analyzed and over-simplified description of this problem. corruption, for jk, is a phenomenon without clear boundaries, based upon changing moral standards. rectifying the problem cannot, therefore, be found in new laws attempting to curb the behaviors of the corrupt, but would instead be focused on good models of behavior (ethics). unfortunately, the good models for politicians are all long dead.
Chapter #(5):
A Measure of Success & Failure: The Implementation of UDIP
“Well, I know that in America, an entire community of information access experts have sprung up around our FOIA, but this had taken many years. In America –
“But how can you say this? You cannot compare Poland to America in this way! You cannot expect us to be like that. You should instead compare Polish information access with the American situation 15 years after the Revolutionary war, at the end of the 18th century.”
At a meeting of a small circle of open software advocates at a technical institute in Warsaw, I did not intend to set off a firestorm of angry criticism. However, that was the effect my remarks had on one member of the group. While I hoped to offer an optimistic model for the future of a Polish information access community, I instead received sharp criticism for suggesting some sort of comparison in which Poland appeared backwards. Much more than just an indicator of Polish sensitivities, the exchange revealed the sense of difficulty and pessimism to which those Poles most aware of the complexities of information flows understood their situation. Of course, strictly speaking, a comparison of present-day American information access communities to their Polish counterparts would be as invalid and unequal as comparing 18th century America information access communities to contemporary Polish communities. The technological gap alone makes this nonsense, but further, no such access law existed in America at the time. The criticism of my statement, among other things, reveals the awareness and perceptions of unmet needs of proper legal implementation of the Polish information access law, as well as a not-yet emergent community of information access experts.
This chapter concerns the implementation of the Law About Access to Public Information of 2001 (heretofore known as UDIP (Ustawa o Dostepie do Informacji Publicznej)). By implementation, I refer to the set of practices set into motion by the Polish government in its efforts to carry into effect and fulfill the promises of the law. But implementation can hardly be separated from the monitoring of the implementation of the law conducted both inside and outside of the government. Proper assessment requires the generation of representations of implementation and the practices involved in carrying out the law. The assertion by bureaucratic institutions that they follow and have implemented the rule of this law or any other often does not suffice. Monitoring, like any form of representation, attempts to draw an accurate picture of what happens in the world, but deals with a particularly complex process taking place in many different places simultaneously. For the sake of utility to policy-makers, monitoring must simplify and spot trends in behaviors, ultimately generalizing or over-looking the particularities or situatedness of the actual practices.
The purpose of assessing legal or policy implementation inevitably implies two things. First, that the phenomenon under question is too large or vast or widespread to be understood immediately or first-hand. Therefore, proper monitoring requires some form of representation, preferably scientific and objective, to present us a portrait of how the law operates generally in disparate locales, what general tendencies have occurred, what has gone wrong and what has gone right. Second, the need for monitoring implies something amiss with implementation. For example, the Polish Supreme Chamber of Control (NIK), which regularly audits governmental institutions, claimed that the press signaled incidents in which the government had evaded its UDIP responsibilities, thus provoking a UDIP audit. Simply, it makes little sense to conduct monitoring if everything appears in order.
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, it remains unclear whether its implementation is a success. Even many within the Polish bureaucracy have cited either a lack of compliance or overly ambiguous rules. The NGO sector generally and the NGOs responsible for the law’s creation in particular have been mostly 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 and contradictory legal codes. At the same time, some individuals, such as UDIP’s author Jan Stefanowicz, have heralded aspects of the law as successful, particularly the provision for creating online information bulletin sites. Furthermore, the semi-independent state accounting office NIK released an audit at the end of 2004 finding positive results of UDIP implementation in the area of the country which they investigated. Yet, as no group has begun to stake claims for the responsibility of UDIP’s overall implementation success or taken the lead in advocating for stronger implementation, it may seem that Professor K.’s proverb has held true: failure, in this case, is truly an orphan. At least, until something changes.
This chapter does not intend to thoroughly analyze the implementation of UDIP, but rather presents different interpretations of the law’s implementation and its failures within and beyond the bureaucracy. Beyond a periodic comparison with more developed FOI traditions throughout the world, this chapter highlights the incipient arenas, as well as entrenched perceptions for generating knowledge about bureaucrats, oversight agencies, and a community of citizen requestors in Poland. With this in mind, it is still useful to understand the early criticisms and commendations of the law’s implementation because these various critiques form a somewhat coherent portrait of future visions for information access. Beyond that, this chapter turns to the various modes of measuring UDIP implementation, drawing comparisons again to other national contexts and their equally challenging attempts to measure FOI effectiveness with special emphasis on the effect of this research for legal reform, and practices of bureaucrats and requestors.
Failure Breeds Success
In May of 2004, I arranged to meet with Marek G., the editor of the Bulletin of Public Information (Biuletyn Informacji Publicznej or BIP) for the Ministry of Internal Affairs and Administration (Minister Spraw Wewnetrzych i Administracji or MSWiA). The MSWiA building is located within a larger complex of military offices just south of downtown Warsaw. Upon moving through the main gates of the complex, I proceeded to a guard stand next to the road and asked for directions. After inspecting my passport, I was directed to the building in front of me which led me through a large archway and into a rather secluded courtyard. I walked into what appeared to be the main lobby, though the building felt eerily silent and empty. There, I checked in with a guard behind glass who called Marek G. and asked me to wait. The only other person there was also waiting, an Australian woman with a video camera. They refused to allow her to shoot footage of the interior of the building. After ten minutes, Marek G. came downstairs and introduced himself, taking both the Australian woman and myself through the metal detectors. He had been instructed to take the Australian woman to an office near his own.
Marek G. is a young man, in his twenties. He wore a slightly ill-fitting dark suit and very short hair. His demeanor was professional, straightforward, and sincere. There was no small talk conversation as he led us through the main lobby and into the elevator. The lobby was a plain affair, off-white walls and a tall ceiling, but mainly dominated by open stairwells leading up through the building which could not have stood more than five stories high. It was purely communist architecture, austere and severe. From the expansive and airy lobby, the elevator strangled us. We stood close to one another and maybe even closer to the ceiling just inches above my head. As the elevator doors re-opened, we slipped into the hallway in front of us. Once again, an emptiness pervaded the space. The hallway stretched approximately 200 feet. Doors lined both sides of the hallway, evenly spaced at 15 or 20 foot intervals and perfectly symmetrical. Not one door stood ajar and not one human presence could be felt. The hallway had no windows, the building felt hermetically sealed. We turned and entered a doorway. Marek G. explained to the secretary who the Australian was and then the secretary asked her to sit and wait. We left the room and I followed Marek G. several doors down to his office.
Reflecting the rest of the building, Marek G.’s office was sparse, off-white. A large desk, Marek G’s desk, dominated the room. In total, the room probably stood 15 feet long and 8 feet wide with tall ceilings and a large, vertical window. Another man, a small man, sat facing the corner, but did not turn to recognize our presence as we entered. He hunched himself over his typewriter, as I tried not to stare or laugh at this Kafkaesque detail. On occasion during our interview, the man would leave the office and return at random intervals. He was not introduced to me, he was presumably Marek G.’s assistant, though he did not talk to Marek G. Marek G.’s desk was remarkably clean. A computer sat atop a side table. At one point during our discussion, while we spoke of a problem case in which the ministry denied information access to a woman, Marek G. opened a desk drawer, carefully and immediately pulling the case file. It looked as if the drawer was empty, save for this single problem file.
In some manner, our conversation and Marek G.’s ruminations on openness belied the austere surroundings which evoked PRL-era bureaucracy, but, at the same time, the space served as a reminder of those traditions, the environment in which Marek G. sometimes reluctantly existed. Speaking in a relatively candid manner, Marek G. shared with me many of his concerns about his Ministry’s failures in implementing UDIP, his own personal struggles in implementation, and his insights into the manner by which bureaucratic practices change and would soon change. At this point, many months into my fieldwork, I was unaccustomed to speaking with officials within the bureaucracy in such a candid manner. Certainly, I encountered such honesty, but it was rare. More common was the spokesperson or local official who explained that the law dictated bureaucratic practices and the government always functioned in a proper manner.
Working from within MSWiA offered Marek G. a unique perspective on UDIP because that Ministry specified the implementation details in its rozporzadzenie. In the Polish legal system, the ustawa is the highest level of law. Parliament passes an ustawa, often with specific instructions inside of the law concerning the establishment of rozporzadzenie (literally, a decree or order). Usually, the Prime Minister writes the rozporzadzenie instructing the government how to enact and implement an ustawa in more precise detail. In the case of UDIP, it appeared that the Prime Minister assigned MSWiA in charge of the government’s oversight and enforcement. But the rozporzadzenie only offered rules concerning the implementation of BIP. As the central locus for administrative organization, it seemed that MSWiA would play a key role in establishing the course of information flows within the Polish bureaucracy. However, the rozporzadzenie fails to specify how oversight on UDIP should function. Marek G. explained that officials are not expected, even discouraged it seems, from interfering with implementation in other ministries or departments:
the rules of this law authorize the Minister to write this rozporzadzenie and to define how this BIP site should look, the standards of this site. But there is no rule that says the minister should check how these rules of the main act are realized by other institutions. So we only made standards for these websites and made the national website. And that is all we could do. There are no specific rules we can use to discipline other institutions for not realizing the rules of these two acts, the ustawa and rozporzadzenie.
So, if the rozporzadzenie fails to assign oversight responsibilities, then there is effectively no administrative oversight from within the bureaucracy.
Marek G., who took great pride in his work as the Ministry’s BIP creator and webmaster, seemed frustrated with this lack of implementation. He told me that although he “was not supposed to,” he often examined other BIP sites. His site for the MSWiA and the national site he worked on are exemplary models often used by other sites. One administrative journal recommended to officials to use this website as such a model. In addition, e-administration companies offered to create BIP sites for government offices or any other organizations receiving public monies and required by law to create a website. So, models existed and many of the BIP sites look similar while the rozporzadzenie sets out some general rules concerning the content of the website. But in the end, no one inside of the bureaucracy can or will attempt to ensure that all of the BIP sites conform to the rules laid out in the ustawa or rozporzadzenie. The measurement of a good site or even a strictly legal site remains inexact.
As no arm of government is held responsible for following the law, Marek G. explains that the modus operandi of Polish administration, echoed by some of his colleagues I talked to, is to simply believe that all bureaucrats understand and follow all rules and laws:
So, how does the ministry evaluate the BIP site and monitor? I think you’ve already answered this question, but let me address it more directly.
Yes, but let me elaborate. For other site’s models, institutes or offices go to the national site, the head site. And at this level, we are checking that everything is correct at this site. Everything is working, the standards of rozporzadzenie are realized at this site. I think we are not allowed to do this, but as you know, we are checking that this site is okay.
But does the rozporzadzenie say you can’t do this?
No, but the general rule is that we can’t do more than the law tells us to do. So, this is the general rule. We have to strictly realize the law. We can’t do anything more than the law says, we – it says nothing about whether we could or couldn’t.
This the general rule of how administration works?
Yes, all administration of institutions, the police also, every institution.
So, for example, one question on the FAQ [located on the MSWiA’s BIP information site for other institutions] concerns whether an institution can put more information on its site than required by the BIP; if it is normal practice to strictly realize the law, then this is uncommon?
Yes. But, you know, this rule says that there are some types of information that have to be published and then there is other information that may or may not. So I think this is realization of the rule. When we think something could be published because there is no security risk, no protection of privacy (dane osobowy), then we could publish this information. But as I know these websites, there are not many examples of that kind. Almost everyone is publishing only that kind of info that he has to publish, not more. We try and get our site, MSWiA, to publish more info than is strictly required in this law.
The “general rule” and lack of central oversight effectively means that each institution subject to UDIP must realize the law on their own terms, possibly even in their own manner.
If oversight cannot be enforced, training and information campaigns appear not to bolster common ground on the law either. Marek G. explains that his Ministry, and Polish administration more generally, has little money to produce a widespread, concerted effort to train officials on the ins and outs of UDIP or any other law, for that matter. In the case of UDIP, press conferences were held by the Minister, letters were sent to all government institutions informing them of UDIP compliance, and articles in journals widely read by Polish bureaucrats.
For the most part, it seems that the limited information and training campaigns focused on lists, of BIP requirements and rules as laid out in UDIP, but not interpretation. As Marek G. and other Polish bureaucrats I talked to explained, the rules of UDIP are sometimes general, sometimes overly general. As a result, different institutions may interpret and practice the same law in different manners, but again, no Ministry or department has either the power to assert proper interpretation or even serve as a central office to coordinate interpretation. Marek G. explains:
I think the main topic of the [training] seminars was BIP realization, not interpretation. Because we can’t make that kind of interpretation; because we are not allowed to directly interpret this law for everyone. We could interpret for our own Ministry, for our own use here, but not for everyone. Because there is no such law in Poland that one institution could interpret the law for everyone. There is no such possibility.
In another interview with a spokesperson from the prokuratura (the office equivalent to the Attorney General), I was told that the ustawa which organized their office and its goals superseded UDIP and therefore, they interpreted the law as essentially irrelevant.
Because the law is still new, most offices have not yet dealt with many requests specifically citing UDIP, much less problematic instances which might force the establishment of standard or best practices. At MSWiA, Marek G. showed me the case file for a case in which a citizen requested information through UDIP and the Ministry refused to disclose these records. In response, the citizen sued MSWiA and won her case. As a result, the court fined the Ministry and the Ministry, in turn, reprimanded those officials responsible for illegally withholding the information and not acting in compliance with UDIP. Marek G. explained that, as a result of this one case, he witnessed transformations in the behavior of some bureaucrats now more cautious or at least conscious of the power of this new law.
*
“I always have this close to me,” Marek said, referring to the open file in front of us. “Because there are so many documents here that show how to carry out this procedure, how the procedure should work. I learned a lot with this case, studying this case.”
The file in question was not a model of success, but his Ministry’s biggest error in its implementation of UDIP. It stemmed from a request made two years earlier by two women who claimed that a non-uniformed policeman attacked them at a supermarket. MSWiA contains a wide variety of sub-departments, including the police, but was unaware of the attack allegations at the time of the request. In their request, the women invoked UDIP to demand personnel documents and other private information about the policeman in question. Officials at MSWiA denied the release of such documents, citing the privacy exemption. However, the officials failed to address the entirety of the request, replying to only the first two of four queries. Upon administrative appeal, officials at MSWiA again upheld their initial ruling and failed to even respond to their appeal. The case went to court and the women won their case, but not their right to know:
we had to pay, I don’t know, five thousand zloties (approximately US$1,250) and realize this request. So, the court told us we must respond to the other questions. And the answers for the questions were brief, only 5 or 6 words. It was a very simple request and yet the case took 2 years. They made the request 2 years ago and it finished about 2 months ago. It was a very simple case, but no one could read this request in the right way.
The story represented not a failure of the Polish citizen’s right to know, but a breakdown of technical rationality within the bureaucracy. The bureaucrats neglected the regulations and the courts demanded that they adhere, but the court stopped short of demanding that MSWiA answer the women’s questions in-full.
This particular case, one of, according to Marek G., a very small number of information refusals at MSWiA, resulted in enhancement of bureaucratic rules, practices, and expectations. As a result of the lawsuit, the Ministry reprimanded several bureaucrats and refused to pay them their salary bonus. Marek G. believed these repercussions would certainly have an impact on future cases. “The bureaucrats,” he told me, referring especially to the older bureaucratic mentality, “ now treat cases of public information more seriously.” But in addition to the gravity of procedural interest, Marek G. explained that the Ministry changed the internal rules by which they handle information access requests. The case also generated discussion within the Ministry concerning those officials directly responsible for information flows. Because the law was still new, those officials failed to completely understand how they would approach such difficult situations, “a few of my colleagues also know that case. And we are trying to realize other requests in the right way, the best way possible because we don’t want another such case. We are learning a lot on every case we make, so the next cases will be much easier.”
Before UDIP, Polish bureaucrats could simply refuse to disclose information, such as in the case outlined above. But the force of the new law now required bureaucrats to respond to all requests, legitimate or not, feasible or not, and whether they would disclose or not. Officials like Marek G. who receive information access requests must refer to the department with the answer to the request for guidance on whether the requested information is confidential or not. They then carry this decision to the requestor. So, if that department refuses to disclose the information, officials like Marek G. must explain that decision to the requestor:
they would have to tell me why this is secret and who personally makes it secret. And when I’m answering, I would have to write: I will not grant access to this document because this is confidential by the rule of this ustawa and, for example, the director of the department on public oversight or public health who declared it confidential. So the requestor should know why this document is confidential and who made it confidential. So I think it’s kind of an open policy of information because we don’t tell people, this is secret and that’s all, we will not tell you anything more. We have to explain why this is secret.
UDIP therefore has no necessary effect on the amount of openness of government information, but it certainly allows requestors to know, in such cases where their requests fails, why they cannot know what they would like to know.
This case highlights the most forceful element of FOI law, not the liberation of knowledge, but the routinization of information flow procedures. And if many observers outside of the bureaucracy criticize an implementation failure, Marek G.’s reflection on the rather absurd nature of the case reveals something about how perceptions of UDIP from those outside observers disrupts their possibility to understand this effect:
they [the requestors] wanted us, the Minstry, to make something. And they were using UDIP. They were saying, invoking an article of the law, I want to know what you will do with the policeman who attacked me that evening? And you know, we can’t answer the question of what we will do with something that we didn’t even know happened. So they wanted us to make something, but this is not the correct way of using the law.
The citizen requestors believed the law would unleash the past, present, and future of the bureaucracy, but instead they found that it would only force the bureaucracy to respond to their request in a rational manner consistent with all other requests.
From within the bureaucracy then, Marek G. measured success not in terms of a right to know or breaking the barriers of administrative secrecy, but in terms of compliance with bureaucratic rules and procedures as created by law and enforced in courts. In the future, he will measure success through court victories or avoidance of court appeals altogether. However, he will not, as many of his critiques below assert, measure success by the level of secrecy he can secure for the bureaucracy. In fact, I found quite the opposite. Marek G. opposes greater administrative secrecy and advocates from within the bureaucracy for as much openness as possible.
Failure is a Tradition: Pessimism
“This law, this is but paper. Like all of the other laws, just paper. It has no power to change people, really change them.” Kazimierz D. does not mince words. Explaining his interpretation of the law’s implementation bluntly and honestly, he stated, “the law doesn’t work.” For him, the law is failure.
Kazimierz D. worked as a journalist for many years and speaks with a cynical wisdom that stems from those years struggling with the communist system and its aftermath. Today, he heads a small technical school which trains college students in journalism, public relations, and communications. Many Poles, especially those of his generation who have passed from one system to the next, share a similarly pessimistic view of the Polish state and its bureaucracy. There are three main reasons Kazimierz D. provided for why UDIP fails to work properly and all three appear to stem more so from his historical and local perspectives rather than concrete data collection. These reasons include a bureaucratic mentality in favor secrecy, a lack of knowledge about both the law and democratic rights more generally amongst citizens and bureaucrats, and the changing dynamics of media and the market.
“The year 1989 was a breakthrough,” Kazimierz D. explained, “but it was not a 180 degree turn, it was a 360 degree turn.” While new political, economic, and legal systems emerged, the people or rather their mentality remained the same. “Censorship has been abolished and this new law guarantees access to information, but mentality problems remain,” he claimed. Based on his understanding of communist bureaucracy, in which superiors “dictated” the behavior of their underlings, Kazimierz D. drew similar conclusions for contemporary bureaucracy. As a result, bureaucrats resist disclosing information to journalists or citizens because they work in the interest of those higher powers. They refuse to disclose information out of loyalty. “Law,” according to Kazimierz D., “has no way to regulate behavior or change people and how they do things.” So, bureaucrats are aware of the law and its existence, but they cannot effectively carry out the law because of this allegiance to power. As a result, bureaucrats simply refuse to release information:
they know about the law, but they do not adhere to it. It is simple for them to block information, they simply label it a trade secret or private data. Blocking information is easy: you get your stamp, ink it, and stamp away: secret! secret! secret! Do you know how this works? Because I don’t. I don’t understand it.
To put it frankly, Kazimierz D. does not believe that the government tells the truth or has any interest in doing so. “No one,” referring to politicians and bureaucrats alike, “wants this freedom [of information] to happen.” The government has an interest in broadcasting information consistent with a strategically created image they would like to present of themselves. There is no place for journalists or citizens to turn for objective and unbiased information about government activities. In particular, Kazimierz D. offered an extended tirade on the offices of government spokespeople, stating that they deal with the maintenance of the positive image of government, “They take part in a strategy of images, of public relations. They do not give out bad information or information that might make their Ministry look poorly.”
Citizens and bureaucrats alike lack knowledge about UDIP, but also about democracy, more generally. Of course, Kazimierz D.’s generalization resulted from his intuition, not solid evidence, “If you were to accurately test the awareness of journalists throughout Poland – and not just the big names and important papers – I am certain you would find that the vast majority of Polish journalists have very little knowledge about the access law or their rights in general.” He further extended this lack of knowledge to Polish citizens, arguing that because democracy is still so new, regular citizens fail to comprehend the rights guaranteed them. Without this lack of demand by journalists or citizens, the state has not been pressured to impart a right to know to its citizens. The process of doing so, according to Kazimierz D. and echoed by many other transparency advocates and journalists, could take a very long time.
Furthermore, the pressure on the state to generate a positive image has become exceedingly important due to the emergent market for information created amongst media sources competing for more sensational information concerning government corruption and scandals. While on one hand, Kazimierz D. believes the state withholds information about governmental corruption or incompetence, he also points out the emergence of a media-saturated environment, as well as what he calls a “moral and political crisis in Poland” brought about by declining economic fortunes. From all sides, it seems, mounting forces impinge upon the very possibility for greater openness. In an environment of heightened crisis, more serious corruption, and greater demand for scandal, the state can only raise its guard and increase secrecy, it would seem.
“Is the average Pole well informed? No! But he does know he’s being robbed! How does he know? Not through government officials.” This type of pessimism and mistrust of government access procedures is quite common amongst Polish advocates for greater information access, especially amongst journalists or in the NGO sector. Many people from different backgrounds and environments echoed identical sentiments of a lack of trust in the state, a rupture of the social contract essential to democratic rule. Quite simply, these Poles question and mistrust their government. Essentially borrowing from the same sources of legitimacy enumerated by Max Weber – though without explicitly referencing Weber – these critics point out a failure of authority to establish either charismatic, traditional, or rational authority. They consider charismatic leaders, such as Jozef Pilsudski, figures of a distant and romantic past. Traditional legitimacy was tarnished by the PRL bureaucracy and, before that, the partitioning powers. A lack of bureaucratic systematicity during both the PRL era and the present one circumvent trust in technical rationality. As a result, the legitimacy crisis that the PRL suffered continues in a similar form, though a different media environment.
Much of the pessimism specific to UDIP’s failure stems from initial expectations or perceptions of the law. Perhaps expectations would be incorrect, as it would assume that Kazimierz D. held the belief that UDIP could produce any change when, in fact, he stated that he believed such change to be impossible. Rather, he perceived the intention of the law to include greater openness in government operations. Either way, he felt disappointed with the law’s failure to create more transparency of government activities, especially the workings of power. In another situation, a member of the successful Adam Smith Center coalition with whom I tried to breach the subject of implementation and effects of UDIP claimed he lacked interest in implementation because he already felt disappointed, “I thought it would reveal to us, for example, notes on meetings with the Prime Minister or others in the corridors of power, but I see now that this will not be the case.”
But the law has disappointed pro-openness advocates not only because of the lack of openness of either bureaucratic or high-level power, but also because of a failure to aggressively utilize the law. Kazimierz D. complained, “even journalists are mostly unaware and misinformed about the law.” In fact, no group, outside of environmental or green organizations – though an access to environmental information law normally subsumes their specific requests – has found a need to use the law. Many of the journalists I spoke with who share Kazimierz D.’s pessimistic sentiments refuse to make a proper UDIP request for the very same reasons Kazimierz D. enumerated when describing the failure of law to transform bureaucratic practices. One Lublin journalist who had been unaware of the law until I explained its concept to him, replied that this law was no great innovation, that it would not work properly, and besides, journalism was a time-sensitive market, “If I had the luxury of researching a story for one week, even this time would probably be too short for me to receive the information I needed through these proper channels.” Another journalist disdained the new law, arguing that it only provided bureaucrats a new reason to withhold information from him. As such, no coherent community of information access requestors or experts exist in Poland and, at least amongst UDIP’s pessimist critics who also happen to include many NGOs that got the law passed, it appears that none will emerge in the immediate future.
The Science of Failure: Generating Knowledge about UDIP Implementation
“The maxim,” concludes Wojciech Przybylski, “that openness of information exemplifies the quality of a democracy is unfortunately confirmed in this data.” Przybylski coordinated an assessment of UDIP implementation for the Adam Smith Center (ASC), the same NGO which helped create and successfully lobby for the law. Several years after this legislative success, Przybylski, on behalf of the NGO, calls the implementation of the law an unmitigated failure. Gazeta Wyborcza, reporting on the findings of the study, wrote, “Research collected by the Adam Smith Center finds that the right [to know] is practically dead and information is also hard to obtain, in spite of [UDIP’s] introduction” (2003).
The ASC, like Kazimierz D., holds a somewhat pessimistic viewpoint on the Polish state. But while Kazimierz D. may speak for a much larger number of Poles distrustful of their government, his pessimistic opinions are based on anecdotes and perceptions which will likely have little effect on government policy. Nor could they, from a pragmatic point of view. As witnessed in the case of corruption, feelings of incense or disgust rarely have the power to transform policy in the same manner as statistics and scientific data. This section examines how and why the ASC undertook its implementation research, as well as investigating a currently incomplete dissertation project by e-governance scholar Marcin Sakowicz which similarly deploys scientific modes of collecting data on UDIP implementation. Their statistics show that implementation has failed, the bureaucracy has broken the rules and failed to comply.
Their data proves this failure and I will not contest it. However, I will posit that the form and method of their research inevitably places the onus of blame for UDIP implementation on the bureaucracy and that failure was quite nearly the only result of the research. Artificially designed to test bureaucratic responses to an “average” or “normal” citizen-requestor, this research frame conceives of citizens as victims of bureaucratic offenses, static subjects unwilling to participate in or negotiate the access relationship and incapable of forming information access strategies. Furthermore, in attempting to standardize potentially replicable and consistent data sets, this research method oversimplifies differences in culturally inflected variables such as desire or curiosity which may drive certain individuals or groups of requestors to more extreme requestor positions. In sum, this form of research oversimplifies an extraordinarily complex and dynamic relationship, but, in doing so, insures that UDIP implementation will be perceived as a failure of the bureaucracy.
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A press release accompanying the ASC report serves as an analysis of its data. The press release highlighted specific figures for media outlets such as Gazeta Wyborcza, whose article states:
In 43 percent of institutions researchers did not receive a response to any of the 12 questions. Only in 22 percent did officials responds to all of them. On average, they were successful in obtaining answers to four questions. The worst was in hospitals, where in 69 percent of cases responses in general were not given and the best was in offices of self-government, where all questions were answered in 29 percent.
The Gazeta Wyborcza article does not specifically reference UDIP in its title, instead using “Officials Do Not Want to Inform about Finances” (11.7.2003) and leading with the statement, “What officials do with our money, every citizen has the right to know. When we want to know, officials – in defiance of law – do not want to inform us.” Only later does the article indicate its assertion on the basis of the ASC report, where it states that according to their survey, the right to know is “practically dead.”
Marcin Sakowicz studies e-governance and the implementation of UDIP, recently completing his doctorate on these subjects at the Warsaw School of Economics. Before carrying out this research, he participated in a program at OSI in Budapest intending to promote research on democracy in Eastern Europe. There, he wrote and researched policy analysis entitled “Problem of Access to Information and Effective Communication at Local Level” (Sakowicz 2001). As a pragmatic and goal-oriented approach to information access which recognizes the implicit distrust amongst Poles in their government, Sakowicz’s policy suggestions are more optimistic than Kazimierz D.’s prognostications. For Sakowicz, the key to better implementation rests in technological development which would allow citizens easier access to information outlets, thus bypassing more traditional routes of access, written or oral requests.
Though his research remained incomplete when I first spoke to him in April 2004, Sakowicz essentially implied that, according to his research, implementation was a failure up to then. He experienced a level of response, meaning any type of response whether successful or not, between 70% and 50%, depending on the region. He also noted long delays in response, procedural violations in which officials questioned his identity and his intent, and low quality or inaccurate information responses. In general, he analyzed the implementation problems as a result of administrative neglect and a continuation of bureaucratic traditions of paternalism and secrecy.
Based on evidence collected through social science surveying techniques, both ASC and Sakowicz asserted a failure of implementation. More precisely, they arrived at these conclusions and authoritatively asserted themselves as a result of scientific design and methodology. ASC conducted its survey of UDIP implementation in 2003 through a private research firm called ESTYMATOR . ASC called its method “anonymous,” making a point of obscuring the identity and the purpose of its requestors. A total of 24 different researchers visited 109 different government offices in Warsaw to ask a set of 12 questions. The researchers followed a careful list of instructions. First, they were to enter the building and locate the individual responsible for providing information at the institution. Then, explicitly referring to UDIP, they would proceed to ask the 12 questions. They would record all responses in writing, providing contextual details. In case of a refusal to disclose, they would inquire the reasons behind withholding the information. In case identification became a necessary requisite for answering a question, researchers were instructed to simply tell them that they were students collecting necessary information for their work. Instructions specifically stated not to offer any personal data, even identification, unless a person of authority, such as police or security, required. The research questions concerned institutional budgets and finances, salaries, as well as procedures for carrying out UDIP and the manner in which the institution made preparations to implement the law. In all likelihood, it should have been quite obvious that these “anonymous” requestors were participating in some sort of implementation study.
Through our conversations, Sakowicz explained his more recent difficulties with research on UDIP and BIP implementation in Poland collecting survey data in a manner similar to the ASC study. For this research, he sent off hundreds of requests to three different wojewodztwo (self-government regions, 16 in total) in Poland, including nearly every governmental institution at all levels in these three regions. Each letter requested the same 12 pieces of information. Along with the mailed requests, he included self-addressed stamped envelopes. One of the key variables of the research focused on the form of request; Sakowicz utilized email, regular mail, and telephone requests. He also attempted to gauge response effectiveness, average days of response, relationship to the size of the institution, and whether invoking UDIP helped or hindered access.
As essential elements of both methodologies, researchers attempted to maintain a sense of anonymity. As an enlightening element of Sakowicz’s struggle to study implementation and a difficulty echoed by others undertaking similar research, requestor identity is a variable manipulated by researchers to assert both a view from nowhere and a view from the normal citizen’s point of view. Although UDIP, reaching a generally agreed-upon standard of FOI legislation, does not allow officials to consider the identity of a requestor to infringe upon the access decision, implementation researchers feel certain that some form of identification takes place. And indeed, they have reason to believe this is true. For one, Polish bureaucratic traditions have involved informal connections which can garner information access. And many corruption scandals, especially those involving public tenders and bidding for government contracts, rely on an unequal distribution of information to bidders, those with special connections receiving better information than their counterparts. In addition, I spoke with one police officer who explained that his office may actually undertake background checks for information requestors. So, suspicions of legal violations have solid grounding, but nonetheless leaves researchers in a conundrum similar to corruption scholars. Identifying the requestor and releasing information according to identity is illegal, but finding proof of the law’s violation is difficult, if not impossible, to come across.
Sakowicz attempted to overcome the identity issue by obscuring his own identity. Instead of Marcin, he often requested information as Maciej, a common Marcin nickname. He would also use a middle name. His last name, however, turned out beneficial. Sakowicz is a “border-lands name,” referring to the region in Poland where he conducted his research. That familiarity, he believed, helped him gain better access, though he had no comparable proof of this. On the other hand, his Warsaw return address, he believed, obstructed greater access and may have made him a source of suspicion. To make matters more difficult, his post office box was under M. Sakowicz and when packages too large for the box came to Warsaw, postal employees would scrutinize his identification and question whether the box actually belonged to him.
In time, Sakowicz explained that many local governments figured out he was conducting research, probably due to the form in which he requested information. Sakowicz sent out each request in the same form, a 12 question request letter. In his desire to request a variety of different types of information, it probably became clear that he was a researcher and not a citizen who needed or wanted to know about a more specific matter.
All of these difficulties were part of Sakowicz’s research goal to appear as a regular citizen who simply wanted to inquire about the workings of his government, but because of his identity and the form in which he requested information, officials often questioned his motives for inquiry. Questioning motives of the requestor is not allowed by UDIP, but several officials told him that the information was not important to him and that he must prove its importance. Instead of openly revealing his research status or even appealing to Constitutional Article 61 or UDIP, he simply claimed a personal interest in the matter thereby re-asserting his regular citizen status. Sakowicz was not the only implementation research concerned with creating a visage of normal citizen requestor. An environmental activist explained that he had conducted similar research around the same time as Sakowicz and had also attempted to make requests without letting the officials know he was conducting research. The implications or obligations of proper research ethics did not concern either of these scholars because, as Sakowicz explained, this was simply the only way to assess UDIP implementation for regular citizens.
The ASC press release is also revealing in the manner which it refers to the plight of the regular citizen, “Jan Kowalski,” who tries and fails to obtain information from the government bureaucrat. In common Polish language usage, Jan Kowalski is the Polish equivalent of John Doe. So, for example, Przybylski writes such statements as, “every Jan Kowalski may, in practice, personally examine what [the state] spends his money on.” In another passage, Przybylski draws on imagery of unnamed “citizens” who go to a government office to request information on a variety of topics, from salaries of officials to the properties held by the office of the treasury. In response, “officials regard them with disgust and send them from room to room, where in turn the petitioner learns that here such information is not dispensed and in general, for what do you want to ask” (2003).
By constituting itself as an objective form of knowledge, collected through anonymous means, the ASC survey attempts to draw a linkage to the average population and its victimization by the government in terms of a lack of information access. In its conclusion, the press release critiques the lack of access as a failure of liberal democracy which only serves to promote more corruption and less transparency in public life. While some possibility for improvement may exist, the ASC has deemed UDIP implementation an utter failure with dire ramifications for the state of Polish democracy.
Poland is not alone in its UDIP implementation reviews, many countries which have adopted FOI laws have also carried out implementation research. While the Polish researchers did not necessarily intend to make their findings compatible to those of other FOI implementation studies, they nonetheless share similar frames of data collection, methodologies, and research goals.
In 2003, the Open Society Justice Initiative (OSI) Freedom of Information/Freedom of Expression Program launched the first study of its kind to assess and compare FOI implementation, developing a monitoring tool to compare implementation research in different countries. Their press release succinctly describes the project and its results:
Conducted in Armenia, Bulgaria, Macedonia, Peru and South Africa, the survey marks one of the most comprehensive efforts yet to test the limits of government transparency. It involved the submission of 100 information requests to 18 different public institutions by a range of actors in each country. On average only 35 percent of requests for information were fulfilled. Many requests not explicitly rejected were simply ignored—in total, 36 percent of requests submitted resulted in tacit or "mute" refusals
The report acknowledges from the outset that, “there is no fixed international standard governing the right of access to information,” but nonetheless attempts to enact a set of 15 standards called “the primary principles against which government transparency was tested” (2004: 3-4). These standards are similar to Blanton’s expectations for the fundamentals of FOI laws worldwide, but focus more pointedly on administrative procedures, “all bodies performing public functions should be obliged to respond to information requests…anyone may request information without having to specify grounds…if exemptions apply, then there shall be partial access to relevant documents…an office or officer shall be designated to handle requests for information” (2004: 4-7). In unison with the actual FOI statute in each country, these standards form a baseline from which FOI implementation is compared and measured. This is why the first step in the OSI’s monitoring process is a “legal analysis” which compares national law to the standards put forth by the OSI in the form of a legal template.
Following legal analyses, the monitoring methodology consists of making actual FOI requests and then assessing the government’s responses to these requests. The OSI research attempts to isolate three variables for comparison: the identity of the requestor, oral or written request submissions, and different types of governmental institutions. Five main groups of requestors participated: pro-governmental journalists, oppositional journalists, NGO representatives, non-affiliated persons, and excluded group members. Requests were made in both oral and written forms. In each country, requests were submitted to 18 different institutions, including executive, judiciary, and local administrative branches. All requestors “filed similar requests over a comparable period of time” (2004: 9). Requests stemmed naturally from the type of institution from which information was requested and the type of requestor, “so that requests would have relevance to the requestors and meet their real information needs” (2004: 7). While this circumvented the possibility that government institutions could easily decipher the purpose of a survey form-requests, it may have also introduced national or contextual particularities to the research. Researchers then categorized responses in one of five manners: unable-to-submit, oral refusal, written refusal, mute refusal, or fulfilled request. Note that no further delineations scrutinized the quality of fulfilled requests or whether a partial denial was made. As the OSI report stated, “authorities were given a wide margin of discretion, and even rather incomplete information was included in this category” (2004: 10). Following the requests, a lead NGO in each country attempted to conduct an interview with each institution from which researchers requested information.
The OSI study, not only the most comprehensive comparative study of its kind, but also remarkably coherent and thorough, still fails to include in its purview many of the qualities that makes the FOI request process such a complex phenomenon. But in assessing implementation as a mode of comparison to a baseline phenomenon, the legal expectation of bureaucrats, rather than assessing the personal relationships between requestors or a community of information access experts and bureaucrats responsible for FOI administration, the OSI study, and others like it, transfer the onus of failure from the dynamic relations between requestor and bureaucrat, and on to the bureaucracy alone. Surveys of this nature fail to measure difficult phenomenon such as desire or persistence, though the OSI report notes:
the monitoring methodology was not always applied uniformly in every country. For example, some of the requestors were more persistent than others in trying to submit their requests (2004: 11)
Additionally, the OSI methodology report fails to describe the manner in which requestors crafted letters or framed oral requests for information. In my research on the art of information access practices using the American FOIA and amongst Polish investigative journalists, I have consistently discovered that subtle distinctions in appearances and forms of asking may ultimately have very obvious effects on the amount and quality of information received. However, here I intend not to simply critique the OSI study for its nearsightedness – after all, they had the wherewithal to recognize the limitations of their study – but, to demonstrate that this form of generating knowledge concerning FOI implementation necessarily measures success solely in terms of bureaucratic rule-following, rather than presenting a wider and more accurate purview of success and failure. When a bureaucrat fails to adhere strictly to all rules, as they inevitably do, this implies a failure of implementation. True success is quite nearly impossible.
In the same manner that the OSI study posits an irresponsible bureaucracy which victimizes passive or homogenous citizen-subjects, the ASC and Sakowicz surveys oversimplify the role of the requestor and the oftentimes dynamic relationship between citizen and bureaucracy. They simply fail to problematize the requestor. Who in Poland seeks information beyond what can be gathered from media outlets, personal connections, or even family members? Why is Jan Kowalski interested in the type of inquiries involved in the ASC assessment, such as the number of cars managed by the Minister of Infrastructure or the budget of the national dermatological hospital?
In 2001, when Sakowicz wrote his policy paper on information access in Poland’s local government, little research had been conducted on UDIP implementation. Instead, he reviewed relevant legal statutes concerning information access, described their limitations, and then moved on to what sparse data he could explore. From the outset, he referenced public opinion surveys which establish citizen disapproval of local government and the failure of citizens to participate in elections or any other forms of activism. In doing so, he sets the stage for an analysis of the government-citizen relationship through a stakeholder model: “this may be exemplified by a gradual shift from citizens as customers (clients) to the more participative citizen as stakeholder model of governance” (2001: 27). Implementation of UDIP therefore requires citizen participation, as well as establishing democratic practices and respecting the rule of law within the bureaucracy. Through analysis of limited data, including a 1999 ombudsman report on the right to know and several, brief case studies of journalists denied information, Sakowicz asserts that more technology will bring about more openness, better information access, and greater opportunities for citizens to take initiative in locating information important to them. As a measure of success, Sakowicz asserts, “Usefulness of [the right to know] must be measured by the extent to which it permits people – ordinary citizens, organizations, journalists, companies and even public authorities – to obtain the information about public activities, which they seek without overburdening the administration” (2001: 23). In this definition of success, Sakowicz shares sympathies with the bureaucrat, Marek G., who essentially seeks administrative efficiency. But such sympathies are inherently contradictory to the format of implementation surveys outlined above.
A Positive Assessment
“The Supreme Chamber of Control (Najwyzsza Izba Kontroli or NIK) positively assess the workings of administrative organs samorzadowej and rzadowej wojewodztwa podlaskiego ([local] self-government and [central] government of the province of Podlaski) in connection with the implementation of UDIP, despite confirming irregularities,” stated an audit from late 2004. While the NIK audit confined itself to one (of 16 total) Polish province, it suggested a result quite different from the ASC and other critics.
When I visited NIK headquarters in 2003 and 2004, the audit, or “control” as they refer to it, remained incomplete, but Alina Hussein, a NIK auditor who focused on the problem of corruption, explained that she anticipated its release with great interest. The corruption assessments she had helped prepare called for greater openness and access to information as one method to help reduce administrative corruption, so UDIP was a particular point of interest. The justification for a NIK control was not, however, to examine its linkage to corruption. For one, they had never undertaken an assessment of access to public information. Additionally, they had received anecdotes and stories from the press of bureaucratic evasion from distributing information in violation of UDIP. Based on these conditions, NIK took its own initiative to embark on their control.
The Supreme Chamber of Control (discussed earlier in the section on corruption) is situated within the Polish state, but outside of the control of the government proper; the government organized and operated by the Prime Minister. Parliament directly allocates funds to NIK in an attempt to create some semblance of distance from the rest of the administration. By most accounts, NIK has been fairly successful in garnering an image of an objective, non-biased observer of government activity, particularly because the agency has boldly embraced strongly critical positions against the government and consistently uncovered administrative irregularities in the administrations of both left- and right-wing governments. A NIK “control” normally consists of accountants who go through administrative records and receipts to ensure that the government office channeled their funds in a legal manner and as intended. Many times, this leads to NIK corrections or suggestions for new regulations, the goals of which are to make the administration operate more efficiently. The NIK control on UDIP differed in that it focused less on accounting bottom-lines and instead examined the implementation of a law and the manner in which the rules of the law had been followed. While this was not beyond the bounds of NIK’s powers, the control noted that auditors deployed a mixture of methods, including non-statistical and non-mathematical ones.
NIK based its positive assessment of UDIP implementation on its examination of BIP sites, published information registers, and response to information access requests. It found that a majority, though not all, of the information required by law to be published in the BIP sites and other information bulletins was present. NIK considered UDIP requests, the measurement deployed by ASC and Sakowicz, the most overwhelming implementation success. Of the 16 administrative entities reviewed, only one UDIP request had been refused and that office had refused the request on apparently solid legal grounds. However, NIK also included a long list of reservations. Of its 7 main points in its analysis of the data, most were negative. It noted that the central province office successfully implemented the first step of a plan to enhance the IT capabilities of the local administration, but added that the plan failed to include a majority of the local government offices and the project’s expenses were not economical. It criticized the lack of standardized access rules and supervision of the BIP sites. Many of the BIP sites neglected to provide access to information required by UDIP. In particular, many offices only minimally offered information concerning property and financial activities of local administration leaders or published such information behind schedule. And many offices, especially those of the lowest administration level, the village level, failed to publish or unreliably stated budget information, as well as failing to update information throughout the year concerning changes to their budgets. While it sounds like a mixed message, we should remember that the purpose of a NIK control is to locate flaws and irregularities. Their overall assessment for UDIP implementation remained positive.
NIK has unlimited access to all records, activities, and personnel in the administrative sectors which they audit. This access plays a key role in determining the type of research methodology which they can employ. As opposed to the assessment methodologies deployed by ASC and outlined above, which essentially need to deceive the state to derive their data, the administration must cooperate with NIK through force of law. And unlike many other national auditing agencies, NIK auditors are physically present in the offices which they examine. This offers them a first-person perspective similar to the ethnographic fieldwork experience, a detail which NIK analysts proudly imparted to me. The UDIP audit consisted mainly of comparing the information posted in BIP sites and public registers to the information required by law to be published in those places. It also involved talking with officials responsible for UDIP implementation to understand the administrative rules they follow, their decision-making process, supervision strategies, and their training or knowledge of UDIP and other relevant laws. To best study their “nonmathematical goals” NIK selected a “mixture of techniques” that combined statistical methods with non-statistical, “relying on the judgment of auditors” (2004: 50). But for an auditing agency normally concerned with accounting numbers or other forms of quantitative statistics, interpretation or finding bigger-picture social contexts is not an option.
The NIK control explicitly outlined its goals and justifications at the outset of the report. The goals, however, were quite redundant and readily apparent; to “study the implementation of UDIP,” or, in particular, “the degree of ensuring in reality and comparing access to actual and reliable public information, specifically in the scope of the operations of public power, the state of the environment, public finances and legal regulations” (2004: 4). The other goal, again restating the original point, is to study “realization of rules required in the implementation and functioning of BIP, and in particular, preparing organization and financing of audited departments for accessing information” (2004: 4).
As an organization, NIK controls have two potential effects. First, they may suggest improvements or adjustments in laws, regulations, or policy based on their control findings. In the case of the UDIP control, they recommended two policy adjustments and two legal amendments. In order to “remove the stated irregularities, departments should” (2004: 11) first, exercise stronger supervision and oversight for BIP publishing, specifying officials responsible for editing and decision-making. Second, they should widen the scope of open information concerning the budget, its passage, and reports on budget effectiveness. Generally, NIK found that proper implementation required more standardization of rules, especially for public finance openness. It suggested amendments to two ustawa, which would place all of the responsibility for publishing budgetary and financial information in the BIP sites, rather than the wider and non-standardized array of sources where information is currently located. The second potential effect of a NIK control is prosecution for wrongdoings discovered during the course of a control. NIK would pass on such information to the public prosecutor who then makes a final decision concerning law enforcement, but NIK does not actually arrest anyone. UDIP violations carry fines and even jail terms, but NIK discovered no violations.
NIK’s analytical methodology, unlike that of the ASC, for example, did not relate UDIP implementation to the quality of Polish democracy or the disease of corruption. This lack of desire to equate UDIP success with democratic success in Poland is in line with the generally straightforward scope of NIK controls, based on facts found within the bureaucracy. The internal scope of NIK research helps reveal its inherent measure of success. For NIK, success means regularity and standardization of bureaucratic procedure and strict adherence to law. As an organization, NIK prides itself in its lack of imagination or political interest, choosing instead to focus on administrative efficiency, particularly in the realm of public finance, and technical rationality or the reliability of bureaucratic rule-following. These are the goals of the NIK control, not a bigger picture analysis that would draw intersections with Polish history and tradition, or economic and political forces.
So, for example, when NIK assessed the implementation of bureaucratic responses to UDIP requests, it could positively assess this work solely based on requests received. This explains how ASC could produce such radically different results in their assessment of UDIP request implementation. According to NIK’s finding, few citizens requested information, “the number of recorded requests suggests little and even minute interest in [citizen] recognition of their UDIP right” (2004: 38). Of the 16 offices closely scrutinized by NIK, only 8 had received UDIP requests. Of these 8, only 2 had received more than 10 requests. And of the requests from these 8 offices, 1208 in total, they refused only one request. Additionally, 14 of the 16 offices collected no payments for their requests. The other 2 offices had established administrative rules for collecting fees, but in practice, NIK found that even those fees were normally not collected with the exception of one extremely large request concerning railway passenger information which cost 134 zl (approximately US$ 33.5). NIK explained the general lack of interest in requesting information as a function of population size and already established information services, “in the offices of the gmina (village) in Punsk and Wizn, the office of the municipality in Kleszczel: lack of requests to obtain public information is explained by the fact that in such small villages, around 5-6 thousand people, practically all information about the workings of the administration and its officials is generally known” (2004: 39).
But while NIK’s even-handed assessment of UDIP implementation commended the manner in which it handled the requests it received, it also pointed out problem areas. NIK’s critique of standardization is particularly compelling because Marek G. of MSWiA noted the same problem. The lack of standardization created research problems for NIK in its attempt to assess UDIP, stating “units did not uniformly record the reception of [access] requests, so that it was not possible to compare their numbers” (2004: 38). Some departments recorded oral, telephone, or email requests, while others did not. All apparently recorded written requests. However, NIK did not intend to imply that this lack of standardization prevented them from collecting accurate data on request response, although Sakowicz explained to me that oftentimes his emails to local administrations went unheeded and phone requests may have been considered “less seriously” than physical letter requests. ASC, of course, had only deployed oral requests, in person. Additionally, the NIK control failed to examine the number of days requestors waited to receive a response.
The most crucial distinction between the NIK control and the ASC survey, resulting in different conclusions, lies in their different methods for generating knowledge about UDIP implementation. While NIK relied on information collected by the bureaucracy about its own activities, ASC stimulated the state to create new data through manufactured requests. No one at NIK actually made a UDIP request. Ironically though, the NIK control noted that in January of 2004, 4 different offices received the exact same request for information from the same Warsaw resident. While NIK did not assert that the person from Warsaw was probably undertaking their own UDIP assessment, it seemed almost certainly the case, since this was the only request received all year by some of these offices. This does not necessarily imply that the NIK audit produced more “natural” results than the ASC survey, but it helps clarify the distinction between the two forms of knowledge. Space for implementation failure existed in the NIK frame of knowledge, but space for success also existed. Unlike the ASC survey, NIK did not test the bureaucracy, in the sense of bending possibilities or furthering demands for information, but instead assessed the response and ability of the bureaucracy’s information-response capabilities within the present environment of information demand. In that environment, NIK considered UDIP implementation a success. In an environment with greater demand, or the almost infinite demand imagined by ASC, it is unclear how the bureaucracy would respond.
Concluding
It would probably be most simple to conclude that state assessments of UDIP implementation are and will be positive and optimistic, while those conducted by citizen groups and NGOs will be negative and pessimistic. In general, this trend has held true. But this simplification conceals more than it reveals because it assumes the two sides assess the same thing and create their knowledge in the same manner.
From ethnographic accounts of individuals to scientific studies that scrutinize implementation both positive and negative, all organizations and individuals endorse the standardization of measures of success. In terms of the measure by which bureaucrats carry out UDIP, outsiders like Kazimierz D. suggest that bureaucrats fail to follow the rule of law. Bureaucrats agree that standardization amongst agencies has failed and NIK suggests that UDIP requires oversight. But faith in oversight would rely on subjects like Kazimierz D. to believe that bureaucrats have rule-of-law as a goal in the first place. Instead, they are less concerned with following rules and more concerned with making the state more open, a prospect which they do not really believe in. Instead, some believe that habits of secrecy control all bureaucratic conduct. From within the state, bureaucrats believe that through training and experience, UDIP implementation will begin to operate in line with the law. If implementation has failed up to now, those failures will serve as experiences to inform future action, aiding the bureaucratic quest of administrative efficiency and technical rationality. Greater openness, in its abstract sense, is a policy concern for those who create new laws and guide the direction of the administration, not the direct interest of the bureaucrat.
In terms of the measure(ment)s of UDIP success, standardization concerns fixing elements and variables necessary to produce reliable and object assessments of implementation. Here too, the standardization of measures differed between different groups. While ASC and OSI created measurement methods which fixed the requestor side of the access relationship, the bureaucracy conceived of measurement which fixed existing experiences as the sole data set from which to produce assessments. The NIK study, in particular, standardized the environment of information demand, thus showing that administrative responses had largely met this demand. The ASC survey meanwhile suggests that not all requests will be met and not in accordance with an exceedingly demanding set of requestors.
The significant group who remains misunderstood is the citizen, or rather, the specific groups of citizens who have a pointed interest in accessing information from the government. Only one such group exists, the environmental activists. However, their requests fall under a separate law governing access to environmental information. The OSI study suggests that journalists and NGOs should be interested in FOI statutes, but journalists have found no need to specifically reference the law. The NGO sector constitutes an emergent site for the existence of an information access expert community not yet in existence. While an increasing number of NGOs and individuals have become aware of UDIP, sites for knowledge-sharing or discussions of best strategies to exploit the law do not yet exist with the exception, again, of the environmental activists. However, a lack of UDIP standardization may prevent the emergence of such a community because each request will be too particular. Potential requestors may instead opt for other, possibly informal channels of information flow. Or because each request is particular, they may see no need to consult with centers with experts of general UDIP knowledge. On the other hand, without a pressing demand for greater information access, through the efforts of a concerted and organized access community, the call for more bureaucratic oversight and UDIP standardization may go unheeded. It remains to be seen whether UDIP will emerge as the type of cultural phenomenon witnessed in other countries, such as the United States.
This chapter has discussed in some detail and from different perspectives the understandings and knowledge generated about and around UDIP. It has examined how people understand the implementation, but does not constitute new knowledge about UDIP implementation based on original data collection. Throughout the world, while FOI researchers, many of them lawyers, have compiled many legal histories and analyses, legal implementation analyses are much more rare. There exists no standardized form in which to collect information on the proper implementation of FOI law. Various methods of collecting data have been deployed. The best measurement for their success may ultimately derive from the effect of their knowledge. As mentioned in the previous chapter, Ralph Nader organized a team of FOIA researchers in the early 1970’s to find evidence of shortcomings in the implementation of the American FOIA, particularly in terms of administrative details such as fee payment regulations and time limits. As a result, Nader’s findings, combined with the lobbying efforts of a wide range of openness in advocates brought about important legal amendments to FOIA. For the most part, best practices in designing FOI laws worldwide seem to rely more so on experiential data than quantitative findings, but we should never underestimate the power of numbers and statistics in making a case for the truth. When the leading newspaper in Poland publishes data declaring UDIP a failure, along with numbers gathered to support this assessment, it matters little to the general public what type of methodology generated this knowledge. While every new representation of the data removes us farther from the original context of data collection and its complexities, the numbers remain unchanged, solid, and frankly believable. However, it remains to be seen what effect these numbers will have, either from ASC or NIK, or what effect this new knowledge will have on the future course of implementation.