in 5 "easy" points:
1. Ethnographic description concerning the passage of the FOI law: This section begins to explore the motivations behind the law by way of my own experiences trying to collect an account of the history of the law. I’m trying to fuel this section by grappling with the paradox of multiple rumors swirling around and enigmatic communicative experiences with my pro-transparency interlocutors. For the most part, I explain this paradox by way of political capital, diminishing funding and entrenched elite social networks.
2. Moving away from the more cynical explanations in point one, I address the more high-minded goals of FOI as shared by advocates in Poland and internationally. My general goal here is to look at a broader historical portrait of structures of possibility: why was a FOI law possible at this point in time? First, I briefly address how Polish advocates understood the law as one part of a much larger anti-corruption strategy (which was further explained in a previous chapter on anti-corruption, so I keep this brief). Second, because Poland did not invent FOI law, I turn to the global story of how FOI laws have proliferated worldwide.
Point 2 leads me to several questions. First, what is the nature of “information” inside of FOI? Second, if FOI seems integral to democracy, then why were such initiatives excluded from democratic countries until the late 20th century? I see these two questions as closely intertwined. In answering these questions from the Polish point of view, I use historical accounts of informal information flows during the communist era and compare their implications to those of information flows as engendered by FOI law. The first is a matter of resistance and rebellion, moral rightness, the latter an instance of reform and a new democratic norm, increasingly used for a wider variety of sometimes incoherent purposes.
I try to look at a lot of different reasons for introducing FOI into Poland, thus making this chapter’s summary somewhat complex. I don’t want to simply rely on the transition to democracy. The Polish FOI, after all, does not open communist-era archives to the public (a different law does that) and it doesn’t eradicate secrecy laws from that era either.
3. After moving through a section where I return to original intentions of FOI, as understood by FOI advocates and based in the Enlightenment, I use the history of the passage of the American FOIA as an example illustrating the transformation of information openness from a highly moralized discourse and into a more diverse program of rights, revisionism, efficiency, and even markets. I especially want to highlight the accompanying institutionalization of the FOIA process which demands a consistent and coherent bureaucratic implementation of the law.
4. I critically examine an essay by FOIA advocate Thomas Blanton on the proliferation of FOI law worldwide as a way to explore the international community which, rather ironically, Blanton argues is actually quite weak. Instead, he points out a set of fundamental points for all FOI laws, which I recognize as a shared legal logic, that has allowed for the proliferation of similar-minded laws.
5. If #4 is the case, then I believe it implies that the circulation of policy initiatives such as FOI or anti-corruption require a certain type of transformation of moral discourses of resistance or reform into acceptable and privileged logical discourses such as economics, statistics, or law before any effective movement in elite policy circles can occur. So, I briefly return to the original scene in #1 to explain more fully how all of the organizations involved in the Polish FOI law are somehow linked to one or more of these logical discourses.
So, that’s it. I tried to make #5 bring us back to points made earlier, but I’m not sure if everything is so nicely tied up. If I was to summarize the chapter in one sentence, I suppose I would call it an explanation of what the intentions of the Polish FOI are and aren’t.
i know you thought i stopped writing very personal posts on my blog, but there was just something crappy about today. i had a strange feeling, but it's been proven. kind of.
(ed. note: if yesterday was the worst day of the year, i'm going to have a damn good year. - 1.25.2005)
just a tiny, little bit more to juice out of this. but now i'm done with it for the moment and will focus on editing and making sense of it. So if you're still with me, then please send along comments now concerning how to tie this up and put it together. editing...
_______
It is perhaps fair to state that this process of transforming moral discourses of resistance or reform into acceptably “logical” discourses such as economics or law must precede any effective movement or circulation of policy initiatives throughout the world. This helps explain the specific groups who brought FOI initiatives to Poland, both were connected to international “logic” communities, though not necessarily the international FOI community.
On one side, the successful coalition consisted of the Adam Smith Research Center, Transparency International Polska, and the Society of Polish Journalists (SDP). The Adam Smith Center is an economic and legal think tank, comprised of lawyers and scholars, whose main interest appears to be lobbying and research geared at bolstering new laws or with concern for their implementation. For example, the Center was the site of preliminary meetings and research of the information access law coalition. It published several working papers on information access, as well as a translation of the American law with legal commentaries by experts at the Center and others affiliated with it. TI Polska, as discussed above, is the local branch of the international organization, though the ties between center and local offices are not stringent. TI Polska must locate funds largely on its own initiative, though its reputation often precedes it. The head of TI is a corruption expert, several lawyers are on staff, and even the administrative staff is full of academics and students interested in entering civil society fields. SDP does not fit neatly into this categorization, but it turns out that the organization has a fair degree of influence in lobbying for their interests in the government. Additionally, the organize public discussion forums on issues such as information access or other journalism-related problems, commonly inviting some of the most powerful figures in government to debate these issues. In any case, neither SDP, nor any other of the coalition’s organizations are grass-roots type social movements.
The other coalition consisted of the Center for Monitoring Press Freedom (CMWP), the Stefan Batory Foundation, the Institute for Public Affairs (ISP), and members of the Helsinki Foundation for Human Rights (HFHR). CMWP concentrates on both problem-solving issues for journalists and actively promoting press freedom. If, for example, a journalist is denied access to information, CMWP attempts to intervene on their behalf, often through legal avenues by hiring out consultant lawyers. CMWP mainly deals with law, but is also tied with international press freedom organizations. The Batory Foundation is the local chapter of the Soros Foundation’s Open Society Institute and receives much of its funding from OSI. The Batory Foundation consists of several programs, including the Anti-Corruption Program which contributed to the coalition. The Foundation, more generally, is recognized in Poland and internationally as home to many of the biggest names from the Polish resistance, such as Adam Michnik, one of the members of the original board. This allows the Foundation a great deal of influence in international circles of civil society and while some of its programs deals directly with the public through education, training, or small grants, it is mainly a location for lawyers, lobbyists, and academics. ISP is also a research and lobbying group. It strongly emphasizes the production of quantitative data for economic purposes and the analysis of increasingly complex public opinion polls in the interest of informing policy decisions. Andrzej R., the main author of the coalition’s information access law draft, is a founding member of the HFHR chapter in Poland and has spent most of the years between 1989 and the present working on various human rights issues, policing, and press freedom. While the entire organization did not place its support behind the coalition, we can still fairly characterize it as a group of lawyers, academics, and activists who seek to help either individuals or causes related to issues as varied as immigration to police abuse.
[all groups are 1 – part of policy/lobbying arena 2 – using the same forms of prviliged knowledge (quantitative or legalistic) 3 – select & elite members who are recognized experts/not grass roots or popular movements]
All of the organizations, regardless of which coalition they supported, share similar attributes which could have allowed either coalition to have successfully adopted concepts from an international arena of policy or advocacy issues into national legislation. First, they were all involved in the sphere of policy, law, and lobbying. Second, they all either produced, promoted, or responded to the same forms of privileged knowledge, namely quantitative or legalistic. And third, the organizations were constituted of elites recognized as experts, rather than grass roots advocates or popular movements.
Although I could not corroborate the exact “origin story” of the access law, Professor K. first told me that he brought the idea to Poland. In the late 1990’s, he attended a talk given by a member of the United States State Department in Bratislava at an anti-corruption conference which described the utility of FOIA in preventing or fighting corruption. On returning to Warsaw, Professor K. began to make plans with others to first research and then pass such legislation in Poland. However, Henryk Wujec claimed that plans for an access law predated that coalition, that on his initiative, FOI research had already begun in parliamentary circles in the mid-1990’s. In speaking with Andrzej R., he showed little interest in any origin story for his coalition, but merely alluded to the idea being in the air at the time. Of course, Hungary had the first FOI law in Eastern Europe in 1994 and a number of other countries in the area had already passed FOI law’s between 1998 and 2000, Poland was one of the last countries to follow suit.
where does it all come from and where is it headed? great questions, i'm getting to it. i hope... read on.
---
As Blanton, head of one of arguably the most influential FOIA advocacy group in the United States, readily admits, the international FOI movement is relatively disorganized. Several organizations with a degree of international appeal exist. The National Security Archive has sent its experts to other countries and has participated in international conferences related to access and free speech. The Open Society Institute’s Legal Program runs a subdivision concerning itself with FOI, but this division also works on freedom of expression issues, too. The British NGO Article 19 has an international FOI program which offers aid to countries with incipient FOI laws and actually provided expert opinions to the CMWP’s draft of the Polish information access law. In addition to the handful of organizations devoted to international FOI proliferation, several websites serve as an information clearinghouse and a way for the community to read FOI news from throughout the world. Email listservs exist for individuals to post questions, queries, or state some specific problems, but the discussion is hardly brisk.
As far as the international FOI scene works, there is no place in which it exists. And again, Blanton points out that, for the most part, local transparency initiatives, organized and energized by proactive individuals and small organizations, are generally more effective than national FOI statutes (2002: 4). Perhaps FOI is simply not the type of issue which cedes well to internationally-organized advocate communities. It certainly does not work as a typical social movement in either the United States or in Poland. In these places and most other FOI locales worldwide, there are no marches or protests calling for greater information access. FOI is not a large-scale population-level social movement, but a highly specialized, expert issue which mainly concerns academic, professional, and governmental elites.
The most general cohesive factors aligning FOI advocates worldwide are the morality of openness and a common vocabulary of legal processes or legal logic. For example, Blanton outlines the five fundamentals of effective FOI statutes worldwide (2002: 56-57). Through analysis of these fundamentals, we can elucidate universalizing patterns of political reorientation sought and shared by all openness advocates.
“First, such statutes should begin with the presumption of openness” (2002: 56). This presumption turns a previous assumption on its head, that the state owns the information it produces and has absolute right over its domain. But further, it attempts to re-orient the relationship of citizen to the state by holding the state accountable to the citizen, rather than the state holding power over the citizen. This re-orientation is not new, it is certainly part of democratic tradition. But, the inclusion of information into this re-orientation is new and it attempts to bring a new object, state-produced and controlled information, into the arena of accountability. This statement suggests that openness should be understood as central to the functioning of a democratic state and not a special right or afterthought which merely complies with a democratic image.
“Second, any exceptions to the presumption of openness should be as narrow as possible and written in statute, not subject to bureaucratic variation and the change of adminstrations” (2002: 56). Here, Blanton calls for an end to subjective or even random decision-making within the bureaucracy. FOI advocates acknowledge the need for a strict rule on which to determine access decisions in a consistent and orderly manner, FOI must be a scientific process.
“Third, any exceptions to release should be based on identifiable harm to specific state interests, although many statutes just recite general categories like ‘national security’ or ‘foreign relations’” (2002: 56). This mostly reiterates the second point, bolstering the argument for consistency by demanding specificity for any decisions to withhold information. The trouble with “national security” or similar categories is that the requester cannot be certain what qualities fall under such broad categories.
“Fourth, even where there is identifiable harm, the harm must outweigh the public interests served by releasing the information” (2002: 56). This would force the state to weigh the importance of public release and compare this interest to that of secrecy. Again, if the state’s decision is consistent and precise, then it would be forced to, at the very least, bring its reasoning to a forum open to the public. If this is the case, then at least some degree of information can be surmised from the public process of declaring why information is withheld. So, even if the state decides in favor of secrecy, it should be forced to do so in a transparent and accountable manner, as opposed to a more paternalistic blanket refusal.
“Fifth, a court, an information commissioner, an ombudsman, or other authority that is independent of the original bureaucracy holding the information should resolve any dispute over access” (2002: 57). This fundamental shifts the locus of decision-making and weighing forces of public interest or secrecy to a more independent arena. While FOI advocates concede that sensitive and classified material can only be assessed within the boundaries of the state in which it is created, they seek to establish a fellow community or organizations of information access experts within the state who can potentially dialogue intelligently with them or act as the expert conduit for access requests. Again, this attempts to take power away from bureaucratic subjectivity and force the FOI process to be more consistent, specific, and accountable.
In general, this legalistic expert community of international FOI experts and organizations offers more weight and attention to these and other legal fundamentals as opposed to examining the social and cultural environments within and beyond the bureaucracy. If they refer to these environments, they do so simplistically as criticizing a “culture of secrecy” or promoting a “culture of openness,” but the dynamics of these cultures remain unclear. Blanton acknowledges this ovemphasis and suggests that free media and civil society may actually be more important than the force of more logical legal arguments, but adds that traditions of dissent and resistance may hurt the emergence of the FOI movement because it could lead to tension within the relationship between the access community and the bureaucrats they must work with. As such, this investigation into the cultural side of information access worldwide represents the first such work of its kind on this scale. One FOIA lawyer in America with whom I spoke was excited by the prospect of such work, adding that most FOIA scholarship was quite dry and not particularly useful. However, it is not difficult for requestors in America to tap into a wealth of practical knowledge concerning the way the FOIA process really works or functions most effectively either through articles, websites, or the possibility of personal contact. But in Poland and other countries with a new access law, such competency is not as easy to come by and may rely more so on one’s status or relationship network. (I will return to this issue of the practice of information access later, in my section on how access really works in Poland)
This artificial division between legal and cultural logic obscures two things. First, that the FOI community’s legal logic is, in fact, a cultural logic. And second, that this logic actually seems to promote the circulation and proliferation of FOI worldwide. By moving away from moral argument and into a legal argument and model for how and why democratic states can establish a properly accessible open system, this discursive logic translates easily to policy elites worldwide. While the wider issue may appeal to more radical or popular reform groups throughout the world, the legal language of FOI fundamentals represents a much more advanced stage of development of openness, a stage which actively engages with the central tenets of democracy, rather than acting as vocal opposition to established tradition.
It is perhaps fair to state that this process of transforming moral discourses of resistance or reform into acceptably “logical” discourses such as economics or law must precede any effective movement or circulation of policy initiatives throughout the world. This helps explain the specific groups who brought FOI initiatives to Poland, both were connected to international “logic” communities, though not necessarily the international FOI community.
so, i'm starting to feel this chapter might be losing its way. either that or it's just moving to whole other level of analysis that is a little more difficult to wrap our minds around. i move into a comparison with the history of FOIA in the US so that i can get back to a major theme of the whole dissertation, the institutionalization of certain kinds of policy discourse and their transformation from moral discourse into instrumental/rationalized discourse.
this part is long, sorry about that. i've been out of internet touch a day or 2 too long.
______________
In much the same manner that we can trace the roots of the anti-corruption movement to moral discourses of disgust, the FOI movement in America begins with a moral indictment of secrecy articulated to language informed by Enlightenment philosophy that metaphorically likens the struggle for openness as battle for righteousness and good.
Former Executive Director of the Associated Press Kent Cooper played an important role in advocating for greater information access in the United States, helping bring about the passage of the Freedom of Information Act. Cooper also coined the phrase “the right to know” in an address at Temple Emanu-El in New York City in 1945. His 1956 book, also called The Right to Know, begins with a chapter titled “Up from darkness”, followed by the chapter “into the light,” where Cooper describes the “long road to civilized enlightenment” (4) culminating in a social environment of transparency, pluralism, and the liberation of knowledge. For many thousands of years, the majority of humans lived a life with nothing to hope for, no material reward, simply “grubbing” for a livelihood. In need of a palliative to comfort, religion was invented: “Religion thus played its great role in man’s mental evolution, for it taught him to think, and as he thought he wondered if there was not a very great deal that he ought to have the Right to Know” (5). As writing was established and news could be posted in populous centers, a patriotic homogeneity developed in places such as ancient Rome. The renaissance brought an urge to communicate the teachings and experiences from scholars throughout the centuries. Cooper singles out the printing press as the revolutionary invention that, among other things, brought about the struggles for “the right to print” and freedom of the press. Cooper also explains where the impulse to know originates: “An intensely human trait which we call curiosity carries with it the urge to know” (9). In countries where a single ideology predominates, pluralism will result as a natural outcome of this universal quality of mankind: “But what all such governments will learn sooner or later is that, the more they try to educate their people exclusively to accept the one ideology, the more curious the people become and the sooner they will strike down restraints that limit their knowledge” (9). Arguing for a constitutional amendment guaranteeing a public right to know, Cooper still maintains that in the United States and other “free press” countries, “the long road from savage darkness to freedom and civilized enlightenment had been traveled!” (13). Here, Cooper elucidates the cultural origins and foundation for the right to know, a discourse firmly located in modernity as opposed to traditional, savage, or “dark” societies.
Because these tropes of openness and information access contra secrecy and darkness articulate to modernity and enlightenment, we can understand information access laws as a uniquely modern happening. This does not necessarily verify or support Cooper’s dichotomy between modern societies, in the light, and pre- or non-modern societies, in the dark, but leads towards understanding a discourse that has emerged in the contemporary world constructing modernity as such. Further, because FOI was not an integral part of the Enlightenment’s democratic philosophies, we can better pinpoint its origins and proliferation as a uniquely contemporary event.
The Constitution of the United States failed to include specific reference to FOI or a right to know. Since that time, the United States has not amended its Constitution to include this right and no movement currently advocates for an amendment. While the existence of a right to information remains under debate and many advocates describe the right as an extension of various sections of the Bill of Rights, the FOI movement did not explicitly begin until shortly after the end of World War II.
In the 1950’s, the American Society of Newspaper Editors (ASNE) formed a Freedom of Information (FOI) Committee to battle government secrecy. ASNE legal counsel Harold Cross prepared a report for ASNE confirming that basic government information was being denied to the press and, by extension, to the American people. He concluded that government disclosure was unsystematic, often biased against disclosure to newspapers. James Russell Wiggins, chairman of the FOI Committee forged a strategic relationship with Representative John E. Moss (D-Calif.), eventually leading to a legislative attempt to garner a more open government policy of information disclosure (much of this historical sketch is derived from Foerstel 1999 and Archibald 1993).
Not unexpectedly, the US government released information to the press and to the public with great caution during World War II. However, after the war ended, the government continued many of its information restriction practices. In the early 1950’s, President Eisenhower created the Office of Strategic Information (OSI) to work with the business community in ensuring that unclassified strategic data would not be leaked to foreign nations. OSI’s information withholding category, “strategic information”, combined with previous classified information categories and the OSI’s exploitation of personal relations with newspaper editors, resulting in an unprecedented degree of government secrecy. In March 1955, Secretary of Defense Charles E. Wilson directed that in order for information to be published, it must both meet security requirements and embody a “constructive contribution” to the DoD’s efforts. R. Karl Honaman, Wilson’s assistant replied to the FOI committee’s complaint of Wilson by stating that press requests were a waste of time and that newspapers should voluntarily refrain from writing stories that could aid the Russians. The lines of this conflict outlined by Honaman pitted FOI against American strategic interests and national security.
The battle between the journalists and the DoD bureaucracy may have directly led to the Special Subcommittee on Government Information, referred to simply as the Moss subcommittee for its chair, California Democratic Representative John E. Moss. In May 1955, Wallace Parks, staff attorney for the House Government Operations Committee, called attention to the recent conflict between the press and DoD to Committees Chairman William Dawson. Parks proposed a committee on information, naming Moss as possible chairman. Moss suggested Parks approach House Majority Leader John McCormack ,Democrat from Massachusetts, for support. McCormack, who had been looking for a way to challenge Eisenhower and was also upset over the administration’s lack of disclosure to Congress, fully supported the committee. In June 1955, the subcommittee began its deliberations on whether government agencies denied access to important information to the media and the American public. Journalists provided testimony and the arguments of Cross (1953) garnered support for a Constitutional right to access to government information from the subcommittee. Moss also gathered instances of government secrecy and demanded explanations from accused agencies to justify withholding information. Rather than following McCarthy-style witch hunt tactics, Moss purposely deployed a more careful and cautious approach. He created a four-page questionnaire on withholding and sent it to all agencies with the purpose of gaining a better understand of their common practices. The result was a composite picture of blatant and arbitrary government secrecy. Needless to say, journalists were delighted at Representative Moss’s findings. Further, the subcommittee made government secrecy a major political issue, allowing Democrats to criticize the Eisenhower administration. The 1956 Democratic Party platform included the freedom of information. Although the “paper curtain” had been revealed, the Moss Subcommittee asked for little more than greater voluntary disclosure from federal agencies. The press, on the other hand, began arguing for immediate legislation requiring the government to be more systematic and open on the issue of access to information. As a result, Congress amended older laws used by the government to justify withholding information, but failed to create a new law to guarantee a systematic release of information. Government agencies utilized two laws to justify withholding information from the public. The Administrative Procedure Act of 1946, established to organize agency information systems, required disclosure of federal records except in cases involving required secrecy or internal management. However, the Act failed to detail disclosure requirements, thus allowing agencies to justify excessive withholding. An even more obscure and creative justification for secrecy was the Housekeeping Act, a 1789 statute from the George Washington administration regulating agency coordination. The failure of legislation to properly address the post-WWII information situation demonstrates a transformation in the politics and implications of information in that milieu.
Several major figures in journalism wrote books promoting FOI including Harold Cross (1953), Kent Cooper (1956), Herbert Brucker (1949), and James Russell Wiggins (1956). Brucker coined the phrase “freedom of information” while Cooper first used the term “right to know”. The authors also figured as Moss supporters. Cross served as ASNE legal counsel. Cooper worked for AP for 45 years. Upon retirement in 1950, he allowed himself to become a critic of the press rather than the maker of news. James Wiggins was the chairman of the ASNE Committee on FOI and a political lobbyist. Herbert Brucker, like the others, served as a consultant for the Moss Subcommittee.
FOI is integral to and exemplary of the shift in the nature of information during this time. FOI advocacy consisted mainly of journalists. In a sense, they were crossing a line. No longer simply reporting the events of the world, journalism began to recognize that it constructs its subject. As a corollary, information does not simply represent the facts of the world, but information is a force in and of itself. Without the information of the event, the event essentially does not happen in the news. In the aftermath of World War II, the press was not resisting a lack of information or an impossibility to gather accurate information, but misinformation or the failure to access information for moral or strategic purposes. Morality and ethics played an important role. On one hand, ethical considerations of truth and falsity have been disregarded. On the other hand, when national security is threatened, a few well-placed lies or the obstruction of information could save American lives. The threat of nuclear war created a new context for information circulation by producing a persistent state of emergency within the US government. Further, Cold War politics required representations influenced by political morality. The United States needed to figure itself as democratic, just and righteous. At the same time, democratic ideals included openness and transparency. Allowing FOI, at least to some extent, legitimated this portrait. In comparison, the Soviet Union figured as a regime of totalitarian censorship and repression. FOI’s emergence in the United States needs to be understood in the context of the ethics of truth, the morality of democracy, and Cold War politics. In the absence of fighting, the two sides engaged in conflicts of information. Rather than explain the situation as the press versus the state, or national security versus the right to know, the conflict requires an explication of the forces on both sides. In many ways, the function of the press and its role in a transparent society explains why the state deployed secrecy. The US government, unlike its Soviet counterparts, did not read every news story before it was printed and censor the story accordingly. Instead, the government censored itself for fear of the power of the press.
In 1961, President Kennedy asked the press to voluntarily censor themselves because “in time of ‘clear and present danger,’ the courts have held that even the privileged rights of the First Amendment must yield to the public’s need for national security” (Kennedy quoted in Foerstel 1999: 37). Journalists were outraged. Some outright rejected Kennedy’s request for news control. Reporters agreed that the Kennedy administration represented a low point in history for the freedom of information and freedom of the press. A news management policy clearly existed within the administration, a policy that, in subtle and indirect ways, had been quite successful in spoon-feeding the American public official news. Merely changing existing statutes, as the Moss Subcommittee accomplished in the 1950’s, would not suffice. In 1966, Moss led the way in legislating FOIA, but not without resistance from, among others, President Johnson. Opponents argued that FOIA not only threatened national security, but that it represented mistrust. According to Attorney General Ramsey Clark: “’they thought it implied that they weren’t trusted and they feared that the FOIA would force them to work in a gold fish bowl, observed by the public’” (Foerstel 1999: 44). Others within the bureaucracy supported FOIA because they felt secrecy was a greater threat to national security than openness. In 1966, the legislature passed the US Freedom of Information Act and on July 4th President Johnson, despite his own objections, signed the bill into law. While further amendments strengthened the act over time, the FOI movement gained a moment of official recognition that still serves as a model for other FOI laws worldwide.
The original 1966 law failed to deliver more than a symbolic sentiment of government transparency because of three main weaknesses. First, it did not demand a timeline for compliance with requests. An agency could sit on a request indefinitely. Second, the law did not stipulate penalties for violation. No enforcement agency oversaw agency transgressions. Third, the law failed to draw limits on requestor fees. The State Department, for example, once charged a requestor 10 dollars per page to photocopy a pamphlet. Without strict limits on time, transgression, and fees, the strength of the 1966 FOIA was extremely limited for a requestor. The transformation of the law from symbolic transparency to an effective access instrument required a different type of political action than that which first created FOIA. Offe’s distinction between old and new paradigms of political action informs the history of this transformation. While the original law relied on the leverage of John Moss and the public legislative committee, the amendments of 1974 and 1976 were motivated by Ralph Nader’s activism and public objections to government secrecy in light of the recent Watergate scandal. While ASNE maneuvered private connections to initiate the Moss Subcommittee, Nader organized 100 student aids and arranged visits to federal agencies resulting in a comprehensive analysis of agency FOIA compliance. This type of public political action by private citizens resonates with Offe’s characterization of the New Social Movements. Offe claims that the new paradigm of politics no longer rests on the simple dichotomy of Left and Right, nor does political action rely solely on the activities of the political parties, Democrat or Republican in the US. Nader’s form of activism and FOIA advocacy, like Offe’s NSM’s, represents a politics of neither Left nor Right, Democrat or Republican, but an issue of individual liberation and the values of autonomy and independence. A 1972 House Government Subcommittee on Foreign Relations and Government Information, the successor to the Moss Subcommittee, further reinforced Nader’s cause by concluding that the federal government failed to successfully implement FOIA. The major impetus for the strengthening of FOIA came not from public, but private interests. As Nader himself explains:
We were the main outside factor on Capitol Hill on this issue [the amendments]. The media liked the idea, but they weren’t really lobbying on it…We tried to take advantage of the Watergate reform atmosphere, which had put words like secrecy, coverup, hush money, etc. in the headlines. We pointed out to Congress that the culture of secrecy in the executive branch would taint the legislative branch as well by allowing abuses to fester, at which time Congress would be blamed along with the guilty department or agency…There were a lot of congressional allies, most of whom are gone now, and there were people from the consumer protection and environmental movements along with worker safety allies” (author’s interview in 1988, Foerstel 1999: 48-49).
Due to pressure from this coalition of NSM’s, FOIA was strengthened through amendments guaranteeing lower fees, in camera judicial review of contested documents, judicial sanctions against “arbitrary and capricious” withholding, partial segregation of exempted portions of documents , narrowed definitions of classified and law enforcement information, a greater number of agencies pertaining to the act, and specific periods of response time for requests, appeals, and lawsuits. These amendments characterize the attributes of the FOIA process today and serve as a model for FOI laws worldwide.
From Cooper’s moral indictment of secrecy, FOIA has come a long way to Nader’s institutionalized reform movement that served as an effective last step in ensuring the effectiveness of the law as a legal process that could be routinized and perfected by citizens and bureaucrats alike. Accompanying this process, we see that FOIA discourse has been overtaken by lawyers and legal logic, constantly refining the finer points of the law and establishing precedents cataloged in places such as the Department of Justice’s FOIA Handbook, updated now on an almost yearly basis, which bureaucrats utilize to inform their FOIA request decisions. While some of these shifts in thinking about information access in America have informed other countries access practices, the American story itself encapsulates the key transformations allowing for the proliferation of FOI worldwide. Central to the transformation is not a sudden democratic enlightenment, but an expansion of uses for information access, the reinforcement of citizen’s need and right to obtain information, and a re-orientation of the relationship between the state, its citizens, and state-held information.
According to FOI advocate Thomas Blanton (2002), head of the National Security Archive NGO in Washington D.C., the global proliferation of FOI began in earnest due to global changes taking place during the 1990’s, what he calls the “decade of openness.” Specifically, Blanton makes note of the end of communism, the unprecedented declassifications of the Clinton administration in America, the emergence of truth commissions in places like South Africa and Eastern Europe, the use of the internet to bypass censorship and state-controlled media, and, of course, the enactment of FOI-type legislation by 26 different countries. Initially, the trend towards greater openness appeared to hit a road bump when the events of 9-11 brought about a worldwide war on terrorism, but aside from the US, most countries of the world have not created significant new obstacles to greater access. Meanwhile, FOI advocates argue that greater openness could help fight terrorism by alerting citizens of potential threats and bolstering alliances between friendly nations.
Increasingly, Blanton notes that FOI advocates are locating new uses for access laws and Blanton himself argues for several novel ideas in his essay: “Openness advocates are successfully challenging entrenched state and bureaucratic power by arguing that the public’s right to know is not just a moral imperative; it is also an indispensable tool for thwarting corruption, waste, and poor governance” (2002: 52). Hence, FOI has transformed from a moral value into an instrument, a “tool” for citizens or groups of citizens to obtain goals.
In countries with a democratic tradition, Blanton attributes new scandals as a catalyst for FOI support, while the collapse of totalitarian regimes in places such as Eastern Europe has been enough to inspire FOI movements. But in more generalizable terms, Blanton recognizes globalization as the driving force behind the proliferation of FOI: “Today, as a consequence of globalization, the very concept of freedom of information is expanding from the purely moral stance of an indictment of secrecy to include a more value-neutral meaning – as another form of market regulation, of more efficient administration of government, and as a contributor to economic growth and the development of information industries” (2002: 53). FOI has become one among many forms of regulation of government or international corporations, promoting or demanding full disclosure. Additionally, supranational institutions of globalization, such as the World Trade Organization (WTO), the European Union or the North Atlantic Treaty Organization (NATO), may promote or even demand greater access between and within member states. Blanton calls openness an emergent norm for democracy, a contemporary expectation for the definition of democratic governance.
it's the 5th, yest 5th installment of this chapter. now it's just writing itself. can you keep up? is anyone reading this? well, if so, tell me if this is starting to make sense!
____
Of course, Freedom of information law did not originate in Poland. In the 19th century, Sweden became the first democratic state to explicitly offer their citizens access to government information and open up lines of communication from the state to the public. In the late 19th century, Colombia passed an access law and Finland, formerly part of Sweden, would be the next in 1950. In 1966, the United States passed the Freedom of Information Act (FOIA), the first law in the world allowing anyone to request documents from the American government. The American law slowly began a movement with global ramifications. In the 1970’s and 1980’s, many Western countries adopted FOIA laws. But not until the 1990’s did the worldwide FOI movement gain momentum. Latin American, Eastern European and Asian countries joined their Western counterparts in passing legislation as a growing number of nations felt that FOI laws and right-to-know articles represented natural indices of democracy. Today, more than fifty countries have passed similar-minded FOI laws or right to know amendments and over a dozen more countries have such laws pending. But why have FOI laws proliferated so widely and why now? If access to information and the right to know appear as such a natural and logical tenet of democratic systems, why did older democracies formed in the 18th and 19th century, with the exception of Sweden, not guarantee this right to their citizens earlier?
The simplest explanation for Poland’s new FOI law appears to be that following the 1989 democratic revolution and several years of reorganizing old institutions and building new ones, this newly democratic state was prepared to address and rectify its overly secretive past. This is mostly true, but not the entire story. First of all, the PRL government was not entirely secretive, nor was or is the current democratic state entirely open. During its time, the PRL’s censorship policies changed from tight-fisted to somewhat lenient or open to underground circulation possibilities. It was never a free press however. Censorship ended in 1989, but the laws and traditions of secrecy remain to this day. Some of these laws have been changed, but new laws have reasserted the right of the state to declare information confidential in an almost arbitrary manner. On its entrance to NATO, Poland was required to pass a new secrecy law ensuring order and security to its information. And in 1998, Poland passed a law protecting privacy which has been interpreted and extrapolated into a large number of arenas from court documents to phone books. The Law on Access to Public Information in 2001 represented the first active attempt to swing information access towards openness, rather than simply breaking down the old secretive barriers of censorship and personal intrusion.
Second of all, Poland did not invent a FOI law purely out of its recognized need or right to know about the activities of its government. The access law did have a precedent in the democratic Constitution of 1997, article 61, section (1) which states: “A citizen shall have the right to obtain information on the activities of organs of public authority as well as persons discharging public functions.” However, this article failed to create an administrative procedure by which citizens could request information from the government. Rather, the article derived from similar sentiments in declarations such as the 1948 UN Declaration on Human Rights (Article 19) and the European Convention on the Protection of Human Rights and Fundamental Freedoms (Article 10). Further, all of the other transition democracies from Eastern Europe included some form of a citizen right to know in their constitutions as a key index of their new order. As former Supreme Court justice and constitutional commentator Wojtek Sokolewicz explained to me, Poland was following the model of other contemporary constitutions throughout Europe. But the legal and constitutional experts involved in writing article 61 in 1997 did not play a role in passing an FOI law, nor did they see it as an urgent necessity.
Similar to the right-to-know article of the Polish Constitution, the Polish information access law clearly followed a model set forth by other countries throughout the world. According to FOI advocates worldwide, this model originated in Sweden in the 18th century and Scandinavia continues to represent the ideal for transparent government today. The President of Transparency International Polska, for example, in explaining the importance of the information access law to democratic traditions, pointed out, “It is valuable still to remember that the oldest act of law concerning access to information reaches back to the second half of the 18th century. It sounds improbable, but it is true. It was the Swedish law, which today has the rank of constitutional power” (2002: 11). Even within the bureaucracy, a spokesperson at the Ministry of Internal Affairs pointed to Scandinavian bureaucracy as a model for how he wished Polish bureaucracy could function.
The Swedish example, while widely cited as an origin story and contemporary model, rarely gets discussed in historical or genealogical terms of philosophical lineage. However, in certain cases, such ideas are expounded on by the more scholarly advocates, especially amongst historians and archivists, who constitute a key member of the international FOI community. In the Freedom of Information Review, for example, a small journal published six times a year out of Australia and with an editorial board of renowned international FOI figures, journalism law professor Steven Lamble recounts the Swedish origins of FOI through the biography of Anders Chydenius (1997: 2-8). In 1765, when Finland and Sweden still made up a single constitutional monarchy, a Finnish clergyman named Anders Chydenius was elected to the Swedish Parliament. Chydenius had studied a wide range of courses at the University of Uppsala in Sweden, graduating with a master of arts in 1756. He furthered his scholarly pursuits in coordination with his legislative work and in 1765 he authored The National Profit which promoted absolute free trade throughout Sweden. While Chydenius’s work was not translated into English at the time and therefore probably had no influence on Adam Smith, his parallel ideas on free trade and markets actually preceded The Wealth of Nations by 11 years. Upon joining the Swedish Parliament, Chydenius proposed sweeping democratic reforms, including the end of censorship and the establishment of rights such as freedom of the press and freedom of information. While Chydenius was influenced in these ideas by his contemporary democratic philosophers, he was also influenced by the Chinese Tang Dynasty (7th-9th century A.D.), particularly its establishment of an “Imperial Censorate.” This Imperial Censorate was made up of scholars who recorded and noted all government operations and were allowed to freely criticize the Emperor. According to a pamphlet Chydenius wrote in 1766 entitled “Report on Freedom of the Press in China,” the Emperor was expected to “admit their own imperfection as a proof for their love of the truth and in fear of ignorance and darkness” (quoted in Lamble 1997: 3). But while 7th century China inspired Chydenius, the motivating logic for his ideas stemmed from Enlightenment discourses promoting democracy. Yet, no Enlightenment philosopher ever explicitly discussed the concepts surrounding freedom of information. They certainly spoke about press freedoms, freedom of speech, and the rights of citizens to hold elected officials accountable, but the explicit formulation of FOI only came much later. For 20th century observers, especially FOI advocates, FOI appears as a natural outgrowth of Enlightenment thought on democracy. And in America, arguments promoting an information access law touched upon the same discursive and metaphorical tropes deployed by Enlightenment thinkers to promote democracy. Specifically, they spoke of the process of revealing truth to the public as a movement from darkness into the light and of greater openness as a form of progress of civilization.
However, it is significant to note that Lamble provides us with neither a linguistic genealogy of the term “Freedom of Information” as it stems from the Swedish context, nor any sense that the Swedish law differed from other forms of governmental transparency. Rather, Lamble’s argument, widely supported throughout the international FOI community, links Chydenius, and Sweden more generally, with contemporary FOI law in spirit alone, not through concrete linkages. The largest obstacle to articulating FOI to Enlightenment discourse concerns the nature and definition of “information” during the 18th century as compared to the late 20th century when FOI laws seriously began to proliferate worldwide. In a manner similar to the distinction between information flows in the PRL era and FOI law, the transformation of FOI and possibly of information more generally, stems from the multiplication of references over the course of the 20th century. The Chydenius story has much more to do with the morality of information, knowledge, and truth, while the multiple possibilities for FOI today has rendered the law, at times, amoral, but at the very least ambiguously moral. The best historical model for this transformation comes from the history of the American FOIA which reveals a fundamental shift in the motives of those supporting the law and its later amendments, from an almost purely moral intent to a matter of rights, revisionism, and governmental efficiency.
Here in part 4 I'm attempting to turn a corner and move the focus away from the ethnographic findings, descriptions, and explanations that dominated the first 3 parts and into a more historical and analytical argument about the larger context of possibility for FOI legislation. It's still punctuated with the ethnographic, kind of, i think. Anyways...
______
While describing the motivation behind information access as a function of political capital appears justifiable, it also sheds the law and the participants in its passage in a somewhat cynical light. Unfortunately, most of the chapter up to now has only reinforced this interpretation. However, other, more high-minded goals are also at stake and they cannot be discounted. The ethnographic accounts let us into the world of information access advocates and demonstrate the conflicts between two coalitions of transparency NGOs, but they do little to illuminate the wider historical and social fields which do not so much determine as allow for or make possible the emergence of a movement towards an information access law in the first place. The more abstract ideological, theoretical, and even philosophical arguments and motives for information access in Poland offer a broader context to help us answer a fundamental question: why now?
First, anti-corruption organizations wanted to pass the law as one part of a larger strategy to fight corruption, a campaign which did not begin until the late 1990’s. The anti-corruption ramifications of the information access law were quite clear to my subjects. As explained in the previous chapter, there are complex reasons why the anti-corruption movement itself did not emerge until the late 20th century. Second, Poland did not invent FOI legislation. Rather, it adopted a model based on an increasingly popular idea for legislation which did not emerge and begin to proliferate until the late 20th century. The history of its emergence will be better outlined below.
*
Henryk Wujec was a senator when the Sejm passed the Law on Access to Public Information in 2001 and he served as the chairman of the special Sejm commission to develop the law. As a key figure in this process, I was fortunate to have had an opportunity to meet with him and discuss his role, as well as the wider ramifications of information access for Poland. The law, he felt, was an especially sweet success in relation to his many years struggling for the democratic resistance movement during the 1970’s and 1980’s. Henryk Wujec is nothing short of a legend for his leadership during that time.
Several weeks after our meeting, I again encountered Wujec. I had been invited by a friend to a meeting on civil society in the EU at the European Economic Forum. There, in the basement of the Warsaw School of Economics, I had a few appetizers in the reception room and stopped to talk with a number of different people. Upon seeing me, he walked over to my conversation and immediately picked up our previous conversation on its most contentious point, a point that had either irritated his sensibilities or intrigued his curiosity.
“The Law on Access to Information, how can you not say it is for fighting corruption? This is obvious.”
I had actually raised the question as a devil’s advocate, skeptically questioning what I had begun to feel was an accepted logic. “Well no, I think it’s possible, but it’s not certain to do that. Freedom of Information everywhere else is not at all about fighting corruption.”
“Well what about in America? Your law was a response to the corruption of Watergate.”
“Actually the US Freedom of Information Act is from ’66. Watergate happened in ’73. But they did strengthen the bill at that time.”
Wujec was reluctant to agree with my historical point, “It makes no difference, it is for corruption. It is obvious.”
The logic shared by anti-corruption advocates is actually quite simple. An information access law brings about greater transparency in the activities of public officials, thus helping reduce the possibilities that illegal acts can occur. Because anti-corruption experts assess corruption as a problem of opportunities versus payoff, a more transparent environment makes corrupt activities more risky, thus decreasing the overall rate of such behavior. In theory, this sounds promising and it may be the case that information access legislation, in conjunction with other transparency measures, may result in a more transparent bureaucratic environment and subsequently, less corruption. However, no studies show this and very few anecdotal examples support this finding either. It may be more likely that FOI can help by making a potentially corruptible bureaucrat think twice about taking a bribe or making an illicit deal, in which case the bureaucrat would probably remain silent about their second guessing. On the other hand, there remains the possibility that corrupt bureaucrats will simply find another way to get around a system which will always have some degree of secrecy. After all, if corrupt activity occurs in an unofficial manner within the official environment, the bureaucrat involved will not generate any information concerning the illicit transaction. Without the existence of public information, what type of request could a citizen make that might allow us to point out bureaucratic corruption? One might request information about corrupt activities within a given department, but such self-incrimination could only appear absurd.
Despite, or rather in complete neglect of such logical arguments, Poland’s anti-corruption organizations all sought to pass information access legislation as a positive addition to the growing strategy of anti-corruption initiatives. While they freely admitted that the single law alone would not bring an end to corruption, they all shared the optimism that it represented a step in the right direction.
*
But in many countries throughout the rest of the world, especially those with laws preceding the 1990’s, corruption did not instigate the adoption of FOI laws. Rather, these states recognized FOI as an integral element of a democratic system. However, this also represents a relatively new shared logic which demands that we question some basic assumptions and central tenets of freedom of information: what exactly is “information”? and if FOI is central to democracy, then why were such initiatives excluded from the vast majority of democratic states established in the 18th and 19th centuries?
In the early 1970’s, Polish dissident in-exile Leszek Kolakowski wrote an essay entitled “Hope and Hopelessness,” attempting to distinguish between those causes which pro-democracy Poles might hope to reform in the communist state and those Kolakowski deemed hopeless. After a brutal crackdown on outspoken dissidents in the late 1960’s, the resistance movement had mostly become disillusioned with any prospect of reforming the state, so Kolakowski and other of the more pragmatic intellectual leaders felt it was time to define the parameters of possible reform. Freedom of information fell into the latter category of hopelessness.
During my fieldwork, I asked Jan Stefanowicz, author of the Law on Access to Public Information, about Kolakowski’s essay, but further, why such legislation waited 11 years following the revolution before it passed. In response, he became slightly agitated with my question, telling me simply that no prospect for information access existed before 1989. In fact, as a lawyer for a cooperative housing project in the 1980’s, Stefanowicz had pressed for more access and less secrecy in the workings of the cooperative’s governing boards. The ideal of openness was not lost on him or any other members of the resistance, even if the exact form of access differed from the process of requesting information and then awaiting a response. After 1989, he explained, such an information access law was not a main priority of the new government. First, they needed to establish new and effective democratic institutions, create conditions for market capitalism, and end many of the restrictive authoritarian practices which had tormented citizens during the communist era. Information access, while important, represented a secondary concern.
That information was not of central concern to Stefanowicz and others while they formulated the designs for Polish democracy reveals something about the changing nature of “information” itself in both Poland and the wider world. Even in 1989, when the opportunity arose for a more democratic balance of information flows, who could have anticipated the importance of such an issue or the need to make it central to democratic designs? Technology lagged behind most of Europe and the internet did not exist. And markets did not exist with the exception of black markets which possessed their own form of black market information transfer.
Janine Wedel’s ethnographic insights offer us an intimate portrait of how information flows worked during the Communist era in Poland. In her ethnography The Private Poland (198X) and an edited volume she collected, The Unplanned Society (1992), she offers us valuable glimpses into the mechanisms of information exchange, their purpose, and their subtleties. According to Pawlik (in Wedel 1992: 78-94), information exchange most commonly took place amongst coherent, but unofficial groups called srodowisko (literally, environment, though it derives from srodek meaning circle) of approximately 20-30 people tied together by either family or social proximity. Upon meeting, what Pawlik calls “switchboard opportunities” (1992: 82-86), members would share what information they had with each other on a wide range of topics from personal to national news, health, trade/business opportunities, or people and families in need of help. Certain homes or families held more weight in the srodowisko and these were called “open houses” (1992: 83), where visitors were most common. Poland was a place without reliable forms of mass communication due to the censorship regime and lack of access. While few people believed what journalists printed, the resistance had a difficult time creating their version of the news, much less distributing it. Even still, information flows through word-of-mouth and an endless stream of middlemen, while highly inefficient, still allowed a semblance of order and structure. Business transactions, for example, never happened by chance because it was highly unwise to deal with unknown people. It was always necessary to make business arrangements through the srodowisko, even if it required moving through several middlemen and into other srodowisko.
In this context, information took on a special flavor and meaning. And at the very least we can recognize important differences between “information” in the context of the PRL state in Poland and “information” as subsumed under FOI law. First, information shared amongst the srodowisko served as a way for families to meet some basic needs or even, at times, as a matter of survival. During times of severe food rationing, srodowisko worked together to protect their own. And Kazimierz Wyka writes of a similar occurrence in Warsaw during the Nazi occupation (in Wedel 1992: 23-61). Interestingly, these exchanges often included information on corrupt transactions, justified by need and by state’s failure to uphold a basic social contract. In fact, information flows could be said to represent a form of resistance itself, especially when the information was more accurate news from the West. While the communist state purported to supply all of its citizens with their basic needs, including informational needs, individual acts of resistance acted upon personal desire, whether that meant a desire for a pair of blue jeans or a desire for knowledge. That so many Polish citizens were so well-informed about their situation itself represented an absurdity of the communist system, a fulfillment of personal desires which seemingly overwhelmed the state’s perceived need to control information and citizen’s need to know.
Information in FOI law, on the other hand, represents the assertion of a right to know in a democratic state. It essentially amounts to a form of accountability whereby a state allows its citizens to request information accurately reporting the state’s activities. As an end goal, citizens can hold their democratically-elected government accountable by fully understanding their state’s activities and making an informed decision in the voting booth. Inform does not represent resistance, but perhaps reform, personal rights, or even the status quo of a democratic system.
just more writing, continued from last week. i didn't even add any photos, this is so academic.
***
The Andrzej G. interview debacle clearly reveals something, but what exactly? First, in reference to a more static explanatory approach, it suggests certain qualities of the social norms of communication, especially when communicating with relative strangers, within this network of elite political and NGO actors. I call these qualities static because this line of analysis demands that I as the ethnographer make a list of accepted though usually implicit rules either determining behavior or adequately defining the regularities of such behaviors. In this respect, I found that making a cold call to one of the individuals involved in passing the information access law was useless and would go unanswered. Better was a reference, best was to have the initial referent talk personally with the desired individual beforehand. From contact to contact, I established a network of subjects, some of whom were more or less interested in speaking with me. From this point of view, the Andrzej G. connection was actually quite weak. A number of subjects who either did not know him personally or who had had falling out experiences suggested I contact him, but did not want me to reference them or, as one told me, “don’t tell him I said you should talk with him, don’t even tell him we talked.” As if to prove some divisiveness, one member of the opposing coalition attempted to forbid me from talking to Andrzej G. or anyone else in the coalition.
Another general rule of access was a function of service or gift exchange. It seemed I was of little use to most of my subjects in terms of doing something for them or providing them with information they did not already know. In one interview, after discussing with me Poland’s NGO funding woes, a leader of a relatively large Warsaw NGO asked if I had any contacts in the United States who could financially assist her organization. Unfortunately, I did not and subsequently, she showed little interest in me. However, in one special case, I established the veracity of this rule by forming a lasting bond with Professor K. Over the course of my fieldwork time, we frequently had meetings or would encounter each other by chance in the Institute’s computer lab. At these times, we would exchange niceties and stories. As time went on and I spoke with more people, began to fill in the story of the law’s passage, Professor K. became increasingly interested in myself, or rather the information which I could offer him. It became a game of information flows we would play. I would tell him some facts I had established and he would fill me in with more details or offer a rumor he knew of which I might investigate further. By the end of my time there, when I would see Professor K. at the computer lab, he would playfully greet me as “the detective” or “sleuth.” For my part, he was invaluable in making contacts and assembling the stories. However, it was quite interesting to learn through others that even though I had questioned him at several times about his personal past, he had not been completely forthcoming about his membership in the Communist party and his close ties with high-ranking government officials during the history of the law’s passage. But in any case, these various contacts and what they revealed to me proved that information access is a direct function of social relationships and social proximity.
While these social codes offer some degree of explanation, they lack specificity in terms of explaining why my case brought about such difficult reactions. First, as stated above, I did not expect this particular task, recounting the history of the law’s passage, would result in such difficulties. Rather, I expected to find a simple story and subsequently move on to other areas of interest related to the information access community and how it functions in terms of advocacy and support for information requestors more generally. However, such a community does not yet exist and it was unclear whether either coalition or some combination of both would eventually bring about such a community. Instead, the most immediate end of the information access law was the law itself. At stake, above all, was valuable political capital. And underlying the attainment of capital, network building, formation, and relationships amongst the organizations and individuals involved. Asking Professor K. to describe for me the reasons for the fierceness of struggle between the coalitions, he responded with a local proverb: “Success has many mothers, but failure is always an orphan.” That so many subjects wanted to call my attention to their involvement in the information access law and that a few wanted to either lay blame for any potential future problems on their opponents or disassociate themselves entirely from the idea only serves to fuel this argument that the law was a highly charged political token.
Through multiple conversations, I learned of the key elements of this capital as it relates to the information access law, but truly more generally to transparency initiatives. First, transparency is a key watchword of value and reputation within Poland. To associate one’s self with transparency implies a certain moral high ground, as well as a form of defiance to the powers that be. As explained above, in the chapter on anti-corruption, many corruption groups simply define their politics as oppositional to the party in power, sustaining the seemingly endless Polish tradition of viewing power as my – oni (us versus them). Transparency initiatives are normally viewed as holding the powerful accountable to the citizens who elected them. Second, putting the information access law on one’s resume can only bolster one’s identity in the international arenas of ever-dwindling non-profit funding in Eastern Europe. In the direct aftermath of 9-11, NGOs throughout Eastern Europe suddenly witnessed a sizeable decrease in funding possibilities as money moved east. Organizations like George Soros’ Open Society Institute, which had prided itself on its origins in Eastern Europe – part of Soros’ personal quest to thwart communism in his homeland of Hungary – now began cutting money to its NGO network, such as the Stefan Batory Foundation in Warsaw, to better serve NGOs in countries most affected by Islamic fundamentalism. Now, more than ever, it is important to show the remaining international funding agencies that your NGO is a successful and responsible agent of change. According to one subject, the battle between these two coalitions represented an identity struggle over who gets anti-corruption done in Poland and who is best known for doing so.
Hey, read yesterday's post first. Then it starts up here
______
The second coalition seeking to pass an information access law began in the middle of 1999 and was led by Andrzej G., then head of the Press Freedom Monitoring Center (CMWP), a small watchdog organization technically subsumed under the journalist’s society SDP, but mostly funded independently. Initially, SDP was part of the CMWP coalition, but after the Adam Smith coalition forged its partnership with the Prime Minister in 2000, SDP joined their coalition. Additionally, Andrzej G. recruited a well-known legal sociologist from the University of Warsaw, civil rights lawyer, and member of the Helsinki Foundation for Human Rights (HFHR) in Warsaw, Andrzej R. Complementing this core group, the Stefan Batory Foundation’s Anti-Corruption Program offered technical support and the Foundation itself, part of the Soros Open Society Institute network, gave funds to the coalition. Andrzej G. and his coalition were particularly skillful at obtaining funds for their information access law project, especially from international donors such as the Westminster Foundation for Democracy and the World Bank’s Warsaw Office.
Both coalitions had members knowledgable in the fields of law and freedom of information. Both had experience in lobbying for and passing legislation. And few ideological or structural issues divided the two coalitions with one exception. The CMWP coalition suggested that the bill include the creation of a government office to which information requestors denied access by the government would be allowed to appeal for review. The Adam Smith coalition felt that the new office was unnecessary, the state bureaucracy already bloated enough, and the courts could adequately handle any appeals necessary. However, amongst core members of both coalitions to whom I spoke, none seemed to consider this issue insurmountable.
Instead, members of the Adam Smith coalition pointed to funding as the most prominent divisive factor. They highlighted their own funds, approximately 10 thousand zloty (around $2500 US) for four years of work, compared to those funds collected by the CMWP coalition, approximately 400 thousand zloty for one year’s work. Independently of one another, several members of the Adam Smith coalition called their service to the cause praca organiczna or “organic labor,” referring to a 19th century tradition amongst Polish intelligentsia during the partitions. During that time, organic labor was a form of subtle resistance to the partitioning powers who attempted to suppress Polish culture and nationalist sentiment. Rather than outright rebellion, organic labor was a pragmatic ethics of pedagogy, learning Polish traditions as a way to keep the nation alive. In this same manner, proponents of the information access law claimed to have sacrificed any financial or personal benefits for the greater good of Poland. Alternately, they implicitly implied that the other coalition only sought to pass the law for financial gain and personal reputation.
While their assessments may appear overly dramatic, it turned out that their accusations were not without any value. Some actually intimated and several individuals explicitly claimed that the CMWP coalition improperly utilized their funding or squandered their funds “to maintain the establishment.” I found myself in a paradoxical situation in which one coalition, made up largely of anti-corruption experts, accused the other coalition, also consisting of anti-corruption experts, as well as press freedom advocates, of corrupt activities. My initial reaction was that I was simply surrounded by paranoia, a paranoid logic fueled by these individual’s competency with understanding how corruption functions. Honestly, I found it quite difficult to believe their stories and I had no proof of any misconduct. Further, if the members of the Adam Smith coalition had proof, they never showed me. Some did, however, spread the rumors on to me. Andrzej G., for example, had been fired from his position at the CMWP following his coalition’s failure and related to rumored charges of embezzlement. Following either his resignation or dismissal, the head of SDP told me that she was the victim of an internet scandal perpetrated by Andrzej G. in which he posted her name and telephone number on an internet site advertising prostitutes. This scandal was also under investigation by the prosecutor’s office.
Because I had the distinct feeling that my subjects from the Adam Smith coalition had shared these stories with me to influence the way in which I would recount the history of this law’s passage and also because, as I mentioned above, I had a sense that these subjects operated with a paranoid logic fueled by their perceptions of ubiquitous corruption, I kept these accounts and accusations at a safe distance from my analysis of the law’s passage. That is, until I met Andrzej G.
*** fieldnote excerpt – 12.4.2003
From one day to the next, fieldwork arrives like the weather. With some forecasting, a little bit of study, certain events come expectedly. But anomalies occur, whether because you forgot to watch the weather, lack of preparation, or misunderstandings. The metaphor goes wrong, however, when you suspect that other people have been talking behind-the-scenes. People know who they’re getting when I arrive, at least at times. This can be good, like today, or this can be bad, like yesterday.
Lie Big
Yesterday, I met Andrzej G., journalist for Polityka and former head of the Centrum Monitoringu Wolnosci Prasy. Of course, I knew the stories that Krystyna M.(head of SDP) told me, the shocking tale of Andrzej G.’s adolescent malice, but I hadn’t yet read the story in the paper to confirm it. I honestly started thinking the story wasn’t true and I was ready to give Andrzej G. the benefit of the doubt, let him tell his side to the UDIP story. Besides, his colleague Wroblewski (who I had interviewed the week prior) said I should contact him.
The meeting was brief. I waited in the lobby, thinking he would come down to meet me at noon. He rolled into the lobby at 10 after and although I was the only one waiting, went to the reception desk to say that he had a meeting and was I there? Andrzej G. is confined to a wheelchair, I don’t know why. But I believe it is permanent. I immediately got the feeling that he didn’t like something about me, but he didn’t entirely hate me either. He was highly suspicious of me, and led me to a small table in the corner of the lobby to talk without taking off his jacket or offering me all the coffee/tea that every other Pole offers. I didn’t take my jacket off either, his greeting made it clear that this was to be an extremely brief meeting, obviously not an interview as I had asked for. When I tried to explain my project, he quickly cut me off and said “It’s not my interest.” He told me to talk to Andrzej R. and when I told him I already had, he seemed surprised. Then he said I should talk to Ewa Letowska at the Constitutional Tribunal. Would he give me a phone number that doesn’t work? It seemed like a nice gesture. I tried to explain more about what I wanted to do, about talking with as many journalists as possible. I felt it was clearly obvious I was requesting an interview, once again, because I wanted to talk to journalists and he IS a journalist. He works for Polityka (a national weekly news magazine) and has worked at other news outlets. This is not about him being incompetent or having poor communication skills. He was obviously stonewalling and I was not so much upset as in general disbelief. I told him that in my research I had come across his name since he was the head of the CMWP.
“In what capacity did you contribute to Andrzej R.’s draft of the law?” I asked. I made it clear that I wanted to talk about arguments for and against the law or at least I tried to do so. In response, he gave me another phone number, this time to Miroslaw Wrzykowski at the University of Warsaw Law department. Though I can’t imagine bothering to call this professor nor can I see any reason to, I started wondering if I kept asking questions to which he replied to with lies, would he keep feeding me with telephone numbers and how long would this game last? I said that I understood if he didn’t have time to talk about these issues at the moment. Once again, he repeated his ridiculous statement “It’s not my interest.”
I was thoroughly mystified and not a little bit disgusted, so I said “thank you” and he wished me luck on my project. But I can’t imagine he meant it.
How many reasons does he really have to be interested or to have had an interest at one point in time?
1. When he was head of the CMWP, they were part of the coalition that drafted an UDIP proposal.
2. I have an interview from a newspaper from 2000 with him in which he talks about the importance of the law.
3. He co-authored at least one critique of the Adam Smith coalition’s draft with Andrzej R. and published it in the daily newspaper Rzeczpospolita.
4. He is a journalist and he writes about law. I am asking questions about a law.
5. He is a journalist and all journalist have been interested, in some manner, in information flows.
6. I had heard from Barbara M-S. that he currently heads another press monitoring organization at the moment.
So, okay, those are at least 4 really solid reasons to believe that Andrzej G. is lying, big time. At the very least he could have said, yes, I know about these issues, but no, I don’t want to discuss them. Does he take me for a fool? That’s 99% certain. Does this prove the other coalition correct? Not completely, but there’s more credibility there, yes. At least I am not the crazy one, I had a handful of good reasons to talk to him and a direct reference from his colleague Wroblewski. I predicted the rain, but I didn’t guess that the wind would bring such a rotten stench.
I just began re-writing an entire chapter on everything I learned about the Polish information access law. Well, not everything. But the idea is to use the story of how I got the story as an ethnographic example of how communication and interpersonal information flows operated in my fieldsite. Oddly enough, I think this will be my first truly ethnographic piece of writing I have done because I have shied away from such personalized writing up to now. Which is not to say ethnographic = personal of course, but I'm intending to write this at a different level of detail. So, please read and tell me what you think, it goes on in the extension, but not too long. I'm really interested to hear comments about organization of the ideas, how the story should progress, and what you think should come in the paragraphs immediately after the last paragraph.
***
In the course of my fieldwork, I attempted to gain access to those individuals and organizations most closely involved in imagining, structuring, and promoting information access, but, in particular, those involved in getting the Polish Freedom of Information legislation passed. One of my central and most basic research questions simply asked who had passed the law and for what purposes. The most immediate purpose of the law, to fight corruption, is the subject of an earlier chapter. But the identity of those involved in passing the law turned out to be a lengthy process, much more time-consuming than I had at first expected. Aside from the expected moments of serendipity eventually leading to a clearer portrait of the law’s history, I was forced to establish a competency for speaking and interacting with subjects, dealing and bartering information and rumors, building relationships of trust, and, maybe most importantly, knowing when to keep quiet. The process was full of enigma and paradox, eventually leading me to an understanding of the way actors in my fieldsite operate.
The first and most immediately striking paradox I encountered involved my relations and interactions with the pro-transparency organizations who had promoted the information access law. If forced to generalize their behavior, I have to call it anything except for transparent. Certainly, differences in quantity and quality of transparency were particular to each individual encounter, but the public identity of these organizations seemed to belie the actual manner in which they often operated.
First, allow me to very briefly introduce the history of the matter. Poland passed its Law about Access to Public Information in 2001. In 1997, the Adam Smith Research Center, a political think tank and lobbying organization, applied for and received a small grant from the American embassy, thus marking the official beginnings of the coalition which would eventually get the information access law passed. Together with Transparency International Polska and the Society for Polish Journalists (SDP), the Center formed a coalition that drafted a bill and brought it to then Prime Minister Jerzy Buzek’s office in the summer of 1999. Buzek lent his support to the bill and after moving through a somewhat lengthy parliamentary commission where legislators hammered out the eventual details of the law, the President of Poland signed the law in October of 2001. This story appears quite straightforward.
The passage of the information access law was not big news in Poland, most Polish citizens even today remain quite unaware of the law, and even political and legal experts who know of its existence know little or nothing about the organizations and individuals involved in its passage. In the course of my fieldwork, I found very few people willing to speak about information access law simply because very few information access experts existed. Those who wanted to pass the law and the community of interested parties were one in the same.
I was quite fortunate to locate Professor K., a central figure in the coalition. In fact, he was the very first person I interviewed. Before embarking on my fieldwork, I had made an extremely fortunate contact with Dr. Janine Wedel, who has been conducting anthropological fieldwork in Warsaw on and off for the last 25 years. Dr. Wedel has been friends with Professor K. for all of those years and with her reference in hand, Professor K. warmly welcomed me to Warsaw and even extended an invitation to the Institute of Political Studies at the Polish Academy of Sciences. Ironically, Dr. Wedel had no clue that Professor K. was so deeply involved in the passage of the access law. She merely told me that he was knowledgable and well-connected, so he might helpfully assist me in finding those individuals responsible for the law’s passage. So, when I first met with Professor K., my first official fieldwork interview, I felt quite relieved and even blessed with such good grace to have so quickly located the person claiming to have initiated the Polish information access bill process. It began to feel that the anthropological gods were smiling down on me and perhaps, just maybe, I would be making quick work of this fieldwork thing.
However, in that first meeting, Professor K. instilled in me the smallest suspicion of a larger problem underlying the passage of the access law. He made light of the many “critics” of the coalition’s bill and urged me to investigate these critics more fully. But there was a certain mysteriousness about the meeting, a suggestion of something extremely non-transparent surrounding the history of this transparency initiative. Professor K. gave me contact information for two other leaders of the coalition, including the author of the bill, and I was instructed to tell them that Professor K. sent me. After these two interviews, I became convinced. The passage of the law was subject to political maneuverings of a highly un-transparent nature involving every major anti-corruption and pro-transparency organization in Warsaw. In the course of my accounting for this history, I learned that the divisions and tensions engendered by the law’s passage still carried over to the present day, embodied, at times, in the manner by which I was allowed to learn this history in stops and starts, through contradictory and competing accounts, and, at times, despite misinformed participants. Much to my surprise, by the end of my fieldwork I had learned that, in all probability, none of the participating individuals or organizations of which I learned about ever knew the story of the law’s passage as well as I did at the end of my fieldwork. Professor K. was happy with this, not only because he remains active in enacting legislation related to anti-corruption, but also because he is a political sociologist interested in studying how political elites get things done.
(more coming soon...)