FOIA Communities and their Growing Pains

Wob-deskundige Roger Vleugels beschrijft in onderstaand Engelstalig artikel de problemen rond gemeenschappen die rond openbaarheid van bestuur zijn ontstaan.

Freedom of information is a very young right. Young in every perspective: legal, political, cultural. This goes for the FOIAs of the nineties or younger but also for the older and oldest FOIAs. A law in power for only three or four decades is a very young law.

Being young means that there will be growing pains on the road to maturity. From a legal perspective the FOIAs are not even a juvenile. As a consequence the FOIA communities are also in maturing processes. Together this causes pains but more important challenges and opportunities for all those committed to freedom of information.

A whole range of FOIA communities

One of the first challenges is to understand each other’s position. The growing process is for instance visible in the fact that a lot of FOIA specialists do not, or not enough, distinguish the different positions in the FOIA field. Speaking of the FOIA community and not of the FOIA communities shows this.

It is quite normal in a young situation not to distinguish between for instance:

  • campaigners [mobilizing people];
  • lobbyist [mobilizing content];
  • practitioners [requesters and legal support;
  • academics
  • the other side 1 [govt bodies/servants]
  • the other side 2 [commissioners/judges]

These six totally different positions are now in the process of creating own infrastructures. Next to general FOIA conferences, journals and mailing boxes there are first attempts for categoral ones like for commissioners or practitioners. This is hopeful but comes, of course, with growing pains. One of the challenges is to keep in contact; to have mixed meeting points. Creating added value from mixed and from categoral positions is an difficult but very interesting opportunity.

A whole range of cultures

To distinguish between the above mentioned six FOIA communities is not yet common. This is only one aspect of the mainstream one-dimensional view. Another aspect is to neglect almost complete local, national differences in political, legal and cultural traditions.

Assessing these differences will show that there is not one approach for freedom of information. The position of for instance parliaments, civil society, press, administrative law, trias politica, constitutional state, legal advisors and so in is in countries very different.

In some countries there is no constitution; the division of powers is operational in very different ways; the relation between representative and participating democracy is everywhere different; some countries do not yet have a true independent press; other countries do hardly have an active civil society; etc. etc.

In Europe alone I see, from a FOIA perspective, five complete different cultures:

  • Scandinavia/Baltics;
  • Atlantics;
  • Central/East;
  • Latin/Roman;
  • Balcans

This scheme is helpful but only a first step. To understand society and/or FOIA a much more detailed assessment is necessary. This division in five does not explain the differences in FOIA practice between for instance Lithuania and Estonia, or Belgium and The Netherlands, or Bulgaria and Macedonia.

In general you may say that in three of the five European FOIA cultures the maturing process is showing hopeful signs; in Central/East and Latin/Roman it is poor and shameful.

Local assessment

In a lot of work, especially of the internationally operating FOIA campaigners and lobbyists, is far too much lacking a customized approach. There is too less local assessment, and too much a one-dimensional idea about FOIA. This part of the NGO industry is, if they continue their not customized approach, at the brink of becoming counterproductive.

It is absolute necessary to assess the local cultures as mentioned above and to build from that. It is necessary to leave the one-dimensional approach and the ivory towers. Only customized approaches for campaign, lobby and practice are truly helpful.

Detailed analysis and assessments

Recently, for instance, internationally oriented parts of campaigners and lobbyist are focusing on

training legal advisors and organizing law clinics. This is not understandable. In non of the countries with a FOIA practice in a more or less juvenile and maturing position legal advisors where crucial in creating and maintaining this. It is necessary to learn lessons from practice; meaning it is necessary to understand why in non of these countries legal advisors plaid a crucial role.

Why are in some countries 80+% of all requesters journalists and why in others 20-%/ Why is in some countries ne bis in idem in power and in others not? Why is administrative law in some countries even poorer than in others? Why is administrative law everywhere poor, and not only its executing aspect. Why is the relation between requesters and parliaments/parliamentarians everywhere different? Why is the position of civil society everywhere different? Etc. etc

FOIA is not about law

Freedom of information is a right. That is crucial. The text of the law, of the FOIA and of the administrative law, is secondary. That is only a text. A lot of the FOIAs are within a certain bandwidth more or less the same. The practices, the disclosure rate show however much larger differences. The only conclusion: the culture is more powerful than the text of the law.

A detailed understanding of cultures is much more important than legal knowledge. This goes for campaigners and lobbyists and even for starting practitioners.

A second aspect is that FOIA being young generates weak decisions, rulings and even jurisprudence. A problem even bigger because in most countries administrative law and jurisprudence is anyhow weak; that is weaker than jurisprudence in for instance criminal or civil law.

Not only technics, but also tactics and details

Having said all this, at a certain point some knowledge of the law is necessary, to support the practitioners. Crucial is that those who support the law have more knowledge than legal-technical knowledge. Decisive is good knowledge about tactics and a case by case customized approach. The winning is in the details and tactics. I have filed for my clients more than 3,000 requests and consequently more than 2,000 administrative complaints and more than 1,000 court appeals; never I used the same paragraph in my complaints, appeals or pleas twice.

A couple of hundred times I went to the high court and once to Strasbourg, In my view it needs a lot of request experience before filing complaints. Dozens and dozens of requests. The same goes for court appeals; it needs dozens and dozens of complaints before it is okay to try the first steps into courts. And so on.

I see too much eagerness and too quick steps to courts and even to Strasbourg. Maturing means in my view to be more patient, more selective and understanding, regarding the weakness of administrative jurisprudence, the weakness of high court and Strasbourg rulings.

Harming transparency

Hugh challenges ahead. The one-dimensional approach, the lack of local assessment, not being matured, etc means that especially the internationally operating campaigners and lobbyist are at the brink of harming freedom of information.

Direct or via the backdoor all kinds of worsenings are entering the FOIA practice. The public interest test, the third party complaint, the exemption intellectual property, lowering existing standards, enlarging the power of the privacy exemption; all examples of worsenings partly resulting from not enough discussed international actions.

Growing pains

Contact between the FOIA communities is necessary but has to be much more explicit on exploiting and understanding the differences. Only then there will be added value. There is not one community and not one culture. Thousand flowers are always more beautiful than one.

Roger Vleugels

Legal advisor and lecturer FOIA/Wob

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