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gram contained appropriate controls against political interference
on spending. The guidelines had no real effect on the operation of
the program: They were drafted, the of¬cial conceded, “for cosmetic
purposes.”57
This was not the ¬rst time that a federal government department
had actually created documents following an information request. In
an earlier case, another federal department commissioned a special
audit of a government-funded group after a journalist ¬led a request
regarding possible links between the group and Tamil terrorists. The
department took almost two years to respond to the request; in the
end, it was able to counter damaging inferences from older docu-
ments by relying on the positive results of the specially commissioned
audit.58


Lying in unison
Canada was one of three countries that adopted access-to-infor-
mation laws in 1982. The others were Australia and New Zealand.
The three had much in common. All were af¬‚uent, anglophone, sta-
ble, parliamentary democracies. As such, they were susceptible to
the importation of an American innovation and able to absorb the
costs and disruptions that would follow from its adoption. For many
years the three countries were classed together as examples for other
countries considering the adoption of a disclosure law.59 By the cen-
tury™s end, however, the access regimes seemed to share a common

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in¬rmity, as of¬cials attempted to tighten control over the release of
politically sensitive information.
An appraisal of the health of New Zealand™s Of¬cial Information
Act “ often regarded as the most progressive of the three “ was com-
promised by the lack of good data on the use of the law or its internal
administration.60 However there was evidence of a shift in dynam-
ics in the operation of the law. In 2003, New Zealand™s ombudsman,
Sir Brian Ellwood, told legislators that his decade of service as a ref-
eree on disputes over access to information “had not been an easy
time.” There had been rapid growth in the number of information
requests, Ellwood reported, and requests themselves were “increas-
ingly targeted and sophisticated.”61 A similar conclusion was reached
by British of¬cials who conducted a study tour of New Zealand and
Australia in 2003:

The picture as described to us is clear: in the early days, requests
were typically made by individuals or local groups wanting infor-
mation of interest to them, or relating to speci¬c causes in which
they were interested. But, twenty years on, such information was
now nearly always made available through proactive disclosure
or through informal disclosure. Most of the formal FOI requests
in 2003 came from journalists or by the research departments of
opposition parties. . . . Such requests were perceived by of¬cials as
being nearly always politically motivated.62

A senior Cabinet of¬cial had earlier acknowledged that the govern-
ment sought to “manage the process” of disclosing information, for
example by releasing information sought by a journalist simulta-
neously to the entire press gallery.63 In 2003, Cabinet Of¬ce staff
told the British visitors that they were increasingly concerned about
their capacity to coordinate the government™s responses to “politically
inspired” information requests. “We encountered here,” the British
of¬cials reported, “a real sense of the institutions of Government
beginning to creak.”64 A veteran user of the New Zealand law con¬rms
this impression, blaming the problem on the growing number of “pro-
fessional ˜communications™ or PR people whose job it is to manage
and restrict the information that reaches the public”:

There is plenty of scope for deliberate bending of Of¬cial Informa-
tion Act requirements for tactical political reasons. Sometimes it is
blatant. I recently waited seven months through an Ombudsman™s

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investigation to get some information from the Ministry of Eco-
nomic Development. Yet two weeks before the Minister, Paul
Swain, released the information to me, he had his staff drop a
bundle of the key papers I had requested to every parliamentary
journalist. Why? This is a trick used by [ministerial] staff to stop
the requester, who has done the work of obtaining the informa-
tion, from being able to write an exclusive story. After waiting
seven months and then being scooped by the Press Gallery, there
was no point in using the information I ¬nally received.65

The strains on New Zealand™s disclosure law were illustrated by
the “lying in unison” controversy. The dispute arose in December 2002
when the New Zealand Herald contacted the media advisor of the
New Zealand Labor Department, Ian Smith, to con¬rm rumors that
one of the department™s components, the Immigration Service, had
detained a suspected terrorist. Smith said he was unaware of any
such detention. When Smith™s minister publicly acknowledged the
detention, The Herald wrote an editorial that charged Smith with
duplicity. “I was let down badly,” Smith wrote in an internal media
log that day, in words he later said were meant sarcastically. “Everyone
had agreed to lie in unison, but all the others caved in.”66
The next week, the Immigration Service received a request under
the Of¬cial Information Act from the of¬ce of Bill English, leader
of the opposition National Party. The request was intended to deter-
mine how much Smith had known about the detention when he spoke
to the Herald. The Immigration Service did not provide the media
log that contained Smith™s comment. English™s of¬ce complained to
the ombudsman, suggesting that the Service had not provided all of
the documents covered by its request, and asking speci¬cally about
media logs. The ombudsman, relying on the assurances of the Immi-
gration Service, concluded that it had provided all of the relevant
information.
Soon after, however, the Herald published a leaked copy of Smith™s
comments in the media log, stirring further controversy over the
detention. Presented with evidence of misbehavior, the ombudsman
reopened his investigation. In 2004, he concluded that Smith had
consciously obstructed the original request and the ombudsman™s
initial investigation by withholding documents, and that the of¬-
cial responsible for handling the request had been aware of Smith™s
efforts at obstruction.67 Smith was ¬red soon afterward. The case had

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stretched on for more than a year, providing a vivid demonstration
of the extent to which the Of¬cial Information Act, and the of¬cials
responsible for administering it, had become entangled in partisan
politics.
In Australia, concern about government preoccupation with
the management of communications has been more pronounced “
comparable, indeed, to complaints made against the Blair govern-
ment. Two incidents during the 2001 federal election “ one surround-
ing the Howard government™s misrepresentation of its handling of
asylum seekers on the ship Tampa,68 the other stemming from its
misrepresentation of the handling of asylum seekers on another ship,
soon to become notorious as the “children overboard” case69 “ encour-
aged complaints about the government™s obsession with spin. Patrick
Weller charted the ways in which the structure of central government
had been transformed: through the politicization of the highest civil
service, the cowing of lower levels of the service, the growth in the
number of political advisors (some acting as “junkyard attack dogs”),
and the centralization of authority over communications.70
This transformation in the structure of Australia™s central and
state governments has affected the operation of the nation™s disclo-
sure laws. Procedures for managing politically dangerous requests
are now “well entrenched” in Australian government, according to
Rick Snell, who calls this the “dry rot” within the country™s disclosure
systems. The techniques of control parallel those in Canada. Ministers
in all Australian governments, says Martin Chulov,

. . . are quickly told by their mandarins when requests from jour-
nalists, or members of the public, come in that are likely to give
them headaches. In many cases, what seems to happen from then
on is not an independent, detached assessment of the request on
merit, but rather a rationalisation process, with the political pros
and cons of releasing the information delicately weighed up.71

Senior policymakers, journalists complain, routinely attempt to
obstruct or delay responses to sensitive requests. And if obstruction
fails, ministries will use “a series of tactics . . . to swamp or divert atten-
tion away from the newsworthiness” of released information.72 In
2002 a state ombudsman noted instances in which opposition legis-
lators who had asked for information read about the results of their


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requests “ with their names included “ in the media, before they
had themselves received a response.73 “Examples of FOI requests
being released and placed strategically to counter their negative
impact are no longer rare,” a Sydney Morning Herald editorialist wrote
in 2002:

All requests for documents from Opposition or journalists under
FOI legislation are now vetted for the potential political impact of
their release. . . . As they are thoroughly screened for their potential
newsworthiness, the government is then well-placed to respond
immediately when the issue is made public or . . . to release the
information with a particular spin attached.74

Evidence of similar practices has also emerged within Canada™s
provincial access systems. The province of Ontario adopted a Free-
dom of Information Act in 1988; within a few years, there were indi-
cations that ministries had begun to treat requests for information
on “contentious issues” gingerly. By 2001, the province™s Informa-
tion Commissioner suggested that the government had developed
formalized procedures managed by the Cabinet for dealing with sen-
sitive requests ¬led by journalists, opposition legislators, or advocacy
groups, which seemed to raise a “systemic problem” of noncompli-
ance with the law. “Our understanding of the process is sketchy,” the
Commissioner said, “and ministry [staff ] are extremely reluctant to
provide us with details.”75 Two years later, an investigation by jour-
nalist Ann Rees con¬rmed the existence of a special process for han-
dling sensitive requests, involving routine disclosure of the identity
of requesters and consultations with communications specialists in
the Cabinet Of¬ce.76 The provincial government had also hiked fees
for processing information requests in ways that caused a dramatic
decline in the number of requests for sensitive information.77
The province of British Columbia adopted a Freedom of Infor-
mation Act in 1993 and also developed sophisticated methods
for monitoring sensitive information requests. Of¬cials designed a
government-wide computerized tracking system that allows commu-
nications specialists in the of¬ce of the province™s premier to mon-
itor the ¬‚ow of information requests into government departments.
More sophisticated than the software used by Canada™s federal gov-
ernment, the system allowed of¬cials to categorize incoming requests


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by six levels of sensitivity.78 Requests from legislators, journalists, and
advocacy groups were typically classi¬ed as highly sensitive, and the
identities of requesters were routinely disclosed to communications
aides, in violation of provincial privacy law.79 The practice of track-
ing sensitive requests had begun in 1993,80 but the public remained
unaware of the technology and routines used for surveillance until a
legislative inquiry in 2004.


Centripetence and centrifugence
At one level, the tactics employed by governments newly encum-
bered by disclosure laws were simply explained. Each law compelled
of¬cials to give up power, and of¬cials “ as rational, self-interested
actors “ did not wish to do this. As a consequence, they developed
a range of strategies consisting of changes in administrative routine
and also the law itself intended to dull its effect.
At a certain level, of¬cial resistance is a universal and timeless
phenomenon. In the ¬rst years of the American Freedom of Informa-
tion Act, advocacy groups had also protested about noncompliance:
In 1972, a young lawyer in Ralph Nader™s Center for the Study of
Responsive Law complained that the Act had “foundered on the
rocks of bureaucratic self-interest and secrecy.”81 (The lawyer, Peter
Schuck, is now a distinguished professor of law at Yale University.)
And as we saw in Chapter 3, complaints about of¬cial resistance per-
sisted in the United States three decades later.
There are, however, potential dangers in over-simplifying the
problem of of¬cial resistance. In important respects, it is not a uni-
versally consistent phenomenon: On the contrary, different govern-
mental systems have reacted to the introduction of disclosure laws
in different ways. Such variation should not be surprising. The legal
scholar Otto Kahn-Freund observed in 1974 how “legal transplants” “
the attempt to transfer laws from one country to another “ could
be compromised by political and constitutional differences between
countries.82 (Kahn-Freund remembered Montesquieu™s famous warn-
ing that it would be “pure chance” if the laws of one nation could meet
the needs of another.) Gunther Teubner later suggested that Kahn-
Freund™s metaphor was inapt. Transplants are accepted or rejected,
Teubner argued; imported concepts (such as freedom of information)
are better regarded as “legal irritants” that may trigger “a whole series

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of new and unexpected events” that lead to a quite distinct end
result.83
Many of the countries that adopted disclosure laws after the
United States had the advantage of also being wealthy democracies,
but beyond this there were substantial differences in political condi-
tions. Many of these countries have parliamentary systems of govern-
ment and more disciplined political parties “ two factors that may give
political con¬‚ict a simpler and more intensely adversarial structure.
These countries often have a smaller bureaucracy and a uni¬ed civil
service (as opposed to the United States™ more fragmented service),
features that make it easier to develop consistent internal systems
to control the disclosure process. At the same time these countries
lack equally powerful legislative branches or vigorous nongovern-
mental sectors who are able to monitor and check attempts to restrict
access.

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