. 18
( 53 .)


as part of “emergency discussions” on the potential impact of the
As the deadline for implementation of the law approached, the
Blair government considered other familiar tactics for dampening the
impact of the new law. In May 2004 the Guardian reported that key
government departments were lobbying for steep increases in the fees
that could be charged to persons making requests for information.109
An internal government working paper justi¬ed the increase as a way
of avoiding costs that “could have a serious impact on the ability of
departments to function.”110 The government reversed course follow-
ing public protests.111 In December 2004 “ only one week before the
Act was scheduled to go into effect “ the minister responsible for the
law, Charles Falconer, announced that the Cabinet had approved a
new policy under which information requested by journalists would
be released simultaneously on government websites “ a more subtle
form of practices adopted by Irish policymakers a few years earlier.
Journalists protested that the effect of the policy would be to discour-
age editors and journalists from pursuing costly and time-consuming
requests. Falconer responded by playing on the logic of the law
itself: “Surely media organisations, for so long campaigners for open
government and for freedom of information, cannot be suggesting
that their own commercial interests are of greater importance to them
than the public™s right to know?”112

Blacked Out

The Blair government™s fears about the law were soon justi¬ed.
On the second day of implementation, the Conservative opposition
announced that it had used the Act to ¬le a barrage of 120 “embarrass-
ing questions” with government departments.113 (Many backbench
Labour Members of Parliament responded by ¬ling requests for infor-
mation about the performance of the Opposition leader, Michael
Howard, during his years as a minister in Conservative governments
in the 1990s.) The new FOI Clearing House struggled to keep up with
the in¬‚ow of politically dangerous requests. In February 2005 it ¬nally
issued directions to other government departments: The center was to
be consulted on “sensitive cases with a potentially high public pro¬le”;
and the Cabinet Of¬ce would become involved on cases “in which the
Prime Minister takes personal interest.”114 It was remarkable that the
Blair government “ with four years to plan for the new law “ was still
inventing these routines at the last moment. But the direction was
now clear: The British government, like other parliamentary govern-
ments before it, was headed down the path of centralization.


The countries that ¬rst adopted national disclosure laws “ for conve-
nience, let us focus on the fourteen that adopted laws up to 1990 “
had much in common. They were among the richest countries in the
world. Almost all were politically stable democracies with a long tra-
dition of respecting citizen rights and the rule of law, a lively popular
press, and healthy and independent nongovernmental organizations.
Many had a political culture that included a skepticism about state
authority “ whether in the strong form (as in the United States), or
in the moderate form peculiar to the older Commonwealth countries
and the states of Northern Europe. (In 2000, one European Union
of¬cial dismissed the call for tougher disclosure rules as a pathol-
ogy of “protestant Puritanism.”1 ) All of these considerations eased
the adoption of a disclosure law and made it more likely that the law
would work in practice.
Indeed, it was common to think that some mix of these consider-
ations was probably necessary as a prerequisite for the adoption of a
disclosure law. One scholar suggested two conditions that were essen-
tial for a law to be adopted. One was a “fundamental commitment” to
the institutions of liberal democracy, manifested in a long history of
democratic rule. Such states, it was thought, would be more respon-
sive to the case for protecting citizens™ rights against state authority
and robust enough to tolerate the uncertainties that could be gen-
erated by a new disclosure law. A second prerequisite was a period
of signi¬cant growth in the public sector, or at least a perception of
growth, leading to concerns about the erosion of accountability.2 This
seemed to capture the realities of the 1970s and 1980s: disgruntled

Blacked Out

Table 1 Perceptions of governance in nations adopting disclosure

The ¬ve “perceptions of governance” measures used in this table were
developed by Kaufmann, Kraay, and Mastruzzi in research for the World
Bank. A higher number re¬‚ects a more positive perception; each measure is
calculated so that its “world average” is 0. Figures are averages for countries
adopting in each period.3 Data on per capita gross national income is US$
for 2000, provided by World Bank.
1990 and After
earlier 1991“2000 2000
Per capita GNI $21,082 $10,516 $3,626
Political Stability 0.81 0.45
Rule of Law 1.36 0.57
Control of Corruption 1.31 0.44
Government Effectiveness 1.26 0.52
Voice and Accountability 1.27 0.68 0.10

electorates in af¬‚uent welfare states, distrustful of their leaders and
pressing for openness.
By the mid-1990s it was clear that this account was inade-
quate. The pace at which disclosure laws were being adopted was
quickening: While it had taken more than a quarter-century for the
¬rst fourteen laws to be adopted, twenty-eight more were adopted
in the nineties alone. The pro¬le of this second wave of adopters
was decidedly mixed. Some, such as the Netherlands or the United
Kingdom “ af¬‚uent, mature democracies “ ¬t the pattern. But many
did not, such as the countries of Central and Eastern Europe “ new
democracies determined to repudiate the secrecy of the Soviet era,
and perhaps to emulate the policies of the remaining superpower.4
On the whole, countries that adopted disclosure in the nineties were
much less wealthy than the ¬rst adopters, less politically stable, less
able to enforce the rule of law, and more prone to corruption. Polit-
ical rights, including the right to free expression, were not as deeply
entrenched (see Table 1).
There were equally sharp disparities between this group and the
nations that adopted disclosure laws in the ¬rst years of the twenty-
¬rst century. These countries had, on average, only one-sixth of the
per capita income of the ¬rst wave of adopters; and by all of the mea-
sures of governance “ including stability, rule of law, control of cor-
ruption, respect for civil liberties, and political rights “ were in poorer

Soft States

condition than either of the preceding two groups of adopters. The
conventional wisdom about the necessary conditions for adoption of
a disclosure law had been turned on its head: The typical case was now
far from being a mature democracy, populated by an enfranchised
citizenry disturbed by sprawling bureaucracy. On the contrary, some
new adopters were countries once described by Gunnar Myrdal as
“soft states” “ struggling with poverty, political disenfranchisement,
and widespread corruption.5
One could imagine several explanations for this shift in the pro¬le
of adopting states over time. One simple explanation might be that all
the af¬‚uent democracies have now adopted laws “ meaning that any
new adopters must, by de¬nition, be poorer and rank lower on gov-
ernance measures. The fact of pervasive adoption in the First World
also helps to establish a disclosure law as a marker of democratic and
economic advancement “ thus encouraging other countries to adopt
similar laws, if only to emulate the better-off states.
Many intergovernmental organizations have also prodded poorer
and more fragile states to adopt disclosure laws. In 2002 the Council
of Europe “ a body distinct from the European Union, without com-
parable authority “ recommended the adoption of disclosure legis-
lation to its forty-six members, including over twenty countries in
Central and Eastern Europe.6 In the same year, Commonwealth jus-
tice ministers approved a model freedom of information law for that
organization™s ¬fty-three member countries7 ; in 2004, the thirty-¬ve
members of the Organization of American States adopted a resolution
endorsing legislation to recognize a right to information.8
Countries have also been pressured by an increasingly sophisti-
cated transnational network of nongovernmental organizations inter-
ested in transparency issues. ARTICLE 19, the London-based free
expression group, has played a critical role in promoting the adop-
tion of disclosure laws and in critiquing proposed laws.9 (In 2004,
ARTICLE 19 also orchestrated a joint declaration by the free expres-
sion monitors of the United Nations, the Organization of American
States, and the Organization for Security and Cooperation in Europe
that the right to access information held by public authorities
“is a fundamental human right.”10 ) So, too, has the Delhi-based
Commonwealth Human Rights Initiative,11 as well as the Interna-
tional Helsinki Federation for Human Rights (particularly in East-
ern Europe and the Caucasus)12 and the Atlanta-based Carter Center

Blacked Out

(in Latin America and the Caribbean).13 The Open Society Institute,
a philanthropy established in 1993 by investor George Soros, also
provides substantial support to groups advocating for the adoption
of disclosure laws. An arm of the OSI, the Open Society Justice Ini-
tiative, now has the adoption of disclosure laws as one of its main
One of the most in¬‚uential of these nongovernmental organiza-
tions has been Transparency International, established in 1993 by
Peter Eigen, once a World Bank of¬cial frustrated by the Bank™s fail-
ure to address the problem of corruption in borrowing countries.15 TI
publishes a Corruption Perceptions Index that annually ranks coun-
tries based on the international business community™s view about the
pervasiveness of corruption within each. Arguing that there is “an
obvious link between access to information and low levels of corrup-
tion,” TI has also recommended the adoption of a disclosure law as
one of the central elements of a national anticorruption strategy. In
1998 it observed that almost all of the “clean countries” in its index
had a Freedom of Information Act.16
The identi¬cation of disclosure law as a tool for dealing with
the problem of corruption has become a principal reason for the
widespread adoption of such laws among “soft states,” many of whom
are attentive to their ranking in TI™s Corruption Perceptions Index
because of its potential impact on foreign investment. Other intergov-
ernmental organizations such as the OECD and the United Nations
Development Programme have endorsed TI™s view; the UNDP has
called freedom of information acts “an important precondition” for
reduction of corruption.17 The Bretton Woods institutions “ the World
Bank and the International Monetary Fund “ have encouraged adop-
tion of national disclosure laws on similar grounds. Governments
have also realized that disclosure laws might serve their own ends,
by helping them to improve control over a vast and unresponsive
bureaucracy. This was the case in China, where in 2003 senior party
of¬cials endorsed transparency as an important tool “for the control
and supervision of administrative powers, so as to prevent and control
corruption.”18 “External supervision” by citizens would be enlisted to
serve the interests of the Party.
In other words, “soft states” were adopting disclosure laws pre-
cisely because of their softness, not in spite of it. Here was another
case of “legal transplantation” (to continue with Otto Kahn-Freund™s

Soft States

phrase) to new bodies politic “ and this time the differences in con-
text were perhaps even more substantial than those between one
rich democracy (such as the United States) and another (such as the
United Kingdom). The contrast between the early and late adopters
was so stark that it raised a reasonable question of whether the trans-
plant could thrive at all.
In some instances, an obvious issue was whether the new adopter-
governments felt any “ownership” (to use a favored phrase of the
International Monetary Fund) of their new disclosure law. There was
always the possibility that legislation had been adopted purely for
the sake of appearances. Pakistan may have illustrated the poten-
tial for backsliding. Routinely ranked by TI as one of the most cor-
rupt countries in the world, Pakistan eventually agreed to adopt a
Freedom of Information Ordinance in September 2002, as part of
an anticorruption program promised in return for US$1.4 billion
in aid from the IMF.19 Two years later, Pakistan™s Human Rights
Commission complained that the government led by General Pervez
Musharraf had done little to encourage bureaucratic compliance
with the ordinance. “Nothing has turned around,” lamented the head
of a Pakistani lawyers™ association. “Such legislation serves best in
a civilized society. Our case is different. Either we make laws to
violate or not to implement them at all; and this is our national

Governmental capacity
Disclosure laws will also test the administrative capacities of devel-
oping countries. One mundane but nonetheless critical issue is the
ability of governments to document their work and organize their
records so that they can be retrieved later. The right to information is
meaningless if ¬les do not exist or cannot be found.21 Even in af¬‚uent
countries, good record keeping is a challenge. Preparing a documen-
tary record of of¬cial activities, sorting and ¬ling documents “ all
of this takes time and staff. As the public services of the advanced
democracies have been cut back over the last decade, record keep-
ing “ often regarded as one of the ancillary functions of government “
has deteriorated in many of these countries. In 1997 the Australian
Law Reform Commission concluded that prolonged ef¬ciency drives
in the Australian government had led to widespread problems of

Blacked Out


. 18
( 53 .)