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compared to other advanced democracies (see Table 2). And it is clear
that the health of disclosure regimes in other rich democracies is
tied to the health of the community of nongovernmental institutional
users. Where the nongovernmental community has limited capac-
ity, requests are either less likely to be made or are poorly drafted
and pursued half-heartedly; or, if successful, requests may result in
the release of information that is misconstrued or not used at all.
All of this tends to discredit the law among policymakers, encourag-
ing their efforts to reverse the law “ efforts that, again, are unlikely
to be strongly resisted. In Canada, for example, it is common for
policymakers to complain that journalists misuse disclosure laws by
dwelling on requests for travel and hospitality expenses “ requests
that are simple and unlikely to incur large charges for the journal-
ists themselves but yield a sensational news report if the expenses
are anything other than wholly prosaic. These complaints about the
“trivialization” of access help to legitimize efforts to restrict the right
to information.
The question in countries that are now adopting disclosure laws
is not only whether government has the capacity to ful¬ll the law, but

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Soft States


Table 2 Washington™s Transparency Lobby

A partial list of nongovernmental organizations in the United States that
promote governmental transparency and use FOIA actively. Budget data
are drawn from IRS Form 990™s collected by guidestar.org. Several of these
organizations also work on issues other than the right to information.
ACLU data excludes state af¬liates. Data is for most recent available year,
either 2002 or 2003
Organization Annual expenses
American Civil Liberties Union Foundation $9,046,534
Center for American Progress $2,943,509
Center for Democracy and Technology $1,689,245
Center for Public Integrity $3,682,146
Electronic Frontier Foundation $1,523,891
Electronic Privacy Information Center $917,737
Federation of American Scientists Fund $2,359,729
Freedom Forum, Inc. $26,152,357
Judicial Watch $11,847,367
National Security Archive Fund $2,508,414
OMB Watch $1,137,435
People for the American Way Foundation $7,034,194
Public Citizen Foundation $8,482,766
Reporters™ Committee for Freedom of the Press $808,151
Total $80,133,475


whether the nongovernmental sector will have the capacity to use the
law effectively. In several countries, cumbersome registration laws “
such as Turkey™s Law of Associations “ discourage the establishment
of nongovernmental organizations and sometimes allow government
leaders to block the establishment of unfriendly associations.45 Gov-
ernments also harass already-established nongovernmental organiza-
tions. Ukrainian nongovernmental organizations complained in 2003
that their mail had been opened and their activities monitored by the
security service; in Georgia in 2002, a pro-government gang attacked
the of¬ces of the Liberty Institute, a nongovernmental group that
played a key role in the adoption of Georgia™s disclosure law. (“You
hit the Liberty Institute, you hit all the NGOs,” another association
leader said. “The message is the same for everyone.”46 )
Funding is also a critical issue for media outlets and nongovern-
mental organizations. The condition of the independent press in
Georgia “ constrained by “high printing costs, a lack of adver-
tising, and general poverty” “ is typical of many other nations.47

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Nongovernmental organizations in these countries frequently rely
on foreign assistance. The Soros-funded Open Society Justice
Initiative said in 2004 that it provided support for freedom of infor-
mation and expression projects to nongovernmental organizations
in about twenty-¬ve countries, and to international organizations
such as the International Media Lawyers Association and the new
Freedom of Information Advocates Network.48 Conventional develop-
ment agencies also provide aid for transparency-oriented nongovern-
mental organizations. South Africa™s Open Democracy Advice Center
has received support from Swedish, Finnish, and British development
agencies; in the Philippines, the Center for Investigative Journal-
ism has received support for transparency projects from the United
Nations Development Programme. However, reliance on foreign
assistance carries a price: In the Georgian state of Adzharia, Pres-
ident Aslan Abashidze used the fact of Justice Initiative funding to
tar the Liberty Institute as a tool in an alleged Soros-driven plot to
overthrow him.49


Civil and political rights
For disclosure laws to work well, nongovernmental organizations
must also have the capacity to act on the information they receive
from government agencies. In individual cases of misconduct, we
presume that individuals will have remedies against arbitrary or cor-
rupt decisions; but there may be no legal basis for challenging the
decision “ no equivalent of the Administrative Procedures Act, for
example “ and it may be impossible, for reasons noted earlier, to
obtain a remedy in court. More broadly, information might be used
to ensure that political rights can be exercised intelligently, but this
assumes that political rights can be exercised at all. Recent elections
in several of the countries that have recently adopted disclosure laws “
Armenia, Georgia, Ukraine “ have been marred (in the antiseptic lan-
guage of American of¬cials) by “serious irregularities.”50
The capacity of media outlets to act on information obtained
through the law may also face sharp constraints. Many countries still
maintain defamation or desacato laws that threaten imprisonment
for news reports that insult the honor or dignity of public of¬cials.
There are, in addition, other methods of suppressing or intimidat-
ing independent media. Ironically, one common tactic is deployed in

120
Soft States


Zimbabwe™s Access to Information Act, adopted in 2002. The law pro-
vides a right to government documents, albeit a right that is hedged
by broadly drawn exemptions. The law also created a new Media and
Information Commission to hear complaints about denial of infor-
mation. However, a 2004 report found only one instance in which
the right to information had been exercised. This was hardly surpris-
ing, because the 2002 law also included severe restrictions on press
freedom, including ¬nes or imprisonment for media outlets and jour-
nalists who were not registered with the Commission. (The penalties
were strengthened in 2004.) The principal use of the law was to harass
journalists and suppress independent newspapers prior to the coun-
try™s 2005 election.51
There have been comparable restrictions on the media in other
countries that have recently adopted disclosure laws. Uzbekistan,
which adopted a law in 1997 and overhauled it in 2003, also main-
tains a registration system that has effectively crushed an indepen-
dent media, and independent journalists have been harassed in an
effort to discourage the distribution of stories critical of the gov-
ernment. Major media outlets are state-owned, and therefore sub-
ject to direct political control. Human rights observers reported a
comparable situation in Azerbaijan, whose parliament was consider-
ing adoption of a disclosure law in 2005.52 The editor of a promi-
nent Azerbaijani opposition magazine, Monitor, was murdered in
early 2005.
Initiatives to improve transparency in China will also be ham-
pered by controls on press freedom. Chinese leaders may wish to
curb corruption, but their tolerance for “external supervision” of
state institutions clearly has ¬rm limits. China™s state secrets law,
which prohibits “spreading rumors or libel or in other ways insti-
gating subversion of the state regime,” is a useful tool for constrain-
ing dissent. In 2002 the Chinese government jailed the journalist
Jiang Weiping for eight years for violating the state secrets law: Jiang
had written a series of articles in a Hong Kong magazine about an
alleged cover-up of corruption in Liaoning province in northeast
China. (Jiang™s sentence was later reduced, and he is now sched-
uled for release in 2007.53 ) In 2004 Chinese authorities also detained
Zhao Yan, a researcher for the New York Times, on allegations that
he had “divulged state secrets” by providing the Times with details
about the imminent retirement of President Jiang Zemin; Zhao was

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already suspect because of his earlier work against corruption in rural
areas.54 Local of¬cials in Guangzhou (which adopted its Provisions
on Open Government Information in 2002) jailed editors and journal-
ists from the Southern Metropolitan Daily, which had embarrassed the
local government with its coverage of corruption and police abuses.55
Central government of¬cials who had cited their eventual openness
on SARS as evidence of a new commitment to transparency later
detained Jiang Yanyong, the government physician who ¬rst exposed
of¬cial deception about the extent of the crisis.56


A Brave New World?
The editors of the Lagos Vanguard were exultant when the Nigerian
House of Representatives passed a Freedom of Information bill in
September 2004. The government of President Olusegun Obasanjo
agreed in 2003 that it would support a disclosure law as condition
for a US$17 million aid package negotiated with the UNDP in 2003.57
Nigeria was in terrible condition, still wrestling with the legacy of
sixteen years of military rule and plagued by corruption. The FOI
bill, said the Vanguard, would allow Nigeria to “join the league of
open democratic societies”:

The bill . . . has removed the shackles from the media for con-
ducting investigative journalism . . . and would allow the Nigerian
media to beam its searchlight on public of¬cials. Henceforth, pub-
lic service will cease to be attractive to those who in the past have
considered public of¬ce as a method of self-enrichment. . . . It is a
brave new world for the Nigerian media and its people.58

That the editors took this view was not surprising. To a small degree
the overstatement may have re¬‚ected their desperation to ¬nd any
remedy for the overwhelming problems confronting the nation. To a
larger degree, the editors had merely accepted what they had been
told by many advocacy groups and international organizations: Dis-
closure laws were powerful instruments for eradicating corruption.
In truth, the actual effectiveness of disclosure laws as corruption-
¬ghting tools in developing countries is largely unknown. Yes, many
of the world™s cleanest countries have similar laws, but this confuses
correlation with causation. Many of these nations had been among
the cleanest in the world before they acknowledged the right to

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Soft States


information. Disclosure laws have been used to uncover abuses sub-
sequently, but it could be argued that disclosure laws did this pre-
cisely because the system of governance was, on the whole, already
functioning well: of¬cials were usually honest; records were well
maintained; courts were ef¬cient and independent; nongovernmen-
tal organizations were free to express their opinion about of¬cial
misconduct; and governments were compelled to pay attention to
public outrage.
Now the same instrument is being deployed in a much more hos-
tile environment. It is certainly possible that the right to information
could prove useful as a corruption-¬ghting tool in poorer countries,
as the Indian experience seems to show. Right-to-information cam-
paigns in several Indian states have succeeded in giving attention
to abuses and prompting promises of reform; furthermore, there is
a vibrant national community of professionals, activists, and aca-
demics who are committed to the use of disclosure law. On the other
hand, India has several advantages over other countries in the group
of recent adopters. Within this group, India is perceived to be more
committed to the rule of law, and more respectful of civil and political
rights. It also has the advantage of an independent high court that has
spoken forcefully about the importance of the right to information,
and a senior public service that is generally regarded as professional
and free of corruption.
Perhaps the Indian case suggests that there must be a certain min-
imum set of conditions in order to make a disclosure law useful in
anticorruption campaigns. But even this may be saying too much: It
is still unclear whether Indian government has the budget or adminis-
trative capacity to maintain an active disclosure system “ that is, one
that is capable of responding to thousands or millions of information
requests every year. In India, as in most other countries in the cohort
of recent adopters, statutory recognition of the right to information
is an experiment in governmental reform, and the odds are slim that
it will quickly corrode old habits of secrecy.




123
II STRUCTURE
6
OPAQUE NETWORKS




The days before the 2000 election held a moment of drama for advo-
cates of open government in the United States. Two weeks before
election day, Congress sent President Clinton the appropriations bill
for the CIA and other intelligence agencies “ but with a stinger in its
tail. The bill contained a new criminal penalty for the unauthorized
disclosure of classi¬ed information by federal employees.1 With the
country distracted in the run-up to voting day, would Clinton sign the
bill?
A last-minute campaign that enlisted the editorial boards of many
major newspapers succeeded in persuading Clinton to veto the 2000
law three days before the election. However, proponents of the penalty
made another effort a few months later to include it in the intelligence
appropriations bill for 2001. The threat of another public campaign
eventually persuaded the Senate Intelligence Committee to abandon
the proposal “ by coincidence, only a few days before the 9/11 attacks.2
The campaign against the bill leaned heavily on the claim that
there was something profoundly un-American about the new penalty.
William Sa¬re of the New York Times said the new crime would be
like those “used by so many dictatorships . . . to sti¬‚e dissent and hide
misdeeds.”3 The St. Louis Post-Dispatch, like many other newspa-

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