Is Tech a Scapegoat for Political FOIA Failures?

Is Tech a Scapegoat for Political FOIA Failures?

"Public access to information is democratic aspiration still to be fulfilled."  This insight comes from CIMA’s new report, Breathing Life into Freedom of Information Laws: The Challenges of Implementation in the Democratizing World. Evaluating case studies from Albania, Armenia, Indonesia, Jamaica, South Africa, and Ukraine, the report lists the following recommendations to improve upon existing Freedom of Information (FOI) legislation:

  • Officials of national and local governments who are responsible for responding to citizens’ requests for information must be properly organized, trained, funded, and protected.

  • Because government touches everything, a FOI law should touch everything.

  • It should be recognized that a FOI law is most important to average citizens at the local government level.

  • Many FOI laws are based on a presumption of access, stating that government records are accessible with certain exceptions; the exceptions should be based on the likelihood of harm that could arise as a result of disclosure.

  • The law should not require that government officers, employees, or agencies go to unreasonable lengths to accommodate applicants.

  • It must be recognized that public officials and government employees are more accountable than the public generally and that they enjoy less privacy than others.

  • Harness the power of information technology. Missing from most older FOI laws is proactive disclosure.

  • Public officials must recognize that records management and archiving are critical to sustaining the utility of an access law and, in general, the proper functioning of government.

  • Ensure that the ombudsperson or compliance person or body is a true believer and a champion of FOI and empower that person or entity to act on behalf of the public.

  • Officials must regularly review the operation of the FOI law to determine its strengths and weaknesses and to recommend changes in the law to correct its deficiencies.

While these recommendations do hold a lot of merit, recommendations on effectively leveraging online communications to improve upon FOI processes is severely lacking. The authors discuss at great length how information technologies has the potential to make completing a FOI request vastly more efficient, stating:

“Before information technology and the Internet, in order to respond to a citizen’s FOI request, several government employees confronted endless paper files of official documents. The costly and time-consuming compliance process required these workers to search for, sort through, examine, photocopy, and send the hard copies of the documents to the requester. The cost and bureaucratic burdens occasioned by these processes partially explains the inertia of officialdom.

To a very large extent , the Internet and information technology have changed that. Today that same request needs only a single employee to run a routine, paperless, comparatively warp-speed computer search, and in a matter of a few clicks, forward the requested documents electronically to the requester. Indeed the report shows the practical and cost-saving benefits where national and local governments proactively post on their websites all manner of documents and information that would otherwise have required individual, manual responses to citizens’ FOI requests. This represents another instance where information technology and the Internet make a virtue out of necessity.”

Despite this potential, what evidence is there that governments are indeed effectively leveraging ICTs to share this information? Even in the U.S., who has spearheaded public commitments to government transparency, such as the Open Government Declaration, has issues of faulty adoption of Electronic Freedom of Information requirements and equipment to receive incoming FOIA requests.

The report does cite that “the global growth of FOI laws is in significant part the result of pressure from civil society groups (many of which were also key to democratic transitions), and there is anecdotal evidence that civil society groups account for a much larger number of FOI requests in both developed and developing countries than do journalists.” Similarly, citizens and CSOs have more readily adopt emerging technologies than government entities. But who should be the arbiter of ensuring that governments are indeed making use of the most up-to-date technologies, to better respond to requests for information?

Furthermore, the report acknowledges that more recently established FOI laws better account for the use of ICTs than those established many years prior to the advent of digital technologies. Indeed, other laws besides FOI are often slow to catch up to technological advances that may change the scope of their operation or enforcement. However, does that excuse those who are bound by this legislation to ignore or very slowly adopt technological advances in following these laws in an internet era?