THE IMPORTANCE OF FREEDOM OF INFORMATION

AT THE SUB-NATIONAL LEVEL

 

By Mitchell W. Pearlman, Executive Director

Connecticut freedom of Information Commission

 

 

            Freedom of Information laws are important.  Of that there is no doubt.  They are important for public accountability and the equal treatment of all people under the rule of law.  They are important as an anti-corruption tool.  They are important to the advancement of commerce and science.  And they are important to the legitimacy of democratically elected governments.  For without access to government records, citizens cannot determine whether their leaders deserve reelection or whether they should be thrown out of office because of fraud or mismanagement.  As James Madison, a key participant in the formation of the American republic and its constitution, and the fourth President of the United States, stated in 1822:

“A popular Government without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or perhaps

both. . . .  A people who mean to be their own Governor, must arm themselves with the power which knowledge gives.”

 

            Not surprisingly, the focus of attention on most Freedom of Information laws is at the national level.  For it is at that level that the great issues of national security, diplomacy, privacy and anti-corruption activities most notably intersect with requests for access to government records.  Consequently, it is at that level that the news media focus most of their coverage.  And it is at that level that public and private transnational and multinational organizations direct their not inconsiderable efforts.

            Although the emphasis on national Freedom of Information régimes is both appropriate and understandable, I believe that greater attention ought to be directed at Freedom of Information laws at sub-national (i.e., state, provincial and local) levels.  I can state this unequivocally not as a matter of academic research, but as a veteran government administrator and enforcer of such laws for some 30 years, as a consultant to over 20 countries and numerous states, provinces and municipalities, and as an observer of, and commentator on, Freedom of Information throughout the world.

            There are three primary reasons why I believe sub-national Freedom of Information laws are so worthy of greater attention.  First, most government exists not at the national level, but rather at the sub-national level.  Second, most people interact with government, not at the national level, but at the regional and local levels.  And third, Freedom of Information laws at the sub-national level provide a very effective – and perhaps the best -- laboratory to test most aspects of such laws.  We can learn from them which régimes work well, which work poorly, and which régimes may be well-suited for adaptation to a national level.

            With the possible exception of military forces, sub-national governments in most countries provide the basic services of government.  They provide police protection.  They often provide public education, health and welfare services.  They record and maintain birth, marriage and death records.  They record and maintain real estate and commercial documents, and implement land use rules.  They often have responsibility over public transportation, utilities and other infrastructure, and maintain a judicial system to enforce regional and local laws and resolve disputes.  And, of course, they most often levy and collect taxes.

            By virtue of such broad and diverse responsibilities, sub-national governments collectively constitute the largest component of government in many countries.  Because sub-national units of government, however, are often removed from national capitals and important economic centers, their personnel are sometimes less sophisticated, and, not infrequently, poorly-paid, poorly-trained, and poorly-supervised.  Therefore, they are often less competent and more susceptible to corrupt influences.  In such circumstances, the significance of Freedom of Information laws should not be underestimated.

            Also, because of the broad and diverse responsibilities of state, provincial and local governments, there is an intense interest in those governments by the people most affected by them.  If, for example, the experience in Connecticut with respect to cases involving state and local governments were to be extrapolated by analogy to reflect the dichotomy in interest between national and sub-national components of government, approximately 75% of all access to information cases would relate to regional and municipal government.  Only 25% would involve the highest level of government, and the overwhelming number of those cases would be brought by the news media – not by individual citizens.

            Consider for a moment how much interaction occurs between people and their local and regional governments.  They interact with police in cases of traffic accidents, motor vehicle violations, and if they are victimized by local crime.  They interact regularly with their children’s public school teachers and administrators.  They go to local public health clinics and social service agencies when in need.  They often require copies of vital public records, such as birth, marriage and death certificates, for a whole host of reasons.  They sometimes need to consult land ownership records and obtain licenses to conduct business.  They often avail themselves of public transportation and utilities and, on occasion, the local judicial system.  And, of course, they pay taxes to regional and local government.

            When one considers such a vast array of activities by sub-national units of government, the magnitude of the public interest becomes self-evident.  For it is at this level -- not at the national level -- that most people have the greatest contact with government.  As a result, for most people, the existence of effective Freedom of information laws covering sub-national government is of the greatest consequence for each of the reasons that Freedom of Information laws in general are important.  Because regional and local government have the closest connection with citizens, there is the greatest need to assure fair and honest treatment, competent administration, and the provision of services in advancement of the public interest.

            When one looks behind the most successful Freedom of Information régimes, they seem to have a number of ingredients in common.  One is that they were preceded by a careful study of other Freedom of Information systems.  Another is that they have adapted a successful model or models to fit the political, bureaucratic, social and economic cultures in which their governments must operate.  In other words, given the wide-ranging experiences of Freedom of Information régimes already in existence, no jurisdiction is compelled to “reinvent the wheel” so to speak.

            Freedom of Information laws in the United States were often studied because the country has been considered a leader in democratic government.  However, such studies often concluded that the American national Freedom of Information régime is not among the most successful, primarily because it does not contain an independent, non-judicial review mechanism.  Consequently, American sub-national Freedom of Information régimes were also studied, particularly those in the states of Connecticut and New York, which had extensive and successful histories.

            During the 1980s, officials from the Canadian national government and several provinces came to the United States to study the American experience at both the national and sub-national levels.  They also studied models from other parts of the world.  The Canadians learned much from these studies.  They took a number of successful features from sub-national Freedom of Information régimes, adapted them to their respective political, bureaucratic, social and economic cultures, and created some of the best Freedom of Information régimes in existence today.  Interestingly, the Mexican national government and several Mexican states undertook the same approach in enacting their excellent Freedom of Information laws.  And other countries are similarly following suit.

            China is now considering enacting “Open Government Information” laws on the national level.  In addition to studying the Freedom of Information systems in other countries, China is encouraging several important sub-national governments to experiment with their own version of such laws.  Guangzhou enacted an Open Government Information law in 2002.  And more recently Shanghai established an exceptional Open Government Information régime in 2004.

            The course followed by Canada, Mexico and China, among others, is instructive of how effective studying sub-national Freedom of Information laws can be in creating and improving equivalent laws on a national scale.  The abundance and diversity of sub-national Freedom of Information laws are in themselves experiments, organic in their growth and change, yet mature through the passage of time.  Many things, good and bad, can be ascertained and synthesized through their study.  And they provide perhaps the best foundation from which to build a successful national Freedom of Information régime.  They are the functional equivalents of laboratory microcosms that can be molded and adapted to fit even the most unusual political, bureaucratic, social and economic cultures in which they must operate.  Such critical matters as electronic information and personal privacy are particularly susceptible to meaningful experimentation and study on the microcosmic level before implementation on a macrocosmic scale.

            For these reasons, I suggest that greater attention, by both national governments and the news media, ought to be directed to sub-national Freedom of Information laws.  Likewise, it behooves public and private transnational and multinational organizations to observe more closely, and study more carefully, these laws.  We have much to share and learn from one another.  I believe that such greater scrutiny will inevitably lead to better and more successful Freedom of Information régimes, at all levels of government, throughout the world.