BUT IT is globalization rather than democratization that is changing the very concept of freedom of information from the purely moral stance as an indictment of secrecy, to one with more value-neutral meaning, as another form of market regulation, of more efficient administration of government, and as a contributor to economic growth and the development of information industries. For example, the 1998 European Commission green paper titled "Public Sector Information: A Key Resource for Europe," which gave the U.S. FOIA major credit for the U.S.'s "highly developed, efficient public information system at all levels of the administration." The Commission concluded that this system gives particular benefits to "small- and medium-sized enterprises, which have fewer resources to devote to an often difficult search for fragmented information." The lack of such information, the Commission judged, "ultimately... has a negative bearing on job formation."

Legal reformers in the People's Republic of China are using this argument, as well as the Communist Party's anti-corruption campaign, to help open the decisionmaking process in local and provincial government, even though any kind of national freedom of information statute - particularly one that would apply to law enforcement or national security or Party deliberations - is in the distant future, if at all. Their argument, which acquires greater weight as China enters the World Trade Organization, is simply that regulating governments and corporations (especially global ones) may more efficiently be done by transparency, by the disclosure of their activities, rather than by bureaucracy, especially when the latter represents multiple bureaucracies in multiple countries with all the opportunities for corruption in which international business has traditionally engaged.¹⁹

Making good use of both morality and efficiency claims, the international freedom of information movement stands on the verge of changing the very governance paradigm for democracies old and new. The movement is creating a new norm, a new expectation, a new threshold requirement for any government to be considered a democracy, by its own people and by the world at large. At the same time, the movement does not even know it is a movement (it lacks fundamental self-consciousness); its members are constantly reinventing the wheel and searching for relevant models; and entrenched state interests are vigorously counterattacking in the U.S. and abroad, using national security claims together with personal privacy and the need for privacy in the deliberative process as counterweights to freedom of information arguments. In the U.S., just before the 2000 election, only a veto by President Clinton prevented the establishment of an official secrets act.²⁰

Despite these obstacles, the freedom of information movement may actually be succeeding all too quickly. In the haste to guarantee a citizen's right to ask government for information and receive it (what most people mean by freedom of information), reformers are not paying enough attention to threshold access problems that affect every citizen and undermine the individual citizen's transaction. For example, the delegations of reformers who visit the U.S. are always surprised to see the first section of the U.S. FOI law - the section that requires government agencies to publish in the Federal Register descriptions of their organization, functions, procedures, forms, substantive rules, policies and regulations. The U.S. Privacy Act requires every federal agency to publish in the Federal Register detailed descriptions of every database and records system containing records that are retrievable by personal identifiers - the Pentagon report alone fills two volumes of closely-spaced type. In Sweden, the threshold openness requirement goes even further: agencies list in public registers almost every document written or received in the course of official business—with very few exceptions—so that requesters know exactly what they're asking for, and also the agency knows exactly what it has.²¹

Without the duty to publish, without this kind of threshold transparency, no citizen can make an informed and effective request for information, and no freedom of information regime can be truly open. This routine openness also has to extend to each of the major functions of government—executive, legislative, and judicial. The ideal openness regime, of course, would have the government publishing so much that the formal request for specific information (and the resulting administrative and legal process) would become the exception rather than the rule. Until that time, openness advocates have reached consensus on the five fundamentals of effective freedom of information statutes. First, such statutes begin with the presumption of openness. In other words, the state does not own the information; it belongs to the citizens. Second, any exceptions to the presumption must be as narrow as possible and written in statute, not subject to bureaucratic variation and the change of administrations. Third, any exceptions to release must be based on identifiable harm to specific state interests, not general categories like "national security" or "foreign relations." Fourth, even where there is identifiable harm, the harm must outweigh the public interest served by releasing the information, such as the general public interest in open and accountable government, and the specific public interest in exposing waste, fraud, abuse, criminal activity, and so forth. Fifth, a court, an information commissioner, an ombudsperson or other authority that is independent of the original bureaucracy holding the information should resolve any dispute over access.²²

Perhaps the ultimate challenge for the freedom of information movement is the cultural and psychological change that has to take place within government administrations and within citizens before true freedom of information occurs. In colloquial Japanese, for example, the word okami (god) is commonly used to refer to government officials. "You can't complain against the gods," one Japanese activist told a newspaper, thus summarizing the difficulty felt by ordinary people confronting the government. One of Japan's leading experts on information disclosure, attorney Lawrence Repeta, has written, "Imposition of a law mandating that government officials open their files to public examination (and potential criticism) represents a 180-degree reversal of existing practice. This is nothing less than a revolution in the nature of the relationship between citizen and government." What this proves, in the words of the Bulgarian activist Gergana Jouleva, is that "democracy is not an easy task neither for the authorities nor for the citizens."²³

1 See www.privacyinternational.org/issues/foia for a listing of laws and related news items. On the U.S., see "The Freedom of Information Act at 35," at www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB50. On Japan, see Valerie Reitman, "Japan Opens to Scrutiny Under Freedom of Information Law," Los Angeles Times, April 14, 2001.

2 See Josh Chafetz, "The White House Hides History," The New Republic, 27 August 2001, at www.thenewrepublic.com/082701/chafetz082701.html; Alexis Simendinger, "White House, Pentagon livid about leakers," National Journal, 26 October 2001; George Lardner, "Bush Clamping Down on Presidential Papers," The Washington Post, 1 November 2001, p. A33.

3 Shekhar Singh, interview with author, 23 May 2001, Washington D.C.

4 Harsh Mander and Abha Singhal Joshi, "The Movement for Right to Information in India: People's Power for the Control of Corruption," Paper presented to the Conference on Freedom of Information and Civil Society in Asia, April 13-14, 2001, Tokyo.

5 Thomas Blanton, "Freedom of Information Laws: Emerging Trends and Lessons Learned," Presentation to the World Bank thematic groups on legal institutions and administrative and civil service reform, May 15, 2001.

6 Gustaf Petren, "Access to Government-Held Information in Sweden," Chapter II in Norman S. Marsh (ed.), Public Access to Government-Held Information: A Comparative Symposium (London: Stevens & Son Ltd., 1987), pp. 35-54.

7 Herbert N. Foerstel, Freedom of Information and the Right to Know (Westport, CT: Greenwood Press, 1999), pp. 1-69.

8 See Will Ferroggiaro, Sajit Gandhi, Thomas Blanton (eds.), "The Freedom of Information Act at 35," National Security Archive Electronic Briefing Book No. 50, posted July 4, 2001, www.nsarchive.org.

9 Roger Errera, "Access to Administrative Documents in France: Reflexions on a Reform," in Norman S. Marsh (ed.), Public Access to Government-Held Information, pp. 87-121.

10 Michael Taggart, "Freedom of Information in New Zealand," in Norman S. Marsh (ed.), pp. 211-247. See also the web site of the Ombudsmen at www.ombudsmen.govt.nz.

11 Alan Missen, "Freedom of Information—the Australian Experience," Lecture to the Campaign for Freedom of Information, July 17, 1984, Westminster, London, also at www.cfoi.org.uk/missen.html. See also, Lindsay J. Curtis, "Freedom of Information in Australia," in Norman S. Marsh (ed.), pp. 172-210.

12 Thomas Blanton, "Data Protection and/or Freedom of Information?," Presentation to Ministry of Justice and Ministry of Interior conference on proposal legislation, Budapest, May 1992. Dr. Laszlo Majtenyi, Annual Report of the Parliamentary Commissioner for Data Protection and Freedom of Information 1999, at www.obh.hu/adatved/indexek/1999/text1.htm. See also "dear colleague" e-mail from Dr. Majtenyi, June 22, 2001.

13 Maeve McDonagh, "Freedom of Information—A promise fulfilled?" Paper presented to the conference on "Freedom of Information—One Year On," Dublin, April 23, 1999. See also the University College Cork Law Faculty web site at www.ucc.ie/ucc/depts/law/irishlaw/subjects/foi.html.

14 See Seth Mydans, "New Rule of Law in Thailand May Be a Leader's Downfall," The New York Times, July 30, 2001, p. A8. Kittisak Prokati, "Information Access and Privacy Protection in Thailand," Paper presented to Information Clearinghouse Japan, April 13-14, 2001, Tokyo. Kavi Chongkittavorn, "Thai Journalists and access to information," Paper presented to Information Clearinghouse Japan, April 14, 2001, Tokyo.

15 Lawrence Repeta, "Local Information Disclosure Systems in Japan," NBR Executive Insight No. 16, October 1999 (National Bureau of Asian Research, Seattle, Washington). Also Lawrence Repeta, "Changing the Guard in the Provinces: A New Platform for Hard Times," Paper presented to the conference on "Energizing Japanese Politics: New Tools for Citizen Participation," April 24, 2001, Washington D.C. (Japan Information Access Project).

16 David Banisar, "FOI Update 2000: International Laws," Paper for Freedom Forum conference on freedom of information, March 16, 2000, Arlington, Virginia, also at www.privacyinternational.org/issues/foia. Gergana Jouleva, "Advocacy for FIA legislation in Bulgaria," Paper presented at Central European University, Budapest, July 2001, p. 4. See also the Access to Information Programme web site, at www.air-bg.org.

17 Maurice Frankel, interview with author, May 23, 2001. Frankel, presentation at Carnegie Endowment for International Peace workshop on transparency, May 24, 2001. See also Campaign for Freedom of Information web site, at www.cfoi.org.uk.

18 Joseph T. Siegle, Democratization and Economic Growth: The Contribution of Accountability Institutions, Ph.D. dissertation, University of Maryland, School of Public Affairs, 2001, p. 200.

19 Cited in Blanton, World Bank presentation, May 15, 2001. Hanhua Zhou, Institute of Law, Chinese Academy of Sciences, interview with author, May 23, 2001.

20 Thomas Blanton, "Keeping Secrets at Too High a Price," The New York Times, August 22, 2001, p. A23.

21 Allan Robert Adler (ed.), Litigation Under the Federal Open Government Laws, 20th edition (Washington, D.C.: American Civil Liberties Union, 1997), pp. 1-6, 275-287. On Sweden, see Gustav Petren, in Norman S. Marsh (ed.), p. 41.

22 Thomas Blanton, "The Challenge of Freedom of Information for Old and New Democracies," Paper for the Helsinki Committee roundtable on secret police files, Tirana, Albania, June 23-24, 1994, p. 5.

23 Repeta, "Local Government Disclosure Systems in Japan," p. 10. Jouleva, p. 6.

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