Changing paradigms: FOIA or leaks?Posted: March 24, 2013
I was in Rio de Janeiro earlier this week to take part in a discussion on freedom of information hosted by the Columbia Journalism School. During the meeting, which was part of the launch of the Columbia Global Center in Rio, journalists, activists and academics debated Brazil’s freshly minted Access to Information Law. Signed by President Dilma Rousseff in 2011, it’s a pretty robust law. “Brazil is a patrimonial society where giving out information is not part of the exercise of power,” said Paulo Sotero, a former journalist who is now director of the Brazil Institute in Washington, DC. “The law changes this paradigm.”
Brazil was the 89th country in the world to have FOI legislation. These laws have been hailed as potentially revolutionary: When officials no longer have monopoly over government information, transparency can tilt the balance of power in favor of citizens. But can they change journalistic practice as well?
In Brazil, as in other places where the rule of law is weak and politics is factionalized, there is an entrenched culture of journalistic leaks. Competing political factions routinely use the press to launch damaging exposés on the corruption or other wrongdoing of their rivals. The publication of well-timed leaks from politicians are a long-established political ritual and part of the arsenal of politics. As conduits for leaks, journalists benefit from a culture of selective secrecy. Unsurprisingly, except for the likes of Abraji, the investigative reporting association, and a couple of leading Sao Paolo papers, Brazilian journalists were not the prime campaigners for an FOI law.
Brazil is not unique. Journalists are not always torchbearers for freedom of information laws. Accustomed to having privileged access to information because of their press passes, they are not always enthusiastic supporters of laws that would democratize access.
But, said said Fernando Rodrigues, a leading investigative journalist and former Abraji head, that culture may be changing. The new law, he said, has already powered a number of journalistic exposés. “Tons of documents” have been released because of FOI requests from news organizations, he added, and many publications have made those documents available on their websites. Many of those stories, featured on the website of the Forum for the Right of Access to Public Information, have to do with public spending, including reports on the outsize salaries of civil servants and police and military attachés.
It helps that the law is a fairly good one. Unlike the US FOIA, which covers only the executive branch of the federal government, the Brazilian law covers all branches and levels of government. Moreover, it provides for the automatic publication of certain categories of information, such as state procurement contracts and the salaries of government employees, some of which are now online on government websites. The law also states that the government should assist requesters and provide information for free to poor citizens. (Greg Michener, a Brazil-based Canadian academic, has a good analysis of the law here.)
But there are problems, including the intransigence of bureaucracies resisting openness. For example, the human rights organization Conectas says the government refuses to release a report on torture in Brazil’s prison system that was written by the UN Subcommittee on the Prevention of Torture. Access groups have also been frustrated by the slow pace of implementation, especially at the local and state levels. While federal agencies have made make public information like the salaries of state employees, and for the first time ever, a list of companies that have been given permits to search for mineral deposits, they have also turned down requests for sensitive information, including one from a journalist who asked for documents on Brazilian arms exports overseas.
For sure, there will always be a constant struggle between secrecy and openness. Bureaucratic cultures are hard to change, and the success of the law depends as much on the willingness of bureaucracies to implement it as the determination of citizens to open up government. As a recent World Bank study noted, openness reforms can only be sustained by an “ecology of transparency” composed of groups that routinely monitor the efficacy of the law, NGOs and journalists that use the law to uncover information that holds governments accountable, and a legal and cultural environment that encourages and rewards openness. The study cites the US FOIA, which has been largely effective “because the federal government is surrounded by NGOs and media outlets with the resources to aggressively use the right to information.”
Brazilian journalists and NGOs at the Rio meeting were cautiously optimistic. There is a lot riding on the law, including Brazil’s international reputation as a leading member of the Open Government Partnership. The global environment for transparency has never been more favorable. And there are lots of examples, including in Latin America, where, despite limited resources and traditions of bureaucratic secrecy, FOI laws have worked. Even The New York Times’ much-applauded exposé on Walmart’s bribery of Mexican officials was made possible in part by 137 information requests made to Mexican government regulators (a leak was involved as well, but that’s another story).
In India, Shyamlal Yadav, a journalist who was present at the Rio meeting, has filed 4,000 FOI requests and written dozens of stories on government corruption, negligence and abuse of power since India’s Right to Information Law was passed in 2005. One of his stories exposed ministers’ overseas travel: The report took six months and 59 FOI applications to complete, and it prompted the Prime Minister to issue an order asking officials to “secretly curtail expenditure on air travel.”
India’s law, said Yadav, “is reforming governance in the world’s largest democracy.”
If FOI laws succeed in large and rambunctious democracies like India and Brazil, then there’s a good chance they can succeed elsewhere as well. The outcomes depend in part on the ability of journalists to carry their share of the task of building the ecology of transparency. Leaks may be good for individual journalists or news organizations, but they feed on secrecy and privileged access. In the long run, openness can flourish only with regulated and mandatory information disclosure. Surely, that has benefits for the press as well.