3: DIFFUSION OF THE LAW
3.2 Mapping the Diffusion of FOI Law
The diffusion of FOI law can be plotted on a map for visual demonstration. The first map provided here is a snapshot, produced by David Banisar, of the diffusion of FOI law as it stood in June 2011 (see 3.2.1 below). The map is useful in appreciating the (relatively) current status of the diffusion and also its current progress, as it highlights countries in the process of adoption (although this process can sometimes take decades). Yet Banisar’s map does not provide a temporal view. Therefore, time-lapse maps have been produced for the thesis and they plot the sequential diffusion of FOI law on a series of maps, each representing a point in time (see 3.2.2 below). These maps provide a fluid understanding of the geo-political spread of the law over time.
3.2.1 Banisar’s Map
Pinpointing the spread of FOI law on a political map is essential to understanding the diffusion of the law. This process highlights what countries have adopted the law in a geographical sense. The most detailed map of the current state of the spread of FOI law has been produced by David Banisar, Senior Legal Council for Article 19, and this map is presented as Figure 1 below.2 Banisar’s map of ‘National Right to Information Laws, Regulations and Bills 2011’ highlights countries according to four categories: there are a
2 D. Banisar, "National Right to Information Laws, Regulations and Bills 2011 Map,"
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1857498, (Date Accessed: 16 June, 2011). See also Banisar, "Freedom of Information around the World 2006: A Global Survey of Access to Government Records Laws."
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55 range of countries that have a) comprehensive national law enacted, as in North America and Europe, b) national regulation enacted, as in China and Pakistan, c) pending efforts to enact law, as in Brazil and Southern Africa, and c) no law or no law operative, as in much of the Middle East and Africa.3
Figure 1: Banisar's 2011 Map of FOI Law
The map produced by Banisar essentially captures three important points about the contemporary spread of FOI law:
3
Banisar does not stipulate the terms of each category he presents. Indeed, there is a common confusion embodied within Banisar’s graph when it comes to which countries adopted FOI law and when exactly particular countries have adopted it. For instance, Banisar highlights Russia as having ‘comprehensive national law’ adopted in 2009 and yet Russia’s Law on Providing Access to Information on the Activities of State Bodies and Bodies of Local Self-Government did not come into effect until 1 January 2010.
Freedominfo.org, "Russia," http://www.freedominfo.org/regions/europe/russia/russia/, (Date Accessed: 7 September, 2010).
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First, FOI law has been implemented by a wide range of countries, which is evident by the number of countries that have comprehensive national law enacted (dark green) or national regulation enacted (light green).
Second, FOI law is a reform in vogue, which is evident by the number of countries in the process of possible adoption (yellow).
Third, despite its current diffusion, there are still large parts of the world, namely Africa and the Middle East, populated largely by countries with no law or no law operative (white).
Banisar’s map highlights these important current trends, and yet, as a snapshot of the state of the law around the world at a particular time, it fails to convey a sense of the temporal dimension, essential to properly understanding the historical diffusion of the law reform.
3.2.2 Time-Lapse Maps
The diffusion of FOI law since 1766 has been a remarkable event that must be understood in a sequential manner. Figure 2 below shows the overall diffusion of FOI law as a sort of gradual explosion, felt most strongly in the early years of the twenty-first century.4 The law was first conceived and adopted in mid-eighteenth century Sweden, only to remain an isolation occurrence for two centuries to follow. Not until the second half of the twentieth century did FOI law find more widespread popularity and a modern place in the world after the United States adopted law in 1966. The diffusion of FOI law remained a very gradual affair in the 1980s, but after 1989, during the 1990s, the diffusion of transparency law began to expand dramatically outside the family of early adopters. The post-Cold War era provided fertile ground for the widespread diffusion of the law. By the opening years of the twenty-first century FOI law had found support and been adopted in every region of the globe, although more so in some than others.
4 This graph is based on the entire list of countries provided by Roger Vleugel, which dates until September
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57 Figure 2: The International Diffusion of FOI Law 1766 – 2010
0 10 20 30 40 50 60 70 80 90 1750 1800 1850 1900 1950 2000 2050 Ye ars N u m b e r o f C o u n tr ie s
Time lapse maps are essential in order to convey the waves or periods of FOI law’s diffusion. These maps plot the diffusion of the law at particular points in time. A set of time lapse maps of the diffusion of FOI law have been created for the purposes of the thesis: five maps in total, each highlights new countries where the law has come into force up until a certain year, specifically 1990, 1995, 2000, 2005 and 2010.5 These maps are limited because they only highlight actual adopters (whereas Banisar’s map highlights also countries in the process of possible adoption) but what they lack in that regard is compensated for by the fact that they provide a time sensitive means to look at where and when FOI law was taken up around the world in the course of time. The end result is like a series of images that show lights gradually turning on, first in particular areas and later more diffusely.
Figure 3 below shows the diffusion of FOI law prior to 1990.6 The law had been taken up only by a handful of countries before 1990, mostly in North America, Scandinavia and Australasia. The first ever FOI law was adopted by Sweden in 1766 but
5
The chronology of diffusion is taken from Ibid.. It is based on the year in which FOI law came in power. In most cases the law was actually enacted a year or two prior, and indeed, national debate around the law often dates back decades. It is also important to note that several territories and debated countries, such as Taiwan (2005), were not marked within specific periods because they were not locatable on the mapping software. These countries are noted within each period. The maps were created using free online software available at http://www.aneki.com/map.php
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then nothing much else happened (aside from an isolated and questionable legal clause in Colombia in 1888 and a re-adoption in Finland, formally part of Sweden, in 1951) until two centuries later when the United States adopted FOI law in 1966.7 In the 1970s and 1980s a handful of countries, culturally, politically, and historically tied to America and Sweden adopted FOI law due to domestic pressures for administrative reform and media freedom and international ‘lesson drawing’ (see 6.3.3 for further discussion of this process). Denmark (1970), Norway (1970), France (1978), the Netherlands (1980), Australia (1982), New Zealand (1983), Canada (1983) and Austria (1987) all fit into this picture. FOI law’s early diffusion was therefore within a limited arena of wealthy, liberal democratic countries.8 However, times were changing—the Cold War, which had sustained an ideological division across the international arena since the close of hostilities of World War II, ended in 1989—and FOI law soon found fresh ground abroad amongst transitional democracies.
Figure 3: The Diffusion of FOI law, 1990
7 Banisar, "Freedom of Information around the World 2006: A Global Survey of Access to Government
Records Laws," 57 and 70.
8 There were the outsider cases of Colombia (1888) and later the Philippines (1987), but neither country
adopted comprehensive law. They simply provided legal provisions in constitutions or laws that gave credence to the idea of access to government-held information. Ibid., 57 and 122.
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59 Figure 4 below shows the spread of FOI law up until 1995, with the most recent adopters marked in red.9 The spread of FOI law in the early 1990s was not quantitatively large but qualitatively important. The law was taken up by still more countries in Europe like Italy (1990), Spain (1992) and Portugal (1993) and Belgium (1994); yet more important was the fact that the law was adopted in two Eastern European countries in 1992—Hungary and Ukraine—that were in the process of realigning with the liberal democratic norms and administrative practices of the West after almost half a century of Soviet influence. Another interesting point is that FOI law made its first modern jump to South America with the adoption of law by Belize in 1994.10 FOI law’s foray into these former-Soviet countries and Third World countries in the early 1990s was a sign of things to come. There was a hint that the law was more than just an isolated reform of richer countries. Global momentum was beginning: what would later be called the ‘global movement for freedom of information’ began to form.11 Key law reform advocates, like Article 19, the Commonwealth Human Rights Initiative, Privacy International and the Open Society Institute, all began work in the early 1990s (as discussed at 7.3.3).
9
Vleugels, "Overview of All FOI Laws."
10 As mentioned above, Colombia recognized access to information as early as 1888. However, this was
only in the form of the Code of Political and Municipal Organization, which allowed individuals to request documents held in government agencies and archives, unless release of these documents was specifically forbidden by another law. This provision is not an FOI law. Banisar, "Freedom of Information around the World 2006: A Global Survey of Access to Government Records Laws," 58.
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Figure 4: The Diffusion of FOI Law, 1995
Figure 5 below shows the adoption of FOI law up until 2000.12 In the second half of the 1990s FOI law was adopted in a more widespread fashion, by countries mostly scattered around peripheral Europe and parts of Asia. Iceland, Lithuania, Ireland, Latvia, the Czech Republic, Albania, Georgia and Greece all adopted FOI law between 1995 and 1999, many as part of a shift in civilization away from Eastern Soviet integration towards Western liberal integration. South Korea, Thailand and Japan in Asia also adopted FOI law, due to anti-corruption, freedom of speech and consumer protection campaigns.13 Access law was taken up also by Israel in the Middle East and the former British colony of Trinidad and Tobago in the Caribbean region. If the first half of the 1990s hinted at the possibility of FOI law gaining ground outside a handful of wealthy countries, then the second half of the 1990s demonstrated the possibility of it. The ‘global movement for freedom of information’ continued to develop, building networks and campaigning for reform. At the outset of the twenty-first century FOI law was diffusing quicker than ever before.
12 Vleugels, "Overview of All FOI Laws."
13 K. H. Youm, "Freedom of Expression and the Law: Rights and Responsibilities in South Korea,"
Stanford Journal of International Law 123 (2002)., K. Prokati, "Information Access and Privacy Protection in Thailand" (paper presented at the Conference of Freedom of Information and Civil Society in Asia, Japan, 2001). L. Repeta, "The Birth of Freedom of Information Act in Japan: Kanagawa 1982," (Cambridge: MIT-Japan Program, 2003).
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61 Figure 5: The Diffusion of FOI Law, 2000
Figure 6 below shows the diffusion of FOI law up until 2005.14 FOI law was adopted more frequently in the five year period from 2000 to 2005 when compared with any other equivalent period in the past. The initial twenty five adopters of FOI law took roughly two centuries to take up the law, from 1766 to 1997; whereas the law was adopted at the start of the twenty first century by an estimated twenty five countries over a period of roughly three years, from the start of 2000 to the end of 2003.15 Ackerman and Sandoval-Ballesteros explained in 2006 that almost two thirds—around 60%—of all existing (national) FOI law was passed after 1999.16 Backed up by the now well developed ‘global movement for freedom of information’ with new, powerful supporters within the post-Cold War global political economy, like the World Bank, the United Nations Educational, Scientific and Cultural Organization, and the United Nations Development Programme, alongside a growing array of local and regional supporters, FOI law went from strength to strength. In the first five years of the twenty-first century FOI law affirmed its place in almost every region of the globe, from South America, through to Sub-Sahara Africa, up to Eastern Europe and into Asia,
14 Vleugels, "Overview of All FOI Laws." 15 Ibid.
16 Ackerman and Sandoval-Ballesteros, "The Global Explosion of Freedom of Information Laws," 98. They
based their figure on a 2004 edition of Banisar, "Freedom of Information around the World 2006: A Global Survey of Access to Government Records Laws."
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Figure 6: The Diffusion of FOI Law, 2005
Figure 7 below shows the diffusion of FOI law up until 2010.17 The spread of FOI law has remained stead and diverse in the years since 2005; local, regional, international and transnational support for the law reform has reached previously unimagined heights across the globe. Back in 2002, Thomas Blanton of the American National Security Archive wrote:
Making good use of both moral and efficiency claims, the international freedom-of-information movement stands on the verge of changing the definition of democratic governance. The movement is creating a new norm, a new expectation, and a new threshold requirement for any government to be considered a democracy. Yet at the same time, the disclosure movement does not even know it is a movement; its members are constantly reinventing the wheel and searching for relevant models.18
Beyond 2005, it might be safe to say, the ‘global movement for freedom of information’ has identified itself, and has a collective online consciousness that facilitates advocacy and project collaboration.19 The movement has helped establish a new international norm, recognized by a variety of international and regional bodies, urging governments to adopt and implement a right of citizens to request documents
17 Figure 7 does not include Taiwan (2005) and Cook Islands (2009). Vleugels, "Overview of All FOI
Laws."
18 Blanton, "The Openness Revolution: The Rise of a Global Movement for Freedom of Information," 56. 19 See for example A. Callamard, "Towards a Third Generation of Activism for the Right to Freedom of
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63 held by departments and agencies.20 Moreover, both China and India, two populous rising powers, have adopted versions of transparency law (see Chapters Eight and Nine), which suggests this norm has relevance in the current changing geopolitical times.
Figure 7: The Diffusion of FOI Law, 2010