More Power to You? A Case Against Binding Decisions as the Ultimate Access to Information Enforcement Tool

• Author: Sarah Holsen,Martial Pasquier
• DOI: 10.1177/0095399715611171
• Published date: 01 January 2019
• Date: 01 January 2019
• Subject Matter: Articles

https://doi.org/10.1177/0095399715611171

Administration & Society

2019, Vol. 51(1) 34 –62

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DOI: 10.1177/0095399715611171

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Article

More Power to You? A

Case Against Binding

Decisions as the Ultimate

Access to Information

Enforcement Tool

Sarah Holsen1 and Martial Pasquier1

Abstract

The enforcement of Access to Information laws is crucial to their effectiveness.

Information commissioners, who enforce about one quarter of federal

policies, are granted powers to help them execute their tasks. Many scholars

argue that a commissioner should have the right to issue legally binding orders.

However, we found that a commissioner with recommendation power is not

necessarily less effective. This article argues that one must consider what

binding decision power really means, whether the body uses it, and how the

body uses its other powers and fulfills its tasks before declaring that binding

decision power is the ultimate enforcement tool.

Keywords

transparency, access to information, regulation, information commissioner,

freedom of information

Introduction

Over the past decade, several dozen countries have passed Access to

Information (ATI) laws; the total number of ATI acts worldwide now stands

at 95 (Access Info Europe & Centre for Law and Democracy, 2013). In

1University of Lausanne, Switzerland

Corresponding Author:

Sarah Holsen, Søndergade 31, 9000 Aalborg, Denmark.

Email: sarah_holsen@yahoo.com

611171AASXXX10.1177/0095399715611171Administration & SocietyHolsen and Pasquier

research-article2015

Holsen and Pasquier 35

addition to the basic aim of granting people the power to access information,

the overarching objectives of these laws are to increase transparency and

accountability in government and thereby contribute to greater public partici-

pation in the political process and higher trust in government (Hazell, Worthy,

& Glover, 2010, p. 19; Worthy, 2010). Many government officials and mem-

bers of civil society argue that ATI policies ultimately contribute to better

governance and stronger democracy (Article 19 & Fundar, 2010; Mendel,

2008; Singh, 2007).

ATI laws are based broadly on the same principles and contain similar

legal parameters; thus, one might reasonably expect them to be similarly

effective. This is difficult to demonstrate, however, as few comprehensive

research projects have explored whether the objectives of these laws are actu-

ally met (Hazell et al., 2010, p. 3). On the other hand, numerous academic

studies, government reports, and news articles discuss the fact that ATI poli-

cies suffer from implementation problems. These problems include a lack of

publicly available information about how to make requests, delays in respond-

ing to requests, and unjust withholding of information.

As with any law, enforcement of ATI is key to mitigating implementation

problems or preventing them in the first place. The courts and oversight bod-

ies are the two main enforcement mechanisms built into ATI laws. Many

experts in the field consider the primary role of oversight bodies, which

enforce roughly one half of all ATI laws by resolving disputes that arise

between information requesters and the administration that holds the infor-

mation as well as carry out other implementation-related tasks, crucial to

combating the problems that crop up due to poor compliance (Ackerman &

Sandoval-Ballesteros, 2006; Pearlman, 2010); they also play a second role as

“champions” of ATI.

Oversight bodies are granted certain powers by law to help them fulfill

their functions. These include, among others, the authority to access any

information and material relevant to an appeal case, the right to issue to a

public authority whose actions it finds do not conform with the law’s provi-

sions a recommendation that specifies steps to conform, and binding decision

power, which allows the oversight body to enforce the decisions it issues on

appeals submitted by information requesters.

Most scholars argue that an oversight body should have the legal right to

issue legally binding orders—not just recommend what the administration

should do in an appeal case (Carter & Lv, 2007, p. 38; Neuman, 2009; Rowat,

1993). However, in a comparative case study of ATI oversight bodies in

Germany, India, Scotland, and Switzerland, we found that an oversight body

with binding decision power is not necessarily more effective than his coun-

terpart with recommendation power. In Switzerland, for example, where the