From information to predictability: transparency on the path to democratic governance. The case of Romania

Transparency as access to information

The most basic understanding of transparency is “not hiding” information, or, in a more ambitious formulation, “lifting the veil of secrecy” (Roberts, 2006). Coglianese (2009) calls this “fishbowl transparency” to highlight its passive dimension and its focus on already-existing information. A more active interpretation calls for measures that improve access to information, whether through legal provisions like the “obligation to publish” in FOIAs or notice obligations in APAs, or through other forms of proactive disclosure, such as open data, information portals, and communication officers. Measures that “force” the release of information, such as “leaking” or whistle-blower protection, also increase access to information (Meijer, 2014).

This interpretation of transparency can be a powerful democratizing element if based on the idea that ordinary citizens have the right to access government information (Ackerman and Sandoval-Ballasteros, 2006). Yet, if the result is only access to “raw” government information, its democratizing potential is limited. Large amounts of decontextualized information are difficult to interpret and require high processing and interpretation capacity from specialized intermediaries, such as the press, CSOs, or specialized institutions (Heald, 2012; Roberts, 2012). Moreover, various actors may use the information selectively to pursue their goals and even conceal important facts or intentions (Heald, 2012; O’Neill, 2006). If this is the case, simply granting access to information does not improve transparency, as citizens cannot really “find out what is going on inside government” (Piotrowski and Van Ryzin, 2007: 306).

In addition to the availability and accessibility of information, more complex definitions also emphasize its comprehensibility, completeness, and accuracy (Heald, 2012). The demand is not just for more information, but for better information (e.g. IMF, 1999, 2007). However, even these more demanding interpretations of transparency require only one-way action, from the government to the public, treating “information as detachable from communication” (O’Neill, 2006: 81). This limits the potential for effective transparency if “huge quantities of information are… made public in order to meet transparency requirements, but a great deal of it is not actually communicated to anyone” (O’Neill, 2006: 81).

Transparency as two-way communication

A second perspective on transparency focuses on two-way communication. For example, Coglianese (2009: 537) advocates for “reasoned” transparency, where the government goes beyond disclosing information to explaining the reasoning behind its decisions and actions. Such explanations require more than just “lifting the veil of secrecy”; they require substantive argumentation based on normative principles and empirical evidence (Coglianese, 2009). Moreover, this substantive argumentation cannot simply be top-down, there must be an exchange of arguments to achieve a common understanding (Mercier and Landemore, 2012).

Thus, “reasoned transparency” requires two-way communication, and is reflected in the broader concept of open government, whose varying interpretations couple access to information with participation, collaboration, responsiveness, and similar values (e.g. McDermott, 2010; Meijer et al., 2012). All these imply some “give and take” or exchange of arguments between governments and citizens. Examples of this perspective on transparency include notice and consultation requirements in OMLs and APAs (Piotrowski and Borry, 2010), alongside a variety of other so-called “transparency and accountability initiatives” (Kosack and Fung, 2014).

Transparency as two-way communication is more complex and demanding than “just” increasing access to information. In addition to informing citizens about, and providing substantive explanations for, already-made decisions (ex post output transparency in Heald’s (2006) terms), it also requires informing them about ongoing decisions (real-time event transparency) and providing space for dialogue with the government. Two-way communication also has more potential for democratic development. It not only increases the ability of citizens to find out what is going on inside government; it also facilitates a better understanding of what is going on and why, and empowers citizens to use this understanding to shape government decisions more directly.

However, limiting our understanding of transparency to this perspective also has its shortcomings. A more ambitious interpretation of transparency considers not only the opportunity for citizens to know why certain decisions are made, but also the ability to understand how decisions are made—both retrospectively and prospectively. The idea of transparency as predictability reflects such a view.

Transparency as predictability

By demanding clear reasoning behind public decisions, transparency as communication puts the emphasis on their substantive legitimization. Laws and regulations provide an alternative, procedural, basis for the legitimization of public decisions (Prechal and De Leeuw, 2007). These procedures limit the scope for arbitrary—hence non-transparent—state actions and decisions, thus increasing the predictability of administrative behavior. The perspective of transparency as predictability reflects this logic, emphasizing decision-making according to clear and publicly known or knowable rules. This interpretation is the most complex and demanding, and also the least well researched. This is, in part, because predictability is the result not of “specialized” transparency legislation, but rather of the overall body of laws that regulate decision-making and implementation, as well as of compliance with these by public authorities.

Transparency as predictability goes beyond access to information and two-way communication to focus on the nature of the system of governance itself. For example, Hood (2006: 5, emphasis added) states that “transparency denotes government according to fixed and published rules, on the basis of information and procedures that are accessible to the public, and (in some usages) within clearly demarcated fields of activity.” Transparency as predictability is linked to legal or procedural definitions of accountability, that is, public officials acting in accordance with given rules. Transparent administrations are those that behave in accordance with formal—and thus publicly known—rules, as opposed to informal—and thus “non-transparent”—practices.

Even more importantly, this perspective has important implications for democratization because it embraces a substantively different view of fairness. In the access to information and two-way communication perspectives, transparency is a prerequisite for judging fairness—lack of transparency creates the suspicion of wrongdoing. However, in the predictability perspective, transparency becomes an element of fairness. It highlights the importance of equality (i.e. treating like cases alike) and impartiality (i.e. objective decision-making) as fundamental principles of procedural justice and rational-legal governance, which are, in turn, key foundations for functioning democracies (Prechal and De Leeuw, 2007; Rothstein and Teorell, 2008).

In sum, the framework outlined here suggests three main interpretations of transparency: access to information; two-way communication; and predictability. Each of these is increasingly complex in terms of the democratic values they represent, and increasingly demanding in terms of the capacity required to translate them into practice. Guidelines on “good practices of transparency” in different policy and administration areas implicitly include all these perspectives—in terms of the information that has to be made available (access to information), explanations that have to be given (communication), and the clarity and publicity of rules and regulations (predictability) (e.g. IMF, 2007; OMB, 2009).

Table 1 summarizes: the three interpretations of transparency and related concepts from the literature; the typical policies and legislative acts through which they are codified; and their reflection in broader patterns of political and administrative behavior. Together, the three perspectives provide a useful framework for exploring government-wide transparency. To illustrate this, the next sections apply the framework to the case of Romania.

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Table 1.

Perspectives of transparency.

Perspective	Content of transparency	Related concepts	Legislative tools, policies	Transparency in practice
Access to information	State actions and decisions are clear: citizens are informed about what public institutions are doing	Ex post event transparency (Heald, 2006, 2012); “fishbowl” transparency (Coglianese, 2009)	FOIAs, open data provisions, the publication of official statistics, etc.	Official responses to information requests; the quality, comprehensiveness, comprehensibility, and accessibility of official data and information
Two-way communication	Reasons for official decisions are clear: public officials explain decisions and engage in dialogue with citizens	Real-time process transparency (Heald, 2006, 2012); “reasoned” transparency (Coglianese, 2009)	OMLs, notice and consultation provisions in APAs, public participation and social accountability initiatives	Actual public consultation and participation in decision-making
Predictability	Procedures for making decisions are clear (“transparent”)	Process transparency (Heald, 2006, 2012) Can be seen as systemic transparency (“good governance”/“rule of law”)	Body of laws regulating decision-making and implementation—clarity of de jure system of governance	Compliance with the body of laws regulating decision-making and implementation; clarity of de facto system of governance and resulting predictability of decision-making

General framework and evolution of transparency in Romania

Article 31 of the 1991 Romanian Constitution enshrines the right to information as a fundamental citizenship right, but a law operationalizing this right was not adopted until 2001. This indicates that while acknowledged as a democratic value in theory, transparency was not a key concern of the first post-communist governments in Romania. Instead, transparency rose up the political agenda as part of the anti-corruption drive in the late 1990s and early 2000s.

In Romania, as in most countries, there is no “transparency policy” per se, in the sense of a deliberate government strategy or set of related actions and goals (C1, C2, C4, C6, C7, C8, C9, G4, G5). Rather, there are a few key transparency laws. The most important ones are the 2001 “Law on Free Access to Public Interest Information” (FOIA) and the 2003 “Law on Decisional Transparency” (OML). These laws clearly reflect the first two interpretations of transparency: access to information and two-way communication.

Moreover, these two laws introduce an element of transparency as predictability in how government agencies interact with citizens by specifying the rules, procedures, and boundaries of transparency. As one interviewee put it, “both laws were a reaction to civil society pressure against chaotic decision-making by government, Parliament, the political class, and the public administration” (C6). For example, civil society activists who pushed for an FOIA critiqued not the absence of public information, but the fact that access to it was erratic and determined by “connections,” bribery, and leakage of information to discredit opponents (cf. Mungiu-Pippidi, 2001). While well-connected parts of the media were able to obtain “scandalous” information, routine government information useful for citizens, such as parliamentary votes, budget data, property records, statistics, and so on, was missing or hard to obtain (Mungiu-Pippidi, 2001).

In addition to the two core transparency laws, other government strategies also include measures that reflect the three perspectives of transparency. Romania’s anti-corruption strategies (GoR, 2001, 2005, 2008, 2012) emphasize the need to increase access to information, strengthen consultation requirements in regulatory processes, and provide clear, streamlined, and predictable regulations and administrative procedures. Likewise, the 2008 “Strategy for Better Regulation” includes measures to increase consultation (and thus transparency) in decision-making (G4), and Romania’s Open Government Partnership (OGP) Action Plans focus heavily on improving access to information via strengthening open data systems (GoR, 2011, 2014).

As noted earlier, however, legislation is necessary but insufficient for achieving effective transparency. To realize their democratic potential, transparency laws and provisions need to be consistently implemented, and the principles they embody need to be followed in practice. The next sections investigate whether this is the case—both in terms of compliance with FOIA and OML, and in terms of broader patterns of access to information, consultation, and predictability in decision-making.

Transparency as access to information

The adoption of an FOIA, following an intense campaign by CSOs, was considered a breakthrough for democratic values in Romania (Mungiu-Pippidi, 2001). After the government adopted the implementation norms in 2002, FOIA compliance rates and response times improved markedly, especially between 2002/2003 and 2006/2007 (APD and TI Romania, 2007a; also C1). Romania’s FOIA also performed well in international comparison. In 2006, it had among the highest compliance rates and consistency of answers out of 14 countries studied (OSJI, 2006). The use of the FOIA is also substantial. In 2008, Romania ranked sixth internationally for annual FOIA requests per 100,000 inhabitants (Vleugels, 2009). While some observers report a decline in FOIA use and compliance after 2008 (GIR, 2008, 2010; also C1, C8), the FOIA seems to have been institutionalized and routinized to a significant degree (World Bank 2012; also C10, G2).

This is not to say that the FOIA functions seamlessly. However, lack of uniform compliance across public institutions and types of requests (CJI and IPP, 2009; also C12) is not unique to Romania (OSJI, 2006). Even in established democracies with longer FOIA histories, public agencies have many strategies at their disposal to avoid compliance (Pasquier and Villeneuve, 2007). Furthermore, in a context of low administrative capacity, problems such as lack of training, lack of financial and human resources, and weaknesses in internal communication and information management systems create additional hurdles for implementation and compliance—especially at the local level and in rural areas (Dragos et al., 2012).

Beyond compliance, the more profound question is whether the FOIA has generated a shift in how public administrators relate to citizens. This is difficult to ascertain due to a lack of data on the democratic values of public servants. Inconsistency in FOIA implementation has often been attributed to a “culture of opacity” (C2, G1, G3, G4) and a tendency towards secrecy and reliance on informal, personalized communication (CJI and IPP, 2009). Anecdotal evidence also suggests that paternalist, top-down attitudes persist among some public officials, who see citizens as “subjects” rather than “owners” of government information. For example, in 2004, public institutions asked for a justification for 70% of the FOIA requests placed by CSOs, even though such justification was not required by law (APD and IRIS, 2004).

Yet, there are signs of improvement. In a 2007 follow-up survey, requests for justification were no longer a problem (APD and TI Romania, 2007a), and, as noted, routine FOIA compliance functions relatively well. Perhaps the most illustrative story comes from a local civil society activist (C10). As he explained, the initial public reaction of local authorities to a FOIA request was confusion, fear, and resistance: he had to wait outside the building while the local official, who doubted such a law existed, looked it up and got approval from his supervisor to communicate the information. Yet, by 2011, local authorities “had gotten used to it,” and answering simple and non-sensitive FOIA requests had become a routine activity.

While FOIA led to an improvement in access to “raw” government information, there seems to be less progress in proactively publishing relevant, comprehensive, and clear information in a number of policy areas (G2). Budget transparency exists in theory, but the information released is difficult for citizens to use (GIR, 2008). Despite the obligation to publish all regulation in the Official Gazette, only 52% of legal acts were published in 2007 (APADOR-CH and SAR, 2008). Even the OGP action plan shows significant weaknesses: only five out of 15 commitments of the first action plan were specific, relevant, transformative, and completed on schedule (Open Government Partnership—Independent Reporting Mechanism, no date).

Transparency as two-way communication

The “twin” transparency law to FOIA is the OML, which requires public institutions to: (1) publish information on legal acts under development; (2) allow interested parties and citizens to formulate comments and proposals; (3) organize public hearings; and (4), since 2010, offer reasons for rejecting proposals made during the consultation process. At the time of its adoption, the OML represented a significant step forward from previous legislation, which forbade public employees from disclosing any information during the drafting process (Ristei, 2010).

Surveys of OML implementation show low compliance over time, both from central- and from local-level authorities (APADOR-CH, 2007; APD and TI Romania, 2007b; Dragos et al., 2012). In some cases, the quality of the local-level reports of OML compliance was so low that CSOs described it as showing “outright contempt for the law and the citizens” (APADOR-CH, 2007: 40). CSO activists were sometimes denied access to meetings that were supposed to be public (APADOR-CH, 2007). Citizens rarely made comments and suggestions on proposed local laws or decisions, and even when they did, local authorities rarely took these into account (APADOR-CH, 2007; Dragos et al., 2012).

Interviews with CSO and government representatives confirmed that the OML is only weakly used in practice, not just because of resistance from public agencies, but also because the demand side is weak (C2, C9, G5). At the local level, especially outside of the capital city and a few other urban centers, few CSOs are capable of representing citizens and engaging in public decision-making processes (C1, C2). Even where such organizations exist, they have difficulties mobilizing the public to participate (C2, C10).

Even at the central level, one of the most enduring criticisms of the Romanian government is that it acts in haste and does not allow enough public consultation and debate on important legislative measures (APADOR-CH, 2012; ARC, 2012; also C2, C6, C11). The lack of consultations has been criticized not only by CSOs, but also by “technocrats” concerned with the quality of decision-making (G4, G5). While government agencies comply relatively well with formal requirements for publishing draft legislation on their websites (G5), they rarely engage in consultations in earlier stages of policy development, such as problem formulation or assessment of policy options (G4, G5). The top-down decision-making style is aggravated by a lack of policy analysis and impact assessment, which further limits the potential for substantive debates about policy proposals (Mungiu-Pippidi, 2010; also G4).

In sum, while the intent behind the Romanian OML was to promote transparency as two-way communication, its democratic potential has not been fully realized. Not only is the implementation of the OML weaker than that of the FOIA, but neither public authorities nor citizens seem to be strongly invested in putting the principle of transparency as communication into practice. The result is a lack of communication in the development of legislation (C6, G4, G5). As argued in the next section, this also reduces the predictability of decision-making.

Transparency as predictability

As noted earlier, both the FOIA and OML lay out procedural requirements, and thus introduce the concept of transparency as predictability. Indeed, increasing predictability in decision-making was also among the central reasons for the adoption of the OML (C6, C11). As one interviewee pointed out, if more consultation were carried out during the development of legislation, there would be less need for frequent revisions of legislation after adoption (G5). A comment from a Romanian businessman sums up this challenge well: “The problem is not just that the laws change.… It is that the government never explains itself. If you want people to endure hardship, you have to involve them in the decision making process.” (Dietrich, 2000: 20).

Frequent, unexplained changes in laws—and thus lack of transparency as predictability—have been highlighted as a key overall problem of public decision-making in Romania (Mungiu-Pippiddi, 2010). However, even in areas where laws are relatively stable and clear, administrative behavior is marked by unpredictability. For example, as noted, even compliance with the two main transparency laws themselves—the FOIA and OML—is inconsistent and dependent on both the particular public agency and specific individuals involved.

Beyond specific legislation, the high level of corruption in Romania is itself an expression of inconsistent compliance with the overall legislative framework regulating administrative behavior. As Mungiu-Pippidi (2003: 83, emphasis added) argues:

Abusive treatment by the various state administrations is not universal. It is simply arbitrary and unpredictable, as summed up by the answer to the question “How often do you have to bribe?” To this, 53 percent of Romanians … answered: “Depends on the civil servant you encounter.”

The arbitrary and nontransparent nature of decision-making is also visible in the often-criticized politicization of personnel policies, especially for top- and middle-level management (Ionita and Freyberg-Inan, 2008; Mungiu-Pippidi, 2010). Current reform proposals emphasize the need not only to limit political appointments in the public sector, but to do so in consultation with political parties so that this is “supported by everyone openly and transparently, and regulated accordingly” (Tudorache, in Pantazi, 2016, emphases added). The goal is to ensure compliance with regulations in order to achieve “a level of predictability that allows the administration to function well” (Tudorache, in Pantazi, 2016 , emphasis added).

Another area that illustrates well both the progress achieved on transparency as predictability, and the challenges that still exist from this perspective, is the relationship between local and central government. As part of the transition process to democracy, the roles, responsibilities, and allocation of funds between central and local government have been progressively clarified through a series of laws and administrative acts. Ionita (2004: 25, emphasis added) argues that in 1998/1999, “new legislation dealing with local finance instituted for the first time in Romania the system of resource sharing based on automatic formulas, thus making the local budgetary process more autonomous, transparent and predictable.”

Nevertheless, discretionary behavior is still widespread. Key decisions about the allocation of equalization transfers between counties and local councils are often made in a nontransparent manner, and the impact of clientelism and patronage is still high (Ionita, 2005). Even the term “local barons” (local political and economic power-holders), with its semantic reminiscence of feudalism, highlights that the predictability embodied in rational-legal governance is still weak in Romania.

In sum, while there have been improvements over the last decades, transparency as predictability seems to be the least understood and least practiced among public officials. This is not particularly surprising given that this perspective is the most complex and challenging to implement. Thus, despite the fact that various laws and regulations have been established to guide decision-making, decision-making practices often remain arbitrary and unpredictable.

In conclusion, Romania has seen some significant progress on transparency over the last decades. Transparency—in its three interpretations—has gained a more prominent place in public discourse, and is being prescribed through an increasing number of legislative acts and provisions. The adoption of the FOIA and OML represented a significant break from the past.

However, challenges remain. Transparency as access to information is the most established, but administrative practice centers more on routine FOIA compliance than on the proactive publication of high-quality information. Transparency as two-way communication is enshrined in the OML, but public officials rarely embrace public consultation. Transparency as predictability is the least well established, and decision-making is often arbitrary. Corruption, civil service politicization, and clientelistic allocations of funds between levels of government are broader reflections of the weak embeddedness of transparency as predictability in the Romanian political and administrative system. Table 2 summarizes the three perspectives on transparency in Romanian law and practice.

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Table 2.

Transparency in Romania: key legislation and patterns of behavior.

Perspective of transparency	Romanian interpretation	Implementation of core transparency legislation	Patterns of transparency in decision-making and implementation
Access to information	Institutional transparency (codified through the FOIA)	Increasing compliance with the FOIA over time, some use by citizens/CSOs	Weak transparency in other areas (e.g. budget transparency, open data), limited quality, comprehensiveness, and comprehensibility of information released
Two-way communication	Decisional transparency (codified through the OML)	Low(er) compliance with the OML, difficulty of mobilizing public to participate	Lack of transparency and consultation in the development of national legislation, many public officials do not see a reason to explain their decisions, let alone consult the public or interested parties
Predictability	No explicit translation. Implicit: progressive clarification of the roles, rights, and responsibilities of public institutions	Not applicable/some compliance with legislation developed in post-communist/transition times, BUT… (see next cell)	Widespread discretionary behavior in many institutional and policy arenas (e.g. personnel policy, financial transfers between levels of government, corruption in general, “local barons”)