Governments’ Uses and Misuses of Freedom of Information Laws in Emerging European Democracies

FOI Laws and News Media

The existing literature concentrates on three aspects of the relationship between FOI and the press: (a) It explores the degree to which journalists use FOI laws (Lamble, 2004; Lidberg, 2009; Snell, 1998, 2002; Tapscott & Taylor, 2001; Waters, 1999), (b) analyzes the impact of FOI on journalism performance (Hayes, 2009; Holsen, MacDonald, & Glover, 2007; Relly & Schwalbe, 2013), and (c) examines the impact of FOI on overall media freedom (Nam, 2012; Relly, 2012; Relly & Cuillier, 2010).

Empirical evidence suggests that journalists tend to underuse and underestimate the potential of FOI representing between 5% and 16% of the total FOI requests made to public institutions (Bertoni, 2012). For example, the Heritage Foundation found that only 5% of 2,285 federal freedom of information requests to selected federal agencies in the United States in 2001 were submitted by journalists (Tapscott & Taylor, 2001). A similar study that analyzed 6,439 FOIA requests submitted to U.S. federal agencies in 2005 found that journalists submitted only 6% of those requests (Coalition of Journalists for Open Government, 2006). In the context of developing countries, even though journalists uphold the democratic norms for access to information designed to keep the government accountable (Relly, Zanger, & Fahmy, 2015), they are generally not familiar with the legal guarantees and procedures of their right to information or they underutilize this right due to self-censorship (Smolina, 2005).

Despite low usage by reporters, which has dropped even further in the wake of recent financial crisis in news media (Cuillier, 2011), the general benefit of journalists’ use of FOI goes far beyond what these statistics indicate (Tromp, 2008). Research suggests that governments are becoming more transparent as a consequence of FOI laws (Hazell & Worthy, 2010) while journalists have successfully used this legislation to expose wrongdoings (Holsen et al., 2007).

However, comparative research indicates that journalists’ successful use of FOI laws varies between countries (Lamble, 2004; Lidberg, 2009). Some recent studies challenge the normative assumptions that link FOI laws to greater media freedoms in developing countries. Relly and Schwalbe (2013) found little reference to the FOI legislation in India’s newspapers’ reports on corruption. In a census of 191 countries, Nam (2012) found a weak correlation between FOI laws and press freedom. Relly (2012) concluded that the quality of FOI laws in developing countries does not significantly correlate with the “quality of the environment for the news media” (p. 16).

Studies exploring the effects of FOI laws in developing countries are somehow limited in their conceptualization of the FOI outcomes. They mainly focus on the role of FOI legislation as democratization tools that lead to greater freedoms. FOI laws are not designed to provide for broader freedoms of the media, but rather they are intended to provide journalists (and all citizens) the right to access to information, which can enhance their ability to engage in the news agenda-building process in a more meaningful way. However, just because the FOI laws exist does not mean the desired outcomes occur. The democratic governance, economic development, and political culture in which news media and FOI laws operate determine their outcome for journalists (Relly & Cuillier, 2010). The literature (Bertoni, 2012; Lamble, 2004; Ricketson & Snell, 2002) emphasizes different aspects of a failing system that can facilitate noncompliance toward journalists’ FOI requests. Yet, this “darker side of information” (Gingras, 2012, p. 224) and FOI mechanisms remains unexplored. Based on this literature, this study raises the following research questions:

Media Agenda-Building Process and FOI Laws

To interpret the potential consequences of FOI laws for journalists’ empowerment vis-à-vis the government, this study adopts Blumler and Gurevitch’s (1995) approach to political communication and the agenda-building framework (Elder & Cobb, 1984). According to Blumler and Gurevitch, political communication is a system of mutually interdependent actors in which political and media organizations are both involved in message production that aims to set the public agenda. It conceptualizes the relationship between journalists and public officials as mutually dependent, yet antagonistic in nature (Bennet & Livingston, 2003; Blumler & Gurevitch, 1995; Davis, 2009). Agenda-building theory explains structural interdependencies among government and mass media as a collective process in which policymakers and journalists reciprocally influence one another in at least some respects (Lang & Lang, 1983). Most media agenda-building research has examined the effects of the information subsidies by communication professionals to set the news agenda (Davis, 2002; Denham, 2010), suggesting that journalists are semi-independent players in this process (Bennet & Livingston, 2003; Kiousis, Mitrook, Wu, & Seltzer, 2006). The resulting news content is a by-product of their mutual interactions throughout the process of making issues and their attributes salient (Tedesco, 2001). Clearly, public officials set, frame, and build considerable portions of the agenda for the news media via information subsidies.

Even though political sources might be in a superior position during the initial phases of news discovery, journalists often take the lead during the follow-up newsgathering process (Reich, 2006). Driven by their news values and work routines, they are in constant need to pursue stories beyond the official radar. FOI legislation is a potentially powerful tool that can aid journalists in this process enhancing their role in the agenda-building process. FOI laws are designed to tackle the inherent information asymmetry between those that govern and the governed, mending the potentially flawed agency relationships (Snell & Sebina, 2007) between policymakers and journalists. For example, after the adoption of FOI law, New Zealand has developed an efficient system that enhances journalists’ access to information (Lamble, 2004). The FOI law in Great Britain is changing the nature of journalism as news stories generated by FOI become more sophisticated, demonstrating in-depth research (Hayes, 2009) that focuses on governmental expenses and salaries, institutional rules, procedures and policies, and performance measurements (Holsen et al., 2007). FOI legislation has improved the transparency of police forces toward journalists’ inquiries while increasing the news media’s watchdog role regarding police activities (Cooke & Sturges, 2009).

Elected officials’ efforts to dominate the media agenda are not limited to information subsidies though. They regularly engage in information control via preemptive leaks, cover-ups, violation of due process, persuasion, retaliation, and limitations on FOI (Gibson, 1985). Research suggests that officials can see FOI laws as ammunition for political struggles with their opponents (Gingras, 2012), including the news media. Journalists’ use of FOI laws can produce highly political reactions and fail to “loosen the political gatekeeper’s hold on sensitive information” (Chulov, 2001, p. 6). Officials try to minimize the disruptive effects of this legislation by overly relying on FOI limitations to deny access (Hayes, 2009), delay information access (Holsen et al., 2007; Roberts, 2002, 2005), engage in information spin (Roberts, 2005; Snell, 2002), and using FOI laws to control publications’ time frame of sensitive information, “freezing” its newsworthiness (Hayes, 2009; Roberts, 2005). Some additional actions include altering the exclusiveness of information by sending the requested records first to friendly outlets, deflecting journalists’ attention from requested information, disclosing information that undermines the political opposition, and spreading good news while disclosing sensitive information (Snell, 2002; Tromp, 2008). This research suggests that governments can use FOI laws to punish, intimidate, manipulate news media, and control the news agenda—turning the FOI concept on its head.

Eastern Europe Media and FOI Laws

Previous research suggests that the political and media system in which journalist–government relations take place are major determinants of their power relationship (Hallin & Mancini, 2004). This study is conducted in the backdrop of South-Eastern European societies where freedom of the media is still evolving.

Media in Eastern European countries have evolved into hybrid systems (Dobek-Ostrowska & Głowacki, 2008; Downey & Mihelj, 2012; Jakubowicz & Sükösd, 2008). In line with Western ideals, media policy in this region envisions a socially responsible press, with journalists playing a guardianship role and democratic surveillance (Jakubowicz & Sükösd, 2008). However, the political elites stick to any elements of the old regime to subordinate news media in a paternalistic system that envisions journalists in a cooperative role rather than exercising an independent critical function (Bajomi-Lazar, 2008; Gross, 2004; Jakubowicz & Sükösd, 2008).

Most media markets in Central Eastern Europe are dominated by businesspeople or politicians who exploit journalists working for their media outlets to promote the elites’ political or commercial goals (Hrvatin & Petković, 2004; Örnebring, 2012; Stetka, 2012). However, instead of representing major ideological divisions as reflected in the party system, these outlets represent the interests of “the politician-owner/owner-politician and the struggle for power” (Coman & Gross, 2012, p. 469). This has resulted in complex press–government relationships marked by mutual bonds, adversarialism, and two-way interactions (Mungiu-Pippidi, 2008).

Journalistic practices in this region are influenced by the quickly spreading commercialization and tabloidization of the media in this region (Gross, 2002), even though media moguls often exploit their news outlets to combat their adversaries (Hrvatin & Petković, 2004). On the other hand, practices of the old-school governmental propaganda have been gradually replaced with new techniques of political marketing (Bajomi-Lazar, 2008). Government officials use more covert tools to control the news agenda through controlling access to information, while “the buzzword of confidential information . . . has replaced earlier references to political or ideological control” (de Smaele, 2004, p. 65; see also Smolina, 2005). Information access in these countries is very centralized, as bureaucrats’ interaction with journalists is directed from the top leadership (Author, in press), suggesting that policymakers are most likely to handle journalists’ FOI requests.

Country selection for this study is based on the most similar system design (Przeworski & Teune, 1970), which compares highly similar cases that still have significant differences. The three countries included in this study, Albania, Kosovo, and Montenegro, fall into the Mediterranean/Polarized Pluralist Model in Hallin and Mancini’s (2004) typology of media systems. The three selected countries have partly free media systems, with particularly poor political and economic environments (Freedom House, 2014). These represent control variables for this study.

A noteworthy dissimilarity between these three countries is the quality of FOI legislation in place between 2012 and 2013, at the time when this study was conducted. All three countries included in this study have in place both constitutional and legal guarantees for the right to information. During the data collection for this study, Albania had in place the Law on the Right to Information on Official Documents dating back to 1999. Even though, in principle, it guaranteed the basic principles of access, it lacked important safeguards to facilitate its implementation, such as weak oversight mechanisms and long delays in appeals process (Article 19, 2004). The Assembly of Kosovo approved the Law on Access to Public Documents in 2010, which replaced the highly dysfunctional Law on Access to Official Documents from 2003. The new law is considered more advanced as it shortened the deadline for responding to FOI requests, obliges institutions to set up units to handle requests and publish information in electronic form, and sets up a regime of fines (GAP Institute for Advanced Studies, 2011). The Montenegrin Parliament adopted the Law on Free Access to Information in November 2005, which was initially deemed incompatible with the Law on Classified Information and the Law on Protection of Personal Data. Under international pressure, the government took the initiative to synchronize these three laws, resulting in an amended FOI law in 2012. In a latest report about the quality of FOI legislation globally, Albania’s FOI law ranks 80th for its poor quality (out of a total of 97 countries), followed by Montenegro ranking 47th, whereas Kosovo FOI law is ranked higher at position 21st (Access Info Europe, n.d.).

According to these characteristics, it makes theoretical sense to include Albania, Kosovo, and Montenegro in the same model. However, the decision to limit this study to these three countries is also related to researcher’s accessibility of the data in a cost-efficient way.

FOI Laws and Journalists’ Access to Information

It is difficult to get an exact measure of the extent of FOI legislation used by journalists in the three countries included in this study. Although implementing and oversight agencies are required to track the number of filed FOI requests for information, no official data could be accessed in Albania, while data from in Kosovo and Montenegro are incomplete. However, various surveys and interviews indicate that even though the awareness of FOI laws is high, FOI demand from journalists is low. There are, however, variations across countries observed in this study.

Governmental statistics suggest that journalists are the most active FOI stakeholders in Kosovo, but the least active stakeholders in Montenegro. Journalists submitted about 60% of the total FOI requests processed by Kosovo institutions in 2013 (1,200 requests), a significant increase from the 544 FOI requests submitted by journalists in 2012 (Kosovo Government, 2014). However, Montenegro institutions reported that out of the 1,782 FOI requested they received during 2013, only 28 requests were submitted by journalists (Agencija za Zastitu Licnih Podataka i Slobodan Pristup Informacijama, 2014). Critics have emphasized the lack of transparency in Kosovo’s government, which reached a critical point during the tenure of the current Prime Minister Hashim Thaci. Therefore, journalists in Kosovo use the FOI law as a legal tool to compensate for government’s lack of transparency. On the other side, many journalists in Montenegro mentioned using FOI information generated by third parties, particularly civil society organizations. In 2012, The Network for Affirmation of the NGO Sector MANS (n.d.), a local nongovernmental organization, initiated a project that aims to make available via the Internet about 10,000 documents collected using the FOI law to help all interested parties—particularly investigative journalists—access information that may expose corruption and misuse of power.

Interviews with journalists indicate three types of FOI users: nonusers, periodic users, and a few paper chasers (Fajans, 1984). The majority of the interviewed journalists claimed to be in the first category, assessing FOI law as useless for their work.

First, I work for a daily newspaper where the speed of information is critical. On the other hand they [institutions] have the luxury of two weeks or more to deal with your [FOI] request. In the meantime the news is gone. I am sure to be able to obtain the information faster through my informal sources. Second, the law is incomplete, given that there has not been a systematic classification of official documents, what belongs to state secrecy and what should be open for the public. In this way, practically every person in the administration can interpret the law according to his desire. (KOS_J5/News editor, daily newspaper)

Yet, a significant number of interviewed journalists, mainly from printed media, claimed to occasionally make strategic use of this law. Several journalists said they submit FOI requests only when “institutions refuse to provide us with information via regular channels to simple, straightforward questions” (MNE_J20/editor, daily newspaper) or when an informal approach to gaining access fails.

We were working on a story about the number of employed people in the public administration. We tried to get the information via public relations’ office but it was taking too long. The PR person kept telling us “I will provide it tomorrow . . . the day after tomorrow . . .” and this went on for weeks. Then we decided to submit a formal FOI request, which accelerated the procedure very much. (MNE_J10/News editor, private TV)

A group of journalists also emphasized that they often use the FOI law to verify their reporting and “to protect us from lawsuits” (ALB_J11/editor, online news magazine). As one journalist claimed, “The only way is to ‘smuggle’ documents through informal sources” (KOS_J3/journalist, daily newspaper), which can lead to legal consequences and manipulation. In cases when dealing with contentious information, journalists submit FOI requests for documents already obtained via informal channels, letting the administration know they already possess the information. This strategy often facilitates access.

The more information a journalist has about the specific issue and the more specific is their FOI request, they are more likely to obtain a more detailed and complete information. When the request is broad and vague, the answer will be incomplete. Our institutions are not prone to provide with more information than requested. They have no motivation, unless that information serves their propaganda purposes. (ALB_J18/Editor, private TV station)

Nevertheless, study participants agreed that their access to government information via FOI requests mostly depends on the type of information requested, “which questions you ask, which topic you investigate . . . whom is your story threatening” (MNE_J12/news editor, private TV). Journalists in Montenegro emphasized that this law has facilitated access to what they called “benign” information that does not touch on power abuse. The group of journalists from Albania mentioned the utility of this law to report on human-interest stories. However, generally institutions are not receptive to journalists’ inquiries about financial issues, governmental spending, political and administrative appointments, and procedures of policy implementation where most of the alleged corruption affairs occur. Most interviewed journalists claimed that when covering such matters, FOI has proven to be a useless or even counterproductive tool.

I can easily submit a request in the Ministry of Justice . . . but it will take a long time before I get some kind of answer. And when I get the answer, it will most likely be a refusal to provide information, then you need to start from the beginning all the procedures. In some cases you don’t get any answer at all, this happens in most cases. In other cases the information provided is truncated and incomplete because they just want to be able to say they provided you with something. (ALB_J15/Journalist, daily newspaper)

A monitoring report in Albania suggested that even though central institutions respond to 61% of FOI requests by journalists, only about half of those responses provided complete information. The rest of the responses provided incomplete information, referrals to their website or another document, and transfers to another institution (Albanian Media Institute, 2012). Similarly, a recent study found that only 5% of journalists in Kosovo obtain positive answers to their FOI requests, while most journalists claimed that institutional responses are delayed too far beyond their deadlines (Association of Professional Journalists in Kosovo, 2010). In cases when journalists’ FOI requests are denied, 91% of the surveyed journalists claimed they were given nonsubstantial justifications.

The Management of Journalists’ FOI Requests

Literature on administrative compliance (Roberts, 1998; Snell, 2001) identifies multiple approaches to handling FOI requests that range from enthusiastic pursuit of the FOI law to malicious noncompliance, when documents are destroyed on purpose to deny access. While patterns of compliance vary within each administration and between countries observed in this study, overall the data suggest that two approaches prevail in dealing with journalists’ FOI requests deemed to be contentious: administrative noncompliance, or undermining access with administration deficit or lack of resources; and adversarialism that undermines journalists’ access while testing the limits of FOI law interpretation (Snell, 2002).

While all three countries have inherited a poor record-keeping culture from past Communist legacies, monitoring reports from Albania and Kosovo also emphasize the lack of resources and proper training to deal with FOI requests (GAP Institute for Advanced Studies, 2011; Institute for Policy and Legal Studies, 2012; Organization for Security and Cooperation in Europe [OSCE], 2007; Trebicka & Shella, 2011), which hinders journalists’ access to information. The lack of personnel sometimes inhibits journalists’ request submissions; often, journalists are asked to submit FOI requests by mail, even though the laws give equal priority to both written and electronic requests. Officials tend to provide oral responses and neglect to register FOI requests, especially when responses are negative. Journalists are asked to provide the reason why they need the information when they submit FOI request, and often officials deny information requests due to their lack of awareness of the FOI law and the lack of established procedures in how to handle such requests.

Some people working there [in administration] are party militants rather than professionals. It’s not that they lack the will, but they don’t have an idea what to do . . . they don’t know about the freedom of access, have no idea which documents are classified or not, which documents contain state secrets. So, often they simply refuse your request saying that the requested document is a state secret. They want to play it safe. (ALB_J14/Journalist, daily newspaper)

However, most journalists emphasized that officials tended to respond to their FOI requests with adversarialism, especially when the information requested was contentious. Journalists’ FOI request in all three countries are usually handled by institutional officials rather than administrators, which prologues the process. The group of journalists from Albania and Kosovo complained about the large number of mute refusals, when institutional officials do not reply to FOI requests at all. However, journalists from all three countries emphasized that in recent years, officials have adopted information delay as a more sophisticated form of denial. Often, officials claim not to possess the requested information, as one journalist described “leaving the hot potato on the other’s hands” (KOS_J3/journalist, daily newspaper). A recent study in Albania found that the majority of the ministries fail to publish most of their normative acts in the Official Gazette. Between 2006 and 2008, about 465 decisions issued by the Council of Ministers were not published (Center for Public Information Issues, 2011). Moreover, a considerable number of journalists in Kosovo and Albania emphasized that the institutional failure to publish lists of documents they have in possession creates pretexts to deny or truncate the information based on state secrecy.

Institutions in all three countries use a wide interpretation of FOI limitations and restrictions when dealing with journalists’ contentious FOI requests. Officials very often tend to categorize as sensitive information pertaining to the use of state resources, such as the amount of oil that officials use for job-related duties, or the names of institutional leaders that have not paid their taxes. Whereas conflicts between the FOI law and the law on classified information was evident in all three countries, in Montenegro FOI law has also been in contradiction with the legislation on the protection of private data, which creates another layer of interpretation that restricts access. One journalist explained, “I ask to access an original document, but they avoid providing me full access, claiming it’s secret, and instead send me only three transcribed sentences from the document” (MNE_J2/journalist, daily newspaper).

Compared with the other two countries included in this study, however, the FOI compliance regime in Montenegro is somewhat better, showing a positive trend. Journalists’ accounts emphasize a higher level of professionalism in handling their FOI requests. Journalists attributed this to the role of the civil society organization MANS that has filed more than 30,000 FOI requests, often serving as intermediaries for citizens and journalists. Such high demand for FOI has led to increased awareness of the right to information among governmental officials and increased efforts and commitment to comply. Moreover, in Montenegro, courts’ efficiency in dealing with FOI appeals provided a bedrock for greater success in accessing a great deal of FOI requests. MANS has submitted about 8,750 FOI appeals to the administrative court, with almost 80% of the judgments being in their favor (Terzic & Jankovic, 2012).

At the same time, journalists’ accounts emphasize that officials in Montenegro seem to have adopted more sophisticated communication strategies to deal with journalists’ contentious FOI requests. These strategies involve subtle tactics aimed to minimize the disruptive effect of FOI. A news editor from the largest daily newspaper in Montenegro illustrates this behavior as follows:

I [government official] know you are working on a news story and I know I am the focus of that story. You ask me for some documents and I provide you with selective information, given that the courts will probably make me do it anyway. You think you’ve done your job and you tell your editor you have a “bomb” [great story] coming up next week. But, your story appears in the competing newspaper the next day. Of course that story is told from my perspective: I am not the only bad guy, in fact I am not that bad at all. So, what was supposed to be an exclusive story on power abuse, becomes a political marketing of sorts . . . Some people with good journalist experience have entered political life and marketing, so they have the journalistic sense of how to compromise news stories. (MNE_J5/news editor, daily newspaper)

Often, access to information is used as a political tool to disrupt news media outlets critical of the government, while rewarding the outlets that provide more positive coverage. For example, a journalist working for a daily newspaper in Kosovo submitted a FOI request to the Kosovo Supreme Court asking about the wages of judges while he was working on a story on corruption. The public relations personnel emailed the response to all news media in a news release (KOS_J10/journalist, news agency). Some officials often target individual journalists or news organizations, limiting their access to information. Moreover, journalists working for independent private media in all three countries claimed that their colleagues from public media and other progovernment outlets have easier access to information than they do. Similar findings were reported by a civil society organization in Kosovo, which concluded, “By controlling the type of information available to certain media, the government can use access to public information as a reward tool for media reporting favorably” (Institute for Development Policy, 2013, p. 14). These data corroborate findings by Kimball (2003) that records custodians respond subjectively to requests for information depending on how they feel about the requestors and that their behavior is guided by their supervisors’ predicted reactions.

FOI Impact on Press–Government Relationship

Despite the many challenges journalists face when relying on FOI laws to access official information, generally they still believe in its potential to gradually bring about positive change in governmental transparency.

I think that the fact that we have the legislation for access to information is a positive thing because if we did not have this law the government would have an additional excuse to be non-transparent and deny providing documents. (ALB_J10/Journalist, daily newspaper)

Journalists say that there has been a slight improvement in their relationship with institutional officials over the years as a result of this law. One editor commented, “Officials are more careful now in how they deal with journalists’ requests” (ALB_J18/Editor, private TV station). Another said, “I have the feeling they are afraid of this law” (MNE_J7/journalists, private TV station). Indeed, a recent study suggests that when submitting FOI requests to public institutions, journalists have a better chance to obtain answers than citizens (Albanian Media Institute, 2012). “They have a sense of fear of being monitored, thus they try to perform better. I think even as a journalist I have a better chance of accessing information if I claim to be from an NGO,” said one of the journalists who participated in this study (ALB_J20/Journalist, daily newspaper). Many journalists attribute this improvement to international pressure to improve access to information, but also the gradual democratization progress, and the maturation of the relationship between government and the press. Therefore, it is hard to single out the role of FOI laws on this improvement.

At the same time, new struggles for information access have emerged as a result of this law. Governments in all three countries have centralized information access to the point that in many cases only institutional leaders are designated to provide information to journalists. For example, during the data gathering for this project, the Kosovo government did not have an official spokesperson. Instead, the Deputy Prime Minister, Hajredin Kuci, was designed to respond to all journalists’ inquiries. In Albania, journalists emphasized how the Minister of Interior Affairs had prohibited all the personnel from giving interviews to journalists. Moreover, several interviewees that have been working as journalists before and after FOI was adopted in Kosovo claimed that FOI has led to more bureaucratic procedures for information access. Whereas in the past journalists were able to obtain some information with a phone call, now most information requests are channeled via Public Relations officers and FOI mechanisms. As one journalist remarked, “If you ask for sensitive information, they point you to the legal way. They throw the FOI law in front of you” (KOS_J9/journalist, private TV station).

But, even though most interviews with journalists suggest low levels of FOI compliance by public institutions, none of the interviewed journalist claimed to have appealed FOI denials. During 2008 to 2009, the office of Ombudsman in Kosovo received only two complaints with regard to FOI denial, while the latest annual report from the People’s Advocate in Albania emphasizes only one instance of complaint submitted by journalists. The inefficiency of the supervising institutions—the Ombudsman and the courts—seems to discourage journalists from filing complaints, particularly in Albania and Kosovo. In a recent report, OSCE (2014) found that legal backlog and an inability of judges and prosecutors in Kosovo to interpret the FOI legislation are persistent problems that have e negative impact on the legal treatment of FOI appeals. They concluded that “it is therefore clear that the mere existence of the laws does not contribute to any actual improvement on the ground” (OSCE, 2014, p. 10). Moreover, journalists also claim to be discouraged by the lack of financial support from their employers to pay for legal fees involved in such appeals.