Does compliance imply openness? An institutional analysis of open government reforms in three municipalities in Chile

1. Introduction

Open government has been central to academic studies for years, with different approaches to its conceptualisation, implementation, and outcomes (OECD, 2016; Piotrowski, 2017; Tai, 2021). Based on transparency, access to information, citizens’ participation, accountability, and the use of new technologies, the open government movement has focused on promoting openness in the public sector, that is, to provide external actors the possibility to access both public information and public decision-making processes, making governments more effective, accountable, and responsive to citizen’s needs (Gil-Garcia et al., 2020; Grimmelikhuijsen & Feeney, 2016; Lathrop & Ruma, 2010; Meijer et al., 2012).

This implies a new way of governing beyond hierarchical relationships and towards network governance, which promotes collaboration to achieve social goals (Jessop, 2003; McGann et al., 2021; Meuleman, 2010; Peters, 2010; Sørensen & Torfing, 2017). Open government ideals are set on transforming public governance, improving how governments respond to citizens’ demands, and allowing non-state actors to engage in public matters (Edwards & Mcgee, 2016; Gascó-Hernández, 2014; Lathrop & Ruma, 2010; Park et al., 2020).

These ideals have pushed open government reforms into the international agenda, positioning policy tools that seek good governance through information, transparency, collaboration, public accountability, and technological efficiency (Ingrams et al., 2020; Piotrowski, 2017). In Latin America, these reforms have translated into countless initiatives, from administrative realignments to nationally mandated laws, with strong support from international organizations such as the Organization for Economic Co-operation and Development (OECD), the Organization of American States (OAS) and the Open Government Partnership (OGP) (OECD, 2014, 2016). Currently, 21 countries in the Americas are part of the OGP, about 23 nations have adopted access to information laws (CEPAL, 2021), and almost the entire region has regulated citizen participation (Mayka, 2019).

These formal structures seek to empower citizens with public information, facilitating a cycle of deliberation where informed citizens can interact, collaborate, and coproduce public policies to achieve complex social goals (Allen et al., 2020; Harrison & Sayogo, 2014; Lourenço, 2015; Viezzer Baretta et al., 2024; Worthy, 2010; Yavuz & Welch, 2014). Also, by implementing deliberative mechanisms, they increase the legitimacy of public decision-making and enable collaboration (Cameron et al., 2012; De Blasio & Sorice, 2016; Evans & Campos, 2013; Fung, 2004; McGann et al., 2021; Van Eijk et al., 2023).

However, studies have urged caution in describing the effects of these reforms. Regarding access to information, the existence of information portals and open data may not be sufficient to empower the citizenry, and the need for “interpretative communities” becomes essential (Cornford et al., 2013; Hansson et al., 2015). Also, socioeconomic barriers can determine the ability to demand public information and accountability (Saez-Martin et al., 2017), and both the weakness of civil society and the absence of legal mandates are common causes of transparency failures (Ingrams, 2017; OECD, 2014). Finally, access to information laws can have negative effects and be used for political instrumentalisation (Grimmelikhuijsen & Welch, 2012; Piotrowski, 2017).

Similarly, citizen participation laws are mostly consultative and dependent on authorities’ political will, reducing the effect of citizen involvement in local decision-making (Mayka, 2019; McNulty, 2019). This dependence on power dynamics raises doubts about the transformative capacities of coproduction and collaboration (Aruga et al., 2024), presenting a potential risk that open government could be used as a “smokescreen of formality” (Fraundorfer, 2017) or as a “neoliberal script” that promotes superficial makeovers rather than substantive changes in governance (Chatwin et al., 2019).

So, does compliance with these open government reforms imply openness?

This article introduces an institutional framework to examine how formal and informal institutions can enhance and block open government reforms. It aims to better understand how these policies can fulfil the region’s open and collaborative governance promises.

2. Open government reforms and institutional change in Latin America

Institutions are the self-imposed, long-term rules and norms that structure and constrain human behaviour in a society. These “rules of the game”, based not only on legal norms and regulations but on informal and contextual conditions, are seen as determinants for social interaction and political governance due to their collective and structural characteristics (North, 2006; Peters, 2005; Pierre et al., 2013).

Seen as a “catch-all” concept, there are various approaches to institutions based on how they constrain behaviour and how they can foster social and political development. Firstly, Rational Choice Institutionalism (RCI) understands institutions as a set of incentives that rational agents consider whenever they choose based on their interests and convenience. According to RCI, political behaviour can be changed through institutional design (Goodin, 1996; Peters, 2005), which allows reformers to create incentives to change governance and ensure openness. Secondly, Historical Institutionalism (HI) and Sociological Institutionalism (SI) understand institutions as macro-level structural rules established by tradition, social values, and interpretative frameworks of “how things work”. In both cases, institutional change through design is limited, and change can only occur through a slow, incremental, and evolutive process (Abrutyn, 2014; Fioretos et al., 2018).

When addressing changes to political institutions, the three institutionalisms concur on two fundamental factors: power and agency. Regarding the former, political institutions determine how power is distributed, so the possibility of change depends on powerful veto players who may resist reforms that challenge their position in society (Lowdes & Roberts, 2013). Regarding the latter, power structures are always opposed by dissatisfied agents, who will take advantage of any opportunity to bring about gradual and incremental changes (Mahoney & Thelen, 2010).

Then, institutional change depends on two main variables: the reform’s strength and competitive informality. As Brinks, Levitsky and Murillo point out, strong formal institutions create the conditions to achieve statutory goals by providing adequate incentives for compliance (Brinks et al., 2019). Based on RCI views on institutional change, these authors point out that the institutional design could change political behaviour when a) the statutory goal is relevant and b) the cost of complying with it is lower than the cost of violating or changing it. In other words, open government reforms that want to change political behaviour should have the capacity to create formal incentives for compliance, either by increasing associated benefits or penalising contempt or non-observance.

However, these reforms are not implemented in a vacuum. According to SI and HI’s interpretation of institutional change, most institutions are culture-based and rooted in values and traditions. This informality can support, compete with, or even replace formal structures such as laws and reforms, thus affecting their chances of success. Following Helmke and Levitsky, the interaction between formal and informal institutions is based on two variables: how strong the formal law is and whether the main goals of each are convergent or divergent. By crossing these variables, we can observe four types of interaction between formal laws and informality: complementary, substitutive, accommodating, and competing (Helmke & Levitsky, 2006).

In Latin America, strong informal institutions compete with formal laws as determinants of political behaviour. This informality can be predatorial, anti-democratic, and originated from past authoritarian regimes (Schwartz, 2021), can elevate transaction costs in multilevel governance (Ramírez de la Cruz et al., 2020), can legitimise power structures such as clientelism, nepotism and patronage (Barozet et al., 2020; Moriconi Becerra, 2011; Siavelis et al., 2022), can determine both economic and sectorial policies (Escandón-Barbosa et al., 2019; Rozas-Bugueño & Martin-Münchmeyer, 2020), and have an overall effect on formal efficacy (Pozas Loyo & Ríos Figueroa, 2022). The existence of a weak policy – with no incentives for compliance – and a competitive informality – based on traditional power structures and non-democratic values – could block changes in political behaviour, impeding the success of governance reforms.

3. Chile as a case study for open government reforms

We present Chile as a case study for the following reasons. Firstly, Chile has been a positive example of open government reform for the last decade, specifically for its advances in both transparency and citizen participation (Gonzalez-Zapata & Heeks, 2015; Valdivieso & Bernas, 2014). Chile initiated these reforms in 2008, when the Access to Public Information Law (AIL) was proclaimed, becoming an example for other countries in Latin America (Piña & Avellaneda, 2019). Also, in 2011, Chile passed the Citizens Participation Law (CPL) and in 2012, entered the OGP, implementing five national plans until 2022 (Comisión de Integridad Pública y Transparencia, 2021).

Secondly, Chile often ranks highly on institutional strength and management abilities (Cortázar et al., 2014; OECD, 2020). In recent years, the country has ranked lowest in Latin America on public perception of corruption (Transparency International, 2020), and it has the highest level of democracy, along with Uruguay and Costa Rica (The Economist, 2021). Finally, despite Chile’s high level of formality, there are also informal institutions that could constrain openness, such as coordination between political elites and coalitions (Barozet et al., 2020; Carey & Siavelis, 2006), a culture of secrecy regarding public information (Olavarría, 2010) and clientelism in local citizen participation mechanisms (Luján Verón, 2017; Montecinos, 2007). In short, the Chilean case allows us to observe how two open government reforms have been implemented over the last decade in a country with strong formal institutions and high administrative capacities but with competitive informality.

Chile is also a unitarian state with nationally designed policies and strong political, fiscal, and administrative centralisation (Navarrete-Yánez & Higueras-Seguel, 2014; Osorio-Gonnet, 2018; Vial-Cossani, 2016). All local administrations must follow the same legal directives on transparency, access to information, and citizen participation. These nationally mandated reforms allow us to compare informal contexts with the same formal structure.

Additionally, the differences between AIL and CPL are relevant to this research. The Chilean AIL has been highlighted as an example in the region for many reasons. Firstly, it creates a strong central oversight body called the Transparency Council, whose purpose is to monitor AIL implementation, issue binding orders and sanction non-compliance. Secondly, it has obliged national and local public organisations – including the 345 Chilean municipalities – to create a webpage and publish a detailed list of internal municipal information, such as budget expenditure, public contracting, municipal employees, and participatory mechanisms, which must be updated monthly. Finally, it requires all state organisations to answer any citizen inquiry in less than 20 working days, with the possibility of a single extension of another 10 working days. As it is, the AIL has created a special set of compliance incentives, indicating institutional strength. And it has worked. The average municipal compliance with transparency indicators grew from 30% in 2012 to 70% in 2018 (CPLT, 2021). However, this increase in compliance does not imply that AIL can achieve open government goals, such as engaging citizens or promoting accountability (Piña & Avellaneda, 2019).

On the other hand, CPL was enacted in 2011 and created a set of nationally mandated formal structures to promote citizens’ involvement in local decision-making, such as the Civic Society Councils (COSOC), public audiences and consultations, and other consultative and non-binding mechanisms. But unlike AIL, the CPL failed to create an oversight and enforcement agency, nor did it impose any sanction for non-compliance on local authorities, making it difficult to fulfil its goals for local governance (Consejo Nacional de Participación Ciudadana, 2017; Montecinos & Contreras, 2021; Muñoz Aravena, 2018; Pressacco & Rivera, 2015). The differences between AIL and CPL regarding institutional strength make them interesting to compare.

To understand whether compliance with open government reforms fosters openness, we designed a qualitative research tool based on a multiple case study analysis (Stake, 2006; Yin, 2009), drawing on examples from existing research that evaluated local governance (Geurtz & Van de Wijdeven, 2010; Michels & De Graaf, 2010). We took as our subjects three Chilean municipalities with the same formal structures and similar socioeconomic characteristics but with diverse levels of compliance.

Given the high diversity in terms of social and economic variables, we focused on “intermediary cities” – medium-sized municipalities that have a relevant political, administrative, or economic role in local development, acting as a liaison between the national government and its territories (Maturana & Rojas, 2015; Salazar et al., 2017). This allows AIL and CPL implementation to be observed on subjects with similar socioeconomic characteristics and administrative capacities. After this, we established the intermediary cities’ compliance with AIL and CPL. The Transparency Council has evaluated all municipalities’ compliance levels through the Active Transparency Municipal Ranking (ATMR) since 2012. With this data, an average ATMR was calculated from 2012 to 2016 for every Chilean intermediate city.

However, there is no official compliance measurement for CPL, as there is no official oversight body for this law. Therefore, we selected two CPL requirements as proxies for compliance. Firstly, we checked all municipal participation ordinances and their date of issue. By law, all municipalities must issue an updated participation ordinance following CPL issuance in 2011. Secondly, we checked how many times the COSOC was elected and established. The CPL requires that every municipality hold an election for COSOC members every four years since 2011. By the time we started this research (2018), all municipalities should have held two COSOC elections. With this data, we designed a compliance index for AIL and CPL and identified five levels of compliance (Table 1).

Finally, due to the importance of political leadership in local governance as veto actors (Grindle, 2007; Haus & Sweeting, 2006), we selected municipalities with incumbent mayors from different political parties who had served for the last two terms, closing our selection with Valdivia (Los Ríos), Temuco (La Araucanía), and Los Angeles (Biobío). As shown in Table 1, the three cases have similar socioeconomic, demographic, and civic characteristics but differ in political leadership and, more importantly, in AIL and CPL compliance.

In each case, we identified three informant profiles: political authorities (city council members), public officials responsible for access to information and citizen participation, and organised civil society. We did this to observe local governance from the point of view of potential veto players and agents of change. We used semi-structured interviews with authorities, public officials, and some social leaders to profit from the interviewees’ familiarity with relevant actions to extract information (Gaínza, 2006). The questions focused on how formal transparency and participation mechanisms have been implemented and how these have affected local governance (Table 2).

Also, we set up focus groups with members of civil society organisations to identify typical experiences of, and motivation for, interaction with the municipality (Canales, 2006). In these groups, we followed a procedure whereby each participant wrote down their perceptions of transparency and citizen participation in local decision-making; then, we read and openly discussed the answers. We planned three focus groups in each city, but in Valdivia, we joined efforts in one focus group due to a low response rate from CSOs. We tried to compensate for this by conducting more interviews with CSO participants.

Field research was conducted between April 2018 and January 2020, with thirty-five interviews and seven focus groups, including ninety-five participants. All information was transcribed and analysed using the Atlas.ti qualitative research program, using inductive coding and grouping information into three code families: governance, transparency, and citizen participation. In Table 3, we show the most quoted codes in each family.

Finally, we took all the information from our fieldwork and cross-referenced it with national and local data and other comparable studies conducted in Chile. This combination of techniques is designed to triangulate data and observe formal incentives, informal local governance rules, and the implementation of AIL and CPL.

In this section, we present local actors’ perceptions of AIL and CPL’s strength and capacity to change local governance. Then, we identify veto actors and agents of change in the three case studies, presenting how interviewees perceive the informality of local governance. Finally, we present the relationships between formal and informal institutions and AIL and CPL implementation.

6. Discussion

These findings suggest that the interaction of formal and informal rules could explain the different outcomes of open government reforms. Firstly, the strength of formal rules, based on the incentives created for their use and adoption, can encourage changes in political behaviour. After the introduction of AIL, all three cases adopted administrative changes to comply with the access of information requirements, and there is proof of the sustained use of its mechanisms by local citizens in the past few years. At the same time, there was a positive evaluation of AIL among authorities, officials, and citizens. Overall, compliance with this rule has provided more access to public information in all the cases studied, as it has established new channels for interaction between citizens and local governments beyond the traditional structures of hierarchy and negotiation.

However, there were various complaints about disincentives for using AIL among citizens, such as generational and technological gaps, long response times and the quality of the information presented. Also, even if there was an effect on openness regarding access to information, there was no evidence of a “virtuous cycle” of deliberation in any of the cases studied, nor was there any presence of interpretative communities as potential innovation agents. It seems, then, that the strength of a formal institution is necessary, but not sufficient, to transform local governance. The results show how informal strategies can accommodate even a strong formal institution like AIL. As mentioned, there were various comments by both officials and CSO members on the instrumentalisation of AIL for private purposes, leading to a pressure and negotiation strategy rather than a collaborative action.

Secondly, CPL had quite different outcomes in its implementation. Unlike AIL, there was a general criticism of the low incentives created by this law, and there were many complaints about the weakness of its participatory institutions, creating counterproductive consequences such as low leadership turnover, low representation of NA and a certain distrust of participatory processes. Nevertheless, when the CPL and local informality goals converge, our research suggests some reasons for optimism. On the one hand, hierarchical structures can foster participation. As seen in both Los Angeles and Temuco, when participatory institutions have the mayor’s support, the possibility of them playing a relevant role inside the municipality is high. On the other hand, citizen-led participation in Valdivia was a pressure and negotiation mechanism, but its results led to transverse support between politicians, officials, and citizens.

Finally, our findings indicate that the worst possible interaction between formal and informal institutions is when a weak law competes with informal strategies. In these cases, high compliance could have counterproductive effects on openness: when participatory spaces are created only as a formality, with no relevance or empowerment, and considering the costs associated with citizen participation, it produces frustration and distrust in the whole reform, which creates disincentives for citizen engagement. In this case, compliance with this law may even be worse for openness.

With these findings in mind and based on Helmke and Levitsky’s (2006) typology, we present four different interactions between formal and informal institutions, with their subsequent effects on local openness (Table 4).

This study presents the implications of formal and informal institutions for open government reforms. Our objective was to understand how political institutions change, how formal and informal institutions interact, and how openness in government can be pursued. With these findings, we hope to enrich the debate on the potential of open government reforms for new researchers and public decision-makers.

As final remarks, we would like to emphasise that much of the potential transformation of open government reforms is context-dependent and that even a strong law can be instrumentalised. A better understanding of local contexts, especially power structures and veto actors, seems essential to improve access to information and citizen participation. Another important finding is an urge to be cautious when measuring open government reform’s success, as there can be counterproductive consequences to compliance with formal laws. As shown before, full compliance without the support of veto actors may promote distrust and become a disincentive for citizen engagement. Also, context-based variables, such as socioeconomic and digital gaps, may become invisible if we focus only on information availability rather than information use. Finally, even if the existence of both AIL and CPL presented an opportunity for openness by creating different mechanisms for access to information and citizen participation, there was little evidence that the two laws have been implemented as parts of a municipal open government strategy. Thinking about a more systemic approach to implementation, instead of two independent laws, could be an interesting step towards openness.

Lastly, we want to mention some caveats to this article and potential future study lines. First, we intentionally selected three cases with similar socioeconomic and demographic characteristics but with different levels of compliance, which leaves behind potential socioeconomic variables that could affect CPL and AIL implementation. Even if this research has pointed out that socioeconomic and digital gaps can become barriers to access to information – especially to rural and older populations – and for citizens’ engagement – by increasing participation’s costs to the most vulnerable – there is still a gap for better understanding of poverty and digital gaps influence on openness. Further research based on quantitative local data on internet access, digital alphabetisation and socioeconomic variables could present a better understanding of participation costs and information gaps in local open government implementation. Also, a comparative study with municipalities with different socioeconomic structures could enrich this debate.

Furthermore, comparing nationally led reforms with locally created initiatives would be very interesting for contrasting the incentives created and their interaction with local informality. As mentioned before, even in cases where there was no support from local authorities, there were very interesting cases of citizen-led participation that were very welcomed by both CSOs and local officials. Bottom-up participatory institutions may be a way to improve citizen participation beyond formal structures, which makes it an intriguing subject for future research. Finally, a comparative study with other countries with high-informality contexts would be an interesting way forward for this research.