London School of Economics and Political Science Shackling Leviathan A Comparative Historical Study of Institutions and the Adoption of Freedom of Information by Tom McClean A thesis submitted to the Department of Sociology of the London School of Economics and Political Science for the degree of Doctor of Philosophy London, December 2011 Declaration I certify that the thesis I have presented for examination for the MPhil/PhD degree of the London School of Economics and Political Science is solely my own work other than where I have clearly indicated that it is the work of others (in which case the extent of any work carried out jointly by me and any other person is clearly identified in it). The copyright of this thesis rests with the author. Quotation from it is permitted, pro- vided that full acknowledgement is made. This thesis may not be reproduced without the prior written consent of the author. I warrant that this authorisation does not, to the best of my belief, infringe the rights of any third party. i Abstract This thesis is about the origins and development of freedom of information laws. The number of countries with these laws has risen dramatically in recent decades, and now stands at around ninety. This is widely taken as evidence that governments across the world are converging in their institutional arrangements because they face similar challenges and demands. Access to information is increasingly claimed to be a human right, essential to the effective functioning of democracy and fundamental to legitimate public administration in the information age. This thesis seeks to challenge this as- sumed causal homogeneity by explaining why countries in which these principles were well-entrenched legislated at different times. The explanation offered here emphasises institutions: the manner in which important political actors are organised, and the structure of authority and accountability rela- tions between them. It shows that differences in these institutional arrangements meant access laws were introduced at different times in different countries because they were introduced for different reasons and in response to different pressures. It supports these claims by conducting a comparative historical study of freedom of in- formation in Sweden, the USA, France, the UK and Germany, This thesis contributes to empirically-oriented scholarship on a prominent aspect of contemporary government. It provides a framework for further rigorous comparative scholarship. It also provides detailed accounts of how access developed in two countries which have not received much attention in English-language scholarship, France and Germany, and original insights into three others about which more has been written. Whether one is interested in improving actually-existing laws or understanding demo- cratic government in the information age, this study is valuable because it comple- ments visions of why transparency laws are desirable with historically-informed com- parative knowledge about why they are introduced at all. ii Acknowledgements Max Weber once wrote that “bureaucratic domination has the following social conse- quence[…] the tendency to plutocracy growing out of the interest in the greatest possi- ble length of technical training. Today this often lasts up to the age of thirty” (1968b:225). I began researching this thesis on bureaucracy just short of the age when I should have been finishing up and taking my place among the rich and powerful, at least according to one of the founding fathers of my discipline. While waiting to see whether Max got it right about the value of a good education, I would like to offer my sincere thanks to those who have helped me get this far. First and foremost, I thank my supervisor Robin Archer for his extraordinary thor- oughness, precision of thought and knowledge of political history. If I can provide my own future students with even a fraction of the support you’ve given me, I know they’ll benefit enormously. Thanks are also due to those who generously read sections and provided comments despite not being obliged to do so by family ties: Ben Worthy at the Constitution Unit, University College London, for his friendship and for being so gener- ous with his knowledge of all things freedom of information; Sarah Holsen; Pat McGov- ern; Vicki Sentas; and Javier Treviño Rangel. It goes without saying that if any errors have crept into the following pages, it is despite their best efforts and the responsibility is mine alone. Secondly, I would like to thank John Campbell, Andrew Sealey and all those at Campbell Lutyens for providing me with employment while I pursued this research. I won’t miss the long nights spent wallowing in the bowels of Microsoft Office and Adobe Creative Suite, but I’ll never forget the generosity the firm has showed me and I wish you all every success in the future. This thesis was also funded, in part, by the London School of Economics’ Research Students’ Scheme and Goodenough College’s Carden, Sam Goodenough and Fox bursaries, and I thank those institutions and benefactors for their support. Finally and most importantly of all, my heartfelt thanks go to my family. I simply don’t have words to express my debt to my parents, John and Sue, and my parents–in–law Michael and Charo, for their long–distance moral and financial support, for making the trek from Sydney to London when needed, and the occasional interesting newspaper clipping along the way. But most of all I thank my wife Sonia, for your constant love and with my endless gratitude in return. I may have actually written this, but the effort has been shared. I’d never have been able to do it without you. iii Contents Introduction ............................................................................................................................. 1 Chapter 1: The Importance of Access to Information .................................................... 12 Why Variations in Transparency Matter ...................................................................... 12 Why Study the History of Freedom of Information? .................................................. 25 Why Study the Consolidated Democracies? ................................................................. 34 Conclusion ......................................................................................................................... 49 Chapter 2: Hierarchy, Secrecy and Power ........................................................................ 51 Why Institutions Matter .................................................................................................. 52 The Institutional Politics of Information ...................................................................... 56 The Case for a Comparative Approach .......................................................................... 76 Conclusion ......................................................................................................................... 86 Chapter 3: Electoral Accountability or Electoral Competition? .................................... 90 Bounded Rationality, Information and Electoral Competition ................................. 91 Crises and the Politicisation of Information Rights .................................................. 104 Transparency without Crises ........................................................................................ 116 Conclusion ....................................................................................................................... 125 Chapter 4: Addressing Citizens’ Grievances with the Welfare State .......................... 129 Benevolent Surveillance and Administrative Control .............................................. 131 Political and Legalistic Administrative Justice .......................................................... 140 Disputed Control and Early Transparency ................................................................. 152 Conclusion ....................................................................................................................... 163 Chapter 5: Centre-Periphery Relations in Policy Networks ........................................ 165 Freedom of Information and the Policy Process ....................................................... 166 Fragmented and Cohesive Paths to Early Transparency ......................................... 176 Autonomous Executives and Late Transparency ...................................................... 193 Conclusion ....................................................................................................................... 204 Chapter 6: Relations between the State and Core Interest Groups ............................ 206 The Economic Value of Transparency ........................................................................ 207 Pluralist and Corporatist Exemplars ........................................................................... 218 Partial and Early Routes to Non-Conformity ............................................................. 230 Conclusion ....................................................................................................................... 238 Chapter 7: Transparency as a Tool of Public Sector Governance ............................... 241 Isomorphism and the Administrative Politics of Information ................................ 243 Divergence among Neoliberals ..................................................................................... 248 Low-Intensity