Past Due: Leveraging Justice for “Hard Accountability” in OGP

By Joseph Foti, Open Government Partnership

Photo Credit: Nick Youngson CC BY-SA 3.0 Alpha Stock Images

I have been involved in some respect with the Open Government Partnership (OGP) for the last decade of my life, first as a civil society advocate and observer, and later, as the first director of the Independent Reporting Mechanism and now as the lead of OGP’s Analytics and Insights team In this time, I’ve heard the refrain that we need more accountability-focused commitments in action plans over and over. I couldn’t agree more. Accountability should be seen as the “first among equals” in terms of OGP’s core values. Here’s why.

I am strongly persuaded by arguments that we should be describing and judging open government by its ability to deliver on primary goods — freedom from want, personal and community agency, and rational representative government at a minimum. Our success in pursuing open government, for me at least, should be evaluated on its instrumental merits in achieving these ultimate aims.

There is less evidence to suggest that transparency and participation, without means of generating accountability, result in significant social change (see Fox, Peixoto, and Eisen & Williamson). Separately, a huge body of evidence suggests that accountability is key to successful societies at the macro level (see Fukuyama, Lindbergh et al.). The literature on the importance of judicial enforcement of access to information and participation in environmental matters is particularly robust.

In this sense, accountability will be open government’s, and in particular, OGP’s most essential contribution to good governance outcomes. Yet the percent of OGP commitments that explicitly name some means of ensuring accountability for government action (or inaction) has remained stubbornly low over the course of OGP. (See Figure below.) Why does this number not budge?

Where the word accountability does find its way into the text of an OGP action plan, it is often “soft accountability.” That is, it assumes that disclosure or solicitation of citizen inputs alone will lead to change in behavior. While this may sometimes be the case, it is quite rare in the absence of other “hard accountability” mechanisms.

Defining Accountability

In a foundational article of our field, Jonathan Fox defines “hard accountability” as measures that have elements of transparency, answerability, and the threat of sanctions. Adapted to the OGP context, I suggest that hard accountability commitments are those that explicitly name a means of enforcing or brokering compliance with some other rule or right. I might be more generous in terms of whether they may offer reward in addition to sanction. The important thing is that there are tangible consequences and the means to achieve them.

Let me pose a few rough hypotheses to explain the relative lack of hard accountability in three clusters:

1. Assuming the existence of soft accountability institutions

• Assuming democratic institutions: For those of us that live in established democracies, we assume that the existence of a free press leads to the production of accurate information about government. On the basis of this information, people can choose to re-elect their representatives or vote them out of office. While there is some evidence to suggest that this happens, it does not occur in all places, at all times and we can’t assume that (a) information being released is any good; (b) that public interest investigators have the means to evaluate that information; and © that the public will respond with sanctions for accountability.
• Assuming a market: Further, we often make the mistake of assuming a “consumer” model when dealing with government decision-making. We assume that if people have information about politicians’ poor performance or behavior, they will choose to put other politicians in power. However, this does not hold in areas where the government holds or grants monopoly powers, or where markets don’t exist — such as highway construction, eminent domain, use of force. In these areas, we absolutely need hard, specific accountability mechanisms — courts, oversight boards, environmental and financial auditors.

2. Failing to take into account interests and incentives

Bureaucratic incentives (or “Turkeys don’t vote for Thanksgiving”): Quite simply, officials are not incentivized to invite people to sue them or have an injunction put on a project they are proposing. There are exceptions, but they are rare and time-bound:

• At the beginning of a new administration when politicians have incentives to make good on election promises to clean up the perceived excesses of the prior administration;
• On the way out of office, when one administration wishes to bind the hands of the next;
• During a power struggle between branches of government (where the legislature or courts create private rights of action or accountability);
• When a legislature passes a law that is unimplementable and an agency looks to the courts for guidance and prioritization.

Given the infrequency of these events and the “softer” nature of OGP action plans, these tend not to be the primary means of holding others to account.

Civil society incentives (or “low hanging fruit”): It’s simply easier to get transparency done — technically, politically, and budget-wise. Discussing climate change and environmental cooperation well before the Paris Agreement, a US diplomat once said to me, “We’re not going to get an agreement for now. So in the absence of that, we push for information and technology.” This applies to openness in other sectors as well, including oil, gas, and mining. This is indubitably virtuous, although given slow going on transparency alone to deliver actual accountability in so many sectors, it is worth occasionally questioning whether a “transparency first” approach is the most efficacious.

International incentives “free riding”: The most readily available argument is that senior officials like trips and getting their pictures taken with each other and will minimize the amount of work they have to do to meet that standard. Like any and all other organizations, OGP is no exception to the risk of governments free-riding or “open-washing” in the OGP context. (This is why the IRM and OGP’s other accountability mechanisms exist.)

Domestic interest groups: A related theory is that certain powerful political actors push against accountability, which explains why transparency, rather than accountability, is the default policy position. Similarly, at the domestic level, some governments prefer to interpret OGP as primarily about open civic data and thus tend to attract such organizations, although such an exclusive focus has become increasingly rare over the last few years.

Approved international discourse: In some venues, elections, corruption, human rights, and justice are off limits. For example, the Bretton Woods discourse and legal precedent seeks to hive off international technocratic governance exercises from the world of politics. Regardless of the merits and demerits of this approach, the effects are felt in many organizations. Discussing hard accountability regularly brushes up against unresolved legal issues and contentious political questions. Discussing technical issues of transparency and inclusion can maintain a certain politesse and serve as an entry point for bigger and better reforms.

3. Lack of ideas and relationships:

• Normalizing accountability in OGP: Finally, because they are so uncommon, perhaps members don’t know that they could include “hard accountability” commitments in their action plans. Given a certain level of popularity, a topic may take off quickly from relative obscurity to a preponderant topic of reform. For example, at the outset of OGP, commitments about beneficial ownership and gender rarely appeared in action plans. Now they are among the fastest growing areas of reform. It is possible that resistance is not a major factor — furtive discussions of hard accountability have simply yet to take hold.
• Institutional prerogatives of accountability institutions: Another colleague suggested that “judges only listen to other judges.” This may be the case as independence is essential for survival of accountability institutions. It is safer to swim in the waters of professional associations brimming with peers than to be seen mingling with potential future defendants both for one’s own reputation and for the integrity of future cases.

For our purposes, it doesn’t necessarily matter which of these hypotheses is true. But how we deal with each cluster is strategically important for OGP.

• Assuming institutions: We know that perfect information markets rarely exist. And, the last 15 years of declining democracy and journalistic capacity have certainly demonstrated that we cannot assume the existence of accountability institutions. Here, we need to undertake more concrete reforms to bolster civil society and media organizations.
• Accounting for interests and incentives: Here, there are distinct limitations to what an international organization can and should do. We can encourage organizations (inside and outside of government) who work on hard accountability approaches to become involved with OGP. But until they make the calculation that it is less work to get reforms through OGP than through other channels, then this will remain a self-fulfilling prophecy; there will be no hard accountability commitments in OGP because no one sees OGP as a means to get hard accountability commitments.
• Ideas and people: This is what OGP does best. In some sense, it is the real magic of all of those action plans and conferences — getting people together and realizing that the impossible is in fact possible. Could this happen for hard accountability commitments? It has happened elsewhere. Certainly, there are partners who pursue this work elsewhere but do not tap into it in OGP.

Given OGP’s comparative advantage in bringing people and ideas together, it seems likely that this is the best path forward. A first step could be to bring together justice advocates — judges, lawyers, tribunals, activists — to identify where OGP commitments could be stronger. The topics we could work on are, of course, limitless. But we would need to first identify the limits to compliance with access to information, participation, and substantive accountability.

• Access to information: A small number of commitments exists that seek to strengthen access to information commissions and improve the rules by which they operate.
• Civic participation: There are no commitments enforcing the right to participate outside of the handful of commitments from Latin America on adopting and implementing the Escazu Agreement which includes the right to appeal the denial of participation.
• Substantive accountability: There are a number of commitments that address complaints mechanisms — usually administrative — or strengthen ombudsmans’ offices, but they are rare. Our survey of administrative law reform in OGP found that there have been no commitments that strengthen procedure or substantive reform in rulemaking processes.

Coming to the open government space from an environment and climate background, I have been surprised by how rarely other fields discuss basic building blocks of public interest use of the justice system (and related accountability mechanisms). For example, these relatively common measures which we should be asking about if we are serious about accountability:

• Actions to address harms: Does a right of action exist for natural or legal persons or a class of individuals if they’ve been harmed, by the government or another entity?
• Non-compliance actions: Can people sue the government if it has violated the law, regardless of whether a harm has occurred?
• Non-enforcement actions: Can people sue the government if it fails to enforce the law?
• Citizen suits: Can people enforce the law on behalf of the state if the government fails to enforce the law?

These rules have been put in place around the world to ensure that rule of law exists and with the understanding that ministries of justice alone cannot uphold the law. Such public involvement in accountability exists in disability law, environmental law, employment discrimination, consumer protection and housing discrimination law.

This is clearly an area where OGP could deliver stronger results. One could imagine a new wave of commitments that establish or strengthen processes for remedy and redress, remove cumbersome procedures for judicial review, set up or strengthen high-capacity low-cost specialized tribunals, establish “Anti-SLAPP” provisions, or allow citizens to help governments to enforce the law.

But this will only happen if we imagine and act upon it. Let’s get to work on the hard stuff.