1    

Facing Policy Challenges in Federated States and Supranational

Organizations : The Need for Multi-Level Polity Coherence

Prof. Jean-François Savard

ENAP Ecole nationale d’administration publique Canada

Prof. Jean-Patrick Villeneuve

IDHEAP Swiss Graduate School of Public Administration Switzerland

Prof. Martial Pasquier

IDHEAP Swiss Graduate School of Public Administration Switzerland

Prof. Francesco Maiani

IDHEAP Swiss Graduate School of Public Administration Switzerland

DRAFT - PLEASE DO NOT QUOTE

2    

INTRODUCTION

The radical increases of policies’ scope, density and intensity in modern governmental institutions have led to various attempts at evaluating their origins, procedural developments, organizational structures, outcomes and impacts on populations and institutions. One of the dynamics that remains under developed is the very consequence on these upward trends: the increasing interaction of policies across levels of government. What of the coherence of these policies? What of the impact of these policy interactions on the effectiveness of policies?

In this situation, federal entities and supranational organizations are one of the most interesting grounds to study this need for coherence. Like unitary governments they must ensure the coherence of their various policies, but also ensure that similar policies enacted by other levels of governments (or in international organizations by member states) can interact as seamlessly as possible.

The study of such situations has led to the development of the concept of “public policy coherence”. This concept aims at understanding the reasons leading to a lack of public policy coherence as well as evaluating their consequences. First studied in the context of international aid, the concept of public policy coherence is increasingly used as a frame of reference to better understand public policy outcomes in federal states and supranational organisations. This approach becomes even more interesting when one compares public policies in different politico-administrative contexts.

This paper explores the dynamics of policy coherence in multi-level governmental organization, targeting a federation, Switzerland, as well as a supranational organization, the European Union. More precisely, this paper will analyse attempts at coherence using Access to Information (ATI) laws. Specifically, we shall look at the framework of ATI laws and see how coherent they remain across organisational boundaries. How do interacting governments, both having Access to Information Laws remain coherent in their use? What challenges to the understanding of policy coherence emerge? The objective is to highlight the main issues in understanding and evaluating of the concept of policy coherence and its use as a tool in public policy evaluation.

The first section defines the concepts of policy coherence, from definition to principle and impacts. The second section presents a structure to analyse policy coherence. This structure will then be applied to a specific policy sector, ATI, that is presented in section three and analysed in section four.

POLICY COHERENCE

According to Johns et al. (2007), the increasing number of intergovernmental agreements and partnerships in recent years signals an intensification of intergovernmental activities in all public sectors. These activities have intensified to such an extent that according to Bakvis and Douglas (2010), intergovernmental policy coordination represents the greatest intergovernmental relations challenge in modern federations. They add that under the current circumstances, policy coordination between provincial governments or between provincial (or cantonal) and federal governments has become a necessity, or at least very desirable (Bakvis and Douglas 2010). But what exactly is meant by “policy coordination”?

3    

Bakvis and Douglas propose two definitions. According to the first, borrowed from Webb (1995), policy coordination is a mutual adjustment that leads governments to implement policies they would not have developed had they been able to act unilaterally. According to the second, borrowed from Bakvis and Juillet (2004), policy coordination is a harmonization of structures and activities to meet horizontal objectives, reduce overlap, and ensure that the actions of one or more governments do not prevent horizontal objectives from being met.

These definitions have the merit of showing that intergovernmental relations extend far beyond a mere federal–provincial dimension, but they do not go as far as to take into account the full complexity of intergovernmental relations in a multidimensional context. According to D’Agostino (2009), the public policy process is based on mechanisms that link federated state governments and their apparatuses to central governments and their apparatuses. Moreover, the objective of these relations is not only to avoid overlap between public policies but also to create a synergy among them that is mutually reinforcing. The challenge therefore goes beyond simply coordinating public policies, and instead becomes a matter of ensuring coherence.

Defining Public Policy Coherence

In the recent years, several authors provided different definitions of what is policy coherence. In spite of this variety of definitions, it is possible to uncover a recurring criterion, which states that policy coherence implies the harmonization or the absence of contradictions between different policies. OECD believes that policy coherence consists in ensuring that components or expected results of a policy adopted by an institution will be not be hindered by other policies formulated by the same institutions, or by policies developed by other governments, or even other States (OECD, 2005). But policy coherence implies more than just that. In fact, policy coherence supposes a synergy between policies, where they all mutually reinforce one another. More precisely, the concept of coherence refers to the harmonization between different policy components associated to a similar sector of intervention (a policy domain), which share a similar set of ideas (May, et al, 2005).

Coherence of Policy Objectives and Coherence of Policy Activities

Although we accept this previous definition of policy coherence, we still need to specify what is meant by “policy components”. In general, Public policy coherence involves harmonizing objectives of a set of policies. In this regard, OECD’s (2005) view of policy coherence is revealing. OECD understands policy coherence as ensuring that the attainment of a government’s policy objectives or results is not hindered by other policies’ objectives developed by the same government or other governments. We therefore see that the concept of coherence does not dismiss the idea of policy coordination advanced by Bakvis and Douglas, but rather embraces it as an integral part of policy coherence. This OECD concept is compelling because it links the objectives and results of multiple public policies. Jones (2002) lends credence to this notion by asserting that public policy coherence occurs when the objectives of one policy do not contradict those of other policies.

This being said, objectives are not the only components involved in the pursuit of policy coherence. According to Jordan and Halpin (2006) policy coherence is the integration of different implementation activities (within the same sector, but carried out by different governments) under a common framework,

4    

with a view to achieving the desired results. But, Forster and Stokke links both types of components (objectives and implementation activities) when they assert that a coherent policy is “one whose objectives, within a given policy framework, are internally consistent and attuned to objectives pursued within other policy frameworks of the system – as a minimum, these objectives should not be conflicting” (1999, 23).

Forster and Stokke’s conception of coherence is attuned with OECD’s vision where coherence is understood as an effort to ensure that the expected objectives and results of policies developed by a government are not in contradiction with or hindered by other policies of the same government (OCDE 2005). From a more operational standpoint, coherence can be understood as a policy development approach whereby governments adopt a complete, comprehensive vision of their actions to ensure that these actions do not cause any internal conflict. Ideally, the objective of policy coherence should be to find the most efficient and inexpensive ways to meet governmental and intergovernmental public policy objectives and prevent overlap, contradiction, and interference. Coherence therefore implies improving the quality of collective actions between public and intergovernmental institutions (Studies in European Development 2006).

The Studies in European Development Centre (2006) posits that policy coherence requires two essential virtues: efficiency and quality. Efficiency is important because the pursuit of coherence must make it possible to improve the effects of policies in a context where funding is limited, while quality refers to the inherent need to identify interference or incompatibility between policies. The notion of quality also refers to the complementarity between policies during their implementation and to the synergy of their effects (Studies in European Development 2006).

These conceptions or understandings of policy coherence lead us to state that to assess the coherence of a set of policies, one should first look at the harmonization and complementarity of this set of policies’ objectives and then at the harmonization and complementarity of their implementation activities. These are the first indicators to measure the relative coherence or incoherence of policies.

Analyzing Policy Coherence in Different Contexts

A review a literature suggests that analysing policy coherence differs according to the specific context in which the analysed policies take place. This is a little bit stating the obvious, but still, it worth to briefly look at how different contexts modulate the policy coherence analysis. We propose here four views of policy coherence analysis that share two common points: first, the analysis is based on different axes of coherence; second, the analysed policies take place in an international context1.

Essentially preoccupied by development policies from States and international organizations (such as the World Bank) towards developing countries, Piccioto (2005) suggests to analyse policy coherence according to a four axes basis. First, there is internal coherence, which refers to the harmonization of goals, operational components and protocols of a policy developed at a national level. Second, there is intra-country coherence, which refers to different policies’ joint contribution in achieving similar goals

                                                                                                               1  It worth noting here that the fact that these views are all focussed in an international context is not the result of our preferences, but rather reflect the fact that we haven’t found yet a study of policy coherence taking place in a domestic context.    

5    

within a state. Third, there is inter-country coherence, which refers to the absence of contradictions between policies of different countries. Four, there is donor-recipient coherence which refers to “the consistency of policies adopted by rich countries collectively and poor countries individually or collectively to achieve shared development objectives” (Piccioto, 2005: p. 312).

Hoebink et all. are also interested in the coherence of development policies. They suggest to look at policy coherence in terms of two axes: horizontal coherence and vertical coherence. According to them, what constitute horizontal coherence are governmental efforts to adapt policies that could eventually impede the impacts of other policies. Thus, horizontal coherence is the work of national governments. Vertical coherence is the coherence of international organizations’ policies and national policies. However, Hoebink et all. are hesitant at calling horizontal coherence real policy coherence, because they think that this concept is often use as conforming systems that force developing countries to harmonize their national policies to international organizations’ expectations, such as World Bank or IMF, often at the expense of those developing countries.

Christiansen (2001) presents three dimensions of policy coherence within the European Union. First, there is what he calls inter-level coherence, which concerns relations between European Union and State authorities. Second, there is inter-institutional coherence, which refers to relations between different European Union institutions. Finally, there is intra-institutional coherence, which refers to relations between internal policies of European Union institutions. Christiansen’s work is interesting because he not only discusses policy coherence in an international context, but he also provides an analytical framework for analyzing policy coherence in federated states. However, as such Gautier work seems more interesting.

Gautier (2004) adopts a more systemic view of public policy processes’ management and proposes to look at policy coherence according to two dimensions. First, coherence could be horizontal, which means that one could find harmony between objectives of policies developed by several European Union institutions. Second, coherence could be vertical, which means that one could not find contradictions between European Union policies and actions undertaken at a national level by member States.

Developing a Vision of Policy Coherence in Federated States and Supranational Organizations: Principles and Mechanisms of Multi-Level Polity Coherence

This brief look at different conceptions of policy coherence analysis according to a specific policy context suggests that analysing policy coherence within a federated state or a supranational organization should be based on a particular analytical framework specifically adapted to this context. Although Christiansen and Gautier propose axes-basis model for analysing policy coherence within the European Union (a supranational organisation) we believe that a more elaborate analytical framework is needed to analyse policy coherence within a federated state and a supranational organization. We propose here to adopt such a framework, which we call multi-level polity coherence. Based on an institutionalism perspective, we assert that policy coherence within a federated state or a supranational organization is influenced by a set of principles and by the implementation of specific mechanisms that will favour, or not, the attainment of policy coherence between level of governments, or between agencies of one level of government.

6    

Principles of Multi-Level Polity Coherence

The experts at the Studies in European Development Centre (2006) assert that policy coherence is only fully attainable within a conceptual triptych of policy coordination, complementarity, and coherence. We would therefore suggest that multi-level polity coherence is based on this triptych of organizing principles whereby coordination and complementarity serve the central normative principle of coherence. This idea is in keeping with the previously examined definitions of coherence, where coherence is an ideal to strive for through coordination mechanisms that ensure the pursuit of harmony and complementarity in public policy objectives.

We must now qualify Bakvis and Douglas’ assertion that policy coordination poses the greatest challenge for federations in terms of public policy, and that this challenge is in fact one of coordination and coherence. The triptych demonstrates that coordination and complementarity are the organizing principles that give effect to policy development and implementation mechanisms in multi-level polity coherence, while coherence is the normative principle that motivates the development of these policies. In other words, in multi-level polity coherence, governments seek to establish coordination and complementarity mechanisms in order to ensure the highest possible degree of coherence.

Mechanisms of Multi-Level Polity Coherence

According to the Studies in European Development Centre (2006), the European Union already boasts a number of mechanisms that make the quest for coherence possible. These mechanisms are based on how public decisions are made and implemented and do not necessarily concern policy content itself. They generally meet three criteria: a strong political commitment to the pursuit of coherence, institutional architecture that allows adequate coordination, and good analytical capability combined with efficient information transmission systems (Studies in European Development 2006).

These criteria should be addressed individually. First, a strong political commitment to the pursuit of coherence means that public decision makers strive to clearly define policy objectives and priorities while taking into account the criteria that will be used to evaluate policies following their implementation. Next, the institutional architecture must enable adequate coordination between governments by putting in place flexible and transparent structures that allow them to adapt to constantly changing political environments, quickly identify incoherencies, and promote dialogue between them in order to quickly resolve any administrative disputes related to different organizational cultures or differing interpretations of objectives or priorities. In other words, these mechanisms must promote intergovernmental cooperation. Lastly, the governments must have the analytical capability and information transmission systems needed to be able to identify, document, and analyze contradictions between policies so that they can be resolved. These components (analytical capability and information transmission system) also serve to evaluate the human and financial resources governments will need to meet coherence objectives (Studies in European Development 2006).

These criteria are part of a vast set of mechanisms that can be grouped into three categories: overall policy and political decision-making, government institutions and administration, and assessment and advisory capacity. Overall policy and political decision-making aim to integrate the objectives of one sector (e.g., international development) in other policies or programs that might have an impact on the sector (e.g.

7    

immigration policies). These mechanisms take the form of dialogue or cooperation between governments and government departments conducive to a horizontal approach that makes it possible to involve a broad range of ministries in the development of public policies aimed at a specific sector, not only the specific ministry responsible for it. Government institutions and administration are designed to influence public decision makers inside the machinery of government. These mechanisms may take various forms including formal coordination processes (e.g., interministerial committees) and informal gatherings of senior government officials. Lastly, assessment and advisory capacity are a way to include both governmental and nongovernmental expertise in policy development and leverage the research, knowledge, and experience of both governmental and nongovernmental actors with a view to defining objectives that harmonize well within a sector (Studies in European Development 2006). In addition to public consultations, these mechanisms may take other forms such as advisory committees and issue tables.

Although it is fairly easy to see how the mechanisms of policy coherence can be categorized, listing individual mechanisms is another challenge. In its 2006 study, the Studies in European Development Centre emphasizes that only mechanisms that are formally established and explicitly aimed at policy coherence are easily identifiable. All other mechanisms are difficult to identify, regardless of whether they are informal or unintentionally contribute to the pursuit of coherence (Studies in European Development 2006, 25), and require more in-depth study that is beyond the scope of this conference paper. What’s more, the institutional context also plays a role in identifying coherence mechanisms. Even within a federation there are cultural differences between federated states, and this multiplies the forms coherence mechanisms can take, especially informal mechanisms. It is therefore necessary, to the extent possible, to take into account states’ cultural realities and the institutional frameworks they yield to properly identify a state’s coherence mechanisms.

The Studies in European Development report (2006) provides a number of examples in the international aid sector that clearly illustrate these coherence mechanism categories. With regard to overall policy and political decision-making mechanisms, Estonia has a set of principles that promote a holistic approach to developing public polices and require decision makers to consider as a whole any policies likely to influence a given sector. In Poland and Slovakia, the governments have a cooperation strategy that requires decision makers to adopt a comprehensive approach to policy development. In international development in Austria, the government passed legislation requiring public decision makers to take into account international development objectives and principles in all policy development processes. The Treaty on the Functioning of the European Union offers another good example of overall policy and political decision-making mechanisms. Indeed, article 208(2) states that “The Union and the Member States shall comply with the commitments and take account of the objectives they have approved in the context of the United Nations and other competent international organisations”, while article 210 states that “In order to promote the complementarity and efficiency of their action, the Union and the Member States shall coordinate their policies on development cooperation and shall consult each other on their aid programmes, including in international organisations and during international conferences. They may undertake joint action. Member States shall contribute if necessary to the implementation of Union aid programmes”.

Government institutions and administration mechanisms generally take rather similar forms. In the Czech Republic, Belgium, and France, the governments regularly set up interdepartmental committees or

8    

working groups tasked with developing coherent polices between ministries within the same sector. The Czech Republic even has an interdepartmental work commission that coordinates activities between ministries—and greatly facilitates horizontal work. In Greece the government has interdepartmental committees to which officials from various ministries contribute and that ensure policy coherence and complementarity, but they meet infrequently and do not constitute a true “operational” mechanism for the pursuit of coherence. Lastly, in international aid, Spain offers an instructive approach, especially for federations. Its government set up an interdepartmental committee on international cooperation that coordinates the efforts of Spanish ministries whose actions may have an impact on international development, and an inter-territorial committee that coordinates, negotiates, and cooperates with various levels of government and government officials with a view to ensuring coherent international intervention (Studies in European Development 2006).

Let’s continue with the example of international aid to illustrate assessment and advisory capacity mechanisms aimed at public policy coherence. In Denmark the government recently adopted a policy on development in Africa. This policy was the fruit of consultation with public and private stakeholders interested in the matter. The consultation was carried out in three phases: first during open and public debates, then as part of a public hearing, and lastly through an electronic consultation whereby citizens were invited to submit their comments electronically. All the data and viewpoints collected were incorporated into the analysis that led to the development of the Danish policy. The Netherlands took a different approach, with less emphasis on public consultation and more on informal exchanges between Dutch ministers and their European counterparts. Lastly, it should be noted that a mechanism establishing a network on policy coherence for development serves as an information sharing and consultation platform for European civil servants to discuss research reports or impact reports on international development issues (Studies in European Development 2006). This network makes it easier to integrate data and analyses from a variety of European experts.

What if Multi-Level Coherence’s Mechanisms Fail?

We can easily theorize that if these multi-level polity coherence’s mechanisms fail, this could have important policy and societal impacts. However, multi-level polity coherence is a new vision that we propose in this conference paper and, therefore, has not yet been properly assessed. It is thus too soon to discuss its impacts either on policy coherence or on a society. However, several authors have theorized policy and societal impacts of a lack of coherence and we believe that their conclusions are interesting for our study.

Two kinds of impacts are usually discussed in the literature: internal and external impacts. Internal impacts are felt within organizations that formulated and implemented policies, while external impacts refers to impacts affecting those who benefit from products or services associated to a given policy. In terms of internal impacts, Hoebink (2001) mentions that the presence of contradictions between policies implemented within one governance system could affect the legitimacy and credibility of a government, especially if objectives’ achievements is impeded by activities undertaken under another policy. Piccioto (2005) adds that the presence of incoherence between different policies could result in a financial loss for a government.

9    

In the context of international aid, Azoulay explains that external impacts could affect recipient countries’ economy or room for manoeuvre, since objectives of donor countries’ policies could accentuate difficulties of recipient countries by a lack of coherence with their needs (Azoulay 2005). External impacts of a lack of coherence between policies could also lead to contradictions between programs of different policies or also prevent expected outcomes of different policies (Hoebink, 2001). A lack of coherence between policies in the context of a fragmented political structure where needs are numerous and resources are rare, could drive interest groups in being in competition with one another (Koschinsky and Swanstrom 2001), or give the impression to certain interest groups that their interest are less important than those of others (May, et al. 2005). At the end of the day, external impacts of a lack of policy coherence could undermine the public’s trust in their government, create uncertainties and increase social tensions (Piccioto 2005).

These authors show that the impacts of a lack of policy coherence are numerous. Moreover, to those impacts that we already identify we could add that the lack of policy coherence can lead to program overlaps, a lack of public funding in neglected policy sector or domain, budgetary loss, complexification of administrative processes for policy actors who, often, do not have the necessary resources to meet operational requirements introduced by different programs related to incoherent policies.

How to Assess Policy Coherence Within the Multi-Level Polity Coherence Framework?

To better gauge policy coherence in the multi-level polity coherence framework, the next section explores the access to information regimes as they have developed within various levels of federations by using the cases of Switzerland and the European Union. The overall objective is to identify the difficulties and challenges in identifying, evaluating and, hopefully, addressing issues of coherence within federated states and supranational organizations. This shall serve to underline the challenges faced in developing the concept of coherence from a basis for reflection to an effective tool of both policies and management.

We shall address the various aspects of the coherence of access to information regime and compare them within the Swiss Confederation (between the Federal and the cantonal) and at the EU level (between Brussels and EU States). This will be achieved through an analysis and comparison of policy objectives, legal formulations and coherence mechanisms. Access to information is an interesting test ground for it touches across the board all services of an organisation and is construed as an institutional policy and not as a direct public policy with readily identifiable outputs. This fact does increase the difficulty of evaluating coherence, but also allows to test the upper limits of it and better highlights the challenges involved.

ACCESS TO INFORMATION AS A GROUND OF INQUIRY

Transparency is a general paradigm focused on opening internal organizational processes and decisions to third parties, whether or not they are involved in the organization (Florini, 1998). It rest upon a non-negotiable ‘right to know’ (Fung, Graham and Weil, 2003), that is linked to the fundamental freedom “to seek, receive and impart information” (art. 19 UDHR).

Transparency, as a legal right, can be activated through a number of different laws and procedures. Over the last 20 years, one of the key instruments of transparency has been access to information laws (ATI). These laws give individuals the opportunity to request, without need to justify or substantiate the request,

10    

information, or a document containing the desired information. Citizens thus have a legally guaranteed right of access to information held by the authorities. This right is qualified by a specific and limited number of exceptions and exemptions to the general rule of disclosure. This represents, for administrations and citizens, a significant cultural transformation away from traditional and historical administrative privileges.

Since the 1990s, the adoption of such legislation has greatly accelerated, in part as a development of the rise of both administrative democracy and democratic governance. There are now more than 80 countries with ATI laws with many more being observed in sub-national political entities (Vleugels, 2010).

Policy objectives of ATI

One can identify three main arguments presented for the introduction of these legislations. Public access to documents is both a tool and a legal right. Its development is based on three objectives: 1) Better Governance; 2) Greater Trust; and 3) Increased Participation.

Access to governmental information, and its subsequent diffusion, gives power to all societal stakeholders to peer through the outer walls of governmental organisations. This possibility, whether it is activated or not through ATI requests, is believed to create an atmosphere more conducive to effective and efficient management of policies and delivery of services. “Sunlight is a great disinfectant.” (Murdock, 2008). ATI is here yet another mechanism pushing for greater accountability and efficiency of public organisations.

Transparency is also intended to improve relations between public authorities and citizens. In a context marked by the ever-present problem of public deficits (OECD, 1999), the loss of confidence in the authorities (Van de Walle and Bouckaert, 2003), demands for greater accountability on the part of those in power (Savoie, 2003) and the fight against corruption (Transparency International, 2004), access to information makes it possible to reverse some of these trends and to re-establish more harmonious relations between authorities and citizens. It is believed that by ‘shining a light’ within organisations and diffusing information on their operations and processes, a greater level of trust can be attained.

Transparency is, finally, a tool which promotes the co-participation of the people in the development and implementation of public policies. There is a growing trend for the public to participate in decision making and in the policy processes of the State (Juillet and Paquet, 2001). A more active participation of the public in the governance of the state requires information of a higher quality and in a greater quantity. The transparency of state activities becomes, in this context, a sine qua non for the active participation of the public in the policy process.

Main characteristics of ATI legislations

Laws on access to information always have relatively similar legal characteristics (Frankel, 2001). Among those are elements pertaining to the coverage of the law (what organisations are under its purview and what type of information or documents can be requested), exceptions (information or documents that are expressly shielded from the law for reasons of protection of personal privacy, public interests or organisational prerogatives) and appeals mechanisms (institutions and possibilities to ensure the respect of the legislation). Other aspects, such as the costs, specific channels for making requests and the listing of available documentation and/or information are also relatively standard.

11    

For the analysis of policy coherence, a specific characteristics of ATI laws will received added attention: the framework for dealing with documents located within an administration but having been received from other institutions: third party documents. By third party document we shall be referring to a request to institution A for a document originating from institution B, whereas the ATI regimes under which the two institutions operate may be different, and the document may have been transmitted from one to the other under specific non-disclosure arrangements.

ATI and Policy Coherence

The interest of ATI as a case study of policy coherence goes beyond its increasingly widespread acceptance. It is rooted in its relatively standardised legal form and the wide net it casts in terms of target groups (in Pierre Muller’s words, its wide policy approach) and the systemic and holistic nature of its policy objectives. It almost by default involves all levels of an organisation and most segments of the population.

In such a situation the coherence of ATI regimes can be analysed on two main coherence ‘vectors’ identified in the first section:

1) Horizontal coherence; and

2) Vertical coherence.

Internal coherence refers to the coherence between the policy itself and the means and resources allocated to its implementation as well as the internal administrative and political willingness to enact all its provisions. Horizontal coherence here refers to the ability of the ATI law to interact successfully and where possible seamlessly with the other policies of a same institution. As this is a transversal policy it does come into contact with all other policies. One can identify some of the most problematic elements from a political point of view, security or foreign affairs, but also in administrative terms in the data intense department of social security or health care. The third type of coherence, vertical coherence is at the heart of this study. It refers to the interaction of ATI policies between levels of government within a same system. While a complete evaluation of policy coherence would require the analysis of all three types, this evaluation will limit itself to the exploration of vertical coherence.

In the next section, we shall address the main characteristics of ATI laws (coverage, exceptions, appeals mechanisms, third party documents) at the different administrative levels (federal and cantonal, EU and national) to evaluate the level of coherence in their provisions. A greater emphasis will be put on the specificities of the higher administrative order.

COHERENCE IN ACCESS REGIMES: SWITZERLAND AND THE EUROPEAN UNION

The two jurisdictions under study both have relatively recent ATI regimes: Switzerland 2006, the EU in 1993 through its code of conduct for the access to documents systems. The experience of EU states and of Swiss canton is in many instances longer and richer. In Switzerland 15 out of 26 Cantons have ATI laws. The earliest law was produced in the Canton of Bern in 1993, some 13 years before the LTrans was enacted at the Federal level. The EU’s case is more complex for it is based mainly in references to core

12    

texts and to the Regulation 1049 of 2001. Almost all EU member countries have ATI laws (the exceptions being Cyprus, Luxembourg, Malta and Spain) with the earlier being that of Sweden (1766).

In the exploration of coherence we focus on two specific elements: 1) the coherence of objectives are legislations enacted to serve similar goals and 2) the coherence of measures, are the elements put in place to enact the law relatively similar. While the first aspect will lead us to evaluate the law and the adjoining texts of explanation (in the Swiss case the Message ) the second will focused more squarely on the legal analysis of the respective ATI legislations with a special focus on third party documents. The analysis will therefore focus on: policy objectives, coverage of the law, exceptions, appeals mechanisms and third party documents.

Switzerland – The Federal and the Cantonal

While there are 26 cantons in Switzerland, we shall look at a number of cantons with a special focus being placed on the LInfo of the canton of Vaud. A more complete study would of course need to include a representative sample of laws emanating from the other cantons. This will be compared with the law enacted at the federal level, the previously mentioned LTrans.

Policy objectives - Federal

In Switzerland, the federal government’s first attempt at enacting an ATI law had the specific objective of positioning the state ‘closer to citizen via increased transparency’ (Conseil Fédéral, 2010). When ‘la loi fédérale sur le principe de la transparence dans l'administration’ or LTrans was passed in December 2004, it was in order “to promote the transparency of the mission, organization and activity of the administration. To this end, it contributes to public information by guaranteeing access to official documents” (LTrans, RS 152.2). In its Message, the Federal Council outlines the fact that “…the project aims at making more transparent the decisional procedures of the administration with the objective of reinforcing their democratic character of public institutions as well as citizen’s trust in these same institutions.” (Message, p.1819) It also mentions that through this project the work of the administration could only become more effective.

Policy objectives - Cantonal

In the Canton of Vaud, the objectives are summarily exposed in Article 1 as “…guaranteeing the transparency of the State’s activities in order to favour the free formation of public opinion” (LInfo VD, Art.1). In its law, the Canton of Geneva mentions participation as a main objective, the other being the protection of personal data (LInf, Rof 2009_096). The Canton of Fribourg fixes in the first article of its law the objective of the law: “making an essential contribution to the transparency of the state’s activities”, “encouraging the free development of public opinion and to encourage citizen’s participation to civic life”, and “ to reinforce the understanding and the trust of citizen’s towards public institutions”. (LInf FR, Art.1)

Coverage - Federal

The LTrans covers the totality of the federal administration as well as other organisations as long as they provide decisions of ‘first instance’ (decisions based on federal public laws and which, inter alia, create or

13    

modify rights or obligations or rule on the existence and extent of rights and obligations.) With this principle in place, state enterprises active on private markets come under the Law for all the decisions that they give in their role as public authorities.

However, the Law does not apply to a number of institutions, notably: the Swiss National Bank, the Federal Banking Commission, the Federal Assembly, Parliamentary Commissions and the Federal Council (LTrans, 2004: Art.2). Moreover, Parliament can also effectively withdraw from the obligations of the Law particular administrative units or organisations if their mandates require it, if it might possibly damage their competitive position or if their tasks are deemed to be of minor importance (LTrans, 2004: Art.2, al.3). The flexibility given to the authority on this matter appears to be considerable.

For the LTrans, an ‘Official Document’ must meet all three of the following criteria (LTrans, 2004: Art.5) :

1. The information has been registered on a specific support;

2. the information is located within a specific administration;

3. the information is linked to the execution of a public task.

The first of these cumulative criteria aims at distinguishing between the concept of document and the larger concept of information. It refers to a report, an expertise, statistics, visual or audio documents, electronic sources, etc. The second criteria aims at ensuring that the administration can effectively access the information requested. The third element, the link to a public task, means that it must not be linked to a general notion of public interest, but rather to an effective task carried out by the Confederation (Conseil fédéral, 2003: 1834-1838).

Documents that are not in their definitive state or that are destined to a personal use are not subjected to the Law (LTrans, 2004: Art.5, al.3). Only completed official documents are to come under the Law. The idea behind this provision is to ensure that the administration retains the possibility to modify projects and avoid misunderstandings and external pressures based on draft documents (Conseil fédéral, 2003: 1840). Of course, the concept of what is and what is not a ‘definitive state’ will have to be validated and tested with use.

This being said, a personal letter regarding official information will be subject to the Law (Conseil fédéral, 2003: 1840). Documents sold by an organisation (maps, books, statistics, etc) are not considered official documents in the application of the Law (Conseil fédéral, 2003: 1839). The law will not cover access to documents related to legal procedures, be they civil, criminal or linked to international cases. Moreover, information linked to personal data will still be protected by the Federal Law of June 19th 1992 on Data protection (LPD, 1992: Art. 3,9,11,12). By personal data is meant inter alia, data related to opinion (religious, political, etc), elements touching health related matters, or any assemblage of information allowing for the appreciation of one’s personality or physical traits.

Interestingly, the present legislation only covers official documents that have been produced or received after the enactment of the legislation (LTrans, 2004: Art.23). That means that contrary to the situation with

14    

the new information legislation in the United Kingdom and the statutes in most countries with freedom of information regimes, no document from previous administrations will be accessible (Happold, 2005).

Coverage - Cantonal

The canton of Vaud’s LInfo covers the main bodies of the administration, including the ‘Grand Conseil’ (parliament), the ‘Conseil d’Etat’ (executive) and its administration, the judiciary, the communal authorities (local) and their administration as well as the physical and moral persons to whom public tasks have been delegated. This coverage is notably wider than that of the Federal law, most particularly in extending it to public tasks and not only to public institutions. Are deemed accessible the official information and documents held by organisation under the purview of the law. By official document is understood a ‘completed document’ on any support that is elaborated or detained by the relevant authorities and that is linked to the accomplishment of a public tasks and not aimed at a personal use. (LInfo VD, 2002: Art. 9)

In the canton of Fribourg, the coverage extends to the organs of the State, the communes and to other moral persons acting under public law. Private individuals and organs of private institutions that are accomplishing tasks under public law are also under the purview of the law. Special provisions are also made for religious institutions. (LInf FR, Art. 2)

The right of access concerns ‘official documents’. To be considered as such, a document must be located on whatever support and be in relation to a public task. Are also considered public documents extracts of information from databases, notably electronically. Are not considered official documents those that “… have not attained their definitive stage of preparation or that are destined to a personal use.” (LInf FR, Art.22)

The canton of Geneva specifies that documents are all supports for information that are held by an institution and that contain information related to the accomplishment of a public task. (LIPAD, Art. 25). Are exempted personal notes, incomplete documents as well as procès-verbaux that are yet to be approved. As for elements present only in electronic form, only a print-outs that can be obtained by a simple electronic treatment are accessible. (LIPAD, Art. 25, al.3).

Exceptions- Federal

The right of access can be legally limited, delayed or refused for different reasons. These reasons are somewhat similar to those used in other jurisdictions (Canada, 1985; Frankel, 2001; Ireland, 2003).

Access can be refused if the document is susceptible to hamper the free formation of opinion (LTrans, 2004: Art.7, al.1). By protecting the formation of opinion, the legislation aims at preventing the premature dissemination of the government’s position, thus insuring its ability to develop positions without the pressure of the media or the population.

Disclosure can also be blocked if the document is deemed to potentially compromise the relations between the Confederation and the Cantons or the relations between Cantons (LTrans, 2004: Art.7, al.1e). This is a crucial element since most of the Cantons have no legislation on transparency. Unfortunately it also means yet one more area where transparency will not be applied.

15    

As well, disclosure will be refused when the document could compromise internal or external security, the interests of Switzerland in terms of foreign, economic or monetary policy, as well as in terms of foreign affairs or international affairs (LTrans, 2004: Art.7, al.1c,d,f). This aspect is particularly important as it has been shown in other jurisdictions to be used as a trump card in favour of secrecy (Blanton, 2003; Canada, 1994; Canada, 2004; Pasquier and Villeneuve, 2004; Pasquier and Villeneuve, 2005; Roberts, 2003). The terminology between jurisdictions does vary, but the concepts surrounding notions of ‘international relations’ are, in the case of access to information laws, always framed in the most imprecise way, thus creating additional wiggling room to ‘hide’ information. This situation is likely to get even more acute as multi-lateral fora multiply and international agencies regulate more and more sectors of activities.

The non-disclosure of information is allowed when that information has been given by a third party to an organisation that has guaranteed its secret (LTrans, 2004: Art.7, al.1h). This particular elements means, among other things that secret information passed on by other governments will not be accessible. This provision does not apply to information provided by individuals as part of a legal obligation (Conseil fédéral, 2003: 1853).

The standard protection is guaranteed for element that could lead to the release of professional, business or patent information (LTrans, 2004: Art.7, al.1g). As well, a document may be withheld if it might damage private interests, unless an overriding public interest is found to exist (LTrans, 2004: Art.7, al.2).

Nevertheless, all these cases of predominant interest (public or private) must always be balanced with the public interest of transparency. As we can see, these exceptions are not unprecedented, for most of them can be found in other jurisdictions. Nevertheless, they were carefully crafted to ensure the protection of some of the Swiss specific mechanisms such as the concept of collegiality in the Federal Council and Federal-Cantonal negotiations. It remains to be seen whether all these limitations will have a large or small impact on the benefits of transparency.

Exceptions- Cantonal

Section IV of the LInfo of the canton of Vaud details the exceptions and limits of its application. The provisions for secrecy present in other legislations of the canton are reserved. Public authorities reserve the right, in exceptional cases, not to communicate the requested information if public or private interests are deemed preponderant. (LInfo VD, 2002: Art. 16) This ‘preponderance’ can be invoked when: the diffusion of the said information is susceptible to sensibly disturb the decisional process of workings of the authorities; the communication might compromise security or public order, that the work involved is deemed disproportionate, that the relations with other public authorities might be jeopardised in a sensible manner. Are also to be taken into account cases where communication would impact an individual’s rights to privacy or to commercial or professional secrets.

This same preponderant interest, public or private is also present in the LInfo of the canton of Fribourg. Public interest being defined as putting in danger security and public order, jeopardising the external relations of the canton, disturb the decisional process or the execution of decisions by the state, undermining the negotiating position of a public organisation. On that one must add the elements pertaining to the private interest.

16    

Appeals mechanisms - Federal

As with most freedom of information legislation, the Swiss Law has provisions to deal with complaints on the non-compliance with the law. A citizen can ask for mediation if the demand has been partially satisfied, delayed or refused (LTrans, 2004: Art.13, al.1). The demand for mediation must be presented to the ‘Préposé fédéral à la protection des données et à la transparence’, the Officer in charge of data protection and transparency, within a delay of 20 days starting at the reception of the decision.

This is, first and foremost, a mediation procedure where the ‘Préposé’ will try to reconcile the differences. It is hoped that this mediation approach will help take care of the bulk of demands without having to systematically resort to a more demanding system. This ‘Préposé’ is an independent agent that is not under the hierarchical purview of the Federal Council. He also has the use of his own secretariat. It is to be noted that the ‘Préposé’ has no power to force a decision. Aside from its role as supervisor of the Law and authority, the ‘Préposé’ is charged with the evaluation of the Law and with presenting an annual report to the Council on its application. More than only taking care of mediation, this ‘Préposé’ is in a sense a competency center on questions of transparency (Conseil fédéral, 2003: 1869).

A failure of the mediation process can subsequently be taken to the federal Commission on data protection and transparency. The Commission has the same degree of independence as the Préposé. In such a case the Commission would have access to the documents, even if they are deemed secret. The Commission has to reach a decision within 2 months. This decision is not final, as it can be appealed to the Federal Tribunal, the highest authority in Switzerland.

Appeals Mechanism - Cantonal

In addressing issues of complaints, the ‘Préposé à la protection des données et à l’information’, the officer charged with the implementation of the law in the canton of Vaud, can be summoned. His role is first one of conciliation (LInfo VD, 2002: Art. 21, al.3) but, in the absence of a successful process of conciliation between the requester and the organisation, the Préposé can directly take a decision.

For demands addressed to the Conseil d’Etat, the institution is itself the last arbiter of what may or may not be made available. The same logic applies to the judicial order, the Grand Conseil and the communal authorities. In each case, the organisation is the last arbiter of decisions regarding the publication of elements pertaining to itself (LInfo VD, 2002: Art. 22-26).

Third party documents - Federal

In the case of third party documents, the LTrans has a number of specific provisions, or at least, provisions that could be summoned to limit or block access to third party documents.

Article 2 of the LTrans, directly mentions that the Federal Council can remove from the application of the law different administrative units that are located with the federal administration or that are external to it with a very general caveat, that is “if their tasks requires it”. As well article 10 mentions that “Access requests to official documents is addressed to the authority that has produced them or that has received them as main receiver from a third party that is not under the purview of the law”. This seems to imply that documents that are held by the administration and that were not provided to it as main recipient could

17    

be exempted from that law. Even more strongly, it seems to say that the federal administration will not disclose third party documents (originating from authorities) at all, but rather direct the applicant to the author (this existed under EU law and was called the “ author rule” or “authorship rule”).

Similarly, in terms of exceptions (see Article 7) one could imagine that the provision for “risque de compromettre les relations entre la Confédération et les cantons ou les relations entre cantons” might lead to most problematic third party documents to be excluded. As well, the communication shall be blocked if the disclosure leads to the divulging of information that were freely given by a third authority, or individual third party that has been guaranteed secrecy; “peut avoir pour effet de divulguer des informations fournies librement par un tiers à une autorité qui en a garanti le secret.”

Third party documents - Cantonal

In the LInfo VD public interest is linked in the law with documents that can lead to the forming of political opinion, impact public security and order, generate a disproportionate amount of work, or linked to elements that could disturb the relationships with other public entities. One such case, one might imagine, would be the disclosure on information or document that were not to be accessible under the regime of the organisation having provided said document.

More specifically, in the canton of Vaud, one would be referred to Article 16 on preponderant pubic interest that clearly mention the risk of hampering relations with other public entities. (LInfo VD, Art.16, al 2, d). In the canton of Fribourg the same preponderant public interest includes the fact that it shall not infringe the external relations of the canton (Art.26). In the same law, are explicitly not accessible the documents that have not been produced or received as main recipient by an organisation submitted to the law (LInf FR, Art.29, al.1, a). In effect, documents received from other governments namely the federal.

The European Union and its Member States

The European Union has debated and introduced aspects of transparency of documentary information in a number of declaration and other non-legal instruments. The key instrument in the area is currently Regulation (EC) n° 1049/2001 “regarding public access to European Parliament, Council and Commission documents” (OJ 2001 L 154/43 Regulation 1049). This Regulation coexists with a number of special rules concerning access to particular categories of documents – such as Regulation (EC) n° 1367/2006 on “environmental information (the Aarhus Regulation)” (OJ 2006 L 264/13) – or access to the documents of particular EU bodies.

There are of course numerous ATI legislations in the EU member States, but for the sake of the present analysis, and given its exploratory nature, we shall look at the French legislation with more attention. The French law was passed in 1978, and amended in 2000 to broaden the number of information that can be requested and to create a stronger regulatory body, the CADA (Commission d’accès aux documents administratifs).

Policy Objectives - EU

The initial impetus for the development of an access to information legislation in the EU is by and large similar to that of Switzerland. Regulation 1049, in particular, identifies the main objectives in establishing

18    

a European ATI law: ‘participation’, ‘legitimacy’, ‘accountability’ and ‘democracy’. “Openness enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system. Openness contributes to strengthening the principles of democracy and respect for fundamental rights …” (LInfo). Likewise, the Treaty on the functioning of the European Union identifies the benefits expected from ATI as ‘good governance’ and the ‘participation of civil society’. “In order to promote good governance and ensure the participation of civil society, the Union institutions, bodies, offices and agencies shall conduct their work as openly as possible” (art. 15(3)).

Policy Objectives - EU Members

Whereas many national ATI legislations do not specifically state the main objective of the law, more peripheral texts, either emanating from the government of from the various officers charged with the law (ombudsman, commissioners, etc.) give indications as to the initial aims of the legislator. For example in France, the CADA (la Commission d’Accès aux Documents Administratifs) states that the French ATI law aims at ensuring both the transparency of administrative actions and the information of citizens (CADA, 2011). Similarly, the United Kingdom’s information commissioner role focuses on its mission to ensure the “openness of public bodies” (UK Commissioner’s Office, 2011).

Coverage - EU

The EU only recognize the public right of access to documents to nationals and residents of a Member State. As for the organizations that are subject to transparency obligations under Regulation 1049, these are at present the Parliament, Council, and Commission. The Lisbon Treaty subjects all EU institutions and bodies to access to documents obligations with partial exemptions for the EU Courts and Banks (art. 15(3) TFEU), but this extension still has to be implemented in secondary legislation.

In the regulation the elements accessible are, the “document” is defined as “any content whatever its medium” (art. 3a Reg. 1049; see also art. 42 CFR). This is indeed an extremely broad definition, potentially covering formal documents, tape recordings of meetings, and, arguably, even “post it” notes drawn up by officials2.

Coverage – EU States

Are considered administrative documents for the use of the French ATI law, independently of their date of production, location, form or support, “…les documents produits ou reçus, dans le cadre de leur mission de service public, par l'Etat, les collectivités territoriales ainsi que par les autres personnes de droit public ou les personnes de droit privé chargées d'une telle mission. Constituent de tels documents notamment les dossiers, rapports, études, comptes rendus, procès-verbaux, statistiques, directives, instructions, circulaires, notes et réponses ministérielles, correspondances, avis, prévisions et décisions.” (Law 78-753, Art. 1).

                                                                                                               2 For a different position, see DRIESSEN (2008), p. 17.

19    

In the Belgian case, through the “11 Avril 1994. - Loi relative à la publicité de l'administration” all federal administrative authorities are covered, and information available are defined as any information, under whatever form, that are held by an administration (Loi relative à la publicité, Art. 1, al.a)

Exceptions - EU

As with many other organizations, the main exceptions target cases where disclosure would “...undermine the protection of: (a) the public interest as regards: public security, defence and military matters, international relations, the financial, monetary or economic policy of the Community or a Member State; (b) privacy and the integrity of the individual, in particular in accordance with Community legislation regarding the protection of personal data.” (Reg 1049, Article 4, al.1) These limits also touch the undermining of the protection of “... commercial interests of a natural or legal person, including intellectual property, court proceedings and legal advice, the purpose of inspections, investigations and audits, unless there is an overriding public interest in disclosure.” (Reg 1049, Article 4, al. 2). Other limits focus on the stage of the information or documents received, making off-limit matters where decisions have not been taken and where the disclosure would “...seriously undermine the institution's decision-making process, unless there is an overriding public interest in disclosure. (Reg 1049, Article 4, al.3). “Sensitive” documents, i.e. “documents originating from the [EU] institutions or the agencies established by them, from Member States, third countries or International Organisations” and classified as ‘TRÈS SECRET/TOP SECRET’, ‘SECRET’ or ‘CONFIDENTIEL’, can only be disclosed with the consent of the originator (Reg 1049, Article 9,).

Exceptions – EU States

The administration has at its disposal a large number of provisions to refuse communication, including the simple fact that the French law might lead to “demandes abusives, en particulier par leur nombre, leur caractère répétitif ou systématique.” (Law 78-753, Article 2) Other provisions, in large part in keeping with both EU and Swiss laws make provisions for the non-communication of certain information. Are not communicable, elements related to the deliberations of governments or coming from the executive branch of power or linked to “... b) Au secret de la défense nationale ; c) A la conduite de la politique extérieure de la France ; d) A la sûreté de l'Etat, à la sécurité publique ou à la sécurité des personnes ; e) A la monnaie et au crédit public ; f) Au déroulement des procédures engagées devant les juridictions ou d'opérations préliminaires à de telles procédures, sauf autorisation donnée par l'autorité compétente ; g) A la recherche, par les services compétents, des infractions fiscales et douanières…” (Law 78-753, Article 6)

Provisions are also made to protect privacy of information whereby certain information can only be communicated to the person directly mentioned in the requested information. (Law 78-753, Article 6, al. II)

Appeals mechanisms - EU

If an access request is denied in whole or in part, the applicant must make a request for re-evaluation (Reg. 1049, Art.7, al.1). In case refusal is confirmed, the applicant may make a complaint to the EU Ombudsman or institute Court proceedings (Reg. 1049, Art.8, al.1).

20    

Appeals mechanisms – EU States

It is the CADA that is charged with the execution of the law and to register and arbitrate disagreement as regards the communication or non communication of information by the government. (Law 78-753, Article 17 to 19) The CADA is independent from parliament. Similar provision, that is the presence of an ombudsman in charge of the supervision of the law is also present in the British law.

Third party documents - EU

The “documents of” EU institutions are currently defined as the documents “held” by EU institutions, whatever their author (see art. 2(3) Reg. 1049). The importance of this point can hardly be overstated: a vast proportion of the documents in the hands EU institutions are communicated by third parties. This is particularly true of documents transmitted by the Member States, who are closely involved in both policy-making and policy implementation in the EU.

The general rule, applying to any third-party document, is that the originator must be consulted prior to disclosure (art. 4(4) Reg. 1049).

If the originator is a Member State, it has the special right to “request the institution not to disclose the document” (art. 4(5) Reg. 1049). The meaning of this rather ambiguous provision was clarified in a landmark judgment of the ECJ. The Court made it clear, first, that if the Member State concerned is opposed to disclosure, then the institution is duty-bound to refuse it. On the other hand, the Court clearly distinguished this right from an unconstrained “veto right”: following its judgment, a Member State may only oppose disclosure on the grounds enumerated in the Regulation, and the institution’s decision refusing access is then subject to full judicial review by EU Courts (ECJ, C-64/05P, 2007). As noted above, a true “veto right” exists by contrast in favour of the originator (State, EU institution, or international organization) of “sensitive” documents (art. 9(3) Reg. 1049). For such documents, the originator (State, EU institution, or international organization) can even veto the inclusion of a reference in the institution’s register (art. 9).

Third party documents – EU States

No specific provisions are made in the legislation for third party documents in the French law. This might be due to the absence of a federal system at the national level. The same can be said of the British and the Belgian laws.

Coordination and Complementarity

Having looked at the policy objectives and the coherence of measures in favour of ATI raises the question of the mechanisms and procedures established in favour of policy coherence in these two cases. In this case, the EU framework presented in the first section is useful.

The first element focuses on policy mechanisms striving for a ‘political commitment’ for coherence. While this is wholly absent in the Swiss case, it emerges in the EU through the current discussion in Brussels surrounding the modernisation of the ATI regime. The second aspect focuses on ‘institutional mechanisms’ that foster a degree of coordination through the establishment of an specific institutional

21    

architecture. No such thing was observed either at the Swiss or EU level in a specific manner. The third aspects looks at ‘administrative mechanisms’ that might make transfers of information more effective, be that from an administrative or technological point of view. Once again, no example of such things has been identified; at least no direct and specific mechanism related to ATI could be.

The Case of Switzerland and the EU

The level of policy coherence of access to information regimes should be evident in the similarities and divergences of access to information laws at the different administrative levels. What does this very preliminary exploration of both Switzerland and the EU underline in this regard?

There are clear difference in appreciation between the ATI law at the federal level and that at the cantonal level in Switzerland, with one providing for wider access to information. Nevertheless, in both cases the organisations have integrated in their respective laws, provisions that limit to a great extent the coverage of the principle of transparency on documents obtained from other institutions. These institution-specific blockages seem to indicate either a will to protect relations (clearly) but also one in which transparency is something that is not applying to the whole system but rather to specific administrative entities. The question is then raised as to the overall coherence of such a piecemeal approach to fostering greater transparency in the system. Here it seems that it is not so much the differences in the specific aspects of ATI that raise concerns, but rather the strict definition of transparency as encompassing institutions rather than encompassing relationships between institutions.

Coherence in the EU is in many ways harder to gauge than it is in a federated state. Federated states work within a common framework of laws and regulation, like the EU, but they also share a common cultural and organisational view on matter such as transparency. This transpires in the laws. Is the EU introducing a level of incoherence in access to information regimes? Does it lead to access ‘shopping’ as it were, by being on the one hand restrictive and sending requesters to other EU States to get their hands of information? These questions remain up in the air in the current framework that includes conceptualisations of veto-like powers of a number of actors.

With the increasingly important exchange of information between levels of government, the way in which transparency will be defined and implemented will have an increasingly important impact on the overall results of transparency. In this regard, a higher level of coherence might in fact become one of the key to better governance, greater trust and increased participation.

DISCUSSION

The elements presented above, pitting side by side the ATI provisions at two distinct levels of both the Swiss and EU systems, do underline a number of elements in our understanding of policy coherence. While the differences at the different administrative levels were more or less accentuated, this exploration has raised more questions than it has answered. While there are consequences to policy incoherence (as outlined in the first section of this article), we still have clear difficulties in identifying concrete cases and in measuring the strength of their impact on the overall policy objectives. In our study of Multi-Level Polity Coherence, and using the case of ATI as a background, five issues can be identified as key challenges to the use of this concept as a tool for both policies and public management.

22    

First is the system-wide nature of the policy objectives involved in ATI. Striving for good governance, trust and participation makes difficult any evaluation of policy effectiveness. Without it, it becomes complex to attribute the positive or negative trends to a question of coherence or incoherence in the policy framework. It then becomes harder to gauge the impact of ATI and even more so the impact of potential incoherence, be they internal, horizontal or vertical, on the capacity to hinder the attainment of policy objectives. We here face a problem of evaluating the final outcomes.

Secondly, ATI regimes are transversal in nature, impact all other policies of the State, from the delivery of administrative documents to the development of an international diplomacy. As such, they are faced with a high degree of fundamental perceptual incoherence, at least from the actors involved in these other policies. (For reference, Pasquier, Villeneuve, 2007). We are here facing a problem of identifying the forces of incoherence.

Thirdly, the state of the literature, that focuses heavily on elements such as request evaluation and analysis of non-communication, has so far generated relatively few information on the interaction of various ATI regimes. Thus the identification of concrete cases of effective impact of incoherence are absent. We are here facing a problem of data.

Fourthly, ATI legislations are but one way of understanding and defining policy coherence. A central approach to be sure, but other elements could also have an impact on the overall coherence such as administrative practices and the forces and logics of habitus in the intergovernmental relations. We are here facing a problem of isolating the variable to be studied.

Fifthly, the evaluation of specific policy mechanisms, architectures and methods are faced with the non-specific creation of mechanisms for the overall coherence of the model. What are the other policies and mechanisms that interfere in this process? We are here faced with a difficulty in identifying institutional dynamics at play.

Overall, what is lacking is the ability to properly define the perimeter of coherence of a policy, to specifically identify incoherencies at the administrative and political levels and the ways to evaluate their impact on policy objectives. Only by addressing the questions raised in this paper will we be able to successfully adapt the concept of Multi-Level Polity Coherence and transform it into an effective public policy tool.

23    

REFERENCES

AZOULAY, G. (2005), "Cohérence des politiques commerciales et sécurité alimentaire", The European Journal of Development Research 17 (3), pp. 545-558. BAKVIS, H. et BROWN, D. (2010), “Policy Coordination in Federal Systems: Comparing Intergovernmental Processes and Outcomes in Canada and the United States”, Publius: The Journal of Federalism, 40(3), pp. 484-507. CADA (2011), web site, visited 01/02/11, http://www.cada.fr/fr/acces/frame.htm. CHRISTIANSEN, T. (2001), "Intra-institutionnal politics and inter-institutionnal relations in the EU: towards coherent governance?", Journal of European Public Policy 8(5), pp. 747-769. CONSEIL FÉDÉRAL (2003), Message relatif à la loi fédérale sur la transparence de l'administration. ECJ, C-64/05P, Sweden/Commission, [2007] ECR I-11389, para. 43 ff FLORINI, A. (1998), "The end of secrecy", Foreign Policy, 111, 50-63. FUNG, A., GRAHAM, M. & WEIL, D. (2003) "The political economy of transparency: What makes disclosure policies sustainable", John F. Kennedy School of Government Harvard University. GAUTTIER, P. (2004), "Horizontal Coherence and the External Competences of the European Union", European Law Journal 10(1), pp. 23-41. GRANT, J., and HALPIN, D. (2006), "The Political Costs of Policy Coherence: Constructing a Rural Policy for Scotland ", Journal of Public Policy 26(1), pp. 21-41. HOEBINK, P. (2001), Evaluating Maastricht's Triple C: The 'C' of Coherence, La Haye OIB. JONES, Bryan D., BAUMGARTNER, Frank R. (2005), The politics of attention: how government prioritizes problems, Chicago, The University of Chicago Press. JONES, T. (2002). “Policy Coherence, Global Environmental Governance, and Poverty Reduction”. International Environmental Agreements: Politics, Law and Economics, vol. 2, mai: pp. 389-401. JUILLET, L. and PAQUET, G. (2001) Politique d'information et gouvernance. Ottawa, Gouvernement du Canada. KINGDON, John W. (1984), Agendas, alternatives, and public policies, New York, Harper Collins. KNOEPFEL, P., LARRUE, C., VARONE, F. (2006), Analyse et pilotage des politiques publiques, Zürich, Verlag Rüegger.

24    

KOSCHINSKY, J., SWANSTROM, T. (2001), "Confronting Policy Fragmentation: A Political Approach to the Role of Housing Nonprofits", Policy Studies Review 18(4), pp. 111-127. LInf, Loi du septembre 2009 sur l’information et l’accès aux documents (LInf) (ROF 2009_096). LInfo, Loi du 24 septembre 2001 sur l’information (LInfo). LIPAD, Loi du 5 octobre 2001 sur l’information du public, l’accès aux documents et la protection des doinnées personnelles (LIPAD) LTrans, Loi fédérale du 17 décembre 2004 sur le principe de la transparence dans l’administration (LTrans, RS 152.3). MAY, P. J. et al. (2005). “Policy Coherence and Component-Driven Policy Making: Arctic Policy in Canada and the United States”. The Policy Studies Journal, vol. 33, no 1: 37-63. MURDOCK, CW, (2008), “Sarbanes-Oxley Five Year Later: Hero or Villain”, Loyola University Chicago Law Journal, 39, p.568 OECD (1999) Fiscal transparency. Paris: OECD. OECD (2005). La cohérence des politiques au service du développement: promouvoir de bonnes pratiques institutionnelles, Paris: OCDE. OJ 2001 L 154/43. OJ 2006 L 264/13. PAL, L. (2006), Beyond Public Policy: Public Issue Management in Turbulent Times, Toronto, Nelson Education. PICCIOTO, R., (2005), « The Evaluation of Policy Coherence for Development », Evaluation 11(3), pp. 311-330. Regulation 1049, recital 2, emphasis added. SAVARD Jean-François (2010), "La cohérence des politiques publiques", in PAQUIN S., BERNIER L. et LACHAPELLE, G. (eds), L’analyse des politiques publiques, Montréal : Les Presses de l’Université de Montréal. SAVOIE, D. J. (2003) Breaking the bargain, Toronto: University of Toronto Press. Studies in European Development (2006), European Union Mechanisms that Promote Policy Coherence for Development, Amsterdam: Aksant Academic Publishers.

25    

TRANSPARENCY INTERNATIONAL (2004), Global corruption report. Berlin, Transparency International. UK Commissioner’s Office, visited 01/02/11, http://www.ico.gov.uk/about_us.aspx VAN DE WALLE, S. & BOUCKAERT, G. (2003), “Comparing Measures of Citizen Trust and User Satisfaction as Indicators of 'Good Governance': Difficulties in Linking Trust and Satisfaction Indicators”, International Review of Administrative Sciences, 69, 329-343. VLEUGELS, R, (2010), "Overview of all FOI laws", Fringe Special, September 20, 2010, http://right2info.org/resources/publications/Fringe%20Special%20-%20Overview%20FOIA%20-%20sep%2020%202010.pdf