Transparency in Public Administrations : The Italian FOIA Case

In a society where information is acquiring ever gr eater value, stakeholders be they citizens or complex organisations increasing ly emphasise their need to access knowledge. Public administrations, character ised by their close proximity to the public, are even more duty-bound to manage and communicate information to the local community they serve. Emerging as key in this domain is the role of transparency, intended as an instrument able to bri dge the gap between the information that public administrations hold and th a of the community in which they operate. In a context where information itself is the asset that is the object of stakeholder interest, the FOIA (Freedom of Informat ion Act) regulations become a useful framework to regulate the right and means of accessing information.


Transparency in Global Markets
In a modern global economy where barriers between sectors and countries are diminishing and with a prevalence of intangible components of supply, the value dimension gains ever increasing importance (Brondoni, 2014;Brondoni, 2002). In the last few decades, following the affirmation of the need for communication that is more attentive to the social and environmental components, it has become essential for companies to evolve and play a deeper role than the mere pursuit of profit. This significant change has in part been triggered by the need for private organisations to offer a brand image that better meets the more heterogeneous needs of today's consumers (Branco & Rodrigues, 2006). Communication, both commercial and institutional, should in fact aim to reassure the public about the company's mode of operation and provide information on how it understands and interprets the relationship with the complex and varied stakeholder system, which can simultaneously comprise ideally distant entities, such as suppliers and future generations. Indeed, companies increasingly attempt to convey their key values and culture through tools such as sustainability reports and codes of conduct (Arrigo, 2006). Hence, the abandonment of a culture of reticence in favour of more transparent and accountable management of sensitive information is one of the responses of enterprises to the great social changes of recent decades (Salvioni, 2002).
Also in public administrations (henceforth PAs), this concept of responsibility acquires greater emphasis, with the vital difference that the important figure of the customer in a strict sense is replaced by that of the citizen and therefore the community. In this delicate context, the definition of the triple bottom line, intended as "an accounting framework that incorporates three dimensions of performance: social, environmental and financial" (Slaper & Hall, 2011) and that of sustainability would seem to have a deeper connotation. In an economy where competition spaces are widening, PAs remain territorially proximate to citizens and provide services offset by the payment of taxes or charges. The very nature of PAs thus imposes an obligation to ensure stakeholder awareness of the decision-making process and the values espoused by the organisation they turn to.
The principle of transparency and its application are thus a potential solution to the ever greater need of stakeholders to access information. Ball (2009) argues that transparency has to establish itself as a tool to combat corruption, ensuring the visibility of the decision-making process (open decision-making) and implementing the principles of good governance. The priority of curbing corruption stems from decades where the image of public administrations has been plagued by systematic scandals involving bribery and other violations undermining the trust that not only citizens but all stakeholders place in them.
Therefore, access to information on the mechanisms that administrations employ becomes an asset, in business terms a product, which specifically responds to the needs that stakeholders express.
The role of transparency manifests precisely in this domain, intended as a tool to bridge the knowledge gap between the PA and the environment in which it operates. The information itself becomes the asset that is the object of the transaction, and the right to access it allows making informed choices and reduces the possibility of abuse, enabling a more positive connotation for stakeholders within democratic life (Cavalieri, 2007).
The link between transparency and information also emerges in the following definition: "Transparency means that decisions taken and their enforcement are done in a manner that follows rules and regulations. It also means that information is freely available and directly accessible to those who will be affected by such decisions and their enforcement. It also means that enough information is provided and that it is provided in easily understandable forms and media" (UNESCAP, 2009).
Such link sheds light on the fundamental values, the decision-making processes and actions of those who control the asset and resources by virtue of a position of power (Bauhr & Grimes, 2013). The total transparency of these elements may on the one hand lead to the possibility of curbing the torts, and on the other, reduce uncertainty due to lack of knowledge of what is taking place in the organisation, or the possibility of ensuring that public managers act in compliance with the law.
Another issue concerns the spread of ICT technologies. If on one side they allow creating the technical mechanisms that ensure access to information, on the other, the nuances become more complex. Indeed, in the last few decades, the Internetbased culture is ever-spreading, leading to the idealization of the concept of freedom of access to information. The concept of the Internet is transcended as a simple means of disclosure with a major impact on the connotation of value deriving from online communities. Examples such as WikiLeaks, Pirate Party, and Anonymous are evidence of a strong and increasingly relevant push for freedom of information in its purest form (Beyer, 2014). If in the past this could be considered part of a disruptive but circumscribed hacker ideology aimed at eliminating any restrictions on the transmission of information (Levy, 1984), today there is widespread sensitivity in relation to the topic, especially for younger stakeholders (Beyer, 2011). Even if this constitutes a more radical trend, the events of recent years show increasing attention to the data that public organisations hold.
However, despite the wealth of socio-economic factors that favour the adoption of the principle of transparency, and although literature expresses a strong positive contribution in this respect, there are many obstacles to its application, including the mistrust of various political actors (Berliner, 2014). Historically incisive events, such as 9/11, have led to changes in the management, access, and exchange of information between different social groups (Jaeger & Burnett, 2005;O'Reilly, 2003). There are also critical issues in relation to the means of ensuring access to information and thus responding to the need for stakeholder knowledge. First, this requires creating and adopting a system that can guarantee the usability and quality of information, defining the PA's reporting obligations and the way in which stakeholders obtain access. These aspects require, on the one hand, developing managerial skills to collect, systematize, summarize, present, and make the information available, and on the other, defining a framework that can regulate the right of access to information. Essential in fact is clearly identifying what information can be accesses by whom, how, and when. Relevant in this sense are the regulations compatible with the Freedom of Information Act (FOIA). The next section aims to clarify the international variegation of these regulations, characterized by highly fragmented nuances and uses modelled according to the needs of States.

FOIA: Evolution, Limitations and Alternatives
While transparency is globally recognized as crucial for any private or public organisation, far more arduous is the acceptance of a universal application model. Reducing the research domain to public authorities alone, we can identify how the FOIA regulations or more generally the FOI Laws are the main nexus in the sphere of free access to information. In recent decades, each country has developed the theme according to different timelines and specificities (Table 1), evidencing on the one hand the recognition of the importance of ensuring transparency, and on the other, a certain persistence of the organisations' possessiveness of information. Even if issued by different and geographically distant authorities, the regulations presented in Table 1 show the common willingness to make information on their activities available to the public, although always with some exceptions. Below are some extracts of the general objectives of the transparency regulations.
□ "The Freedom of Information Act 2000 provides public access to information held by public authorities. It does this in two ways: public authorities are obliged to publish certain information about their activities; and members of the public are entitled to request information from public authorities. The Act covers any recorded information that is held by a public authority in England, Wales and Northern Ireland, and by UK-wide public authorities based in Scotland." (ICO, 2017) □ "The Parliament intends, by these objects, to promote Australia's representative democracy by contributing towards the following: increasing public participation in Government processes, with a view to promoting better-informed decision-making; increasing scrutiny, discussion, comment and review of the Government's activities." (Australian Government's FOIA, 1982) □ "The purposes of this Act are, consistently with the principle of the Executive Government's responsibility to Parliament: (a) to increase progressively the availability of official information to the people of New Zealand in order (i) to enable their more effective participation in the making and administration of laws and policies; and (ii) to promote the accountability of Ministers of the Crown and officials, and thereby to enhance respect for the law and to promote the good government of New Zealand; (b) to provide for proper access by each person to official information relating to that person; (c) to protect official information to the extent consistent with the public interest and the preservation of personal privacy." (New Zealand's Official Information Act, 1982) From these examples emerges, albeit in very different contexts, the harmonisation of the content of the acts, which in particular are based on the dual purpose of making information available and facilitating effective stakeholder participation. The FOIA general objectives, up to now examined at the national level, also extend to more complex political conformations. Indeed, the principles of good governance promoted by the European Union are strongly aimed at overcoming the opacity of the activities of community institutions. The White Paper on governance published by the European Commission in August 2001 sets out five principles for improving the institution-stakeholder relation: openness, participation, accountability, effectiveness, and coherence. They should use language that is accessible and understandable for the general public. This is of particular importance in order to improve the confidence in complex institutions.

Participation
The quality, relevance and effectiveness of EU policies depend on ensuring wide participation throughout the policy chain -from conception to implementation. Improved participation is likely to create more confidence in the end result and in the Institutions which deliver policies. Participation crucially depends on central governments following an inclusive approach when developing and implementing EU policies.

Accountability
Roles in the legislative and executive processes need to be clearer. Each of the EU Institutions must explain and take responsibility for what it does in Europe. But there is also a need for greater clarity and responsibility from Member States and all those involved in developing and implementing EU policy at whatever level.

Effectiveness
Policies must be effective and timely, delivering what is needed on the basis of clear objectives, an evaluation of future impact and, where available, of past experience. Effectiveness also depends on implementing EU policies in a proportionate manner and on taking decisions at the most appropriate level.

Coherence
Policies and action must be coherent and easily understood. The need for coherence in the Union is increasing: the range of tasks has grown; enlargement will increase diversity; challenges such as climate and demographic change cross the boundaries of the sectoral policies on which the Union has been built; regional and local authorities are increasingly involved in EU policies. Coherence requires political leadership and a strong responsibility on the part of the Institutions to ensure a consistent approach within a complex system.

Source: European Governance -A White Paper -2001
Therefore, this document responds with pressure on the national institutions of member States to meet the stakeholders' need for transparency.
Subsequently, several member States, some with delays compared to Anglo-Saxon countries, have legislated on this issue. Four years after the publication of the White Paper, Germany published its FOIA, according to which, "Everyone is entitled to official information from the authorities of the Federal Government in accordance with the provisions of this Act. This Act shall apply to other Federal bodies and institutions insofar as they discharge administrative tasks under public law" (Federal Act Governing Access to Information held by the Federal Government, 2005). In Italy, however, the enactment of Legislative Decree no. 33/13 (now largely integrated with the provisions of Legislative Decree no. 97/16) defines transparency as "Total accessibility of data and documents held by public authorities to protect the rights of citizens, promote the participation of those concerned with administrative activities and encourage widespread forms of control over the pursuit of institutional functions and the use of public resources" (Legislative Decree no. 33/13).
Today, the growing need for transparency is evident, which also requires a revision of the current FOIA model that is decidedly based on the US matrix. The pioneering legislation established in the 1960s and exported globally in recent decades has been the subject of criticism (Pozen, 2017;Pack, 2004). Although it has the objective of responding to the need for transparency, several shortcomings have emerged that have spread with the adaptation of legislation to different national contexts.
First, there are exemptions from the effects of the regulation. In fact, each country excludes a number of bodies, administrations, and agencies from the legislation. In the case of the United States, the administration may refrain from providing the requested information if concerning: • National defence or foreign policy.
• Rules and practices of internal staff.
• Information exempted by other laws.
• Commercial secrets and confidential business information.
• Memorandum or letters within or between administrative bodies that are protected by legal privileges. • Personal documents and medical records.
• Law enforcement documents or information.
• Information related to bank supervision. • Geological or geophysical information.
Even if the prohibition to access classified information for reasons of national security can easily be understood and tolerated in the case of generic stakeholders, reticence with regard to congressional and court information, according to the US example, is certainly less in line with the guiding principle of the regulation. This therefore requires identifying in each country the right balance between the public's right to know and national security (Uhl, 2003).
Second, there are problems linked to real access to data. The FOIA's efficiency depends on the stakeholders' ability to know exactly what information to ask for, and where and how this may be possible. In this sense, stakeholders require a certain competence. In fact, the true FOIA winners are professionals, such as corporate lawyers and business information resellers, as opposed to other stakeholder categories that may be interested parties but are far less capable of using such administrative procedures (Klein et al., 2016;Hoefges et al., 2003;Pozen, 2017). The US model therefore assumes a certain level of expertise, which in turn entails a cost for stakeholders, such as hiring a specialist or covering attorney fees and litigation costs (Tai, 2015). To justify such costs and expertise, FOIA is mainly used to request information for commercial purposes.
Finally, there is the additional issue of access, which is guaranteed to every person without any eligibility criteria. This aspect could lead some organisations to sustain both financial and time costs in relation to responding to an excessively high number of requests. Due to the way the legislation is structured, transparency is interpreted as a matter between the applicant and the administration. Even when the requested information has been obtained, the collective does not benefit from meeting the individual's need for transparency, given that the applicant does not have any publication obligations. Literature on this issue focuses greatly on this latter element, at times interpreting FOIA as a response to an inquisitional mechanism implemented by lawyers rather than as a general tool of transparency. Worthy (2010) argues that legislation in the United Kingdom has led to an increase in transparency and accountability without however resolving the problems associated with lack of trust in institutions and low participation in decisionmaking.
In fact, FOIA is only one possible solution to meeting the need for access to information, defined as "the presence of a robust system through which information is made available to citizens and others" (Jaeger & Burnett, 2005, p. 465). Such criticisms bring to light alternative models, partly present in some FOIA regulations, such as affirmative disclosure. Pozen (2017) argues that this model could anticipate the need of single stakeholders making a request to the PA. In fact, the law should instruct organisations on which information categories to publish, how, and when.
Another possible model is instead based on the possibility of linking the legal effects of an administrative decision based on compliance with certain publication standards. Therefore, a decision has no effect on a stakeholder if such an individual has not been sufficiently informed.

PA Transparency: the Italian Case
In Italy, the issue of transparency can be considered as bi-frontal: • On the one hand, Legislative Decree 33/13 that first comprehensively framed the theme of transparency identified a series of publication obligations to be consistently managed by public administrations. This solution therefore recalls the aforementioned models in which the legislator precisely determines the information to be published and the frequency of publication and updating. • On the other hand, Legislative Decree 97/16 that only three years after its issuance significantly integrated Legislative Decree 33/13 was inspired by FOIA and intended to guarantee everyone freedom of access to the data and documents held by public administrations, except with certain specific limitations (e.g., privacy, State secrecy, etc.). Furthermore, a leading role in this comprehensive and complex regulatory system is played by the national anticorruption authority (Autorità Nazionale Anticorruzione, ANAC) that intervened through the legislative implementation guidelines, regulations and, above all, defining the triennial corruption prevention plan.
Starting from these premises, transparency is to date ensured by: • The compulsory publication (in the "Transparent Administration" section of the institutional website) of documents, information, and data concerning the organisation, activities, and the way of implementing these. • Freedom for all to access (so-called "generalised" civic access) further data and documents held by public administrations other than those whose publication is obligatory.  [...] The decree in question adds a "reactive" type of transparency, or rather, in response to the instances of knowledge advanced by the interested parties, to the pre-existing "proactive" transparency, or rather, the compulsory publication of data and information indicated by law (Legislative Decree 33/13) on the websites of certain entities. The transition from the need to know to the right to know is for the national system a type of Copernican revolution, able to actually evoke the noted image of a PA, cherished by Filippo Turati, as a "glass house" (Point 11.2).
Specifically, the mechanisms that public administrations have to put in place to properly and comprehensively safeguard this theme are: • The map of publication obligations, defining in detail the data, documents, and information to be published (Annex 1 of the ANAC Decree 1310/16). • The "Transparent Administration" section of the entities' institutional website containing the data, information, and documents published in accordance with current legislation (Article 9, paragraph 1 and Annex A of Legislative Decree 33/13). • The triennial plan for the prevention of corruption and transparency in which those responsible for the transmission and publication of the documents, information, and data subject to transparency are identified as well as the main measures to be taken to ensure that transparency becomes a tool to counter corruption.

Table 4: Freedom of Information Act (FOIA)
Access to information gathered by the State, in the name of citizens and with the resources of citizens, is not only a need for journalists, lobbyists, and experts. It is a universal right, which is at the base of our freedom of expression, because it is the presupposition of full participation as citizens in democratic life. The right of access is regulated by international standards known as the "Freedom of Information Acts" (FOIA). According to these, the public administration has information, publication, and transparency obligations, and citizens have the right to request any kind of information produced and held by the administration that does not conflict with national security or privacy. The European Court of Human Rights has recognized access to information held by governments as a right: today more than 90 democratic countries have an FOIA.
From the analysis of this regulatory excursus and the instruments therein outlined derives the definition and the fundamental purpose of transparency, namely: • Total access to data and documents held by public administrations.
• To protect the rights of citizens, to promote the participation of those concerned with administrative activities and to promote widespread forms of control over the pursuit of institutional functions and the use of public resources (Article 1(1) of Legislative Decree 33/13). More specifically: • Transparency contributes to the implementation of the democratic principle and the constitutional principles of equality, impartiality, good performance, accountability, efficacy, and efficiency in the use of public resources, integrity and loyalty in service to the nation. • Transparency is a condition guaranteeing individual and collective freedoms, as well as civil, political, and social rights.
• Transparency integrates the right to good administration.
• Transparency contributes to the creation of an open administration at the service of citizen. In addition to widening the definition and the fundamental purpose of transparency, the 2016 Reform also extended the subjective application scope of these regulations. Indeed, if the focus was primarily on public administrations referred to in Art. 1, c. 2 of Legislative Decree 165/01, with the issuance of Legislative Decree 97/16 it became clear that the same discipline applies, as far as compatible with: • Public economic entities and professional bodies.
• Publicly controlled companies, excluding listed companies.
• Associations, foundations, and private law entities, howsoever named, even if without legal status with a budget of over five hundred thousand euro, whose activities are largely funded for at least two consecutive financial years in the last triennial by public administrations and where all office holders or members of the administrative or management body are designated by public administrations. In addition, the same legislation foreseen for public administrations provided for in Art. 1, c. 2 of Legislative Decree 165/01 applies, as far as compatible, only to data and documents relating to the activities of public interest governed by national or European Union law of: • Public companies.
• Associations, foundations and private law entities, howsoever named, even without legal status, with a budget of more than five hundred thousand euro, that exercise administrative functions, produce goods, and provide services to public administrations or manage public services. In this way, they seek to embrace most public bodies and businesses, so that the reform perimeter of reference is as complete as possible.
The importance that the legislator has given to the reform on transparency is also reflected in the sanctions associated with non-compliance with the obligations foreseen by law. In particular: • Sanctions of a general nature.
• Penalties for breach of specific publication obligations. With reference to the first type, important to recall are two liability profiles referred to in case of non-compliance: • Managerial responsibility, which may result in the impossibility of renewing the executive appointment or, relative to the gravity of cases, the termination of the appointment. • The responsibility for image damage to the entity, linked to the opacity generated by behaviours that are not in compliance with current law. Such responsibility can be associated, in relation to the seriousness of the breaches committed, to disciplinary sanction as well as the reduction in remuneration linked to annual performance.
Examining instead the sanctions for breach of specific publishing obligations, interesting to note is that these can be categorized into three reference categories: • Administrative sanctions, mainly pecuniary and related to, for example, noncompliance with the disclosure requirements of political, administration, management or governance office holders and managers i . • Sanctions relating to the non-transfer of resources. Such sanctions are imposed, for example, in the case of missing or incomplete disclosure of data concerning supervised public entities, subsidiaries, and controlled entities. In particular, the provision in their favour of amounts by the administration, excluding payments that administrations have to provide for contractual obligations for services rendered to them. • Penalties for the ineffectiveness of individual measures. For example, publication of the details of collaborative or consultancy assignments to external parties, in any capacity, for which a fee is foreseen, complete with indicating the recipients, the reason for engagement and amount of services provided, as well as communication of the data to the Department of Civil Service (Art. 53, c. 14 of Legislative Decree no. 165/01) are conditions for the acquisition of the effectiveness of the act and for the settlement of the related compensation. In case of non-publication, the payment of the consideration determines the responsibility of the executive in question, ascertaining the outcome of the disciplinary procedure, and involving the payment of a penalty equal to the sum paid, without prejudice to the reimbursement of the recipient's damage. This brief examination shows that the Italian legislature intended to strengthen Legislative Decree no. 33/13 through the subsequent adoption of Legislative Decree no. 97/16. In particular and in synthesis: • Extending the meaning of the concept of transparency and the related reinforcement of the objectives the reform intends to pursue. • The redefinition of the scope of transparency obligations and the application of the measures, so as to embrace a growing number of public administrations. • The better definition of some of the most complex publication requirements related to the "Transparent Administration" website section. • Reformulating the concept of civic access to data and public documents, so that it is substantially equivalent to that which in Anglo-Saxon systems is defined as the Freedom of Information Act (FOIA). • The better specification of sanctions and identification of competent individuals for their imposition, in case of breaching the transparency requirements. Despite the positive elements, the weak point of this reform can be identified in two essential elements, both of a general nature.
First, this reform comes -like many others -at the worst time in the history of Italian public administrations when considering the period from 1990 (reform of local self-government) to today. Indeed, the negative elements are manifold: cuts in State transfers, the block in turnover, cuts to consultancy and training, collapse of investment and credit capabilities, failure to redefine the public system institutional structure, and the de-legitimisation of politics are just some of the phenomena that make it difficult to implement the reform processes under way.
Furthermore, this is also accompanied by a tactical error that renders the reform scarcely effective. On the one hand, as we have seen, much work has been done on the regulatory level (parliament and government) and interpretative level (for instance, the anticorruption implementation guidelines). On the other hand, there has never been a real stakeholder information pathway in relation to new information possibilities that the analysed decrees provide. The "Transparent Administration" website is used in most cases by professionals who thus benefit from qualified information and at zero cost; the same applies to the request for additional data to those published, so-called generalized civic access, also an instrument that benefits privileged stakeholders. The very limited impact in terms of real information for citizens can be explained by the poor or nil investment in engagement activities -especially aimed at less organised and competent stakeholder categories -serving the purpose of ensuring genuine knowledge of the information potential that the law today foresees.