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Exclusion and Exemption Clauses of ATI/FOI Laws From a functionalist, Liberal Pluralist and Marxist Perspective

Access to Information (ATI) and Freedom of Information (FOI) laws are intended to provide formal mechanisms with which members of the public can require government agencies to release public records. However, a common perception amongst academic researchers is that ATI/FOI laws serve the interests of the state more than member of the public. The ATI/FOI laws have been criticized as facilitating both transparency and secrecy (Larsen, 2013).

For the purpose of this analysis, I will hold a position that ATI/FOI laws were created by the government for their own interests of protecting the release of certain information from the public. The analysis will focus on the the exemption and exclusion clauses that access laws contain, as well as the role that discretion plays in the release of certain information. I will explain the function of ATI/FOI laws from functionalist, liberal-pluralist, and Marxist perspectives.

Functionalists believe that social control is necessary if society is to flourish (Comack, 2006). A functionalist would argue that because, as individuals, we are self-interested and egotistical, ATI/FOI laws are necessary in order to control the access and spread of government information for self-serving purposes that could be harmful to the state. The exemption and exclusion clauses in fact protect the state.

Functionalists utilize an “organic analogy” (Comack, 2006). They would see ATI/FOI laws are simply a small part of the structure in society that functions to maintain harmony and stability.  Functionalists would argue these laws are a essentially a source of order in society, and serve to mitigate potential conflicts.

Liberal pluralists see society as consisting of groups with competing interests who are in a competition for power.  Although liberal pluralists view that state as an impartial umpire, they would draw attention towards the question of the origins of the laws when acknowledging the concepts of power and conflict. They may inquire as to what vested interest groups played a role in the emergence of the ATI/FOI laws.

The underlying question that liberal pluralists would attempt to emphasize would be: “If laws originate from the moral inclinations of the more powerful in society, and if the agents of law (police and judges) utilize their discretionary power in ways that might disadvantage those with whom they come into contact, then is justice really blind?” (Comack, 2006, p33)

Marxists argue that consensus is not natural, it must be artificially created and manufactured by the ruling class (Comack, 2006). In fact, they view law as a form of ideology, a value-laden position. Marxists would argue that the exclusionary clauses of ATI/FOI laws were created simply to protect the ruling class.

Instrumental Marxists argue that law itself is a weapon of class rule. ATI/FOI would be seen laws are a means of protecting property and consolidating political power, as Instrumental Marxists view law as inherently political.

Structural Marxists would view ATI/FOI laws as a form of accumulation and legitimation. The exclusionary laws protect the interests of the state, while other clauses of the laws actually legitimize and maintain conditions of social harmony by making information available to the public.

In conclusion, there are vast interpretations regarding the nature and purpose of exclusionary and exemption classes of ATI/FOI laws from different socio-legal schools of thought. Yet all three perspectives (functionalist, liberal pluralist and Marxist) agree that ATI/FOI laws were created to manage conflicts and competing interests of different parties, classes and individuals.

References

Comack, E. (2006). Theoretical Approaches in the Sociology of Law: Theoretical Excursions. In E. Comack (Ed.), Locating law: race/class/gender/sexuality connections (2nd ed., pp. 18–67). Halifax, NS: Fernwood Pub

Larsen, M. (2013). Access in the Academy: Bringing ATI and FOI to Academic Research. BC Freedom of Information and Privacy Association. Retrieved from https://www.gifttool.com/ donations/Donate?ID=1552&AID=2700

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