11. Provision 10: Open state
Provision 10 of the Recommendation stipulates that Adherents should explore the potential of moving from the concept of open government to that of open state. The OECD developed the concept of “open state” in 2015 and has been actively supporting countries in their open state agendas ever since. Open state is defined in the Recommendation as “when the executive, legislature, judiciary, independent public institutions, and all levels of government – recognising their respective roles, prerogatives, and overall independence according to their existing legal and institutional frameworks – collaborate, exploit synergies, and share good practices and lessons learned among themselves and with other stakeholders to promote transparency, integrity, accountability, and stakeholder participation, in support of democracy and inclusive growth”. Adherents to the Recommendation recognise that open government strategies and initiatives are a shared responsibility of all branches and levels of government, according to their existing legal and institutional frameworks, and that therefore the provisions of the Recommendation are relevant to all of them (OECD, 2017[1]). The suggested open state approach does not aim at bypassing or altering the equilibrium between branches of the state; rather, it aims at creating synergies to reach a common objective.
Each level of government and each branch of the state is faced with their own reality and working methods. For example, radical transparency can be beneficial for the legislative branch but may put in danger the magistrates or judges. As each public institution has a defined role in the institutional and legal architecture and in the governance arrangement of a country, an open state approach has to be adapted to their own specific reality and context.
While all central/federal governments (executive branches) of Adherents now have different strategies and initiatives that aim to promote the open government principles in place, the picture is more mixed for their legislative and judicial branches and for their subnational governments.
Subnational authorities are implementing a variety of open government strategies and initiatives.
Open government initiatives at the subnational level are not a new phenomenon as many cities, municipalities and regional governments have been implementing actions to increase transparency, accountability and participation for years. This is the case for example for local referenda, participatory budgeting, open data platforms or citizen monitoring mechanisms, which in many cases existed much before the national open government agenda. Furthermore, many innovations linked to the open government principles have emerged from the subnational level. Examples include the participatory budgets of Porto Alegre (Brazil), the digital participation platform Decidim of Barcelona (Spain), the more than 400 representative deliberative processes at the local level and the open data portals of cities like London (United Kingdom).
In recent years, some subnational governments of Adherents have been moving towards a coordinated and integrated vision for open government. Some have even adopted policy documents that are independent from the central level like OGP Local Action Plans or Subnational Open Government Strategies. Notably, the OGP Local Programme, which went from 15 in 2016 to 106 in 2022. 63.6% (60) of the members of the OGP Local Programme are Adherent subnational governments, as listed in Table 11.1.
Some subnational governments of Adherents have further been designing and implementing their own subnational Open Government Strategies. These strategies cover various areas, including for example open government data, and aim for the inclusion of the public in the adoption process (e.g., the adoption by Parliament of the State of North-Rhine Westphalia, Germany, of their Open Government Strategy was preceded by a cross-ministerial process involving the public). Additionally, where open government strategies have been in place for years, local governments have used subnational Open Government policies to ensure coordination and sustainability (e.g., Department of Nariño’s, Colombia, first Subnational Open Government Public Policy).
The Open Government Strategy of the Province of Alberta in Canada is an example of a holistic policy framework for open government at subnational level. It includes a vision and mission statement, identifies drivers, goals, outcomes and includes principles that shall guide policy implementation. It also lists three activity streams that include concrete commitments in the following areas: Open Data, Open Information and Open Engagement (Province of Alberta, n.d.[3]; Province of Alberta, n.d.[3]).
The Open Government Strategy of the State of North-Rhine Westphalia in Germany (the “Open.NRW-Strategie”) from 2014 was the first whole-of-government Open Government Strategy from a Federal State in Germany. The adoption by Parliament was preceded by a cross-ministerial process involving the public. The strategy includes three main components: open government data and more participation and better cooperation between the ministries/the state administration and citizens. The Open.NRW strategy also foresees cooperation with the municipalities in North Rhine-Westphalia.
The Department of Nariño in Colombia has implemented open government initiatives for many years, including citizens’ forums (Cabildos Abiertos) in place since 1995 and consultation processes held on the formulation of the Government Programme between 2012 and 2015. In 2018, the Department recognised that without a strategic vision the open government agenda lacked coordination and sustainability. In order to bring its open government agenda to the next level, the Nariño Department adopted the first Subnational Open Government Public Policy.
Source: Province of Alberta (n.d.[3]), and OECD (2021[4]).
Parliaments across Adherents are implementing open government initiatives but lagging behind in adopting strategic approach.
According to data collected by the OGP, 15% of all commitments included in national OGP Action Plans require legislative action to be successfully implemented (e.g., the adoption of access to information legislation) (OGP, 2022[2]). Parliaments can further support the accountability of a country’s national open government agenda through hearings or committees and can, in the long term, provide sustainability to the agenda by protecting it from electoral cycles. In recent years, there has been an increasing interest from Adherents' Parliaments to implement open government initiatives. As shown by OGP data (2022[5]) in Figure 11.1, in 2018, 46% (17) of open state commitments in Adherent’s OGP Action Plans were on legislative issues. Through Reviews and Scans, the OECD has gathered good practices across many Adherents’ Parliaments. For example, Brazil’s digital E-Democracia platform allowing citizens to monitor and interact with parliamentarians, the Brussels Parliament’s first mixed committees (including both elected members and randomly selected citizens) and Argentina’s digital platform allowing citizens to co-draft legislation.
In Brazil, the Federal Chamber of Representatives uses digital tools for transparency, accountability and participation. Developed through a collaborative approach (in the Hacker Lab -a permanent hackathon where tech communities and public officials can collaborate and create digital solutions for legislative problems), the Parliament has built the E-Democracia platform, an integrated digital ecosystem that allows citizens to monitor and interact with parliamentarians through different mechanisms (OECD, 2022[6]).
In Belgium, the Brussels Parliament adopted the first mixed committees, comprised of 45 randomly selected citizens and 15 elected members of Parliament (MP) - from the relevant Parliamentary Committee to the topic to be discussed. The Deliberative Committees can be called in two ways: either MPs decide that a citizen contribution to a certain public issue could be valuable, or the initiative comes from citizens, as a citizen suggestion through a digital platform. The recommendations of the Deliberative Committees are then voted both by the citizens and the MPs and the accepted ones have to be discussed in the Plenary of the Parliament with the rest of the elected members (OECD, 2020[7]).
In Argentina, the Federal Chamber of Deputies has developed a platform for citizens to co-write legislation with MPs. Leyes Abiertas is an open-source platform that provides citizens and stakeholders with information about the legislature procedure, the laws to be discussed, and gives citizens the possibility to comment, draft and vote for amendments.
Source: OECD (2020[7]), and OECD (2022[6]).
However, evidence shows that these initiatives remain scattered. As shown by OECD Survey Data (2020[8]), only three Adherents’ Parliaments (Ireland, Canada and Brazil) have passed a specific legislation to support the implementation of the OGP Action Plan, and three (New Zealand, United Kingdom and Spain) monitor its implementation. Data from the OECD Survey on Open Government further indicates that among Respondents, only six Parliaments (Morocco, France, Costa Rica, Colombia, Chile and Argentina) have adopted a dedicated Open Parliament Action Plan. In other Adherents (e.g. Mexico, Portugal and Brazil), the Parliament did not adopt a policy document to guide its Open Parliament vision, but has implemented ambitious initiatives fostering transparency, participation and accountability, however, these are usually not labelled or seen as part of an open government culture.
Adherents’ judiciaries are gradually implementing the open government principles.
The involvement of the Judiciary in the open state approach is beneficial for both the justice system and the overall democratic wellbeing. Following provision 10, Open Justice, hence, consists in the implementation of the principles of open government in the day-to-day functions of all justice institutions, including putting in place accountability mechanisms, establishing permanent channels of communication with citizens and using open data tools to achieve a more open justice, aligned to citizen’s justice needs and pathways (Pascual, Mejia and Goessmann, 2021[9]).
As shown by OGP data (2022[5]), the number of Open Justice OGP commitments has been increasing, but it remains low compared to those implemented by subnational governments or the Legislature. Evidence from the OGP (2020[10]) and data collected through Reviews and Scans points to a strong focus on transparency and access to information in the Judiciary’s efforts to implement an open government approach. Few initiatives implemented by judicial institutions focus on the pillar of participation, an opportunity that could be explored to increase access to justice and strengthen trust in judiciary institutions.
Currently, no Adherent has a strategy or policy document on Open Justice. Despite this, the results of the OECD Open Government Reviews and Scans show that good practices exist among Adherents.
In Costa Rica the judiciary is part of the open state arrangements at the national level, and adhered to the declarations that provide high-level support to the open state agenda (OECD, 2016[11]).
Argentina has seen the emergence of an increasing number of open justice initiatives in recent years. In particular, the tribunals (Juzgados) number 10 and 13 of the City of Buenos Aires are implementing a series of open government initiatives that aim to restore trust in the justice system and its institutions. Those initiatives aim at improving transparency and accessibility of the justice system, through open data platform, plain language communication and real-time streaming of the tribunals sessions (OECD, 2019[12]).
Colombia’s Council of State (highest administrative court) established the Transparency and Accountability Commission in charge of publishing information and data including court memoranda and decisions, information about the court’s officials, and the court’s agenda. In 2017, the Court adopted an OGP commitment to implement digital tools in support of transparency and accountability, through which citizens can submit complains and claims. In addition, Colombia launched a web portal and mobile application called LegalApp to facilitate public access to information on justice services (OGP, 2020[10]).
As part its National Action Plan 2017-2019, the Slovak Republic adopted a commitment to increase transparency of the judicial official’s appointments. Information about these procedures – including lists of candidates and their résumés – is now publicly available online, which allows for public scrutiny of the candidates as well (OGP, 2020[10]).
Source: OECD (2016[11]); OECD (2019[12]); and OGP (2020[10]).
The move towards an open state is a reality but few Adherents are taking a coordinated and integrated approach.
The Recommendation defines the open state approach as when the executive, legislature, judiciary, independent public institutions and all levels of government “collaborate, exploit synergies, and share good practices and lessons learned among themselves and with other stakeholders”. Among many Adherents, this is already a reality, as illustrated by the involvement of a variety of actors in national open government action plans designed for the OGP. According to data collected by the Open Government Partnership, between 2011 and 2018, the action plans of Adherents that are part of the OGP included 138 commitments focusing on the subnational level of government, 44 on the legislature and 38 about the Judiciary (2022[5]). The number of open state commitments has been gradually increasing, especially from the subnational level of government (Figure 11.1).
According to the results of the OECD Survey on Open Government, 64.9% (24) of Respondents already implement joint open government initiatives, while 59.5% (22) share good practices and experience and 48.6% (18) contribute to each other’s policy documents (Figure 11.2). A detailed analysis of Adherents’ answers highlights certain trends. Most of the joint initiatives are happening in the context of the OGP-process (e.g., OGP events involving different branches of the state in France or subnational commitments in the national OGP Action Plans, as is the case of Spain). Usually, the initiatives reported by Adherents are related to a specific principle of open government but are not labelled as open state or open government initiatives. This is the case, for example, for the national open data platforms reported as joint open state initiatives by Belgium and Greece.
The increase in collaboration across levels of government and branches of the state is a positive trend. However, only a small number of Adherents are moving towards a coordinated, structured and integrated open state approach. Rather, actions are taken in a scattered and isolated way. For example, in almost half of responding Adherents that are part of the OGP (12), there is no collaboration between the legislative and the central levels on the OGP Action Plan (Figure 11.3), and only a small number of their Parliaments in Adherents are actively contributing to the countries’ OGP-processes by including commitments (six), or by passing specific legislation to support the implementation (three) (OECD, 2020[8]). The situation is similar when it comes to the design and monitoring of the main policy documents on open government. Legislative institutions were consulted in only 19.5% of the policy documents, and the judiciary in 22%. As for the monitoring of the main policy documents on open government, the Legislative is involved in 6.8% of the policy documents submitted to the OECD Survey on Open Government and the judiciary even less regularly with a participation in only 3.4% of the cases (OECD, 2020[8]).
Vertical collaboration and integration are happening on an ad hoc basis.
According to the results of the OECD Survey on Open Government, Adherents are already making efforts to promote open government at the subnational level, including by adopting guidelines or by promoting the participation of the subnational level in national efforts (such as the OGP Action Plan cycle). Notable examples include:
Colombia’s third OGP Action Plan 2017-2019 included a strong focus on the subnational level, with seven commitments from departmental governments. Particularly noteworthy are commitment 20: “Design and implement the policy on open government at the department level”, and commitment 23: “Promote and strengthen the processes of accountability in the 20 locations of the capital district”.
Argentina involved the subnational authorities and civil society stakeholders in the elaboration of the first Federal Open Government Programme which follows up a recommendation of the OECD Open Government Review of Argentina. This Programme aims at building an articulated open government approach by ensuring coordination between the national and subnational levels of government. In addition, the objective is to build capacities at the subnational level through networks, resources and trainings.
Brazil and Spain provide assistance and guidance to subnational governments. In Brazil, the TIME Program aims at supporting subnational authorities in the implementation of their access to information obligations, as well as provide a space for horizontal and vertical collaboration on open government topics. In Spain, the Community of Practice on Participation (Comunidad de Práctica de Participación) involves authorities from the central and subnational levels as well as from civil society and enables a space for peer-learning and collaboration.
Chile and Mexico developed a model of open government for subnational authorities, providing a reflection on how to adapt the open government culture to the municipal level, as well as a practical guide to implement an open government culture at the subnational level. These efforts have been effective in promoting the open government values at the subnational level and providing concrete support to increase transparency and participation.
Evidence gathered by the OECD shows that vertical integration and collaboration on open government is not systematic. As shown in Figure 11.4, 53% (17) of responding delegates reported that collaboration between the different levels of government happens on occasional basis, and 6% (two) are not aware of any collaboration (Figure 11.4). Moving forward, Adherents should increase vertical collaboration and integration of open government efforts.
Few Adherents have established multi-level governance mechanisms to ensure coordination and collaboration on open state.
OECD experience illustrates the crucial need to set up formal and informal mechanisms to reinforce multi-level dialogue and foster effective and efficient co-ordination through dedicated structures (OECD, 2017[14]). An Open State approach involves collaboration on various levels:
Horizontally: between separate branches and public institutions (e.g., between the judiciary and the legislative).
Vertically: between levels of government (e.g., between the central/federal government and local governments).
Internally: between institutions that are part of the same branch (e.g., all the ministries of the executive branch and the chambers of the legislative branch).
Evidence collected by the OECD shows that collaboration among branches of the state is happening on a very ad hoc basis. According to the 2020 OECD Survey on Open Government, only 35.1% (13) of Respondents have established a joint coordination body on open government, and the perception survey shows that in 55% of Respondents collaboration happens occasionally, and in 16% this collaboration is non-existent (Figure 11.5).
Some Adherents have established mechanisms and bodies to promote coordination between the different branches and levels of State, while continuing to include all stakeholders. Notable examples include Spain’s Sectoral Commission on Open Government and Costa Rica’s National Open State Commission (Comisión Nacional de Estado Abierto) (Box 11.4).
Spain established two mechanisms for multilevel governance on open government. The Interministerial Group on Transparency and Open Government ensures an internal coordination among line ministries at the central level. The Sectoral Commission on Open Government is a mechanism for vertical coordination and it is constituted as a space for coordination, collaboration and dialogue between the central level and subnational level of government. Participants include the Open Government Office at the central level, as well as the offices responsible for the agenda in Autonomous Communities and Municipalities. On some occasions, the Sectoral Commission has invited representatives of the Legislative and Independent Institutions to discuss the OGP National Action Plan, allowing for a whole-of-state coordination.
In Colombia, the OGP multi-stakeholder forum (Comité de Estado Abierto) is a body that allows for internal and vertical coordination as it is composed by representatives from the central and subnational levels of government. In addition, the participation of civil society stakeholders increases the transparency and accountability of such body. Beyond its OGP boundaries, this body played an important role in supporting the Policy on Open State and ensures the connection between the open government agenda (mainly through the OGP Action Plans) and the open state efforts.
As part of the Declaration on Open State, Costa Rica established in 2015 a coordination body involving all the levels of government, as well as the legislative, the judiciary and independent institutions. The National Open State Commission (Comisión Nacional de Estado Abierto) has the mandate to coordinate and facilitate the implementation of the open government principles across the state, as well as to suggest policies, strategies and guidelines to support the move towards an open state. This body ensures the articulation between different branches and monitors the implementation of the Open State Agreement and Declaration.
Source: OECD (2021[4]), Government of Spain (n.d[15]).
A small number of pioneering Adherents are taking integrated open state approaches.
A real transition towards an open state is underway in Adherents such as Mexico, Colombia, Argentina and Costa Rica which are already pursuing efforts to adopt integrated open state agendas. For example, Colombia and Costa Rica have adopted Open State Declarations or Agreements. As tools of soft law, declarations and agreements give visibility to open government reforms and ensure high-level political commitment. The signing of this kind of political documents can facilitate a dialogue and peer-learning between different actors and it is a first important step towards a more co-ordinated approach across branches of the state and levels of government. These high-level documents have both included the central and subnational levels of government, as well as the legislature, the judiciary and independent institutions (see example of Costa Rica in Box 11.5).
In November 2015, the President of the Republic of Costa Rica and the Presidents of the other three branches of power signed a Declaration for the Establishment of an Open State (Declaración por la Construcción de un Estado Abierto). In it, they committed to the drafting of a plan of priority actions to “promote a policy of openness, transparency, accountability, participation and innovation in favour of the citizens”, to be included in the respective institutional strategic plans and to be evaluated annually (OECD, 2016[11]). In the declaration, the branches of power further agreed to strengthen existing mechanisms of citizen participation and develop new ones in order to improve the relationship between civil society and policy makers and to provide better access to public information through the use of new technologies. In 2017, Costa Rica complemented its Declaration with an Open State Agreement which aims to “consolidate the commitment of the Powers of the Republic to promote a transparent, efficient and effective State that promotes the fight against corruption and guarantees citizen participation”. The Agreement includes a number of general commitments from each branch of the state (e.g., strengthen strategic planning and annual operational plans by incorporating the principles of Open Government).
Source: OECD (2021[4]) and OECD (2016[11]).
In addition, in 2021, Colombia went one step further and adopted an actual policy on open state (Box 11.6). The policy was co-constructed with civil society and the different branches of power and levels of government and establishes five objectives and strategic orientations to implement an open state approach.
In December 2021, Colombia approved its Policy and Guidelines for the implementation of an Open State (Lineamientos de Política para la Implementación de un Modelo de Estado Abierto). The objective of this document is to promote trust in public institutions and to improve the relationship between the State and the public. It establishes a model for an open state, meaning a more transparent, participatory and collaborative public action. This document was established through a participatory methodology and is part of an objective of Colombia’s National Development Plan 2018 - 2022.
The Open State Policy has five strategic objectives that will be implemented from 2022 to 2025:
Transparency: Promote the right to access public information; Promote initiatives of targeted transparency.
Public integrity: Foster the culture of integrity in the management of human resources; Articulate and diffuse tools to manage and prevent conflict of interest.
Legality: Promote an integrated approach to risk management; Improve management of reports and complaints of corruption and the protection of whistle-blowers; Develop tools and useful information for the investigation and sanction of corruption practices.
Co-responsibility (citizen participation): Foster social accountability mechanisms in the formulation and evaluation of public policies; Promote co-responsibility to generate trust among citizens.
Innovation: Promote public innovation initiatives as a transversal mechanism to support the consolidation of an Open State.
Source: Government of Colombia (2018[16]); Government of Colombia (2021[17]).
In terms of the move from open government towards an open state (provision 10), the following conclusions can be drawn:
10.1: An increasing number of Adherents have been adopting open government strategies and initiatives that include the subnational levels of government and other branches of the state. Nevertheless, such efforts remain scattered and isolated, and few Adherents pursue them to coordinate their open state efforts. Vertical integration and multilevel governance mechanisms are being implemented in some Adherents, but those efforts are usually happening on an ad hoc basis. Moving forward, existing initiatives could be pursued, while increasing efforts to move to an integrated open state approach by creating coordination mechanisms, providing more support to the subnational level of government and ensuring dialogue and collaboration among all the state actors in the area of open government).
10.2: Public institutions beyond the central/federal level of government have become aware of the power of an open government culture of governance. Subnational authorities of Adherents are taking the lead in the area of open state by designing and implementing open government initiatives and strategies, and increasing their collaboration with the central level of government. Some Parliaments have started adopting an open parliament approach, but those efforts are not usually connected to a broader agenda of openness. The implementation of dedicated strategies remains the exception. The Judiciary is lagging behind, with very few initiatives among Adherents and with a strong focus on transparency and open data. To harness the promise of an open state, Adherents could increase their support to other levels of government and branches of the state and provide platforms for collaboration and exchange of good practices.
References
[17] Government of Colombia (2021), Documento CONPES 4070 Lineamientos de política para la implementación de un modelo de Estado abierto, https://colaboracion.dnp.gov.co/CDT/Conpes/Econ%C3%B3micos/4070.pdf.
[16] Government of Colombia (2018), National Development Plan 2018-2022 “Pact for Colombia, Pact for Equity”, https://colaboracion.dnp.gov.co/CDT/Prensa/Resumen-PND2018-2022-final.pdf.
[15] Government of Spain (n.d), Gobierno abierto, https://transparencia.gob.es/transparencia/transparencia_Home/index/Gobierno-abierto.html.
[6] OECD (2022), Open Government Review of Brazil: Towards an Integrated Open Government Agenda, OECD Public Governance Reviews, OECD Publishing, Paris, https://doi.org/10.1787/3f9009d4-en.
[4] OECD (2021), Guía OCDE para diseñar e implementar estrategias territoriales de Gobierno Abierto en Colombia, https://www.oecd.org/gov/open-government/guia-ocde-para-disenar-e-implementar-estrategias-territoriales-de-gobierno-abierto-en-colombia.htm.
[13] OECD (2021), Perception Survey for Delegates of the OECD Working Party on Open Government.
[7] OECD (2020), Innovative Citizen Participation and New Democratic Institutions: Catching the Deliberative Wave, OECD Publishing, Paris, https://doi.org/10.1787/339306da-en.
[8] OECD (2020), OECD Survey on Open Government.
[12] OECD (2019), Open Government in Argentina, OECD Public Governance Reviews, OECD Publishing, Paris, https://doi.org/10.1787/1988ccef-en.
[14] OECD (2017), Multi-level Governance Reforms: Overview of OECD Country Experiences, OECD Multi-level Governance Studies, OECD Publishing, Paris, https://doi.org/10.1787/9789264272866-en.
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[11] OECD (2016), Open Government in Costa Rica, OECD Publishing, https://doi.org/10.1787/9789264265424-en.
[5] OGP (2022), OGP Explorer, https://www.opengovpartnership.org/explorer/all-data.html (accessed on 1 December 2020).
[2] OGP (2022), What’s in the 2021 Local Action Plans, https://www.opengovpartnership.org/whats-in-the-2021-local-action-plans/#IN (accessed on 10 August 2022).
[10] OGP (2020), Justice Policy Series, Part II: Open Justice.
[9] Pascual, M., M. Mejia and D. Goessmann (2021), El avance hacia la Justicia Abierta en Latinoamérica y el Caribe: una perspectiva de la OCDE, Editorial Jusbaires, https://editorial.jusbaires.gob.ar/libros/338.
[3] Province of Alberta (n.d.), Open Government Strategy, https://open.alberta.ca/documentation/strategic-plan.