Access to Information: The Elements of Reform
15 October 2012
More than forty years have passed since Canada's Parliament first considered legislation that would establish a right of access to documents held by federal institutions. This is a very long time ago. Most Canadians living today were not yet born when Ged Baldwin introduced a private member's bill on access to information in 1969, and few Canadians living then would have immediately understood what Baldwin's bill was intended to do. Only four countries -- Sweden, Finland, Norway, and the United States -- had similar legislation, and the American law was only a shadow of the tougher statute that would be passed following the resignation of Richard Nixon in 1974.
Times have changed. Today, the vast majority of established democracies have adopted right-to-information (RTI) laws. (These are also known as freedom of information or access to information laws.) Indeed, it is probably the case that most people on the planet now have a right to government information that is recognized in a national constitution, law or regulation. There are many people who argue that access to information is a fundamental human right, and many more who say that it is at the very least essential for the protection of other fundamental rights, such as the right to participate in the government of one's own country. Of course, countries differ in the extent to which they actually grant access to government documents. But we are well beyond the point at which it can beyond disputed that a properly defined right to information is essential to good governance.
There is another sense in which times have changed. When the debate over RTI law began seriously in Canada in the 1970s there was understandable apprehension about how it might change the dynamics of politics and government. No Westminster system had yet adopted an RTI law. Some aspects of the law were necessarily experimental, while other aspects were drafted cautiously in response to apprehensions about the damage that might be done inadvertently to our governing institutions.
Today it is possible to approach the subject of reforming the Access to Information Act with more confidence. We are advantaged by decades of experience with the actual operation of RTI laws -- not only in Canada, but in many other countries. There is a vibrant international community of RTI advocates, bureaucrats and academics who are able to speak with confidence about what works, and what does not. Many within this global community would agree on the following propositions.
RTI Law is the Backbone of a System
The first broadly accepted proposition is that the right to information depends on more than the RTI law itself. The language of the law is obviously important, but a well-crafted law is not enough. There are countries with good RTI statutes where there is still no right to information in practice. Sometimes citizens are simply unaware of their statutory rights and how to exercise them. Sometimes government departments fail to establish procedures for processing requests or organizing documents so that they can be retrieved efficiently. Sometimes enforcement bodies -- typically, information commissioners -- lack the staff to provide redress in cases where requests for information have been mishandled.
We can state, more positively, the elements that are necessary for an RTI law to realize its potential. There must be a community of potential users who understand how to make requests; administrative capacity within government departments so that requests are handled properly; and similarly capacity within enforcement agencies so that complaints are addressed properly. In the long run, there must also be a well-organized constituency of non-governmental stakeholders who are capable of articulating complaints about weaknesses in the law, monitoring against governmental backsliding, and importing innovations in law and practice from other jurisdictions.
An RTI law serves as the backbone for an RTI system, which must have all of these other elements if the core idea -- a right to information -- is to be realized in practice. And it is useful, when considering the revision of an RTI law, to ask whether it is likely to encourage the development of a healthy RTI system. For example, we can ask whether the law provides mechanisms that simplify the filing of requests, or which promote the education of possible requesters; whether it provides incentives or penalties for departments so that they implement the law properly; and whether it assures the enforcement body has the resources and powers necessary for obtaining compliance. We could also ask whether the law supports the emergence of a healthy stakeholder community, perhaps by requiring adequate reports on administration the law, or periodic reviews of the law, or support for research and dialogue on best practice.
The User’s Perspective
There is also growing appreciation of the need to view any RTI law -- or more precisely, any RTI system -- from the perspective of the anticipated user. Most RTI laws are promoted as tools that will allow individuals to obtain information from government institutions without professional assistance. In practice, many laws do not work this way. Instead, RTI statutes are used heavily by lawyers, journalists and other individuals with specialized knowledge of the law and bureaucracy. Of course, the general public often benefits indirectly from requests that are made by these groups, and to some degree it is inevitable that a core of intensive RTI users should emerge.
But to a large degree this skew in usage is the result of a failure to view the RTI system as a potential user would see it, and remove the obstacles that would be immediately apparent from that point of view. A good example is the practice, in many federal institutions subject to the Access to Information Act, of requiring requests in the form of a letter accompanied by a check in the amount of the application fee. This is a substantial barrier to usage and one of the most obvious ways in which Canadian practice has fallen behind other jurisdictions. Other countries now allow requests to be sent by email or submitted through dedicated webpages, and subsequent correspondence relating to a request -- including the release of records -- is handled electronically as well.
The Canadian government, like many others, has put substantial emphasis on the improvement of service to the public over the last three decades. However, the principles of high-quality service that have been so rigorously applied to other parts of government have not been applied to operation of the Access to Information Act. The persistence of archaic methods of making requests is only one result of this failure. Consider all of the customer service features that we have come to expect in the private sector and other parts of government. There are no ATIA call centres; there is no mechanism for online tracking of ATIA requests; there is no easily accessible log of received or processed requests; and there is no regular survey of requester attitudes about their service experiences.
Other jurisdictions, many poorer than Canada, have experimented with innovations like these. They are not technically challenging or expensive. But they will only be adopted if we view the RTI process with the same concern for customer satisfaction that is applied elsewhere in government. If obstructions to usage are not systematically identified and removed, then it should not be surprising that usage of the law is limited to the most knowledgeable and obdurate requesters.
The Scope of the Law
Over time, proponents of RTI law have also come to the view that the scope of such a law should be defined broadly -- that it should be expansive in its conception of the kind of institution, and the kind of record, that should be subject to the right to information. The alternative and more restrictive view is that an RTI law should be restricted to the core of the governmental bureaucracy -- a handful of major departments -- and that it should never be applied to categories of records that contain the most sensitive kinds of information.
Advocates of the more restrictive view commonly argue, for example, that national security agencies should be wholly excluded from an RTI law, or that classified information should be wholly excluded from the law, on the grounds that the release of national security information would obviously be contrary to the public interest.
This argument is based on a flawed understanding of what an RTI law actually does. The mere fact that a national security agency is subject to an RTI law does not mean that all information held by that institution will be disclosed to the public. On the contrary, an agency can still withhold requested information on the basis of particular exemptions within the law, such as the exemption that applies when disclosure would jeopardize national security. (In fact, experience shows that institutions covered by an RTI law apply these exemptions vigorously.) However, the law compels institutions to make the case for such exemptions before an independent referee such as an information commissioner or court. It creates a process to ensure that institutions take the interest in transparency seriously, which experience has shown they will not otherwise do.
A similar response can be made to arguments in favor of the categorical exclusion of whole classes of information, such as national security records. The inclusion of such records within the scope of a law does not mean that they will necessarily be disclosed. All that the RTI law will do is create a process for assuring that decisions to withhold documents are properly considered.
Of course, it is not only national security agencies that are likely to be excluded from RTI laws. There is a strong temptation to exclude government enterprises that are engaged in quasi-commercial activities, on the grounds that they hold large amounts of sensitive information that would be sought by their competitors. Similarly, there are calls to exclude higher parts of government -- ministerial and Cabinet offices -- on the grounds that they hold the most concentrated amounts of information about sensitive political deliberations. But no advocate for RTI would argue for the automatic disclosure of such information. They argue only for the fair process assured by a properly crafted RTI law.
Experience has also shown another advantage of a broadly-cast RTI law: it discourages game-playing by individuals within government. If certain parts of government are known as enclaves that are outside the law, there is a strong temptation to shift activity to those enclaves. This undermines decision-making processes and respect for the law within and outside government.
Public restructuring over the last three decades has also posed a substantial challenge to the operation of RTI laws. The responsibilities of the core departments of government have been reduced as functions have been moved to contractors or other new forms of organization. These are sometimes referred to as "non-governmental" or "private" organizations, and they are excluded from RTI laws on the basis that they are, after all, non-governmental or private. A good example is Nav Canada, which describes itself as a private corporation, and which was excluded at its creation from the ATIA. But this argument for exclusion is tautological. What makes Nav Canada and similar organizations "private" is only the judgment that they should not be subject to accountability mechanisms like the ATIA.
The purpose of an RTI law is to promote accountability for organizations that exercise public power -- by determining the content of public policy, making and applying law, or spending public money. It is the character of the work performed by an organization, and not its structure, that should determine whether it is subject to disclosure rules. And by this standard, it is clear that the ambit of an RTI law should extend far beyond the conventional core of the government bureaucracy.
Principled and Practical Restrictions on Access
Every RTI law contains limitations on the right of access to information held by public institutions. There are two types of limitation. There are substantive restrictions that should be drafted to preclude disclosure where, on balance, it would do more harm than good. And there are administrative restrictions that are designed to manage the burden on public institutions that is associated with processing requests for information. In either case the restrictions should be defensible in principle and easily applied in practice.
The basis on which substantive restrictions should be drafted is now generally understood. Each restriction should identify, with precision, the interest which it is intended to protect. And each restriction should operate only when it can be demonstrated that significant harm to that interest will actually follow from disclosure. To put it another way, it should not be enough that information simply relates to a protected interest. The burden should be on a public institution to show a likelihood of harm.
This is not the end of the calculation. There will be cases where some broader public interest might justify disclosure even though some harm to a specific protected interest would be caused. Government agencies have an understandable tendency to neglect these broader considerations. They worry mainly about the narrower interests that are tied to their agency's mission. A well-crafted law should therefore impose a duty on agencies to account for the broader public interest and disclose information where that broader interest outweighs the harm to specific protected interests.
There is less agreement about the proper design of administrative restrictions, such as application fees, processing fees, and prohibitions on frivolous or vexatious requests. Some advocates of RTI argue that fees are entirely unjustified. But this position ignores the reality that the processing of information requests can absorb substantial resources that might have been applied to other important purposes. A law that fails to acknowledge administrative burdens will also become discredited more quickly within government, encouraging other forms of non-compliance.
We can make a few general statements about the design of administrative restrictions. The first is that it is not acceptable to set fees on the basis of cost-recovery. This is partly because some costs -- such as the cost of retrieving and reviewing records -- are easily inflated because of poor internal practices, and these practices would persist if costs could be passed on in their entirety to the requester. The second is that any fee schedule that attempts to achieve cost-recovery will have the effect of destroying the demand for information entirely. Many classes of requesters are very sensitive to fee changes that seem small to government officials.
It is equally inappropriate to argue that certain fees should be eliminated simply because the cost of collecting them exceeds the actual revenue. The fact that it costs more than five dollars for a government agency to process a five dollar application fee does not mean that the fee is a bad idea. Even a five dollar application fee can encourage an individual to think twice about submitting a request that might cost a few hundred dollars to process.
There is also some virtue in fee policies that do not require the extensive exercise of discretion by officials. Policies that rely heavily on bureaucrat judgment are more likely to be prone to abuse. They are also more likely to be viewed with suspicion by requesters, with the result that more complaints are sent to the information commissioner's office. But there is a tradeoff here as well. Simple rules are more likely to produce unfair results in particular cases. For example, the British RTI law says that central government departments can refuse any request where the cost of responding would exceed £600. But there may be instances where a request cannot be broken into less expensive parts and it would be in the public interest to process it as it stands.
The setting of fees is one area in which policy should be guided closely by experience. The right approach is to establish a fee regime, make allowances within it for exceptional cases, observe its effects carefully, and make adjustments as necessary. Unfortunately governments have tended to take another approach: set fees rigidly; make no provision for researching their impact; and make no plan for adjustments as evidence about their effect becomes available.
Accessible and Timely Enforcement
There is another fact upon which specialists on RTI law are agreed. Governmental institutions are resilient. There are many players, political and bureaucratic, who have an interest in maintaining the status quo. And these players have two advantages in struggles over the actual operation of an RTI law. They have direct control of the machinery of government, and superior knowledge about what is going on within their organizations.
Over time, the resilience of governmental institutions has been made clear in several ways. The first is in the failure of many governments to take the steps necessary for proper implementation of an RTI law. Because governments refuse to train workers, establish routines, and maintain orderly records, the promise of openness is not realized. Requests are ignored, delayed, or improperly answered.
The second evidence of resilience, closely related to the first, is the failure to establish a new "culture of openness" within government. Even if implementation is taken seriously, compliance is with the letter rather than the spirit of the law. Yet more evidence of resilience is found in the development of countervailing mechanisms -- such as new processes for screening sensitive requests and countering bad publicity -- that are intended to squelch the effect of a new RTI law. And finally there is straightforward evasion of the law by shifts in recordkeeping or, in rare cases, by the alteration and destruction of documents.
Similar problems of non-compliance are familiar to scholars who study government regulation of the private sector. RTI law is just another domain of regulation -- with government institutions in the unfamiliar role of regulated rather than regulating entities. In this domain, as in all others, compliance with statutory objectives is far from automatic. Whether statutory objectives are achieved hinges on the design of the enforcement mechanism.
Countries have taken different approaches to enforcement of their RTI laws. A few, like the United States, rely mainly on conventional courts as the avenue for redress where requests for information have been mishandled. Some appoint information commissioners with very strong powers to resolve complaints definitively. And some take a middle path, giving information commissioners the initial authority to investigate complaints and recommend a resolution, but giving final authority on the application of the law to the courts.
It is widely agreed that the first approach is inferior to the latter two, mainly because access to courts requires legal training that most people do not have and cannot afford to hire. There is less agreement about the relative merits of the latter two approaches to enforcement. Many RTI advocates are attracted to the model of a commissioner with the power to issue final orders about the disposition of complaints. It seems to promise quick and definitive justice. But there is a price to be paid for this approach. Precisely because commissioners take on quasi-judicial functions, there is a danger that the process will become more formalistic and unfriendly to complainants who do not have legal training.
When thinking about enforcement models it is useful to take a pragmatic approach. We might think that information commissioners spend most of their time wrestling with cases that raise great matters of policy. This is usually not the case. In many jurisdictions, the main problem is delay by government organizations in acknowledging and processing requests, often because those organizations have failed to take implementation of the law seriously. Information commissioners are often deluged by complaints about delay by other institutions. As a result, their own resources are stretched, the time required to dispose of complaints grows longer, and public institutions begin to feel that the risk of punishment for non-compliance is growing smaller. A vicious cycle of growing non-compliance and weakening enforcement can set in.
A good foundation for effective enforcement is to provide the information commissioner with tools to deal with the large volume of complaints that may arise because of administrative shortfalls rather than differences on the balancing of interests. One approach is to give the limited authority to make binding decisions in cases that involve purely administrative matters, as the Information Commissioner of Canada has proposed. A complementary approach is to give commissioners the authority to investigate institutions that habitually ignore statutory requirements, and to compel those institutions to produce plans for improving compliance.
Whether the powers of a commissioner should be extended more depends heavily on experience within a particular jurisdiction. If institutions have generally complied with recommendations made in cases involving policy questions, rather than problems of administration, then the price paid for a quasi-judicial model -- the formalization of the complaint process -- may prove too high.
The effectiveness of an information commissioner does not turn only on the extent of their power to dispose of complaints. Research has shown that the effectiveness of a commissioner's office is heavily shaped by the attitude and approach of commissioners themselves. Consequently the method of appointing commissioners is very important. An open process of appointment is more likely to produce commissioners who take an energetic approach to enforcement and are regarded as credible regulators by stakeholders outside government.
Similarly, effective regulation can be compromised if commissioners' budgets are set by public bodies that are, at the same time, subject to the law. Several jurisdictions have also found that the long-run health of an RTI system is improved if commissioners have authority and resources to encourage the growth of a stakeholder community -- perhaps by convening conferences of access professionals and requesters, or supporting research on operation of the law.
Room for Boldness
As we have noted, forty years have passed since the debate over access to information law began seriously in Canada. At the time, this was unfamiliar terrain. No one was quite sure how the law would work, and there were many people who worried that it would do serious harm to the system of responsible government. The final text of the Canadian law, with its many caveats and limitations, is a product of the uncertainty that hung over the drafting process.
Today a large amount of this uncertainty has dissipated. Around the world, our understanding about the importance of governmental openness has advanced substantially. We know much more about what works, and what does not work, in the domain of RTI law. And we also know that system of responsible government is resilient. Fears that the constitutional order would be up-ended by the adoption of this sort of legislation were overblown. There is a world of experience to be drawn upon while updating the Access to Information Act, and no good reason why it should not be done with boldness.
About the Author
Alasdair Roberts is the Jerome L. Rappaport Professor of Law and Public Policy at Suffolk University Law School in Boston, Massachusetts. He is a Fellow of the U.S. National Academy of Public Administration and co-editor of the scholarly journal Governance. A Canadian citizen, Professor Roberts has a law degree from the University of Toronto and a PhD in Public Policy from Harvard University. He taught for several years in the School of Policy Studies at Queen's University. His books include Blacked Out: Government Secrecy in the Information Age (Cambridge University Press.)