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Association sur l’accès et la protection de l’information
April 20, 2010
Shifting from Reactive to Proactive Disclosure
By Andrea Neill
Assistant Information Commissioner of Canada
I want to thank the AAPI for inviting the Office of the Information Commissioner to take part in this important conference. Thank you for your warm welcome. It is always a treat to visit one of the most beautiful and unique cities in the world and dear to my heart as many of my ancestors settled nearby in St-Romauld.
Today, I wish to talk to you about the challenges we face in dealing with the issue of providing access to e-Information. My intention is to explore first how our laws handle the complexity of accessing e-Information. How our laws now handle accessing information is fundamentally reactive and reflects the traditional modus operandi of the public sector. It is reactive in the sense that access is granted only after someone asks for it.
I also want to discuss the benefits associated with an environment where information is stored and disseminated electronically and where information is routinely disclosed, with the exception of that which governments must protect because it poses a risk of injury to a public or private interest. It is an environment where information is made available because it can be, thanks to technology. E-Information constantly evolves and, free from the confines of ink on paper, lends itself to being proactively disclosed.
Every day we learn about new and exciting open government initiatives both at the public and private sector levels. I would like to take the opportunity to enumerate some of the national and international projects which I believe are currently having, and which will continue to have, a profound impact on how we all conduct business.
Finally, I want to pose the challenge of how we can foster the shift from reactive to proactive disclosure within the context of rapidly evolving technologies.
Accessing e-Information using the access laws or the reactive mode
We all know that e-Information is the most valued commodity in our society. We know that governments are custodians of huge volumes of it. So what does access to that government-held information look like when we examine the reactive mode of gaining access? How does our law work when it requires an individual to ask for e-Information?
In 1997, the Supreme Court of Canada recognized the public’s right to government-held information as a quasi-constitutional right. Judges agreed that it is necessary and crucial to the democratic system and enables meaningful participation in a just and free society. International freedom of information regimes also include the constitutional right to government information as one of their basic principles.
At the federal level in Canada, we have a law that provides meaningful access to information held by governments. All provinces and territories have similar laws – fourteen in all. Not unlike many countries, our legislation was written before the computing world was fully contemplated or understood. Our law was written in the late 1970s and adopted in the early 1980s. That was before the personal computer and the BlackBerry.
Fast forward a few decades. Now we have e-Information being created and stored, archived and backed-up by a multiplier that we cannot accurately calculate. What does this mean for those of us in the access to information world? The exponential amounts of information created poses obvious problems associated with, for example, finding the right information relevant to an access request, or with retrieving it from an overburdened and often badly organized archival system.
Our legislation is essentially sound in terms of its principles. According to section 2:
This Act is intended to complement and not replace existing procedures for access to government information.
Even in the1980’s, federal drafters’ attempted to capture the concept of accessing e-Information. Their language is not perfect but it can be workable.
Section 4(3) informs government that just because the information is stored digitally as opposed to on paper, it still has to produce the information even if that digitally-stored information requires manipulation prior to getting it into a state where it can be released. Consequently, if the information is, on its own, not even a record because it cannot be isolated as such, the law still requires the government to manipulate the information so that it becomes a releasable record. Without this provision, we might not have any meaningful access to the vast volumes of e-Information that exist.
At the federal level, there have been only very modest attempts at proactive disclosure. Almost ten years ago, the government issued a policy requiring all bureaucrats above a certain level to post, on-line, the specific details of their travel and hospitality claims. A few years later, provisions in contracts and grants and contributions is now done well by government institutions. Unfortunately, in the fast moving information world of 2010, these attempts do not represent the wave of the present much less the wave of the future.
Clearly, there are no legislative impediments to advancing proactive disclosure. However, it is our view that, in the context of today’s technology, the legislation is in serious need of modernization if we are to fully realize the advantages that technology has to offer.
However, there are signs of progress at the federal level. For example, Citizenship and Immigration Canada announced recently that the most requested statistics would be posted on their website, without people having to make access to information requests. National Defence and the Atlantic Canada Opportunities Agency are making their disclosure logs of access to information requests available. Our Office is revamping the public website to include access disclosure logs, internal policy documents and research and statistical reports.
Moving toward proactive disclosure of e-Information
How do we move toward proactive disclosure of e-Information? What basic principles are required to support it? What are the primary objectives? Which jurisdictions are leading the way and what can we learn from them? Finally, on a practical level, what can we, as information practitioners, do to facilitate and advance the cause of proactive disclosure?
Models of progressive legislative regimes make reference to the duty of governments to inform citizens and disseminate information. For example, the Commonwealth Secretariat developed the Commonwealth Freedom of Information Bill (Part II) that calls on public bodies to publish certain information about their functions, decision-making processes and recommendations.
The Atlanta Declaration of 2008 also calls for a “positive obligation on public institutions to disseminate information related to their core function.”
During the past years, several countries and jurisdictions within Canada, including Quebec, have made incredible strides in developing and implementing open government initiatives. The United States introduced its much anticipated Open Government Initiative, the Australian government 2.0 Task Force issued its draft report, and the British government made expansive commitments to open government.
The American open government initiative illustrates the impressive progress that can be achieved when it is being lead by the President. The objectives are clear. The government is opening "doors and data" to all citizens to promote transparency, participation and collaboration. Transparency is critical to provide citizens with information about what their government is doing so that it can, in turn, be held accountable. It encourages journalists, researchers, government officials, and the public to scrutinize and thereby improve how government works on behalf of citizens. Participation is essential in that the government must actively solicit expertise from all sectors so that it makes policies with the benefit of the best information available. Finally, there must collaboration so that officials work together and with citizens as part of doing their job of solving national problems.
On a practical level, it requires agencies to publish information online in an open format so that it can be retrieved, downloaded, indexed and searched by commonly used web search applications. An open format is one that is platform independent, machine readable and made available to the public without restrictions that would hamper re-use of that information. The lead is the White House Office of Management and Budget, in collaboration with Chief Technology Officer and Chief Information Officer.
The Obama administration set firm milestones. The consultation process, the initial staged release of agency datasets and a progress report to the American people had to be completed by December 2009, only one year following the President’s inauguration. Major projects to date include:
Recovery.gov was developed to reduce costs and eliminate waste, fraud and abuse and to demonstrate the impact of investments and stimulus dollars. It is interesting to compare this site with the Government of Canada’s site regarding information on the stimulus package.
Data.gov is a website that makes economic, health care, environmental and other information available in multiple electronic formats.
Entrepreneurship.gov and business.gov are comprised of data intended to drive entrepreneurship and economic growth by increasing access to small business grants and licensing opportunities and by connecting entrepreneurs to useful resources and to one another.
The British government has also made new open government commitments as part of its Smarter Government initiative. It adopted public data principles based on the release of public data sets available at no charge. It promises to release more public information, including health, weather and traffic data sets, under open licences that enable re-use, including commercial re-use.
The Australian government 2.0 Task force issued its draft report on how to make government information more accessible and usable. The Task Force's starting premise is that public sector information is a national resource and that releasing as much of it on as permissive terms as possible will maximize its economic and social value and reinforce a healthy democracy. It recommends that public sector information should be free, based on open standards and freely re-usable. Since Australian government data is subject to Crown copyright restrictions similar to those in Canada, the Task Force recommends releasing government data under a “creative commons attribution licence”. This means the government retains copyright but freely licenses the work for re-use with no need for further permissions or compensation. Only attribution is required. The approach provides an efficient means of freeing up government works without the requirement for legislative change.
Many provincial and municipal governments have been launching proactive disclosure initiatives.
As you know, in November 2009, Quebec’s new regulation, the Règlement sur la diffusion de l’information et sur la protection des renseignements personnels came into effect. It requires fifteen categories of government information to be proactively disclosed to the public by means of the government’s websites. The categories include internal organizational charts, documents of public interest disclosed pursuant to access to information requests, and studies, research and statistical reports of interest to the public. The regulation encompasses a broad range of institutions from provincial ministries to municipalities, school boards and health and social service agencies.
Our Office often cites the regulation as an example of proactive disclosure. Proactive disclosure in British Columbia is a component of a more comprehensive e-democracy model. The model involves providing raw data and policy documents to citizens and permitting them to use interactive tools to participate in the actual policy making process.
In municipalities, there is a significant number of exciting developments. For example, Vancouver, Nanaimo, Edmonton and Toronto, have mounted online data catalogues containing information regarding council meetings, fire and rescue response reports, garbage collection and public transit schedules and building permit statistics. Many of these, such as property searches and restaurant sanitation reports, are supported by online search engines that allow the public to retrieve and manipulate the data.
It is at the grassroots level where many of the most innovative initiatives are occurring. In a recent Globe and Mail article entitled “If you won’t tell us about our MPs, we’ll do it for you”, David Eaves, an internationally recognized open government guru, described new websites mounted by what he called “digital democratic activists”. He cited, as one example openparliament.ca, which enables the public to see what Members of Parliament say, explore how they vote, and search related press stories. Another example is howdidtheyvote.ca [website no longer available]. This site provides a breakdown of Members of Parliament statistics, including number of words spoken in a session, frequency with which Members vote against their parties and attendance records. It will be interesting to gauge the impact these democratic activists exert on our Parliamentary system and how they might the rules of engagement with our elected officials.
The path to greater access
My intention is to leave you with a sense of what I think are the most important things to do when dealing with e-Information. While Canada moves more and more towards proactive disclosure, our recommendations of what governments need to do with respect to e-Information have just as much to do with the reactive mode as the proactive mode.
First, there is a need for better information management systems, policies and procedures. Second, officials involved in the access to information process must understand the fundamental principles and requirements of the legislation and associated policies and be aware of citizens’ expectations of what information should be available to them and how it should be disseminated. Equally important, requesters must be aware of their rights and how to exercise them.
Lastly, and what I want to emphasize the most, is that we need to influence governments to adopt practical information disclosure policies, practices and tools. One tool being promoted is Access Impact Assessments.
They can be as instrumental in building an awareness and appreciation of access principles as PIAs have been in the privacy field by identifying opportunities to proactively disclose information as government programs and services are developed and implemented. An early proponent of the concept of Access Impact Assessments is Ontario’s Information and Privacy Commissioner, and more recently, the former Information and Privacy Commissioner of British Columbia.
When we approach any publicly-funded project with a view of evaluating what impact the program will have in terms of the public’s ability to access the information, we build programs that ensure better citizen participation. We build more efficient systems. In turn, these systems disseminate information to the public more easily which reduces the time, effort, resources and costs associated with releasing information. It’s a simple concept that could, in the end, save millions of dollars and lead to a true shift in government and public participation through the sharing of information.
The traditional reactive mode of disclosing information has proven to be inefficient, costly and often confrontational. Technology and e-Information now afford public institutions the opportunity to directly engage citizens, to proactively disclose information and to support the renewal of the social contract between government and citizens.
In closing, we can all be the 21st century Diogenes. Diogenes was an Ancient Greek philosopher who used his lantern to lead people on the path to wisdom. As practitioners in the field of freedom of information we can be that guiding light on the path to promoting meaningful citizen participation.