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Newfoundland and Labrador
Access and Privacy Workshop 2010
Convergence of Freedom of Information Regimes
and Open Government Initiatives
Interim Information Commissioner of Canada
St. John’s, Newfoundland and Labrador
May 17, 2010
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Thank you for inviting me to speak to you.
Recently Michael Geist, an expert in the field of internet and e-commerce law, wrote an article entitled, “Open government moving in parallel but opposite directions”. In it, he discusses the systemic problems encountered in obtaining information through formal access to information systems and compares the process with the unofficial, citizen-driven initiatives to make government information accessible. He concludes that “it may be time to place the two issues on the same track.”
Open government is very much connected to access to information and proactive disclosure. However, it extends beyond these concepts to an entirely new way of looking at government and the participation of citizens in it. Where are we now? How can we achieve the ultimate goal of convergence of the official and unofficial tracks?
My intention is to explore first how our laws and associated jurisprudence currently handle the complexity of accessing information. How our laws handle it 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.
In this context, jurisprudence becomes the key factor in sustaining the fundamental principles of access and influencing how our access regimes evolve.
I also want to discuss the benefits associated with an environment where information is stored electronically and where information is disclosed proactively, 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 routinely disseminated because it can be, thanks to technology.
Proactive disclosure is an essential component of the broader concept of open government. Open government is predicated on a system in which government records are available to citizens in open standard formats that permit unlimited use and re-use of the information. This facilitates public engagement and participation, leads to innovation, promotes greater transparency and accountability and, ultimately instils trust in government.
We are constantly learning about new open government initiatives emanating from both the public and private sectors. I would like to take this opportunity to describe some of the national and international projects and enumerate the basic principles that have contributed to their success.
What does access to 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 information?
In 1997, the Supreme Court recognized the public’s right to government-held information as a quasi-constitutional right. Judges agreed that it is crucial to the democratic system and enables meaningful participation in a just and free society.
In Canada, we have laws – fourteen in all – that provide a right of access to information held by government. How does our legislation measure up to today’s standards? My Office enumerated twenty principles that typically characterize progressive international freedom of information regimes.
In addition to prescribing access to government information as a constitutional right, they include:
-the obligation to publish proactively;
-comprehensive coverage of public bodies and their records;
-use of injury tests;
-broad public interest overrides;
-independent review of refusals with order-making power; and
-a duty to document.
When Canadian laws were measured against these standards, the results varied significantly. Quebec and British Columbia scored twelve and ten points respectively, while Newfoundland and Labrador received seven points. On the lowest end of the scale, the federal Access to Information Act garnered only two points. It is clear there is a serious need for improvement in Newfoundland and Labrador as well as at the federal level.
In an era of rapid data dissemination that transcends both national and international borders, we should aim for greater compliance with international standards as a significant step toward advancing convergence.
On a practical level, the reactive mode of gaining access to government information has proven to be costly, time consuming and out of step with the expectations of citizens, particularly the expectations of tech savvy generation. Almost ten years ago, the federal government estimated that it cost institutions, on average, between $1,400 and $2,200 to process each request.
The cost included the retrieval of information to respond to requests, an exercise that often produces huge volumes of records; many of them duplicate copies of the same information because of e-mail chains and the electronic “carbon copy” facility. The cost included the time required to review, redact, duplicate and ship the records.
From the perspective of applicants, the time taken to respond to their requests is excessive and unacceptable. Our recent report card exercise evaluated the performance of twenty-four institutions which represent eighty-eight percent of access requests received by the federal government. Average completion times ranged from a low of thirty-four days to a high of one hundred sixty-three days.
From an oversight perspective, the reactive mode poses challenges when investigating complaints. For example, we have an antiquated fee scheme that was written more than twenty-seven years ago to support a paper-based law.
In investigating fee complaints related to information in electronic format, we find instances of what appear to be exorbitant fees being assessed by institutions to create records from information contained in databases.
Sometimes the fees are reasonable because of the work required to manipulate the data into a reasonable form. However, there are other times where the fees imposed may be used as a deterrent to providing access.
In addition, the process of investigating complaints about no records, missing records or incomplete searches, which now account for thirty-five percent of our refusal complaints, has become more complex. Inadequate information management policies and a lack of adherence to basic information management principles result in complaints involving huge volumes of records containing many versions and duplicates of the same information to the other extreme of there being no relevant records at all.
Importance of Jurisprudence
Jurisprudence both illustrates the tensions inherent in a reactive mode of access and influences how legislation is interpreted across jurisdictions.
At the federal level and in Newfoundland and Labrador, we are engaged in several landmark cases that highlight the importance we place on developing access to information jurisprudence and standing up for, through legal channels, sound application of the law.
Control of records and whether Ministers are considered officers of institutions are at the heart of a long standing case regarding refusals by National Defence, Transport Canada, the Royal Canadian Mounted Police and the Prime Minister’s Office to provide the agendas of the Prime Minister, agendas of a Minister and minutes and documents about meetings.
Subsequent to decisions by the Federal Court and the Federal Court of Appeal, the Information Commissioner was granted leave to appeal the Federal Court of Appeal’s decisions to the Supreme Court of Canada. The date for the hearing is tentatively scheduled for October 15, 2010.
In the case of The Canadian Broadcasting Corporation v. The Information Commissioner of Canada, the CBC is challenging our legal authority to compel the production of records for the purposes of an investigation. The Corporation claims that the records are excluded from the right of access under the Access to Information Act, and that even the Information Commissioner cannot demand access. No court date has been set.
In a similar case in Newfoundland and Labrador, the government contended that an Ontario Provincial Police report into the actions of a senior Royal Newfoundland Constabulary officer fell outside the purview of the law.
This meant the Commissioner could not determine whether the refusal of access to the report was appropriate. Justice Fowler ruled the Commissioner had no right to examine the records. He recognized the decision weakened the power of the Act and stated that it was up to the Legislature to change it.
I understand Commissioner Ring is not appealing the decision but will pursue the matter as part of the upcoming review of the Act.
Also in Newfoundland and Labrador, there is a recent court decision that would severely limit the Commissioner’s ability to conduct an independent review of documents pursuant to a complaint.
The complaint involved a public body’s blanket claim of solicitor-client privilege for all records responsive to the request based on the fact that the records had been forwarded to legal counsel for review. The Court upheld the public body’s refusal to provide the records for the purpose of the Commissioner’s investigation because they contained privileged information. Commissioner Ring is appealing this decision.
Finally, the Information Commissioner was an intervener in The Criminal Lawyers’ Association v. Ontario (Public Safety and Security).
The case involves two issues.
The first is whether a provision in Ontario’s freedom of legislation infringes on the right to freedom of expression guaranteed by paragraph 2(b) of the Canadian Charter of Rights and Freedoms.
The second issue is whether, because the public interest override does not extend to information exempted on the grounds of solicitor-client privilege or law enforcement, the provision offends the constitutional principle of democracy.
Almost two years later, the Supreme Court of Canada has not yet rendered its decision.
The claims inherent in these cases have serious implications for our ability as oversight bodies to perform a complete and informed examination of records during the course of an investigation. They strike at the core of one of the most fundamental principles of freedom of information – independent oversight.
Transformation to Proactive Disclosure and Open Government
Many of our statutes were written before the computing world was fully contemplated or understood and long before the advent of social networking.
Most were written before citizens began to exert ever increasing pressure on governments to transform their traditional, reactive information dissemination methods to a mode that facilitates proactive disclosure.
Nevertheless, it is my view that our legislations are sound in terms of their basic principles. Similar to the federal law, Newfoundland and Labrador’s Act to Provide the Public with Access to Information and Protection of Privacy states that:
This Act does not replace other procedures for access to information or limit access to information that is not personal information and is available to the public.
This purpose statement certainly presents no impediments to adopting a proactive regime, particularly as Canada is one of the most connected countries in the world.
Information Commissioners have become advocates for the movement. In his submission to the Special Committee to Review the Freedom of Information and Protection of Privacy Act, former British Columbia Commissioner David Loukidelis made a recommendation to amend the Act “to require public bodies to use prescribed access design principles in designing and adopting any information system or program.”
In her recent annual report, Ontario’s Information and Privacy Commissioner, Ann Cavoukian, articulates seven fundamental principles in support of a comprehensive access by design program.
A few weeks ago, I appeared before the Standing Committee on Access to Information, Privacy and Ethics to discuss proactive disclosure and open government. Based on reviews of and discussions with other jurisdictions that are leading the open government movement, I identified five principles that were common to the success of their endeavours.
To lead the paradigm shift from reactive to proactive disclosure, and ultimately to open government, I recommended they develop a “made in Canada” strategy that would reflect the unique characteristics and informational needs of our society.
I proposed five overarching principles:
First, there must be commitment at the top to lead a cultural change conducive to open government. At a minimum, this involves issuing an official declaration on open government with clear objectives. The commitment also entails assigning responsibility and accountability for coordination, guidance and deliverables. It requires prescribing specific timeframes.
Second, there should be broad public consultations. Citizens should be encouraged to participate using electronic means. It is critical to determine what government information the public wants and how they want to receive it.
Third, information should be made accessible in open standard formats and rendered re-usable. Information should be derived from various sources and integrated to reduce the silos inherent in bureaucratic structures.
Fourth, privacy, security, Crown copyright and official language issues need to be addressed and resolved.
Finally, open government principles should be anchored in statutory and policy instruments.
At what stage are we in Canada and what lessons can we learn from colleagues in other jurisdictions?
In Canada, various open government initiatives of differing scopes are occurring at different levels but without the benefits of central coordination and guidance. How can we influence a convergence of freedom of information regimes and open government initiatives?
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 officials above a certain level to post, on-line, the specific details of their travel and hospitality claims.
A few years later with the development of more sophisticated systems and programs, the posting of this information, along with other information including provisions in contracts and grants and contributions, is now done reasonably well by government institutions.
Unfortunately, in the fast moving information world of 2010, these attempts to open up government information do not represent the wave of the present much less the wave of the future.
However, there are signs of progress. Natural Resources offers free access to databases that once entailed substantial user charges. Its GeoConnections Discovery Portal is a metadata catalogue that enables users and data suppliers to access, evaluate, visualize and publish Canadian geospatial and geoscience data products and Web services.
Citizenship and Immigration Canada is now providing public access to many of their massive immigration databases. Their objective is to disseminate the most popular data sets to the public without requiring recourse to the Access to Information Act.
National Defence and the Atlantic Canada Opportunities Agency are making their disclosure logs of access to information requests available. My Office is revamping our public website to include access disclosure logs, internal policy documents and research and statistical reports.
Several provincial governments have taken the lead in migrating their programs and services to online portals and rendering them interactive. British Columbia has created a research data warehouse which draws information from multiple government sources, thereby removing data from their traditional silos.
Newfoundland and Labrador developed the first Internet based data retrieval system to view and analyze social and economic indicators of well-being.
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.
In municipalities, there are a significant number of practical applications being developed by both the cities and citizens. For example, Edmonton, Nanaimo, Toronto and Vancouver, 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. Ottawa is also moving forward to capitalize on new technologies to expand its service offerings.
It is at the grassroots level where many of the most innovative initiatives are occurring. These initiatives are an indication of the types of information Canadians actually want.
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 expert, described new websites mounted by what he called “digital democratic activists”. He cited, as an 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. This site provides a breakdown of Members of Parliament statistics, including the number of words spoken in a session, the frequency with which Members vote against their parties and Members’ attendance records.
There is a great deal to be learned from the experiences of other countries in implementing open government initiatives.
During the past year, the United States launched its much anticipated Open Government initiative, the British government made expansive commitments to open government under its Smarter Government umbrella and the Australian government 2.0 Task Force issued a comprehensive draft report.
Significantly, the prominent features common to the inception and evolution of these initiatives, notably in the United States and the United Kingdom, is that they are based on strong leadership, broad public consultation and sustained by central repositories of data supported by commonly available tools to access and leverage the data sets.
The American Open Government initiative illustrates the impressive progress that can be achieved when it is being lead by the President. In discussions with our American colleagues, they emphasized the value of leadership and commitment from the top.
They referred to clear and unequivocal objectives. 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 be collaboration so that officials work together and with citizens as part of doing their job of solving national problems.
On a practical level, the Open Government initiative 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.
Our colleagues also stressed the importance of setting firm milestones. The Obama administration established multi-year targets and an associated evaluation process to measure progress. 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.
Leadership from the top also characterizes the British government’s commitments as part of its Smarter Government initiative. It adopted public data principles based on the release of public data sets which would be made available at no charge. The government 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.
In my view, Canada must move quickly to embrace open government. It is critical that the government advance the convergence of freedom of information and open government as being in the best interests of the country.
The traditional reactive mode of disclosing information has proven to be inefficient, costly and often confrontational.
We must modernize our legislation to avoid it moving in parallel but opposite directions to open government.
We must harness technology to proactively disclose information in the name of transparency.
In doing so, we will encourage the participation of citizens, particularly that of our younger citizens, in the democratic process.
The transformation can be founded on the principles of strong leadership, public consultations, enhanced accessibility and a commitment to resolve statutory and policy issues.
What is our role in this transformation? 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 and engagement.