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Access and Privacy Conference

Keynote Address

Suzanne Legault
Information Commissioner of Canada

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Thank you and congratulations to the organizers of this great conference.

It is always a pleasure to attend this conference and meet not only with my provincial and territorial colleagues but with all of you.

Each, in your own way, contributes to furthering the fundamental rights of Canadians to access information and to the protection of their privacy.

As we start the third day of this conference, we will have had many opportunities to discuss the emerging trends in the access and privacy world. We will probably have discussed the impact of the digital revolution,

the demands of the digital generation,

the globalization of markets, the resulting globalization of issues,

the municipal, provincial, federal and international open government movements and its potential positive impact on the proactive disclosure of information.

But as I was preparing for this conference I decided to review some of the past information commissioners' perspectives and I thought you might find interesting the following remarks from former Information Commissioner John Grace in his 1994 Annual report where he penned some remarks on the potential impact of the

Information Highway
on access to information.

'There are encouraging possibilities here of a sea-change in our philosophy of freedom of information from a request-driven approach to a dissemination approach. But we are not witnessing the end to the struggle over government secrecy.

All governments, including ours, have touted the information superhighway as integral to political reforms. Its benefits are seen to be as various as greater government integrity, openness, privacy, accountability and affordability of government, improved services, decreased deficits, economic growth and employment.

The superhighway, it would seem, is really the yellow brick road to Oz!

Warning: No matter how cleverly the information highway is finally constructed and how effectively its traffic runs in both directions, it will never be the answer to an information commissioner's prayers.

The dreary problems and frustrations faced today by many a seeker of government information will not be swept away by mere cleverness and the ingenuity of wondrous new machines. No, the key to opening up government is not better applied science; it is somehow changing the encrusted, timorous old attitudes which see openness as a threat, not an opportunity for both citizens and governments.

Routine access to routine government data may become, well, routine. Some government data bases may be newly, marvellously and universally accessible. More, certainly, should be. But no technology devised by man or woman can make governments fess up or make unnecessary the arts of investigation, persuasion and mediation practised by any information commissioner's office.

No technology, after all, is much likely to be permitted by governments to expose governments' vulnerable dark side. The good stuff - information truly politically empowering: the mix-ups, foul-ups, cover-ups, the options, advice, evaluations and trade-offs - will always be fought over because governments will always resist'.

Well was John Grace right?

The Canadian Journalists for Free Expression stated in their annual Review of Free Expression that [quote] "it's never been harder to pry information essential to a functioning democracy out of the government bureaucracies." Notably, they awarded the federal government an "F minus" on its administration of access to information.

So are the journalists right?

In my view one of the best ways to measure the health of an access to information regime is to look at two key indicators.

Timeliness of responses and the amount of information disclosed.

One would think intuitively that mature access to information regimes, such as the ones we have in Canada, would show improvements year over year. That the advent of technology would have led to some progress since the 90s when John Grace was speculating on the long term effects (or not) of the

Information Highway
on access to information. And so the journalists should be wrong. And yet the numbers tell a different story - at least at the federal level.

(Slide)

In terms of timeliness, federal institutions used to provide answers to requests within the 30 day time limit in 69% of cases in 2002 compared to 56% in 09-10.

In terms of amount of disclosure, statistics also point to a substantial reduction in the amount of information being disclosed. Over the past ten years, the number of cases where all information has been disclosed in full has decreased from 41% to 16%.

The exercise of discretion in determining what information to disclose has been skewed toward greater protection, most notably in cases related to international affairs and national security. The percentage of time it has been invoked has increased threefold since 2002-2003.

And it looks like the situation in Alberta is just as dismal according to Commissioner Work in his latest Annual Report, and according to Graham Thomson of the Edmonton Journal, who reported that in 1995, 44% of requests resulted in at least partial disclosure. In 2009, that number has dropped to 15 %.

So …Commissioners and journalists are right.

Advances in technology and the other key drivers that influence the world of access have yet to solve the struggle over government secrecy.

So what should we do?

As Irene Hamilton, the Manitoba ombudsman, will tell you this afternoon during her session and as Commissioner Work emphasizes in his Annual report, there are many complicated and interrelated components to a well functioning access to information regime and leadership from the top is usually one of the best catalyst to foster a culture of openness. I, too, have advocated many times and in many reports already on the necessity of leadership from the top.

But even with great leadership from the top, as we have seen in the US with President Obama, implementation can lead to serious secrecy regressions such as the case of political interference at the US department of homeland security.

My experience so far as Information Commissioner as lead me to believe that it is time to speak about the leadership of access professionals and the pivotal role that you play in fostering a culture of openness within public bodies.

You truly are, in my view, the front line leaders. And your leadership has the potential to be the key agent of change needed for the institutional and political shift towards openness.

By exercising your duty to assist the requester and providing complete and timely access without regard to the identity of the requester, by exercising discretion in favour of disclosure at all times, and perhaps most importantly, by resisting improper directions, either by political or senior public officials that seek to delay or reduce the amount of disclosure to which the requester is entitled.

As you may have seen from our Special Report this year on political interference,

it takes tremendous courage and leadership to say no to political or senior public officials, but this is your duty.

I urge you to rally together as a group of professionals and enlist your professional associations such as CAPA, CAPAPA, l"AAPI in Quebec, and come together as a group to resist undue pressure.

From my own perspective as Commissioner I was extremely disquieted by the pressure that was brought to bear on access professionals at Public Works and how all but one followed instructions that led them to circumvent the Federal Act.

So my message to you this morning is really the following. You are the true leaders and the ultimate gate keepers of the rights of access.

As Chantal was saying yesterday the true boundary now is the exercise of control.

And governments want to remain in control of the information that is disseminated to Canadians.

Access professionals need to stand strong and united and ensure that Canadians get access to the information that they are entitled to - free of any interference.

I have heard many people telling me that they feel that they have no choice, that their career prospects will be limited if they oppose political or bureaucratic pressures.

My answer is you have the power to say no - indeed you have the duty to say no.

You should document and denounce any attempts to circumvent your respective legislation and legitimate disclosure.

Create an official paper trail in your access files, send a note to the head of the institution, speak to your colleagues in the access field and speak with one voice. You are not alone. You hold the power and the professional knowledge on the application of the act.

The title of this conference is ascent. I would suggest that you should retitle it to Conquer rather than ascent. You truly hold the balance power as a group and you will conquer.

You are the true agent of change.

As Ghandi said:

My people are marching - I must follow.

It is no longer about leadership from the top. What we need is leadership from the ground up. You are the real front line leaders in access to information in Canada and you will conquer if you stay true to your principles and your beliefs - and you need to do so because Canadians need you to do so.