Address by Suzanne Legault, Information Commissioner of Canada Congress of the Association sur l’accès et la protection de l’information (AAPI)

Quebec City, Quebec
April 25, 2012

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Good day to you all. It is always a great pleasure to come to Quebec City. Mesdames Corriveau, David and Girard, allow me to extend to you my sincere thanks for your invitation. I have a great deal of admiration for the work done by the Association sur l’accès et la protection de l’information. Mr. Gautrin and Ms. Dussault, I will be following the report’s recommendations closely, as well as the repercussions on the Quebec government administration and Quebec society.

For a few years now, not a week has gone by without talk, here or elsewhere, about some new jurisdiction that has ratified a law recognizing the right to access government information or a new open government initiative. Indeed, nearly 90 countries now have a legislative framework permitting some degree of access to government information.

Australia, Great Britain, the United States, Canada, and the cities of Vancouver, Edmonton, Ottawa, Toronto, and now Montreal and Quebec City have launched open government initiatives. Last week in Brasilia, Ms Hillary Rodham-Clinton announced that 73 countries are now members of the “Open Government Partnership,” which is presently co-managed by the United States and Brazil. We are being told that the digital transparency and information-sharing movement is now under way, and that data openness is an important democratic and civic issue1

As my Indian colleague Shekhar Singh, for whom I have great admiration, so aptly put it: “Transparency is an idea whose time has come.”

A return to sources

Since you have launched your conference’s debate on the balance between privacy and the open society, allow me to remind you that, as early as the 18th century, Jeremy Bentham, the famous lawyer and philosopher, made himself the advocate of total transparency as the solution to public accountability and morality. One of the achievements of his utopianism, which was considered dangerous at the time, was the idea that parliamentary debates should be conducted in public. The governments of his time however, took the position that public parliamentary debate would be damaging to national security.

So this principle of openness has been around for at least three centuries. However, technological breakthroughs have transformed the relationship between state and citizen. In 2012, the information held by governments is regarded as a national resource. It ought to be disclosed promptly and proactively. The citizen expects a dialogue based on collaboration with the government. As ours is a knowledge-based economy, this increased collaboration has the potential to promote innovation. In a context of budgetary restraint, this increased collaboration has the potential to make program and service delivery more efficient. Open government compounds the obligation to be accountable and inspires confidence in government. These are among the many promises of open government.

But in fact, I would suggest to you that the development of an open government, a government 2.0, a democracy 2.0, in fact, is more dependent on the health of democratic institutions and our political leadership than on technological breakthroughs.

On this point, the thoughts of Information Commissioner John Grace remain just as relevant today as they were when the Information Highway was being built in the 1990s:

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.

Access legislation is essential

Access to information legislation will therefore always remain a vital tool in a context of open government.

Among the great successes of access to information was the coming into force in 2005 of the British statute that made it possible for Ben Leapman and other Sunday Telegraph journalists to bring to light the abusive spending of a certain number of parliamentarians.

Many members of Parliament had claimed amounts for the purchase of furniture and TV sets, for repairs, for interest on loans, and so forth. One member even claimed $2,900 to offer his ducks a “floating island.”

The denouement of this case was long and tortuous. During the court action, members even tried to amend the British statute to escape being subject to it. In the end, the Speaker of the House was forced to resign. Many members were not re-elected. Substantial sums were reimbursed to taxpayers. Certain charges of fraud were laid.

In India, a study by a number of Yale University researchers established that making an access to information request is just as effective as a bribe to obtain services to which citizens are entitled from the public service. Construction in villages suffered a major reversal in Rajasthan when all the funds spent for the work and for supplies were disclosed on the walls of the houses.

Canada

Access to information has also won some decisive battles. In at least three major cases, access requests have led to commissions of inquiry which have served to shed light on important issues or breaches and to bring about necessary corrections.

In 1997, in the contaminated blood bank case dating back to the 1970s, the Krever commission of inquiry submitted 50 recommendations, giving rise among other things to the creation of a system for controlling blood transfusions. The inquiry also confirmed that certain documents had been deliberately destroyed in violation of the public’s right of access. Justice Krever declared that “the public must have access to information concerning the policy, management and operations of the blood supply system and be represented in decision making …“2

Also in 1997, the Commission of Inquiry into the Deployment of Canadian Forces in Somalia submitted its final report.3 This inquiry was triggered by the murder of a young Somalian at the hands of Canadian soldiers and by allegations that essential information requested by a journalist had been held back or falsified.

The conclusions of these two inquiries led in March 1999 to the addition of sanctions to section 67.1 of the Access to Information Act. Henceforth, anyone who destroys, alters, falsifies or conceals a record, or who directs anyone to do the same, is liable to a term of imprisonment of up to two years or a fine of up to $10,000.

Ten years later, another access to information request was to lead to the famous sponsorship scandal. The Gomery Commission was charged with investigating allegations of corruption in the management of the federal sponsorship and advertising program. Justice Gomery determined that senior officials and ministers do not always respect the spirit of the law, are tardy in responding to access to information requests, and neglect to document decisions. His final report reminded us that”an appropriate access to information regime is a key part of the transparency that is an essential element of modern public administration”.4

The sponsorship scandal led to the defeat of the government and to elections on the theme of accountability and transparency.

Last year, we closed an investigation into allegations of political interference at the Department of Public Works. In this case, I concluded that a member of the minister’s office did indeed impede the disclosure of documents by ordering certain public servants to take up the document for disclosure that had been prepared by access professionals for disclosure and to release only part of it. This case was referred to the RCMP.

An effective, modern access statute is therefore one of the cornerstones of an open government.

In 2013 the federal Access to Information Act will be 30 years old. Since 1977 there have been about 30 attempts—all fruitless—to reform or modernize it. A good many jurisdictions have adopted access to information regimes that are more progressive or more modern than ours. And yet Canada was one of the precursors. The Centre for Law and Democracy ranked our statute 40th in its comparative international analysis.

Our investigations in recent years have demonstrated not only the obsolescence of the statute, but also a number of deficiencies in it which may well impede or hamper the development of a truly open government that is receptive to the needs of its citizens and its economy and in step with other administrations.

We have therefore initiated a detailed review of all of the provisions of the Act, comparing them to other jurisdictional territories. We are going to consult stakeholders on certain specific issues, and then compile the results in preparation for a report to Parliament. The process will be announced at the appropriate time, and I invite all of you to take part in it.

Other conditions must also be present to facilitate an open government.

In September 2010, the information and privacy commissioners proposed a strategy to facilitate the transition from reactive to proactive disclosure. This strategy is based on five major principles:

  • a clear commitment on the part of government authorities and ongoing public consultations;
  • free or minimal-cost dissemination of data that is comprehensible and machine-readable;
  • respect for privacy, security imperatives, official languages and copyright; and
  • reflection of these principles in legislation and policy.

In January 2012 the commissioners were back at work, this time sending a joint letter to the president of the Treasury Board. We made a number of recommendations to him for developing the federal action plan required by the international partnership, including modernization of the federal access law and its administration. Among other things, this letter urges the federal government to learn more about the advances being made in other countries.

Commitment of access professionals

Of course, all of you here today as access to information professionals are called upon to play a critical role in the development of open government. You yourselves will have to demonstrate openness and innovation. Your greatest asset will be your ability to influence decisions and processes in the area of information disclosure and management. Your greatest contribution will be to facilitate ad hoc disclosure as well as the proactive dissemination of institutional information.

Conclusion

In summary, with the support of the new communication technologies, open government is proposing to increase the quantity and accessibility of digital data so as to promote citizen participation in the development of government policies and programs and to foster the socio-economic development of society. As Fabien Deglise put it so well in Le Devoir, digital data might then indeed become the oil of the 21st century … but if you will allow me to expand on that thought, in my view, access to information shall always remain the key tool for the optimum extraction of that oil to the benefit of Canadians.

2. Final Report of the Commission of Inquiry on the Blood System in Canada (Krever Commission), 1997 http://epe.lac-bac.gc.ca/100/200/301/hcan-scan/commission_blood_final_rep-e/index.html

3. Report of the Somalia Commission of Inquiry, http://publications.gc.ca/site/eng/9.646634/publication.html

4. Commission of Inquiry into the Sponsorship Program and Advertising Activities, “Restoring Accountability,” Final Report, 2006, http://epe.lac-bac.gc.ca/100/206/301/pco-bcp/commissions/sponsorship-ef/06-03-06/www.gomery.ca/en/phase2report/index.asp