Speaking Notes of Suzanne Legault Information Commissioner of Canada to the Canadian Legal Information Institute (CanLII) Conference
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September 13, 2013
The public has always taken great interest in daring robberies whether it was the Jesse James gang of the American Wild West, the Great Train Robbers in Britain, or the gentlemen thieves on the Riviera who plunder precious jewels and rare works of art from the rich and famous.
Part of our fascination is the idea that ordinary folk lay their hands on vast sums of wealth, and in some cases, get away with it.
Fast forward to 2013 and the public is fascinated with Edward Snowden and Chelsea Manning.
Because information is the new source of wealth, power and influence.
Those who have it want to protect it. Those who don’t, want access to it. Never before has information — especially government information — been so high on the public’s radar.
In July this year, we marked the 30th anniversary of the Access to Information Act coming into force in Canada.
A lot has changed since 1983 — what we consider information to be, how we store it, how we transmit it, how we use it and how we access it.
And yet our Act — so forward-looking in 1983 — is virtually unchanged.
Our current legislation is tired, outdated, and constricted by too many limitations — including the fact that Parliament is currently not covered by the Act.
Today, I will trace the evolution of the Access to Information Act over the past 30 years.
In so doing, I will highlight some of the major changes that have affected the context and the environment for publicly-held information — not the least of which has been the influence of changing technologies.
I will share my concern about instant text messaging such as PIN to PIN communications and how this type of technology can thwart the recording, storage, and access to certain important pieces of information.
Combined with the current exclusion of Parliament and Ministers’ offices from the Act, these technologies can limit the public’s access to important information that should be available to them.
I will conclude with some thoughts on how the Act must be modernized because access to information is a fundamental element of democracy in the 21st century.
II Important Developments in ATI in the Past 30 Years.
Thirty years ago, a number of forward-looking politicians, academics, and others recognized that the public should have a right to see much of the information that government collected in going about its business.
Interestingly, as we have learned over the past 30 years, the majority of politicians who support access to information are in Opposition.
Once they come into power, their views usually change completely.
The most classic case was former UK Prime Minister Tony Blair who, while in the Opposition, was a staunch advocate of access to information legislation. It was part of his political platform. In 1996, he was heard proclaiming his belief in FOI at the Campaign for Freedom of Information’s 1996 Awards. Then he said:
‘it is not some isolated constitution reform that we are proposing with a Freedom of Information Act. It is a change that is absolutely fundamental to how we see politics developing in this country over the next few years…information is power and any government’s attitude about sharing information with the people actually says a great deal about how it views power itself and how it views the relationship between itself and the people who elected it”.
When his party formed the government they passed a Freedom of Information legislation.
“Freedom of Information. Three harmless words. I look at those words. I look at those words as I write them, and feel like shaking my head till it drops off my shoulders. You idiot. You naïve, foolish, irresponsible nincompoop. There is really no description of stupidity, no matter how vivid, that is adequate. I quake at the imbecility of it.
The word “nincompoop” may be derived from the Latin non compos mentis — not of sound mind.
In fact, Blair, looking back over his career, considered access to information to be “antithetical to sensible government.”
Governments want to protect themselves from embarrassment, second-guessing, and giving away party secrets — so there is a natural tendency for a party in power to resist the introduction or enhancement of access to information legislation.
As you can imagine, in 1983, there was much apprehension by the government of the day since there was a general lack of awareness or understanding of what impacts the ATI Act might have.
There was no history or experience with it. But over the past 30 years, we have seen the development of practical experience, judicial guidance, and some attempts to reform the Act to make it more effective.
In an important case before the Supreme Court of Canada in 1997 (Dagg v Canada Minister of Finance —1997 S.C.C.), Justice LaForest wrote on behalf of the court: “The overarching purpose of access to information legislation is to facilitate democracy by helping to ensure that citizens have the information to participate meaningfully in the democratic process and that politicians and bureaucrats remain accountable to the citizenry.”
In so doing, the Court was recognizing “access to information” as a quasi-constitutional right.
In the more recent case Ontario (Minister of Public Safety and Security) v. Criminal Lawyers' Association, the SCC found that although the protection guaranteed by para 2(b) of the Charter refers to freedom of expression, access to information is a derivative right which may arise where it is a necessary precondition of meaningful expression on the functioning of government.
It is against this backdrop that we must assess the health of our access to information regime. Something that our leaders tend to forget.
Since its introduction in 1983, there have been numerous attempts to put more legislative teeth into the ATI Act.
There have been numerous private members’ bills introduced seeking to amend the Act. All were unsuccessful but for the one in 1999 which added a criminal provision to the Act to prevent deletion, destruction, or falsification of records.
In 2006, as a result of the Commission of Inquiry into the Sponsorship Program and Advertising Activities (commonly known as the Gomery Commission), the government introduced the Federal Accountability Act, which added 70 new institutions to be covered by access to information legislation.
Unfortunately, these additions were coupled with new exclusions and exemptions.
Also, virtually unnoticed, was the rapid increase in what are called “paramountcy" provisions in other acts, which limit or override the ATI Act.
When the ATI Act came into force in 1983, there were restrictions in 33 laws restricting disclosure, now, theses prohibitions are found in 56 laws. Every year, laws are added to the list with little or no debate. This is a worrying trend that has contributed to the erosion of the general right of access.
Another factor leading to an erosion of access is the ruling by the Supreme Court of Canada in 2011, dealing with access to the Prime Minister’s and other Ministers’ agendas as well as records held exclusively in a minister’s office [Canada (Information Commissioner) v Canada (Minister of National Defence) et al. (2011 SCC 25)]. The Supreme Court of Canada ruled that the Prime Minister’s Office and the ministers’ offices are not part of the government institutions for which they are responsible — and, hence, are not subject to the ATI Act.
The Court did note that some information in these offices might be deemed under the control of a government institution, and therefore subject to the Act. The Court proposed a test for making this determination. This is a test that has not proven to be simple to apply.
To provide some guidance for departments and ATI officers, the Treasury Board Secretariat recently issued an “implementation report” that adds additional criteria for ATIP shops.
After having collected and reviewed all records from within the department, access coordinators must assess whether they have reasonable grounds to believe that departmental records related to an ATI request may be located in a minister’s office before tasking them to retrieve them.
This additional step makes the process even more difficult, especially in light of the speed and restrictions of information shared on wireless electronic devices.
Two important facts — the changing nature of information and changes in government management and administration — are perhaps the most compelling reasons for updating an act which has become an anachronism.
III The Changing Nature of Information
Let me deal first with the changing nature of information over the past 30 years.
When the Act was introduced in 1983, information was considerably different than today.
It was paper-based — composed mostly of handwritten and typed files.
Record-keeping was mechanically managed by file clerks who patrolled rows of metal filing cabinets — some locked, some not.
The volume of information was manageable and in most cases the sources and recipients were identifiable.
Today, virtually all government information is electronic or digital.
With the advent of advanced technologies, the volume of information has grown exponentially as has the number of sources and recipients, many of them potentially anonymous.
There are multiple electronic storage and record-keeping spaces — including cloud computing — multiple formats, and multiple individual devices, such as smart phones, each with its own ability to access, transmit, and retain information.
The most compelling feature of modern information is speed — and this speed has led to some fundamental problems for access to information.
Every era has its ATI “avoidance enablers.” In 1983 it was the Post It note (or “yellow sticky”) — you pulled it off and it disappeared.
In 2013 it is the smart phone that can eliminate any trace of information.
Instant messages represent a challenge for access to information, since messages do not generally go through a department’s host telecommunications carrier’s networks, bypassing the department’s corporate server.
In addition, messages usually have a fixed “shelf life” (30 days for Blackberry) and then disappear.
Unless a government official makes a conscious effort to record that information elsewhere, it is lost to the public.
This duty to record is one of the casualties of the instant messaging environment.
Current ATI time request requirements are not aligned with the technical properties of smart phone designs. We are currently conducting an examination of PIN to PIN communications to see if there are other “black holes” into which information hides or disappears.
In 2010, my colleague the Privacy Commissioner did an examination of the privacy aspects of PIN to PIN devices in five large departments and found that there were inadequate controls for protecting personal information.
Communications Security Establishment Canada (CSEC), the ultimate authority for technical communications for the federal government, has recommended that departments refrain from using PIN to PIN technology.
In our rush to embrace every new technology, sometimes we forget about some of our obligations, such as the legal duty to document and record government information of business value or the legal duty to preserve records that are the subject of an access request.
Instead of asking the question “Why not use PIN to PIN communications?” as Information Commissioner I have to ask “Why use it in the first place if not to avoid legitimate scrutiny?” — and — “If you are using PIN to PIN, are you meeting all of your legal obligations?”
IV Changes in Government Management and Administration
Let me now shift to the second factor that has made it more difficult to access public information — changes in government management and administration. Thirty years ago, the federal government was made up of a small number of departments and agencies.
Policy development and decision-making relied mainly on the personal wisdom and experience of a small cadre of deputy ministers and senior public servants.
Issues, policies, and programs could be nicely defined — defence, health, employment, etc.
In more recent years, we have seen the convergence of the ideas and objectives of many people and many organizations into complex programs with multiple outputs — what Janice Stein of the Munk School of Global Affairs (at the University of Toronto) calls “network government.”
In addition, there have been many new types of organizational structures created, such as “special operating agencies.” Some institutions have merged and others have disappeared. People outside government are often brought in to provide ongoing but “external” advice on program operations, program evaluations, stakeholder management, etc.
With these complicating factors, it becomes more difficult to determine what information is part of a department’s holdings and what is not.
While there has been an overall adoption of new technologies in most management functions in government, the field of records management in many departments has not been part of this transformation.
As I said earlier, the advent of smart phones has created a “non-record” culture — whether deliberate or not.
Perhaps the greatest change — and one that has made the lives of ATI people more difficult — has been the centralization of control of policy, decision-making, and information, not at the senior bureaucratic level, but at the political level — in ministers’ offices and in the Prime Minister’s Office.
I have already spoken of the legal ruling, which has restricted our ability to reach into these domains.
Recent events in Ottawa (the Senate expenses issues) and elsewhere (for example, the deletion of e-mails in political offices in Ontario) have shown how large a gap this has created in the overall access to information system.
V Extending Coverage of the ATI Act to Parliament
In June, once again, I stated publicly that it is time to bring Parliament under the Access to Information Act. I say “once again” because this is not the first time that I have said this on the public record, nor am I the first Commissioner to call for this change.
And I am not alone.
The Canadian Journalists for Free Expression said, “It is hard to comprehend how two of the most significant institutions (House of Commons and Senate) in the functioning of Canadian democracy are not subject to access to information inquiries.”
The Canadian Internet Policy and Public Interest Clinic wrote: “The Act must be applied to the legislative branch, to Parliament, to Ministers (inclusive of Secretaries of State) and to their respective offices. All of those entities play a vital democratic role and the information under their respective control is therefore of central importance to transparency, open governance and democratic discourse.”
These two representations were part of the feedback we received from the Open Dialogue process we conducted earlier this year to elicit feedback about modernizing the Act — I will say more about this in a moment.
Most Canadians I am sure — including some people here today — probably thought that Parliament was covered by access to information legislation.
Recent events in the Senate have highlighted how little the public really knows about the operations of that institution.
But let me be clear.
Even if the ATI Act did apply to Parliament, I agree that not all information would be available to the public —parliamentary privilege must be protected and preserved. However, how Parliament spends taxpayers’ dollars must be covered by the Act.
What would that change?
First, documents that substantiate expenses paid out by parliamentarians in the course of their work would be available.
Second, decisions on disclosure or non-disclosure of information could be reviewed independently, by my office or the Courts. When an institution is covered by the Act, we can provide an independent and objective review of a disclosure decision.
Third, there is a deterrent factor. As has been shown not only in Canada, but internationally by institutions covered by an ATI act, there has been an alteration of behaviour when there is a possibility that actions and decisions could be made public.
Canada was once a leader in access to information legislation.
However, a recent international survey conducted by the Centre for Law and Democracy ranked Canada 55th out of 93 nations.
Undoubtedly, the current limitation of the coverage of our act dragged down our ranking.
VI Need for Modernization of The Act
There is no question that it is time to modernize Canada’s Access to Information Act.
The minister responsible for this legislation (Hon. Tony Clement) recently said that the Government of Canada has been meeting its obligations “to the best of our abilities and I think to the best of the benchmarks.”
While the government has certainly taken some important steps in the area of Open Government — releasing more and more of its information to the public through its Open Government portal — the weakness is that it is the Government that decides what to release, when, how, and in what format.
But information has to be a two-way street.
Open Government must be complemented by a robust access to information system.
As Winston Churchill said: “It is no use saying, ’We are doing our best.’ You have got to succeed in doing what is necessary.”
So what is necessary to bring the Access to Information Act up-to-date?
Later this year, I will be bringing forth a number of recommendations, many of which were cited by respondents in the Open Dialogue process.
First, the Information Commissioner of Canada should have order-making power. Right now, we can only try to influence departments’ decisions on disclosure through discussion or by referring the matter to the Federal Court.
Second, rather than waiting 30 years, there should be more periodic reviews of the Act.
Third, there should be stronger incentives in the Act to ensure timeliness of disclosure.
Fourth, the many exemptions in the Act should be reviewed in favour of increased disclosure.
Fifth, the Office should have the mandate to provide education about access to information.
Sixth, the duty to create records should be specifically legislated especially in light of new technological developments.
Seventh, the whole area of Cabinet confidences should be revisited.
And finally, the Act should be extended to cover Parliament, minister’s offices and the courts administration.
VII Towards a Virtuous Cycle
In proposing to expand the education mandate of the Office, my intention is to create what Cara Zwibel from the Canadian Civil Liberties Association calls a Virtuous Cycle of information.
In the early days of the Act, ATI was the domain mostly of specialists, interest groups, and the media.
As time has passed, requests started coming in from a wider range of people and organizations. Over the last 10 years, more and more individuals are making access requests.
On any day of the week now, you can see how important “access to information” has become for reporting.
And this expands the Virtuous Cycle.
Let me explain how.
The more requests government gets from individuals or organizations, the more awareness and understanding there is of how government works.
This increased public knowledge in turn creates more and wider requests for information.
The proactive disclosure of the results of ATI requests creates even more public interest, greater awareness, and an ever broader circle of requests.
I suppose theoretically that the cycle should expand until all legally accessible information is available to the public.
As I mentioned, governments have attempted to nurture this process by creating open data sources.
The cycle becomes “virtuous” when information is treated as a truly national asset — one that stimulates innovation, economic and social development, and supports our democratic institutions.
Every year we have a Right to Know Week (this year it is September 23-28) to increase public awareness of access to information.
We also learn from other jurisdictions, nationally and internationally.
In the past 30 years, we have created an ATI “community” inside and outside government.
VIII Removing Barriers to ATI
Unfortunately, many barriers still exist that keep us from an ideal information world.
In the last year alone, we have seen a backsliding by many departments, often because of cutbacks in existing administrative resources or failure to allocate sufficient resources to meet their legal obligations under the Act.
At the same time that the volume of requests has increased, the total ATI system capacity has declined.
Delay complaints are rising again. Missing records complaints are increasing as well.
Rather than favouring disclosures, often departments will delay requests (one for 1,110 days!!) or seek overly broad exemptions.
IX In Conclusion
ATI is a fundamental right of Canadians. It is critical to the functioning of democracy and our democratic institutions.
Information is the DNA of ideas, policies, and government actions.
Without that DNA code, you cannot understand how government operates.
But the world is changing quickly and we need to rethink what constitutes information, how we store it, and how we make it accessible.
New technologies, in particular, will require new approaches to the management and sharing of public information.
We need to put more discipline and deterrence in the Act.
We need to revisit existing exemptions — are they still necessary in 2013?
And we need to expand the coverage of the Act to include Parliament.
There is a responsibility for governments and government institutions to create a culture and an environment of active disclosure rather than secrecy and evasion or very simply an overly technical application of the exemptions that goes against the intent and the spirit of the legislation.
With that new culture in place, there would be less motivation for the Snowdens and Mannings.
The public would have the information to which it is entitled and perhaps more importantly, the public would have confidence that it is getting the information to which it is entitled to and get it in a timely manner.
Canada was once a leader in the area of access to information.
It is time for us to restore that lead once again.