NL Connections: Access, Privacy, Security and Information Management Conference “Changing the Culture”

Speaking Notes for Suzanne Legault, Information Commissioner of Canada

St. John’s, NL
December 3, 2014

Check Against Delivery

I. Introduction

“May the wind be at your back” is a traditional expression of encouragement for travellers and those who make their livelihoods from the sea.

The people of Newfoundland and Labrador well understand that any successful voyage, any successful venture, must rely not only on good intentions, but also on commitment, good planning, and hard work.

From my viewpoint as the Information Commissioner of Canada and from my experience both nationally and internationally, I believe that the stars are beginning to align for the freedom of information community and transparency advocates – that the wind is now at our backs.

We have a unique opportunity to make profound changes to our society, through a change in “culture” associated with the collection, management, disclosure, use and reuse of government information.

Why am I so positive that we have this unique window?

I think the signs are everywhere.

We are seeing broad-based international acceptance of FOI laws, of “open government” and the fundamental need for transparency and accountability – now at least 101 countries are committed to the concept. Mozambique passed an FOI law this week.

At the recent G20 meeting in Australia, “public sector transparency and integrity” – as well as “private sector transparency and integrity” – were key components of a six-part anti-corruption Action Plan passed by the G20 leaders.

In Canada, access to information has achieved a quasi-constitutional status. All provincial and territorial governments have freedom of information legislation and several provincial and municipal governments have also embarked on ambitious open government initiatives.

As more forward-looking principles, legislation, and standards are being developed, the public is becoming increasingly aware of the linkages between government information and democracy, innovation, productivity, and competitiveness.

Daily media reports shine a light on the connection between access to information and government accountability, transparency, and, ultimately, public trust.

Not to be discounted as an important development is the emergence of a tech savvy generation that lives and breathes information – that recognizes that open information is an asset, a public good. They are the early users and adapters of technology that allows them to use, reuse and repurpose information, increasing its value for society as a whole.

Newfoundland and Labrador is part of this change movement with the Review of ATIPPA and its Open Government Initiative currently underway.

So today, I would like will focus my remarks on the importance of supporting positive “cultural change”; as a necessary pillar in creating an environment where the public’s right to access public information is protected and enhanced.

II. The Prevailing Culture

Despite the many new open government initiatives and the many improvements taking place in access to information, in my view the prevailing culture in government at this time remains one of secrecy.

There is an inherent resistance to disclosure.

A lot of this may be due to our Westminster style parliamentary system.

With so much power concentrated in the head of government and the Cabinet, there is a natural tendency to protect information that underpins decision-making from the opposition parties and, as a consequence, from the public at large.

Since the goal of a political party is not only to get elected, but to get re-elected, there is also an inclination to avoid embarrassment from the disclosure of errors, miscalculations, and other factors, such as favouring one group of citizens over another in a particular matter, all information that might be used against the government in a future political campaign.

Moreover, although the public service is by tradition independent of the elected government, there is awareness in the bureaucracy that bad planning or poor advice could lead to severe consequences for personal career prospects.

So, not surprisingly, the predominant behaviour is to avoid releasing too much information.

This resistance is evident in two ways. First, in the many exclusions from disclosure contained in our current FOI laws, and second, in the actual implementation of our laws. While all FOI laws in Canada are constructed with a prima facie, open by default, right of access with limited and specific exemptions, their application fails to live up to that fundamental tenet. Most importantly, because there is an implicit, and at times explicit, pressure to exercise discretion against disclosure.

Unfortunately, most current rules and their implementation are still heavily biased in favour of denying disclosure, where the interests of the government trump the interests of the public. This is evident at the federal level. Looking at the percentage of requests where all information is disclosed, it was at 40% in 1999 and went to 21% in 2012-13. With the same law, the government is not disclosing as much. The Act is used as a shield rather than an enabler for disclosure of public sector information.

The “open government” movement is one step – an important one – in rebalancing the rights of citizens with the needs of government.

III. Cultural Change: A Modern Example

So, what needs to change to make sure this works?

As we well know, calling for a fundamental cultural change and making it actually happen are two different “kettles of fish”.

We have to start by understanding the nature of cultural change and the factors that support it:

  • What does cultural change entail?
  • Who is involved?
  • What is the process?
  • What are the indicators that a culture is actually changing?
  • How is the change made permanent?
  • And what human qualities are necessary for making cultural change happen?

The answers to these questions are not always self-evident.

Fortunately, we can find clues in a number of broad-based movements in areas such as human rights, protection of the environment, and public health (just think of the effectiveness of the “stop smoking” or the mothers against drunk driving campaigns).

Today, I want to draw some lessons from one of the most important movements of the past century – the changing role of women in society.

While social and cultural norms with respect to women were already changing in the late 19th century and early 20th century, a turning point for the women’s movement in Canada was a famous legal case – Edwards v. Canada (Attorney General) now known as “the Persons Case” – which questioned whether Section 24 of the BNA Act included “women” in the definition of “persons”.

Many Canadians still think that the 1927 petition to the Supreme Court of Canada by the Famous Five – Henrietta Muir Edwards, Emily Murphy, Irene Parlby, Louise McKinney and Nellie McClung – was successful.

In fact, it was not.

The Supreme Court of Canada rejected the women’s petition – unanimously.

It took a judgment by the British Judicial Committee of the Privy Council to overturn the Supreme Court decision and make the point that women were indeed persons.

What do we learn from this case and the many actions that are taking place right up until the present?

We learn that cultural change may require a major rethinking of existing legislation or a shift in judicial interpretation.

We learn that there is a need for top down leadership (champions) as well as grass roots initiatives.

Specialists in cultural change also point to the need to mobilize “informal leaders” – people at various levels in society who can motivate others.

There is also a need to demonstrate the overall benefits of the change outside the group directly affected.

Changes in culture may be required in multiple spheres – economic, social, political, academic, legislative, to name a few.

Cultural change does not happen in a limited space.

It ultimately spills over into all areas of society.

Beyond changing fundamental values, there is a need to change attitudes and behaviours – moving beyond good intentions to concrete actions.

There is a need to enunciate the real problems  – the women’s movement called this process “naming”.

We have to be able to identify and denounce what is wrong with the status quo.

Cultural change does not happen overnight.

Changes in culture are incremental, often the result of planned and sustained actions.

Permanent cultural change requires broad commitment, courage, resilience, vigilance, and plain hard work.

Think of Michaelle Jean, our former governor general who was elected this week at the head of La Francophonie and of Malala, who is still fighting for womens’ rights and this year’s Nobel Peace Prize winner. They are agents of cultural change. They continue to bring the bar always to a higher level.

IV. Effecting Cultural Change in Disclosure of Government Information.

To translate these lessons from the women’s movement into effecting cultural change towards an open government by default, the government must have an integrated and consistent vision for all of its policies, processes and people.

A. Policies

First – policies.

As the Persons Case demonstrated, laws and policies must be living organisms that adapt to the realities of the times and the nature of the society they serve.

Newfoundland and Labrador is in the process of reviewing its Access to Information and Protection of Privacy Act (ATIPPA); my office has also undertaken a major review of the federal Access to Information Act (ATIA).

Our laws and policies must:

 Recognize new realities and definitions for what is information, how it is created, stored, shared, distributed, archived and destroyed.

Recognize new realities resulting from the changing organization of government in many new forms of agencies, quasi-commercial entities, and hybrid structures operating alongside traditional departments.

Recognize the critical importance of achieving a convergence of national and international norms in matter of FOI laws and open by default initiatives.

Information flows across topics and borders. The true benefits of open government by default will flow to the most innovative regimes.

The time has come for values-based FOI legislation, where exemptions are limited to the most essential areas – where injury resulting from disclosure must be demonstrated and where the public interest is paramount.

As I wrote recently to Minister Clement, President of the Treasury Board, in response to the release of the draft federal Action Plan 2.0 for Open Government Partnership (OGP) initiative:

“Without a modern access law to action to anchor decisions of what government information gets released by default, the Government will not effect a change in government culture that will drive the release of federal information and foster transparency, accountability, and citizen engagement.”

The real shift in culture will come about when the FOI frameworks are constructed and applied in favour of the public, where information is truly “open by default”.

As currently conceived, “open government” initiatives consist of the selective release of information by the government.

The government gets to choose what information to release, when, and in what format.

A true system of open government would see citizens empowered not only to receive the information that government chooses to release, but also to ask for and receive the information of their choice in a timely and comprehensive manner in a usable format.

Essentially moving the culture of government from what it wants to release on a proactive basis but what it ought to release, both proactively through its open government initiatives and reactively, through a modern FOI law.

B. Processes

Simply establishing a legal and regulatory basis is not enough to encourage and sustain permanent change in the culture.

The legal principles must find their way into the design of operational processes and, ultimately, into the evaluation of organizational and individual performance.

Open government by default must become a fundamental component of the design of government programs and policies.

The design of government policies and programs must be viewed through an open government lens. That means before any new laws, policies or programs are put in place by the government, consideration must be given to how the new law, policy or program can affect the objectives of the government to be open by default. At the federal level, Cabinet documents must consider privacy and official languages implications. The implications on open by default must also be considered.

For example, will the legal framework ensure the application of the FOI law and not create an exclusion from it, will the government partners understand that their information shared with the government should be open by default to the citizens to ensure accountability, etc. These types of questions must now be considered, analyzed and addressed before the government embarks on new initiatives to advance, foster and protect an open by default culture.

C. People

Which brings me to the third, and undoubtedly most important factor in effecting cultural change – people.

Behavioural change – changing the way people think and act – is critical.

When I say “people”, I mean the many groups who must alter established behaviours:

  • The government
  • All parliamentarians
  • public servants
  • professionals working in the area of open government and access to information
  • the media; and
  • the public.

As with the women’s movement, positive changes will come both from the top and from informal leaders at the working level.

A number of critical human factors stand out in any effort to effect a fundamental cultural change.

First, commitment.

The government of the day and the opposition parties must commit to the long term implementation of an open government by default in all its forms. The commitment must go beyond public relations exercises or electoral platforms and translate into concrete short, medium and long term actions with specific timelines and performance measures. These must be publically available. Ideally, they would be independently assessed.

It was encouraging to see the Premier yesterday commit to implementing both the Review Panel’s recommendations for reform of ATIPPA and an Open government initiative

Second, courage.

As some of you may know, this week marked the anniversary of another famous action by a courageous woman. On December 1, 1955, Rosa Parks politely but adamantly refused to relinquish her seat in the coloured section of a city bus so a white man could sit. It became an iconic moment in the civil rights movement. Her case and others eventually swept away the vast, repressive web of segregation laws. Changing a culture takes courage.

A third necessary quality is patience.

As I said, cultural change takes time – success must be measured in small increments. Small steps add up and make a difference.

Fourth, is the need for vigilance.

Hard-earned changes can quickly disappear if advocates become tired or distracted.

The events surrounding Bill 29 are a great example of the positive result of vigilance to avoid regression. Recent developments in Australia demonstrate just how tenuous the commitment to ATI might be.

Fifth, is hard work.

As the volume of public information increases, as does the number of citizen requests, there will be a need to expand the resources dedicated to both proactive and reactive disclosure programs.

The denial of adequate resources runs the risk of thwarting any efforts to make material changes in the prevailing culture.

Finally, education.

Cultural change comes from new understandings and new experiences. Data literacy must become a new norm.

VII. Conclusion

If we are successful in creating a new culture where the bulk of government information is available, will the sky fall?

From my experience, the answer is a resounding “NO”.

Quite the opposite, a “culture of disclosure” that encourages the release of more government information will benefit innovation, competitiveness, trust and respect for our democratic institutions.

As Minister Kent stated yesterday, several provinces have launched Open government initiatives. The challenge is on for the government of Newfoundland and Labrador to kick start its own initiative, supplemented by bold legislative reform of ATIPPA, and leapfrog ahead of its provincial colleagues.

The “wind may be at our backs” right now, but as all of you know, the winds can change suddenly without notice.

Let us seize the opportunity that is before us while the winds are in our favour.