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Right to Know and a Culture of Openness in the 21st Century: A Matter of Leadership
Right to Know Seminar
Robert Marleau, Information Commissioner of Canada
October 3, 2007
It is with great pleasure that I welcome the opportunity to speak to you during this second Canadian "Right to Know Week."
A first for me.
I titled my remarks: "Right to Know and a Culture of Openness in the 21st Century: A Matter of Leadership", because I wanted to take this opportunity to go back to the basic principles of the democratic right to know, to look at how these principles have been implemented at the federal level, and to highlight some potential areas for reform of our current regime, in the context of the 21st century. More particularly, in the context of globalization, new governance structures resulting from the complexity of issues, the speed at which these issues must be addressed, and advances in information technology. In looking at the challenges we face in this context to achieve a culture of openness, I want to emphasize the fundamental leadership roles that we all play as participants in this democratic process.
But first things first.
What is the "Right to Know". Simply put, it is the right to obtain access to information under the control of government institutions. This right is a vehicle for ensuring a more informed dialogue between political leaders and citizens, improved decision making, and greater accountability by the government and its institutions.
As far back as 1785, Jeremy Bentham, a lawyer and philosopher, had remarked:
"The eye of the public makes the statesman virtuous. The multitude of the audience multiplies for disintegrity the chances of detection."
More recently, the Supreme Court of Canada recognized the fundamental importance of ensuring transparency about the actions of government institutions. In its 1997 decision, Dagg v. Canada (Minister of Finance), the Court described the overarching purpose of laws providing access to information under the control of government institutions, as being to facilitate democracy by helping to ensure that citizens have the information required to participate meaningfully in the democratic process, and that politicians and bureaucrats remain accountable to the citizenry.
I invite you to take a moment and consider what our world would be like if we could not find out what government was doing, if the machinery of government were hidden from us, if we could not find out who was making decisions that affect us and why those decisions were being made. In other words, what it would be like to live in a world created by Franz Kafka.
Right to Know Day began on September 28, 2002 in Sofia, Bulgaria, at an international meeting of access to information advocates from over 30 countries to promote freedom of information as a fundamental right of individuals and States’ obligation to guarantee it. Right to Know Week offers those interested in freedom of information, a vehicle to promote this right and to campaign for open, democratic societies, in which citizens have the knowledge to participate fully in government.
Basic principles of the Right to Know were acknowledged in 1999 by the Special Rapporteur established by the United Nations Commission on Human Rights to promote and protect the right to freedom of opinion and expression. These principles have been drawn from the Canadian Access to Information Act and other comparative law to provide a clear set of standards to guide civil society groups and legislators in their efforts to increase public access to information across the world.
In honour of the Right to Know Day celebrations in 2003, the Open Society Institute, a non-governmental international organization, identified and claimed these principles as essential to the promotion of democratic governance. These ten basic principles are:
1. Access to information about government activities is a right of everyone.
2. Access is the rule – secrecy is the exception.
3. The right applies to all public bodies.
4. Making requests should be simple, speedy, and free.
5. Officials have a duty to assist requesters.
6. Refusals must be justified.
7. The public interest takes precedence over secrecy.
8. Everyone has the right to appeal an adverse decision.
9. Public bodies should proactively publish core information.
10. The right should be guaranteed by an independent body.
In Canada, we are leaders in the implementation of these principles. It is among about 70 countries that have enacted access to information legislation. Canada’s federal Access to Information Act came into force in 1983, and every province and territory has similar legislation.
Let me explain to you how the system of access to information – the program designed to implement the right to know – operates at the federal level.
The Access to Information Act provides a right of access to government information. The Act is quasi constitutional because subject to a few exceptions provided in the legislation itself, the Access to Information Act applies notwithstanding any other act of Parliament. Its purpose clause sets out a right of access to government held information in accordance with the following principles:
- Government information should be available to the public;
- Necessary exceptions to the right of access should be limited and specific; and
- Decisions on the disclosure of government information should be reviewed independently of government.
In short, the Act gives Canadians broad legal rights to information recorded in any form and controlled by most federal government institutions.
The Act is designed to strike a fine balance between ensuring access, transparency and accountability of government, while recognizing that some information produced by government needs to be protected. Access rights are not absolute. They are subject to specific but limited exemptions, balancing freedom of information against individual privacy, commercial confidentiality, national security, law enforcement and the frank communications needed for effective policy-making.
The Information Commissioner of Canada – the position I have held since January – is an Agent of Parliament. As such, I am independent from government departments and institutions, and I report directly to Parliament.
Professor Paul Thomas explains that independent parliamentary agents are meant to serve two purposes:
- Dealing with individual complaints about a lack of fairness involved with various types of actions and inactions; and
- Promoting improved performance and appropriate standards in the delivery of public programs and services.
The Information Commissioner is in the unique position where it is expected that he will maintain a constructive dialogue with each branch of the state: the executive, the legislative, the judiciary and also with citizen. This reality will define the scope of the activities of my office in the coming years.
As Information Commissioner, my main raison d’être is to fulfill a statutory mandate under the Access to Information Act (ATIA), to ensure that the rights and obligations of complainants under the ATIA are respected, and that complainants, heads of government institutions, and all third parties affected by complaints, are given a reasonable opportunity to make representations.
I need to ensure thorough and timely investigations of complaints relating to access to information. That means focusing on improving the delivery of services by my office and our accountability to Canadians, government departments and Parliament. We also seek judicial resolution of cases and appear before the Court, where appropriate, to ensure proper interpretation of the Access to Information Act.
Let me deal with the protection of individuals’ rights of access to information. My Office is committed to protecting this fundamental right of citizens. This goal will remain front and centre in every activity we undertake.
Our view is that we will achieve optimal compliance with the Act, and fulfill our mandate, with an investigative approach based on what I will call the "three Cs:" Collaboration, Cooperation and Consultation. What this "three Cs" approach means is that we will favour alternative means of dispute resolution, such as mediation and persuasion, and we will rely less on formal methods of compliance and review during our investigations.
Some long-time observers of the access to information process might perceive this as a less aggressive approach than in the past. However, it doesn’t mean that government institutions can avoid complying fully with the statutory provisions, nor does it mean that we won’t go to court to enforce those provisions.
As Information Commissioner, I am an ombudsman with strong investigative powers, but no authority to order a complaint resolved in a particular way. If I find that a complaint against a government institution regarding a refusal under the Act is well-founded, section 37 of the Act requires me to provide the head of the government institution with a report of my findings, any recommendations and, if appropriate, a request that I be notified of any action taken, or proposed to be taken, to implement the recommendations, or reasons why no action has been, or will be taken. I can assure you that if I issue a section 37 letter, and a government institution fails to follow my recommendation, I will not shy away from going to court.
In my view, such litigation’s greatest value is to advance important public policy issues on access to information and to assist individuals or groups who would not otherwise have the financial means to embark in often lengthy litigation to assert their rights.
The case of Information Commissioner of Canada v. Minister of Industry is a case in point. Although Mr. Di Gangi will address this case in more details in his presentation this afternoon, let me briefly summarize the facts. In 2001, the Director of the Algonquin Nation Secretariat, a tribal council representing three Algonquin Bands, made a request to Statistics Canada for census records relating to their ancestors, as part of their research necessary to substantiate their lands claims. The requester was refused access to the records he had requested, that is, census records for specific districts of eastern Ontario and northwestern Québec. He later complained to my Office.
The Chief Statistician took the position that the Statistics Act prohibited the disclosure of the requested records. In turn, the Information Commissioner took the position that the requested census returns could be disclosed. Further, it was argued that section 35 of the Constitution Act, 1982 recognizes and affirms the existing aboriginal rights and treaty rights of aboriginals in Canada and imposes a duty on the Crown to act honourably in all its dealings with aboriginals.
The Chief Statistician did not accept this recommendation. With the requester’s consent, the Office brought an application to the Federal Court for review of the Chief Statistician’s decision. The Federal Court allowed the application and ordered the disclosure of the requested records on specified terms. This decision was confirmed by the Federal Court of Appeal.
It is evident that without the Office’s intervention, these records would never have been ordered disclosed and the Algonquin Bands would have lacked access tokey evidence to substantiate their land claims.
For almost a quarter century since the Access to Information Act came into force in 1983, it has essentially remained unchanged. However, the Federal Accountability Act, which received Royal Assent in December 2006, has brought about several changes to the Act and to my Office.
Some 69 institutions that were not previously subject to the Access to Information Act are covered by the Act. These include five Officers of Parliament, five foundations, seven Crown corporations, and 48 subsidiaries of Crown corporations. As of now, the Act applies to 255 government institutions, an increase of 37 per cent within less than one year. This is a very positive and significant step forward in access to information in Canada.
However, this will likely lead to a significant increase in the workload of our Office, and hence poses an additional challenge to our pledge to improve our service delivery.
As part of this latest reform, the Office of the Information Commissioner became subject to the ATIA and the Privacy Act.
As a result, my Office has had to implement an alternative and arm’s length mechanism to deal with potential complaints against the Information Commissioner, as it was not provided for under the legislation. I was delighted to announce in April that the Honourable Peter de C. Cory, a former judge of the Supreme Court of Canada, accepted to serve as ad hoc Information Commissioner.
Another addition that is worth special note is the new section 4(2.1) of the Act which now requires the head of a government institution to make every reasonable effort to assist the person in connection with the request for access to a record under the control of the institution, to respond to the request accurately and completely and, subject to the regulations, provide access to the record in the format requested. We call this the "duty to assist" – a sort of Good Samaritan obligation for the information world. I will discuss later how heads of institutions must take a leadership role in ensuring that this amendment becomes meaningful in improving access to information at the federal level.
The Federal Accountability Act introduced several other changes to the federal access to information scheme. I won’t go into those changes here, other than to say that they cover matters such as definitions, new exemptions, exclusions and inclusions.
As we will soon celebrate the 25th Anniversary of our Act, I would be remiss if I did not address briefly the subject of reform.
Recent years have seen many laudable efforts at reforming the ATIA, and also many recommendations for administrative reforms – something that is often forgotten.
There are many outstanding administrative and legislative issues, including:
- standardizing the criteria for inclusion of government institutions in the Act;
- dealing with the exercise of discretion under the Act and how it is applied;
- determining whether Cabinet confidences should continue to be excluded from the Act;
- dealing with the issue of frivolous, vexatious or abusive access requests;
- re-examining the time limits for replying to an access request and the rules for taking extensions of time;
- considering incentives for compliance with the time limits for response;
- reviewing the fee structure for the various aspects of making an access request as well as the process of fee waivers; and
- revisiting the scope of the mandate of the Information Commissioner to include such items as formal mediation, advisory functions, practice assessments and education.
In addition, we may obtain some ideas for reform from legislation in provincial or territorial access to information laws, many of which post-date the federal legislation and may therefore be more avant-garde in some respects.
We live in a very different world than that of 1983, when the Act came into force. Although I believe the Act, and the administration of the Act, is sound in terms of concept, structure and balance, it may need to adapt to the realities of the 21st century.
Globalization has increased interdependence among our world’s nations so that information on any particular subject is now likely to be found in more than one country. Canadians expect their government to be accountable for its involvement in matters here and abroad. This means that government transparency requirements are now cross-border.
Our governance structure has transformed significantly over the last 24 years since the Act was first enacted. The Canadian government has restructured to reduce costs and improve efficiency. A number of new public, semi-public and private, and not-for-profit organizations have been created for the provision of services that were previously delivered directly by departments and agencies. Our legislative regime must ensure that entities delivering public services are subject to the Act. Further, our policy development depends ever increasingly on the input of bodies that are outside of the traditional government. The complexity of the issues facing Government today has led to increased horizontality requiring input from several departments and institutions. Indeed, many issues facing government today, such as environmental and health issues, cross jurisdictions. As Janice Stein would put it, we are in the era of "networked federalism".
Lastly, the advances in technology have resulted in an increase in the speed of decision making at all levels of government, and in the quantity of data that is stored within government institutions, and with that, new challenges in keeping appropriate records of electronic information.
Any reform of the legislative and administrative regime at the federal level will have to take these challenges into consideration when deciding how the federal program of access to information is designed to best respect the 10 basic principles of the Right to Know.
But legislative and administrative reforms take some time. Therefore, in closing today, and in the spirit of this Right to Know week, let me share with you some thoughts on how we can all make a difference in furthering the culture of openness in Canada by demonstrating leadership.
From my end, I make it a priority of my office to improve its service delivery to Canadians. A right delayed is, in a lot of cases, a right denied. Also, in this era of information and knowledge-based society, I will strive to maximize the information I provide to parliamentarians, government institutions and Canadians about our processes and decisions, while preserving confidentiality under our Act.
From the perspective of government institutions and requesters of information, I would like to offer some food for thought on how leadership could be demonstrated. The leaders of government institutions can have a significant impact on implementing a culture of openness by prioritizing a meaningful implementation of the new provision dealing with duty to assist. They could also be more proactive in disclosing information to the public as a matter of course and rather than in disclosing it only when prompted by an access request.
Given the ever-increasing complexity of our governance structures, the breadth of information and the speed at which it is created within government institutions, such a leadership approach is bound to have meaningful and positive consequences on the Right to Know in Canada.
As a corollary, I would suggest that requesters should exercise their rights in a responsible manner and work cooperatively with government institutions to clearly articulate their request for information.
Ultimately, leadership responsibilities for the implementation of the Right to Know rest with all of us.
In closing, let me leave you with the words of Alain Dubuc, a journalist at La Presse, when he provided comments to the Delagrave Task Force:
"The achievement of transparency is an ongoing process more than a revolution. It should not be a partisan debate but a common effort toward better democracy."
I look forward to a continued dialogue with all stakeholders to foster a culture of openness in Canadian government institutions which benefits all Canadians.