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Strengthening the Public"s Right to Know: "The Future of Freedom of Information"
BC Information Summit
Andrea Neill, Assistant Information Commissioner
Vancouver, British Columbia
October 5, 2007
I was delighted to be invited to the BC Information Summit to speak to you as the second Canadian "Right to Know Week" winds down. It’s so wonderful to see the range of activities that have unfolded this week in BC and all across the country to celebrate RTK - conferences, luncheons, speeches, panel discussions, essay contests. My office held a one-day event in Ottawa on Wednesday. Recognizing the importance of what is a national event, the Information Commissioner of Canada volunteered his two Assistant Commissioners to participate in provincial/territorial activities. We were so pleased by the enthusiastic response we received from our provincial counterparts. Suzanne Legault headed east to three Atlantic provinces and I came to BC.
I was asked to give some closing remarks on the future of freedom of information. It is daunting to speak about the future with any kind of authority or degree of comfort. It is particularly daunting for me, still a little wet behind the ears at the Office of the Information Commissioner, to speak of the future of freedom of information. I was reminded recently of one of the predictions made as the Access to Information Act was taking shape a quarter century ago. In a study he prepared for the Gomery Commission, Professor Alasdair Roberts recalls that before the Access to Information Act was adopted, it was anticipated that federal institutions might receive about 100,000 requests for information under the Act every year. In fact, the total number of requests over the first twenty years of the legislation’s existence was only just over 25,000, based on data contained in annual reports filed by federal institutions under section 72 of the Access to Information Act.
I think it might be much more appropriate for me to focus on the position of the Office of the Information Commissioner, with its recently appointed Information Commissioner, Robert Marleau, and its even more recently minted Assistant Commissioners, Suzanne Legault and me. Understanding the approach of the Commissioner and the Office will provide a far better guide to the future of open government, I suggest, than will my attempt in my early days as an Assistant Commissioner to peer through the ether to a more distant future.
Let me give you some idea about the direction of the Office of the Information Commissioner in the near future. At the end of my talk, I will raise some issues that may be more germane to the longer term, but for now I’m going to stay fairly close to home.
The Role of the Information Commissioner of Canada
The Information Commissioner has made it quite clear since the outset of his term that our Office is committed to protecting this fundamental right of citizens to obtain access to information under the control of federal government institutions. This goal will remain front and center in every activity we undertake.
In our latest Annual Report, Mr. Marleau pledged to assist governments to do better, and requesters to fare better, when administering and using the Act. He has also pledged to assist Parliament in playing its vital role of holding ministers and officials to account for the good administration of the Act.
Compliance should 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 and limited exemptions, balancing freedom of information against individual privacy, commercial confidentiality, national security, law enforcement and the frank communications needed for effective policy-making.
Our view is that we will achieve optimal compliance with the Act, and fulfill our mandate, with an investigative approach that is based on what we 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 in Canada 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.
The Commissioner has made it quite clear that if he finds that a complaint against a government institution in respect of a record under the Act is well-founded and issues recommendations for the institution concerned, he will not shy away from going to court if the institution fails to follow his recommendation on disclosure.
Even so, it is rare historically that our cases end up in court. In fiscal year 2006-2007, the office completed 1,846 investigations. No application for review by Canada’s Federal Court was filed by the Information Commissioner during this period. In the previous fiscal year, the office completed 1,656 investigations. Only four applications for review were filed by the Commissioner.
In short, we are not looking to go to court, but we will when necessary. And there is another role for litigation, perhaps its greatest role. That 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. 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 our 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. The Information Commissioner 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, our 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 last June.
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.
Changes in the Access to Information Scheme
For almost a quarter century since the Access to Information Act came into force in 1983, it remained almost unchanged. However, the Federal Accountability Act, which received Royal Assent in December 2006, has brought about several changes to the Act and to our Office. A few of these changes are worth mentioning here.
First, more federal institutions were added to the Act - some 69 of them, including five Officers of Parliament, five foundations, seven Crown corporations, and over 50 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 for 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 to Canadians.
Second, the Office of the Information Commissioner is now subject to the ATIA and the Privacy Act. As a result, our 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. The Information Commissioner 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.
Third, the Act now provides for a "duty to assist" – a sort of Good Samaritan obligation for the information world. It is similar to that found in the B.C. Freedom of Information and Protection of Privacy Act. This new section 4(2.1) requires the head of a government institution to make every reasonable effort to assist the person in connection with his or her access request, to respond to the request accurately and completely and, subject to the regulations, provide access to the record in the format requested.
This is not just a question of statutory obligation. It is a question of leadership. Ministers, deputy ministers and the heads of organizations subject to the Act should lead by example in implementing procedures that will give full force to this provision. That sort of leadership is clearly something we want to see in the future and I will come back to this later.
As we will soon celebrate the 25th anniversary of the 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 get some good ideas from 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.
However, the Commissioner has made it clear that his position on legislative and policy issues will be stated first before the House of Commons Standing Committee on Access to Information, Privacy and Ethics, should the Committee choose to address these issues. In the meantime, our Office has offered its assistance to the Committee, the Minister of Justice and the President of the Treasury Board in developing legislative and administrative reforms of the Access to Information Act.
Looking Towards the Future of Freedom of Information
We live in a very different world than that of 1983, when the federal Act came into force. Although our Office believes that 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, with an increase 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 Right to Know principles that the Open Society Institute, a non-governmental international organization, identified and claimed as essential to the promotion of democratic governance in honour of the Right to Know Day celebrations in 2003.
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 of my Commissioner’s thoughts on how we can all make a difference in furthering the culture of openness in Canada by demonstrating leadership.
For his part, the Commissioner is making it a priority to improve service delivery to Canadians. As he aptly puts it, a right delayed is, in a lot of cases, a right denied. Also, in this era of information and knowledge-based society, he will strive to maximize the information he provides to parliamentarians, government institutions and Canadians about our Office’s processes and decisions, while preserving confidentiality under our Act.
From the perspective of government institutions and requesters of information, the Commissioner 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 less reactive in disclosing it only when prompted by a formal 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, the Commissioner 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 rests with all of us. Indeed, I believe that the future of freedom of information will depend on leaders who are committed to instilling a culture of openness.
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 that reviewed the ATIA in 2000:
"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 wish to thank the organizers and sponsors of this Right to Know event for giving me the opportunity not only to participate, but also to listen and learn about British Columbia’s issues and challenges about freedom of information.