Findings and comparison

Some clear observations may be drawn from this summary of the legal framework and procedures for consultations with foreign governments and international organizations by target countries.

Consultations were adjusted to get a real sense of the implicit requirement contained in the legislation of the five countries and Canada with regard to international relations. Nothing is specifically spelled out in the wording of the legislations.

Consultations are conducted in each of these countries, but to significantly varying degrees, going from the first-ranked U.S. and Canada, to New Zealand, the United Kingdom and Mexico who initiate very few.

In the U.S., consultations with foreign governments are many, reaching several hundred every year by estimates of the branch responsible for implementing the FOI Act. The consultation procedure is used only if documents have not been assigned security classification in accordance with a very specific “executive order.”Footnote 25 On the other hand, contrary to the Canadian Access to Information Act, the Freedom of Information Act does not allow refusal to disclose a document obtained from a foreign government solely because it was obtained confidentially – it must also be classified for reasons of national security.Footnote 26

Consultations initiated by Australia and New Zealand, where this practice is seldom used, mainly concern consular documents, which are often governed by that country’s privacy legislation. In Mexico, data is not gathered on the subject due to the leeway that is given to government departments and agencies in that regard. Finally, in the United Kingdom, consultations with foreign governments are few and far between. The access to information legislation directorate in the Foreign and Commonwealth Office initiates consultations only if disclosure of the document requested is blocked. Such consultations are decided on a case-by-case depending on the public interest the document may have.

Canada is the only country to have a precise and restrictive directive on the subject, developed more than 17 years ago by the Treasury Board Secretariat, imposing the consultation process on both the Department of Foreign Affairs and International Trade and all government departments and agencies. It is a blanket rule that applies to access requests likely to have an effect on relations between Canada and another country.

In all countries briefly examined in this study, such consultations may be initiated by a variety of stakeholders in government departments and agencies, starting with the department of foreign affairs. Canada is the only country that does not allow its departments and agencies to directly contact foreign counterparts or colleagues.

These findings are illustrated in Table 12.

 

Table 12: Basis and Conditions for Foreign Consultations between Target Countries and Canada
Country Consultations Initiated
Under the Access to Information Legislation According to a Government Directive By Foreign Affairs By Departments/ Agencies
United States No No State Department Yes
Australia No No Department of Foreign Affairs and Trade Yes
New Zealand No No Ministry of Foreign Affairs and Trade Yes
United Kingdom No “Guidance”Footnote 27 Foreign and Commonwealth Office Yes
Mexico No No Secretaria de Relaciones Exteriores Yes
Canada No Yes (TBS) DFAIT No

Footnotes

Footnote 25

Executive Order 13256 on Classified National Security Information.

Return to footnote 25 referrer

Footnote 26

Letter from Nicholas Mulville Murphy, Senior Advisor, Office of Information Programs and Services, (State Department), August 23, 2010.

Return to footnote 26 referrer

Footnote 27

On simple recommendation by the Ministry of Justice, without any restrictions.

Return to footnote 27 referrer