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The 7th International Conference of Information Commissioners

7th International Conference of Information Commissioners

October 4 – 5, 2011

Theme A. Building Access to Information Regimes: International Benchmarking

Session 1. Oversight: Is there an optimal model for protecting access to information rights?

The panelists for this session discussed the merits of various models for protecting access to information. The panelists were David Fraser, from the Canadian law firm McInnis Cooper, France Houle, Professor, Faculty of Law, University of Montréal, Laverne Jacobs, Associate Professor and Director of Graduate Studies, University of Windsor, and Melanie Ann Pustay, Director of the Office of Information Policy, U.S. Department of Justice. The panel was moderated by John McMillan, Australia’s Information Commissioner.

Panelists identified a number of models for protecting access to information, including those centered on ombudsmen, adjudication, administrative tribunals, and those that are made up of a combination of approaches. They also noted that there were several factors that seemed to affect any given model’s effectiveness.

For example, Laverne Jacobs surveyed members of the media, interest groups, ombudsmen and adjudicators in Quebec on the effectiveness of the ombudsman and adjudicative models. While her study was not conclusive due to a low response rate, it did find that there is a view that ombudsmen require a public education mandate in order to effectively implement solutions through mediation.

A study by France Houle and fellow academic Lorne Sossin, carried out for the Office of the Information Commissioner of Canada, looked at whether administrative tribunals were more effective than ombudsmen, in terms of their order-making powers. The results showed that Canadian provinces that have administrative tribunals say they are more effective but have little data to back that up. Quebec will soon be asking its public institutions for statistics on how access matters get resolved, which may provide a more conclusive assessment of the matter.

The U.S.’s model includes an adjudicative component, explained Melanie Ann Pustay, but it is just one of many aspects of the 45-year-old American system. In her view, the adjudicative model is an important safeguard of access rights, particularly when there are multiple levels of adjudication. In contrast, she said, ombudsmen, by being proactive, may make more information available to requesters.

Ultimately, according to David Fraser, one needs to look at the objective of the system in order to determine which model is best. He noted that the ombudsman model is better suited to moral suasion; however, an ombudsman’s office must be adequately resourced to be effective. A hybrid model—that is, an ombudsman with some adjudicative powers—has been discussed in Canada; however, it has been criticized for possibly increasing costs for requesters.

Session 2. Freedom of information across frontiers: The lifeblood of human rights

During this session, panelists looked at how freedom of information allows individuals to protect their basic human rights and to participate in democracy. The panelists were Nathalie Des Rosiers, General Counsel, Canadian Civil Liberties Association, Ricardo Garcia França, Deputy Ombudsman, Brazil’s Comptroller General’s Office, and Maeve McDonagh, a professor at University College Cork, Ireland. The panel was moderated by Jacqueline Peschard Mariscal, Chief Commissioner, United Mexican States,

Nathalie Des Rosiers led off by noting that access to information is a tool of the trade for a human rights organization such as hers. Primarily, it is a tool of accountability but it is also a tool of empowerment. Information allows citizens to measure whether governments are doing what they said they would, and helps them address wrongs to themselves or others.

When faced with a weak legislative framework, however (such as in Canada, Des Rosier said), human rights groups have to broaden their strategies to be effective. This might include building on case law, pursuing litigation and taking “soft law” approaches, including celebrating positive developments, such as good public websites and proactive disclosure. An out-of-date law also prompts groups such as the Canadian Civil Liberties Association to advocate for legislative reform.

Jurisprudence in Europe shows how taking a broader approach to ensuring access can play out. Moira McDonagh cited a number of cases in which the right of access has been established, or the attempt to establish it has been made, in the context of other human rights, such as the right to a fair trial and the right to life. McDonagh did admit, however, that these arguments are very context-specific, often directly connected to the type of requester and information in question, which may make this approach unlikely to be “generalizable”. Nonetheless, some individuals have had success gaining access to information, which public institutions were otherwise unwilling to release.

Brazil, which is in the early stages of its access to information journey, has already seen instances of officials being reluctant to release information related to government programs set up to help citizens fulfill basic human rights. As Ricardo Garcia França noted, access is a fundamental right in Brazil but also an instrument for the realization of rights. For example, a recent constitutional amendment added the right to food and nutrition, and there are public programs to extend this right. However, the government refused to release information how these programs would run, what criteria would be used to serve people, and the reasons for service being denied. Despite these early difficulties and mixed feelings on the part of legislators about Brazil’s impending access law, Garcia França is of the view that if Brazil wants to transform it economy and society, it has to get information out to citizens—particularly information that impacts people’s daily lives.

Session 3. Access to economic growth: The business case for greater access to information

This session’s panelists set out the business case for greater access to information, and identified advantages and possible risks. The panelists were Thomas Susman, Director, Governmental Affairs, American Bar Association, Huguette Labelle, Chair, Transparency International, and Chancellor of the University of Ottawa, and Michael Geist, Law Professor and Canada Research Chair in Internet and E-Commerce Law at the University of Ottawa. This session was moderated by Brian Beamish, Assistant Commissioner, Office of the Information and Privacy Commissioner, Ontario.

As Huguette Labelle noted, predictability and stability are key to businesses. This sheds light on why businesses should be interested in access to information.

Brian Beamish set out several benefits for businesses in having an open government, beyond being access requesters themselves. They can have access to government databases, which means they can not only participate in policy development but also create new business opportunities for themselves; they can enhance their ability to comply with the variety of legislation to which they may be subject; and they can gain access to a more competitive contract and procurement system, and a more favourable investment climate. 

Panelists also explored the issues of confidence and trust in governments. In general, transparency is a question of trust—trust in those who hold public office and who need to maintain legitimacy, Labelle said. Secrecy breads corruption, extortion and tax evasion Businesses stay away from countries that have these problems. In contrast, greater transparency enhances economic performance, Beamish said. Countries such as China now see open government as a way to attract business, he explained.

Michael Geist rounded out the discussion by giving a history of the development of legal institutions’ free search engines worldwide.

Session 4. Accessing democracy: Freedom of information as a democratic right

Panelists spoke about the history of access to information in their countries, and their experience with it. The panel comprised Alejandro Ferreiro, Conselor, Consejo para la Transparencia, Chile, Ben Leapman, Deputy News Editor, The Sunday Telegraph, and Miriam Nisbet, Director, Office of Government Services, U.S. National Archives and Records Administration. This panel was moderated by Graham Smith, Deputy Information Commissioner for the UK.

The U.S. Freedom of Information Act dates from 1966. It has been amended every 8 to 10 years, in the areas of exemptions, fees, time limits, law enforcement and technology, among others. “The law cannot be static,” Miriam Nisbet said.

In Nisbet’s experience, there are several keys to the successful implementation of the law: leadership (including the executive responsibility), having enforcement mechanisms, training the professionals who administer the law, and educating the public on how to use it.

But even as governments become more proactive in disclosing information, Nisbet says democracies still need access to information laws. Government officials do not always know what people want and do not always want to release information. People must always be able to ask and get an answer, and must have a venue to appeal.

The United Kingdom’s freedom of information law was passed in 2005. It covers government, Parliament (but not individual members of Parliament) and public bodies.

Ben Leapman was one of three journalists who asked in 2005 for information about how much MPs were paid under their housing allowance. It was an early test of the new law, and the resulting scandal led to the resignation of a number of MPs. Leapman said the law has since been accepted as a way to get information not otherwise available.

There have also been attempts to weaken the law and to get around it. Leapman noted that steps need to be taken to strengthen the law: extending it to bodies not covered, setting time limits for responses, strengthening the public interest test, and making the law impossible to work around.

Alejandro Ferreiro spoke eloquently about the benefits of transparency for organizations, citizens and the country in general. “In a democracy it is important to transfer the power of information from the government to the people, since democracy is about power in the people.” And, while acknowledging that the release of information and other transparency measures can lead to embarrassment for officials, he said that, in the end, they will perform better.

Chile’s access law was implemented in 2009, and Ferreiro said that it is a good law that is giving citizens access to everything the Chilean government holds. The question is, as he explained, what is “everything”? Do we know the extent of the information the government holds? This can lead to a situation in which the government can claim that no records exist in response to a record, and it would be impossible to argue against this. In light of this, Ferreiro said, the government must establish clear rules about archives, and have an orderly system of filing and document classification or Chile will face significant shortcomings in the application of the law.

Session 5. Radical access: The challenges and opportunities presented by WikiLeaks and the radical release of information

The panel addressed the politics of openness and secrecy in the context of WikiLeaks. The panelists were Alasdair Roberts, Rappaport Professor of Law and Public Policy, Suffolk University, Jennifer Lynch, Staff Attorney, Electronic Frontier Foundation, International, and George MacLean, Associate Dean of Graduate Studies, University of Manitoba. This panel was moderated by Catherine Tully, Assistant Information Commissioner for B.C.

Alasdair Roberts described the WikiLeaks phenomenon as the illusion of transparency. It was supposed to be the end of secrecy and to create a diplomatic crisis. However, the website fell short for four reasons: overestimation of the magnitude of the leak, underestimation of the required data analysis, overestimation of the public outrage, and underestimation of both the willingness of business to support the effort and governments to fight back.

Jennifer Lynch provided some context, speaking about leaks and their effect on transparency. For example, according to a Washington Post article, 1.4 million people have Top Secret clearance, and 4.2 million more have clearance at a lower level. This has led to the U.S. government filing five national security-related prosecutions under the Espionage Act against officials who had leaked information to the media. It is Lynch’s view that whistleblowers such as these have an important role bringing waste and abuse to light. However, she does not consider WikiLeaks a whistleblower. Rather, it is a conduit for information leaked by others. In fact, the WikiLeaks episode could end up with governments implementing measures to ensure secrecy.

George MacLean agreed that WikiLeaks is not a whistleblower, calling it instead, “an information dump” requiring analysis. And it is this fact that, while not completely negating the benefits of technology-driven transparency, limits the ultimate usefulness of WikiLeaks. MacLean also pointed out that WikiLeaks engages in illegal behaviour, since the information it leaks is protected by U.S. law. And, he cautioned journalists who consider using WikiLeaks data, due to its lack of context and the difficulty in some cases of ascertaining its accuracy.

Session 6. Limiting the limitations: Designing exemptions that balance both effective and accountable governance

Panelists explored various exemption schemes and evaluated their effectiveness at achieving a balance between transparency and the legitimate protection of some types of information. The panelists were Craig Forcese, Associate Professor of Common Law, University of Ottawa, András Jóri, Hungarian Parliamentary Commissioner for Data Protection and Freedom of Information, Julie Kinross, Information Commissioner, Queensland, Australia, and Muhammad Zamir, Chief Information Commissioner, Bangladesh. This panel was moderated by Dulcie McCallum, Freedom of Information and Protection of Privacy Review Officer (Nova Scotia).

Muhammad Zamir led off by explaining that Bangladesh’s access law, which has been in place since 2009, features exemptions for foreign policy, intellectual property and safety. Zamir noted that national security may be used as a reason to deny access in the face of immediate threats. However, the exemption is becoming a tool to protect politicians and covering up past blunders.

More positively, Bangladesh is increasingly releasing information proactively (e.g. budget information and details of public procurements), which is helping limit the limitations on access.

The new access law for Queensland, Australia, is reducing the limitations by simply having fewer of them in the law. Julie Kinross said that the new Act has about half the exemptions of the previous one. Otherwise, all other information must be released unless it would be against the public interest to do so.

This has changed the decision process and requires agencies to consider impact of release. In addition to a list of factors to consider, there is also a list of irrelevant ones (e.g. embarrassment of someone) that officials must disregard. Kinross said that the intention behind including these lists was to remove the debate around releasing records and to limit the surfeit of secrecy.

That said, even with a well-structured law there are, in Kinross’s view, necessary preconditions for it to be successful, among them a favourable policy moment, congruent political will and a supportive strategic information policy driven by the executive branch.

András Jóri listed three main exemptions in the Hungarian access law. The first relates to personal data. This includes personal information of anyone carrying out a state or local government function. There has been some debate about exactly what those functions are.

Under the second exemption, preparatory documents (mostly Cabinet documents) are not public for 10 years, unless the head of agency decides otherwise. There was an exemption for documents prepared “for internal use,” but it was ruled to be unconstitutional.

The final exemption is for classified information, and there is no public interest test. The information commissioner has the right to review whether this exemption is applied property.

Summing up the discussion, Craig Forcese noted that, if he could decide these things, exceptions to access would themselves be exceptional.

Forcese quoted a judge who made the point that the most brilliant legislature can never craft exceptions that will stave off underhanded application. Nowhere is this clearer than with regard to national security, around which there is a secrecy law complex.

In the area of national security, there is more than just an exemption. There is also a carve-out that exempts records in this area from scrutiny, including by the Commissioner. It has not been used much but it does undermine the law.

Forcese said there is as a secrecy obsession among federal officials, characterized by centralization of control of information, and a floating reinterpretation of the needs of secrecy that reflects a changing culture. Officials themselves assess government information for disclosure, and their interpretation of exemptions varies.

When you design an information law, he said, you should house all the exceptions in one place, draft them with sufficient detail so they are clear and all on an equal footing. Finally, their application must be subject to review by an ombudsman.

Theme B. Beyond access: Convergence of freedom of information, proactive disclosure and open government

Session 7. Diagnosing access: Developing tools for evaluating access to information regimes

Panelists discussed several initiatives that each look at assessing access to information from a different perspective. The members of the panel were Sandra Coliver, Senior Legal Officer, Open Justice Initiative, Toby Mendel, Executive Director, Centre for Law and Democracy, International, and Laura Neuman, Associate Director, Americas Program, the Carter Centre. This panel was moderated by Irene Hamilton, Manitoba Ombudsman.

Toby Mendel explained the RTI Rating, an assessment of the legal framework for access in countries around the world. The Rating used 61 indicators in six categories, come of which were weighted. The indicators were based on international law, standards and best practices, and were intended to allow for rational assessment of the standards laws should meet.

A number of countries from the former Yugoslavia were among the top 10. Also of note was that many young laws got better scores than older ones. Mendel said that a rating like this is a powerful advocacy tool but, more importantly, it offers a detailed assessment of weaknesses in laws. Mendel’s group has been asked to review several draft laws.

Under the Six Questions Campaign Mendel submitted six requests for budget information in 80 countries (and repeated the request up to three times as necessary). Overall, compliance was very, very low. Generally, the longer a country had had a law, the better it did.

Looking at the results of the implementation of an access law is a standard way of assessing effectiveness. Laura Neuman’s project, however, is looking at the inputs by asking a very basic question: To what extent is an agency capable of and prepared to provide information and respond to requests? This is not about compliance, quality of output or how agencies treat requesters, but rather the “plumbing” of implementation, she explained.

The project is still in development, but Neuman says the team has learned valuable lessons so far that can be applied to other assessment projects. For example, there are no clear international standards for plans to implement access laws.

Sandra Coliver is drafting principles on national security and the right to information, in light of increased efforts around the world to tighten secrecy and classification laws.

Actually defining “national security” was the first challenge, Coliver said. The team wanted to have a narrow definition to ensure it wouldn’t promote over-classification but it also needed to be practical and useful.

Among other topics, the draft principles cover are the categories of information that could be subject to a public interest test, the role of oversight bodies and possibly the usefulness of having a separate group designated to deal with national security issues, and the circumstances under which access could be legitimately restricted.

Session 8. Controlling access: Responding to political and administrative resistance to access

Panelists from the media, academia and oversight bodies explored the causes of political and administrative interference with the access to information process and how it can be deterred. The panel comprised Dean Beeby, Ottawa Deputy Bureau Chief, The Canadian Press, Greg Michener, Professor of Political Science and co-founder of Brasil Aberto, and Emily O’Reilly, Ombudsman and Information Commissioner of Ireland. This panel was moderated by Duff Conacher, Founder of Democracy Watch and Director of Consulting.

Dean Beeby has made around 5,000 requests under Canada’s Access to Information Act in his career as a journalist. Generally, Canadians have been well served by the Act, he said; however, the system is broken. The government has found effective ways to thwart the Act, and now only a handful of journalists use it. Moreover, there aren’t enough strong voices pressing the government to either improve the law or administer it better. In addition, none of the federal parties had access to information reform in their recent election platforms, which means there are no promises to keep in that area. For its part, the public is not demanding change because it does not realize the value of the Act; their focus is on privacy issues.

Beeby suggested the following steps need to be taken in order to effect change:

  • The business community has to step up. It has a vested interest in ending waste, favouritism and creating a better business climate.
  • Public servants in access units need to speak up, and the Information Commissioner needs to get briefings from whistle blowers.
  • The media needs to challenge the government in court more often
  • The law has to be reformed. There needs to be a lobby to make this happen.
  • The Commissioner should put more resources into investigations, particularly systemic ones, and leave advocacy to other groups.

Emily O’Reilly noted that no matter how good information commissioners are, they will only be as good as their government’s culture will let them be. In her view, access to information is about government control. Consequently, freedom of information and proactive disclosure/open government, in fact, very rarely converge.

Greg Michener discussed his study on what makes countries adopt strong or weak access laws, or no legislation at all. Factors that influence this decision include the degree of media coverage or strong civil society, as well as political leadership.

Session 9. 20/20 vision: Can freedom of information laws be future-proofed?

During this session, the panel members looked at how to countries can keep their access to information laws up to date with the requirements of open government. The panelists were Helen Darbishire, Executive Director, Access Info Europe, Kevin Dunion, Information Commissioner, Scotland, and Moira Paterson, author and Associate Professor, Monash University, Australia. This panel was moderated by Frank Work, Alberta’s Information and Privacy Commissioner.

Kevin Dunion began the discussion by noting that access laws have actually shown tremendous resilience and ability to deal with change. For example, the request process used to be all paper-based. Now it involves searching an electronic database, creating a digest, and emailing it back to the requester. All this was achieved without changing the law.

Nonetheless, there are emerging challenges, often technology-related, which cause one to ask whether the law can be constantly re-interpreted without being amended? When first dealing with requests submitted by email, Dunion’s office had to determine whether an email address constituted an actual address Open government is changing the access world, too, particularly, as private individuals, companies and non-governmental organizations give or sell government data to people to use as they wish.

What could be possibly wrong with all of this? Nothing, Dunion said, but it may present the ultimate challenge to the law—that is, that the push to provide what the government thinks is useful will be used to restrict what is available under access legislation.

So, how do we ensure we can continue to achieve the fundamental objectives of freedom of information laws? asked Moira Paterson. Supporters can articulate them in democratic terms, particularly with regard to citizen participation. They can also be justified on a fiduciary basis. However, a number of factors can undermine these efforts, such as the transitory nature of much modern communications, and that there are many ways for officials to avoid following the letter of the law. One response is to ensure good information management practices and to integrate freedom of information with public records management, as is being done in Australia.

The reach of many laws has been diminished as governments outsource services, providing fewer themselves. This requires criteria-based rules for including bodies in the access law. However, there is no universal agreement on what constitutes “government,” and it can be problematic to add bodies by regulation because you can do that (and take them out) without parliamentary oversight.

Fundamentally, the perceived value of an access regime needs to be upheld, Paterson said. For example, access must be administered consistently and in ways that make it valuable to the community, including young people in particular. There’s no point otherwise, Paterson said. And, to the extent that a law doesn’t work, there is a danger of losing the political imperative for its continued existence.

Helen Darbishire set out seven keys points for future-proofing access laws—or, in fact, present-proofing them:

  • Do not forget that freedom of information is a right. And, if it is a right, why has there been so little debate about whether it should apply to a much wider group of bodies.
  • Beware of transparency washing. Open government initiatives are great but they should be supporting the right of access.
  • There needs to be a discussion about what access as a right means in terms of reusing information.
  • It’s important to design disclosure into legislative and technical frameworks. For example, is information legally ready to disclose (with private information tagged)? Perhaps there is a need to create legal obligations to collect data as is done well in the environmental field.
  • You need appropriate levels of transparency. WikiLeaks was a shock to the system but shows that if you over-classify, you’re likely to have leaks. There are also huge cultural differences with regard to the interpretation of exceptions.
  • The community of information officers must be strengthened.
  • We need to know the extent the right is being protected if we’re going to move into the future.

Session 10. Accessing citizens: Engaging and leveraging stakeholders in the cause of access to information

This panel explored how the media, academia, civil society groups can work together with ombudspersons to influence governments about the importance of access to information. The panelists were Duff Conacher, Founder of Democracy Watch and Director of Consulting, Gary Dickson, Information and Privacy Commissioner, Saskatchewan, Alexander Dix, Berlin Data Protection and Information Commissioner, and Andrew Puddephatt, Director, Global Partners and Associates. This panel was moderated by Vincent Kazmierski, Assistant Professor of Law, Carleton University.

Panelists named a number of players who are well placed to engage stakeholders. Gary Dickson put forth the view that access coordinators (departmental officials) are in the best position to do this, and that information commissioners need to assist and empower them. At the same time, vocal critics of the access system have much to contribute to the conversion, as do members of the public and legislators.

Alexander Dix noted that it is possible to get public support for transparency, although success is likely to be greater in some areas more than others (e.g. public utilities, the environment). He also said that the increase of the number of private-public partnerships may lead to greater transparency, since, for example, Berlin has a public interest override even for trade secrets.

Andrew Puddephatt further specified that the information the public is interested in is local, which is why websites that focus on local issues are so popular. In light of this, governments need to recognize the value of the information they hold that would be of interest to people, and recognize that information is a national asset.

This would go some way to engaging people in the access issue, since otherwise, as Duff Conacher said, it is too abstract. The question is how to make it real, to demonstrate to people that secrecy hurts them. Among the challenges, in Canada, however, is that issue-oriented groups are concerned about the disclosure provisions of specific acts, not the Access to Information Act in general. Similarly, many open government advocates are not, in his view, even familiar with the Act. Instead, these people need to be harnessed for legislative reform, too. The key to success, he said, is to tie reform to a specific situation and make news. In Canada, in particular, there needs to be a statutory five-year review as there is for other laws.

Theme C. The impact of technology on freedom of information

Session 11. Open data: A world of possibilities

During this session, panelists presented the case for and the impact of open data. The panel was made up of Nathan Cullen, Member of Parliament and former chair of the House of Commons Standing Committee on Access to Information, Privacy and Ethics, David Eaves, Canadian open government advocate, and Peter Schaar, Federal Commissioner, Data Protection and Freedom of Information, Germany. This panel was moderated by Maria MacDonald, Information and Privacy Commissioner for PEI.

Peter Schaar asked a key question that came up several times during the conference: how much overlap is there between open government, open data and access? The common denominator, he noted, is transparency, but when, for example, public data is sold, a better approach may be needed.

Open government should be an easy exchange of information between citizens and government through electronic means. In contrast, open data is founded on there not being a monopoly on information by big players, including the state.

As information commissioners, where are the links among these and how can we establish them in a useful way? One possibility is a central electronic register of public information. There also needs to be cooperation between civil society, journalists, activists and businesses to build a coalition pushing for more open government.

David Eaves countered that such a broad coalition already exists but that efforts are hampered by looking at open government simply as the right thing to do. Another way to look at it, he proposed, is in terms of efficiency, since the biggest users of government information are public servants. In this way, you engage a large group of open government allies.

Eaves posited three laws of open data. If the data doesn’t conform to these, it is not open:

  • If it can’t be spidered or indexed, it doesn’t exist
  • If it isn’t in open and machine-readable formats, it can’t be used
  • If a legal framework doesn’t allow it to be repurposed, it doesn’t empower

To this end, Eaves recommended, among other things, that information commissioners insist that all records be released in machine-readable form. Handing a citizen 500 scanned PDFs is an insult, he said.

Nathan Cullen rounded out the discussion by offering an opposition politician’s perspective. Governments have a, perhaps understandable, suspicion of the voter or those transporting the message to them, he said. Expectations also shift underneath government (e.g. technology) over time. Nonetheless, governments are not addressing the barriers to access but are placing more in the way. As an example, he cited a recent instance when the government prohibited Canadian scientists from speaking to the media about a study they conducted. Cullen concluded by saying that “we need to find a way to make government less fearful.”

Session 12: The challenge of implementing a technological platform for freedom of information

Panelists in this session discussed how technology can be deployed in support of state-of-the-art open government projects. The panelists were Corinne Charette, Chief Information Officer, Treasury Board of Canada, Andrew Ecclestone, New Zealand researcher and consultant, Susan Infantino, Legal Director, Google Transparency Project, and Chris Moore, Chief Information Officer, City of Edmonton. This panel was moderated by David McKie, CBC News Investigations Unit.

Summary to come!