Government Information in Canada/Information gouvernementale au Canada, Number/Numéro 17 (March 1999)
All of us in Canada with an interest in freedom of information should be grateful to Professor Roberts for his recent landmark study, Limited Access: Assessing the Health of Canada’s Freedom of Information Laws. What sets this study apart is, in the first instance, its comprehensiveness. Roberts surveys the status of freedom of information (FOI) laws in the federal government, and in the twelve provincial and territorial governments. What emerge are patterns of success and failure, which are seldom unique to a particular jurisdiction or level of government.
The report is also comprehensive in addressing not only the familiar threats to FOI, which he identifies as exclusion of governmental institutions, exclusion of some classes of government record, and the practice of non-compliance, but also the indirect effects of public sector restructuring. If governments reduce funding for access officials, access may be reduced or delayed. If governments out-source functions to non-governmental bodies beyond the pale of FOI, access may also be denied. The growing practice of generating revenue from the sale of government information may reduce access if fees are excessive, as they often are. The report presents us therefore with a taxonomy of FOI troubles, as well as some recommendations for their cure.
The question of generating revenue from the sale of government information is one that particularly interests me, and I would like to expand on the issues raised by Roberts in section 3.3.1 of his report:
Roberts discusses several cases from British Columbia and Ontario which hinge chiefly on the sale of government information in electronic format. By and large, he is describing cases where information is now available electronically, sometimes at exorbitant prices, that previously and as unpublished information would have been available under FOI.
As important as these cases may be, we need to look more broadly at the effects of commercializing government information, including what is happening to "ordinary" published information, such as legislative records, statutes and regulations, annual reports of government institutions, public accounts, statistics, maps, scientific reports, and the like. As it turns out, there is plentiful evidence that access is being curtailed in a number of ways, particularly when print publications move to electronic formats. It will help to look at a few examples.
For nearly a century, Environment Canada and its predecessor agencies published daily weather information for several thousand stations across the country. This information included daily highs and lows, precipitation, solar radiation and the like. The data was published in the Monthly Meteorological Record, which was placed in public, academic, and legislative libraries in Canada through the Depository Services Program (DSP). In the early 1990s, this publication ceased, eventually to be replaced by a number of CD-ROM products. To date, Environment Canada has refused to place these products in the DSP, claiming an exemption for electronic data from the Program (a claim disputed by the DSP). The price for a complete set of daily data for Canada costs $4000 for a single user. In addition, the purchaser must consent to a license agreement which forbids sharing or transferring the data to another person.3
Similar data on streamflow, i.e. daily information on the flow of water in Canadian rivers, used to be published and placed in the DSP, but is now only available on CD-ROM.
Although commodification of information occurs most frequently when print publications move to electronic distribution, there are also examples strictly within the domain of print. A 36 page Arctic Ice Atlas was published in 1996 for $1000. Environment Canada has refused to place it in the DSP. Earlier editions, published at $20 in 1976 and ranging up to $120 in 1981, were placed in the DSP. According to information obtained under the Access to Information Act, as of March 1997 only six copies of the 1996 atlas were sold. One copy was sold to the National Archives of Canada; there are no copies in any Canadian public, academic, or legislative library.
In these cases, environmental information that previously was published and available to Canadians in their local library is now available only at a significant fee. This most commonly occurs when information goes from paper to electronic formats.
A somewhat different situation has occurred in Saskatchewan with respect to an electronic version of provincial Statutes on the Internet. This service, introduced in 1997, does not replace the paper version, which is still published and remains the legal version in courts of law. Nonetheless, for many users, including shut-ins and those outside urban centres, the Internet version may well be the preferred choice. According to Statistics Canada, nearly 30% of Saskatchewan households have access to the Internet; for many of these households, even those in cities, the electronic version will be preferred.
Access to the Internet version of the Statutes of Saskatchewan requires an initial payment of $95 per annum. As of 1998, there have been only 570 subscriptions, one third of them purchased by the Government of Saskatchewan itself. In a province of some one million people, there are less than 300 non-governmental subscribers, indicating that the pricing structure is an effective barrier to access.
As these examples illustrate, attempts to generate revenue from the sale of ordinary, published government information is an increasingly important barrier to access. This is particularly true when information migrates to electronic format.
The situation creates a curious anomaly. A $5 FOI request to the Department of the Environment may impose considerable expense upon the government when it comes to locating the required information. (Treasury Board estimates that the average FOI request costs the federal government more than $2000.) Meanwhile, basic environmental data, such as streamflow in the Saguenay River, or daily precipitation in the prairies, is treated as a commercial product, only available upon payment of hundreds or thousands of dollars. Unlike information supplied under FOI, this information is an "off the shelf" product, requiring very little incremental cost to the Department.
This pattern, which is repeated across governments and government institutions, leads me to propose that we expand our thinking about FOI to include published, as well as unpublished, information. It is meaningless to give citizens rights to look through government files if they do not have reasonable access to statutes, statistics, scientific reports, and other published information.
FOI and privacy law provides access to unpublished
information held by governments. For access to published
information, we rely upon a variety of instruments, including:
A depository program, for example, insures that all citizens, regardless of their economic condition, have access to expensive publications like statutes.
We may look upon published and unpublished information as twin pillars supporting public access:
Roberts indicates that governments are avoiding FOI by selling information, thereby placing it beyond the reach of the law. The model I present suggests an alternate approach. If information is published in a manner that allows equitable access, it is moved from the domain of FOI, where the unit cost of service is very high, to a domain where the unit cost is very low. Publishing information may in fact reduce the cost of FOI, while improving access. Not all information is suitable for this transition; however, electronic distribution is making it increasingly realistic.
The logic of this viewpoint is supported by a case from the late 1980s. Over several years, a single requester placed more than 4,500 requests for information with Revenue Canada Taxation, obliging the Department to have as many as ten full-time employees dedicated to fulfilling his requests. Though not obliged to do so, the requester made it clear that he was offering the information so obtained to subscribers to his tax information newsletter. The Information Officer comments:
How we coordinate access to published and unpublished government information is likely to vary from one jurisdiction to the next. In the first place, different jurisdictions have different mechanisms for disseminating published information. Some have depository programs, and some do not. Moreover, FOI and privacy legislation tends to be discrete and easily identified. On the other hand, government publishing may be subject to many pieces of legislation, regulation, and policy directive. For example, publication of federal statutes is determined by the Publication of Statutes Act; publication of federal regulations is determined by the Statutory Instruments Act; the Depository Services Program is regulated by Treasury Board directive; most legislation establishing a government institution will specify that it must table an annual report in the legislature.
In the case of a jurisdiction having a depository program, it is desirable that the program be integrated into the FOI legislation. The program would then be secure from sudden and arbitrary dismemberment, something attempted by the federal government in the late 1970s. As well, it would "trump" policies and practices which would seem to deny access in order to maximize revenues. And placing the program under FOI legislation would accord it the recognition it deserves, as an element contributing to public access.
Other principles that might be incorporated into FOI
legislation include the following:
Although one sometimes despairs at the intransigence of government institutions more concerned with revenues than fulfilling their mandates, we should also celebrate the progress that has been made toward open government. The barriers to access created by cost-recovery and revenue generation follow from the "government-as-business" philosophies of the 1980s and from more recent, desperate attempts to control deficit spending. While there is some good that has come out of the business-oriented model, we can expect that it will go the way of other fads, and that a more positive concept of public service may reassert itself. When it does (and the pendulum may be already swinging in that direction), the senior public servants who are the chief architects of these policies may be more inclined to give Canadians free access to the information created with their tax dollars.
Revenue generation is inevitably at odds with open government. While the former has its source in recent theories of government management and in deficit reduction, open government finds its justification in the more enduring problem of keeping government accountable. Our system concentrates enormous power in the hands of cabinet. In theory, abuse of that power is kept in check by an alert legislature. While oversight has certainly never been fully adequate, the growth of government in size and complexity has made that goal increasingly elusive. Legislatures retain the constitutional obligation to hold government accountable, but the pursuit of oversight is diffused across society and includes the participation of not only the legislature, but also legislative officials (auditors general, information commissioners, ombudsmen, etc.), the courts, the media, professional and interest groups, and ordinary citizens. What question period is to the legislature, FOI and access to information is to the rest of us. Although there may be back-sliding, in my view the values embodied in FOI will triumph in the long run. Let us hope it does not take too long.
 May be cited as/On peut citer comme suit:
Andrew Hubbertz. "Response to 'Closing
the Window: How Public Sector Restructuring Limits Access to Government
Information.'" Government Information in Canada/Information
gouvernementale au Canada No. 17 (March 1999).
In a letter dated March 13, 1997, Environment Canada indicated that the
cost of producing the Atlas was $115,000. Copies were sold to: In addition, the Atlas was distributed at no direct cost, "in
accordance with joint operational procedures" to:
In addition, the Atlas was distributed at no direct cost, "in accordance with joint operational procedures" to: