Government Information in Canada/Information gouvernementale au Canada, Number/Numéro 17 (March 1999) Public Access to Government Information in Canada in an Electronic Environment(1) Kirsti Nilsen (2) Increasingly, the Canadian federal government is moving its information and services into electronic formats with the goal of making access widely available over the Internet. This paper looks at the accessibility to government information and implications of current policies in the context of electronic access over the Internet. It incorporates material from a position paper that I prepared for the second Universal Access Workshop, held in February 1997, (3) and concludes with various recommendations. Of particular interest on this topic is a recent paper by Alasdair Roberts on Canada’s Freedom of Information laws. (4) The implications and recommendations of the Roberts paper are considered here as well. In a report proposing policies and initiatives that would "facilitate Canada’s transition to an information society and knowledge economy," the Information Highway Advisory Council (IHAC) recommended that the federal government "play a key role in bringing the Information Highway to Canadians" by becoming a "model user and catalyst for Information Highway developments across Canada." As indicated in the report Building the Information Society: Moving Canada into the 21st Century, ultimately many interactions with government will be possible only via electronic means. The Government of Canada’s Internet Strategy (1995) clearly indicates that it intends to use the "Canada" site on the Internet as a "single-window" access point for services and information available from federal institutions. From general inquiries to filing tax returns, the public will be expected to use electronic formats and pay for products and services using "digital cash," i.e. electronic commerce. A corresponding loss of personal services and of information in paper formats can be expected. This move is seen as "Getting Government Right." The IHAC report notes that the shift to electronic services "will bring about a qualitative improvement in the responsiveness and accessibilty of government," and will enhance the affordability of government. (5) The extent to which this move is driven by deficit/debt reduction and technology imperatives rather than by any ideals of public access is cause for concern. The question of what services and information the government chooses to make widely available over the Internet, and alternative means of accessing that information, need to be considered. Obviously, public access to government services and information will depend on public access to electronic technology. Until every individual in Canada has network access, this outcome will limit public access to government information, particularly among the less well-connected in society. According to the Household Internet Use Survey conducted by Statistics Canada in October, 1997, the extent of Internet use by Canadians is not great. The study found that "nearly 3 out of 10 households had at least one member who typically used a computer every month at home, work or another location to communicate in some respect such as e-mail, electronic banking or simply using the Internet." (6) In other words, 70% of Canadian households use computers less than once a month, or not at all, for communication purposes. The implications for public access of moving government information exclusively into electronic formats was noted in the Final Report of the Information Highway Advisory Council, Preparing Canada for a Digital World: The move to electronic provision of services and information may or may not result in cost savings for government. However, unless Internet use rises astronomically or unless financially viable public access sites can be found at every street corner, it is difficult to see how the government can move toward providing services and information exclusively in electronic format. There will therefore be a continuing need for hard copy, telephones and the postal system to reach and serve people without computers or Internet access. (7) Concurrent with and following the IHAC deliberations, the question of how government should ensure universal access to networked services and what services can be deemed essential became the focus of much discussion involving various stakeholders, For example, three Universal Access Workshops funded by Industry Canada, Canadian Heritage, and other government agencies, were held at the Faculty of Information Studies at the University of Toronto in 1996 and 1997 at which representatives of government, industry, public interest groups, and academia attempted to formulate recommendations guaranteeing universal access that could be implemented at the federal level. In Building the Information Society, the following statement appears: by 1997, the ministers of Industry and Canadian Heritage will develop a national access strategy involving policy, regulatory and other measures to ensure affordable access by all Canadians to essential communications services. (8) The IHAC Final Report noted that "decisions on what information highway services are essential will have far-reaching social, economic and cultural ramifications and should be informed by the viewpoints of industry and the community at large in all its diversity." (9) It recommended that: The federal government should create a national access advisory committee, reporting to the ministers of Industry and Canadian Heritage, to advise on emerging access requirements and on what services will be essential in a knowledge society. The advisory committee should include balanced representation from industry and the non-profit sector. (10) As of October, 1998, there has been no federal action on these recommendations of the two IHAC reports. Present Policy Presently, access to government information is controlled by Crown Copyright, a number of policy directives issued by Treasury Board, and through legislation via the Access to Information Act, and the Privacy Act. Other government-wide policies such as cost-recovery requirements have implications for government information access as well. Individual departmental directives and bureaucratic decisions regarding information holdings can aid or limit access to specific information. Crown Copyright protects published government information in any format. This section of the Copyright Act (s. 12) seeks to protect the Crown's interest in its information and to ensure that property rights to information that is gathered at public expense do not become vested in private individuals or firms. In fact, Crown copyright is a powerful tool for limiting public access to government information. Information Commissioner John Grace has argued in his Annual Reports that Crown copyright is incompatible with the Access to Information Act. Crown copyright prevents wide dissemination of government information though the private sector (as is the practice in the U.S. where government information is not copyrighted). Private sector dissemination of government information leads to value-added inputs and new markets. In Canada, private sector dissemination is not possible except via franchising or contracting agreements. Such agreements have been limited to specific instances, such as contracts to market agency databases. These agreements have not provided for competition in marketing and thus have served to limit access because of high fees. Crown copyright applies to information made available on the Internet, and some government documents on the Net contain copyright statements. The federal government's Internet strategy notes that Crown copyrighted materials may be used by anyone without securing prior permission providing the material is "not going to be reproduced for resale, if the originating agency has included a notice to this effect in their hard-copy publication." (11) While there are cogent arguments on both sides of this question, (12) I would argue that if Crown Copyright were eliminated, government information could be distributed by both the public and private sectors. The government could continue to distribute the information though libraries and via free and priced dissemination, as is the current practice. The information industry and publishers could add value to government information products in order to market the information to a wider audience that would appreciate the added components. Public and private dissemination could be carried on within the wider network services model and users would access government information either via free government web pages or through commercial access points. Government revenues from sale of its information might fall somewhat, but access would certainly be enhanced. Treasury Board has issued a number of government information policy documents since the mid 1980s. Additionally it has issued cost recovery and user fee policies which apply to all government products and services, including information. Of particular interest with respect to access are the Management of Government Information Holdings policy, and Government Communications Policy. The latest iterations of these documents are available on the Internet on the Treasury Board site (http://www.tbs-sct.gc.ca/pubpol_e.html). These documents identify government information as a corporate resource and a commodity, rather than as a public resource or public good. This results in a view of government information as marketable and a source of increased revenue. This approach to government information developed as a result of government cost recovery and restraint initiatives first implemented in the mid-1980s. (13) Today the Cost Recovery and Charging Policy (14) notes, with respect to information products, that departments and agencies should not charge for information they disseminate when it: is needed by individuals to make use of a service or program for which they might be eligible; is required for public understanding of a major new priority, law, policy, program or service; explains the rights, entitlements and obligations of individuals; or informs the public about dangers to health, public safety or protection of the environment. These exceptions to charging requirements are quite limited when one considers the broad scope and many purposes of government publishing. The policy notes that "It is government policy to implement user charges for services that provide identifiable recipients with direct benefits beyond those received by the general public..." (15) The document does note that fees can be lower than full cost when there is a mix of public and private benefits. (16) In a supplementary document, Information on External User Charges, it is noted that "the general public should not bear all the costs of government services in the case where private parties derive a benefit from a service." (17) With respect to information products these statements leave a good deal to individual bureaucratic interpretation. If a citizen requests a government document, is s/he identified as a "private party"? How does the government official know that an "identifiable recipient" is using the information product for private gain and not in such a way as to benefit the general public? An academic researcher or a public policy advocate, for example, might be seen as an identifiable private party, yet be using the information to benefit a wider public. The application of cost recovery policies to information products attempts to identify information as an economic good, rather than a public or merit good. (18) Macaulay raises the question of who should decide about prices for government information, and cites James Love of the (U.S.) lobby group, Taxpayer Assets Project, who stated, "Often the decisions to sell or disseminate for free depend upon the whims of agency officials or lower level technicians, who may not have considered the broader consequences of their actions." (19) The extent to which revenue considerations direct the government's acquisition of information and the subsequent dissemination processes needs to be examined. If government continues to see its information as a revenue-generating resource, the information it freely provides via an enhanced network service will be limited to information that it considers to be not marketable. Alternatively, the government might consider it sufficient to provide only meta-information on the Internet, with references and links to information content which must then be paid for. True universal access to government information would include access to the information itself at minimal or no cost to the user. As long as government is operating under cost-recovery imperatives and fiscal restraint, it will seek to generate revenue from all of its goods and services. The underlying philosophy of citizens as "clients" of a government that must operate on a business-like model will severely limit the amount and nature of government information made available in the new electronic environment. The public's underwriting of government information collection and dissemination through taxation is not premised on the assumption or requirement that the government generate revenues from it, but because it provides information that the government needs in order to function and thereby serves a greater public good. The Access to Information Act guarantees the public's right to unpublished government information (with certain exceptions) in any format. Since it came into effect in 1984, this act has provided for enhanced access to previously unavailable information. However, the Access Act has created problems for government and for users. John Grace, Canada's current Information Commissioner, noted in various Annual Reports that government is not responding to the spirit of the Access to Information Act. Government still controls information dissemination very tightly and the underlying "open access" philosophy of the act is not a bureaucratic imperative. Additionally, government agencies place many barriers to access at the same time that they argue that administering the act is extremely expensive. Barriers such as slow response times, blacking out substantial portions of released documents, charging ever-higher fees for "search time," and the outright denial of any access have been repeatedly documented (see the Annual Reports of the Information Commissioner). It is obvious that government could save itself a great deal of money and time if it simply made information available at the outset, rather than requiring the public to use the Access Act for so much of its information. In his thorough examination of Canada’s freedom of information laws, Alasdair Roberts discusses the problems of the Access Act at some length and provides telling examples. This paper will mainly focus on his comments on the federal law, but one should not overlook his analysis of the provincial situations. Roberts notes familiar difficulties with Canadian laws, considers the new threats caused by restructuring, and makes specific recommendations. Familiar difficulties include the fact that older acts (including the federal act) are more restrictive than acts passed more recently. (20) The federal act excludes many departments and agencies from its requirements, including Crown corporations, such as Canada Post and the CBC. Another difficulty, particularly with respect to provincial acts, is that increasingly a range of records are being excluded. Roberts notes records of provincial legislators in Alberta as one example. (21) The third familiar difficulty, and the one which has caused the most problems for requesters, is noncompliance or adversarialism. Roberts identifies two modes of noncompliance, which he identifies as (1) malicious and (2) administrative noncompliance or adversarialism. Examples of malicious noncompliance that he cites include the problems faced by those who sought records from the Canadian Blood Committee, and the Somalia Inquiry, which concluded that records were deliberately destroyed. (22) Administrative adversarialism includes the bureaucratic resistance described above, resulting in delays, stonewalling, blacking out of text, and fee increases. Roberts notes that the severity of adversarialism is difficult to assess with currently available data. He provides some tables that suggest rates of disclosure, but notes many problems of reliability and interpretation. The new threats to the various acts arise from government restructuring, which has in turn resulted from fiscal pressures. Roberts notes three specific results of restructuring, each of which undermines access rights: Staff cutbacks result in even more delays than were evident earlier in responding to access requests, because insufficient human and financial resources are being assigned to process them. As a result, the principle of timely access, which is written into all of the federal and provincial acts, is not being respected by the various governments. (23) Privatization, or other organizational changes, remove increasing amounts of information out from under the confines of the federal or provincial acts. In many cases, the transfer of functions of the public service to private sector contractors, industry-run associations, or special purpose agencies results in less information accessibility via the Access Act. Roberts cites many specific examples. (24) Commodification of government information resulted from budget restraint and cost-recovery initiatives. Commodification threatens access rights because information that is available for sale is no longer accessible under the Access Act. (25) The emphasis on cost-recovery also threatens access rights as charges for requests rise when departments and agencies attempt to recover costs. The fees deter a large number of citizens from exercising their rights under the law. (26) Among the reasons that Roberts suggests as accounting for failures in the federal Access to Information Act is that the Information Commissioner has little power. The Commissioner can only recommend, not require, release of information. A second reason for failure is the inadequacies of the federal act as it is currently written. As recently as 1996 it appeared that the government was examining and redesigning the act, possibly within the framework of a larger "Information Act," which would provide an integrated approach to access, privacy, and security. However, Roberts notes that "a review of the Act announced in 1994 has apparently been abandoned." (27) A third reason for failure is that there is little or no performance monitoring and no effective collecting and reporting of data. Departments are not required to keep statistical reports and data sufficient to indicate levels of compliance with the act. Under the current law, data compilation or oversight is not a function of the Information Commissioner. (28) Roberts recommends several steps that can be taken to "protect openness" in a restructured public sector, including: Passage of a comprehensive law that covers a wider range of government organizations and government contractors. Narrow restrictions on disclosure and expansion of law to provide a right to records and information. Strengthening the role of the Information Commissioner, with an enforcement mechanism and the right to review fees and price schedules. Performance monitoring assigned to the Commissioner. (29) In response to Roberts' paper, I am reminded that it has been stated somewhere that freedom of information acts are passed only by very young governments. Governments that become entrenched hesitate to release damaging information. In Canada, a new law needs to be passed, but it also needs to be implemented, with support from the top. Lower level bureaucrats need to be encouraged to support the Access Act, and to be protected from negative reactions of embarrassed politicians. As Roberts notes, "The strongest guarantor of access rights is a political executive that is willing to respect them." (30) A truly open government philosophy would result in most information being made available up front, eliminating the need for recourse to the Access to Information Act. Within a universal network services model most government information should be mounted for free public access, enhancing both democracy and government savings. The positive externalities of such a policy for both citizens and business, and for government itself, have not been acknowledged or even recognized by government. Issues The above discussion points to a number of universal access issues, which are discussed next: The term "access" needs to be defined. Government's interpretation of "access" is much narrower than our understanding of the term. For example, Treasury Board has suggested that government's "duty to inform" is limited to information about federal policies, programs and services which should be disseminated free or at subsidized cost within indices and reference tools. (31) Using this interpretation, the government would provide directory entries and listings of purchasable documents, not the information itself. Information rights must be enshrined in any new information legislation. If citizens are to participate fully in society, the right to government information needs to be stated forcefully in any new information act or policy directives. Pricing of government information can limit universal access. Government has a monopoly on the information which it disseminates (because of Crown copyright) and under government revenue-generating initiatives is encouraged to charge whatever it thinks the market will bear. Statistics Canada provides a sterling example of a government agency that has greatly increased prices for electronic (and paper) information. Given that taxpayers have already paid for the collection of government information through their taxes, the resulting information products should be available free or at marginal costs. This would go a long way towards expediting universal access to government information. Preservation and archiving of government information needs to be addressed in an electronic environment. Researchers today can easily find copies of 19th century government documents in large public and academic libraries. Will researchers a century from now be able to find government information on the late 20th century? The long-term historical record of the country must be preserved. Current experience with fast-changing technologies suggests that this is a serious concern which must be addressed before we embark on any wholesale transition to electronic environments. Conclusion The experience of the last two decades suggests that the concept of government information as a corporate resource has overridden the concept of public rights to that information. While much information is being made available on the Internet, present government policy does not suggest that government will provide open and universal access to all of its information in the new environment. Participants in the development of a Canadian access strategy must ensure that a broad vision of universally accessible government information be incorporated in any policy outcome. Information professionals, academics, businesspeople, and average citizens need to involve themselves in this debate. Recommendations Government should adopt an Open Government model which requires it to make all of its information available and accessible (with very limited exceptions, and in compliance with the Privacy Act) to Canadians. Government information should be disseminated electronically via libraries and other public access points to ensure that those without the means of access at home are not marginalized. Information should continue to be produced and disseminated in paper until such time as all Canadians have network access to the same extent that they now have telephones. Meta-information as in directories, lists etc. should be distributed both in paper and electronically. Links to the information itself should be available, without added cost to the user. Crown copyright should be eliminated to allow for widened public access to government information via commercial providers, supplementing government dissemination of the information, and eliminating monopolistic pricing practices. The public right to information should be guaranteed under a broadened Access Act with either no or very limited exceptions and including widened responsibilities and power for the Information Commissioner. Policy statements should emphasize that information is collected at public expense and is not "owned" by the government. Therefore, government and bureaucracy should be encouraged to disseminate information widely in order to inform the public and broaden public discussion and input. The reward system within government (in terms of bureaucratic priorities) should be designed to encourage open public access to government information. Preservation and archiving must be addressed before any government information is moved into an electronic environment. Notes [1] May be cited as/On peut citer comme suit: Kirsti Nilsen. "Public Access to Government Information in Canada in an Electronic Environment." Government Information in Canada/Information gouvernementale au Canada No. 17 (March 1999). [http://www.usask.ca/library/gic/17/nilsen.html] Back to text. [2] Dr. Kirsti Nilsen Lecturer, Graduate Program in Library and Information Science Faculty of Information and Media Studies University of Western Ontario London, Ontario e-mail: knilsen@julian.uwo.ca Back to text. [3] Kirsti Nilsen, "A National Access Strategy for Government Information," position paper for "Developing a Canadian Access Strategy: Universal Access to Essential Network Services." [Second Universal Access Workshop] (6-8 February, 1997). [http://www.fis.utoronto.ca/research/iprp/ua/nilspp.htm] Back to text. [4] Alasdair Roberts, Limited Access: Assessing the Health of Canada’s Freedom of Information Laws (Kingston, ON: School of Policy Studies, Queen’s University, 1998). [http://qsilver.queensu.ca/~foi] Back to text. [5] Information Highway Advisory Council (IHAC), Building the Information Society: Moving Canada into the 21st Century (Ottawa: Supply and Services Canada, 1996), 27. [http://strategis.ic.gc.ca/SSG/ih01103e.html] Back to text. [6] Statistics Canada, "Communicating by Computer," The Daily (17 June, 1998): 6. Back to text. [7] Information Highway Advisory Council (IHAC), Preparing Canada for a Digital World, Final Report, Recommendation 4.22 (Ottawa: IHAC, 1997), 228. [http://strategis.ic.gc.ca/SSG/ih01650e.html] Back to text. [8] IHAC (1996), 24. Back to text. [9] IHAC (1997), 55. Back to text. [10] Ibid., 56. Back to text. [11] The Government of Canada’s Internet Strategy. Government of Canada Internet Guide, Section 4 (Ottawa: Government of Canada, 1995): 6. [http://www.canada.gc.ca/programs/guide/] Back to text. [12] See, for example, Andrew Hubbertz, "Crown Copyright and Privatization of Government Information in Canada, with Comparisons to the United States Experience," Government Publications Review 17 (1990): 159-165. Back to text. [13] See Kirsti Nilsen, "Canadian Government Electronic Information Policy," Government Information Quarterly 10.2 (1993): 203-220; and "Government Information Policy in Canada," Government Information Quarterly 11.2 (1994): 191-209. Back to text. [14] Treasury Board Secretariat, Information on External User Charges (Ottawa, 1997), 6. [http://www.tbs-sct.gc.ca/pubs_pol/opepubs/tb_h/feeinfoe.html] Back to text. [15] Ibid., 2. Back to text. [16] Ibid., 6. Back to text. [17] Treasury Board Secretariat (1997), 1. Back to text. [18] See Calvin A. Kent, "The Privatizing of Government Information: Economic Considerations," Government Publications Review 16 (1989): 113-132. Back to text. [19] Tyson Macaulay, "Cutting Off Access to Government Information: Loopholes in the Access to Information Act Generated by the Information Highway," Journal of Government Information 24 (1997): 7. Back to text. [20] Roberts, 5-8. Back to text. [21] Ibid., 9. Back to text. [22] Ibid., 9-18. Back to text. [23] Ibid., 18-24. Back to text. [24] Ibid., 34-42. Back to text. [25] Ibid., 42-47. Back to text. [26] Ibid., 47-52. Back to text. [27] Ibid., 48. Back to text. [28] Ibid., 59-64. Back to text. [29] Ibid., 54-64. Back to text. [30] Ibid., 64. Back to text. [31] Peter Gillis (Treasury Board), Speech to Industry/Government Colloquium sponsored by Interdepartmental Working Group of Database Industry Support, 17 March, 1993; and see Treasury Board policies. Back to text. REFERENCES Gillis, Peter (Treasury Board). Speech to Industry/Government Colloquium sponsored by Interdepartmental Working Group of Database Industry Support, 17 March, 1993. The Government of Canada’s Internet Strategy. Government of Canada Internet Guide. Ottawa: Government of Canada, 1995. [http://www.canada.gc.ca/programs/guide/] Hubbertz, Andrew. "Crown Copyright and Privatization of Government Information in Canada, with Comparisons to the United States Experience." Government Publications Review 17 (1990): 159-165. Information Highway Advisory Council (IHAC). Preparing Canada for a Digital World. Final Report. Ottawa: IHAC, 1997. [http://strategis.ic.gc.ca/SSG/ih01650e.html] -------. Building the Information Society: Moving Canada into the 21st Century. Ottawa: Supply and Services Canada, 1996. [http://www.ifla.org/documents/infopol/Canada/ic96:1/bd] Kent, Calvin A. "The Privatizing of Government Information: Economic Considerations." Government Publications Review 16 (1989): 113-132. Macaulay, Tyson. "Cutting Off Access to Government Information: Loopholes in the Access to Information Act Generated by the Information Highway." Journal of Government Information 24 (1997): 1-8. Nilsen, Kirsti. "A National Access Strategy for Government Information." Position Paper for: Developing a Canadian Access Strategy: Universal Access to Essential Network Services. [Second Universal Access Workshop]. February 6-8, 1997. [http://www.fis.utoronto.ca/research/iprp/ua/nilspp.htm] -------. "Government Information Policy in Canada." Government Information Quarterly 11.2 (1994): 191-209. -------. "Canadian Government Electronic Information Policy." Government Information Quarterly 10.2 (1993): 203-220. Roberts, Alasdair. Limited Access: Assessing the Health of Canada’s Freedom of Information Laws. Kingston, ON: School of Policy Studies, Queen’s University, 1998. [http://qsilver.queensu.ca/~foi/] Statistics Canada. "Communicating by Computer." The Daily (17 June, 1998): 6. Treasury Board Secretariat. Cost Recovery and Charging Policy. Ottawa, 1997. [http://www.tbs-sct.gc.ca/pubs_pol/opepubs/tb_h/crp_e.html] -------. Information on External User Charges. Ottawa, 1997. [http://www.tbs-sct.gc.ca/pubs_pol/opepubs/tb_h/feeinfoe.html] -------. Government Communications Policy. Ottawa, 1988. Revised November 28, 1996. [http://www.tbs-sct.gc.ca/pubs_pol/ciopubs/tb_cp/comm_e.html] -------. Management of Government Information Holdings. Ottawa, 1989. Revised July 31, 1994. [http://www.tbs-sct.gc.ca/pubs_pol/ciopubs/tb_gih/chap3_1_e.html] Universal Access Workshops. 1996, 1997. For discussion papers and other information see http://www.fis.utoronto.ca/research/iprp/ua. ... [HOME PAGE / PAGE D'ACCUEIL] ...