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Government Information in Canada/Information gouvernementale au
Canada, Volume 3, number/numéro 1 (summer/été
1996)
A New Instrument for Public Accountability 1, 2
Counsel, Information Law and Privacy Section Department of Justice
La législation sur l'accès à l'information est l'un des
nombreux outils qui permettent d'assurer
l'intégrité de la vie publique. Dans le présent
article, nous examinons les principaux éléments de cette
législation, et notamment le rôle des exemptions. Enfin,
nous nous penchons sur le contexte de la législation sur
l'accès, en particulier la
législation complémentaire, la procédure
administrative, ainsi que l'impact des
nouvelles technologies.
Introduction: Access to Information Legislation is One of Many
Tools to Ensure Integrity in Public Life
There are many tools for developing integrity in public life, among
which this article argues for the importance of access to information
legislation.
There are approximately a dozen countries in the world that have access
legislation. Beginning in 1977, every federal, provincial and territorial
government in Canada (except Prince Edward Island) has adopted a freedom
of information law. There were approximately 100,000 access requests to
the federal government in the first decade of the federal Access to
Information Act 4 and the number
of requests has now leveled off to approximately 10,000 requests per year.
It is clear that Canadians support their freedom of information rights and
the accountability and public integrity these rights promote.
Although we believe that access to information legislation is
important, we recognize that that it is only one of a number of building
blocks that should be used to ensure integrity in public life.
Any discussion of integrity in public life should begin with the twin
pillars of our commonwealth heritage: a commitment to the rule of law and
to the accountability of the Executive to the people. The rule of law
ensures integrity by making it clear that everyone in the country, from
the most powerful to the weakest, is subject to the same laws. The rule of
law also ensures that senior leaders cannot rule by decree. To support the
rule of law we have developed a strong, independent judiciary, one that
has the power, and indeed the duty, to strike down laws which do not
accord with our constitution, which includes our Charter of Rights and
Freedoms. 5
The second pillar of integrity in public life is the accountability of
the Executive to the people of the country. In our commonwealth heritage
this is seen in our strong parliamentary tradition, where the Executive
Branch of government is accountable to the elected representatives. In
Canada, this means that the Executive is formed from among those persons
elected by the public, and the other elected representatives of the people
have the right to ask questions of the Executive, introduce their own
legislative proposals and call votes of non-confidence against the
government of the day. This accountability of the Executive to the people
is supported by fair elections and universal suffrage. Thus, the rule of
law, a strong judiciary, an Executive accountable to Parliament, and free
elections, are the cornerstones for ensuring integrity in public life.
However, these are not enough.
Basic human rights play an important role in ensuring integrity in
public life, and most especially, freedom of speech and of the press. The
media play a very important role in helping ensure that there is integrity
in public life by exposing examples where such integrity does not exist.
However, freedom of the press, the rule of law, and free elections all
depend to a large extent on the literacy of the population.
Although "literacy" is not stated as a right in our Charter of Rights
and Freedoms, we recognize that without literacy citizens have a very
limited ability to hold governing officials accountable. It is probably
fair to say that illiteracy is a problem for all countries, including
Canada. Although we are fortunate to have very high rates of literacy, we
know there are significant numbers of Canadians who have a very limited
ability to read and write. Our Department of Human Resources Development
has a National Literacy Secretariat whose role is to address this
problem. It is difficult to imagine how any country can achieve genuine
accountability of the Executive unless it devotes its energies to the
literacy of its people.
In Canada, we are very fortunate. We take for granted literacy, the
rule of law, an independent judiciary, the accountability of the Executive
to the people, fair elections, and freedom of the press. With this base,
we have been able to explore other methods to further enhance integrity in
public life (including, for example, conflict of interest guidelines for
elected officials and public servants). One of those other methods was the
enactment of freedom of information laws. The first such law in Canada was
passed by the province of Nova Scotia in 1977. Today, almost every
provincial and territorial government in Canada has freedom of information
legislation. The federal government's access law, known as the
Access to Information Act, was enacted in 1982 (the same year our
Charter of Rights and Freedoms came into force).
Many other countries around the world have also adopted freedom of
information legislation. To the south of Canada, we have the example of
the United States, where the federal government and most state governments
have freedom of information laws, which include "Open Meeting" laws. These
are sometimes known as "Government in the Sunshine" laws. Among our
Commonwealth cousins, Australia and New Zealand have freedom of
information laws, and we understand that South Africa is developing its
own freedom of information law.
Access to Information Laws: Basic Principles
Access laws vary, both within Canada and around the world, but the
basic principle is the same for all of them: providing a guaranteed,
statutory right of access to government records. Here are the other basics
of most freedom of information regimes.
1. What records are subject to the Act?
The Act should explain which records are subject to the law.
Generally, this is done in two ways. First, by defining "records", and
second, by explaining which institutions are subject to the law. Some Acts
list the institutions that are subject to the Act. If an institution is
not on the list, it is not subject to the Act. Other Acts define "public
body": if an institution is a "public body", it is subject to the Act.
Most Acts give a very broad definition of the word records.
Generally, a "record" is any document, video, audio recording or
electronic file, and any copy of such a record. Thus, it does not matter
if the original is located elsewhere.
Canada's federal Access to Information Act says that the Act
applies to records "under the control of" any government institution
listed in the Schedule to the Act. Courts have interpreted the phrase
under the control of very broadly. Thus, any record in the
physical possession of a government institution, no matter how that record
was obtained, no matter what promise of confidentiality was made to obtain
the record, is subject to the Act. In addition, where a government enters
into a contract or funding agreement with a third party, and the agreement
specifies that the government has a right to receive or review records
produced under that agreement, then those records are also subject to the
Act, even if the government has never had physical possession of them.
2. What records does the government hold?
The Act should require the government to tell its citizens what
records it holds. The federal government in Canada does so through a
publication called InfoSource 6, which names all of the government institutions
subject to the federal Act, describes the programs and activities of those
institutions, and describes their various information holdings.
3. Who will respond to a request?
The Act should request government institutions to provide a mechanism
for responding to access to information requests. Under the federal Act,
each federal institution has an office that is responsible for providing
access to information. This office receives requests for information,
seeks out that information from the various places within the institution,
and provides a reading room where requesters can review the records, or
makes copies and sends these to the requester. Under most freedom of
information laws, it is the requester who chooses whether to receive
copies or to read the documents, not the institution.
4. What time limits and fee limits are there?
The Act should limit how long an institution can take to respond to a
request for information and how much it can charge for that information.
If institutions can delay their responses indefinitely, or can charge high
fees for access to information, then either of these mechanisms could
defeat the entire purpose of the freedom of information regime. Under
Canada's federal law, institutions must respond to a request within 30
days but can extend that limit for a reasonable period of time if there
are special circumstances, such as an unusually large number of records to
deal with. Under our federal Act, fees are limited and the government
recovers almost none of the costs of providing access to information.
Some people argue that requesters should pay more for the access they
receive, but this depends very much on one's perception of the role of the
Act. If access to information is seen as an important tool for promoting
accountability of government to its citizens, then it may be appropriate
to compare the cost of providing access to government information to the
cost of conducting elections or operating the courts. No one would suggest
that elections be funded on a user-pay basis, or that the cost of
operating the courts be paid by the people who come before them. To
have an open, democratic society, certain institutions are required and
are in the general interest of all citizens, not just those citizens who
vote, who use the courts, or who make access to information requests.
5. Are there limits to what kinds of information must be
disclosed?
The Act should allow some kinds of information not to be disclosed,
especially if disclosure could cause harm. These limits are known as
"exemptions" and will be discussed in greater detail later in this paper.
6. What happens if there is exempt and non-exempt
information in a record?
The Act should require the government to sever exempt information and
disclose the remaining information, and to state the exemption it used to
withhold some information. Generally this is done by blanking out exempt
information when photocopies are made.
7. What happens if there is a disagreement about how the
law should apply?
One of the principles of the rule of law generally is that there
should be an independent review of the decisions made under the law. This
can be done in a number of ways. In Canada, we use a combination of
commissions and the courts. In our federal scheme, the Information
Commissioner is an investigator and mediator and can make recommendations
and reports to Parliament, but has no decision-making power. The
Commissioner can apply to court if he or she disagrees with the way an
institution handled a particular request, and so can the requester.
In a number of our other jurisdictions, such as Ontario, Quebec and
British Columbia, the commissions perform investigative, mediating and
quasi-judicial functions. In their quasi-judicial function, they can issue
orders to institutions on how to respond to specific requests. Appeals to
court from these commissions can only be on the question of whether the
commission exceeded its jurisdiction, or made a mistake of law, not
whether it was correct or incorrect in a particular case.
Exemptions: Balancing Access With Other Objectives
Governments are allowed to refuse to disclose some records if they
fall within the exemptions set out in the laws. The exemptions
represent those areas where lawmakers believe that the public interest
may be better served by non-disclosure than by disclosure. Thus, it is
important to understand that freedom of information laws do not behave
like bulls in a china shop. They are subject to limits. The challenge for
lawmakers and courts is to provide as much access as possible without
jeopardizing other important social objectives and personal rights.
Most access laws set out similar exemptions. Here are the exemptions
in Canada's Access to Information Act:
Third party concerns
There must be a reasonable expectation of harm before an institution
can invoke the "safety of individuals" and "economic interests of Canada"
exemptions (but note that it is not necessary to show harm to withhold
government trade secrets or government commercial information that has a
substantial value). Although confidential commercial information supplied
by a third party can be withheld without demonstrating that disclosure
would cause harm, the Act also provides for non-disclosure of information
which could harm the competitive or contractual negotiating position of a
third party. Finally, there must be a reasonable expectation of harm
before an institution can refuse to disclose government audit and testing
procedures.
There are observers who claim that the law does not provide as much
access as it should, that the exemptions are worded too broadly, that they
give the government too much discretion to refuse to disclose records, and
that the law has not kept up with the realities of electronic information.
These are important, legitimate concerns. The federal Information
Commissioner recently issued a set of recommendations to amend the federal
Act, and we now have more than a decade of experience with the federal Act
and a variety of more modern provincial laws from which to draw
comparisons.
We can see places where some provincial laws provide more access than
the federal law, particularly by providing a "public interest" override,
where institutions will not be able to withhold documents under some
exemptions if there is an overriding public interest in disclosure.
Some provincial laws apply to more of their public bodies than the
federal
law, in part because they apply to municipal governments as well as to
provincial government agencies and even to self-governing professions, and
in part because the term "public body" is broadly defined. In some cases,
provincial laws have narrower exemptions, for example, by requiring that
there be a reasonable expectation of harm resulting from disclosure in
situations where the federal law permits non-disclosure without a harm
test. In some
provinces, the information and privacy commissioner has the power to order
departments
to disclose information, thus avoiding the cost of going first to the
commissioner and then to the courts before getting an order, which is the
case under the federal Act. Officials within the federal Department of
Justice are currently reviewing the federal Access to Information
Act with a view to suggesting possible amendments.
Examples of Access Contributing to Accountability
"No taxation without representation" is a bedrock principle from our
parliamentary heritage. It has evolved into a variety of rules, the most
basic being that there will be no taxation unless it is approved by
Parliament. In Canada, other rules have developed to ensure accountability
for public expenditures. These include a detailed accounting of how each
institution plans to spend money in the next year (the Main
Estimates and the Budget); a detailed accounting of how each institution
actually spent money in the past year (the Public Accounts); and
a variety of financial controls and accounting requirements under the
Financial Administration Act 8, other acts, and government policies. Also, there is
the Office of the Auditor General, who has broad power to audit government
institutions and report to Parliament (and the public).
In addition to the above financial accountability rules, the
Access to Information Act (in combination with the definition of
"personal information" in the Privacy Act) enhances
accountability for expenditure of public moneys. The following financial
information is accessible under the Act: expense accounts of public
servants and ministers; details of discretionary financial benefits
provided by government to individuals; the names of recipients of
government gifts; the salary ranges of the positions of all public
servants; and contracts signed with individuals (by definition this is not
"personal information" for the purposes of the Access to Information
Act. However, note that a different section of the Act provides that
government institutions must not disclose confidential commercial
information supplied by a third party. There is case law suggesting that
negotiated contract terms are not information "supplied by" a third
party.)
The Act also provides accountability for public health and safety, the
environment, and other public policy concerns. The Act has proved useful in
ensuring there is public access to information relating to an ill-fated
peace-keeping mission in Somalia in the early 1990s; controversial
contracts relating to privatizing a major airport and the purchase
of airplanes; the activities at a coal mine where there was a tragic
accident, amid allegations of poor safety regulation and political
considerations; and information relating to the environmental impacts
relating to a proposed water-diversion project for an aluminum smelter.
There are numerous examples where requesters or the Information
Commissioner were able to convince institutions to disclose records they
might not have disclosed if the Act were not in place, and where
requesters or the Commissioner were able to convince courts that a
government institution's application of the law was incorrect. One of the
most famous of these cases involved a court action against the Prime
Minister of Canada, where the court ultimately ordered disclosure of
public opinion research the government had been undertaking and caused the
government to adopt a new, more open policy to releasing public interest
research results.
As painful as it may be for governments to be confronted with
embarassing facts, there can be no doubt that allowing such access
promotes good government and integrity in public life.
Access laws: Supported By a Variety of Other laws, Policies
and Now, by New Technologies
Although the focus of this paper has been on access to information
statutes, such laws are supported by a variety of other laws and policies.
For Canada, one of the most important is the National Archives of
Canada Act. 9 The National
Archives Act provides that no one within government can destroy
government records without the consent of the National Archivist (who does
consent to the destruction of most government records, but ensures that
the more important records are kept for historical purposes). Thus, it is
not possible to evade the Access to Information Act by destroying
records without authorization.
Also, rules of natural justice and rules of court ensure that parties
who are involved in litigation with the government or whose rights may be
affected by administrative tribunals have access to the information they
need to properly present their arguments and to collect relevant evidence.
The Government of Canada has policies on the management of government
information holdings, on the application of the Access to Information
Act, and on the duty to inform the public of its activities. All of
these are important tools to ensure that the public has access to
information, without having to rely on the formal process under the
Access to Information Act.
One of the most recent tools available to help provide citizens with
access to information is the Internet. In the past year, the federal
government became the first jurisdiction in Canada to make its
consolidated laws available to the public for free on the Internet. Before
summer, we expect that the regulations will also be available on the
Internet. The Northwest Territories has followed, the Yukon Territory has
begun posting its annual statutes, and a few statutes from other provinces
are also available for free on the Internet. 10 In addition, the federal government is selling the
laws (and regulations) on CD-ROM and other publishers are welcome to use
the data to sell the laws themselves (one publisher is currently selling
the federal laws on CD-ROM for as little as $25). Australia has its
federal laws on the Internet for free as does the federal government of
the United States and many state governments. In the United States, most
appeal courts have their judicial decisions available on the Internet, as
does the Supreme Court of Canada and the High Court of Australia.
The federal government has embarked on a voyage of using new
technologies as an important tool for providing greater access to
information to our citizens. All of the federal and provincial governments
in Canada have home pages on the Internet, and provide varying degrees of
information at those sites. Although the Internet is available only to
those persons with access to computers, modems, and Internet service
provider accounts, access can be obtained increasingly in the workplace
and public libraries. With the development of wireless technologies, there
is good reason to believe that countries that do not have extensive
telephone wire infrastructures may nonetheless be able to join the
Internet in the relatively near future. In addition, recent reports
indicate that computers now outsell televisions. Thus, countries where
there are few computers but many televisions may find this trend will
reverse relatively soon. The Internet will prove to be a good way to
provide citizens with information about their governments, and therefore
to promote accountability and integrity in their governments.
Conclusion: Citizen Access to Information Promotes Integrity
in Public Life
Generally speaking, Canada’s access to information legislation is
working well in providing access to government information that might not
otherwise have been disclosed. The legislation was adopted because it was
seen as an important way to ensure government institutions and political
leaders are accountable to the people they serve. We believe that
accountability is the key to promoting integrity in public life. It is
certain that Canada’s access to information laws can be improved and that
our institutions could be more open without harming important government
interests or third party rights.
It has also been argued, with some justification, that when
governments adopt access to information legislation, they run the risk of
actually reducing access to information. This happens because governments
can force requesters to use the slow, expensive, somewhat formal processes
under the Act, because they can charge fees that could deter some
requesters, and because they can delay their responses. Governments have
sometimes been accused of hiding behind the discretion that access laws
provide them, such that they are "managing exemptions" rather than truly
living up to the spirit of the access laws. It is important to keep these
criticisms in mind. Often, government must be pushed and prodded by
citizens to be more open. Now that virtually every jurisdiction in
Canada has enacted an access to information law, it is highly unlikely
these laws will ever be repealed. It is likely that over time they will
come to be seen as essential to democracy as the rule of law, an
independent judiciary, and fair elections. Access laws, in conjunction
with the development of the information highway, will likely continue a
trend towards more open government that focuses on routine disclosure of
information to the public without reference to the formal access laws. (In
addition to the benefits access brings to democracy and to integrity in
public life, there is reason to believe that government disclosure of
information benefits the economy, as commercial firms take raw government
information, add value to it, and sell the new value-added product, thus
creating new private sector jobs.)
We recognize that access to information legislation is no panacea.
Without the fundamentals--the rule of law, fair elections, free speech and
literacy--access to information legislation can do relatively little to
promote integrity in public life. But even if the legislation is only
symbolic in nature, it is an important symbol of openness and integrity.
As the other basic tools of accountability and integrity develop in a
country, access to information legislation will develop as well, serving
the citizens and the long-term interests of any country brave enough to
adopt such a law.
McMahon, Tom, "Access to Government Information: A New Instrument for Public Accountability"
Government Information in Canada/Information gouvernementale au
Canada 3, no. 1 (1996).
[2] This article is based on a paper presented by the
Department of Justice Canada at the Meeting of Commonwealth Law Ministers,
held in Kuala Lumpur, Malaysia from May 15-19, 1996. [4] Access to Information Act, R.S.C., 1985,
c. A-1 [5] Constitution Act, 1982 [en. by the
Canada Act 1982 (U.K.), c. 11, s.1], Schedule B [6] Treasury Board Secretariat of Canada,
InfoSource. (Published annually) [7] Privacy Act, R.S.C., 1985, c. P-21
[8] Financial Administration Act, R.S.C.,
1985, c. F-11 [9] National Archives of Canada Act, R.S.C.,
1985, c. 1 (3rd. Supp.)
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