Assistant Deputy Ministers Advisory Committee - Highlights of Meetings

May 18, 2001

• Comparative FOI Legislations

Professor Snell, Senior Lecturer in Administrative and Media Law, University of Tasmania made a presentation outlining the key differences between the Australian and New Zealand freedom of information laws and associated practices. He said that the Australian Freedom of Information Act is primarily based upon the United States' legislation but adapted to a Westminster model of Parliamentary democracy. The Australian approach is generally thought by critics to be retrogressive, lacking in guiding principles, and focussed on process. New Zealand's Official Information Act, on the other hand, is based upon a set of guiding principles, which espouse a culture of openness and the progressive release of government information. The Australian model is considered to be legalistic and focuses on specific documents. In contrast, the New Zealand's regime designed by a group of senior officials, the Danks Committee, is considered to be flexible, can easily accommodate changing circumstances, and is focused on the release of information (as opposed to just documentation). In New Zealand the right questions are being asked, the focus is on 'when' as opposed to 'if' information will be released, the only discussion is on the right time to disclose. In Professor Snell's view, the Canadian Act is closer to the Australian model.

Professor Snell attributed the success and openness of the New Zealand regime, in large part, to political and bureaucratic leaders supporting the intent of the Act and working collaboratively with the ombudsman. He said this has resulted in a much less adversarial relationship among the various parties than he observed in Canada. He noted that when FOI gets adversarial, the quality goes down, and the integrity of the system and trust between the parties were critical to compliance.

Professor Snell suggested that a key lesson from the New Zealand approach is that they had focussed their FOI system not on protecting information but on enhancing key constitutional conventions governing public administration. Professor Snell concluded that no simplistic answers will work. FOI approaches need to be holistic and tailored to a specific bureaucratic, political and societal culture. A good FOI framework has to proceed from a vision and the system has to have integrity and safeguards to protect this integrity.

• Operations of Government - Section 21

David Stephens, commissioned by the Task Force to complete a study of section 21, Operations of Government, reviewed the components of this exemption and outlined approaches in other jurisdictions as well as previous proposals and recommendations. The Committee discussed possible options for change and suggested that the most important change to section 21 may be in its application. It recommended that it should build on the New Zealand principle that all information will be accessible and the only question is when. Members recognized that good governance requires that some information be protected from disclosure for a period of time. Members agreed that section 21 exemption covered a wide range of information not all of which was in need of protection. They also suggested building a bias for disclosure "as soon as possible".

The Committee discussed as well the fact that consultants were more and more frequently asked to offer strategic advice to ministers and were part of the deliberative processes of organizations. On the whole, the Committee viewed favorably the removal of the restriction on the use of the section 21 exemption for consultant work where it falls squarely within the deliberative processes.

• Cabinet Confidences - Section 69

The Committee reviewed the exclusion for Cabinet confidences in section 69, as well as the approaches in other jurisdictions and proposals made by the Parliamentary Committee in 1987 and by successive Information Commissioners. The Committee then considered a number of points including the link to the Crown privilege for Cabinet confidences set out in the Canada Evidence Act. The development of the privilege in common law and in its relation to our Westminster style of government and conventions such as collective ministerial responsibility and Cabinet solidarity, were also discussed.

The Committee stated that it was necessary to keep coming back to principles in determining whether Cabinet confidences should be excluded or exempted, how broad or narrow they should be defined and the appropriate time limit for protection. Members agreed that the definition of Cabinet confidences needed to be narrowed and focussed on protecting the deliberations of Cabinet, and that factual and analytical documents supporting recommendations to Cabinet should be disclosed much earlier.

NEXT STEPS/FOLLOW UP:

• The next ADM Advisory Committee meeting will be held on May 25, 2001.

Assistant Deputy Ministers Advisory Committee - Highlights of Meetings