Consultation on Scientific Information
April 30, 2001

The objective of this consultation was to focus specifically on the issues and concerns of the community that deals with scientific information. This synopsis highlights the main points made in discussions at each of the roundtables and during the plenary sessions.

Participants (15)

Agriculture and Agri-Food Canada
Atlantic Canada Opportunities Agency
Canadian Food Inspection Agency
Canadian Museum of Nature
Communications Research Centre
Department of Fisheries and Oceans
Department of National Defence
Environment Canada
Hazardous Materials Information Review Commission Canada
Health Canada
Indian and Northern Affairs Canada
National Research Council
Natural Resources Canada
Natural Sciences and Engineering Research Council of Canada
Western Economic Diversification Agency

Issues, concerns and suggestions for change

In this consultation session, participants were asked to identify the questions or issues which, if they were resolved, would make a significant difference in access to information. What follows are the key messages to the Task Force from members of the federal government scientific community.

Participants strongly endorsed the need to protect the integrity of the government information that is accessed under the Access to Information Act (ATIA) in order to ensure Canadians access to accurate and trustworthy information that has a direct bearing on their lives, health and well-being.

Participants recognized the tension that exists between the need to protect trade secrets and the need to protect the public good. Often, it was pointed out, government scientists themselves do not have access to, or cannot release, proprietary information such as lists of ingredients that can be harmful to the public, and it would be helpful to be able to differentiate between confidential research and development information that should be protected and public health and safety information that should be publicly disclosed.

Premature release of data is a concern and participants recommended that preliminary or draft research reports be protected from release. Not only can research conclusions change once they have been subjected to verification and peer review, they can be quoted out of context. Releasing information prematurely may also give unfair commercial advantage to the requester. In addition, the government could be accused of political manipulation of the final conclusions, when changes to a report are the result of more minds being brought to bear on a research topic to arrive at a final result that can stand up to scientific scrutiny. Therefore the premature release of research reports can have a negative impact on the quality of analysis and the credibility of the government, can seriously interfere with the work of departments and in fact mislead the public.

It was suggested that the final decisions of regulatory bodies should be routinely made public and that the final decision should include the dissenting opinions.

Another recommendation was that the rights of a government researcher to publish his/her work in a complete and timely manner be given enhanced protection, as sections 18 (a) and (c) of the ATIA were viewed as insufficient. Participants noted that it is often difficult to prove "substantial value" for the purposes of section 18 (a) early in the research process. The 90 days allowed in section 26 for information to be published is viewed by participants as not enough to protect publication rights for scientific work, since the process of publishing the results of scientific research can often take many months after an article has been accepted by a scholarly journal. It was recommended that this exemption be amended to at least 180 days.

A concern was expressed about commercial requesters using the Act to "spy on one another", conduct industrial espionage, or to modify the data received, then copyright it themselves for financial gain. There is an expectation of an increase in requests for scientific and technological intelligence (STI) among participants. It was pointed out that the reports of inspectors who conduct inspections of companies are not protected by section 16 of the Act that covers police investigations. The concern is that this may lead to a rival company submitting an access request for "all investigations on company Y".

Participants strongly endorsed the need to continue to reasonably protect commercially sensitive information. Failure to do so will result in companies not wanting to deal candidly with the government and not giving information on the real problem, which will affect the way government does business. The need to build a relationship of trust applies equally to the provinces, who share sensitive information with the federal government, for example, data on disease surveillance.

Adding a provision to protect confidential business information and scientific and technical information for a pre-determined period of time, such as 3 to 5 years, was identified as beneficial. Such a provision should be designed to protect project titles, abstracts, project descriptions, etc. (this confidential information would be identified in consultation with the third parties). It was noted that in a business environment, start-up
companies don't want to reveal their project titles for the first five years as a descriptive title can tell the whole story about the company and amounts to a trade secret. It was also recommended that a provision to the Act to protect for a period of time consultants' reports when they have commercial value.

Intellectual property is a very significant issue in the sciences, particularly in bio-technology. Applications can be made for patents for gene sequences, for example, but if the information is publicly disclosed, the scientist may not be able to obtain a patent. Participants recommended that patentable information be protected under the ATIA, as are other trade secrets.

A separate fee structure was suggested for requesters who benefit financially from the scientific information they receive through the ATIA, and that the fees be tied directly to costs, including the cost of reviewing records and the costs of doing third party consultations. Some expressed the view that scientific research can often result in revenue generation, possibly through spin-off companies. Participants noted that an increase in requests for scientific and technological intelligence (STI) is expected, and expressed a concern that requesters sometimes try to use government scientists as a "cheap research service".

The timelines specified in the legislation are a concern as many participants viewed them as too short for requests involving scientific information. The information is often so technical that sometimes the only individuals qualified to review the information are the scientists themselves. The availability of scientists to carry out the information review can be problematic if, for example, they have other conflicting priorities, their department is decentralised, or they are located at a distance or abroad. It was suggested that a change from 30 calendar days to 30 working days for a response would be an improvement. Participants further recommended that there should be longer time frames for more complex and voluminous requests.

Voluminous and repetitive requests in the nature of "data mining" were identified as a particular problem when searches of large databases are involved. Participants noted that, when originally designed, the Act considered paper files, processed one file at a time and dealing with the information of one third party at a time. Now, departments are dealing with thousands of third parties at a time when requests come in involving searches in large databases that collect confidential business information from thousands of companies. Participants recommended that special extensions be allowed for search and review of voluminous technical information and for consultation of multiple third parties.

A suggested solution was for the government to develop standard guidelines for third parties about the types of information that is considered in the public domain and what can be protected for how long. Each department could then build on the standard guidelines to develop more detailed guidelines tailored to its own specific types of information. A mechanism to provide for up-front "informed consent" for disclosure by companies could be developed while maintaining existing provisions for protection of confidential commercial information.

Participants recommended that the ATI Co-ordinators work closely with the scientists in their institutions to better manage access requests and to gain a common understanding of each other's needs and issues. The current situation where enormous requests come through with tight, unrealistic deadlines sometimes leads to conflict. Scientists often feel the need to clarify directly with requesters the information that is needed. It was felt that few people are really qualified to apply exemptions to scientific information because the information itself, and the risks associated with its possible release, must be understood. It was suggested that there should be a process for sign-off by the people who do the scientific review before the information is released. Because of the significant amount of time that is sometimes required on the scientific side for review of information for access requests, participants felt that program areas should be partially reimbursed for the resources spent on this activity. A related concern was about the possible release of sensitive information when it has to be provided to a central office for review and processing. Although provisions in the Act may exist to protect such information, the flow of the information through multiple points in the process increases the risk of inadvertent disclosure.

All public servants need to be aware of the Act and have it in mind when managing data and information from the start. Participants emphasized that all public servants need to understand the release of information as a public good. A strong push on training in the basic principles of ATI for all public servants was recommended as well as user-friendly tools, including handbooks and fact sheets posted on the government's internal web site. It was suggested that ATI request forms be redesigned and structured to help focus access requests more precisely.

Access under the ATIA needs to be better co-ordinated with other mechanisms for accessing government information, participants noted. Alternate methods of access include routine disclosure of information that is the subject of repetitive requests, pro-active dissemination of information of interest to the public, including through government web sites, news releases and press conferences. Pre-discovery exercises in preparation for litigation are frequently used in parallel with access requests. Because public expectations for access are high, participants recommended that departments strategically analyze their information infrastructure and the ways in which non-sensitive information of interest to the public and to commercial requesters can be most efficiently made available without the need to file formal requests under the ATIA.

The lack of public access to large amounts of information about specimens in scientific collections was identified as an issue when this information needs to be converted into databases that would provide the access. Government institutions invariably lack the resources required to undertake large-scale digitization projects that would enable public access to such collections. Special allocations of funds for this purpose are required.

It was generally agreed that the government information management framework needs to be revitalized and strengthened. The lack of electronic document management solutions was seen as a problem in departments. There is a concern that the lack of information management policies, standards and protocols is resulting in loss of important corporate history. The myriad of federal laws, regulations and policies that interface with one another on information issues need to be examined as a cohesive whole. Examples are such policies as Management of Government Information, Communications, Security, Privacy and Data Protection, and laws such as National Archives Act, Patent Act, Public Servants Inventions Act, Copyright Act, among others. Among these instruments there are "grey areas" or "voids" that need to be articulated into operational guidelines to improve the ability of departments to assist and advise their clients on questions such as "is human tissue a record?" Participants also recommended that part of the information management function should be maintaining records in a state of readiness for ATI requests.

The need for improvements to the mechanisms by which the Federal Government and other Public administrations access one another's governmental information was noted by some participants. Sometimes, it is more difficult to access information between public health administrations and federal government agencies, than it is for members of the public to access governmental information through the ATIA. The need to consider cross-jurisdictional issues and the laws, rules and interpretations of other jurisdictions was pointed out.

The potential impact on a community of information disclosure needs to be assessed, participants noted. For example, in remote communities in the North, the release of information can have a profound impact. Sensitivity to the vulnerability of small communities is needed. For example, when dealing with such issues as contaminants in food or PCB levels, a protocol should be developed for dealing with releases of information and informing the affected communities first. A related concern focused on the vulnerability of endangered species and overexploited resources, which would be in danger of total depletion if data were released pinpointing their localities.

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