Report 6 - Access to Information Review Task Force

PUBLIC ACCOUNTABILITY AND ACCESS TO INFORMATION

Section 2 - Trends in Public Administration

2.1 Changes in the public sector

Aucoin and Heintzman argue that there have been at least three major changes to the public sector that have had a significant impact on accountability relationships. The first change is expecting and allowing public servants to exercise more control and use more discretion in decision making. There is a consensus that it is unreasonable to expect ministers to be involved in, or even aware of, each and every decision. This change, however, has resulted in new accountability relationships that are being put in place over top of the existing ones, such as ministerial responsibility. The recent rhetoric in many public sector organizations "involved devolution of authority, shared responsibility and shared power." ⁽¹²⁾ Whether there has been a significant reduction in the regulations, procedural controls and other constraints on managerial freedom is the subject of much debate and disagreement.

Discretion means an express legal authority to choose a course of action from a range of permissible options, including the option of inaction. The discretion may authorize administrative action or a decision that is aimed at an individual or a small group, or the making of a rule that will affect a large number. ⁽¹³⁾ The delivery of any government program or service necessarily requires the grant of broad discretion to officials. However, the Rule of Law theory warns that implementation of policies requiring extensive discretion means that officials will always be likely to abuse powers that are not strictly confined by law. ⁽¹⁴⁾ Finding the appropriate balance between constraining legislative rules and appropriate discretionary power is always a challenge. Not surprisingly there is public debate on this balance in the Access to Information Act.

The second significant change is the trend in public sector organizations around the world to contract out services to third parties in the private sector. This development greatly alters traditional relationships between the government and people as citizens into people as customers.

It has been argued that this trend demonstrates yet another form of an accountability relationship: "discretionary accountability". ⁽¹⁵⁾ "Confusion surrounding who is responsible for what can lead to "discretionary accountability"

in which the Minister and others in the system find it convenient to be accountable when good news is being reported and prefer to avoid or minimize their accountability when there is bad news." ⁽¹⁶⁾

Finally, the third change is a new way of measuring performance. More and more, performance reports tend to focus on outcomes and outputs rather than on analyzing the process. This change raises issues about the usefulness and effectiveness of information found in performance reports.

Generally, the most significant change in the public sector in Canada and around the world is the adoption of New Public Management (NPM) principles. NPM is a change in political approach to the roles of government, its structures and its management processes. Because it is so wide ranging in its scope and impacts, NPM has significant implications for the achievement of accountability within a more diverse public sector and for access to information.

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2.2 New Public Management

New public management has been thriving in the public sector for approximately two decades and can be considered the current paradigm in public administration. Under NPM government organizations around the world have been 'cutting the red tape' and public servants have been invited to imitate the approaches of their private sector counterparts - with quite different accountability frameworks - in order to be more effective and efficient.

Part of the NPM is a trend towards increased privatization and contracting out. The growing use of the private sector to produce and deliver services previously offered by government institutions does not necessarily mean the loss of accountability, but it requires the development of new procedures for holding parties outside of government answerable for their performance. The availability of relevant, reliable and valid information is the main means of achieving this accountability.

In a famous debate on the issue between Donald Savoie and Sandford Borins, published in Canadian Public Administration, the positive and negative features of NPM are outlined. Savoie argues that NPM is problematic because of "the conviction that private sector management is superior to public administration. The solution, therefore, is to transfer government activities to the private sector through privatization and contracting out." ⁽¹⁷⁾ Borins responds by arguing that subscribing to NPM principles such as privatization and contracting out creates "innovative bureaucracies that provide better service, produced at lower cost by public servants whose morale has improved." ⁽¹⁸⁾

NPM challenges traditional accountability relationships by altering the notion of citizenship. Citizens of the state are being transformed into customers, and customers do not have the same rights or the same responsibilities as citizens. Savoie asserts that "[t]he new public management has yet to deal head on with accountability in government." ⁽¹⁹⁾ Because services are being delivered outside government, it is difficult to hold the state accountable. The private and public sectors are increasingly involved in interlocking and interdependent activities. The traditional focus on accountability of individuals and particular institutions does not match the reality of shared authority, shared power, shared risks and shared information. In Canada as in other jurisdictions there is concern over the public accessibility of the records held by privatized bodies and contractors performing services for government.

Canada could make NPM theory work extremely well, using it to save taxpayers' money. To do this successfully, the rights of citizens have to be protected and there must be appropriate accountability mechanisms in place.

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Section 3 - Accountability and the Access to Information Process

3.1 What does access to information mean for accountability?

Section 2. (1) of the Access to Information Act states that its purpose is to:

Extend the present laws of Canada to provide a right of access to information in records under the control of a government institution in accordance with the principles that government information should be available to the public, that necessary exceptions to the right of access should be limited and specific and that decisions on the disclosure of government information should be reviewed independently of government.

Thomas argues that provision of information is at the centre of accountability relationships. "The adequacy of the information flow within an accountability framework depends upon four factors: the accessibility of information, the sensitivity of officials to the information needs of authorities, the capacity of authorities to interpret information, and the capacity of authorities to verify the authenticity and accuracy of information." ⁽²⁰⁾

In short, accountability requires "quality" information - information which is relevant, reliable and valid - but it also requires both the inclination and the capability to use the information.

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3.2 What are the aims of the Access to Information Act?

The Access to Information Act most often stated goal is strengthening accountability in the public sector. Access to information, however, is not the only way to strengthen accountability, nor is strengthening accountability the only goal of the Act. Other goals include promoting public understanding;

encouraging public dialogue, consultation and participation in the policy process;

and supporting learning within government and knowledge in Canadian society.

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3.3 What is the problem with access to information?

In the Annual Report from the Information Commissioner (2000-2001) it is argued that the problems Canada is facing with regard to access to information is not with the Act itself, but with the administration of the Act. The problem he describes in a word is 'secrecy'.

Secrecy in government is deeply entrenched - primarily at the senior levels of the bureaucracy. Secrecy cloaks public servants in relative anonymity as the handmaiden of the notion of "ministerial accountability". Secrecy, too, gives governments more control over the management of information flows to the public. ⁽²¹⁾

Whether the problem of secrecy is as great as the Commissioner suggests and what is the cause of the problem are controversial issues on which there are different perspectives. The obstacles to open government go beyond the public service culture and the leadership style at the senior political and bureaucratic levels. As the quotation suggests, an element of secrecy is inherent in our cabinet-parliamentary system based as it is on Cabinet solidarity, ministerial accountability to Parliament and public service accountability to ministers.

The events of September 11 2001, have made it all too clear to Canadians that there are government secrets that the public service has the responsibility to protect in the public interest. The Act recognizes this in providing a number of exemptions some mandatory some discretionary. This double accountability on the public service - to release information and to ensure its protection where it is in the public interest - relies on judgment calls often not easy to make.

It also needs to be recognized that shortcomings in the administration of the Access to Information Act may reflect practical constraints like inadequate budgets, staffing and records management processes. When members of the public service were asked: 'In your experience with access, what is not working?', a common response was that insufficient human and financial resources and inadequate training and support from central agencies were seriously inhibiting the ability of access to information coordinators to fulfill their responsibilities. ⁽²²⁾

The popular stereotype of public servants gathered around a large table under the darkness of night plotting to keep sensitive matters secret represents good rhetoric, but poor analysis. Of course there is secrecy in government. Some of it is necessary and some is not. A review of the statistics published by the Treasury Board Secretariat and by the Information Commissioner ⁽²³⁾ seems to indicate that the Act is working better than the media and advocacy groups would suggest. The Information Commissioner's Report confirms this - it suggests that the Act is a good one, that most requests are granted and that even for the cases which involve complaints, over 99 percent are resolved without serious conflict.

However it is unarguable that compliance problems with the Access to Information Act would result in a weakened accountability of government. The Information Commissioner, in his Annual Report 2000-2001, states that the principle of accountability must be a part of the management culture expressed in formal and informal codes of conduct, measured in performance and rewarded in attainment. He calls for a results-based accountability framework that would "identify the principles and values underlying good public administration, identify

the general responsibilities of government staff in supporting effective management practices and provide standards and guidelines for establishing and maintaining performance reporting and other accountability mechanisms." including record keeping. ⁽²⁴⁾ He supports enacting 'accountability legislation', as suggested by the Auditor General of Canada in his 2000 Report. It is argued that an accountability law would have an impact on every facet of government activity and on the availability of all government information.

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Conclusion

• Essentially it is pointless to argue about which type of accountability should be utilized in the public sector because, as Romzek argues, "the pattern in western democracies is to employ multiple accountability strategies." ⁽²⁵⁾ Recognizing the various forms of accountability and clarifying the dynamic nature of accountability is still an important first step.
  
  
• The predominant emphasis in the accountability literature is on control to prevent negative things from happening. That is also the emphasis generally put on the Access to Information Act. There needs to be more recognition that accountability requirements and processes can serve positive purposes, and more encouragement of voluntary openness. They can cause responsible decision-makers to reflect more carefully on their obligations and the implications of their actions or inaction. In this way, accountability requirements can serve to galvanize and reinforce the subjective norms of responsible behavior which should guide the behavior of all public officials, whether elected or appointed.
  
  
• Access to information on how government makes decisions allows the public to hold the government more accountable, to assess performance on a wider set of criteria than would otherwise be available and to increase the understanding of the multiplicity of factors considered in government decision-making.
  
  
• Having an external review mechanism under the Access to Information Act (the Information Commissioner) which includes public reporting makes the government more visibly accountable for its decisions on access.
  
  
• It is important to identify and make sense of the various accountability relationships and mechanisms that any public sector organization employs. When a crisis arises, the first question is usually about whom to blame. A variety of rules, requirements and accountability structures regulate the public service of which access to information is but one. A clear understanding by public servants of the place of access in these various accountabilities would facilitate compliance and enhance overall government accountability.
  
  
• Active disclosure and guaranteed access to information are key requirements for truly accountable government. The trends in terms of multiple forms of accountability imply that access to information is necessary to ensure the processes in place are working effectively. There are, however, additional ways to help strengthen accountability. While public accountability is certainly strengthened by access to information, it is by far not the only accountability mode for government. Expecting access to carry the whole burden of delivering accountability and even democracy is unrealistic and can only lead to disenchantment with the entire system of access to information.
  
  
• Accountability can also be strengthened as a learning tool if there is a greater focus on rewarding responsibility rather than on punishments, promotion of public understanding about the reality of managing a country and the fact that there is not always someone to blame as well as an understanding that we need to collectively learn from our mistakes or from where things could have been done better.

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Bibliography

Access to Information Review Task Force, (October 19, 2000) Summary of Consultation - Access to Information Co-ordinators, Ottawa.

Aucoin, Peter and Heintzman, Ralph, (2000) "The dialectics of accountability for performance in public management reform." International Review of Administrative Sciences, vol. 66, no. 1, March, pp. 45-56.

Borins, Sandford, "The new public management is here to stay," Canadian Public Administration, vol. 38, no. 1 (1995), pp. 122-132.

Evans, J. (1989) Administrative Law Cases, Text, and Materials, 3rd Ed. Emond Montgomery Pubns Ltd.

Government of Canada, (1994) The Access to Information Act: Ten Years On Minister of Public Works and Government Services Canada, Ottawa.

Government of Canada, (1977) Green Paper: Legislation on Public Access to Government Documents, Ottawa.

Gregory, Robert, (Forthcoming) "Accountability" in The Handbook of Public Administration (Sage) 2001.

Information Commissioner, (2001) Annual Report Information Commissioner 2000-2001. Minister of Public Works and Government Services Canada, Ottawa.

Information Commissioner, (2000) Annual Report Information Commissioner 1999-2000. Minister of Public Works and Government Services Canada: Ottawa.

Palmer, Matthew S. R., (2001) "Ministerial Responsibility versus Chief Executive Accountability: Conflict or Complement?" Paper presented at the Institute for Internal Research conference on "Analysing and Understanding Crucial Developments in PUBLIC LAW", Wellington, 4 April 2001.

Review and Implementation Committee for the Report of the Manitoba Pediatric Cardiac Surgery Inquest, (2001) "Chapter 2: The Institutional Context and the Search for Accountability". Report of the Review and Implementation Committee for the Report of the Manitoba Pediatric Cardiac Surgery Inquest, Winnipeg.

Romzek Barbara S., (2000) "Dynamics of public sector accountability in an era of reform." International Review of Administrative Sciences, vol. 66, no. 1, March, pp. 21-44.

Savoie, Donald, "What is wrong with the new public management?," Canadian Public Administration, vol. 38, no. 1 (1995), pp. 112-121.

Schafer, Arthur, (1999) "A wink and a nod: a conceptual map of responsibility and accountability in bureaucratic organizations." Canadian Public Administration, Spring, vol., 42 no. 1, pp. 5-25.

Thomas, Paul G., (1998) The Changing Nature of Accountability in Taking Stock: Assessing Public Sector Reforms, (eds.) B. Guy Peters and Donald J. Savoie, Canadian Centre for Management Development.

Thomas, Paul G., (1997) Ministerial Responsibility and Administrative Accountability in New Public Management and Public Administration in Canada, (eds.) Mohamed Charih and Arthur Daniels, The Institute of Public Administration of Canada.

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Footnotes:

12. Review and Implementation Committee for the Report of the Manitoba Pediatric Cardiac Surgery Inquest, (2001) p. 13.

13. Evans, J. (1989) Administrative Law Cases, Text, and Materials, 3rd Ed. Emond Montgomery Pubns Ltd. p. 1021.

14. Ibid. p. 1019.

15. Review and Implementation Committee for the Report of the Manitoba Pediatric Cardiac Surgery Inquest, (2001).

16. Review and Implementation Committee for the Report of the Manitoba Pediatric Cardiac Surgery Inquest, (2001) p. 15.

17. Savoie, Donald, "What is wrong with the new public management?," Canadian Public Administration, vol. 38, no. 1 (1995), p. 113.

18. Borins, Sandford, "The new public management is here to stay," Canadian Public Administration, vol. 38, no. 1 (1995), p. 122.

19. Savoie, p. 115.

20.

21. Information Commissioner, (2001) p. 17.

22. Access to Information Review Task Force, (October 19, 2000) Summary of Consultation - Access to Information Co-ordinators, Ottawa.

23. Access to Information Review Task Force Website, Statistics.

24. Information Commissioner, (2001) p. 30.

25. Romzek, (2000) p. 23.