Report 3 - Access to Information Review Task Force

GLOBALIZATION AND ACCESS TO INFORMATION REGIMES

Published: August 2001

Colin J. Bennett

Table of Contents

Aspects of Globalization

The Convergence of Access to Information Policy

Access to Information and Policy Interdependence

Policy Interdependence and Pressures for Openness

Policy Interdependence and Pressures for Secrecy

Access to Information and Participation in International Regimes

A Race to the Top or the Bottom?

Conclusions

Bibliography

The paper will attempt to address the following broad questions about the impact of globalization on access to information (or freedom of information) regimes.¹

• What, if any, implications for access to information can be drawn from the implementation of increasing bi-lateral and multi-lateral arrangements and agreements, such as the North American Free Trade Agreement (NAFTA)?
• Will this increasing international interaction drive the standard for access to government-held information in some countries up to that in more open countries, or is the reverse more likely?
• To what degree will countries need to harmonize their access to information regimes with those of their international partners?
• Is there any indication that Canada's involvement internationally has had an impact on our standard of disclosure for government-held information?
• Does Canada's standard for access to government-held information have any impact on arrangements or potential arrangements with third parties (e.g., other governments, international organizations, private sector interests in other countries)? Specifically, is there any indication that government or corporate interests are concerned about Canada's protection of trade secrets and other commercially sensitive information?

The answers to these questions depend in large measure on understanding the dynamics behind the diffusion of FOI legislation around the world, and how patterns of globalization have influenced the ways in which these statutes are used and interpreted.

The paper proceeds, therefore, by first outlining some of the major explanations for the adoption of FOI. It then reviews the ways in which FOI regimes have become increasingly interdependent as a result of some new patterns of usage. The paper concludes by addressing the larger questions concerning the "trading-up" of FOI standards.

Aspects of Globalization

In a "borderless world" public policies on access to government information are inextricably interdependent. This regulatory interdependence could hypothetically produce two possible broad dynamics. In one, countries would progressively fashion their public policies according to the highest possible standard, a "trading up" or a "race to the top." Conversely, countries might consider that a less regulatory climate would attract global businesses that would want to circumvent the higher standards at work elsewhere. This competitive deregulation would lead to a race to the bottom as countries progressively weaken their standards to attract global investment. One of the main research questions that directs the analysis is whether, in the field of access to information legislation, there has been a "race to the top," a "race to the bottom," or something else.

At the outset, we should emphasize the obvious point that information now flows more freely, knows fewer national attachments, and indeed represents one of the significant forces behind "globalization," an ill-defined and controversial word that captures a number of different trends, all with implications for state power (Held et al. 1999, p. 3). Globalization implies, first, "a stretching of social, political and economic activities across frontiers such that events, decisions and activities in one region of the world can come to have significance for individuals and communities in distant regions of the globe." Second, globalization implies that these connections are not random or intermittent, but are regularized such as there is a "detectable intensification." Third, globalization implies a speeding up of global interactions as new communications processes increase the "velocity of the global diffusion of ideas, goods, information, capital and people." Fourth, each of these processes contributes to the deepening enmeshment of local, national and regional institutions, such that local events can come to have global impacts.

With respect to information policies of all kinds (privacy protection, intellectual property, access to information, the regulation of pornography and so on), these globalizing trends have had important consequences. In particular, one might hypothesize that these trends might lead to very similar public policies as a result of the increased interdependence - an overall process of policy convergence, in other words. But there are some deeper reasons to explain the sequential adoption of the same policies by different independent states. Three general arguments have appeared in the literature on comparative public policy.

The first explanation sees policy responses as the by-product of similar and wider socio-economic and technological forces. States at the same level of development face similar problems to which there are a limited number of feasible solutions. The sequential adoption of similar responses is then explained in terms of similar socio-economic characteristics.

A second explanation understands the sequential adoption of the same policies in terms of transnational communication. Through various channels of interaction, policy-makers learn of the programs of their counterparts overseas and this evidence enters and influences the domestic policy process. Some scholars have termed this process, "emulation" or "lesson-drawing" (Rose, 1991). Thus, similar responses flow from the export and import of knowledge through a transnational network of elites, who then develop shared assumptions and beliefs about how best to solve the problem at hand.

A final explanation arises not through the export of knowledge but through the export of costs. Policy adoption by one state can carry externalities, or costs that are then borne by others. The channels through which this influence is exerted may be multiple: international organizations or regimes, multinational corporations, bilateral negotiations, transnational policy communities and so on. Under this explanation, there is an obvious interdependence and recognition that the implementation of domestic policy is more difficult because of policy developments elsewhere. The phenomenon of globalization suggests these more penetrative kinds of influences above the others (Bennett, 1991).

In relation to the closely related policy of information privacy or data protection, I have concluded that a process of international policy convergence has been at work, and is continuing (Bennett, 1997a). But I concluded that these different forces had a variable impact over time:

At the level of principles, broad transnational forces transcended national characteristics. Furthermore, different forces had a variable impact over time. For the pioneers, the United States and Sweden, the convergence resulted from independent and indigenous analyses that traveled along the same learning curve and arrived at the same conclusion. For West Germany, and other countries such as Canada, France, Norway, Denmark and Austria that legislated in the late 1970s, the convergence followed from the mutual process of lesson drawing within an international policy community. For Britain, and other laggards such as the Netherlands, Japan and Australia, the convergence has resulted from a pressure to conform to international standards for mainly commercial reasons (1992, p. 222).

I describe this framework, because it may provide some important insights into the convergence of freedom of information policy to date, and perhaps suggests how the issue might progress in the future.

The Convergence of Access to Information Policy

There is no doubt that there has been an obvious convergence of access to information legislation. According to one source, there are now over 40 countries in the world that require the disclosure of government records on request.² On closer analysis, however, there are somewhat fewer countries with national statutes that provide: 1) a "public's right to know" all kinds of government information; 2) a set of exemptions for certain categories of information; and 3) a right of redress (either to the courts as in the US) or to a special "information commissioner" (as in Canada). Others (such as Germany) have access to information provisions for specific categories of information, or only for certain levels of government. Others stipulate somewhat dubious guarantees within their constitutions, as do some Latin American states. Nevertheless, there has been quite remarkable diffusion of freedom of information law since the enactment of the first modern FOI statute in the United States in 1967, and the pace of enactment seems to be accelerating (see Table One³). How can this diffusion be explained according to the framework above?

Table One
Statutory Provisions for Access to Government Information

The first explanation concerning broad levels of socio-economic development obviously has some merit. When one observes the range of countries that have adopted FOI statutes, it is readily apparent that they are virtually all advanced democratic states, which have experienced significant growth in the size of their state bureaucracies. Government growth is very difficult to conceptualize and measure. But rhetorical evidence suggests that a strong and widespread perception of the growth of a bloated, out-of-touch, unaccountable and intrusive state has necessitated greater levels of openness. An early, and very influential, report on reform of the British Civil Service in 1968 concluded:

We think the administrative process is surrounded by too much secrecy. The public interest would be better served if there were a greater amount of openness. The increasingly wide range of problems handled by government, and their far-reaching effects upon the community as a whole, demand the widest possible consultation with its different parts and interests (Fulton, 1968).

These arguments appear in the debates surrounding FOI in many states (Bennett, 1997b).

Given the growth in government personnel, share of the economy, functions, responsibilities, programs regulations and so on, a recognition has arisen that new instruments of openness are necessary. Despite the "downsizing" and "restructuring" of the state in the 1980s and 1990s, the pressure for FOI legislation does not seem to have abated, even thought the implementation of access principles in some jurisdictions has been challenged (Roberts, 2001).

Another "structural" characteristic of countries, which have adopted FOI legislation, is the development of liberal democracy. The justification for FOI law has always been couched in terms of strengthening liberal democratic institutions. Implicit, and often explicit, in this argument is a critique of the operation of traditional legislative mechanisms. As the size, powers and resources of legislatures have generally not kept pace with the expansion of executive institutions, supplementary mechanisms for openness and accountability have been deemed necessary. Again, there is plenty of rhetorical evidence that these considerations have entered the thinking of those who have fashioned the world's FOI legislation. Democratization has been described as a "process of institutionalizing uncertainty" (Przeworski, 1986, p. 58). FOI legislation adds new dimensions of uncertainty to the exercise of power.

It is obvious that there are two necessary conditions for the adoption of FOI legislation: a perception of state and bureaucratic power and remoteness, and a fundamental commitment to the institutions of liberal democracy. On the other hand, there are democratic states with large state bureaucracies that have not (yet) adopted FOI; Germany is a good example. So whereas these structural conditions operate as necessary conditions, they are clearly not sufficient conditions for adoption. Other forces must logically be at work.

The second set of explanations, having to do with the cross-national learning and emulation, is also very relevant. From the outset, nations have been very keen to learn from the experiences of other countries. The early pioneers (especially Sweden and the United States) have been held up as examples to follow. They precipitate the arguments in domestic policy debates: "they've got one, we ought to have one too" or "it works there, it can work here." For example, an early and influential article on Canadian government secrecy asserted that "the Americans are now far ahead of us in their determination to solve the problem of administrative secrecy, and we have much to learn from them" (Rowat, 1965, p. 486).

As the adoption of FOI statutes has progressed, the process of international lesson-drawing has obviously deepened to more detailed issues of legislative drafting concerning exemptions, costs, time-limits, oversight and so on. When the Canadian Access to Information Act was being conceived in the late 1970s and early 1980s, many lessons were drawn from the experience of the American FOIA. There were at least three official fact-finding missions to Washington by Canadian MPs, as well as a multiplicity of more informal contacts. Lessons were drawn about the wording of the national security exemption, about time limits, about the scope of exemptions, and about oversight. Canada emulated the American experience in the sense that policy-makers used the American example above any others and adapted that exemplar, despite the obvious differences, to Canadian constitutional, administrative and cultural conditions (Bennett 1991, p. 46). Since then, of course, Canadian access to information policy has been a focus of attention for fact-finding missions from other countries.

One of the most persuasive explanations for the diffusion of freedom of legislation around the advanced industrial world is, therefore, emulation. The larger the number of adopting countries, the greater the pressure on those without legislation. It thus becomes far harder to justify the non-adoption of a policy in domestic political debate when so many other jurisdictions have come to an opposite conclusion.

As far as the third explanation is concerned, however, there has so far been little recognition that the adoption of FOI legislation in one country has direct consequences for the information policies of another. So far there have been few obvious extra-territorial implications of enacting FOI. In the related case of personal data protection, the ease with which personal data can be transferred for processing to other jurisdictions meant an early recognition that domestic data protection legislation could easily be circumvented by moving data processing operations to countries with less stringent data protection regulations. This problem of "transborder data flow" set in motion a series of international agreements, through the Organization for Economic Cooperation and Development (1981), the Council of Europe (1981), and the European Union, which have attempted to thwart the creation of "personal data havens." The latter produced a Directive in 1995 which, among other things, stipulates that no personal data should be transmitted outside the EU for processing unless the receiving jurisdiction can ensure an "adequate level of protection" (EU, 1995). Some countries (such as Canada) have responded to this requirement with data protection legislation.⁴ The United States has negotiated a "Safe Harbor Agreement" to attempt to allow the continued free flow of personal information to the United States.⁵ Privacy protection policy is squarely, therefore, an important trade-related issue, collaboration over which is crucial for the continued development of international electronic commerce.

Freedom of information policy in almost every jurisdiction other than Canada is treated as a very different issue from privacy protection. In Canada, the innovation of legislating simultaneously for both access to information and privacy protection (at least in relation to the public sector) at both federal and provincial levels, is not an approach that has been emulated elsewhere, although a few jurisdictions give both access to information and personal data protection responsibilities to the same "commissioner."⁶ In most countries, the two sets of rights sit uneasily within one legislative regime. Because of the trade implications, there are now more states with privacy protection legislation than with freedom of information legislation.

However, there is evidence that freedom of information regimes are becoming increasingly interdependent. This interdependence may not have vital trade implications, but it is beginning to influence the way that domestic, including Canadian, access to information policy is implemented. The remainder of this paper provides some illustrations of this increasing interdependence, and concludes with some speculation on whether this dynamic will produce a "trading-up" of FOI standards, or the opposite.

Access to Information and Policy Interdependence

The paradigm for access to information policy in the past was framed by an assumption that citizen A, of jurisdiction A, would request information generated by the government of jurisdiction A. Citizen A was not expected to make requests of the government of jurisdiction B, nor to make requests for information that was generated outside of those borders. The FOI regimes were considered discrete, independent and bounded by a traditional conception about where "the state" began and ended.

Globalization has meant a significant increase in the policy activity that takes place at the international level, both governmental and corporate. By extension, therefore, the same kinds of information are likely to be found in the files of different agencies in different jurisdictions. The same reports on drug safety, on environmental conditions and hazards, on labour conditions, on trade negotiations, on comparative health and safety and so on, are shared. "Government information" is not something that is defined by any one government. Information now knows fewer national attachments than it did 30 years ago when the first modern FOI legislation in the United States was enacted. Globalization has increased the level of interdependence between FOI regimes. But these pressures might militate in favour of greater openness, or greater secrecy. The subsequent analysis provides several illustrations that suggest that policy interdependence might be tugging in both directions at the same time.

Policy Interdependence and Pressures for Openness

The first phenomenon that might lead to greater openness, and that is obviously more prevalent today is that of "shopping around" different jurisdictions to find the records one wants. Some journalists, members of NGOs, as well as representatives from the private sector are now quite knowledgeable about foreign FOI laws, and make use of those procedures in a number of ways, and for a number of reasons.

For example, when some jurisdictions do not enjoy the benefits of FOI, diligent requesters then go to other countries to discover information on their own countries. Before Britain passed its Freedom of Information Act in 2000, the Campaign for Freedom of Information used to request documents under the US FOIA to find out about safety and environmental issues of critical importance to the British public.⁷ Some of the documents released reveal the extent to which creative use can be made of foreign access to information legislation:

• Reports on hygiene on British cruise liners
• Information on the safety of British pesticides
• Details of safety related complaints about British cars
• Inspection reports from British poultry farms
• Inspection reports from the US Food and Drug Administration on British drug manufacturers
• Reports on fuel leaks at US Air Force bases in the UK.

Evidence such as this went some way to persuading the British government that it was futile to persist with policies of secrecy when such information was readily available overseas.

Other requesters shop around to obtain a different perspective on the same issue. For historical research, it is often important to find different national and cultural perspectives on important international events. The National Security Archives in Washington DC, for instance, has been compiling a history of the UN intervention in Rwanda. They have received a large volume of information through the Canadian Department of National Defence that, because of Canada's central role in the Rwanda campaign, was unavailable from the Department of State or the Pentagon in Washington.⁸ Moreover, the stipulation in the Canadian law that applicants should be citizens or permanent residents has never been an obstacle for determined and expert applicants from overseas.⁹

Another incentive has less to do with the formal process for application, and more to do with the informal culture of different agencies. Just as requesters can become accustomed to dealing with particular agencies rather than others in their domestic governments, so some have realized that counterparts overseas can be far more careful in record-keeping, forthcoming, sympathetic and speedy than are agencies in their own country. Some access coordinators may be more reasonable. Some may see less of a threat from a foreign journalist or other applicant, than they do from those who are constantly operating and requesting information from their own doorstep.

Ann Rees, a staff reporter with the Vancouver Province, has over several years researched into the adverse side-effects of certain stimulant drugs, especially those prescribed for Attention Deficit Disorders (such as Cylert, Ritalin, Dexedrine).¹⁰ Over this period she has learned that the Food and Drug Administration in the United States has a far more comprehensive database on adverse drug incidents than does Health Canada. And she has generally received the relevant documents more quickly and cheaply from the FDA.¹¹ Martin Middlestaedt of the Globe and Mail has made similar use of the US FOIA to research the flows of hazardous waste materials into Canada. Documents about the activities of a particular company were retrieved through the Environmental Protection Agency in Washington after requests to Environment Canada were rebuffed.¹²

Another phenomenon that seems increasingly prevalent is the invocation of overseas experience during the more formal review process once a request has been refused. Applicants may sometimes use the argument that the same kind of information is available in another jurisdiction in order to counter arguments of national security, or financial and economic harm. And occasionally these arguments will persuade Information Commissioners and/or the courts that the same information should be released domestically.

In 1988, following requests under the Canadian Access to Information Act, the respondent, the Minister of Agriculture, released meat inspection team audit reports made in 1983 on several meat-packing plants in Kitchener, Ontario. The packing company concerned then applied to the Federal Court to resist disclosure, arguing that the material should not be released because it fell into the exemptions from disclosure provided for in s. 20(1)(c) of the Access to Information Act in that disclosure could reasonably be expected to result in material financial loss to itself, and in s. 20(1)(d), in that disclosure could reasonably be expected to interfere with its contractual negotiations. The trial judge dismissed the application, finding that the statutory exemptions required a direct causation between disclosure and harm not present on the facts of the case. He did so, partly because similar American reports on the packing plants in issue had been available to the public and there was no evidence of harm arising from this publicity. The Federal Court of Appeal agreed with the trial judge.¹³ Of course, the argument that "it's public there, it should be public here" can also work in reverse, as we shall see below.

Finally, the increase in the frequency of international litigation has also increased the use of freedom of information legislation. FOI applications, and thus the time and resources of public servants can be used to reduce legal costs during the often costly discovery process. Some international businesses have become quite expert at using FOI regimes to find out about the practices of competitors, the government contracting process, and so on. And there are a small number of commercial dealers in information that feed this process. The pharmaceutical industry, in particular, makes heavy use of FOI statutes to obtain information on drug-trials in different countries, and related matters.

The above illustrations all militate in favour of greater openness. It is impossible to measure and compare historical trends. But from anecdotal and impressionistic evidence, it is clear that the forces of globalization have increased the level of informational interdependence which in turn has meant a greater use of different FOI statutes by a greater range of overseas applicants.

Policy Interdependence and the Pressures for Secrecy

But the interdependence of FOI regimes can also produce a reverse effect when arguments are made that release of information would prejudice various national, organizational or commercial interests with world-wide adverse implications.

A particularly interesting case is currently being litigated in Ontario as a result of a decision by the Ontario Information and Privacy Commissioner to allow the release of certain inspection reports of Ontario Hydro carried out by an international trade association called the World Association of Nuclear Operators (WANO). The case involves some intricate and complicated issues concerning the jurisdiction of the Ontario Commissioner, which raises some wider issues of Canadian constitutional law.¹⁴

Of particular interest here, however, is the argument offered by WANO that "Disclosure of the Peer Review Reports will interfere with WANO's ability to schedule and conduct peer reviews at nuclear plants worldwide." They have argued before the Commissioner, and now before the courts, that the effectiveness of its role in improving the safety of nuclear facilities worldwide is dependent upon the confidence of peer review participants, including the facilities and their employees alike, in the confidentiality of the communications in the peer review process. This is an explicit argument that the interpretation of Ontario's FOIPPA could influence the conduct of nuclear inspection worldwide. WANO asserts that in no other jurisdiction are these reports publicized and points to the "Confidentiality Notice" that all facilities sign with WANO before an inspection is begun.¹⁵

So here we see an example where the organization has argued that the information in question does not get released elsewhere, why should Ontario be any different?

Other illustrations occur in relation to the "third party" commercial information that government collects from the private sector. Canadian and overseas companies are regularly asked to provide voluntarily information to government, and particularly Industry Canada for forecasting and statistical purposes. It is reported that sensitivities over access to information have led to an increased reluctance on the part of some businesses to cooperate with government in this way, thus hindering government's analytical and forecasting abilities.

Fears of release under access to information law can also arise in the context of government contracting. Anecdotal evidence has suggested that some businesses are reluctant to bid on government contracts in jurisdictions that have a reputation for excessive openness. Fears that confidential proprietary information, or information that might reveal business vulnerabilities, might have to be revealed to government during the bidding process, and might then be revealed under FOI and fall into the hands of competitors have allegedly caused a reluctance to bid for Canadian contracts.

Whether or not these fears are real or hypothetical is difficult to judge. Certainly the Federal Information Commissioner has little patience with these kinds of arguments:

This Commissioner has seen thousands of government-held records relating to private businesses. Real secrets are rare. Sounding the alarm of competitive disadvantage has become as reflexive in some quarters as blinking. Concern for the public interest in the transparency of government's dealings with private businesses has been almost abandoned by government officials.

New rules of the road are needed to govern the right to know more about government dealings with the private sector. First, the law should tell firms choosing to bid for government contracts that the bid details, and details of the final contract, are public for the asking.¹⁶

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1. The terms "access to information" and "freedom of information" are used interchangeably in the literature, and in this paper. Although the former is probably a more accurate designation, the latter and its acronym (FOI) tend to have more popular meaning and significance.

2. http://www.privacyinternational.org/issues/foia/foia-survey.html

3. Table One presents a simple overview of the diffusion of FOI legislation. The stated data represents the first time at which legislation was passed. Subsequent amendments are, therefore, excluded. Also excluded are partial rights of access (for certain categories of information), and statutes at sub-national levels.

4. The recently enacted Personal Information Protection and Electronic Documents Act began to take effect in January 2001.

5. The full text and supporting documentation for the Safe Harbor Agreement can be found at: http://www.export.gov/safeharbor

6. The UK now has an "Information Commissioner" to oversee both the Data Protection Act, and the new Freedom of Information Act. Some German Länder (such as Brandenberg) have the same model.

7. "What the American FOI Act reveals about Britain," Secrets: Newspaper of the Campaign for Freedom of Information, No. 22, July 1991.

8. Telephone conversation with Will Ferroggiaro, National Security Archives, July 5, 2001.

9. Section 4(1). This Section was also extended by Order-in-Council to include those present in Canada. None of these restrictions, it appears, provides any obstacle to the determined applicant.

10. An initial story appeared as: "Feds review use of ADD drug Cylert: Liver-failure risk will cause Health Canada to look `very carefully,'" The Province, Thursday, December 10, 1998. Her research is continuing in both Canada and the US.

11. Personal communication, July 3, 2001.

12. Globe and Mail, September 27, 1999.

13. Canada Packers Inc. v. Canada (Minister of Agriculture) 53 D.L.R. (4th) 246 Federal Court of Appeal, July 8, 1988.

14. http://www.ipc.on.ca/english/orders/orders-p/po-1805.htm

15. "CONFIDENTIALITY NOTICE: Copyright - 1998 World Association of Nuclear Operators (WANO). All rights reserved. Not for sale. This document is protected as an unpublished work under the copyright laws of all countries which are signatories to the Berne Convention and the Universal Copyright Convention. Unauthorized reproduction is a violation of applicable law. Translations are permitted. This document and its contents are confidential and shall be treated in strictest confidence….."

16. Annual Report of the Information Commissioner, 2000-2001, pp. 74-75