Report 3 - Access to Information Review Task Force

GLOBALIZATION AND ACCESS TO INFORMATION REGIMES

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

Access to Information and Participation in International Regimes

These and other cases raise the larger question about the implications for FOI of the increasing participation of nation states in international regimes and organizations. Some international organizations tend not to have highly developed rules concerning how to respond to access to information requests. With or without established rules, some international organizations might be more secretive than national governments; others might be more open. The rules and expectations of international organizations can and do clash with established FOI policy and procedure within nation states.

One recent example arises from the claim by lumber company, Pope & Talbot, Inc, against the Government of Canada under the Investment Chapter of the North American Free Trade Agreement. Pope & Talbot's complaint arose from the fact that it, like other companies operating in British Columbia, has had its duty-free export quota reduced by the Canadian Government each and every year since the Agreement came into force. These quota reductions allegedly resulted from the manner by which the Canadian government has implemented the Canada-U.S. Softwood Lumber Agreement.

Having the burden of proof, Pope & Talbot needed to establish that Canada has chosen to implement this Agreement in an unfair manner and in breach of Canada's obligations under Chapter 11 of the NAFTA. A Tribunal was constituted under NAFTA to deal with the complaint.¹⁷

During part of the proceedings, the Canadian government refused to deliver certain documents to the Tribunal on the grounds that they contained Cabinet confidences, and that they were covered by solicitor client privilege. The government relied mainly on S. 39 of the Canada Evidence Act in making this decision, which is quite broadly drawn and which was designed to preclude Canadian courts from reviewing Cabinet confidences. In response, the Tribunal disputed whether this particular legislation was relevant to this case, and requested that Canada justify its refusal in more concrete terms. Canada refused to do so. In its decision dated April 10, 2001 the Tribunal made the following comments about this secrecy:

The tribunal deplores the decision of Canada in this matter….Canada's position could well be a derogation from the 'overriding principle' found in Article 15 of the UNCITRAL Arbitration rules, under which these proceedings have been conducted, that all parties should be treated with equality….As Canada's refusal to disclose or identify documents in these circumstances is at variance with the practice of other NAFTA parties, at least of the United States, that refusal could well result in a denial of equality of treatment of investors and investments of the parties bringing claims under Chapter 11.¹⁸

Leaving aside the question of whether a presidential system such as the United States could in effect have any doctrine of "Cabinet confidences", this dispute suggests a fundamental clash of sovereignty. Under both the Canada Evidence Act, and the Access to Information Act, any information relating to "Cabinet confidences" is excluded from disclosure. The Arbitral Tribunal in this case was asserting a right to at least examine the documents in question to ascertain their relevance to the case at hand, a right that neither the Canadian Information Commissioner nor the Canadian courts can exercise. One might assume that this will not be the first NAFTA case where disputes over the production of official documents will arise.

NAFTA is the only international agreement, to which Canada is a party, through which private parties can bring cases against foreign governments. The parties in World Trade Organization disputes, however, are countries, which sometimes use FOI laws for discovery purposes during WTO disputes. For instance, documents retrieved through the Canadian Access to Information Act have played a role in the longstanding dispute between Brazil and Canada over whether or not the "Technology Partnerships Canada" program, and specifically its support of the regional aircraft industry, constitutes an export subsidy in violation of WTO rules. Arbitration panels, such as those established under the WTO, rely on a significant amount of collaboration, including the sharing with the other party of all relevant evidence. This dispute between Canada and Brazil has raised serious issues about what that means, about whether one party could make "shotgun requests" for large amounts of unspecified information, and about the appropriate rules for the protection of third-party commercial confidences.¹⁹ In the context of trade disputes and arbitration, those countries with FOI statutes may well be at a disadvantage.

Some international, or supranational, institutions have been under increasing pressure to be more open about their practices. The clash between the interests of nation states and those of an international body has been first, and most notably, apparent in a long-standing and sensitive dispute within the institutions of the European Union about access to information. The previous EU Commission was forced to resign, partially as a result of criticism concerning excessive secrecy. Since then the Commission, the Council of Ministers and the Parliament have been engaged in a dispute over whether and how EU citizens should have a right of access to EU official documents. ²⁰ With the advent of the Swedish presidency at the beginning of 2001, the movement for more openness gained an important champion, and a new code of access was then finalized in April. But critics have still pointed to vague exemptions and woolly classification categories.²¹ The most recent development is that the European Parliament is to take the Council of Ministers to court over the introduction of wide-ranging security rules, which MEPs say violate the treaties and are overly secretive.

This ongoing dispute may foreshadow the kinds of issues faced by other international bodies. With the common recognition that an increasing amount of decision-making takes place at the international level, there will be an increasing pressure from a variety of quarters for more openness. International consumer, environmental, civil liberties and other groups will obviously be the most vocal critics of excessive secrecy, as is seen with the recent protests at international trade meetings in Seattle and Quebec City. But they will find some surprising allies in some sections of the corporate world, as well as in some national parliaments. The interesting feature of the EU dispute is how countries with traditions of openness, such as Sweden, have been concerned that documents that would normally be released under domestic FOI law, would be held confidential by the EU. Whereas countries with traditions of secrecy (such as Germany) have tended to oppose more openness at the EU level for fear that information held confidential under German law would all of a sudden see the light of day in response to access requests under the new European code.

A Race to the Top or the Bottom?

We have seen that the pace of enactment of FOI statutes has increased in recent years; the number of advanced industrial states with such legislation is fast overtaking the number without. We have also seen how the use or invocation of FOI legislation in other countries can affect domestic access to information policy. FOI policy is undoubtedly affected by globalization on a number of different levels. Does all this policy activity constitute, however, a race-to-the-top or a "trading-up" (Vogel, 1995)? Does this greater interdependence mean the international FOI policy dynamic is likely to harmonize FOI according to the highest, rather than the lowest, common denominator?

Some of the trends sketched above might lead one to speculate that more and more countries will be forced to pass FOI legislation, and that the standards for access will probably become more and more liberal: exemptions will be drawn more narrowly; time-limits will be shortened; fees will be minimized, and so on. The logic behind this process is as follows. The more "domestic government information" that finds its ways into the hands of foreign governments or international organizations, the less relevant domestic access to information policy becomes. The "shopping around" phenomenon, used by journalists, NGOs, lawyers, corporations and others will produce an increasing amount of information that might otherwise be kept confidential. Of course, this dynamic operates throughout the universe of countries with FOI. In the absence of any attempts at international harmonization, domestic (including Canadian) access policy can only, therefore, be as stringent as the most open regime in the world; if applicants cannot get what they want at home, then they will go abroad.

Furthermore, the examples from the NAFTA and WTO disputes suggest that there might be a considerable pressure from international capitalist interests to ensure that standards of openness are consistent, especially with regard to information on commercial confidences. The dispute at the WTO in Brazil demonstrates how a country with FOI, in this case Canada, might be put at a disadvantage by applications from foreign governments and interests for policy information generated at the domestic level that then finds its way as evidence into the trade dispute in question. The expectation, of both WTO and NAFTA, that parties should be as forthcoming as possible with information not only confronts certain domestic information rules, but also operates to push standards of openness higher. The logical response of an international business that feels that its interests cannot be properly represented in international trade arenas because of an imbalance of evidence, might be to lobby strenuously for similar access to information statutes in countries, like Brazil, that do not have such legislation, thereby leveling the playing-field.

At a certain point, therefore, the logic of policy harmonization might be irresistible when a critical mass of countries with FOI see their interests harmed in international trade fora because of these imbalances. The logic, observable in many other policy areas including privacy protection, would then try to force the "free-riders" in the international community to adopt FOI law according to a common pattern (Shaffer, 2000). Advocates for openness within those countries would also be able to point to higher standards elsewhere (as happened in the British debate over FOI for the last twenty years). A treaty could be developed and opened for ratification. The harmonization process would then operate to push standards of openness to the highest, rather than the lowest, common denominator. Thus, the liberalization of trade may actually provide nations with an economic incentive to strengthen FOI legislation.

To the extent that treaties or trade agreements provide formal mechanisms for establishing harmonized or equivalent standards, they provide an opportunity for richer, more powerful countries to play a greater role in setting those standards. In this respect, the interests of Canada are likely to be marginal. On the other hand, if there is a perception that American political and economic interests are being hurt in the international trade arena because of the use of US FOIA, that perceived imbalance might very well lead to the kind of "trading-up" dynamic discussed above. This has been one powerful argument for the "trading-up" of environmental standards within the American economy, and between the United States and Europe (Vogel, 1995).

There are, however, a number of qualifications to this argument, which might lead to scepticism about whether this "trading-up" logic would ever be relevant in the case of FOI. First, the illustrations provided above can also work in the opposite direction. For every international business that uses FOI to obtain information to advance its interests, there are at least as many that argue, and litigate, strongly to keep information confidential. Domestic FOI policy certainly has important externalities. However, there is no reason to believe that any pressure for harmonization would be exerted in the direction of more openness.

Second, as an increasing amount of policy making takes place at the international level, each government then has the capability to exempt more information from disclosure as a result of the applicable exemptions for international negotiations or diplomacy. In the Canadian Access to Information Act, therefore, the scope of Section 15 (1) is potentially broadened.²²

And so are the equivalent sections in other FOI statutes. The longstanding conflict over access to information within the EU suggests that officials in international and supranational organizations might be just as prone to resist openness as are their counterparts in some national administrations.

Third, if there is a logic of policy harmonization, then harmonization of what? This paper has not attempted a thorough comparison of access to information statutes. But other studies have noted an already high degree of convergence (e.g. Marsh ed. 1987). At the level of broad statutory principles all laws must logically provide a right of access, create a set of exemptions for international affairs, law enforcement, defense and national security, personal privacy, Cabinet confidences, and so on, and then deal with the intricate procedural questions concerning time limits, costs and redress. The standard for "openness" within a community, however, will only be partially influenced by legislative language. More significant factors are the administrative culture and the interpretation of that statutory language by the courts and/or the information commissioners. And this will inevitably continue to vary according to institutional and legal traditions, as well as to national understandings of what is and is not a politically salient question.

The observation of similar statutory language should not signify similar levels of openness with regard to particular types of information. In other words, a harmonization effort could force a convergence on some basic statutory principles about legitimate exemptions from the right of access, but that process could not force the same interpretation of those principles. And the interpretation of contentious words such as "national security," "personal privacy" or "commercial confidences" means everything in this policy area.

Finally, it is not clear through what international organization such a harmonization effort would arise. In relation to privacy protection, a number have played an important role, including the OECD, the Council of Europe and the European Union. But it is very unlikely that the level of interdependence would reach the same levels to force similar harmonization efforts. More likely is a more pragmatic and incremental process of collaboration within those international regimes (such as WTO and NAFTA) where observable discrepancies arise. And those negotiations will likely focus on quite specific exemptions, such as that relating to commercial confidences.

Conclusions

The preceding analysis has not attempted to provide a systematic overview of the impact of globalization and trade liberalization upon Canadian access to information policy. Certain trends have been noted, but the implications of those trends are still inevitably speculative. It is notoriously difficult to separate out the perception of harm, from actual harm. Nevertheless, the following broad conclusions can be reached.

• FOI policy is undergoing a paradigm shift. The traditional expectation has been that citizen A, of jurisdiction A, would request information generated by the government of jurisdiction A. Those assumptions are obviously breaking down, as "government information" now knows few national attachments. FOI regimes are no longer discrete, independent and bounded by a traditional conception about where "the state" begins and ends.
  
  
• There is an increasing tendency to "shop-around" for information by a greater range of applicants: journalists, NGOs, lawyers, businesses and others. This process of shopping-around appears to happen regardless of the stipulation in Section 4(1) of Canada's Access to Information Act that applicants should be a Canadian citizen or permanent resident. This requirement seems redundant and out-of-step with the pattern in other FOI laws, which normally make no distinction as to the nationality of the applicant. For those foreign applicants who want to use the Canadian Act, there is no problem in finding a Canadian surrogate to make the request for them.
  
  
• The diffusion of FOI around the world is likely to continue, but mainly through domestic pressures and through the notable process of international "lesson-drawing." The more countries with FOI legislation, the more difficult it is to justify being in the minority that does not.
  
  
• Policy interdependence has obviously risen. But there are, as yet, few instances where the political and economic interests of those with FOI might be harmed by the "free-riders" who do not. The forces that would promote a general "trading-up" of FOI standards through a multilateral process of policy harmonization are not observable at the present time.
  
  
• However, if trading up occurs, it will likely only apply in very specific circumstances relating to certain categories of information that are invoked as evidence within trade dispute processes. This dynamic is most likely to occur if US interests are perceived to be threatened by foreign use of its own FOIA.
  
  
• The more policy-making activity that takes place at the international level, the more relevant become those exemptions in domestic access to information law concerning international relations, diplomatic confidences, the affairs of foreign states and so on. Thus, there is plenty of evidence that Canada's involvement in multi-lateral and bilateral international agreements has raised, and will continue to raise, questions about the operation of Canadian information policy. Canadian policy will continue to be brought into conflict with established, and emerging, information policy rules in international organizations.
  
  
• However, there is little evidence to date, that the Canadian "standard" is objectively any more or less open than that of other countries. Relative openness is extremely difficult to measure, and contingent on some highly elusive and fluctuating cultural factors. The argument that "it's available there, why not here?" is often heard. But so is the opposite: "It's secret elsewhere, why not here?"
  
  
• Canadian access to information policy will continue to be influenced by international developments and forces as a result of globalization. But those influences are very difficult to define, and they operate in complex and unpredictable directions. And there is no clear evidence that the existence of the Canadian Access to Information Act operates either to harm, or help, Canadian interests abroad.
  
  
• In conclusion, there is no pressing reason why international pressures should be influencing the way that we, as Canadians, shape our own access to information policy. Reform of the Access to Information Act should be based on the interests of Canadian citizens, and should be driven by the need to strengthen Canadian democratic institutions.

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Bibliography

Bennett, Colin J. 1991. How States Utilize Foreign Evidence. Journal of Public Policy 11: 31-54

_______ 1992. Regulating Privacy: Data Protection and Public Policy in Europe and the United States (Ithaca: Cornell University Press, 1992).

_______ 1997a. Convergence Revisited: Toward a Global Policy for the Protection of Personal Information. In P. Agre and M. Rotenberg (eds). Technology and Privacy: The New Landscape (Cambridge: MIT Press, 1997).

_______ 1997b. Understanding Ripple Effects: The Cross-National Adoption of Policy Instruments for Bureaucratic Accountability. Governance 10: 213-233.

Council of Europe. 1981. Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data. Strasbourg: Council of Europe.

European Union. 1995. Directive 95/46/EC of the European Parliament and of the Council on the Protection of Individuals with regard to the Processing of Personal Data and on the Free Movement of Such Data. Brussels: OJ No. L281. 24 October 1995.

Great Britain. 1968. The Civil Service (The Fulton Commission Report, Cmnd. 3638). London: HMSO.

Held, David et al. 1999. Global Transformations: Politics, Economics and Culture Stanford: Stanford University Press.

Marsh, Norman ed. 1987. Public Access to Government-Held Information. London: Stevens.

Organization for Economic Cooperation and Development. 1981. Guidelines on the Protection of Privacy and Transborder Flows of Personal Data. Paris: OECD.

Przeworski, Adam. 1986. Problems in the Study of Transition to Democracy. In G. O'Donnell, P. Schmitter, and L. Whitehead eds. Transitions from Authoritarian Rule. Baltimore: Johns Hopkins University Press.

Roberts, Alasdair. 2001. Structural Pluralism and the Right to Information. Queens University School of Policy Studies, Working Paper 15. February 2001.

Rose, Richard. 1993. Lesson-Drawing in Public Policy: A Guide to Learning across Space and Time. Chatham NJ: Chatham House.

Rowat, Don. 1965. How Much Administrative Secrecy? Canadian Journal of Economic and Political Science 31: 479-498.

Shaffer, Gregory. 2000. "Globalization and Social Protection: The Impact of EU and International Rules in the Ratcheting up of U.S. Privacy Standards," Yale Journal of International Law, Vol. 25, No. 1 (Winter 2000)

Vogel, David. 1995. Trading Up: Consumer and Environmental Regulation in a Global Economy. Cambridge, Massachusetts: Harvard University Press

17. All relevant documents are found on the website of the law firm representing Pope and Talbot: http://www.appletonlaw.com/4b3P&T.htm

18. Arbitral Tribunal, In the Matter of an Arbitration under Chapter 11 of the North American Free Trade Agreement between Pope and Talbot Inc. and the Government of Canada, April 10, 2001 at: http://www.appletonlaw.com/4b3P&T.htm . The United Nations Commission on International Trade Law (UNCITRAL) is the major legal body within the United Nations in the field of international trade law. It has a broad mandate to promote the adoption of new international conventions, model laws and uniform laws and the codification and wider acceptance of international trade terms, provisions, customs and practices in international trade: http://www.uncitral.org/en-index.htm

19. See, World Trade Organization, Canada - Measures Affecting the Export of Civilian Aircraft: Report of the Panel, 14 April 1999, WT/DS70/R at: http://www.wto.org/english/tratop_e/dispu_e/70r.doc

20. "EU strikes new deal on freedom of information," The Guardian, April 26, 2001. http://www.guardian.co.uk/Archive/Article/0,4273,4176014,00.html

21. The British organization "Statewatch" has been the most vocal critic: http://www.statewatch.org/news/2001/apr/08brussels.htm

22. 15.(1) The head of a government institution may refuse to disclose any record requested under this Act that contains information the disclosure of which could reasonably be expected to be injurious to the conduct of international affairs, the defence of Canada or any state allied or associated with Canada ….including,

(h) that constitutes diplomatic correspondence exchanged with foreign states or international organizations of states or official correspondence exchanged with Canadian diplomatic missions or consular posts abroad…