Report 15 - Access to Information Review Task Force

THE MEANING OF "PUBLISHED" FOR PURPOSES OF THE ACCESS TO INFORMATION ACT

Published: October 2001

Christine M. Ardern

Table of Contents

Executive Summary
Background and Introduction Findings
Options for Consideration
Conclusion

Report
Background
Methodology
Government Policy Framework and "Published"

Legislative Requirements
Policies and Related Guidelines

The Impact of the Internet on the Concept of "publishing"
Web-publishing Considerations
The Government of Canada Internet Guide
Long-term Preservation of Government Publications Infrastructure:

Implementing Publication Schemes -The U. K. Model

Findings Recommendations and Proposed Options
Conclusion

Appendix "A" Standard Definitions
Appendix "B" Existing Policies and Guidelines
Appendix "C" Research Sources and References
Appendix "D" "Published" Definition Content

Executive Summary

Background and Introduction

The Access to Information Review Task Force is currently looking at the components of the Access to Information framework, including the Access to Information Act, regulations, policies and procedures. The Task Force wishes to determine whether the use of the word "published" in the Act is still adequate and, in particular, given new information technologies, whether the meaning of "published" should be spelled out in the legislation or elsewhere to ensure that it encompasses material posted on government web-sites.

Section 68 of the Act provides that the legislation does not apply to "published material or material available for purchase by the public" while section 26 provides an exemption for material that is to be "published" within 90 days. Since both of these sections are exceptions to the general right of access under the Act, it is important to clarify what material is considered "published" ⁽¹⁾.

The way in which government information is made available to the public is changing rapidly as a result of access to the Internet and the development of government web-sites. By the year 2004, government wants to have moved to e-government. It is expected that posting on web-sites will be become one of the major ways that government will disseminate information in the future. There is some uncertainty as to whether materials posted on government web-sites meet the criteria of "published" under the current provisions of the Access to Information Act. Clear guidelines on what constitutes an official government publication and the process by which it is created and made available are desirable for a number of reasons, including their contribution to a framework encouraging more routine, proactive dissemination of government information outside the Act.

Within the Government of Canada there are a number of statutes and policies which provide guidance to government institutions about the preparation and dissemination of government publications. These include:

• The Access to Information Act;
• The National Library Act;
• The Department of Public Works and Government Services Act;
• The Copyright Act;
• The Treasury Board Secretariat Communications Policy;
• The Treasury Board Secretariat Common Services Policy;
• The Management of Government Information Holdings Policy.

Findings

A review of related definitions shows that "published" has a broad meaning which goes beyond placing information in a departmental library or on a government web-site. Through the publishing process, a government information product is created, edited, approved, marketed, disseminated and is made available and accessible to the public.

The terms "published" and "published materials" were widely used before the creation of the Internet and World Wide Web. As new methods of disseminating government information are implemented and the public has access to new delivery channels, the ability to make government information more widely available will increase.

Whether or not something is "published" must take into consideration the approval and dissemination processes as well as the intended audience and format of the end product.

"Published" and "published material" cannot only be considered as a media/format issue in an ever-changing technological environment. Determining if a government information product is "published" must also consider the reason for which it is created, the content and the intended audience. Therefore any proposed definitions of "published" and "published material" should:

• Apply to any or all media on which government publications are created;
• Reinforce existing policies and procedures for creating and making government information available so that access issues raised through the introduction of new technologies are considered as the new infrastructure is designed;
• Ensure that the mechanism for dissemination provides the necessary access both in the short-term and long-term.

In addition, controls for long-term access to government publications must be in place.

Options for Consideration

For purposes of the report, and based on the project terms of reference, the following options are proposed with regard to the use of the terms "published" and "published material" within the Access to Information Act.

Option 1)

To clarify the exceptions to obtaining documents under the Access to Information Act, and to provide direction for more routine, proactive dissemination of government information, a definition of "published" could be included in the Act reflecting

• The publishing process;
• The published format;
• The intended audience;
• How publications are disseminated and through what delivery channels they are made available;
• How publications are maintained for short-term and long-term access.

Option 2)

To allow for a greater degree of flexibility over time and to maintain links with related government policies and programs, the components of "published" for purposes of the Act could be set out in detail in the Treasury Board Access to Information Policy and Guidelines.

Option 3)

A third alternative could be to borrow from the structured approach anticipated by the United Kingdom's recently-enacted Freedom of Information Act. That Act requires each public authority to adopt and maintain a 'publication scheme' specifying: the classes of information it publishes or intends to publish; the manner of publication; and any charges for the material. In the U.K., publication schemes must be approved by the Information Commissioner who has noted that the concept is not yet a clear one and development of schemes will be a learning process for all concerned ⁽²⁾.

Conclusion

Up until 1995, the majority of government information products were available to the public as books, periodicals, brochures, computer files, microfilms, microfiches, CDs, videocassettes and sound recordings. The way information is created and disseminated has changed dramatically since the introduction of the World Wide Web. Today not only is government information available on the earlier media but also on government web-sites through portals. Tomorrow it will be available through wireless and other mobile transmission devices.

Since sections 26 and 68 of the Access to Information Act are both based on the assumption that information which is "published" is generally available through other means than a request under the Act, the criteria to define the term published for the purposes of the Act should ensure that such information is easily located by the public.

The meaning of "published" must address the function and audience not simply the format. Since government publications are increasingly made available electronically, it will be critical to provide a strong electronic publications management program to ensure that government publications continue to be available and accessible once they are removed from web-sites.

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Footnotes:

1. The concept of "published" in section 68 includes non-government as well as government publications. Nevertheless, the focus of this report is the accessibility and availability of government publications.

2. Preparing for Implementation: Publication Schemes" issued by UK Office of the Information Commissioner, May 31, 2001 (http://www.dataprotection.gov.uk/dpr/foi.nsf )