External Consultations

Proceedings - Roundtable on Access to Information Review, Ottawa - May 24, 2001

Conducted by the Public Policy Forum

Facilitator: Dr. David Zussman

Opening Remarks

David Zussman, President of the Public Policy Forum, opened the session with a brief overview of the Access to Information Act, created 17 years ago. The World Wide Web is less than 10 years old, he noted, but it has propelled radical changes in communications and the parameters of “government information.” He anticipated a constructive meeting and welcomed the participants’ recommendations for changes to the Act.

A round of introductions followed, in which participants stated which organizations they represented, and their standpoints. One participant asked about bringing diverse stakeholders together to assess whether and where there is any consensus in their interests. Dr. Zussman replied that this approach had been taken and was valuable, but a different approach has been chosen for this series of consultations. He added that reports are being prepared on each consultation, however, statements will not be attributed to specific persons.

Issues of concern raised by participants during their introductions included the scope of the Act, exemptions to the Act, the fees associated with receiving information through an ATIP request, and compliance with the Act. Also noted was the potential—and possibly actual—misuse of the legislation by government employees, to keep information from being released for purely political reasons. There is no penalty to a civil servant who misuses the Act, according to one participant. Participants were also concerned that the growth of privacy legislation is not being counterbalanced with access legislation.

Time delays, deletions in the documents received and an overall feeling of “interference” were other issues cited. Long delays caused one participant to stop using the Act to gain information. The participant called the Privacy Act a “smokescreen” that is used to prevent the release of information, and was curious about the role the Privacy Commissioner wants to have in access to information. Another commented on being “not able to pierce the governmental secret culture” and stated that there must be a political will to effect any changes.

One participant expressed some concern about the term “transparency.” Glass is transparent but it is also a barrier, the participant said, while stressing that transparency is not the same as accountability. Another noted that the issue of information access is going to feature prominently in discussions at an upcoming international meeting. Fees, exemptions and time delays were mentioned repeatedly. A participant proposed a public interest override, wherein information would be held back only in cases of harm.

Nancy Averill, Director of Research and Methodology with the Public Policy Forum, then presented an overview of the access to information issues identified by participants. These included:

• privacy
• the scope of the Act, and inconsistency in interpretation
• delays a particular issue for practicing journalists
• fees
• the role and powers of the Commissioner, and whether the offices of the Privacy and Access Commissioners should be somehow merged
• how to provide stakeholders and citizens with the tools needed to use the Act

General Discussion

Context

A participant noted that the Task Force’s role had not been discussed as a group, and proposed that the group address the issue of delays and whether recommendations are binding. The representative of the ATI Review Task Force stated that they are conducting a comparative study, looking at the access legislation of the United Kingdom, Australia, Ireland and even Sweden. The representative noted that as the number of requests has increased, the staff has also increased; however, there is no data concerning the size and complexity of requests, merely the overall number of requests. All requests, she emphasized, are not equal.

A participant questioned whether Access to Information has become “a place for people with no other place,” where it is not seen as a problem if employees are not good at their jobs. Another participant added that ATI work is often perceived by those within a department as a career-limiting move, if done well.

There was some discussion on the need to alter the culture of government, which tends toward secrecy, so that those responsible for ATI are encouraged to believe that ‘access’ should dominate their thinking.

Scope

Regarding the Act itself, a participant argued that the nature of the information, and not the interests of the government body, should determine whether information is released. As an example, the participant saw no reason why NAVCan should be excluded. The participant argued that information should not be excluded if a private or quasi-private institution performs a public function. A participant stated that exempting private bodies if they are performing a public function could be the “recipe for another Walkerton.” It was also stated that contractors who are commercial, and seen as no longer public, should be included under the Act if they are working in a public role.

Other participants echoed the call for the non-exemption of private organizations performing public functions. Even when contracted out, they stated, the work is still a public function and the Act should still apply.

A participant noted that one can no longer find printed copies as in the past; the participant also confessed to not knowing the definition of ‘document’ under the Act. The facilitator mentioned that e-mail is included under the definition.

It was noted that all documents produced by institutions and bodies which are financed by public funds are public documents, and that access to them should be available, be they federal, provincial or municipal. It was also proposed that the information time limit of 20 years should be reduced to 10 years. All exemptions should be viewed with the philosophy of the Act in mind – that of providing access. A participant commented that the Act, in its current structure, supports a culture of secrecy. The participant contended that documents should be exempt only in the case of harm, and that consideration should be given allowing for a “public interest override.”

It was also emphasized that more specific detail of the reasons for exemptions is needed, thus allowing easier determination of whether a complaint is warranted. Another participant suggested that giving the Commissioner binding override capabilities could be useful for this purpose.

A participant stated that Foreign Affairs is “one of the worst,” using agreements with foreign governments as the reason for exemptions. The participant contended that it is better to go through U.S. access to information to get such information than to go through Canada. Third-party interests and confidentiality were portrayed as a threat to ATI. A participant noted that the Act is being, or may be, used to prevent disclosure, with memos being contrived to use the Act to force exemption for example the rule requiring the removal of entire paragraphs with any specific mention of private organizations, as is currently the case under ATIP regulations.

A participant noted that, rather than more discretion, they would prefer to see more categories of release without discretion needed. A participant also proposed that because the government consults the involved company before releasing information, and since no company is likely to ‘OK’ the release of information a mandatory release of information should be written into these contracts. If companies do not want to release information, these companies should not bid on government contracts. A participant noted that there are many standard mandatory provisions of government contracts, and that this should be another one.

A participant described the current culture as one of paranoia, trying to “keep everything quiet.” Another stated their perception that law enforcement is an area with a great deal of overuse of the exemption, and that some attention should be paid to limiting the exemptions in that field. A participant offered the example of a case in Vernon, B.C., in which an individual shot nine people, committed suicide. The participant gained no information from the police regarding the individual’s firearms acquisition license, background check, etc. This was declared a matter of privacy, presumably of the deceased. A comparable example from the United States was offered, in which an individual was on trial for possession of bomb-making equipment. The participant received no information from Canadian authorities, but received from U.S. authorities information they had received from Canada. The participant did not trust the motivation of the U.S. government in providing the information, but the information was received nonetheless. It was noted that it is considered a rule in journalism, that the American executives, government officials and the population in general “talk more” than Canadians.

The question was raised as to whether Canadian legislation should take account of the information available elsewhere, such as in the U.S. A participant argued that there should be greater motivation than simply “Americans do it, so should we.” Another participant contended that the American information act should be examined, as it “does not appear to have harmed them.” The participant mentioned that there is no shielding for Canadian civil servants who provide information, and felt that perhaps there should be, and that there is a need for a real change in statutory incentives.

A participant asked about the role of the Ministers’ offices in relation to the Act. Do they have the right of veto power, to delay release, the discretion to decide on exemption or release? If the Minister is routinely told when the information is to be released, is this tantamount to the right of veto? The ATI Review Task Force Director confirmed that, under the Act, the Minister is required to release the information or administer a request.

A participant argued that “whistle blower” legislation is needed in Canada. It was also noted that Britain has protective legislation for anyone whose career is “adversely affected.” The facilitator said this was an interesting issue and, noting that many individuals in government find themselves in this position, inquired as to where the training and government culture comes in. He also noted that the construction of documents has changed, including the transition from preliminary analysis to Cabinet Document. A participant commented that an Ombudsman dealing with harassment cases may destroy records after resolution of the conflict, not being required to keep such documents. A participant noted that we are experiencing a difficult transition rewording legislation to harmonize with a so-called paperless world.

Regarding the scope of the Act, a participant stated that there should be a list of exceptions, and all other documents should be public. That is not currently the case. A Minister should only intervene in a case of national security; anything else would constitute interference.

Another participant suggested that a list of the types of document that should be public would enable a civil servant to make an instant decision about whether to release a specific document. In this regard, a participant quoted Alisdair Roberts, who wrote, “Disputes about the right to information should be resolved by the reference to its role in protecting the fundamental interests of citizens and not by reference to the provenance or structural characteristics of the institution holding the contested information.”

Implementation

A participant noted that, in the United States, copyright is not held by the government, so that an organization whose business it is to gather information can copy and redistribute government documents without a problem. This kind of practice would facilitate public access to information in Canada. People are not using ATI because of delays and barriers, the participant said. If there were an economic incentive for an organization to produce government documents for profit, they would be routinely available commercially. The cost of $20 million for 18,000 requests is not a good ratio, but if the information that was retrieved was extended to more people it would represent better value.

An observer commented that several publishers are repackaging government information and adding value. However, she clarified that an organization could not reprint and sell a government book. A participant remarked that currently there is discussion of charging for the use of web sites. If that goes ahead, government documents could be included. As an example, Statistics Canada sells information and then charges again if the material is put on a web site. A participant stated that if Crown information is not copyrighted, then another organization would be able to sell it. Then it would be a matter of whoever can provide it to the public at the least cost it could be that it is the government who can.

A participant noted that 18,000 requests for information were handled at a cost of $20 million and a cost recovery of $217,000. Cost recovery is not necessary if the object of the Act is to provide information. It should be perceived as the cost of government; it should not be a disincentive. It is silly to generate $217,000 in a multimillion dollar environment, the participant argued. The government would not be inundated with requests if they were free; most citizens do not care. If that did happen, the government would become more efficient and cost effective. It would be interesting to know the costs involved in collecting the $217,000.

The statistic on fees waived (in the Annex to the discussion paper) probably represents cases when the information coordinator decided that it was more trouble than it was worth to charge the fee, an observer noted. Another explained that the fee is waived for personal information. An observer clarified that there were about 50,000 personal applications.

A participant said that from the media perspective, the cost is not a big deal. However, another countered that the cost is a deterrent, because the process extends the turn-around time. Cost is an issue, the participant asserted. Even though large media organizations can afford the expense, it is often not within the budget of a particular program within that organization. Further, a participant said, estimates tend to be high balled, which is a deterrent. In a case where $3000 was quoted for 3000 pages, one journalist went into the reading room where the documents were displayed and selected about 100 pertinent pages, knowing the estimate was overloaded as a disincentive.

Many media organizations are not well financed, particularly the small, local ones, a participant said. Whether or not media organizations are deterred by the cost, there should be equal access it should not be determined by ability to pay.

In their discussion of fees, participants agreed that the basic principle is that access to information should not be blocked. Information is a basic right in its facilitation of public debate. Any changes to fees will have an impact on the use of ATI. A participant noted that if charges are to be eliminated for the news media, it is essential to eliminate them for the public as well. In New York, there were many more press passes issued than there were journalists, because people decided they were journalists, if it meant there were no charges. Many people would qualify in the age of the Internet. Access should be free to everyone, especially as $217,000 makes a mockery of ATI.

It was noted that when the Act was introduced, one of the concerns was that there would be too many requests to handle. The government can learn from the knowledge of how much cost was actually recovered. Should the handling of a request be open? The Department of National Defence has an open process, noted one participant.

It would be valuable to be able to use a database to see if a request had ever been made before. The result would not have to tell who obtained the document. A participant remarked that the Patent Office has a great database. A participant stated that currently the list of databases is not accessible online, only in a $49.95 book. The law should be amended so that these are available electronically. An observer clarified that the request form may be available online, depending on the institution. The issue is that it has to be ascertained whether the requester is in Canada.

The system is designed to deter the applicant for fear of inundation with requests, a participant said. It was suggested that there be a period of time in which requests are free, to determine whether fees are necessary. It would have to be a sufficiently long period of time to handle a potential initial flood. An implementation target date would give time to prepare for an increase in requests, the participant suggested. Another remarked that the cost of collecting the $5 fee probably exceeds $5. A participant added, the limits to access are a “double whammy” fee plus delay.

Delays are often not due to the information coordinator, a participant said. The request has to go to many departments and then someone has to vet the document when it comes back. It is a cumbersome process that involves many people. However, another participant said that some delays are clearly imposed to give the government time to make policy decisions. They are not due to a staffing shortage. The information always comes through the day after a decision is made, the participant claimed. Certainly journalists make some broad “fishing” requests it is faster if they can be very specific as to author and date of material requested, but there are still delays. Polls on which budget decisions are made always come after the budget. This is not a matter of exemptions; it is just delaying. The advice of an assistant deputy minister should be held up, but not the data it is based on, the participant concluded. Another participant stated that by definition, public polling data should be released.

When the Act was written, it was assumed that the 30-day requirement meant that the information would be provided in 30 days, a participant said, however, the interpretation is that an acknowledgment is to be made within 30 days. Requests take longer today than they did five years ago, said another. There is a culture in the government to use the Act as it chooses.

Taxes on people who do not provide information are not much disincentive it is public money anyway, a participant stated. Another participant said that if the fine or penalty on the department for being uncooperative were publicized, it might have an impact on other departments. Perhaps the fine could be given to the requester, suggested another.

The Information Commissioner’s annual report is often made available at 5 p.m. on a busy day, so it does not attract much attention, a participant remarked. However, another participant said that Statistics Canada has a free media hotline, on which journalists can speak to a media officer. It works well. This raises the issue of consistency, the participant added. There are cooperative ATI and media relations officers in some departments. The Department of Transport is an example. This also raises the issue of the kind of training these people receive, a participant noted.

The fundamental issue is that everyone should be working on the same set of values. The preamble to the legislation should speak of basic rights and ATI’s responsibility to help citizens with access. Currently, there is no accountability, a participant stated. Another commented that there is no consistency. Some coordinators are very good, especially to people who make a lot of requests. However, there seem to be no rules and no standards.

This discussion should ignore the fact that there is a lot of deliberate withholding of information, a participant said. A change in the legislation will not eliminate the misuse of the Act.

Redress

Since results of redress are after the fact after “useless” information has been received most people give up and do not bother with the redress process. The really dangerous and disturbing trend is that by not providing information, the government has achieved what it intended, a participant stated. How is the public to find out about fundamental issues such as Somalia and the blood supply? Are there any statistics on complaints, another asked.

The Commissioner’s office has power, but it may be trying to handle too many cases. The Commissioner has been very helpful, but slow, a participant said. Participants identified some abilities missing from the Commissioner’s mandate. For example, someone other than the Prime Minister has to make the decision regarding access to his agendas. It is wrong that the Commissioner is not allowed to look at Cabinet documents. The Information Commissioner’s office should have the resources to monitor statistics. It would also be a good idea to show departmental records in responding to ATI requests and identify problematic departments. Participants said the Information Commissioner should have the authority to issue binding orders to departments, while stating that it is wrong that the Information Commissioner reports to the Minister of Justice. The current Information Commissioner is testing the Act by asking questions.

Information and Privacy should not be merged, a participant said. Someone should be focused solely on information. The focus on privacy is already overdone. Another participant said that if the two offices were merged, privacy would always be the trump card. There should be two people. One person would always lean in one direction. A participant noted that there is one person in Quebec, and that Quebec leans about 90% towards increasing the protection of information. There are severe privacy concerns, a participant said, but this discussion is about using privacy as a barrier, rather than a sincere attempt to protect the privacy of individuals.

The debate around ATI may be dealing with yesterday’s problem, when it should be looking five to ten years ahead, a participant said. An example is the Royal Society’s report on genetic engineering. Because it dealt with the approval of foods, there was a commercial privacy issue. However, since the science of health and safety were involved, it should be available. That kind of science area will become more frequent in the future. The process of regulation is very secret.

With regard to Cabinet secrecy, a participant noted that certain things are secret for practical reasons. Why not make these things secret for as long as the government lasts, and release them immediately after an election, even if the government is re-elected? The 30-year limit may have been established to protect people until they died, another remarked. The time limit should be based on a lesser number of years or on the utility of maintaining secrecy; for example, when the government changes or when the decision is made. It would be useful to have access to the underlying information during the decision-making period. Another participant countered that Cabinet does need to be protected. Barriers are appropriate, but that should not be used as an excuse to limit the free circulation of information.

The 30-year period is too long, a participant concurred. There have already been exceptions made for serious researchers. The 30-year limit on the declaration of the War Measures Act in 1970 has just expired and nothing earth-shattering was learned. A more reasonable period would be the life of the government, or one year.

A participant stated that the government should separate the concept of ATI from its natural desire to spin information to its benefit. Denial should not be part of a media plan. After a decision would be a good time for release of information within 30, 60 or 90 days. Participants agreed that it is important to know what went into a decision; what decision-makers were weighing; what data they did not have; what they chose to ignore. The issue is really accountability, which is different from transparency, said one participant. This process should push toward accountability, particularly since there is great public cynicism about politics.

A participant stated that the first people to have information should be the MPs, not the media. Another noted that the Alliance Party is feeding the media information. There should be disincentives for politicizing, the participant said.

It was noted that lobby groups are very powerful. The government may be reluctant to give them more power by sharing information.

Any information that would put national security at risk should be dealt with on a different level, a participant said. That might be a case for withholding information longer than it takes for government to make a decision. The onus has to be on the government to prove that release of information would be harmful to national security. With national unity, for example, it is absurd for citizens not to know the government’s plans. Most information will be released eventually; it is an issue of when. Citizens have a right to know about the decision-making process of the government; it is the business of the nation.

There is a disturbing lack of recognition that there is a cost to living in a society, a participant said. Individuals have to give up some of their privacy. That notion should find its way into the principles of legislation. Privacy should not be put on a pedestal. When people live in a group, they allow others to have some personal information about them. The review should make it clear that that is fundamental, and keep that balance in the debate, the participant said. There is a thrust towards keeping more categories private. When the Ontario legislation came into effect, some information became private that used to be public. With regard to Cabinet confidences, the culture has to be changed by addressing all exemptions.

A participant noted that often the media are criticized for not respecting privacy rights. However, the need to inform has been recognized in the Privacy legislation. Canadians may not realize the role played by the media in getting stories out to them. While a blanket journalistic exemption is not being suggested, there should be some recognition of the role of the media.

Access issues are not privacy issues, a participant stressed. Privacy exemptions are used too much. There are real privacy issues but with access laws, privacy is used as an excuse.

Other comments were that the media may not necessarily know what the public wants. There may be a limit to what the media needs to know it may not be necessary to know all the gory details. The point is that the burden of proof should be on the government to explain why an exemption is made, a participant emphasized. Currently it is generic.

For example, a participant said, it is not helpful to know all the details of the debate in the current issue of scientific peer review. There is too much information, which is divisive and preventing the issue from moving forward. Some reticence is natural; it is human nature. Another participant said, the question is: at what point is it going to be divisive? People are reticent to give information because it might make them look bad. A 20- to 30-year period is appropriate.

At the Cabinet table everyone is elected. They make comments that they know will be public at some point. This debate is only about when they will be public, a participant said.

Regarding an earlier point about giving up some privacy when living in a society, a participant cited the example of the openness of the court system. In a case at the turn of the century, a couple requested a closed-court divorce. It was not allowed because that would not have been good for public confidence in the judicial system, the judge ruled. This attitude should be extended to all public institutions so that the public can have confidence in them, the participant said.

These comments bring the media back to its own duty to distinguish between public and private interest, a participant said. The media needs to demystify its own role, and the media should not forget that the public does not always understand.

With regard to Cabinet secrecy, if MPs are going to be embarrassed, it will be because of the decisions made, not because of the length of time that has elapsed. That is a reason to advocate sooner release, a participant said.

Nancy Averill outlined the process for the report of this roundtable and the larger process for review of the legislation. The meeting was then adjourned.

Consultation