Observations reçues par le Groupe d'étude

Soumission complète

(Soumis en anglais seulement.)

Auteur: Kirsti Nilsen et Margaret Ann Wilkinson
Envoyé : juin, 2001

This brief follows upon our participation in the interview and roundtable process organized by the Public Policy Forum on behalf of the Task Force.

Our contribution will follow the organizational structure for submissions used by the Forum.

Section 1 - External Environment
Access to information through the legislated access process is entirely dependent upon the retention of information by the agencies governed under the legislation:

• The move to electronic storage of data can lead to great challenges for long term preservation and long term accessibility.
  
• Advances in technology can render older records inaccessible.

1.1 The Access Act should be made complementary to the Archives Act.

In s.5(1) of the Archives Act it provides that
No record under the control of a government institution and no ministerial record, whether or not it is surplus property of a government institution, shall be destroyed or disposed of without the consent of the Archivist.

1.2 The Access Act should specifically permit the Commissioner to co-ordinate with the Archivist to enforce this measure.

1.3 The penalty provisions of the Access Act should apply to the breach of this provision of the Archives Act.

Section 2 - General Design
The Access Act, as currently structured, has the effect of restricting access to government-held information, rather than facilitating it.

• Research shows that government employees perceive the Act as requiring greater diligence in releasing information, rather than as a vehicle to assist in dissemination to the public.³
• Works to be published are exempted from the Access Act, which reinforces government employees' views that information intended for the public is not the main focus of the Act (e.g. "if the information is really meant to be released to the public, it will be published").

2.1 Work both published and to be published should be covered by the Access Act, not exempted, although the provisions for its release may continue to be different from those provided for works which are not either published or to be published.

2.2 The government should continue to provide, in appropriate cases, access through the Access Act to government information contained in databases that have been licensed to database vendors (and hence "published" under the Act)

The Act should be structured and administered to reward government employees for dissemination of information.

• Since s.67 has no penalty for wrongly refusing to release, employees do not risk anything by being conservative in releasing information, as long as they do not destroy, falsify or conceal information. There is no actual incentive to release information.

2.3 The Access Act should contain a penalty for wrongly refusing to release information.

Greater publication and/or availability of information held by agencies delivering federal government services (including government itself) will render the problems now experienced with repeat requesters, or "abusive" requestors, or requests being made by consultants, much less acute, if any problems at all persist. We recommend that no specific legislative action be taken to attempt to curb these difficulties, rather, implementation practices should be improved to eliminate or reduce them

2.4 Neither the making of repeated requests, nor the uses to which requested information is being put, should be relevant under the Act.

Section 3 - Scope
The discourse or language used in the purpose section of the Act is inappropriate to the future scope of the access regime.

• The Act speaks in s.2 in terms of "records," whereas it should speak in terms of "information."
• "machine readable records" is too old and restrictive a term in the current environment and s.77(1) (a) further permits limitations by government in this respect.

3.1 Make the language of the Access Act consistent with the Personal Information Protection and Electronic Documents Act and frame it in terms of "information" rather than "records."

• Although the Personal Information Protection and Electronic Documents Act includes, in s.2, virtually the same definition of "records" as appears in the Access Act and the Archives Act, this term has limited scope under the Personal Information Protection and Electronic Documents Act. That Act is primarily framed in terms of "information".⁴

The Access Act in s.2 speaks of "control" by government institutions, which immediately reinforces a notion of a power structure between government and its citizens and sets up an adversarial approach to this regime

3.2 Use wording analogous to that used in the Personal Information Protection and Electronic Documents Act⁵ such as "This Act applies to all information held for the public by or on behalf of government."

The Access Act in s.2 limits the scope of the access regime to "government institutions" and has resulted in at least the perception that government is evading its responsibilities under the Act by shifting information resources to agencies not covered by the Act.

• The inclusion section should be drafted purposively rather than categorically: in terms of organizations delivering services.

3.3 Agencies outside government should be included in the regime where they deliver services to the public on behalf of the government.

• We do not recommend that private sector individuals and organizations that receive public funds should be necessarily included under this regime: only if these funds are received for the administration of services to the public on behalf of the government.
• This will bring the Access Act in line with the purposive coverage in the Personal Information Protection and Electronic Documents Act where s.2 includes organizations involved in commercial activities and the operation of federal works, undertakings and businesses.
• It should be noted that the Archives Act refers to agencies covered under Schedule 1 of the Access Act - and it is only to these agencies that the Archivist has full records access (Archives Act, s.5(5)): in the interests of long term public access to records, then, the Access Act, on which the Archives Act relies, should be drafted to fully include as many agencies and bodies as possible, with a specified list only being used for exclusions.
• This definition would necessarily bring both federal crown corporations and special operating agencies into the regime

  ALTERNATIVE: we recommend that s. 77(2) of the Access Act -- which currently allows the government only to add by regulation bodies "of the government of Canada" - be amended to enable Government to include other agencies on a case by case basis.

  SECOND ALTERNATIVE: we recommend that the Act be re-drafted so that Schedule 1 is those agencies NOT covered by the Act, rather than the current reverse situation.

The Act in s.2 currently enunciates the principle that government information should be available to the public and that decisions on disclosure should be independently reviewed - there is no scope, even under the Act as presently worded, for a blanket exemption of cabinet records

3.5 We recommend that cabinet records should be treated at the federal level as they are under provincial regimes: that is, they should be included in the scope of the act, although they may well receive an exempt status in certain circumstances (specific instances of exemption would therefore be reviewable by the Commissioner).

3.6 Published documents should not be exempted from the Act (see also 2.1, 2.2 above).

Section 4 - Implementation
Now that private sector organizations have had specific records management obligations imposed upon them by the federal government in the Personal Information Protection and Electronic Documents Act, we suggest that the public's tolerance for inefficient records management practices in the federal government will be minimal.

• While we recognize that the Personal Information Protection and Electronic Documents Act is dealing with the public's right of access to information about identifiable individuals and in this respect is complementary to the federal Privacy Act and distinct from the Access Act which deals with information which is not personally identifiable, it must be noted that the records management obligations required to facilitate access to personally identifiable information and information on other subjects are basically the same.
• While we recognize that the Access Act will not be providing the public with a right of access to personally identifiable information, current federal government practice apparently means that neither access requests nor privacy requests are handled routinely within the statutory time limits. Since the private sector now has time limits imposed for production of personally identifiable information, the federal government will be under pressure to meet its own statutory commitments.

Clarifying that the Access Act covers "information," rather than "records," should begin to curb some confusion and/or abuses around the current regime (see recommendation 3.1).

• It has been reported, for example, that government employees are using "post-it" notes to append important information to records, which are then removed when the record is produced in response to an access request

4.1 We endorse a suggestion that has been made that the Information Coordinators within government be responsible directly to the Information Commissioner although physically located throughout government, as is the model used for employees of the Justice department.

4.2 Information about the access process within ministries should be confined to the ministries themselves and the Office of the Commissioner: the Prime Minister's Office should be specifically prohibited from accessing or using information about the pattern of requests unless or until it has been published in the annual reports of the Ministers or Commissioner.

4.3 Access requests should be entirely confidential.

COST
Publishing government information widely is almost certainly more cost effective than processing individual access requests.

4.4 Section 26 should at least be amended to state that the requirement to process an access request is only obviated where the government or its assignee or licensed vendor is publishing the information at no cost , marginal cost, or reasonable cost. The onus should be on the government agency or organization delivering government services to demonstrate the reasonableness of its publication costs to the Information Commissioner where a request is being denied.

The present practice of sometimes "waiving costs" is arbitrary and inappropriate: it further exacerbates the perception of government power in the relationship under the present regime between citizens and their government

4.5 At least, by regulation, no fees should be chargeable where time limits have been exceeded.

4.6 The power to waive costs should be required to be uniformly applied, under given circumstances to be established by regulation, and monitored by the Information Commissioner.

• The Personal Information Protection and Electronic Documents Act requires organizations subject to it to charge no costs or minimal costs: the federal government should not be given power to charge cost recovery to any greater extent.
• High search costs may be indicative of poor records management practices in federal government agencies and should not be placed upon the shoulders of the applicants.

4.7 Document copying costs should be required to be reasonable in terms of the market copying costs in the geographic environment of the applicant.

Section 5 - Redress
5.1 The Information Commissioner should be an independent officer of Parliament with decision-making and order-making capacity.

• The models of the Ontario and British Columbia Information and Privacy Commissioners should be followed.

5.2 The Commissioner (with the Agreement of the Privacy Commissioner) should be empowered to make records management orders.

5.3 The Federal Court should remain available for Judicial Review of the Commissioner's activities.

• In our view, it would be inappropriate for the Federal Court to become further involved as a decision-making body in individual disputes involving the access regime. This regime is the type of specialized area of law ideally suited to the aegis of a specialized administrative tribunal subject to the oversight of the courts, rather than being one appropriate for direct determination of rights in the courts.

Conclusion:
Figures have been made available about the costs to government departments for the current administration of the present Access Act. Annual reports on the performance of the Commissioner's office are made. However, there is very little empirical research on the value to the requestor of the information made available through this process. The imbalance created by having information on costs without comparable information on benefits, we suggest, may skew perceptions of the value of the access regime.

6.1 We would recommend that particular, sustained, research effort be supported to provide comparable measures of the benefits of the access regime in Canada.

¹Dr. Kirsti Nilsen practiced for a number of years as a professional librarian. Since completing her doctorate at the University of Toronto in information policy, she has been on faculty at the University of Western Ontario, with extensive involvement in the Master of Library and Information Science program. She is the author of a number of articles dealing with access to information : (March, 1999). Public Access to Government Information in Canada in an Electronic Environment. Government Information in Canada/Information gouvernementale au Canada No. 17. [Electronic journal] URL: http://www.usask.ca/library/gic/17/nilsen.html; (1998) Social Science Research in Canada and Government Information Policy: The Statistics Canada Example. Library and Information Science Research 30 (3): 211-234; (1994). Government Information Policy in Canada. Government Information Quarterly 11 (2): 191-209; (1993). Canadian Government Electronic Information Policy. Government Information Quarterly 10 (2): 203-220). She is also author of the recently published monograph (2001). The Impact of Information Policy: Measuring the Effects of the Commercialization of Canadian Government Statistics. Westport CN: Ablex. 264 p.). She is also co-editor of the new series of monographs entitled Good Policy, Good Practice: Information in the New Millenium from Scarecrow Press.

²Dr. Margaret Ann Wilkinson is qualified as both a professional librarian and a lawyer. She was called to the Bar of Ontario in 1980 and spent several years in the private practice of law before undertaking her graduate studies at the Universities of Toronto and Western Ontario. Her doctoral dissertation, entitled "The Impact of the Ontario Freedom of Information and Protection of Privacy Act, 1987, upon Affected Organizations," won the 1992 American Society for Information Science Doctoral Dissertation Award. Since being jointly appointed to the Faculty of Law and Faculty of Information and Media Studies at the University of Western Ontario, she has written a number of articles dealing with information policy issues: (1997) Perceptual Differences in Approaches to Censorship: Information Intermediaries and the Implementation of Law, The Information Society 13(2): 185-193; (1996) Anticipating the Impact of Intellectual Property Protections, Canadian Journal of Information and Library Science 21(2): 23-42; (1993) A Study of the Effect of Controlling the Flow of Information through Imposition of Statutes, in Information as a Global Commodity: Communication, Processing and Use - Proceedings of the CAIS/ASCI 21st Annual Conference 1993, 93-109); (1991) Extending Freedom of Information and Privacy Legislation to Municipalities in Ontario, CISM Journal ACSGC [Journal of the Canadian Institute of Surveying and Mapping] 45 (3): 383-391. She has also been supervisor to a number of doctoral students in Library and Information Science specializing in information policy research, including Dan Dorner, whose study on "Determining Essential Services on the Information Highway" won an international dissertation award in 2000.

³One of the findings of Margaret Ann Wilkinson in "The Impact of the Ontario Freedom of Information and Protection of Privacy Act, 1987, upon Affected Organizations," (1992 Ph.D. dissertation, University of Western Ontario).

⁴A point raised in the commentary to Stephanie Perrin, Heather H. Black, David H. Flaherty and T. Murray Rankin, The Personal Information Protection and Electronic Documents Act: An Annotated Guide (Toronto: Irwin Law, 2001), p.53. The Personal Information Protection and Electronic Documents Act is itself without a definition of information. We presume that the legislative intends the scope of term as used in that legislation to be developed gradually through jurisprudence. We would recommend that the same approach be adopted in this case, rather than inappropriately narrowing the scope of the access legislation through outmoded terminology focussing on records.

⁵The Personal Information Protection and Electronic Documents Act in s.4(1) provides:

This Part applies to every organization in respect of personal information that

(a) the organization collects, uses, or discloses in the course of commercial activities; or
(b) is about an employee of the organization and that the organization collects, uses or discloses in connection with the operation of a federal work, undertaking or business.

Observations reçues par le Groupe d'étude